Government Merits Brief - Hamdan v. Rumsfeld

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Eisentrager, 339 U.S. at 788. The President’s war power under
Article II, Section 2, of the Constitution includes the inherent
authority to create military commissions even in the
absence of any statutory authorization, because that authority
is a necessary and longstanding component of his war powers.
See ibid. (noting that, “of course, grant of war power includes
all that is necessary and proper for carrying these powers into
execution”). The war power thus includes “the power * * *
to punish those enemies who violated the law of war,” because
that power is “part of the prosecution of the war” and “a furtherance
of the hostilities directed to a dilution of enemy
power and involving retribution for wrongs done.” Hirota,
338 U.S. at 208 (Douglas, J., concurring) (citation omitted);
see Yamashita, 327 U.S. at 11; Quirin, 317 U.S. at 28, 30.
When the Constitution was written and ratified, it was
well recognized that one of the powers inherent in military
command was the authority to institute tribunals for punishing
enemy violations of the law of war. For example, during
the Revolutionary War, George Washington, as commander
in chief of the Continental Army, appointed a “Board of General
Officers” to try the British Major John Andre as a spy.
See Quirin, 317 U.S. at 31 n.9. At the time, there was no provision
in the American Articles of War for court-martial proceedings
to try an enemy for the offense of spying. See
George B. Davis, A Treatise on the Military Law of the
United States 308 n.1 (1913). At a minimum, in investing the
President with the authority to be Commander in Chief, the
framers surely intended to give the President the same authority
that General Washington possessed during the Revolutionary
War to convene military tribunals to punish offenses
against the law of war.
The well-established executive practice of using military
commissions confirms this conclusion. Throughout our Nation’s
history, Presidents have exercised their inherent