Government Merits Brief - Hamdan v. Rumsfeld

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The President’s inherent authority to establish military
commissions is reflected in the actions of Congress and the
courts in this context. The elliptical manner in which Congress
acknowledged military commissions and left them undisturbed
in Article 21 of the UCMJ—as opposed to authorizing
them directly in plain terms of affirmative authorization—acknowledges
that congressional authorization was not
necessary and was not present during most of the first 125
years during which the executive employed such commissions.
Likewise, as this Court explained in Quirin, “the detention
and trial of petitioners—ordered by the President in the declared
exercise of his powers as Commander in Chief of the
Army in time of war and of grave public danger are not to be
set aside by the courts without the clear conviction that they
are in conflict with the Constitution or laws of Congress.” 317
U.S. at 25. Petitioner has not come remotely close to making
the necessary showing that Congress intended to limit the
President’s inherent authority to establish military commissions
in this context. 4
C. Al Qaeda’s Wholesale Disregard For The Law Of War
Does Not Exempt It From Punishment For Violations
Of The Law Of War
Petitioner contends (Br. 30-36) that the law of war does
not apply to the current conflict with al Qaeda, a foreign terrorist
organization that engages in systematic violations of
the law of war to accomplish its ideological and political goals.
That contention is seriously mistaken.
4
Petitioner states (Br. 12) that Quirin held that the “authority to establish
commissions rests with Congress.” Quirin, however, expressly declined to
settle questions about the relative powers of the political branches over military
commissions in a case in which both the President and Congress (through
Article 15 of the Articles of War) had sanctioned their use.