Government Merits Brief - Hamdan v. Rumsfeld

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no basis for this Court to invalidate the judgments made by
both political branches that the law of war applies to al Qaeda.
In any event, those judgments were correct. It is well
established that the law of war fully applies to armed conflicts
involving groups or entities other than traditional nationstates.
See The Prize Cases, 67 U.S. (2 Black) at 666 (noting
that “it is not necessary to constitute war, that both parties
should be acknowledged as independent nations or sovereign
states”); Ingrid Detter, The Law of War 134 (2d ed. 2000)
(observing that “non-recognition of groups, fronts or entities
has not affected their status as belligerents nor the ensuing
status of their soldiers as combatants”). Any contrary conclusion
in this case would blink reality in view of the fact that al
Qaeda has repeatedly declared itself an enemy of the United
States, and has inflicted damage on a scale that exceeds previous
attacks on our soil by nation-states, and in a manner that,
by any common-sense understanding, constitutes an act of
war. There is no doubt that al Qaeda’s attacks against American
civilians and military targets (including an attack on the
headquarters of the Nation’s Department of Defense) have
triggered a right to deploy military forces abroad to defend
the United States by combating al Qaeda.
Petitioner identifies several purported distinctions between
this conflict and other wars, but none of them is material.
For example, petitioner asserts (Br. 31) that the conflict
with al Qaeda is “potentially unlimited in scope [and] duration.”
That assertion, however, underestimates this Nation’s
capabilities and resolve and was no less true of World War II
from the perspective of 1941. Moreover, the fact that the
endpoint of the conflict with al Qaeda is not immediately in
sight supports holding its combatants accountable for their
war crimes in a manner that promotes, rather than compromises,
other efforts to prosecute the war and bring the conflict
to an end.