Government Merits Brief - Hamdan v. Rumsfeld

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1. Military commissions may be and long have been
convened outside the zone of combat
Petitioner contends (Br. 10, 26-27 n.18) that his commission
is invalid because it is located outside a zone of combat or
occupied territory. That contention is unsound. The commission
in Quirin was held in Washington, D.C., while the commission
in Yamashita was held in the Philippines, which was
a U.S. territory at the time. Moreover, although military
commissions authorized to administer civil law generally (i.e.,
to maintain law and order) are naturally convened in the territory
being occupied, there is no requirement that commissions
established for the much narrower purpose of prosecuting
violations of the law of war must be confined to a war zone.
Quirin plainly did not impose such a requirement; the UCMJ
was enacted against the backdrop of Quirin; and such a requirement
would only invite unnecessary risks for all involved.
Cf. 1949 Convention art. 23, 6 U.S.T. at 3336, 75
U.N.T.S. at 154 (providing that “[n]o prisoner of war may at
any time be * * * detained in areas where he may be exposed
to the fire of the combat zone”).
2. The offense of conspiracy may be and long has been
tried before a military commission
Petitioner contends (Br. 28-30) that conspiracy, the offense
with which he has been charged, is not a cognizable
offense under the law of war. That is not so. Individuals have
been tried before military commissions for conspiracy to commit
war crimes throughout this Nation’s history. The Quirin
saboteurs were charged with conspiracy, see 317 U.S. at 23,
as was another Nazi saboteur whose convictions were subsequently
upheld, see Colepaugh v. Looney, 235 F.2d 429 (10th
Cir. 1956), cert. denied, 352 U.S. 1014 (1957). See generally
Winthrop, supra, at 839 & n.5 (listing conspiracy offenses
prosecuted by military commissions); Charles Roscoe How-