Government Merits Brief - Hamdan v. Rumsfeld

29
particular reference to the facts”: namely, that the defendant
in Milligan, as a person who was not “a part of or associated
with the armed forces of the enemy,” was a “non-belligerent.”
317 U.S. at 45. And in Hamdi, a majority of this Court rejected
a far more plausible invocation of Milligan, by an
American citizen, and reaffirmed Quirin. See 542 U.S. at 523
(plurality opinion) (“Quirin was a unanimous opinion. It both
postdates and clarifies Milligan, providing us with the most
apposite precedent that we have.”); id. at 593 (Thomas, J.,
dissenting) (“Quirin overruled Milligan to the extent that
those cases are inconsistent.”). 6
Petitioner contends that he should be considered a nonbelligerent
like the defendant in Milligan, rather than an
enemy combatant like the defendants in Quirin, because he
contests his combatant status. But the Hamdi plurality refused
to limit Quirin to cases in which enemy-combatant status
was conceded, noting that the AUMF authorizes the
United States to detain even citizen enemy combatants captured
in a foreign combat zone and concluding that “whether
[enemy-combatant status] is established by concession or by
some other process that verifies this fact with sufficient certainty
seems beside the point.” 542 U.S. at 523. Petitioner is
an alien enemy combatant captured abroad. Because a CSRT
found that petitioner had the status of an enemy combatant
(as either a member or an affiliate of al Qaeda), see Pet. App.
2a, 31a, petitioner squarely falls within the four corners of the
6
Petitioner seeks (Br. 26 n.17) to distinguish Quirin on the ground that two
of the four charges (Counts 2 and 3) were statutorily authorized to be tried by
military commission. But Quirin upheld the commission’s authority to try the
individuals based solely on the common-law-of-war charge (Count 1). Indeed,
Quirin noted that, through Article 15 of the Articles of War, Congress had
recognized the military’s ability to enforce common-law rules of warfare which
Congress had chosen not to codify in detail. 317 U.S. at 30.