Government Merits Brief - Hamdan v. Rumsfeld

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Qaeda and thus does not assist petitioner. The President has
determined that the Geneva Convention does not “apply to
our conflict with al Qaeda in Afghanistan or elsewhere
throughout the world because, among other reasons, al Qaeda
is not a High Contracting Party to [the Convention].” J.A. 35.
The President further determined that, “because [the Convention]
does not apply to our conflict with al Qaeda, al Qaeda
detainees also do not qualify as prisoners of war.” J.A. 36.
The President’s determination represents a classic exercise
of his war powers and his authority over foreign affairs more
generally, see Curtiss-Wright, 299 U.S. at 320; was made in
accordance with Congress’s resolution authorizing the use of
force; and is binding on the courts, see Banco Nacional de
Cuba v. Sabbatino, 376 U.S. 398, 410 (1964); Chicago & S. Air
Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
The decision whether the Geneva Convention applies to a
terrorist network like al Qaeda is akin to the decision whether
a foreign government has sufficient control over an area to
merit recognition or whether a foreign state has ratified a
treaty. In each case, the decision is solely for the Executive.
See Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853) (noting
that “it would be impossible for the executive department of
the government to conduct our foreign relations with any
advantage to the country, and fulfill the duties which the Constitution
has imposed upon it, if every court in the country
was authorized to inquire and decide whether the person who
ratified the treaty on behalf of a foreign nation had the power,
by its constitution and laws, to make the engagements into
which he entered”).
Even if some judicial review of the President’s determination
were appropriate, moreover, the standard of review
would surely be extraordinarily deferential to the President.
And, under any standard, the President’s determination is
manifestly correct. Article 2 provides that the Convention is