Government Merits Brief - Hamdan v. Rumsfeld

44
commissions and states that such regulations “shall, so far as
[the President] considers practicable, apply the principles of
law and the rules of evidence generally recognized in the trial
of criminal cases in the United States district courts, but
* * * may not be contrary to or inconsistent with this chapter.”
In petitioner’s view, Article 36(a) necessarily implies
that the rules the President chooses to promulgate for military
commissions must be consistent with the rules set out in
other provisions of the UCMJ for courts-martial. That is
manifestly incorrect.
Petitioner’s theory rests on a fundamental misunderstanding
of the UCMJ. The UCMJ is directed almost exclusively
to establishing the rules for courts-martial. The UCMJ does
not purport to establish comprehensive procedures for military
commissions, which are preserved by the UCMJ as “our
common-law war courts” with a distinct tradition that dates
from the earliest days of the Republic. The UCMJ takes
pains to distinguish between “military commissions” or “military
tribunals,” on the one hand, and “courts-martial,” on the
other, using these distinct terms to connote discrete, rather
than equivalent, types of tribunals. In fact, only nine of the
statute’s 158 articles even mention military commissions and
specify particular safeguards that must be provided in military
commissions as well as in the more comprehensively regulated
courts-martial. See 10 U.S.C. 821, 828, 836, 847-850,
904, 906. If military commissions must replicate all of the
procedures employed in courts-martial, it is not at all clear
why Congress bothered to preserve them.
Madsen confirms that the UCMJ provisions governing
courts-martial do not extend to military commissions. In
Madsen, the Court upheld the trial by military commission of
a person who was also subject to court-martial jurisdiction
under the Articles of War. In doing so, the Court made clear
that the Articles of War did not apply to a trial by military