Government Merits Brief - Hamdan v. Rumsfeld

45
commission. The Court described military commissions as
“our common-law war courts” and observed that “[n]either
their procedure nor their jurisdiction has been prescribed by
statute.” 343 U.S. at 346-347. Rather, the Court noted, the
military commission “has been adapted in each instance to the
need that called it forth.” Id. at 347-348. The Court further
explained that, in contrast to its active regulation of “the jurisdiction
and procedure of United States courts-martial,”
Congress had shown “evident restraint” with respect to the
regulation of military commissions. Id. at 349. The Court
concluded that, “[i]n the absence of attempts by Congress to
limit the President’s power,” the President “may, in time of
war, establish and prescribe the jurisdiction and procedure of
military commissions.” Id. at 348; see Quirin, 317 U.S. at 30
(noting that Congress rejected option of “crystallizing in permanent
form and in minute detail every offense” triable by
commissions and instead “adopt[ed] the system of common
law applied by the military tribunals”). 20
Petitioner suggests (Br. 19-20 n.10) that regulations and
historical practice “confirm that commissions follow courtmartial
rules.” He quotes a portion of the preamble to the
Manual for Courts Martial, which states that “military commissions
* * * shall be guided by the appropriate principles
of law and rules of procedure and evidence prescribed for
courts-martial.” See Manual for Courts-Martial, pt. 1, para.
2(b)(2), at I.1 (2005). That captures roughly half the common
sense of the matter. Of course, military commissions, which
tend to be an episodic response to particular conflicts, borrow
from the permanent procedures for courts-martial where ap-
20 Although Madsen interpreted the Articles of War (notwithstanding the
fact that UCMJ had already been enacted, see 343 U.S. at 345 n.6), the relevant
provisions of the UCMJ are identical in all material respects to their counterparts
in the Articles of War. Compare Articles of War arts. 15 and 38, 39 Stat.
653, 656, with UCMJ arts. 21 and 36, 10 U.S.C. 821, 836.