Government Merits Brief - Hamdan v. Rumsfeld

47
(3d ed. 1914); see Richard S. Hartigan, Lieber’s Code and the
Law of War 47-48 (1983). The Quirin precedent illustrates
these points. See Louis Fisher, Congressional Research Service,
Military Tribunals: The Quirin Precedent 8 (Mar. 26,
2002) (Quirin
commission “adopted a three-and-a-half page” statement of
rules with language providing that “[t]he commission could
* * * discard procedures from the Articles of War or the
Manual for Courts-Martial whenever it wanted to.”).
Congress enacted the UCMJ against the backdrop of this
historical practice and understanding regarding the commonlaw
role of the military commission. See Uniform Code of
Military Justice: Hearings Before the Subcomm. No. 1 of the
House Comm. on Armed Services on H.R. 2498, 81st Cong.,
1st Sess. 1017 (1949) (statement of Robert Smart, Professional
Staff Member of Subcommittee) (“We are not prescribing
rules of procedure for military commissions here. This
only pertains to courts martial.”). The UCMJ predominantly
addresses only courts-martial, with an eye toward providing
a particular form of process to members of the United States
armed forces. It would defeat the plain language, structure,
and history of the UCMJ to read into the numerous provisions
that on their face regulate only courts-martial an intent to
regulate, much less all but eliminate, military commissions. 22
22 Petitioner further contends (Br. 21 n.12) that the military commission’s
rule permitting the admission of evidence if it has “probative value to a
reasonable person” conflicts with Article 36(a) of the UCMJ, 10 U.S.C. 836(a),
because that article embraces the Federal Rules of Evidence. But Article 36(a)
expressly authorizes the President to depart from those rules if “he considers”
their application not “practicable.” Pursuant to that authority, the President
has made a finding that “it is not practicable to apply in military commissions”
the Federal Rules of Evidence because of “the danger to the safety of the
United States and the nature of international terrorism.” Military Order § 1(f).
In addition, the military commission’s evidentiary standard is the same one
commonly used by international tribunals. See, e.g., ICTY R.P. & Evid. 89(C).