Government Merits Brief - Hamdan v. Rumsfeld

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50 C.F.R. Part 9, and subject to judicial review under the DTA, readily meets this standard. And the longstanding statutory recognition of the military commission as a legitimate body to try violations of the law of war and the repeated use of commissions throughout this Nation’s history further refute petitioner’s contention that the commission is not a regularly constituted court, as well as refuting his broader contention that use of a military commission is not authorized. CONCLUSION The writ of certiorari should be dismissed for lack of jurisdiction. In the alternative, the judgment of the court of appeals should be affirmed. Respectfully submitted. PAUL D. CLEMENT Solicitor General PETER D. KEISLER Assistant Attorney General GREGORY G. GARRE Deputy Solicitor General GREGORY G. KATSAS Deputy Assistant Attorney General JONATHAN L. MARCUS KANNON K. SHANMUGAM Assistants to the Solicitor General DOUGLAS N. LETTER ROBERT M. LOEB ERIC D. MILLER Attorneys FEBRUARY 2006
APPENDIX 1. 10 U.S.C. 821, Art. 21, provides: Jurisdiction of courts-martial not exclusive The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals. 2. 10 U.S.C. 836, Art. 36, provides in pertinent part: President may prescribe rules (a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he 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 which may not be contrary to or inconsistent with this chapter. * * * * * (1a)
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No. 05-184 In the Supreme Court of
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TABLE OF CONTENTS Page Jurisdiction
Page 5 and 6:
V Cases—Continued: Page Foster v.
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VII Cases—Continued: Page United
Page 9 and 10:
IX Treaties, statutes, regulations,
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XI Statutes, regulations, and rules
Page 13 and 14: XIII Miscellaneous—Continued: Pag
Page 15 and 16: In the Supreme Court of the United
Page 17 and 18: 3 2. a. In November 2001, petitione
Page 19 and 20: 5 Qaeda,” and that he was therefo
Page 21 and 22: 7 SUMMARY OF ARGUMENT I. Petitioner
Page 23 and 24: 9 ity in wartime to hold enemy figh
Page 25 and 26: 11 tured in the United States, Ex p
Page 27 and 28: 13 entertaining “habeas petitions
Page 29 and 30: 15 sion,” and that judicial revie
Page 31 and 32: 17 AUMF authorized the use of milit
Page 33 and 34: 19 UCMJ applies to armed conflicts
Page 35 and 36: 21 Eisentrager, 339 U.S. at 788. Th
Page 37 and 38: 23 The President’s inherent autho
Page 39 and 40: 25 no basis for this Court to inval
Page 41 and 42: 27 1. Military commissions may be a
Page 43 and 44: 29 particular reference to the fact
Page 45 and 46: 31 253, 306 (1829); see generally U
Page 47 and 48: 33 spected * * * in all circumstanc
Page 49 and 50: 35 ever, create no enforceable fede
Page 51 and 52: 37 court of appeals to have conside
Page 53 and 54: 39 applicable to “all cases of de
Page 55 and 56: 41 tenced only if the sentence has
Page 57 and 58: 43 E. Petitioner Does Not Enjoy The
Page 59 and 60: 45 commission. The Court described
Page 61 and 62: 47 (3d ed. 1914); see Richard S. Ha
Page 63: 49 armed conflicts, * * * which are
Page 67 and 68: 3a Committee on the Judiciary of th
Page 69 and 70: 5a (2) ELEMENTS OF REPORT.—Each s
Page 71 and 72: 7a (ii) to the extent the Constitut
Page 73 and 74: 9a and Nationality Act and, in part
Page 75 and 76: SECTION 2. 11a AUTHORIZATION FOR US
Page 77 and 78: 13a (d) The ability of the United S
Page 79 and 80: 15a Sec. 3. Detention Authority of
Page 81 and 82: 17a (8) of the record of the trial,
Page 83 and 84: 19a 6. Geneva Convention relative t
Page 85 and 86: 21a (c) outrages upon personal dign
Page 87 and 88: 23a B. The following shall likewise
Page 89 and 90: 25a * * * * * ARTICLE 11 In cases w
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Government Merits Brief - Hamdan v. Rumsfeld

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