PART 1 OF 2
Thomas, J., dissenting
SUPREME COURT OF THE UNITED STATES
SALIM AHMED HAMDAN, PETITIONER v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al.
on writ of certiorari to the united states court of appeals for the district of columbia circuit
[June 29, 2006]
Justice Thomas, with whom Justice Scalia joins, and with whom Justice Alito joins in all but Parts I, II–C–1, and III–B–2, dissenting.
For the reasons set forth in Justice Scalia’s dissent, it is clear that this Court lacks jurisdiction to entertain petitioner’s claims, see ante, at 1–11. The Court having concluded otherwise, it is appropriate to respond to the Court’s resolution of the merits of petitioner’s claims because its opinion openly flouts our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs. The Court’s evident belief that it is qualified to pass on the “[m]ilitary necessity,” ante, at 48, of the Commander in Chief’s decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered. I respectfully dissent.
I
Our review of petitioner’s claims arises in the context of the President’s wartime exercise of his commander-in-chief authority in conjunction with the complete support of Congress. Accordingly, it is important to take measure of the respective roles the Constitution assigns to the three branches of our Government in the conduct of war.
As I explained in Hamdi v. Rumsfeld, 542 U. S. 507 (2004) , the structural advantages attendant to the Executive Branch—namely, the decisiveness, “ ‘activity, secrecy, and dispatch’ ” that flow from the Executive’s “ ‘unity,’ ” id., at 581 (dissenting opinion) (quoting The Federalist No. 70, p. 472 (J. Cooke ed. 1961) (A. Hamilton))—led the Founders to conclude that the “President ha[s] primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.” 542 U. S., at 580. Consistent with this conclusion, the Constitution vests in the President “[t]he executive Power,” Art. II, §1, provides that he “shall be Commander in Chief” of the Armed Forces, §2, and places in him the power to recognize foreign governments, §3. This Court has observed that these provisions confer upon the President broad constitutional authority to protect the Nation’s security in the manner he deems fit. See, e.g., Prize Cases, 2Black 635, 668 (1863) (“If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force U without waiting for any special legislative authority”); Fleming v. Page, 9How. 603, 615 (1850) (acknowledging that the President has the authority to “employ [the Nation’s Armed Forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy”).
Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But “Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act,” and “[s]uch failure of Congress U does not, ‘especially U in the areas of foreign policy and national security,’ imply ‘congressional disapproval’ of action taken by the Executive.” Dames & Moore v. Regan, 453 U. S. 654, 678 (1981) (quoting Haig v. Agee, 453 U. S. 280, 291 (1981) ). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply—and the Judicial Branch should not infer—that Congress intended to deprive him of particular powers not specifically enumerated. See Dames & Moore, 453 U. S., at 678 (“[T]he enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to invite measures on independent presidential responsibility” (internal quotation marks omitted)).
When “the President acts pursuant to an express or implied authorization from Congress,” his actions are “ ‘supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion U rest[s] heavily upon any who might attack it.’ ” Id., at 668 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring)). Accordingly, in the very context that we address today, this Court has concluded that “the detention and trial of petitioners—ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger—are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.” Ex parte Quirin, 317 U. S. 1, 25 (1942) .
Under this framework, the President’s decision to try Hamdan before a military commission for his involvement with al Qaeda is entitled to a heavy measure of deference. In the present conflict, Congress has authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 U in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (AUMF) 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. III) (emphasis added). As a plurality of the Court observed in Hamdi, the “capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war,’ ” Hamdi, 542 U. S., at 518 (quoting Quirin, supra, at 28, 30; emphasis added), and are therefore “an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Hamdi, 542 U. S., at 518; id., at 587 (Thomas, J., dissenting). Hamdi’s observation that military commissions are included within the AUMF’s authorization is supported by this Court’s previous recognition that “[a]n important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war.” In re Yamashita, 327 U. S. 1, 11 (1946) ; see also Quirin, supra, at 28–29; Madsen v. Kinsella, 343 U. S. 341, 354, n. 20 (1952) (“ ‘[T]he military commission U is an institution of the greatest importance in the period of war and should be preserved’ ” (quoting S. Rep. No. 229, 63d Cong., 2d Sess., 53 (1914) (testimony of Gen. Crowder))).
Although the Court concedes the legitimacy of the President’s use of military commissions in certain circumstances, ante, at 28, it suggests that the AUMF has no bearing on the scope of the President’s power to utilize military commissions in the present conflict, ante, at 29–30. Instead, the Court determines the scope of this power based exclusively on Article 21 of the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §821, the successor to Article 15 of the Articles of War, which Quirin held “authorized trial of offenses against the law of war before [military] commissions.” 317 U. S., at 29. As I shall discuss below, Article 21 alone supports the use of commissions here. Nothing in the language of Article 21, however, suggests that it outlines the entire reach of congressional authorization of military commissions in all conflicts—quite the contrary, the language of Article 21 presupposes the existence of military commissions under an independent basis of authorization.1 Indeed, consistent with Hamdi’s conclusion that the AUMF itself authorizes the trial of unlawful combatants, the original sanction for military commissions historically derived from congressional authorization of “the initiation of war” with its attendant authorization of “the employment of all necessary and proper agencies for its due prosecution.” W. Winthrop, Military Law and Precedents 831 (2d ed. 1920) (hereinafter Winthrop). Accordingly, congressional authorization for military commissions pertaining to the instant conflict derives not only from Article 21 of the UCMJ, but also from the more recent, and broader, authorization contained in the AUMF.2
I note the Court’s error respecting the AUMF not because it is necessary to my resolution of this case—Hamdan’s military commission can plainly be sustained solely under Article 21—but to emphasize the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war. In such circumstances, as previously noted, our duty to defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments
“ ‘are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’ ” Hamdi, supra, at 582–583 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948) ).
It is within this framework that the lawfulness of Hamdan’s commission should be examined.
II
The plurality accurately describes some aspects of the history of military commissions and the prerequisites for their use. Thus, I do not dispute that military commissions have historically been “used in three [different] situations,” ante, at 31–32, and that the only situation relevant to the instant case is the use of military commissions “ ‘to seize and subject to disciplinary measures those enemies who U have violated the law of war,’ ” ante,at 32 (quoting Quirin, supra, at 28–29). Similarly, I agree with the plurality that Winthrop’s treatise sets forth the four relevant considerations for determining the scope of a military commission’s jurisdiction, considerations relating to the (1) time and (2) place of the offense, (3) the status of the offender, and (4) the nature of the offense charged. Winthrop 836–840. The Executive has easily satisfied these considerations here. The plurality’s contrary conclusion rests upon an incomplete accounting and an unfaithful application of those considerations.
A
The first two considerations are that a law-of-war military commission may only assume jurisdiction of “offences committed within the field of the command of the convening commander,” and that such offenses “must have been committed within the period of the war.” See id., at 836, 837; ante, at 33. Here, as evidenced by Hamdan’s charging document, the Executive has determined that the theater of the present conflict includes “Afghanistan, Pakistan and other countries” where al Qaeda has established training camps, App. to Pet. for Cert. 64a, and that the duration of that conflict dates back (at least) to Usama bin Laden’s August 1996 “Declaration of Jihad Against the Americans,” ibid. Under the Executive’s description of the conflict, then, every aspect of the charge, which alleges overt acts in “Afghanistan, Pakistan, Yemen and other countries” taking place from 1996 to 2001, satisfies the temporal and geographic prerequisites for the exercise of law-of-war military commission jurisdiction. Id., at 65a–67a. And these judgments pertaining to the scope of the theater and duration of the present conflict are committed solely to the President in the exercise of his commander-in-chief authority. See Prize Cases, 2 Black, at 670 (concluding that the President’s commander-in-chief judgment about the nature of a particular conflict was “a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted”).
Nevertheless, the plurality concludes that the legality of the charge against Hamdan is doubtful because “Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war U but with an agreement the inception of which long predated U the [relevant armed conflict].” Ante, at 48 (emphasis in original). The plurality’s willingness to second-guess the Executive’s judgments in this context, based upon little more than its unsupported assertions, constitutes an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority. And even if such second-guessing were appropriate, the plurality’s attempt to do so is unpersuasive.
As an initial matter, the plurality relies upon the date of the AUMF’s enactment to determine the beginning point for the “period of the war,” Winthrop 836, thereby suggesting that petitioner’s commission does not have jurisdiction to try him for offenses committed prior to the AUMF’s enactment. Ante, at 34–36, 48. But this suggestion betrays the plurality’s unfamiliarity with the realities of warfare and its willful blindness to our precedents. The starting point of the present conflict (or indeed any conflict) is not determined by congressional enactment, but rather by the initiation of hostilities. See Prize Cases, supra, at 668 (recognizing that war may be initiated by “invasion of a foreign nation,” and that such initiation, and the President’s response, usually precedes congressional action). Thus, Congress’ enactment of the AUMF did not mark the beginning of this Nation’s conflict with al Qaeda, but instead authorized the President to use force in the midst of an ongoing conflict. Moreover, while the President’s “war powers” may not have been activated until the AUMF was passed, ante, 35, n. 31, the date of such activation has never been used to determine the scope of a military commission’s jurisdiction.3 Instead, the traditional rule is that “[o]ffenses committed before a formal declaration of war or before the declaration of martial law may be tried by military commission.” Green, The Military Commission, 42 Am. J. Int’l L. 832, 848 (1948) (hereinafter Green); see also C. Howland, Digest of Opinions of the Judge-Advocates General of the Army 1067 (1912) (hereinafter Howland) (“A military commission U exercising U jurisdiction U under the laws of war U may take cognizance of offenses committed, during the war, before the initiation of the military government or martial law” (emphasis in original));4 cf. Yamashita, 327 U. S., at 13 (“The extent to which the power to prosecute violations of the law of war shall be exercised before peace is declared rests, not with the courts, but with the political branch of the Government”). Consistent with this principle, on facts virtually identical to those here, a military commission tried Julius Otto Kuehn for conspiring with Japanese officials to betray the United States Fleet to the Imperial Japanese Government prior to its attack on Pearl Harbor. Green 848.5
Moreover, the President’s determination that the present conflict dates at least to 1996 is supported by overwhelming evidence. According to the State Department, al Qaeda declared war on the United States as early as August 1996. See Dept. of State Fact Sheet: Usama bin Ladin (Aug. 21, 1998); Dept. of State Fact Sheet: The Charges against International Terrorist Usama Bin Laden (Dec. 20, 2000); cf. Prize Cases, 2 Black, at 668 (recognizing that a state of war exists even if “the declaration of it be unilateral” (emphasis in original)). In February 1998, al Qaeda leadership issued another statement ordering the indiscriminate—and, even under the laws of war as applied to legitimate nation-states, plainly illegal—killing of American civilians and military personnel alike. See Jihad Against Jews and Crusaders: World Islamic Front Statement 2 (Feb. 23, 1998), in Y. Alexander & M. Swetnam, Usama bin Laden’s al-Qaida: Profile of a Terrorist Network, App. 1B (2001) (“The ruling to kill the Americans and their allies—civilians and military—is an individual duty for every Muslim who can do it in any country in which it is possible to do it”). This was not mere rhetoric; even before September 11, 2001, al Qaeda was involved in the bombing of the World Trade Center in New York City in 1993, the bombing of the Khobar Towers in Saudi Arabia in 1996, the bombing of the U. S. Embassies in Kenya and Tanzania in 1998, and the attack on the U. S. S. Cole in Yemen in 2000. See id., at 1. In response to these incidents, the United States “attack[ed] facilities belonging to Usama bin Ladin’s network” as early as 1998. Dept. of State Fact Sheet: Usama bin Ladin (Aug. 21, 1998). Based on the foregoing, the President’s judgment—that the present conflict substantially predates the AUMF, extending at least as far back as al Qaeda’s 1996 declaration of war on our Nation, and that the theater of war extends at least as far as the localities of al Qaeda’s principal bases of operations—is beyond judicial reproach. And the plurality’s unsupportable contrary determination merely confirms that “ ‘the Judiciary has neither aptitude, facilities nor responsibility’ ” for making military or foreign affairs judgments. Hamdi, 542 U. S., at 585 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines, 333 U. S., at 111).
B
The third consideration identified by Winthrop’s treatise for the exercise of military commission jurisdiction pertains to the persons triable before such a commission, see ante,at 33; Winthrop 838. Law-of-war military commissions have jurisdiction over “ ‘individuals of the enemy’s army who have been guilty of illegitimate warfare or other offences in violation of the laws of war,’ ” ante, at 33-34 (quoting Winthrop 838). They also have jurisdiction over “[i]rregular armed bodies or persons not forming part of the organized forces of a belligerent” “who would not be likely to respect the laws of war.” Id., at 783, 784. Indeed, according to Winthrop, such persons are not “within the protection of the laws of war” and were “liable to be shot, imprisoned, or banished, either summarily where their guilt was clear or upon trial and conviction by military commission.” Id., at 784. This consideration is easily satisfied here, as Hamdan is an unlawful combatant charged with joining and conspiring with a terrorist network dedicated to flouting the laws of war. 344 F. Supp. 2d 152, 161 (DC 2004); App. to Pet. for Cert. 63a–67a.
C
The fourth consideration relevant to the jurisdiction of law-of-war military commissions relates to the nature of the offense charged. As relevant here, such commissions have jurisdiction to try “ ‘[v]iolations of the laws and usages of war cognizable by military tribunals only,’ ” ante, at 34 (quoting Winthrop 839). In contrast to the preceding considerations, this Court’s precedents establish that judicial review of “whether any of the acts charged is an offense against the law of war cognizable before a military tribunal” is appropriate. Quirin, 317 U. S., at 29. However, “charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment.” Yamashita, 327 U. S., at 17. And whether an offense is a violation of the law of war cognizable before a military commission must be determined pursuant to “the system of common law applied by military tribunals.” Quirin, supra, at 30; Yamashita, supra, at 8.
The common law of war as it pertains to offenses triable by military commission is derived from the “experience of our wars” and our wartime tribunals, Winthrop 839, and “the laws and usages of war as understood and practiced by the civilized nations of the world,” 11Op. Atty. Gen. 297, 310 (1865). Moreover, the common law of war is marked by two important features. First, as with the common law generally, it is flexible and evolutionary in nature, building upon the experience of the past and taking account of the exigencies of the present. Thus, “[t]he law of war, like every other code of laws, declares what shall not be done, and does not say what may be done. The legitimate use of the great power of war, or rather the prohibitions upon the use of that power, increase or diminish as the necessity of the case demands.” Id., at 300. Accordingly, this Court has recognized that the “jurisdiction” of “our common-law war courts” has not been “prescribed by statute,” but rather “has been adapted in each instance to the need that called it forth.” Madsen, 343 U. S., at 346–348. Second, the common law of war affords a measure of respect for the judgment of military commanders. Thus, “[t]he commander of an army in time of war has the same power to organize military tribunals and execute their judgments that he has to set his squadrons in the field and fight battles. His authority in each case is from the law and usage of war.” 11 Op. Atty. Gen., at 305. In recognition of these principles, Congress has generally “ ‘left it to the President, and the military commanders representing him, to employ the commission, as occasion may require, for the investigation and punishment of violations of the law of war.’ ” Madsen, supra, at 347, n. 9 (quoting Winthrop 831; emphasis added).
In one key respect, the plurality departs from the proper framework for evaluating the adequacy of the charge against Hamdan under the laws of war. The plurality holds that where, as here, “neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent [establishing whether an offense is triable by military commission] must be plain and unambiguous.” Ante, at 38. This is a pure contrivance, and a bad one at that. It is contrary to the presumption we acknowledged in Quirin, namely, that the actions of military commissions are “not to be set aside by the courts without the clear conviction that they are” unlawful, 317 U. S., at 25 (emphasis added). It is also contrary to Yamashita, which recognized the legitimacy of that military commission notwithstanding a substantial disagreement pertaining to whether Yamashita had been charged with a violation of the law of war. Compare 327 U. S., at 17 (noting that the allegations were “adequat[e]” and “need not be stated with U precision”), with id., at 35 (Murphy, J., dissenting) (arguing that the charge was inadequate). Nor does it find support from the separation of powers authority cited by the plurality. Indeed, Madison’s praise of the separation of powers in The Federalist No. 47, quoted ante, at 38-39, if it has any relevance at all, merely highlights the illegitimacy of today’s judicial intrusion onto core executive prerogatives in the waging of war, where executive competence is at its zenith and judicial competence at its nadir.
The plurality’s newly minted clear-statement rule is also fundamentally inconsistent with the nature of the common law which, by definition, evolves and develops over time and does not, in all cases, “say what may be done.” 11 Op. Atty. Gen., at 300. Similarly, it is inconsistent with the nature of warfare, which also evolves and changes over time, and for which a flexible, evolutionary common-law system is uniquely appropriate.6 Though the charge against Hamdan easily satisfies even the plurality’s manufactured rule, see supra, at 16–28, the plurality’s inflexible approach has dangerous implications for the Executive’s ability to discharge his duties as Commander in Chief in future cases. We should undertake to determine whether an unlawful combatant has been charged with an offense against the law of war with an understanding that the common law of war is flexible, responsive to the exigencies of the present conflict, and deferential to the judgment of military commanders.
1
Under either the correct, flexible approach to evaluating the adequacy of Hamdan’s charge, or under the plurality’s new, clear-statement approach, Hamdan has been charged with conduct constituting two distinct violations of the law of war cognizable before a military commission: membership in a war-criminal enterprise and conspiracy to commit war crimes. The charging section of the indictment alleges both that Hamdan “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose,” App. to Pet. for Cert. 65a, and that he “conspired and agreed with [al Qaeda] to commit U offenses triable by military commission,” ibid.7
The common law of war establishes that Hamdan’s willful and knowing membership in al Qaeda is a war crime chargeable before a military commission. Hamdan, a confirmed enemy combatant and member or affiliate of al Qaeda, has been charged with willfully and knowingly joining a group (al Qaeda) whose purpose is “to support violent attacks against property and nationals (both military and civilian) of the United States.” Id., at 64a;344 F. Supp. 2d, at 161. Moreover, the allegations specify that Hamdan joined and maintained his relationship with al Qaeda even though he “believed that Usama bin Laden and his associates were involved in the attacks on the U. S. Embassies in Kenya and Tazania in August 1998, the attack on the USS COLE in October 2000, and the attacks on the United States on September 11, 2001.” App. to Pet. for Cert. 65a. These allegations, against a confirmed unlawful combatant, are alone sufficient to sustain the jurisdiction of Hamdan’s military commission.
For well over a century it has been established that “to unite with banditti, jayhawkers, guerillas, or any other unauthorized marauders is a high offence against the laws of war; the offence is complete when the band is organized or joined. The atrocities committed by such a band do not constitute the offence, but make the reasons, and sufficient reasons they are, why such banditti are denounced by the laws of war.” 11 Op. Atty. Gen., at 312 (emphasis added).8 In other words, unlawful combatants, such as Hamdan, violate the law of war merely by joining an organization, such as al Qaeda, whose principal purpose is the “killing [and] disabling U of peaceable citizens or soldiers.” Winthrop 784; see also 11 Op. Atty. Gen., at 314 (“A bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public enemies, may be tried, condemned, and executed as offenders against the laws of war”). This conclusion is unsurprising, as it is a “cardinal principle of the law of war U that the civilian population must enjoy complete immunity.” 4 International Committee of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 3 (J. Pictet ed. 1958). “Numerous instances of trials, for ‘Violation of the laws of war,’ of offenders of this description, are published in the General Orders of the years 1862 to 1866.” Winthrop 784, and n. 57.9 Accordingly, on this basis alone, “the allegations of [Hamdan’s] charge, tested by any reasonable standard, adequately allege a violation of the law of war.” Yamashita, 327 U. S., at 17.
The conclusion that membership in an organization whose purpose is to violate the laws of war is an offense triable by military commission is confirmed by the experience of the military tribunals convened by the United States at Nuremberg. Pursuant to Article 10 of the Charter of the International Military Tribunal (IMT), the United States convened military tribunals “to bring individuals to trial for membership” in “a group or organization U declared criminal by the [IMT].” 1 Trials of War Criminals Before the Nuernberg Military Tribunals, p. XII (hereinafter Trials). The IMT designated various components of four Nazi groups—the Leadership Corps, Gestapo, SD, and SS—as criminal organizations. 22 IMT, Trial of the Major War Criminals 505, 511, 517 (1948); see also T. Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir 584–585 (1992). “[A] member of [such] an organization [could] be U convicted of the crime of membership and be punished for that crime by death.” 22 IMT, at 499. Under this authority, the United States Military Tribunal at Nuremberg convicted numerous individuals for the act of knowing and voluntary membership in these organizations. For example, in Military Tribunal Case No. 1, United States v. Brandt, Karl Brandt, Karl Gebhardt, Rudolf Brandt, Joachim Mrugowsky, Wolfram Sievers, Viktor Brack, and Waldemar Hoven, were convicted and sentenced to death for the crime of, inter alia,membership in an organization declared criminal by the IMT; Karl Genzken and Fritz Fischer were sentenced to life imprisonment for the same; and Helmut Poppendick was convicted of no other offense than membership in a criminal organization and sentenced to a 10-year term of imprisonment. 2 Trials 180–300. This Court denied habeas relief, 333 U. S. 836 (1948) , and the executions were carried out at Landsberg prison on June 2, 1948. 2 Trials 330.
Moreover, the Government has alleged that Hamdan was not only a member of al Qaeda while it was carrying out terrorist attacks on civilian targets in the United States and abroad, but also that Hamdan aided and assisted al Qaeda’s top leadership by supplying weapons, transportation, and other services. App. to Pet. for Cert. 65a–67a. These allegations further confirm that Hamdan is triable before a law-of-war military commission for his involvement with al Qaeda. See H. R. Doc. No. 65, 55th Cong., 3d Sess., 234 (1894) (“[T]here are numerous rebels U that U furnish the enemy with arms, provisions, clothing, horses and means of transportation; [such] insurgents are banding together in several of the interior counties for the purpose of assisting the enemy to rob, to maruad and to lay waste to the country. All such persons are by the laws of war in every civilized country liable to capital punishment” (emphasis added)); Winthrop 840 (including in the list of offenses triable by law-of-war military commissions “dealing with U enemies, or furnishing them with money, arms, provisions, medicines, &c”).10 Undoubtedly, the conclusion that such conduct violates the law of war led to the enactment of Article 104 of the UCMJ, which provides that “[a]ny person who U aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things U shall suffer death or such other punishment as a court-martial or military commission may direct.” 10 U. S. C. §904.
2
Separate and apart from the offense of joining a contingent of “uncivilized combatants who [are] not U likely to respect the laws of war,” Winthrop 784, Hamdan has been charged with “conspir[ing] and agree[ing] with U the al Qaida organization U to commit U offenses triable by military commission,” App. to Pet. for Cert. 65a. Those offenses include “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism.” Ibid. This, too, alleges a violation of the law of war triable by military commission.
“[T]he experience of our wars,” Winthrop 839, is rife with evidence that establishes beyond any doubt that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission. World War II provides the most recent examples of the use of American military commissions to try offenses pertaining to violations of the laws of war. In that conflict, the orders establishing the jurisdiction of military commissions in various theaters of operation provided that conspiracy to violate the laws of war was a cognizable offense. See Letter, General Headquarters, United States Army Forces, Pacific (Sept. 24, 1945), Record in Yamashita v. Styer, O. T. 1945, No. 672, pp. 14, 16 (Exh. F) (Order respecting the “Regulations Governing the Trial of War Criminals” provided that “participation in a common plan or conspiracy to accomplish” various offenses against the law of war was cognizable before military commissions); 1 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 114–115 (1997) (hereinafter U. N. Commission) (recounting that the orders establishing World War II military commissions in the Pacific and China included “participation in a common plan or conspiracy” pertaining to certain violations of the laws of war as an offense triable by military commission). Indeed, those orders authorized trial by military commission of participation in a conspiracy to commit “murder U or other inhumane acts U against any civilian population,” id., at 114, which is precisely the offense Hamdan has been charged with here. And conspiracy to violate the laws of war was charged in the highest profile case tried before a World War II military commission, see Quirin, 317 U. S., at 23, and on numerous other occasions. See, e.g., Colepaugh v. Looney, 235 F. 2d 429, 431 (CA10 1956); Green 848 (describing the conspiracy trial of Julius Otto Kuehn).
To support its contrary conclusion, ante,at 35–36, the plurality attempts to evade the import of Quirin (and the other World War II authorities) by resting upon this Court’s failure to address the sufficiency of the conspiracy charge in the Quirin case, ante, at 41–43. But the common law of war cannot be ascertained from this Court’s failure to pass upon an issue, or indeed to even mention the issue in its opinion;11 rather, it is ascertained by the practice and usage of war. Winthrop 839; supra, at 11–12.
The Civil War experience provides further support for the President’s conclusion that conspiracy to violate the laws of war is an offense cognizable before law-of-war military commissions. Indeed, in the highest profile case to be tried before a military commission relating to that war, namely, the trial of the men involved in the assassination of President Lincoln, the charge provided that those men had “combin[ed], confederat[ed], and conspir[ed] U to kill and murder” President Lincoln. G. C. M. O. No. 356 (1865), reprinted in H. R. Doc. No. 314, 55th Cong., 3d Sess., 696 (1899) (hereinafter G. C. M. O. No. 356).12
In addition to the foregoing high-profile example, Winthrop’s treatise enumerates numerous Civil War military commission trials for conspiracy to violate the law of war. Winthrop 839, n. 5. The plurality attempts to explain these examples away by suggesting that the conspiracies listed by Winthrop are best understood as “a species of compound offense,” namely, violations both of the law of war and ordinary criminal laws, rather than “stand-alone offense[s] against the law of war.” Ante,at 44–45 (citing, as an example, murder in violation of the laws of war). But the fact that, for example, conspiracy to commit murder can at the same time violate ordinary criminal laws and the law of war, so that it is “a combination of the two species of offenses,” Howland 1071, does not establish that a military commission would not have jurisdiction to try that crime solely on the basis that it was a violation of the law of war. Rather, if anything, and consistent with the principle that the common law of war is flexible and affords some level of deference to the judgments of military commanders, it establishes that military commissions would have the discretion to try the offense as (1) one against the law of war, or (2) one against the ordinary criminal laws, or (3) both.
In any event, the plurality’s effort to avoid the import of Winthrop’s footnote through the smokescreen of its “compound offense” theory, ante,at 44–45, cannot be reconciled with the particular charges that sustained military commission jurisdiction in the cases that Winthrop cites. For example, in the military commission trial of Henry Wirtz, Charge I provided that he had been
“[m]aliciously, willfully, and traitorously . . . combining, confederating, and conspiring, together [with various other named and unnamed co-conspirators], to injure the health and destroy the lives of soldiers in the military service of the United States, then held and being prisoners of war within the lines of the so-called Confederate States, and in the military prisons thereof, to the end that the armies of the United States might be weakened and impaired, in violation of the laws and customs of war.” G. C. M. O. No. 607 (1865), reprinted in H. R. Doc. No. 314, at 785 (emphasis added).
Likewise, in the military commission trial of Lenger Grenfel, Charge I accused Grenfel of “[c]onspiring, in violation of the laws of war, to release rebel prisoners of war confined by authority of the United States at Camp Douglas, near Chicago, Ill.” G. C. M. O. No. 452 (1865), reprinted in H. R. Doc. No. 314, at 724 (emphasis added)13; see also G. C. M. O. No. 41, at 20 (1864) (indictment in the military commission trial of Robert Louden charged “[c]onspiring with the rebel enemies of the United States to embarrass and impede the military authorities in the suppression of the existing rebellion, by the burning and destruction of steamboats and means of transportation on the Mississippi river”). These examples provide incontrovertible support for the President’s conclusion that the common law of war permits military commission trials for conspiracy to violate the law of war. And they specifically contradict the plurality’s conclusion to the contrary, thereby easily satisfying its requirement that the Government “make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war.” Ante, at 39-40.14
The plurality further contends, in reliance upon Winthrop, that conspiracy is not an offense cognizable before a law-of-war military commission because “it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficiently substantial to qualify as an attempt.” Ibid. But Winthrop does not support the plurality’s conclusion. The passage in Winthrop cited by the plurality states only that “the jurisdiction of the military commission should be restricted to cases of offence consisting in overt acts, i.e. in unlawful commissions or actual attempts to commit, and not in intentions merely.” Winthrop 841 (emphasis in original). This passage would be helpful to the plurality if its subject were “conspiracy,” rather than the “jurisdiction of the military commission.” Winthrop is not speaking here of the requirements for a conspiracy charge, but of the requirements for all charges. Intentions do not suffice. An unlawful act—such as committing the crime of conspiracy—is necessary. Winthrop says nothing to exclude either conspiracy or membership in a criminal enterprise, both of which go beyond “intentions merely” and “consis[t] of overt acts, i.e. U unlawful commissions or actual attempts to commit,” and both of which are expressly recognized by Winthrop as crimes against the law of war triable by military commissions. Id., at 784; id., at 839, and n. 5, 840. Indeed, the commission of an “overt ac[t]” is the traditional requirement for the completion of the crime of conspiracy, and the charge against Hamdan alleges numerous such overt acts. App. to Pet. for Cert. 65a. The plurality’s approach, unsupported by Winthrop, requires that any overt act to further a conspiracy must itself be a completed war crime distinct from conspiracy—which merely begs the question the plurality sets out to answer, namely, whether conspiracy itself may constitute a violation of the law of war. And, even the plurality’s unsupported standard is satisfied here. Hamdan has been charged with the overt acts of providing protection, transportation, weapons, and other services to the enemy, id., at 65a–67a, acts which in and of themselves are violations of the laws of war. See supra,at 20–21; Winthrop 839–840.
3
Ultimately, the plurality’s determination that Hamdan has not been charged with an offense triable before a military commission rests not upon any historical example or authority, but upon the plurality’s raw judgment of the “inability on the Executive’s part here to satisfy the most basic precondition U for establishment of military commissions: military necessity.” Ante, at 48. This judgment starkly confirms that the plurality has appointed itself the ultimate arbiter of what is quintessentially a policy and military judgment, namely, the appropriate military measures to take against those who “aided the terrorist attacks that occurred on September 11, 2001.” AUMF §2(a), 115 Stat. 224. The plurality’s suggestion that Hamdan’s commission is illegitimate because it is not dispensing swift justice on the battlefield is unsupportable. Ante, at 43. Even a cursory review of the authorities confirms that law-of-war military commissions have wide-ranging jurisdiction to try offenses against the law of war in exigent and nonexigent circumstances alike. See, e.g., Winthrop 839–840; see also Yamashita, 327 U. S., at 5 (military commission trial after the cessation of hostilities in the Philippines); Quirin, 317 U. S. 1 (military commission trial in Washington, D. C.). Traditionally, retributive justice for heinous war crimes is as much a “military necessity” as the “demands” of “military efficiency” touted by the plurality, and swift military retribution is precisely what Congress authorized the President to impose on the September 11 attackers in the AUMF.
Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict. We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “redhanded,” ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy.
After seeing the plurality overturn longstanding precedents in order to seize jurisdiction over this case, ante, at 2–4 (Scalia, J., dissenting), and after seeing them disregard the clear prudential counsel that they abstain in these circumstances from using equitable powers, ante, at 19–24, it is no surprise to see them go on to overrule one after another of the President’s judgments pertaining to the conduct of an ongoing war. Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusion that a storm drain is a tributary of the waters of the United States. See Rapanos v. United States, 547 U. S. ___(2006). It goes without saying that there is much more at stake here than storm drains. The plurality’s willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.
III
The Court holds that even if “the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed” because of its failure to comply with the terms of the UCMJ and the four Geneva Conventions signed in 1949. Ante, at 49. This position is untenable.
A
As with the jurisdiction of military commissions, the procedure of such commissions “has [not] been prescribed by statute,” but “has been adapted in each instance to the need that called it forth.” Madsen, 343 U. S., at 347–348. Indeed, this Court has concluded that “[i]n the absence of attempts by Congress to limit the President’s power, it appears that, as Commander in Chief of the Army and Navy of the United States, he may, in time of war, establish and prescribe the jurisdiction and procedure of military commissions.” Id., at 348. This conclusion is consistent with this Court’s understanding that military commissions are “our common-law war courts.” Id., at 346–347.15 As such, “[s]hould the conduct of those who compose martial-law tribunals become [a] matter of judicial determination subsequently before the civil courts, those courts will give great weight to the opinions of the officers as to what the customs of war in any case justify and render necessary.” Birkhimer 534.