Hamdan, Salim Ahmed v. Rumsfeld, Donald H. ( 2005 )

  •   United States Court of Appeals
    Argued April 7, 2005                     Decided July 15, 2005
                                             Reissued July 18, 2005
                             No. 04-5393
                      SALIM AHMED HAMDAN ,
                       DEFENSE, ET AL.,
              Appeal from the United States District Court
                      for the District of Columbia
         Peter D. Keisler, Assistant Attorney General, U.S.
    Department of Justice, argued the cause for appellants. With
    him on the briefs were Paul D. Clement, Acting Solicitor
    General, Gregory G. Katsas, Deputy Assistant Attorney
    General, Kenneth L. Wainstein, U.S. Attorney, Douglas N.
    Letter, Robert M. Loeb, August Flentje, Sharon Swingle, Eric
    Miller and Stephan E. Oestreicher, Jr., Attorneys.
        Daniel J. Popeo and Richard A. Samp were on the brief of
    amici curiae Washington Legal Foundation and Allied
    Educational Foundation in support of appellants.
         Jay Alan Sekulow and James M. Henderson, Jr. were on the
    brief of amicus curiae The American Center for Law & Justice
    supporting appellants.
        Neal K. Katyal and Charles Swift, pro hac vice, argued the
    cause for appellee. With them on the briefs were Benjamin S.
    Sharp, Kelly A. Cameron, Harry H. Schneider, Jr., Joseph M.
    McMillan, David R. East, and Charles C. Sipos.
        Carlos M. Vazquez and David C. Vladeck were on the brief
    of amici curiae of fifteen law professors in support of appellee.
       David R. Berz was on the brief for amici curiae Louise
    Doswald-Beck, et al. in support of appellee.
         Jordan J. Paust was on the brief for amicus curiae
    International Law and National Security Law Professors in
    support of appellee.
        Jenny S. Martinez, appearing pro se, was on the brief for
    amici curiae Jenny S. Martinez and Allison Marston Danner.
        Mary J. Moltenbrey was on the brief for amici curiae 305
    United Kingdom and European Parliamentarians in support of
        Gary S. Thompson was on the brief for amici curiae Eleven
    Legal Scholars in support of appellee.
         Philip Sundel, Attorney, Office of Chief Defense Counsel,
    was on the brief for amicus curiae Military Attorneys Detailed
    to Represent Ali Hamza Ahmad Sulayman Al Bahlul in support
    of appellee.
        Kurt J. Hamrock and Phillip E. Carter were on the brief for
    amici curiae Military Law Practitioners and Academicians
    Kevin J. Barry, et al. in support of appellee.
        Blair G. Brown was on the brief for amicus curiae National
    Association of Criminal Defense Lawyers, Inc. in support of
       Elisa C. Massimino was on the brief for amici curiae
    Human Rights First, et al. in support of appellee.
        David H. Remes was on the brief for amici curiae General
    Merrill A. McPeak, et al. in support of appellee.
        Jonathan M. Freiman was on the brief for amici curiae
    People for the American Way Foundation, et al. in support of
        Morton Sklar was on the brief for amicus curiae The World
    Organization for Human Rights USA in support of appellee.
        Jonathan L. Hafetz was on the brief for amicus curiae Louis
    Fisher in support of appellee.
        Alan I. Horowitz was on the brief for amicus curiae Noah
    Feldman in support of appellee.
         Christopher J. Wright and Timothy J. Simeone were on the
    brief for amicus curiae Urban Morgan Institute for Human
    Rights in support of appellee.
        James J. Benjamin, Jr., Nancy Chung, Amit Kurlekar,
    Steven M. Pesner, and Laura K. Soong were on the brief for
    amicus curiae The Association of the Bar of the City of New
    York in support of appellee.
       Before: RANDOLPH and ROBERTS, Circuit Judges, and
    WILLIAMS, Senior Circuit Judge.
        Opinion for the Court filed by Circuit Judge RANDOLPH.
       Concurring opinion filed by Senior Circuit              Judge
          RANDOLPH, Circuit Judge: Afghani militia forces captured
    Salim Ahmed Hamdan in Afghanistan in late November 2001.
    Hamdan’s captors turned him over to the American military,
    which transported him to the Guantanamo Bay Naval Base in
    Cuba. The military initially kept him in the general detention
    facility, known as Camp Delta. On July 3, 2003, the President
    determined “that there is reason to believe that [Hamdan] was a
    member of al Qaeda or was otherwise involved in terrorism
    directed against the United States.” This finding brought
    Hamdan within the compass of the President’s November 13,
    2001, Order concerning the Detention, Treatment, and Trial of
    Certain Non-Citizens in the War Against Terrorism, 66 Fed.
    Reg. 57,833. Accordingly, Hamdan was designated for trial
    before a military commission.
           In December 2003, Hamdan was removed from the general
    population at Guantanamo and placed in solitary confinement in
    Camp Echo. That same month, he was appointed counsel,
    initially for the limited purpose of plea negotiation. In April
    2004, Hamdan filed this petition for habeas corpus. While his
    petition was pending before the district court, the government
    formally charged Hamdan with conspiracy to commit attacks on
    civilians and civilian objects, murder and destruction of property
    by an unprivileged belligerent, and terrorism. The charges
    alleged that Hamdan was Osama bin Laden’s personal driver in
    Afghanistan between 1996 and November 2001, an allegation
    Hamdan admitted in an affidavit. The charges further alleged
    that Hamdan served as bin Laden’s personal bodyguard,
    delivered weapons to al Qaeda members, drove bin Laden to al
    Qaeda training camps and safe havens in Afghanistan, and
    trained at the al Qaeda-sponsored al Farouq camp. Hamdan’s
    trial was to be before a military commission, which the
    government tells us now consists of three officers of the rank of
    colonel. Brief for Appellants at 7.
         In response to the Supreme Court’s decision in Hamdi v.
    124 S. Ct. 2633
     (2004), Hamdan received a formal
    hearing before a Combatant Status Review Tribunal. The
    Tribunal affirmed his status as an enemy combatant, “either a
    member of or affiliated with Al Qaeda,” for whom continued
    detention was required.
         On November 8, 2004, the district court granted in part
    Hamdan’s petition. Among other things, the court held that
    Hamdan could not be tried by a military commission unless a
    competent tribunal determined that he was not a prisoner of war
    under the 1949 Geneva Convention governing the treatment of
    prisoners. The court therefore enjoined the Secretary of Defense
    from conducting any further military commission proceedings
    against Hamdan. This appeal followed.
         The government’s initial argument is that the district court
    should have abstained from exercising jurisdiction over
    Hamdan’s habeas corpus petition. Ex parte Quirin, 
    317 U.S. 1
    (1942), in which captured German saboteurs challenged the
    lawfulness of the military commission before which they were
    to be tried, provides a compelling historical precedent for the
    power of civilian courts to entertain challenges that seek to
    interrupt the processes of military commissions. The Supreme
    Court ruled against the petitioners in Quirin, but only after
    considering their arguments on the merits. In an effort to
    minimize the precedential effect of Quirin, the government
    points out that the decision predates the comity-based abstention
    doctrine recognized in Schlesinger v. Councilman, 
    420 U.S. 738
    (1975), and applied by this court in New v. Cohen, 
    129 F.3d 639
    (D.C. Cir. 1997). Councilman and New hold only that civilian
    courts should not interfere with ongoing court-martial
    proceedings against citizen servicemen. The cases have little to
    tell us about the proceedings of military commissions against
    alien prisoners. The serviceman in Councilman wanted to block
    his court-martial for using and selling marijuana; the serviceman
    in New wanted to stop his court-martial for refusing to obey
    orders. The rationale of both cases was that a battle-ready
    military must be able to enforce “a respect for duty and
    discipline without counterpart in civilian life,” Councilman, 420
    U.S. at 757, and that “comity aids the military judiciary in its
    task of maintaining order and discipline in the armed services,”
    New, 129 F.3d at 643. These concerns do not exist in Hamdan’s
    case and we are thus left with nothing to detract from Quirin’s
    precedential value.
          Even within the framework of Councilman and New, there
    is an exception to abstention: “a person need not exhaust
    remedies in a military tribunal if the military court has no
    jurisdiction over him.” New, 129 F.3d at 644. The theory is that
    setting aside the judgment after trial and conviction
    insufficiently redresses the defendant’s right not to be tried by
    a tribunal that has no jurisdiction. See Abney v. United States,
    431 U.S. 651
    , 662 (1977). The courts in Councilman and New
    did not apply this exception because the servicemen had not
    “raised substantial arguments denying the right of the military
    to try them at all.” New, 129 F.3d at 644 (citing Councilman,
    420 U.S. at 759). Hamdan’s jurisdictional challenge, by
    contrast, is not insubstantial, as our later discussion should
    demonstrate. While he does not deny the military’s authority to
    try him, he does contend that a military commission has no
    jurisdiction over him and that any trial must be by court-martial.
    His claim, therefore, falls within the exception to Councilman
    and, in any event, is firmly supported by the Supreme Court’s
    disposition of Quirin.
         In an argument distinct from his claims about the Geneva
    Convention, which we will discuss next, Hamdan maintains that
    the President violated the separation of powers inherent in the
    Constitution when he established military commissions. The
    argument is that Article I, § 8, of the Constitution gives
    Congress the power “to constitute Tribunals inferior to the
    supreme Court,” that Congress has not established military
    commissions, and that the President has no inherent authority to
    do so under Article II. See Neal K. Katyal & Laurence H. Tribe,
    Waging War, Deciding Guilt: Trying the Military Tribunals,
    111 YALE L.J. 1259, 1284-85 (2002).
         There is doubt that this separation-of-powers claim properly
    may serve as a basis for a court order halting a trial before a
    military commission, see United States v. Cisneros, 
    169 F.3d 763
    , 768-69 (D.C. Cir. 1999), and there is doubt that someone
    in Hamdan’s position is entitled to assert such a constitutional
    claim, see People’s Mojahedin Org. v. Dep’t of State, 
    182 F.3d 17
    , 22 (D.C. Cir. 1999); 32 County Sovereignty Comm. v. Dep’t
    of State, 
    292 F.3d 797
    , 799 (D.C. Cir. 2002). In any event, on
    the merits there is little to Hamdan’s argument.
         The President’s Military Order of November 13, 2001,
    stated that any person subject to the order, including members
    of al Qaeda, “shall, when tried, be tried by a military
    commission for any and all offenses triable by [a] military
    commission that such individual is alleged to have
    committed . . ..” 66 Fed. Reg. at 57,834. The President relied
    on four sources of authority: his authority as Commander in
    Chief of the Armed Forces, U.S. CONST ., art. II, § 2; Congress’s
    joint resolution authorizing the use of force; 10 U.S.C. § 821;
    and 10 U.S.C. § 836. The last three are, of course, actions of
         In the joint resolution, passed in response to the attacks of
    September 11, 2001, Congress authorized the President “to use
    all necessary and appropriate force against those nations,
    organizations, or persons he determines planned, authorized,
    committed, or aided” the attacks and recognized the President’s
    “authority under the Constitution to take action to deter and
    prevent acts of international terrorism against the United States.”
    Authorization for Use of Military Force, Pub. L. No. 107-40,
    115 Stat. 224, 224 (2001). In re Yamashita, 
    327 U.S. 1
    which dealt with the validity of a military commission, held that
    an “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.” Id. at
    11. “The trial and punishment of enemy combatants,” the Court
    further held, is thus part of the “conduct of war.” Id. We think
    it no answer to say, as Hamdan does, that this case is different
    because Congress did not formally declare war. It has been
    suggested that only wars between sovereign nations would
    qualify for such a declaration. See John M. Bickers, Military
    Commissions are Constitutionally Sound: A Response to
    Professors Katyal and Tribe, 34 TEX. TECH. L. REV. 899, 918
    (2003). Even so, the joint resolution “went as far toward a
    declaration of war as it might, and as far or further than
    Congress went in the Civil War, the Philippine Insurrection, the
    Boxer Rebellion, the Punitive Expedition against Pancho Villa,
    the Korean War, the Vietnam War, the invasion of Panama, the
    Gulf War, and numerous other conflicts.” Id. at 917. The
    plurality in Hamdi v. Rumsfeld, in suggesting that a military
    commission could determine whether an American citizen was
    an enemy combatant in the current conflict, drew no distinction
    of the sort Hamdan urges upon us. 124 S. Ct. at 2640-42.
         Ex parte Quirin also stands solidly against Hamdan’s
    argument. The Court held that Congress had authorized military
    commissions through Article 15 of the Articles of War. 317
    U.S. at 28-29; accord In re Yamashita, 327 U.S. at 19-20. The
    modern version of Article 15 is 10 U.S.C. § 821, which the
    President invoked when he issued his military order. Section
    821 states that court-martial jurisdiction does not “deprive
    military commissions . . . of concurrent jurisdiction with respect
    to offenders or offenses that by statute or by the law of war may
    be tried by military commissions.” Congress also authorized the
    President, in another provision the military order cited, to
    establish procedures for military commissions. 10 U.S.C.
    § 836(a). Given these provisions and Quirin and Yamashita, it
    is impossible to see any basis for Hamdan’s claim that Congress
    has not authorized military commissions. See Curtis A. Bradley
    & Jack L. Goldsmith, Congressional Authorization and the War
    on Terrorism, 118 HARV. L. REV. 2048, 2129-31 (2005). He
    attempts to distinguish Quirin and Yamashita on the ground that
    the military commissions there were in “war zones” while
    Guantanamo is far removed from the battlefield. We are left to
    wonder why this should matter and, in any event, the distinction
    does not hold: the military commission in Quirin sat in
    Washington, D.C., in the Department of Justice building; the
    military commission in Yamashita sat in the Phillipines after
    Japan had surrendered.
        We therefore hold that through the joint resolution and the
    two statutes just mentioned, Congress authorized the military
    commission that will try Hamdan.
          This brings us to Hamdan’s argument, accepted by the
    district court, that the Geneva Convention Relative to the
    Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316
    (“1949 Geneva Convention”), ratified in 1955, may be enforced
    in federal court.
          “Treaties made, or which shall be made, under the
    Authority of the United States, shall be the supreme Law of the
    Land.” U.S. CONST ., art. VI, cl. 2. Even so, this country has
    traditionally negotiated treaties with the understanding that they
    do not create judicially enforceable individual rights. See
    Holmes v. Laird, 
    459 F.2d 1211
    , 1220, 1222 (D.C. Cir. 1972);
    Canadian Transport Co. v. United States, 
    663 F.2d 1081
    , 1092
    (D.C. Cir. 1980). As a general matter, a “treaty is primarily a
    compact between independent nations,” and “depends for the
    enforcement of its provisions on the interest and honor of the
    governments which are parties to it.” Head Money Cases, 
    112 U.S. 580
    , 598 (1884). If a treaty is violated, this “becomes the
    subject of international negotiations and reclamation,” not the
    subject of a lawsuit. Id.; see Charlton v. Kelly, 
    229 U.S. 447
    474 (1913); Whitney v. Robertson, 
    124 U.S. 190
    , 194-95 (1888);
    Foster v. Neilson, 27 U.S. (2 Pet.) 253, 306, 314 (1829),
    overruled on other grounds, United States v. Percheman, 32
    U.S. (7 Pet.) 51 (1883).
         Thus, “[i]nternational agreements, even those directly
    benefitting private persons, generally do not create private rights
    or provide for a private cause of action in domestic courts.”
    UNITED STATES § 907 cmt. a, at 395 (1987). The district court
    nevertheless concluded that the 1949 Geneva Convention
    conferred individual rights enforceable in federal court. We
    believe the court’s conclusion disregards the principles just
    mentioned and is contrary to the Convention itself. To explain
    why, we must consider the Supreme Court’s treatment of the
    Geneva Convention of 1929 in Johnson v. Eisentrager, 
    339 U.S. 763
     (1950), and this court’s decision in Holmes v. Laird, neither
    of which the district court mentioned.
          In Eisentrager, German nationals, convicted by a military
    commission in China of violating the laws of war and
    imprisoned in Germany, sought writs of habeas corpus in federal
    district court on the ground that the military commission
    violated their rights under the Constitution and their rights under
    the 1929 Geneva Convention. 339 U.S. at 767. The Supreme
    Court, speaking through Justice Jackson, wrote in an alternative
    holding that the Convention was not judicially enforceable: the
    Convention specifies rights of prisoners of war, but
    “responsibility for observance and enforcement of these rights
    is upon political and military authorities.” Id. at 789 n.14. We
    relied on this holding in Holmes v. Laird, 459 F.2d at 1222, to
    deny enforcement of the individual rights provisions contained
    in the NATO Status of Forces Agreement, an international
         This aspect of Eisentrager is still good law and demands
    our adherence. Rasul v. Bush, 
    124 S. Ct. 2686
     (2004), decided
    a different and “narrow” question: whether federal courts had
    jurisdiction under 28 U.S.C. § 2241 “to consider challenges to
    the legality of the detention of foreign nationals” at Guantanamo
    Bay. Id. at 2690. The Court’s decision in Rasul had nothing to
    say about enforcing any Geneva Convention. Its holding that
    federal courts had habeas corpus jurisdiction had no effect on
    Eisentrager’s interpretation of the 1929 Geneva Convention.
    That interpretation, we believe, leads to the conclusion that the
    1949 Geneva Convention cannot be judicially enforced.
         Although the government relied heavily on Eisentrager in
    making its argument to this effect, Hamdan chose to ignore the
    decision in his brief. Nevertheless, we have compared the 1949
    Convention to the 1929 Convention. There are differences, but
    none of them renders Eisentrager’s conclusion about the 1929
    Convention inapplicable to the 1949 Convention. Common
    Article 1 of the 1949 Convention states that parties to the
    Convention “undertake to respect and to ensure respect for the
    present Convention in all circumstances.” The comparable
    provision in the 1929 version stated that the “Convention shall
    be respected . . . in all circumstances.” Geneva Convention of
    1929, art. 82. The revision imposed upon signatory nations the
    duty not only of complying themselves but also of making sure
    other signatories complied. Nothing in the revision altered the
    method by which a nation would enforce compliance. Article 8
    of the 1949 Convention states that its provisions are to be
    “applied with the cooperation and under the scrutiny of the
    Protecting Powers . . ..” This too was a feature of the 1929
    Convention. See Geneva Convention of 1929, art. 86. But
    Article 11 of the 1949 Convention increased the role of the
    protecting power, typically the International Red Cross, when
    disputes arose: “[I]n cases of disagreement between the Parties
    to the conflict as to the application or interpretation of the
    provisions of the present Convention, the Protecting Powers
    shall lend their good offices with a view to settling the
    disagreement.” Here again there is no suggestion of judicial
    enforcement. The same is true with respect to the other method
    set forth in the 1949 Convention for settling disagreements.
    Article 132 provides that “at the request of a Party to the
    conflict, an enquiry shall be instituted, in a manner to be decided
    between the interested Parties, concerning any alleged violation
    of the Convention.” If no agreement is reached about the
    procedure for the “enquiry,” Article 132 further provides that
    “the Parties should agree on the choice of an umpire who will
    decide upon the procedure to be followed.”
         Hamdan points out that the 1949 Geneva Convention
    protects individual rights. But so did the 1929 Geneva
    Convention, as the Court recognized in Eisentrager, 339 U.S. at
    789-90. The NATO Status of Forces Agreement, at issue in
    Holmes v. Laird, also protected individual rights, but we held
    that the treaty was not judicially enforceable. 459 F.2d at 1222.
          Eisentrager also answers Hamdan’s argument that the
    habeas corpus statute, 28 U.S.C § 2241, permits courts to
    enforce the “treaty-based individual rights” set forth in the
    Geneva Convention. The 1929 Convention specified individual
    rights but as we have discussed, the Supreme Court ruled that
    these rights were to be enforced by means other than the writ of
    habeas corpus. The Supreme Court’s Rasul decision did give
    district courts jurisdiction over habeas corpus petitions filed on
    behalf of Guantanamo detainees such as Hamdan. But Rasul did
    not render the Geneva Convention judicially enforceable. That
    a court has jurisdiction over a claim does not mean the claim is
    valid. See Bell v. Hood, 
    327 U.S. 678
    , 682-83 (1946). The
    availability of habeas may obviate a petitioner’s need to rely on
    a private right of action, see Wang v. Ashcroft, 
    320 F.3d 130
    140-41 & n.16 (2d Cir. 2003), but it does not render a treaty
    judicially enforceable.
        We therefore hold that the 1949 Geneva Convention does
    not confer upon Hamdan a right to enforce its provisions in
    court. See Huynh Thi Anh v. Levi, 
    586 F.2d 625
    , 629 (6th Cir.
        Even if the 1949 Geneva Convention could be enforced in
    court, this would not assist Hamdan. He contends that a military
    commission trial would violate his rights under Article 102,
    which provides that a “prisoner of war can be validly sentenced
    only if the sentence has been pronounced by the same courts
    according to the same procedure as in the case of members of
    the armed forces of the Detaining Power.” One problem for
    Hamdan is that he does not fit the Article 4 definition of a
    “prisoner of war” entitled to the protection of the Convention.
    He does not purport to be a member of a group who displayed
    “a fixed distinctive sign recognizable at a distance” and who
    conducted “their operations in accordance with the laws and
    customs of war.” See 1949 Convention, arts. 4A(2)(b), (c) &
    (d). If Hamdan were to claim prisoner of war status under
    Article 4A(4) as a person who accompanied “the armed forces
    without actually being [a] member[] thereof,” he might raise that
    claim before the military commission under Army Regulation
    190-8. See Section VII of this opinion, infra. (We note that
    Hamdan has not specifically made such a claim before this
          Another problem for Hamdan is that the 1949 Convention
    does not apply to al Qaeda and its members. The Convention
    appears to contemplate only two types of armed conflicts. The
    first is an international conflict. Under Common Article 2, the
    provisions of the Convention apply to “all cases of declared war
    or of any other armed conflict which may arise between two or
    more of the High Contracting Parties, even if the state of war is
    not recognized by one of them.” Needless to say, al Qaeda is
    not a state and it was not a “High Contracting Party.” There is
    an exception, set forth in the last paragraph of Common Article
    2, when one of the “Powers” in a conflict is not a signatory but
    the other is. Then the signatory nation is bound to adhere to the
    Convention so long as the opposing Power “accepts and applies
    the provisions thereof.” Even if al Qaeda could be considered
    a Power, which we doubt, no one claims that al Qaeda has
    accepted and applied the provisions of the Convention.
         The second type of conflict, covered by Common Article 3,
    is a civil war -- that is, an “armed conflict not of an international
    character occurring in the territory of one of the High
    Contracting Parties . . ..” In that situation, Common Article 3
    prohibits “the passing of sentences and the carrying out of
    executions without previous judgment pronounced by a
    regularly constituted court affording all the judicial guarantees
    which are recognized as indispensable by a civilized people.”
    Hamdan assumes that if Common Article 3 applies, a military
    commission could not try him. We will make the same
    assumption arguendo, which leaves the question whether
    Common Article 3 applies. Afghanistan is a “High Contracting
    Party.” Hamdan was captured during hostilities there. But is
    the war against terrorism in general and the war against al Qaeda
    in particular, an “armed conflict not of an international
    character”? See INT ’L COMM . RED CROSS, COMMENTARY: III
    PRISONERS OF WAR 37 (1960) (Common Article 3 applies only
    to armed conflicts confined to “a single country”). President
    Bush determined, in a memorandum to the Vice President and
    others on February 7, 2002, that it did not fit that description
    because the conflict was “international in scope.” The district
    court disagreed with the President’s view of Common Article 3,
    apparently because the court thought we were not engaged in a
    separate conflict with al Qaeda, distinct from the conflict with
    the Taliban. Hamdan v. Rumsfeld, 
    344 F. Supp. 2d 152
    , 161
    (D.D.C. 2004). We have difficulty understanding the court’s
    rationale. Hamdan was captured in Afghanistan in November
    2001, but the conflict with al Qaeda arose before then, in other
    regions, including this country on September 11, 2001. Under
    the Constitution, the President “has a degree of independent
    authority to act” in foreign affairs, Am. Ins. Ass’n v. Garamendi,
    539 U.S. 396
    , 414 (2003), and, for this reason and others, his
    construction and application of treaty provisions is entitled to
    “great weight.” United States v. Stuart, 
    489 U.S. 353
    , 369
    (1989); Sumitomo Shoji America, Inc. v. Avagliano, 
    457 U.S. 176
    , 185 (1982); Kolovrat v. Oregon, 
    366 U.S. 187
    , 194 (1961).
    While the district court determined that the actions in
    Afghanistan constituted a single conflict, the President’s
    decision to treat our conflict with the Taliban separately from
    our conflict with al Qaeda is the sort of political-military
    decision constitutionally committed to him. See Japan Whaling
    Ass’n v. Am. Cetacean Soc’y, 
    478 U.S. 221
    , 230 (1986). To the
    extent there is ambiguity about the meaning of Common Article
    3 as applied to al Qaeda and its members, the President’s
    reasonable view of the provision must therefore prevail.
          Suppose we are mistaken about Common Article 3.
    Suppose it does cover Hamdan. Even then we would abstain
    from testing the military commission against the requirement in
    Common Article 3(1)(d) that sentences must be pronounced “by
    a regularly constituted court affording all the judicial guarantees
    which are recognized as indispensable by civilized peoples.”
    See Councilman, 420 U.S. at 759; New, 129 F.3d at 644; supra
    Part I. Unlike his arguments that the military commission
    lacked jurisdiction, his argument here is that the commission’s
    procedures -- particularly its alleged failure to require his
    presence at all stages of the proceedings -- fall short of what
    Common Article 3 requires. The issue thus raised is not whether
    the commission may try him, but rather how the commission
    may try him. That is by no stretch a jurisdictional argument.
    No one would say that a criminal defendant’s contention that a
    district court will not allow him to confront the witnesses against
    him raises a jurisdictional objection. Hamdan’s claim therefore
    falls outside the recognized exception to the Councilman
    doctrine. Accordingly, comity would dictate that we defer to the
    ongoing military proceedings. If Hamdan were convicted, and
    if Common Article 3 covered him, he could contest his
    conviction in federal court after he exhausted his military
          After determining that the 1949 Geneva Convention
    provided Hamdan a basis for judicial relief, the district court
    went on to consider the legitimacy of a military commission in
    the event Hamdan should eventually appear before one. In the
    district court’s view, the principal constraint on the President’s
    power to utilize such commissions is found in Article 36 of the
    Uniform Code of Military Justice, 10 U.S.C. § 836, which
        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
        . . . 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.
    (Emphasis added.) The district court interpreted the final
    qualifying clause to mean that military commissions must
    comply in all respects with the requirements of the Uniform
    Code of Military Justice (UCMJ). This was an error.
          Throughout its Articles, the UCMJ takes care to distinguish
    between “courts-martial” and “military commissions.” See, e.g.,
    10 U.S.C. § 821 (noting that “provisions of this chapter
    conferring jurisdiction upon courts-martial do not deprive
    military commissions . . . of concurrent jurisdiction”). The
    terms are not used interchangeably, and the majority of the
    UCMJ’s procedural requirements refer only to courts-martial.
    The district court’s approach would obliterate this distinction.
    A far more sensible reading is that in establishing military
    commissions, the President may not adopt procedures that are
    “contrary to or inconsistent with” the UCMJ’s provisions
    governing military commissions.       In particular, Article 39
    requires that sessions of a “trial by court-martial . . . shall be
    conducted in the presence of the accused.” Hamdan’s trial
    before a military commission does not violate Article 36 if it
    omits this procedural guarantee.
          The Supreme Court’s opinion in Madsen v. Kinsella, 
    343 U.S. 341
     (1952), provides further support for this reading of the
    UCMJ. There, the Court spoke of the place of military
    commissions in our history, referring to them as “our
    commonlaw war courts. . . . Neither their procedure nor their
    jurisdiction has been prescribed by statute.” Id. at 346-48. The
    Court issued its opinion two years after enactment of the UCMJ,
    and it is difficult, if not impossible, to square the Court’s
    language in Madsen with the sweeping effect with which the
    district court would invest Article 36. The UCMJ thus imposes
    only minimal restrictions upon the form and function of military
    commissions, see, e.g., 10 U.S.C. §§ 828, 847(a)(1), 849(d), and
    Hamdan does not allege that the regulations establishing the
    present commission violate any of the pertinent provisions.
         Although we have considered all of Hamdan’s remaining
    contentions, the only one requiring further discussion is his
    claim that even if the Geneva Convention is not judicially
    enforceable, Army Regulation 190-8 provides a basis for relief.
    This regulation, which contains many subsections, “implements
    international law, both customary and codified, relating to
    [enemy prisoners of war], [retained personnel], [civilian
    internees], and [other detainees] which includes those persons
    held during military operations other than war.” AR 190-8 § 1-
    1(b). The regulation lists the Geneva Convention among the
    “principal treaties relevant to this regulation.” § 1-1(b)(3); see
    Hamdi, 124 S. Ct. at 2658 (Souter, J., concurring) (describing
    AR 190-8 as “implementing the Geneva Convention”). One
    subsection, § 1-5(a)(2), requires that prisoners receive the
    protections of the Convention “until some other legal status is
    determined by competent authority.” (Emphasis added.) The
    President found that Hamdan was not a prisoner of war under
    the Convention. Nothing in the regulations, and nothing
    Hamdan argues, suggests that the President is not a “competent
    authority” for these purposes.
          Hamdan claims that AR 190-8 entitles him to have a
    “competent tribunal” determine his status. But we believe the
    military commission is such a tribunal. The regulations specify
    that such a “competent tribunal” shall be composed of three
    commissioned officers, one of whom must be field-grade. AR
    190-8 § 1.6(c). A field-grade officer is an officer above the rank
    of captain and below the rank of brigadier general -- a major, a
    lieutenant colonel, or a colonel. The President’s order requires
    military commissions to be composed of between three and
    seven commissioned officers. 32 C.F.R. § 9.4(a)(2), (3). The
    commission before which Hamdan is to be tried consists of three
    colonels. Brief for Appellants at 7. We therefore see no reason
    why Hamdan could not assert his claim to prisoner of war status
    before the military commission at the time of his trial and
    thereby receive the judgment of a “competent tribunal” within
    the meaning of Army Regulation 190-8.
                                 * * *
        For the reasons stated above, the judgment of the district
    court is reversed.
                                                      So ordered.
         W ILLIAMS, Senior Circuit Judge, concurring: I concur in
    all aspects of the court’s opinion except for the conclusion
    that Common Article 3 does not apply to the United States’s
    conduct toward al Qaeda personnel captured in the conflict in
    Afghanistan. Maj. Op. 15-16. Because I agree that the
    Geneva Convention is not enforceable in courts of the United
    States, and that any claims under Common Article 3 should be
    deferred until proceedings against Hamdan are finished, I
    fully agree with the court’s judgment.
                                * * *
          There is, I believe, a fundamental logic to the
    Convention’s provisions on its application. Article 2 (¶ 1)
    covers armed conflicts between two or more contracting
    parties. Article 2 (¶ 3) makes clear that in a multi-party
    conflict, where any two or more signatories are on opposite
    sides, those parties “are bound by [the Convention] in their
    mutual relations”--but not (by implication) vis-à-vis any non-
    signatory. And as the court points out, Maj. Op. at 14, under
    Article 2 (¶ 3) even a non-signatory “Power” is entitled to the
    benefits of the Convention, as against a signatory adversary, if
    it “accepts and applies” its provisions.
         Non-state actors cannot sign an international treaty. Nor
    is such an actor even a “Power” that would be eligible under
    Article 2 (¶ 3) to secure protection by complying with the
    Convention’s requirements. Common Article 3 fills the gap,
    providing some minimal protection for such non-eligibles in
    an “armed conflict not of an international character occurring
    in the territory of one of the High Contracting Parties.” The
    gap being filled is the non-eligible party’s failure to be a
    nation. Thus the words “not of an international character” are
    sensibly understood to refer to a conflict between a signatory
    nation and a non-state actor. The most obvious form of such a
    conflict is a civil war. But given the Convention’s structure,
    the logical reading of “international character” is one that
    matches the basic derivation of the word “international,” i.e.,
    between nations. Thus, I think the context compels the view
    that a conflict between a signatory and a non-state actor is a
    conflict “not of an international character.” In such a conflict,
    the signatory is bound to Common Article 3’s modest
    requirements of “humane[]” treatment and “the judicial
    guarantees which are recognized as indispensable by civilized
         I assume that our conflicts with the Taliban and al Qaeda
    are distinct, and I agree with the court that in reading the
    Convention we owe the President’s construction “great
    weight.” Maj. Op. at 15. But I believe the Convention’s
    language and structure compel the view that Common Article
    3 covers the conflict with al Qaeda.