Hamdan v. Rumsfeld , 548 U.S. 557 ( 2006 )


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  • (Slip Opinion)              OCTOBER TERM, 2005                                       1
    
                                           Syllabus
    
             NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
           being done in connection with this case, at the time the opinion is issued.
           The syllabus constitutes no part of the opinion of the Court but has been
           prepared by the Reporter of Decisions for the convenience of the reader.
           See United States v. Detroit Timber & Lumber Co., 
    200 U.S. 321
    , 337.
    
    
    SUPREME COURT OF THE UNITED STATES
    
                                           Syllabus
    
     HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE,
                       ET AL.
    
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
              THE DISTRICT OF COLUMBIA CIRCUIT
    
          No. 05–184.      Argued March 28, 2006—Decided June 29, 2006
    Pursuant to Congress’ Joint Resolution authorizing the President to
      “use all necessary and appropriate force against those nations, or
      ganizations, or persons he determines planned, authorized, commit
      ted or aided” the September 11, 2001, al Qaeda terrorist attacks
      (AUMF), U. S. Armed Forces invaded Afghanistan. During the hos
      tilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni
      national, and turned him over to the U. S. military, which, in 2002,
      transported him to prison in Guantanamo Bay, Cuba. Over a year
      later, the President deemed Hamdan eligible for trial by military
      commission for then-unspecified crimes. After another year, he was
      charged with conspiracy “to commit . . . offenses triable by military
      commission.” In habeas and mandamus petitions, Hamdan asserted
      that the military commission lacks authority to try him because (1)
      neither congressional Act nor the common law of war supports trial
      by this commission for conspiracy, an offense that, Hamdan says, is
      not a violation of the law of war; and (2) the procedures adopted to
      try him violate basic tenets of military and international law, includ
      ing the principle that a defendant must be permitted to see and hear
      the evidence against him.
         The District Court granted habeas relief and stayed the commis
      sion’s proceedings, concluding that the President’s authority to estab
      lish military commissions extends only to offenders or offenses triable
      by such a commission under the law of war; that such law includes
      the Third Geneva Convention; that Hamdan is entitled to that Con
      vention’s full protections until adjudged, under it, not to be a prisoner
      of war; and that, whether or not Hamdan is properly classified a pris
      oner of war, the commission convened to try him was established in
    2                        HAMDAN v. RUMSFELD
    
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        violation of both the Uniform Code of Military Justice (UCMJ), 
    10 U.S. C
    . §801 et seq., and Common Article 3 of the Third Geneva Con
        vention because it had the power to convict based on evidence the ac
        cused would never see or hear. The D. C. Circuit reversed. Although
        it declined the Government’s invitation to abstain from considering
        Hamdan’s challenge, cf. Schlesinger v. Councilman, 
    420 U.S. 738
    , the
        appeals court ruled, on the merits, that Hamdan was not entitled to re
        lief because the Geneva Conventions are not judicially enforceable. The
        court also concluded that Ex parte Quirin, 
    317 U.S. 1
    , foreclosed any
        separation-of-powers objection to the military commission’s jurisdiction,
        and that Hamdan’s trial before the commission would violate neither
        the UCMJ nor Armed Forces regulations implementing the Geneva
        Conventions.
    Held: The judgment is reversed, and the case is remanded.
    
    415 F.3d 33
    , reversed and remanded.
         JUSTICE STEVENS delivered the opinion of the Court, except as to
      Parts V and VI–D–iv, concluding:
         1. The Government’s motion to dismiss, based on the Detainee
      Treatment Act of 2005 (DTA), is denied. DTA §1005(e)(1) provides
      that “no court . . . shall have jurisdiction to hear or consider . . . an
      application for . . . habeas corpus filed by . . . an alien detained . . . at
      Guantanamo Bay.” Section 1005(h)(2) provides that §§1005(e)(2) and
      (3)—which give the D. C. Circuit “exclusive” jurisdiction to review the
      final decisions of, respectively, combatant status review tribunals
      and military commissions—“shall apply with respect to any claim
      whose review is . . . pending on” the DTA’s effective date, as was
      Hamdan’s case. The Government’s argument that §§1005(e)(1) and
      (h) repeal this Court’s jurisdiction to review the decision below is re
      butted by ordinary principles of statutory construction. A negative
      inference may be drawn from Congress’ failure to include §1005(e)(1)
      within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 
    521 U.S. 320
    , 330. “If . . . Congress was reasonably concerned to ensure that
      [§§1005(e)(2) and (3)] be applied to pending cases, it should have been
      just as concerned about [§1005(e)(1)], unless it had the different in
      tent that the latter [section] not be applied to the general run of
      pending cases.” Id., at 329. If anything, the evidence of deliberate
      omission is stronger here than it was in Lindh. The legislative his
      tory shows that Congress not only considered the respective temporal
      reaches of §§1005(e)(1), (2), and (3) together at every stage, but omit
      ted paragraph (1) from its directive only after having rejected earlier
      proposed versions of the statute that would have included what is
      now paragraph (1) within that directive’s scope. Congress’ rejection
      of the very language that would have achieved the result the Gov
      ernment urges weighs heavily against the Government’s interpreta
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    tion. See Doe v. Chao, 
    540 U.S. 614
    , 621–623. Pp. 7–20.
       2. The Government argues unpersuasively that abstention is ap
    propriate under Councilman, which concluded that, as a matter of
    comity, federal courts should normally abstain from intervening in
    pending courts-martial against service members, see 420 U. S., at
    740. Neither of the comity considerations Councilman identified
    weighs in favor of abstention here. First, the assertion that military
    discipline and, therefore, the Armed Forces’ efficient operation, are
    best served if the military justice system acts without regular inter
    ference from civilian courts, see id., at 752, is inapt because Hamdan
    is not a service member. Second, the view that federal courts should
    respect the balance Congress struck when it created “an integrated
    system of military courts and review procedures” is inapposite, since
    the tribunal convened to try Hamdan is not part of that integrated
    system. Rather than Councilman, the most relevant precedent is Ex
    parte Quirin, where the Court, far from abstaining pending the con
    clusion of ongoing military proceedings, expedited its review because
    of (1) the public importance of the questions raised, (2) the Court’s
    duty, in both peace and war, to preserve the constitutional safe
    guards of civil liberty, and (3) the public interest in a decision on
    those questions without delay, 317 U. S, at 19. The Government has
    identified no countervailing interest that would permit federal courts
    to depart from their general duty to exercise the jurisdiction Con
    gress has conferred on them. Pp. 20–25.
       3. The military commission at issue is not expressly authorized by
    any congressional Act. Quirin held that Congress had, through Arti
    cle of War 15, sanctioned the use of military commissions to try of
    fenders or offenses against the law of war. 317 U. S., at 28. UCMJ
    Art. 21, which is substantially identical to the old Art. 15, reads: “The
    jurisdiction [of] courts-martial shall not be construed as depriving
    military commissions . . . of concurrent jurisdiction in respect of of
    fenders or offenses that by statute or by the law of war may be tried
    by such . . . commissions.” 
    10 U.S. C
    . §821. Contrary to the Gov
    ernment’s assertion, even Quirin did not view that authorization as a
    sweeping mandate for the President to invoke military commissions
    whenever he deems them necessary. Rather, Quirin recognized that
    Congress had simply preserved what power, under the Constitution
    and the common law of war, the President already had to convene
    military commissions—with the express condition that he and those
    under his command comply with the law of war. See 317 U. S., at
    28–29. Neither the AUMF nor the DTA can be read to provide spe
    cific, overriding authorization for the commission convened to try
    Hamdan. Assuming the AUMF activated the President’s war powers,
    see Hamdi v. Rumsfeld, 
    542 U.S. 507
    , and that those powers include
    4                         HAMDAN v. RUMSFELD
    
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        authority to convene military commissions in appropriate circum
        stances, see, e.g., id., at 518, there is nothing in the AUMF’s text or leg
        islative history even hinting that Congress intended to expand or alter
        the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 
    8 Wall. 85
    , 105. Likewise, the DTA cannot be read to authorize this
        commission. Although the DTA, unlike either Art. 21 or the AUMF,
        was enacted after the President convened Hamdan’s commission, it
        contains no language authorizing that tribunal or any other at Guan
        tanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most
        acknowledge a general Presidential authority to convene military
        commissions in circumstances where justified under the Constitution
        and laws, including the law of war. Absent a more specific congres
        sional authorization, this Court’s task is, as it was in Quirin, to de
        cide whether Hamdan’s military commission is so justified. Pp. 25–
        30.
           4. The military commission at issue lacks the power to proceed be
        cause its structure and procedures violate both the UCMJ and the
        four Geneva Conventions signed in 1949. Pp. 49–72.
              (a) The commission’s procedures, set forth in Commission Order
        No. 1, provide, among other things, that an accused and his civilian
        counsel may be excluded from, and precluded from ever learning
        what evidence was presented during, any part of the proceeding the
        official who appointed the commission or the presiding officer decides
        to “close.” Grounds for closure include the protection of classified in
        formation, the physical safety of participants and witnesses, the pro
        tection of intelligence and law enforcement sources, methods, or ac
        tivities, and “other national security interests.” Appointed military
        defense counsel must be privy to these closed sessions, but may, at
        the presiding officer’s discretion, be forbidden to reveal to the client
        what took place therein. Another striking feature is that the rules
        governing Hamdan’s commission permit the admission of any evi
        dence that, in the presiding officer’s opinion, would have probative
        value to a reasonable person. Moreover, the accused and his civilian
        counsel may be denied access to classified and other “protected in
        formation,” so long as the presiding officer concludes that the evi
        dence is “probative” and that its admission without the accused’s
        knowledge would not result in the denial of a full and fair trial. Pp.
        49–52.
              (b) The Government objects to this Court’s consideration of a pro
        cedural challenge at this stage on the grounds, inter alia, that Ham
        dan will be able to raise such a challenge following a final decision
        under the DTA, and that there is no basis to presume, before the trial
        has even commenced, that it will not be conducted in good faith and
        according to law. These contentions are unsound. First, because
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    Hamdan apparently is not subject to the death penalty (at least as
    matters now stand) and may receive a prison sentence shorter than
    10 years, he has no automatic right to federal-court review of the
    commission’s “final decision” under DTA §1005(e)(3). Second, there is
    a basis to presume that the procedures employed during Hamdan’s
    trial will violate the law: He will be, and indeed already has been, ex
    cluded from his own trial. Thus, review of the procedures in advance
    of a “final decision” is appropriate. Pp. 52–53.
         (c) Because UCMJ Article 36 has not been complied with here,
    the rules specified for Hamdan’s commission trial are illegal. The
    procedures governing such trials historically have been the same as
    those governing courts-martial. Although this uniformity principle is
    not inflexible and does not preclude all departures from courts-
    martial procedures, any such departure must be tailored to the exi
    gency that necessitates it. That understanding is reflected in Art.
    36(b), which provides that the procedural rules the President prom
    ulgates for courts-martial and military commissions alike must be
    “uniform insofar as practicable,” 
    10 U.S. C
    . §836(b). The “practica
    bility” determination the President has made is insufficient to justify
    variances from the procedures governing courts-martial. The Presi
    dent here has determined, pursuant to the requirement of Art. 36(a),
    that it is impracticable to apply the rules and principles of law that
    govern “the trial of criminal cases in the United States district
    courts” to Hamdan’s commission. The President has not, however,
    made a similar official determination that it is impracticable to apply
    the rules for courts-martial. And even if subsection (b)’s require
    ments could be satisfied without an official practicability determina
    tion, that subsection’s requirements are not satisfied here. Nothing
    in the record demonstrates that it would be impracticable to apply
    court-martial rules here. There is no suggestion, e.g., of any logistical
    difficulty in securing properly sworn and authenticated evidence or in
    applying the usual principles of relevance and admissibility. It is not
    evident why the danger posed by international terrorism, consider
    able though it is, should require, in the case of Hamdan’s trial, any
    variance from the courts-martial rules. The absence of any showing
    of impracticability is particularly disturbing when considered in light
    of the clear and admitted failure to apply one of the most fundamen
    tal protections afforded not just by the Manual for Courts-Martial but
    also by the UCMJ itself: The right to be present. See 
    10 U.S. C
    . A.
    §839(c). Because the jettisoning of so basic a right cannot lightly be
    excused as “practicable,” the courts-martial rules must apply. Since
    it is undisputed that Commission Order No. 1 deviates in many sig
    nificant respects from those rules, it necessarily violates Art. 36(b).
    Pp. 53–62.
    6                        HAMDAN v. RUMSFELD
    
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              (d) The procedures adopted to try Hamdan also violate the Ge
        neva Conventions. The D. C. Circuit dismissed Hamdan’s challenge
        in this regard on the grounds, inter alia, that the Conventions are not
        judicially enforceable and that, in any event, Hamdan is not entitled
        to their protections. Neither of these grounds is persuasive. Pp. 62–
        68.
                 (i) The appeals court relied on a statement in Johnson v. Eisen
        trager, 
    339 U.S. 763
    , 789, n. 14, suggesting that this Court lacked
        power even to consider the merits of a Convention argument because
        the political and military authorities had sole responsibility for ob
        serving and enforcing prisoners’ rights under the Convention. How
        ever, Eisentrager does not control here because, regardless of the na
        ture of the rights conferred on Hamdan, cf. United States v. Rauscher,
        
    119 U.S. 407
    , they are indisputably part of the law of war, see
        Hamdi, 542 U. S., at 520–521, compliance with which is the condition
        upon which UCMJ Art. 21 authority is granted. Pp. 63–65.
                 (ii) Alternatively, the appeals court agreed with the Govern
        ment that the Conventions do not apply because Hamdan was cap
        tured during the war with al Qaeda, which is not a Convention signa
        tory, and that conflict is distinct from the war with signatory
        Afghanistan. The Court need not decide the merits of this argument
        because there is at least one provision of the Geneva Conventions
        that applies here even if the relevant conflict is not between signato
        ries. Common Article 3, which appears in all four Conventions, pro
        vides that, in a “conflict not of an international character occurring in
        the territory of one of the High Contracting Parties [i.e., signatories],
        each Party to the conflict shall be bound to apply, as a minimum,”
        certain provisions protecting “[p]ersons . . . placed hors de combat by
        . . . detention,” including a prohibition on “the passing of sentences
        . . . without previous judgment . . . by a regularly constituted court af
        fording all the judicial guarantees . . . recognized as indispensable by
        civilized peoples.” The D. C. Circuit ruled Common Article 3 inappli
        cable to Hamdan because the conflict with al Qaeda is international
        in scope and thus not a “conflict not of an international character. ”
        That reasoning is erroneous. That the quoted phrase bears its literal
        meaning and is used here in contradistinction to a conflict between
        nations is demonstrated by Common Article 2, which limits its own
        application to any armed conflict between signatories and provides
        that signatories must abide by all terms of the Conventions even if
        another party to the conflict is a nonsignatory, so long as the nonsig
        natory “accepts and applies” those terms. Common Article 3, by con
        trast, affords some minimal protection, falling short of full protection
        under the Conventions, to individuals associated with neither a sig
        natory nor even a nonsignatory who are involved in a conflict “in the
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    territory of” a signatory. The latter kind of conflict does not involve a
    clash between nations (whether signatories or not). Pp. 65–68.
            (iii) While Common Article 3 does not define its “regularly con
    stituted court” phrase, other sources define the words to mean an
    “ordinary military cour[t]” that is “established and organized in ac
    cordance with the laws and procedures already in force in a country.”
    The regular military courts in our system are the courts-martial es
    tablished by congressional statute. At a minimum, a military com
    mission can be “regularly constituted” only if some practical need ex
    plains deviations from court-martial practice. No such need has been
    demonstrated here. Pp. 69–70.
            (iv) Common Article 3’s requirements are general, crafted to
    accommodate a wide variety of legal systems, but they are require
    ments nonetheless. The commission convened to try Hamdan does
    not meet those requirements. P. 72.
          (d) Even assuming that Hamden is a dangerous individual who
    would cause great harm or death to innocent civilians given the op
    portunity, the Executive nevertheless must comply with the prevail
    ing rule of law in undertaking to try him and subject him to criminal
    punishment. P. 72.
       JUSTICE STEVENS, joined by JUSTICE SOUTER, JUSTICE GINSBURG,
    and JUSTICE BREYER, concluded in Parts V and VI–D–iv:
       1. The Government has not charged Hamdan with an “offense . . .
    that by the law of war may be tried by military commission,” 
    10 U.S. C
    . §821. Of the three sorts of military commissions used his
    torically, the law-of-war type used in Quirin and other cases is the
    only model available to try Hamdan. Among the preconditions, in
    corporated in Article of War 15 and, later, UCMJ Art. 21, for such a
    tribunal’s exercise of jurisdiction are, inter alia, that it must be lim
    ited to trying offenses committed within the convening commander’s
    field of command, i.e., within the theater of war, and that the offense
    charged must have been committed during, not before or after, the
    war. Here, Hamdan is not alleged to have committed any overt act in
    a theater of war or on any specified date after September 11, 2001.
    More importantly, the offense alleged is not triable by law-of-war
    military commission. Although the common law of war may render
    triable by military commission certain offenses not defined by stat
    ute, Quirin, 317 U. S., at 30, the precedent for doing so with respect
    to a particular offense must be plain and unambiguous, cf., e.g., Lov
    ing v. United States, 
    517 U.S. 748
    , 771. That burden is far from satis
    fied here. The crime of “conspiracy” has rarely if ever been tried as
    such in this country by any law-of-war military commission not exer
    cising some other form of jurisdiction, and does not appear in either
    the Geneva Conventions or the Hague Conventions—the major trea
    8                        HAMDAN v. RUMSFELD
    
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        ties on the law of war. Moreover, that conspiracy is not a recognized
        violation of the law of war is confirmed by other international
        sources, including, e.g., the International Military Tribunal at Nur
        emberg, which pointedly refused to recognize conspiracy to commit
        war crimes as such a violation. Because the conspiracy charge does
        not support the commission’s jurisdiction, the commission lacks au
        thority to try Hamdan. Pp. 30–49.
           2. The phrase “all the guarantees . . . recognized as indispensable
        by civilized peoples” in Common Article 3 of the Geneva Conventions
        is not defined, but it must be understood to incorporate at least the
        barest of the trial protections recognized by customary international
        law. The procedures adopted to try Hamdan deviate from those gov
        erning courts-martial in ways not justified by practical need, and
        thus fail to afford the requisite guarantees. Moreover, various provi
        sions of Commission Order No. 1 dispense with the principles, which
        are indisputably part of customary international law, that an accused
        must, absent disruptive conduct or consent, be present for his trial
        and must be privy to the evidence against him. Pp. 70–72.
           JUSTICE KENNEDY, agreeing that Hamdan’s military commission is
        unauthorized under the Uniform Code of Military Justice, 
    10 U.S. C
    .
        §§836 and 821, and the Geneva Conventions, concluded that there is
        therefore no need to decide whether Common Article 3 of the Conven
        tions requires that the accused have the right to be present at all
        stages of a criminal trial or to address the validity of the conspiracy
        charge against Hamdan. Pp. 17–19.
    
       STEVENS, J., announced the judgment of the Court and delivered the
    opinion of the Court with respect to Parts I through IV, VI through VI–
    D–iii, VI–D–v, and VII, in which KENNEDY, SOUTER, GINSBURG, and
    BREYER, JJ., joined, and an opinion with respect to Parts V and VI–D–
    iv, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J.,
    filed a concurring opinion, in which KENNEDY, SOUTER, and GINSBURG,
    JJ., joined. KENNEDY, J., filed an opinion concurring in part, in which
    SOUTER, GINSBURG, and BREYER, JJ., joined as to Parts I and II. SCALIA,
    J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined.
    THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, and
    in which ALITO, J., joined as to all but Parts I, II–C–1, and III–B–2.
    ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ.,
    joined as to Parts I through III. ROBERTS, C. J., took no part in the
    consideration or decision of the case.
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                               Opinion of STEVENS, J.
    
        NOTICE: This opinion is subject to formal revision before publication in the
        preliminary print of the United States Reports. Readers are requested to
        notify the Reporter of Decisions, Supreme Court of the United States, Wash
        ington, D. C. 20543, of any typographical or other formal errors, in order
        that corrections may be made before the preliminary print goes to press.
    
    
    SUPREME COURT OF THE UNITED STATES
                                      _________________
    
                                      No. 05–184
                                      _________________
    
    
     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 STEVENS announced the judgment of the Court
    and delivered the opinion of the Court with respect to
    Parts I through IV, Parts VI through VI–D–iii, Part VI–D–
    v, and Part VII, and an opinion with respect to Parts V
    and VI–D–iv, in which JUSTICE SOUTER, JUSTICE
    GINSBURG, and JUSTICE BREYER join.
      Petitioner Salim Ahmed Hamdan, a Yemeni national, is
    in custody at an American prison in Guantanamo Bay,
    Cuba. In November 2001, during hostilities between the
    United States and the Taliban (which then governed
    Afghanistan), Hamdan was captured by militia forces and
    turned over to the U. S. military. In June 2002, he was
    transported to Guantanamo Bay. Over a year later, the
    President deemed him eligible for trial by military com
    mission for then-unspecified crimes. After another year
    had passed, Hamdan was charged with one count of con
    spiracy “to commit . . . offenses triable by military com
    mission.” App. to Pet. for Cert. 65a.
      Hamdan filed petitions for writs of habeas corpus and
    mandamus to challenge the Executive Branch’s intended
    means of prosecuting this charge. He concedes that a
    2                 HAMDAN v. RUMSFELD
    
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    court-martial constituted in accordance with the Uniform
    Code of Military Justice (UCMJ), 
    10 U.S. C
    . §801 et seq.
    (2000 ed. and Supp. III), would have authority to try him.
    His objection is that the military commission the Presi
    dent has convened lacks such authority, for two principal
    reasons: First, neither congressional Act nor the common
    law of war supports trial by this commission for the crime
    of conspiracy—an offense that, Hamdan says, is not a
    violation of the law of war. Second, Hamdan contends, the
    procedures that the President has adopted to try him
    violate the most basic tenets of military and international
    law, including the principle that a defendant must be
    permitted to see and hear the evidence against him.
      The District Court granted Hamdan’s request for a writ
    of habeas corpus. 
    344 F. Supp. 2d 152
     (DC 2004). The
    Court of Appeals for the District of Columbia Circuit
    reversed. 
    415 F.3d 33
     (2005). Recognizing, as we did over
    a half-century ago, that trial by military commission is an
    extraordinary measure raising important questions about
    the balance of powers in our constitutional structure,
    Ex parte Quirin, 
    317 U.S. 1
    , 19 (1942), we granted certio
    rari. 546 U. S. ___ (2005).
      For the reasons that follow, we conclude that the mili
    tary commission convened to try Hamdan lacks power to
    proceed because its structure and procedures violate both
    the UCMJ and the Geneva Conventions. Four of us also
    conclude, see Part V, infra, that the offense with which
    Hamdan has been charged is not an “offens[e] that by . . .
    the law of war may be tried by military commissions.” 
    10 U.S. C
    . §821.
                                I
       On September 11, 2001, agents of the al Qaeda terrorist
    organization hijacked commercial airplanes and attacked
    the World Trade Center in New York City and the na
    tional headquarters of the Department of Defense in
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                         Opinion of the Court
    
    Arlington, Virginia. Americans will never forget the dev
    astation wrought by these acts. Nearly 3,000 civilians
    were killed.
       Congress responded by adopting a Joint Resolution
    authorizing the President to “use all necessary and appro
    priate force against those nations, organizations, or per
    sons he determines planned, authorized, committed, or
    aided the terrorist attacks . . . in order to prevent any
    future acts of international terrorism against the United
    States by such nations, organizations or persons.” Au
    thorization for Use of Military Force (AUMF), 115 Stat.
    224, note following 
    50 U.S. C
    . §1541 (2000 ed., Supp. III).
    Acting pursuant to the AUMF, and having determined
    that the Taliban regime had supported al Qaeda, the
    President ordered the Armed Forces of the United States
    to invade Afghanistan. In the ensuing hostilities, hun
    dreds of individuals, Hamdan among them, were captured
    and eventually detained at Guantanamo Bay.
       On November 13, 2001, while the United States was
    still engaged in active combat with the Taliban, the Presi
    dent issued a comprehensive military order intended to
    govern the “Detention, Treatment, and Trial of Certain
    Non-Citizens in the War Against Terrorism,” 66 Fed. Reg.
    57833 (hereinafter November 13 Order or Order). Those
    subject to the November 13 Order include any noncitizen
    for whom the President determines “there is reason to
    believe” that he or she (1) “is or was” a member of al
    Qaeda or (2) has engaged or participated in terrorist ac
    tivities aimed at or harmful to the United States. Id., at
    57834. Any such individual “shall, when tried, be tried by
    military commission for any and all offenses triable by
    military commission that such individual is alleged to
    have committed, and may be punished in accordance with
    the penalties provided under applicable law, including
    imprisonment or death.” Ibid. The November 13 Order
    vested in the Secretary of Defense the power to appoint
    4                 HAMDAN v. RUMSFELD
    
                         Opinion of the Court
    
    military commissions to try individuals subject to the
    Order, but that power has since been delegated to John D.
    Altenberg, Jr., a retired Army major general and longtime
    military lawyer who has been designated “Appointing
    Authority for Military Commissions.”
       On July 3, 2003, the President announced his determi
    nation that Hamdan and five other detainees at Guan
    tanamo Bay were subject to the November 13 Order and
    thus triable by military commission. In December 2003,
    military counsel was appointed to represent Hamdan.
    Two months later, counsel filed demands for charges and
    for a speedy trial pursuant to Article 10 of the UCMJ, 
    10 U.S. C
    . §810. On February 23, 2004, the legal adviser to
    the Appointing Authority denied the applications, ruling
    that Hamdan was not entitled to any of the protections of
    the UCMJ. Not until July 13, 2004, after Hamdan had
    commenced this action in the United States District Court
    for the Western District of Washington, did the Govern
    ment finally charge him with the offense for which, a year
    earlier, he had been deemed eligible for trial by military
    commission.
       The charging document, which is unsigned, contains 13
    numbered paragraphs. The first two paragraphs recite
    the asserted bases for the military commission’s jurisdic
    tion—namely, the November 13 Order and the President’s
    July 3, 2003, declaration that Hamdan is eligible for trial
    by military commission. The next nine paragraphs, collec
    tively entitled “General Allegations,” describe al Qaeda’s
    activities from its inception in 1989 through 2001 and
    identify Osama bin Laden as the group’s leader. Hamdan
    is not mentioned in these paragraphs.
       Only the final two paragraphs, entitled “Charge: Con
    spiracy,” contain allegations against Hamdan. Paragraph
    12 charges that “from on or about February 1996 to on or
    about November 24, 2001,” Hamdan “willfully and know
    ingly joined an enterprise of persons who shared a com
                        Cite as: 548 U. S. ____ (2006)                 5
    
                            Opinion of the Court
    
    mon criminal purpose and conspired and agreed with
    [named members of al Qaeda] to commit the following
    offenses triable by military commission: attacking civil
    ians; attacking civilian objects; murder by an unprivileged
    belligerent; and terrorism.” App. to Pet. for Cert. 65a.
    There is no allegation that Hamdan had any command
    responsibilities, played a leadership role, or participated
    in the planning of any activity.
      Paragraph 13 lists four “overt acts” that Hamdan is
    alleged to have committed sometime between 1996 and
    November 2001 in furtherance of the “enterprise and
    conspiracy”: (1) he acted as Osama bin Laden’s “bodyguard
    and personal driver,” “believ[ing]” all the while that bin
    Laden “and his associates were involved in” terrorist acts
    prior to and including the attacks of September 11, 2001;
    (2) he arranged for transportation of, and actually trans
    ported, weapons used by al Qaeda members and by bin
    Laden’s bodyguards (Hamdan among them); (3) he “drove
    or accompanied [O]sama bin Laden to various al Qaida
    sponsored training camps, press conferences, or lectures,”
    at which bin Laden encouraged attacks against Ameri
    cans; and (4) he received weapons training at al Qaeda
    sponsored camps. Id., at 65a–67a.
      After this formal charge was filed, the United States
    District Court for the Western District of Washington
    transferred Hamdan’s habeas and mandamus petitions to
    the United States District Court for the District of Colum
    bia. Meanwhile, a Combatant Status Review Tribunal
    (CSRT) convened pursuant to a military order issued on
    July 7, 2004, decided that Hamdan’s continued detention
    at Guantanamo Bay was warranted because he was an
    “enemy combatant.”1 Separately, proceedings before the
    ——————
      1 An “enemy combatant” is defined by the military order as “an indi
    
    vidual who was part of or supporting Taliban or al Qaeda forces, or
    associated forces that are engaged in hostilities against the United
    6                    HAMDAN v. RUMSFELD
    
                            Opinion of the Court
    
    military commission commenced.
       On November 8, 2004, however, the District Court
    granted Hamdan’s petition for habeas corpus and stayed
    the commission’s proceedings. It concluded that the
    President’s authority to establish military commissions
    extends only to “offenders or offenses triable by military
    [commission] under the law of war,” 
    344 F. Supp. 2d
    , at
    158; that the law of war includes the Geneva Convention
    (III) Relative to the Treatment of Prisoners of War, Aug.
    12, 1949, [1955] 6 U. S. T. 3316, T. I. A. S. No. 3364 (Third
    Geneva Convention); that Hamdan is entitled to the full
    protections of the Third Geneva Convention until ad
    judged, in compliance with that treaty, not to be a prisoner
    of war; and that, whether or not Hamdan is properly
    classified as a prisoner of war, the military commission
    convened to try him was established in violation of both
    the UCMJ and Common Article 3 of the Third Geneva
    Convention because it had the power to convict based on
    evidence the accused would never see or hear. 
    344 F. Supp. 2d
    , at 158–172.
       The Court of Appeals for the District of Columbia Cir
    cuit reversed. Like the District Court, the Court of Ap
    peals declined the Government’s invitation to abstain from
    considering Hamdan’s challenge. Cf. Schlesinger v. Coun
    cilman, 
    420 U.S. 738
     (1975). On the merits, the panel
    rejected the District Court’s further conclusion that Ham
    dan was entitled to relief under the Third Geneva Conven
    tion. All three judges agreed that the Geneva Conventions
    were not “judicially enforceable,” 
    415 F. 3d
    , at 38, and two
    thought that the Conventions did not in any event apply to
    Hamdan, id., at 40–42; but see id., at 44 (Williams, J.,
    ——————
    States or its coalition partners.” Memorandum from Deputy Secretary
    of Defense Paul Wolfowitz re: Order Establishing Combatant Status
    Review Tribunal §a (Jul. 7, 2004), available at http://www.defense
    link.mil/news/Jul2004/d20040707review.pdf (all Internet materials as
    visited June 26, 2006, and available in Clerk of Court’s case file).
                      Cite as: 548 U. S. ____ (2006)            7
    
                          Opinion of the Court
    
    concurring). In other portions of its opinion, the court con
    cluded that our decision in Quirin foreclosed any separation-
    of-powers objection to the military commission’s jurisdiction,
    and held that Hamdan’s trial before the contemplated com
    mission would violate neither the UCMJ nor U. S. Armed
    Forces regulations intended to implement the Geneva Con
    ventions. 
    415 F. 3d
    , at 38, 42–43.
       On November 7, 2005, we granted certiorari to decide
    whether the military commission convened to try Hamdan
    has authority to do so, and whether Hamdan may rely on
    the Geneva Conventions in these proceedings.
                                  II
      On February 13, 2006, the Government filed a motion to
    dismiss the writ of certiorari. The ground cited for dis
    missal was the recently enacted Detainee Treatment Act
    of 2005 (DTA), Pub. L. 109–148, 119 Stat. 2739. We post
    poned our ruling on that motion pending argument on the
    merits, 546 U. S. ___ (2006), and now deny it.
      The DTA, which was signed into law on December 30,
    2005, addresses a broad swath of subjects related to de
    tainees. It places restrictions on the treatment and inter
    rogation of detainees in U. S. custody, and it furnishes
    procedural protections for U. S. personnel accused of
    engaging in improper interrogation. DTA §§1002–1004,
    119 Stat. 2739–2740.          It also sets forth certain
    “PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE
    THE UNITED STATES.” §1005, id., at 2740. Subsections (a)
    through (d) of §1005 direct the Secretary of Defense to
    report to Congress the procedures being used by CSRTs to
    determine the proper classification of detainees held in
    Guantanamo Bay, Iraq, and Afghanistan, and to adopt
    certain safeguards as part of those procedures.
      Subsection (e) of §1005, which is entitled “JUDICIAL
    REVIEW OF DETENTION OF ENEMY COMBATANTS,” supplies
    the basis for the Government’s jurisdictional argument.
    8                  HAMDAN v. RUMSFELD
    
                         Opinion of the Court
    
    The subsection contains three numbered paragraphs. The
    first paragraph amends the judicial code as follows:
          “(1) IN GENERAL.—Section 2241 of title 28, United
        States Code, is amended by adding at the end the
        following:
             .         .        .          .          .
           “ ‘(e) Except as provided in section 1005 of the De
        tainee Treatment Act of 2005, no court, justice, or
        judge shall have jurisdiction to hear or consider—
           “ ‘(1) an application for a writ of habeas corpus filed
        by or on behalf of an alien detained by the Depart
        ment of Defense at Guantanamo Bay, Cuba; or
           “ ‘(2) any other action against the United States or
        its agents relating to any aspect of the detention by
        the Department of Defense of an alien at Guantanamo
        Bay, Cuba, who—
           “ ‘(A) is currently in military custody; or
           “ ‘(B) has been determined by the United States
        Court of Appeals for the District of Columbia Circuit
        in accordance with the procedures set forth in section
        1005(e) of the Detainee Treatment Act of 2005 to have
        been properly detained as an enemy combatant.’ ”
        §1005(e), id., at 2741–2742.
       Paragraph (2) of subsection (e) vests in the Court of
    Appeals for the District of Columbia Circuit the “exclusive
    jurisdiction to determine the validity of any final decision
    of a [CSRT] that an alien is properly designated as an
    enemy combatant.” Paragraph (2) also delimits the scope
    of that review. See §§1005(e)(2)(C)(i)–(ii), id., at 2742.
       Paragraph (3) mirrors paragraph (2) in structure, but
    governs judicial review of final decisions of military
    commissions, not CSRTs. It vests in the Court of Appeals
    for the District of Columbia Circuit “exclusive jurisdic
    tion to determine the validity of any final decision ren
    dered pursuant to Military Commission Order No. 1,
                         Cite as: 548 U. S. ____ (2006)                    9
    
                              Opinion of the Court
    
    dated August 31, 2005 (or any successor military order).”
    §1005(e)(3)(A), id., at 2743.2 Review is as of right for any
    alien sentenced to death or a term of imprisonment of 10
    years or more, but is at the Court of Appeals’ discretion
    in all other cases. The scope of review is limited to the
    following inquiries:
           “(i) whether the final decision [of the military com
         mission] was consistent with the standards and pro
         cedures specified in the military order referred to in
         subparagraph (A); and
           “(ii) to the extent the Constitution and laws of the
         United States are applicable, whether the use of such
         standards and procedures to reach the final decision
         is consistent with the Constitution and laws of the
         United States.” §1005(e)(3)(D), ibid.
     Finally, §1005 contains an “effective date” provision,
    which reads as follows:
           “(1) IN GENERAL.—This section shall take effect on
         the date of the enactment of this Act.
           “(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND
         MILITARY COMMISSION DECISIONS.—Paragraphs (2)
         and (3) of subsection (e) shall apply with respect to
         any claim whose review is governed by one of such
         paragraphs and that is pending on or after the date of
         the enactment of this Act.” §1005(h), id., at 2743–
         2744.3
    The Act is silent about whether paragraph (1) of subsec
    tion (e) “shall apply” to claims pending on the date of
    ——————
      2 The military order referenced in this section is discussed further in
    
    Parts III and VI, infra.
      3 The penultimate subsections of §1005 emphasize that the provision
    
    does not “confer any constitutional right on an alien detained as an
    enemy combatant outside the United States” and that the “United
    States” does not, for purposes of §1005, include Guantanamo Bay.
    §§1005(f)–(g).
    10                    HAMDAN v. RUMSFELD
    
                             Opinion of the Court
    
    enactment.
       The Government argues that §§1005(e)(1) and 1005(h)
    had the immediate effect, upon enactment, of repealing
    federal jurisdiction not just over detainee habeas actions
    yet to be filed but also over any such actions then pending
    in any federal court—including this Court. Accordingly, it
    argues, we lack jurisdiction to review the Court of Appeals’
    decision below.
       Hamdan objects to this theory on both constitutional
    and statutory grounds. Principal among his constitutional
    arguments is that the Government’s preferred reading
    raises grave questions about Congress’ authority to im
    pinge upon this Court’s appellate jurisdiction, particularly
    in habeas cases. Support for this argument is drawn from
    Ex parte Yerger, 
    8 Wall. 85
     (1869), in which, having ex
    plained that “the denial to this court of appellate jurisdic
    tion” to consider an original writ of habeas corpus would
    “greatly weaken the efficacy of the writ,” id., at 102–103,
    we held that Congress would not be presumed to have
    effected such denial absent an unmistakably clear state
    ment to the contrary. See id., at 104–105; see also Felker
    v. Turpin, 
    518 U.S. 651
     (1996); Durousseau v. United
    States, 6 Cranch 307, 314 (1810) (opinion for the Court by
    Marshall, C. J.) (The “appellate powers of this court” are
    not created by statute but are “given by the constitution”);
    United States v. Klein, 
    13 Wall. 128
     (1872). Cf. Ex parte
    McCardle, 
    7 Wall. 506
    , 514 (1869) (holding that Congress
    had validly foreclosed one avenue of appellate review
    where its repeal of habeas jurisdiction, reproduced in the
    margin,4 could not have been “a plainer instance of posi
    ——————
      4 “ ‘And be it further enacted, That so much of the act approved Febru
    
    ary 5, 1867, entitled “An act to amend an act to establish the judicial
    courts of the United States, approved September 24, 1789,” as author
    ized an appeal from the judgment of the Circuit Court to the Supreme
    Court of the United States, or the exercise of any such jurisdiction by
    said Supreme Court, on appeals which have been, or may hereafter be
                        Cite as: 548 U. S. ____ (2006)                  11
    
                             Opinion of the Court
    
    tive exception”). Hamdan also suggests that, if the Gov
    ernment’s reading is correct, Congress has unconstitution
    ally suspended the writ of habeas corpus.
       We find it unnecessary to reach either of these argu
    ments. Ordinary principles of statutory construction suffice
    to rebut the Government’s theory—at least insofar as this
    case, which was pending at the time the DTA was enacted,
    is concerned.
       The Government acknowledges that only paragraphs (2)
    and (3) of subsection (e) are expressly made applicable to
    pending cases, see §1005(h)(2), 119 Stat. 2743–2744, but
    argues that the omission of paragraph (1) from the scope
    of that express statement is of no moment. This is so, we
    are told, because Congress’ failure to expressly reserve
    federal courts’ jurisdiction over pending cases erects a
    presumption against jurisdiction, and that presumption is
    rebutted by neither the text nor the legislative history of
    the DTA.
       The first part of this argument is not entirely without
    support in our precedents. We have in the past “applied
    intervening statutes conferring or ousting jurisdiction,
    whether or not jurisdiction lay when the underlying con
    duct occurred or when the suit was filed.” Landgraf v.
    USI Film Products, 
    511 U.S. 244
    , 274 (1994) (citing
    Bruner v. United States, 
    343 U.S. 112
     (1952); Hallowell v.
    Commons, 
    239 U.S. 506
     (1916)); see Republic of Austria v.
    Altmann, 
    541 U.S. 677
    , 693 (2004). But the “presump
    tion” that these cases have applied is more accurately
    viewed as the nonapplication of another presumption—
    viz., the presumption against retroactivity—in certain
    limited circumstances.5 If a statutory provision “would
    ——————
    taken, be, and the same is hereby repealed.’ ” 7 Wall., at 508.
      5 See Hughes Aircraft Co. v. United States ex rel. Schumer, 
    520 U.S. 939
    , 951 (1997) (“The fact that courts often apply newly enacted juris
    diction-allocating statutes to pending cases merely evidences certain
    limited circumstances failing to meet the conditions for our generally
    12                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
    operate retroactively” as applied to cases pending at the
    time the provision was enacted, then “our traditional
    presumption teaches that it does not govern absent clear
    congressional intent favoring such a result.” Landgraf,
    511 U. S., at 280. We have explained, however, that,
    unlike other intervening changes in the law, a jurisdiction-
    conferring or jurisdiction-stripping statute usually “takes
    away no substantive right but simply changes the tribunal
    that is to hear the case.” Hallowell, 239 U. S., at 508. If
    that is truly all the statute does, no retroactivity problem
    arises because the change in the law does not “impair
    rights a party possessed when he acted, increase a party’s
    liability for past conduct, or impose new duties with re
    spect to transactions already completed.” Landgraf, 511
    U. S., at 280.6 And if a new rule has no retroactive effect,
    the presumption against retroactivity will not prevent its
    application to a case that was already pending when the
    new rule was enacted.
       That does not mean, however, that all jurisdiction-
    stripping provisions—or even all such provisions that
    truly lack retroactive effect—must apply to cases pending
    at the time of their enactment.7 “[N]ormal rules of con
    ——————
    applicable presumption against retroactivity . . .”).
       6 Cf. Hughes Aircraft, 520 U. S., at 951 (“Statutes merely addressing
    
    which court shall have jurisdiction to entertain a particular cause of
    action can fairly be said merely to regulate the secondary conduct of
    litigation and not the underlying primary conduct of the parties”
    (emphasis in original)).
       7 In his insistence to the contrary, JUSTICE SCALIA reads too much into
    
    Bruner v. United States, 
    343 U.S. 112
     (1952), Hallowell v. Commons,
    
    239 U.S. 506
     (1916), and Insurance Co. v. Ritchie, 
    5 Wall. 541
     (1867).
    See post, at 2–4 (dissenting opinion). None of those cases says that the
    absence of an express provision reserving jurisdiction over pending
    cases trumps or renders irrelevant any other indications of congres
    sional intent. Indeed, Bruner itself relied on such other indications–
    including a negative inference drawn from the statutory text, cf. infra,
    at 13–to support its conclusion that jurisdiction was not available. The
    Court observed that (1) Congress had been put on notice by prior lower
                          Cite as: 548 U. S. ____ (2006)                     13
    
                               Opinion of the Court
    
    struction,” including a contextual reading of the statutory
    language, may dictate otherwise. Lindh v. Murphy, 
    521 U.S. 320
    , 326 (1997).8 A familiar principle of statutory
    construction, relevant both in Lindh and here, is that a
    negative inference may be drawn from the exclusion of
    language from one statutory provision that is included in
    other provisions of the same statute. See id., at 330; see
    also, e.g., Russello v. United States, 
    464 U.S. 16
    , 23 (1983)
    (“ ‘[W]here Congress includes particular language in one
    section of a statute but omits it in another section of the
    same Act, it is generally presumed that Congress acts
    intentionally and purposely in the disparate inclusion or
    exclusion’ ”). The Court in Lindh relied on this reasoning
    to conclude that certain limitations on the availability of
    habeas relief imposed by AEDPA applied only to cases
    filed after that statute’s effective date. Congress’ failure to
    identify the temporal reach of those limitations, which
    governed noncapital cases, stood in contrast to its express
    command in the same legislation that new rules governing
    habeas petitions in capital cases “apply to cases pending
    on or after the date of enactment.” §107(c), 110 Stat. 1226;
    see Lindh, 521 U. S., at 329–330. That contrast, combined
    with the fact that the amendments at issue “affect[ed]
    substantive entitlement to relief,” id., at 327, warranted
    ——————
    court cases addressing the Tucker Act that it ought to specifically
    reserve jurisdiction over pending cases, see 343 U. S., at 115, and (2) in
    contrast to the congressional silence concerning reservation of jurisdic
    tion, reservation had been made of “ ‘any rights or liabilities’ existing at
    the effective date of the Act” repealed by another provision of the Act,
    ibid., n. 7.
       8 The question in Lindh was whether new limitations on the avail
    
    ability of habeas relief imposed by the Antiterrorism and Effective
    Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, applied to habeas
    actions pending on the date of AEDPA’s enactment. We held that they
    did not. At the outset, we rejected the State’s argument that, in the
    absence of a clear congressional statement to the contrary, a “proce
    dural” rule must apply to pending cases. 521 U. S., at 326.
    14                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
    drawing a negative inference.
      A like inference follows a fortiori from Lindh in this
    case. “If . . . Congress was reasonably concerned to ensure
    that [§§1005(e)(2) and (3)] be applied to pending cases, it
    should have been just as concerned about [§1005(e)(1)],
    unless it had the different intent that the latter [section]
    not be applied to the general run of pending cases.” Id., at
    329. If anything, the evidence of deliberate omission is
    stronger here than it was in Lindh. In Lindh, the provi
    sions to be contrasted had been drafted separately but
    were later “joined together and . . . considered simultane
    ously when the language raising the implication was
    inserted.” Id., at 330. We observed that Congress’ tandem
    review and approval of the two sets of provisions strength
    ened the presumption that the relevant omission was
    deliberate. Id., at 331; see also Field v. Mans, 
    516 U.S. 59
    , 75 (1995) (“The more apparently deliberate the con
    trast, the stronger the inference, as applied, for example,
    to contrasting statutory sections originally enacted simul
    taneously in relevant respects”). Here, Congress not only
    considered the respective temporal reaches of paragraphs
    (1), (2), and (3) of subsection (e) together at every stage,
    but omitted paragraph (1) from its directive that para
    graphs (2) and (3) apply to pending cases only after having
    rejected earlier proposed versions of the statute that would
    have included what is now paragraph (1) within the scope
    of that directive. Compare DTA §1005(h)(2), 119 Stat.
    2743–2744, with 151 Cong. Rec. S12655 (Nov. 10, 2005) (S.
    Amdt. 2515); see id., at S14257–S14258 (Dec. 21, 2005)
    (discussing similar language proposed in both the House
    and the Senate).9 Congress’ rejection of the very language
    ——————
       9 That paragraph (1), along with paragraphs (2) and (3), is to “take
    
    effect on the date of enactment,” DTA §1005(h)(1), 119 Stat. 2743, is not
    dispositive; “a ‘statement that a statute will become effective on a
    certain date does not even arguably suggest that it has any application
    to conduct that occurred at an earlier date.’ ” INS v. St. Cyr, 533 U. S.
                         Cite as: 548 U. S. ____ (2006)                    15
    
                              Opinion of the Court
    
    that would have achieved the result the Government urges
    here weighs heavily against the Government’s interpreta
    tion. See Doe v. Chao, 
    540 U.S. 614
    , 621–623 (2004).10
    ——————
    289, 317 (2001) (quoting Landgraf v. USI Film Products, 
    511 U.S. 244
    ,
    257 (1994)). Certainly, the “effective date” provision cannot bear the
    weight JUSTICE SCALIA would place on it. See post, at 5, and n. 1.
    Congress deemed that provision insufficient, standing alone, to render
    subsections (e)(2) and (e)(3) applicable to pending cases; hence its
    adoption of subsection (h)(2). JUSTICE SCALIA seeks to avoid reducing
    subsection (h)(2) to a mere redundancy—a consequence he seems to
    acknowledge must otherwise follow from his interpretation—by specu
    lating that Congress had special reasons, not also relevant to subsec
    tion (e)(1), to worry that subsections (e)(2) and (e)(3) would be ruled
    inapplicable to pending cases. As we explain infra, at 17, and n. 12,
    that attempt fails.
       10 We note that statements made by Senators preceding passage of
    
    the Act lend further support to what the text of the DTA and its draft
    ing history already make plain. Senator Levin, one of the sponsors of
    the final bill, objected to earlier versions of the Act’s “effective date”
    provision that would have made subsection (e)(1) applicable to pending
    cases. See, e.g., 151 Cong. Rec. S12667 (Nov. 10, 2005) (amendment
    proposed by Sen. Graham that would have rendered what is now
    subsection (e)(1) applicable to “any application or other action that is
    pending on or after the date of the enactment of this Act”). Senator
    Levin urged adoption of an alternative amendment that “would apply
    only to new habeas cases filed after the date of enactment.” Id., at
    S12802 (Nov. 15, 2005). That alternative amendment became the text
    of subsection (h)(2). (In light of the extensive discussion of the DTA’s
    effect on pending cases prior to passage of the Act, see, e.g., id., at
    S12664 (Nov. 10, 2005); id., at S12755 (Nov. 14, 2005); id., at S12799–
    S12802 (Nov. 15, 2005); id., at S14245, S14252–S14253, S14257–
    S14258, S14274–S14275 (Dec. 21, 2005), it cannot be said that the
    changes to subsection (h)(2) were inconsequential. Cf. post, at 14
    (SCALIA, J., dissenting).)
       While statements attributed to the final bill’s two other sponsors,
    Senators Graham and Kyl, arguably contradict Senator Levin’s conten
    tion that the final version of the Act preserved jurisdiction over pending
    habeas cases, see 151 Cong. Rec. S14263–S14264 (Dec. 21, 2005), those
    statements appear to have been inserted into the Congressional Record
    after the Senate debate. See Reply Brief for Petitioner 5, n. 6; see also
    151 Cong. Rec. S14260 (statement of Sen. Kyl) (“I would like to say a
    few words about the now-completed National Defense Authorization Act
    16                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
       The Government nonetheless offers two reasons why, in
    its view, no negative inference may be drawn in favor of
    jurisdiction. First, it asserts that Lindh is inapposite
    because “Section 1005(e)(1) and (h)(1) remove jurisdiction,
    while Section 1005(e)(2), (3) and (h)(2) create an exclusive
    review mechanism and define the nature of that review.”
    Reply Brief in Support of Respondents’ Motion to Dismiss
    4. Because the provisions being contrasted “address
    wholly distinct subject matters,” Martin v. Hadix, 
    527 U.S. 343
    , 356 (1999), the Government argues, Congress’
    different treatment of them is of no significance.
       This argument must fail because it rests on a false dis
    tinction between the “jurisdictional” nature of subsection
    (e)(1) and the “procedural” character of subsections (e)(2)
    and (e)(3). In truth, all three provisions govern jurisdic
    tion over detainees’ claims; subsection (e)(1) addresses
    jurisdiction in habeas cases and other actions “relating to
    any aspect of the detention,” while subsections (e)(2) and
    (3) vest exclusive,11 but limited, jurisdiction in the Court of
    ——————
    for fiscal year 2006” (emphasis added)). All statements made during
    the debate itself support Senator Levin’s understanding that the final
    text of the DTA would not render subsection (e)(1) applicable to pend
    ing cases. See, e.g., id., at S14245, S14252–S14253, S14274–S14275
    (Dec. 21, 2005). The statements that JUSTICE SCALIA cites as evidence
    to the contrary construe subsection (e)(3) to strip this Court of jurisdic
    tion, see post, at 12, n. 4 (dissenting opinion) (quoting 151 Cong. Rec.
    S12796 (Nov. 15, 2005) (statement of Sen. Specter))—a construction
    that the Government has expressly disavowed in this litigation, see n.
    11, infra. The inapposite November 14, 2005, statement of Senator
    Graham, which JUSTICE SCALIA cites as evidence of that Senator’s
    “assumption that pending cases are covered,” post, at 12, and n. 3
    (citing 151 Cong. Rec. S12756 (Nov. 14, 2005)), follows directly after the
    uncontradicted statement of his co-sponsor, Senator Levin, assuring
    members of the Senate that “the amendment will not strip the courts of
    jurisdiction over [pending] cases.” Id., at S12755.
       11 The District of Columbia Circuit’s jurisdiction, while “exclusive” in
    
    one sense, would not bar this Court’s review on appeal from a decision
    under the DTA. See Reply Brief in Support of Respondents’ Motion to
                         Cite as: 548 U. S. ____ (2006)                    17
    
                              Opinion of the Court
    
    Appeals for the District of Columbia Circuit to review
    “final decision[s]” of CSRTs and military commissions.
       That subsection (e)(1) strips jurisdiction while subsec
    tions (e)(2) and (e)(3) restore it in limited form is hardly a
    distinction upon which a negative inference must founder.
    JUSTICE SCALIA, in arguing to the contrary, maintains
    that Congress had “ample reason” to provide explicitly for
    application of subsections (e)(2) and (e)(3) to pending cases
    because “jurisdiction-stripping” provisions like subsection
    (e)(1) have been treated differently under our retroactivity
    jurisprudence than “jurisdiction-conferring” ones like
    subsections (e)(2) and (e)(3). Post, at 8 (dissenting opin
    ion); see also Reply Brief in Support of Respondents’ Mo
    tion to Dismiss 5–6. That theory is insupportable. As
    suming arguendo that subsections (e)(2) and (e)(3) “confer
    new jurisdiction (in the D. C. Circuit) where there was
    none before,” post, at 8 (emphasis in original); but see
    Rasul v. Bush, 
    542 U.S. 466
     (2004), and that our prece
    dents can be read to “strongly indicat[e]” that jurisdiction-
    creating statutes raise special retroactivity concerns not
    also raised by jurisdiction-stripping statutes, post, at 8,12
    subsections (e)(2) and (e)(3) “confer” jurisdiction in a man
    
    ——————
    Dismiss 16–17, n. 12 (“While the DTA does not expressly call for
    Supreme Court review of the District of Columbia Circuit’s decisions,
    Section 1005(e)(2) and (3) . . . do not remove this Court’s jurisdiction
    over such decisions under 
    28 U.S. C
    . §1254(1)”).
       12 This assertion is itself highly questionable. The cases that JUSTICE
    
    SCALIA cites to support his distinction are Republic of Austria v.
    Altmann, 
    541 U.S. 677
     (2004), and Hughes Aircraft Co. v. United
    States ex rel. Schumer, 
    520 U.S. 939
     (1997). See post, at 8. While the
    Court in both of those cases recognized that statutes “creating” jurisdic
    tion may have retroactive effect if they affect “substantive” rights, see
    Altmann, 541 U. S., at 695, and n. 15; Hughes Aircraft, 520 U. S., at
    951, we have applied the same analysis to statutes that have jurisdic
    tion-stripping effect, see Lindh v. Murphy, 
    521 U.S. 320
    , 327–328
    (1997); id., at 342–343 (Rehnquist, C. J., dissenting) (construing
    AEDPA’s amendments as “ousting jurisdiction”).
    18                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
    ner that cannot conceivably give rise to retroactivity ques
    tions under our precedents. The provisions impose no
    additional liability or obligation on any private party or
    even on the United States, unless one counts the burden of
    litigating an appeal—a burden not a single one of our
    cases suggests triggers retroactivity concerns.13 Moreover,
    it strains credulity to suggest that the desire to reinforce
    the application of subsections (e)(2) and (e)(3) to pending
    cases drove Congress to exclude subsection (e)(1) from
    §1005(h)(2).
       The Government’s second objection is that applying
    subsections (e)(2) and (e)(3) but not (e)(1) to pending cases
    “produces an absurd result” because it grants (albeit only
    temporarily) dual jurisdiction over detainees’ cases in
    circumstances where the statute plainly envisions that the
    District of Columbia Circuit will have “exclusive” and
    immediate jurisdiction over such cases. Reply Brief in
    Support of Respondents’ Motion to Dismiss 7. But the
    premise here is faulty; subsections (e)(2) and (e)(3) grant
    jurisdiction only over actions to “determine the validity of
    any final decision” of a CSRT or commission. Because
    Hamdan, at least, is not contesting any “final decision” of
    a CSRT or military commission, his action does not fall
    within the scope of subsection (e)(2) or (e)(3). There is,
    then, no absurdity.14
    ——————
      13 See Landgraf, 511 U. S., at 271, n. 25 (observing that “the great
    
    majority of our decisions relying upon the antiretroactivity presumption
    have involved intervening statutes burdening private parties,” though
    “we have applied the presumption in cases involving new monetary
    obligations that fell only on the government” (emphasis added)); see
    also Altmann, 541 U. S., at 728–729 (KENNEDY, J., dissenting) (explain
    ing that if retroactivity concerns do not arise when a new monetary
    obligation is imposed on the United States it is because “Congress, by
    virtue of authoring the legislation, is itself fully capable of protecting
    the Federal Government from having its rights degraded by retroactive
    laws”).
      14 There may be habeas cases that were pending in the lower courts at
                       Cite as: 548 U. S. ____ (2006)                19
    
                            Opinion of the Court
    
       The Government’s more general suggestion that Con
    gress can have had no good reason for preserving habeas
    jurisdiction over cases that had been brought by detainees
    prior to enactment of the DTA not only is belied by the
    legislative history, see n. 10, supra, but is otherwise with
    out merit. There is nothing absurd about a scheme under
    which pending habeas actions—particularly those, like
    this one, that challenge the very legitimacy of the tribu
    nals whose judgments Congress would like to have re
    viewed—are preserved, and more routine challenges to
    final decisions rendered by those tribunals are carefully
    channeled to a particular court and through a particular
    lens of review.
       Finally, we cannot leave unaddressed JUSTICE SCALIA’s
    contentions that the “meaning of §1005(e)(1) is entirely
    clear,” post, at 6, and that “the plain import of a statute
    repealing jurisdiction is to eliminate the power to consider
    and render judgment—in an already pending case no less
    than in a case yet to be filed,” post, at 3 (emphasis in
    original). Only by treating the Bruner rule as an inflexible
    trump (a thing it has never been, see n. 7, supra) and
    ignoring both the rest of §1005’s text and its drafting
    history can one conclude as much. Congress here ex
    pressly provided that subsections (e)(2) and (e)(3) applied
    to pending cases. It chose not to so provide—after having
    been presented with the option—for subsection (e)(1). The
    omission is an integral part of the statutory scheme that
    muddies whatever “plain meaning” may be discerned from
    blinkered study of subsection (e)(1) alone. The dissent’s
    speculation about what Congress might have intended by
    the omission not only is counterfactual, cf. n. 10, supra
    
    ——————
    the time the DTA was enacted that do qualify as challenges to “final
    decision[s]” within the meaning of subsection (e)(2) or (e)(3). We
    express no view about whether the DTA would require transfer of such
    an action to the District of Columbia Circuit.
    20                    HAMDAN v. RUMSFELD
    
                             Opinion of the Court
    
    (recounting legislative history), but rests on both a mis
    construction of the DTA and an erroneous view our prece
    dents, see supra, at 17, and n. 12.
      For these reasons, we deny the Government’s motion to
    dismiss.15
                                  III
      Relying on our decision in Councilman, 
    420 U.S. 738
    ,
    the Government argues that, even if we have statutory
    jurisdiction, we should apply the “judge-made rule that
    civilian courts should await the final outcome of on-going
    military proceedings before entertaining an attack on
    those proceedings.” Brief for Respondents 12. Like the
    District Court and the Court of Appeals before us, we
    reject this argument.
      In Councilman, an army officer on active duty was
    referred to a court-martial for trial on charges that he
    violated the UCMJ by selling, transferring, and possessing
    marijuana. 420 U. S., at 739–740. Objecting that the
    alleged offenses were not “ ‘service connected,’ ” id., at 740,
    the officer filed suit in Federal District Court to enjoin the
    proceedings. He neither questioned the lawfulness of
    courts-martial or their procedures nor disputed that, as a
    serviceman, he was subject to court-martial jurisdiction.
    His sole argument was that the subject matter of his case
    did not fall within the scope of court-martial authority.
    See id., at 741, 759. The District Court granted his re
    quest for injunctive relief, and the Court of Appeals
    ——————
      15 Because we conclude that §1005(e)(1) does not strip federal courts’
    
    jurisdiction over cases pending on the date of the DTA’s enactment, we
    do not decide whether, if it were otherwise, this Court would nonethe
    less retain jurisdiction to hear Hamdan’s appeal. Cf. supra, at 10. Nor
    do we decide the manner in which the canon of constitutional avoidance
    should affect subsequent interpretation of the DTA. See, e.g., St. Cyr,
    533 U. S., at 300 (a construction of a statute “that would entirely
    preclude review of a pure question of law by any court would give rise
    to substantial constitutional questions”).
                         Cite as: 548 U. S. ____ (2006)                  21
    
                             Opinion of the Court
    
    affirmed.
       We granted certiorari and reversed. Id., at 761. We did
    not reach the merits of whether the marijuana charges
    were sufficiently “service connected” to place them within
    the subject-matter jurisdiction of a court-martial. Instead,
    we concluded that, as a matter of comity, federal courts
    should normally abstain from intervening in pending
    court-martial proceedings against members of the Armed
    Forces,16 and further that there was nothing in the par
    ticular circumstances of the officer’s case to displace that
    general rule. See id., at 740, 758.
       Councilman identifies two considerations of comity that
    together favor abstention pending completion of ongoing
    court-martial proceedings against service personnel. See
    New v. Cohen, 
    129 F.3d 639
    , 643 (CADC 1997); see also
    
    415 F. 3d
    , at 36–37 (discussing Councilman and New).
    First, military discipline and, therefore, the efficient op
    eration of the Armed Forces are best served if the military
    justice system acts without regular interference from
    civilian courts. See Councilman, 420 U. S., at 752. Sec
    ond, federal courts should respect the balance that Con
    gress struck between military preparedness and fairness
    to individual service members when it created “an inte
    grated system of military courts and review procedures, a
    ——————
      16 Councilman   distinguished service personnel from civilians, whose
    challenges to ongoing military proceedings are cognizable in federal
    court. See, e.g., United States ex rel. Toth v. Quarles, 
    350 U.S. 11
    (1955). As we explained in Councilman, abstention is not appropriate
    in cases in which individuals raise “ ‘substantial arguments denying the
    right of the military to try them at all,’ ” and in which the legal chal
    lenge “turn[s] on the status of the persons as to whom the military
    asserted its power.” 420 U. S., at 759 (quoting Noyd v. Bond, 
    395 U.S. 683
    , 696, n. 8 (1969)). In other words, we do not apply Councilman
    abstention when there is a substantial question whether a military
    tribunal has personal jurisdiction over the defendant. Because we
    conclude that abstention is inappropriate for a more basic reason, we
    need not consider whether the jurisdictional exception recognized in
    Councilman applies here.
    22                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
    critical element of which is the Court of Military Appeals,
    consisting of civilian judges ‘completely removed from all
    military influence or persuasion . . . .’ ” Id., at 758 (quot
    ing H. R. Rep. No. 491, 81st Cong., 1st Sess., p. 7 (1949)).
    Just as abstention in the face of ongoing state criminal
    proceedings is justified by our expectation that state
    courts will enforce federal rights, so abstention in the face
    of ongoing court-martial proceedings is justified by our
    expectation that the military court system established by
    Congress—with its substantial procedural protections and
    provision for appellate review by independent civilian
    judges—“will vindicate servicemen’s constitutional rights,”
    420 U. S., at 758. See id., at 755–758.17
      The same cannot be said here; indeed, neither of the
    comity considerations identified in Councilman weighs in
    favor of abstention in this case. First, Hamdan is not a
    member of our Nation’s Armed Forces, so concerns about
    military discipline do not apply. Second, the tribunal
    convened to try Hamdan is not part of the integrated
    system of military courts, complete with independent
    review panels, that Congress has established. Unlike the
    officer in Councilman, Hamdan has no right to appeal any
    conviction to the civilian judges of the Court of Military
    Appeals (now called the United States Court of Appeals
    for the Armed Forces, see Pub. L. 103–337, 108 Stat.
    2831). Instead, under Dept. of Defense Military Commis
    ——————
      17 See also Noyd, 395 U. S., at 694–696 (noting that the Court of Mili
    tary Appeals consisted of “disinterested civilian judges,” and concluding
    that there was no reason for the Court to address an Air Force Captain’s
    argument that he was entitled to remain free from confinement pending
    appeal of his conviction by court-martial “when the highest military
    court stands ready to consider petitioner’s arguments”). Cf. Parisi v.
    Davidson, 
    405 U.S. 34
    , 41–43 (1972) (“Under accepted principles of
    comity, the court should stay its hand only if the relief the petitioner
    seeks . . . would also be available to him with reasonable promptness
    and certainty through the machinery of the military judicial system in
    its processing of the court-martial charge”).
                        Cite as: 548 U. S. ____ (2006)                  23
    
                             Opinion of the Court
    
    sion Order No. 1 (Commission Order No. 1), which was
    issued by the President on March 21, 2002, and amended
    most recently on August 31, 2005, and which governs the
    procedures for Hamdan’s commission, any conviction
    would be reviewed by a panel consisting of three military
    officers designated by the Secretary of Defense. Commis
    sion Order No. 1 §6(H)(4). Commission Order No. 1 pro
    vides that appeal of a review panel’s decision may be had
    only to the Secretary of Defense himself, §6(H)(5), and
    then, finally, to the President, §6(H)(6).18
       We have no doubt that the various individuals assigned
    review power under Commission Order No. 1 would strive
    to act impartially and ensure that Hamdan receive all
    protections to which he is entitled. Nonetheless, these
    review bodies clearly lack the structural insulation from
    military influence that characterizes the Court of Appeals
    for the Armed Forces, and thus bear insufficient concep
    tual similarity to state courts to warrant invocation of
    abstention principles.19
       In sum, neither of the two comity considerations under
    lying our decision to abstain in Councilman applies to the
    circumstances of this case. Instead, this Court’s decision
    in Quirin is the most relevant precedent. In Quirin, seven
    German saboteurs were captured upon arrival by subma
    rine in New York and Florida. 317 U. S., at 21. The Presi
    dent convened a military commission to try the saboteurs,
    who then filed habeas corpus petitions in the United
    
    ——————
      18 If he chooses, the President may delegate this ultimate decision-
    
    making authority to the Secretary of Defense. See §6(H)(6).
      19 JUSTICE SCALIA chides us for failing to include the District of Co
    
    lumbia Circuit’s review powers under the DTA in our description of the
    review mechanism erected by Commission Order No. 1. See post, at 22.
    Whether or not the limited review permitted under the DTA may be
    treated as akin to the plenary review exercised by the Court of Appeals
    for the Armed Forces, petitioner here is not afforded a right to such
    review. See infra, at 52; §1005(e)(3), 119 Stat. 2743.
    24                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
    States District Court for the District of Columbia challeng
    ing their trial by commission. We granted the saboteurs’
    petition for certiorari to the Court of Appeals before judg
    ment. See id., at 19. Far from abstaining pending the
    conclusion of military proceedings, which were ongoing,
    we convened a special Term to hear the case and expedited
    our review. That course of action was warranted, we
    explained, “[i]n view of the public importance of the ques
    tions raised by [the cases] and of the duty which rests on
    the courts, in time of war as well as in time of peace, to
    preserve unimpaired the constitutional safeguards of civil
    liberty, and because in our opinion the public interest
    required that we consider and decide those questions
    without any avoidable delay.” Ibid.
       As the Court of Appeals here recognized, Quirin “pro
    vides a compelling historical precedent for the power of
    civilian courts to entertain challenges that seek to inter
    rupt the processes of military commissions.” 
    415 F. 3d
    , at
    36.20 The circumstances of this case, like those in Quirin,
    ——————
       20 Having correctly declined to abstain from addressing Hamdan’s
    
    challenge to the lawfulness of the military commission convened to try
    him, the Court of Appeals suggested that Councilman abstention
    nonetheless applied to bar its consideration of one of Hamdan’s argu
    ments—namely, that his commission violated Article 3 of the Third
    Geneva Convention, 6 U. S. T. 3316, 3318. See Part VI, infra. Al
    though the Court of Appeals rejected the Article 3 argument on the
    merits, it also stated that, because the challenge was not “jurisdic
    tional,” it did not fall within the exception that Schlesinger v. Council
    man, 
    420 U.S. 738
     (1975), recognized for defendants who raise sub
    stantial arguments that a military tribunal lacks personal jurisdiction
    over them. See 
    415 F. 3d
    , at 42.
       In reaching this conclusion, the Court of Appeals conflated two
    distinct inquiries: (1) whether Hamdan has raised a substantial argu
    ment that the military commission lacks authority to try him; and,
    more fundamentally, (2) whether the comity considerations underlying
    Councilman apply to trigger the abstention principle in the first place.
    As the Court of Appeals acknowledged at the beginning of its opinion,
    the first question warrants consideration only if the answer to the
                         Cite as: 548 U. S. ____ (2006)                  25
    
                             Opinion of the Court
    
    simply do not implicate the “obligations of comity” that,
    under appropriate circumstances, justify abstention.
    Quackenbush v. Allstate Ins. Co., 
    517 U.S. 706
    , 733 (1996)
    (KENNEDY, J., concurring).
       Finally, the Government has identified no other “impor
    tant countervailing interest” that would permit federal
    courts to depart from their general “duty to exercise the
    jurisdiction that is conferred upon them by Congress.” Id.,
    at 716 (majority opinion). To the contrary, Hamdan and
    the Government both have a compelling interest in know
    ing in advance whether Hamdan may be tried by a mili
    tary commission that arguably is without any basis in law
    and operates free from many of the procedural rules pre
    scribed by Congress for courts-martial—rules intended to
    safeguard the accused and ensure the reliability of any
    conviction. While we certainly do not foreclose the possi
    bility that abstention may be appropriate in some cases
    seeking review of ongoing military commission proceed
    ings (such as military commissions convened on the battle
    field), the foregoing discussion makes clear that, under our
    precedent, abstention is not justified here. We therefore
    proceed to consider the merits of Hamdan’s challenge.
                               IV
      The military commission, a tribunal neither mentioned
    in the Constitution nor created by statute, was born of
    military necessity. See W. Winthrop, Military Law and
    Precedents 831 (rev. 2d ed. 1920) (hereinafter Winthrop).
    ——————
    second is yes. See 
    415 F. 3d
    , at 36–37. Since, as the Court of Appeals
    properly concluded, the answer to the second question is in fact no,
    there is no need to consider any exception.
       At any rate, it appears that the exception would apply here. As
    discussed in Part VI, infra, Hamdan raises a substantial argument
    that, because the military commission that has been convened to try
    him is not a “ ‘regularly constituted court’ ” under the Geneva Conven
    tions, it is ultra vires and thus lacks jurisdiction over him. Brief for
    Petitioner 5.
    26                 HAMDAN v. RUMSFELD
    
                         Opinion of the Court
    
    Though foreshadowed in some respects by earlier tribu
    nals like the Board of General Officers that General Wash
    ington convened to try British Major John André for spy
    ing during the Revolutionary War, the commission “as
    such” was inaugurated in 1847. Id., at 832; G. Davis, A
    Treatise on the Military Law of the United States 308 (2d
    ed. 1909) (hereinafter Davis). As commander of occupied
    Mexican territory, and having available to him no other
    tribunal, General Winfield Scott that year ordered the
    establishment of both “ ‘military commissions’ ” to try
    ordinary crimes committed in the occupied territory and a
    “council of war” to try offenses against the law of war.
    Winthrop 832 (emphases in original).
       When the exigencies of war next gave rise to a need for
    use of military commissions, during the Civil War, the
    dual system favored by General Scott was not adopted.
    Instead, a single tribunal often took jurisdiction over
    ordinary crimes, war crimes, and breaches of military
    orders alike. As further discussed below, each aspect of
    that seemingly broad jurisdiction was in fact supported by
    a separate military exigency. Generally, though, the need
    for military commissions during this period—as during the
    Mexican War—was driven largely by the then very limited
    jurisdiction of courts-martial: “The occasion for the mili
    tary commission arises principally from the fact that the
    jurisdiction of the court-martial proper, in our law, is
    restricted by statute almost exclusively to members of the
    military force and to certain specific offences defined in a
    written code.” Id., at 831 (emphasis in original).
       Exigency alone, of course, will not justify the establish
    ment and use of penal tribunals not contemplated by
    Article I, §8 and Article III, §1 of the Constitution unless
    some other part of that document authorizes a response to
    the felt need. See Ex parte Milligan, 
    4 Wall. 2
    , 121 (1866)
    (“Certainly no part of the judicial power of the country was
    conferred on [military commissions]”); Ex parte Val
                         Cite as: 548 U. S. ____ (2006)                  27
    
                             Opinion of the Court
    
    landigham, 
    1 Wall. 243
    , 251 (1864); see also Quirin, 317
    U. S., at 25 (“Congress and the President, like the courts,
    possess no power not derived from the Constitution”). And
    that authority, if it exists, can derive only from the powers
    granted jointly to the President and Congress in time of
    war. See id., at 26–29; In re Yamashita, 
    327 U.S. 1
    , 11
    (1946).
       The Constitution makes the President the “Commander
    in Chief” of the Armed Forces, Art. II, §2, cl. 1, but vests in
    Congress the powers to “declare War . . . and make Rules
    concerning Captures on Land and Water,” Art. I, §8, cl. 11,
    to “raise and support Armies,” id., cl. 12, to “define and
    punish . . . Offences against the Law of Nations,” id., cl.
    10, and “To make Rules for the Government and Regula
    tion of the land and naval Forces,” id., cl. 14. The inter
    play between these powers was described by Chief Justice
    Chase in the seminal case of Ex parte Milligan:
         “The power to make the necessary laws is in Con
         gress; the power to execute in the President. Both
         powers imply many subordinate and auxiliary powers.
         Each includes all authorities essential to its due exer
         cise. But neither can the President, in war more than
         in peace, intrude upon the proper authority of Con
         gress, nor Congress upon the proper authority of the
         President. . . . Congress cannot direct the conduct of
         campaigns, nor can the President, or any commander
         under him, without the sanction of Congress, institute
         tribunals for the trial and punishment of offences, ei
         ther of soldiers or civilians, unless in cases of a con
         trolling necessity, which justifies what it compels, or
         at least insures acts of indemnity from the justice of
         the legislature.” 4 Wall., at 139–140.21
    
    ——————
      21 See also Winthrop 831 (“[I]n general, it is those provisions of the
    
    Constitution which empower Congress to ‘declare war’ and ‘raise
    28                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
       Whether Chief Justice Chase was correct in suggesting
    that the President may constitutionally convene military
    commissions “without the sanction of Congress” in cases of
    “controlling necessity” is a question this Court has not
    answered definitively, and need not answer today. For we
    held in Quirin that Congress had, through Article of War
    15, sanctioned the use of military commissions in such
    circumstances. 317 U. S., at 28 (“By the Articles of War,
    and especially Article 15, Congress has explicitly provided,
    so far as it may constitutionally do so, that military tribu
    nals shall have jurisdiction to try offenders or offenses
    against the law of war in appropriate cases”). Article 21 of
    the UCMJ, the language of which is substantially identical
    to the old Article 15 and was preserved by Congress after
    World War II,22 reads as follows:
         “Jurisdiction of courts-martial not exclusive.
         “The provisions of this code conferring jurisdiction
         upon courts-martial shall not be construed as depriv
         ing military commissions, provost courts, or other
         military tribunals of concurrent jurisdiction in respect
         of offenders or offenses that by statute or by the law of
         war may be tried by such military commissions, pro
         vost courts, or other military tribunals.” 64 Stat. 115.
      We have no occasion to revisit Quirin’s controversial
    characterization of Article of War 15 as congressional
    authorization for military commissions. Cf. Brief for Legal
    ——————
    armies,’ and which, in authorizing the initiation of war, authorize the
    employment of all necessary and proper agencies for its due prosecu
    tion, from which this tribunal derives its original sanction” (emphasis
    in original)).
       22 Article 15 was first adopted as part of the Articles of War in 1916.
    
    See Act of Aug. 29, 1916, ch. 418, §3, Art. 15, 39 Stat. 652. When the
    Articles of War were codified and re-enacted as the UCMJ in 1950,
    Congress determined to retain Article 15 because it had been “con
    strued by the Supreme Court (Ex Parte Quirin, 
    317 U.S. 1
     (1942)).”
    S. Rep. No. 486, 81st Cong., 1st Sess., 13 (1949).
                        Cite as: 548 U. S. ____ (2006)                 29
    
                            Opinion of the Court
    
    Scholars and Historians as Amici Curiae 12–15. Contrary
    to the Government’s assertion, however, even Quirin did
    not view the authorization as a sweeping mandate for the
    President to “invoke military commissions when he deems
    them necessary.” Brief for Respondents 17. Rather, the
    Quirin Court recognized that Congress had simply pre
    served what power, under the Constitution and the com
    mon law of war, the President had had before 1916 to
    convene military commissions—with the express condition
    that the President and those under his command comply
    with the law of war. See 317 U. S., at 28–29.23 That much
    is evidenced by the Court’s inquiry, following its conclu
    sion that Congress had authorized military commissions,
    into whether the law of war had indeed been complied
    with in that case. See ibid.
       The Government would have us dispense with the in
    quiry that the Quirin Court undertook and find in either
    the AUMF or the DTA specific, overriding authorization
    for the very commission that has been convened to try
    Hamdan. Neither of these congressional Acts, however,
    expands the President’s authority to convene military
    commissions. First, while we assume that the AUMF
    activated the President’s war powers, see Hamdi v. Rums
    feld, 
    542 U.S. 507
     (2004) (plurality opinion), and that
    those powers include the authority to convene military
    commissions in appropriate circumstances, see id., at 518;
    Quirin, 317 U. S., at 28–29; see also Yamashita, 327 U. S.,
    at 11, there is nothing in the text or legislative history of
    the AUMF even hinting that Congress intended to expand
    or alter the authorization set forth in Article 21 of the
    ——————
      23 Whether or not the President has independent power, absent con
    
    gressional authorization, to convene military commissions, he may not
    disregard limitations that Congress has, in proper exercise of its own
    war powers, placed on his powers. See Youngstown Sheet & Tube Co. v.
    Sawyer, 
    343 U.S. 579
    , 637 (1952) (Jackson, J., concurring). The
    Government does not argue otherwise.
    30                    HAMDAN v. RUMSFELD
    
                             Opinion of the Court
    
    UCMJ. Cf. Yerger, 8 Wall., at 105 (“Repeals by implica
    tion are not favored”).24
       Likewise, the DTA cannot be read to authorize this
    commission. Although the DTA, unlike either Article 21
    or the AUMF, was enacted after the President had con
    vened Hamdan’s commission, it contains no language
    authorizing that tribunal or any other at Guantanamo
    Bay. The DTA obviously “recognize[s]” the existence of the
    Guantanamo Bay commissions in the weakest sense, Brief
    for Respondents 15, because it references some of the
    military orders governing them and creates limited judi
    cial review of their “final decision[s],” DTA §1005(e)(3),
    119 Stat. 2743. But the statute also pointedly reserves
    judgment on whether “the Constitution and laws of the
    United States are applicable” in reviewing such decisions
    and whether, if they are, the “standards and procedures”
    used to try Hamdan and other detainees actually violate
    the “Constitution and laws.” Ibid.
       Together, the UCMJ, the AUMF, and the DTA at most
    acknowledge a general Presidential authority to convene
    military commissions in circumstances where justified
    under the “Constitution and laws,” including the law of
    war. Absent a more specific congressional authorization,
    the task of this Court is, as it was in Quirin, to decide
    whether Hamdan’s military commission is so justified. It
    is to that inquiry we now turn.
    
    
    ——————
      24 On this point, it is noteworthy that the Court in Ex parte Quirin,
    
    
    317 U.S. 1
     (1942), looked beyond Congress’ declaration of war and
    accompanying authorization for use of force during World War II, and
    relied instead on Article of War 15 to find that Congress had authorized
    the use of military commissions in some circumstances. See id., at 26–
    29. JUSTICE THOMAS’ assertion that we commit “error” in reading
    Article 21 of the UCMJ to place limitations upon the President’s use of
    military commissions, see post, at 5 (dissenting opinion), ignores the
    reasoning in Quirin.
                          Cite as: 548 U. S. ____ (2006)                      31
    
                              Opinion of STEVENS, J.
    
                                   V
      The common law governing military commissions may
    be gleaned from past practice and what sparse legal prece
    dent exists. Commissions historically have been used in
    three situations. See Bradley & Goldsmith, Congressional
    Authorization and the War on Terrorism, 118 Harv.
    L. Rev. 2048, 2132–2133 (2005); Winthrop 831–846; Hear
    ings on H. R. 2498 before the Subcommittee of the House
    Committee on Armed Services, 81st Cong., 1st Sess., 975
    (1949). First, they have substituted for civilian courts at
    times and in places where martial law has been declared.
    Their use in these circumstances has raised constitutional
    questions, see Duncan v. Kahanamoku, 
    327 U.S. 304
    (1946); Milligan, 4 Wall., at 121–122, but is well recog
    nized.25 See Winthrop 822, 836–839. Second, commis
    sions have been established to try civilians “as part of a
    temporary military government over occupied enemy
    territory or territory regained from an enemy where civil
    ian government cannot and does not function.” Duncan,
    327 U. S., at 314; see Milligan, 4 Wall., at 141–142 (Chase,
    C. J., concurring in judgment) (distinguishing “MARTIAL
    LAW PROPER” from “MILITARY GOVERNMENT” in occupied
    territory). Illustrative of this second kind of commission is
    ——————
      25 The    justification for, and limitations on, these commissions were
    summarized in Milligan:
       “If, in foreign invasion or civil war, the courts are actually closed, and
    it is impossible to administer criminal justice according to law, then, on
    the theatre of active military operations, where war really prevails,
    there is a necessity to furnish a substitute for the civil authority, thus
    overthrown, to preserve the safety of the army and society; and as no
    power is left but the military, it is allowed to govern by martial rule
    until the laws can have their free course. As necessity creates the rule,
    so it limits its duration; for, if this government is continued after the
    courts are reinstated, it is a gross usurpation of power. Martial rule
    can never exist where the courts are open, and in the proper and
    unobstructed exercise of their jurisdiction. It is also confined to the
    locality of actual war.” 4 Wall., at 127 (emphases in original).
    32                    HAMDAN v. RUMSFELD
    
                            Opinion of STEVENS, J.
    
    the one that was established, with jurisdiction to apply the
    German Criminal Code, in occupied Germany following
    the end of World War II. See Madsen v. Kinsella, 
    343 U.S. 341
    , 356 (1952).26
      The third type of commission, convened as an “incident
    to the conduct of war” when there is a need “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,” Quirin, 317 U. S., at 28–29, has
    been described as “utterly different” from the other two.
    Bickers, Military Commissions are Constitutionally Sound:
    A Response to Professors Katyal and Tribe, 34 Tex. Tech.
    L. Rev. 899, 902 (2002–2003).27 Not only is its jurisdiction
    limited to offenses cognizable during time of war, but its
    role is primarily a factfinding one—to determine, typically
    on the battlefield itself, whether the defendant has vio
    lated the law of war. The last time the U. S. Armed Forces
    
    
    ——————
       26 The limitations on these occupied territory or military government
    
    commissions are tailored to the tribunals’ purpose and the exigencies
    that necessitate their use. They may be employed “pending the estab
    lishment of civil government,” Madsen, 343 U. S., at 354–355, which
    may in some cases extend beyond the “cessation of hostilities,” id., at
    348.
       27 So much may not be evident on cold review of the Civil War trials
    
    often cited as precedent for this kind of tribunal because the commis
    sions established during that conflict operated as both martial law or
    military government tribunals and law-of-war commissions. Hence,
    “military commanders began the practice [during the Civil War] of
    using the same name, the same rules, and often the same tribunals” to
    try both ordinary crimes and war crimes. Bickers, 34 Tex. Tech. L. Rev.,
    at 908. “For the first time, accused horse thieves and alleged saboteurs
    found themselves subject to trial by the same military commission.”
    Id., at 909. The Civil War precedents must therefore be considered
    with caution; as we recognized in Quirin, 317 U. S., at 29, and as
    further discussed below, commissions convened during time of war but
    under neither martial law nor military government may try only
    offenses against the law of war.
                         Cite as: 548 U. S. ____ (2006)                   33
    
                             Opinion of STEVENS, J.
    
    used the law-of-war military commission was during
    World War II. In Quirin, this Court sanctioned President
    Roosevelt’s use of such a tribunal to try Nazi saboteurs
    captured on American soil during the War. 
    317 U.S. 1
    .
    And in Yamashita, we held that a military commission
    had jurisdiction to try a Japanese commander for failing to
    prevent troops under his command from committing
    atrocities in the Philippines. 
    327 U.S. 1
    .
       Quirin is the model the Government invokes most fre
    quently to defend the commission convened to try Ham
    dan. That is both appropriate and unsurprising. Since
    Guantanamo Bay is neither enemy-occupied territory nor
    under martial law, the law-of-war commission is the only
    model available. At the same time, no more robust model
    of executive power exists; Quirin represents the high-
    water mark of military power to try enemy combatants for
    war crimes.
       The classic treatise penned by Colonel William Win
    throp, whom we have called “the ‘Blackstone of Military
    Law,’ ” Reid v. Covert, 
    354 U.S. 1
    , 19, n. 38 (1957) (plural
    ity opinion), describes at least four preconditions for exer
    cise of jurisdiction by a tribunal of the type convened to try
    Hamdan. First, “[a] military commission, (except where
    otherwise authorized by statute), can legally assume
    jurisdiction only of offenses committed within the field of
    the command of the convening commander.” Winthrop
    836. The “field of command” in these circumstances means
    the “theatre of war.” Ibid. Second, the offense charged
    “must have been committed within the period of the
    war.”28 Id., at 837. No jurisdiction exists to try offenses
    “committed either before or after the war.” Ibid. Third, a
    military commission not established pursuant to martial
    ——————
      28 If the commission is established pursuant to martial law or military
    
    government, its jurisdiction extends to offenses committed within “the
    exercise of military government or martial law.” Winthrop 837.
    34                     HAMDAN v. RUMSFELD
    
                             Opinion of STEVENS, J.
    
    law or an occupation may try only “[i]ndividuals of the
    enemy’s army who have been guilty of illegitimate warfare
    or other offences in violation of the laws of war” and mem
    bers of one’s own army “who, in time of war, become
    chargeable with crimes or offences not cognizable, or
    triable, by the criminal courts or under the Articles of
    war.” Id., at 838. Finally, a law-of-war commission has
    jurisdiction to try only two kinds of offense: “Violations of
    the laws and usages of war cognizable by military tribu
    nals only,” and “[b]reaches of military orders or regula
    tions for which offenders are not legally triable by court-
    martial under the Articles of war.” Id., at 839.29
       All parties agree that Colonel Winthrop’s treatise accu
    rately describes the common law governing military com
    missions, and that the jurisdictional limitations he identi
    fies were incorporated in Article of War 15 and, later,
    Article 21 of the UCMJ. It also is undisputed that Ham
    dan’s commission lacks jurisdiction to try him unless the
    charge “properly set[s] forth, not only the details of the
    act charged, but the circumstances conferring jurisdic
    tion.” Id., at 842 (emphasis in original). The question is
    whether the preconditions designed to ensure that a mili
    tary necessity exists to justify the use of this extraordi
    nary tribunal have been satisfied here.
       The charge against Hamdan, described in detail in Part
    I, supra, alleges a conspiracy extending over a number of
    years, from 1996 to November 2001.30 All but two months
    ——————
      29 Winthrop adds as a fifth, albeit not-always-complied-with, criterion
    
    that “the trial must be had within the theatre of war . . . ; that, if held
    elsewhere, and where the civil courts are open and available, the
    proceedings and sentence will be coram non judice.” Id., at 836. The
    Government does not assert that Guantanamo Bay is a theater of war,
    but instead suggests that neither Washington, D. C., in 1942 nor the
    Philippines in 1945 qualified as a “war zone” either. Brief for Respon
    dents 27; cf. Quirin, 
    317 U.S. 1
    ; In re Yamashita, 
    327 U.S. 1
     (1946).
      30 The elements of this conspiracy charge have been defined not by
    
    Congress but by the President. See Military Commission Instruction
                          Cite as: 548 U. S. ____ (2006)                    35
    
                             Opinion of STEVENS, J.
    
    of that more than 5-year-long period preceded the attacks
    of September 11, 2001, and the enactment of the AUMF—
    the Act of Congress on which the Government relies for
    exercise of its war powers and thus for its authority to
    convene military commissions.31 Neither the purported
    ——————
    No. 2, 32 CFR §11.6 (2005).
       31 JUSTICE THOMAS would treat Osama bin Laden’s 1996 declaration of
    
    jihad against Americans as the inception of the war. See post, at 7–10
    (dissenting opinion). But even the Government does not go so far;
    although the United States had for some time prior to the attacks of
    September 11, 2001, been aggressively pursuing al Qaeda, neither in
    the charging document nor in submissions before this Court has the
    Government asserted that the President’s war powers were activated
    prior to September 11, 2001. Cf. Brief for Respondents 25 (describing
    the events of September 11, 2001, as “an act of war” that “triggered a
    right to deploy military forces abroad to defend the United States by
    combating al Qaeda”). JUSTICE THOMAS’ further argument that the
    AUMF is “backward looking” and therefore authorizes trial by military
    commission of crimes that occurred prior to the inception of war is
    insupportable. See post, at 8, n. 3. If nothing else, Article 21 of the
    UCMJ requires that the President comply with the law of war in his
    use of military commissions. As explained in the text, the law of war
    permits trial only of offenses “committed within the period of the war.”
    Winthrop 837; see also Quirin, 317 U. S., at 28–29 (observing that law-
    of-war military commissions may be used to try “those enemies who in
    their attempt to thwart or impede our military effort have violated the
    law of war” (emphasis added)). The sources that JUSTICE THOMAS relies
    on to suggest otherwise simply do not support his position. Colonel
    Green’s short exegesis on military commissions cites Howland for the
    proposition that “[o]ffenses committed before a formal declaration of
    war or before the declaration of martial law may be tried by military
    commission.” The Military Commission, 42 Am. J. Int’l L. 832, 848
    (1948) (emphases added) (cited post, at 9–10). Assuming that to be
    true, nothing in our analysis turns on the admitted absence of either a
    formal declaration of war or a declaration of martial law. Our focus
    instead is on the September 11, 2001 attacks that the Government
    characterizes as the relevant “act[s] of war,” and on the measure that
    authorized the President’s deployment of military force—the AUMF.
    Because we do not question the Government’s position that the war
    commenced with the events of September 11, 2001, the Prize Cases, 
    2 Black 635
     (1863) (cited post, at 2, 7, 8, and 10 (THOMAS, J., dissenting)),
    36                    HAMDAN v. RUMSFELD
    
                            Opinion of STEVENS, J.
    
    agreement with Osama bin Laden and others to commit
    war crimes, nor a single overt act, is alleged to have oc
    curred in a theater of war or on any specified date after
    September 11, 2001. None of the overt acts that Hamdan is
    alleged to have committed violates the law of war.
      These facts alone cast doubt on the legality of the charge
    and, hence, the commission; as Winthrop makes plain, the
    offense alleged must have been committed both in a thea
    ter of war and during, not before, the relevant conflict.
    But the deficiencies in the time and place allegations also
    underscore—indeed are symptomatic of—the most serious
    defect of this charge: The offense it alleges is not triable by
    law-of-war military commission. See Yamashita, 327 U. S.,
    at 13 (“Neither congressional action nor the military or
    ders constituting the commission authorized it to place
    petitioner on trial unless the charge proffered against him
    ——————
    are not germane to the analysis.
       Finally, JUSTICE THOMAS’ assertion that Julius Otto Kuehn’s trial by
    military commission “for conspiring with Japanese officials to betray
    the United States fleet to the Imperial Japanese Government prior to
    its attack on Pearl Harbor” stands as authoritative precedent for
    Hamdan’s trial by commission, post, at 9, misses the mark in three
    critical respects. First, Kuehn was tried for the federal espionage
    crimes under what were then 50 U. S C. §§31, 32, and 34, not with
    common-law violations of the law of war. See Hearings before the Joint
    Committee on the Investigation of the Pearl Harbor Attack, 79th Cong.,
    1st Sess., pt. 30, pp. 3067–3069 (1946). Second, he was tried by martial
    law commission (a kind of commission JUSTICE THOMAS acknowledges is
    not relevant to the analysis here, and whose jurisdiction extends to
    offenses committed within “the exercise of . . . martial law,” Winthrop
    837, see supra, n. 28), not a commission established exclusively to try
    violations of the law of war. See ibid. Third, the martial law commis
    sions established to try crimes in Hawaii were ultimately declared
    illegal by this Court. See Duncan v. Kahanamoku, 
    327 U.S. 304
    , 324
    (1946) (“The phrase ‘martial law’ as employed in [the Hawaiian Organic
    Act], while intended to authorize the military to act vigorously for the
    maintenance of an orderly civil government and for the defense of the
    Islands against actual or threatened rebellion or invasion, was not in
    tended to authorize the supplanting of courts by military tribunals”).
                          Cite as: 548 U. S. ____ (2006)                    37
    
                             Opinion of STEVENS, J.
    
    is of a violation of the law of war”).32
    ——————
      32 JUSTICE  THOMAS adopts the remarkable view, not advocated by the
    Government, that the charging document in this case actually includes
    more than one charge: Conspiracy and several other ill-defined crimes,
    like “joining an organization” that has a criminal purpose, “ ‘[b]eing a
    guerilla,’ ” and aiding the enemy. See post, at 16–21, and n. 9. There
    are innumerable problems with this approach.
       First, the crimes JUSTICE THOMAS identifies were not actually
    charged. It is one thing to observe that charges before a military
    commission “ ‘need not be stated with the precision of a common law
    indictment,’ ” post, at 15, n. 7 (citation omitted); it is quite another to
    say that a crime not charged may nonetheless be read into an indict
    ment. Second, the Government plainly had available to it the tools and
    the time it needed to charge petitioner with the various crimes JUSTICE
    THOMAS refers to, if it believed they were supported by the allegations.
    As JUSTICE THOMAS himself observes, see post, at 21, the crime of aiding
    the enemy may, in circumstances where the accused owes allegiance to
    the party whose enemy he is alleged to have aided, be triable by mili
    tary commission pursuant to Article 104 of the UCMJ, 
    10 U.S. C
    . §904.
    Indeed, the Government has charged detainees under this provision
    when it has seen fit to do so. See Brief for David Hicks as Amicus
    Curiae 7.
       Third, the cases JUSTICE THOMAS relies on to show that Hamdan may
    be guilty of violations of the law of war not actually charged do not
    support his argument. JUSTICE THOMAS begins by blurring the distinc
    tion between those categories of “offender” who may be tried by military
    commission (e.g., jayhawkers and the like) with the “offenses” that may
    be so tried. Even when it comes to “ ‘being a guerilla,’ ” cf. post, at 18,
    n. 9 (citation omitted), a label alone does not render a person suscepti
    ble to execution or other criminal punishment; the charge of “ ‘being a
    guerilla’ ” invariably is accompanied by the allegation that the defen
    dant “ ‘took up arms’ ” as such. This is because, as explained by Judge
    Advocate General Holt in a decision upholding the charge of “ ‘being a
    guerilla’ ” as one recognized by “the universal usage of the times,” the
    charge is simply shorthand (akin to “being a spy”) for “the perpetration
    of a succession of similar acts” of violence. Record Books of the Judge
    Advocate General Office, R. 3, 590.         The sources cited by JUSTICE
    THOMAS confirm as much. See cases cited post, at 18, n. 9.
       Likewise, the suggestion that the Nuremberg precedents support
    Hamdan’s conviction for the (uncharged) crime of joining a criminal
    organization must fail. Cf. post, at 19–21. The convictions of certain
    high-level Nazi officials for “membership in a criminal organization”
    38                     HAMDAN v. RUMSFELD
    
                             Opinion of STEVENS, J.
    
       There is no suggestion that Congress has, in exercise of
    its constitutional authority to “define and punish . . .
    Offences against the Law of Nations,” U. S. Const., Art. I,
    §8, cl. 10, positively identified “conspiracy” as a war
    crime.33 As we explained in Quirin, that is not necessarily
    fatal to the Government’s claim of authority to try the
    alleged offense by military commission; Congress, through
    Article 21 of the UCMJ, has “incorporated by reference”
    the common law of war, which may render triable by
    military commission certain offenses not defined by stat
    ute. 317 U. S., at 30. When, however, neither the ele
    ments of the offense nor the range of permissible punish
    ments is defined by statute or treaty, the precedent must
    be plain and unambiguous. To demand any less would be
    to risk concentrating in military hands a degree of adjudi
    cative and punitive power in excess of that contemplated
    either by statute or by the Constitution. Cf. Loving v.
    United States, 
    517 U.S. 748
    , 771 (1996) (acknowledging
    that Congress “may not delegate the power to make laws”);
    Reid, 354 U. S., at 23–24 (“The Founders envisioned the
    army as a necessary institution, but one dangerous to lib
    erty if not confined within its essential bounds”); The Feder
    alist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison) (“The
    accumulation of all powers legislative, executive and judici
    ——————
    were secured pursuant to specific provisions of the Charter of the
    International Military Tribunal that permitted indictment of individual
    organization members following convictions of the organizations them
    selves. See Arts. 9 and 10, in 1 Trial of the Major War Criminals
    Before the International Military Tribunal 12 (1947). The initial plan
    to use organizations’ convictions as predicates for mass individual trials
    ultimately was abandoned. See T. Taylor, Anatomy of the Nuremberg
    Trials: A Personal Memoir 584–585, 638 (1992).
      33 Cf. 
    10 U.S. C
    . §904 (making triable by military commission the
    
    crime of aiding the enemy); §906 (same for spying); War Crimes Act of
    1996, 
    18 U.S. C
    . §2441 (2000 ed. and Supp. III) (listing war crimes);
    Foreign Operations, Export Financing, and Related Appropriations Act,
    1998, §583, 111 Stat. 2436 (same).
                         Cite as: 548 U. S. ____ (2006)                   39
    
                             Opinion of STEVENS, J.
    
    ary in the same hands . . . may justly be pronounced the
    very definition of tyranny”).34
       This high standard was met in Quirin; the violation
    there alleged was, by “universal agreement and practice”
    both in this country and internationally, recognized as an
    offense against the law of war. 317 U. S., at 30; see id., at
    35–36 (“This precept of the law of war has been so recog
    nized in practice both here and abroad, and has so gener
    ally been accepted as valid by authorities on international
    law that we think it must be regarded as a rule or princi
    ple of the law of war recognized by this Government by its
    enactment of the Fifteenth Article of War” (footnote omit
    ted)). Although the picture arguably was less clear in
    Yamashita, compare 327 U. S., at 16 (stating that the
    provisions of the Fourth Hague Convention of 1907, 36
    Stat. 2306, “plainly” required the defendant to control the
    troops under his command), with 327 U. S., at 35 (Mur
    phy, J., dissenting), the disagreement between the major
    ity and the dissenters in that case concerned whether the
    historic and textual evidence constituted clear precedent—
    not whether clear precedent was required to justify trial
    by law-of-war military commission.
       At a minimum, the Government must make a substan
    tial showing that the crime for which it seeks to try a
    ——————
       34 While the common law necessarily is “evolutionary in nature,” post,
    
    at 13 (THOMAS, J., dissenting), even in jurisdictions where common law
    crimes are still part of the penal framework, an act does not become a
    crime without its foundations having been firmly established in prece
    dent. See, e.g., R. v. Rimmington, [2006] 2 All E. R. 257, 275–279
    (House of Lords); id., at 279 (while “some degree of vagueness is inevi
    table and development of the law is a recognised feature of common law
    courts, . . . the law-making function of the courts must remain within
    reasonable limits”); see also Rogers v. Tennessee, 
    532 U.S. 451
    , 472–
    478 (2001) (SCALIA, J., dissenting). The caution that must be exercised
    in the incremental development of common-law crimes by the judiciary
    is, for the reasons explained in the text, all the more critical when
    reviewing developments that stem from military action.
    40                     HAMDAN v. RUMSFELD
    
                             Opinion of STEVENS, J.
    
    defendant by military commission is acknowledged to be
    an offense against the law of war. That burden is far from
    satisfied here. The crime of “conspiracy” has rarely if ever
    been tried as such in this country by any law-of-war mili
    tary commission not exercising some other form of juris
    diction,35 and does not appear in either the Geneva Con
    ventions or the Hague Conventions—the major treaties on
    the law of war.36 Winthrop explains that under the com
    mon law governing military commissions, 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. See Winthrop 841 (“[T]he jurisdiction of the
    military commission should be restricted to cases of of
    fence consisting in overt acts, i.e., in unlawful commissions
    or actual attempts to commit, and not in intentions
    ——————
       35 The 19th-century trial of the “Lincoln conspirators,” even if prop
    
    erly classified as a trial by law-of-war commission, cf. W. Rehnquist, All
    the Laws But One: Civil Liberties in Wartime 165–167 (1998) (analyz
    ing the conspiracy charges in light of ordinary criminal law principles
    at the time), is at best an equivocal exception. Although the charge
    against the defendants in that case accused them of “combining, con
    federating, and conspiring together” to murder the President, they were
    also charged (as we read the indictment, cf. post, at 23, n. 14 (THOMAS,
    J., dissenting)) with “maliciously, unlawfully, and traitorously murder
    ing the said Abraham Lincoln.” H. R. Doc. No. 314, 55th Cong., 1st
    Sess., 696 (1899). Moreover, the Attorney General who wrote the
    opinion defending the trial by military commission treated the charge
    as if it alleged the substantive offense of assassination. See 11 Op.
    Atty. Gen. 297 (1865) (analyzing the propriety of trying by military
    commission “the offence of having assassinated the President”); see also
    Mudd v. Caldera, 
    134 F. Supp. 2d 138
    , 140 (DC 2001).
       36 By contrast, the Geneva Conventions do extend liability for sub
    
    stantive war crimes to those who “orde[r]” their commission, see Third
    Geneva Convention, Art. 129, 6 U. S. T., at 3418, and this Court has
    read the Fourth Hague Convention of 1907 to impose “command
    responsibility” on military commanders for acts of their subordinates,
    see Yamshita, 327 U. S., at 15–16.
                     Cite as: 548 U. S. ____ (2006)            41
    
                        Opinion of STEVENS, J.
    
    merely” (emphasis in original)).
        The Government cites three sources that it says show
    otherwise. First, it points out that the Nazi saboteurs in
    Quirin were charged with conspiracy. See Brief for Re
    spondents 27. Second, it observes that Winthrop at one
    point in his treatise identifies conspiracy as an offense
    “prosecuted by military commissions.” Ibid. (citing Win
    throp 839, and n. 5). Finally, it notes that another mili
    tary historian, Charles Roscoe Howland, lists conspiracy
    “ ‘to violate the laws of war by destroying life or property
    in aid of the enemy’ ” as an offense that was tried as a
    violation of the law of war during the Civil War. Brief for
    Respondents 27–28 (citing C. Howland, Digest of Opinions
    of the Judge Advocates General of the Army 1071 (1912)
    (hereinafter Howland)). On close analysis, however, these
    sources at best lend little support to the Government’s
    position and at worst undermine it. By any measure, they
    fail to satisfy the high standard of clarity required to
    justify the use of a military commission.
        That the defendants in Quirin were charged with con
    spiracy is not persuasive, since the Court declined to
    address whether the offense actually qualified as a viola
    tion of the law of war—let alone one triable by military
    commission. The Quirin defendants were charged with
    the following offenses:
        “[I.] Violation of the law of war. 
    
        “[II.] Violation of Article 81 of the Articles of War, de
    
        fining the offense of relieving or attempting to relieve, 
    
        or corresponding with or giving intelligence to, the
    
        enemy.
    
        “[III.] Violation of Article 82, defining the offense of
    
        spying.
    
        “[IV.] Conspiracy to commit the offenses alleged in
    
        charges [I, II, and III].” 317 U. S., at 23. 
    
    The Government, defending its charge, argued that the
    42                 HAMDAN v. RUMSFELD
    
                         Opinion of STEVENS, J.
    
    conspiracy alleged “constitute[d] an additional violation of
    the law of war.” Id., at 15. The saboteurs disagreed; they
    maintained that “[t]he charge of conspiracy can not stand
    if the other charges fall.” Id., at 8. The Court, however,
    declined to resolve the dispute. It concluded, first, that
    the specification supporting Charge I adequately alleged a
    “violation of the law of war” that was not “merely colorable
    or without foundation.” Id., at 36. The facts the Court
    deemed sufficient for this purpose were that the defen
    dants, admitted enemy combatants, entered upon U. S.
    territory in time of war without uniform “for the purpose
    of destroying property used or useful in prosecuting the
    war.” That act was “a hostile and warlike” one. Id., at 36,
    37. The Court was careful in its decision to identify an
    overt, “complete” act. Responding to the argument that
    the saboteurs had “not actually committed or attempted to
    commit any act of depredation or entered the theatre or
    zone of active military operations” and therefore had not
    violated the law of war, the Court responded that they had
    actually “passed our military and naval lines and defenses
    or went behind those lines, in civilian dress and with
    hostile purpose.” Id., at 38. “The offense was complete
    when with that purpose they entered—or, having so en
    tered, they remained upon—our territory in time of war
    without uniform or other appropriate means of identifica
    tion.” Ibid.
       Turning to the other charges alleged, the Court ex
    plained that “[s]ince the first specification of Charge I sets
    forth a violation of the law of war, we have no occasion to
    pass on the adequacy of the second specification of Charge
    I, or to construe the 81st and 82nd Articles of War for the
    purpose of ascertaining whether the specifications under
    Charges II and III allege violations of those Articles or
    whether if so construed they are constitutional.” Id., at
    46. No mention was made at all of Charge IV—the con
    spiracy charge.
                     Cite as: 548 U. S. ____ (2006)           43
    
                        Opinion of STEVENS, J.
    
      If anything, Quirin supports Hamdan’s argument that
    conspiracy is not a violation of the law of war. Not only
    did the Court pointedly omit any discussion of the con
    spiracy charge, but its analysis of Charge I placed special
    emphasis on the completion of an offense; it took seriously
    the saboteurs’ argument that there can be no violation of a
    law of war—at least not one triable by military commis
    sion—without the actual commission of or attempt to
    commit a “hostile and warlike act.” Id., at 37–38.
      That limitation makes eminent sense when one consid
    ers the necessity from whence this kind of military com
    mission grew: The need to dispense swift justice, often in
    the form of execution, to illegal belligerents captured on
    the battlefield. See S. Rep. No. 130, 64th Cong., 1st Sess.,
    p. 40 (1916) (testimony of Brig. Gen. Enoch H. Crowder)
    (observing that Article of War 15 preserves the power of
    “the military commander in the field in time of war” to use
    military commissions (emphasis added)). The same ur
    gency would not have been felt vis-à-vis enemies who had
    done little more than agree to violate the laws of war. Cf.
    31 Op. Atty. Gen. 356, 357, 361 (1918) (opining that a
    German spy could not be tried by military commission
    because, having been apprehended before entering “any
    camp, fortification or other military premises of the
    United States,” he had “committed [his offenses] outside of
    the field of military operations”). The Quirin Court ac
    knowledged as much when it described the President’s
    authority to use law-of-war military commissions as the
    power 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.” 317 U. S., at
    28–29 (emphasis added).
      Winthrop and Howland are only superficially more
    helpful to the Government. Howland, granted, lists “con
    spiracy by two or more to violate the laws of war by de
    stroying life or property in aid of the enemy” as one of over
    44                  HAMDAN v. RUMSFELD
    
                         Opinion of STEVENS, J.
    
    20 “offenses against the laws and usages of war” “passed
    upon and punished by military commissions.” Howland
    1071. But while the records of cases that Howland cites
    following his list of offenses against the law of war support
    inclusion of the other offenses mentioned, they provide no
    support for the inclusion of conspiracy as a violation of the
    law of war. See ibid. (citing Record Books of the Judge
    Advocate General Office, R. 2, 144; R. 3, 401, 589, 649; R.
    4, 320; R. 5, 36, 590; R. 6, 20; R. 7, 413; R. 8, 529; R. 9,
    149, 202, 225, 481, 524, 535; R. 10, 567; R. 11, 473, 513; R.
    13, 125, 675; R. 16, 446; R. 21, 101, 280). Winthrop, ap
    parently recognizing as much, excludes conspiracy of any
    kind from his own list of offenses against the law of war.
    See Winthrop 839–840.
       Winthrop does, unsurprisingly, include “criminal con
    spiracies” in his list of “[c]rimes and statutory offenses
    cognizable by State or U. S. courts” and triable by martial
    law or military government commission. See id., at 839.
    And, in a footnote, he cites several Civil War examples of
    “conspiracies of this class, or of the first and second classes
    combined.” Id., at 839, n. 5 (emphasis added). The Gov
    ernment relies on this footnote for its contention that
    conspiracy was triable both as an ordinary crime (a crime
    of the “first class”) and, independently, as a war crime (a
    crime of the “second class”). But the footnote will not
    support the weight the Government places on it.
       As we have seen, the military commissions convened
    during the Civil War functioned at once as martial law or
    military government tribunals and as law-of-war commis
    sions. See n. 27, supra. Accordingly, they regularly tried
    war crimes and ordinary crimes together. Indeed, as
    Howland observes, “[n]ot infrequently the crime, as
    charged and found, was a combination of the two species of
    offenses.” Howland 1071; see also Davis 310, n. 2; Win
    throp 842. The example he gives is “ ‘murder in violation
    of the laws of war.’ ” Howland 1071–1072. Winthrop’s
                     Cite as: 548 U. S. ____ (2006)           45
    
                        Opinion of STEVENS, J.
    
    conspiracy “of the first and second classes combined” is,
    like Howland’s example, best understood as a species of
    compound offense of the type tried by the hybrid military
    commissions of the Civil War. It is not a stand-alone
    offense against the law of war. Winthrop confirms this
    understanding later in his discussion, when he empha
    sizes that “overt acts” constituting war crimes are the only
    proper subject at least of those military tribunals not
    convened to stand in for local courts. Winthrop 841, and
    nn. 22, 23 (emphasis in original) (citing W. Finlason,
    Martial Law 130 (1867)).
       JUSTICE THOMAS cites as evidence that conspiracy is a
    recognized violation of the law of war the Civil War in
    dictment against Henry Wirz, which charged the defen
    dant with “ ‘[m]aliciously, willfully, and traitorously . . .
    combining, confederating, and conspiring [with others] to
    injure the health and destroy the lives of soldiers in the
    military service of the United States . . . to the end that
    the armies of the United States might be weakened and
    impaired, in violation of the laws and customs of war.’ ”
    Post, at 24–25 (dissenting opinion) (quoting H. R. Doc. No.
    314, 55th Cong., 3d Sess., 785 (1865); emphasis deleted).
    As shown by the specification supporting that charge,
    however, Wirz was alleged to have personally committed a
    number of atrocities against his victims, including torture,
    injection of prisoners with poison, and use of “ferocious
    and bloodthirsty dogs” to “seize, tear, mangle, and maim
    the bodies and limbs” of prisoners, many of whom died as
    a result. Id., at 789–790. Crucially, Judge Advocate
    General Holt determined that one of Wirz’s alleged co
    conspirators, R. B. Winder, should not be tried by military
    commission because there was as yet insufficient evidence
    of his own personal involvement in the atrocities: “[I]n the
    case of R. B. Winder, while the evidence at the trial of Wirz
    was deemed by the court to implicate him in the conspiracy
    against the lives of all Federal prisoners in rebel hands, no
    46                     HAMDAN v. RUMSFELD
    
                             Opinion of STEVENS, J.
    
    such specific overt acts of violation of the laws of war are
    as yet fixed upon him as to make it expedient to prefer
    formal charges and bring him to trial.” Id., at 783 (em
    phases added).37
      Finally, international sources confirm that the crime
    charged here is not a recognized violation of the law of
    war.38 As observed above, see supra, at 40, none of the
    major treaties governing the law of war identifies conspir
    acy as a violation thereof. And the only “conspiracy”
    crimes that have been recognized by international war
    crimes tribunals (whose jurisdiction often extends beyond
    war crimes proper to crimes against humanity and crimes
    against the peace) are conspiracy to commit genocide and
    common plan to wage aggressive war, which is a crime
    against the peace and requires for its commission actual
    participation in a “concrete plan to wage war.” 1 Trial of
    ——————
       37 The other examples JUSTICE THOMAS offers are no more availing.
    
    The Civil War indictment against Robert Louden, cited post, at 25,
    alleged a conspiracy, but not one in violation of the law of war. See War
    Dept., General Court Martial Order No. 41, p. 20 (1864). A separate
    charge of “ ‘[t]ransgression of the laws and customs of war’ ” made no
    mention of conspiracy. Id., at 17. The charge against Lenger Grenfel
    and others for conspiring to release rebel prisoners held in Chicago only
    supports the observation, made in the text, that the Civil War tribunals
    often charged hybrid crimes mixing elements of crimes ordinarily
    triable in civilian courts (like treason) and violations of the law of war.
    Judge Advocate General Holt, in recommending that Grenfel’s death
    sentence be upheld (it was in fact commuted by Presidential decree, see
    H. R. Doc. No. 314, at 725), explained that the accused “united himself
    with traitors and malefactors for the overthrow of our Republic in the
    interest of slavery.” Id., at 689.
       38 The Court in Quirin “assume[d] that there are acts regarded in
    
    other countries, or by some writers on international law, as offenses
    against the law of war which would not be triable by military tribunal
    here, either because they are not recognized by our courts as violations
    of the law of war or because they are of that class of offenses constitu
    tionally triable only by a jury.” 317 U. S., at 29. We need not test the
    validity of that assumption here because the international sources only
    corroborate the domestic ones.
                        Cite as: 548 U. S. ____ (2006)                  47
    
                            Opinion of STEVENS, J.
    
    the Major War Criminals Before the International Mili
    tary Tribunal: Nuremberg, 14 November 1945–1 October
    1946, p. 225 (1947). The International Military Tribunal
    at Nuremberg, over the prosecution’s objections, pointedly
    refused to recognize as a violation of the law of war con
    spiracy to commit war crimes, see, e.g., 22 id., at 469,39
    and convicted only Hitler’s most senior associates of con
    spiracy to wage aggressive war, see S. Pomorski, Conspir
    acy and Criminal Organization, in the Nuremberg Trial
    and International Law 213, 233–235 (G. Ginsburgs & V.
    Kudriavtsev eds. 1990). As one prominent figure from the
    Nuremberg trials has explained, members of the Tribunal
    objected to recognition of conspiracy as a violation of the
    law of war on the ground that “[t]he Anglo-American
    concept of conspiracy was not part of European legal
    systems and arguably not an element of the internation
    ally recognized laws of war.” T. Taylor, Anatomy of the
    Nuremberg Trials: A Personal Memoir 36 (1992); see also
    id., at 550 (observing that Francis Biddle, who as Attorney
    General prosecuted the defendants in Quirin, thought the
    French judge had made a “ ‘persuasive argument that
    conspiracy in the truest sense is not known to interna
    tional law’ ”).40
    ——————
      39 Accordingly,    the Tribunal determined to “disregard the
    charges . . . that the defendants conspired to commit War Crimes and
    Crimes against Humanity.” 22 Trial of the Major War Criminals
    Before the International Military Tribunal 469 (1947); see also ibid.
    (“[T]he Charter does not define as a separate crime any conspiracy
    except the one to commit acts of aggressive war”).
       40 See also 15 United Nations War Crimes Commissions, Law Reports
    
    of Trials of War Criminals 90–91 (1949) (observing that, although a few
    individuals were charged with conspiracy under European domestic
    criminal codes following World War II, “the United States Military
    Tribunals” established at that time did not “recognis[e] as a separate
    offence conspiracy to commit war crimes or crimes against humanity”).
    The International Criminal Tribunal for the former Yugoslavia (ICTY),
    drawing on the Nuremberg precedents, has adopted a “joint criminal
    48                     HAMDAN v. RUMSFELD
    
                             Opinion of STEVENS, J.
    
       In sum, the sources that the Government and JUSTICE
    THOMAS rely upon to show that conspiracy to violate the
    law of war is itself a violation of the law of war in fact
    demonstrate quite the opposite. Far from making the
    requisite substantial showing, the Government has failed
    even to offer a “merely colorable” case for inclusion of
    conspiracy among those offenses cognizable by law-of-war
    military commission. Cf. Quirin, 317 U. S., at 36. Be
    cause the charge does not support the commission’s juris
    diction, the commission lacks authority to try Hamdan.
       The charge’s shortcomings are not merely formal, but
    are indicative of a broader inability on the Executive’s part
    here to satisfy the most basic precondition—at least in the
    absence of specific congressional authorization—for estab
    lishment of military commissions: military necessity.
    Hamdan’s tribunal was appointed not by a military com
    mander in the field of battle, but by a retired major gen
    eral stationed away from any active hostilities. Cf. Rasul
    v. Bush, 542 U. S., at 487 (KENNEDY, J., concurring in
    judgment) (observing that “Guantanamo Bay is . . . far
    removed from any hostilities”). Hamdan is charged not
    with an overt act for which he was caught redhanded in a
    theater of war and which military efficiency demands be
    tried expeditiously, but with an agreement the inception of
    which long predated the attacks of September 11, 2001
    and the AUMF. That may well be a crime,41 but it is not
    ——————
    enterprise” theory of liability, but that is a species of liability for the
    substantive offense (akin to aiding and abetting), not a crime on its
    own. See Prosecutor v. Tadić, Judgment, Case No. IT–94–1–A (ICTY
    App. Chamber, July 15, 1999); see also Prosecutor v. Milutinović,
    Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—
    Joint Criminal Enterprise, Case No. IT–99–37–AR72, ¶26 (ICTY App.
    Chamber, May 21, 2003) (stating that “[c]riminal liability pursuant to a
    joint criminal enterprise is not a liability for . . . conspiring to commit
    crimes”).
       41 JUSTICE THOMAS’ suggestion that our conclusion precludes the Gov
    
    ernment from bringing to justice those who conspire to commit acts of
                         Cite as: 548 U. S. ____ (2006)                    49
    
                              Opinion of the Court
    
    an offense that “by the law of war may be tried
    by military commissio[n].” 
    10 U.S. C
    . §821. None of the
    overt acts alleged to have been committed in furtherance
    of the agreement is itself a war crime, or even necessarily
    occurred during time of, or in a theater of, war. Any ur
    gent need for imposition or execution of judgment is ut
    terly belied by the record; Hamdan was arrested in No
    vember 2001 and he was not charged until mid-2004.
    These simply are not the circumstances in which, by any
    stretch of the historical evidence or this Court’s prece
    dents, a military commission established by Executive
    Order under the authority of Article 21 of the UCMJ may
    lawfully try a person and subject him to punishment.
                                  VI
       Whether or not the Government has charged Hamdan
    with an offense against the law of war cognizable by mili
    tary commission, the commission lacks power to proceed.
    The UCMJ conditions the President’s use of military
    commissions on compliance not only with the American
    common law of war, but also with the rest of the UCMJ
    itself, insofar as applicable, and with the “rules and pre
    cepts of the law of nations,” Quirin, 317 U. S., at 28—
    including, inter alia, the four Geneva Conventions signed
    in 1949. See Yamashita, 327 U. S., at 20–21, 23–24. The
    procedures that the Government has decreed will govern
    Hamdan’s trial by commission violate these laws.
                              A
      The commission’s procedures are set forth in Commis
    sion Order No. 1, which was amended most recently on
    —————— 
    
    terrorism is therefore wide of the mark. See post, at 8, n. 3; 28–30.
    
    That conspiracy is not a violation of the law of war triable by military
    
    commission does not mean the Government may not, for example,
    
    prosecute by court-martial or in federal court those caught “plotting
    
    terrorist atrocities like the bombing of the Khobar Towers.” Post, at 29. 
    
    50                   HAMDAN v. RUMSFELD
    
                            Opinion of the Court
    
    August 31, 2005—after Hamdan’s trial had already begun.
    Every commission established pursuant to Commission
    Order No. 1 must have a presiding officer and at least
    three other members, all of whom must be commissioned
    officers. §4(A)(1). The presiding officer’s job is to rule on
    questions of law and other evidentiary and interlocutory
    issues; the other members make findings and, if applica
    ble, sentencing decisions. §4(A)(5). The accused is enti
    tled to appointed military counsel and may hire civilian
    counsel at his own expense so long as such counsel is a
    U. S. citizen with security clearance “at the level SECRET
    or higher.” §§4(C)(2)–(3).
       The accused also is entitled to a copy of the charge(s)
    against him, both in English and his own language (if
    different), to a presumption of innocence, and to certain
    other rights typically afforded criminal defendants in
    civilian courts and courts-martial. See §§5(A)–(P). These
    rights are subject, however, to one glaring condition: The
    accused and his civilian counsel may be excluded from,
    and precluded from ever learning what evidence was
    presented during, any part of the proceeding that either
    the Appointing Authority or the presiding officer decides
    to “close.” Grounds for such closure “include the protec
    tion of information classified or classifiable . . . ; informa
    tion protected by law or rule from unauthorized disclosure;
    the physical safety of participants in Commission proceed
    ings, including prospective witnesses; intelligence and law
    enforcement sources, methods, or activities; and other
    national security interests.” §6(B)(3).42 Appointed mili
    tary defense counsel must be privy to these closed ses
    sions, but may, at the presiding officer’s discretion, be
    forbidden to reveal to his or her client what took place
    therein. Ibid.
    ——————
      42 The accused also may be excluded from the proceedings if he “en
    
    gages in disruptive conduct.” §5(K).
                        Cite as: 548 U. S. ____ (2006)                  51
    
                             Opinion of the Court
    
      Another striking feature of the rules governing Ham
    dan’s commission is that they permit the admission of any
    evidence that, in the opinion of the presiding officer,
    “would have probative value to a reasonable person.”
    §6(D)(1). Under this test, not only is testimonial hearsay
    and evidence obtained through coercion fully admissible,
    but neither live testimony nor witnesses’ written state
    ments need be sworn. See §§6(D)(2)(b), (3). Moreover, the
    accused and his civilian counsel may be denied access to
    evidence in the form of “protected information” (which
    includes classified information as well as “information
    protected by law or rule from unauthorized disclosure” and
    “information concerning other national security interests,”
    §§6(B)(3), 6(D)(5)(a)(v)), so long as the presiding officer
    concludes that the evidence is “probative” under §6(D)(1)
    and that its admission without the accused’s knowledge
    would not “result in the denial of a full and fair trial.”
    §6(D)(5)(b).43 Finally, a presiding officer’s determination
    that evidence “would not have probative value to a rea
    sonable person” may be overridden by a majority of the
    other commission members. §6(D)(1).
      Once all the evidence is in, the commission members (not
    including the presiding officer) must vote on the accused’s
    guilt. A two-thirds vote will suffice for both a verdict of
    guilty and for imposition of any sentence not including
    death (the imposition of which requires a unanimous vote).
    §6(F). Any appeal is taken to a three-member review
    panel composed of military officers and designated by the
    Secretary of Defense, only one member of which need have
    ——————
      43 As the District Court observed, this section apparently permits
    
    reception of testimony from a confidential informant in circumstances
    where “Hamdan will not be permitted to hear the testimony, see the
    witness’s face, or learn his name. If the government has information
    developed by interrogation of witnesses in Afghanistan or elsewhere, it
    can offer such evidence in transcript form, or even as summaries of
    transcripts.” 
    344 F. Supp. 2d 152
    , 168 (DC 2004).
    52                 HAMDAN v. RUMSFELD
    
                         Opinion of the Court
    
    experience as a judge. §6(H)(4). The review panel is
    directed to “disregard any variance from procedures speci
    fied in this Order or elsewhere that would not materially
    have affected the outcome of the trial before the Commis
    sion.” Ibid. Once the panel makes its recommendation to
    the Secretary of Defense, the Secretary can either remand
    for further proceedings or forward the record to the Presi
    dent with his recommendation as to final disposition.
    §6(H)(5). The President then, unless he has delegated the
    task to the Secretary, makes the “final decision.” §6(H)(6).
    He may change the commission’s findings or sentence only
    in a manner favorable to the accused. Ibid.
                                  B
       Hamdan raises both general and particular objections to
    the procedures set forth in Commission Order No. 1. His
    general objection is that the procedures’ admitted devia
    tion from those governing courts-martial itself renders the
    commission illegal. Chief among his particular objections
    are that he may, under the Commission Order, be con
    victed based on evidence he has not seen or heard, and
    that any evidence admitted against him need not comply
    with the admissibility or relevance rules typically applica
    ble in criminal trials and court-martial proceedings.
       The Government objects to our consideration of any
    procedural challenge at this stage on the grounds that (1)
    the abstention doctrine espoused in Councilman, 
    420 U.S. 738
    , precludes pre-enforcement review of procedural rules,
    (2) Hamdan will be able to raise any such challenge follow
    ing a “final decision” under the DTA, and (3) “there is . . .
    no basis to presume, before the trial has even commenced,
    that the trial will not be conducted in good faith and ac
    cording to law.” Brief for Respondents 45–46, nn. 20–21.
    The first of these contentions was disposed of in Part III,
    supra, and neither of the latter two is sound.
       First, because Hamdan apparently is not subject to the
                        Cite as: 548 U. S. ____ (2006)                 53
    
                            Opinion of the Court
    
    death penalty (at least as matters now stand) and may
    receive a sentence shorter than 10 years’ imprisonment,
    he has no automatic right to review of the commission’s
    “final decision”44 before a federal court under the DTA.
    See §1005(e)(3), 119 Stat. 2743. Second, contrary to the
    Government’s assertion, there is a “basis to presume” that
    the procedures employed during Hamdan’s trial will vio
    late the law: The procedures are described with particular
    ity in Commission Order No. 1, and implementation of
    some of them has already occurred. One of Hamdan’s
    complaints is that he will be, and indeed already has been,
    excluded from his own trial. See Reply Brief for Petitioner
    12; App. to Pet. for Cert. 45a. Under these circumstances,
    review of the procedures in advance of a “final decision”—
    the timing of which is left entirely to the discretion of the
    President under the DTA—is appropriate. We turn, then,
    to consider the merits of Hamdan’s procedural challenge.
                                  C
      In part because the difference between military commis
    sions and courts-martial originally was a difference of
    jurisdiction alone, and in part to protect against abuse and
    ensure evenhandedness under the pressures of war, the
    procedures governing trials by military commission his
    torically have been the same as those governing courts-
    martial. See, e.g., 1 The War of the Rebellion 248 (2d
    series 1894) (General Order 1 issued during the Civil War
    required military commissions to “be constituted in a
    similar manner and their proceedings be conducted ac
    cording to the same general rules as courts-martial in
    order to prevent abuses which might otherwise arise”).
    Accounts of commentators from Winthrop through Gen
    eral Crowder—who drafted Article of War 15 and whose
    
    ——————
      44 Any decision of the commission is not “final” until the President
    
    renders it so. See Commission Order No. 1 §6(H)(6).
    54                    HAMDAN v. RUMSFELD
    
                             Opinion of the Court
    
    views have been deemed “authoritative” by this Court,
    Madsen, 343 U. S., at 353—confirm as much.45 As re
    cently as the Korean and Vietnam wars, during which use
    of military commissions was contemplated but never
    made, the principle of procedural parity was espoused as a
    background assumption. See Paust, Antiterrorism Mili
    tary Commissions: Courting Illegality, 23 Mich. J. Int’l L.
    1, 3–5 (2001–2002).
       There is a glaring historical exception to this general
    rule. The procedures and evidentiary rules used to try
    General Yamashita near the end of World War II deviated
    in significant respects from those then governing courts-
    martial. See 
    327 U.S. 1
    . The force of that precedent,
    however, has been seriously undermined by post-World
    War II developments.
       Yamashita, from late 1944 until September 1945, was
    Commanding General of the Fourteenth Army Group of
    the Imperial Japanese Army, which had exercised control
    over the Philippine Islands. On September 3, 1945, after
    American forces regained control of the Philippines, Ya
    mashita surrendered. Three weeks later, he was charged
    with violations of the law of war. A few weeks after that,
    he was arraigned before a military commission convened
    in the Philippines. He pleaded not guilty, and his trial
    lasted for two months. On December 7, 1945, Yamashita
    was convicted and sentenced to hang. See id., at 5; id., at
    31–34 (Murphy, J., dissenting). This Court upheld the
    ——————
      45 See Winthrop 835, and n. 81 (“military commissions are constituted
    
    and composed, and their proceedings are conducted, similarly to gen
    eral courts-martial”); id., at 841–842; S. Rep. No. 130, 64th Cong., 1st
    Sess., 40 (1916) (testimony of Gen. Crowder) (“Both classes of courts
    have the same procedure”); see also, e.g., H. Coppée, Field Manual of
    Courts-Martial, p. 104 (1863) (“[Military] commissions are appointed by
    the same authorities as those which may order courts-martial. They
    are constituted in a manner similar to such courts, and their proceed
    ings are conducted in exactly the same way, as to form, examination of
    witnesses, etc.”).
                         Cite as: 548 U. S. ____ (2006)                   55
    
                              Opinion of the Court
    
    denial of his petition for a writ of habeas corpus.
      The procedures and rules of evidence employed during
    Yamashita’s trial departed so far from those used in
    courts-martial that they generated an unusually long and
    vociferous critique from two Members of this Court. See
    id., at 41–81 (Rutledge, J., joined by Murphy, J., dissent
    ing).46 Among the dissenters’ primary concerns was that
    the commission had free rein to consider all evidence
    “which in the commission’s opinion ‘would be of assistance
    in proving or disproving the charge,’ without any of the
    usual modes of authentication.” Id., at 49 (Rutledge, J.).
      The majority, however, did not pass on the merits of
    Yamashita’s procedural challenges because it concluded
    that his status disentitled him to any protection under the
    Articles of War (specifically, those set forth in Article 38,
    which would become Article 36 of the UCMJ) or the Ge
    neva Convention of 1929, 47 Stat. 2021 (1929 Geneva
    Convention). The Court explained that Yamashita was
    neither a “person made subject to the Articles of War by
    Article 2” thereof, 327 U. S., at 20, nor a protected pris
    oner of war being tried for crimes committed during his
    detention, id., at 21.
      At least partially in response to subsequent criticism of
    General Yamashita’s trial, the UCMJ’s codification of the
    Articles of War after World War II expanded the category
    of persons subject thereto to include defendants in Yama
    ——————
      46 The  dissenters’ views are summarized in the following passage:
       “It is outside our basic scheme to condemn men without giving
    reasonable opportunity for preparing defense; in capital or other
    serious crimes to convict on ‘official documents . . .; affidavits; . . .
    documents or translations thereof; diaries . . ., photographs, motion
    picture films, and . . . newspapers” or on hearsay, once, twice or thrice
    removed, more particularly when the documentary evidence or some of
    it is prepared ex parte by the prosecuting authority and includes not
    only opinion but conclusions of guilt. Nor in such cases do we deny the
    rights of confrontation of witnesses and cross-examination.” Yama
    shita, 327 U. S., at 44 (footnotes omitted).
    56                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
    shita’s (and Hamdan’s) position,47 and the Third Geneva
    Convention of 1949 extended prisoner-of-war protections
    to individuals tried for crimes committed before their
    capture. See 3 Int’l Comm. of Red Cross,48 Commentary:
    Geneva Convention Relative to the Treatment of Prisoners
    of War 413 (1960) (hereinafter GCIII Commentary) (ex
    plaining that Article 85, which extends the Convention’s
    protections to “[p]risoners of war prosecuted under the
    laws of the Detaining Power for acts committed prior to
    capture,” was adopted in response to judicial interpreta
    tions of the 1929 Convention, including this Court’s deci
    sion in Yamashita). The most notorious exception to the
    principle of uniformity, then, has been stripped of its
    precedential value.
       The uniformity principle is not an inflexible one; it does
    not preclude all departures from the procedures dictated
    for use by courts-martial. But any departure must be
    tailored to the exigency that necessitates it. See Winthrop
    835, n. 81. That understanding is reflected in Article 36 of
    the UCMJ, which provides:
    
    ——————
      47 Article2 of the UCMJ now reads:
      “(a) The following persons are subject to [the UCMJ]:
      “(9) Prisoners of war in custody of the armed forces.
       “(12) Subject to any treaty or agreement to which the United States is
    or may be a party or to any accepted rule of international law, persons
    within an area leased by or otherwise reserved or acquired for the use
    of the United States which is under the control of the Secretary con
    cerned and which is outside the United States and outside the Com
    monwealth of Puerto Rico, Guam, and the Virgin Islands.” 
    10 U.S. C
    .
    §802(a).
       Guantanamo Bay is such a leased area. See Rasul v. Bush, 
    542 U.S. 466
    , 471 (2004).
       48 The International Committee of the Red Cross is referred to by
    
    name in several provisions of the 1949 Geneva Conventions and is the
    body that drafted and published the official commentary to the Conven
    tions. Though not binding law, the commentary is, as the parties
    recognize, relevant in interpreting the Conventions’ provisions.
                     Cite as: 548 U. S. ____ (2006)          57
    
                         Opinion of the Court
    
          “(a) The procedure, including modes of proof, in
        cases before courts-martial, courts of inquiry, 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.
          “(b) All rules and regulations made under this arti
        cle shall be uniform insofar as practicable and shall be
        reported to Congress.” 70A Stat. 50.
      Article 36 places two restrictions on the President’s
    power to promulgate rules of procedure for courts-martial
    and military commissions alike. First, no procedural rule
    he adopts may be “contrary to or inconsistent with” the
    UCMJ—however practical it may seem. Second, the rules
    adopted must be “uniform insofar as practicable.” That is,
    the rules applied to military commissions must be the
    same as those applied to courts-martial unless such uni
    formity proves impracticable.
      Hamdan argues that Commission Order No. 1 violates
    both of these restrictions; he maintains that the proce
    dures described in the Commission Order are inconsistent
    with the UCMJ and that the Government has offered no
    explanation for their deviation from the procedures gov
    erning courts-martial, which are set forth in the Manual
    for Courts-Martial, United States (2005 ed.) (Manual for
    Courts-Martial).    Among the inconsistencies Hamdan
    identifies is that between §6 of the Commission Order,
    which permits exclusion of the accused from proceedings
    and denial of his access to evidence in certain circum
    stances, and the UCMJ’s requirement that “[a]ll . . . pro
    ceedings” other than votes and deliberations by courts-
    martial “shall be made a part of the record and shall be in
    58                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
    the presence of the accused.” 
    10 U.S. C
    . A. §839(c) (Supp.
    2006). Hamdan also observes that the Commission Order
    dispenses with virtually all evidentiary rules applicable in
    courts-martial.
      The Government has three responses. First, it argues,
    only 9 of the UCMJ’s 158 Articles—the ones that expressly
    mention “military commissions”49—actually apply to com
    missions, and Commission Order No. 1 sets forth no pro
    cedure that is “contrary to or inconsistent with” those 9
    provisions. Second, the Government contends, military
    commissions would be of no use if the President were
    hamstrung by those provisions of the UCMJ that govern
    courts-martial. Finally, the President’s determination
    that “the danger to the safety of the United States and the
    nature of international terrorism” renders it impracticable
    “to apply in military commissions . . . the principles of law
    and rules of evidence generally recognized in the trial of
    criminal cases in the United States district courts,” No
    vember 13 Order §1(f), is, in the Government’s view, ex
    planation enough for any deviation from court-martial
    procedures. See Brief for Respondents 43–47, and n. 22.
    ——————
      49 Aside from Articles 21 and 36, discussed at length in the text, the
    
    other seven Articles that expressly reference military commissions are:
    (1) 28 (requiring appointment of reporters and interpreters); (2) 47
    (making it a crime to refuse to appear or testify “before a court-martial,
    military commission, court of inquiry, or any other military court or
    board”); (3) 48 (allowing a “court-martial, provost court, or military
    commission” to punish a person for contempt); (4) 49(d) (permitting
    admission into evidence of a “duly authenticated deposition taken upon
    reasonable notice to the other parties” only if “admissible under the
    rules of evidence” and only if the witness is otherwise unavailable); (5)
    50 (permitting admission into evidence of records of courts of inquiry “if
    otherwise admissible under the rules of evidence,” and if certain other
    requirements are met); (6) 104 (providing that a person accused of
    aiding the enemy may be sentenced to death or other punishment by
    military commission or court-martial); and (7) 106 (mandating the
    death penalty for spies convicted before military commission or court-
    martial).
                         Cite as: 548 U. S. ____ (2006)                    59
    
                              Opinion of the Court
    
       Hamdan has the better of this argument. Without
    reaching the question whether any provision of Commis
    sion Order No. 1 is strictly “contrary to or inconsistent
    with” other provisions of the UCMJ, we conclude that the
    “practicability” determination the President has made is
    insufficient to justify variances from the procedures gov
    erning courts-martial. Subsection (b) of Article 36 was
    added after World War II, and requires a different show
    ing of impracticability from the one required by subsection
    (a). Subsection (a) requires that the rules the President
    promulgates for courts-martial, provost courts, and mili
    tary commissions alike conform to those that govern pro
    cedures in Article III courts, “so far as he considers practi
    cable.” 
    10 U.S. C
    . §836(a) (emphasis added). Subsection
    (b), by contrast, demands that the rules applied in courts-
    martial, provost courts, and military commissions—
    whether or not they conform with the Federal Rules of
    Evidence—be “uniform insofar as practicable.” §836(b)
    (emphasis added). Under the latter provision, then, the
    rules set forth in the Manual for Courts-Martial must
    apply to military commissions unless impracticable.50
       The President here has determined, pursuant to subsec
    tion (a), that it is impracticable to apply the rules and
    principles of law that govern “the trial of criminal cases in
    ——————
       50 JUSTICE THOMAS relies on the legislative history of the UCMJ to
    
    argue that Congress’ adoption of Article 36(b) in the wake of World War
    II was “motivated” solely by a desire for “uniformity across the separate
    branches of the armed services.” Post, at 35. But even if Congress was
    concerned with ensuring uniformity across service branches, that does
    not mean it did not also intend to codify the longstanding practice of
    procedural parity between courts-martial and other military tribunals.
    Indeed, the suggestion that Congress did not intend uniformity across
    tribunal types is belied by the textual proximity of subsection (a) (which
    requires that the rules governing criminal trials in federal district
    courts apply, absent the President’s determination of impracticability,
    to courts-martial, provost courts, and military commissions alike) and
    subsection (b) (which imposes the uniformity requirement).
    60                    HAMDAN v. RUMSFELD
    
                             Opinion of the Court
    
    the United States district courts,” §836(a), to Hamdan’s
    commission. We assume that complete deference is owed
    that determination. The President has not, however,
    made a similar official determination that it is impractica
    ble to apply the rules for courts-martial.51 And even if
    subsection (b)’s requirements may be satisfied without
    such an official determination, the requirements of that
    subsection are not satisfied here.
      Nothing in the record before us demonstrates that it
    would be impracticable to apply court-martial rules in this
    case. There is no suggestion, for example, of any logistical
    difficulty in securing properly sworn and authenticated
    evidence or in applying the usual principles of relevance
    and admissibility. Assuming arguendo that the reasons
    articulated in the President’s Article 36(a) determination
    ought to be considered in evaluating the impracticability
    of applying court-martial rules, the only reason offered in
    support of that determination is the danger posed by
    international terrorism.52 Without for one moment under
    estimating that danger, it is not evident to us why it
    ——————
      51 We  may assume that such a determination would be entitled to a
    measure of deference. For the reasons given by JUSTICE KENNEDY, see
    post, at 5 (opinion concurring in part), however, the level of deference
    accorded to a determination made under subsection (b) presum
    ably would not be as high as that accorded to a determination under
    subsection (a).
      52 JUSTICE THOMAS looks not to the President’s official Article 36(a)
    
    determination, but instead to press statements made by the Secretary
    of Defense and the Under Secretary of Defense for Policy. See post, at
    36–38 (dissenting opinion). We have not heretofore, in evaluating the
    legality of Executive action, deferred to comments made by such offi
    cials to the media. Moreover, the only additional reason the comments
    provide—aside from the general danger posed by international terror
    ism—for departures from court-martial procedures is the need to
    protect classified information. As we explain in the text, and as
    JUSTICE KENNEDY elaborates in his separate opinion, the structural and
    procedural defects of Hamdan’s commission extend far beyond rules
    preventing access to classified information.
                         Cite as: 548 U. S. ____ (2006)               61
    
                             Opinion of the Court
    
    should require, in the case of Hamdan’s trial, any variance
    from the rules that govern courts-martial.
       The absence of any showing of impracticability is par
    ticularly disturbing when considered in light of the clear
    and admitted failure to apply one of the most fundamental
    protections afforded not just by the Manual for Courts-
    Martial but also by the UCMJ itself: the right to be pre
    sent. See 
    10 U.S. C
    . A. §839(c) (Supp. 2006). Whether or
    not that departure technically is “contrary to or inconsis
    tent with” the terms of the UCMJ, 
    10 U.S. C
    . §836(a), the
    jettisoning of so basic a right cannot lightly be excused as
    “practicable.”
       Under the circumstances, then, the rules applicable in
    courts-martial must apply. Since it is undisputed that
    Commission Order No. 1 deviates in many significant
    respects from those rules, it necessarily violates Article
    36(b).
       The Government’s objection that requiring compliance
    with the court-martial rules imposes an undue burden
    both ignores the plain meaning of Article 36(b) and mis
    understands the purpose and the history of military com
    missions. The military commission was not born of a
    desire to dispense a more summary form of justice than is
    afforded by courts-martial; it developed, rather, as a tri
    bunal of necessity to be employed when courts-martial
    lacked jurisdiction over either the accused or the subject
    matter. See Winthrop 831. Exigency lent the commission
    its legitimacy, but did not further justify the wholesale
    jettisoning of procedural protections. That history ex
    plains why the military commission’s procedures typically
    have been the ones used by courts-martial. That the
    jurisdiction of the two tribunals today may sometimes
    overlap, see Madsen, 343 U. S., at 354, does not detract
    from the force of this history;53 Article 21 did not trans
    ——————
     53 JUSTICE   THOMAS relies extensively on Madsen for the proposition
    62                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
    form the military commission from a tribunal of true
    exigency into a more convenient adjudicatory tool. Article
    36, confirming as much, strikes a careful balance between
    uniform procedure and the need to accommodate exigen
    cies that may sometimes arise in a theater of war. That
    Article not having been complied with here, the rules
    specified for Hamdan’s trial are illegal.54
                                 D
      The procedures adopted to try Hamdan also violate the
    Geneva Conventions. The Court of Appeals dismissed
    Hamdan’s Geneva Convention challenge on three inde
    pendent grounds: (1) the Geneva Conventions are not judi
    cially enforceable; (2) Hamdan in any event is not entitled
    to their protections; and (3) even if he is entitled to their
    protections, Councilman abstention is appropriate. Judge
    Williams, concurring, rejected the second ground but
    agreed with the majority respecting the first and the last.
    As we explained in Part III, supra, the abstention rule
    applied in Councilman, 
    420 U.S. 738
    , is not applicable
    here.55 And for the reasons that follow, we hold that
    ——————
    that the President has free rein to set the procedures that govern
    military commissions. See post, at 30, 31, 33, n. 16, 34, and 45. That
    reliance is misplaced. Not only did Madsen not involve a law-of-war
    military commission, but (1) the petitioner there did not challenge the
    procedures used to try her, (2) the UCMJ, with its new Article 36(b),
    did not become effective until May 31, 1951, after the petitioner’s trial,
    see 343 U. S., at 345, n. 6, and (3) the procedures used to try the peti
    tioner actually afforded more protection than those used in courts-
    martial, see id., at 358–360; see also id., at 358 (“[T]he Military Gov
    ernment Courts for Germany . . . have had a less military character
    than that of courts-martial”).
       54 Prior to the enactment of Article 36(b), it may well have been the
    
    case that a deviation from the rules governing courts-martial would not
    have rendered the military commission “ ‘illegal.’ ” Post, at 30–31, n. 16
    (THOMAS, J., dissenting) (quoting Winthrop 841). Article 36(b), how
    ever, imposes a statutory command that must be heeded.
       55 JUSTICE THOMAS makes the different argument that Hamdan’s
                         Cite as: 548 U. S. ____ (2006)                  63
    
                             Opinion of the Court
    
    neither of the other grounds the Court of Appeals gave for
    its decision is persuasive.
                                  i
       The Court of Appeals relied on Johnson v. Eisentrager,
    
    339 U.S. 763
     (1950), to hold that Hamdan could not in
    voke the Geneva Conventions to challenge the Govern
    ment’s plan to prosecute him in accordance with Commis
    sion Order No. 1. Eisentrager involved a challenge by 21
    German nationals to their 1945 convictions for war crimes
    by a military tribunal convened in Nanking, China, and to
    their subsequent imprisonment in occupied Germany. The
    petitioners argued, inter alia, that the 1929 Geneva Con
    vention rendered illegal some of the procedures employed
    during their trials, which they said deviated impermissi
    bly from the procedures used by courts-martial to try
    American soldiers. See id., at 789. We rejected that claim
    on the merits because the petitioners (unlike Hamdan
    here) had failed to identify any prejudicial disparity “be
    tween the Commission that tried [them] and those that
    would try an offending soldier of the American forces of
    like rank,” and in any event could claim no protection,
    under the 1929 Convention, during trials for crimes that
    occurred before their confinement as prisoners of war. Id.,
    at 790.56
       Buried in a footnote of the opinion, however, is this
    curious statement suggesting that the Court lacked power
    even to consider the merits of the Geneva Convention
    argument:
    ——————
    Geneva Convention challenge is not yet “ripe” because he has yet to be
    sentenced. See post, at 43–45. This is really just a species of the
    abstention argument we have already rejected. See Part III, supra.
    The text of the Geneva Conventions does not direct an accused to wait
    until sentence is imposed to challenge the legality of the tribunal that
    is to try him.
       56 As explained in Part VI–C, supra, that is no longer true under the
    
    1949 Conventions.
    64                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
         “We are not holding that these prisoners have no right
         which the military authorities are bound to respect.
         The United States, by the Geneva Convention of July
         27, 1929, 47 Stat. 2021, concluded with forty-six other
         countries, including the German Reich, an agreement
         upon the treatment to be accorded captives. These
         prisoners claim to be and are entitled to its protection.
         It is, however, the obvious scheme of the Agreement
         that responsibility for observance and enforcement of
         these rights is upon political and military authorities.
         Rights of alien enemies are vindicated under it only
         through protests and intervention of protecting pow
         ers as the rights of our citizens against foreign gov
         ernments are vindicated only by Presidential inter
         vention.” Id., at 789, n. 14.
    The Court of Appeals, on the strength of this footnote, held
    that “the 1949 Geneva Convention does not confer upon
    Hamdan a right to enforce its provisions in court.” 
    415 F. 3d
    , at 40.
      Whatever else might be said about the Eisentrager
    footnote, it does not control this case. We may assume
    that “the obvious scheme” of the 1949 Conventions is
    identical in all relevant respects to that of the 1929 Con
    vention,57 and even that that scheme would, absent some
    other provision of law, preclude Hamdan’s invocation of
    the Convention’s provisions as an independent source of
    law binding the Government’s actions and furnishing
    petitioner with any enforceable right.58 For, regardless of
    ——————
      57 But   see, e.g., 4 Int’l Comm. of Red Cross, Commentary: Geneva
    Convention Relative to the Protection of Civilian Persons in Time of
    War 21 (1958) (hereinafter GCIV Commentary) (the 1949 Geneva
    Conventions were written “first and foremost to protect individuals,
    and not to serve State interests”); GCIII Commentary 91 (“It was not
    . . . until the Conventions of 1949 . . . that the existence of ‘rights’
    conferred in prisoners of war was affirmed”).
        58 But see generally Brief for Louis Henkin et al. as Amici Curiae; 1
                          Cite as: 548 U. S. ____ (2006)                    65
    
                              Opinion of the Court
    
    the nature of the rights conferred on Hamdan, cf. United
    States v. Rauscher, 
    119 U.S. 407
     (1886), they are, as the
    Government does not dispute, part of the law of war. See
    Hamdi, 542 U. S., at 520–521 (plurality opinion). And
    compliance with the law of war is the condition upon
    which the authority set forth in Article 21 is granted.
                                   ii
       For the Court of Appeals, acknowledgment of that condi
    tion was no bar to Hamdan’s trial by commission. As an
    alternative to its holding that Hamdan could not invoke
    the Geneva Conventions at all, the Court of Appeals con
    cluded that the Conventions did not in any event apply to
    the armed conflict during which Hamdan was captured.
    The court accepted the Executive’s assertions that Ham
    dan was captured in connection with the United States’
    war with al Qaeda and that that war is distinct from the
    war with the Taliban in Afghanistan. It further reasoned
    that the war with al Qaeda evades the reach of the Geneva
    Conventions. See 
    415 F. 3d
    , at 41–42. We, like Judge
    Williams, disagree with the latter conclusion.
       The conflict with al Qaeda is not, according to the Gov
    ernment, a conflict to which the full protections afforded
    detainees under the 1949 Geneva Conventions apply
    because Article 2 of those Conventions (which appears in
    all four Conventions) renders the full protections applica
    ble only to “all cases of declared war or of any other armed
    conflict which may arise between two or more of the High
    Contracting Parties.” 6 U. S. T., at 3318.59 Since Hamdan
    ——————
    Int’l Comm. for the Red Cross, Commentary: Geneva Convention for the
    Amelioration of the Condition of the Wounded and Sick in Armed Forces
    in the Field 84 (1952) (“It should be possible in States which are parties
    to the Convention . . . for the rules of the Convention to be evoked before
    an appropriate national court by the protected person who has suffered a
    violation”); GCII Commentary 92; GCIV Commentary 79.
      59 For convenience’s sake, we use citations to the Third Geneva Con
    
    vention only.
    66                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
    was captured and detained incident to the conflict with al
    Qaeda and not the conflict with the Taliban, and since al
    Qaeda, unlike Afghanistan, is not a “High Contracting
    Party”—i.e., a signatory of the Conventions, the protec
    tions of those Conventions are not, it is argued, applicable
    to Hamdan.60
       We need not decide the merits of this argument because
    there is at least one provision of the Geneva Conventions
    that applies here even if the relevant conflict is not one
    between signatories.61 Article 3, often referred to as Com
    mon Article 3 because, like Article 2, it appears in all four
    Geneva Conventions, provides that in a “conflict not of an
    international character occurring in the territory of one of
    the High Contracting Parties, each Party62 to the conflict
    shall be bound to apply, as a minimum,” certain provisions
    protecting “[p]ersons taking no active part in the hostili
    ties, including members of armed forces who have laid
    ——————
       60 The President has stated that the conflict with the Taliban is a con
    
    flict to which the Geneva Conventions apply. See White House Memo
    randum, Humane Treatment of Taliban and al Qaeda Detainees 2
    (Feb. 7, 2002), available at http://www.justicescholars.org/pegc/archive/
    White_House/bush_memo_20020207_ed.pdf (hereinafter White House
    Memorandum).
       61 Hamdan observes that Article 5 of the Third Geneva Convention
    
    requires that if there be “any doubt” whether he is entitled to prisoner-
    of-war protections, he must be afforded those protections until his
    status is determined by a “competent tribunal.” 6 U. S. T., at 3324. See
    also Headquarters Depts. of Army, Navy, Air Force, and Marine Corps,
    Army Regulation 190–8, Enemy Prisoners of War, Retained Personnel,
    Civilian Internees and Other Detainees (1997), App. 116. Because we
    hold that Hamdan may not, in any event, be tried by the military
    commission the President has convened pursuant to the November 13
    Order and Commission Order No. 1, the question whether his potential
    status as a prisoner of war independently renders illegal his trial by
    military commission may be reserved.
       62 The term “Party” here has the broadest possible meaning; a Party
    
    need neither be a signatory of the Convention nor “even represent a
    legal entity capable of undertaking international obligations.” GCIII
    Commentary 37.
                     Cite as: 548 U. S. ____ (2006)           67
    
                         Opinion of the Court
    
    down their arms and those placed hors de combat by . . .
    detention.” Id., at 3318. One such provision 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 civilized peo
    ples.” Ibid.
       The Court of Appeals thought, and the Government
    asserts, that Common Article 3 does not apply to Hamdan
    because the conflict with al Qaeda, being “ ‘international in
    scope,’ ” does not qualify as a “ ‘conflict not of an interna
    tional character.’ ” 
    415 F. 3d
    , at 41. That reasoning is
    erroneous. The term “conflict not of an international
    character” is used here in contradistinction to a conflict
    between nations. So much is demonstrated by the “fun
    damental logic [of] the Convention’s provisions on its
    application.” Id., at 44 (Williams, J., concurring). Com
    mon Article 2 provides that “the present Convention shall
    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.” 6 U. S. T., at 3318 (Art. 2, ¶1). High
    Contracting Parties (signatories) also must abide by all
    terms of the Conventions vis-à-vis one another even if one
    party to the conflict is a nonsignatory “Power,” and must
    so abide vis-à-vis the nonsignatory if “the latter accepts
    and applies” those terms. Ibid. (Art. 2, ¶3). Common
    Article 3, by contrast, affords some minimal protection,
    falling short of full protection under the Conventions, to
    individuals associated with neither a signatory nor even a
    nonsignatory “Power” who are involved in a conflict “in the
    territory of” a signatory. The latter kind of conflict is
    distinguishable from the conflict described in Common
    Article 2 chiefly because it does not involve a clash be
    tween nations (whether signatories or not). In context,
    then, the phrase “not of an international character” bears
    its literal meaning. See, e.g., J. Bentham, Introduction to
    68                     HAMDAN v. RUMSFELD
    
                              Opinion of the Court
    
    the Principles of Morals and Legislation 6, 296 (J. Burns &
    H. Hart eds. 1970) (using the term “international law” as a
    “new though not inexpressive appellation” meaning “be
    twixt nation and nation”; defining “international” to in
    clude “mutual transactions between sovereigns as such”);
    Commentary on the Additional Protocols to the Geneva
    Conventions of 12 August 1949, p. 1351 (1987) (“[A] non-
    international armed conflict is distinct from an interna
    tional armed conflict because of the legal status of the
    entities opposing each other”).
       Although the official commentaries accompanying
    Common Article 3 indicate that an important purpose of
    the provision was to furnish minimal protection to rebels
    involved in one kind of “conflict not of an international
    character,” i.e., a civil war, see GCIII Commentary 36–37,
    the commentaries also make clear “that the scope of the
    Article must be as wide as possible,” id., at 36.63 In fact,
    limiting language that would have rendered Common
    Article 3 applicable “especially [to] cases of civil war,
    colonial conflicts, or wars of religion,” was omitted from
    the final version of the Article, which coupled broader
    scope of application with a narrower range of rights than
    did earlier proposed iterations. See GCIII Commentary
    42–43.
    ——————
      63 See also GCIII Commentary 35 (Common Article 3 “has the merit of
    
    being simple and clear. . . . Its observance does not depend upon pre
    liminary discussions on the nature of the conflict”); GCIV Commentary
    51 (“[N]obody in enemy hands can be outside the law”); U. S. Army
    Judge Advocate General’s Legal Center and School, Dept. of the Army,
    Law of War Handbook 144 (2004) (Common Article 3 “serves as a
    ‘minimum yardstick of protection in all conflicts, not just internal
    armed conflicts’ ” (quoting Nicaragua v. United States, 1986 I. C. J. 14,
    ¶218, 25 I. L. M. 1023)); Prosecutor v. Tadić, Case No. IT–94–1, Deci
    sion on the Defence Motion for Interlocutory Appeal on Jurisdiction,
    ¶102 (ICTY App. Chamber, Oct. 2, 1995) (stating that “the character
    of the conflict is irrelevant” in deciding whether Common Article 3
    applies).
                        Cite as: 548 U. S. ____ (2006)                  69
    
                             Opinion of the Court
    
                                  iii
       Common Article 3, then, is applicable here and, as
    indicated above, requires that Hamdan be tried by a
    “regularly constituted court affording all the judicial guar
    antees which are recognized as indispensable by civilized
    peoples.” 6 U. S. T., at 3320 (Art. 3, ¶1(d)). While the
    term “regularly constituted court” is not specifically de
    fined in either Common Article 3 or its accompanying
    commentary, other sources disclose its core meaning. The
    commentary accompanying a provision of the Fourth
    Geneva Convention, for example, defines “ ‘regularly con
    stituted’ ” tribunals to include “ordinary military courts”
    and “definitely exclud[e] all special tribunals.” GCIV
    Commentary 340 (defining the term “properly constituted”
    in Article 66, which the commentary treats as identical to
    “regularly constituted”);64 see also Yamashita, 327 U. S.,
    at 44 (Rutledge, J., dissenting) (describing military com
    mission as a court “specially constituted for a particular
    trial”). And one of the Red Cross’ own treatises defines
    “regularly constituted court” as used in Common Article 3
    to mean “established and organized in accordance with the
    laws and procedures already in force in a country.” Int’l
    Comm. of Red Cross, 1 Customary International Humani
    tarian Law 355 (2005); see also GCIV Commentary 340
    (observing that “ordinary military courts” will “be set up
    in accordance with the recognized principles governing the
    administration of justice”).
       The Government offers only a cursory defense of Ham
    dan’s military commission in light of Common Article 3.
    See Brief for Respondents 49–50. As JUSTICE KENNEDY
    explains, that defense fails because “[t]he regular military
    courts in our system are the courts-martial established by
    ——————
      64 Thecommentary’s assumption that the terms “properly constituted”
    and “regularly constituted” are interchangeable is beyond reproach; the
    French version of Article 66, which is equally authoritative, uses the
    term “régulièrement constitués” in place of “properly constituted.”
    70                     HAMDAN v. RUMSFELD
    
                             Opinion of Sthe Court
                              Opinion of TEVENS, J.
    
    congressional statutes.” Post, at 8 (opinion concurring in
    part). At a minimum, a military commission “can be
    ‘regularly constituted’ by the standards of our military
    justice system only if some practical need explains devia
    tions from court-martial practice.” Post, at 10. As we
    have explained, see Part VI–C, supra, no such need has
    been demonstrated here.65
                                  iv
       Inextricably intertwined with the question of regular
    constitution is the evaluation of the procedures governing
    the tribunal and whether they afford “all the judicial
    guarantees which are recognized as indispensable by
    civilized peoples.” 6 U. S. T., at 3320 (Art. 3, ¶1(d)). Like
    the phrase “regularly constituted court,” this phrase is not
    defined in the text of the Geneva Conventions. But it
    must be understood to incorporate at least the barest of
    those trial protections that have been recognized by cus
    tomary international law. Many of these are described in
    Article 75 of Protocol I to the Geneva Conventions of 1949,
    adopted in 1977 (Protocol I). Although the United States
    declined to ratify Protocol I, its objections were not to
    Article 75 thereof. Indeed, it appears that the Govern
    ment “regard[s] the provisions of Article 75 as an articula
    tion of safeguards to which all persons in the hands of an
    enemy are entitled.” Taft, The Law of Armed Conflict
    After 9/11: Some Salient Features, 28 Yale J. Int’l L. 319,
    322 (2003). Among the rights set forth in Article 75 is the
    “right to be tried in [one’s] presence.” Protocol I, Art.
    75(4)(e).66
    ——————
      65 Further evidence of this tribunal’s irregular constitution is the fact
    
    that its rules and procedures are subject to change midtrial, at the
    whim of the Executive. See Commission Order No. 1, §11 (providing
    that the Secretary of Defense may change the governing rules “from
    time to time”).
      66 Other international instruments to which the United States is a
                          Cite as: 548 U. S. ____ (2006)                     71
    
                              Opinion of STEVENS, J.
    
      We agree with JUSTICE KENNEDY that the procedures
    adopted to try Hamdan deviate from those governing
    courts-martial in ways not justified by any “evident practi
    cal need,” post, at 11, and for that reason, at least, fail to
    afford the requisite guarantees. See post, at 8, 11–17. We
    add only that, as noted in Part VI–A, supra, various provi
    sions of Commission Order No. 1 dispense with the princi
    ples, articulated in Article 75 and indisputably part of the
    customary international law, that an accused must, absent
    disruptive conduct or consent, be present for his trial and
    must be privy to the evidence against him. See §§6(B)(3),
    (D).67 That the Government has a compelling interest in
    ——————
    signatory include the same basic protections set forth in Article 75.
    See, e.g., International Covenant on Civil and Political Rights, Art. 14,
    ¶3(d), Mar. 23, 1976, 999 U. N. T. S. 171 (setting forth the right of an
    accused “[t]o be tried in his presence, and to defend himself in person or
    through legal assistance of his own choosing”). Following World War II,
    several defendants were tried and convicted by military commission for
    violations of the law of war in their failure to afford captives fair trials
    before imposition and execution of sentence. In two such trials, the
    prosecutors argued that the defendants’ failure to apprise accused
    individuals of all evidence against them constituted violations of the
    law of war. See 5 U. N. War Crimes Commission 30 (trial of Sergeant-
    Major Shigeru Ohashi), 75 (trial of General Tanaka Hisakasu).
       67 The Government offers no defense of these procedures other than to
    
    observe that the defendant may not be barred from access to evidence if
    such action would deprive him of a “full and fair trial.” Commission
    Order No. 1, §6(D)(5)(b). But the Government suggests no circum
    stances in which it would be “fair” to convict the accused based on
    evidence he has not seen or heard. Cf. Crawford v. Washington, 
    541 U.S. 36
    , 49 (2004) (“ ‘It is a rule of the common law, founded on natural
    justice, that no man shall be prejudiced by evidence which he had not
    the liberty to cross examine’ ” (quoting State v. Webb, 2 N. C. 103, 104
    (Super. L. & Eq. 1794) (per curiam)); Diaz v. United States, 
    223 U.S. 442
    , 455 (1912) (describing the right to be present as “scarcely less
    important to the accused than the right of trial itself”); Lewis v. United
    States, 
    146 U.S. 370
    , 372 (1892) (exclusion of defendant from part of
    proceedings is “contrary to the dictates of humanity” (internal quota
    tion marks omitted)); Joint Anti-Fascist Refugee Comm. v. McGrath,
    
    341 U.S. 123
    , 170, n. 17, 171 (1951) (Frankfurter, J., concurring) (“[t]he
    72                    HAMDAN v. RUMSFELD
    
                             Opinion of the Court
    
    denying Hamdan access to certain sensitive information is
    not doubted. Cf. post, at 47–48 (THOMAS, J., dissenting).
    But, at least absent express statutory provision to the
    contrary, information used to convict a person of a crime
    must be disclosed to him.
                                 v
       Common Article 3 obviously tolerates a great degree of
    flexibility in trying individuals captured during armed
    conflict; its requirements are general ones, crafted to
    accommodate a wide variety of legal systems. But re
    quirements they are nonetheless. The commission that
    the President has convened to try Hamdan does not meet
    those requirements.
                                VII
      We have assumed, as we must, that the allegations
    made in the Government’s charge against Hamdan are
    true. We have assumed, moreover, the truth of the mes
    sage implicit in that charge—viz., that Hamdan is a dan
    gerous individual whose beliefs, if acted upon, would cause
    great harm and even death to innocent civilians, and who
    would act upon those beliefs if given the opportunity. It
    bears emphasizing that Hamdan does not challenge, and
    we do not today address, the Government’s power to de
    tain him for the duration of active hostilities in order to
    prevent such harm. But in undertaking to try Hamdan
    and subject him to criminal punishment, the Executive is
    bound to comply with the Rule of Law that prevails in this
    jurisdiction.
      The judgment of the Court of Appeals is reversed, and
    —————— 
    
    plea that evidence of guilt must be secret is abhorrent to free men”
    
    (internal quotation marks omitted)). More fundamentally, the legality
    
    of a tribunal under Common Article 3 cannot be established by bare 
    
    assurances that, whatever the character of the court or the procedures 
    
    it follows, individual adjudicators will act fairly. 
    
                     Cite as: 548 U. S. ____ (2006)                 73
    
                         Opinion of the Court
    
    the case is remanded for further proceedings.
    
                                                      It is so ordered.
    
      THE CHIEF JUSTICE took no part in the consideration or
    decision of this case.
                     Cite as: 548 U. S. ____ (2006)          1
    
                        BREYER, J., concurring
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 05–184
                             _________________
    
    
     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 BREYER, with whom JUSTICE KENNEDY,
    JUSTICE SOUTER, and JUSTICE GINSBURG join, concurring.
       The dissenters say that today’s decision would “sorely
    hamper the President’s ability to confront and defeat a
    new and deadly enemy.” Post, at 29 (opinion of THOMAS,
    J.). They suggest that it undermines our Nation’s ability
    to “preven[t] future attacks” of the grievous sort that we
    have already suffered. Post, at 48. That claim leads me to
    state briefly what I believe the majority sets forth both
    explicitly and implicitly at greater length. The Court’s
    conclusion ultimately rests upon a single ground: Congress
    has not issued the Executive a “blank check.” Cf. Hamdi
    v. Rumsfeld, 
    542 U.S. 507
    , 536 (2004) (plurality opinion).
    Indeed, Congress has denied the President the legisla-
    tive authority to create military commissions of the kind
    at issue here. Nothing prevents the President from re
    turning to Congress to seek the authority he believes
    necessary.
       Where, as here, no emergency prevents consultation
    with Congress, judicial insistence upon that consultation
    does not weaken our Nation’s ability to deal with danger.
    To the contrary, that insistence strengthens the Nation’s
    ability to determine—through democratic means—how
    best to do so. The Constitution places its faith in those
    democratic means. Our Court today simply does the same.
                      Cite as: 548 U. S. ____ (2006)            1
    
                     KENNEDY, J., concurring in part
    
    SUPREME COURT OF THE UNITED STATES
                              _________________
    
                               No. 05–184
                              _________________
    
    
     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 KENNEDY, with whom JUSTICE SOUTER,
    JUSTICE GINSBURG, and JUSTICE BREYER join as to Parts I
    and II, concurring in part.
       Military Commission Order No. 1, which governs the
    military commission established to try petitioner Salim
    Hamdan for war crimes, exceeds limits that certain stat
    utes, duly enacted by Congress, have placed on the Presi
    dent’s authority to convene military courts. This is not a
    case, then, where the Executive can assert some unilateral
    authority to fill a void left by congressional inaction. It is
    a case where Congress, in the proper exercise of its powers
    as an independent branch of government, and as part of a
    long tradition of legislative involvement in matters of
    military justice, has considered the subject of military
    tribunals and set limits on the President’s authority.
    Where a statute provides the conditions for the exercise of
    governmental power, its requirements are the result of a
    deliberative and reflective process engaging both of the
    political branches. Respect for laws derived from the
    customary operation of the Executive and Legislative
    Branches gives some assurance of stability in time of
    crisis. The Constitution is best preserved by reliance on
    standards tested over time and insulated from the pres
    sures of the moment.
       These principles seem vindicated here, for a case that
    2                  HAMDAN v. RUMSFELD
    
                     KENNEDY, J., concurring in part
    
    may be of extraordinary importance is resolved by ordi
    nary rules. The rules of most relevance here are those
    pertaining to the authority of Congress and the interpre
    tation of its enactments.
       It seems appropriate to recite these rather fundamental
    points because the Court refers, as it should in its exposi
    tion of the case, to the requirement of the Geneva Conven
    tions of 1949 that military tribunals be “regularly consti
    tuted” ante, at 69—a requirement that controls here, if for
    no other reason, because Congress requires that military
    commissions like the ones at issue conform to the “law of
    war,” 
    10 U.S. C
    . §821. Whatever the substance and con
    tent of the term “regularly constituted” as interpreted in
    this and any later cases, there seems little doubt that it
    relies upon the importance of standards deliberated upon
    and chosen in advance of crisis, under a system where the
    single power of the Executive is checked by other constitu
    tional mechanisms. All of which returns us to the point of
    beginning—that domestic statutes control this case. If
    Congress, after due consideration, deems it appropriate to
    change the controlling statutes, in conformance with the
    Constitution and other laws, it has the power and preroga
    tive to do so.
       I join the Court’s opinion, save Parts V and VI–D–iv. To
    state my reasons for this reservation, and to show my
    agreement with the remainder of the Court’s analysis by
    identifying particular deficiencies in the military commis
    sions at issue, this separate opinion seems appropriate.
                                  I
      Trial by military commission raises separation-of
    powers concerns of the highest order. Located within a
    single branch, these courts carry the risk that offenses will
    be defined, prosecuted, and adjudicated by executive
    officials without independent review. Cf. Loving v. United
    States, 
    517 U.S. 748
    , 756–758, 760 (1996). Concentration of
                      Cite as: 548 U. S. ____ (2006)             3
    
                     KENNEDY, J., concurring in part
    
    power puts personal liberty in peril of arbitrary action by
    officials, an incursion the Constitution’s three-part system is
    designed to avoid. It is imperative, then, that when military
    tribunals are established, full and proper authority exists
    for the Presidential directive.
       The proper framework for assessing whether Executive
    actions are authorized is the three-part scheme used by
    Justice Jackson in his opinion in Youngstown Sheet & Tube
    Co. v. Sawyer, 
    343 U.S. 579
     (1952). “When the President
    acts pursuant to an express or implied authorization of
    Congress, his authority is at its maximum, for it includes all
    that he possesses in his own right plus all that Congress can
    delegate.” Id., at 635. “When the President acts in absence
    of either a congressional grant or denial of authority, he can
    only rely upon his own independent powers, but there is a
    zone of twilight in which he and Congress may have concur
    rent authority, or in which its distribution is uncertain.”
    Id., at 637. And “[w]hen the President takes measures
    incompatible with the expressed or implied will of Congress,
    his power is at its lowest ebb.” Ibid.
       In this case, as the Court observes, the President has
    acted in a field with a history of congressional participa
    tion and regulation. Ante, at 28–30, 55–57. In the Uni
    form Code of Military Justice (UCMJ), 
    10 U.S. C
    . §801 et
    seq., which Congress enacted, building on earlier statutes,
    in 1950, see Act of May 5, 1950, ch. 169, 64 Stat. 107, and
    later amended, see, e.g., Military Justice Act of 1968, 82
    Stat. 1335, Congress has set forth governing principles for
    military courts. The UCMJ as a whole establishes an
    intricate system of military justice. It authorizes courts-
    martial in various forms, 
    10 U.S. C
    . §§816–820 (2000 ed.
    and Supp. III); it regulates the organization and procedure
    of those courts, e.g., §§822–835, 851–854; it defines of
    fenses, §§877–934, and rights for the accused, e.g.,
    §§827(b)–(c), 831, 844, 846, 855 (2000 ed.); and it provides
    mechanisms for appellate review, §§859–876b (2000 ed.
    4                  HAMDAN v. RUMSFELD
    
                    KENNEDY, J., concurring in part
    
    and Supp. III). As explained below, the statute further
    recognizes that special military commissions may be
    convened to try war crimes. See infra, at 5–6; §821 (2000
    ed.). While these laws provide authority for certain forms
    of military courts, they also impose limitations, at least
    two of which control this case. If the President has ex
    ceeded these limits, this becomes a case of conflict between
    Presidential and congressional action—a case within
    Justice Jackson’s third category, not the second or first.
      One limit on the President’s authority is contained in
    §836 of the UCMJ. That section provides:
        “(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 regu
        lations 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.
        “(b) All rules and regulations made under this article
        shall be uniform insofar as practicable.” 
    10 U.S. C
    .
        §836 (2000 ed.).
    In this provision the statute allows the President to im
    plement and build on the UCMJ’s framework by adopting
    procedural regulations, subject to three requirements: (1)
    Procedures for military courts must conform to district-
    court rules insofar as the President “considers practica
    ble”; (2) the procedures may not be contrary to or inconsis
    tent with the provisions of the UCMJ; and (3) “insofar as
    practicable” all rules and regulations under §836 must be
    uniform, a requirement, as the Court points out, that
    indicates the rules must be the same for military commis
    sions as for courts-martial unless such uniformity is im
                      Cite as: 548 U. S. ____ (2006)             5
    
                     KENNEDY, J., concurring in part
    
    practicable, ante, at 57, 59, and n. 50.
       As the Court further instructs, even assuming the first
    and second requirements of §836 are satisfied here—a
    matter of some dispute, see ante, at 57–59—the third
    requires us to compare the military-commission proce
    dures with those for courts-martial and determine, to the
    extent there are deviations, whether greater uniformity
    would be practicable. Ante, at 59–62. Although we can
    assume the President’s practicability judgments are enti
    tled to some deference, the Court observes that Congress’
    choice of language in the uniformity provision of 
    10 U.S. C
    . §836(b) contrasts with the language of §836(a).
    This difference suggests, at the least, a lower degree of
    deference for §836(b) determinations. Ante, at 59–60. The
    rules for military courts may depart from federal-court
    rules whenever the President “considers” conformity im
    practicable, §836(a); but the statute requires procedural
    uniformity across different military courts “insofar as
    [uniformity is] practicable,” §836(b), not insofar as the
    President considers it to be so. The Court is right to con
    clude this is of relevance to our decision. Further, as the
    Court is also correct to conclude, ante, at 60, the term
    “practicable” cannot be construed to permit deviations
    based on mere convenience or expedience. “Practicable”
    means “feasible,” that is, “possible to practice or perform”
    or “capable of being put into practice, done, or accom
    plished.” Webster’s Third New International Dictionary
    1780 (1961). Congress’ chosen language, then, is best
    understood to allow the selection of procedures based on
    logistical constraints, the accommodation of witnesses, the
    security of the proceedings, and the like. Insofar as the
    “[p]retrial, trial, and post-trial procedures” for the military
    commissions at issue deviate from court-martial practice,
    the deviations must be explained by some such practical
    need.
       In addition to §836, a second UCMJ provision, 10
    6                   HAMDAN v. RUMSFELD
    
                     KENNEDY, J., concurring in part
    
    U. S. C. §821, requires us to compare the commissions at
    issue to courts-martial. This provision states:
        “The provisions of this chapter conferring jurisdiction
        upon courts-martial do not deprive military commis
        sions, provost courts, or other military tribunals of
        concurrent jurisdiction with respect to offenders or of
        fenses that by statute or by the law of war may be
        tried by military commissions, provost courts, or other
        military tribunals.”
       In §821 Congress has addressed the possibility that
    special military commissions—criminal courts other than
    courts-martial—may at times be convened. At the same
    time, however, the President’s authority to convene mili
    tary commissions is limited: It extends only to “offenders
    or offenses” that “by statute or by the law of war may be
    tried by” such military commissions. Ibid.; see also ante,
    at 28–29. The Government does not claim to base the
    charges against Hamdan on a statute; instead it invokes
    the law of war. That law, as the Court explained in Ex
    parte Quirin, 
    317 U.S. 1
     (1942), derives from “rules and
    precepts of the law of nations”; it is the body of international
    law governing armed conflict. Id., at 28. If the military
    commission at issue is illegal under the law of war, then
    an offender cannot be tried “by the law of war” before that
    commission.
       The Court is correct to concentrate on one provision of
    the law of war that is applicable to our Nation’s armed
    conflict with al Qaeda in Afghanistan and, as a result, to
    the use of a military commission to try Hamdan. Ante, at
    65–70; see also 
    415 F.3d 33
    , 44 (CADC 2005) (Williams,
    J., concurring). That provision is Common Article 3 of the
    four Geneva Conventions of 1949. It prohibits, as relevant
    here, “[t]he passing of sentences and the carrying out of
    executions without previous judgment pronounced by a
    regularly constituted court affording all the judicial guar
                     Cite as: 548 U. S. ____ (2006)            7
    
                     KENNEDY, J., concurring in part
    
    antees which are recognized as indispensable by civilized
    peoples.” See, e.g., Article 3 of the Geneva Convention
    (III) Relative to the Treatment of Prisoners of War, Aug.
    12, 1949, [1955] 6 U. S. T. 3316, 3318, T. I. A. S. No. 3364.
    The provision is part of a treaty the United States has
    ratified and thus accepted as binding law. See id., at
    3316. By Act of Congress, moreover, violations of Common
    Article 3 are considered “war crimes,” punishable as fed
    eral offenses, when committed by or against United States
    nationals and military personnel. See 
    18 U.S. C
    . §2441.
    There should be no doubt, then, that Common Article 3 is
    part of the law of war as that term is used in §821.
       The dissent by JUSTICE THOMAS argues that Common
    Article 3 nonetheless is irrelevant to this case because in
    Johnson v. Eisentrager, 
    339 U.S. 763
     (1950), it was said to
    be the “obvious scheme” of the 1929 Geneva Convention
    that “[r]ights of alien enemies are vindicated under it only
    through protests and intervention of protecting powers,”
    i.e., signatory states, id., at 789, n. 14. As the Court ex
    plains, ante, at 63–65, this language from Eisentrager is
    not controlling here. Even assuming the Eisentrager
    analysis has some bearing upon the analysis of the
    broader 1949 Conventions and that, in consequence, rights
    are vindicated “under [those Conventions]” only through
    protests and intervention, 339 U. S., at 789, n. 14, Com
    mon Article 3 is nonetheless relevant to the question of
    authorization under §821. Common Article 3 is part of the
    law of war that Congress has directed the President to
    follow in establishing military commissions. Ante, at 66–
    67. Consistent with that view, the Eisentrager Court itself
    considered on the merits claims that “procedural irregu
    larities” under the 1929 Convention “deprive[d] the Mili
    tary Commission of jurisdiction.” 339 U. S., at 789, 790.
       In another military commission case, In re Yamashita,
    
    327 U.S. 1
     (1946), the Court likewise considered on the
    merits—without any caveat about remedies under the
    8                  HAMDAN v. RUMSFELD
    
                    KENNEDY, J., concurring in part
    
    Convention—a claim that an alleged violation of the 1929
    Convention “establish[ed] want of authority in the com
    mission to proceed with the trial.” Id., at 23, 24. That is
    the precise inquiry we are asked to perform here.
       Assuming the President has authority to establish a
    special military commission to try Hamdan, the commis
    sion must satisfy Common Article 3’s requirement of a
    “regularly constituted court affording all the judicial guar
    antees which are recognized as indispensable by civilized
    peoples,” 6 U. S. T., at 3318. The terms of this general
    standard are yet to be elaborated and further defined, but
    Congress has required compliance with it by referring to
    the “law of war” in §821. The Court correctly concludes
    that the military commission here does not comply with
    this provision.
       Common Article 3’s standard of a “regularly constituted
    court affording all the judicial guarantees which are rec
    ognized as indispensable by civilized peoples,” ibid., sup
    ports, at the least, a uniformity principle similar to that
    codified in §836(b). The concept of a “regularly constituted
    court” providing “indispensable” judicial guarantees re
    quires consideration of the system of justice under which
    the commission is established, though no doubt certain
    minimum standards are applicable. See ante, at 69–70; 1
    Int’l Committee of the Red Cross, Customary Interna
    tional Humanitarian Law 355 (2005) (explaining that
    courts are “regularly constituted” under Common Article 3
    if they are “established and organised in accordance with
    the laws and procedures already in force in a country”).
       The regular military courts in our system are the courts-
    martial established by congressional statutes. Acts of
    Congress confer on those courts the jurisdiction to try “any
    person” subject to war crimes prosecution. 
    10 U.S. C
    .
    §818. As the Court explains, moreover, while special
    military commissions have been convened in previous
    armed conflicts—a practice recognized in §821—those
                      Cite as: 548 U. S. ____ (2006)             9
    
                     KENNEDY, J., concurring in part
    
    military commissions generally have adopted the struc
    ture and procedure of courts-martial. See, e.g., 1 The War
    of the Rebellion: A Compilation of the Official Records of
    the Union and Confederate Armies 248 (2d series 1894)
    (Civil War general order requiring that military commis
    sions “be constituted in a similar manner and their pro
    ceedings be conducted according to the same general rules
    as courts-martial in order to prevent abuses which might
    otherwise arise”); W. Winthrop, Military Law and Prece
    dents 835, n. 81 (rev. 2d ed. 1920) (“[M]ilitary commissions
    are constituted and composed, and their proceedings are
    conducted, similarly to general courts-martial”); 1 United
    Nations War Crimes Commission, Law Reports of Trials of
    War Criminals 116–117 (1947) (reprint 1997) (hereinafter
    Law Reports) (discussing post-World War II regulations
    requiring that military commissions “hav[e] regard for”
    rules of procedure and evidence applicable in general
    courts-martial); see also ante, at 53–57; post, at 31, n. 15
    (THOMAS, J., dissenting). Today, moreover, §836(b)—
    which took effect after the military trials in the World War
    II cases invoked by the dissent, see Madsen v. Kinsella, 
    343 U.S. 341
    , 344–345, and n. 6 (1952); Yamashita, supra, at 5;
    Quirin, 317 U. S., at 23—codifies this presumption of uni
    formity at least as to “[p]retrial, trial, and post-trial proce
    dures.” Absent more concrete statutory guidance, this
    historical and statutory background—which suggests that
    some practical need must justify deviations from the
    court-martial model—informs the understanding of which
    military courts are “regularly constituted” under United
    States law.
       In addition, whether or not the possibility, contemplated
    by the regulations here, of midtrial procedural changes
    could by itself render a military commission impermissibly
    irregular, ante, at 70, n. 65; see also Military Commission
    Order No. 1, §11 (Aug. 31, 2005), App. to Brief for Peti
    tioner 46a–72a (hereinafter MCO), an acceptable degree of
    10                 HAMDAN v. RUMSFELD
    
                     KENNEDY, J., concurring in part
    
    independence from the Executive is necessary to render a
    commission “regularly constituted” by the standards of our
    Nation’s system of justice. And any suggestion of Execu
    tive power to interfere with an ongoing judicial process
    raises concerns about the proceedings’ fairness. Again,
    however, courts-martial provide the relevant benchmark.
    Subject to constitutional limitations, see Ex parte Milligan,
    
    4 Wall. 2
     (1866), Congress has the power and responsibility
    to determine the necessity for military courts, and to
    provide the jurisdiction and procedures applicable to them.
    The guidance Congress has provided with respect to
    courts-martial indicates the level of independence and
    procedural rigor that Congress has deemed necessary, at
    least as a general matter, in the military context.
       At a minimum a military commission like the one at
    issue—a commission specially convened by the President
    to try specific persons without express congressional au
    thorization—can be “regularly constituted” by the stan
    dards of our military justice system only if some practical
    need explains deviations from court-martial practice. In
    this regard the standard of Common Article 3, applied
    here in conformity with §821, parallels the practicability
    standard of §836(b). Section 836, however, is limited by
    its terms to matters properly characterized as proce
    dural—that is, “[p]retrial, trial, and post-trial proce
    dures”—while Common Article 3 permits broader consid
    eration of matters of structure, organization, and
    mechanisms to promote the tribunal’s insulation from
    command influence. Thus the combined effect of the two
    statutes discussed here—§§836 and 821—is that consid
    erations of practicability must support departures from
    court-martial practice. Relevant concerns, as noted ear
    lier, relate to logistical constraints, accommodation of
    witnesses, security of the proceedings, and the like, not
    mere expedience or convenience. This determination, of
    course, must be made with due regard for the constitu
                     Cite as: 548 U. S. ____ (2006)          11
    
                    KENNEDY, J., concurring in part
    
    tional principle that congressional statutes can be control
    ling, including the congressional direction that the law of
    war has a bearing on the determination.
       These principles provide the framework for an analysis
    of the specific military commission at issue here.
                                  II
       In assessing the validity of Hamdan’s military commis
    sion the precise circumstances of this case bear emphasis.
    The allegations against Hamdan are undoubtedly serious.
    Captured in Afghanistan during our Nation’s armed con
    flict with the Taliban and al Qaeda—a conflict that con
    tinues as we speak—Hamdan stands accused of overt acts
    in furtherance of a conspiracy to commit terrorism: deliv
    ering weapons and ammunition to al Qaeda, acquiring
    trucks for use by Osama bin Laden’s bodyguards, provid
    ing security services to bin Laden, and receiving weapons
    training at a terrorist camp. App. to Pet. for Cert. 65a–
    67a. Nevertheless, the circumstances of Hamdan’s trial
    present no exigency requiring special speed or precluding
    careful consideration of evidence. For roughly four years,
    Hamdan has been detained at a permanent United States
    military base in Guantanamo Bay, Cuba. And regardless
    of the outcome of the criminal proceedings at issue, the
    Government claims authority to continue to detain him
    based on his status as an enemy combatant.
       Against this background, the Court is correct to con
    clude that the military commission the President has
    convened to try Hamdan is unauthorized. Ante, at 62, 69–
    70, 72. The following analysis, which expands on the
    Court’s discussion, explains my reasons for reaching this
    conclusion.
       To begin with, the structure and composition of the
    military commission deviate from conventional court-
    martial standards. Although these deviations raise ques
    tions about the fairness of the trial, no evident practical
    12                 HAMDAN v. RUMSFELD
    
                     KENNEDY, J., concurring in part
    
    need explains them.
       Under the UCMJ, courts-martial are organized by a
    “convening authority”—either a commanding officer, the
    Secretary of Defense, the Secretary concerned, or the
    President. 
    10 U.S. C
    . §§822–824 (2000 ed. and Supp. III).
    The convening authority refers charges for trial, Manual
    for Courts-Martial, United States, Rule for Courts-Martial
    401 (2005 ed.) (hereinafter R. C. M.), and selects the court-
    martial members who vote on the guilt or innocence of the
    accused and determine the sentence, 
    10 U.S. C
    .
    §§825(d)(2), 851–852 (2000 ed.); R. C. M. 503(a). Parallel
    ing this structure, under Military Commission Order No. 1
    an “ ‘Appointing Authority’ ”—either the Secretary of De
    fense or the Secretary’s “designee”—establishes commis
    sions subject to the order, MCO No. 1, §2, approves and
    refers charges to be tried by those commissions,
    §4(B)(2)(a), and appoints commission members who vote
    on the conviction and sentence, §§4(A)(1–3). In addition
    the Appointing Authority determines the number of com
    mission members (at least three), oversees the chief prose
    cutor, provides “investigative or other resources” to the
    defense insofar as he or she “deems necessary for a full
    and fair trial,” approves or rejects plea agreements, ap
    proves or disapproves communications with news media
    by prosecution or defense counsel (a function shared by
    the General Counsel of the Department of Defense), and
    issues supplementary commission regulations (subject to
    approval by the General Counsel of the Department of
    Defense, unless the Appointing Authority is the Secretary
    of Defense). See MCO No. 1, §§4(A)(2), 5(H), 6(A)(4), 7(A);
    Military Commission Instruction No. 3, §5(C) (July 15,
    2005)     (hereinafter    MCI),    available     at    www.
    defenselink.mil/news/Aug2005/d20050811MC13.pdf; MCI
    No. 4, §5(C) (Sept. 16, 2005), available at www.
    defenselink.mil/news/Oct2005/d20051003MCI4.pdf          MCI
    No. 6, §3(B)(3) (April 15, 2004), available at www.
                     Cite as: 548 U. S. ____ (2006)           13
    
                     KENNEDY, J., concurring in part
    
    defenselink.mil/news/Apr2004/d20040420ins6.pdf (all In
    ternet materials as visited June 27, 2006, and available in
    Clerk of Court’s case file).
      Against the background of these significant powers for
    the Appointing Authority, which in certain respects at
    least conform to ordinary court-martial standards, the
    regulations governing the commissions at issue make
    several noteworthy departures.        At a general court-
    martial—the only type authorized to impose penalties of
    more than one year’s incarceration or to adjudicate of
    fenses against the law of war, R. C. M. 201(f); 
    10 U.S. C
    .
    §§818–820 (2000 ed. and Supp. III)—the presiding officer
    who rules on legal issues must be a military judge.
    R. C. M. 501(a)(1), 801(a)(4)–(5); 
    10 U.S. C
    . §816(1) (2000
    ed., Supp. III); see also R. C. M. 201(f)(2)(B)(ii) (likewise
    requiring a military judge for certain other courts-
    martial); 
    10 U.S. C
    . §819 (2000 ed. and Supp. III) (same).
    A military judge is an officer who is a member of a state or
    federal bar and has been specially certified for judicial
    duties by the Judge Advocate General for the officer’s
    Armed Service. R. C. M. 502(c); 
    10 U.S. C
    . §826(b). To
    protect their independence, military judges at general
    courts-martial are “assigned and directly responsible to
    the Judge Advocate General or the Judge Advocate Gen
    eral’s designee.” R. C. M. 502(c). They must be detailed to
    the court, in accordance with applicable regulations, “by a
    person assigned as a military judge and directly responsi
    ble to the Judge Advocate General or the Judge Advocate
    General’s designee.” R. C. M. 503(b); see also 
    10 U.S. C
    .
    §826(c); see generally Weiss v. United States, 
    510 U.S. 163
    ,
    179–181 (1994) (discussing provisions that “insulat[e] mili
    tary judges from the effects of command influence” and thus
    “preserve judicial impartiality”). Here, by contrast, the
    Appointing Authority selects the presiding officer, MCO
    No. 1, §§4(A)(1), (A)(4); and that officer need only be a
    judge advocate, that is, a military lawyer, §4(A)(4).
    14                 HAMDAN v. RUMSFELD
    
                     KENNEDY, J., concurring in part
    
       The Appointing Authority, moreover, exercises supervi
    sory powers that continue during trial. Any interlocutory
    question “the disposition of which would effect a termina
    tion of proceedings with respect to a charge” is subject to
    decision not by the presiding officer, but by the Appointing
    Authority. §4(A)(5)(e) (stating that the presiding officer
    “shall certify” such questions to the Appointing Authority).
    Other interlocutory questions may be certified to the
    Appointing Authority as the presiding officer “deems
    appropriate.” Ibid. While in some circumstances the
    Government may appeal certain rulings at a court-
    martial—including “an order or ruling that terminates the
    proceedings with respect to a charge or specification,”
    R. C. M. 908(a); see also 
    10 U.S. C
    . §862(a)—the appeals
    go to a body called the Court of Criminal Appeals, not to
    the convening authority. R. C. M. 908; 
    10 U.S. C
    . §862(b);
    see also R. C. M. 1107 (requiring the convening authority
    to approve or disapprove the findings and sentence of a
    court-martial but providing for such action only after
    entry of sentence and restricting actions that increase
    penalties); 
    10 U.S. C
    . §860 (same); cf. §837(a) (barring
    command influence on court-martial actions). The Court
    of Criminal Appeals functions as the military’s intermedi
    ate appeals court; it is established by the Judge Advocate
    General for each Armed Service and composed of appellate
    military judges. R. C. M. 1203; 
    10 U.S. C
    . §866. This is
    another means in which, by structure and tradition, the
    court-martial process is insulated from those who have an
    interest in the outcome of the proceedings.
       Finally, in addition to these powers with respect to the
    presiding officer, the Appointing Authority has greater
    flexibility in appointing commission members. While a
    general court-martial requires, absent a contrary election
    by the accused, at least five members, R. C. M. 501(a)(1);
    
    10 U.S. C
    . §816(1) (2000 ed. and Supp. III), the Appoint
    ing Authority here is free, as noted earlier, to select as few
                     Cite as: 548 U. S. ____ (2006)           15
    
                     KENNEDY, J., concurring in part
    
    as three. MCO No. 1, §4(A)(2). This difference may affect
    the deliberative process and the prosecution’s burden of
    persuasion.
       As compared to the role of the convening authority in a
    court-martial, the greater powers of the Appointing Au
    thority here—including even the resolution of dispositive
    issues in the middle of the trial—raise concerns that the
    commission’s decisionmaking may not be neutral. If the
    differences are supported by some practical need beyond
    the goal of constant and ongoing supervision, that need is
    neither apparent from the record nor established by the
    Government’s submissions.
       It is no answer that, at the end of the day, the Detainee
    Treatment Act of 2005 (DTA), 119 Stat. 2739, affords
    military-commission defendants the opportunity for judi
    cial review in federal court. As the Court is correct to
    observe, the scope of that review is limited, DTA
    §1005(e)(3)(D), id., at 2743; see also ante, at 8–9, and the
    review is not automatic if the defendant’s sentence is
    under 10 years, §1005(e)(3)(B), ibid. Also, provisions for
    review of legal issues after trial cannot correct for struc
    tural defects, such as the role of the Appointing Authority,
    that can cast doubt on the factfinding process and the
    presiding judge’s exercise of discretion during trial. Before
    military-commission defendants may obtain judicial re
    view, furthermore, they must navigate a military review
    process that again raises fairness concerns. At the outset,
    the Appointing Authority (unless the Appointing Author
    ity is the Secretary of Defense) performs an “administra
    tive review” of undefined scope, ordering any “supplemen
    tary proceedings” deemed necessary. MCO No. 1 §6(H)(3).
    After that the case is referred to a three-member
    Review Panel composed of officers selected by the
    Secretary of Defense. §6(H)(4); MCI No. 9, §4(B) (Oct. 11,
    2005), available at www.defenselink.mil/news/Oct2005/
    d20051014MCI9.pdf.        Though the Review Panel may
    16                 HAMDAN v. RUMSFELD
    
                    KENNEDY, J., concurring in part
    
    return the case for further proceedings only if a majority
    “form[s] a definite and firm conviction that a material
    error of law occurred,” MCO No. 1, §6(H)(4); MCI No. 9,
    §4(C)(1)(a), only one member must have “experience as a
    judge,” MCO No. 1, §6(H)(4); nothing in the regulations
    requires that other panel members have legal training.
    By comparison to the review of court-martial judgments
    performed by such independent bodies as the Judge Advo
    cate General, the Court of Criminal Appeals, and the
    Court of Appeals for the Armed Forces, 
    10 U.S. C
    . §§862,
    864, 866, 867, 869, the review process here lacks struc
    tural protections designed to help ensure impartiality.
       These structural differences between the military com
    missions and courts-martial—the concentration of func
    tions, including legal decisionmaking, in a single executive
    official; the less rigorous standards for composition of the
    tribunal; and the creation of special review procedures in
    place of institutions created and regulated by Congress—
    remove safeguards that are important to the fairness of
    the proceedings and the independence of the court. Con
    gress has prescribed these guarantees for courts-martial;
    and no evident practical need explains the departures
    here. For these reasons the commission cannot be consid
    ered regularly constituted under United States law and
    thus does not satisfy Congress’ requirement that military
    commissions conform to the law of war.
       Apart from these structural issues, moreover, the basic
    procedures for the commissions deviate from procedures
    for courts-martial, in violation of §836(b). As the Court
    explains, ante, at 51, 61, the Military Commission Order
    abandons the detailed Military Rules of Evidence, which
    are modeled on the Federal Rules of Evidence in confor
    mity with §836(a)’s requirement of presumptive compli
    ance with district-court rules.
       Instead, the order imposes just one evidentiary rule:
    “Evidence shall be admitted if . . . the evidence would have
                     Cite as: 548 U. S. ____ (2006)         17
    
                    KENNEDY, J., concurring in part
    
    probative value to a reasonable person,” MCO No. 1,
    §6(D)(1). Although it is true some military commissions
    applied an amorphous evidence standard in the past, see,
    e.g., 1 Law Reports 117–118 (discussing World War II
    military commission orders); Exec. Order No. 9185, 7 Fed.
    Reg. 5103 (1942) (order convening military commission to
    try Nazi saboteurs), the evidentiary rules for those com
    missions were adopted before Congress enacted the uni
    formity requirement of 
    10 U.S. C
    . §836(b) as part of the
    UCMJ, see Act of May 5, 1950, ch. 169, 64 Stat. 107, 120,
    149. And while some flexibility may be necessary to per
    mit trial of battlefield captives like Hamdan, military
    statutes and rules already provide for introduction of
    deposition testimony for absent witnesses, 
    10 U.S. C
    .
    §849(d); R. C. M. 702, and use of classified information,
    Military Rule Evid. 505. Indeed, the deposition-testimony
    provision specifically mentions military commissions and
    thus is one of the provisions the Government concedes
    must be followed by the commission at issue. See ante, at
    58. That provision authorizes admission of deposition
    testimony only if the witness is absent for specified rea
    sons, §849(d)—a requirement that makes no sense if
    military commissions may consider all probative evidence.
    Whether or not this conflict renders the rules at issue
    “contrary to or inconsistent with” the UCMJ under
    §836(a), it creates a uniformity problem under §836(b).
       The rule here could permit admission of multiple hear
    say and other forms of evidence generally prohibited on
    grounds of unreliability. Indeed, the commission regula
    tions specifically contemplate admission of unsworn writ
    ten statements, MCO No. 1, §6(D)(3); and they make no
    provision for exclusion of coerced declarations save those
    “established to have been made as a result of torture,”
    MCI No. 10, §3(A) (Mar. 24, 2006), available at www.
    defenselink.mil/news/Mar2006/d20060327MCI10.pdf; cf.
    Military Rule Evid. 304(c)(3) (generally barring use of
    18                 HAMDAN v. RUMSFELD
    
                    KENNEDY, J., concurring in part
    
    statements obtained “through the use of coercion, unlaw
    ful influence, or unlawful inducement”); 
    10 U.S. C
    .
    §831(d) (same). Besides, even if evidence is deemed non-
    probative by the presiding officer at Hamdan’s trial, the
    military-commission members still may view it. In an
    other departure from court-martial practice the military
    commission members may object to the presiding officer’s
    evidence rulings and determine themselves, by majority
    vote, whether to admit the evidence. MCO No. 1, §6(D)(1);
    cf. R. C. M. 801(a)(4), (e)(1) (providing that the military
    judge at a court-martial determines all questions of law).
       As the Court explains, the Government has made no
    demonstration of practical need for these special rules and
    procedures, either in this particular case or as to the
    military commissions in general, ante, at 59–61; nor is any
    such need self-evident. For all the Government’s regula
    tions and submissions reveal, it would be feasible for most,
    if not all, of the conventional military evidence rules and
    procedures to be followed.
       In sum, as presently structured, Hamdan’s military
    commission exceeds the bounds Congress has placed on
    the President’s authority in §§836 and 821 of the UCMJ.
    Because Congress has prescribed these limits, Congress
    can change them, requiring a new analysis consistent with
    the Constitution and other governing laws. At this time,
    however, we must apply the standards Congress has
    provided. By those standards the military commission is
    deficient.
                                III
      In light of the conclusion that the military commission
    here is unauthorized under the UCMJ, I see no need to
    consider several further issues addressed in the plurality
    opinion by JUSTICE STEVENS and the dissent by JUSTICE
    THOMAS.
      First, I would not decide whether Common Article 3’s
                     Cite as: 548 U. S. ____ (2006)           19
    
                     KENNEDY, J., concurring in part
    
    standard—a “regularly constituted court affording all the
    judicial guarantees which are recognized as indispensable
    by civilized peoples,” 6 U. S. T., at 3320 (¶(1)(d))—
    necessarily requires that the accused have the right to be
    present at all stages of a criminal trial. As JUSTICE
    STEVENS explains, Military Commission Order No. 1
    authorizes exclusion of the accused from the proceedings if
    the presiding officer determines that, among other things,
    protection of classified information so requires.         See
    §§6(B)(3), (D)(5); ante, at 50. JUSTICE STEVENS observes
    that these regulations create the possibility of a conviction
    and sentence based on evidence Hamdan has not seen or
    heard—a possibility the plurality is correct to consider
    troubling. Ante, at 71–72, n. 67 (collecting cases); see also
    In re Oliver, 
    333 U.S. 257
    , 277 (1948) (finding “no support
    for sustaining petitioner’s conviction of contempt of court
    upon testimony given in petitioner’s absence”).
      As the dissent by JUSTICE THOMAS points out, however,
    the regulations bar the presiding officer from admitting
    secret evidence if doing so would deprive the accused of a
    “full and fair trial.” MCO No. 1, §6(D)(5)(b); see also post,
    at 47. This fairness determination, moreover, is unambi
    guously subject to judicial review under the DTA. See
    §1005(e)(3)(D)(i), 119 Stat. 2743 (allowing review of com
    pliance with the “standards and procedures” in Military
    Commission Order No. 1). The evidentiary proceedings at
    Hamdan’s trial have yet to commence, and it remains to be
    seen whether he will suffer any prejudicial exclusion.
      There should be reluctance, furthermore, to reach un
    necessarily the question whether, as the plurality seems to
    conclude, ante, at 70, Article 75 of Protocol I to the Geneva
    Conventions is binding law notwithstanding the earlier
    decision by our Government not to accede to the Protocol.
    For all these reasons, and without detracting from the
    importance of the right of presence, I would rely on other
    deficiencies noted here and in the opinion by the Court—
    20                HAMDAN v. RUMSFELD
    
                    KENNEDY, J., concurring in part
    
    deficiencies that relate to the structure and procedure of
    the commission and that inevitably will affect the proceed
    ings—as the basis for finding the military commissions
    lack authorization under 
    10 U.S. C
    . §836 and fail to be
    regularly constituted under Common Article 3 and §821.
      I likewise see no need to address the validity of the
    conspiracy charge against Hamdan—an issue addressed at
    length in Part V of JUSTICE STEVENS’ opinion and in Part
    II–C of JUSTICE THOMAS’ dissent. See ante, at 36–49; post,
    at 12–28. In light of the conclusion that the military
    commissions at issue are unauthorized Congress may
    choose to provide further guidance in this area. Congress,
    not the Court, is the branch in the better position to un
    dertake the “sensitive task of establishing a principle not
    inconsistent with the national interest or international
    justice.” Banco Nacional de Cuba v. Sabbatino, 
    376 U.S. 398
    , 428 (1964).
      Finally, for the same reason, I express no view on the
    merits of other limitations on military commissions de
    scribed as elements of the common law of war in Part V of
    JUSTICE STEVENS’ opinion. See ante, at 31–36, 48–49; post,
    at 6–12.
      With these observations I join the Court’s opinion with
    the exception of Parts V and VI–D–iv.
                     Cite as: 548 U. S. ____ (2006)           1
    
                         SCALIA, J., dissenting
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 05–184
                             _________________
    
    
     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 SCALIA, with whom JUSTICE THOMAS and
    JUSTICE ALITO join, dissenting.
       On December 30, 2005, Congress enacted the Detainee
    Treatment Act (DTA). It unambiguously provides that, as
    of that date, “no court, justice, or judge” shall have juris
    diction to consider the habeas application of a Guan
    tanamo Bay detainee. Notwithstanding this plain direc
    tive, the Court today concludes that, on what it calls the
    statute’s most natural reading, every “court, justice, or
    judge” before whom such a habeas application was pend
    ing on December 30 has jurisdiction to hear, consider, and
    render judgment on it. This conclusion is patently errone
    ous. And even if it were not, the jurisdiction supposedly
    retained should, in an exercise of sound equitable discre
    tion, not be exercised.
                                 I
    
                                A
    
      The DTA provides: “[N]o court, justice, or judge shall
    have jurisdiction to hear or consider an application for a
    writ of habeas corpus filed by or on behalf of an alien
    detained by the Department of Defense at Guantanamo
    Bay, Cuba.” §1005(e)(1), 119 Stat. 2742 (internal division
    omitted). This provision “t[ook] effect on the date of the
    enactment of this Act,” §1005(h)(1), id., at 2743, which was
    2                  HAMDAN v. RUMSFELD
    
                         SCALIA, J., dissenting
    
    December 30, 2005. As of that date, then, no court had
    jurisdiction to “hear or consider” the merits of petitioner’s
    habeas application. This repeal of jurisdiction is simply
    not ambiguous as between pending and future cases. It
    prohibits any exercise of jurisdiction, and it became effec
    tive as to all cases last December 30. It is also perfectly
    clear that the phrase “no court, justice, or judge” includes
    this Court and its Members, and that by exercising our
    appellate jurisdiction in this case we are “hear[ing] or
    consider[ing] . . . an application for a writ of habeas
    corpus.”
       An ancient and unbroken line of authority attests that
    statutes ousting jurisdiction unambiguously apply to cases
    pending at their effective date. For example, in Bruner v.
    United States, 
    343 U.S. 112
     (1952), we granted certiorari
    to consider whether the Tucker Act’s provision denying
    district court jurisdiction over suits by “officers” of the
    United States barred a suit by an employee of the United
    States. After we granted certiorari, Congress amended
    the Tucker Act by adding suits by “ ‘employees’ ” to the
    provision barring jurisdiction over suits by officers. Id., at
    114. This statute narrowing the jurisdiction of the district
    courts “became effective” while the case was pending
    before us, ibid., and made no explicit reference to pending
    cases. Because the statute “did not reserve jurisdiction
    over pending cases,” id., at 115, we held that it clearly
    ousted jurisdiction over them. Summarizing centuries of
    practice, we said: “This rule—that, when a law conferring
    jurisdiction is repealed without any reservation as to
    pending cases, all cases fall with the law—has been ad
    hered to consistently by this Court.” Id., at 116–117. See
    also Landgraf v. USI Film Products, 
    511 U.S. 244
    , 274
    (1994) (opinion for the Court by STEVENS, J.) (“We have
    regularly applied intervening statutes conferring or oust
    ing jurisdiction, whether or not jurisdiction lay when the
    underlying conduct occurred or when the suit was filed”).
                     Cite as: 548 U. S. ____ (2006)           3
    
                         SCALIA, J., dissenting
    
      This venerable rule that statutes ousting jurisdiction
    terminate jurisdiction in pending cases is not, as today’s
    opinion for the Court would have it, a judge-made “pre
    sumption against jurisdiction,” ante, at 11, that we have
    invented to resolve an ambiguity in the statutes. It is
    simple recognition of the reality that the plain import of a
    statute repealing jurisdiction is to eliminate the power to
    consider and render judgment—in an already pending
    case no less than in a case yet to be filed.
        “Without jurisdiction the court cannot proceed at all
        in any cause. Jurisdiction is power to declare the law,
        and when it ceases to exist, the only function remain
        ing to the court is that of announcing the fact and
        dismissing the cause. And this is not less clear upon
        authority than upon principle.” Ex parte McCardle,
        
    7 Wall. 506
    , 514 (1869) (emphasis added).
      To alter this plain meaning, our cases have required an
    explicit reservation of pending cases in the jurisdiction-
    repealing statute. For example, Bruner, as mentioned,
    looked to whether Congress made “any reservation as to
    pending cases.” 343 U. S., at 116–117; see also id., at 115
    (“Congress made no provision for cases pending at the
    effective date of the Act withdrawing jurisdiction and, for
    this reason, Courts of Appeals ordered pending cases
    terminated for want of jurisdiction”). Likewise, in Hallo
    well v. Commons, 
    239 U.S. 506
     (1916), Justice Holmes
    relied on the fact that the jurisdiction-ousting provision
    “made no exception for pending litigation, but purported to
    be universal,” id., at 508. And in Insurance Co. v. Ritchie,
    
    5 Wall. 541
     (1867), we again relied on the fact that the
    jurisdictional repeal was made “without any saving of
    such causes as that before us,” id., at 544. As in Bruner,
    Hallowell, and Ritchie, the DTA’s directive that “no court,
    justice, or judge shall have jurisdiction,” §1005(e)(1), 119
    Stat. 2742, is made “without any reservation as to pending
    4                  HAMDAN v. RUMSFELD
    
                         SCALIA, J., dissenting
    
    cases” and “purport[s] to be universal.” What we stated in
    an earlier case remains true here: “[W]hen, if it had been
    the intention to confine the operation of [the jurisdictional
    repeal] . . . to cases not pending, it would have been so
    easy to have said so, we must presume that Congress
    meant the language employed should have its usual and
    ordinary signification, and that the old law should be
    unconditionally repealed.” Railroad Co. v. Grant, 
    98 U.S. 398
    , 403 (1879).
       The Court claims that I “rea[d] too much into” the
    Bruner line of cases, ante, at 12, n. 7, and that “the Bruner
    rule” has never been “an inflexible trump,” ante, at 19.
    But the Court sorely misdescribes Bruner—as if it were a
    kind of early-day Lindh v. Murphy, 
    521 U.S. 320
     (1997),
    resolving statutory ambiguity by oblique negative infer
    ence. On the contrary, as described above, Bruner stated
    its holding as an unqualified “rule,” which “has been ad
    hered to consistently by this Court.” 343 U. S., at 116–
    117. Though Bruner referred to an express savings clause
    elsewhere in the statute, id., at 115, n. 7, it disavowed any
    reliance on such oblique indicators to vary the plain mean
    ing, quoting Ritchie at length: “ ‘It is quite possible that
    this effect of the [jurisdiction-stripping statute] was not
    contemplated by Congress. . . . [B]ut when terms are
    unambiguous we may not speculate on probabilities of
    intention.’ ” 343 U. S., at 116 (quoting 5 Wall., at 544–
    545).
       The Court also attempts to evade the Bruner line of
    cases by asserting that “the ‘presumption’ [of application
    to pending cases] that these cases have applied is more
    accurately viewed as the nonapplication of another pre
    sumption—viz., the presumption against retroactivity—in
    certain limited circumstances.” Ante, at 11. I have al
    ready explained that what the Court calls a “presumption”
    is simply the acknowledgment of the unambiguous mean
    ing of such provisions. But even taking it to be what the
                          Cite as: 548 U. S. ____ (2006)                     5
    
                              SCALIA, J., dissenting
    
    Court says, the effect upon the present case would be the
    same. Prospective applications of a statute are “effective”
    upon the statute’s effective date; that is what an effective-
    date provision like §1005(h)(1) means.1 “ ‘[S]hall take
    effect upon enactment’ is presumed to mean ‘shall have
    prospective effect upon enactment,’ and that presumption
    is too strong to be overcome by any negative inference
    [drawn from other provisions of the statute].” Landgraf,
    511 U. S., at 288 (SCALIA, J., concurring in judgments).
    The Court’s “nonapplication of . . . the presumption
    against retroactivity” to §1005(e)(1) is thus just another
    way of stating that the statute takes immediate effect in
    pending cases.
      Though the Court resists the Bruner rule, it cannot cite
    a single case in the history of Anglo-American law (before
    today) in which a jurisdiction-stripping provision was
    denied immediate effect in pending cases, absent an ex
    plicit statutory reservation. By contrast, the cases grant
    ing such immediate effect are legion, and they repeatedly
    rely on the plain language of the jurisdictional repeal as
    an “inflexible trump,” ante, at 19, by requiring an express
    ——————
      1 The Court apparently believes that the effective-date provision
    
    means nothing at all. “That paragraph (1), along with paragraphs (2)
    and (3), is to ‘take effect on the date of enactment,’ DTA §1005(h)(1),
    119 Stat. 2743, is not dispositive,” says the Court, ante, at 14, n. 9. The
    Court’s authority for this conclusion is its quote from INS v. St. Cyr,
    
    533 U.S. 289
    , 317 (2001), to the effect that “a statement that a statute
    will become effective on a certain date does not even arguably suggest
    that it has any application to conduct that occurred at an earlier date.”
    Ante, at 14, n. 9 (emphasis added, internal quotation marks omitted).
    But this quote merely restates the obvious: An effective-date provision
    does not render a statute applicable to “conduct that occurred at an
    earlier date,” but of course it renders the statute applicable to conduct
    that occurs on the effective date and all future dates—such as the
    Court’s exercise of jurisdiction here. The Court seems to suggest that,
    because the effective-date provision does not authorize retroactive
    application, it also fails to authorize prospective application (and is
    thus useless verbiage). This cannot be true.
    6                  HAMDAN v. RUMSFELD
    
                         SCALIA, J., dissenting
    
    reservation to save pending cases. See, e.g., Bruner, su
    pra, at 115; Kline v. Burke Constr. Co., 
    260 U.S. 226
    , 234
    (1922); Hallowell, 239 U. S., at 508; Gwin v. United States,
    
    184 U.S. 669
    , 675 (1902); Gurnee v. Patrick County, 
    137 U.S. 141
    , 144 (1890); Sherman v. Grinnell, 
    123 U.S. 679
    ,
    680 (1887); Railroad Co. v. Grant, supra, at 403, Assessors
    v. Osbornes, 
    9 Wall. 567
    , 575 (1870); Ex parte McCardle, 7
    Wall., at 514; Ritchie, supra, at 544; Norris v. Crocker, 
    13 How. 429
    , 440 (1852); Yeaton v. United States, 5 Cranch
    281 (1809) (Marshall, C. J.), discussed in Gwin, supra, at
    675; King v. Justices of the Peace of London, 3 Burr. 1456,
    1457, 97 Eng. Rep. 924, 925 (K. B. 1764). Cf. National
    Exchange Bank of Baltimore v. Peters, 
    144 U.S. 570
    , 572
    (1892).
                                 B
       Disregarding the plain meaning of §1005(e)(1) and the
    requirement of explicit exception set forth in the foregoing
    cases, the Court instead favors “a negative inference . . .
    from the exclusion of language from one statutory provi
    sion that is included in other provisions of the same stat
    ute,” ante, at 13. Specifically, it appeals to the fact that
    §1005(e)(2) and (e)(3) are explicitly made applicable to
    pending cases (by §1005(h)(2)). A negative inference of the
    sort the Court relies upon might clarify the meaning of an
    ambiguous provision, but since the meaning of §1005(e)(1)
    is entirely clear, the omitted language in that context
    would have been redundant.
       Even if §1005(e)(1) were at all ambiguous in its applica
    tion to pending cases, the “negative inference” from
    §1005(h)(2) touted by the Court would have no force. The
    numerous cases in the Bruner line would at least create a
    powerful default “presumption against jurisdiction,” ante,
    at 11. The negative inference urged by the Court would be
    a particularly awkward and indirect way of rebutting such
    a longstanding and consistent practice. This is especially
                     Cite as: 548 U. S. ____ (2006)            7
    
                         SCALIA, J., dissenting
    
    true since the negative inference that might be drawn
    from §1005(h)(2)’s specification that certain provisions
    shall apply to pending cases is matched by a negative
    inference in the opposite direction that might be drawn
    from §1005(b)(2), which provides that certain provisions
    shall not apply to pending cases.
      The Court’s reliance on our opinion in Lindh v. Murphy,
    
    521 U.S. 320
     (1997), is utterly misplaced. Lindh involved
    two provisions of the Antiterrorism and Effective Death
    Penalty Act of 1996 (AEDPA): a set of amendments to
    chapter 153 of the federal habeas statute that redefined
    the scope of collateral review by federal habeas courts; and
    a provision creating a new chapter 154 in the habeas
    statute specially to govern federal collateral review of
    state capital cases. See 521 U. S., at 326–327. The latter
    provision explicitly rendered the new chapter 154 applica
    ble to cases pending at the time of AEDPA’s enactment;
    the former made no specific reference to pending cases.
    Id., at 327. In Lindh, we drew a negative inference from
    chapter 154’s explicit reference to pending cases, to con
    clude that the chapter 153 amendments did not apply in
    pending cases. It was essential to our reasoning, however,
    that both provisions appeared to be identically difficult to
    classify under our retroactivity cases. First, we noted
    that, after Landgraf, there was reason for Congress to
    suppose that an explicit statement was required to render
    the amendments to chapter 154 applicable in pending
    cases, because the new chapter 154 “will have substantive
    as well as purely procedural effects.” 521 U. S., at 327.
    The next step—and the critical step—in our reasoning was
    that Congress had identical reason to suppose that an
    explicit statement would be required to apply the chapter
    153 amendments to pending cases, but did not provide it.
    Id., at 329. The negative inference of Lindh rested on the
    fact that “[n]othing . . . but a different intent explain[ed]
    the different treatment.” Ibid.
    8                     HAMDAN v. RUMSFELD
    
                             SCALIA, J., dissenting
    
       Here, by contrast, there is ample reason for the different
    treatment. The exclusive-review provisions of the DTA,
    unlike both §1005(e)(1) and the AEDPA amendments in
    Lindh, confer new jurisdiction (in the D. C. Circuit) where
    there was none before. For better or for worse, our recent
    cases have contrasted jurisdiction-creating provisions with
    jurisdiction-ousting provisions, retaining the venerable
    rule that the latter are not retroactive even when applied
    in pending cases, but strongly indicating that the former
    are typically retroactive. For example, we stated in
    Hughes Aircraft Co. v. United States ex rel. Schumer, 
    520 U.S. 939
    , 951 (1997), that a statute “that creates jurisdic
    tion where none previously existed” is “as much subject to
    our presumption against retroactivity as any other.” See
    also Republic of Austria v. Altmann, 
    541 U.S. 677
    , 695
    (2004) (opinion for the Court by STEVENS, J.); id., at 722
    (KENNEDY, J., dissenting). The Court gives our retroactiv
    ity jurisprudence a dazzling clarity in asserting that “sub
    sections (e)(2) and (e)(3) ‘confer’ jurisdiction in a manner
    that cannot conceivably give rise to retroactivity questions
    under our precedents.”2 Ante, at 17–18. This statement
    ——————
      2 A comparison with Lindh v. Murphy, 
    521 U.S. 320
     (1997), shows
    
    this not to be true. Subsections (e)(2) and (e)(3) of §1005 resemble
    the provisions of AEDPA at issue in Lindh (whose retroactivity
    as applied to pending cases the Lindh majority did not rule upon,
    see 521 U. S., at 326), in that they “g[o] beyond ‘mere’ procedure,”
    id., at 327. They impose novel and unprecedented disabilities on
    the Executive Branch in its conduct of military affairs. Subsection
    (e)(2) imposes judicial review on the Combatant Status Review
    Tribunals (CSRTs), whose implementing order did not subject them
    to review by Article III courts. See Memorandum from Deputy
    Secretary of Defense Paul Wolfowitz re: Order Establishing Com
    batant Status Review Tribunals, at 3 §h (July 7, 2004), avail
    able at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf
    (all Internet materials as visited June 27, 2006, and available
    in Clerk of Court’s case file). Subsection (e)(3) authorizes the D. C.
    Circuit to review “the validity of any final decision rendered pursuant
    to Military Commission Order No. 1,” §1005(e)(3)(A), 119 Stat. 2743.
                         Cite as: 548 U. S. ____ (2006)                     9
    
                              SCALIA, J., dissenting
    
    rises to the level of sarcasm when one considers its au
    thor’s description of the governing test of our retroactivity
    jurisprudence:
         “The conclusion that a particular rule operates ‘retro
         actively’ comes at the end of a process of judgment
         concerning the nature and extent of the change in the
         law and the degree of connection between the opera
         tion of the new rule and a relevant past event. Any
         test of retroactivity will leave room for disagreement
         in hard cases, and is unlikely to classify the enormous
         variety of legal changes with perfect philosophical
         clarity. However, retroactivity is a matter on which
         judges tend to have ‘sound . . . instinct[s],’ . . . and fa
         miliar considerations of fair notice, reasonable reli
         ance, and settled expectations offer sound guidance.”
         Landgraf, 511 U. S., at 270 (opinion for the Court by
         STEVENS, J.).
    The only “familiar consideration,” “reasonable reliance,”
    and “settled expectation” I am aware of pertaining to the
    present case is the rule of Bruner—applicable to
    §1005(e)(1), but not to §1005(e)(2) and (3)—which the
    ——————
    Historically, federal courts have never reviewed the validity of the final
    decision of any military commission; their jurisdiction has been re
    stricted to considering the commission’s “lawful authority to hear,
    decide and condemn,” In re Yamashita, 
    327 U.S. 1
    , 8 (1946) (emphasis
    added). See also Johnson v. Eisentrager, 
    339 U.S. 763
    , 786–787 (1950).
    Thus, contrary to the Court’s suggestion, ante, at 17, subsections (e)(2)
    and (e)(3) confer new jurisdiction: They impose judicial oversight on a
    traditionally unreviewable exercise of military authority by the Com
    mander in Chief. They arguably “spea[k] not just to the power of a
    particular court but to . . . substantive rights . . . as well,” Hughes
    Aircraft Co. v. United States ex rel. Shumer, 
    520 U.S. 939
    , 951 (1997)—
    namely, the unreviewable powers of the President. Our recent cases
    had reiterated that the Executive is protected by the presumption
    against retroactivity in such comparatively trivial contexts as suits for
    tax refunds and increased pay, see Landgraf v. USI Film Products, 
    511 U.S. 244
    , 271, n. 25 (1994).
    10                  HAMDAN v. RUMSFELD
    
                          SCALIA, J., dissenting
    
    Court stubbornly disregards. It is utterly beyond question
    that §1005(e)(2)’s and (3)’s application to pending cases
    (without explicit specification) was not as clear as
    §1005(e)(1)’s. That is alone enough to explain the differ
    ence in treatment.
       Another obvious reason for the specification was to stave
    off any Suspension Clause problems raised by the imme
    diately effective ouster of jurisdiction brought about by
    subsection (e)(1). That is to say, specification of the im
    mediate effectiveness of subsections (e)(2) and (e)(3)
    (which, unlike subsection (e)(1), would not fall within the
    Bruner rule and would not automatically be deemed appli
    cable in pending cases) could reasonably have been
    thought essential to be sure of replacing the habeas juris
    diction that subsection (e)(1) eliminated in pending cases
    with an adequate substitute. See infra, at 16–18.
       These considerations by no means prove that an explicit
    statement would be required to render subsections (e)(2)
    and (e)(3) applicable in pending cases. But they surely
    gave Congress ample reason to doubt that their applica
    tion in pending cases would unfold as naturally as the
    Court glibly assumes. In any event, even if it were true
    that subsections (e)(2) and (e)(3) “ ‘confer’ jurisdiction in a
    manner that cannot conceivably give rise to retroactivity
    questions,” ante, at 17–18, this would merely establish
    that subsection (h)(2)’s reference to pending cases was
    wholly superfluous when applied to subsections (e)(2) and
    (e)(3), just as it would have been for subsection (e)(1).
    Lindh’s negative inference makes sense only when Con
    gress would have perceived “the wisdom of being explicit”
    with respect to the immediate application of both of two
    statutory provisions, 521 U. S., at 328, but chose to be
    explicit only for one of them—not when it would have
    perceived no need to be explicit for both, but enacted a
    redundancy only for one.
                     Cite as: 548 U. S. ____ (2006)           11
    
                         SCALIA, J., dissenting
    
       In short, it is simply untrue that Congress “ ‘should have
    been just as concerned about’ ” specifying the application
    of §1005(e)(1) to pending cases, ante, at 14 (quoting Lindh,
    521 U. S., at 329). In fact, the negative-inference ap
    proach of Lindh is particularly inappropriate in this case,
    because the negative inference from §1005(h)(2) would
    tend to defeat the purpose of the very provisions that are
    explicitly rendered applicable in pending cases, §1005(e)(2)
    and (3). Those provisions purport to vest “exclusive”
    jurisdiction in the D. C. Circuit to consider the claims
    raised by petitioners here. See infra, at 16–18. By draw
    ing a negative inference à la Lindh, the Court supplants
    this exclusive-review mechanism with a dual-review
    mechanism for petitioners who were expeditious enough to
    file applications challenging the CSRTs or military com
    missions before December 30, 2005. Whatever the force of
    Lindh’s negative inference in other cases, it surely should
    not apply here to defeat the purpose of the very provision
    from which the negative inference is drawn.
                                 C
       Worst of all is the Court’s reliance on the legislative
    history of the DTA to buttress its implausible reading of
    §1005(e)(1). We have repeatedly held that such reliance is
    impermissible where, as here, the statutory language is
    unambiguous. But the Court nevertheless relies both on
    floor statements from the Senate and (quite heavily) on
    the drafting history of the DTA. To begin with floor
    statements: The Court urges that some “statements made
    by Senators preceding passage of the Act lend further
    support to” the Court’s interpretation, citing excerpts from
    the floor debate that support its view, ante, 15–16, n. 10.
    The Court immediately goes on to discount numerous floor
    statements by the DTA’s sponsors that flatly contradict its
    view, because “those statements appear to have been
    inserted into the Congressional Record after the Senate
    12                     HAMDAN v. RUMSFELD
    
                             SCALIA, J., dissenting
    
    debate.” Ibid. Of course this observation, even if true,
    makes no difference unless one indulges the fantasy that
    Senate floor speeches are attended (like the Philippics of
    Demosthenes) by throngs of eager listeners, instead of
    being delivered (like Demosthenes’ practice sessions on
    the beach) alone into a vast emptiness. Whether the floor
    statements are spoken where no Senator hears, or written
    where no Senator reads, they represent at most the views
    of a single Senator. In any event, the Court greatly exag
    gerates the one-sidedness of the portions of the floor de
    bate that clearly occurred before the DTA’s enactment.
    Some of the statements of Senator Graham, a sponsor of
    the bill, only make sense on the assumption that pending
    cases are covered.3 And at least one opponent of the DTA
    unmistakably expressed his understanding that it would
    terminate our jurisdiction in this very case.4 (Of course in
    its discussion of legislative history the Court wholly ig
    nores the President’s signing statement, which explicitly
    set forth his understanding that the DTA ousted jurisdic
    ——————
      3 “Because I have described how outrageous these claims are—about
    
    the exercise regime, the reading materials—most Americans would be
    highly offended to know that terrorists are suing us in our own courts
    about what they read.” 151 Cong. Rec. S12756 (Nov. 14, 2005). “In
    stead of having unlimited habeas corpus opportunities under the
    Constitution, we give every enemy combatant, all 500, a chance to go to
    Federal court, the Circuit Court of Appeals for the District of Colum
    bia. . . . It will be a one-time deal.” Id., at S12754. “This Levin-
    Graham-Kyl amendment allows every detainee under our control to
    have their day in court. They are allowed to appeal their convictions.”
    Id., at S12801 (Nov. 15, 2005); see also id., at S12799 (rejecting the
    notion that “an enemy combatant terrorist al-Qaida member should be
    able to have access to our Federal courts under habeas like an Ameri
    can citizen”).
      4 “An earlier part of the amendment provides that no court, justice, or
    
    judge shall have jurisdiction to consider the application for writ of
    habeas corpus. . . . Under the language of exclusive jurisdiction in the
    DC Circuit, the U. S. Supreme Court would not have jurisdiction to
    hear the Hamdan case . . . .” Id., at S12796 (statement of Sen. Specter).
                         Cite as: 548 U. S. ____ (2006)                  13
    
                             SCALIA, J., dissenting
    
    tion over pending cases.5)
       But selectivity is not the greatest vice in the Court’s use
    of floor statements to resolve today’s case. These state
    ments were made when Members of Congress were fully
    aware that our continuing jurisdiction over this very case
    was at issue. The question was divisive, and floor state
    ments made on both sides were undoubtedly opportunistic
    and crafted solely for use in the briefs in this very litiga
    tion. See, e.g., 151 Cong. Rec. S14257–S14258 (Dec. 21,
    2005) (statement of Sen. Levin) (arguing against a reading
    that would “stri[p] the Federal courts of jurisdiction to
    consider pending cases, including the Hamdan case now
    pending in the Supreme Court,” and urging that Lindh
    requires the same negative inference that the Court in
    dulges today (emphasis added)). The Court’s reliance on
    such statements cannot avoid the appearance of similar
    opportunism. In a virtually identical context, the author
    of today’s opinion has written for the Court that “[t]he
    legislative history discloses some frankly partisan state
    ments about the meaning of the final effective date lan
    guage, but those statements cannot plausibly be read as
    reflecting any general agreement.” Landgraf, 511 U. S., at
    262 (opinion for the Court by STEVENS, J.). Likewise, the
    handful of floor statements that the Court treats as au
    thoritative do not “reflec[t] any general agreement.” They
    reflect the now-common tactic—which the Court once
    again rewards—of pursuing through floor-speech ipse dixit
    
    ——————
       5 “[T]he executive branch shall construe section 1005 to preclude the
    
    Federal courts from exercising subject matter jurisdiction over any
    existing or future action, including applications for writs of habeas
    corpus, described in section 1005.” President’s Statement on Signing
    of H. R. 2863, the “Department of Defense, Emergency Supple
    mental Appropriations to Address Hurricanes in the Gulf of
    Mexico, and Pandemic Influenza Act, 2006” (Dec. 30, 2005), available
    at      http://www.whitehouse.gov/news/releases/2005/12/print/20051230
    8.html.
    14                     HAMDAN v. RUMSFELD
    
                              SCALIA, J., dissenting
    
    what could not be achieved through the constitutionally
    prescribed method of putting language into a bill that a
    majority of both Houses vote for and the President signs.
        With regard to the floor statements, at least the Court
    shows some semblance of seemly shame, tucking away its
    reference to them in a half-hearted footnote. Not so for its
    reliance on the DTA’s drafting history, which is displayed
    prominently, see ante, at 14–15. I have explained else
    where that such drafting history is no more legitimate or
    reliable an indicator of the objective meaning of a statute
    than any other form of legislative history. This case pre
    sents a textbook example of its unreliability. The Court,
    ante, at 14, trumpets the fact that a bill considered in the
    Senate included redundant language, not included in the
    DTA as passed, reconfirming that the abolition of habeas
    jurisdiction “shall apply to any application or other action
    that is pending on or after the date of the enactment of
    this Act.” 151 Cong. Rec. S12655 (Nov. 10, 2005). But this
    earlier version of the bill also differed from the DTA in
    other material respects. Most notably, it provided for
    postdecision review by the D. C. Circuit only of the deci
    sions of CSRTs, not military commissions, ibid.; and it
    limited that review to whether “the status determination
    . . . was consistent with the procedures and standards
    specified by the Secretary of Defense,” ibid., not whether
    “the use of such standards and procedures . . . is consistent
    with the Constitution and laws of the United States,” DTA
    §1005(e)(2)(C)(ii), 119 Stat. 2742. To say that what moved
    Senators to reject this earlier bill was the “action that is
    pending” provision surpasses the intuitive powers of even
    this Court’s greatest Justices.6 And to think that the
    House and the President also had this rejection firmly in
    ——————
       6 The Court asserts that “it cannot be said that the changes to subsec
    
    tion (h)(2) were inconsequential,” ante, at 15, n. 10, but the Court’s sole
    evidence is the self-serving floor statements that it selectively cites.
                     Cite as: 548 U. S. ____ (2006)           15
    
                         SCALIA, J., dissenting
    
    mind is absurd. As always—but especially in the context
    of strident, partisan legislative conflict of the sort that
    characterized enactment of this legislation—the language
    of the statute that was actually passed by both Houses of
    Congress and signed by the President is our only authori
    tative and only reliable guidepost.
                                  D
       A final but powerful indication of the fact that the Court
    has made a mess of this statute is the nature of the conse
    quences that ensue. Though this case concerns a habeas
    application challenging a trial by military commission,
    DTA §1005(e)(1) strips the courts of jurisdiction to hear or
    consider any “application for a writ of habeas corpus filed
    by or on behalf of an alien detained by the Department of
    Defense at Guantanamo Bay, Cuba.” The vast majority of
    pending petitions, no doubt, do not relate to military
    commissions at all, but to more commonly challenged
    aspects of “detention” such as the terms and conditions of
    confinement. See Rasul v. Bush, 
    542 U.S. 466
    , 498 (2004)
    (SCALIA, J., dissenting). The Solicitor General represents
    that “[h]abeas petitions have been filed on behalf of a
    purported 600 [Guantanamo Bay] detainees,” including
    one that “seek[s] relief on behalf of every Guantanamo
    detainee who has not already filed an action,” Respon
    dents’ Motion to Dismiss for Lack of Jurisdiction 20, n. 10
    (hereinafter Motion to Dismiss). The Court’s interpreta
    tion transforms a provision abolishing jurisdiction over all
    Guantanamo-related habeas petitions into a provision that
    retains jurisdiction over cases sufficiently numerous to
    keep the courts busy for years to come.
                                II
      Because I would hold that §1005(e)(1) unambiguously
    terminates the jurisdiction of all courts to “hear or con
    sider” pending habeas applications, I must confront peti
    16                 HAMDAN v. RUMSFELD
    
                         SCALIA, J., dissenting
    
    tioner’s arguments that the provision, so interpreted,
    violates the Suspension Clause. This claim is easily dis
    patched. We stated in Johnson v. Eisentrager, 
    339 U.S. 763
    , 768 (1950):
         “We are cited to no instance where a court, in this or
         any other country where the writ is known, has issued
         it on behalf of an alien enemy who, at no relevant
         time and in no stage of his captivity, has been within
         its territorial jurisdiction. Nothing in the text of the
         Constitution extends such a right, nor does anything
         in our statutes.”
    Notwithstanding the ill-considered dicta in the Court’s
    opinion in Rasul, 542 U. S., at 480–481, it is clear that
    Guantanamo Bay, Cuba, is outside the sovereign “territo
    rial jurisdiction” of the United States. See id., at 500–505
    (SCALIA, J., dissenting). Petitioner, an enemy alien de
    tained abroad, has no rights under the Suspension Clause.
      But even if petitioner were fully protected by the
    Clause, the DTA would create no suspension problem.
    This Court has repeatedly acknowledged that “the substi
    tution of a collateral remedy which is neither inadequate
    nor ineffective to test the legality of a person’s detention
    does not constitute a suspension of the writ of habeas
    corpus.” Swain v. Pressley, 
    430 U.S. 372
    , 381 (1977); see
    also INS v. St. Cyr, 
    533 U.S. 289
    , 314, n. 38 (2006) (“Con
    gress could, without raising any constitutional questions,
    provide an adequate substitute through the courts of
    appeals”).
      Petitioner has made no showing that the postdecision
    exclusive review by the D. C. Circuit provided in
    §1005(e)(3) is inadequate to test the legality of his trial by
    military commission. His principal argument is that the
    exclusive-review provisions are inadequate because they
    foreclose review of the claims he raises here. Though
    petitioner’s brief does not parse the statutory language,
                     Cite as: 548 U. S. ____ (2006)          17
    
                         SCALIA, J., dissenting
    
    his argument evidently rests on an erroneously narrow
    reading of DTA §1005(e)(3)(D)(ii), 119 Stat. 2743. That
    provision grants the D. C. Circuit authority to review, “to
    the extent the Constitution and laws of the United States
    are applicable, whether the use of such standards and
    procedures to reach the final decision is consistent with
    the Constitution and laws of the United States.” In the
    quoted text, the phrase “such standards and procedures”
    refers to “the standards and procedures specified in the
    military order referred to in subparagraph (A),” namely
    “Military Commission Order No. 1, dated August 31, 2005
    (or any successor military order).” DTA §1005(e)(3)(D)(i),
    (e)(3)(A), ibid. This Military Commission Order (Order
    No. 1) is the Department of Defense’s fundamental imple
    menting order for the President’s order authorizing trials
    by military commission. Order No. 1 establishes commis
    sions, §2; delineates their jurisdiction, §3; provides for
    their officers, §4(A); provides for their prosecution and
    defense counsel, §4(B), (C); lays out all their procedures,
    both pretrial and trial, §5(A)–(P), §6(A)–(G); and provides
    for posttrial military review through the Secretary of
    Defense and the President, §6(H). In short, the “standards
    and procedures specified in” Order No. 1 include every
    aspect of the military commissions, including the fact of
    their existence and every respect in which they differ from
    courts-martial. Petitioner’s claims that the President
    lacks legal authority to try him before a military commis
    sion constitute claims that “the use of such standards and
    procedures,” as specified in Order No. 1, is “[in]consistent
    with the Constitution and laws of the United States,” DTA
    §1005(e)(3)(D)(ii), 119 Stat. 2743. The D. C. Circuit thus
    retains jurisdiction to consider these claims on postdeci
    sion review, and the Government does not dispute that the
    DTA leaves unaffected our certiorari jurisdiction under 
    28 U.S. C
    . §1254(1) to review the D. C. Circuit’s decisions.
    Motion to Dismiss 16, n. 8. Thus, the DTA merely defers
    18                     HAMDAN v. RUMSFELD
    
                              SCALIA, J., dissenting
    
    our jurisdiction to consider petitioner’s claims; it does not
    eliminate that jurisdiction. It constitutes neither an
    “inadequate” nor an “ineffective” substitute for petitioner’s
    pending habeas application.7
       Though it does not squarely address the issue, the Court
    hints ominously that “the Government’s preferred read
    ing” would “rais[e] grave questions about Congress’ au
    thority to impinge upon this Court’s appellate jurisdiction,
    particularly in habeas cases.” Ante, at 10–11 (citing Ex
    parte Yerger, 
    8 Wall. 85
     (1869); Felker v. Turpin, 
    518 U.S. 651
     (1996); Durousseau v. United States, 6 Cranch 307
    (1810); United States v. Klein, 
    13 Wall. 128
     (1872); and Ex
    parte McCardle, 
    7 Wall. 506
    ). It is not clear how there
    could be any such lurking questions, in light of the aptly
    named “Exceptions Clause” of Article III, §2, which, in
    making our appellate jurisdiction subject to “such Excep
    tions, and under such Regulations as the Congress shall
    make,” explicitly permits exactly what Congress has done
    here. But any doubt our prior cases might have created on
    this score is surely chimerical in this case. As just noted,
    the exclusive-review provisions provide a substitute for
    habeas review adequate to satisfy the Suspension Clause,
    ——————
       7 Petitioner also urges that he could be subject to indefinite delay if
    
    military officials and the President are deliberately dilatory in review
    ing the decision of his commission. In reviewing the constitutionality of
    legislation, we generally presume that the Executive will implement its
    provisions in good faith. And it is unclear in any event that delay
    would inflict any injury on petitioner, who (after an adverse determina
    tion by his CSRT, see 
    344 F. Supp. 2d 152
    , 161 (DC 2004)) is already
    subject to indefinite detention under our decision in Hamdi v. Rums
    feld, 
    542 U.S. 507
     (2004). Moreover, the mere possibility of delay does
    not render an alternative remedy “inadequate [o]r ineffective to test the
    legality” of a military commission trial. Swain v. Pressley, 
    430 U.S. 372
    , 381 (1977). In an analogous context, we discounted the notion that
    postponement of relief until postconviction review inflicted any cogni
    zable injury on a serviceman charged before a military court-martial.
    Schlesinger v. Councilman, 
    420 U.S. 738
    , 754–755 (1975); see also
    Younger v. Harris, 
    401 U.S. 37
    , 46 (1971).
                     Cite as: 548 U. S. ____ (2006)           19
    
                         SCALIA, J., dissenting
    
    which forbids the suspension of the writ of habeas corpus.
    A fortiori they provide a substitute adequate to satisfy any
    implied substantive limitations, whether real or imagi
    nary, upon the Exceptions Clause, which authorizes such
    exceptions as §1005(e)(1).
                                  III
       Even if Congress had not clearly and constitutionally
    eliminated jurisdiction over this case, neither this Court
    nor the lower courts ought to exercise it. Traditionally,
    equitable principles govern both the exercise of habeas
    jurisdiction and the granting of the injunctive relief sought
    by petitioner. See Schlesinger v. Councilman, 
    420 U.S. 738
    , 754 (1975); Weinberger v. Romero-Barcelo, 
    456 U.S. 305
    , 311 (1982). In light of Congress’s provision of an
    alternate avenue for petitioner’s claims in §1005(e)(3),
    those equitable principles counsel that we abstain from
    exercising jurisdiction in this case.
       In requesting abstention, the Government relies princi
    pally on Councilman, in which we abstained from consid
    ering a serviceman’s claim that his charge for marijuana
    possession was not sufficiently “service-connected” to
    trigger the subject-matter jurisdiction of the military
    courts-martial. See 420 U. S., at 740, 758. Admittedly,
    Councilman does not squarely control petitioner’s case,
    but it provides the closest analogue in our jurisprudence.
    As the Court describes, ante, at 21, Councilman “identi
    fie[d] two considerations of comity that together favor[ed]
    abstention pending completion of ongoing court-martial
    proceedings against service personnel.” But the Court
    errs in finding these considerations inapplicable to this
    case. Both of them, and a third consideration not empha
    sized in Councilman, all cut in favor of abstention here.
       First, the Court observes that Councilman rested in
    part on the fact that “military discipline and, therefore,
    the efficient operation of the Armed Forces are best served
    20                 HAMDAN v. RUMSFELD
    
                         SCALIA, J., dissenting
    
    if the military justice system acts without regular inter
    ference from civilian courts,” and concludes that “Hamdan
    is not a member of our Nation’s Armed Forces, so concerns
    about military discipline do not apply.” Ante, at 22. This
    is true enough. But for some reason, the Court fails to
    make any inquiry into whether military commission trials
    might involve other “military necessities” or “unique mili
    tary exigencies,” 420 U. S., at 757, comparable in gravity
    to those at stake in Councilman. To put this in context:
    The charge against the respondent in Councilman was the
    off-base possession and sale of marijuana while he was
    stationed in Fort Sill, Oklahoma, see id., at 739–740. The
    charge against the petitioner here is joining and actively
    abetting the murderous conspiracy that slaughtered thou
    sands of innocent American civilians without warning on
    September 11, 2001. While Councilman held that the
    prosecution of the former charge involved “military neces
    sities” counseling against our interference, the Court does
    not even ponder the same question for the latter charge.
       The reason for the Court’s “blinkered study” of this
    question, ante, at 19, is not hard to fathom. The principal
    opinion on the merits makes clear that it does not believe
    that the trials by military commission involve any “mili
    tary necessity” at all: “The charge’s shortcomings . . . are
    indicative of a broader inability on the Executive’s part
    here to satisfy the most basic precondition . . . for estab
    lishment of military commissions: military necessity.”
    Ante, at 48. This is quite at odds with the views on this
    subject expressed by our political branches. Because of
    “military necessity,” a joint session of Congress authorized
    the President to “use all necessary and appropriate force,”
    including military commissions, “against those nations,
    organizations, or persons [such as petitioner] he deter
    mines planned, authorized, committed, or aided the terror
    ist attacks that occurred on September 11, 2001.” Au
    thorization for Use of Military Force, §2(a), 115 Stat. 224,
                      Cite as: 548 U. S. ____ (2006)            21
    
                          SCALIA, J., dissenting
    
    note following 
    50 U.S. C
    . §1541 (2000 ed., Supp. III). In
    keeping with this authority, the President has determined
    that “[t]o protect the United States and its citizens, and
    for the effective conduct of military operations and preven
    tion of terrorist attacks, it is necessary for individuals
    subject to this order . . . to be detained, and, when tried, to
    be tried for violations of the laws of war and other appli
    cable laws by military tribunals.” Military Order of Nov.
    13, 2001, 3 CFR §918(e) (2002). It is not clear where the
    Court derives the authority—or the audacity—to contra
    dict this determination. If “military necessities” relating
    to “duty” and “discipline” required abstention in Council
    man, supra, at 757, military necessities relating to the
    disabling, deterrence, and punishment of the mass-
    murdering terrorists of September 11 require abstention
    all the more here.
       The Court further seeks to distinguish Councilman on
    the ground that “the tribunal convened to try Hamdan is
    not part of the integrated system of military courts, com
    plete with independent review panels, that Congress has
    established.” Ante, at 22. To be sure, Councilman empha
    sized that “Congress created an integrated system of
    military courts and review procedures, a critical element
    of which is the Court of Military Appeals consisting of
    civilian judges completely removed from all military influ
    ence or persuasion, who would gain over time thorough
    familiarity with military problems.” 420 U. S., at 758
    (internal quotation marks and footnote omitted). The
    Court contrasts this “integrated system” insulated from
    military influence with the review scheme established by
    Order No. 1, which “provides that appeal of a review
    panel’s decision may be had only to the Secretary of De
    fense himself, §6(H)(5), and then, finally, to the President,
    §6(H)(6).” Ante, at 23.
       Even if we were to accept the Court’s extraordinary
    assumption that the President “lack[s] the structural
    22                     HAMDAN v. RUMSFELD
    
                              SCALIA, J., dissenting
    
    insulation from military influence that characterizes the
    Court of Appeals for the Armed Forces,” ante, at 23,8 the
    Court’s description of the review scheme here is anachro
    nistic. As of December 30, 2005, the “fina[l]” review of
    decisions by military commissions is now conducted by the
    D. C. Circuit pursuant to §1005(e)(3) of the DTA, and by
    this Court under 
    28 U.S. C
    . §1254(1). This provision for
    review by Article III courts creates, if anything, a review
    scheme more insulated from Executive control than that in
    Councilman.9 At the time we decided Councilman, Con
    gress had not “conferred on any Art[icle] III court jurisdic
    tion directly to review court-martial determinations.” 420
    U. S., at 746. The final arbiter of direct appeals was the
    Court of Military Appeals (now the Court of Appeals for
    ——————
      8 The  very purpose of Article II’s creation of a civilian Commander in
    Chief in the President of the United States was to generate “structural
    insulation from military influence.” See The Federalist No. 28 (A. Hamil
    ton); id., No. 69 (same). We do not live under a military junta. It is a
    disservice to both those in the Armed Forces and the President to suggest
    that the President is subject to the undue control of the military.
       9 In rejecting our analysis, the Court observes that appeals to the
    
    D. C. Circuit under subsection (e)(3) are discretionary, rather than as of
    right, when the military commission imposes a sentence less than 10
    years’ imprisonment, see ante, at 23, n. 19, 52–53; §1005(e)(3)(B), 119
    Stat. 2743. The relevance of this observation to the abstention question
    is unfathomable. The fact that Article III review is discretionary does
    not mean that it lacks “structural insulation from military influence,”
    ante, at 23, and its discretionary nature presents no obstacle to the
    courts’ future review these cases.
       The Court might more cogently have relied on the discretionary na
    ture of review to argue that the statute provides an inadequate substi
    tute for habeas review under the Suspension Clause. See supra, at 16–
    18. But this argument would have no force, even if all appeals to the
    D. C. Circuit were discretionary. The exercise of habeas jurisdiction
    has traditionally been entirely a matter of the court’s equitable discre
    tion, see Withrow v. Williams, 
    507 U.S. 680
    , 715–718 (1993) (SCALIA,
    J., concurring in part and dissenting in part), so the fact that habeas
    jurisdiction is replaced by discretionary appellate review does not
    render the substitution “inadequate.” Swain, 430 U. S., at 381.
                     Cite as: 548 U. S. ____ (2006)           23
    
                         SCALIA, J., dissenting
    
    the Armed Forces), an Article I court whose members
    possessed neither life tenure, nor salary protection, nor
    the constitutional protection from removal provided to
    federal judges in Article III, §1. See 
    10 U.S. C
    . §867(a)(2)
    (1970 ed.).
      Moreover, a third consideration counsels strongly in
    favor of abstention in this case. Councilman reasoned
    that the “considerations of comity, the necessity of respect
    for coordinate judicial systems” that motivated our deci
    sion in Younger v. Harris, 
    401 U.S. 37
     (1971), were inap
    plicable to courts-martial, because “the particular de
    mands of federalism are not implicated.” 420 U. S., at
    756, 757. Though military commissions likewise do not
    implicate “the particular demands of federalism,” consid
    erations of interbranch comity at the federal level weigh
    heavily against our exercise of equity jurisdiction in this
    case. Here, apparently for the first time in history, see
    Motion to Dismiss 6, a District Court enjoined ongoing
    military commission proceedings, which had been deemed
    “necessary” by the President “[t]o protect the United
    States and its citizens, and for the effective conduct of
    military operations and prevention of terrorist attacks.”
    Military Order of Nov. 13, 3 CFR §918(e). Such an order
    brings the Judicial Branch into direct conflict with the
    Executive in an area where the Executive’s competence is
    maximal and ours is virtually nonexistent. We should
    exercise our equitable discretion to avoid such conflict.
    Instead, the Court rushes headlong to meet it. Elsewhere,
    we have deferred exercising habeas jurisdiction until state
    courts have “the first opportunity to review” a petitioner’s
    claim, merely to “reduc[e] friction between the state and
    federal court systems.” O’Sullivan v. Boerckel, 
    526 U.S. 838
    , 844, 845 (1999). The “friction” created today between
    this Court and the Executive Branch is many times more
    serious.
      In the face of such concerns, the Court relies heavily on
    24                  HAMDAN v. RUMSFELD
    
                          SCALIA, J., dissenting
    
    Ex parte Quirin, 
    317 U.S. 1
     (1942): “Far from abstaining
    pending the conclusion of military proceedings, which
    were ongoing, [in Quirin] we convened a special Term to
    hear the case and expedited our review.” Ante, at 24. It is
    likely that the Government in Quirin, unlike here, pre
    ferred a hasty resolution of the case in this Court, so that
    it could swiftly execute the sentences imposed, see Hamdi
    v. Rumsfeld, 
    542 U.S. 507
    , 569 (2004) (SCALIA, J., dissent
    ing). But the Court’s reliance on Quirin suffers from a
    more fundamental defect: Once again, it ignores the DTA,
    which creates an avenue for the consideration of peti
    tioner’s claims that did not exist at the time of Quirin.
    Collateral application for habeas review was the only
    vehicle available. And there was no compelling reason to
    postpone consideration of the Quirin application until the
    termination of military proceedings, because the only
    cognizable claims presented were general challenges to the
    authority of the commissions that would not be affected by
    the specific proceedings. See supra, at 8–9, n. 2. In the
    DTA, by contrast, Congress has expanded the scope of
    Article III review and has channeled it exclusively through
    a single, postverdict appeal to Article III courts. Because
    Congress has created a novel unitary scheme of Article III
    review of military commissions that was absent in 1942,
    Quirin is no longer governing precedent.
       I would abstain from exercising our equity jurisdiction,
    as the Government requests.
                            *    *      * 
    
         For the foregoing reasons, I dissent. 
    
                     Cite as: 548 U. S. ____ (2006)            1
    
                        THOMAS, J., dissenting
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 05–184
                             _________________
    
    
     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 em
    ploy 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
    2                   HAMDAN v. RUMSFELD
    
                          THOMAS, J., dissenting
    
    (2004), the structural advantages attendant to the Execu
    tive 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 Foun
    ders to conclude that the “President ha[s] primary respon
    sibility—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 conclu
    sion, the Constitution vests in the President “[t]he execu
    tive Power,” Art. II, §1, provides that he “shall be Com
    mander 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, 
    2 Black 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 . . . without
    waiting for any special legislative authority”); Fleming v.
    Page, 
    9 How. 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 . . . does not, ‘especially . . .
    in the areas of foreign policy and national security,’ imply
    ‘congressional disapproval’ of action taken by the Execu
    tive.” 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
                     Cite as: 548 U. S. ____ (2006)           3
    
                        THOMAS, J., dissenting
    
    Judicial Branch should not infer—that Congress intended
    to deprive him of particular powers not specifically enu
    merated. 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 inde
    pendent 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 . . . 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 deten
    tion 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 Presi
    dent “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 . . . 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
    4                  HAMDAN v. RUMSFELD
    
                        THOMAS, J., dissenting
    
    (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 Presi
    dent to use.” Hamdi, 542 U. S., at 518; id., at 587 (THO
    MAS, J., dissenting). Hamdi’s observation that military
    commissions are included within the AUMF’s authoriza
    tion is supported by this Court’s previous recognition that
    “[a]n important incident to the conduct of war is the adop
    tion 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 . . . 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 Presi
    dent’s use of military commissions in certain circum
    stances, 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 “au
    thorized trial of offenses against the law of war before
    [military] commissions.” 317 U. S., at 29. As I shall dis
    cuss below, Article 21 alone supports the use of commis
    sions here. Nothing in the language of Article 21, how
                         Cite as: 548 U. S. ____ (2006)                     5
    
                             THOMAS, J., dissenting
    
    ever, suggests that it outlines the entire reach of congres
    sional authorization of military commissions in all con
    flicts—quite the contrary, the language of Article 21 pre
    supposes 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 congres
    sional authorization of “the initiation of war” with its
    attendant authorization of “the employment of all neces
    sary and proper agencies for its due prosecution.” W.
    Winthrop, Military Law and Precedents 831 (2d ed. 1920)
    (hereinafter Winthrop). Accordingly, congressional au
    thorization 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, au
    thorization contained in the AUMF.2
       I note the Court’s error respecting the AUMF not be
    cause 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
    ——————
       1 As previously noted, Article 15 of the Articles of War was the prede
    
    cessor of Article 21 of the UCMJ. Article 21 provides as follows: “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 commis
    sions, provost courts, or other military tribunals.” 
    10 U.S. C
    . §821.
       2 Although the President very well may have inherent authority to try
    
    unlawful combatants for violations of the law of war before military
    commissions, we need not decide that question because Congress has
    authorized the President to do so. Cf. Hamdi v. Rumsfeld, 
    542 U.S. 507
    , 587 (2004) (THOMAS, J., dissenting) (same conclusion respecting
    detention of unlawful combatants).
    6                   HAMDAN v. RUMSFELD
    
                         THOMAS, J., dissenting
    
    defer to the Executive’s military and foreign policy judg
    ment 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 responsi
        bility and which has long been held to belong in the
        domain of political power not subject to judicial intru
        sion 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 Ham
    dan’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 commis
    sions 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 commis
    sions “ ‘to seize and subject to disciplinary measures those
    enemies who . . . 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 con
    clusion rests upon an incomplete accounting and an un
    faithful application of those considerations.
                     Cite as: 548 U. S. ____ (2006)            7
    
                        THOMAS, J., dissenting
    
                                   A
       The first two considerations are that a law-of-war mili
    tary commission may only assume jurisdiction of “offences
    committed within the field of the command of the conven
    ing 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 charg
    ing document, the Executive has determined that the
    theater of the present conflict includes “Afghanistan,
    Pakistan and other countries” where al Qaeda has estab
    lished 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 (con
    cluding 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 Gov
    ernment 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 . . . but with an agreement
    the inception of which long predated . . . the [relevant
    armed conflict].” Ante, at 48 (emphasis in original). The
    plurality’s willingness to second-guess the Executive’s judg
    ments in this context, based upon little more than its un
    8                      HAMDAN v. RUMSFELD
    
                             THOMAS, J., dissenting
    
    supported assertions, constitutes an unprecedented depar
    ture 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 appropri
    ate, 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 suggest
    ing 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 be
    trays 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 con
    flict) 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 Presi
    dent’s “war powers” may not have been activated until the
    AUMF was passed, ante, 35, n. 31, the date of such activa
    tion has never been used to determine the scope of a mili
    tary commission’s jurisdiction.3 Instead, the traditional
    ——————
       3 Even if the formal declaration of war were generally the determina
    
    tive act in ascertaining the temporal reach of the jurisdiction of a
    military commission, the AUMF itself is inconsistent with the plural
    ity’s suggestion that such a rule is appropriate in this case. See ante, at
    34–36, 48. The text of the AUMF is backward looking, authorizing the
    use of “all necessary and appropriate force against those nations,
    organizations, or persons he determines planned, authorized, commit
    ted, or aided the terrorist attacks that occurred on September 11,
    2001.” Thus, the President’s decision to try Hamdan by military
    commission—a use of force authorized by the AUMF—for Hamdan’s
                         Cite as: 548 U. S. ____ (2006)                     9
    
                             THOMAS, J., dissenting
    
    rule is that “[o]ffenses committed before a formal declara
    tion of war or before the declaration of martial law may be
    tried by military commission.” Green, The Military Com
    mission, 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) (here
    inafter Howland) (“A military commission . . . exercising
    . . . jurisdiction . . . under the laws of war . . . 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
    ——————
    involvement with al Qaeda prior to September 11, 2001, fits comforta
    bly within the framework of the AUMF. In fact, bringing the Septem
    ber 11 conspirators to justice is the primary point of the AUMF. By
    contrast, on the plurality’s logic, the AUMF would not grant the Presi
    dent the authority to try Usama bin Laden himself for his involvement
    in the events of September 11, 2001.
       4 The plurality suggests these authorities are inapplicable because
    
    nothing in its “analysis turns on the admitted absence of either a
    formal declaration of war or a declaration of martial law. Our focus
    instead is on the . . . AUMF.” Ante, at 35, n. 31. The difference identi
    fied by the plurality is purely semantic. Both Green and Howland
    confirm that the date of the enactment that establishes a legal basis for
    forming military commissions—whether it be a declaration of war, a
    declaration of martial law, or an authorization to use military force—
    does not limit the jurisdiction of military commissions to offenses
    committed after that date.
       5 The plurality attempts to evade the import of this historical example
    
    by observing that Kuehn was tried before a martial law commission for
    10                       HAMDAN v. RUMSFELD
    
                               THOMAS, J., dissenting
    
      Moreover, the President’s determination that the pre
    sent conflict dates at least to 1996 is supported by over
    whelming 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 (recogniz
    ing 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
    ——————
    a violation of federal espionage statutes. Ibid. As an initial matter, the
    fact that Kuehn was tried before a martial law commission for an
    offense committed prior to the establishment of martial law provides
    strong support for the President’s contention that he may try Hamdan
    for offenses committed prior to the enactment of the AUMF. Here the
    AUMF serves the same function as the declaration of martial law in
    Hawaii in 1941, establishing legal authority for the constitution of
    military commissions. Moreover, Kuehn was not tried and punished
    “by statute, but by the laws and usages of war.” United States v.
    Bernard Julius Otto Kuehn, Board of Review 5 (Office of the Military
    Governor, Hawaii 1942). Indeed, in upholding the imposition of the
    death penalty, a sentence “not authorized by the Espionage statutes,”
    ibid., Kuehn’s Board of Review explained that “[t]he fact that persons
    may be tried and punished . . . by a military commission for committing
    acts defined as offenses by . . . federal statutes does not mean that such
    persons are being tried for violations of such . . . statutes; they are,
    instead, being tried for acts made offenses only by orders of the . . .
    commanding general.” Id., at 6. Lastly, the import of this example is
    not undermined by Duncan v. Kahanamoku, 
    327 U.S. 304
     (1946). The
    question before the Court in that case involved only whether “loyal
    civilians in loyal territory should have their daily conduct governed by
    military orders,” id., at 319; it did “not involve the well-established power
    of the military to exercise jurisdiction over . . . enemy belligerents,” id., at
    313.
                      Cite as: 548 U. S. ____ (2006)            11
    
                         THOMAS, J., dissenting
    
    Statement 2 (Feb. 23, 1998), in Y. Alexander & M. Swet
    nam, Usama bin Laden’s al-Qaida: Profile of a Terrorist
    Network, App. 1B (2001) (“The ruling to kill the Ameri
    cans and their allies—civilians and military—is an indi
    vidual duty for every Muslim who can do it in any country
    in which it is possible to do it”). This was not mere rheto
    ric; even before September 11, 2001, al Qaeda was in
    volved 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 declara
    tion of war on our Nation, and that the theater of war
    extends at least as far as the localities of al Qaeda’s prin
    cipal 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 per
    tains to the persons triable before such a commission, see
    ante, at 33; Winthrop 838. Law-of-war military commis
    sions 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
    12                 HAMDAN v. RUMSFELD
    
                        THOMAS, J., dissenting
    
    (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 satis
    fied here, as Hamdan is an unlawful combatant charged
    with joining and conspiring with a terrorist network dedi
    cated 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 us
    ages 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. How
    ever, “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 deter
    mined 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
                     Cite as: 548 U. S. ____ (2006)          13
    
                        THOMAS, J., dissenting
    
    “the laws and usages of war as understood and practiced
    by the civilized nations of the world,” 11 Op. 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, in
    crease 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 squad
    rons 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 com
    manders representing him, to employ the commission, as
    occasion may require, for the investigation and punish
    ment 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 de
    fined by statute or treaty, the precedent [establishing
    whether an offense is triable by military commission]
    14                     HAMDAN v. RUMSFELD
    
                             THOMAS, J., dissenting
    
    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 . . . 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, Madi
    son’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 intru
    sion 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
    ——————
      6 Indeed, respecting the present conflict, the President has found that
    
    “the war against terrorism ushers in a new paradigm, one in which
    groups with broad, international reach commit horrific acts against
    innocent civilians, sometimes with the direct support of states. Our
    Nation recognizes that this new paradigm—ushered in not by us, but
    by terrorists—requires new thinking in the law of war.” App. 34–35.
    Under the Court’s approach, the President’s ability to address this “new
                          Cite as: 548 U. S. ____ (2006)                    15
    
                             THOMAS, J., dissenting
    
    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 deter
    mine whether an unlawful combatant has been charged
    with an offense against the law of war with an under
    standing that the common law of war is flexible, respon
    sive to the exigencies of the present conflict, and deferen
    tial 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: member
    ship in a war-criminal enterprise and conspiracy to com
    mit 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 . . . offenses triable
    by military commission,” ibid.7
    ——————
    paradigm” of inflicting death and mayhem would be completely frozen
    by rules developed in the context of conventional warfare.
      7 It is true that both of these separate offenses are charged under a
    
    single heading entitled “CHARGE: CONSPIRACY,” App. to Pet. for
    Cert. 65a. But that does not mean that they must be treated as a single
    crime, when the law of war treats them as separate crimes. As we
    acknowledged in In re Yamashita, 
    327 U.S. 1
     (1946), “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.” Id., at 17; cf.
    W. Birkhimer, Military Government and Martial Law 536 (3d ed. 1914)
    (hereinafter Birkhimer) (“[I]t would be extremely absurd to expect the
    same precision in a charge brought before a court-martial as is required to
    support a conviction before a justice of the peace” (internal quotation
    marks omitted)).
    16                     HAMDAN v. RUMSFELD
    
                             THOMAS, J., dissenting
    
       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 mili
    tary 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
    ——————
       Nevertheless, the plurality contends that Hamdan was “not actually
    charged,” ante, at 37, n. 32 (emphasis deleted), with being a member in
    a war criminal organization. But that position is demonstrably wrong.
    Hamdan’s charging document expressly charges that he “willfully and
    knowingly joined an enterprise of persons who shared a common
    criminal purpose.” App. to Pet. for Cert. 65a. Moreover, the plurality’s
    contention that we may only look to the label affixed to the charge to
    determine if the charging document alleges an offense triable by
    military commission is flatly inconsistent with its treatment of the Civil
    War cases—where it accepts as valid charges that did not appear in the
    heading or title of the charging document, or even the listed charge
    itself, but only in the supporting specification. See, e.g., ante, at 45–46
    (discussing the military commission trial of Wirz). For example, in the
    Wirz case, Wirz was charged with conspiring to violate the laws of war,
    and that charge was supported with allegations that he personally
    committed a number of atrocities. The plurality concludes that military
    commission jurisdiction was appropriate in that case not based upon
    the charge of conspiracy, but rather based upon the allegations of
    various atrocities in the specification which were not separately
    charged. Ante, at 45. Just as these atrocities, not separately charged,
    were independent violations of the law of war supporting Wirz’s trial by
    military commission, so too here Hamdan’s membership in al Qaeda
    and his provision of various forms of assistance to al Qaeda’s top
    leadership are independent violations of the law of war supporting his
    trial by military commission.
                         Cite as: 548 U. S. ____ (2006)                   17
    
                             THOMAS, J., dissenting
    
    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 . . . of peaceable citizens or soldiers.”
    Winthrop 784; see also 11 Op. Atty. Gen., at 314 (“A bush
    whacker, a jayhawker, a bandit, a war rebel, an assassin,
    being public enemies, may be tried, condemned, and exe
    cuted as offenders against the laws of war”). This conclu
    sion is unsurprising, as it is a “cardinal principle of the
    law of war . . . that the civilian population must enjoy
    complete immunity.” 4 International Committee of Red
    Cross, Commentary: Geneva Convention Relative to the
    ——————
       8 These observations respecting the law of war were made by the
    
    Attorney General in defense of the military commission trial of the
    Lincoln conspirators’. As the foregoing quoted portion of that opinion
    makes clear, the Attorney General did not, as the Court maintains,
    “trea[t] the charge as if it alleged the substantive offense of assassina
    tion.” Ante, at 40, n. 35. Rather, he explained that the conspirators
    “high offence against the laws of war” was “complete” when their band
    was “organized or joined,” and did not depend upon “atrocities commit
    ted by such a band.” 11 Op. Atty. Gen. 297, 312 (1865). Moreover, the
    Attorney General’s conclusions specifically refute the plurality’s unsup
    ported suggestion that I have blurred the line between “those categories
    of ‘offender’ who may be tried by military commission . . . with the
    ‘offenses’ that may be so tried.” Ante, at 37, n. 32.
    18                      HAMDAN v. RUMSFELD
    
                              THOMAS, J., dissenting
    
    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 pub
    lished in the General Orders of the years 1862 to 1866.”
    Winthrop 784, and n. 57.9 Accordingly, on this basis
    ——————
       9 The General Orders establishing the jurisdiction for military com
    
    missions during the Civil War provided that such offenses were viola
    tions of the laws of war cognizable before military commissions. See
    H. R. Doc. No. 65, 55th Cong., 3d Sess., 164 (1894) (“[P]ersons charged
    with the violation of the laws of war as spies, bridge-burners, maraud
    ers, &c., will . . . be held for trial under such charges”); id., at 234
    (“[T]here are numerous rebels . . . that . . . 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 maraud 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)). Numerous
    trials were held under this authority. See, e.g., U. S. War Dept.,
    General Court-Martial Order No. 51, p. 1 (1866) (hereinafter
    G. C. M. O.). (indictment in the military commission trial of James
    Harvey Wells charged “[b]eing a guerrilla” and specified that he “will
    fully . . . [took] up arms as a guerrilla marauder, and did join, belong to,
    act and co-operate with guerrillas”); G. C. M. O. No. 108, Head-
    Quarters Dept. of Kentucky, p. 1 (1865) (indictment in the military
    commission trial of Henry C. Magruder charged “[b]eing a guerrilla”
    and specified that he “unlawfully, and of his own wrong, [took] up arms
    as a guerrilla marauder, and did join, belong to, act, and co-operate
    with a band of guerrillas”); G. C. M. O. No. 41, p. 1 (1864) (indictment
    in the military commission trial of John West Wilson charged that
    Wilson “did take up arms as an insurgent and guerrilla against the
    laws and authorities of the United States, and did join and co-operate
    with an armed band of insurgents and guerrillas who were engaged in
    plundering the property of peaceable citizens . . . in violation of the laws
    and customs of war”); G. C. M. O. No. 153, p. 1 (1864) (indictment in the
    military commission trial of Simeon B. Kight charged that defendant
    was “a guerrilla, and has been engaged in an unwarrantable and
    barbarous system of warfare against citizens and soldiers of the United
    States”); G. C. M. O. No. 93, pp. 3–4 (1864) (indictment in the military
    commission trial of Francis H. Norvel charged “[b]eing a guerrilla” and
    specified that he “unlawfully and by his own wrong, [took] up arms as
    an outlaw, guerrilla, and bushwhacker, against the lawfully constituted
                         Cite as: 548 U. S. ____ (2006)                   19
    
                             THOMAS, J., dissenting
    
    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 experi
    ence of the military tribunals convened by the United
    States at Nuremberg. Pursuant to Article 10 of the Char
    ter of the International Military Tribunal (IMT), the
    United States convened military tribunals “to bring indi
    viduals to trial for membership” in “a group or organiza
    tion . . . declared criminal by the [IMT].” 1 Trials of War
    Criminals Before the Nuernberg Military Tribunals, p. XII
    (hereinafter Trials). The IMT designated various compo
    nents of four Nazi groups—the Leadership Corps, Ge
    stapo, 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 . . . 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 member
    ship in these organizations. For example, in Military
    Tribunal Case No. 1, United States v. Brandt, Karl
    Brandt, Karl Gebhardt, Rudolf Brandt, Joachim
    ——————
    authorities of the United States government”); id., at 9 (indictment in
    the military commission trial of James A. Powell charged
    “[t]ransgression of the laws and customs of war” and specified that he
    “[took] up arms in insurrection as a military insurgent, and did join
    himself to and, in arms, consort with . . . a rebel enemy of the United
    States, and the leader of a band of insurgents and armed rebels”); id.,
    at 10–11 (indictment in the military commission trial of Joseph
    Overstreet charged “[b]eing a guerrilla” and specified that he “did join,
    belong to, consort and co-operate with a band of guerrillas, insurgents,
    outlaws, and public robbers”).
    20                    HAMDAN v. RUMSFELD
    
                            THOMAS, J., dissenting
    
    Mrugowsky, Wolfram Sievers, Viktor Brack, and Walde
    mar Hoven, were convicted and sentenced to death for the
    crime of, inter alia, membership in an organization de
    clared 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 sen
    tenced 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 as
    sisted 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
    . . . that . . . furnish the enemy with arms, provisions,
    clothing, horses and means of transportation; [such] in
    surgents 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 . . . enemies, or fur
    nishing them with money, arms, provisions, medicines,
    &c”).10 Undoubtedly, the conclusion that such conduct
    ——————
      10 Even if the plurality were correct that a membership offense must
    
    be accompanied by allegations that the “defendant ‘took up arms,’ ”
    ante, at 37, n. 32, that requirement has easily been satisfied here. Not
                        Cite as: 548 U. S. ____ (2006)                  21
    
                            THOMAS, J., dissenting
    
    violates the law of war led to the enactment of Article 104
    of the UCMJ, which provides that “[a]ny person who . . .
    aids, or attempts to aid, the enemy with arms, ammuni
    tion, supplies, money, or other things . . . 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 contin
    gent of “uncivilized combatants who [are] not . . . likely to
    respect the laws of war,” Winthrop 784, Hamdan has been
    charged with “conspir[ing] and agree[ing] with . . . the al
    Qaida organization . . . to commit . . . 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 terror
    ism.” 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 pertain
    ing to violations of the laws of war. In that conflict, the
    orders establishing the jurisdiction of military commis
    sions in various theaters of operation provided that con
    spiracy 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
    ——————
    only has Hamdan been charged with providing assistance to top al
    Qaeda leadership (itself an offense triable by military commission), he
    has also been charged with receiving weapons training at an al Qaeda
    camp. App. to Pet. for Cert. 66a–67a.
    22                     HAMDAN v. RUMSFELD
    
                             THOMAS, J., dissenting
    
    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 con
    spiracy” 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 . . . or
    other inhumane acts . . . 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 com
    mon 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.
    ——————
      11 The plurality recounts the respective claims of the parties in Quirin
    
    pertaining to this issue and cites the United States Reports. Ante, at
    41-42. But the claims of the parties are not included in the opinion of
    the Court, but rather in the sections of the Reports entitled “Argument
    for Petitioners,” and “Argument for Respondent.” See 317 U. S., at
    6–17.
                         Cite as: 548 U. S. ____ (2006)                   23
    
                             THOMAS, J., dissenting
    
       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 assassi
    nation of President Lincoln, the charge provided that those
    men had “combin[ed], confederat[ed], and conspir[ed] . . . 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, Win
    throp’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
    ——————
       12 The plurality concludes that military commission jurisdiction was
    
    appropriate in the case of the Lincoln conspirators because they were
    charged with “ ‘maliciously, unlawfully, and traitorously murdering the
    said Abraham Lincoln,’ ” ante, at 40, n. 35. But the sole charge filed in
    that case alleged conspiracy, and the allegations pertaining to “mali
    ciously, unlawfully, and traitorously murdering the said Abraham
    Lincoln” were not charged or labeled as separate offenses, but rather as
    overt acts “in pursuance of and in prosecuting said malicious, unlawful,
    and traitorous conspiracy. ” G. C. M. O. No. 356, at ___ (emphasis
    added). While the plurality contends the murder of President Lincoln
    was charged as a distinct separate offense, the foregoing quoted lan
    guage of the charging document unequivocally establishes otherwise.
    Moreover, though I agree that the allegations pertaining to these overt
    acts provided an independent basis for the military commission’s
    jurisdiction in that case, that merely confirms the propriety of examin
    ing all the acts alleged—whether or not they are labeled as separate
    offenses—to determine if a defendant has been charged with a violation
    of the law of war. As I have already explained, Hamdan has been
    charged with violating the law of war not only by participating in a
    conspiracy to violate the law of war, but also by joining a war criminal
    enterprise and by supplying provisions and assistance to that enter
    prise’s top leadership.
    24                  HAMDAN v. RUMSFELD
    
                         THOMAS, J., dissenting
    
    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 mur
    der 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 af
    fords 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 “com
    pound offense” theory, ante, at 44–45, cannot be reconciled
    with the particular charges that sustained military com
    mission 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 . . . combin
         ing, 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 (em
                          Cite as: 548 U. S. ____ (2006)                    25
    
                             THOMAS, J., dissenting
    
         phasis 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
    
    ——————
      13 The plurality’s attempt to undermine the significance of these cases
    is unpersuasive. The plurality suggests the Wirz case is not relevant
    because the specification supporting his conspiracy charge alleged that
    he “personally committed a number of atrocities.” Ante, at 45. But this
    does not establish that conspiracy to violate the laws of war, the very
    crime with which Wirz was charged, is not itself a violation of the law
    of war. Rather, at best, it establishes that in addition to conspiracy
    Wirz violated the laws of war by committing various atrocities, just as
    Hamdan violated the laws of war not only by conspiring to do so, but
    also by joining al Qaeda and providing provisions and services to its top
    leadership. Moreover, the fact that Wirz was charged with overt acts
    that are more severe than the overt acts with which Hamdan has been
    charged does not establish that conspiracy is not an offense cognizable
    before military commission; rather it merely establishes that Wirz’s
    offenses may have been comparably worse than Hamdan’s offenses.
       The plurality’s claim that the charge against Lenger Grenfel supports
    its compound offense theory is similarly unsupportable. The plurality
    does not, and cannot, dispute that Grenfel was charged with conspiring
    to violate the laws of war by releasing rebel prisoners—a charge that
    bears no relation to a crime “ordinarily triable in civilian courts.” Ante,
    at 46, n. 37. Tellingly, the plurality does not reference or discuss this
    charge, but instead refers to the conclusion of Judge Advocate Holt that
    Grenfel also “ ‘united himself with traitors and malefactors for the
    overthrow of our Republic in the interest of slavery.’ ” Ibid. (quoting
    H. R. Doc. No. 314, at 689). But Judge Advocate Holt’s observation
    provides no support for the plurality’s conclusion, as it does not discuss
    the charges that sustained military commission jurisdiction, much less
    suggest that such charges were not violations of the law of war.
    26                     HAMDAN v. RUMSFELD
    
                             THOMAS, J., dissenting
    
    suppression of the existing rebellion, by the burning and
    destruction of steamboats and means of transportation on
    the Mississippi river”). These examples provide incontro
    vertible 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 Gov
    ernment “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 Win
    
    ——————
       14 The plurality contends that international practice—including the
    
    practice of the IMT at Nuremberg—supports its conclusion that con
    spiracy is not an offense triable by military commission because “ ‘[t]he
    Anglo-American concept of conspiracy was not part of European legal
    systems and arguably not an element of the internationally recognized
    laws of war.’ ” Ante, at 47 (quoting T. Taylor, Anatomy of the Nurem
    berg Trials: A Personal Memoir 36 (1992)). But while the IMT did not
    criminalize all conspiracies to violate the law of war, it did criminalize
    “participation in a common plan or conspiracy” to wage aggressive war.
    See 1 Trials, pp. XI–XII. Moreover, the World War II military tribunals
    of several European nations recognized conspiracy to violate the laws of
    war as an offense triable before military commissions. See 15 U. N.
    Commission 90–91 (noting that the French Military Tribunal at Mar
    seilles found Henri Georges Stadelhofer “guilty of the crime of associa
    tion de malfaiteurs,” namely of “having formed with various members of
    the German Gestapo an association with the aim of preparing or
    committing crimes against persons or property, without justification
    under the laws and usages of war”); 11 id., at 98 (noting that the
    Netherlands’ military tribunals were authorized to try conspiracy to
    violate the laws of war). Thus, the European legal systems’ approach to
    domestic conspiracy law has not prevented European nations from
    recognizing conspiracy offenses as violations of the law of war. This is
    unsurprising, as the law of war is derived not from domestic law but
    from the wartime practices of civilized nations, including the United
    States, which has consistently recognized that conspiracy to violate the
    laws of war is an offense triable by military commission.
                      Cite as: 548 U. S. ____ (2006)            27
    
                         THOMAS, J., dissenting
    
    throp, 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 plural
    ity’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 consist
    ing in overt acts, i.e. in unlawful commissions or actual
    attempts to commit, and not in intentions merely.” Win
    throp 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 com
    mitting the crime of conspiracy—is necessary. Winthrop
    says nothing to exclude either conspiracy or membership
    in a criminal enterprise, both of which go beyond “inten
    tions merely” and “consis[t] of overt acts, i.e. . . . 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 commis
    sion 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, unsup
    ported 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
    28                 HAMDAN v. RUMSFELD
    
                        THOMAS, J., dissenting
    
    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 . . . for establishment of military com
    missions: 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 Ham
    dan’s commission is illegitimate because it is not dispens
    ing 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 exi
    gent and nonexigent circumstances alike. See, e.g., Win
    throp 839–840; see also Yamashita, 327 U. S., at 5 (mili
    tary 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 conspir
                     Cite as: 548 U. S. ____ (2006)           29
    
                        THOMAS, J., dissenting
    
    acy 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 gath
    erings, has proudly distributed videotapes of beheadings of
    civilian workers, and has tortured and dismembered
    captured American soldiers. But according to the plural
    ity, 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 Sep
    tember 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. In
    stead, 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 funda
    mentally 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 prece
    dents in order to seize jurisdiction over this case, ante, at
    2–4 (SCALIA, J., dissenting), and after seeing them disre
    gard 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
    30                HAMDAN v. RUMSFELD
    
                        THOMAS, J., dissenting
    
    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, estab
    lish and prescribe the jurisdiction and procedure of mili
    tary commissions.” Id., at 348. This conclusion is consis
    tent with this Court’s understanding that military
    commissions are “our common-law war courts.” Id., at
                          Cite as: 548 U. S. ____ (2006)                      31
    
                              THOMAS, J., dissenting
    
    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.
      The Court nevertheless concludes that at least one
    provision of the UCMJ amounts to an attempt by Congress
    to limit the President’s power. This conclusion is not only
    
    ——————
      15 Though    it does not constitute a basis for any holding of the Court,
    the Court maintains that, as a “general rule,” “the procedures govern
    ing trials by military commission historically have been the same as
    those governing courts-martial.” Ante, at 54, 53. While it is undoubt
    edly true that military commissions have invariably employed most of
    the procedures employed by courts-martial, that is not a requirement.
    See Winthrop 841 (“[M]ilitary commissions . . . are commonly conducted
    according to the rules and forms governing courts-martial. These war-
    courts are indeed more summary in their action than are the courts
    held under the Articles of war, and . . . their proceedings . . . will not be
    rendered illegal by the omission of details required upon trials by
    courts-martial” (emphasis in original; footnotes omitted)); 1 U. N.
    Commission 116–117 (“The [World War II] Mediterranean Regulations
    (No. 8) provide that Military Commissions shall conduct their proceed
    ings as may be deemed necessary for full and fair trial, having regard
    for, but not being bound by, the rules of procedure prescribed for Gen
    eral Courts Martial” (emphasis added)); id., at 117 (“In the [World War
    II] European directive it is stated . . . that Military Commissions shall
    have power to make, as occasion requires, such rules for the conduct of
    their proceedings consistent with the powers of such Commissions, and
    with the rules of procedure . . . as are deemed necessary for a full and
    fair trial of the accused, having regard for, without being bound by, the
    rules of procedure and evidence prescribed for General Courts Mar
    tial”). Moreover, such a requirement would conflict with the settled
    understanding of the flexible and responsive nature of military com
    missions and the President’s wartime authority to employ such tribu
    nals as he sees fit. See Birkhimer 537–538 (“[M]ilitary commissions may
    so vary their procedure as to adapt it to any situation, and may extend
    their powers to any necessary degree. . . . The military commander decides
    upon the character of the military tribunal which is suited to the occasion
    . . . and his decision is final”).
    32                 HAMDAN v. RUMSFELD
    
                        THOMAS, J., dissenting
    
    contrary to the text and structure of the UCMJ, but it is
    also inconsistent with precedent of this Court. Consistent
    with Madsen’s conclusion pertaining to the common-law
    nature of military commissions and the President’s discre
    tion to prescribe their procedures, Article 36 of the UCMJ
    authorizes the President to establish procedures for mili
    tary commissions “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.” 
    10 U.S. C
    .
    §836(a) (emphasis added). Far from constraining the
    President’s authority, Article 36 recognizes the President’s
    prerogative to depart from the procedures applicable in
    criminal cases whenever he alone does not deem such
    procedures “practicable.” While the procedural regula
    tions promulgated by the Executive must not be “contrary
    to” the UCMJ, only a few provisions of the UCMJ mention
    “military commissions,” see ante, at 58, n. 49, and there is
    no suggestion that the procedures to be employed by
    Hamdan’s commission implicate any of those provisions.
       Notwithstanding the foregoing, the Court concludes that
    Article 36(b) of the UCMJ, 
    10 U.S. C
    . §836(b), which
    provides that “ ‘[a]ll rules and regulations made under this
    article shall be uniform insofar as practicable,’ ” ante, at
    57, requires the President to employ the same rules and
    procedures in military commissions as are employed by
    courts-martial “insofar as practicable.” Ante, at 59. The
    Court further concludes that Hamdan’s commission is
    unlawful because the President has not explained why it
    is not practicable to apply the same rules and procedures
    to Hamdan’s commission as would be applied in a trial by
    court martial. Ante, at 60.
       This interpretation of §836(b) is unconvincing. As an
    initial matter, the Court fails to account for our cases
    interpreting the predecessor to Article 21 of the UCMJ—
                        Cite as: 548 U. S. ____ (2006)                 33
    
                            THOMAS, J., dissenting
    
    Article 15 of the Articles of War—which provides crucial
    context that bears directly on the proper interpretation of
    Article 36(b). Article 15 of the Articles of War provided
    that:
         “The provisions of these articles conferring jurisdic
         tion upon courts-martial shall not be construed as de
         priving military commissions, provost courts, or other
         military tribunals of concurrent jurisdiction in respect
         of offenders or offences that by statute or by the law of
         war may be triable by such military commissions,
         provost courts, or other military tribunals.”
    In Yamashita, this Court concluded that Article 15 of the
    Articles of War preserved the President’s unfettered au
    thority to prescribe military commission procedure. The
    Court explained, “[b]y thus recognizing military commis
    sions in order to preserve their traditional jurisdiction
    over enemy combatants unimpaired by the Articles, Con
    gress gave sanction . . . to any use of the military commis
    sion contemplated by the common law of war.” 327 U. S.,
    at 20 (emphasis added)16; see also Quirin, 317 U. S., at 28;
    Madsen, 343 U. S., at 355. In reaching this conclusion,
    this Court treated as authoritative the congressional
    testimony of Judge Advocate General Crowder, who testi
    ——————
      16 The Court suggests that Congress’ amendment to Article 2 of the
    UCMJ, providing that the UCMJ applies to “persons within an area
    leased by or otherwise reserved or acquired for the use of the United
    States,” 
    10 U.S. C
    . §802(a)(12), deprives Yamashita’s conclusion
    respecting the President’s authority to promulgate military commission
    procedures of its “precedential value.” Ante, at 56. But this merely
    begs the question of the scope and content of the remaining provisions
    of the UCMJ. Nothing in the additions to Article 2, or any other
    provision of the UCMJ, suggests that Congress has disturbed this
    Court’s unequivocal interpretation of Article 21 as preserving the
    common-law status of military commissions and the corresponding
    authority of the President to set their procedures pursuant to his
    commander-in-chief powers. See Quirin, 317 U. S., at 28; Yamashita,
    327 U. S., at 20; Madsen v. Kinsella, 
    343 U.S. 341
    , 355 (1952).
    34                 HAMDAN v. RUMSFELD
    
                        THOMAS, J., dissenting
    
    fied that Article 15 of the Articles of War was enacted to
    preserve the military commission as “ ‘our common-law
    war court.’ ” Yamashita, supra, at 19, n. 7. And this Court
    recognized that Article 15’s preservation of military com
    missions as common-law war courts preserved the Presi
    dent’s commander-in-chief authority to both “establish”
    military commissions and to “prescribe [their] proce
    dure[s].” Madsen, 343 U. S., at 348; id., at 348–349 (ex
    plaining that Congress had “refrain[ed] from legislating”
    in the area of military commission procedures, in “con
    tras[t] with its traditional readiness to . . . prescrib[e],
    with particularity, the jurisdiction and procedure of
    United States courts-martial”); cf. Green 834 (“The mili
    tary commission exercising jurisdiction under common law
    authority is usually appointed by a superior military
    commander and is limited in its procedure only by the will
    of that commander. Like any other common law court, in
    the absence of directive of superior authority to the con
    trary, the military commission is free to formulate its own
    rules of procedure”).
       Given these precedents, the Court’s conclusion that
    Article 36(b) requires the President to apply the same
    rules and procedures to military commissions as are appli
    cable to courts-martial is unsustainable. When Congress
    codified Article 15 of the Articles of War in Article 21 of
    the UCMJ it was “presumed to be aware of . . . and to
    adopt” this Court’s interpretation of that provision as
    preserving the common-law status of military commis
    sions, inclusive of the President’s unfettered authority to
    prescribe their procedures. Lorillard v. Pons, 
    434 U.S. 575
    , 580 (1978). The Court’s conclusion that Article 36(b)
    repudiates this settled meaning of Article 21 is not based
    upon a specific textual reference to military commissions,
    but rather on a one-sentence subsection providing that
    “[a]ll rules and regulations made under this article shall
    be uniform insofar as practicable.” 
    10 U.S. C
    . §836(b).
                      Cite as: 548 U. S. ____ (2006)            35
    
                         THOMAS, J., dissenting
    
    This is little more than an impermissible repeal by impli
    cation. See Branch v. Smith, 
    538 U.S. 254
    , 273 (2003).
    (“We have repeatedly stated . . . that absent a clearly
    expressed congressional intention, repeals by implication
    are not favored” (citation and internal quotation marks
    omitted)). Moreover, the Court’s conclusion is flatly con
    trary to its duty not to set aside Hamdan’s commission
    “without the clear conviction that [it is] in conflict with the
    . . . laws of Congress constitutionally enacted.” Quirin,
    supra, at 25 (emphasis added).
        Nothing in the text of Article 36(b) supports the Court’s
    sweeping conclusion that it represents an unprecedented
    congressional effort to change the nature of military com
    missions from common-law war courts to tribunals that
    must presumptively function like courts-martial. And
    such an interpretation would be strange indeed. The
    vision of uniformity that motivated the adoption of the
    UCMJ, embodied specifically in Article 36(b), is nothing
    more than uniformity across the separate branches of the
    armed services. See ch. 169, 64 Stat. 107 (preamble to the
    UCMJ explaining that the UCMJ is an act “[t]o unify,
    consolidate, revise, and codify the Articles of War, the
    Articles for the Government of the Navy, and the discipli
    nary laws of the Coast Guard”). There is no indication
    that the UCMJ was intended to require uniformity in
    procedure between courts-martial and military commis
    sions, tribunals that the UCMJ itself recognizes are differ
    ent. To the contrary, the UCMJ expressly recognizes that
    different tribunals will be constituted in different manners
    and employ different procedures. See 
    10 U.S. C
    . §866
    (providing for three different types of courts-martial—
    general, special, and summary—constituted in different
    manners and employing different procedures). Thus,
    Article 36(b) is best understood as establishing that, so far
    as practicable, the rules and regulations governing tribu
    nals convened by the Navy must be uniform with the rules
    36                     HAMDAN v. RUMSFELD
    
                             THOMAS, J., dissenting
    
    and regulations governing tribunals convened by the
    Army. But, consistent with this Court’s prior interpreta
    tions of Article 21 and over a century of historical practice,
    it cannot be understood to require the President to con
    form the procedures employed by military commissions to
    those employed by courts-martial.17
       Even if Article 36(b) could be construed to require pro
    cedural uniformity among the various tribunals contem
    plated by the UCMJ, Hamdan would not be entitled to
    relief. Under the Court’s reading, the President is entitled
    to prescribe different rules for military commissions than
    for courts-martial when he determines that it is not “prac
    ticable” to prescribe uniform rules. The Court does not
    resolve the level of deference such determinations would
    be owed, however, because, in its view, “[t]he President
    has not . . . [determined] that it is impracticable to apply
    the rules for courts-martial.” Ante, at 60. This is simply
    not the case. On the same day that the President issued
    Military Commission Order No. 1, the Secretary of De
    fense explained that “the president decided to establish
    ——————
      17 Itbears noting that while the Court does not hesitate to cite legis
    lative history that supports its view of certain statutory provisions, see
    ante, at 14–15, and n. 10, it makes no citation of the legislative history
    pertaining to Article 36(b), which contradicts its interpretation of that
    provision. Indeed, if it were authoritative, the only legislative history
    relating to Article 36(b) would confirm the obvious—Article 36(b)’s
    uniformity requirement pertains to uniformity between the three
    branches of the Armed Forces, and no more. When that subsection was
    introduced as an amendment to Article 36, its author explained that it
    would leave the three branches “enough leeway to provide a different
    provision where it is absolutely necessary” because “there are some
    differences in the services.” Hearings on H. R. 2498 before the Sub
    committee No. 1 of the House Committee on Armed Services, 81st
    Cong., 1st Sess., 1015 (1949). A further statement explained that
    “there might be some slight differences that would pertain as to the
    Navy in contrast to the Army, but at least [Article 36(b)] is an expres
    sion of the congressional intent that we want it to be as uniform as
    possible.” Ibid.
                     Cite as: 548 U. S. ____ (2006)           37
    
                        THOMAS, J., dissenting
    
    military commissions because he wanted the option of a
    process that is different from those processes which we
    already have, namely the federal court system . . . and the
    military court system,” Dept. of Defense News Briefing on
    Military Commissions (Mar. 21, 2002) (remarks of Donald
    Rumsfeld), available at http://www.dod.gov/transcrips/
    2002/t03212002_t0321sd.html (as visited June 26, 2006,
    and available in Clerk of Court’s case file) (hereinafter
    News Briefing), and that “[t]he commissions are intended
    to be different . . . because the [P]resident recognized that
    there had to be differences to deal with the unusual situa
    tion we face and that a different approach was needed.”
    Ibid. The President reached this conclusion because
        “we’re in the middle of a war, and . . . had to design a
        procedure that would allow us to pursue justice for
        these individuals while at the same time prosecuting
        the war most effectively. And that means setting
        rules that would allow us to preserve our intelligence
        secrets, develop more information about terrorist ac
        tivities that might be planned for the future so that
        we can take action to prevent terrorist attacks against
        the United States. . . . [T]here was a constant balanc
        ing of the requirements of our war policy and the im
        portance of providing justice for individuals . . . and
        each deviation from the standard kinds of rules that
        we have in our criminal courts was motivated by the
        desire to strike the balance between individual justice
        and the broader war policy.” Ibid. (remarks of Doug
        las J. Feith, Under Secretary of Defense for Policy
        (emphasis added)).
    The Court provides no explanation why the President’s
    determination that employing court-martial procedures in
    the military commissions established pursuant to Military
    Commission Order No. 1 would hamper our war effort is in
    any way inadequate to satisfy its newly minted “practica
    38                    HAMDAN v. RUMSFELD
    
                            THOMAS, J., dissenting
    
    bility” requirement. On the contrary, this determination
    is precisely the 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.’ ” Chicago &
    Southern Air Lines, Inc. v. Waterman S. S. Corp., 
    333 U.S. 103
    , 111 (1948). And, in the context of the present conflict, it
    is exactly the kind of determination Congress countenanced
    when it authorized the President to use all necessary and
    appropriate force against our enemies. Accordingly, the
    President’s determination is sufficient to satisfy any practi
    cability requirement imposed by Article 36(b).
       The plurality further contends that Hamdan’s commis
    sion is unlawful because it fails to provide him the right to
    be present at his trial, as recognized in 
    10 U.S. C
    . A.
    §839(c) (Supp. 2006). Ante, at 61. But §839(c) applies to
    courts-martial, not military commissions. It provides:
           “When the members of a court-martial deliberate or
         vote, only the members may be present. All other
         proceedings, including any other consultation of the
         members of the court with counsel or the military
         judge, shall be made a part of the record and shall be
         in the presence of the accused, the defense counsel,
         the trial counsel, and, in cases in which a military
         judge has been detailed to the court, the military
         judge.”
    In context, “all other proceedings” plainly refers exclusively
    to “other proceedings” pertaining to a court-martial.18 This
    is confirmed by the provision’s subsequent reference to
    “members of the court” and to “cases in which a military
    ——————
      18 In addition to being foreclosed by the text of the provision, the
    
    Court’s suggestion that 
    10 U.S. C
    . A. §839(c) (Supp. 2006) applies to
    military commissions is untenable because it would require, in military
    commission proceedings, that the accused be present when the mem
    bers of the commission voted on his guilt or innocence.
                     Cite as: 548 U. S. ____ (2006)           39
    
                        THOMAS, J., dissenting
    
    judge has been detailed to the court.” It is also confirmed
    by the other provisions of §839, which refer only to courts-
    martial. See §§839(a)(1)–(4) (“[A]ny time after the service
    of charges which have been referred for trial to a court-
    martial composed of a military judge and members, the
    military judge may . . . call the court into session without
    the presence of the members for the purpose of,” hearing
    motions, issuing rulings, holding arraignments, receiving
    pleas, and performing various procedural functions). See
    also §839(b) (“Proceedings under subsection (a) shall be
    conducted in the presence of the accused”). Section 839(c)
    simply does not address the procedural requirements of
    military commissions.
                                  B
       The Court contends that Hamdan’s military commission
    is also unlawful because it violates Common Article 3 of the
    Geneva Conventions, see ante, at 65–72. Furthermore,
    Hamdan contends that his commission is unlawful because
    it violates various provisions of the Third Geneva Conven
    tion. These contentions are untenable.
                                   1
       As an initial matter, and as the Court of Appeals con
    cluded, both of Hamdan’s Geneva Convention claims are
    foreclosed by Johnson v. Eisentrager, 
    339 U.S. 763
     (1950).
    In that case the respondents claimed, inter alia, that their
    military commission lacked jurisdiction because it failed to
    provide them with certain procedural safeguards that they
    argued were required under the Geneva Conventions. Id.,
    at 789–790. While this Court rejected the underlying mer
    its of the respondents’ Geneva Convention claims, id., at
    790, it also held, in the alternative, that the respondents
    could “not assert . . . that anything in the Geneva Conven
    tion makes them immune from prosecution or punishment
    for war crimes,” id., at 789. The Court explained:
    40                 HAMDAN v. RUMSFELD
    
                        THOMAS, J., dissenting
    
            “We are not holding that these prisoners have no
         right which the military authorities are bound to re
         spect. The United States, by the Geneva Convention
         of July 27, 1929, 47 Stat. 2021, concluded with forty-
         six other countries, including the German Reich, an
         agreement upon the treatment to be accorded cap
         tives. These prisoners claim to be and are entitled to
         its protection. It is, however, the obvious scheme of
         the Agreement that responsibility for observance and
         enforcement of these rights is upon political and mili
         tary authorities. Rights of alien enemies are vindi
         cated under it only through protests and intervention
         of protecting powers as the rights of our citizens
         against foreign governments are vindicated only by
         Presidential intervention.” Id., at 789, n. 14.
    This alternative holding is no less binding than if it were
    the exclusive basis for the Court’s decision. See Massa
    chusetts v. United States, 
    333 U.S. 611
    , 623 (1948). While
    the Court attempts to cast Eisentrager’s unqualified,
    alternative holding as footnote dictum, ante, at 63–64, it
    does not dispute the correctness of its conclusion, namely,
    that the provisions of the 1929 Geneva Convention were
    not judicially enforceable because that Convention con
    templated that diplomatic measures by political and mili
    tary authorities were the exclusive mechanisms for such
    enforcement. Nor does the Court suggest that the 1949
    Geneva Conventions departed from this framework. See
    ante, at 64 (“We may assume that ‘the obvious scheme’ of
    the 1949 Conventions is identical in all relevant respects
    to that of the 1929 Convention”).
      Instead, the Court concludes that petitioner may seek
    judicial enforcement of the provisions of the Geneva Con
    ventions because “they are . . . part of the law of war. And
    compliance with the law of war is the condition upon
    which the authority set forth in Article 21 is granted.”
                     Cite as: 548 U. S. ____ (2006)          41
    
                        THOMAS, J., dissenting
    
    Ante, at 65 (citation omitted). But Article 21 authorizes
    the use of military commissions; it does not purport to
    render judicially enforceable aspects of the law of war that
    are not so enforceable of their own accord. See Quirin, 317
    U. S., at 28 (by enacting Article 21, “Congress has explic
    itly provided, so far as it may constitutionally do so, that
    military tribunals shall have jurisdiction to try offenders
    or offenses against the law of war”). The Court cannot
    escape Eisentrager’s holding merely by observing that
    Article 21 mentions the law of war; indeed, though Eisen
    trager did not specifically consider the Court’s novel inter
    pretation of Article 21, Eisentrager involved a challenge to
    the legality of a World War II military commission, which,
    like all such commissions, found its authorization in Arti
    cle 15 of the Articles of War, the predecessor to Article 21
    of the UCMJ. Thus, the Court’s interpretation of Article
    21 is foreclosed by Eisentrager.
       In any event, the Court’s argument is too clever by half.
    The judicial nonenforceability of the Geneva Conventions
    derives from the fact that those Conventions have exclu
    sive enforcement mechanisms, see Eisentrager, supra, at
    789, n. 14, and this, too, is part of the law of war. The
    Court’s position thus rests on the assumption that Article
    21’s reference to the “laws of war” selectively incorporates
    only those aspects of the Geneva Conventions that the
    Court finds convenient, namely, the substantive require
    ments of Common Article 3, and not those aspects of the
    Conventions that the Court, for whatever reason, disfavors,
    namely the Conventions’ exclusive diplomatic enforcement
    scheme. The Court provides no account of why the partial
    incorporation of the Geneva Conventions should extend
    only so far—and no further—because none is available
    beyond its evident preference to adjudicate those matters
    that the law of war, through the Geneva Conventions,
    consigns exclusively to the political branches.
       Even if the Court were correct that Article 21 of the
    42                 HAMDAN v. RUMSFELD
    
                        THOMAS, J., dissenting
    
    UCMJ renders judicially enforceable aspects of the law of
    war that are not so enforceable by their own terms, Article
    21 simply cannot be interpreted to render judicially en
    forceable the particular provision of the law of war at issue
    here, namely Common Article 3 of the Geneva Conven
    tions. As relevant, Article 21 provides that “[t]he provi
    sions of this chapter conferring jurisdiction upon courts-
    martial do not deprive military commissions . . . of concur
    rent jurisdiction with respect to offenders or offenses that
    by statute or by the law of war may be tried by military
    commissions.” 
    10 U.S. C
    . §821 (emphasis added). Thus,
    to the extent Article 21 can be interpreted as authorizing
    judicial enforcement of aspects of the law of war that are
    not otherwise judicially enforceable, that authorization
    only extends to provisions of the law of war that relate to
    whether a particular “offender” or a particular “offense” is
    triable by military commission. Common Article 3 of the
    Geneva Conventions, the sole provision of the Geneva
    Conventions relevant to the Court’s holding, relates to
    neither. Rather, it relates exclusively to the particulars of
    the tribunal itself, namely, whether it is “regularly consti
    tuted” and whether it “afford[s] all the judicial guarantees
    which are recognized as indispensable by civilized peo
    ples.” Third Geneva Convention, Art. 3, ¶1(d), Relative to
    the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6
    U. S. T. 3316, 3320, T. I. A. S No. 3364.
                                   2
       In addition to being foreclosed by Eisentrager, Hamdan’s
    claim under Common Article 3 of the Geneva Conventions
    is meritless. Common Article 3 applies to “armed conflict
    not of an international character occurring in the territory
    of one of the High Contracting Parties.” 6 U. S. T., at
    3318. “Pursuant to [his] authority as Commander in Chief
    and Chief Executive of the United States,” the President
    has “accept[ed] the legal conclusion of the Department of
                      Cite as: 548 U. S. ____ (2006)            43
    
                         THOMAS, J., dissenting
    
    Justice . . . that common Article 3 of Geneva does not
    apply to . . . al Qaeda . . . detainees, because, among other
    reasons, the relevant conflicts are international in scope
    and common Article 3 applies only to ‘armed conflict not of
    an international character.’ ” App. 35. Under this Court’s
    precedents, “the meaning attributed to treaty provisions
    by the Government agencies charged with their negotia
    tion and enforcement is entitled to great weight.” Sumi
    tomo Shoji America, Inc. v. Avagliano, 
    457 U.S. 176
    , 184–
    185 (1982); United States v. Stuart, 
    489 U.S. 353
    , 369
    (1989). Our duty to defer to the President’s understanding
    of the provision at issue here is only heightened by the fact
    that he is acting pursuant to his constitutional authority as
    Commander in Chief and by the fact that the subject matter
    of Common Article 3 calls for a judgment about the nature
    and character of an armed conflict. See generally United
    States v. Curtiss-Wright Export Corp., 
    299 U.S. 304
    , 320
    (1936).
        The President’s interpretation of Common Article 3 is
    reasonable and should be sustained. The conflict with al
    Qaeda is international in character in the sense that it is
    occurring in various nations around the globe. Thus, it is
    also “occurring in the territory of” more than “one of the
    High Contracting Parties.” The Court does not dispute the
    President’s judgments respecting the nature of our conflict
    with al Qaeda, nor does it suggest that the President’s
    interpretation of Common Article 3 is implausible or
    foreclosed by the text of the treaty. Indeed, the Court
    concedes that Common Article 3 is principally concerned
    with “furnish[ing] minimal protection to rebels involved in
    . . . a civil war,” ante, at 68, precisely the type of conflict
    the President’s interpretation envisions to be subject to
    Common Article 3. Instead, the Court, without acknowl
    edging its duty to defer to the President, adopts its own,
    admittedly plausible, reading of Common Article 3. But
    where, as here, an ambiguous treaty provision (“not of an
    44                     HAMDAN v. RUMSFELD
    
                             THOMAS, J., dissenting
    
    international character”) is susceptible of two plausible,
    and reasonable, interpretations, our precedents require us
    to defer to the Executive’s interpretation.
                                    3
       But even if Common Article 3 were judicially enforce
    able and applicable to the present conflict, petitioner
    would not be entitled to relief. As an initial matter, any
    claim petitioner has under Common Article 3 is not ripe.
    The only relevant “acts” that “are and shall remain prohib
    ited” under Common Article 3 are “the passing of sen
    tences 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 civilized peoples.” Art. 3, ¶1(d), 6
    U. S. T., at 1318, 1320 (emphases added). As its terms
    make clear, Common Article 3 is only violated, as relevant
    here, by the act of “passing of sentenc[e],” and thus Ham
    dan will only have a claim if his military commission
    convicts him and imposes a sentence. Accordingly, as
    Hamdan’s claim is “contingent [upon] future events that
    may not occur as anticipated, or indeed may not occur at
    all,” it is not ripe for adjudication. Texas v. United States,
    
    523 U.S. 296
    , 300 (1998) (internal quotation marks omit
    ted).19 Indeed, even if we assume he will be convicted and
    sentenced, whether his trial will be conducted in a manner
    ——————
      19 The Court does not dispute the conclusion that Common Article 3
    cannot be violated unless and until Hamdan is convicted and sen
    tenced. Instead, it contends that “the Geneva Conventions d[o] not
    direct an accused to wait until sentence is imposed to challenge the
    legality of the tribunal that is to try him.” Ante, at 62, n. 55. But the
    Geneva Contentions do not direct defendants to enforce their rights
    through litigation, but through the Conventions’ exclusive diplomatic
    enforcement provisions. Moreover, neither the Court’s observation
    respecting the Geneva Conventions nor its reference to the equitable
    doctrine of abstention bears on the constitutional prohibition on adjudi
    cating unripe claims.
                     Cite as: 548 U. S. ____ (2006)          45
    
                        THOMAS, J., dissenting
    
    so as to deprive him of “the judicial guarantees which are
    recognized as indispensable by civilized peoples” is en
    tirely speculative. And premature adjudication of Ham
    dan’s claim is especially inappropriate here because
    “reaching the merits of the dispute would force us to de
    cide whether an action taken by one of the other two
    branches of the Federal Government was unconstitu
    tional.” Raines v. Byrd, 
    521 U.S. 811
    , 819–820 (1997).
       In any event, Hamdan’s military commission complies
    with the requirements of Common Article 3. It is plainly
    “regularly constituted” because such commissions have
    been employed throughout our history to try unlawful
    combatants for crimes against the law of war. This Court
    has recounted that history as follows:
        “ ‘By a practice dating from 1847 and renewed and
        firmly established during the Civil War, military
        commissions have become adopted as authorized tri
        bunals in this country in time of war. . . . Their com
        petency has been recognized not only in acts of Con
        gress, but in executive proclamations, in rulings of the
        courts, and in the opinions of the Attorneys General.’ ”
        Madsen, 343 U. S., at 346, n. 8.
    Hamdan’s commission has been constituted in accordance
    with these historical precedents. As I have previously
    explained, the procedures to be employed by that commis
    sion, and the Executive’s authority to alter those proce
    dures, are consistent with the practice of previous Ameri
    can military commissions. See supra, at 30–34 , and n. 15.
       The Court concludes Hamdan’s commission fails to
    satisfy the requirements of Common Article 3 not because
    it differs from the practice of previous military commis
    sions but because it “deviate[s] from [the procedures]
    governing courts-martial.” Ante, at 71. But there is nei
    ther a statutory nor historical requirement that military
    commissions conform to the structure and practice of
    46                  HAMDAN v. RUMSFELD
    
                         THOMAS, J., dissenting
    
    courts-martial. A military commission is a different tri
    bunal, serving a different function, and thus operates
    pursuant to different procedures. The 150-year pedigree
    of the military commission is itself sufficient to establish
    that such tribunals are “regularly constituted court[s].”
    Art. 3, ¶1(d), 6 U. S. T., at 3320.
      Similarly, the procedures to be employed by Hamdan’s
    commission afford “all the judicial guarantees which are
    recognized as indispensable by civilized peoples.” Neither
    the Court nor petitioner disputes the Government’s de
    scription of those procedures.
         “Petitioner is entitled to appointed military legal coun
         sel, 32 C.F.R. 9.4(c)(2), and may retain a civilian attor
         ney (which he has done), 32 C.F.R. 9.4(c)(2)(iii)(B). Pe
         titioner is entitled to the presumption of innocence, 32
         C.F.R. 9.5(b), proof beyond a reasonable doubt, 32
         C.F.R. 9.5(c), and the right to remain silent, 32 C.F.R.
         9.5(f). He may confront witnesses against him, 32
         C.F.R. 9.5(i), and may subpoena his own witnesses, if
         reasonably available, 32 C.F.R. 9.5(h). Petitioner may
         personally be present at every stage of the trial unless
         he engages in disruptive conduct or the prosecution
         introduces classified or otherwise protected informa
         tion for which no adequate substitute is available and
         whose admission will not deprive him of a full and fair
         trial, 32 C.F.R. 9.5(k); Military Commission Order No.
         1 (Dep’t of Defense Aug. 31, 2005) §6(B)(3) and
         (D)(5)(b). If petitioner is found guilty, the judgment
         will be reviewed by a review panel, the Secretary of
         Defense, and the President, if he does not designate
         the Secretary as the final decisionmaker. 32 C.F.R.
         9.6(h). The final judgment is subject to review in the
         Court of Appeals for the District of Columbia Circuit
         and ultimately in this Court. See DTA §1005(e)(3),
         119 Stat. 2743; 
    28 U.S. C
    . 1254(1).” Brief for Re
                        Cite as: 548 U. S. ____ (2006)                  47
    
                            THOMAS, J., dissenting
    
         spondents 4.
    Notwithstanding these provisions, which in my judgment
    easily satisfy the nebulous standards of Common Article
    3,20 the plurality concludes that Hamdan’s commission is
    unlawful because of the possibility that Hamdan will be
    barred from proceedings and denied access to evidence
    that may be used to convict him. Ante, at 70–72. But,
    under the commissions’ rules, the Government may not
    impose such bar or denial on Hamdan if it would render
    his trial unfair, a question that is clearly within the scope
    of the appellate review contemplated by regulation and
    statute.
        Moreover, while the Executive is surely not required to
    offer a particularized defense of these procedures prior to
    their application, the procedures themselves make clear
    that Hamdan would only be excluded (other than for
    disruption) if it were necessary to protect classified (or
    classifiable) intelligence, Dept. of Defense, Military Com
    mission Order No. 1, §6(B)(3) (Aug. 31, 2005), including
    the sources and methods for gathering such intelligence.
    The Government has explained that “we want to make
    sure that these proceedings, which are going on in the
    middle of the war, do not interfere with our war effort and
    . . . because of the way we would be able to handle interro
    gations and intelligence information, may actually assist
    us in promoting our war aims.” News Briefing (remarks of
    Douglas J. Feith, Under Secretary of Defense for Policy).
    And this Court has concluded, in the very context of a
    ——————
      20 Notably, a prosecutor before the Quirin military commission has
    described these procedures as “a substantial improvement over those in
    effect during World War II,” further observing that “[t]hey go a long
    way toward assuring that the trials will be full and fair.” National
    Institute of Military Justice, Procedures for Trials by Military Commis
    sions of Certain Non-United States Citizens in the War Against Terror
    ism, p. x (2002) (hereinafter Procedures for Trials) (foreword by Lloyd
    N. Cutler).
    48                  HAMDAN v. RUMSFELD
    
                         THOMAS, J., dissenting
    
    threat to reveal our Nation’s intelligence gathering sources
    and methods, that “[i]t is ‘obvious and unarguable’ that no
    governmental interest is more compelling than the security
    of the Nation,” Haig, 453 U. S., at 307 (quoting Aptheker v.
    Secretary of State, 
    378 U.S. 500
    , 509 (1964)), and that
    “[m]easures to protect the secrecy of our Government’s
    foreign intelligence operations plainly serve these interests,”
    Haig, supra, at 307. See also Snepp v. United States, 
    444 U.S. 507
    , 509, n. 3 (1980) (per curiam) (“The Government
    has a compelling interest in protecting both the secrecy of
    information important to our national security and the
    appearance of confidentiality so essential to the effective
    operation of our foreign intelligence service”); Curtiss-
    Wright, 299 U. S., at 320. This interest is surely compelling
    here. According to the Government, “[b]ecause al Qaeda
    operates as a clandestine force relying on sleeper agents to
    mount surprise attacks, one of the most critical fronts in the
    current war involves gathering intelligence about future
    terrorist attacks and how the terrorist network operates—
    identifying where its operatives are, how it plans attacks,
    who directs operations, and how they communicate.” Brief
    for United States in No. 03–4792, United States v. Mous
    saoui (CA4), p. 9. We should not rule out the possibility that
    this compelling interest can be protected, while at the same
    time affording Hamdan (and others like him) a fair trial.
       In these circumstances, “civilized peoples” would take
    into account the context of military commission trials
    against unlawful combatants in the war on terrorism,
    including the need to keep certain information secret in
    the interest of preventing future attacks on our Nation
    and its foreign installations so long as it did not deprive
    the accused of a fair trial. Accordingly, the President’s
    understanding of the requirements of Common Article 3 is
    entitled to “great weight.” See supra, at 43.
                     Cite as: 548 U. S. ____ (2006)          49
    
                        THOMAS, J., dissenting
    
                                  4
       In addition to Common Article 3, which applies to con
    flicts “not of an international character,” Hamdan also
    claims that he is entitled to the protections of the Third
    Geneva Convention, which applies to conflicts between
    two or more High Contracting Parties. There is no merit
    to Hamdan’s claim.
       Article 2 of the Convention provides that “the present
    Convention shall 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.” 6 U. S. T., at 1318.
    “Pursuant to [his] authority as Commander in Chief and
    Chief Executive of the United States,” the President has
    determined that the Convention is inapplicable here,
    explaining that “none of the provisions of Geneva apply to
    our conflict with al Qaeda in Afghanistan or elsewhere
    throughout the world, because, among other reasons, al
    Qaeda is not a High Contracting Party.” App. 35. The
    President’s findings about the nature of the present con
    flict with respect to members of al Qaeda operating in
    Afghanistan represents a core exercise of his commander-
    in-chief authority that this Court is bound to respect. See
    Prize Cases, 2 Black, at 670.
                          *    *     *
      For these reasons, I would affirm the judgment of the
    Court of Appeals.
                     Cite as: 548 U. S. ____ (2006)            1
    
                         ALITO, J., dissenting
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 05–184
                             _________________
    
    
     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 ALITO, with whom JUSTICE SCALIA and JUSTICE
    THOMAS join in Parts I–III, dissenting.
       For the reasons set out in JUSTICE SCALIA’s dissent,
    which I join, I would hold that we lack jurisdiction. On
    the merits, I join JUSTICE THOMAS’ dissent with the excep
    tion of Parts I, II–C–1, and III–B–2, which concern mat
    ters that I find unnecessary to reach. I add the following
    comments to provide a further explanation of my reasons
    for disagreeing with the holding of the Court.
                                  I
       The holding of the Court, as I understand it, rests on the
    following reasoning. A military commission is lawful only
    if it is authorized by 
    10 U.S. C
    . §821; this provision per
    mits the use of a commission to try “offenders or offenses”
    that “by statute or by the law of war may be tried by” such
    a commission; because no statute provides that an of
    fender such as petitioner or an offense such as the one
    with which he is charged may be tried by a military com
    mission, he may be tried by military commission only if
    the trial is authorized by “the law of war”; the Geneva
    Conventions are part of the law of war; and Common
    Article 3 of the Conventions prohibits petitioner’s trial
    because the commission before which he would be tried is
    not “a regularly constituted court,” Third Geneva Conven
    2                  HAMDAN v. RUMSFELD
    
                          ALITO, J., dissenting
    
    tion, Art. 3, ¶1(d), Relative to the Treatment of Prisoners
    of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320,
    T. I. A. S. No. 3364. I disagree with this holding because
    petitioner’s commission is “a regularly constituted court.”
       Common Article 3 provides as follows:
        “In the case of armed conflict not of an international
        character occurring in the territory of one of the High
        Contracting Parties, each Party to the conflict shall
        be bound to apply, as a minimum, the following
        provisions:
          “(1) . . . [T]he following acts are and shall remain
        prohibited . . . :
          “(d) [T]he passing of sentences and the carrying out
        of executions without previous judgment pronounced
        by a regularly constituted court affording all the judi
        cial guarantees which are recognized as indispensable
        by civilized peoples.” Id., at 3318–3320 (emphasis
        added).
      Common Article 3 thus imposes three requirements.
    Sentences may be imposed only by (1) a “court” (2) that is
    “regularly constituted” and (3) that affords “all the judicial
    guarantees which are recognized as indispensable by
    civilized peoples.” Id., at 3320.
      I see no need here to comment extensively on the mean
    ing of the first and third requirements. The first require
    ment is largely self-explanatory, and, with respect to the
    third, I note only that on its face it imposes a uniform
    international standard that does not vary from signatory
    to signatory.
      The second element (“regularly constituted”) is the one
    on which the Court relies, and I interpret this element to
    require that the court be appointed or established in ac
    cordance with the appointing country’s domestic law. I
    agree with the Court, see ante, at 69, n. 64, that, as used
    in Common Article 3, the term “regularly” is synonymous
                      Cite as: 548 U. S. ____ (2006)            3
    
                          ALITO, J., dissenting
    
    with “properly.” The term “constitute” means “appoint,”
    “set up,” or “establish,” Webster’s Third New International
    Dictionary 486 (1961), and therefore “regularly consti
    tuted” means properly appointed, set up, or established.
    Our cases repeatedly use the phrases “regularly consti
    tuted” and “properly constituted” in this sense. See, e.g.,
    Hamdi v. Rumsfeld, 
    542 U.S. 507
    , 538 (2004) (plurality
    opinion of O’Connor, J.); Nguyen v. United States, 
    539 U.S. 69
    , 83 (2003); Ryder v. United States, 
    515 U.S. 177
    , 187
    (1995); Williams v. Bruffy, 
    96 U.S. 176
    , 185 (1878).
       In order to determine whether a court has been properly
    appointed, set up, or established, it is necessary to refer to
    a body of law that governs such matters. I interpret
    Common Article 3 as looking to the domestic law of the
    appointing country because I am not aware of any interna
    tional law standard regarding the way in which such a
    court must be appointed, set up, or established, and be
    cause different countries with different government struc
    tures handle this matter differently. Accordingly, “a
    regularly constituted court” is a court that has been ap
    pointed, set up, or established in accordance with the
    domestic law of the appointing country.
                                 II
      In contrast to this interpretation, the opinions support
    ing the judgment today hold that the military commission
    before which petitioner would be tried is not “a regularly
    constituted court” (a) because “no evident practical need
    explains” why its “structure and composition . . . deviate
    from conventional court-martial standards,” ante, at 11
    (KENNEDY, J., concurring in part); see also ante, at 69–70
    (Opinion of the Court); and (b) because, contrary to 
    10 U.S. C
    . §836(b), the procedures specified for use in the
    proceeding before the military commission impermissibly
    differ from those provided under the Uniform Code of
    Military Justice (UCMJ) for use by courts-martial, ante, at
    4                  HAMDAN v. RUMSFELD
    
                         ALITO, J., dissenting
    
    52–62 (Opinion of the Court); ante, at 16–18 (KENNEDY, J.,
    concurring in part). I do not believe that either of these
    grounds is sound.
                                   A
       I see no basis for the Court’s holding that a military
    commission cannot be regarded as “a regularly constituted
    court” unless it is similar in structure and composition to a
    regular military court or unless there is an “evident prac
    tical need” for the divergence. There is no reason why a
    court that differs in structure or composition from an
    ordinary military court must be viewed as having been
    improperly constituted. Tribunals that vary significantly
    in structure, composition, and procedures may all be
    “regularly” or “properly” constituted. Consider, for exam
    ple, a municipal court, a state trial court of general juris
    diction, an Article I federal trial court, a federal district
    court, and an international court, such as the Interna
    tional Criminal Tribunal for the Former Yugoslavia.
    Although these courts are “differently constituted” and
    differ substantially in many other respects, they are all
    “regularly constituted.”
       If Common Article 3 had been meant to require trial
    before a country’s military courts or courts that are simi
    lar in structure and composition, the drafters almost
    certainly would have used language that expresses that
    thought more directly. Other provisions of the Convention
    Relative to the Treatment of Prisoners of War refer ex
    pressly to the ordinary military courts and expressly
    prescribe the “uniformity principle” that JUSTICE
    KENNEDY sees in Common Article 3, see ante, at 8–9.
    Article 84 provides that “[a] prisoner of war shall be tried
    only by a military court, unless the existing laws of the
    Detaining Power expressly permit the civil courts to try a
    member of the armed forces of the Detaining Power in
    respect of the particular offence alleged to have been
                     Cite as: 548 U. S. ____ (2006)            5
    
                         ALITO, J., dissenting
    
    committed by the prisoner of war.” 6 U. S. T., at 3382.
    Article 87 states that “[p]risoners of war may not be sen
    tenced by the military authorities and courts of the De
    taining Power to any penalties except those provided for in
    respect of members of the armed forces of the said Power
    who have committed the same acts.” Id., at 3384. Simi
    larly, Article 66 of the Geneva Convention Relative to the
    Treatment of Civilian Persons in Time of War—a provi
    sion to which the Court looks for guidance in interpreting
    Common Article 3, see ante at 69—expressly provides that
    civilians charged with committing crimes in occupied
    territory may be handed over by the occupying power “to
    its properly constituted, non-political military courts, on
    condition that the said courts sit in the occupied country.”
    6 U. S. T. 3516, 3558–3560, T. I. A. S. No. 3365. If Com
    mon Article 3 had been meant to incorporate a “uniformity
    principle,” it presumably would have used language like
    that employed in the provisions noted above. For these
    reasons, I cannot agree with the Court’s conclusion that
    the military commission at issue here is not a “regularly
    constituted court” because its structure and composition
    differ from those of a court-martial.
       Contrary to the suggestion of the Court, see ante, at 69,
    the commentary on Article 66 of Fourth Geneva Conven
    tion does not undermine this conclusion. As noted, Article
    66 permits an occupying power to try civilians in its “prop
    erly constituted, non-political military courts,” 6 U. S. T.,
    at 3558. The commentary on this provision states:
        “The courts are to be ‘regularly constituted’. This
        wording definitely excludes all special tribunals. It is
        the ordinary military courts of the Occupying Power
        which will be competent.” 4 Int’l Comm. of Red Cross,
        Commentary: Geneva Convention Relative to the Pro
        tection of Civilian Persons in Time of War 340 (1958)
        (hereinafter GCIV Commentary).
    6                  HAMDAN v. RUMSFELD
    
                         ALITO, J., dissenting
    
       The Court states that this commentary “defines ‘ “regu
    larly constituted” ’ tribunals to include ‘ordinary military
    courts’ and ‘definitely exclud[e] all special tribunals.’ ”
    Ante, at 69 (alteration in original). This much is clear
    from the commentary itself. Yet the mere statement that
    a military court is a regularly constituted tribunal is of no
    help in addressing petitioner’s claim that his commission
    is not such a tribunal. As for the commentary’s mention of
    “special tribunals,” it is doubtful whether we should take
    this gloss on Article 66—which forbids an occupying power
    from trying civilians in courts set up specially for that
    purpose—to tell us much about the very different context
    addressed by Common Article 3.
       But even if Common Article 3 recognizes this prohibi
    tion on “special tribunals,” that prohibition does not cover
    petitioner’s tribunal. If “special” means anything in con
    tradistinction to “regular,” it would be in the sense of
    “special” as “relating to a single thing,” and “regular” as
    “uniform in course, practice, or occurrence.” Webster’s
    Third New International Dictionary 2186, 1913. Insofar
    as respondents propose to conduct the tribunals according
    to the procedures of Military Commission Order No. 1 and
    orders promulgated thereunder—and nobody has sug
    gested respondents intend otherwise—then it seems that
    petitioner’s tribunal, like the hundreds of others respon
    dents propose to conduct, is very much regular and not at
    all special.
                                B
       I also disagree with the Court’s conclusion that peti
    tioner’s military commission is “illegal,” ante, at 62, be
    cause its procedures allegedly do not comply with 
    10 U.S. C
    . §836. Even if §836(b), unlike Common Article 3,
    does impose at least a limited uniformity requirement
    amongst the tribunals contemplated by the UCMJ, but see
    ante, at 35 (THOMAS, J., dissenting), and even if it is as
                      Cite as: 548 U. S. ____ (2006)            7
    
                          ALITO, J., dissenting
    
    sumed for the sake of argument that some of the proce
    dures specified in Military Commission Order No. 1
    impermissibly deviate from court-martial procedures, it
    does not follow that the military commissions created by
    that order are not “regularly constituted” or that trying
    petitioner before such a commission would be inconsistent
    with the law of war. If Congress enacted a statute requir
    ing the federal district courts to follow a procedure that is
    unconstitutional, the statute would be invalid, but the
    district courts would not. Likewise, if some of the proce
    dures that may be used in military commission proceed
    ings are improper, the appropriate remedy is to proscribe
    the use of those particular procedures, not to outlaw the
    commissions. I see no justification for striking down the
    entire commission structure simply because it is possible
    that petitioner’s trial might involve the use of some proce
    dure that is improper.
                                   III
      Returning to the three elements of Common Article 3—
    (1) a court, (2) that is appointed, set up, and established in
    compliance with domestic law, and (3) that respects uni
    versally recognized fundamental rights—I conclude that
    all of these elements are satisfied in this case.
                                A
      First, the commissions qualify as courts.
      Second, the commissions were appointed, set up, and
    established pursuant to an order of the President, just like
    the commission in Ex parte Quirin, 
    317 U.S. 1
     (1942), and
    the Court acknowledges that Quirin recognized that the
    statutory predecessor of 
    10 U.S. C
    . §821 “preserved” the
    President’s power “to convene military commissions,” ante,
    at 29. Although JUSTICE KENNEDY concludes that “an
    acceptable degree of independence from the Executive is
    necessary to render a commission ‘regularly constituted’
    8                      HAMDAN v. RUMSFELD
    
                              ALITO, J., dissenting
    
    by the standards of our Nation’s system of justice,” ante at
    9–10, he offers no support for this proposition (which in
    any event seems to be more about fairness or integrity
    than regularity). The commission in Quirin was certainly
    no more independent from the Executive than the com
    missions at issue here, and 
    10 U.S. C
    . §§821 and 836 do
    not speak to this issue.1
       Finally, the commission procedures, taken as a whole,
    and including the availability of review by a United States
    Court of Appeals and by this Court, do not provide a basis
    for deeming the commissions to be illegitimate. The Court
    questions the following two procedural rules: the rule
    allowing the Secretary of Defense to change the governing
    rules “ ‘from time to time’ ” (which does not rule out mid-
    trial changes), see ante, at 70, n. 65 (Opinion of the Court);
    ante, at 9–10 (KENNEDY, J., concurring in part), and the
    rule that permits the admission of any evidence that
    would have “ ‘probative value to a reasonable person’ ”
    (which departs from our legal system’s usual rules of
    evidence), see ante, at 51, 60 (Opinion of the Court); ante,
    at 16–18 (KENNEDY, J., concurring in part).2 Neither
    of these two rules undermines the legitimacy of the
    commissions.
       Surely the entire commission structure cannot be
    stricken merely because it is possible that the governing
    rules might be changed during the course of one or more
    ——————
        1 Section821 looks to the “law of war,” not separation of powers is
    sues. And §836, as JUSTICE KENNEDY notes, concerns procedures, not
    structure, see ante, at 10.
      2 The plurality, but not JUSTICE KENNEDY, suggests that the commis
    
    sion rules are improper insofar as they allow a defendant to be denied
    access to evidence under some circumstances. See, ante, at 70–72. But
    here too, if this procedure is used in a particular case and the accused is
    convicted, the validity of this procedure can be challenged in the review
    proceeding in that case. In that context, both the asserted need for the
    procedure and its impact on the accused can be analyzed in concrete
    terms.
                     Cite as: 548 U. S. ____ (2006)           9
    
                         ALITO, J., dissenting
    
    proceedings. If a change is made and applied during the
    course of an ongoing proceeding and if the accused is
    found guilty, the validity of that procedure can be consid
    ered in the review proceeding for that case. After all, not
    every midtrial change will be prejudicial. A midtrial
    change might amend the governing rules in a way that is
    inconsequential or actually favorable to the accused.
      As for the standard for the admission of evidence at
    commission proceedings, the Court does not suggest that
    this rule violates the international standard incorporated
    into Common Article 3 (“the judicial guarantees which are
    recognized as indispensable by civilized peoples,” 6
    U. S. T., at 3320). Rules of evidence differ from country to
    country, and much of the world does not follow aspects of
    our evidence rules, such as the general prohibition against
    the admission of hearsay. See, e.g., Blumenthal, Shedding
    Some Light on Calls for Hearsay Reform: Civil Law Hear
    say Rules in Historical and Modern Perspective, 13 Pace
    Int’l L. Rev. 93, 96–101 (2001). If a particular accused
    claims to have been unfairly prejudiced by the admission
    of particular evidence, that claim can be reviewed in the
    review proceeding for that case. It makes no sense to
    strike down the entire commission structure based on
    speculation that some evidence might be improperly ad
    mitted in some future case.
      In sum, I believe that Common Article 3 is satisfied here
    because the military commissions (1) qualify as courts, (2)
    that were appointed and established in accordance with
    domestic law, and (3) any procedural improprieties that
    might occur in particular cases can be reviewed in those
    cases.
                                   B
      The commentary on Common Article 3 supports this
    interpretation. The commentary on Common Article 3,
    ¶1(d), in its entirety states:
    10                    HAMDAN v. RUMSFELD
    
                             ALITO, J., dissenting
    
           “[A]lthough [sentences and executions without a
           proper trial] were common practice until quite re
           cently, they are nevertheless shocking to the civilized
           mind. . . . Sentences and executions without previous
           trial are too open to error. ‘Summary justice’ may be
           effective on account of the fear it arouses . . . , but it
           adds too many further innocent victims to all the
           other innocent victims of the conflict. All civilized na
           tions surround the administration of justice with safe
           guards aimed at eliminating the possibility of judicial
           errors. The Convention has rightly proclaimed that it
           is essential to do this even in time of war. We must be
           very clear about one point: it is only ‘summary’ justice
           which it is intended to prohibit. No sort of immunity
           is given to anyone under this provision. There is
           nothing in it to prevent a person presumed to be
           guilty from being arrested and so placed in a position
           where he can do no further harm; and it leaves intact
           the right of the State to prosecute, sentence and pun
           ish according to the law.” GCIV Commentary 39 (em
           phasis added).
      It seems clear that the commissions at issue here meet
    this standard. Whatever else may be said about the sys
    tem that was created by Military Commission Order No. 1
    and augmented by the Detainee Treatment Act,
    §1005(e)(1), 119 Stat. 2742, this system—which features
    formal trial procedures, multiple levels of administrative
    review, and the opportunity for review by a United States
    Court of Appeals and by this Court—does not dispense
    “summary justice.”
                               *    *     * 
    
         For these reasons, I respectfully dissent. 
    
    

Document Info

DocketNumber: 05-184

Citation Numbers: 548 U.S. 557, 126 S. Ct. 2749, 165 L. Ed. 2d 723, 2006 U.S. LEXIS 5185

Filed Date: 6/29/2006

Precedential Status: Precedential

Modified Date: 2/28/2018

Authorities (76)

FLEMING v. Page , 50 U.S. 603 ( 1850 )

Norris v. Crocker , 54 U.S. 429 ( 1852 )

Ex Parte Vallandigham , 68 U.S. 243 ( 1864 )

Insurance Co. v. Ritchie , 72 U.S. 541 ( 1867 )

Ex Parte McCardle , 74 U.S. 506 ( 1869 )

Ex Parte Yerger , 75 U.S. 85 ( 1869 )

Assessors v. Osbornes , 76 U.S. 567 ( 1870 )

United States v. Klein , 80 U.S. 128 ( 1872 )

Williams v. Bruffy , 96 U.S. 176 ( 1878 )

Railroad Co. v. Grant , 98 U.S. 398 ( 1879 )

United States v. Rauscher , 119 U.S. 407 ( 1886 )

Sherman v. Grinnell , 123 U.S. 679 ( 1887 )

Gurnee v. Patrick County , 137 U.S. 141 ( 1890 )

National Exchange Bank of Baltimore v. Peters , 144 U.S. 570 ( 1892 )

Lewis v. United States , 146 U.S. 370 ( 1892 )

Gwin v. United States , 184 U.S. 669 ( 1902 )

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

Diaz v. United States , 223 U.S. 442 ( 1912 )

Hallowell v. Commons , 239 U.S. 506 ( 1916 )

Kline v. Burke Constr. Co. , 260 U.S. 226 ( 1922 )

View All Authorities »

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