SALIM AHMED HAMDAN, Petitioner v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, et al.

No. 05-184

SUPREME COURT OF THE UNITED STATES

548 U.S. 557; 126 S. Ct. 2749; 165 L. Ed. 2d 723; 2006 U.S. LEXIS 5185; 19 Fla. L. Weekly Fed. S 452

March 28, 2006, Argued

June 29, 2006, Decided

JUDGES: 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.

OPINION BY: STEVENS

OPINION

[*566] [**2759] 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.

[***LEdHR1A] [1A] [***LEdHR2A] [2A] 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 commission for then-unspecified crimes. After another year had passed, Hamdan was charged with one count of conspiracy "to commit . . . offenses triable by military commission." App. to Pet. for Cert. 65a.

[*567] 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 court-martial constituted in accordance with the Uniform Code of Military Justice (UCMJ), 10 U.S.C. ß 801 et seq. (2000 ed. and Supp. III) , would have authority to try him. His objection is that the military commission the President 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 [***739] extraordinary measure raising important questions about the balance of powers in our constitutional structure, Ex parte Quirin, 317 U.S. 1, 19, 63 S. Ct. 2, 87 L. Ed. 3 (1942), we granted certiorari. 546 U.S. 1002, 126 S. Ct. 622, 163 L. Ed. 2d 504 (2005).

For the reasons that follow, we conclude that the military 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 [**2760] has been charged is not an "offens[e] that by . . . the law of war may be tried by military commissions." 10 U.S.C. ß 821.

I

On September 11, 2001, agents of the al Qaeda terrorist organization hijacked commercial airplanes and attacked the [*568] World Trade Center in New York City and the national headquarters of the Department of Defense in Arlington, Virginia. Americans will never forget the devastation 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 appropriate force against those nations, organizations, or persons 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." Authorization for Use of Military Force (AUMF), 115 Stat. 224, note following 50 U.S.C. ß 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, hundreds 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 President 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 activities 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 life imprisonment or death." Ibid. The November [*569] 13 Order vested in the Secretary of Defense the power to appoint military commissions to try individuals subject to the Order, but that power has since been delegated to John D. Altenburg, 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 determination that Hamdan and five other detainees at Guantanamo Bay were subject to the November 13 Order and thus triable [***740] 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. ß 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 Government 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 [**2761] jurisdiction-- 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, collectively entitled "General Allegations," describe al Qaeda's activities from its inception in 1989 through 2001 and identify Usama bin Laden as the group's leader. Hamdan is not mentioned in these paragraphs.

Only the final two paragraphs, entitled "Charge: Conspiracy," contain allegations against Hamdan. Paragraph 12 charges that "from on or about February 1996 to on or about November 24, 2001," Hamdan "willfully and knowingly [*570] joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with [named members of al Qaeda] to commit the following offenses triable by military commission: attacking civilians; 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 Usama 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 transported, 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 Americans; 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 Columbia. 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 [***741] he was an "enemy combatant." 1 [*571] Separately, proceedings before the military commission commenced.

1 An "enemy combatant" is defined by the military order as "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." Memorandum from Deputy Secretary of Defense Paul Wolfowitz re: Order Establishing Combatant Status Review Tribunal ß a (July 7, 2004), available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf (all Internet materials as visited June 26, 2006, and available in Clerk of Court's case file).

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 adjudged, in compliance with that treaty, not [**2762] 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 Circuit reversed. Like the District Court, the Court of Appeals declined the Government's invitation to abstain from considering Hamdan's challenge. Cf. Schlesinger v. Councilman, 420 U.S. 738, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (1975). On the merits, the panel rejected the District Court's further conclusion that Hamdan was entitled to relief under the Third Geneva Convention. 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., concurring). In other portions of its opinion, the court concluded that our decision in Quirin foreclosed any separation-of-powers objection to [*572] the military commission's jurisdiction, and held that Hamdan's trial before the contemplated commission would violate neither the UCMJ nor U.S. Armed Forces regulations intended to implement the Geneva Conventions. 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

[***LEdHR3A] [3A] On February 13, 2006, the Government filed a motion to dismiss the writ of certiorari. The ground cited for dismissal was the recently enacted Detainee Treatment Act of 2005 (DTA), Pub. L. 109-148, 119 Stat. 2739. We postponed our ruling on that motion pending argument on the merits, 546 U.S. 1166, 126 S. Ct. 1317, 164 L. Ed. 2d 45 (2006), and now deny it.

The DTA, which was signed into law on December 30, 2005, addresses a broad swath of subjects related to detainees. It places restrictions on the [***742] treatment and interrogation of detainees in U.S. custody, and it furnishes procedural protections for U.S. personnel accused of engaging in improper interrogation. DTA ßß 1002-1004, 119 Stat. 2739-2740. It also sets forth certain "procedures for status review of detainees outside the United States." ß 1005, id., at 2740. Subsections (a) through (d) of ß 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 ß 1005, which is entitled "Judicial Review of Detention of Enemy Combatants," supplies the basis for the Government's jurisdictional argument. The subsection contains three numbered paragraphs. The first paragraph amends the judicial code as follows:

[*573] "(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 Detainee 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 Department of Defense at Guantanamo Bay, Cuba; or

[**2763] "'(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.'" ß 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 detained as an enemy combatant." Paragraph (2) also delimits the scope of that review. See ßß 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 jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order)." ß 1005(e)(3)(A), id., at 2743. 2 [*574] 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:

2 The military order referenced in this section is discussed further in Parts III and VI, infra.

"(i) whether the final decision [of the military commission] was consistent with the standards and procedures specified in the military order [***743] 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." ß 1005(e)(3)(D), ibid.

Finally, ß 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." ß 1005(h), id., at 2743-2744. 3

The Act is silent about whether paragraph (1) of subsection (e) "shall apply" to claims pending on the date of enactment.

3 The penultimate subsections of ß 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 ß 1005, include Guantanamo Bay. ßß 1005(f)-(g).

The Government argues that ßß 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 [*575] lack jurisdiction to review the Court of Appeals' decision below.

Hamdan objects to this theory on both constitutional and statutory grounds. [**2764] Principal among his constitutional arguments is that the Government's preferred reading raises grave questions about Congress' authority to impinge upon this Court's appellate jurisdiction, particularly in habeas cases. Support for this argument is drawn from Ex parte Yerger, 75 U.S. 85, 8 Wall. 85, 19 L. Ed. 332 (1869), in which, having explained that "the denial to this court of appellate jurisdiction" to consider an original writ of habeas corpus would "greatly weaken the efficacy of the writ," id., at 102-103, 19 L. Ed. 332, we held that Congress would not be presumed to have effected such denial absent an unmistakably clear statement to the contrary. See id., at 104-105, 19 L. Ed. 332; see also Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996); Durousseau v. United States, 10 U.S. 307, 6 Cranch 307, 314, 3 L. Ed. 232 (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, 80 U.S. 128, 13 Wall. 128, 20 L. Ed. 519, 7 Ct. Cl. 240 (1872). Cf. Ex parte McCardle, 74 U.S. 506, 7 Wall. 506, 514, 19 L. Ed. 264 (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 positive exception"). Hamdan also suggests [***744] that, if the Government's reading is correct, Congress has unconstitutionally suspended the writ of habeas corpus.

4 "'And be it further enacted, That so much of the act approved February 5, 1867, entitled "An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789," as authorized 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 taken, be, and the same is hereby repealed.'" 74 U.S., at 508, 7 Wall., at 508, 19 L. Ed. 264.

We find it unnecessary to reach either of these arguments. Ordinary principles of statutory construction suffice to rebut [*576] 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 ß 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.

[***LEdHR4] [4] [***LEdHR5A] [5A] 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 conduct occurred or when the suit was filed." Landgraf v. USI Film Products, 511 U.S. 244, 274, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) (citing Bruner v. United States, 343 U.S. 112, 72 S. Ct. 581, 96 L. Ed. 786 (1952); Hallowell v. Commons, 239 U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409 (1916)); see Republic of Austria v. Altmann, 541 U.S. 677, 693, 124 S. Ct. 2240, 159 L. Ed. 2d 1 (2004). But the "presumption" 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 [**2765] "would 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, 114 S. Ct. 1483, 128 L. Ed. 2d 229. We have explained, however, that, unlike other intervening changes in the law, a [*577] 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, 36 S. Ct. 202, 60 L. Ed. 409. 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 respect to transactions already completed." Landgraf, 511 U.S., at 280, 114 S. Ct. 1483, 128 L. Ed. 2d 229. 6 And if a new rule has no retroactive effect, the presumption against [***745] retroactivity will not prevent its application to a case that was already pending when the new rule was enacted.

5 See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 951, 117 S. Ct. 1871, 138 L. Ed. 2d 135 (1997) ("The fact that courts often apply newly enacted jurisdiction-allocating statutes to pending cases merely evidences certain limited circumstances failing to meet the conditions for our generally applicable presumption against retroactivity . . .").

6 Cf. Ibid. ("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)).

[***LEdHR5B] [5B] [***LEdHR6] [6] 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 construction," including a contextual reading of the statutory language, may dictate otherwise. Lindh v. Murphy, 521 U.S. 320, 326, 117 S. Ct. 2059, 138 L. Ed. 2d 481 [*578] (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, 117 S. Ct. 2059, 138 L. Ed. 2d 481; see also, e.g., Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (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 [**2766] 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." ß 107(c), 110 Stat. 1226; see Lindh, 521 U.S., at 329-330, 117 S. Ct. 2059, 138 L. Ed. 2d 481. That contrast, combined with the fact that the amendments at issue "affect[ed] substantive entitlement to relief," id., at 327, 117 S. Ct. 2059, 138 L. Ed. 2d 481, warranted drawing a negative inference.

7 In his insistence to the contrary, Justice Scalia reads too much into Bruner v. United States, 343 U.S. 112, 72 S. Ct. 581, 96 L. Ed. 786 (1952), Hallowell v. Commons, 239 U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409 (1916), and Insurance Co. v. Ritchie, 72 U.S. 541, 5 Wall. 541, 18 L. Ed. 540 (1867). See post, at 656-658, 165 L. Ed. 2d, at 793-794 (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 congressional intent. Indeed, Bruner itself relied on such other indications including a negative inference drawn from the statutory text, cf. infra, at 578, 165 L. Ed. 2d, at 745 to support its conclusion that jurisdiction was not available. The Court observed that (1) Congress had been put on notice by prior lower court cases addressing the Tucker Act that it ought to specifically reserve jurisdiction over pending cases, see 343 U.S., at 115, 72 S. Ct. 581, 96 L. Ed. 786, and (2) in contrast to the congressional silence concerning reservation of jurisdiction, reservation had been made of "'any rights or liabilities' existing at the effective date of the Act" repealed by another provision of the Act, id., at 115, n 7.

8 The question in Lindh was whether new limitations on the availability 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 "procedural" rule must apply to pending cases. 521 U.S., at 326, 117 S. Ct. 2059, 138 L. Ed. 2d 481.

[***LEdHR3B] [3B] A like inference follows a fortiori from Lindh in this case. "If . . . Congress was reasonably concerned to ensure that [ßß 1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [ß 1005(e)(1)], unless it had the different [***746] intent that the latter [section] not be applied to the general run of pending cases." Id., at 329, 117 S. Ct. 2059, 138 L. Ed. 2d 481. If anything, the evidence of deliberate omission is stronger here than it [*579] was in Lindh. In Lindh, the provisions to be contrasted had been drafted separately but were later "joined together and . . . considered simultaneously when the language raising the implication was inserted." Id., at 330, 117 S. Ct. 2059, 138 L. Ed. 2d 481. We observed that Congress' tandem review and approval of the two sets of provisions strengthened the presumption that the relevant omission was deliberate. Id., at 331, 117 S. Ct. 2059, 138 L. Ed. 2d 481; see also Field v. Mans, 516 U.S. 59, 75, 116 S. Ct. 437, 133 L. Ed. 2d 351 (1995) ("The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously 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 paragraphs (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 ß 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 that would have [*580] achieved the result the Government urges here weighs heavily against the Government's interpretation. See Doe v. Chao, 540 U.S. 614, 621-623, 124 S. Ct. 1204, 157 L. Ed. 2d 1122 (2004). 10

9 That paragraph (1), along with paragraphs (2) and (3), is to "take effect on the date of the enactment," DTA ß 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. 289, 317, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) (quoting Landgraf v. USI Film Products, 511 U.S. 244, 257, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994)). Certainly, the "effective date" provision cannot bear the weight Justice Scalia would place on it. See post, at 659, 165 L. Ed. 2d, at 794-795, 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 speculating that Congress had special reasons, not also relevant to subsection (e)(1), to worry that subsections (e)(2) and (e)(3) would be ruled inapplicable to pending cases. As we explain infra, at 582-583, 165 L. Ed. 2d, at 748, 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 drafting 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 668, 165 L. Ed. 2d, at 800 (Scalia, J., dissenting).) While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention 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 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 pending 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 jurisdiction, see post, at 666, n 4, 165 L. Ed. 2d, at 799 (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 666, 165 L. Ed. 2d, at 799, 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] case," id., at S12755.

[*581] [**2767] The Government nonetheless offers [***747] 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, 119 S. Ct. 1998, 144 L. Ed. 2d 347 (1999), the Government argues, Congress' different treatment of them is of no significance.

[***LEdHR3C] [3C] This argument must fail because it rests on a false distinction 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 jurisdiction 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 (e)(3) vest exclusive, 11 but limited, jurisdiction in the [**2768] Court of Appeals for the District of Columbia Circuit to review "final decision[s]" of CSRTs and military commissions.

11 [***LEdHR3D] [3D] 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 Dismiss 16-17, n 12 ("While the DTA does not expressly call for Supreme Court review of the District of Columbia Circuit's decisions, Sections 1005(e)(2) and (3) . . . do not remove this Court's jurisdiction over such decisions under 28 U.S.C. ß 1254(1)").

That subsection (e)(1) strips jurisdiction while subsections (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 [*582] had "ample reason" to provide explicitly for application of subsections (e)(2) and (e)(3) to pending cases because "jurisdiction-ousting" provisions like subsection (e)(1) have been treated differently under our retroactivity jurisprudence than "jurisdiction-creating" ones like subsections (e)(2) and (e)(3). Post, at 662, 165 L. Ed. 2d, at 796-797 (dissenting opinion); see also Reply Brief in Support of Respondents' Motion to Dismiss 5-6. That theory is insupportable. Assuming, arguendo, that subsections (e)(2) and (e)(3) "confer new jurisdiction (in the D. C. Circuit) where there was none before," [***748] post, at 662, 165 L. Ed. 2d, at 799 (emphasis in original); but see Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2686, 159 L. Ed. 2d 548 (2004), and that our precedents can be read to "strongly indicat[e]" that jurisdiction-creating statutes raise special retroactivity concerns not also raised by jurisdiction-stripping statutes, post, at 662, 165 L. Ed. 2d, at 799, 12 subsections (e)(2) and (e)(3) "confer" jurisdiction in a manner that cannot conceivably give rise to retroactivity questions 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 [*583] 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 ß 1005(h)(2).

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, 124 S. Ct. 2240, 159 L. Ed. 2d 1 (2004), and Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 117 S. Ct. 1871, 138 L. Ed. 2d 135 (1997). See post, at 662, 165 L. Ed. 2d, at 799. While the Court in both of those cases recognized that statutes "creating" jurisdiction may have retroactive effect if they affect "substantive" rights, see Altmann, 541 U.S., at 695, and n. 15, 124 S. Ct. 2240, 159 L. Ed. 2d 1; Hughes Aircraft, 520 U.S., at 951, 117 S. Ct. 1871, 138 L. Ed. 2d 135, we have applied the same analysis to statutes that have jurisdiction-stripping effect, see Lindh v. Murphy, 521 U.S. 320, 327-328, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997); id., at 342-343, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (Rehnquist, C. J., dissenting) (construing AEDPA's amendments as "ousting jurisdiction").

13 See Landgraf, 511 U.S., at 271, n. 25, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (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, 124 S. Ct. 2240, 159 L. Ed. 2d 1 (Kennedy, J., dissenting) (explaining 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").

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 D.C. 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" [**2769] 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

14 There may be habeas cases that were pending in the lower courts at 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 D.C. Circuit.

[***LEdHR3E] [3E] The Government's more general suggestion that Congress 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, [***749] see n 10, supra, but is otherwise without 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 tribunals whose judgments Congress would like to have reviewed--are preserved, and more routine challenges to final decisions rendered [*584] 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 ß 1005(e)(1) is entirely clear," post, at 660, 165 L. Ed. 2d, at 795-796, 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 657, 165 L. Ed. 2d, at 793 (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 ß 1005's text and its drafting history can one conclude as much. Congress here expressly 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 (recounting legislative history), but rests on both a misconstruction of the DTA and an erroneous view of our precedents, see supra, at 582-583, 165 L. Ed. 2d, at 747-748, and n 12.

For these reasons, we deny the Government's motion to dismiss. 15

15 Because we conclude that ß 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 nonetheless retain jurisdiction to hear Hamdan's appeal. Cf. supra, at 575, 165 L. Ed. 2d, at 743. 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, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (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").

III

[***LEdHR7A] [7A] Relying on our decision in Councilman, 420 U.S. 738, 95 S. Ct. 1300, 43 L. Ed. 2d 591, the Government argues that, even if we have statutory jurisdiction, [*585] 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 [**2770] for trial on charges that he violated the UCMJ by selling, transferring, and possessing marijuana. 420 U.S., at 739-740, 95 S. Ct. 1300, 43 L. Ed. 2d 591. Objecting that the alleged offenses were not "'service connected,'" id., at 740, 95 S. Ct. 1300, 43 L. Ed. 2d 591, 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. [***750] See id., at 741, 759, 95 S. Ct. 1300, 43 L. Ed. 2d 591. The District Court granted his request for injunctive relief, and the Court of Appeals affirmed.

[***LEdHR8A] [8A] We granted certiorari and reversed. Id., at 761, 95 S. Ct. 1300, 43 L. Ed. 2d 591. 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 [*586] further that there was nothing in the particular circumstances of the officer's case to displace that general rule. See id., at 740, 758, 95 S. Ct. 1300, 43 L. Ed. 2d 591.

16 [***LEdHR8B] [8B] 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, 76 S. Ct. 1, 100 L. Ed. 8 (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 challenge "turn[s] on the status of the persons as to whom the military asserted its power." 420 U.S., at 759, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (quoting Noyd v. Bond, 395 U.S. 683, 696, n. 8, 89 S. Ct. 1876, 23 L. Ed. 2d 631 (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.

[***LEdHR9] [9] Councilman identifies two considerations of comity that together favor abstention pending completion of ongoing court-martial proceedings against service personnel. See New v. Cohen, 327 U.S. App. D.C. 147, 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 operation 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, 95 S. Ct. 1300, 43 L. Ed. 2d 591. Second, federal courts should respect the balance that Congress struck between military preparedness and fairness to individual service members when it 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 influence or persuasion . . . .'" Id., at 758, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (quoting H. R. Rep. No. 491, 81st Cong., 1st Sess., 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, 95 S. Ct. 1300, 43 L. Ed. 2d 591. See id., at 755-758, 95 S. Ct. 1300, 43 L. Ed. 2d 591. 17

17 See also Noyd, 395 U.S., at 694-696, 89 S. Ct. 1876, 23 L. Ed. 2d 631 (noting that the Court of Military 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, 92 S. Ct. 815, 31 L. Ed. 2d 17 (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").

[*587] [***LEdHR7B] [7B] [**2771] The same cannot be said here; [***751] 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 ß924, 108 Stat. 2831). Instead, under Dept. of Defense Military Commission Order No. 1 (Commission Order No. 1),App. C to Brief for Petitioner 46a, which was issued by the Secretary of Defense 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. Id.ß 6(H)(4). Commission Order No. 1 provides that appeal of a review panel's decision may be had only to the Secretar himself, ß 6(H)(5), and then, finally, to the President, ß 6(H)(6). 18

18 If he chooses, the President may delegate this ultimate decisionmaking authority to the Secretary of Defense. See ß 6(H)(6).

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 [*588] Armed Forces, and thus bear insufficient conceptual similarity to state courts to warrant invocation of abstention principles. 19

19 Justice Scalia chides us for failing to include the D.C. Circuit's review powers under the DTA in our description of the review mechanism erected by Commission Order No. 1. See post, at 675, 165 L. Ed. 2d, at 805. 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 616, 165 L. Ed. 2d, at 768; ß 1005(e)(3), 119 Stat. 2743.

In sum, neither of the two comity considerations underlying 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, eight German saboteurs were captured upon arrival by submarine in New York and Florida. 317 U.S., at 21, 63 S. Ct. 2, 87 L. Ed. 3. The President convened a military commission to try seven of the saboteurs, who then filed habeas corpus petitions in the United States District Court for the District of Columbia challenging their trial by commission. We granted the saboteurs' petition for certiorari to the Court of Appeals before judgment. See id., at 19, 63 S. Ct. 2, 87 L. Ed. 3. Far from [**2772] 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 questions [***752] 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 "provides a compelling historical precedent for the power of civilian courts to entertain challenges that seek to interrupt the [*589] processes of military commissions." 415 F.3d at 36. 20 The circumstances of this case, like those in Quirin, simply do not implicate the "obligations of comity" that, under appropriate circumstances, justify abstention. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 733, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996) (Kennedy, J., concurring).

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 arguments--namely, that his commission violated Article 3 of the Third Geneva Convention, 6 U. S. T. 3316, 3318. See Part VI, infra. Although the Court of Appeals rejected the Article 3 argument on the merits, it also stated that, because the challenge was not "jurisdictional," it did not fall within the exception that Schlesinger v. Councilman, 420 U.S. 738, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (1975), recognized for defendants who raise substantial 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 argument 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 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 Conventions, it is ultra vires and thus lacks jurisdiction over him. Brief for Petitioner 5.

Finally, the Government has identified no other "important 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, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (majority opinion). To the contrary, Hamdan and the Government both have a compelling interest in knowing in advance whether Hamdan may be tried by a military commission that arguably is without any basis in law and operates [*590] free from many of the procedural rules prescribed 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 possibility that abstention may be appropriate in some cases seeking review of ongoing military commission proceedings (such as military commissions convened on the battlefield), 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 [**2773] created by statute, was born of military necessity. See W. Winthrop, Military Law and Precedents 831 (rev. 2d ed. 1920) (hereinafter Winthrop). Though foreshadowed [***753] in some respects by earlier tribunals like the Board of General Officers that General Washington convened to try British Major John Andre for spying 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 (rev. 3d ed. 1915) (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 (emphasis 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 [*591] during this period--as during the Mexican War--was driven largely by the then very limited jurisdiction of courts-martial: "The occasion for the military 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).

[***LEdHR10] [10] Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated by Article I, ß 8, and Article III, ß 1, of the Constitution unless some other part of that document authorizes a response to the felt need. See Ex parte Milligan, 71 U.S. 2, 4 Wall. 2, 121, 18 L. Ed. 281 (1866) ("Certainly no part of the judicial power of the country was conferred on [military commissions]"); Ex parte Vallandigham, 68 U.S. 243, 1 Wall. 243, 251, 17 L. Ed. 589 (1864); see also Quirin, 317 U.S., at 25, 63 S. Ct. 2, 87 L. Ed. 3 ("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, 63 S. Ct. 2, 87 L. Ed. 3; In re Yamashita, 327 U.S. 1, 11, 66 S. Ct. 340, 90 L. Ed. 499 (1946).

The Constitution makes the President the "Commander in Chief" of the Armed Forces, Art. II, ß 2, cl. 1, but vests in Congress the powers to "declare War . . . and make Rules concerning Captures on Land and Water," Art. I, ß 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 Regulation of the land and naval Forces," id., cl. 14. The interplay 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 Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in [*592] peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. . . . Congress cannot direct the conduct of campaigns, nor can [***754] the President, or any commander under him, without the sanction of Congress, [**2774] institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature." 71 U.S. 2, 139-140, 4 Wall., at 139-140, 18 L. Ed. 281. 21

21 See also Winthrop 831 ("[I]n general, it is those provisions of the Constitution which empower Congress to 'declare war' and 'raise armies,' and which, in authorizing the initiation of war, authorize the employment of all necessary and proper agencies for its due prosecution, from which this tribunal derives its original sanction" (emphasis in original)).

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, 63 S. Ct. 2, 87 L. Ed. 3 ("By the Articles of War, and especially Article 15, Congress has explicitly 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 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:

[*593] "Jurisdiction of courts-martial not exclusive.

"The provisions of this code conferring jurisdiction upon courts-martial shall not be construed as depriving 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, provost courts, or other military tribunals." 64 Stat. 115.

22 Article 15 was first adopted as part of the Articles of War in 1916. See Act of Aug. 29, 1916, ch. 418, ß 3, Art. 15, 39 Stat. 652. When the Articles of War were codified and reenacted as the UCMJ in 1950, Congress determined to retain Article 15 because it had been "construed by the Supreme Court (Ex Parte Quirin, 317 U.S. 1, [63 S. Ct. 2, 87 L. Ed. 3] (1942))." S. Rep. No. 486, 81st Cong., 1st Sess., 13 (1949).

[***LEdHR11A] [11A] 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 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 preserved what power, under the Constitution and the common 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, 63 S. Ct. 2, 87 L. Ed. 3. 23 That much is evidenced [***755] by the Court's inquiry, following its conclusion that Congress had authorized military commissions, into whether the law of war had indeed been complied with in that case. See ibid.

23 [***LEdHR11B] [11B] Whether or not the President has independent power, absent congressional 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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

[***LEdHR12] [12] The Government would have us dispense with the inquiry that the Quirin [**2775] 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 [*594] President's authority to convene military commissions. First, while we assume that the AUMF activated the President's war powers, see Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518, 124 S. Ct. 2633, 159 L. Ed. 2d 578; Quirin, 317 U.S., at 28-29, 63 S. Ct. 2, 87 L. Ed. 3; see also Yamashita, 327 U.S., at 11, 66 S. Ct. 340, 90 L. Ed. 499, 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 UCMJ. Cf. Yerger, 8 Wall., at 105, 105, 19 L. Ed. 332 ("Repeals by implication are not favored"). 24

24 On this point, it is noteworthy that the Court in Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 (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, 63 S. Ct. 2, 87 L. Ed. 3. 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 682, 165 L. Ed. 2d, at 809 (dissenting opinion), ignores the reasoning in Quirin.

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 convened 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 judicial review of their "final decision[s]," DTA ß 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 [*595] 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.

V

The common law governing military commissions may be gleaned from past practice and what sparse legal precedent exists. Commissions historically have been used in three [***756] situations. See Bradley & Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2132-2133 (2005); Winthrop 831-846; Hearings 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, 66 S. Ct. 606, 90 L. Ed. 688 (1946); Milligan 4 Wall., at 121-122, 18 L. Ed. 281, but is well recognized. 25 [**2776] See Winthrop 822, 836-839. Second, commissions have been established to try civilians "as part of a temporary military government over occupied enemy territory or territory regained from an [*596] enemy where civilian government cannot and does not function." Duncan, 327 U.S., at 314, 66 S. Ct. 606, 90 L. Ed. 688 ; see Milligan 4 Wall., at 141-142, 18 L. Ed. 281 (Chase, C. J., concurring in judgment) (distinguishing "martial law proper" from "military government" in occupied territory). Illustrative of this second kind of commission is 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, 72 S. Ct. 699, 96 L. Ed. 988 (1952). 26

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, 18 L. Ed. 281 (emphasis in original).

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 establishment of civil government," Madsen, 343 U.S., at 354-355, 72 S. Ct. 699, 96 L. Ed. 988, which may in some cases extend beyond the "cessation of hostilities," id., at 348, 72 S. Ct. 699, 96 L. Ed. 988.

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, 63 S. Ct. 2, 87 L. Ed. 3, 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 [***757] cognizable during time of war, but its role is primarily a factfinding one--to determine, typically on the battlefield [*597] itself, whether the defendant has violated the law of war. The last time the U.S. Armed Forces 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, 63 S. Ct. 2, 87 L. Ed. 3. 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, 66 S. Ct. 340, 90 L. Ed. 499.

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 commissions 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, 63 S. Ct. 2, 87 L. Ed. 3, 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.

[**2777] Quirin is the model the Government invokes most frequently to defend the commission convened to try Hamdan. 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 Winthrop, whom we have called "the 'Blackstone of Military Law,'" Reid v. Covert, 354 U.S. 1, 19, n. 38, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957) (plurality opinion), describes at least four preconditions for exercise 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 offences committed within the field of the command of the convening commander." Winthrop 836. The "field ofthe command" in these circumstances means the "theatre of war." Ibid. Second, the offense charged "must have been committed within the period of the war." 28Id., 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 law or an occupation may try [*598] 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 members 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 tribunals only," and "[b]reaches of military orders or regulations for which offenders are not legally triable by court-martial under the Articles of war." Id., at 839. 29

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.

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 Respondents 27; cf. Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3; In re Yamashita, 327 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499 (1946).

All parties agree that Colonel Winthrop's treatise accurately describes the common law governing military [***758] commissions, and that the jurisdictional limitations he identifies were incorporated in Article of War 15 and, later, Article 21 of the UCMJ. It also is undisputed that Hamdan'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 jurisdiction." Id., at 842 (emphasis in original). The question is whether the preconditions designed to ensure that a military necessity exists to justify the use of this extraordinary 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 of that more than 5-year-long [**2778] period preceded the attacks of [*599] 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 agreement with [*600] Usama bin Laden and others to commit war crimes, nor a [***759] single overt act, is alleged to have occurred 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.

30 The elements of this conspiracy charge have been defined not by Congress but by the President. See Military Commission Instruction No. 2, 32 CFR ß 11.6 (2005).

31 Justice Thomas would treat Usama bin Laden's 1996 declaration of jihad against Americans as the inception of the war. See post, at 683-688, 165 L. Ed. 2d, at 810-812 (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 658, n 3, 165 L. Ed. 2d, at 811. 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, 63 S. Ct. 2, 87 L. Ed. 3 (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) (emphasis added) (cited post, at 686, 165 L. Ed. 2d, at 811-812). 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, 17 L. Ed. 459 (1863) (cited post, at 679, 684, 685, and 687, 165 L. Ed. 2d, at 807, 810, 811, and 812 (Thomas, J., dissenting)), 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 686, 165 L. Ed. 2d, at 812, misses the mark in three critical respects. First, Kuehn was tried for federal espionage crimes under what were then 50 U.S.C. ßß 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 n 28, supra, ), not a commission established exclusively to try violations of the law of war, see Winthrop 837. Third, the martial law commissions established to try crimes in Hawaii were ultimately declared illegal by this Court. See Duncan v. Kahanamoku, 327 U.S. 304, 324, 66 S. Ct. 606, 90 L. Ed. 688 (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 intended to authorize the supplanting of courts by military tribunals").

These facts alone cast doubt on the legality of the charge and, hence, the commission; [**2779] as Winthrop makes plain, the offense alleged must have been committed both in a theater 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, 66 S. Ct. 340, 90 L. Ed. 499 ("Neither congressional action nor the military orders constituting the commission authorized it to place petitioner on trial unless the charge proffered against him 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 guerrilla,'" and aiding the enemy. See post, at 693-697, 165 L. Ed. 2d, at 813-818, 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 692, n 7, 165 L. Ed. 2d, at 815-816, (citation omitted); it is quite another to say that a crime not charged may nonetheless be read into an indictment. 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 697, 165 L. Ed. 2d, at 818, 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 military commission pursuant to Article 104 of the UCMJ, 10 U.S.C. ß 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 distinction 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 guerrilla,'" cf. post, at 695, n 9, 165 L. Ed. 2d, at 817, (citation omitted), a label alone does not render a person susceptible to execution or other criminal punishment; the charge of "'being a guerrilla'" invariably is accompanied by the allegation that the defendant "'took up arms'" as such. This is because, as explained by Judge Advocate General Holt in a decision upholding the charge of "'being a guerrilla'" 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 694-695, n 9,165 L. Ed. 2d, at 817. 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 695-697, 165 L. Ed. 2d, at 817-818. The convictions of certain high-level Nazi officials for "membership in a criminal organization" 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 themselves. See Arts. 9 and 10, in 1 Trial of the Major War Criminals Before the International Military Tribunal; Nuremberg, 14 November 1945-1 October 1946, p. 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).

[*601] There is no suggestion that Congress has, in exercise of its constitutional [***760] authority to "define and punish . . . Offences against the Law of Nations," U.S. Const., Art. I, ß 8, cl. 10, [*602] positively identified "conspiracy" as a war crime. 33 As we explained in Quirin, that is not necessarily [**2780] 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 statute. 317 U.S., at 30, 63 S. Ct. 2, 87 L. Ed. 3. When, however, neither the elements of the offense nor the range of permissible punishments 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 adjudicative 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, 116 S. Ct. 1737, 135 L. Ed. 2d 36 (1996) (acknowledging that Congress "may not delegate the power to make laws"); Reid, 354 U.S., at 23-24, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 ("The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds"); The Federalist No. 47, p 324 (J. Cooke ed. 1961) (J. Madison) ("The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny"). 34

33 Cf. 10 U.S.C. ß 904 (making triable by military commission the crime of aiding the enemy); ß 906 (same for spying); War Crimes Act of 1996, 18 U.S.C. ß 2441 (2000 ed. and Supp. III) (listing war crimes); Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998, ß 583, 111 Stat. 2436 (same).

34 While the common law necessarily is "evolutionary in nature," post, at 689, 165 L. Ed. 2d, at 814 (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 precedent. See, e.g., Queen. v. Rimmington, [2006] 2 All E. R. 257, 275-279 (2005) (House of Lords); id., at 279 (while "some degree of vagueness is inevitable and development of the law is a recognized 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, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (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.

[*603] 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, 63 S. Ct. 2, 87 L. Ed. 3; see id., at 35-36, 63 S. Ct. 2, 87 L. Ed. 3 ("This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War" (footnote omitted)). Although the picture arguably was less clear in Yamashita, compare 327 U.S., at 16, 66 S. Ct. 340, 90 L. Ed. 499 (stating that the provisions [***761] 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, 66 S. Ct. 340, 90 L. Ed. 499 (Murphy, J., dissenting), the disagreement between the majority 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 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. 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 military commission [*604] not exercising some other form of jurisdiction, 35 [**2781] and does not appear in either the Geneva Conventions or the Hague Conventions--the major treaties on the law of war. 36 Winthrop explains that under the common 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 offence consisting in overt acts, i.e. in unlawful commissions or actual attempts to commit, and not in intentions merely" (emphasis in original)).

35 The 19th-century trial of the "Lincoln conspirators," even if properly classified as a trial by law-of-war commission, cf. W. Rehnquist, All the Laws But One: Civil Liberties in Wartime 165-167 (1998) (analyzing 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, confederating, and conspiring together" to murder the President, they were also charged (as we read the indictment, cf. post, at 699-700, n 12, 165 L. Ed. 2d, at 821-822 (Thomas, J., dissenting)), with "maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln." H. R. Doc. No. 314, 55th Cong., 3rd 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 substantive 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 Yamashita, 327 U.S., at 15-16, 66 S. Ct. 340, 90 L. Ed. 499.

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 Respondents 27. Second, it observes that Winthrop at one [*605] point in his treatise identifies conspiracy as an offense "prosecuted by military commissions." Ibid. (citing Winthrop 839, and n 5). Finally, it notes that another military 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 [***762] 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 conspiracy is not persuasive, since the Court declined to address whether the offense actually qualified as a violation 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, defining 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, 63 S. Ct. 2, 87 L. Ed. 3.

The Government, defending its charge, argued that the conspiracy alleged "constitute[d] an additional violation of the law of war." Id., at 15, 63 S. Ct. 2, 87 L. Ed. 3. The saboteurs [**2782] disagreed; they maintained that "[t]he charge of conspiracy can not stand if the other charges fall." Id., at 8, 63 S. Ct. 2, 87 L. Ed. 3. The Court, however, declined to resolve the dispute. It concluded, first, that the [*606] specification supporting Charge I adequately alleged a "violation of the law of war" that was not "merely colorable or without foundation." Id., at 36, 63 S. Ct. 2, 87 L. Ed. 3. The facts the Court deemed sufficient for this purpose were that the defendants, 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, 63 S. Ct. 2, 87 L. Ed. 3. 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, 63 S. Ct. 2, 87 L. Ed. 3. "The offense was complete when with that purpose they entered--or, having so entered, they remained upon--our territory in time of war without uniform or other appropriate means of identification." Ibid.

Turning to the other charges alleged, the Court explained 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, 63 S. Ct. 2, 87 L. Ed. 3. No mention was made at all of Charge IV--the conspiracy charge.

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 conspiracy charge, but its analysis of Charge I placed special [***763] 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 commission-- without the [*607] actual commission of or attempt to commit a "hostile and warlike act." Id., at 37-38, 63 S. Ct. 2, 87 L. Ed. 3.

That limitation makes eminent sense when one considers the necessity from whence this kind of military commission 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., 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 urgency would not have been felt vis-a-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 acknowledged 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, 63 S. Ct. 2, 87 L. Ed. 3 (emphasis added).

[**2783] Winthrop and Howland are only superficially more helpful to the Government. Howland, granted, lists "conspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy" as one of over 20 "offenses against the laws and usages of war" "passed upon and punished by military commissions." Howland 1070-1071. 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 id. at 1071. (citing Record Books of the Judge Advocate General Office, R. 2, 144; R. 3, 401, 589, 649; R. 4, 320; R. 5, [*608] 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, apparently 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 conspiracies" 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 Government 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 commissions. See n 27, [***764] supra. Accordingly, they regularly tried war crimes and ordinary crimes together. Indeed, as Howland observes, "[n]ot unfrequently the crime, as charged and found, was a combination of the two species of offenses." Howland 1071; see also Davis 310, n 2; Winthrop 842. The example he gives is "'murder in violation of the laws of war. '" Howland 1071-1072. Winthrop's 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 emphasizes 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 (citing W. Finlason, Martial Law 130 (1867) (emphasis in original)).

[*609] Justice Thomas cites as evidence that conspiracy is a recognized violation of the law of war the Civil War indictment against Henry Wirz, which charged the defendant 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 701, 165 L. Ed. 2d, at 820-821 (dissenting opinion) (quoting H. R. Doc. No. 314, 55th Cong., 3d Sess., 785 (1899); 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 [**2784] 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 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 (emphasis added). 37

37 The other examples Justice Thomas offers are no more availing. The Civil War indictment against Robert Louden, cited post, at 702, 165 L. Ed. 2d, at 821, 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 Leger 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.

[*610] Finally, international sources confirm that the crime charged here is not a recognized violation of the law of [***765] war. 38 As observed above, see supra, at 603-604, 165 L. Ed. 2d, at 761, none of the major treaties governing the law of war identifies conspiracy 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 the Major War Criminals Before the International Military Tribunal: Nuremberg, 14 November 1945-1 October 1946, p 225 (1947)(hereinafter Trial of Major War Criminals). The International Military Tribunal at Nuremberg, over the prosecution's objections, pointedly refused to recognize as a violation of the law of war conspiracy to commit war crimes, see, e.g., 22 id., at 469, 39 and convicted only Hitler's most senior associates of conspiracy to wage aggressive war, see S. Pomorski, Conspiracy [*611] 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 [**2785] the internationally 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 international law'"). 40

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 constitutionally triable only by a jury." 317 U.S., at 29, 63 S. Ct. 2, 87 L. Ed. 3. We need not test the validity of that assumption here because the international sources only corroborate the domestic ones.

39 Accordingly, the Tribunal determined to "disregard the charges . . . that the defendants conspired to commit War Crimes and Crimes against Humanity." 22 Trial of Major War Criminals 469, 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 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. Tadic, Judgment, Case No. IT-94-1-A (ICTY App. Chamber, July 15, 1999); see also Prosecutor v. Milutinovic, Decision on Dragoljub Ojdanic's Motion Challenging Jurisdiction--Joint Criminal Enterprise, Case No. IT-99-37-AR72, P 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").

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 [***766] 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, 63 S. Ct. 2, 87 L. Ed. 3. Because the charge does not [*612] support the commission's jurisdiction, 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 establishment of military commissions: military necessity. Hamdan's tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Cf. Rasul v. Bush, 542 U.S., at 487, 124 S. Ct. 2686, 159 L. Ed. 2d 548 (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 an offense that "by the law of war may be tried by military commissio[n]." 10 U.S.C. ß 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 urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any [**2786] stretch of the historical evidence or this Court's precedents, a military commission established by Executive Order under the authority [*613] of Article 21 of the UCMJ may lawfully try a person and subject him to punishment.

41 Justice Thomas' suggestion that our conclusion precludes the Government from bringing to justice those who conspire to commit acts of terrorism is therefore wide of the mark. See post, at 686, n 3, 704-706, 165 L. Ed. 2d, at 811, n 3, 822-823. 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 705, 165 L. Ed. 2d, at 823.

VI

[***LEdHR1B] [1B] [***LEdHR2B] [2B] Whether or not the Government has charged Hamdan with an offense against the law of war cognizable by military 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 precepts of the law of nations," Quirin, 317 U.S., at 28, 63 S. Ct. 2, 87 L. Ed. 3 --including, inter alia, the four Geneva Conventions signed in 1949. See Yamashita, 327 U.S., at 20-21, 23-24, 66 S. Ct. 340, 90 L. Ed. 499. The procedures that the Government has decreed will govern Hamdan's trial by commission violate these laws.

A

The commission's procedures are [***767] set forth in Commission Order No. 1, which was amended most recently on

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. ß 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 applicable, sentencing decisions. ß 4(A)(5). The accused is entitled 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." ßß 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 ßß 5(A)-(P). These rights [*614] 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 protection of information classified or classifiable . . .; information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests." ß 6(B)(3). 42 Appointed military defense counsel must be privy to these closed sessions, 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 "engages in disruptive conduct." ß 5(K).

Another striking feature of the rules governing Hamdan'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." ß 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 statements need be [**2787] sworn. See ßß 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," ßß 6(B)(3), 6(D)(5)(a)(v)), so long as the presiding officer concludes that the evidence is "probative" under ß 6(D)(1) and that its admission without the accused's knowledge would not "result in the denial of a full and fair trial." ß 6(D)(5)(b). 43 Finally, a presiding officer's determination [*615] that evidence "would [not] have probative [***768] value to a reasonable person" may be overridden by a majority of the other commission members. ß 6(D)(1).

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).

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). ß 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 experience as a judge. ß 6(H)(4). The review panel is directed to "disregard any variance from procedures specified in this Order or elsewhere that would not materially have affected the outcome of the trial before the Commission." 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 President with his recommendation as to final disposition. ß 6(H)(5). The President then, unless he has delegated the task to the Secretary, makes the "final decision." ß 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 deviation from those governing courts-martial itself renders the commission illegal. Chief among his particular objections are that he may, under the Commission Order, be convicted [*616] 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 applicable in criminal trials and court-martial proceedings.

[***LEdHR13] [13] 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, 95 S. Ct. 1300, 43 L. Ed. 2d 591, precludes pre-enforcement review of procedural rules, (2) Hamdan will be able to raise any such challenge following 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 according 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.

[**2788] First, because Hamdan apparently is not subject to the 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 ß 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 violate the law: The procedures are described with particularity 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 [***769] 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.

44 Any decision of the commission is not "final" until the President renders it so. See Commission Order No. 1, ß 6(H)(6).

[*617] C

In part because the difference between military commissions 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 historically 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 according to the same general rules as courts-martial in order to prevent abuses which might otherwise arise"). Accounts of commentators from Winthrop through General Crowder--who drafted Article of War 15 and whose views have been deemed "authoritative" by this Court, Madsen, 343 U.S., at 353, 72 S. Ct. 699, 96 L. Ed. 988 --confirm as much. 45 As recently 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 Military Commissions: Courting Illegality, 23 Mich. J. Int'l L. 1, 3-5 (2001-2002)

45 See Winthrop 835, and n 81 ("military commissions are constituted and composed, and their proceedings are conducted, similarly to general 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. Coppee, Field Manual of Courts-Martial p 105 (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 proceedings are conducted in exactly the same way, as to form, examination of witnesses, etc.").

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. [*618] See 327 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499. 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, Yamashita [**2789] 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, 66 S. Ct. 340, 90 L. Ed. 499; id., at 31-34, 66 S. Ct. 340, 90 L. Ed. 499 (Murphy, J., dissenting). This Court upheld the 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 [***770] in courts-martial that they generated an unusually long and vociferous critique from two Members of this Court. See id., at 41-81, 66 S. Ct. 340, 90 L. Ed. 499 (Rutledge, J., joined by Murphy, J., dissenting). 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, 66 S. Ct. 340, 90 L. Ed. 499 (Opinion of Rutledge, J.).

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." Yamashita, 327 U.S., at 44, 66 S. Ct. 340, 90 L. Ed. 499 (footnotes omitted).

[*619] 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 Geneva 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, 66 S. Ct. 340, 90 L. Ed. 499, nor a protected prisoner of war being tried for crimes committed during his detention, id., at 21, 66 S. Ct. 340, 90 L. Ed. 499.

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 Yamashita'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: [**2790] Geneva Convention Relative to the Treatment of Prisoners of War 413 (J. Pictet gen. ed.1960) (hereinafter GCIII Commentary) (explaining [*620] 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 interpretations of the 1929 Geneva Convention, including this [***771] Court's decision in Yamashita). The most notorious exception to the principle of uniformity, then, has been stripped of its precedential value.

47 Article 2 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 concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands." 10 U.S.C. ß 802(a). Guantanamo Bay is such a leased area. See Rasul v. Bush, 542 U.S. 466, 471, 124 S. Ct. 2686, 159 L. Ed. 2d 548 (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 Conventions. Though not binding law, the commentary is, as the parties recognize, relevant in interpreting the Conventions' provisions.

[***LEdHR14] [14] 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:

"(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 article 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 uniformity proves impracticable.

[*621] Hamdan argues that Commission Order No. 1 violates both of these restrictions; he maintains that the procedures described in the Commission Order are inconsistent with the UCMJ and that the Government has offered no explanation for their deviation from the procedures governing 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 ß 6 of the Commission Order, which permits exclusion of the accused from proceedings and denial of his access to evidence in certain circumstances, and the UCMJ's requirement that "[a]ll . . . proceedings" other than votes and deliberations by courts-martial "shall be made a part of the record and shall be in the presence of the accused." 10 U.S.C. ß 839(c) (2000 ed., 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 [**2791] to commissions, and Commission Order No. 1 sets forth no procedure [*622] that is [***772] "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 the rules of evidence generally recognized in the trial of criminal cases in the United States district courts," November 13 Order ß 1(f), is, in the Government's view, explanation 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).

[***LEdHR1C] [1C] Hamdan has the better of this argument. Without reaching the question whether any provision of Commission 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 governing courts-martial. Subsection (b) of Article 36 was added after World War II, and requires a different showing of impracticability from the one required by subsection (a). Subsection (a) requires that the rules the President promulgates for courts-martial, provost courts, and military commissions alike conform to those that govern procedures in Article III courts, "so far as he considers practicable." 10 U.S.C. ß 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." ß 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

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 711, 165 L. Ed. 2d, at 827. 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).

[*623] [***LEdHR15] [15] The President here has determined, pursuant to subsection (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," ß 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 impracticable to apply the rules for courts-martial. 51 And even if [**2792] subsection (b)'s requirements may be satisfied [***773] without such an official determination, the requirements of that subsection are not satisfied here.

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 640, 165 L. Ed. 2d, at 783 (opinion concurring in part), however, the level of deference accorded to a determination made under subsection (b) presumably would not be as high as that accorded to a determination under subsection (a).

[***LEdHR1D] [1D] 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 [*624] Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial.

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 712-713, 165 L. Ed. 2d, at 827-829 (dissenting opinion). We have not heretofore, in evaluating the legality of executive action, deferred to comments made by such officials to the media. Moreover, the only additional reason the comments provide--aside from the general danger posed by international terrorism--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.

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 fundamental 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. ß 839(c) (2000 ed., Supp. V). Whether or not that departure technically is "contrary to or inconsistent with" the terms of the UCMJ, 10 U.S.C. ß 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 misunderstands the purpose and the history of military commissions. 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 tribunal 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. [*625] That history explains 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, 72 S. Ct. 699, 96 L. Ed. 988, does not [***774] detract from the force of this history; 53 [**2793] Article 21 did not transform 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 exigencies 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

53 Justice Thomas relies extensively on Madsen for the proposition that the President has free rein to set the procedures that govern military commissions. See post, at 706-707, 709, n 16, 710 and 721, 165 L. Ed. 2d, at 824, 825, n 16, 826, and 827. 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, 72 S. Ct. 699, 96 L. Ed. 988, and (3) the procedures used to try the petitioner actually afforded more protection than those used in courts-martial, see id., at 358-360, 72 S. Ct. 699, 96 L. Ed. 988; see also id., at 358, 72 S. Ct. 699, 96 L. Ed. 988 ("[T]he Military Government 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 707, n 16, 165 L. Ed. 2d, at 824-825 (Thomas, J., dissenting) (quoting Winthrop 841). Article 36(b), however, imposes a statutory command that must be heeded.

D

[***LEdHR2C] [2C] The procedures adopted to try Hamdan also violate the Geneva Conventions. The Court of Appeals dismissed Hamdan's Geneva Convention challenge on three independent grounds: (1) the Geneva Conventions are not judicially 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 [*626] majority respecting the first and the last. As we explained in Part III, supra, the abstention rule applied in Councilman, 420 U.S. 738, 95 S. Ct. 1300, 43 L. Ed. 2d 591, is not applicable here. 55 And for the reasons that follow, we hold that neither of the other grounds the Court of Appeals gave for its decision is persuasive.

55 Justice Thomas makes the different argument that Hamdan's Geneva Convention challenge is not yet "ripe" because he has yet to be sentenced. See post, at 719-720, 65 L. Ed. 2d, at 831-833. 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.

i

The Court of Appeals relied on Johnson v. Eisentrager, 339 U.S. 763, 70 S. Ct. 936, 94 L. Ed. 1255 (1950), to hold that Hamdan could not invoke the Geneva Conventions to challenge the Government's plan to prosecute him in accordance with Commission 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 Convention rendered illegal some of the procedures employed during their trials, which they said deviated impermissibly from the procedures used by courts-martial to try American soldiers. See id., at 789, 70 S. Ct. 936, 94 L. Ed. 1255. We rejected that claim on the merits because the petitioners (unlike Hamdan here) had failed to [***775] identify any prejudicial disparity "between 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 Geneva Convention, during trials for crimes that occurred before their confinement as prisoners of war. Id., at 790, 70 S. Ct. 936, 94 L. Ed. 1255. 56

56 As explained in Part VI-C, supra, that is no longer true under the 1949 Conventions.

[*627] [**2794] 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:

"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 powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention." Id., at 789, n. 14, 70 S. Ct. 936, 94 L. Ed. 1255.

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 Geneva Convention, 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 [*628] actions and furnishing petitioner with any enforceable right. 58 For, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886), they are, as the Government does not dispute, part of the law of war. See Hamdi, 542 U.S., at 520-521, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (plurality opinion). And compliance with the law of war is the condition upon which the authority set forth in Article 21 is granted.

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 (J. Pictet gen ed. 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 on prisoners of war was affirmed").

58 But see generally Brief for Louis Henkin et al. as Amici Curiae; 1 Int'l Comm. of 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 the violation"); GCIII Commentary 92; GCIV Commentary 79.

ii

For the Court of Appeals, acknowledgment [***776] of that condition 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 concluded 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 Hamdan 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 [**2795] 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 Government, 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 applicable only to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting [*629] Parties." 6 U. S. T., at 3318. 59 Since Hamdan 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 protections of those Conventions are not, it is argued, applicable to Hamdan. 60

59 For convenience's sake, we use citations to the Third Geneva Convention only.

60 The President has stated that the conflict with the Taliban is a conflict to which the Geneva Conventions apply. See White House Memorandum, 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.

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 Common 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 Party 62 to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons taking no active part in the hostilities, including [*630] members of armed forces who have laid 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 [***777] court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Id., at 3320.

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.

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 international 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 "fundamental logic [of] the Convention's provisions on its [**2796] application." Id., at 44 (Williams, J., concurring). Common 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, P 1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-a-vis one another even if one party to the conflict is a nonsignatory "Power," and must so abide vis-a-vis the nonsignatory if "the latter accepts and applies" those terms. Ibid. (Art. 2, P 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 between 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 the Principles of Morals and Legislation 6, 296 (J. [*631] Burns & H. Hart eds. 1970) (using the term "international law" as a "new though not inexpressive appellation" meaning "betwixt nation and nation"; defining "international" to include "mutual transactions between sovereigns as such"); Int'l Comm. of Red Cross 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 international 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 application 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 [***778] application with a narrower range of rights than did earlier proposed iterations. See Id. at 42-43.

63 See also id., at 35 (Common Article 3 "has the merit of being simple and clear . . . Its observance does not depend upon preliminary 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 Workshop Deskbook 228 (June 2000)(reprint 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, P 218, 25 I. L. M. 1023)); Prosecutor v. Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, P 102 (ICTY App. Chamber, Oct. 2, 1995) (stating that "the character of the conflict is irrelevant" in deciding whether Common Article 3 applies).

iii

Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a "regularly [*632] constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." 6 U. S. T., at 3320 (Art. 3, P 1(d)). While the term "regularly constituted court" is not specifically defined 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 constituted'" tribunals to include "ordinary military courts" and "definitely exclud[e] all special [**2797] 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, 66 S. Ct. 340, 90 L. Ed. 499 (Rutledge, J., dissenting) (describing military commission as a court "specially constituted for the 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 Int'l Humanitarian 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").

64 The commentary'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 "regulierement constitues" in place of "properly constituted." 6 U. S. T., at 3559.

The Government offers only a cursory defense of Hamdan'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 congressional statutes." Post, at 644, 165 L. Ed. 2d, at 785 (opinion concurring in part). At a minimum, a military commission "can be 'regularly constituted' by the standards of our military justice system [*633] only if some practical need explains deviations from court-martial practice." Post, at 645, 165 L. Ed. 2d, at 786. As we have explained, see Part VI-C, supra, no such need has been demonstrated here. 65

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, ß 11 (providing that the Secretary of Defense may change the governing rules "from time to time").

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, P 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 customary international law. Many of these are [***779] 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 Government "regard[s] the provisions of Article 75 as an articulation 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

66 Other international instruments to which the United States is a signatory include the same basic protections set forth in Article 75. See, e.g., International Covenant on Civil and Political Rights, Art. 14, P 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, Law Reports of Trials of War Criminals 25, 30 (1948)(reprint 1997) (trial of Sergeant-Major Shigeru Ohashi), 66, 75 (trial of General Tanaka Hisakasu).

[*634] We agree with Justice Kennedy that the procedures adopted to try Hamdan [**2798] deviate from those governing courts-martial in ways not justified by any "evident practical need," post, at 647, 165 L. Ed. 2d, at 787, and for that reason, at least, fail to afford the requisite guarantees. See post, at 646-653, 165 L. Ed. 2d, at 785, 786-790. We add only that, as noted in Part VI-A, supra, various provisions of Commission Order No. 1 dispense with the principles, 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 ßß 6(B)(3), (D). 67 That the [*635] Government has a compelling interest in denying Hamdan access to certain sensitive information is not doubted. Cf. post, at 723-724, 165 L. Ed. 2d, at 834 (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.

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, ß 6(D)(5)(b). But the Government suggests no circumstances 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, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (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, 32 S. Ct. 250, 56 L. Ed. 500 (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, 13 S. Ct. 136, 36 L. Ed. 1011 (1892) (exclusion of defendant from part of proceedings is "contrary to the dictates of humanity" (internal quotation marks omitted)); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170, n. 17, 171, 71 S. Ct. 624, 95 L. Ed. 817 (1951) (Frankfurter, J., concurring) ("[T]he 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.

v

Common Article 3 obviously tolerates [***780] 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 requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.

VII

[***LEdHR16] [16] 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 message implicit in that charge--viz., that Hamdan is a dangerous 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 detain 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 the case is remanded for further proceedings.

[**2799] It is so ordered.

The Chief Justice took no part in the consideration or decision of this case.

CONCUR BY: BREYER; KENNEDY (In Part)

CONCUR

[*636] 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 705, 165 L. Ed. 2d, at 823 (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 724, 165 L. Ed. 2d, at 834-835. 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, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004) (plurality opinion). Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning 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. 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 [***781] limits that certain statutes, duly enacted by Congress, have placed on the President'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 [*637] 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 pressures of the moment.

These principles seem vindicated here, for a case that may be of extraordinary importance is resolved by ordinary rules. The rules of most relevance here are those pertaining to the authority of Congress and the interpretation of its enactments.

It seems appropriate to recite these rather fundamental points because the Court refers, as it should in its exposition of the case, to the requirement of the Geneva Conventions of 1949 that military tribunals be "regularly constituted," ante, at 632, 165 L. Ed. 2d, at 778--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. ß 821. Whatever the substance and content of the term "regularly [**2800] 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 constitutional 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 prerogative to do so.

[*638] 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 commissions 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, 116 S. Ct. 1737, 135 L. Ed. 2d 36 (1996). Concentration of 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 [***782] Justice Jackson in his opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 "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 concurrent authority, or in which its distribution is uncertain." Id., at 637, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417And "[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 participation and regulation. Ante, at 593, 619-620, 165 L. Ed. 2d, at 754-755, 769-771. In the Uniform Code [*639] of Military Justice (UCMJ), 10 U.S.C. ß 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. ßß 816-820 (2000 ed. and Supp. III); it regulates the organization and procedure of those courts, e.g., ßß 822-835, 851-854; it defines offenses, ßß 877-934, and rights for the accused, e.g., ßß 827(b)-(c), 831, 844, 846, 855 (2000 ed.); and it provides mechanisms for appellate review, ßß 859-876b (2000 ed. and Supp. III). As explained below, the statute further recognizes that special military commissions may be convened to try war crimes. See infra, at 641, 165 L. Ed. 2d, at 783-784; ß 821 (2000 ed.). While these laws provide authority for certain forms of military courts, they also [**2801] impose limitations, at least two of which control this case. If the President has exceeded 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 Article 36 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 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 article shall be uniform insofar as practicable." 10 U.S.C. ß 836 (2000 ed.).

[*640] In this provision the statute allows the President to implement and build on the UCMJ's framework by adopting procedural regulations, subject to three requirements: (1) Procedures for military courts must conform to [***783] district-court rules insofar as the President "considers practicable"; (2) the procedures may not be contrary to or inconsistent with the provisions of the UCMJ; and (3) "insofar as practicable" all rules and regulations under ß 836 must be uniform, a requirement, as the Court points out, that indicates the rules must be the same for military commissions as for courts-martial unless such uniformity is impracticable, ante, at 620, 622, 165 L. Ed. 2d, at 771, 772, and n 50.

As the Court further instructs, even assuming the first and second requirements of ß 836 are satisfied here--a matter of some dispute, see ante, at 620-622, 165 L. Ed. 2d, at 771-772--the third requires us to compare the military-commission procedures with those for courts-martial and determine, to the extent there are deviations, whether greater uniformity would be practicable. Ante, at 623-625, 165 L. Ed. 2d, at 772-774. Although we can assume the President's practicability judgments are entitled to some deference, the Court observes that Congress' choice of language in the uniformity provision of 10 U.S.C. ß 836(b) contrasts with the language of ß 836(a). This difference suggests, at the least, a lower degree of deference for ß 836(b) determinations. Ante, at 623, 165 L. Ed. 2d, at 772-773. The rules for military courts may depart from federal-court rules whenever the President "considers" conformity impracticable, ß 836(a); but the statute requires procedural uniformity across different military courts "insofar as [uniformity is] practicable," ß 836(b), not insofar as the President considers it to be so. The Court is right to conclude this is of relevance to our decision. Further, as the Court is also correct to conclude, ante, at 623-624, 165 L. Ed. 2d, at 772-773, 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 accomplished." Webster's [*641] 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.

[**2802] In addition to ß 836, a second UCMJ provision, 10 U.S.C. ß 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 commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals."

In ß 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 military 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 [***784] 593, 165 L. Ed. 2d, at 754-755. 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, 63 S. Ct. 2, 87 L. Ed. 3 (1942), derives from "rules and precepts of the law of nations"; it is the body of international law governing armed conflict. Id., at 28, 63 S. Ct. 2, 87 L. Ed. 3. 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 [*642] with al Qaeda in Afghanistan and, as a result, to the use of a military commission to try Hamdan. Ante, at 629-633, 165 L. Ed. 2d, at 775-778; see also 367 U.S. App. D.C. 265, 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, "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 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 federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C. ß 2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in ß 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, 70 S. Ct. 936, 94 L. Ed. 1255 (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, 70 S. Ct. 936, 94 L. Ed. 1255. As the Court explains, ante, at 626-628, 165 L. Ed. 2d, at 774-775, 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, 70 S. Ct. 936, 94 L. Ed. 1255, Common Article 3 is nonetheless relevant to the question of authorization under ß 821. Common Article 3 is part of the law of war that Congress has directed the President to follow in establishing military [*643] commissions. Ante, at 629-630, 165 L. Ed. 2d, at 776-777. Consistent with that [**2803] view, the Eisentrager Court itself considered on the merits claims that "procedural irregularities" under the 1929 Convention "deprive[d] the Military Commission of jurisdiction." 339 U.S., at 789, 790, 70 S. Ct. 936, 94 L. Ed. 1255

In another military commission case, In re Yamashita, 327 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499 (1946), the Court likewise considered on the merits--without any caveat about [***785] remedies under the Convention--a claim that an alleged violation of the 1929 Convention "establish[ed] want of authority in the commission to proceed with the trial." Id., at 23, 24, 66 S. Ct. 340, 90 L. Ed. 499. 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 commission must satisfy Common Article 3's requirement of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," 6 U. S. T., at 3320. 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 ß 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 recognized as indispensable by civilized peoples," ibid., supports, at the least, a uniformity principle similar to that codified in ß 836(b). The concept of a "regularly constituted court" providing "indispensable" judicial guarantees requires consideration of the system of justice under which the commission is established, though no doubt certain minimum standards are applicable. See ante, at 632-633, 165 L. Ed. 2d, at 778; 1 Int'l Comm. of Red Cross, 1 Customary Int'l 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").

[*644] 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. ß 818. As the Court explains, moreover, while special military commissions have been convened in previous armed conflicts--a practice recognized in ß 821 --those military commissions generally have adopted the structure 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 commissions "be constituted in a similar manner and their proceedings 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 Precedents 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 U.N. 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 617-620, 165 L. Ed. 2d, at 769-771; post, at 707, n 15, 165 L. Ed. 2d, at 824 (Thomas, J., dissenting). Today, moreover, ß 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, 72 S. Ct. 699, 96 L. Ed. 988, and n. 6 (1952); [**2804] Yamashita, supra, at [***786] 5, 66 S. Ct. 340, 90 L. Ed. 499; Quirin, 317 U.S., at 23, 63 S. Ct. 2, 87 L. Ed. 3 --codifies this presumption of uniformity at least as to "[p]retrial, trial, and post-trial procedures." 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.

[*645] 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 633, n 65, 165 L. Ed. 2d, at 778; see also Military Commission Order No. 1, ß 11 (Aug. 31, 2005), App. to Brief for Petitioner 46a-72a (hereinafter MCO), an acceptable degree of 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 executive 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, 71 U.S. 2, 4 Wall. 2, 18 L. Ed. 281 (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 authorization--can be "regularly constituted" by the standards of our military justice system only if some practical need explains deviations from court-martial [*646] practice. In this regard the standard of Common Article 3, applied here in conformity with ß 821, parallels the practicability standard of ß 836(b). Section 836, however, is limited by its terms to matters properly characterized as procedural --that is, "[p]retrial, trial, and post-trial procedures"--while Common Article 3 permits broader consideration 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--ßß 836 and 821 --is that considerations of practicability must support departures from court-martial practice. Relevant concerns, as noted earlier, 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 constitutional principle that congressional statutes can be controlling, 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 commission the precise circumstances of this case bear emphasis. The allegations against Hamdan are undoubtedly serious. Captured in Afghanistan during our [***787] Nation's armed conflict with the Taliban and al Qaeda--a conflict that continues as we speak--Hamdan stands accused of overt acts in furtherance of a conspiracy to commit terrorism: delivering weapons and ammunition to al Qaeda, acquiring trucks for use by Usama bin Laden's [**2805] bodyguards, providing 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 conclude that the military commission the President has convened to try Hamdan is unauthorized. Ante, at 625, 631-633, 635, 165 L. Ed. 2d, at 774, 778, 779-780. The following analysis, which expands on the Court's discussion, explains my reasons for reaching this conclusion.

[*647] To begin with, the structure and composition of the military commission deviate from conventional court-martial standards. Although these deviations raise questions about the fairness of the trial, no evident practical 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. ßß 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. ßß 825(d)(2), 851-852 (2000 ed.); R. C. M. 503(a). Paralleling this structure, under MCO No. 1 an "'Appointing Authority'"--either the Secretary of Defense or the Secretary's "designee"--establishes commissions subject to the order, MCO No. 1, ß 2, approves and refers charges to be tried by those commissions, ß 4(B)(2)(a), and appoints commission members who vote on the conviction and sentence, ßß 4(A)(1)-(3). In addition the Appointing Authority determines the number of commission members (at least three), oversees the chief prosecutor, 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, approves 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, ßß 4(A)(2), 5(H), 6(A)(4), 7(A); Military Commission Instruction No. 3, ß 5(C) (July 15, 2005) (hereinafter MCI), available at www.defenselink.mil/news/Aug2005/d20050811MC13.pdf; [*648] MCI No. 4, ß 5(C) (Sept. 16, 2005), available at www.defenselink.mil/news/Oct2005/d20051003MCI4.pdf; MCI No. 6, ß 3(B)(3) (Apr. 15, 2004), available at www.defenselink.mil/news/Apr2004/d20040420ins6.pdf [***788] (all Internet 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 offenses against the law of war, [**2806] R. C. M. 201(f); 10 U.S.C. ßß 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. ß 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. ß 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. ß 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 General'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 responsible to the Judge Advocate General or the Judge Advocate General's designee." R. C. M. 503(b); see also 10 U.S.C. ß 826(c); see generally Weiss v. United States, 510 U.S. 163, 179-181, 114 S. Ct. 752, 127 L. Ed. 2d 1 (1994) (discussing provisions that "insulat[e] military 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, ßß 4(A)(1), (A)(4); [*649] and that officer need only be a judge advocate, that is, a military lawyer, ß 4(A)(4).

The Appointing Authority, moreover, exercises supervisory powers that continue during trial. Any interlocutory question "the disposition of which would effect a termination of proceedings with respect to a charge" is subject to decision not by the presiding officer, but by the Appointing Authority. ß 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. ß 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. ß 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. ß 860 (same); cf. ß 837(a) (barring command influence on court-martial actions). The Court of Criminal Appeals functions as the military's intermediate appeals court; it is established by the Judge Advocate General for each Armed Service and composed of appellate military [***789] judges. R. C. M. 1203; 10 U.S.C. ß 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. ß 816(1) (2000 ed. and Supp. III), the Appointing Authority [*650] here is free, as noted earlier, to select as few as three. MCO No. 1, ß 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 Authority here--including even the resolution of dispositive [**2807] 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 judicial review in federal court. As the Court is correct to observe, the scope of that review is limited, DTA ß 1005(e)(3)(D), id., at 2743; see also ante, at 573-574, 165 L. Ed. 2d, at 742-743, and the review is not automatic if the defendant's sentence is under 10 years, ß 1005(e)(3)(B), 119 Stat. 2743. Also, provisions for review of legal issues after trial cannot correct for structural 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 review, furthermore, they must navigate a military review process that again raises fairness concerns. At the outset, the Appointing Authority (unless the Appointing Authority is the Secretary of Defense) performs an "administrative review" of undefined scope, ordering any "supplementary proceedings" deemed necessary. MCO No. 1. ß 6(H)(3). After that the case is referred to a three-member Review Panel composed of officers selected by the Secretary of Defense. ß 6(H)(4); MCI No. 9, ß 4(B) (Oct. 11, 2005), available at www.defenselink.mil/news/Oct2005/d20051014MCI9.pdf. Though the Review Panel may return the case for further [*651] proceedings only if a majority "form[s] a definite and firm conviction that a material error of law occurred," MCO No. 1, ß 6(H)(4); MCI No. 9, ß 4(C)(1)(a), only one member must have "experience as a judge," MCO No. 1, ß 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 Advocate General, the Court of Criminal Appeals, and the Court of Appeals for the Armed Forces, 10 U.S.C. ßß 862, 864, 866, 867, 869, the review process here lacks structural protections designed to help ensure impartiality.

These structural differences between the military commissions and courts-martial--the concentration of [***790] functions, 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. Congress has prescribed these guarantees for courts-martial; and no evident practical need explains the departures here. For these reasons the commission cannot be considered 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 ß 836(b). As the Court explains, ante, at 614-615, 623, 165 L. Ed. 2d, at 767-768, 773, the MCO abandons the detailed Military Rules of Evidence, which are modeled on the Federal Rules of Evidence in conformity with ß 836(a)'s requirement of presumptive compliance with district-court rules.

Instead, the order imposes just one evidentiary rule: "Evidence shall be admitted if . . . the evidence would have probative [**2808] value to a reasonable person," MCO No. 1, ß 6(D)(1). Although it is true some military commissions applied [*652] 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 commissions were adopted before Congress enacted the uniformity requirement of 10 U.S.C. ß 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 permit trial of battlefield captives like Hamdan, military statutes and rules already provide for introduction of deposition testimony for absent witnesses, 10 U.S.C. ß 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 ____, 165 L. Ed. 2d, at 771-772. That provision authorizes admission of deposition testimony only if the witness is absent for specified reasons, ß 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 ß 836(a), it creates a uniformity problem under ß 836(b)

The rule here could permit admission of multiple hearsay and other forms of evidence generally prohibited on grounds of unreliability. Indeed, the commission regulations specifically contemplate admission of unsworn written statements, MCO No. 1, ß 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, ß 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 statements obtained "through the use of coercion, unlawful influence, or unlawful inducement"); 10 U.S.C. ß 831(d) [***791] (same). Besides, even if [*653] evidence is deemed nonprobative by the presiding officer at Hamdan's trial, the military-commission members still may view it. In another 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, ß 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 622-624, 165 L. Ed. 2d, at 772-773; nor is any such need self-evident. For all the Government's regulations 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 Articles 36 and 21 of the UCMJ, 10 U.S.C. ßß836, 821. 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 [**2809] 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 standard--a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," 6 U. S. T., at 3320 (P (1)(d))--necessarily [*654] requires that the accused have the right to be present at all stages of a criminal trial. As Justice Stevens explains, MCO 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 ßß 6(B)(3), (D)(5); ante, at 613-614, 165 L. Ed. 2d, at 767. 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 634-635, n 67, 65 L. Ed. 2d, at 779 (collecting cases); see also In re Oliver, 333 U.S. 257, 277, 68 S. Ct. 499, 92 L. Ed. 682 (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, ß 6(D)(5)(b); see also post, at 722-723, 165 L. Ed. 2d, at 834. This fairness determination, moreover, is unambiguously subject to judicial review under the DTA. See ß 1005(e)(3)(D)(i), 119 Stat. 2743 (allowing review of compliance with the "standards and procedures" in MCO No. 1). The evidentiary proceedings at Hamdan's [***792] 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 unnecessarily the question whether, as the plurality seems to conclude, ante, at 633, 165 L. Ed. 2d, at 778-779, 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--deficiencies that relate to the structure and procedure of the commission and that inevitably will affect the proceedings--as the basis for finding the military commissions lack authorization [*655] under 10 U.S.C. ß 836 and fail to be regularly constituted under Common Article 3 and ß 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 600-613, 165 L. Ed. 2d, at 759-766; post, at 689-704, 165 L. Ed. 2d, at 813-822. 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 undertake 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, 84 S. Ct. 923, 11 L. Ed. 2d 804 (1964).

Finally, for the same reason, I express no view on the merits of other limitations on military commissions described as elements of the common law of war in Part V of Justice Stevens' opinion. See ante, at 595-600, 611-613, 165 L. Ed. 2d, at 755-759, 765-766; post, at 683-689, 165 L. Ed. 2d, at 795-799(Thomas, J., dissenting).

With these observations I join the Court's opinion with the exception of Parts V and VI-D-iv.

DISSENT BY: SCALIA; THOMAS; ALITO

DISSENT

[**2810] 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 jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, 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 pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised.

[*656] 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." ß 1005(e)(1), 119 Stat. 2742 [***793] (internal division omitted). This provision "t[ook] effect on the date of the enactment of this Act," ß 1005(h)(1), id., at 2743, which was 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 effective 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, 72 S. Ct. 581, 96 L. Ed. 786 (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, 72 S. Ct. 581, 96 L. Ed. 786. 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, 72 S. Ct. 581, 96 L. Ed. 786, we held that it clearly ousted jurisdiction over them. Summarizing centuries of practice, we said: "This rule [*657] --that, when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law--has been adhered to consistently by this Court." Id., at 116-117, 72 S. Ct. 581, 96 L. Ed. 786. See also Landgraf v. USI Film Products, 511 U.S. 244, 274, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) (opinion for the Court by Stevens, J.) ("We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed").

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 "presumption against jurisdiction," ante, at 576, 165 L. Ed. 2d, at 744, that we have invented to resolve an ambiguity in the statutes. It is simple [**2811] 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 remaining 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, 74 U.S. 506, 7 Wall. 506, 514, 19 L. Ed. 264 (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 [***794] as to pending cases." 343 U.S., at 116-117, 72 S. Ct. 581, 96 L. Ed. 786; see also id., at 115, 72 S. Ct. 581, 96 L. Ed. 786 ("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 Hallowell v. Commons, 239 U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409 (1916), Justice Holmes relied on the fact [*658] that the jurisdiction-ousting provision "made no exception for pending litigation, but purported to be universal, " id., at 508, 36 S. Ct. 202, 60 L. Ed. 409. And in Insurance Co. v. Ritchie, 72 U.S. 541, 5 Wall. 541, 18 L. Ed. 540 (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, 18 L. Ed. 540. As in Bruner, Hallowell, and Ritchie, the DTA's directive that "no court, justice, or judge shall have jurisdiction," ß 1005(e)(1), 119 Stat. 2742, is made "without any reservation as to pending 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, 25 L. Ed. 231 (1879).

The Court claims that I "rea[d] too much into" the Bruner line of cases, ante, at 577, n 7, 165 L. Ed. 2d, at 745, and that "the Bruner rule" has never been "an inflexible trump," ante, at 584, 165 L. Ed. 2d, at 749. But the Court sorely misdescribes Bruner--as if it were a kind of early-day Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), resolving statutory ambiguity by oblique negative inference. On the contrary, as described above, Bruner stated its holding as an unqualified "rule," which "has been adhered to consistently by this Court." 343 U.S., at 116-117, 72 S. Ct. 581, 96 L. Ed. 786. Though Bruner referred to an express saving clause elsewhere in the statute, id., at 115, n. 7, 72 S. Ct. 581, 96 L. Ed. 786, it disavowed any reliance on such oblique indicators to vary the plain meaning, 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, 72 S. Ct. 581, 96 L. Ed. 786 (quoting 72 U.S., at 544-545, 5 Wall., at 544-545, 18 L. Ed. 540).

The Court also attempts to evade the Bruner line of cases by asserting that "the 'presumption' [of application to pending [*659] cases] that these cases have applied is more accurately viewed as the nonapplication of another presumption--viz., the presumption against retroactivity--in certain limited circumstances." Ante, at 576, 165 L. Ed. 2d, at 744. I have already explained that what the Court calls a "presumption" is simply the acknowledgment of the unambiguous [**2812] meaning of such provisions. But even taking it to be what the 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 [***795] provision like ß 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, Supra, at 288, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (Scalia, J., concurring in judgments). The Court's "nonapplication of . . . the presumption against retroactivity" to ß 1005(e)(1) is thus just another way of stating that the statute takes immediate effect in pending cases.

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 the enactment,' DTA ß 1005(h)(1), 119 Stat. 2743, is not dispositive," says the Court, ante, at 579, n 9, 165 L. Ed. 2d, at 746. The Court's authority for this conclusion is its quote from INS v. St. Cyr, 533 U.S. 289, 317, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (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 579, n 9, 165 L. Ed. 2d, at 746 (emphasis added and 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.

Though the Court resists the Bruner rule, it cannot cite a single case in the history of Anglo-American law (before [*660] today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation. By contrast, the cases granting such immediate effect are legion, and they repeatedly rely on the plain language of the jurisdictional repeal as an "inflexible trump," ante, at 584, 165 L. Ed. 2d, at 749, by requiring an express reservation to save pending cases. See, e.g., Bruner, supra, at 115, 72 S. Ct. 581, 96 L. Ed. 786; Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S. Ct. 79, 67 L. Ed. 226 (1922); Hallowell, 239 U.S., at 508, 36 S. Ct. 202, 60 L. Ed. 409; Gwin v. United States, 184 U.S. 669, 675, 22 S. Ct. 526, 46 L. Ed. 741 (1902); Gurnee v. Patrick County, 137 U.S. 141, 144, 11 S. Ct. 34, 34 L. Ed. 601 (1890); Sherman v. Grinnell, 123 U.S. 679, 680, 8 S. Ct. 260, 31 L. Ed. 278 (1887); Railroad Co. v. Grant, supra, at 403, 25 L. Ed. 231, Assessors v. Osbornes, 76 U.S. 567, 9 Wall. 567, 575, 19 L. Ed. 748 (1870); Ex parte McCardle, 74 U.S. 506, 7 Wall., at 514, 19 L. Ed. 264; Ritchie, supra, at 544, 18 L. Ed. 540; Norris v. Crocker, 54 U.S. 429, 13 How. 429, 440, 14 L. Ed. 210 (1852); Yeaton v. United States, 9 U.S. 281, 5 Cranch 281, 3 L. Ed. 101 (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, 12 S. Ct. 767, 36 L. Ed. 545 (1892).

B

Disregarding the plain meaning of ß 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 provision that is included in other provisions of the same statute," ante, at 578, 165 L. Ed. 2d, at 745. Specifically, it appeals to the fact that ß 1005(e)(2) and (e)(3) are explicitly made applicable to pending cases (by ß 1005(h)(2)). A negative inference of [***796] the sort the Court relies upon might clarify the meaning of an ambiguous [**2813] provision, but since the meaning of ß 1005(e)(1) is entirely clear, the omitted language in that context would have been redundant.

Even if ß 1005(e)(1) were at all ambiguous in its application to pending cases, the "negative inference" from ß 1005(h)(2) touted by the Court would have no force. The numerous [*661] cases in the Bruner line would at least create a powerful default "presumption against jurisdiction," ante, at 576, 165 L. Ed. 2d, at 744. 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 true since the negative inference that might be drawn from ß 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 ß 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, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (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, 117 S. Ct. 2059, 138 L. Ed. 2d 481. The latter provision explicitly rendered the new chapter 154 applicable to cases pending at the time of AEDPA's enactment; the former made no specific reference to pending cases. Id., at 327, 117 S. Ct. 2059, 138 L. Ed. 2d 481. In Lindh, we drew a negative inference from chapter 154's explicit reference to pending cases, to conclude 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, 117 S. Ct. 2059, 138 L. Ed. 2d 481. 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 [*662] amendments to pending cases, but did not provide it. Id., at 329, 117 S. Ct. 2059, 138 L. Ed. 2d 481. The negative inference of Lindh rested on the fact that "[n]othing . . . but a different intent explain[ed] the different treatment." Ibid.

Here, by contrast, there is ample reason for the different treatment. The exclusive-review provisions of the DTA, unlike both ß 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 [***797] Co. v. United States ex rel. Schumer, 520 U.S. 939, 951, 117 S. Ct. 1871, 138 L. Ed. 2d 135 (1997), that a statute that "creates jurisdiction 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, 124 S. Ct. 2240, 159 L. Ed. 2d 1 (2004) (opinion for the Court by Stevens, J.); id., at 722, 124 S. Ct. 2240, 159 L. Ed. 2d 1 (Kennedy, J., dissenting). The Court gives our retroactivity jurisprudence [**2814] a dazzling clarity in asserting that "subsections (e)(2) and (e)(3) 'confer' jurisdiction in a manner that cannot conceivably give rise to retroactivity questions under our precedents." 2 Ante, at 582, 165 L. Ed. 2d, at 747-748. [*663] This statement rises to the level of sarcasm when one considers its author's description of the governing test of our retroactivity jurisprudence:

"The conclusion that a particular rule operates 'retroactively' 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 operation 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 familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance." Landgraf, 511 U.S., at 270, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (opinion for the Court by Stevens, J.).

The only "familiar consideration," "reasonable reliance," and "settled expectation" I am aware of pertaining to the present [*664] case is the rule of [***798] Bruner--applicable to ß 1005(e)(1), but not to ß 1005(e)(2) and (e)(3)--which the Court stubbornly disregards. It is utterly beyond question that ß 1005(e)(2)'s and (3)'s application to pending cases (without explicit specification) was not as clear as ß 1005(e)(1)'s. That is alone enough to explain the difference in treatment.

2 A comparison with Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), shows this not to be true. Subsections (e)(2) and (e)(3) of ß 1005 resemble the provisions of AEDPA at issue in Lindh (whose retroactivity as applied to pending cases the Lindh majority did not rule upon, seeid., at 326, 117 S. Ct. 2059, 138 L. Ed. 2d 481), in that they "g[o] beyond 'mere' procedure," id., at 327, 117 S. Ct. 2059, 138 L. Ed. 2d 481. 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 Combatant Status Review Tribunals, p., 3 ß h (July 7, 2004), available 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," ß 1005(e)(3)(A), 119 Stat. 2743. Historically, federal courts have never reviewed the validity of the final decision of any military commission; their jurisdiction has been restricted to considering the commission's "lawful authority to hear, decide and condemn," In re Yamashita, 327 U.S. 1, 8, 66 S. Ct. 340, 90 L. Ed. 499 (1946) (emphasis added). See also Johnson v. Eisentrager, 339 U.S. 763, 786-787, 70 S. Ct. 936, 94 L. Ed. 1255 (1950). Thus, contrary to the Court's suggestion, ante, at 581, 582, 165 L. Ed. 2d 747-748 subsections (e)(2) and (e)(3) confer new jurisdiction: They impose judicial oversight on a traditionally unreviewable exercise of military authority by the Commander 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. Schumer, 520 U.S. 939, 951, 117 S. Ct. 1871, 138 L. Ed. 2d 135 (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, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).

Another obvious reason for the specification was to stave off any Suspension Clause problems raised by the immediately effective ouster of jurisdiction brought about by subsection (e)(1). That is to say, specification of the immediate effectiveness [**2815] 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 applicable in pending cases) could reasonably have been thought essential to be sure of replacing the habeas jurisdiction that subsection (e)(1) eliminated in pending cases with an adequate substitute. See infra, at 670-672, 165 L. Ed. 2d, at 746-748.

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 application 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 582, 165 L. Ed. 2d, at 747-748, 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 Congress 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, 117 S. Ct. 2059, 138 L. Ed. 2d 481, 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.

[*665] In short, it is simply untrue that Congress "'should have been just as concerned about'" specifying the application of ß 1005(e)(1) to pending cases, ante, at 578, 165 L. Ed. 2d, at 745-746 (quoting Lindh, supra, at 329, 117 S. Ct. 2059, 138 L. Ed. 2d 481). In fact, the negative-inference approach of Lindh is particularly inappropriate in this case, because the negative inference from ß 1005(h)(2) would tend to defeat the purpose of the very provisions that are explicitly rendered applicable in pending cases, ß 1005(e)(2) and (3). Those provisions purport to vest "exclusive" jurisdiction in the D. C. Circuit to consider the claims raised by petitioner here. See infra, at 670-672, 165 L. Ed. 2d, at 746-748. By drawing a negative inference a 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 commissions 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 [***799] ß 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, at 580, n 10, 165 L. Ed. 2d, at 746-747. 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 debate." Ibid. Of course this observation, even if true, makes no difference [*666] 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 [**2816] 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 exaggerates the one-sidedness of the portions of the floor debate 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 ignores the President's signing statement, which explicitly set forth his understanding that the DTA ousted jurisdiction over pending cases. 5 )

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). "Instead 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 Columbia. . . . 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 American 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).

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 Supplemental 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/200512308.html.

[*667] But selectivity is not the greatest vice in the Court's use of floor statements to resolve today's case. These statements 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 statements [***800] made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation. 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 indulges 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 statements about the meaning of the final effective date language, but those statements cannot plausibly be read as reflecting any general agreement." Landgraf, 511 U.S., at 262, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (opinion for the Court by Stevens, J.). Likewise, the handful of floor statements that the Court treats as authoritative do not "reflec[t] any general agreement." They reflect the now-common tactic--which the Court once again [**2817] rewards--of pursuing through floor-speech ipse dixit 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 [*668] 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 579-580, 165 L. Ed. 2d, at 745-746. I have explained elsewhere 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 presents a textbook example of its unreliability. The Court, ante, at 579, 165 L. Ed. 2d, at 745-746, 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 decisions 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 ß 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 mind is absurd. As always--but especially in the context of strident, partisan legislative conflict of the sort that [***801] 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 authoritative and only reliable guidepost.

6 The Court asserts that "it cannot be said that the changes to subsection (h)(2) were inconsequential," ante, at 580, n 10, 165 L. Ed. 2d, at 746, but the Court's sole evidence is the self-serving floor statements that it selectively cites.

[*669] D

A final but powerful indication of the fact that the Court has made a mess of this statute is the nature of the consequences that ensue. Though this case concerns a habeas application challenging a trial by military commission, DTA ß 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, 124 S. Ct. 2686, 159 L. Ed. 2d 548 (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," Respondents' Motion to Dismiss for Lack of Jurisdiction 20, n 10 (hereinafter Motion to Dismiss). The Court's interpretation transforms a provision abolishing jurisdiction over all Guantanamo-related [**2818] 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 ß 1005(e)(1) unambiguously terminates the jurisdiction of all courts to "hear or consider" pending habeas applications, I must confront petitioner's arguments that the provision, so interpreted, violates the Suspension Clause. This claim is easily dispatched. We stated in Johnson v. Eisentrager, 339 U.S. 763, 768, 70 S. Ct. 936, 94 L. Ed. 1255 (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 [*670] 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, 124 S. Ct. 2686, 159 L. Ed. 2d 548, it is clear that Guantanamo Bay, Cuba, is outside the sovereign "territorial jurisdiction" of the United States. See id., at 500-505, 124 S. Ct. 2686, 159 L. Ed. 2d 548 (Scalia, J., dissenting). Petitioner, an enemy alien detained 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 substitution 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, 97 S. Ct. 1224, 51 L. Ed. 2d 411 (1977); see also INS v. St. Cyr, 533 U.S. 289, 314, n. 38, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) ("Congress could, without raising any constitutional questions, provide an [***802] adequate substitute through the courts of appeals").

Petitioner has made no showing that the postdecision exclusive review by the D. C. Circuit provided in ß 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, his argument evidently rests on an erroneously narrow reading of DTA ß 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 ß 1005(e)(3)(D)(i), [*671] (e)(3)(A), ibid. This Military Commission Order (Order No. 1) is the Department of Defense's fundamental implementing order for the President's order authorizing trials by military commission. Order No. 1 establishes commissions, ß 2; delineates their jurisdiction, ß 3; provides for their officers, ß 4(A); provides for their prosecution and defense counsel, ß 4(B), (C); lays out all their procedures, both pretrial and trial, ß 5(A)-(P), ß 6(A)-(G); and provides for post-trial military review through the Secretary of Defense and the President, ß 6(H). In short, the "standards and procedures specified in" Order No. 1 include every aspect of the [**2819] 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 commission 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 ß 1005(e)(3)(D)(ii), 119 Stat. 2743. The D. C. Circuit thus retains jurisdiction to consider these claims on postdecision review, and the Government does not dispute that the DTA leaves unaffected our certiorari jurisdiction under 28 U.S.C. ß 1254(1) to review the D. C. Circuit's decisions. Motion to Dismiss 16, n 8. Thus, the DTA merely defers 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

7 Petitioner also urges that he could be subject to indefinite delay if military officials and the President are deliberately dilatory in reviewing 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 determination by his CSRT, see 344 F. Supp. 2d 152, 161 (DC 2004)) is already subject to indefinite detention under our decision in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004)(plurality opinion). 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, 97 S. Ct. 1224, 51 L. Ed. 2d 411 (1977). In an analogous context, we discounted the notion that postponement of relief until postconviction review inflicted any cognizable injury on a serviceman charged before a military court-martial. Schlesinger v. Councilman, 420 U.S. 738, 754-755, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (1975); see also Younger v. Harris, 401 U.S. 37, 46, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).

[*672] [***803] Though it does not squarely address the issue, the Court hints ominously that "the Government's preferred reading" would "rais[e] grave questions about Congress' authority to impinge upon this Court's appellate jurisdiction, particularly in habeas cases." Ante, at 575, 165 L. Ed. 2d, at 743-744 (citing Ex parte Yerger, 75 U.S. 85, 8 Wall. 85, 19 L. Ed. 332 (1869); Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996); Durousseau v. United States, 10 U.S. 307, 6 Cranch 307, 3 L. Ed. 232 (1810); United States v. Klein, 80 U.S. 128, 13 Wall. 128, 20 L. Ed. 519, 7 Ct. Cl. 240 (1872); and Ex parte McCardle, 74 U.S. 506, 7 Wall. 506, 19 L. Ed. 264). It is not clear how there could be any such lurking questions, in light of the aptly named "Exceptions Clause" of Article III, ß 2, which, in making our appellate jurisdiction subject to "such Exceptions, 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, 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 imaginary, upon the Exceptions Clause, which authorizes such exceptions as ß 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, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (1975); [*673] [**2820] Weinberger v. Romero-Barcelo, 456 U.S. 305, 311, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982). In light of Congress's provision of an alternate avenue for petitioner's claims in ß 1005(e)(3), those equitable principles counsel that we abstain from exercising jurisdiction in this case.

In requesting abstention, the Government relies principally on Councilman, in which we abstained from considering 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, 95 S. Ct. 1300, 43 L. Ed. 2d 591. Admittedly, Councilman does not squarely control petitioner's case, but it provides the closest analogue in our jurisprudence. As the Court describes, ante, at 586, 165 L. Ed. 2d, at 750, Councilman "identifie[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 emphasized 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 if the military justice system acts without [***804] regular interference 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 586, 587, 165 L. Ed. 2d, at 751. 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 military exigencies," 420 U.S., at 757, 95 S. Ct. 1300, 43 L. Ed. 2d 591, 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, 95 S. Ct. 1300, 43 L. Ed. 2d 591. The charge against the petitioner here is joining and actively abetting the murderous conspiracy that slaughtered thousands of innocent American [*674] civilians without warning on September 11, 2001. While Councilman held that the prosecution of the former charge involved "military necessities" 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 584, 165 L. Ed. 2d, at 749, 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 "military 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 establishment of military commissions: military necessity." Ante, at 612, 165 L. Ed. 2d, at 766. 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 determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." Authorization for Use of Military Force, ß 2(a), 115 Stat. 224, note following 50 U.S.C. ß 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 prevention 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 [**2821] and other applicable laws by military tribunals." Military Order of Nov. 13, 2001, 3 CFR, 2001 Comp., ß1(e) p. 918 (2002)(hereinafter Military Order). It is not clear where the Court derives the authority--or the audacity--to contradict this determination. If "military necessities" relating to "duty" and "discipline" required abstention in Councilman, supra, at 757, 95 S. Ct. 1300, 43 L. Ed. 2d 591 military necessities relating to the disabling, deterrence, and punishment [*675] 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, complete with independent review panels, that Congress has established." Ante, at 587, 165 L. Ed. 2d, at 751. To be sure, Councilman emphasized that "Congress created an integrated system of military courts and review procedures, a critical [***805] element of which is the Court of Military Appeals consisting of civilian judges completely removed from all military influence or persuasion, who would gain over time thorough familiarity with military problems." 420 U.S., at 758, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (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 himself, ß 6(H)(5), and then, finally, to the President, ß 6(H)(6)." Ante, at 587, 165 L. Ed. 2d, at 751.

Even if we were to accept the Court's extraordinary assumption that the President "lack[s] the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces," Ibid., 8 the Court's description of the review scheme here is anachronistic. As of December 30, 2005, the "fina[l]" review of decisions by military commissions is now conducted by the D. C. Circuit pursuant to ß 1005(e)(3) of the DTA, and by this Court under 28 U.S.C. ß 1254(1). This provision for review by Article III courts creates, if anything, a review scheme more insulated [*676] from executive control than that in Councilman. 9 At the time we decided Councilman, Congress had not "conferred on any Art[icle] III [**2822] court jurisdiction directly to review court-martial determinations." 420 U.S., at 746, 95 S. Ct. 1300, 43 L. Ed. 2d 591. The final arbiter of direct appeals was the Court of Military Appeals (now the Court of Appeals for 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, ß 1. See 10 U.S.C. ß 867(a)(2) (1970 ed.).

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. Hamilton); 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 588, n 19, 616, 165 L. Ed. 2d, at 751, n 19, 768-769; ß 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 587, 165 L. Ed. 2d, at 751, and its discretionary nature presents no obstacle to the courts' future review of these cases. The Court might more cogently have relied on the discretionary nature of review to argue that the statute provides an inadequate substitute for habeas review under the Suspension Clause. See supra, at 670-672, 165 L. Ed. 2d, at 746-748. 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 discretion, see Withrow v. Williams, 507 U.S. 680, 715-718, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (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, 97 S. Ct. 1224, 51 L. Ed. 2d 411.

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 decision in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 [***806] L. Ed. 2d 669 (1971), were inapplicable to courts-martial, because "the peculiar demands of federalism are not implicated." 420 U.S., at 756, 757, 95 S. Ct. 1300, 43 L. Ed. 2d 591. Though military commissions likewise do not implicate "the peculiar demands of federalism," considerations of interbranch comity [*677] 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 ß1(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, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (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 Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 (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 588, 165 L. Ed. 2d, at 751. It is likely that the Government in Quirin, unlike here, preferred 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, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004) (Scalia, J., dissenting). 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 petitioner'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 [*678] challenges to the authority of the commissions that would not be affected by the specific proceedings. See supra, at 662-663, n 2, 165 L. Ed. 2d, at 796-797. 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. [**2823]

* * *

For the foregoing reasons, I dissent.

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.

[***807] 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 655-669, 165 L. Ed. 2d, at 792-798. 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 plurality's evident belief that it is qualified to pass on the "military necessity," ante, at 612, 165 L. Ed. 2d, at 766, of the Commander in Chief's decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered. I respectfully dissent.

I

Our review of petitioner's claims arises in the context of the President's wartime exercise of his Commander in Chief authority in conjunction with the complete support of Congress. Accordingly, it is important to take measure of the [*679] 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, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004), the structural advantages attendant to the Executive Branch--namely, the decisiveness, "'activity, secrecy, and dispatch'" that flow from the Executive's "'unity,'" id., at 581, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (dissenting opinion) (quoting The Federalist No. 70, p 472 (J. Cooke ed. 1961) (A. Hamilton))--led the Founders to conclude that the "President ha[s] primary responsibility--along with the necessary power--to protect the national security and to conduct the Nation's foreign relations." 542 U.S., at 580, 124 S. Ct. 2633, 159 L. Ed. 2d 578. Consistent with this conclusion, the Constitution vests in the President "[t]he executive Power," Art. II, ß 1, provides that he "shall be Commander in Chief" of the Armed Forces, ß 2, and places in him the power to recognize foreign governments, ß 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, 67 U.S. 635, 2 Black 635, 668, 17 L. Ed. 459 (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, 50 U.S. 603, 9 How. 603, 615, 13 L. Ed. 276 (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 Executive." Dames & Moore v. Regan, 453 U.S. 654, 678, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981) (quoting Haig v. Agee, 453 U.S. 280, 291, 101 S. Ct. 2766, 69 L. Ed. 2d 640 (1981)). Rather, in these domains, [*680] the fact that Congress has [***808] provided the President with broad authorities does [**2824] not imply--and the Judicial Branch should not infer--that Congress intended to deprive him of particular powers not specifically enumerated. See Dames & Moore, 453 U.S., at 678, 101 S. Ct. 2972, 69 L. Ed. 2d 918 ("[T]he enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to invite measures on independent presidential responsibility" (internal quotation marks omitted)).

When "the President acts pursuant to an express or implied authorization from Congress," his actions are "'supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion . . . rest[s] heavily upon any who might attack it.'" Id., at 668, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) (Jackson, J., concurring)). Accordingly, in the very context that we address today, this Court has concluded that "the detention and trial of petitioners--ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger--are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted." Ex parte Quirin, 317 U.S. 1, 25, 63 S. Ct. 2, 87 L. Ed. 3 (1942).

Under this framework, the President's decision to try Hamdan before a military commission for his involvement with al Qaeda is entitled to a heavy measure of deference. In the present conflict, Congress has authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Authorization for Use of Military Force (AUMF), 115 Stat. [*681] 224, note following 50 U.S.C. ß 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,'" 542 U.S., at 518, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (quoting Quirin, supra, at 28, 30, 63 S. Ct. 2, 87 L. Ed. 3; emphasis added), and are therefore "an exercise of the 'necessary and appropriate force' Congress has authorized the President to us,." Hamdi, 542 U.S., at 518, 124 S. Ct. 2633, 159 L. Ed. 2d 578; id., at 587, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (Thomas, J., dissenting). Hamdi's observation that military commissions are included within the AUMF's authorization is supported by this Court's previous recognition that "[a]n important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war." In re Yamashita, 327 U.S. 1, 11, 66 S. Ct. 340, 90 L. Ed. 499 (1946); see also Quirin, supra, at 28-29, 63 S. Ct. 2, 87 L. Ed. 3; Madsen v. Kinsella, 343 U.S. 341, 354, n. 20, 72 S. Ct. 699, 96 [***809] L. Ed. 988 (1952) ("'[T]he military commission . . . is an institution of the greatest importance in a period of war and should be preserved'" (quoting S. Rep. No. 229, 63d Cong., 2d Sess., 53 (1914) (testimony of Gen. Crowder))).

Although the Court concedes the legitimacy of the President's use of military commissions in certain circumstances, ante, at 594, 165 L. Ed. 2d, at 754, 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 ____ - ____, 165 L. Ed. 2d, at 754-755. [**2825] 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. ß 821, the successor to Article 15 of the Articles of War, which Quirin held "authorized trial of offenses against the law of war before [military] commissions." 317 U.S., at 29, 63 S. Ct. 2, 87 L. Ed. 3. As I shall discuss below, Article 21 alone supports the use of commissions here. Nothing in the language of Article 21, however, suggests that it outlines the entire reach of congressional authorization of military commissions in all [*682] conflicts--quite the contrary, the language of Article 21 presupposes the existence of military commissions under an independent basis of authorization. 1 Indeed, consistent with Hamdi's conclusion that the AUMF itself authorizes the trial of unlawful combatants, the original sanction for military commissions historically derived from congressional authorization of "the initiation of war" with its attendant authorization of "the employment of all necessary and proper agencies for its due prosecution." W. Winthrop, Military Law and Precedents 831 (rev. 2d ed. 1920) (hereinafter Winthrop)(emphasis deleted). Accordingly, congressional authorization for military commissions pertaining to the instant conflict derives not only from Article 21 of the UCMJ, but also from the more recent, and broader, authorization contained in the AUMF. 2

1 As previously noted, Article 15 of the Articles of War was the predecessor 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 commissions, provost courts, or other military tribunals." 10 U.S.C. ß 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, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004) (Thomas, J., dissenting) (same conclusion respecting detention of unlawful combatants).

I note the Court's error respecting the AUMF not because it is necessary to my resolution of this case-- Hamdan's military commission can plainly be sustained solely under Article 21 --but to emphasize the complete congressional sanction of the President's exercise of his Commander in Chief authority to conduct the present war. In such circumstances, as previously noted, our duty to defer to the Executive's military and foreign policy judgment is at its zenith; it does not countenance [*683] 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 [***810] has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.'" Hamdi, supra, at 582-583, 587, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 111, 68 S. Ct. 431, 92 L. Ed. 568 (1948)).

It is within this framework that the lawfulness of Hamdan's commission should be examined.

II

The plurality accurately describes some aspects of the history of military commissions [**2826] and the prerequisites for their use. Thus, I do not dispute that military commissions have historically been "used in three [different] situations," ante, at 595, 165 L. Ed. 2d, at 755-756, and that the only situation relevant to the instant case is the use of military commissions "'to seize and subject to disciplinary measures those enemies who . . . have violated the law of war,'" ante, at 596, 165 L. Ed. 2d, at 756 (quoting Quirin, supra, at 28-29, 63 S. Ct. 2, 87 L. Ed. 3). Similarly, I agree with the plurality that Winthrop's treatise sets forth the four relevant considerations for determining the scope of a military commission's jurisdiction, considerations relating to the (1) time and (2) place of the offense, (3) the status of the offender, and (4) the nature of the offense charged. Winthrop 836-840. The Executive has easily satisfied these considerations here. The plurality's contrary conclusion rests upon an incomplete accounting and an unfaithful application of those considerations.

A

The first two considerations are that a law-of-war military commission may only assume jurisdiction of "offences committed [*684] within the field of the command of the convening commander," and that such offenses "must have been committed within the period of the war." See id., at 836, 837; ante, at 597, 165 L. Ed. 2d, at 757. Here, as evidenced by Hamdan's charging document, the Executive has determined that the theater of the present conflict includes "Afghanistan, Pakistan and other countries" where al Qaeda has established training camps, App. to Pet. for Cert. 64a, and that the duration of that conflict dates back (at least) to Usama bin Laden's August 1996 Declaration of Jihad Against the Americans, ibid. Under the Executive's description of the conflict, then, every aspect of the charge, which alleges overt acts in "Afghanistan, Pakistan, Yemen and other countries" taking place from 1996 to 2001, satisfies the temporal and geographic prerequisites for the exercise of law-of-war military commission jurisdiction. Id., at 65a-67a. And these judgments pertaining to the scope of the theater and duration of the present conflict are committed solely to the President in the exercise of his Commander in Chief authority. See Prize Cases, 67 U.S. 635, 2 Black, at 670, 17 L. Ed. 459 (concluding that the President's Commander in Chief judgment about the nature of a particular conflict was "a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted").

Nevertheless, the plurality concludes that the legality of the charge against Hamdan is doubtful because "Hamdan is charged not with an overt [***811] 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 612, 165 L. Ed. 2d, at 766 (emphasis in original). The plurality's willingness to second-guess the Executive's judgments in this context, based upon little more than its unsupported assertions, constitutes an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority. And [*685] even if such second-guessing were appropriate, the plurality's attempt to do so is unpersuasive.

As an initial matter, the plurality relies upon the date of the AUMF's enactment to determine the beginning point for the "period of the war," Winthrop 836-837, thereby suggesting that petitioner's commission does not have jurisdiction to try him for offenses committed prior to the AUMF's enactment. Ante, at 598-600, 612, 165 L. Ed. 2d, at 757-759, 766. But this suggestion betrays the plurality's [**2827] unfamiliarity with the realities of warfare and its willful blindness to our precedents. The starting point of the present conflict (or indeed any conflict) is not determined by congressional enactment, but rather by the initiation of hostilities. See Prize Cases, supra, at 668, 67 U.S. 635, 17 L. Ed. 459 (recognizing that war may be initiated by "invasion of a foreign nation," and that such initiation, and the President's response, usually precedes congressional action). Thus, Congress' enactment of the AUMF did not mark the beginning of this Nation's conflict with al Qaeda, but instead authorized the President to use force in the midst of an ongoing conflict. Moreover, while the President's "war powers" may not have been activated until the AUMF was passed, ante, at 599, n 31, 165 L. Ed. 2d, at 758(emphasis deleted), the date of such activation has never been used to determine the scope of a military commission's jurisdiction. 3 Instead, the traditional rule is that "[o]ffenses [*686] committed before a formal declaration of war or before the declaration of martial law may be tried by military commission." Green, The Military Commission, 42 Am. J. Int'l L. 832, 848 (1948) (hereinafter Green); see also C. Howland, Digest of Opinions of the Judge-Advocates General of the Army 1067 (1912) (hereinafter Howland) ("A military commission . . . 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, 66 S. Ct. [***812] 340, 90 L. Ed. 499 ("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

3 Even if the formal declaration of war were generally the determinative act in ascertaining the temporal reach of the jurisdiction of a military commission, the AUMF itself is inconsistent with the plurality's suggestion that such a rule is appropriate in this case. See ante, at 598-600, 612 165 L. Ed. 2d, at 757-759, 766. 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, committed, or aided the terrorist attacks that occurred on September 11, 2001."ß 2(a), 115 Stat. 224. Thus, the President's decision to try Hamdan by military commission--a use of force authorized by the AUMF--for Hamdan's involvement with al Qaeda prior to September 11, 2001, fits comfortably within the framework of the AUMF. In fact, bringing the September 11 conspirators to justice is the primary point of the AUMF. By contrast, on the plurality's logic, the AUMF would not grant the President 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 599, n 31, 165 L. Ed. 2d, at 758. The difference identified 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 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. Kuehn, Board of Review 6 (Office of the Military Governor, Hawaii 1942). Indeed, in upholding the imposition of the death penalty, a sentence "not authorized by the Espionage statutes," id., at 5, 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, 66 S. Ct. 606, 90 L. Ed. 688 (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, 66 S. Ct. 606, 90 L. Ed. 688; it did "not involve the well-established power of the military to exercise jurisdiction over . . . enemy belligerents," id., at 313, 66 S. Ct. 606, 90 L. Ed. 688.

[*687] [**2828] Moreover, the President's determination that the present conflict dates at least to 1996 is supported by overwhelming evidence. According to the State Department, al Qaeda declared war on the United States as early as August 1996. See Dept. of State Fact Sheet: Usama bin Ladin (Aug. 21, 1998); Dept. of State Fact Sheet: The Charges against International Terrorist Usama Bin Laden (Dec. 20, 2000); cf. Prize Cases, 67 U.S. 635, 2 Black, at 668, 17 L. Ed. 459 (recognizing that a state of war exists even if "the declaration of it be unilateral" (emphasis in original)). In February 1998, al Qaeda leadership issued another statement ordering the indiscriminate--and, even under the laws of war as applied to legitimate nation-states, plainly illegal--killing of American civilians and military personnel alike. See Jihad Against Jews and Crusaders: World Islamic Front Statement 2 (Feb. 23, 1998), in Y. Alexander & M. Swetnam, Usama bin Laden's al-Qaida: Profile of a Terrorist Network, App. 1B (2001) ("The ruling to kill the Americans and their allies--civilians and military--is an individual duty for every Muslim who can do it in any country in which it is possible to do it"). This was [*688] not mere rhetoric; even before September 11, 2001, al Qaeda was involved in the bombing of the World Trade Center in New York City in 1993, the bombing of the Khobar Towers in Saudi Arabia in 1996, the bombing of the U.S. Embassies in Kenya and Tanzania in 1998, and the [***813] attack on the U.S. S. Cole in Yemen in 2000. See id., at 1. In response to these incidents, the United States "attack[ed] facilities belonging to Usama bin Ladin's network" as early as 1998. Dept. of State Fact Sheet: Usama bin Ladin (Aug. 21, 1998). Based on the foregoing, the President's judgment --that the present conflict substantially predates the AUMF, extending at least as far back as al Qaeda's 1996 declaration of war on our Nation, and that the theater of war extends at least as far as the localities of al Qaeda's principal bases of operations--is beyond judicial reproach. And the plurality's unsupportable contrary determination merely confirms that "'the Judiciary has neither aptitude, facilities nor responsibility'" for making military or foreign affairs judgments. Hamdi, 542 U.S., at 585, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines, 333 U.S., at 111, 68 S. Ct. 431, 92 L. Ed. 568).

B

The third consideration identified by Winthrop's treatise for the exercise of military commission jurisdiction pertains to the persons triable before such a commission, see ante, at 597-598, 165 L. Ed. 2d, at 757; Winthrop 838. [**2829] Law-of-war military commissions have jurisdiction over "'[i]ndividuals of the enemy's army who have been guilty of illegitimate warfare or other offences in violation of the laws of war,'" ante, at 598, 165 L. Ed. 2d, at 757-758 (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 [*689] upon trial and conviction by military commission." Id., at 784. This consideration is easily satisfied here, as Hamdan is an unlawful combatant charged with joining and conspiring with a terrorist network dedicated to flouting the laws of war. 344 F. Supp. 2d 152, 161 (DC 2004); App. to Pet. for Cert. 63a-67a.

C

The fourth consideration relevant to the jurisdiction of law-of-war military commissions relates to the nature of the offense charged. As relevant here, such commissions have jurisdiction to try "'[v]iolations of the laws and usages of war cognizable by military tribunals only,'" ante, at 598, 165 L. Ed. 2d, at 757 (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, 63 S. Ct. 2, 87 L. Ed. 3. However, "charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment." Yamashita, 327 U.S., at 17, 66 S. Ct. 340, 90 L. Ed. 499. And whether an offense is a violation of the law of war cognizable before a military commission must be determined pursuant to "the system of common law applied by military tribunals." Quirin, supra, at 30, Yamashita, supra, at 8, 66 S. Ct. 340, 90 L. Ed. 499.

The common law of war as it pertains [***814] to offenses triable by military commission is derived from the "experience of our wars" and our wartime tribunals, Winthrop 839, and "the laws and usages of war as understood and practiced by the civilized nations of the world," 11 Op. Att'y 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 [*690] power of war, or rather the prohibitions upon the use of that power, increase or diminish as the necessity of the case demands." Id., at 300. Accordingly, this Court has recognized that the "jurisdiction" of "our common-law war courts" has not been "prescribed by statute," but rather "has been adapted in each instance to the need that called it forth." Madsen, 343 U.S., at 346-348, 72 S. Ct. 699, 96 L. Ed. 988. Second, the common law of war affords a measure of respect for the judgment of military commanders. Thus, "[t]he commander of an army in time of war has the same power to organize military tribunals and execute their judgments that he has to set his squadrons in the field and fight battles. His authority in each case is from the law and usage of war." 11 Op. Att'y Gen., at 305. In recognition of these principles, Congress has generally "'left it to the President, and the military commanders representing him, to employ the commission, as occasion may require, for the investigation and punishment of violations of the laws of war.'" [**2830] Madsen, supra, at 347, n. 9, 72 S. Ct. 699, 96 L. Ed. 988 (quoting Winthrop 831; emphasis added).

In one key respect, the plurality departs from the proper framework for evaluating the adequacy of the charge against Hamdan under the laws of war. The plurality holds that where, as here, "neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent [establishing whether an offense is triable by military commission] must be plain and unambiguous." Ante, at 602, 165 L. Ed. 2d, at 760. 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, 63 S. Ct. 2, 87 L. Ed. 3 (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, 66 S. Ct. 340, 90 L. Ed. 499 (noting that the allegations were "adequat[e]" [*691] and "need not be stated with . . . precision"), with id., at 35, 66 S. Ct. 340, 90 L. Ed. 499 (Murphy, J., dissenting) (arguing that the charge was inadequate). Nor does it find support from the separation of powers authority cited by the plurality. Indeed, Madison's praise of the separation of powers in The Federalist No. 47, quoted ante, at 602, 165 L. Ed. 2d, at 760, if it has any relevance at all, merely highlights the illegitimacy of today's judicial intrusion onto core executive prerogatives in the waging of war, where executive [***815] 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. Att'y Gen., at 300. Similarly, it is inconsistent with the nature of warfare, which also evolves and changes over time, and for which a flexible, evolutionary common-law system is uniquely appropriate. 6 Though the charge against Hamdan easily satisfies even the plurality's manufactured rule, see infra, at 692-706, 165 L. Ed. 2d, at 746-754, the plurality's inflexible approach has dangerous implications for the Executive's ability to discharge his duties as Commander in Chief in future cases. We should undertake to determine whether an unlawful combatant has been charged with an offense against the law of war with an understanding that the common law of war is flexible, responsive to the exigencies of the present conflict, and deferential to the judgment of military commanders.

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 paradigm" of inflicting death and mayhem would be completely frozen by rules developed in the context of conventional warfare.

[*692] 1

Under either the correct, flexible approach to evaluating the adequacy of Hamdan's charge, or under the plurality's new, clear-statement approach, Hamdan has been charged with conduct constituting two distinct violations of the law of war cognizable before a military commission: membership in a war-criminal enterprise and conspiracy to commit war crimes. [**2831] 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

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, 66 S. Ct. 340, 90 L. Ed. 499 (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, 66 S. Ct. 340, 90 L. Ed. 499; 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)). Nevertheless, the plurality contends that Hamdan was "not actually charged," ante, at 601, n 32, 165 L. Ed. 2d, at 759 (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 609, 165 L. Ed. 2d, at 764-765 (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 609, 165 L. Ed. 2d, at 764. 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.

[*693] The common law of war establishes [***816] that Hamdan's willful and knowing membership in al Qaeda is a war crime chargeable before a military commission. Hamdan, a confirmed enemy combatant and member or affiliate of al Qaeda, has been charged with willfully and knowingly joining a group (al Qaeda) whose purpose is "to support violent attacks against property and nationals (both military and civilian) of the United States." Id., at 64a; 344 F. Supp. 2d, at 161. Moreover, the allegations specify that Hamdan joined and maintained his relationship with al Qaeda even though he "believed that Usama bin Laden and his associates were involved in the attacks on the U.S. Embassies in Kenya and Tanzania in August 1998, the attack on the USS COLE in October 2000, and the attacks on the United States on September 11, 2001." App. to Pet. for Cert. 65a. These allegations, against a confirmed unlawful combatant, are alone sufficient to sustain the jurisdiction of Hamdan's military commission.

For well over a century it has been established that "to unite with banditti, jayhawkers, guerillas, or any other unauthorized marauders is a high offence against the laws of war; the offence is complete when the band is organized or joined. The atrocities committed by such a band do not constitute the offence, but make the reasons, and sufficient reasons they are, why such banditti are denounced [**2832] by the laws of war." [*694] 11 Op. Att'y 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. Att'y Gen., at 314 ("A bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public enemies, may be tried, condemned, and executed as offenders against the laws of war"). This conclusion is unsurprising, as it is a "cardinal principle of the law of war . . . that the civilian population must enjoy complete immunity." 4 Int'l Comm. of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 3 (J. Pictet gen. ed. 1958). "Numerous instances of trials, [***817] for 'Violation of the laws of war,' of offenders of this description, are published in the General Orders of the years 1862 to 1866." Winthrop 784, and n 57. 9 [**2833] Accordingly, on this basis alone, [*695] "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, 66 S. Ct. 340, 90 L. Ed. 499.

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 plurality maintains, "trea[t] the charge as if it alleged the substantive offense of assassination." Ante, at 604, n 35, 165 L. Ed. 2d, at 761. Rather, he explained that the conspirator "high offence against the laws of war" was "complete" when their band was "organized or joined," and did not depend upon "atrocities committed by such a band." 11 Op. Att'y Gen. 297, 312 (1865). Moreover, the Attorney General's conclusions specifically refute the plurality's unsupported 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 601, n 32, 165 L. Ed. 2d, at 759.

9 The General Orders establishing the jurisdiction for military commissions during the Civil War provided that such offenses were violations 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, marauders, &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 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 "'willfully . . . [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 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'").

The conclusion that membership in an organization whose purpose is to violate the laws of war is an offense triable by military commission is confirmed by the experience of the [*696] military tribunals convened by the United States at Nuremberg. Pursuant to Article 10 of the Charter of the International Military Tribunal (IMT), the United States convened military tribunals "to bring individuals to trial for membership" in "a group or organization . . . declared criminal by the [IMT]." 1 Trials of War Criminals Before the Nuremberg Military Tribunals, p XII, Art. 10 (hereinafter Trials). The IMT designated various components of four Nazi groups--the Leadership Corps, Gestapo, SD, and SS--as criminal organizations. 22 IMT, Trial of the Major War Criminals 505, 511, 517 (1948); see also T. Taylor, 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 [***818] convicted numerous individuals for the act of knowing and voluntary membership in these organizations. For example, in Military Tribunal Case No. 1, United States v. Brandt, Karl Brandt, Karl Gebhardt, Rudolf Brandt, Joachim Mrugowsky, Wolfram Sievers, Viktor Brack, and Waldemar Hoven were convicted and sentenced to death for the crime of, inter alia, membership in an organization declared criminal by the IMT; Karl Genzken and Fritz Fischer were sentenced to life imprisonment for the same; and Helmut Poppendick was convicted of no other offense than membership in a criminal organization and sentenced to a 10-year term of imprisonment. 2 Trials 180-300. This Court denied habeas relief, 333 U.S. 836, 68 S. Ct. 603, 92 L. Ed. 1119 (1948), and the executions were carried out at Landsberg prison on June 2, 1948. 2 Trials 330.

Moreover, the Government has alleged that Hamdan was not only a member of al Qaeda while it was carrying out terrorist attacks on civilian targets in the United States and abroad, but also that Hamdan aided and assisted al Qaeda's top leadership by supplying weapons, transportation, and other services. App. to Pet. for Cert. 65a-67a. These allegations [*697] 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] 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)); Winthrop 840 (including in the list of offenses triable by law-of-war military commissions "dealing with . . . enemies, or furnishing them with money, arms, provisions, medicines, &.c"). 10 Undoubtedly, [**2834] the conclusion that such conduct violates the law of war led to the enactment of Article 104 of the UCMJ, which provides that "[a]ny person who . . . aids, or attempts to aid, the enemy with arms, ammunition, 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. ß 904.

10 Even if the plurality were correct that a membership offense must be accompanied by allegations that the "defendant 'took up arms,'" ante, at 601, n 32, 165 L. Ed. 2d, at 759, that requirement has easily been satisfied here. Not 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.

2

Separate and apart from the offense of joining a contingent 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 terrorism." Ibid. This, too, [*698] 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 [***819] that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission. World War II provides the most recent examples of the use of American military commissions to try offenses pertaining to violations of the laws of war. In that conflict, the orders establishing the jurisdiction of military commissions in various theaters of operation provided that conspiracy to violate the laws of war was a cognizable offense. See Letter, General Headquarters, United States Army Forces, Pacific (Sept. 24, 1945), Record in Yamashita v. Styer, O. T. 1945, No. 672, pp 14, 16 (Exh. F) (Order respecting the "Regulations Governing the Trial of War Criminals" provided that "participation in a common plan or conspiracy to accomplish" various offenses against the law of war was cognizable before military commissions); 1 U.N. War Crimes Commission, Law Reports of Trials of War Criminals 114-115 (1947)(reprint 1997) (hereinafter U. N. Commission) (recounting that the orders establishing World War II military commissions in the Pacific and China included "participation in a common plan or conspiracy" pertaining to certain violations of the laws of war as an offense triable by military commission). Indeed, those orders authorized trial by military commission of participation in a conspiracy to commit "'murder . . . 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, 63 S. Ct. 2, 87 L. Ed. 3, 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).

[*699] To support its contrary conclusion, ante, at 600, 165 L. Ed. 2d, at 758-759, 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 605-607, 165 L. Ed. 2d, at 761-763. But the common law of war cannot be ascertained from this Court's failure to pass upon an issue, or indeed to even mention the issue in its [**2835] opinion; 11 rather, it is ascertained by the practice and usage of war. Winthrop 839; supra, at 689-690, 165 L. Ed. 2d, at 813.

11 The plurality recounts the respective claims of the parties in Quirin pertaining to this issue and cites the United States Reports. Ante, at 605, 165 L. Ed. 2d, at 761-762. 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 Petitioner," and "Argument for Respondent." See 317 U.S., at 6-17, 63 S. Ct. 2, 87 L. Ed. 3.

The Civil War experience provides further support for the President's conclusion that conspiracy to violate the laws of war is an offense cognizable before law-of-war military commissions. Indeed, in the highest profile case to be tried before a military commission relating to that war, namely, the trial of the men involved in the assassination of President Lincoln, the charge provided that those men had "combin[ed], confederat[ed], and conspir[ed] . . . 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 [***820] (1899) (hereinafter G. C. M. O. No. 356). 12

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 604, n 35, 165 L. Ed. 2d, at 761. But the sole charge filed in that case alleged conspiracy, and the allegations pertaining to "maliciously, 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 696 (emphasis added). While the plurality contends the murder of President Lincoln was charged as a distinct separate offense, the foregoing quoted language 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 examining 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 enterprise's top leadership.

[*700] In addition to the foregoing high-profile example, Winthrop's treatise enumerates numerous Civil War military commission trials for conspiracy to violate the law of war. Winthrop 839, n 5. The plurality attempts to explain these examples away by suggesting that the conspiracies listed by Winthrop are best understood as "a species of compound offense," namely, violations both of the law of war and ordinary criminal laws, rather than "stand-alone offense[s] against the law of war." Ante, at 608, 165 L. Ed. 2d, at 763-764 (citing, as an example, murder in violation of the laws of war). But the fact that, for example, conspiracy to commit murder can at the same time violate ordinary criminal laws and the law of war, so that it is "a combination of the two species of offenses," Howland 1071, does not establish that a military commission would not have jurisdiction to try that crime solely on the basis that it was a violation of the law of war. Rather, if anything, and consistent with the principle that the common law of war is flexible and affords some level of deference to the judgments of military commanders, it establishes that military commissions would have the discretion to try the offense as (1) one against the law of war, or (2) one against the ordinary criminal laws, or (3) both.

In any event, the plurality's effort to avoid the import of Winthrop's footnote through the smokescreen of its "compound offense" theory, ante, at 607-608, 165 L. Ed. 2d, at 763-764, cannot be [**2836] reconciled with the particular charges that sustained military commission jurisdiction in the cases that Winthrop cites. For example, [*701] in the military commission trial of Henry Wirz, Charge I provided that he had been

"[m]aliciously, willfully, and traitorously . . . combining, confederating, and conspiring, together [with various other named and unnamed co-conspirators], to injure the health and destroy the lives of soldiers in the military service of the United States, then held and being prisoners of war within the lines of the so-called Confederate States, and in the military prisons thereof, to the end that the armies of the United States might be weakened and impaired, in violation of the laws and customs of war." G. C. M. O. No. 607 (1865), reprinted in H. R. Doc. No. 314, at 785 (emphasis added).

[***821] Likewise, in the military commission trial of Leger 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. [*702] No. 41, p. 20 (1864) (indictment in the military commission trial of Robert Louden charged "'[c]onspiring with the rebel enemies of the United States to embarrass and impede the military authorities in the suppression of the existing rebellion, by the burning and destruction of steamboats and means of transportation on the Mississippi river"). These examples provide incontrovertible support for the President's conclusion that the common law of war permits military commission trials for conspiracy to violate the law of war. And they specifically contradict the plurality's conclusion to the contrary, thereby easily satisfying its requirement that the Government "make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war.'" Ante, at 603, 165 L. Ed. 2d, at 761. 14

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 609, 165 L. Ed. 2d, at 764. 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 Leger 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 609, n 37, 165 L. Ed. 2d, at 764. 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.'" Ante, at 610, n 37, 165 L. Ed. 2d, at 764 (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.

14 The plurality contends that international practice--including the practice of the IMT at Nuremberg--supports its conclusion that conspiracy 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 611, 165 L. Ed. 2d, at 765 (quoting T. Taylor, Anatomy of the Nuremberg 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, at XI-XII, Art. 6(a). 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 Marseilles found Henri Georges Stadelhofer "guilty of the crime of association 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.

[*703] [**2837] The plurality further contends, in reliance upon Winthrop, that conspiracy [***822] is not an offense cognizable before a law-of-war military commission because "it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficiently substantial to qualify as an attempt." Ibid. But Winthrop does not support the plurality's conclusion. The passage in Winthrop cited by the plurality states only that "the jurisdiction of the military commission should be restricted to cases of offence consisting in overt acts, i.e. in unlawful commissions or actual attempts to commit, and not in intentions merely." Winthrop 841 (emphasis in original). This passage would be helpful to the plurality if its subject were "conspiracy," rather than the "jurisdiction of the military commission." Winthrop is not speaking here of the requirements for a conspiracy charge, but of the requirements for all charges. Intentions do not suffice. An unlawful act--such as committing the crime of conspiracy--is necessary. Winthrop says nothing to exclude either conspiracy or membership in a criminal enterprise, both of which go beyond "intentions merely" and "consis[t] of] overt acts, i.e. . . . 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 [*704] commission of an "overt ac[t]" is the traditional requirement for the completion of the crime of conspiracy, and the charge against Hamdan alleges numerous such overt acts. App. to Pet. for Cert. 65a. The plurality's approach, unsupported by Winthrop, requires that any overt act to further a conspiracy must itself be a completed war crime distinct from conspiracy--which merely begs the question the plurality sets out to answer, namely, whether conspiracy itself may constitute a violation of the law of war. And, even the plurality's unsupported standard is satisfied here. Hamdan has been charged with the overt acts of providing protection, transportation, weapons, and other services to the enemy, id., at 65a-67a, acts which in and of themselves are violations [**2838] of the laws of war. See supra, at 696-697, 165 L. Ed. 2d, at 818; 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 commissions: military necessity." Ante, at 612, 165 L. Ed. 2d, at 766. 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 ß 2(a), 115 Stat. 224. The plurality's suggestion that Hamdan's commission is illegitimate because it [***823] is not dispensing swift justice on the battlefield is unsupportable. Ante, at ____, 165 L. Ed. 2d, at 763. Even a cursory review of the authorities confirms that law-of-war military commissions have wide-ranging jurisdiction to try offenses against the law of war in exigent and nonexigent circumstances alike. See, e.g., Winthrop 839-840; see also Yamashita, 327 U.S., at 5, 66 S. Ct. 340, 90 L. Ed. 499 (military commission trial after the cessation [*705] of hostilities in the Philippines); Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 (military commission trial in Washington, D. C.). Traditionally, retributive justice for heinous war crimes is as much a "military necessity" as the "demands" of "military efficiency" touted by the plurality, and swift military retribution is precisely what Congress authorized the President to impose on the September 11 attackers in the AUMF.

Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict. We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U.S.S. Cole, and the attacks of September 11--even if their plots are advanced to the very brink of fulfillment--our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists "redhanded," ante, at 612, 165 L. Ed. 2d, at 766, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principle of the law of war, namely, protecting noncombatants, but it would sorely hamper the President's ability to confront and defeat a new and deadly enemy.

[*706] After seeing the plurality overturn longstanding precedents in order to seize jurisdiction over this case, ante, at 656-658, 165 L. Ed. 2d, at 793-794 (Scalia, J., dissenting), and after seeing them disregard the clear prudential counsel that they abstain in these circumstances [**2839] from using equitable powers, ante, at 672-678, 165 L. Ed. 2d, at 748-752, it is no surprise to see them go on to overrule one after another of the President's judgments pertaining to the conduct of an ongoing war. Those Justices who today disregard the Commander in Chief's wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency's wildly implausible conclusion that a storm drain is a tributary of the waters of the United States. See Rapanos [***824] v. United States, 547 U.S. ___, 547 U.S. 715, 126 S. Ct. 2208, 165 L. Ed. 2d 159, 2006 U.S. LEXIS 4887 (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 612, 165 L. Ed. 2d, at 766. 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, 72 S. Ct. 699, 96 L. Ed. 988. Indeed, this Court has concluded that "[i]n the absence of attempts by Congress to limit the President's power, it appears that, as Commander in Chief of the Army and Navy of the United States, he may, in time of war, establish and prescribe [*707] the jurisdiction and procedure of military commissions." Id., at 348, 72 S. Ct. 699, 96 L. Ed. 988. This conclusion is consistent with this Court's understanding that military commissions are "our common-law war courts." Id., at 346-347, 72 S. Ct. 699, 96 L. Ed. 988. 15 As such, "[s]hould the conduct [**2840] 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.

15 Though it does not constitute a basis for any holding of the Court, the Court maintains that, as a "general rule," "the procedures governing trials by military commission historically have been the same as those governing courts-martial." Ante, at 617, 165 L. Ed. 2d, at 769. While it is undoubtedly 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 proceedings as may be deemed necessary for full and fair trial, having regard for, but not being bound by, the rules of procedure prescribed for General 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 Martial"). Moreover, such a requirement would conflict with the settled understanding of the flexible and responsive nature of military commissions and the President's wartime authority to employ such tribunals 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").

[*708] The Court nevertheless concludes that at least one provision of the UCMJ amounts to an attempt by Congress to limit the President's power. [***825] This conclusion is not only 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 discretion to prescribe their procedures, Article 36 of the UCMJ authorizes the President to establish procedures for military 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. ß 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 regulations promulgated by the Executive must not be "contrary to" the UCMJ, only a few provisions of the UCMJ mention "military commissions," see ante, at 621, n 49, 165 L. Ed. 2d, at 771, 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. ß 836(b), which provides that "'[a]ll rules and regulations made under this article shall be uniform insofar as practicable,'" ante, at 620, 165 L. Ed. 2d, at 771, requires the President to employ the same rules and procedures in military commissions as are employed by courts-martial "insofar as practicable," ante, at 622, 165 L. Ed. 2d, at 772. 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 623-624, 165 L. Ed. 2d, at 772-773.

[*709] This interpretation of ß 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 --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 jurisdiction upon courts-martial shall not be construed as depriving 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 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 authority to prescribe military commission procedure. The Court explained, "[b]y thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles, Congress gave sanction . . . to any use of the military commission contemplated [**2841] by the common law of war." 327 U.S., at 20, 66 S. Ct. 340, 90 L. Ed. 499 (emphasis added); 16 see also Quirin, 317 U.S., at 28, 63 S. Ct. 2, 87 L. Ed. 3; Madsen, 343 U.S., at [***826] 355, 72 S. Ct. 699, 96 L. Ed. 988. In reaching this conclusion, this Court treated as authoritative the congressional testimony of Judge Advocate [*710] General Crowder, who testified 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, 66 S. Ct. 340, 90 L. Ed. 499. And this Court recognized that Article 15's preservation of military commissions as common-law war courts preserved the President's Commander in Chief authority to both "establish" military commissions and to "prescribe [their] procedure[s]." Madsen, 343 U.S., at 348, 72 S. Ct. 699, 96 L. Ed. 988; id., at 348-349, 72 S. Ct. 699, 96 L. Ed. 988 (explaining that Congress had "refrain[ed] from legislating" in the area of military commission procedures, in "contras[t] with its traditional readiness to . . . prescrib[e], with particularity, the jurisdiction and procedure of United States courts-martial"); cf. Green 834 ("The military 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 contrary, the military commission is free to formulate its own rules of procedure").

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. ß 802(a)(12), deprives Yamashita's conclusion respecting the President's authority to promulgate military commission procedures of its "precedential value." Ante, at 620, 165 L. Ed. 2d, at 771. 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, 63 S. Ct. 2, 87 L. Ed. 3; Yamashita, 327 U.S., at 20, 66 S. Ct. 340, 90 L. Ed. 499; Madsen v. Kinsella, 343 U.S. 341, 355, 72 S. Ct. 699, 96 L. Ed. 988 (1952).

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 applicable 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 commissions, inclusive of the President's unfettered authority to prescribe their procedures. Lorillard v. Pons, 434 U.S. 575, 580, 98 S. Ct. 866, 55 L. Ed. 2d 40 (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. ß 836(b). This is little more than an impermissible repeal by implication. [*711] See Branch v. Smith, 538 U.S. 254, 273, 123 S. Ct. 1429, 155 L. Ed. 2d 407 (2003)(plurality opinion). ("We have repeatedly stated . . . that absent a clearly expressed congressional intention, repeals by implication are not favored" (citations and internal quotation marks omitted)). Moreover, the Court's conclusion is flatly contrary 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 [**2842] enacted." Quirin, supra, at [***827] 25, 63 S. Ct. 2, 87 L. Ed. 3 (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 commissions 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 Act of May 5, 1950, 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 disciplinary laws of the Coast Guard"). There is no indication that the UCMJ was intended to require uniformity in procedure between courts-martial and military commissions, tribunals that the UCMJ itself recognizes are different. 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. ß 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 tribunals convened by the Navy must be uniform with the rules and regulations governing tribunals convened by the Army. But, consistent with this Court's prior interpretations [*712] of Article 21 and over a century of historical practice, it cannot be understood to require the President to conform the procedures employed by military commissions to those employed by courts-martial. 17

17 It bears noting that while the Court does not hesitate to cite legislative history that supports its view of certain statutory provisions, see ante, at 579, 165 L. Ed. 2d, at 745-747, 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 Subcommittee 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 expression of the congressional intent that we want it to be as uniform as possible." Ibid.

Even if Article 36(b) could be construed to require procedural uniformity among the various tribunals contemplated 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 "practicable" 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 623, 165 L. Ed. 2d, at 772-773. This is simply not the case. On the same day that the President issued Military Commission Order No. 1, the Secretary of Defense explained that "the president [***828] decided to establish military commissions because he wanted the option of a process that is different from those processes which we already have, namely, the federal [**2843] court system . . . and the military court system," Dept. of [*713] Defense News Briefing on Military Commissions (Mar. 21, 2002) (remarks of Donald Rumsfeld), available at http://www.dod.gov/transcripts/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 situation 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 activities 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 balancing of the requirements of our war policy and the importance of providing justice for the individuals . . . and each deviation from the standard kinds of rules that we have in our criminal courts was motivated by the desire to strike this balance between individual justice and the broader war policy." Ibid. (remarks of Douglas 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 "practicability" 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 [*714] intrusion or inquiry.'" Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, at 111, 68 S. Ct. 431, 92 L. Ed. 568 (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 practicability requirement imposed by Article 36(b).

The Court further contends that Hamdan's commission is unlawful because it fails to provide him the right to be present at his trial, as recognized in 10 U.S.C.. ß 839(c) (2000 ed., Supp. 2006). Ante, at 624, 165 L. Ed. 2d, at 773. But ß 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 [***829] 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 [**2844] confirmed by the provision's subsequent reference to "members of the court" and to "cases in which a military judge has been detailed to the court." It is also confirmed by the other provisions of ß 839, which refer only to courts-martial. See ßß 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 [*715] 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 ß 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.

18 In addition to being foreclosed by the text of the provision, the Court's suggestion that 10 U.S.C. ß 839(c) (2000 ed., Supp. 2006) applies to military commissions is untenable because it would require, in military commission proceedings, that the accused be present when the members of the commission voted on his guilt or innocence.

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 629-635, 165 L. Ed. 2d, at 775-780. Furthermore, Hamdan contends that his commission is unlawful because it violates various provisions of the Third Geneva Convention. These contentions are untenable.

1

As an initial matter, and as the Court of Appeals concluded, both of Hamdan's Geneva Convention claims are foreclosed by Johnson v. Eisentrager, 339 U.S. 763, 70 S. Ct. 936, 94 L. Ed. 1255 (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, 70 S. Ct. 936, 94 L. Ed. 1255. While this Court rejected the underlying merits of the respondents' Geneva Convention claims, id., at 790, 70 S. Ct. 936, 94 L. Ed. 1255, it also held, in the alternative, that the respondents could "not assert . . . that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes," id., at 789, 70 S. Ct. 936, 94 L. Ed. 1255. The Court explained:

"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 [*716] 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 powers as the [***830] rights of our citizens against foreign governments are vindicated only by Presidential intervention." Id., at 789, n. 14, 70 S. Ct. 936, 94 L. Ed. 1255.

This alternative holding is no less binding than if it were the exclusive basis for the Court's decision. See Massachusetts v. United States, 333 U.S. 611, 623, 68 S. Ct. 747, 92 L. Ed. 968, 1948-1 C.B. 117 (1948). While the Court attempts to cast Eisentrager's unqualified, alternative holding as footnote dictum, ante, at 627, 165 L. Ed. 2d, at 774-775, 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 contemplated that diplomatic measures by political and military authorities were the exclusive mechanisms [**2845] for such enforcement. Nor does the Court suggest that the 1949 Geneva Conventions departed from this framework. See ante, at ____, 165 L. Ed. 2d, at 775 ("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 Conventions 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." Ante, at 628, 165 L. Ed. 2d, at 775 (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, 63 S. Ct. 2, 87 L. Ed. 3 (by enacting Article 21, "Congress has explicitly 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 [*717] merely by observing that Article 21 mentions the law of war; indeed, though Eisentrager did not specifically consider the Court's novel interpretation 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 Article 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 non-enforceability of the Geneva Conventions derives from the fact that those Conventions have exclusive enforcement mechanisms, see Eisentrager, supra, at 789, n. 14, 70 S. Ct. 936, 94 L. Ed. 1255, 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 requirements 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.

[***831] Even if the Court were correct that Article 21 of the 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 enforceable the particular provision of the law of war at issue here, namely, Common Article 3 of the Geneva Conventions. As relevant, Article 21 provides that "[t]he provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions . . . of concurrent jurisdiction with respect to offenders or offenses that by statute or by [*718] the law of war may be tried by military commissions." 10 U.S.C. ß 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 [**2846] tribunal itself, namely, whether it is "regularly constituted" and whether it "afford[s] all the judicial guarantees which are recognized as indispensable by civilized peoples." Third Geneva Convention, Art. 3, P 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 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 negotiation and enforcement is entitled to great weight." Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-185, 102 S. Ct. 2374, 72 L. Ed. 2d 765 (1982); United States v. Stuart, 489 U.S. 353, 369, 109 S. Ct. 1183, 103 L. Ed. 2d 388 (1989). Our duty to defer to the [*719] 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, 57 S. Ct. 216, 81 L. Ed. 255 (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 [***832] 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 631, 165 L. Ed. 2d, at 777, precisely the type of conflict the President's interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging 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 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 enforceable 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 prohibited" under Common Article 3 are "the passing of sentences and the carrying out of executions without previous judgment pronounced [*720] by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized [**2847] peoples." Art. 3, P 1(d), 6 U. S. T., at 3318, 3320 (emphasis 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 Hamdan 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, 118 S. Ct. 1257, 140 L. Ed. 2d 406 (1998) (internal quotation marks omitted). 19 Indeed, even if we assume he will be convicted and sentenced, whether his trial will be conducted in a manner so as to deprive him of "the judicial guarantees which are recognized as indispensable by civilized peoples" is entirely speculative. And premature adjudication of Hamdan's claim is especially inappropriate here because "reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Raines v. Byrd, 521 U.S. 811, 819-820, 117 S. Ct. 2312, 138 L. Ed. 2d 849 (1997).

19 The Court does not dispute the conclusion that Common Article 3 cannot be violated unless and until Hamdan is convicted and sentenced. 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 626, n 55, 165 L. Ed. 2d, at 774. But the Geneva Conventions 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 adjudicating unripe claims.

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: [***833]

[*721] "'By a practice dating from 1847 and renewed and firmly established during the Civil War, military commissions have become adopted as authorized tribunals in this country in time of war. . . . Their competency has been recognized not only in acts of Congress, 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, 72 S. Ct. 699, 96 L. Ed. 988.

Hamdan's commission has been constituted in accordance with these historical precedents. As I have previously explained, the procedures to be employed by that commission, and the Executive's authority to alter those procedures, are consistent with the practice of previous American military commissions. See supra, at 706-712, 165 L. Ed. 2d, at 824-826, 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 commissions but because it "deviate[s] from [the procedures] governing courts-martial." Ante, at 634, 165 L. Ed. 2d, at 779. But there is neither a statutory nor historical requirement that military commissions conform to the structure and practice of courts-martial. A military commission is a different tribunal, 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, P 1(d), 6 U. S. T., at 3320.

[**2848] 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 description of those procedures.

"Petitioner is entitled to appointed military legal counsel, 32 C.F.R. 9.4(c)(2), and may retain a civilian attorney (which he has done), 32 C.F.R. 9.4(c)(2)(iii)(B). Petitioner is entitled to the presumption of innocence, [*722] 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 information 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) ß 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 ß 1005(e)(3), 119 Stat. 2743; 28 U.S.C. 1254(1)." Brief for Respondents 4.

Notwithstanding these provisions, which in my judgment easily satisfy the nebulous standards of Common [***834] 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 633-635, 165 L. Ed. 2d, at 778-780. But, under the commissions' rules, the Government may not impose such bar or denial on Hamdan if it would render his trial unfair, [*723] a question that is clearly within the scope of the appellate review contemplated by regulation and statute.

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 Commissions of Certain Non-United States Citizens in the War Against Terrorism, p x (2002) (foreword by Lloyd N. Cutler).

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 Commission Order No. 1, ß 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 interrogations 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 threat to reveal our Nation's intelligence gathering sources and methods, that "[i]t is 'obvious and unarguable' that no governmental interest [**2849] is more compelling than the security of the Nation," Haig, 453 U.S., at 307, 101 S. Ct. 2766, 69 L. Ed. 2d 640 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964)), and that "[m]easures to protect the secrecy of our Government's foreign intelligence operations plainly serve these interests, " Haig, supra, at 307, 101 S. Ct. 2766, 69 L. Ed. 2d 640. See also Snepp v. United States, 444 U.S. 507, 509, n. 3, 100 S. Ct. 763, 62 L. Ed. 2d 704 (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, 57 S. Ct. 216, 81 L. Ed. 255. 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 [*724] 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. Moussaoui (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.

[***835] 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 718, 165 L. Ed. 2d, at 831.

4

In addition to Common Article 3, which applies to conflicts "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 3318. "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 conflict with respect to members of al Qaeda operating in Afghanistan represents a core [*725] exercise of his Commander in Chief authority that this Court is bound to respect. See Prize Cases, 67 U.S. 635, 2 Black, at 670, 17 L. Ed. 459.

* * *

For these reasons, I would affirm the judgment of the Court of Appeals. 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 [**2850] exception of Parts I, II-C-1, and III-B-2, which concern matters 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. ß 821; this provision permits 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 offender such as petitioner or an offense such as the one with which he is charged may be tried by a military commission, 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 Convention, Art. 3, P 1(d), Relative to the Treatment of [***836] 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."

[*726] 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 judicial 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 meaning of the first and third requirements. The first requirement 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 accordance with the appointing country's domestic law. I agree with the Court, see ante, at 632, n 64, 165 L. Ed. 2d, at 778, that, as used in Common Article 3, the term "regularly" is synonymous with "properly." The term "constitute" means "appoint," "set up," or "establish," Webster's Third New International Dictionary 486 (1961), and therefore "regularly constituted" means properly appointed, set up, or established. Our cases repeatedly use the phrases "regularly constituted" and "properly constituted" in this sense. See, e.g., Hamdi v. [*727] Rumsfeld, 542 U.S. 507, 538, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004) (plurality opinion of O'Connor, J.); Nguyen v. United States, 539 U.S. 69, 83, 123 S. Ct. 2130, 156 L. Ed. 2d 64 (2003); Ryder v. United States, 515 U.S. 177, 187, 115 S. Ct. 2031, 132 L. Ed. 2d 136 (1995); Williams v. Bruffy, 96 U.S. 176, 185, 24 L. Ed. 716 (1878).

[**2851] 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 international law standard regarding the way in which such a court must be appointed, set up, or established, and because different countries with different government structures handle this matter differently. Accordingly, "a regularly constituted court" is a court that has been appointed, set up, or established in accordance with the domestic law of the appointing country.

II

In contrast to this interpretation, the opinions supporting the judgment today hold that the military commission [***837] before which petitioner would be tried is not "a regularly constituted court" (1) because "no evident practical need explains" why its "structure and composition . . . deviate from conventional court-martial standards," ante, at 647, 165 L. Ed. 2d, at 787 (Kennedy, J., concurring in part); see also ante, at 632-633, 165 L. Ed. 2d, at 778 (opinion of the Court); and (2) because, contrary to 10 U.S.C. ß 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 615-625, 165 L. Ed. 2d, at 768-774 (opinion of the Court); ante, at 651-653, 165 L. Ed. 2d, at 789-791 (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 [*728] regular military court or unless there is an "evident practical 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 example, a municipal court, a state trial court of general jurisdiction, an Article I federal trial court, a federal district court, and an international court, such as the International 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 similar 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 expressly to the ordinary military courts and expressly prescribe the "uniformity principle" that Justice Kennedy sees in Common Article 3, see ante, at 643-644, 165 L. Ed. 2d, at 785-786. 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 committed by the prisoner of war." 6 U. S. T., at 3382. Article 87 states that "[p]risoners of war may not be sentenced by the military authorities and courts of the Detaining 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. Similarly, Article 66 of the Geneva [**2852] Convention Relative to the Protection of Civilian Persons in Time of War--a provision to which the Court looks for guidance in interpreting Common Article 3, see ante at 632, 165 L. Ed. 2d, at 778--expressly provides that civilians [*729] 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, [***838] 3558-3560, T. I. A. S. No. 3365. If Common 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 632, 165 L. Ed. 2d, at 778, the commentary on Article 66 of the Fourth Geneva Convention does not undermine this conclusion. As noted, Article 66 permits an occupying power to try civilians in its "properly 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 Protection of Civilian Persons in Time of War 340 (J. Pictet gen. ed. 1958) (hereinafter GCIV Commentary).

The Court states that this commentary "defines '"regularly constituted"' tribunals to include 'ordinary military courts' and 'definitely exclud[e] all special tribunals.'" Ante, at 632, 165 L. Ed. 2d, at 778 (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 prohibits an occupying power from trying civilians in courts set up specially for that purpose--to tell [*730] us much about the very different context addressed by Common Article 3.

But even if Common Article 3 recognizes this prohibition on "special tribunals," that prohibition does not cover petitioner's tribunal. If "special" means anything in contradistinction 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 suggested respondents intend otherwise--then it seems that petitioner's tribunal, like the hundreds of others respondents propose to conduct, is very much regular and not at all special.

B

I also disagree with the Court's conclusion that petitioner's military commission is "illegal," ante, at 625, 165 L. Ed. 2d, at 774, because its procedures allegedly do not comply with 10 U.S.C. ß 836. Even if ß 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 711-712, 165 L. Ed. 2d, at 827 (Thomas, J., dissenting), and even if it is assumed for the sake of argument that some of the procedures specified in Military Commission Order No. 1 impermissibly deviate from [**2853] court-martial procedures, it does not follow [***839] 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 requiring 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 procedures that may be used in military commission proceedings are improper, the appropriate remedy is to proscribe the use of those particular procedures, not to outlaw [*731] 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 procedure 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 universally 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, 63 S. Ct. 2, 87 L. Ed. 3 (1942), and the Court acknowledges that Quirin recognized that the statutory predecessor of 10 U.S.C. ß 821 "preserved" the President's power "to convene military commissions," ante, at 593, 165 L. Ed. 2d, at 754. Although Justice Kennedy concludes that "an acceptable degree of independence from the Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation's system of justice," ante at 645, 165 L. Ed. 2d, at 786, 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 commissions at issue here, and 10 U.S.C. ßß 821 and 836 do not speak to this issue. 1

1 Section 821 looks to the "law of war," not separation-of-powers issues. And ß 836, as Justice Kennedy notes, concerns procedures, not structure, see ante, at 645, 65 L. Ed. 2d, at 786.

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 [*732] 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 midtrial changes), see ante, at 645, n 65, 165 L. Ed. 2d, at 778 (opinion of the Court); ante, at 645, 165 L. Ed. 2d, at 786 (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 614-615, 623, 165 L. Ed. 2d, at 767, 773 (opinion of the Court); ante, at 651-653, 165 L. Ed. 2d, at 789-791 (Kennedy, J., concurring in part). 2 [***840] Neither of these two [**2854] rules undermines the legitimacy of the commissions.

2 The plurality, but not Justice Kennedy, suggests that the commission rules are improper insofar as they allow a defendant to be denied access to evidence under some circumstances. See, ante, at 633-635, 165 L. Ed. 2d, at 778-780. 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.

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 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 considered 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 [*733] 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 Hearsay 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 admitted 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, P 1(d), in its entirety states:

"[A]lthough [sentences and executions without a proper trial] were common practice until quite recently, 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 nations surround the administration of justice with safeguards 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 [*734] a person presumed to be guilty from being arrested and so placed in a [***841] position where he can do no further harm; and it leaves intact the right of the State to prosecute, sentence and punish according to the law." GCIV Commentary 39 (emphasis added).

It seems clear that the commissions at issue here meet this standard. Whatever else may be said about the system that was created by Military Commission Order No. 1 and augmented by the Detainee Treatment Act, ß 1005(e)(1), 119 Stat. 2742, this system--which features formal [**2855] 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.

Supreme Court cases. 107 L. Ed. 2d 1105.

        After Congress passed a resolution — the Authorization for Use of Military Force (AUMF) — empowering the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Petitioner Yaser Hamdi, an American citizen whom the Government has classified as an "enemy combatant" for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S.C. Hamdi's father filed this habeas petition on his behalf under 28 U.S.C. § 2241, alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. Although the petition did not elaborate on the factual circumstances of Hamdi's capture and detention, his father has asserted in other documents in the record that Hamdi went to Afghanistan to do "relief work" less than two months before September 11 and could not have received military training. The Government attached to its response to the petition a declaration from Michael Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration alleges various details regarding Hamdi's trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S. allies, and his subsequent surrender of an assault rifle. The District Court found that the Mobbs Declaration, standing alone, did not support Hamdi's detention and ordered the Government to turn over numerous materials for in camera review. The Fourth Circuit reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper. Concluding that the factual averments in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the habeas petition dismissed. The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U.S.C.

[542 U.S. 508]

§ 4001(a) — which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" — the AUMF's "necessary and appropriate force" language provided the authorization for Hamdi's detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention's legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.

        Held: The judgment is vacated, and the case is remanded.

        316 F. 3d 450, vacated and remanded.

        JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. P. 509.

        JUSTICE SOUTER, joined by JUSTICE GINSBURG, concluded that Hamdi's detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Pp. 540-541, 553.

        O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and KENNEDY and BREYER, JJ., joined. SOUTER, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which GINSBURG, J., joined, post, p. 539. SCALIA, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 554. THOMAS, J., filed a dissenting opinion, post, p. 579.

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

        Frank W. Dunham, Jr., argued the cause for petitioners. With him on the briefs were Geremy C. Kamens, Kenneth P. Troccoli, and Frances H. Pratt.

        Deputy Solicitor General Clement argued the cause for respondents. With him on the brief were Solicitor General Olson, Gregory G. Garre, and John A. Drennan.^*

[542 U.S. 509]

        JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER join.

        At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an "enemy combatant" and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner Yaser Hamdi's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

[542 U.S. 510]

        On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One week later, in response to these "acts of treacherous violence," Congress passed a resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Authorization for Use of Military Force (AUMF), 115 Stat. 224. Soon thereafter, the President ordered United States Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.

        This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an "enemy combatant," and that this status justifies holding him in the United States indefinitely — without formal charges or proceedings — unless and until it makes the

[542 U.S. 511]

determination that access to counsel or further process is warranted.

        In June 2002, Hamdi's father, Esam Fouad Hamdi, filed the present petition for a writ of habeas corpus under 28 U. S. C. § 2241 in the Eastern District of Virginia, naming as petitioners his son and himself as next friend. The elder Hamdi alleges in the petition that he has had no contact with his son since the Government took custody of him in 2001, and that the Government has held his son "without access to legal counsel or notice of any charges pending against him." App. 103, 104. The petition contends that Hamdi's detention was not legally authorized. Id., at 105. It argues that, "[a]s an American citizen, . . . Hamdi enjoys the full protections of the Constitution," and that Hamdi's detention in the United States without charges, access to an impartial tribunal, or assistance of counsel "violated and continue[s] to violate the Fifth and Fourteenth Amendments to the United States Constitution." Id., at 107. The habeas petition asks that the court, among other things, (1) appoint counsel for Hamdi; (2) order respondents to cease interrogating him; (3) declare that he is being held in violation of the Fifth and Fourteenth Amendments; (4) "[t]o the extent Respondents contest any material factual allegations in this Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of their allegations"; and (5) order that Hamdi be released from his "unlawful custody." Id., at 108-109. Although his habeas petition provides no details with regard to the factual circumstances surrounding his son's capture and detention, Hamdi's father has asserted in documents found elsewhere in the record that his son went to Afghanistan to do "relief work," and that he had been in that country less than two months before September 11, 2001, and could not have received military training. Id., at 188-189. The 20-year-old was traveling on his own for the first time, his father says, and "[b]ecause of his lack of experience, he was

[542 U.S. 512]

trapped in Afghanistan once the military campaign began." Ibid.

        The District Court found that Hamdi's father was a proper next friend, appointed the federal public defender as counsel for the petitioners, and ordered that counsel be given access to Hamdi. Id., at 113-116. The United States Court of Appeals for the Fourth Circuit reversed that order, holding that the District Court had failed to extend appropriate deference to the Government's security and intelligence interests. 296 F. 3d 278, 279, 283 (2002). It directed the District Court to consider "the most cautious procedures first," id., at 284, and to conduct a deferential inquiry into Hamdi's status, id., at 283. It opined that "if Hamdi is indeed an `enemy combatant' who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one." Ibid.

        On remand, the Government filed a response and a motion to dismiss the petition. It attached to its response a declaration from one Michael Mobbs (hereinafter Mobbs Declaration), who identified himself as Special Advisor to the Under Secretary of Defense for Policy. Mobbs indicated that in this position, he has been "substantially involved with matters related to the detention of enemy combatants in the current war against the al Qaeda terrorists and those who support and harbor them (including the Taliban)." App. 148. He expressed his "familiar[ity]" with Department of Defense and United States military policies and procedures applicable to the detention, control, and transfer of al Qaeda and Taliban personnel, and declared that "[b]ased upon my review of relevant records and reports, I am also familiar with the facts and circumstances related to the capture of ... Hamdi and his detention by U. S. military forces." Ibid.

        Mobbs then set forth what remains the sole evidentiary support that the Government has provided to the courts for Hamdi's detention. The declaration states that Hamdi "traveled to Afghanistan" in July or August 2001, and that

[542 U.S. 513]

he thereafter "affiliated with a Taliban military unit and received weapons training." Ibid. It asserts that Hamdi "remained with his Taliban unit following the attacks of September 11" and that, during the time when Northern Alliance forces were "engaged in battle with the Taliban," "Hamdi's Taliban unit surrendered" to those forces, after which he "surrender[ed] his Kalishnikov assault rifle" to them. Id., at 148-149. The Mobbs Declaration also states that, because al Qaeda and the Taliban "were and are hostile forces engaged in armed conflict with the armed forces of the United States," "individuals associated with" those groups "were and continue to be enemy combatants." Id., at 149. Mobbs states that Hamdi was labeled an enemy combatant "[b]ased upon his interviews and in light of his association with the Taliban." Ibid. According to the declaration, a series of "U. S. military screening team[s]" determined that Hamdi met "the criteria for enemy combatants," and "[a] subsequent interview of Hamdi has confirmed the fact that he surrendered and gave his firearm to Northern Alliance forces, which supports his classification as an enemy combatant." Id., at 149-150.

        After the Government submitted this declaration, the Fourth Circuit directed the District Court to proceed in accordance with its earlier ruling and, specifically, to "`consider the sufficiency of the Mobbs declaration as an independent matter before proceeding further.'" 316 F. 3d 450, 462 (2003). The District Court found that the Mobbs Declaration fell "far short" of supporting Hamdi's detention. App. 292. It criticized the generic and hearsay nature of the affidavit, calling it "little more than the government's `say-so.'" Id., at 298. It ordered the Government to turn over numerous materials for in camera review, including copies of all of Hamdi's statements and the notes taken from interviews with him that related to his reasons for going to Afghanistan and his activities therein; a list of all interrogators who had questioned Hamdi and their names and addresses;

[542 U.S. 514]

statements by members of the Northern Alliance regarding Hamdi's surrender and capture; a list of the dates and locations of his capture and subsequent detentions; and the names and titles of the United States Government officials who made the determinations that Hamdi was an enemy combatant and that he should be moved to a naval brig. Id., at 185-186. The court indicated that all of these materials were necessary for "meaningful judicial review" of whether Hamdi's detention was legally authorized and whether Hamdi had received sufficient process to satisfy the Due Process Clause of the Constitution and relevant treaties or military regulations. Id., at 291-292.

        The Government sought to appeal the production order, and the District Court certified the question of whether the Mobbs Declaration, "`standing alone, is sufficient as a matter of law to allow a meaningful judicial review of [Hamdi's] classification as an enemy combatant.'" 316 F. 3d, at 462. The Fourth Circuit reversed, but did not squarely answer the certified question. It instead stressed that, because it was "undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict," no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper. Id., at 459. Concluding that the factual averments in the Mobbs Declaration, "if accurate," provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi pursuant to the President's war powers, it ordered the habeas petition dismissed. Id., at 473. The Fourth Circuit emphasized that the "vital purposes" of the detention of uncharged enemy combatants — preventing those combatants from rejoining the enemy while relieving the military of the burden of litigating the circumstances of wartime captures halfway around the globe — were interests "directly derived from the war powers of Articles I and II." Id., at 465-466. In that court's view, because "Article III contains nothing analogous to the specific powers of war so

[542 U.S. 515]

carefully enumerated in Articles I and II," id., at 463, separation of powers principles prohibited a federal court from "delv[ing] further into Hamdi's status and capture," id., at 473. Accordingly, the District Court's more vigorous inquiry "went far beyond the acceptable scope of review." Ibid.

        On the more global question of whether legal authorization exists for the detention of citizen enemy combatants at all, the Fourth Circuit rejected Hamdi's arguments that 18 U. S. C. § 4001(a) and Article 5 of the Geneva Convention rendered any such detentions unlawful. The court expressed doubt as to Hamdi's argument that § 4001(a), which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress," required express congressional authorization of detentions of this sort. But it held that, in any event, such authorization was found in the post-September 11 AUMF. 316 F. 3d, at 467. Because "capturing and detaining enemy combatants is an inherent part of warfare," the court held, "the `necessary and appropriate force' referenced in the congressional resolution necessarily includes the capture and detention of any and all hostile forces arrayed against our troops." Ibid.; see also id., at 467-468 (noting that Congress, in 10 U. S. C. § 956(5), had specifically authorized the expenditure of funds for keeping prisoners of war and persons whose status was determined "to be similar to prisoners of war," and concluding that this appropriation measure also demonstrated that Congress had "authoriz[ed these individuals'] detention in the first instance"). The court likewise rejected Hamdi's Geneva Convention claim, concluding that the convention is not self-executing and that, even if it were, it would not preclude the Executive from detaining Hamdi until the cessation of hostilities. 316 F. 3d, at 468-469.

        Finally, the Fourth Circuit rejected Hamdi's contention that its legal analyses with regard to the authorization for the detention scheme and the process to which he was constitutionally

[542 U.S. 516]

entitled should be altered by the fact that he is an American citizen detained on American soil. Relying on Ex parte Quirin, 317 U. S. 1 (1942), the court emphasized that "[o]ne who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such." 316 F. 3d, at 475. "The privilege of citizenship," the court held, "entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the war powers of the political branches. At least where it is undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there." Ibid.

        The Fourth Circuit denied rehearing en banc, 337 F. 3d 335 (2003), and we granted certiorari. 540 U. S. 1099 (2004). We now vacate the judgment below and remand.

        The threshold question before us is whether the Executive has the authority to detain citizens who qualify as "enemy combatants." There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the "enemy combatant" that it is seeking to detain is an individual who, it alleges, was "`part of or supporting forces hostile to the United States or coalition partners'" in Afghanistan and who "`engaged in an armed conflict against the United States'" there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

        The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution.

[542 U.S. 517]

We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF.

        Our analysis on that point, set forth below, substantially overlaps with our analysis of Hamdi's principal argument for the illegality of his detention. He posits that his detention is forbidden by 18 U. S. C. § 4001(a). Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Congress passed § 4001(a) in 1971 as part of a bill to repeal the Emergency Detention Act of 1950, 50 U. S. C. § 811 et seq., which provided procedures for executive detention, during times of emergency, of individuals deemed likely to engage in espionage or sabotage. Congress was particularly concerned about the possibility that the Act could be used to reprise the Japanese-American internment camps of World War II. H. R. Rep. No. 92-116 (1971); id., at 4 ("The concentration camp implications of the legislation render it abhorrent"). The Government again presses two alternative positions. First, it argues that § 4001(a), in light of its legislative history and its location in Title 18, applies only to "the control of civilian prisons and related detentions," not to military detentions. Brief for Respondents 21. Second, it maintains that § 4001(a) is satisfied, because Hamdi is being detained "pursuant to an Act of Congress"—the AUMF. Id., at 21-22. Again, because we conclude that the Government's second assertion is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied § 4001(a)'s requirement that a detention be "pursuant to an Act of Congress" (assuming, without deciding, that § 4001(a) applies to military detentions).

[542 U.S. 518]

        The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

        The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, supra, at 28, 30. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002) ("[C]aptivity in war is `neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war'" (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int'l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) ("The time has long passed when `no quarter' was the rule on the battlefield. . . . It is now recognized that `Captivity is neither a punishment nor an act of vengeance,' but `merely a temporary detention which is devoid of all penal character.' . . . `A prisoner of war is no convict; his imprisonment is a simple war measure'" (citations omitted)); cf. In re Territo, 156 F. 2d 142, 145 (CA9 1946) ("The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on

[542 U.S. 519]

must be removed as completely as practicable from the front, treated humanely and in time exchanged, repatriated or otherwise released" (footnotes omitted)).

        There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." Id., at 37-38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30-31. See also Lieber Code ¶ 153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 F. Lieber, Miscellaneous Writings, p. 273, ¶ 153 (1880) (contemplating, in code binding the Union Army during the Civil War, that "captured rebels" would be treated "as prisoners of war"). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States," Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.

        In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

        Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject.

[542 U.S. 520]

The Government responds that "the detention of enemy combatants during World War II was just as `indefinite' while that war was being fought." Id., at 16. We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the "war on terror," although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The prospect Hamdi raises is therefore not farfetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.

        It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 ("Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities"). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817 (as soon as possible after "conclusion of peace"); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat. 2301 ("conclusion of peace" (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat. 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Paust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int'l L. J. 503, 510-511 (2003) (prisoners of war "can be detained during an armed conflict, but the detaining country must release and repatriate them `without delay after the cessation of active hostilities,' unless they are

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being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences" (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 U. S. T., at 3384, 3392, 3406, 3418)).

        Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e. g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); Dept. of Defense, News Transcript, Gen. J. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html (as visited June 8, 2004, and available in Clerk of Court's case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

        Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government's authority to seize

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enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court's repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.¹

        Moreover, as JUSTICE SCALIA acknowledges, the Court in Ex parte Quirin, 317 U. S. 1 (1942), dismissed the language of Milligan that the petitioners had suggested prevented them from being subject to military process. Post, at 570 (dissenting opinion). Clear in this rejection was a disavowal of the New York State cases cited in Milligan, 4 Wall., at 128-129, on which JUSTICE SCALIA relies. See ibid. Both Smith v. Shaw, 12 Johns. *257 (N. Y. 1815), and M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), were civil suits for false imprisonment. Even accepting that these cases once could have been viewed as standing for the sweeping proposition for which JUSTICE SCALIA cites them—that the military does not have authority to try an American citizen accused of spying against his country during wartime—Quirin makes undeniably clear that this is not the law today.

[542 U.S. 523]

Haupt, like the citizens in Smith and M'Connell, was accused of being a spy. The Court in Quirin found him "subject to trial and punishment by [a] military tribuna[l]" for those acts, and held that his citizenship did not change this result. 317 U. S., at 31, 37-38.

        Quirin was a unanimous opinion. It both postdates and clarifies Milligan, providing us with the most apposite precedent that we have on the question of whether citizens may be detained in such circumstances. Brushing aside such precedent—particularly when doing so gives rise to a host of new questions never dealt with by this Court—is unjustified and unwise.

        To the extent that JUSTICE SCALIA accepts the precedential value of Quirin, he argues that it cannot guide our inquiry here because "[i]n Quirin it was uncontested that the petitioners were members of enemy forces," while Hamdi challenges his classification as an enemy combatant. Post, at 571. But it is unclear why, in the paradigm outlined by JUSTICE SCALIA, such a concession should have any relevance. JUSTICE SCALIA envisions a system in which the only options are congressional suspension of the writ of habeas corpus or prosecution for treason or some other crime. Post, at 554. He does not explain how his historical analysis supports the addition of a third option—detention under some other process after concession of enemy-combatant status—or why a concession should carry any different effect than proof of enemy-combatant status in a proceeding that comports with due process. To be clear, our opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant; whether that is established by concession or by some other process that verifies this fact with sufficient certainty seems beside the point.

        Further, JUSTICE SCALIA largely ignores the context of this case: a United States citizen captured in a foreign combat zone. JUSTICE SCALIA refers to only one case involving

[542 U.S. 524]

this factual scenario — a case in which a United States citizen-prisoner of war (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo, 156 F. 2d, at 148.

        JUSTICE SCALIA'S treatment of that case—in a footnote—suffers from the same defect as does his treatment of Quirin: Because JUSTICE SCALIA finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner "conceded" enemy-combatant status is beside the point. See supra, at 523. JUSTICE SCALIA can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U. S. territory) cannot be detained outside the criminal process.

        Moreover, JUSTICE SCALIA presumably would come to a different result if Hamdi had been kept in Afghanistan or even Guantanamo Bay. See post, at 577. This creates a perverse incentive. Military authorities faced with the stark choice of submitting to the full-blown criminal process or releasing a suspected enemy combatant captured on the battlefield will simply keep citizen-detainees abroad. Indeed, the Government transferred Hamdi from Guantanamo Bay to the United States naval brig only after it learned that he might be an American citizen. It is not at all clear why that should make a determinative constitutional difference.

        Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status. Hamdi argues that he is owed a meaningful and timely hearing and that "extra-judicial detention [that] begins and ends with the submission of an affidavit based on third-hand hearsay" does not comport with

[542 U.S. 525]

the Fifth and Fourteenth Amendments. Brief for Petitioners 16. The Government counters that any more process than was provided below would be both unworkable and "constitutionally intolerable." Brief for Respondents 46. Our resolution of this dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural contours of that mechanism in this instance.

        Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U. S. Const., Art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e. g., Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755; Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. See INS v. St. Cyr, 533 U. S. 289, 301 (2001). All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U. S. C. § 2241. Brief for Respondents 12. Further, all agree that § 2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review. Most notably, § 2243 provides that "the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts," and § 2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories.

[542 U.S. 526]

        The simple outline of § 2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process. The Government recognizes the basic procedural protections required by the habeas statute, id., at 37-38, but asks us to hold that, given both the flexibility of the habeas mechanism and the circumstances presented in this case, the presentation of the Mobbs Declaration to the habeas court completed the required factual development. It suggests two separate reasons for its position that no further process is due.

        First, the Government urges the adoption of the Fourth Circuit's holding below—that because it is "undisputed" that Hamdi's seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected. As the dissenters from the denial of rehearing en banc noted, the circumstances surrounding Hamdi's seizure cannot in any way be characterized as "undisputed," as "those circumstances are neither conceded in fact, nor susceptible to concession in law, because Hamdi has not been permitted to speak for himself or even through counsel as to those circumstances." 337 F. 3d, at 357 (opinion of Luttig, J.); see also id., at 371-372 (opinion of Motz, J.). Further, the "facts" that constitute the alleged concession are insufficient to support Hamdi's detention. Under the definition of enemy combatant that we accept today as falling within the scope of Congress' authorization, Hamdi would need to be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States" to justify his detention in the United States for the duration of the relevant conflict. Brief for Respondents 3. The habeas petition states only that

[542 U.S. 527]

"[w]hen seized by the United States Government, Mr. Hamdi resided in Afghanistan." App. 104. An assertion that one resided in a country in which combat operations are taking place is not a concession that one was "captured in a zone of active combat" operations in a foreign theater of war, 316 F. 3d, at 459 (emphasis added), and certainly is not a concession that one was "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States." Accordingly, we reject any argument that Hamdi has made concessions that eliminate any right to further process.

        The Government's second argument requires closer consideration. This is the argument that further factual exploration is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the Government's most extreme rendition of this argument, "[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict" ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. Brief for Respondents 26. At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential "some evidence" standard. Id., at 34 ("Under the some evidence standard, the focus is exclusively on the factual basis supplied by the Executive to support its own determination" (citing Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445, 455-457 (1985) (explaining that the some evidence standard "does not require" a "weighing of the evidence," but rather calls for assessing "whether there is any evidence in the record that could support the conclusion"))). Under this review, a court would assume the accuracy of the Government's articulated

[542 U.S. 528]

basis for Hamdi's detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one. Brief for Respondents 36; see also 316 F. 3d, at 473-474 (declining to address whether the "some evidence" standard should govern the adjudication of such claims, but noting that "[t]he factual averments in the [Mobbs] affidavit, if accurate, are sufficient to confirm" the legality of Hamdi's detention).

        In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive's asserted justifications for that detention have basis in fact and warrant in law. See, e. g., Zadvydas v. Davis, 533 U. S. 678, 690 (2001); Addington v. Texas, 441 U. S. 418, 425-427 (1979). He argues that the Fourth Circuit inappropriately "ceded power to the Executive during wartime to define the conduct for which a citizen may be detained, judge whether that citizen has engaged in the proscribed conduct, and imprison that citizen indefinitely," Brief for Petitioners 21, and that due process demands that he receive a hearing in which he may challenge the Mobbs Declaration and adduce his own counter evidence. The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be "meaningful judicial review." App. 291.

        Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right. The ordinary mechanism that we use

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for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not "deprived of life, liberty, or property, without due process of law," U. S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge, 424 U. S. 319 (1976). See, e. g., Heller v. Doe, 509 U. S. 312, 330-331 (1993); Zinermon v. Burch, 494 U. S. 113, 127-128 (1990); United States v. Salerno, 481 U. S. 739, 746 (1987); Schall v. Martin, 467 U. S. 253, 274-275 (1984); Addington v. Texas, supra, at 425. Mathews dictates that the process due in any given instance is determined by weighing "the private interest that will be affected by the official action" against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process. 424 U. S., at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of "the risk of an erroneous deprivation" of the private interest if the process were reduced and the "probable value, if any, of additional or substitute procedural safeguards." Ibid. We take each of these steps in turn.

        It is beyond question that substantial interests lie on both sides of the scale in this case. Hamdi's "private interest ... affected by the official action," ibid., is the most elemental of liberty interests—the interest in being free from physical detention by one's own government. Foucha v. Louisiana, 504 U. S. 71, 80 (1992) ("Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action"); see also Parham v. J. R., 442 U. S. 584, 600 (1979) (noting the "substantial liberty interest in not being confined unnecessarily"). "In our society liberty is the norm," and detention without trial "is the carefully limited exception." Salerno, supra, at 755. "We have always been careful not to `minimize the importance and fundamental nature' of the individual's

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right to liberty," Foucha, supra, at 80 (quoting Salerno, supra, at 750), and we will not do so today.

        Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior, for "[i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection," Jones v. United States, 463 U. S. 354, 361 (1983) (emphasis added; internal quotation marks omitted), and at this stage in the Mathews calculus, we consider the interest of the erroneously detained individual. Carey v. Piphus, 435 U. S. 247, 259 (1978) ("Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property"); see also id., at 266 (noting "the importance to organized society that procedural due process be observed," and emphasizing that "the right to procedural due process is `absolute' in the sense that it does not depend upon the merits of a claimant's substantive assertions"). Indeed, as amicus briefs from media and relief organizations emphasize, the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process here is very real. See Brief for AmeriCares et al. as Amici Curiae 13-22 (noting ways in which "[t]he nature of humanitarian relief work and journalism present a significant risk of mistaken military detentions"). Moreover, as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. See Ex parte Milligan, 4 Wall., at 125 ("[The Founders] knew—the history of the world told them—the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time,

[542 U.S. 531]

was especially hazardous to freemen"). Because we live in a society in which "[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty," O'Connor v. Donaldson, 422 U. S. 563, 575 (1975), our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee or the organizations with which he is alleged to have associated. We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.

        On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States. As discussed above, supra, at 518, the law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities. Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them. Department of Navy v. Egan, 484 U. S. 518, 530 (1988) (noting the reluctance of the courts "to intrude upon the authority of the Executive in military and national security affairs"); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 587 (1952) (acknowledging "broad powers in military commanders engaged in day-to-day fighting in a theater of war").

        The Government also argues at some length that its interests in reducing the process available to alleged enemy combatants are heightened by the practical difficulties that would accompany a system of trial-like process. In its view, military officers who are engaged in the serious work of waging

[542 U.S. 532]

battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. Brief for Respondents 46-49. To the extent that these burdens are triggered by heightened procedures, they are properly taken into account in our due process analysis.

        Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164-165 (1963) ("The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action"); see also United States v. Robel, 389 U. S. 258, 264 (1967) ("It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile").

        With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, "the risk of an erroneous deprivation"

[542 U.S. 533]

of a detainee's liberty interest is unacceptably high under the Government's proposed rule, while some of the "additional or substitute procedural safeguards" suggested by the District Court are unwarranted in light of their limited "probable value" and the burdens they may impose on the military in such cases. Mathews, 424 U. S., at 335.

        We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 542 (1985) ("An essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case'" (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 617 (1993) ("due process requires a `neutral and detached judge in the first instance'" (quoting Ward v. Monroeville, 409 U. S. 57, 61-62 (1972))). "For more than a century the central meaning of procedural due process has been clear: `Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' It is equally fundamental that the right to notice and an opportunity to be heard `must be granted at a meaningful time and in a meaningful manner.'" Fuentes v. Shevin, 407 U. S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U. S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.

        At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy-combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be

[542 U.S. 534]

accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. In the words of Mathews, process of this sort would sufficiently address the "risk of an erroneous deprivation" of a detainee's liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government. 424 U. S., at 335.²

        We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Brief for Respondents 3-4. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one. Likewise, arguments

[542 U.S. 535]

that military officers ought not have to wage war under the threat of litigation lose much of their steam when factual disputes at enemy-combatant hearings are limited to the alleged combatant's acts. This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States. While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States, 323 U. S. 214, 233-234 (1944) (Murphy, J., dissenting) ("[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled"); Sterling v. Constantin, 287 U. S. 378, 401 (1932) ("What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions").

        In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator.

        In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination

[542 U.S. 536]

of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U. S. 361, 380 (1989) (it was "the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty"); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426 (1934) (The war power "is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties"). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. See St. Cyr, 533 U. S., at 301 ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest"). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court

[542 U.S. 537]

with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.

        Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed "some evidence" standard is inadequate. Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. As the Government itself has recognized, we have utilized the "some evidence" standard in the past as a standard of review, not as a standard of proof. Brief for Respondents 35. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding—one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. See, e. g., St. Cyr, supra; Hill, 472 U. S., at 455-457. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive's factual assertions before a neutral decisionmaker.

        Today we are faced only with such a case. Aside from unspecified "screening" processes, Brief for Respondents 3-4, and military interrogations in which the Government suggests Hamdi could have contested his classification, Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. Compare Brief for Respondents 42-43 (discussing the "secure interrogation environment," and noting that military interrogations require a controlled "interrogation dynamic" and "a relationship of trust and dependency" and are "a critical source" of

[542 U.S. 538]

"timely and effective intelligence") with Concrete Pipe, 508 U. S., at 617-618 ("[O]ne is entitled as a matter of due process of law to an adjudicator who is not in a situation which would offer a possible temptation to the average man as a judge ... which might lead him not to hold the balance nice, clear and true" (internal quotation marks omitted)). That even purportedly fair adjudicators "are disqualified by their interest in the controversy to be decided is, of course, the general rule." Tumey v. Ohio, 273 U. S. 510, 522 (1927). Plainly, the "process" Hamdi has received is not that to which he is entitled under the Due Process Clause.

        There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Headquarters Depts. of Army, Navy, Air Force, and Marine Corps, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, ch. 1, § 1-6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government's case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case such as this may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government's return. We anticipate

[542 U.S. 539]

that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.

        Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.

        The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the case is remanded for further proceedings.

        It is so ordered.

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Notes:

* Briefs of amici curiae urging reversal were filed for the American Bar Association by Dennis W. Archer and Barry Sullivan; for AmeriCares et al. by Steven M. Pesner, Michael Small, and Jeffrey P. Kehne; for the American Civil Liberties Union et al. by Steven R. Shapiro, Sharon M. McGowan, David Saperstein, Jeffrey Sinensky, Kara Stein, and Arthur Bryant; for the Cato Institute by Timothy Lynch; for Global Rights by James F. Fitzpatrick, Kathleen A. Behan, and Gay J. McDougall; for William J. Aceves et al. by Douglas W. Baruch; for Charles B. Gittings, Jr., by Donald G. Rehkopf, Jr.; for the Honorable Nathaniel R. Jones et al. by Robert P. LoBue; for Douglas Peterson et al. by Philip Allen Lacovara and Andrew J. Pincus; and for Mary Robinson et al. by Harold Hongju Koh and Jonathan M. Freiman.

        Briefs of amici curiae urging affirmance were filed for the American Center for Law & Justice by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, John P. Tuskey, and Shannon D. Woodruff; for the Center for American Unity et al. by Barnaby W. Zall; for the Claremont Institute Center for Constitutional Jurisprudence by John C. Eastman and Edwin Meese III; for Citizens for the Common Defence by Adam H. Charnes; and for the Washington Legal Foundation et al. by Thomas V. Loran, William T. DeVinney, Daniel J. Popeo, and Richard A. Samp.

        A brief of amici curiae urging affirmance in No. 03-6696 and reversal in No. 03-1027 was filed for Senator John Cornyn et al. by Senator Cornyn, pro se.

        Karen B. Tripp filed a brief for the Eagle Forum Education & Legal Defense Fund as amicus curiae.

1. Here the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant. The legal category of enemy combatant has not been elaborated upon in great detail. The permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them.

2. Because we hold that Hamdi is constitutionally entitled to the process described above, we need not address at this time whether any treaty guarantees him similar access to a tribunal for a determination of his status.

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        JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring in part, dissenting in part, and concurring in the judgment.

        According to Yaser Hamdi's petition for writ of habeas corpus, brought on his behalf by his father, the Government of the United States is detaining him, an American citizen on American soil, with the explanation that he was seized on the field of battle in Afghanistan, having been on the enemy side. It is undisputed that the Government has not charged

[542 U.S. 540]

him with espionage, treason, or any other crime under domestic law. It is likewise undisputed that for one year and nine months, on the basis of an Executive designation of Hamdi as an "enemy combatant," the Government denied him the right to send or receive any communication beyond the prison where he was held and, in particular, denied him access to counsel to represent him.¹ The Government asserts a right to hold Hamdi under these conditions indefinitely, that is, until the Government determines that the United States is no longer threatened by the terrorism exemplified in the attacks of September 11, 2001.

        In these proceedings on Hamdi's petition, he seeks to challenge the facts claimed by the Government as the basis for holding him as an enemy combatant. And in this Court he presses the distinct argument that the Government's claim, even if true, would not implicate any authority for holding him that would satisfy 18 U. S. C. § 4001(a) (Non-Detention Act), which bars imprisonment or detention of a citizen "except pursuant to an Act of Congress."

        The Government responds that Hamdi's incommunicado imprisonment as an enemy combatant seized on the field of battle falls within the President's power as Commander in Chief under the laws and usages of war, and is in any event authorized by two statutes. Accordingly, the Government contends that Hamdi has no basis for any challenge by petition for habeas except to his own status as an enemy combatant; and even that challenge may go no further than to enquire whether "some evidence" supports Hamdi's designation, see Brief for Respondents 34-36; if there is "some evidence," Hamdi should remain locked up at the discretion of the Executive. At the argument of this case, in fact, the Government went further and suggested that as long as a prisoner could challenge his enemy combatant designation

[542 U.S. 541]

when responding to interrogation during incommunicado detention he was accorded sufficient process to support his designation as an enemy combatant. See Tr. of Oral Arg. 40; id., at 42 ("[H]e has an opportunity to explain it in his own words" "[d]uring interrogation"). Since on either view judicial enquiry so limited would be virtually worthless as a way to contest detention, the Government's concession of jurisdiction to hear Hamdi's habeas claim is more theoretical than practical, leaving the assertion of Executive authority close to unconditional.

        The plurality rejects any such limit on the exercise of habeas jurisdiction and so far I agree with its opinion. The plurality does, however, accept the Government's position that if Hamdi's designation as an enemy combatant is correct, his detention (at least as to some period) is authorized by an Act of Congress as required by § 4001(a), that is, by the Authorization for Use of Military Force, 115 Stat. 224 (hereinafter Force Resolution). Ante, at 517-521. Here, I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released.

        The Government's first response to Hamdi's claim that holding him violates § 4001(a), prohibiting detention of citizens "except pursuant to an Act of Congress," is that the statute does not even apply to military wartime detentions, being beyond the sphere of domestic criminal law. Next, the Government says that even if that statute does apply, two Acts of Congress provide the authority § 4001(a) demands: a general authorization to the Department of Defense to pay for detaining "prisoners of war" and "similar" persons, 10 U. S. C. § 956(5), and the Force Resolution, passed after the attacks of 2001. At the same time, the Government

[542 U.S. 542]

argues that in detaining Hamdi in the manner described, the President is in any event acting as Commander in Chief under Article II of the Constitution, which brings with it the right to invoke authority under the accepted customary rules for waging war. On the record in front of us, the Government has not made out a case on any theory.

        The threshold issue is how broadly or narrowly to read the Non-Detention Act, the tone of which is severe: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Should the severity of the Act be relieved when the Government's stated factual justification for incommunicado detention is a war on terrorism, so that the Government may be said to act "pursuant" to congressional terms that fall short of explicit authority to imprison individuals? With one possible though important qualification, see infra, at 548-549, the answer has to be no. For a number of reasons, the prohibition within § 4001(a) has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government.

        First, the circumstances in which the Act was adopted point the way to this interpretation. The provision superseded a cold-war statute, the Emergency Detention Act of 1950 (formerly 50 U. S. C. § 811 et seq. (1970 ed.)), which had authorized the Attorney General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. That statute was repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry; Congress meant to preclude another episode like the one described in Korematsu v. United States, 323 U. S. 214 (1944). See H. R. Rep. No. 92-116, pp. 2, 4-5 (1971). While Congress might simply have struck the 1950 statute, in considering the repealer the point was made that the existing statute provided some express

[542 U.S. 543]

procedural protection, without which the Executive would seem to be subject to no statutory limits protecting individual liberty. See id., at 5 (mere repeal "might leave citizens subject to arbitrary executive action, with no clear demarcation of the limits of executive authority"); 117 Cong. Rec. 31544 (1971) (Emergency Detention Act "remains as the only existing barrier against the future exercise of executive power which resulted in" the Japanese internment); cf. id., at 31548 (in the absence of further procedural provisions, even § 4001(a) "will virtually leave us stripped naked against the great power ... which the President has"). It was in these circumstances that a proposed limit on Executive action was expanded to the inclusive scope of § 4001(a) as enacted.

        The fact that Congress intended to guard against a repetition of the World War II internments when it repealed the 1950 statute and gave us § 4001(a) provides a powerful reason to think that § 4001(a) was meant to require clear congressional authorization before any citizen can be placed in a cell. It is not merely that the legislative history shows that § 4001(a) was thought necessary in anticipation of times just like the present, in which the safety of the country is threatened. To appreciate what is most significant, one must only recall that the internments of the 1940's were accomplished by Executive action. Although an Act of Congress ratified and confirmed an Executive order authorizing the military to exclude individuals from defined areas and to accommodate those it might remove, see Ex parte Endo, 323 U. S. 283, 285-288 (1944), the statute said nothing whatever about the detention of those who might be removed, id., at 300-301; internment camps were creatures of the Executive, and confinement in them rested on assertion of Executive authority, see id., at 287-293. When, therefore, Congress repealed the 1950 Act and adopted § 4001(a) for the purpose of avoiding another Korematsu, it intended to preclude reliance on vague congressional authority (for example, providing "accommodations"

[542 U.S. 544]

for those subject to removal) as authority for detention or imprisonment at the discretion of the Executive (maintaining detention camps of American citizens, for example). In requiring that any Executive detention be "pursuant to an Act of Congress," then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment.

        Second, when Congress passed § 4001(a) it was acting in light of an interpretive regime that subjected enactments limiting liberty in wartime to the requirement of a clear statement and it presumably intended § 4001(a) to be read accordingly. This need for clarity was unmistakably expressed in Ex parte Endo, supra, decided the same day as Korematsu. Endo began with a petition for habeas corpus by an interned citizen claiming to be loyal and law-abiding and thus "unlawfully detained." 323 U.S., at 294. The petitioner was held entitled to habeas relief in an opinion that set out this principle for scrutinizing wartime statutes in derogation of customary liberty:

        "In interpreting a wartime measure we must assume that [its] purpose was to allow for the greatest possible accommodation between ... liberties and the exigencies of war. We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used." Id., at 300.

        Congress's understanding of the need for clear authority before citizens are kept detained is itself therefore clear, and § 4001(a) must be read to have teeth in its demand for congressional authorization.

        Finally, even if history had spared us the cautionary example of the internments in World War II, even if there had been no Korematsu, and Endo had set out no principle of statutory interpretation, there would be a compelling reason

[542 U.S. 545]

to read § 4001(a) to demand manifest authority to detain before detention is authorized. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that "the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights." The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.

        Under this principle of reading § 4001(a) robustly to require a clear statement of authorization to detain, none of the Government's arguments suffices to justify Hamdi's detention.

        First, there is the argument that § 4001(a) does not even apply to wartime military detentions, a position resting on the placement of § 4001(a) in Title 18 of the United States Code, the gathering of federal criminal law. The text of the

[542 U.S. 546]

statute does not, however, so limit its reach, and the legislative history of the provision shows its placement in Title 18 was not meant to render the statute more restricted than its terms. The draft of what is now § 4001(a) as contained in the original bill prohibited only imprisonment unauthorized by Title 18. See H. R. Rep. No. 92-116, at 4. In response to the Department of Justice's objection that the original draft seemed to assume wrongly that all provisions for the detention of convicted persons would be contained in Title 18, the provision was amended by replacing a reference to that title with the reference to an "Act of Congress." Id., at 3. The Committee on the Judiciary, discussing this change, stated that "[limiting] detention of citizens ... to situations in which ... an Act of Congres[s] exists" would "assure that no detention camps can be established without at least the acquiescence of the Congress." Id., at 5. See also supra, at 542-544. This understanding, that the amended bill would sweep beyond imprisonment for crime and apply to Executive detention in furtherance of wartime security, was emphasized in an extended debate. Representative Ichord, chairman of the House Internal Security Committee and an opponent of the bill, feared that the redrafted statute would "deprive the President of his emergency powers and his most effective means of coping with sabotage and espionage agents in war-related crises." 117 Cong. Rec., at 31542. Representative Railsback, the bill's sponsor, spoke of the bill in absolute terms: "[I]n order to prohibit arbitrary executive action, [the bill] assures that no detention of citizens can be undertaken by the Executive without the prior consent of the Congress." Id., at 31551. This legislative history indicates that Congress was aware that § 4001(a) would limit the Executive's power to detain citizens in wartime to protect national security, and it is fair to say that the prohibition was thus intended to extend not only to the exercise of power to vindicate the interests underlying domestic criminal law, but to statutorily unauthorized

[542 U.S. 547]

detention by the Executive for reasons of security in wartime, just as Hamdi claims.²

        Next, there is the Government's claim, accepted by the plurality, that the terms of the Force Resolution are adequate to authorize detention of an enemy combatant under the circumstances described,³ a claim the Government fails to support sufficiently to satisfy § 4001(a) as read to require a clear statement of authority to detain. Since the Force Resolution was adopted one week after the attacks of September 11, 2001, it naturally speaks with some generality, but its focus is clear, and that is on the use of military power. It is fairly read to authorize the use of armies and weapons, whether against other armies or individual terrorists. But, like the statute discussed in Endo, it never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit. See, e.g., 18 U. S. C.

[542 U.S. 548]

§ 2339A (material support for various terrorist acts); § 2339B (material support to a foreign terrorist organization); § 2332a (use of a weapon of mass destruction, including conspiracy and attempt); § 2332b(a)(1) (acts of terrorism "transcending national boundaries," including threats, conspiracy, and attempt); 18 U. S. C. § 2339C (2000 ed., Supp. II) (financing of certain terrorist acts); see also 18 U. S. C. § 3142(e) (pretrial detention). See generally Brief for Janet Reno et al. as Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, pp. 14-19, and n. 17 (listing the tools available to the Executive to fight terrorism even without the power the Government claims here); Brief for Louis Henkin et al. as Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, p. 23, n. 27.⁴

        Even so, there is one argument for treating the Force Resolution as sufficiently clear to authorize detention of a citizen consistently with § 4001(a). Assuming the argument to be sound, however, the Government is in no position to claim its advantage.

        Because the Force Resolution authorizes the use of military force in acts of war by the United States, the argument goes, it is reasonably clear that the military and its Commander in Chief are authorized to deal with enemy belligerents according to the treaties and customs known collectively as the laws of war. Brief for Respondents 20-22; see ante, at 517-521 (accepting this argument). Accordingly, the United States may detain captured enemies, and Ex parte Quirin, 317 U. S. 1 (1942), may perhaps be claimed for the proposition that the American citizenship of such a captive does not as such limit the Government's power to deal with

[542 U.S. 549]

him under the usages of war. Id., at 31, 37-38. Thus, the Government here repeatedly argues that Hamdi's detention amounts to nothing more than customary detention of a captive taken on the field of battle: if the usages of war are fairly authorized by the Force Resolution, Hamdi's detention is authorized for purposes of § 4001(a).

        There is no need, however, to address the merits of such an argument in all possible circumstances. For now it is enough to recognize that the Government's stated legal position in its campaign against the Taliban (among whom Hamdi was allegedly captured) is apparently at odds with its claim here to be acting in accordance with customary law of war and hence to be within the terms of the Force Resolution in its detention of Hamdi. In a statement of its legal position cited in its brief, the Government says that "the Geneva Convention applies to the Taliban detainees." Office of the White House Press Secretary, Fact Sheet, Status of Detainees at Guantanamo (Feb. 7, 2002), www.whitehouse.gov/news/releases/2002/ 02/20020207-13.html (as visited June 18, 2004, and available in Clerk of Court's case file) (hereinafter White House Press Release) (cited in Brief for Respondents 24, n. 9). Hamdi presumably is such a detainee, since according to the Government's own account, he was taken bearing arms on the Taliban side of a field of battle in Afghanistan. He would therefore seem to qualify for treatment as a prisoner of war under the Third Geneva Convention, to which the United States is a party. Article 4 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S. No. 3364.

        By holding him incommunicado, however, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status. See Brief for Respondents 24; White House Press Release. This treatment appears to be a violation of the Geneva Convention provision

[542 U.S. 550]

that even in cases of doubt, captives are entitled to be treated as prisoners of war "until such time as their status has been determined by a competent tribunal." Art. 5, 6 U. S. T., at 3324. The Government answers that the President's determination that Taliban detainees do not qualify as prisoners of war is conclusive as to Hamdi's status and removes any doubt that would trigger application of the Convention's tribunal requirement. See Brief for Respondents 24. But reliance on this categorical pronouncement to settle doubt is apparently at odds with the military regulation, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, ch. 1, §§ 1-5, 1-6 (1997), adopted to implement the Geneva Convention, and setting out a detailed procedure for a military tribunal to determine an individual's status. See, e. g., id., § 1-6 ("A competent tribunal shall be composed of three commissioned officers"; a "written record shall be made of proceedings"; "[p]roceedings shall be open" with certain exceptions; "[p]ersons whose status is to be determined shall be advised of their rights at the beginning of their hearings," "allowed to attend all open sessions," "allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal," and to "have a right to testify"; and a tribunal shall determine status by a "[p]reponderance of evidence"). One of the types of doubt these tribunals are meant to settle is whether a given individual may be, as Hamdi says he is, an "[i]nnocent civilian who should be immediately returned to his home or released." Id., § 1-6e(10)(c). The regulation, jointly promulgated by the Headquarters of the Departments of the Army, Navy, Air Force, and Marine Corps, provides that "[p]ersons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed." Id., § 1-6g. The regulation

[542 U.S. 551]

also incorporates the Geneva Convention's presumption that in cases of doubt, "persons shall enjoy the protection of the . . . Convention until such time as their status has been determined by a competent tribunal." Id., § 1-6a. Thus, there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority.

        Whether, or to what degree, the Government is in fact violating the Geneva Convention and is thus acting outside the customary usages of war are not matters I can resolve at this point. What I can say, though, is that the Government has not made out its claim that in detaining Hamdi in the manner described, it is acting in accord with the laws of war authorized to be applied against citizens by the Force Resolution. I conclude accordingly that the Government has failed to support the position that the Force Resolution authorizes the described detention of Hamdi for purposes of § 4001(a).

        It is worth adding a further reason for requiring the Government to bear the burden of clearly justifying its claim to be exercising recognized war powers before declaring § 4001(a) satisfied. Thirty-eight days after adopting the Force Resolution, Congress passed the statute entitled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), 115 Stat. 272; that Act authorized the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings, 8 U. S. C. § 1226a(a)(5) (2000 ed., Supp. I). It is very difficult to believe that the same Congress that carefully circumscribed Executive power over alien terrorists on home soil would not have meant to require the Government to justify clearly its detention of an American citizen held on home soil incommunicado.

        Since the Government has given no reason either to deflect the application of § 4001(a) or to hold it to be satisfied, I need

[542 U.S. 552]

to go no further; the Government hints of a constitutional challenge to the statute, but it presents none here. I will, however, stray across the line between statutory and constitutional territory just far enough to note the weakness of the Government's mixed claim of inherent, extrastatutory authority under a combination of Article II of the Constitution and the usages of war. It is in fact in this connection that the Government developed its argument that the exercise of war powers justifies the detention, and what I have just said about its inadequacy applies here as well. Beyond that, it is instructive to recall Justice Jackson's observation that the President is not Commander in Chief of the country, only of the military. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 643-644 (1952) (concurring opinion); see also id., at 637-638 (Presidential authority is "at its lowest ebb" where the President acts contrary to congressional will).

        There may be room for one qualification to Justice Jackson's statement, however: in a moment of genuine emergency, when the Government must act with no time for deliberation, the Executive may be able to detain a citizen if there is reason to fear he is an imminent threat to the safety of the Nation and its people (though I doubt there is any want of statutory authority, see supra, at 547-548). This case, however, does not present that question, because an emergency power of necessity must at least be limited by the emergency; Hamdi has been locked up for over two years. Cf. Ex parte Milligan, 4 Wall. 2, 127 (1866) (martial law justified only by "actual and present" necessity as in a genuine invasion that closes civilian courts).

        Whether insisting on the careful scrutiny of emergency claims or on a vigorous reading of § 4001(a), we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons' insistence, confined executive power by "the law of the land."

[542 U.S. 553]

        Because I find Hamdi's detention forbidden by § 4001(a) and unauthorized by the Force Resolution, I would not reach any questions of what process he may be due in litigating disputed issues in a proceeding under the habeas statute or prior to the habeas enquiry itself. For me, it suffices that the Government has failed to justify holding him in the absence of a further Act of Congress, criminal charges, a showing that the detention conforms to the laws of war, or a demonstration that § 4001(a) is unconstitutional. I would therefore vacate the judgment of the Court of Appeals and remand for proceedings consistent with this view.

        Since this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight Members of the Court rejecting the Government's position calls for me to join with the plurality in ordering remand on terms closest to those I would impose. See Screws v. United States, 325 U. S. 91, 134 (1945) (Rutledge, J., concurring in result). Although I think litigation of Hamdi's status as an enemy combatant is unnecessary, the terms of the plurality's remand will allow Hamdi to offer evidence that he is not an enemy combatant, and he should at the least have the benefit of that opportunity.

        It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality's resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality's determinations (given the plurality's view of the Force Resolution) that someone in Hamdi's position is entitled at a minimum to notice of the Government's claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decisionmaker, see ante, at 533; nor, of course, could I disagree with the plurality's affirmation of Hamdi's right to counsel, see ante, at 539. On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on

[542 U.S. 554]

Hamdi, see ante, at 534, or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas, see ante, at 538.

        Subject to these qualifications, I join with the plurality in a judgment of the Court vacating the Fourth Circuit's judgment and remanding the case.

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Notes:

1. The Government has since February 2004 permitted Hamdi to consult with counsel as a matter of policy, but does not concede that it has an obligation to allow this. Brief for Respondents 9, 39-46.

2. Nor is it possible to distinguish between civilian and military authority to detain based on the congressional object of avoiding another Korematsu v. United States, 323 U. S. 214 (1944). See Brief for Respondents 21 (arguing that military detentions are exempt). Although a civilian agency authorized by Executive order ran the detention camps, the relocation and detention of American citizens was ordered by the military under authority of the President as Commander in Chief. See Ex parte Endo, 323 U.S. 283, 285-288 (1944). The World War II internment was thus ordered under the same Presidential power invoked here and the intent to bar a repetition goes to the action taken and authority claimed here.

3. As noted, supra, at 541, the Government argues that a required Act of Congress is to be found in a statutory authorization to spend money appropriated for the care of prisoners of war and of other, similar prisoners, 10 U.S.C. § 956(5). It is enough to say that this statute is an authorization to spend money if there are prisoners, not an authorization to imprison anyone to provide the occasion for spending money.

4. Even a brief examination of the reported cases in which the Government has chosen to proceed criminally against those who aided the Taliban shows the Government has found no shortage of offenses to allege. See United States v. Lindh, 212 F. Supp. 2d 541, 547 (ED Va. 2002); United States v. Khan, 309 F. Supp. 2d 789, 796 (ED Va. 2004).

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        JUSTICE SCALIA, with whom JUSTICE STEVENS joins, dissenting.

        Petitioner Yaser Hamdi, a presumed American citizen, has been imprisoned without charge or hearing in the Norfolk and Charleston Naval Brigs for more than two years, on the allegation that he is an enemy combatant who bore arms against his country for the Taliban. His father claims to the contrary, that he is an inexperienced aid worker caught in the wrong place at the wrong time. This case brings into conflict the competing demands of national security and our citizens' constitutional right to personal liberty. Although I share the plurality's evident unease as it seeks to reconcile the two, I do not agree with its resolution.

        Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, § 9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the judgment below.

        The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite

[542 U.S. 555]

imprisonment at the will of the Executive. Blackstone stated this principle clearly:

        "Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper . . . there would soon be an end of all other rights and immunities. . . . To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. . . .

        "To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, . . . that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him." 1 W. Blackstone, Commentaries on the Laws of England 131-133 (1765) (hereinafter Blackstone).

        These words were well known to the Founders. Hamilton quoted from this very passage in The Federalist No. 84, p. 444 (G. Carey & J. McClellan eds. 2001). The two ideas central to Blackstone's understanding — due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned

[542 U.S. 556]

—found expression in the Constitution's Due Process and Suspension Clauses. See Amdt. 5; Art. I, § 9, cl. 2.

        The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. See, e. g., 2 & 3 Philip & Mary, ch. 10 (1555); 3 J. Story, Commentaries on the Constitution of the United States § 1783, p. 661 (1833) (hereinafter Story) (equating "due process of law" with "due presentment or indictment, and being brought in to answer thereto by due process of the common law"). The Due Process Clause "in effect affirms the right of trial according to the process and proceedings of the common law." Ibid. See also T. Cooley, General Principles of Constitutional Law 224 (1880) ("When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted" (internal quotation marks omitted)).

        To be sure, certain types of permissible noncriminal detention — that is, those not dependent upon the contention that the citizen had committed a criminal act — did not require the protections of criminal procedure. However, these fell into a limited number of well-recognized exceptions — civil commitment of the mentally ill, for example, and temporary detention in quarantine of the infectious. See Opinion on the Writ of Habeas Corpus, Wilm. 77, 88-92, 97 Eng. Rep. 29, 36-37 (H. L. 1758) (Wilmot, J.). It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing.

[542 U.S. 557]

Cf. Kansas v. Hendricks, 521 U. S. 346, 358 (1997) ("A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment").

        These due process rights have historically been vindicated by the writ of habeas corpus. In England before the founding, the writ developed into a tool for challenging executive confinement. It was not always effective. For example, in Darnel's Case, 3 How. St. Tr. 1 (K. B. 1627), King Charles I detained without charge several individuals for failing to assist England's war against France and Spain. The prisoners sought writs of habeas corpus, arguing that without specific charges, "imprisonment shall not continue on for a time, but for ever; and the subjects of this kingdom may be restrained of their liberties perpetually." Id., at 8. The Attorney General replied that the Crown's interest in protecting the realm justified imprisonment in "a matter of state . . . not ripe nor timely" for the ordinary process of accusation and trial. Id., at 37. The court denied relief, producing widespread outrage, and Parliament responded with the Petition of Right, accepted by the King in 1628, which expressly prohibited imprisonment without formal charges, see 3 Car. 1, ch. 1, §§ 5, 10.

        The struggle between subject and Crown continued, and culminated in the Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, described by Blackstone as a "second magna carta, and stable bulwark of our liberties." 1 Blackstone 133. The Act governed all persons "committed or detained . . . for any crime." § 3. In cases other than felony or treason plainly expressed in the warrant of commitment, the Act required release upon appropriate sureties (unless the commitment was for a nonbailable offense). Ibid. Where the commitment was for felony or high treason, the Act did not require immediate release, but instead required the Crown to commence criminal proceedings within a specified time. § 7. If the prisoner was not "indicted some Time in the next Term,"

[542 U.S. 558]

the judge was "required . . . to set at Liberty the Prisoner upon Bail" unless the King was unable to produce his witnesses. Ibid. Able or no, if the prisoner was not brought to trial by the next succeeding term, the Act provided that "he shall be discharged from his Imprisonment." Ibid. English courts sat four terms per year, see 3 Blackstone 275-277, so the practical effect of this provision was that imprisonment without indictment or trial for felony or high treason under § 7 would not exceed approximately three to six months.

        The writ of habeas corpus was preserved in the Constitution — the only common-law writ to be explicitly mentioned. See Art. I, § 9, cl. 2. Hamilton lauded "the establishment of the writ of habeas corpus" in his Federalist defense as a means to protect against "the practice of arbitrary imprisonments . . . in all ages, [one of] the favourite and most formidable instruments of tyranny." The Federalist No. 84, supra, at 444. Indeed, availability of the writ under the new Constitution (along with the requirement of trial by jury in criminal cases, see Art. III, § 2, cl. 3) was his basis for arguing that additional, explicit procedural protections were unnecessary. See The Federalist No. 83, at 433.

        The allegations here, of course, are no ordinary accusations of criminal activity. Yaser Esam Hamdi has been imprisoned because the Government believes he participated in the waging of war against the United States. The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime.

        JUSTICE O'CONNOR, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained

[542 U.S. 559]

until the cessation of hostilities and then released. Ante, at 518-519. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.

        As early as 1350, England's Statute of Treasons made it a crime to "levy War against our Lord the King in his Realm, or be adherent to the King's Enemies in his Realm, giving to them Aid and Comfort, in the Realm, or elsewhere." 25 Edw. 3, Stat. 5, c. 2. In his 1762 Discourse on High Treason, Sir Michael Foster explained:

        "With regard to Natural-born Subjects there can be no Doubt. They owe Allegiance to the Crown at all Times and in all Places.

        "The joining with Rebels in an Act of Rebellion, or with Enemies in Acts of Hostility, will make a Man a Traitor: in the one Case within the Clause of Levying War, in the other within that of Adhering to the King's enemies.

        "States in Actual Hostility with Us, though no War be solemnly Declared, are Enemies within the meaning of the Act. And therefore in an Indictment on the Clause of Adhering to the King's Enemies, it is sufficient to Aver that the Prince or State Adhered to is an Enemy, without shewing any War Proclaimed. . . . And if the Subject of a Foreign Prince in Amity with Us, invadeth the Kingdom without Commission from his Sovereign, He is an Enemy. And a Subject of England adhering to Him is a Traitor within this Clause of the Act." A Report of Some Proceedings on the Commission . . . for the Trial of the Rebels in the Year 1746 in the County of Surry, and of Other Crown Cases, Introduction, § 1, p. 183; Ch. 2, § 8, p. 216; § 12, p. 219.

[542 U.S. 560]

        Subjects accused of levying war against the King were routinely prosecuted for treason. E.g., Harding's Case, 2 Ventris 315, 86 Eng. Rep. 461 (K. B. 1690); Trial of Parkyns, 13 How. St. Tr. 63 (K. B. 1696); Trial of Vaughan, 13 How. St. Tr. 485 (K. B. 1696); Trial of Downie, 24 How. St. Tr. 1 (1794). The Founders inherited the understanding that a citizen's levying war against the Government was to be punished criminally. The Constitution provides: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort"; and establishes a heightened proof requirement (two witnesses) in order to "convic[t]" of that offense. Art. III, § 3, cl. 1.

        In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not. For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court. See United States v. Fricke, 259 F. 673 (SDNY 1919); United States v. Robinson, 259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected to military process. See United States ex rel. Wessels v. McDonald, 265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs of Ex parte Quirin, 317 U. S. 1 (1942), received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process. See Haupt v. United States, 330 U. S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80-84 (2003); see also Cramer v. United States, 325 U. S. 1 (1945).

        The modern treason statute is 18 U. S. C. § 2381; it basically tracks the language of the constitutional provision. Other provisions of Title 18 criminalize various acts of warmaking and adherence to the enemy. See, e.g., § 32 (destruction of aircraft or aircraft facilities), § 2332a (use of

[542 U.S. 561]

weapons of mass destruction), § 2332b (acts of terrorism transcending national boundaries), § 2339A (providing material support to terrorists), § 2339B (providing material support to certain terrorist organizations), § 2382 (misprision of treason), § 2383 (rebellion or insurrection), § 2384 (seditious conspiracy), § 2390 (enlistment to serve in armed hostility against the United States). See also 31 CFR § 595.204 (2003) (prohibiting the "making or receiving of any contribution of funds, goods, or services" to terrorists); 50 U. S. C. § 1705(b) (criminalizing violations of 31 CFR § 595.204). The only citizen other than Hamdi known to be imprisoned in connection with military hostilities in Afghanistan against the United States was subjected to criminal process and convicted upon a guilty plea. See United States v. Lindh, 212 F. Supp. 2d 541 (ED Va. 2002) (denying motions for dismissal); Seelye, N. Y. Times, Oct. 5, 2002, p. A1, col. 5.

        There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods. Blackstone explained:

        "And yet sometimes, when the state is in real danger, even this [i. e., executive detention] may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing. . . . In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with it[s] liberty

[542 U.S. 562]

for a while, in order to preserve it for ever." 1 Blackstone 132.

        Where the Executive has not pursued the usual course of charge, committal, and conviction, it has historically secured the Legislature's explicit approval of a suspension. In England, Parliament on numerous occasions passed temporary suspensions in times of threatened invasion or rebellion. E. g., 1 W. & M., c. 7 (1688) (threatened return of James II); 7 & 8 Will. 3, c. 11 (1696) (same); 17 Geo. 2, c. 6 (1744) (threatened French invasion); 19 Geo. 2, c. 1 (1746) (threatened rebellion in Scotland); 17 Geo. 3, c. 9 (1777) (the American Revolution). Not long after Massachusetts had adopted a clause in its constitution explicitly providing for habeas corpus, see Mass. Const. pt. 2, ch. 6, art. VII (1780), reprinted in 3 Federal and State Constitutions, Colonial Charters and Other Organic Laws 1888, 1910 (F. Thorpe ed. 1909), it suspended the writ in order to deal with Shay's Rebellion, see Act for Suspending the Privilege of the Writ of Habeas Corpus, ch. 10, 1786 Mass. Acts p. 510.

        Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, § 9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151-152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln's unauthorized suspension); 3 Story § 1336, at 208-209.

        The Suspension Clause was by design a safety valve, the Constitution's only "express provision for exercise of extraordinary authority because of a crisis," Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 650 (1952) (Jackson,

[542 U.S. 563]

J., concurring). Very early in the Nation's history, President Jefferson unsuccessfully sought a suspension of habeas corpus to deal with Aaron Burr's conspiracy to overthrow the Government. See 16 Annals of Congress 402-425 (1807). During the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, see Act of Mar. 3, 1863, 12 Stat. 755, to the relief of those many who thought President Lincoln's unauthorized proclamations of suspension (e. g., Proclamation No. 1, 13 Stat. 730 (1862)) unconstitutional. Later Presidential proclamations of suspension relied upon the congressional authorization, e. g., Proclamation No. 7, 13 Stat. 734 (1863). During Reconstruction, Congress passed the Ku Klux Klan Act, which included a provision authorizing suspension of the writ, invoked by President Grant in quelling a rebellion in nine South Carolina counties. See Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7 Compilation of the Messages and Papers of the Presidents 136-138 (J. Richardson ed. 1899) (hereinafter Messages and Papers); id., at 138-139.

        Two later Acts of Congress provided broad suspension authority to governors of U. S. possessions. The Philippine Civil Government Act of 1902 provided that the Governor of the Philippines could suspend the writ in case of rebellion, insurrection, or invasion. Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 692. In 1905 the writ was suspended for nine months by proclamation of the Governor. See Fisher v. Baker, 203 U. S. 174, 179-181 (1906). The Hawaiian Organic Act of 1900 likewise provided that the Governor of Hawaii could suspend the writ in case of rebellion or invasion (or threat thereof). Ch. 339, § 67, 31 Stat. 153.

        Of course the extensive historical evidence of criminal convictions and habeas suspensions does not necessarily refute the Government's position in this case. When the writ is

[542 U.S. 564]

suspended, the Government is entirely free from judicial oversight. It does not claim such total liberation here, but argues that it need only produce what it calls "some evidence" to satisfy a habeas court that a detained individual is an enemy combatant. See Brief for Respondents 34. Even if suspension of the writ on the one hand, and committal for criminal charges on the other hand, have been the only traditional means of dealing with citizens who levied war against their own country, it is theoretically possible that the Constitution does not require a choice between these alternatives.

        I believe, however, that substantial evidence does refute that possibility. First, the text of the 1679 Habeas Corpus Act makes clear that indefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ. In the United States, this Act was read as "enforc[ing] the common law," Ex parte Watkins, 3 Pet. 193, 202 (1830), and shaped the early understanding of the scope of the writ. As noted above, see supra, at 557-558, § 7 of the Act specifically addressed those committed for high treason, and provided a remedy if they were not indicted and tried by the second succeeding court term. That remedy was not a bobtailed judicial inquiry into whether there were reasonable grounds to believe the prisoner had taken up arms against the King. Rather, if the prisoner was not indicted and tried within the prescribed time, "he shall be discharged from his Imprisonment." 31 Car. 2, c. 2, § 7. The Act does not contain any exception for wartime. That omission is conspicuous, since § 7 explicitly addresses the offense of "High Treason," which often involved offenses of a military nature. See cases cited supra, at 560.

        Writings from the founding generation also suggest that, without exception, the only constitutional alternatives are to charge the crime or suspend the writ. In 1788, Thomas Jefferson wrote to James Madison questioning the need for a Suspension Clause in cases of rebellion in the proposed

[542 U.S. 565]

Constitution. His letter illustrates the constraints under which the Founders understood themselves to operate:

        "Why suspend the Hab. corp. in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime. Of course the judge will remand them. If the publick safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies; let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages." 13 Papers of Thomas Jefferson 442 (July 31, 1788) (J. Boyd ed. 1956).

        A similar view was reflected in the 1807 House debates over suspension during the armed uprising that came to be known as Burr's conspiracy:

        "With regard to those persons who may be implicated in the conspiracy, if the writ of habeas corpus be not suspended, what will be the consequence? When apprehended, they will be brought before a court of justice, who will decide whether there is any evidence that will justify their commitment for farther prosecution. From the communication of the Executive, it appeared there was sufficient evidence to authorize their commitment. Several months would elapse before their final trial, which would give time to collect evidence, and if this shall be sufficient, they will not fail to receive the punishment merited by their crimes, and inflicted by the laws of their country." 16 Annals of Congress, at 405 (remarks of Rep. Burwell).

        The absence of military authority to imprison citizens indefinitely in wartime — whether or not a probability of treason had been established by means less than jury trial — was confirmed by three cases decided during and immediately after the War of 1812. In the first, In re Stacy, 10 Johns.

[542 U.S. 566]

*328 (N. Y. 1813), a citizen was taken into military custody on suspicion that he was "carrying provisions and giving information to the enemy." Id., at *330 (emphasis deleted). Stacy petitioned for a writ of habeas corpus, and, after the defendant custodian attempted to avoid complying, Chief Justice Kent ordered attachment against him. Kent noted that the military was "without any color of authority in any military tribunal to try a citizen for that crime" and that it was "holding him in the closest confinement, and contemning the civil authority of the state." Id., at *333-*334.

        Two other cases, later cited with approval by this Court in Ex parte Milligan, 4 Wall. 2, 128-129 (1866), upheld verdicts for false imprisonment against military officers. In Smith v. Shaw, 12 Johns. *257 (N. Y. 1815), the court affirmed an award of damages for detention of a citizen on suspicion that he was, among other things, "an enemy's spy in time of war." Id., at *265. The court held that "[n]one of the offences charged against Shaw were cognizable by a court-martial, except that which related to his being a spy; and if he was an American citizen, he could not be charged with such an offence. He might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy." Ibid. "If the defendant was justifiable in doing what he did, every citizen of the United States would, in time of war, be equally exposed to a like exercise of military power and authority." Id., at *266. Finally, in M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), a jury awarded $9,000 for false imprisonment after a military officer confined a citizen on charges of treason; the judges on appeal did not question the verdict but found the damages excessive, in part because "it does not appear that [the defendant] . . . knew [the plaintiff] was a citizen." Id., at *238 (Spencer, J.). See generally Wuerth, The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War, 98 Nw. U. L. Rev. 1567 (2004).

[542 U.S. 567]

        President Lincoln, when he purported to suspend habeas corpus without congressional authorization during the Civil War, apparently did not doubt that suspension was required if the prisoner was to be held without criminal trial. In his famous message to Congress on July 4, 1861, he argued only that he could suspend the writ, not that even without suspension, his imprisonment of citizens without criminal trial was permitted. See Special Session Message, 6 Messages and Papers 20-31.

        Further evidence comes from this Court's decision in Ex parte Milligan, supra. There, the Court issued the writ to an American citizen who had been tried by military commission for offenses that included conspiring to overthrow the Government, seize munitions, and liberate prisoners of war. Id., at 6-7. The Court rejected in no uncertain terms the Government's assertion that military jurisdiction was proper "under the `laws and usages of war,'" id., at 121:

        "It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed," ibid.¹

        Milligan is not exactly this case, of course, since the petitioner was threatened with death, not merely imprisonment. But the reasoning and conclusion of Milligan logically cover the present case. The Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent the war, it would have no such authority. But if the

[542 U.S. 568]

law of war cannot be applied to citizens where courts are open, then Hamdi's imprisonment without criminal trial is no less unlawful than Milligan's trial by military tribunal.

        Milligan responded to the argument, repeated by the Government in this case, that it is dangerous to leave suspected traitors at large in time of war:

        "If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he `conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection,' the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended." Id., at 122.

        Thus, criminal process was viewed as the primary means — and the only means absent congressional action suspending the writ — not only to punish traitors, but to incapacitate them.

        The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that

[542 U.S. 569]

Use shall be for a longer Term than two Years." U.S. Const., Art. I, § 8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:

        "It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

        A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

        The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts. It places primary reliance upon Ex parte Quirin, 317 U. S. 1 (1942), a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Herbert Haupt, was a U. S. citizen. The case was not this Court's finest hour. The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded, see id., at 18-19, unnumbered note; a week later the Government carried out the commission's death sentence upon six saboteurs, including Haupt. The Court eventually explained its reasoning in a written opinion issued several months later.

[542 U.S. 570]

        Only three paragraphs of the Court's lengthy opinion dealt with the particular circumstances of Haupt's case. See id., at 37-38, 45-46. The Government argued that Haupt, like the other petitioners, could be tried by military commission under the laws of war. In agreeing with that contention, Quirin purported to interpret the language of Milligan quoted above (the law of war "can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed") in the following manner:

        "Elsewhere in its opinion . . . the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war . . . ." 317 U. S., at 45.

        In my view this seeks to revise Milligan rather than describe it. Milligan had involved (among other issues) two separate questions: (1) whether the military trial of Milligan was justified by the laws of war, and if not (2) whether the President's suspension of the writ, pursuant to congressional authorization, prevented the issuance of habeas corpus. The Court's categorical language about the law of war's inapplicability to citizens where the courts are open (with no exception mentioned for citizens who were prisoners of war) was contained in its discussion of the first point. See 4 Wall., at 121. The factors pertaining to whether Milligan could reasonably be considered a belligerent and prisoner of war,

[542 U.S. 571]

while mentioned earlier in the opinion, see id., at 118, were made relevant and brought to bear in the Court's later discussion, see id., at 131, of whether Milligan came within the statutory provision that effectively made an exception to Congress's authorized suspension of the writ for (as the Court described it) "all parties, not prisoners of war, resident in their respective jurisdictions, . . . who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired," id., at 116. Milligan thus understood was in accord with the traditional law of habeas corpus I have described: Though treason often occurred in wartime, there was, absent provision for special treatment in a congressional suspension of the writ, no exception to the right to trial by jury for citizens who could be called "belligerents" or "prisoners of war."²

        But even if Quirin gave a correct description of Milligan, or made an irrevocable revision of it, Quirin would still not justify denial of the writ here. In Quirin it was uncontested that the petitioners were members of enemy forces. They were "admitted enemy invaders," 317 U. S., at 47 (emphasis added), and it was "undisputed" that they had landed in the United States in service of German forces, id., at 20. The specific holding of the Court was only that, "upon the conceded facts," the petitioners were "plainly within [the] boundaries" of military jurisdiction, id., at 46 (emphasis added).³ But where those jurisdictional facts are not conceded—where

[542 U.S. 572]

the petitioner insists that he is not a belligerent —Quirin left the pre-existing law in place: Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.⁴

[542 U.S. 573]

        It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today's opinion prescribes under the Due Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But there is a world of difference between the people's representatives' determining the need for that suspension (and prescribing the conditions for it), and this Court's doing so.

        The plurality finds justification for Hamdi's imprisonment in the Authorization for Use of Military Force, 115 Stat. 224, which provides:

        "That the President is authorized 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." § 2(a).

[542 U.S. 574]

        This is not remotely a congressional suspension of the writ, and no one claims that it is. Contrary to the plurality's view, I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988); with the clarity necessary to comport with cases such as Ex parte Endo, 323 U. S. 283, 300 (1944), and Duncan v. Kahanamoku, 327 U. S. 304, 314-316, 324 (1946); or with the clarity necessary to overcome the statutory prescription that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." 18 U. S. C. § 4001(a).⁵ But even if it

[542 U.S. 575]

did, I would not permit it to overcome Hamdi's entitlement to habeas corpus relief. The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed.

        It should not be thought, however, that the plurality's evisceration of the Suspension Clause augments, principally, the power of Congress. As usual, the major effect of its constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate. It "weigh[s] the private interest . . . against the Government's asserted interest," ante, at 529 (internal quotation marks omitted), and—just as though writing a new Constitution—comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a "neutral" military officer rather than judge and jury. See ante, at 533-534. It claims authority to engage in this sort of "judicious balancing" from Mathews v. Eldridge, 424 U.S. 319 (1976), a case involving ... the withdrawal of disability benefits! Whatever the merits of this technique when newly

[542 U.S. 576]

recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer.

        Having distorted the Suspension Clause, the plurality finishes up by transmogrifying the Great Writ—disposing of the present habeas petition by remanding for the District Court to "engag[e] in a factfinding process that is both prudent and incremental," ante, at 539. "In the absence of [the Executive's prior provision of procedures that satisfy due process], ... a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved." Ante, at 538. This judicial remediation of executive default is unheard of. The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody"); 1 Blackstone 132-133. It is not the habeas court's function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him.

        There is a certain harmony of approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its making up for the Executive's failure to apply what it says are needed procedures—an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the

[542 U.S. 577]

other two branches' actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.

        Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different. Cf. Johnson v. Eisentrager, 339 U.S. 763, 769-771 (1950); Reid v. Covert, 354 U.S. 1, 74-75 (1957) (Harlan, J., concurring in result); Rasul v. Bush, ante, at 502-504 (SCALIA, J., dissenting). Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation. See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (brief detention pending judicial determination after warrantless arrest); United States v. Salerno, 481 U.S. 739 (1987) (pretrial detention under the Bail Reform Act). The Government has been notably successful in securing conviction, and hence long-term custody or execution, of those who have waged war against the state.

        I frankly do not know whether these tools are sufficient to meet the Government's security needs, including the need to obtain intelligence through interrogation. It is far beyond

[542 U.S. 578]

my competence, or the Court's competence, to determine that. But it is not beyond Congress's. If the situation demands it, the Executive can ask Congress to authorize suspension of the writ—which can be made subject to whatever conditions Congress deems appropriate, including even the procedural novelties invented by the plurality today. To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an "invasion," and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court. See 3 Story § 1336, at 208-209.⁶ If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court.

        The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared,

        "is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free." The Federalist No. 8, p. 33 (A. Hamilton).

[542 U.S. 579]

        The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

        Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.

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Notes:

1. As I shall discuss presently, see infra, at 570-572, the Court purported to limit this language in Ex parte Quirin, 317 U. S. 1, 45 (1942). Whatever Quirin's effect on Milligan's precedential value, however, it cannot undermine its value as an indicator of original meaning. Cf. Reid v. Covert, 354 U. S. 1, 30 (1957) (plurality opinion) (Milligan remains "one of the great landmarks in this Court's history").

2. Without bothering to respond to this analysis, the plurality states that Milligan "turned in large part" upon the defendant's lack of prisoner-of-war status, and that the Milligan Court explicitly and repeatedly said so. Ante, at 522. Neither is true. To the extent, however, that prisoner-of-war status was relevant in Milligan, it was only because prisoners of war received different statutory treatment under the conditional suspension then in effect.

3. The only two Court of Appeals cases from World War II cited by the Government in which citizens were detained without trial likewise involved petitioners who were conceded to have been members of enemy forces. See In re Territo, 156 F.2d 142, 143-145 (CA9 1946); Colepaugh v. Looney, 235 F.2d 429, 432 (CA10 1956). The plurality complains that Territo is the only case I have identified in which "a United States citizen [was] captured in a foreign combat zone," ante, at 523. Indeed it is; such cases must surely be rare. But given the constitutional tradition I have described, the burden is not upon me to find cases in which the writ was granted to citizens in this country who had been captured on foreign battlefields; it is upon those who would carve out an exception for such citizens (as the plurality's complaint suggests it would) to find a single case (other than one where enemy status was admitted) in which habeas was denied.

4. The plurality's assertion that Quirin somehow "clarifies" Milligan, ante, at 523, is simply false. As I discuss supra, at 570-571 and this page, the Quirin Court propounded a mistaken understanding of Milligan; but nonetheless its holding was limited to "the case presented by the present record," and to "the conceded facts," and thus avoided conflict with the earlier case. See 317 U. S., at 45-46 (emphasis added). The plurality, ignoring this expressed limitation, thinks it "beside the point" whether belligerency is conceded or found "by some other process" (not necessarily a jury trial) "that verifies this fact with sufficient certainty." Ante, at 523. But the whole point of the procedural guarantees in the Bill of Rights is to limit the methods by which the Government can determine facts that the citizen disputes and on which the citizen's liberty depends. The plurality's claim that Quirin's one-paragraph discussion of Milligan provides a "[c]lear ... disavowal" of two false imprisonment cases from the War of 1812, ante, at 522, thus defies logic; unlike the plaintiffs in those cases, Haupt was concededly a member of an enemy force.

        The Government also cites Moyer v. Peabody, 212 U. S. 78 (1909), a suit for damages against the Governor of Colorado, for violation of due process in detaining the alleged ringleader of a rebellion quelled by the state militia after the Governor's declaration of a state of insurrection and (he contended) suspension of the writ "as incident thereto." Ex parte Moyer, 35 Colo. 154, 157, 91 P. 738, 740 (1905). But the holding of Moyer v. Peabody (even assuming it is transferable from state-militia detention after state suspension to federal standing-army detention without suspension) is simply that "[s]o long as such arrests [were] made in good faith and in the honest belief that they [were] needed in order to head the insurrection off," 212 U. S., at 85, an action in damages could not lie. This "good-faith" analysis is a forebear of our modern doctrine of qualified immunity. Cf. Scheuer v. Rhodes, 416 U. S. 232, 247-248 (1974) (understanding Moyer in this way). Moreover, the detention at issue in Moyer lasted about 2½ months, see 212 U. S., at 85, roughly the length of time permissible under the 1679 Habeas Corpus Act, see supra, at 557-558.

        In addition to Moyer v. Peabody, JUSTICE THOMAS relies upon Luther v. Borden, 7 How. 1 (1849), a case in which the state legislature had imposed martial law—a step even more drastic than suspension of the writ. See post, at 590-591 (dissenting opinion). But martial law has not been imposed here, and in any case is limited to "the theatre of active military operations, where war really prevails," and where therefore the courts are closed. Ex parte Milligan, 4 Wall. 2, 127 (1866); see also id., at 129-130 (distinguishing Luther).

5. The plurality rejects any need for "specific language of detention" on the ground that detention of alleged combatants is a "fundamental incident of waging war." Ante, at 519. Its authorities do not support that holding in the context of the present case. Some are irrelevant because they do not address the detention of American citizens. E.g., Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002). The plurality's assertion that detentions of citizen and alien combatants are equally authorized has no basis in law or common sense. Citizens and noncitizens, even if equally dangerous, are not similarly situated. See, e.g., Milligan, supra; Johnson v. Eisentrager, 339 U.S. 763 (1950); Rev. Stat. 4067, 50 U.S.C. § 21 (Alien Enemy Act). That captivity may be consistent with the principles of international law does not prove that it also complies with the restrictions that the Constitution places on the American Government's treatment of its own citizens. Of the authorities cited by the plurality that do deal with detention of citizens, Quirin, supra, and Territo, supra, have already been discussed and rejected. See supra, at 571-572, and n. 3. The remaining authorities pertain to U.S. detention of citizens during the Civil War, and are irrelevant for two reasons: (1) the Lieber Code was issued following a congressional authorization of suspension of the writ, see Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 F. Lieber, Miscellaneous Writings, p. 246; Act of Mar. 3, 1863, 12 Stat. 755, §§ 1, 2; and (2) citizens of the Confederacy, while citizens of the United States, were also regarded as citizens of a hostile power.

6. JUSTICE THOMAS worries that the constitutional conditions for suspension of the writ will not exist "during many . . . emergencies during which ... detention authority might be necessary," post, at 594. It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met.

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        JUSTICE THOMAS, dissenting.

        The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners' habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U.S. 319 (1976). I do not think that the Federal Government's war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government's compelling interests and for our own institutional inability to weigh competing concerns correctly. I respectfully dissent.

[542 U.S. 580]

        "It is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)). The national security, after all, is the primary responsibility and purpose of the Federal Government. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring in judgment); The Federalist No. 23, pp. 146-147 (J. Cooke ed. 1961) (A. Hamilton) ("The principle purposes to be answered by Union are these — The common defence of the members—the preservation of the public peace as well against internal convulsions as external attacks"). But because the Founders understood that they could not foresee the myriad potential threats to national security that might later arise, they chose to create a Federal Government that necessarily possesses sufficient power to handle any threat to the security of the Nation. The power to protect the Nation

        "ought to exist without limitation . . . [b]ecause it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed." Id., at 147.

        See also id., Nos. 34 and 41.

        The Founders intended that the President have primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation's foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains. "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Id.,

[542 U.S. 581]

No. 70, at 471 (A. Hamilton). The principle "ingredien[t]" for "energy in the executive" is "unity." Id., at 472. This is because "[d]ecision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number." Ibid.

        These structural advantages are most important in the national-security and foreign-affairs contexts. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Id., No. 74, at 500 (A. Hamilton). Also for these reasons, John Marshall explained that "[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." 10 Annals of Cong. 613 (1800); see id., at 613-614. To this end, the Constitution vests in the President "[t]he executive Power," Art. II, § 1, provides that he "shall be Commander in Chief of the" Armed Forces, § 2, and places in him the power to recognize foreign governments, § 3.

        This Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and that this authority carries with it broad discretion.

        "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.... Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance ... is a question to be decided by him." Prize Cases, 2 Black 635, 668, 670 (1863).

        The Court has acknowledged 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

[542 U.S. 582]

subdue the enemy." Fleming v. Page, 9 How. 603, 615 (1850). With respect to foreign affairs as well, the Court has recognized the President's independent authority and need to be free from interference. See, e. g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) (explaining that the President "has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results"); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 111 (1948).

        Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive. I cannot improve on Justice Jackson's words, speaking for the Court:

        "The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility

[542 U.S. 583]

and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Ibid.

        Several points, made forcefully by Justice Jackson, are worth emphasizing. First, with respect to certain decisions relating to national security and foreign affairs, the courts simply lack the relevant information and expertise to second-guess determinations made by the President based on information properly withheld. Second, even if the courts could compel the Executive to produce the necessary information, such decisions are simply not amenable to judicial determination because "[t]hey are delicate, complex, and involve large elements of prophecy." Ibid. Third, the Court in Chicago & Southern Air Lines and elsewhere has correctly recognized the primacy of the political branches in the foreign-affairs and national-security contexts.

        For these institutional reasons and because "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," it should come as no surprise that "[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 Executive." Dames & Moore v. Regan, 453 U.S. 654, 678 (1981) (quoting Agee, 453 U.S., at 291). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply—and the Judicial Branch should not infer—that Congress intended to deprive him of particular powers not specifically enumerated. See Dames & Moore, 453 U.S., at 678. As far as the courts are concerned, "the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to `invite' `measures on independent presidential responsibility.'" Ibid. (quoting Youngstown, 343 U.S., at 637 (Jackson, J., concurring)).

[542 U.S. 584]

        Finally, and again for the same reasons, where "the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress[, and i]n such a case the executive action `would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.'" Dames & Moore, supra, at 668 (quoting Youngstown, supra, at 637 (Jackson, J., concurring)). That is why the Court has explained, in a case analogous to this one, that "the detention[,] 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[, is] not to be set aside by the courts without the clear conviction that [it is] in conflict with the Constitution or laws of Congress constitutionally enacted." Ex parte Quirin, 317 U.S. 1, 25 (1942). See also Ex parte Milligan, 4 Wall. 2, 133 (1866) (Chase, C. J., concurring in judgment) (stating that a sentence imposed by a military commission "must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress"). This deference extends to the President's determination of all the factual predicates necessary to conclude that a given action is appropriate. See Quirin, supra, at 25 ("We are not here concerned with any question of the guilt or innocence of petitioners"). See also Hirabayashi v. United States, 320 U.S. 81, 93 (1943); Prize Cases, 2 Black, at 670; Martin v. Mott, 12 Wheat. 19, 29-30 (1827).

        To be sure, the Court has at times held, in specific circumstances, that the military acted beyond its warmaking authority. But these cases are distinguishable in important ways. In Ex parte Endo, 323 U.S. 283 (1944), the Court held unlawful the detention of an admittedly law-abiding and loyal American of Japanese ancestry. It did so because the

[542 U.S. 585]

Government's asserted reason for the detention had nothing to do with the congressional and executive authorities upon which the Government relied. Those authorities permitted detention for the purpose of preventing espionage and sabotage and thus could not be pressed into service for detaining a loyal citizen. See id., at 301-302. Further, the Court "stress[ed] the silence ... of the [relevant] Act and the Executive Orders." Id., at 301 (emphasis added); see also id., at 301-304. The Court sensibly held that the Government could not detain a loyal citizen pursuant to executive and congressional authorities that could not conceivably be implicated given the Government's factual allegations. And in Youngstown, Justice Jackson emphasized that "Congress ha[d] not left seizure of private property an open field but ha[d] covered it by three statutory policies inconsistent with th[e] seizure." 343 U.S., at 639 (concurring opinion). See also Milligan, supra, at 134 (Chase, C. J., concurring in judgment) (noting that the Government failed to comply with statute directly on point).

        I acknowledge that the question whether Hamdi's executive detention is lawful is a question properly resolved by the Judicial Branch, though the question comes to the Court with the strongest presumptions in favor of the Government. The plurality agrees that Hamdi's detention is lawful if he is an enemy combatant. But the question whether Hamdi is actually an enemy combatant is "of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Chicago & Southern Air Lines, 333 U.S., at 111. That is, although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, see, e.g., Ex parte Endo, supra, we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is

[542 U.S. 586]

committed to other branches.¹ In the words of then-Judge Scalia:

        "In Old Testament days, when judges ruled the people of Israel and led them into battle, a court professing the belief that it could order a halt to a military operation in foreign lands might not have been a startling phenomenon. But in modern times, and in a country where such governmental functions have been committed to elected delegates of the people, such an assertion of jurisdiction is extraordinary. The [C]ourt's decision today reflects a willingness to extend judicial power into areas where we do not know, and have no way of finding out, what serious harm we may be doing." Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1550-1551 (CADC 1984) (en banc) (dissenting opinion) (footnote omitted).

        See also id., at 1551, n. 1 (noting that "[e]ven the ancient Israelites eventually realized the shortcomings of judicial commanders-in-chief"). The decision whether someone is an enemy combatant is, no doubt, "delicate, complex, and involv[es] large elements of prophecy," Chicago & Southern Air Lines, supra, at 111, which, incidentally might in part explain why "the Government has never provided any court with the full criteria that it uses in classifying individuals as such," ante, at 516. See also infra, at 597-598 (discussing other military decisions).

        "`The war power of the national government is "the power to wage war successfully."'" Lichter v. United States, 334

[542 U.S. 587]

U.S. 742, 767, n. 9 (1948) (quoting Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238 (1917)). It follows that this power "is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict," In re Yamashita, 327 U.S. 1, 12 (1946); see also Stewart v. Kahn, 11 Wall. 493, 507 (1871), and quite obviously includes the ability to detain those (even United States citizens) who fight against our troops or those of our allies, see, e.g., Quirin, 317 U.S., at 28-29, 30-31; id., at 37-39; Duncan v. Kahanamoku, 327 U.S. 304, 313-314 (1946); W. Winthrop, Military Law and Precedents 788 (2d ed. rev. 1920); W. Whiting, War Powers Under the Constitution of the United States 167 (43d ed. 1871); id., at 44-46 (noting that Civil War "rebels" may be treated as foreign belligerents); see also ante, at 518-519.

        Although the President very well may have inherent authority to detain those arrayed against our troops, I agree with the plurality that we need not decide that question because Congress has authorized the President to do so. See ante, at 517. The Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorizes the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" of September 11, 2001. Indeed, the Court has previously concluded that language materially identical to the AUMF authorizes the Executive to "make the ordinary use of the soldiers ...; that he may kill persons who resist and, of course, that he may use the milder measure of seizing [and detaining] the bodies of those whom he considers to stand in the way of restoring peace." Moyer v. Peabody, 212 U.S. 78, 84 (1909).

        The plurality, however, qualifies its recognition of the President's authority to detain enemy combatants in the war on terrorism in ways that are at odds with our precedent. Thus, the plurality relies primarily on Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners

[542 U.S. 588]

of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364, for the proposition that "[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities." Ante, at 520. It then appears to limit the President's authority to detain by requiring that "the record establis[h] that United States troops are still involved in active combat in Afghanistan" because, in that case, detention would be "part of the exercise of `necessary and appropriate force.'" Ante, at 521. But I do not believe that we may diminish the Federal Government's war powers by reference to a treaty and certainly not to a treaty that does not apply. See n. 6, infra. Further, we are bound by the political branches' determination that the United States is at war. See, e.g., Ludecke v. Watkins, 335 U.S. 160, 167-170 (1948); Prize Cases, 2 Black, at 670; Mott, 12 Wheat., at 30. And, in any case, the power to detain does not end with the cessation of formal hostilities. See, e.g., Madsen v. Kinsella, 343 U.S. 341, 360 (1952); Johnson v. Eisentrager, 339 U.S. 763, 786 (1950); cf. Moyer, supra, at 85.

        Accordingly, the President's action here is "supported by the strongest of presumptions and the widest latitude of judicial interpretation." Dames & Moore, 453 U.S., at 668 (internal quotation marks omitted).² The question becomes whether the Federal Government (rather than the President acting alone) has power to detain Hamdi as an enemy combatant. More precisely, we must determine whether the Government may detain Hamdi given the procedures that were used.

[542 U.S. 589]

        I agree with the plurality that the Federal Government has power to detain those that the Executive Branch determines to be enemy combatants. See ante, at 518. But I do not think that the plurality has adequately explained the breadth of the President's authority to detain enemy combatants, an authority that includes making virtually conclusive factual findings. In my view, the structural considerations discussed above, as recognized in our precedent, demonstrate that we lack the capacity and responsibility to second-guess this determination.

        This makes complete sense once the process that is due Hamdi is made clear. As an initial matter, it is possible that the Due Process Clause requires only "that our Government must proceed according to the `law of the land'—that is, according to written constitutional and statutory provisions." In re Winship, 397 U.S. 358, 382 (1970) (Black, J., dissenting). I need not go this far today because the Court has already explained the nature of due process in this context.

        In a case strikingly similar to this one, the Court addressed a Governor's authority to detain for an extended period a person the executive believed to be responsible, in part, for a local insurrection. Justice Holmes wrote for a unanimous Court:

        "When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. This was admitted with regard to killing men in the actual clash of arms, and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm." Moyer, 212 U.S., at 85 (citation omitted; emphasis added).

[542 U.S. 590]

        The Court answered Moyer's claim that he had been denied due process by emphasizing that

        "it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation. Thus summary proceedings suffice for taxes, and executive decisions for exclusion from the country.... Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power." Id., at 84-85 (citations omitted).

        In this context, due process requires nothing more than a good-faith executive determination.³ To be clear: The Court has held that an executive, acting pursuant to statutory and constitutional authority, may, consistent with the Due Process Clause, unilaterally decide to detain an individual if the executive deems this necessary for the public safety even if he is mistaken.

        Moyer is not an exceptional case. In Luther v. Borden, 7 How. 1 (1849), the Court discussed the President's constitutional and statutory authority, in response to a request from a state legislature or executive, "`to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress [an] insurrection.'" Id., at 43 (quoting Act of Feb. 28, 1795). The Court explained that courts could not review the President's decision to recognize one of the competing legislatures or executives. See 7 How., at 43. If a court could second-guess this determination, "it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained

[542 U.S. 591]

by the troops in the service of the United States." Ibid. "If the judicial power extends so far," the Court concluded, "the guarantee contained in the Constitution of the United States [referring to Art. IV, § 4] is a guarantee of anarchy, and not of order." Ibid. The Court clearly contemplated that the President had authority to detain as he deemed necessary, and such detentions evidently comported with the Due Process Clause as long as the President correctly decided to call forth the militia, a question the Court said it could not review.

        The Court also addressed the natural concern that placing "this power in the President is dangerous to liberty, and may be abused." Id., at 44. The Court noted that "[a]ll power may be abused if placed in unworthy hands," and explained that "it would be difficult . . . to point out any other hands in which this power would be more safe, and at the same time equally effectual." Ibid. Putting that aside, the Court emphasized that this power "is conferred upon him by the Constitution and laws of the United States, and must therefore be respected and enforced in its judicial tribunals." Ibid. Finally, the Court explained that if the President abused this power "it would be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it." Id., at 45.

        Almost 140 years later, in United States v. Salerno, 481 U. S. 739, 748 (1987), the Court explained that the Due Process Clause "lays down [no] categorical imperative." The Court continued:

        "We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous." Ibid.

[542 U.S. 592]

        The Court cited Ludecke v. Watkins, 335 U. S. 160 (1948), for this latter proposition even though Ludecke actually involved detention of enemy aliens. See also Selective Draft Law Cases, 245 U. S. 366 (1918); Jacobson v. Massachusetts, 197 U. S. 11, 27-29 (1905) (upholding legislated mass vaccinations and approving of forced quarantines of Americans even if they show no signs of illness); cf. Kansas v. Hendricks, 521 U. S. 346 (1997); Juragua Iron Co. v. United States, 212 U. S. 297 (1909).

        The Government's asserted authority to detain an individual that the President has determined to be an enemy combatant, at least while hostilities continue, comports with the Due Process Clause. As these cases also show, the Executive's decision that a detention is necessary to protect the public need not and should not be subjected to judicial second-guessing. Indeed, at least in the context of enemy-combatant determinations, this would defeat the unity, secrecy, and dispatch that the Founders believed to be so important to the warmaking function. See Part I, supra.

        I therefore cannot agree with JUSTICE SCALIA'S conclusion that the Government must choose between using standard criminal processes and suspending the writ. See ante, at 578 (dissenting opinion). JUSTICE SCALIA relies heavily upon Ex parte Milligan, 4 Wall. 2 (1866), see ante, at 567-568, 570-572, and three cases decided by New York state courts in the wake of the War of 1812, see ante, at 565-566. I admit that Milligan supports his position. But because the Executive Branch there, unlike here, did not follow a specific statutory mechanism provided by Congress, the Court did not need to reach the broader question of Congress' power, and its discussion on this point was arguably dicta, see 4 Wall., at 122, as four Justices believed, see id., at 132, 134-136 (Chase, C. J., joined by Wayne, Swayne, and Miller, JJ., concurring in judgment).

        More importantly, the Court referred frequently and pervasively to the criminal nature of the proceedings instituted

[542 U.S. 593]

against Milligan. In fact, this feature serves to distinguish the state cases as well. See In re Stacy, 10 Johns. *328, *334 (N. Y. 1813) ("A military commander is here assuming criminal jurisdiction over a private citizen" (emphasis added)); Smith v. Shaw, 12 Johns. *257, *265 (N. Y. 1815) (Shaw "might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy" (emphasis added)); M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815) (same for treason).

        Although I do acknowledge that the reasoning of these cases might apply beyond criminal punishment, the punishment-nonpunishment distinction harmonizes all of the precedent. And, subsequent cases have at least implicitly distinguished Milligan in just this way. See, e. g., Moyer, 212 U. S., at 84-85 ("Such arrests are not necessarily for punishment, but are by way of precaution"). Finally, Quirin overruled Milligan to the extent that those cases are inconsistent. See Quirin, 317 U. S., at 45 (limiting Milligan to its facts). Because the Government does not detain Hamdi in order to punish him, as the plurality acknowledges, see ante, at 518-519, Milligan and the New York cases do not control.

        JUSTICE SCALIA also finds support in a letter Thomas Jefferson wrote to James Madison. See ante, at 564. I agree that this provides some evidence for his position. But I think this plainly insufficient to rebut the authorities upon which I have relied. In any event, I do not believe that JUSTICE SCALIA'S evidence leads to the necessary "clear conviction that [the detention is] in conflict with the Constitution or laws of Congress constitutionally enacted," Quirin, supra, at 25, to justify nullifying the President's wartime action.

        Finally, JUSTICE SCALIA'S position raises an additional concern. JUSTICE SCALIA apparently does not disagree that the Federal Government has all power necessary to protect the Nation. If criminal processes do not suffice, however, JUSTICE SCALIA would require Congress to suspend the writ. See ante, at 577-578. But the fact that the writ may

[542 U.S. 594]

not be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it," Art. I, § 9, cl. 2, poses two related problems. First, this condition might not obtain here or during many other emergencies during which this detention authority might be necessary. Congress would then have to choose between acting unconstitutionally⁴ and depriving the President of the tools he needs to protect the Nation. Second, I do not see how suspension would make constitutional otherwise unconstitutional detentions ordered by the President. It simply removes a remedy. JUSTICE SCALIA'S position might therefore require one or both of the political branches to act unconstitutionally in order to protect the Nation. But the power to protect the Nation must be the power to do so lawfully.

        Accordingly, I conclude that the Government's detention of Hamdi as an enemy combatant does not violate the Constitution. By detaining Hamdi, the President, in the prosecution of a war and authorized by Congress, has acted well within his authority. Hamdi thereby received all the process to which he was due under the circumstances. I therefore believe that this is no occasion to balance the competing interests, as the plurality unconvincingly attempts to do.

        Although I do not agree with the plurality that the balancing approach of Mathews v. Eldridge, 424 U. S. 319 (1976), is the appropriate analytical tool with which to analyze this case,⁵ I cannot help but explain that the plurality misapplies its chosen framework, one that if applied correctly would probably lead to the result I have reached. The plurality devotes two paragraphs to its discussion of the Government's interest, though much of those two paragraphs explain why the Government's concerns are misplaced. See ante, at 531-532.

[542 U.S. 595]

But: "It is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Agee, 453 U. S., at 307 (quoting Aptheker, 378 U. S., at 509). In Moyer, the Court recognized the paramount importance of the Governor's interest in the tranquility of a Colorado town. At issue here is the far more significant interest of the security of the Nation. The Government seeks to further that interest by detaining an enemy soldier not only to prevent him from rejoining the ongoing fight. Rather, as the Government explains, detention can serve to gather critical intelligence regarding the intentions and capabilities of our adversaries, a function that the Government avers has become all the more important in the war on terrorism. See Brief for Respondents 15; App. 347-351.

        Additional process, the Government explains, will destroy the intelligence gathering function. Brief for Respondents 43-45. It also does seem quite likely that, under the process envisioned by the plurality, various military officials will have to take time to litigate this matter. And though the plurality does not say so, a meaningful ability to challenge the Government's factual allegations will probably require the Government to divulge highly classified information to the purported enemy combatant, who might then upon release return to the fight armed with our most closely held secrets.

        The plurality manages to avoid these problems by discounting or entirely ignoring them. After spending a few sentences putatively describing the Government's interests, the plurality simply assures the Government that the alleged burdens "are properly taken into account in our due process analysis." Ante, at 532. The plurality also announces that "the risk of an erroneous deprivation of a detainee's liberty interest is unacceptably high under the Government's proposed rule." Ante, at 532-533 (internal quotation marks omitted). But there is no particular reason to believe that the federal courts have the relevant information and expertise

[542 U.S. 596]

to make this judgment. And for the reasons discussed in Part I, supra, there is every reason to think that courts cannot and should not make these decisions.

        The plurality next opines that "[w]e think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts." Ante, at 534. Apparently by limiting hearings "to the alleged combatant's acts," such hearings "meddl[e] little, if at all, in the strategy or conduct of war." Ante, at 535. Of course, the meaning of the combatant's acts may become clear only after quite invasive and extensive inquiry. And again, the federal courts are simply not situated to make these judgments.

        Ultimately, the plurality's dismissive treatment of the Government's asserted interests arises from its apparent belief that enemy-combatant determinations are not part of "the actual prosecution of a war," ibid., or one of the "central functions of warmaking," ante, at 534. This seems wrong: Taking and holding enemy combatants is a quintessential aspect of the prosecution of war. See, e. g., ante, at 518-519; Quirin, 317 U. S., at 28. Moreover, this highlights serious difficulties in applying the plurality's balancing approach here. First, in the war context, we know neither the strength of the Government's interests nor the costs of imposing additional process.

        Second, it is at least difficult to explain why the result should be different for other military operations that the plurality would ostensibly recognize as "central functions of warmaking." As the plurality recounts:

        "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner." Ante, at 533 (internal quotation marks omitted).

[542 U.S. 597]

        See also ibid. ("notice" of the Government's factual assertions and "a fair opportunity to rebut [those] assertions before a neutral decisionmaker" are essential elements of due process). Because a decision to bomb a particular target might extinguish life interests, the plurality's analysis seems to require notice to potential targets. To take one more example, in November 2002, a Central Intelligence Agency (CIA) Predator drone fired a Hellfire missile at a vehicle in Yemen carrying an al Qaeda leader, a citizen of the United States, and four others. See Priest, CIA Killed U. S. Citizen In Yemen Missile Strike, Washington Post, Nov. 8, 2002, p. A1. It is not clear whether the CIA knew that an American was in the vehicle. But the plurality's due process would seem to require notice and opportunity to respond here as well. Cf. Tennessee v. Garner, 471 U. S. 1 (1985). I offer these examples not because I think the plurality would demand additional process in these situations but because it clearly would not. The result here should be the same.

        I realize that many military operations are, in some sense, necessary. But many, if not most, are merely expedient, and I see no principled distinction between the military operation the plurality condemns today (the holding of an enemy combatant based on the process given Hamdi) from a variety of other military operations. In truth, I doubt that there is any sensible, bright-line distinction. It could be argued that bombings and missile strikes are an inherent part of war, and as long as our forces do not violate the laws of war, it is of no constitutional moment that civilians might be killed. But this does not serve to distinguish this case because it is also consistent with the laws of war to detain enemy combatants exactly as the Government has detained Hamdi.⁶ This, in fact, bolsters my argument in Part III to the extent that

[542 U.S. 598]

the laws of war show that the power to detain is part of a sovereign's war powers.

        Undeniably, Hamdi has been deprived of a serious interest, one actually protected by the Due Process Clause. Against this, however, is the Government's overriding interest in protecting the Nation. If a deprivation of liberty can be justified by the need to protect a town, the protection of the Nation, a fortiori, justifies it.

        I acknowledge that under the plurality's approach, it might, at times, be appropriate to give detainees access to counsel and notice of the factual basis for the Government's determination. See ante, at 532-533. But properly accounting for the Government's interests also requires concluding that access to counsel and to the factual basis would not always be warranted. Though common sense suffices, the Government thoroughly explains that counsel would often destroy the intelligence gathering function. See Brief for Respondents 42-43. See also App. 347-351 (affidavit of Col. D. Woolfolk). Equally obvious is the Government's interest in not fighting the war in its own courts, see, e. g., Johnson v. Eisentrager, 339 U. S., at 779, and protecting classified information, see, e. g., Department of Navy v. Egan, 484 U. S. 518, 527 (1988) (President's "authority to classify and control access to information bearing on national security and to determine" who gets access "flows primarily from [the Commander in Chief Clause] and exists quite apart from any explicit congressional grant"); Agee, 453 U. S., at 307 (upholding revocation of former CIA employee's passport in large part by reference to the Government's need "to protect the secrecy of [its] foreign intelligence operations").⁷

[542 U.S. 599]

        For these reasons, I would affirm the judgment of the Court of Appeals.

---------------

Notes:

1. Although I have emphasized national-security concerns, the President's foreign-affairs responsibilities are also squarely implicated by this case. The Government avers that Northern Alliance forces captured Hamdi, and the District Court demanded that the Government turn over information relating to statements made by members of the Northern Alliance. See 316 F.3d 450, 462 (CA4 2003).

2. It could be argued that the habeas statutes are evidence of congressional intent that enemy combatants are entitled to challenge the factual basis for the Government's determination. See, e.g., 28 U.S.C. §§ 2243, 2246. But factual development is needed only to the extent necessary to resolve the legal challenge to the detention. See, e.g., Walker v. Johnston, 312 U.S. 275, 284 (1941).

3. Indeed, it is not even clear that the Court required good faith. See Moyer, 212 U.S., at 85 ("It is not alleged that [the Governor's] judgment was not honest, if that be material, or that [Moyer] was detained after fears of the insurrection were at an end").

4. I agree with JUSTICE SCALIA that this Court could not review Congress' decision to suspend the writ. See ante, at 577-578.

5. Evidently, neither do the parties, who do not cite Mathews even once.

6. Hamdi's detention comports with the laws of war, including the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364. See Brief for Respondents 22-24.

7. These observations cast still more doubt on the appropriateness and usefulness of Mathews v. Eldridge, 424 U. S. 319 (1976), in this context. It is, for example, difficult to see how the plurality can insist that Hamdi unquestionably has the right to access to counsel in connection with the proceedings on remand, when new information could become available to the Government showing that such access would pose a grave risk to national security. In that event, would the Government need to hold a hearing before depriving Hamdi of his newly acquired right to counsel even if that hearing would itself pose a grave threat?

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