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OCTOBER TERM, 2005

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Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, ETAL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 05-184. Argued March 28, 2006-Decided June 29, 2006

Pursuant to Congress' Joint Resolution authorizing the President to "use all necessary and appropriate force against those nations, or-ganizations, or persons he determines planned, authorized, commit-ted or aided" the September 11, 2001, al Qaeda terrorist attacks (AUMF), U. S. Armed Forces invaded Mghanistan. During the hos-tilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba. Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes. Mter another year, he was charged with conspiracy "to commit ... offenses triable by military commission." In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, includ-ing the principle that a defendant must be permitted to see and hear the evidence against him.

The District Court granted habeas relief and stayed the commis-sion's proceedings, concluding that the President's authority to estab-lish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Con-vention's full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a pris-oner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. ¤801 et seq., and Common Article 3 of the Third Geneva Con-vention because it had the power to convict based on evidence the ac-cused would never see or hear. The D. C. Circuit reversed. Although it declined the Government's invitation to abstain from considering Hamdan's challenge, cf. Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on the merits, that Hamdan was not entitled to re-lief because the Geneva Conventions are not judicially enforceable. The court also concluded that Ex parte Quirin, 317 U. S. 1, foreclosed any separation-of-powers objection to the military commission's jurisdiction, and that Hamdan's trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the Geneva Conventions.

Held: The judgment is reversed, and the case is remanded. 415 F. 3d 33, reversed and remanded.

JUSTICE STEVENS delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding:

1. The Government's motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA ¤1005(e)(1) provides

Ê that "no court ............ shall have jurisdiction to hear or consider an

Ê application for ............ habeas corpus filed by ... an alien detained at

Guantanamo Bay." Section 1005(h)(2) provides that ¤¤1005(e)(2) and (3)-which give the D. C. Circuit "exclusive" jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions-"shall apply with respect to any claim whose review is ... pending on" the DTA's effective date, as was Hamdan's case. The Government's argument that ¤¤1005(e)(1) and (h) repeal this Court's jurisdiction to review the decision below is re-butted by ordinary principles of statutory construction. A negative inference may be drawn from Congress' failure to include ¤1005(e)(1) within the scope of ¤1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330. "If ... Congress was reasonably concerned to ensure that [¤¤1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [¤1005(e)(1)], unless it had the different in-tent that the latter [section] not be applied to the general run of pending cases." Id., at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh. The legislative his-tory shows that Congress not only considered the respective temporal reaches of ¤¤1005(e)(1), (2), and (3) together at every stage, but omit-ted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within that directive's scope. Congress' rejection of the very language that would have achieved the result the Gov-ernment urges weighs heavily against the Government's interpretation. See Doe v. Chao, 540 U. S. 614, 621-623. Pp. 7-20.

2. The Government argues unpersuasively that abstention is ap-propriate under Councilman, which concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending courts-martial against service members, see 420 U. S., at 740. Neither of the comity considerations Councilman identified weighs in favor of abstention here. First, the assertion that military discipline and, therefore, the Armed Forces' efficient operation, are best served if the military justice system acts without regular inter-ference from civilian courts, see id., at 752, is inapt because Hamdan is not a service member. Second, the view that federal courts should respect the balance Congress struck when it created "an integrated system of military courts and review procedures" is inapposite, since the tribunal convened to try Hamdan is not part of that integrated system. Rather than Councilman, the most relevant precedent is Ex parte Quirin, where the Court, far from abstaining pending the con-clusion of ongoing military proceedings, expedited its review because of (1) the public importance of the questions raised, (2) the Court's duty, in both peace and war, to preserve the constitutional safe-guards of civil liberty, and (3) the public interest in a decision on those questions without delay, 317 U. S, at 19. The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Con-gress has conferred on them. Pp. 20-25.

3. The military commission at issue is not expressly authorized by any congressional Act. Quirin held that Congress had, through Arti-cle of War 15, sanctioned the use of military commissions to try of-fenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: "The jurisdiction [of] courts-martial shall not be construed as depriving military commissions ... of concurrent jurisdiction in respect of of-fenders or offenses that by statute or by the law of war may be tried by such ... commissions." 10 U. S. C. ¤821. Contrary to the Gov-ernment's assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions-with the express condition that he and those under his command comply with the law of war. See 317 U. S., at 28-29. Neither the AUMF nor the DTA can be read to provide spe-cific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President's war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include Êauthority to convene military commissions in appropriate circum-stances, see, e.g., id., at 518, there is nothing in the AUMF's text or leg-islative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan's commission, it contains no language authorizing that tribunal or any other at Guan-tanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congres-sional authorization, this Court's task is, as it was in Quirin, to de-cide whether Hamdan's military commission is so justified. Pp. 25-30.

4. The military commission at issue lacks the power to proceed be-cause its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp.49-72.

(a) The commission's procedures, set forth in Commission Order No.1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to "close." Grounds for closure include the protection of classified in-formation, the physical safety of participants and witnesses, the pro-tection of intelligence and law enforcement sources, methods, or ac-tivities, and "other national security interests." Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer's discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan's commission permit the admission of any evi-dence that, in the presiding officer's opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other "protected in-formation," so long as the presiding officer concludes that the evi-dence is "probative" and that its admission without the accused's knowledge would not result in the denial of a full and fair trial. Pp. 49-52.

(b) The Government objects to this Court's consideration of a pro?cedural challenge at this stage on the grounds, inter alia, that Ham?dan will be able to raise such a challenge following a final decision under the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to law.. These contentions are unsound. First, because

Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years, he has no automatic right to federal-court review of the commission's "final decision" under DTA ¤1005(e)(3). Second, there is a basis to presume that the procedures employed during Hamdan's trial will violate the law: He will be, and indeed already has been, ex-cluded from his own trial. Thus, review of the procedures in advance of a "final decision" is appropriate. Pp. 52-53.

(c) Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan's commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exi-gency that necessitates it. That understanding is reflected in Art. 36(b), which provides that the procedural rules the President prom-ulgates for courts-martial and military commissions alike must be "uniform insofar as practicable," 10 U. S. C. ¤836(b). The "practica-bility" determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The Presi-dent here has determined, pursuant to the requirement of Art. 36(a), that it is impracticable to apply the rules and principles of law that govern "the trial of criminal cases in the United States district courts" to Hamdan's commission. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. And even if subsection (b)'s require-ments could be satisfied without an official practicability determina-tion, that subsection's requirements are not satisfied here. Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. There is no suggestion, e.g., of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. It is not evident why the danger posed by international terrorism, consider-able though it is, should require, in the case of Hamdan's trial, any variance from the courts-martial rules. The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamen-tal protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: The right to be present. See 10 U. S. C. A. ¤839(c). Because the jettisoning of so basic a right cannot lightly be excused as "practicable," the courts-martial rules must apply. Since it is undisputed that Commission Order No.1 deviates in many sig-nificant respects from those rules, it necessarily violates Art. 36(b). Pp.53-62.

Ê(d) The procedures adopted to try Hamdan also violate the Ge-neva Conventions. The D. C. Circuit dismissed Hamdan's challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62-68.

(i) The appeals court relied on a statement in Johnson v. Eisen-trager, 339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for ob-serving and enforcing prisoners' rights under the Convention. How-ever, Eisentrager does not control here because, regardless of the na-ture of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520-521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63-65.

(ii) Alternatively, the appeals court agreed with the Govern-ment that the Conventions do not apply because Hamdan was cap-tured during the war with al Qaeda, which is not a Convention signa-tory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signato-ries. Common Article 3, which appears in all four Conventions, pro-vides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons ... placed hors de combat by ... detention," including a prohibition on "the passing of sentences ... without previous judgment ... by a regularly constituted court af-fording all the judicial guarantees ... recognized as indispensable by civilized peoples." The D. C. Circuit ruled Common Article 3 inappli-cable to Hamdan because the conflict with al Qaeda is international in scope and thus not a "conflict not of an international character. " That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a non signatory, so long as the nonsig-natory "accepts and applies" those terms. Common Article 3, by con-trast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a sig-natory nor even a non signatory who are involved in a conflict "in the territory of' a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp.65-68.

(iii) While Common Article 3 does not define its "regularly con-stituted court" phrase, other sources define the words to mean an "ordinary military cour[t]" that is "established and organized in ac-cordance with the laws and procedures already in force in a country." The regular military courts in our system are the courts-martial es-tablished by congressional statute. At a minimum, a military com-mission can be "regularly constituted" only if some practical need ex-plains deviations from court-martial practice. No such need has been demonstrated here. Pp.69-70.

(iv) Common Article 3's requirements are general, crafted to accommodate a wide variety of legal systems, but they are require-ments nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72.

(d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the op-portunity, the Executive nevertheless must comply with the prevail-ing rule of law in undertaking to try him and subject him to criminal punishment. P.72.

JUSTICE STEVENS, joined by JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER, concluded in Parts V and VI-D-iv:

1. The Government has not charged Hamdan with an "offense ... that by the law of war may be tried by military commission," 10 U. S. C. ¤821. Of the three sorts of military commissions used his-torically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions, in-corporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal's exercise of jurisdiction are, inter alia, that it must be lim-ited to trying offenses committed within the convening commander's field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001. More importantly, the offense alleged is not triable by law-of-war military commission. Although the common law of war may render triable by military commission certain offenses not defined by stat-ute, Quirin, 317 U. S., at 30, the precedent for doing so with respect to a particular offense must be plain and unambiguous, cf., e.g., Lov-ing v. United States, 517 U. S. 748, 771. That burden is far from satis-fied here. The crime of "conspiracy" has rarely if ever been tried as such in this country by any law-of-war military commission not exer-cising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions-the major treaties on the law of war. Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources, including, e.g., the International Military Tribunal at Nur-emberg, which pointedly refused to recognize conspiracy to commit war crimes as such a violation. Because the conspiracy charge does not support the commission's jurisdiction, the commission lacks au-thority to try Hamdan. Pp. 30-49.

2. The phrase "all the guarantees ... recognized as indispensable by civilized peoples" in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary international law. The procedures adopted to try Hamdan deviate from those gov-erning courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees. Moreover, various provi-sions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. Pp. 70-72.

JUSTICE KENNEDY, agreeing that Hamdan's military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. ¤¤836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conven-tions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19.

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion, in which KENNEDY, SOUTER, and GINSBURG, JJ., joined. KENNEDY, J., filed an opinion concurring in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined as to Parts I and II. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, and in which ALITO, J., joined as to all but Parts I, II-C-1, and III-B-2. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined as to Parts I through III. ROBERTS, C. J., took no part in the consideration or decision of the case.

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Cite as: 548 U. S. _ (2006)

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Opinion of STEVENS, J.

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SUPREME COURT OF THE UNITED STATES

No. 05-184

SALIM AHMED HAMDAN, PETITIONER v. DONALD H. RUMSFELD, SECRETARY OF DEFENSE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[June 29, 2006]

JUSTICE STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, Parts VI through VI-D-iii, Part VI-D-v, and Part VII, and an opinion with respect to Parts V and VI-D-iv, in which JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join.

Petitioner Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the Taliban (which then governed Mghanistan), Hamdan was captured by militia forces and turned over to the U. S. military. In June 2002, he was transported to Guantanamo Bay. Over a year later, the President deemed him eligible for trial by military com-mission for then-unspecified crimes. Mter another year had passed, Hamdan was charged with one count of con-spiracy "to commit ... offenses triable by military com-mission." App. to Pet. for Cert. 65a.

Hamdan filed petitions for writs of habeas corpus and mandamus to challenge the Executive Branch's intended means of prosecuting this charge. He concedes that a court-martial constituted in accordance with the Uniform Code of Military Justice (UCMJ), 10 U. S. C. ¤801 et seq. (2000 ed. and Supp. III), would have authority to try him. His objection is that the military commission the Presi-dent has convened lacks such authority, for two principal reasons: First, neither congressional Act nor the common law of war supports trial by this commission for the crime of conspiracy-an offense that, Hamdan says, is not a violation of the law of war. Second, Hamdan contends, the procedures that the President has adopted to try him violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.

The District Court granted Hamdan's request for a writ of habeas corpus. 344 F. Supp. 2d 152 (DC 2004). The Court of Appeals for the District of Columbia Circuit reversed. 415 F. 3d 33 (2005). Recognizing, as we did over a half-century ago, that trial by military commission is an extraordinary measure raising important questions about the balance of powers in our constitutional structure, Exparte Quirin, 317 U. S. 1, 19 (1942), we granted certio-rari. 546 U. S. _ (2005).

For the reasons that follow, we conclude that the mili-tary commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an "offens[e] that by ... the law of war may be tried by military commissions." 10 U. S. C. ¤821.

I

On September 11, 2001, agents of the al Qaeda terrorist organization hijacked commercial airplanes and attacked the World Trade Center in New York City and the na-tional headquarters of the Department of Defense in Arlington, Virginia. Americans will never forget the dev-astation wrought by these acts. Nearly 3,000 civilians were killed.

Congress responded by adopting a Joint Resolution authorizing the President to "use all necessary and appro-priate force against those nations, organizations, or per-sons he determines planned, authorized, committed, or aided the terrorist attacks ... in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Au-thorization for Use of Military Force (AUMF), 115 Stat. 224, note following 50 U. S. C. ¤1541 (2000 ed., Supp. III). Acting pursuant to the AUMF, and having determined that the Taliban regime had supported al Qaeda, the President ordered the Armed Forces of the United States to invade Afghanistan. In the ensuing hostilities, hun-dreds of individuals, Hamdan among them, were captured and eventually detained at Guantanamo Bay.

On November 13, 2001, while the United States was still engaged in active combat with the Taliban, the Presi-dent issued a comprehensive military order intended to govern the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism," 66 Fed. Reg. 57833 (hereinafter November 13 Order or Order). Those subject to the November 13 Order include any noncitizen for whom the President determines "there is reason to believe" that he or she (1) "is or was" a member of al Qaeda or (2) has engaged or participated in terrorist ac-tivities aimed at or harmful to the United States. Id., at 57834. Any such individual "shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including imprisonment or death." Ibid. The November 13 Order vested in the Secretary of Defense the power to appoint military commissions to try individuals subject to the Order, but that power has since been delegated to John D. Altenberg, Jr., a retired Army major general and longtime military lawyer who has been designated "Appointing Authority for Military Commissions."

On July 3, 2003, the President announced his determi?nation that Hamdan and five other detainees at Guan?tanamo Bay were subject to the November 13 Order and thus triable by military commission. In December 2003, military counsel was appointed to represent Hamdan. Two months later, counsel filed demands for charges and for a speedy trial pursuant to Article 10 of the UCMJ, 10 U. S. C. ¤810. On February 23, 2004, the legal adviser to the Appointing Authority denied the applications, ruling that Hamdan was not entitled to any of the protections of the UCMJ. Not until July 13, 2004, after Hamdan had commenced this action in the United States District Court for the Western District of Washington, did the Govern?ment finally charge him with the offense for which, a year earlier, he had been deemed eligible for trial by military commission.

The charging document, which is unsigned, contains 13 numbered paragraphs. The first two paragraphs recite the asserted bases for the military commission's jurisdic-tion-namely, the November 13 Order and the President's July 3, 2003, declaration that Hamdan is eligible for trial by military commission. The next nine paragraphs, collec-tively entitled "General Allegations," describe al Qaeda's activities from its inception in 1989 through 2001 and identify Osama bin Laden as the group's leader. Hamdan is not mentioned in these paragraphs.

Only the final two paragraphs, entitled "Charge: Con-spiracy," contain allegations against Hamdan. Paragraph 12 charges that "from on or about February 1996 to on or about November 24, 2001," Hamdan "willfully and know-ingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with [named members of al Qaeda] to commit the following offenses triable by military commission: attacking civil-ians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism." App. to Pet. for Cert. 65a. There is no allegation that Hamdan had any command responsibilities, played a leadership role, or participated in the planning of any activity.

Paragraph 13 lists four "overt acts" that Hamdan is alleged to have committed sometime between 1996 and November 2001 in furtherance of the "enterprise and conspiracy": (1) he acted as Osama bin Laden's "bodyguard and personal driver," "believ[ing]" all the while that bin Laden "and his associates were involved in" terrorist acts prior to and including the attacks of September 11, 2001; (2) he arranged for transportation of, and actually trans-ported, weapons used by al Qaeda members and by bin Laden's bodyguards (Hamdan among them); (3) he "drove or accompanied [O]sama bin Laden to various al Qaida-sponsored training camps, press conferences, or lectures," at which bin Laden encouraged attacks against Ameri-cans; and (4) he received weapons training at al Qaeda-sponsored camps. Id., at 65a-67a.

After this formal charge was filed, the United States District Court for the Western District of Washington transferred Hamdan's habeas and mandamus petitions to the United States District Court for the District of Colum-bia. Meanwhile, a Combatant Status Review Tribunal (CSRT) convened pursuant to a military order issued on July 7, 2004, decided that Hamdan's continued detention at Guantanamo Bay was warranted because he was an "enemy combatant."l Separately, proceedings before the

1 An "enemy combatant" is defined by the military order as "an indi?vidual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States

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military commission commenced.

On November 8, 2004, however, the District Court granted Hamdan's petition for habeas corpus and stayed the commission's proceedings. It concluded that the President's authority to establish military commissions extends only to "offenders or offenses triable by military [commission] under the law of war," 344 F. Supp. 2d, at 158; that the law of war includes the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, T. I. A. S. No. 3364 (Third Geneva Convention); that Hamdan is entitled to the full protections of the Third Geneva Convention until ad-judged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the U CMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. 344 F. Supp. 2d, at 158-172.

The Court of Appeals for the District of Columbia Cir-cuit reversed. Like the District Court, the Court of Ap-peals declined the Government's invitation to abstain from considering Hamdan's challenge. Cf. Schlesinger v. Coun-cilman, 420 U. S. 738 (1975). On the merits, the panel rejected the District Court's further conclusion that Ham-dan was entitled to relief under the Third Geneva Conven-tion. All three judges agreed that the Geneva Conventions were not "judicially enforceable," 415 F. 3d, at 38, and two thought that the Conventions did not in any event apply to Hamdan, id., at 40-42; but see id., at 44 (Williams, J.,

States or its coalition partners." Memorandum from Deputy Secretary of Defense Paul Wolfowitz re: Order Establishing Combatant Status Review Tribunal ¤a (Jul. 7, 2004), available at http://www.defense link.mil/news/Ju12004Jd20040707review.pdf (all Internet materials as visited June 26, 2006, and available in Clerk of Court's case file).

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concurring). In other portions of its opinion, the court con-cluded that our decision in Quirin foreclosed any separation-of-powers objection to the military commission's jurisdiction, and held that Hamdan's trial before the contemplated com-mission would violate neither the UCMJ nor U. S. Armed Forces regulations intended to implement the Geneva Con-ventions. 415 F. 3d, at 38,42-43.

On November 7, 2005, we granted certiorari to decide whether the military commission convened to try Hamdan has authority to do so, and whether Hamdan may rely on the Geneva Conventions in these proceedings.

II

On February 13, 2006, the Government filed a motion to dismiss the writ of certiorari. The ground cited for dis-missal was the recently enacted Detainee Treatment Act of 2005 (DTA), Pub. L. 109-148, 119 Stat. 2739. We post-poned our ruling on that motion pending argument on the merits, 546 U. S. _ (2006), and now deny it.

The DTA, which was signed into law on December 30, 2005, addresses a broad swath of subjects related to de-tainees. It places restrictions on the treatment and inter-rogation of detainees in U. S. custody, and it furnishes procedural protections for U. S. personnel accused of engaging in improper interrogation. DTA ¤¤1002-1004, 119 Stat. 2739-2740. It also sets forth certain "PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES." ¤1005, id., at 2740. Subsections (a) through (d) of ¤1005 direct the Secretary of Defense to report to Congress the procedures being used by CSRTs to determine the proper classification of detainees held in Guantanamo Bay, Iraq, and Mghanistan, and to adopt certain safeguards as part of those procedures.

Subsection (e) of ¤1005, which is entitled "JUDICIAL REVIEW OF DETENTION OF ENEMY COMBATANTS," supplies the basis for the Government's jurisdictional argument.

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The subsection contains three numbered paragraphs. The first paragraph amends the judicial code as follows:

"(1) IN GENERAL.-Section 2241 of title 28, United States Code, is amended by adding at the end the following:

'''(e) Except as provided in section 1005 of the De-tainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider-

'''(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Depart-ment of Defense at Guantanamo Bay, Cuba; or

'''(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who-

'''(A) is currently in military custody; or

"'(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.'" ¤1005(e), id., at 2741-2742.

Paragraph (2) of subsection (e) vests in the Court of Appeals for the District of Columbia Circuit the "exclusive jurisdiction to determine the validity of any final decision of a [CSRT] that an alien is properly designated as an enemy combatant." Paragraph (2) also delimits the scope of that review. See ¤¤1005(e)(2)(C)(i)-(ii), id., at 2742.

Paragraph (3) mirrors paragraph (2) in structure, but governs judicial review of final decisions of military commissions, not CSRTs. It vests in the Court of Appeals for the District of Columbia Circuit "exclusive jurisdic?tion to determine the validity of any final decision ren?dered pursuant to Military Commission Order No.1, dated August 31, 2005 (or any successor military order)." ¤1005(e)(3)(A), id., at 2743.² Review is as of right for any alien sentenced to death or a term of imprisonment of 10 years or more, but is at the Court of Appeals' discretion in all other cases. The scope of review is limited to the following inquiries:

"(i) whether the final decision [of the military com-mission] was consistent with the standards and pro-cedures specified in the military order referred to in subparagraph (A); and

"(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States." ¤1005(e)(3)(D), ibid.

Finally, ¤ 1005 contains an "effective date" provision, which reads as follows:

"(1) IN GENERAL.-This section shall take effect on the date of the enactment of this Act.

"(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS.-Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act." ¤1005(h), id., at 2743?2744.³

The Act is silent about whether paragraph (1) of subsec-tion (e) "shall apply" to claims pending on the date of

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

3The penultimate subsections of ¤1005 emphasize that the provision does not "confer any constitutional right on an alien detained as an enemy combatant outside the United States" and that the "United States" does not, for purposes of ¤1005, include Guantanamo Bay. ¤¤ 1005(f)-(g).

enactment.

The Government argues that ¤¤1005(e)(1) and 1005(h) had the immediate effect, upon enactment, of repealing federal jurisdiction not just over detainee habeas actions yet to be filed but also over any such actions then pending in any federal court-including this Court. Accordingly, it argues, we lack jurisdiction to review the Court of Appeals' decision below.

Hamdan objects to this theory on both constitutional and statutory grounds. Principal among his constitutional arguments is that the Government's preferred reading raises grave questions about Congress' authority to im-pinge upon this Court's appellate jurisdiction, particularly in habeas cases. Support for this argument is drawn from Ex parte Yerger, 8 Wall. 85 (1869), in which, having ex-plained that "the denial to this court of appellate jurisdic-tion" to consider an original writ of habeas corpus would "greatly weaken the efficacy of the writ," id., at 102-103, we held that Congress would not be presumed to have effected such denial absent an unmistakably clear state-ment to the contrary. See id., at 104-105; see also Felker v. Turpin, 518 U. S. 651 (1996); Durousseau v. United States, 6 Cranch 307, 314 (1810) (opinion for the Court by Marshall, C. J.) (The "appellate powers of this court" are not created by statute but are "given by the constitution"); United States v. Klein, 13 Wall. 128 (1872). Cf. Ex parte McCardle, 7 Wall. 506, 514 (1869) (holding that Congress had validly foreclosed one avenue of appellate review where its repeal of habeas jurisdiction, reproduced in the margin,4 could not have been "a plainer instance of posi-

4'''And be it further enacted, That so much of the act approved Febru-ary 5, 1867, entitled "An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789," as author-ized an appeal from the judgment of the Circuit Court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court, on appeals which have been, or may hereafter be

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tive exception"). Hamdan also suggests that, if the Gov-ernment's reading is correct, Congress has unconstitution-ally suspended the writ of habeas corpus.

We find it unnecessary to reach either of these argu-ments. Ordinary principles of statutory construction suffice to rebut the Government's theory-at least insofar as this case, which was pending at the time the DTA was enacted, is concerned.

The Government acknowledges that only paragraphs (2) and (3) of subsection (e) are expressly made applicable to pending cases, see ¤1005(h)(2), 119 Stat. 2743-2744, but argues that the omission of paragraph (1) from the scope of that express statement is of no moment. This is so, we are told, because Congress' failure to expressly reserve federal courts' jurisdiction over pending cases erects a presumption against jurisdiction, and that presumption is rebutted by neither the text nor the legislative history of the DTA.

The first part of this argument is not entirely without support in our precedents. We have in the past "applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying con?duct occurred or when the suit was filed." Landgraf v. USI Film Products, 511 U. S. 244, 274 (1994) (citing Bruner v. United States, 343 U. S. 112 (1952); Hallowell v. Commons, 239 U. S. 506 (1916È; see Republic of Austria v. Altmann, 541 U. S. 677, 693 (2004). But the "presump?tion" that these cases have applied is more accurately viewed as the nonapplication of another presumption?viz., the presumption against retroactivity-in certain limited circumstances.⁵ If a statutory provision "would

taken, be, and the same is hereby repealed.''' 7 Wall., at 508.

5S_ee Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 951 (1997) ("The fact that courts often apply newly enacted juris-diction-allocating statutes to pending cases merely evidences certain limited circumstances failing to meet the conditions for our generally

operate retroactively" as applied to cases pending at the time the provision was enacted, then "our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." Landgraf, 511 U. S., at 280. We have explained, however, that, unlike other intervening changes in the law, a jurisdiction?conferring or jurisdiction-stripping statute usually "takes away no substantive right but simply changes the tribunal that is to hear the case." Hallowell, 239 U. S., at 508. If that is truly all the statute does, no retroactivity problem arises because the change in the law does not "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with re?spect to transactions already completed." Landgraf, 511 U. S., at 280.⁶ And if a new rule has no retroactive effect, the presumption against retroactivity will not prevent its application to a case that was already pending when the new rule was enacted.

That does not mean, however, that all jurisdiction?stripping provisions-or even all such provisions that truly lack retroactive effect-must apply to cases pending at the time of their enactment.⁷ "[N]ormal rules of con-

applicable presumption against retroactivity .. .").

6 Cf. Hughes Aircraft, 520 U. S., at 951 ("Statutes merely addressing which court shall have jurisdiction to entertain a particular cause of action can fairly be said merely to regulate the secondary conduct of litigation and not the underlying primary conduct of the parties" (emphasis in originalÈ.

7In his insistence to the contrary, JUSTICE SCALIA reads too much into Bruner v. United States, 343 U. S. 112 (1952), Hallowell v. Commons, 239 U. S. 506 (1916), and Insurance Co. v. Ritchie, 5 Wall. 541 (1867). See post, at 2-4 (dissenting opinion). None of those cases says that the absence of an express provision reserving jurisdiction over pending cases trumps or renders irrelevant any other indications of congres-sional intent. Indeed, Bruner itself relied on such other indications- including a negative inference drawn from the statutory text, cf. infra, at 13-to support its conclusion that jurisdiction was not available. The Court observed that (1) Congress had been put on notice by prior lower

struction," including a contextual reading of the statutory language, may dictate otherwise. Lindh v. Murphy, 521 U. S. 320, 326 (1997).8 A familiar principle of statutory construction, relevant both in Lindh and here, is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute. See id., at 330; see also, e.g., Russello v. United States, 464 U. S. 16, 23 (1983) ('''[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion"'). The Court in Lindh relied on this reasoning to conclude that certain limitations on the availability of habeas relief imposed by AEDPA applied only to cases filed after that statute's effective date. Congress' failure to identify the temporal reach of those limitations, which governed noncapital cases, stood in contrast to its express command in the same legislation that new rules governing habeas petitions in capital cases "apply to cases pending on or after the date of enactment." ¤107(c), 110 Stat. 1226; see Lindh, 521 U. S., at 329-330. That contrast, combined with the fact that the amendments at issue "affect [ed] substantive entitlement to relief," id., at 327, warranted

court cases addressing the Tucker Act that it ought to specifically reserve jurisdiction over pending cases, see 343 U. S., at 115, and (2) in contrast to the congressional silence concerning reservation of jurisdic-tion, reservation had been made of '''any rights or liabilities' existing at the effective date of the Act" repealed by another provision of the Act, ibid., n. 7.

8The question in Lindh was whether new limitations on the avail-ability of habeas relief imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, applied to habeas actions pending on the date of AEDPA's enactment. We held that they did not. At the outset, we rejected the State's argument that, in the absence of a clear congressional statement to the contrary, a "proce-dural" rule must apply to pending cases. 521 U. S., at 326.

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drawing a negative inference.

A like inference follows a fortiori from Lindh in this case. "If ... Congress was reasonably concerned to ensure that [¤¤1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [¤1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases." Id., at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh. In Lindh, the provi-sions to be contrasted had been drafted separately but were later "joined together and ... considered simultane-ously when the language raising the implication was inserted." Id., at 330. We observed that Congress' tandem review and approval of the two sets of provisions strength-ened the presumption that the relevant omission was deliberate. Id., at 331; see also Field v. Mans, 516 U. S. 59, 75 (1995) ("The more apparently deliberate the con-trast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simul-taneously in relevant respects"). Here, Congress not only considered the respective temporal reaches of paragraphs (1), (2), and (3) of subsection (e) together at every stage, but omitted paragraph (1) from its directive that para-graphs (2) and (3) apply to pending cases only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within the scope of that directive. Compare DTA ¤1005(h)(2), 119 Stat. 2743-2744, with 151 Congo 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

9That paragraph (1), along with paragraphs (2) and (3), is to "take effect on the date of enactment," DTA ¤1005(h)(1), 119 Stat. 2743, is not dispositive; "a 'statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.''' INS v. St. Cyr, 533 U. S.

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that would have achieved the result the Government urges here weighs heavily against the Government's interpreta?tion. See Doe v. Chao, 540 U. S. 614, 621-623 (2004).1⁰

289,317 (2001) (quoting Landgrafv. USI Film Products, 511 U. S. 244, 257 (1994È.. Certainly, the "effective date" provision cannot bear the weight JUSTICE SCALIA would place on it. See post, at 5, and n. 1. Congress deemed that provision insufficient, standing alone, to render subsections (e) (2) and (e)(3) applicable to pending cases; hence its adoption of subsection (h)(2). JUSTICE SCALIA seeks to avoid reducing subsection (h)(2) to a mere redundancy-a consequence he seems to acknowledge must otherwise follow from his interpretation-by specu-lating that Congress had special reasons, not also relevant to subsec-tion (e)(l), to worry that subsections (e)(2) and (e)(3) would be ruled inapplicable to pending cases. As we explain infra, at 17, and n. 12, that attempt fails. note that statements made by Senators preceding passage of the Act lend further support to what the text of the DTA and its draft-ing history already make plain. Senator Levin, one of the sponsors of the final bill, objected to earlier versions of the Act's "effective date" provision that would have made subsection (e)(l) applicable to pending cases. See, e.g., 151 Congo Rec. S12667 (Nov. 10, 2005) (amendment proposed by Sen. Graham that would have rendered what is now subsection (e)(l) applicable to "any application or other action that is pending on or after the date of the enactment of this Act"). Senator Levin urged adoption of an alternative amendment that "would apply only to new habeas cases filed after the date of enactment." Id., at S12802 (Nov. 15, 2005). That alternative amendment became the text of subsection (h)(2). (In light of the extensive discussion of the DTA's effect on pending cases prior to passage of the Act, see, e.g., id., at S12664 (Nov. 10, 2005); id., at S12755 (Nov. 14, 2005); id., at S12799-S12802 (Nov. 15, 2005); id., at S14245, S14252-S14253, S14257-S14258, S14274-S14275 (Dec. 21, 2005), it cannot be said that the changes to subsection (h)(2) were inconsequential. Cf. post, at 14 (SCALIA, J., dissenting).)

While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's conten-tion that the final version of the Act preserved jurisdiction over pending habeas cases, see 151 Congo 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 Congo Rec. S14260 (statement of Sen. Kyl) ("I would like to say a few words about the now-completed National Defense Authorization Act

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The Government nonetheless offers two reasons why, in its view, no negative inference may be drawn in favor of jurisdiction. First, it asserts that Lindh is inapposite because "Section 1005(e)(1) and (h)(l) remove jurisdiction, while Section 1005(e)(2), (3) and (h)(2) create an exclusive review mechanism and define the nature of that review." Reply Brief in Support of Respondents' Motion to Dismiss 4. Because the provisions being contrasted "address wholly distinct subject matters," Martin v. Hadix, 527 U. S. 343, 356 (1999), the Government argues, Congress' different treatment of them is of no significance.

This argument must fail because it rests on a false dis-tinction between the "jurisdictional" nature of subsection (e)(l) and the "procedural" character of subsections (e)(2) and (e)(3). In truth, all three provisions govern jurisdic-tion over detainees' claims; subsection (e)(l) addresses jurisdiction in habeas cases and other actions "relating to any aspect of the detention," while subsections (e)(2) and (3) vest exclusive, 11 but limited, jurisdiction in the Court of

for fiscal year 2006" (emphasis addedÈ. All statements made during the debate itself support Senator Levin's understanding that the final text of the DTA would not render subsection (e)(l) applicable to pend-ing cases. See, e.g., id., at S14245, S14252-S14253, S14274-S14275 (Dec. 21, 2005). The statements that JUSTICE SCALIA cites as evidence to the contrary construe subsection (e)(3) to strip this Court of jurisdic-tion, see post, at 12, n. 4 (dissenting opinion) (quoting 151 Congo Rec. S12796 (Nov. 15, 2005) (statement of Sen. SpecterÈ-a construction that the Government has expressly disavowed in this litigation, see n. 11, infra. The inapposite November 14, 2005, statement of Senator Graham, which JUSTICE SCALIA cites as evidence of that Senator's "assumption that pending cases are covered," post, at 12, and n. 3 (citing 151 Congo Rec. S12756 (Nov. 14, 2005È, follows directly after the uncontradicted statement of his co-sponsor, Senator Levin, assuring members of the Senate that "the amendment will not strip the courts of jurisdiction over [pending] cases." Id., at S12755.

11 The District of Columbia Circuit's jurisdiction, while "exclusive" in one sense, would not bar this Court's review on appeal from a decision under the DTA. See Reply Brief in Support of Respondents' Motion to

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Appeals for the District of Columbia Circuit to review "final decision[s]" of CSRTs and military commissions.

That subsection (e)(l) strips jurisdiction while subsec-tions (e)(2) and (e)(3) restore it in limited form is hardly a distinction upon which a negative inference must founder. JUSTICE SCALIA, in arguing to the contrary, maintains that Congress had "ample reason" to provide explicitly for application of subsections (e)(2) and (e)(3) to pending cases because "jurisdiction-stripping" provisions like subsection (e)(l) have been treated differently under our retroactivity jurisprudence than "jurisdiction-conferring" ones like subsections (e)(2) and (e)(3). Post, at 8 (dissenting opin-ion); see also Reply Brief in Support of Respondents' Mo-tion to Dismiss 5-6. That theory is insupportable. As-suming arguendo that subsections (e)(2) and (e)(3) "confer new jurisdiction (in the D. C. Circuit) where there was none before," post, at 8 (emphasis in original); but see Rasul v. Bush, 542 U. S. 466 (2004), and that our prece-dents can be read to "strongly indicat[e]" that jurisdiction-creating statutes raise special retroactivity concerns not also raised by jurisdiction-stripping statutes, post, at 8,12 subsections (e)(2) and (e)(3) "confer" jurisdiction in a man-

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

12This assertion is itself highly questionable. The cases that JUSTICE SCALIA cites to support his distinction are Republic of Austria v. Altmann, 541 U. S. 677 (2004), and Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939 (1997). See post, at 8. While the Court in both of those cases recognized that statutes "creating" jurisdic-tion may have retroactive effect if they affect "substantive" rights, see Altmann, 541 U. S., at 695, and n. 15; Hughes Aircraft, 520 U. S., at 951, we have applied the same analysis to statutes that have jurisdic-tion-stripping effect, see Lindh v. Murphy, 521 U. S. 320, 327-328 (1997); id., at 342-343 (Rehnquist, C. J., dissenting) (construing AEDPA's amendments as "ousting jurisdiction").

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ner that cannot conceivably give rise to retroactivity ques?tions under our precedents. The provisions impose no additional liability or obligation on any private party or even on the United States, unless one counts the burden of litigating an appeal-a burden not a single one of our cases suggests triggers retroactivity concerns.1³ Moreover, it strains credulity to suggest that the desire to reinforce the application of subsections (e)(2) and (e)(3) to pending cases drove Congress to exclude subsection (e)(l) from ¤ 1 005(h)(2).

The Government's second objection is that applying subsections (e)(2) and (e)(3) but not (e)(l) to pending cases "produces an absurd result" because it grants (albeit only temporarily) dual jurisdiction over detainees' cases in circumstances where the statute plainly envisions that the District of Columbia Circuit will have "exclusive" and immediate jurisdiction over such cases. Reply Brief in Support of Respondents' Motion to Dismiss 7. But the premise here is faulty; subsections (e)(2) and (e)(3) grant jurisdiction only over actions to "determine the validity of any final decision" of a CSRT or commission. Because Hamdan, at least, is not contesting any "final decision" of a CSRT or military commission, his action does not fall within the scope of subsection (e)(2) or (e)(3). There is, then, no absurdity.1⁴

13S_ee Landgraf, 511 U. S., at 271, n. 25 (observing that "the great majority of our decisions relying upon the antiretroactivity presumption have involved intervening statutes burdening private parties," though "we have applied the presumption in cases involving new monetary obligations that fell only on the government" (emphasis addedÈ; see also Altmann, 541 U. S., at 728-729 (KENNEDY, J., dissenting) (explain-ing that if retroactivity concerns do not arise when a new monetary obligation is imposed on the United States it is because "Congress, by virtue of authoring the legislation, is itself fully capable of protecting the Federal Government from having its rights degraded by retroactive laws").

14 There may be habeas cases that were pending in the lower courts at

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Opinion of the Court

The Government's more general suggestion that Con-gress can have had no good reason for preserving habeas jurisdiction over cases that had been brought by detainees prior to enactment of the DTA not only is belied by the legislative history, see n. 10, supra, but is otherwise with-out merit. There is nothing absurd about a scheme under which pending habeas actions-particularly those, like this one, that challenge the very legitimacy of the tribu-nals whose judgments Congress would like to have re-viewed-are preserved, and more routine challenges to final decisions rendered by those tribunals are carefully channeled to a particular court and through a particular lens of review.

Finally, we cannot leave unaddressed JUSTICE SCALIA's contentions that the "meaning of ¤1005(e)(1) is entirely clear," post, at 6, and that "the plain import of a statute repealing jurisdiction is to eliminate the power to consider and render judgment-in an already pending case no less than in a case yet to be filed," post, at 3 (emphasis in original). Only by treating the Bruner rule as an inflexible trump (a thing it has never been, see n. 7, supra) and ignoring both the rest of ¤1005's text and its drafting history can one conclude as much. Congress here ex-pressly provided that subsections (e)(2) and (e)(3) applied to pending cases. It chose not to so provide-after having been presented with the option-for subsection (e)(l). The omission is an integral part of the statutory scheme that muddies whatever "plain meaning" may be discerned from blinkered study of subsection (e)(l) alone. The dissent's speculation about what Congress might have intended by the omission not only is counterfactual, cf. n. 10, supra

the time the DTA was enacted that do qualify as challenges to "final decision[s]" within the meaning of subsection (e) (2) or (e)(3). We express no view about whether the DTA would require transfer of such an action to the District of Columbia Circuit.

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(recounting legislative history), but rests on both a mis-construction of the DTA and an erroneous view our prece-dents, see supra, at 17, and n. 12.

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

III

Relying on our decision in Councilman, 420 U. S. 738, the Government argues that, even if we have statutory jurisdiction, we should apply the "judge-made rule that civilian courts should await the final outcome of on-going military proceedings before entertaining an attack on those proceedings." Brief for Respondents 12. Like the District Court and the Court of Appeals before us, we reject this argument.

In Councilman, an army officer on active duty was referred to a court-martial for trial on charges that he violated the UCMJ by selling, transferring, and possessing marijuana. 420 U. S., at 739-740. Objecting that the alleged offenses were not '''service connected,''' id., at 740, the officer filed suit in Federal District Court to enjoin the proceedings. He neither questioned the lawfulness of courts-martial or their procedures nor disputed that, as a serviceman, he was subject to court-martial jurisdiction. His sole argument was that the subject matter of his case did not fall within the scope of court-martial authority. See id., at 741, 759. The District Court granted his re-quest for injunctive relief, and the Court of Appeals

15Because we conclude that ¤1005(e)(1) does not strip federal courts' jurisdiction over cases pending on the date of the DTA's enactment, we do not decide whether, if it were otherwise, this Court would nonethe-less retain jurisdiction to hear Hamdan's appeal. Cf. supra, at 10. Nor do we decide the manner in which the canon of constitutional avoidance should affect subsequent interpretation of the DTA. See, e.g., St. Cyr, 533 U. S., at 300 (a construction of a statute "that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions").

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affirmed.

We granted certiorari and reversed. Id., at 761. We did not reach the merits of whether the marijuana charges were sufficiently "service connected" to place them within the subject-matter jurisdiction of a court-martial. Instead, we concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending court-martial proceedings against members of the Armed Forces,16 and further that there was nothing in the par-ticular circumstances of the officer's case to displace that general rule. See id., at 740, 758.

Councilman identifies two considerations of comity that together favor abstention pending completion of ongoing court- martial proceedings against service personnel. See New v. Cohen, 129 F. 3d 639, 643 (CADC 1997); see also 415 F. 3d, at 36-37 (discussing Councilman and New). First, military discipline and, therefore, the efficient op-eration of the Armed Forces are best served if the military justice system acts without regular interference from civilian courts. See Councilman, 420 U. S., at 752. Sec-ond, federal courts should respect the balance that Con-gress struck between military preparedness and fairness to individual service members when it created "an inte-grated system of military courts and review procedures, a

16 Councilman distinguished service personnel from civilians, whose challenges to ongoing military proceedings are cognizable in federal court. See, e.g., United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955). As we explained in Councilman, abstention is not appropriate in cases in which individuals raise "'substantial arguments denying the right of the military to try them at all,''' and in which the legal chal-lenge "turn[s] on the status of the persons as to whom the military asserted its power." 420 U. S., at 759 (quoting Noyd v. Bond, 395 U. S. 683, 696, n. 8 (1969È. 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.

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critical element of which is the Court of Military Appeals, consisting of civilian judges 'completely removed from all military influence or persuasion ... .''' Id., at 758 (quot?ing H. R. Rep. No. 491, 81st Cong., 1st Sess., p. 7 (1949È.. Just as abstention in the face of ongoing state criminal proceedings is justified by our expectation that state courts will enforce federal rights, so abstention in the face of ongoing court-martial proceedings is justified by our expectation that the military court system established by Congress-with its substantial procedural protections and provision for appellate review by independent civilian judges-"will vindicate servicemen's constitutional rights," 420 U. S., at 758. See id., at 755-758.1⁷

The same cannot be said here; indeed, neither of the comity considerations identified in Councilman weighs in favor of abstention in this case. First, Hamdan is not a member of our Nation's Armed Forces, so concerns about military discipline do not apply. Second, the tribunal convened to try Hamdan is not part of the integrated system of military courts, complete with independent review panels, that Congress has established. Unlike the officer in Councilman, Hamdan has no right to appeal any conviction to the civilian judges of the Court of Military Appeals (now called the United States Court of Appeals for the Armed Forces, see Pub. L. 103-337, 108 Stat. 2831). Instead, under Dept. of Defense Military Commis-

17S_ee also Noyd, 395 U. S., at 694-696 (noting that the Court of Mili-tary Appeals consisted of "disinterested civilian judges," and concluding that there was no reason for the Court to address an Air Force Captain's argument that he was entitled to remain free from confinement pending appeal of his conviction by court-martial "when the highest military court stands ready to consider petitioner's arguments"). Cf. Parisi v. Davidson, 405 U. S. 34, 41-43 (1972) ("Under accepted principles of comity, the court should stay its hand only if the relief the petitioner seeks ... would also be available to him with reasonable promptness and certainty through the machinery of the military judicial system in its processing of the court-martial charge").

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sion Order No.1 (Commission Order No.1), which was issued by the President on March 21, 2002, and amended most recently on August 31, 2005, and which governs the procedures for Hamdan's commission, any conviction would be reviewed by a panel consisting of three military officers designated by the Secretary of Defense. Commis-sion Order No.1 ¤6(H)(4). Commission Order No.1 pro-vides that appeal of a review panel's decision may be had only to the Secretary of Defense himself, ¤6(H)(5), and then, finally, to the President, ¤6(H)(6).18

We have no doubt that the various individuals assigned review power under Commission Order No.1 would strive to act impartially and ensure that Hamdan receive all protections to which he is entitled. Nonetheless, these review bodies clearly lack the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces, and thus bear insufficient concep?tual similarity to state courts to warrant invocation of abstention principles.¹⁹

In sum, neither of the two comity considerations under-lying our decision to abstain in Councilman applies to the circumstances of this case. Instead, this Court's decision in Quirin is the most relevant precedent. In Quirin, seven German saboteurs were captured upon arrival by subma-rine in New York and Florida. 317 U. S., at 21. The Presi-dent convened a military commission to try the saboteurs, who then filed habeas corpus petitions in the United

18If he chooses, the President may delegate this ultimate decision-making authority to the Secretary of Defense. See ¤6(H)(6).

19JUSTICE SCALIA chides us for failing to include the District of Co-lumbia Circuit's review powers under the DTA in our description of the review mechanism erected by Commission Order No. 1. See post, at 22. Whether or not the limited review permitted under the DTA may be treated as akin to the plenary review exercised by the Court of Appeals for the Armed Forces, petitioner here is not afforded a right to such review. See infra, at 52; ¤1005(e)(3), 119 Stat. 2743.

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States District Court for the District of Columbia challeng-ing their trial by commission. We granted the saboteurs' petition for certiorari to the Court of Appeals before judg-ment. See id., at 19. Far from abstaining pending the conclusion of military proceedings, which were ongoing, we convened a special Term to hear the case and expedited our review. That course of action was warranted, we explained, "[i]n view of the public importance of the ques-tions raised by [the cases] and of the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty, and because in our opinion the public interest required that we consider and decide those questions without any avoidable delay." Ibid.

As the Court of Appeals here recognized, Quirin "pro?vides a compelling historical precedent for the power of civilian courts to entertain challenges that seek to inter?rupt the processes of military commissions." 415 F. 3d, at 36.²⁰ The circumstances of this case, like those in Quirin,

20 Having correctly declined to abstain from addressing Hamdan's challenge to the lawfulness of the military commission convened to try him, the Court of Appeals suggested that Councilman abstention nonetheless applied to bar its consideration of one of Hamdan's argu-ments-namely, that his commission violated Article 3 of the Third Geneva Convention, 6 U. S. T. 3316, 3318. See Part VI, infra. Al-though the Court of Appeals rejected the Article 3 argument on the merits, it also stated that, because the challenge was not "jurisdic-tional," it did not fall within the exception that Schlesinger v. Council-man, 420 U. S. 738 (1975), recognized for defendants who raise sub-stantial arguments that a military tribunal lacks personal jurisdiction over them. See 415 F. 3d, at 42.

In reaching this conclusion, the Court of Appeals conflated two distinct inquiries: (1) whether Hamdan has raised a substantial argu-ment that the military commission lacks authority to try him; and, more fundamentally, (2) whether the comity considerations underlying Councilman apply to trigger the abstention principle in the first place. As the Court of Appeals acknowledged at the beginning of its opinion, the first question warrants consideration only if the answer to the

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simply do not implicate the "obligations of comity" that, under appropriate circumstances, justify abstention. Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 733 (1996) (KENNEDY, J., concurring).

Finally, the Government has identified no other "impor-tant countervailing interest" that would permit federal courts to depart from their general "duty to exercise the jurisdiction that is conferred upon them by Congress." Id., at 716 (majority opinion). To the contrary, Hamdan and the Government both have a compelling interest in know-ing in advance whether Hamdan may be tried by a mili-tary commission that arguably is without any basis in law and operates free from many of the procedural rules pre-scribed by Congress for courts-martial-rules intended to safeguard the accused and ensure the reliability of any conviction. While we certainly do not foreclose the possi-bility that abstention may be appropriate in some cases seeking review of ongoing military commission proceed-ings (such as military commissions convened on the battle-field), the foregoing discussion makes clear that, under our precedent, abstention is not justified here. We therefore proceed to consider the merits of Hamdan's challenge.

IV

The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity. See W. Winthrop, Military Law and Precedents 831 (rev. 2d ed. 1920) (hereinafter Winthrop).

second is yes. See 415 F. 3d, at 36-37. Since, as the Court of Appeals properly concluded, the answer to the second question is in fact no, there is no need to consider any exception.

At any rate, it appears that the exception would apply here. As discussed in Part VI, infra, Hamdan raises a substantial argument that, because the military commission that has been convened to try him is not a "'regularly constituted court'" under the Geneva Conven-tions, it is ultra vires and thus lacks jurisdiction over him. Brief for Petitioner 5.

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Though foreshadowed in some respects by earlier tribu-nals like the Board of General Officers that General Wash-ington convened to try British Major John Andre for spy-ing during the Revolutionary War, the commission "as such" was inaugurated in 1847. Id., at 832; G. Davis, A Treatise on the Military Law of the United States 308 (2d ed. 1909) (hereinafter Davis). As commander of occupied Mexican territory, and having available to him no other tribunal, General Winfield Scott that year ordered the establishment of both "'military commissions'" to try ordinary crimes committed in the occupied territory and a "council of war" to try offenses against the law of war. Winthrop 832 (emphases in original).

When the exigencies of war next gave rise to a need for use of military commissions, during the Civil War, the dual system favored by General Scott was not adopted. Instead, a single tribunal often took jurisdiction over ordinary crimes, war crimes, and breaches of military orders alike. As further discussed below, each aspect of that seemingly broad jurisdiction was in fact supported by a separate military exigency. Generally, though, the need for military commissions during this period-as during the Mexican War-was driven largely by the then very limited jurisdiction of courts-martial: "The occasion for the mili-tary commission arises principally from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain specific offences defined in a written code." Id., at 831 (emphasis in original).

Exigency alone, of course, will not justify the establish-ment and use of penal tribunals not contemplated by Article I, ¤8 and Article III, ¤ 1 of the Constitution unless some other part of that document authorizes a response to the felt need. See Ex parte Milligan, 4 Wall. 2, 121 (1866) ("Certainly no part of the judicial power of the country was conferred on [military commissions]"); Ex parte Val-

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landigham, 1 Wall. 243, 251 (1864); see also Quirin, 317 U. S., at 25 ("Congress and the President, like the courts, possess no power not derived from the Constitution"). And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war. See id., at 26-29; In re Yamashita, 327 U. S. 1, 11 (1946).

The Constitution makes the President the "Commander in Chief' of the Armed Forces, Art. II, ¤2, cl. 1, but vests in Congress the powers to "declare War ... and make Rules concerning Captures on Land and Water," Art. I, ¤8, cl. 11, to "raise and support Armies," id., cl. 12, to "define and punish ... Offences against the Law of Nations," id., cl. 10, and "To make Rules for the Government and Regula-tion of the land and naval Forces," id., cl. 14. The inter-play between these powers was described by Chief Justice Chase in the seminal case of Ex parte Milligan:

"The power to make the necessary laws is in Con?gress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exer?cise. But neither can the President, in war more than in peace, intrude upon the proper authority of Con?gress, nor Congress upon the proper authority of the President .... Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, ei?ther of soldiers or civilians, unless in cases of a con?trolling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature." 4 Wall., at 139-140.²¹

21 See also Winthrop 831 ("[I]n general, it is those provisions of the Constitution which empower Congress to 'declare war' and 'raise

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Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions "without the sanction of Congress" in cases of "controlling necessity" is a question this Court has not answered definitively, and need not answer today. For we held in Quirin that Congress had, through Article of War 15, sanctioned the use of military commissions in such circumstances. 317 U. S., at 28 ("By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribu-nals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases"). Article 21 of the UCMJ, the language of which is substantially identical to the old Article 15 and was preserved by Congress after World War 11,22 reads as follows:

"Jurisdiction of courts-martial not exclusive.

"The provisions of this code conferring jurisdiction upon courts-martial shall not be construed as depriv-ing military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such military commissions, pro-vost courts, or other military tribunals." 64 Stat. 115.

We have no occasion to revisit Quirin's controversial characterization of Article of War 15 as congressional authorization for military commissions. Cf. Brief for Legal

armies,' and which, in authorizing the initiation of war, authorize the employment of all necessary and proper agencies for its due prosecu-tion, from which this tribunal derives its original sanction" (emphasis in originalÈ.

22Article 15 was first adopted as part of the Articles of War in 1916.

See Act of Aug. 29, 1916, ch. 418, ¤3, Art. 15, 39 Stat. 652. When the Articles of War were codified and re-enacted as the UCMJ in 1950, Congress determined to retain Article 15 because it had been "con-strued by the Supreme Court (Ex Parte Quirin, 317 U. S. 1 (1942È." S. Rep. No. 486, 81st Cong., 1st Sess., 13 (1949).

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Scholars and Historians as Amici Curiae 12-15. Contrary to the Government's assertion, however, even Quirin did not view the authorization as a sweeping mandate for the President to "invoke military commissions when he deems them necessary." Brief for Respondents 17. Rather, the Quirin Court recognized that Congress had simply pre?served what power, under the Constitution and the com?mon law of war, the President had had before 1916 to convene military commissions-with the express condition that the President and those under his command comply with the law of war. See 317 U. S., at 28-29.²³ That much is evidenced by the Court's inquiry, following its conclu-sion that Congress had authorized military commissions, into whether the law of war had indeed been complied with in that case. See ibid.

The Government would have us dispense with the in-quiry that the Quirin Court undertook and find in either the AUMF or the DTA specific, overriding authorization for the very commission that has been convened to try Hamdan. Neither of these congressional Acts, however, expands the President's authority to convene military commissions. First, while we assume that the AUMF activated the President's war powers, see Hamdi v. Rums-feld, 542 U. S. 507 (2004) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 28-29; see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the

23Whether or not the President has independent power, absent con-gressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

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UCMJ. Cf. Yerger, 8 Wall., at 105 ("Repeals by implica-tion are not favored").24

Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Article 21 or the AUMF, was enacted after the President had con-vened Hamdan's commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. The DTA obviously "recognize[s]" the existence of the Guantanamo Bay commissions in the weakest sense, Brief for Respondents 15, because it references some of the military orders governing them and creates limited judi-cial review of their "final decision[s]," DTA ¤1005(e)(3), 119 Stat. 2743. But the statute also pointedly reserves judgment on whether "the Constitution and laws of the United States are applicable" in reviewing such decisions and whether, if they are, the "standards and procedures" used to try Hamdan and other detainees actually violate the "Constitution and laws." Ibid.

Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the "Constitution and laws," including the law of war. Absent a more specific congressional authorization, the task of this Court is, as it was in Quirin, to decide whether Hamdan's military commission is so justified. It is to that inquiry we now turn.

24 On this point, it is noteworthy that the Court in Ex parte Quirin, 317 U. S. 1 (1942), looked beyond Congress' declaration of war and accompanying authorization for use of force during World War II, and relied instead on Article of War 15 to find that Congress had authorized the use of military commissions in some circumstances. See id., at 26-29. JUSTICE THOMAS' assertion that we commit "error" in reading Article 21 of the UCMJ to place limitations upon the President's use of military commissions, see post, at 5 (dissenting opinion), ignores the reasoning in Quirin.

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v

The common law governing military commissions may be gleaned from past practice and what sparse legal prece?dent exists. Commissions historically have been used in three situations. See Bradley & Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2132-2133 (2005); Winthrop 831-846; Hear?ings on H. R. 2498 before the Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., 975 (1949). First, they have substituted for civilian courts at times and in places where martial law has been declared. Their use in these circumstances has raised constitutional questions, see Duncan v. Kahanamoku, 327 U. S. 304 (1946); Milligan, 4 Wall., at 121-122, but is well recog?nized.²⁵ See Winthrop 822, 836-839. Second, commis-sions have been established to try civilians "as part of a temporary military government over occupied enemy territory or territory regained from an enemy where civil-ian government cannot and does not function." Duncan, 327 U. S., at 314; see Milligan, 4 Wall., at 141-142 (Chase, C. J., concurring in judgment) (distinguishing "MARTIAL LAW PROPER" from "MILITARY GOVERNMENT" in occupied territory). Illustrative of this second kind of commission is

25The justification for, and limitations on, these commissions were summarized in Milligan:

"If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war." 4 Wall., at 127 (emphases in original).

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the one that was established, with jurisdiction to apply the German Criminal Code, in occupied Germany following the end of World War II. See Madsen v. Kinsella, 343 U. S. 341, 356 (1952).26

The third type of commission, convened as an "incident to the conduct of war" when there is a need "to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war," Quirin, 317 U. S., at 28-29, has been described as "utterly different" from the other two. Bickers, Military Commissions are Constitutionally Sound:

A Response to Professors Katyal and Tribe, 34 Tex. Tech. L. Rev. 899, 902 (2002-2003).27 Not only is its jurisdiction limited to offenses cognizable during time of war, but its role is primarily a factfinding one-to determine, typically on the battlefield itself, whether the defendant has vio-lated the law of war. The last time the U. S. Armed Forces

26The limitations on these occupied territory or military government commissions are tailored to the tribunals' purpose and the exigencies that necessitate their use. They may be employed "pending the estab-lishment of civil government," Madsen, 343 U. S., at 354-355, which may in some cases extend beyond the "cessation of hostilities," id., at 348.

27 So much may not be evident on cold review of the Civil War trials often cited as precedent for this kind of tribunal because the commis-sions established during that conflict operated as both martial law or military government tribunals and law-of-war commissions. Hence, "military commanders began the practice [during the Civil War] of using the same name, the same rules, and often the same tribunals" to try both ordinary crimes and war crimes. Bickers, 34 Tex. Tech. L. Rev., at 908. "For the first time, accused horse thieves and alleged saboteurs found themselves subject to trial by the same military commission." Id., at 909. The Civil War precedents must therefore be considered with caution; as we recognized in Quirin, 317 U. S., at 29, and as further discussed below, commissions convened during time of war but under neither martial law nor military government may try only offenses against the law of war.

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used the law-of-war military commission was during World War II. In Quirin, this Court sanctioned President Roosevelt's use of such a tribunal to try Nazi saboteurs captured on American soil during the War. 317 U. S. 1. And in Yamashita, we held that a military commission had jurisdiction to try a Japanese commander for failing to prevent troops under his command from committing atrocities in the Philippines. 327 U. S. 1.

Quirin is the model the Government invokes most fre-quently to defend the commission convened to try Ham-dan. That is both appropriate and unsurprising. Since Guantanamo Bay is neither enemy-occupied territory nor under martial law, the law-of-war commission is the only model available. At the same time, no more robust model of executive power exists; Quirin represents the high-water mark of military power to try enemy combatants for warcnmes.

The classic treatise penned by Colonel William Win-throp, whom we have called "the 'Blackstone of Military Law,''' Reid v. Covert, 354 U. S. 1, 19, n. 38 (1957) (plural-ity opinion), describes at least four preconditions for exer-cise of jurisdiction by a tribunal of the type convened to try Hamdan. First, "[a] military commission, (except where otherwise authorized by statute), can legally assume jurisdiction only of offenses committed within the field of the command of the convening commander." Winthrop 836. The "field of command" in these circumstances means the "theatre of war." Ibid. Second, the offense charged "must have been committed within the period of the war."28 Id., at 837. No jurisdiction exists to try offenses "committed either before or after the war." Ibid. Third, a military commission not established pursuant to martial

28 If the commission is established pursuant to martial law or military government, its jurisdiction extends to offenses committed within "the exercise of military government or martial law." Winthrop 837.

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law or an occupation may try only "[i]ndividuals of the enemy's army who have been guilty of illegitimate warfare or other offences in violation of the laws of war" and mem?bers of one's own army "who, in time of war, become chargeable with crimes or offences not cognizable, or triable, by the criminal courts or under the Articles of war." Id., at 838. Finally, a law-of-war commission has jurisdiction to try only two kinds of offense: ''Violations of the laws and usages of war cognizable by military tribu?nals only," and "[b]reaches of military orders or regula?tions for which offenders are not legally triable by court?martial under the Articles of war." Id., at 839.²⁹

All parties agree that Colonel Winthrop's treatise accu-rately describes the common law governing military com-missions, and that the jurisdictional limitations he identi-fies were incorporated in Article of War 15 and, later, Article 21 of the UCMJ. It also is undisputed that Ham-dan's commission lacks jurisdiction to try him unless the charge "properly set[s] forth, not only the details of the act charged, but the circumstances conferring jurisdic-tion." Id., at 842 (emphasis in original). The question is whether the preconditions designed to ensure that a mili-tary necessity exists to justify the use of this extraordi-nary tribunal have been satisfied here.

The charge against Hamdan, described in detail in Part I, supra, alleges a conspiracy extending over a number of years, from 1996 to November 2001.³⁰ All but two months

29Winthrop adds as a fifth, albeit not-always-complied-with, criterion that "the trial must be had within the theatre of war ... ; that, if held elsewhere, and where the civil courts are open and available, the proceedings and sentence will be coram non judice." Id., at 836. The Government does not assert that Guantanamo Bay is a theater of war, but instead suggests that neither Washington, D. C., in 1942 nor the Philippines in 1945 qualified as a "war zone" either. Brief for Respon-dents 27; cf. Quirin, 317 U. S. 1; In re Yamashita, 327 U. S. 1 (1946).

30The elements of this conspiracy charge have been defined not by Congress but by the President. See Military Commission Instruction

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of that more than 5-year-long period preceded the attacks of September 11,2001, and the enactment of the AUMF?the Act of Congress on which the Government relies for exercise of its war powers and thus for its authority to convene military commissions.³¹ Neither the purported

No.2, 32 CFR ¤11.6 (2005).

31 JUSTICE THOMAS would treat Osama bin Laden's 1996 declaration of jihad against Americans as the inception of the war. See post, at 7-10 (dissenting opinion). But even the Government does not go so far; although the United States had for some time prior to the attacks of September 11, 2001, been aggressively pursuing al Qaeda, neither in the charging document nor in submissions before this Court has the Government asserted that the President's war powers were activated prior to September 11, 2001. Cf. Brief for Respondents 25 (describing the events of September 11, 2001, as "an act of war" that "triggered a right to deploy military forces abroad to defend the United States by combating al Qaeda"). JUSTICE THOMAS' further argument that the AUMF is "backward looking" and therefore authorizes trial by military commission of crimes that occurred prior to the inception of war is insupportable. See post, at 8, n. 3. If nothing else, Article 21 of the UCMJ requires that the President comply with the law of war in his use of military commissions. As explained in the text, the law of war permits trial only of offenses "committed within the period of the war." Winthrop 837; see also Quirin, 317 U. S., at 28-29 (observing that law-of-war military commissions may be used to try "those enemies who in their attempt to thwart or impede our military effort have violated the law of war" (emphasis addedÈ.. The sources that JUSTICE THOMAS relies on to suggest otherwise simply do not support his position. Colonel Green's short exegesis on military commissions cites Howland for the proposition that "[o]ffenses committed before a formal declaration of war or before the declaration of martial law may be tried by military commission." The Military Commission, 42 Am. J. Int'l L. 832, 848 (1948) (emphases added) (cited post, at 9-10). Assuming that to be true, nothing in our analysis turns on the admitted absence of either a formal declaration of war or a declaration of martial law. Our focus instead is on the September 11, 2001 attacks that the Government characterizes as the relevant "act[s] of war," and on the measure that authorized the President's deployment of military force-the AUMF. Because we do not question the Government's position that the war commenced with the events of September 11, 2001, the Prize Cases, 2 Black 635 (1863) (cited post, at 2, 7, 8, and 10 (THOMAS, J., dissentingÈ,

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agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have oc-curred in a theater of war or on any specified date after September 11, 2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war.

These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a thea-ter of war and during, not before, the relevant conflict. But the deficiencies in the time and place allegations also underscore-indeed are symptomatic of-the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission. See Yamashita, 327 U. S., at 13 ("Neither congressional action nor the military or-ders constituting the commission authorized it to place petitioner on trial unless the charge proffered against him

are not germane to the analysis.

Finally, JUSTICE THOMAS' assertion that Julius Otto Kuehn's trial by military commission "for conspiring with Japanese officials to betray the United States fleet to the Imperial Japanese Government prior to its attack on Pearl Harbor" stands as authoritative precedent for Hamdan's trial by commission, post, at 9, misses the mark in three critical respects. First, Kuehn was tried for the federal espionage crimes under what were then 50 U. S C. ¤¤31, 32, and 34, not with common-law violations of the law of war. See Hearings before the Joint Committee on the Investigation of the Pearl Harbor Attack, 79th Cong., 1st Sess., pt. 30, pp. 3067-3069 (1946). Second, he was tried by martial law commission (a kind of commission JUSTICE THOMAS acknowledges is not relevant to the analysis here, and whose jurisdiction extends to offenses committed within "the exercise of ... martial law," Winthrop 837, see supra, n. 28), not a commission established exclusively to try violations of the law of war. See ibid. Third, the martial law commis-sions established to try crimes in Hawaii were ultimately declared illegal by this Court. See Duncan v. Kahanamoku, 327 U. S. 304, 324 (1946) ("The phrase 'martial law' as employed in [the Hawaiian Organic Act], while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not in-tended to authorize the supplanting of courts by military tribunals").

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is of a violation of the law of war"). 32

32 JUSTICE THOMAS adopts the remarkable view, not advocated by the Government, that the charging document in this case actually includes more than one charge: Conspiracy and several other ill-defined crimes, like "joining an organization" that has a criminal purpose, "'[b]eing a guerilla,''' and aiding the enemy. See post, at 16-21, and n. 9. There are innumerable problems with this approach.

First, the crimes JUSTICE THOMAS identifies were not actually charged. It is one thing to observe that charges before a military commission "'need not be stated with the precision of a common law indictment,''' post, at 15, n. 7 (citation omitted); it is quite another to say that a crime not charged may nonetheless be read into an indict-ment. Second, the Government plainly had available to it the tools and the time it needed to charge petitioner with the various crimes JUSTICE THOMAS refers to, if it believed they were supported by the allegations. As JUSTICE THOMAS himself observes, see post, at 21, the crime of aiding the enemy may, in circumstances where the accused owes allegiance to the party whose enemy he is alleged to have aided, be triable by mili-tary commission pursuant to Article 104 of the UCMJ, 10 U. S. C. ¤904. Indeed, the Government has charged detainees under this provision when it has seen fit to do so. See Brief for David Hicks as Amicus Curiae 7.

Third, the cases JUSTICE THOMAS relies on to show that Hamdan may be guilty of violations of the law of war not actually charged do not support his argument. JUSTICE THOMAS begins by blurring the distinc-tion between those categories of "offender" who may be tried by military commission (e.g., jayhawkers and the like) with the "offenses" that may be so tried. Even when it comes to "'being a guerilla,''' cf. post, at 18, n. 9 (citation omitted), a label alone does not render a person suscepti-ble to execution or other criminal punishment; the charge of "'being a guerilla'" invariably is accompanied by the allegation that the defen-dant "'took up arms'" as such. This is because, as explained by Judge Advocate General Holt in a decision upholding the charge of "'being a guerilla'" as one recognized by "the universal usage of the times," the charge is simply shorthand (akin to "being a spy") for "the perpetration of a succession of similar acts" of violence. Record Books of the Judge Advocate General Office, R. 3, 590. The sources cited by JUSTICE THOMAS confirm as much. See cases cited post, at 18, n. 9.

Likewise, the suggestion that the Nuremberg precedents support Hamdan's conviction for the (uncharged) crime of joining a criminal organization must fail. Cf. post, at 19-21. The convictions of certain high-level Nazi officials for "membership in a criminal organization"

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HAMDAN v. RUMSFELD

Opinion of STEVENS, J.

There is no suggestion that Congress has, in exercise of its constitutional authority to "define and punish ... Offences against the Law of Nations," U. S. Const., Art. I, ¤8, cl. 10, positively identified "conspiracy" as a war crime.³³ As we explained in Quirin, that is not necessarily fatal to the Government's claim of authority to try the alleged offense by military commission; Congress, through Article 21 of the UCMJ, has "incorporated by reference" the common law of war, which may render triable by military commission certain offenses not defined by stat-ute. 317 U. S., at 30. When, however, neither the ele-ments of the offense nor the range of permissible punish-ments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudi-cative and punitive power in excess of that contemplated either by statute or by the Constitution. Cf. Loving v. United States, 517 U. S. 748, 771 (1996) (acknowledging that Congress "may not delegate the power to make laws"); Reid, 354 U. S., at 23-24 ("The Founders envisioned the army as a necessary institution, but one dangerous to lib-erty if not confined within its essential bounds"); The Feder-alist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison) ("The accumulation of all powers legislative, executive and judici-

were secured pursuant to specific provisions of the Charter of the International Military Tribunal that permitted indictment of individual organization members following convictions of the organizations them-selves. See Arts. 9 and 10, in 1 Trial of the Major War Criminals Before the International Military Tribunal 12 (1947). The initial plan to use organizations' convictions as predicates for mass individual trials ultimately was abandoned. See T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 584-585, 638 (1992).

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

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Cite as: 548 U. S. _ (2006)

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Opinion of STEVENS, J.

ary in the same hands . . . may justly be pronounced the very definition of tyranny"). 34

This high standard was met in Quirin; the violation there alleged was, by "universal agreement and practice" both in this country and internationally, recognized as an offense against the law of war. 317 U. S., at 30; see id., at 35-36 ("This precept of the law of war has been so recog-nized in practi