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

Section 821 looks to the “law of war,” not separation-of-powers issues. And §836, as Justice Kennedy notes, concerns procedures, not structure, see ante, at 645.

The plurality, but not Justice Kennedy, suggests that the commission rules are improper insofar as they allow a defendant to be denied access to evidence under some circumstances. See ante, at 633-635. But here, too, if this procedure is used in a particular ease and the accused is convicted, the validity of this procedure can be challenged in the review proceeding in that case. In that context, both the asserted need for the procedure and its impact on the accused can be analyzed in concrete terms.

Even if the formal declaration of war were generally the determinative act in ascertaining the temporal reach of the jurisdiction of a military commission, the AUMF itself is inconsistent with the plurality’s suggestion that such a rule is appropriate in this ease. See ante, at 598-600, 612. The text of the AUMF is backward looking, authorizing the use of “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” §2(a), 115 Stat. 224. Thus, the President’s decision to try Hamdan by military commission—a use of force authorized by the AUMF—for Hamdan’s involvement with al Qaeda prior to September 11, 2001, fits comfortably within the framework of the AUMF. In fact, bringing the September 11 conspira*686tors to justice is the primary point of the AUMF. By contrast, on the plurality’s logic, the AUMF would not grant the President the authority to try Usama bin Laden himself for his involvement in the events of September 11, 2001.

The plurality suggests these authorities are inapplicable because nothing in its “analysis turns on the admitted absence of either a formal declaration of war or a declaration of martial law. Our focus instead is on the . . . AUMF.” Ante, at 599, n. 31. The difference identified by the plurality is purely semantic.- Both Green and Howland confirm that the date of the enactment that establishes a legal basis for forming military commissions—whether it be a declaration of war, a declaration of martial law, or an authorization to use military force—does not limit the jurisdiction of military commissions to offenses committed after that date.

The plurality attempts to evade the import of this historical example by observing that Kuehn was tried before a martial law commission for a violation of federal espionage statutes. Ibid. As an initial matter, the fact that Kuehn was tried before a martial law commission for an offense committed prior to the establishment of martial law provides strong support for the President’s contention that he may try Hamdan for offenses *687committed prior to the enactment of the AUMF. Here the AUMF serves the same function as the declaration of martial law in Hawaii in 1941, establishing legal authority for the constitution of military commissions. Moreover, Kuehn was not tried and punished “by statute, but by the laws and usages of war.” United States v. Kuehn, Board of Review 6 (Office of the Military Governor, Hawaii 1942). Indeed, in upholding the imposition of the death penalty, a sentence “not authorized by the Espionage statutes,” id., at 5, Kuehn’s Board of Review explained that “[t]he fact that persons may be tried and punished ... by a military commission for committing acts defined as offenses by ... federal statutes does not mean that such persons are being tried for violations of such ... statutes; they are, instead, being tried for acts made offenses only by orders of the . . . commanding general,” id,., at 6. Lastly, the import of this example is not undermined by Duncan v. Kakanamoku, 327 U. S. 304 (1946). The question before the Court in that case involved only whether “loyal civilians in loyal territory should have their daily conduct governed by military orders,” id., at 319; it did “not involve the well-established power of the military to exercise jurisdiction over ... enemy belligerents,” id., at 313.

Indeed, respecting the present conflict, the President has found that “the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our Nation recognizes that this new paradigm—ushered in not by us, but by terrorists—requires new thinking in the law of war.” App. 34-35. Under the Court’s approach, the President’s ability to address this “new paradigm” of inflicting death and mayhem would be completely frozen by rules developed in the context of conventional warfare.

It is true that both of these separate offenses are charged under a single heading entitled “CHARGE: CONSPIRACY,” App. to Pet. for Cert. 65a. But that does not mean that they must be treated as a single crime, when the law of war treats them as separate crimes. As we acknowledged in In re Yamashita, 327 U. S. 1 (1946), “charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment.” Id., at 17; cf. W. Birkhimer, Military Government and Martial Law 536 (3d rev. ed. 1914) (hereinafter Birkhimer) (“[I]t would be extremely absurd to expect the same precision in a charge brought before a court-martial as is required to support a conviction before a justice of the peace” (internal quotation marks omitted)). Nevertheless, the plurality contends that Hamdan was “not actually charged,” ante, at 601, n. 32 (emphasis deleted), with being a member in a war-criminal organization. But that position is demonstrably wrong. Hamdan’s charging document expressly charges that he “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose.” App. to Pet. for Cert. 65a. Moreover, the plurality’s contention that we may only look to the label affixed to the charge to determine if the charging document alleges an offense triable by military commission is flatly inconsistent with its treatment of the Civil War eases—where it accepts as valid charges that did not appear in the heading or title of the charging document, or even the listed charge itself, but only in the supporting specification. See, e. g., ante, at 609 (discussing the military commission trial of Wirz). For example, in the Wirz case, Wirz was charged *693with conspiring to violate the laws of war, and that charge was supported with allegations that he personally committed a number of atrocities. The plurality concludes that military commission jurisdiction was appropriate in that case not based upon the charge of conspiracy, but rather based upon the allegations of various atrocities in the specification which were not separately charged. Ante, at 609. Just as these atrocities, not separately charged, were independent violations of the law of war supporting Wirz’s trial by military commission, so too here Hamdan’s membership in al Qaeda and his provision of various forms of assistance to al Qaeda’s top leadership are independent violations of the law of war supporting his trial by military commission.

These observations respecting the law of war were made by the Attorney General in defense of the military commission trial of the Lincoln conspirators. As the foregoing quoted portion of that opinion makes clear, the Attorney General did not, as the plurality maintains, “trea[t] the charge as if it alleged the substantive offense of assassination.” Ante, at 604, n. 35. Rather, he explained that the conspirators’ “high offence against the laws of war” was “complete” when their band was “organized or joined,” and did not depend upon “atrocities committed by such a band.” 11 Op. Atty. Gen. 297, 312 (1865). Moreover, the Attorney General’s conclusions specifically refute the plurality’s unsupported suggestion that I have blurred the line between “those categories of ‘offender’ who may be tried by military commission ... with the ‘offenses’ that may be so tried.” Ante, at 601, n. 32.

The General Orders establishing the jurisdiction for military commissions during the Civil War provided that such offenses were violations of the laws of war cognizable before military commissions. See H. R. Doc. No. 65, 55th Cong., 3d Sess., 164 (1894) (“[PJersons charged with the violation of the laws of war as spies, bridge-burners, marauders, &c., will ... be held for trial under such charges”); id., at 234 (“[T]here are numerous rebels . . . that. . . furnish the enemy with arms, provisions, clothing, horses and means of transportation; [such] insurgents are banding together in several of the interior counties for the purpose of assisting *695the enemy to rob, to maraud and to lay waste the country. All such persons are by the laws of war in every civilized country liable to capital punishment” (emphasis added)). Numerous trials were held under this authority. See, e. g., U. S. War Dept., General Court Martial Order No. 51, p. 1 (1866) (hereinafter G. C. M. 0.) (indictment in the military commission trial of James Harvey Wells charged “ ‘[b]eing a guerrilla’ ” and specified that he “‘willfully . . . [took] up arms as a guerrilla marauder, and did join, belong to, act and co-operate with guerrillas’ ”); G. C. M. O. No. 108, Head-Quarters Dept. of Kentucky, p. 1 (1865) (indictment in the military commission trial of Henry C. Magruder charged “ ‘[b]eing a guerrilla’ ” and specified that he “ ‘unlawfully, and of his own wrong, [took] up arms as a guerrilla marauder, and did join, belong to, act, and co-operate with a band of guerrillas’ ”); G. C. M. O. No. 41, p. 1 (1864) (indictment in the military commission trial of John West Wilson charged that Wilson “ ‘did take up arms as an insurgent and guerrilla against the laws and authorities of the United States, and did join and co-operate with an armed band of insurgents and guerrillas who were engaged in plundering the property of peaceable citizens ... in violation of the laws and customs of war’”); G. C. M. O. No. 153, p. 1 (1864) (indictment in the military commission trial of Simeon B. Kight charged that defendant was “ ‘a guerrilla, and has been engaged in an unwarrantable and barbarous system of warfare against citizens and soldiers of the United States’ ”); G. C. M. O. No. 93, pp. 3-4 (1864) (indictment in the military commission trial of Francis H. Norvel charged “ ‘[b]eing a guerrilla’ ” and specified that he “ “unlawfully and by his own wrong, [took] up arms as an outlaw, guerrilla, and bushwhacker, against the lawfully constituted authorities of the United States government’ ”); id., at 9 (indictment in the military commission trial of James A. Powell charged “‘[transgression of the laws and customs of war’” and specified that he “ ‘[took] up arms in insurrection as a military insurgent, and did join himself to and, in arms, consort with ... a rebel enemy of the United States, and the leader of a band of insurgents and armed rebels’ ”); id., at 10-11 (indictment in the military commission trial of Joseph Overstreet charged “ ‘[b]eing a guerrilla’ ” and specified that he “ ‘did join, belong to, consort and co-operate with a band of guerrillas, insurgents, outlaws, and public robbers’ ”).

Even if the plurality were correct that a membership offense must be accompanied by allegations that the “defendant ‘took up arms,’ ” ante, at 601, n. 32, that requirement has easily been satisfied here. Not only has Hamdan been charged with providing assistance to top al Qaeda leadership (itself an offense triable by military commission), he has also been charged with receiving weapons training at an al Qaeda camp. App. to Pet. for Cert. 66a-67a.

The plurality recounts the respective claims of the parties in Quirin pertaining to this issue and cites the United States Reports. Ante, at 605. But the claims of the parties are not included in the opinion of the Court, but rather in the sections of the Reports entitled “Argument for Petitioners” and “Argument for Respondent.” See 317 U. S., at 6-17.

The plurality concludes that military commission jurisdiction was appropriate in the case of the Lincoln conspirators because they were charged with “‘maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln,’” ante, at 604, n. 35. But the sole charge filed in that case alleged conspiracy, and the allegations pertaining to “maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln” were not charged or labeled as separate offenses, but rather as overt acts “in pursuance of and in prosecuting said malicious, unlawful, and traitorous conspiracy.” G. C. M. O. No. 356, at 696 (emphasis added). While the plurality contends the murder of President Lincoln was charged as a distinct separate offense, the foregoing quoted language of the charging document unequivocally establishes otherwise. Moreover, though I agree that the allegations pertaining to these overt acts provided an independ*700ent basis for the military commission’s jurisdiction in that case, that merely confirms the propriety of examining all the acts alleged—whether or not they are labeled as separate offenses—to determine if a defendant has been charged with a violation of the law of war. As I have already explained, Hamdan has been charged with violating the law of war not only by participating in a conspiracy to violate the law of war, but also by joining a war-criminal enterprise and by supplying provisions and assistance to that enterprise’s top leadership.

The plurality’s attempt to undermine the significance of these cases is unpersuasive. The plurality suggests the Wirz case is not relevant because the specification supporting his conspiracy charge alleged that he “personally committed a number of atrocities.” Ante, at 609. But this does not establish that conspiracy to violate the laws of war, the very crime with which Wirz was charged, is not itself a violation of the law of war. Rather, at best, it establishes that in addition to conspiracy Wirz violated the laws of war by committing various atrocities, just as Hamdan violated the laws of war not only by conspiring to do so, but also by joining al Qaeda and providing provisions and services to its top leadership. Moreover, the fact that Wirz was charged with overt acts that are more severe than the overt acts with which Hamdan has been charged does not establish that conspiracy is not an offense cognizable before military commission; rather it merely establishes that Wirz’s offenses may have been comparably worse than Hamdan’s offenses. The plurality’s claim that the charge against Leger Grenfel supports its compound offense theory is similarly unsupportable. The plurality does not, and cannot, dispute that Grenfel was charged with conspiring to vio*702late the laws of war by releasing rebel prisoners—a charge that bears no relation to a crime “ordinarily triable in civilian courts.” Ante, at 609, n. 37. Tellingly, the plurality does not reference or discuss this charge, but instead refers to the conclusion of Judge Advocate Holt that Grenfel also “ ‘united himself with traitors and malefactors for the overthrow of our Republic in the interest of slavery.’” Ante, at 610, n. 37 (quoting H. R. Doc. No. 314, at 689). But Judge Advocate Holt’s observation provides no support for the plurality’s conclusion, as it does not discuss the charges that sustained military commission jurisdiction, much less suggest that such charges were not violations of the law of war.

The plurality contends that international practice—including the practice of the IMT at Nuremberg—supports its conclusion that conspiracy is not an offense triable by military commission because “‘[t]he Anglo-American concept of conspiracy was not part of European legal systems and arguably not an element of the internationally recognized laws of war.’” Ante, at 611 (quoting T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 36 (1992)). But while the IMT did not criminalize all conspiracies to violate the law of war, it did criminalize “participation in a common plan or conspiracy” to wage aggressive war. See 1 Trials, at XI-XII, Art. 6(a). Moreover, the World War II military tribunals of several European nations recognized conspiracy to violate the laws of war as an offense triable before military commissions. See 15 U. N. Commission 90-91 (noting that the French Military Tribunal at Marseilles found Henri Georges Stadelhofer “guilty of the crime of association de malfaiteurs,” namely, of “ ‘having formed with various members of the *703German Gestapo an association with the aim of preparing or committing crimes against persons or property, without justification under the laws and usages of war’ ”); 11 id., at 98 (noting that the Netherlands’ military tribunals were authorized to try conspiracy to violate the laws of war). Thus, the European legal systems’ approach to domestic conspiracy law has not prevented European nations from recognizing conspiracy offenses as violations of the law of war. This is unsurprising, as the law of war is derived not from domestic law but from the wartime practices of civilized nations, including the United States, which has consistently recognized that conspiracy to violate the laws of war is an offense triable by military commission.

Though it does not constitute a basis for any holding of the Court, the Court maintains that, as a “general rule,” “the procedures governing trials by military commission historically have been the same as those governing courts-martial.” Ante, at 617. While it is undoubtedly true that military commissions have invariably employed most of the procedures employed by courts-martial, that is not a requirement. See Winthrop 841 (“Military commissions ... are commonly conducted according to the rules and forms governing courts-martial. These war-courts are indeed more summary in their action than are the courts held under the Articles of war, and . . . their proceedings . . . will not be rendered illegal by the omission of details required upon trials by courts-martial” (emphasis in original; footnotes omitted)); 1 U. N. Commission 116-117 (“The [World War II] Mediterranean Regulations (No. 8) provide that Military Commissions shall conduct their proceedings as may be deemed necessary for full and fair trial, having regard for, hut not being bound by, the rules of procedure prescribed for General Courts Martial” (emphasis added)); id., at 117 (“In the [World War II] European directive it is stated . . . that Military Commissions shall have power to make, as occasion requires, such rules for the conduct of their proceedings consistent with the powers of such Commissions, and with the rules of procedure ... as are deemed necessary for a full and fair trial of the accused, having regard for, without being bound by, the rules of procedure and evidence prescribed for General Courts Martial”). Moreover, such a requirement would conflict with the settled understanding of the flexible and responsive nature of military commissions and the President’s wartime authority to employ such tribunals as he sees fit. See Birkhimer 537-538 (“Military commissions may so vary their procedure as to adapt it to any situation, and may extend their powers to any necessary degree____The military commander decides upon the character of the military tribunal which is suited to the occasion ... and his decision is final”).

The Court suggests that Congress’ amendment to Article 2 of the UCMJ, providing that the UCMJ applies to “persons within an area leased by or otherwise reserved or acquired for the use of the United States,” 10 U. S. C. §802(a)(12), deprives Yamashita’s conclusion respecting the President’s authority to promulgate military commission procedures of its “precedential value.” Ante, at 620. But this merely begs the question of the scope and content of the remaining provisions of the UCMJ. Nothing in the additions to Article 2, or any other provision of the UCMJ, suggests that Congress has disturbed this Court’s unequivocal interpretation of Article 21 as preserving the common-law status of military commissions and the corresponding authority of the President to set their procedures pursuant to his Commander in Chief powers. See Quirin, 817 U. S., at 28; Yamashita, 327 U. S., at 20; Madsen v. Kinsella, 343 U. S. 341, 355 (1952).

It bears noting that while the Court does not hesitate to cite legislative history that supports its view of certain statutory provisions, see ante, at 579, 580-581, n. 10, it makes no citation of the legislative history pertaining to Article 36(b), which contradicts its interpretation of that provision. Indeed, if it were authoritative, the only legislative history relating to Article 36(b) would confirm the obvious—Article 36(b)’s uniformity requirement pertains to uniformity between the three branches of the Armed Forces, and no more. When that subsection was introduced as an amendment to Article 36, its author explained that it would leave the three branches “enough leeway to provide a different provision where it is absolutely necessary” because “there are some differences in the services.” Hearings on H. R. 2498 before the Subcommittee No. 1 of the House Committee on Armed Services, 81st Cong., 1st Sess., 1015 (1949). A further statement explained that “there might be some slight differences that would pertain as to the Navy in contrast to the Army, but at least [Article 36(b)] is an expression of the congressional intent that we want it to be as uniform as possible.” Ibid.

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

The Court does not dispute the conclusion that Common Article 3 cannot be violated unless and until Hamdan is convicted and sentenced. Instead, it contends that “the Geneva Conventions d[o] not direct an accused to wait until sentence is imposed to challenge the legality of the tribunal that is to try him.” Ante, at 626, n. 55. But the Geneva Conventions do not direct defendants to enforce their rights through litigation, but through the Conventions’ exclusive diplomatic enforcement provisions. Moreover, neither the Court’s observation respecting the Geneva Conventions nor its reference to the equitable doctrine of abstention bears on the constitutional prohibition on adjudicating unripe claims.

Notably, a prosecutor before the Quirin military commission has described these procedures as “a substantial improvement over those in effect during World War II,” further observing that “[t]hey go a long way toward assuring that the trials will be full and fair.” National Institute of Military Justice, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, p. x (2002) (foreword by Lloyd N. Cutler).

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

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

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

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 682 (dissenting opinion), ignores the reasoning in Quirin.

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

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

So much may not be evident on cold review of the Civil War trials often cited as precedent for this kind of tribunal because the commissions established during that conflict operated as both martial law or military government tribunals and law-of-war commissions. Hence, “military commanders began the practice [during the Civil War] of using the same name, the same rules, and often, the same tribunals” to try both ordinary crimes and war crimes. Bickers, 34 Tex. Tech. L. Rev., at 908. “For the first time, accused horse thieves and alleged saboteurs found themselves subject to trial by the same military commission.” Id., at 909. The Civil War precedents must therefore be considered with caution; as we recognized in Quirin, 317 U. S., at 29, 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.

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.

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

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

Justice Thomas would treat Usama bin Laden’s 1996 declaration of jihad against Americans as the inception of the war. See post, at 683-688 (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 685, n. 3. If nothing else, Article 21 of the UCMJ requires that the President comply with the law of war in his use of military commissions. As explained in the text, the law of war permits trial only of offenses “committed within the period of the war.” Winthrop 837; see also Quirin, 317 U. S., at 28-29 (observing that law-of-war military commissions may be used to try “those enemies who in their attempt to thwart or impede our military effort have violated the law of war” (emphasis added)). The sources that Justice Thomas relies on to suggest otherwise simply do not support his position. Colonel Green’s short exegesis on military commissions cites Howland for the proposition that “[ojffenses committed before a formal declaration of war or before the declaration of martial law may be tried by military commission.” The Military Commission, 42 Am. J. Int’l L. 832, 848 (1948) (emphasis added) (cited post, at 686). 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 “aet[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 679, 684, 685, and 687 (Thomas, J., dissenting)), are not germane to the analysis. Finally, Justice Thomas’ assertion that Julius Otto Kuehn’s trial by military commission “for conspiring with Japanese officials to betray the United States Fleet to the Imperial Japanese Government prior to its *600attack on Pearl Harbor” stands as authoritative precedent for Hamdan’s trial by commission, post, at 686, misses the mark in three critical respects. First, Kuehn was tried tor 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, n. 28, supra), not a commission established exclusively to try violations of the law of war, see Winthrop 837. Third, the martial law commissions established to try crimes in Hawaii were ultimately declared illegal by this Court. See Duncan v. Kahanamoku, 327 U. S. 304, 324 (1946) (“The phrase ‘martial law’ as employed in [the Hawaiian Organic Act], while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals”).

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, *601like “joining an organization” that has a criminal purpose, “ '[hieing a guerrilla,’ ” and aiding the enemy. See post, at 693-697, and n. 9. There are innumerable problems with this approach. First, the crimes Justice Thomas identifies were not actually charged. It is one thing to observe that charges before a military commission “ ‘need not be stated with the precision of a common law indictment,’ ” post, at 692, n. 7; it is quite another to say that a crime not charged may nonetheless be read into an indictment. Second, the Government plainly had available to it the tools and the time it needed to charge petitioner with the various crimes Justice Thomas refers to, if it believed they were supported by the allegations. As Justice Thomas himself observes, see post, at 697, the crime of aiding the enemy may, in circumstances where the accused owes allegiance to the party whose enemy he is alleged to have aided, be triable by military commission pursuant to Article 104 of the UCMJ, 10 U. S. C. § 904. Indeed, the Government has charged detainees under this provision when it has seen fit to do so. See Brief for David Hicks as Amicus Curiae 7. Third, the cases Justice Thomas relies on to show that Hamdan may be guilty of violations of the law of war not actually charged do not support his argument. Justice Thomas begins by blurring the distinction between those categories of “offender” who may be tried by military commission (e. g., jayhawkers and the like) with the “offenses” that may be so tried. Even when it comes to “‘being a guerrilla,”’ cf. post, at 695, n. 9, a label alone does not render a person susceptible to execution or other criminal punishment; the charge of “ ‘being a guerrilla’ ” invariably is accompanied by the allegation that the defendant “ ‘took up arms’ ” as such. This is because, as explained by Judge Advocate General Holt in a decision upholding the charge of “ ‘being a guerrilla’ ” as one recognized by “the universal usage of the times,” the charge is simply shorthand (akin to “being a spy”) for “the perpetration of a succession of similar acts” of violence. Record Books of the Judge Advocate General Office, R. 3, 590. The sources cited by Justice Thomas confirm as much. See cases cited post, at 694-695, n. 9. Likewise, the suggestion that the Nuremberg precedents support Hamdan’s conviction for the (uncharged) crime of joining a criminal organization must fail. Cf. post, at 695-697. The convictions of certain high-level Nazi officials for “membership in a criminal organization” were secured pursuant to specific provisions of the Charter of the International Military *602Tribunal that permitted indictment of individual organization members following convictions of the organizations themselves. See Arts. 9 and 10, in 1 Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg, 14 November 1945-1 October 1946, p. 12 (1947). The initial plan to use organizations’ convictions as predicates for mass individual trials ultimately was abandoned. See T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 584-585, 638 (1992).

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. Ill) (listing war crimes); Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998, §583, 111 Stat. 2436 (same).

While the common law necessarily is “evolutionary in nature,” post, at 689 (Thomas, J., dissenting), even in jurisdictions where common-law crimes are still part of the penal framework, an act does not become a *603crime without its foundations having been firmly established in precedent. See, e. g., Queen v. Rimmington, [2006] 2 All E. R. 257, 275-279 (2005) (House of Lords); id., at 279 (while “some degree of vagueness is Inevitable and development of the law is a recognised feature of common law courts[,] . . . the law-making function of the courts must remain within reasonable limits”); see also Rogers v. Tennessee, 532 U. S. 451, 472-478 (2001) (Scalia, J., dissenting). The caution that must be exercised in the incremental development of common-law crimes by the judiciary is, for the reasons explained in the text, all the more critical when reviewing developments that stem from military action.

The 19th-century trial of the “Lincoln conspirators,” even if properly classified as a trial by law-of-war commission, cf. W. Rehnquist, All the Laws But One: Civil Liberties in Wartime 165-167 (1998) (analyzing the conspiracy charges in light of ordinary criminal law principles at the time), is at best an equivocal exception. Although the charge against the defendants in that case accused them of “combining, confederating, and conspiring together” to murder the President, they were also charged (as we read the indictment, cf. post, at 699-700, n. 12 (Thomas, J., dissenting)), with “maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln.” H. R. Doc. No. 314, 55th Cong., 3d Sess., 696 (1899). Moreover, the Attorney General who wrote the opinion defending the trial by military commission treated the charge as if it alleged the substantive offense of assassination. See 11 Op. Atty. Gen. 297 (1865) (analyzing the propriety of trying by military commission “the offence of having assassinated the President”); see also Mudd v. Caldera, 134 F. Supp. 2d 138, 140 (DC 2001).

By contrast, the Geneva Conventions do extend liability for substantive war crimes to those who “orde[r]” their commission, see Third Geneva Convention, Art. 129, 6 U. S. T., at 3418, and this Court has read the Fourth Hague Convention of 1907 to impose “command responsibility” on military commanders for acts of their subordinates, see Yamashita, 327 U. S., at 15-16.

The other examples Justice Thomas offers are no more availing. The Civil War indictment against Robert Louden, cited post, at 702, alleged a conspiracy, but not one in violation of the law of war. See War Dept., General Court Martial Order No. 41, p. 20 (1864). A separate charge of “ ‘[transgression of the laws and customs of war’ ” made no mention of conspiracy. Id., at 17. The charge against Leger Grenfel and others for conspiring to release rebel prisoners held in Chicago only supports the observation, made in the text, that the Civil War tribunals often charged hybrid crimes mixing elements of crimes ordinarily triable in civilian courts (like treason) and violations of the law of war. Judge Advo*610cate General Holt, in recommending that Grenfel’s death sentence be upheld (it was in fact commuted by Presidential decree, see H. R. Doc. No. 314, at 725), explained that the accused “united himself with traitors and malefactors for the overthrow of our Republic in the interest of slavery.” Id., at 689.

The Court in Quirin “assume[d] that there are acts regarded in other countries, or by some writers on international law, as offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury.” 317 U. S., at 29. We need not test the validity of that assumption here because the international sources only corroborate the domestic ones.

Accordingly, the Tribunal determined to “disregard the charges . . . that the defendants conspired to commit War Crimes and Crimes against Humanity.” 22 Trial of Major War Criminals 469; see also ibid. (“[T]he Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war”).

See also 15 United Nations War Crimes Commissions, Law Reports of Trials of War Criminals 90-91 (1949) (observing that, although a few individuals were charged with conspiracy under European domestic criminal codes following World War II, “the United States Military Tribunals” established at that time did not “recognis[e] as a separate offence conspiracy to commit war crimes or crimes against humanity”). The International Criminal Tribunal for the former Yugoslavia (ICTY), drawing on the Nuremberg precedents, has adopted a “joint criminal enterprise” theory of liability, but that is a species of liability for the substantive offense (akin to aiding and abetting), not a crime on its own. See Prosecutor v. Tadic, Judgment, Case No. IT-94-1-A (ICTY App. Chamber, July 15, 1999); see also Prosecutor v. Milutinovic, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction—Joint Criminal Enterprise, Case No. IT-99-37-AR72, ¶26 (ICTY App. Chamber, May 21, 2003) (stating that “[ejriminal liability pursuant to a joint criminal enterprise is not a liability for ... conspiring to commit crimes”).

Justice Thomas’ suggestion that our conclusion precludes the Government from bringing to justice those who conspire to commit acts of terrorism is therefore wide of the mark. See post, at 686, n. 3, 704-706. That conspiracy is not a violation of the law of war triable by military commission does not mean the Government may not, for example, prosecute by court-martial or in federal court those caught “plotting terrorist atrocities like the bombing of the Khobar Towers.” Post, at 705.

The accused also may be excluded from the proceedings if he “engages in disruptive conduct.” §5(K).

As the, District Court observed, this section apparently permits reception of testimony from a confidential informant in circumstances where *615“Hamdan will not be permitted to hear the testimony, see the witness's face, or learn his name. If the government has information developed by interrogation of witnesses in Afghanistan or elsewhere, it can offer such evidence in transcript form, or even as summaries of transcripts.” 344 F. Supp. 2d 152, 168 (DC 2004).

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

See Winthrop 835, and n. 81 (“military commissions are constituted and composed, and their proceedings are conducted, similarly to general courts-martial”); id,., at 841-842; S. Rep. No. 130, 64th Cong., 1st Sess., 40 (1916) (testimony of Gen. Crowder) (“Both classes of courts have the same procedure”); see also, e. g., H. Coppée, Field Manual of Courts-Martial 105 (1863) (“[Military] commissions are appointed by the same authorities as those which may order courts-martial. They are constituted in a manner similar to such courts, and their proceedings are conducted in exactly the same way, as to form, examination of witnesses, etc.”).

The dissenters’ views are summarized in the following passage:

Article 2 of the UCMJ now reads: “(a) The following persons are subject to [the UCMJ]: “(9) Prisoners of war in custody of the armed forces. “(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.” 10 U. S. C. § 802(a). Guantanamo Bay is such a leased area. See Rasul v. Bush, 542 U. S. 466, 471 (2004).

The International Committee of the Red Cross is referred to by name in several provisions of the 1949 Geneva Conventions and is the body that drafted and published the official commentary to the Conventions. Though not binding law, the commentary is, as the parties recognize, relevant in interpreting the Conventions’ provisions.

Aside from Articles 21 and 36, discussed at length in the text, the other seven Articles that expressly reference military commissions are: (1) 28 (requiring appointment of reporters and interpreters); (2) 47 (making it a crime to refuse to appear or testify “before a court-martial, military commission, court of inquiry, or any other military court or board”); (3) 48 (allowing a “court-martial, provost court, or military commission” to punish a person for contempt); (4) 49(d) (permitting admission into evidence of a “duly authenticated deposition taken upon reasonable notice to the other parties” only if “admissible under the rules of evidence” and only if the witness is otherwise unavailable); (5) 50 (permitting admission into evidence of records of courts of inquiry “if otherwise admissible under the rules of evidence,” and if certain other requirements are met); (6) 104 (providing that a person accused of aiding the enemy may be sentenced to death or other punishment by military commission or court-martial); and (7) 106 (mandating the death penalty for spies convicted before military commission or court-martial).

Justice Thomas relies on the legislative history of the UCMJ to argue that Congress’ adoption of Article 36(b) in the wake of World War II was “motivated” solely by a desire for “uniformity across the separate branches of the armed services.” Post, at 711. But even if Congress was *623concerned with ensuring uniformity across service branches, that does not mean it did not also intend to codify the longstanding practice of procedural parity between courts-martial and other military tribunals. Indeed, the suggestion that Congress did not intend uniformity across tribunal types is belied by the textual proximity of subsection (a) (which requires that the rules governing criminal trials in federal district courts apply, absent the President’s determination of impracticability, to courts-martial, provost courts, and military commissions alike) and subsection (b) (which imposes the uniformity requirement).

We may assume that such a determination would be entitled to a measure of deference. For the reasons given by Justice Kennedy, see post, at 640 (opinion concurring in part), however, the level of deference accorded to a determination made under subsection (b) presumably would not be as high as that accorded to a determination under subsection (a).

Justice Thomas looks not to the President’s official Article 36(a) determination, but instead to press statements made by the Secretary of Defense and the Under Secretary of Defense for Policy. See post, at 712-713 (dissenting opinion). We have not heretofore, in evaluating the *624legality of executive action, deferred to comments made by such officials to the media. Moreover, the only additional reason the comments provide—aside from the general danger posed by international terrorism— for departures from court-martial procedures is the need to protect classified information. As we explain in the text, and as Justice Kennedy elaborates in his separate opinion, the structural and procedural defects of Hamdan’s commission extend far beyond rules preventing access to classified information.

Justice Thomas relies extensively on Madsen for the proposition that the President has free rein to set the procedures that govern military commissions. See post, at 706-707, 709, n. 16, 710, and 721. That reliance is misplaced. Not only did Madsen not involve a law-of-war military commission, but (1) the petitioner there did not challenge the procedures used to try her, (2) the UCMJ, with its new Article 36(b), did not become effective until May 81, 1951, after the petitioner’s trial, see 343 U. S., at 345,' n. 6, and (3) the procedures used to try the petitioner actually afforded more protection than those used in courts-martial, see id., at 358-360; see also id., at 358 (“[T]he Military Government Courts for Germany ... have had a less military character than that of courts-martial”).

Prior to the enactment of Article 36(b), it may well have been the case that a deviation from the rules governing courts-martial would not have rendered the military commission “‘illegal.’” Post, at 707, n. 15 (THOMAS, J., dissenting) (quoting Winthrop 841). Article 36(b), however, imposes a statutory command that must be heeded.

Justice Thomas makes the different argument that Hamdan’s Geneva Convention challenge is not yet “ripe” because he has yet to be sentenced. See post, at 719-720. This is really just a species of the abstention argument we have already rejected. See Part III, supra. The text of the Geneva Conventions does not direct an accused to wait until sentence is imposed to challenge the legality of the tribunal that is to try him.

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

But see, e. g., 4 Int’l Comm, of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 21 (J. Pictet gen. ed. 1958) (hereinafter GCIV Commentary) (the 1949 Geneva Conventions were written “first and foremost to protect individuals, and not to serve State interests”); GCIII Commentary 91 (“It was not... until the Conventions of 1949 . . . that the existence of ‘rights’ conferred on prisoners of war was affirmed”).

But see generally Brief for Louis Henkin et al. as Amici Curiae; 1 Int’l Comm, of Red Cross, Commentary: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 84 (1952) (“It should be possible in States which are parties to the Convention ... for the rules of the Convention... to be evoked before an appropriate national court by the protected person who has suffered the violation”); GCIII Commentary 92; GCIV Commentary 79.

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

The President has stated that the conflict with the Taliban is a conflict to which the Geneva Conventions apply. See White House Memorandum, Humane Treatment of Taliban and al Qaeda Detainees 2 (Feb. 7, 2002), available at http://www.justicescholars.org/pege/archive/White_House/ bush_memo_20020207_ed.pdf.

Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubt” whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a “competent tribunal.” 6 U. S. T., at 3324. See also Headquarters Depts. of Army, Navy, Air Force, and Marine Corps, Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (1997), App. 116. Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened pursuant to the November 13 Order and Commission Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved.

The term “Party” here has the broadest possible meaning; a Party need neither be a signatory of the Convention nor “even represent a legal entity capable of undertaking international obligations.” GCIII Commentary 37.

See also id., at 35 (Common Article 3 “has the merit of being simple and clear.... Its observance does not depend upon preliminary discussions on the nature of the conflict”); GCIV Commentary 51 (“[N]obody in enemy hands can be outside the law”); U. S. Army Judge Advocate General’s Legal Center and School, Dept, of the Army, Law of War Workshop Desk-book 228 (June 2000) (reprint 2004) (Common Article 3 “serves as a ‘minimum yardstick of protection’ in all conflicts, not just internal armed conflicts” (quoting Nicaragua v. United States, 1986 I. C. J. 14, ¶ 218, 25 I. L. M. 1023)); Prosecutor v. Tadić, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 102 (ICTY App. Chamber, Oct. 2, 1995) (stating that “the character of the conflict is irrelevant” in deciding whether Common Article 3 applies).

The commentary’s assumption that the terms “properly constituted” and “regularly constituted” are interchangeable is beyond reproach; the French version of Article 66, which is equally authoritative, uses the term “réguliérement constitués” in place of “properly constituted.” 6 U. S. T., at 3559.

Further evidence of this tribunal’s irregular constitution is the fact that its rules and procedures are subject to change midtrial, at the whim of the Executive. See Commission Order No. 1, §11 (providing that'the Secretary of Defense may change the governing rules “from time to time”).

Other international instruments to which the United States is a signatory include the same basic protections set forth in Article 75. See, e. g., International Covenant on Civil and Political Rights, Art. 14, ¶ 3(d), Mar. 23, 1976, 999 U. N. T. S. 171 (setting forth the right of an accused “[t]o be tried in his presence, and to defend himself in person or through legal assistance of his own choosing”). Following World War II, several defendants were tried and convicted by military commission for violations *634of the law of war in their failure to afford captives fair trials before imposition and execution of sentence. In two such trials, the prosecutors argued that the defendants’ failure to apprise accused individuals of all evidence against them constituted violations of the law of war. See 5 U. N. War Crimes Commission, Law Reports of Trials of War Criminals 25, 30 (1948) (reprint 1997) (trial of Sergeant-Major Shigeru Ohashi), 66, 75 (trial of General Tanaka Hisakasu).

The Government offers no defense of these procedures other than to observe that the defendant may not be barred from access to evidence if such action would deprive him of a “full and fair trial.” Commission Order No. 1, § 6(D)(5)(b). But the Government suggests no circumstances in which it would be “fair” to convict the accused based on evidence he has not seen or heard. Cf. Crawford v. Washington, 541 U. S. 36, 49 (2004) (“ ‘It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine’ ” (quoting State v. Webb, 2 N. C. 103, 104 (Super. L. & Eq. 1794) (per curiam)); Diaz v. United States, 223 U. S. 442, 455 (1912) (describing the right to be present as “scarcely less important to the accused than the right of trial itself”); Lewis v. United States, 146 U. S. 370, 372 (1892) (exclusion of defendant from part of proceedings is “contrary to the dictates of humanity” (internal quotation marks omitted)); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 170, n. 17, 171 (1951) (Frankfurter, J., concurring) (“The plea that evidence of guilt must be secret is abhorrent to free men” (internal quotation marks omitted)). More fundamentally, the legality of a tribunal under Common Article 3 cannot be established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act fairly.

Section 821 looks to the “law of war,” not separation-of-powers issues. And §836, as Justice Kennedy notes, concerns procedures, not structure, see ante, at 645.

The plurality, but not Justice Kennedy, suggests that the commission rules are improper insofar as they allow a defendant to be denied access to evidence under some circumstances. See ante, at 633-635. But here, too, if this procedure is used in a particular ease and the accused is convicted, the validity of this procedure can be challenged in the review proceeding in that case. In that context, both the asserted need for the procedure and its impact on the accused can be analyzed in concrete terms.

Even if the formal declaration of war were generally the determinative act in ascertaining the temporal reach of the jurisdiction of a military commission, the AUMF itself is inconsistent with the plurality’s suggestion that such a rule is appropriate in this ease. See ante, at 598-600, 612. The text of the AUMF is backward looking, authorizing the use of “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” §2(a), 115 Stat. 224. Thus, the President’s decision to try Hamdan by military commission—a use of force authorized by the AUMF—for Hamdan’s involvement with al Qaeda prior to September 11, 2001, fits comfortably within the framework of the AUMF. In fact, bringing the September 11 conspira*686tors to justice is the primary point of the AUMF. By contrast, on the plurality’s logic, the AUMF would not grant the President the authority to try Usama bin Laden himself for his involvement in the events of September 11, 2001.

The plurality suggests these authorities are inapplicable because nothing in its “analysis turns on the admitted absence of either a formal declaration of war or a declaration of martial law. Our focus instead is on the . . . AUMF.” Ante, at 599, n. 31. The difference identified by the plurality is purely semantic.- Both Green and Howland confirm that the date of the enactment that establishes a legal basis for forming military commissions—whether it be a declaration of war, a declaration of martial law, or an authorization to use military force—does not limit the jurisdiction of military commissions to offenses committed after that date.

The plurality attempts to evade the import of this historical example by observing that Kuehn was tried before a martial law commission for a violation of federal espionage statutes. Ibid. As an initial matter, the fact that Kuehn was tried before a martial law commission for an offense committed prior to the establishment of martial law provides strong support for the President’s contention that he may try Hamdan for offenses *687committed prior to the enactment of the AUMF. Here the AUMF serves the same function as the declaration of martial law in Hawaii in 1941, establishing legal authority for the constitution of military commissions. Moreover, Kuehn was not tried and punished “by statute, but by the laws and usages of war.” United States v. Kuehn, Board of Review 6 (Office of the Military Governor, Hawaii 1942). Indeed, in upholding the imposition of the death penalty, a sentence “not authorized by the Espionage statutes,” id., at 5, Kuehn’s Board of Review explained that “[t]he fact that persons may be tried and punished ... by a military commission for committing acts defined as offenses by ... federal statutes does not mean that such persons are being tried for violations of such ... statutes; they are, instead, being tried for acts made offenses only by orders of the . . . commanding general,” id,., at 6. Lastly, the import of this example is not undermined by Duncan v. Kakanamoku, 327 U. S. 304 (1946). The question before the Court in that case involved only whether “loyal civilians in loyal territory should have their daily conduct governed by military orders,” id., at 319; it did “not involve the well-established power of the military to exercise jurisdiction over ... enemy belligerents,” id., at 313.

Indeed, respecting the present conflict, the President has found that “the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our Nation recognizes that this new paradigm—ushered in not by us, but by terrorists—requires new thinking in the law of war.” App. 34-35. Under the Court’s approach, the President’s ability to address this “new paradigm” of inflicting death and mayhem would be completely frozen by rules developed in the context of conventional warfare.

It is true that both of these separate offenses are charged under a single heading entitled “CHARGE: CONSPIRACY,” App. to Pet. for Cert. 65a. But that does not mean that they must be treated as a single crime, when the law of war treats them as separate crimes. As we acknowledged in In re Yamashita, 327 U. S. 1 (1946), “charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment.” Id., at 17; cf. W. Birkhimer, Military Government and Martial Law 536 (3d rev. ed. 1914) (hereinafter Birkhimer) (“[I]t would be extremely absurd to expect the same precision in a charge brought before a court-martial as is required to support a conviction before a justice of the peace” (internal quotation marks omitted)). Nevertheless, the plurality contends that Hamdan was “not actually charged,” ante, at 601, n. 32 (emphasis deleted), with being a member in a war-criminal organization. But that position is demonstrably wrong. Hamdan’s charging document expressly charges that he “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose.” App. to Pet. for Cert. 65a. Moreover, the plurality’s contention that we may only look to the label affixed to the charge to determine if the charging document alleges an offense triable by military commission is flatly inconsistent with its treatment of the Civil War eases—where it accepts as valid charges that did not appear in the heading or title of the charging document, or even the listed charge itself, but only in the supporting specification. See, e. g., ante, at 609 (discussing the military commission trial of Wirz). For example, in the Wirz case, Wirz was charged *693with conspiring to violate the laws of war, and that charge was supported with allegations that he personally committed a number of atrocities. The plurality concludes that military commission jurisdiction was appropriate in that case not based upon the charge of conspiracy, but rather based upon the allegations of various atrocities in the specification which were not separately charged. Ante, at 609. Just as these atrocities, not separately charged, were independent violations of the law of war supporting Wirz’s trial by military commission, so too here Hamdan’s membership in al Qaeda and his provision of various forms of assistance to al Qaeda’s top leadership are independent violations of the law of war supporting his trial by military commission.

These observations respecting the law of war were made by the Attorney General in defense of the military commission trial of the Lincoln conspirators. As the foregoing quoted portion of that opinion makes clear, the Attorney General did not, as the plurality maintains, “trea[t] the charge as if it alleged the substantive offense of assassination.” Ante, at 604, n. 35. Rather, he explained that the conspirators’ “high offence against the laws of war” was “complete” when their band was “organized or joined,” and did not depend upon “atrocities committed by such a band.” 11 Op. Atty. Gen. 297, 312 (1865). Moreover, the Attorney General’s conclusions specifically refute the plurality’s unsupported suggestion that I have blurred the line between “those categories of ‘offender’ who may be tried by military commission ... with the ‘offenses’ that may be so tried.” Ante, at 601, n. 32.

The General Orders establishing the jurisdiction for military commissions during the Civil War provided that such offenses were violations of the laws of war cognizable before military commissions. See H. R. Doc. No. 65, 55th Cong., 3d Sess., 164 (1894) (“[PJersons charged with the violation of the laws of war as spies, bridge-burners, marauders, &c., will ... be held for trial under such charges”); id., at 234 (“[T]here are numerous rebels . . . that. . . furnish the enemy with arms, provisions, clothing, horses and means of transportation; [such] insurgents are banding together in several of the interior counties for the purpose of assisting *695the enemy to rob, to maraud and to lay waste the country. All such persons are by the laws of war in every civilized country liable to capital punishment” (emphasis added)). Numerous trials were held under this authority. See, e. g., U. S. War Dept., General Court Martial Order No. 51, p. 1 (1866) (hereinafter G. C. M. 0.) (indictment in the military commission trial of James Harvey Wells charged “ ‘[b]eing a guerrilla’ ” and specified that he “‘willfully . . . [took] up arms as a guerrilla marauder, and did join, belong to, act and co-operate with guerrillas’ ”); G. C. M. O. No. 108, Head-Quarters Dept. of Kentucky, p. 1 (1865) (indictment in the military commission trial of Henry C. Magruder charged “ ‘[b]eing a guerrilla’ ” and specified that he “ ‘unlawfully, and of his own wrong, [took] up arms as a guerrilla marauder, and did join, belong to, act, and co-operate with a band of guerrillas’ ”); G. C. M. O. No. 41, p. 1 (1864) (indictment in the military commission trial of John West Wilson charged that Wilson “ ‘did take up arms as an insurgent and guerrilla against the laws and authorities of the United States, and did join and co-operate with an armed band of insurgents and guerrillas who were engaged in plundering the property of peaceable citizens ... in violation of the laws and customs of war’”); G. C. M. O. No. 153, p. 1 (1864) (indictment in the military commission trial of Simeon B. Kight charged that defendant was “ ‘a guerrilla, and has been engaged in an unwarrantable and barbarous system of warfare against citizens and soldiers of the United States’ ”); G. C. M. O. No. 93, pp. 3-4 (1864) (indictment in the military commission trial of Francis H. Norvel charged “ ‘[b]eing a guerrilla’ ” and specified that he “ “unlawfully and by his own wrong, [took] up arms as an outlaw, guerrilla, and bushwhacker, against the lawfully constituted authorities of the United States government’ ”); id., at 9 (indictment in the military commission trial of James A. Powell charged “‘[transgression of the laws and customs of war’” and specified that he “ ‘[took] up arms in insurrection as a military insurgent, and did join himself to and, in arms, consort with ... a rebel enemy of the United States, and the leader of a band of insurgents and armed rebels’ ”); id., at 10-11 (indictment in the military commission trial of Joseph Overstreet charged “ ‘[b]eing a guerrilla’ ” and specified that he “ ‘did join, belong to, consort and co-operate with a band of guerrillas, insurgents, outlaws, and public robbers’ ”).

Section 821 looks to the “law of war,” not separation-of-powers issues. And §836, as Justice Kennedy notes, concerns procedures, not structure, see ante, at 645.

The plurality, but not Justice Kennedy, suggests that the commission rules are improper insofar as they allow a defendant to be denied access to evidence under some circumstances. See ante, at 633-635. But here, too, if this procedure is used in a particular ease and the accused is convicted, the validity of this procedure can be challenged in the review proceeding in that case. In that context, both the asserted need for the procedure and its impact on the accused can be analyzed in concrete terms.

Even if the formal declaration of war were generally the determinative act in ascertaining the temporal reach of the jurisdiction of a military commission, the AUMF itself is inconsistent with the plurality’s suggestion that such a rule is appropriate in this ease. See ante, at 598-600, 612. The text of the AUMF is backward looking, authorizing the use of “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” §2(a), 115 Stat. 224. Thus, the President’s decision to try Hamdan by military commission—a use of force authorized by the AUMF—for Hamdan’s involvement with al Qaeda prior to September 11, 2001, fits comfortably within the framework of the AUMF. In fact, bringing the September 11 conspira*686tors to justice is the primary point of the AUMF. By contrast, on the plurality’s logic, the AUMF would not grant the President the authority to try Usama bin Laden himself for his involvement in the events of September 11, 2001.

The plurality suggests these authorities are inapplicable because nothing in its “analysis turns on the admitted absence of either a formal declaration of war or a declaration of martial law. Our focus instead is on the . . . AUMF.” Ante, at 599, n. 31. The difference identified by the plurality is purely semantic.- Both Green and Howland confirm that the date of the enactment that establishes a legal basis for forming military commissions—whether it be a declaration of war, a declaration of martial law, or an authorization to use military force—does not limit the jurisdiction of military commissions to offenses committed after that date.

The plurality attempts to evade the import of this historical example by observing that Kuehn was tried before a martial law commission for a violation of federal espionage statutes. Ibid. As an initial matter, the fact that Kuehn was tried before a martial law commission for an offense committed prior to the establishment of martial law provides strong support for the President’s contention that he may try Hamdan for offenses *687committed prior to the enactment of the AUMF. Here the AUMF serves the same function as the declaration of martial law in Hawaii in 1941, establishing legal authority for the constitution of military commissions. Moreover, Kuehn was not tried and punished “by statute, but by the laws and usages of war.” United States v. Kuehn, Board of Review 6 (Office of the Military Governor, Hawaii 1942). Indeed, in upholding the imposition of the death penalty, a sentence “not authorized by the Espionage statutes,” id., at 5, Kuehn’s Board of Review explained that “[t]he fact that persons may be tried and punished ... by a military commission for committing acts defined as offenses by ... federal statutes does not mean that such persons are being tried for violations of such ... statutes; they are, instead, being tried for acts made offenses only by orders of the . . . commanding general,” id,., at 6. Lastly, the import of this example is not undermined by Duncan v. Kakanamoku, 327 U. S. 304 (1946). The question before the Court in that case involved only whether “loyal civilians in loyal territory should have their daily conduct governed by military orders,” id., at 319; it did “not involve the well-established power of the military to exercise jurisdiction over ... enemy belligerents,” id., at 313.

Indeed, respecting the present conflict, the President has found that “the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our Nation recognizes that this new paradigm—ushered in not by us, but by terrorists—requires new thinking in the law of war.” App. 34-35. Under the Court’s approach, the President’s ability to address this “new paradigm” of inflicting death and mayhem would be completely frozen by rules developed in the context of conventional warfare.

It is true that both of these separate offenses are charged under a single heading entitled “CHARGE: CONSPIRACY,” App. to Pet. for Cert. 65a. But that does not mean that they must be treated as a single crime, when the law of war treats them as separate crimes. As we acknowledged in In re Yamashita, 327 U. S. 1 (1946), “charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment.” Id., at 17; cf. W. Birkhimer, Military Government and Martial Law 536 (3d rev. ed. 1914) (hereinafter Birkhimer) (“[I]t would be extremely absurd to expect the same precision in a charge brought before a court-martial as is required to support a conviction before a justice of the peace” (internal quotation marks omitted)). Nevertheless, the plurality contends that Hamdan was “not actually charged,” ante, at 601, n. 32 (emphasis deleted), with being a member in a war-criminal organization. But that position is demonstrably wrong. Hamdan’s charging document expressly charges that he “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose.” App. to Pet. for Cert. 65a. Moreover, the plurality’s contention that we may only look to the label affixed to the charge to determine if the charging document alleges an offense triable by military commission is flatly inconsistent with its treatment of the Civil War eases—where it accepts as valid charges that did not appear in the heading or title of the charging document, or even the listed charge itself, but only in the supporting specification. See, e. g., ante, at 609 (discussing the military commission trial of Wirz). For example, in the Wirz case, Wirz was charged *693with conspiring to violate the laws of war, and that charge was supported with allegations that he personally committed a number of atrocities. The plurality concludes that military commission jurisdiction was appropriate in that case not based upon the charge of conspiracy, but rather based upon the allegations of various atrocities in the specification which were not separately charged. Ante, at 609. Just as these atrocities, not separately charged, were independent violations of the law of war supporting Wirz’s trial by military commission, so too here Hamdan’s membership in al Qaeda and his provision of various forms of assistance to al Qaeda’s top leadership are independent violations of the law of war supporting his trial by military commission.

These observations respecting the law of war were made by the Attorney General in defense of the military commission trial of the Lincoln conspirators. As the foregoing quoted portion of that opinion makes clear, the Attorney General did not, as the plurality maintains, “trea[t] the charge as if it alleged the substantive offense of assassination.” Ante, at 604, n. 35. Rather, he explained that the conspirators’ “high offence against the laws of war” was “complete” when their band was “organized or joined,” and did not depend upon “atrocities committed by such a band.” 11 Op. Atty. Gen. 297, 312 (1865). Moreover, the Attorney General’s conclusions specifically refute the plurality’s unsupported suggestion that I have blurred the line between “those categories of ‘offender’ who may be tried by military commission ... with the ‘offenses’ that may be so tried.” Ante, at 601, n. 32.

The General Orders establishing the jurisdiction for military commissions during the Civil War provided that such offenses were violations of the laws of war cognizable before military commissions. See H. R. Doc. No. 65, 55th Cong., 3d Sess., 164 (1894) (“[PJersons charged with the violation of the laws of war as spies, bridge-burners, marauders, &c., will ... be held for trial under such charges”); id., at 234 (“[T]here are numerous rebels . . . that. . . furnish the enemy with arms, provisions, clothing, horses and means of transportation; [such] insurgents are banding together in several of the interior counties for the purpose of assisting *695the enemy to rob, to maraud and to lay waste the country. All such persons are by the laws of war in every civilized country liable to capital punishment” (emphasis added)). Numerous trials were held under this authority. See, e. g., U. S. War Dept., General Court Martial Order No. 51, p. 1 (1866) (hereinafter G. C. M. 0.) (indictment in the military commission trial of James Harvey Wells charged “ ‘[b]eing a guerrilla’ ” and specified that he “‘willfully . . . [took] up arms as a guerrilla marauder, and did join, belong to, act and co-operate with guerrillas’ ”); G. C. M. O. No. 108, Head-Quarters Dept. of Kentucky, p. 1 (1865) (indictment in the military commission trial of Henry C. Magruder charged “ ‘[b]eing a guerrilla’ ” and specified that he “ ‘unlawfully, and of his own wrong, [took] up arms as a guerrilla marauder, and did join, belong to, act, and co-operate with a band of guerrillas’ ”); G. C. M. O. No. 41, p. 1 (1864) (indictment in the military commission trial of John West Wilson charged that Wilson “ ‘did take up arms as an insurgent and guerrilla against the laws and authorities of the United States, and did join and co-operate with an armed band of insurgents and guerrillas who were engaged in plundering the property of peaceable citizens ... in violation of the laws and customs of war’”); G. C. M. O. No. 153, p. 1 (1864) (indictment in the military commission trial of Simeon B. Kight charged that defendant was “ ‘a guerrilla, and has been engaged in an unwarrantable and barbarous system of warfare against citizens and soldiers of the United States’ ”); G. C. M. O. No. 93, pp. 3-4 (1864) (indictment in the military commission trial of Francis H. Norvel charged “ ‘[b]eing a guerrilla’ ” and specified that he “ “unlawfully and by his own wrong, [took] up arms as an outlaw, guerrilla, and bushwhacker, against the lawfully constituted authorities of the United States government’ ”); id., at 9 (indictment in the military commission trial of James A. Powell charged “‘[transgression of the laws and customs of war’” and specified that he “ ‘[took] up arms in insurrection as a military insurgent, and did join himself to and, in arms, consort with ... a rebel enemy of the United States, and the leader of a band of insurgents and armed rebels’ ”); id., at 10-11 (indictment in the military commission trial of Joseph Overstreet charged “ ‘[b]eing a guerrilla’ ” and specified that he “ ‘did join, belong to, consort and co-operate with a band of guerrillas, insurgents, outlaws, and public robbers’ ”).

Even if the plurality were correct that a membership offense must be accompanied by allegations that the “defendant ‘took up arms,’ ” ante, at 601, n. 32, that requirement has easily been satisfied here. Not only has Hamdan been charged with providing assistance to top al Qaeda leadership (itself an offense triable by military commission), he has also been charged with receiving weapons training at an al Qaeda camp. App. to Pet. for Cert. 66a-67a.

The plurality recounts the respective claims of the parties in Quirin pertaining to this issue and cites the United States Reports. Ante, at 605. But the claims of the parties are not included in the opinion of the Court, but rather in the sections of the Reports entitled “Argument for Petitioners” and “Argument for Respondent.” See 317 U. S., at 6-17.

The plurality concludes that military commission jurisdiction was appropriate in the case of the Lincoln conspirators because they were charged with “‘maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln,’” ante, at 604, n. 35. But the sole charge filed in that case alleged conspiracy, and the allegations pertaining to “maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln” were not charged or labeled as separate offenses, but rather as overt acts “in pursuance of and in prosecuting said malicious, unlawful, and traitorous conspiracy.” G. C. M. O. No. 356, at 696 (emphasis added). While the plurality contends the murder of President Lincoln was charged as a distinct separate offense, the foregoing quoted language of the charging document unequivocally establishes otherwise. Moreover, though I agree that the allegations pertaining to these overt acts provided an independ*700ent basis for the military commission’s jurisdiction in that case, that merely confirms the propriety of examining all the acts alleged—whether or not they are labeled as separate offenses—to determine if a defendant has been charged with a violation of the law of war. As I have already explained, Hamdan has been charged with violating the law of war not only by participating in a conspiracy to violate the law of war, but also by joining a war-criminal enterprise and by supplying provisions and assistance to that enterprise’s top leadership.

The plurality’s attempt to undermine the significance of these cases is unpersuasive. The plurality suggests the Wirz case is not relevant because the specification supporting his conspiracy charge alleged that he “personally committed a number of atrocities.” Ante, at 609. But this does not establish that conspiracy to violate the laws of war, the very crime with which Wirz was charged, is not itself a violation of the law of war. Rather, at best, it establishes that in addition to conspiracy Wirz violated the laws of war by committing various atrocities, just as Hamdan violated the laws of war not only by conspiring to do so, but also by joining al Qaeda and providing provisions and services to its top leadership. Moreover, the fact that Wirz was charged with overt acts that are more severe than the overt acts with which Hamdan has been charged does not establish that conspiracy is not an offense cognizable before military commission; rather it merely establishes that Wirz’s offenses may have been comparably worse than Hamdan’s offenses. The plurality’s claim that the charge against Leger Grenfel supports its compound offense theory is similarly unsupportable. The plurality does not, and cannot, dispute that Grenfel was charged with conspiring to vio*702late the laws of war by releasing rebel prisoners—a charge that bears no relation to a crime “ordinarily triable in civilian courts.” Ante, at 609, n. 37. Tellingly, the plurality does not reference or discuss this charge, but instead refers to the conclusion of Judge Advocate Holt that Grenfel also “ ‘united himself with traitors and malefactors for the overthrow of our Republic in the interest of slavery.’” Ante, at 610, n. 37 (quoting H. R. Doc. No. 314, at 689). But Judge Advocate Holt’s observation provides no support for the plurality’s conclusion, as it does not discuss the charges that sustained military commission jurisdiction, much less suggest that such charges were not violations of the law of war.

The plurality contends that international practice—including the practice of the IMT at Nuremberg—supports its conclusion that conspiracy is not an offense triable by military commission because “‘[t]he Anglo-American concept of conspiracy was not part of European legal systems and arguably not an element of the internationally recognized laws of war.’” Ante, at 611 (quoting T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 36 (1992)). But while the IMT did not criminalize all conspiracies to violate the law of war, it did criminalize “participation in a common plan or conspiracy” to wage aggressive war. See 1 Trials, at XI-XII, Art. 6(a). Moreover, the World War II military tribunals of several European nations recognized conspiracy to violate the laws of war as an offense triable before military commissions. See 15 U. N. Commission 90-91 (noting that the French Military Tribunal at Marseilles found Henri Georges Stadelhofer “guilty of the crime of association de malfaiteurs,” namely, of “ ‘having formed with various members of the *703German Gestapo an association with the aim of preparing or committing crimes against persons or property, without justification under the laws and usages of war’ ”); 11 id., at 98 (noting that the Netherlands’ military tribunals were authorized to try conspiracy to violate the laws of war). Thus, the European legal systems’ approach to domestic conspiracy law has not prevented European nations from recognizing conspiracy offenses as violations of the law of war. This is unsurprising, as the law of war is derived not from domestic law but from the wartime practices of civilized nations, including the United States, which has consistently recognized that conspiracy to violate the laws of war is an offense triable by military commission.

Though it does not constitute a basis for any holding of the Court, the Court maintains that, as a “general rule,” “the procedures governing trials by military commission historically have been the same as those governing courts-martial.” Ante, at 617. While it is undoubtedly true that military commissions have invariably employed most of the procedures employed by courts-martial, that is not a requirement. See Winthrop 841 (“Military commissions ... are commonly conducted according to the rules and forms governing courts-martial. These war-courts are indeed more summary in their action than are the courts held under the Articles of war, and . . . their proceedings . . . will not be rendered illegal by the omission of details required upon trials by courts-martial” (emphasis in original; footnotes omitted)); 1 U. N. Commission 116-117 (“The [World War II] Mediterranean Regulations (No. 8) provide that Military Commissions shall conduct their proceedings as may be deemed necessary for full and fair trial, having regard for, hut not being bound by, the rules of procedure prescribed for General Courts Martial” (emphasis added)); id., at 117 (“In the [World War II] European directive it is stated . . . that Military Commissions shall have power to make, as occasion requires, such rules for the conduct of their proceedings consistent with the powers of such Commissions, and with the rules of procedure ... as are deemed necessary for a full and fair trial of the accused, having regard for, without being bound by, the rules of procedure and evidence prescribed for General Courts Martial”). Moreover, such a requirement would conflict with the settled understanding of the flexible and responsive nature of military commissions and the President’s wartime authority to employ such tribunals as he sees fit. See Birkhimer 537-538 (“Military commissions may so vary their procedure as to adapt it to any situation, and may extend their powers to any necessary degree____The military commander decides upon the character of the military tribunal which is suited to the occasion ... and his decision is final”).

The Court suggests that Congress’ amendment to Article 2 of the UCMJ, providing that the UCMJ applies to “persons within an area leased by or otherwise reserved or acquired for the use of the United States,” 10 U. S. C. §802(a)(12), deprives Yamashita’s conclusion respecting the President’s authority to promulgate military commission procedures of its “precedential value.” Ante, at 620. But this merely begs the question of the scope and content of the remaining provisions of the UCMJ. Nothing in the additions to Article 2, or any other provision of the UCMJ, suggests that Congress has disturbed this Court’s unequivocal interpretation of Article 21 as preserving the common-law status of military commissions and the corresponding authority of the President to set their procedures pursuant to his Commander in Chief powers. See Quirin, 817 U. S., at 28; Yamashita, 327 U. S., at 20; Madsen v. Kinsella, 343 U. S. 341, 355 (1952).

It bears noting that while the Court does not hesitate to cite legislative history that supports its view of certain statutory provisions, see ante, at 579, 580-581, n. 10, it makes no citation of the legislative history pertaining to Article 36(b), which contradicts its interpretation of that provision. Indeed, if it were authoritative, the only legislative history relating to Article 36(b) would confirm the obvious—Article 36(b)’s uniformity requirement pertains to uniformity between the three branches of the Armed Forces, and no more. When that subsection was introduced as an amendment to Article 36, its author explained that it would leave the three branches “enough leeway to provide a different provision where it is absolutely necessary” because “there are some differences in the services.” Hearings on H. R. 2498 before the Subcommittee No. 1 of the House Committee on Armed Services, 81st Cong., 1st Sess., 1015 (1949). A further statement explained that “there might be some slight differences that would pertain as to the Navy in contrast to the Army, but at least [Article 36(b)] is an expression of the congressional intent that we want it to be as uniform as possible.” Ibid.

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

The Court does not dispute the conclusion that Common Article 3 cannot be violated unless and until Hamdan is convicted and sentenced. Instead, it contends that “the Geneva Conventions d[o] not direct an accused to wait until sentence is imposed to challenge the legality of the tribunal that is to try him.” Ante, at 626, n. 55. But the Geneva Conventions do not direct defendants to enforce their rights through litigation, but through the Conventions’ exclusive diplomatic enforcement provisions. Moreover, neither the Court’s observation respecting the Geneva Conventions nor its reference to the equitable doctrine of abstention bears on the constitutional prohibition on adjudicating unripe claims.

Notably, a prosecutor before the Quirin military commission has described these procedures as “a substantial improvement over those in effect during World War II,” further observing that “[t]hey go a long way toward assuring that the trials will be full and fair.” National Institute of Military Justice, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, p. x (2002) (foreword by Lloyd N. Cutler).

Section 821 looks to the “law of war,” not separation-of-powers issues. And §836, as Justice Kennedy notes, concerns procedures, not structure, see ante, at 645.

The plurality, but not Justice Kennedy, suggests that the commission rules are improper insofar as they allow a defendant to be denied access to evidence under some circumstances. See ante, at 633-635. But here, too, if this procedure is used in a particular ease and the accused is convicted, the validity of this procedure can be challenged in the review proceeding in that case. In that context, both the asserted need for the procedure and its impact on the accused can be analyzed in concrete terms.

Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Steven R. Shapiro, Ben Wizner, and Lee Gelernt; for the American Jewish Committee et al. by Marvin L. Gray, Jr., Jeffrey L. Fisher, Jeffrey P. Sinensky, Kara H. Stein, John W. Whitehead, Elliot M. Mincberg, Arthur H. Bryant, and Victoria W. Ni; for the Association of the Bar of the City of New York et al. by James J. Benjamin, Jr., and Steven M. Pesner; for the Brennan Center for Justice et al. by Sidney S. Rosdeitcher and Jonathan Hafetz; for the Cato Institute by Timothy Lynch; for the Center for Constitutional Rights et al. by Barbara J. Olshansky and William H. Goodman; for International Law Professors by Linda A. Malone and Jordan J. Paust; for Law Professors by Claudia Callaway; for Military Law Historians, Scholars, and Practitioners by Teresa Wynn Roseborough, Charles Lester, Jr., John A. Chandler, and Elizabeth V. Tanis; for the National Association of Criminal Defense Lawyers by Donald G. Rehkopf Jr.; for the National Institute of Military Justice et al. by Eugene R. Fidell, Stephen A. Saltzburg, Kathleen A. Duignan, and Diane Marie Amann; for Specialists in Conspiracy and International Law by George P. Fletcher, pro se; for the Yemeni National Organization for Defending Rights and Freedoms by Lawrence D. Rosenberg; for Madeleine K. Albright et al. by Harold Hongju Koh and Jonathan M. Freiman; for David Brahms et al. by Andrew J. Pincus, Jay C. Johnson, and Andrew Tauber; for Norman Dorsen et al. by Burt Neuborne; for Louise DoswaldBeck et al. by Bridget Arimond, David J. Scheffer, and Steven A. Kaufman; for Richard A. Epstein et al. by Aaron M. Banner, Joseph S. Hall, and Mr. Epstein, pro se; for Louis Fisher by Lawrence S. Lustberg; for Ibrahim Ahmed Mahmoud al Qosi by Paul S. Reichler and Sharon A. Shaffer; for Binyam Mohamed by Clive A Stafford Smith and Joseph Margulies; and for Jack N. Rakove et al. by Pamela S. Karlan. Briefs of amici curiae urging affirmance were filed for the American Center for Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth, James M. Henderson, Sr., Colby M. May, and Robert W. Ash; for Common Defence by Daniel P. Collins; for Former Attorneys General of the United States et al. by Andrew G. McBride and Kathryn Comerford Todd; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A Samp. Briefs of amici curiae were filed for the Human Rights Committee of the Bar of England and Wales et al. by Stephen J. Poliak and John Townsend Rich; for the Center for National Security Studies et al. by *566 John Payton, Seth P. Waxman, Paul R. Q. Wolfson, Kate Martin, and Joseph Onek; for Certain Former Federal Judges by Paul C. Saunders; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for Human Rights First et al. by Robert P LoBue and Deborah Pearlstein; for Legal Scholars and Historians by Daniel C. Tepstein; for the Office of Chief Defense Counsel, Office of Military Commissions, by Dwight H. Sullivan and Michael D. Mori; for Retired Generals and Admirals et al. by David H. Remes; for the Urban Morgan Institute for Human Rights by Christopher J. Wright and Timothy J. Simeone; for Lawrence M. Friedman et al. by William F. Alderman; for Ryan Goodman et al. by Mark A. Packman; for Senator Lindsey Graham et al. by Jeffrey A. Lamken; for Louis Henkin et al. by Carlos M. Vázquez, pro se; for David Hicks by Joshua L. Dratel, Mr. Mori, Marc A. Goldman, and Michael B. DeSanctis; for Arthur R. Miller by Mr. Remes; for Richard D. Rosen et al. by Steven H. Goldblatt; for More Than 300 Detainees Incarcerated at U. S. Naval Station, Guantanamo Bay, Cuba, et al. by Thomas B. Wilner, Neil H. Koslowe, and Kristine A. Huskey; and for 422 Current and Former Members of the United Kingdom and European Union Parliaments by Claude B. Stansbury.