HAMDAN v. RUMSFELD (No. 05-184)
415 F. 3d 33, reversed and remanded.

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Kennedy, J., concurring in part



on writ of certiorari to the united states court of appeals for the district of columbia circuit

[June 29, 2006]

Justice Kennedy, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join as to Parts I and II, concurring in part.

Military Commission Order No. 1, which governs the military commission established to try petitioner Salim Hamdan for war crimes, exceeds limits that certain statutes, duly enacted by Congress, have placed on the President’s authority to convene military courts. This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.

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

It seems appropriate to recite these rather fundamental points because the Court refers, as it should in its exposition of the case, to the requirement of the Geneva Conventions of 1949 that military tribunals be “regularly constituted” ante, at 69—a requirement that controls here, if for no other reason, because Congress requires that military commissions like the ones at issue conform to the “law of war,” 10 U. S. C. §821. Whatever the substance and content of the term “regularly constituted” as interpreted in this and any later cases, there seems little doubt that it relies upon the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms. All of which returns us to the point of beginning—that domestic statutes control this case. If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so.

I join the Court’s opinion, save Parts V and VI–D–iv. To state my reasons for this reservation, and to show my agreement with the remainder of the Court’s analysis by identifying particular deficiencies in the military commissions at issue, this separate opinion seems appropriate.


Trial by military commission raises separation-of-powers concerns of the highest order. Located within a single branch, these courts carry the risk that offenses will be defined, prosecuted, and adjudicated by executive officials without independent review. Cf. Loving v. United States, 517 U. S. 748, 756–758, 760 (1996) . Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid. It is imperative, then, that when military tribunals are established, full and proper authority exists for the Presidential directive.

The proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952) . “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id., at 635. “When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Id., at 637. And “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” Ibid.

In this case, as the Court observes, the President has acted in a field with a history of congressional participation and regulation. Ante, at 28–30, 55–57. In the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., which Congress enacted, building on earlier statutes, in 1950, see Act of May 5, 1950, ch. 169, 64 Stat. 107, and later amended, see, e.g., Military Justice Act of 1968, 82 Stat. 1335, Congress has set forth governing principles for military courts. The UCMJ as a whole establishes an intricate system of military justice. It authorizes courts-martial in various forms, 10 U. S. C. §§816–820 (2000 ed. and Supp. III); it regulates the organization and procedure of those courts, e.g., §§822–835, 851–854; it defines offenses, §§877–934, and rights for the accused, e.g., §§827(b)–(c), 831, 844, 846, 855 (2000 ed.); and it provides mechanisms for appellate review, §§859–876b (2000 ed. and Supp. III). As explained below, the statute further recognizes that special military commissions may be convened to try war crimes. See infra, at 5–6; §821 (2000 ed.). While these laws provide authority for certain forms of military courts, they also impose limitations, at least two of which control this case. If the President has exceeded these limits, this becomes a case of conflict between Presidential and congressional action—a case within Justice Jackson’s third category, not the second or first.

One limit on the President’s authority is contained in §836 of the UCMJ. That section provides:

“(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

“(b) All rules and regulations made under this article shall be uniform insofar as practicable.” 10 U. S. C. §836 (2000 ed.).

In this provision the statute allows the President to implement and build on the UCMJ’s framework by adopting procedural regulations, subject to three requirements: (1) Procedures for military courts must conform to district-court rules insofar as the President “considers practicable”; (2) the procedures may not be contrary to or inconsistent with the provisions of the UCMJ; and (3) “insofar as practicable” all rules and regulations under §836 must be uniform, a requirement, as the Court points out, that indicates the rules must be the same for military commissions as for courts-martial unless such uniformity is impracticable, ante, at 57, 59, and n. 50.

As the Court further instructs, even assuming the first and second requirements of §836 are satisfied here—a matter of some dispute, see ante, at 57–59—the third requires us to compare the military-commission procedures with those for courts-martial and determine, to the extent there are deviations, whether greater uniformity would be practicable. Ante, at 59–62. Although we can assume the President’s practicability judgments are entitled to some deference, the Court observes that Congress’ choice of language in the uniformity provision of 10 U. S. C. §836(b) contrasts with the language of §836(a). This difference suggests, at the least, a lower degree of deference for §836(b) determinations. Ante, at 59–60. The rules for military courts may depart from federal-court rules whenever the President “considers” conformity impracticable, §836(a); but the statute requires procedural uniformity across different military courts “insofar as [uniformity is] practicable,” §836(b), not insofar as the President considers it to be so. The Court is right to conclude this is of relevance to our decision. Further, as the Court is also correct to conclude, ante, at 60, the term “practicable” cannot be construed to permit deviations based on mere convenience or expedience. “Practicable” means “feasible,” that is, “possible to practice or perform” or “capable of being put into practice, done, or accomplished.” Webster’s Third New International Dictionary 1780 (1961). Congress’ chosen language, then, is best understood to allow the selection of procedures based on logistical constraints, the accommodation of witnesses, the security of the proceedings, and the like. Insofar as the “[p]retrial, trial, and post-trial procedures” for the military commissions at issue deviate from court-martial practice, the deviations must be explained by some such practical need.

In addition to §836, a second UCMJ provision, 10 U. S. C. §821, requires us to compare the commissions at issue to courts-martial. This provision states:

“The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.”

In §821 Congress has addressed the possibility that special military commissions—criminal courts other than courts-martial—may at times be convened. At the same time, however, the President’s authority to convene military commissions is limited: It extends only to “offenders or offenses” that “by statute or by the law of war may be tried by” such military commissions. Ibid.; see also ante, at 28–29. The Government does not claim to base the charges against Hamdan on a statute; instead it invokes the law of war. That law, as the Court explained in Ex parte Quirin, 317 U. S. 1 (1942) , derives from “rules and precepts of the law of nations”; it is the body of international law governing armed conflict. Id., at 28. If the military commission at issue is illegal under the law of war, then an offender cannot be tried “by the law of war” before that commission.

The Court is correct to concentrate on one provision of the law of war that is applicable to our Nation’s armed conflict with al Qaeda in Afghanistan and, as a result, to the use of a military commission to try Hamdan. Ante, at 65–70; see also 415 F. 3d 33, 44 (CADC 2005) (Williams, J., concurring). That provision is Common Article 3 of the four Geneva Conventions of 1949. It prohibits, as relevant here, “[t]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” See, e.g., Article 3 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3318, T. I. A. S. No. 3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id., at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered “war crimes,” punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U. S. C. §2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821.

The dissent by Justice Thomas argues that Common Article 3 nonetheless is irrelevant to this case because in Johnson v. Eisentrager, 339 U. S. 763 (1950) , it was said to be the “obvious scheme” of the 1929 Geneva Convention that “[r]ights of alien enemies are vindicated under it only through protests and intervention of protecting powers,” i.e., signatory states, id., at 789, n. 14. As the Court explains, ante, at 63–65, this language from Eisentrager is not controlling here. Even assuming the Eisentrager analysis has some bearing upon the analysis of the broader 1949 Conventions and that, in consequence, rights are vindicated “under [those Conventions]” only through protests and intervention, 339 U. S., at 789, n. 14, Common Article 3 is nonetheless relevant to the question of authorization under §821. Common Article 3 is part of the law of war that Congress has directed the President to follow in establishing military commissions. Ante, at 66–67. Consistent with that view, the Eisentrager Court itself considered on the merits claims that “procedural irregularities” under the 1929 Convention “deprive[d] the Military Commission of jurisdiction.” 339 U. S., at 789, 790.

In another military commission case, In re Yamashita, 327 U. S. 1 (1946) , the Court likewise considered on the merits—without any caveat about remedies under the Convention—a claim that an alleged violation of the 1929 Convention “establish[ed] want of authority in the commission to proceed with the trial.” Id., at 23, 24. That is the precise inquiry we are asked to perform here.

Assuming the President has authority to establish a special military commission to try Hamdan, the commission must satisfy Common Article 3’s requirement of a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” 6 U. S. T., at 3318. The terms of this general standard are yet to be elaborated and further defined, but Congress has required compliance with it by referring to the “law of war” in §821. The Court correctly concludes that the military commission here does not comply with this provision.

Common Article 3’s standard of a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” ibid.,supports, at the least, a uniformity principle similar to that codified in §836(b). The concept of a “regularly constituted court” providing “indispensable” judicial guarantees requires consideration of the system of justice under which the commission is established, though no doubt certain minimum standards are applicable. See ante, at 69–70; 1 Int’l Committee of the Red Cross, Customary International Humanitarian Law 355 (2005) (explaining that courts are “regularly constituted” under Common Article 3 if they are “established and organised in accordance with the laws and procedures already in force in a country”).

The regular military courts in our system are the courts-martial established by congressional statutes. Acts of Congress confer on those courts the jurisdiction to try “any person” subject to war crimes prosecution. 10 U. S. C. §818. As the Court explains, moreover, while special military commissions have been convened in previous armed conflicts—a practice recognized in §821—those military commissions generally have adopted the structure and procedure of courts-martial. See, e.g., 1 The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies 248 (2d series 1894) (Civil War general order requiring that military commissions “be constituted in a similar manner and their proceedings be conducted according to the same general rules as courts-martial in order to prevent abuses which might otherwise arise”); W. Winthrop, Military Law and Precedents 835, n. 81 (rev. 2d ed. 1920) (“[M]ilitary commissions are constituted and composed, and their proceedings are conducted, similarly to general courts-martial”); 1 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 116–117 (1947) (reprint 1997) (hereinafter Law Reports) (discussing post-World War II regulations requiring that military commissions “hav[e] regard for” rules of procedure and evidence applicable in general courts-martial); see also ante, at 53–57; post, at 31, n. 15 (Thomas, J., dissenting). Today, moreover, §836(b)—which took effect after the military trials in the World War II cases invoked by the dissent, see Madsen v. Kinsella, 343 U. S. 341 , and n. 6 (1952); Yamashita, supra, at 5; Quirin, 317 U. S., at 23—codifies this presumption of uniformity at least as to “[p]retrial, trial, and post-trial procedures.” Absent more concrete statutory guidance, this historical and statutory background—which suggests that some practical need must justify deviations from the court-martial model—informs the understanding of which military courts are “regularly constituted” under United States law.

In addition, whether or not the possibility, contemplated by the regulations here, of midtrial procedural changes could by itself render a military commission impermissibly irregular, ante, at 70, n. 65; see also Military Commission Order No. 1, §11 (Aug. 31, 2005), App. to Brief for Petitioner 46a–72a (hereinafter MCO), an acceptable degree of independence from the Executive is necessary to render a commission “regularly constituted” by the standards of our Nation’s system of justice. And any suggestion of Executive power to interfere with an ongoing judicial process raises concerns about the proceedings’ fairness. Again, however, courts-martial provide the relevant benchmark. Subject to constitutional limitations, see Ex parte Milligan, 4Wall. 2 (1866), Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them. The guidance Congress has provided with respect to courts-martial indicates the level of independence and procedural rigor that Congress has deemed necessary, at least as a general matter, in the military context.

At a minimum a military commission like the one at issue—a commission specially convened by the President to try specific persons without express congressional authorization—can be “regularly constituted” by the standards of our military justice system only if some practical need explains deviations from court-martial practice. In this regard the standard of Common Article 3, applied here in conformity with §821, parallels the practicability standard of §836(b). Section 836, however, is limited by its terms to matters properly characterized as procedural—that is, “[p]retrial, trial, and post-trial procedures”—while Common Article 3 permits broader consideration of matters of structure, organization, and mechanisms to promote the tribunal’s insulation from command influence. Thus the combined effect of the two statutes discussed here—§§836 and 821—is that considerations of practicability must support departures from court-martial practice. Relevant concerns, as noted earlier, relate to logistical constraints, accommodation of witnesses, security of the proceedings, and the like, not mere expedience or convenience. This determination, of course, must be made with due regard for the constitutional principle that congressional statutes can be controlling, including the congressional direction that the law of war has a bearing on the determination.

These principles provide the framework for an analysis of the specific military commission at issue here.


In assessing the validity of Hamdan’s military commission the precise circumstances of this case bear emphasis. The allegations against Hamdan are undoubtedly serious. Captured in Afghanistan during our Nation’s armed conflict with the Taliban and al Qaeda—a conflict that continues as we speak—Hamdan stands accused of overt acts in furtherance of a conspiracy to commit terrorism: delivering weapons and ammunition to al Qaeda, acquiring trucks for use by Osama bin Laden’s bodyguards, providing security services to bin Laden, and receiving weapons training at a terrorist camp. App. to Pet. for Cert. 65a–67a. Nevertheless, the circumstances of Hamdan’s trial present no exigency requiring special speed or precluding careful consideration of evidence. For roughly four years, Hamdan has been detained at a permanent United States military base in Guantanamo Bay, Cuba. And regardless of the outcome of the criminal proceedings at issue, the Government claims authority to continue to detain him based on his status as an enemy combatant.

Against this background, the Court is correct to conclude that the military commission the President has convened to try Hamdan is unauthorized. Ante, at 62, 69–70, 72. The following analysis, which expands on the Court’s discussion, explains my reasons for reaching this conclusion.

To begin with, the structure and composition of the military commission deviate from conventional court-martial standards. Although these deviations raise questions about the fairness of the trial, no evident practical need explains them.

Under the UCMJ, courts-martial are organized by a “convening authority”—either a commanding officer, the Secretary of Defense, the Secretary concerned, or the President. 10 U. S. C. §§822–824 (2000 ed. and Supp. III). The convening authority refers charges for trial, Manual for Courts-Martial, United States, Rule for Courts-Martial 401 (2005 ed.) (hereinafter R. C. M.), and selects the court-martial members who vote on the guilt or innocence of the accused and determine the sentence, 10 U. S. C. §§825(d)(2) (2000 ed.); R. C. M. 503(a). Paralleling this structure, under Military Commission Order No. 1 an “ ‘Appointing Authority’ ”—either the Secretary of Defense or the Secretary’s “designee”—establishes commissions subject to the order, MCO No. 1, §2, approves and refers charges to be tried by those commissions, §4(B)(2)(a), and appoints commission members who vote on the conviction and sentence, §§4(A)(1–3). In addition the Appointing Authority determines the number of commission members (at least three), oversees the chief prosecutor, provides “investigative or other resources” to the defense insofar as he or she “deems necessary for a full and fair trial,” approves or rejects plea agreements, approves or disapproves communications with news media by prosecution or defense counsel (a function shared by the General Counsel of the Department of Defense), and issues supplementary commission regulations (subject to approval by the General Counsel of the Department of Defense, unless the Appointing Authority is the Secretary of Defense). See MCO No. 1, §§4(A)(2), 5(H), 6(A)(4), 7(A); Military Commission Instruction No. 3, §5(C) (July 15, 2005) (hereinafter MCI), available at www.defenselink.mil/news/Aug2005/d20050811MC13.pdf; MCI No. 4, §5(C) (Sept. 16, 2005), available at www.defenselink.mil/news/Oct2005/d20051003MCI4.pdf MCI No. 6, §3(B)(3) (April 15, 2004), available at www.defenselink.mil/news/Apr2004/d20040420ins6.pdf (all Internet materials as visited June 27, 2006, and available in Clerk of Court’s case file).

Against the background of these significant powers for the Appointing Authority, which in certain respects at least conform to ordinary court-martial standards, the regulations governing the commissions at issue make several noteworthy departures. At a general court-martial—the only type authorized to impose penalties of more than one year’s incarceration or to adjudicate offenses against the law of war, R. C. M. 201(f); 10 U. S. C. §§818–820 (2000 ed. and Supp. III)—the presiding officer who rules on legal issues must be a military judge. R. C. M. 501(a)(1), 801(a)(4)–(5); 10 U. S. C. §816(1) (2000 ed., Supp. III); see also R. C. M. 201(f)(2)(B)(ii) (likewise requiring a military judge for certain other courts-martial); 10 U. S. C. §819 (2000 ed. and Supp. III) (same). A military judge is an officer who is a member of a state or federal bar and has been specially certified for judicial duties by the Judge Advocate General for the officer’s Armed Service. R. C. M. 502(c); 10 U. S. C. §826(b). To protect their independence, military judges at general courts-martial are “assigned and directly responsible to the Judge Advocate General or the Judge Advocate General’s designee.” R. C. M. 502(c). They must be detailed to the court, in accordance with applicable regulations, “by a person assigned as a military judge and directly responsible to the Judge Advocate General or the Judge Advocate General’s designee.” R. C. M. 503(b); see also 10 U. S. C. §826(c); see generally Weiss v. United States, 510 U. S. 163, 179–181 (1994) (discussing provisions that “insulat[e] military judges from the effects of command influence” and thus “preserve judicial impartiality”). Here, by contrast, the Appointing Authority selects the presiding officer, MCO No. 1, §§4(A)(1), (A)(4); and that officer need only be a judge advocate, that is, a military lawyer, §4(A)(4).

The Appointing Authority, moreover, exercises supervisory powers that continue during trial. Any interlocutory question “the disposition of which would effect a termination of proceedings with respect to a charge” is subject to decision not by the presiding officer, but by the Appointing Authority. §4(A)(5)(e) (stating that the presiding officer “shall certify” such questions to the Appointing Authority). Other interlocutory questions may be certified to the Appointing Authority as the presiding officer “deems appropriate.” Ibid. While in some circumstances the Government may appeal certain rulings at a court-martial—including “an order or ruling that terminates the proceedings with respect to a charge or specification,” R. C. M. 908(a); see also 10 U. S. C. §862(a)—the appeals go to a body called the Court of Criminal Appeals, not to the convening authority. R. C. M. 908; 10 U. S. C. §862(b); see also R. C. M. 1107 (requiring the convening authority to approve or disapprove the findings and sentence of a court-martial but providing for such action only after entry of sentence and restricting actions that increase penalties); 10 U. S. C. §860 (same); cf. §837(a) (barring command influence on court-martial actions). The Court of Criminal Appeals functions as the military’s intermediate appeals court; it is established by the Judge Advocate General for each Armed Service and composed of appellate military judges. R. C. M. 1203; 10 U. S. C. §866. This is another means in which, by structure and tradition, the court-martial process is insulated from those who have an interest in the outcome of the proceedings.

Finally, in addition to these powers with respect to the presiding officer, the Appointing Authority has greater flexibility in appointing commission members. While a general court-martial requires, absent a contrary election by the accused, at least five members, R. C. M. 501(a)(1); 10 U. S. C. §816(1) (2000 ed. and Supp. III), the Appointing Authority here is free, as noted earlier, to select as few as three. MCO No. 1, §4(A)(2). This difference may affect the deliberative process and the prosecution’s burden of persuasion.

As compared to the role of the convening authority in a court-martial, the greater powers of the Appointing Authority here—including even the resolution of dispositive issues in the middle of the trial—raise concerns that the commission’s decisionmaking may not be neutral. If the differences are supported by some practical need beyond the goal of constant and ongoing supervision, that need is neither apparent from the record nor established by the Government’s submissions.

It is no answer that, at the end of the day, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, affords military-commission defendants the opportunity for judicial review in federal court. As the Court is correct to observe, the scope of that review is limited, DTA §1005(e)(3)(D), id., at 2743; see also ante, at 8–9, and the review is not automatic if the defendant’s sentence is under 10 years, §1005(e)(3)(B), ibid. Also, provisions for review of legal issues after trial cannot correct for structural defects, such as the role of the Appointing Authority, that can cast doubt on the factfinding process and the presiding judge’s exercise of discretion during trial. Before military-commission defendants may obtain judicial review, furthermore, they must navigate a military review process that again raises fairness concerns. At the outset, the Appointing Authority (unless the Appointing Authority is the Secretary of Defense) performs an “administrative review” of undefined scope, ordering any “supplementary proceedings” deemed necessary. MCO No. 1 §6(H)(3). After that the case is referred to a three-memberReview Panel composed of officers selected by theSecretary of Defense. §6(H)(4); MCI No. 9, §4(B) (Oct. 11, 2005), available at www.defenselink.mil/news/Oct2005/d20051014MCI9.pdf. Though the Review Panel may return the case for further proceedings only if a majority “form[s] a definite and firm conviction that a material error of law occurred,” MCO No. 1, §6(H)(4); MCI No. 9, §4(C)(1)(a), only one member must have “experience as a judge,” MCO No. 1, §6(H)(4); nothing in the regulations requires that other panel members have legal training. By comparison to the review of court-martial judgments performed by such independent bodies as the Judge Advocate General, the Court of Criminal Appeals, and the Court of Appeals for the Armed Forces, 10 U. S. C. §§862, the review process here lacks structural protections designed to help ensure impartiality.

These structural differences between the military commissions and courts-martial—the concentration of functions, including legal decisionmaking, in a single executive official; the less rigorous standards for composition of the tribunal; and the creation of special review procedures in place of institutions created and regulated by Congress—remove safeguards that are important to the fairness of the proceedings and the independence of the court. Congress has prescribed these guarantees for courts-martial; and no evident practical need explains the departures here. For these reasons the commission cannot be considered regularly constituted under United States law and thus does not satisfy Congress’ requirement that military commissions conform to the law of war.

Apart from these structural issues, moreover, the basic procedures for the commissions deviate from procedures for courts-martial, in violation of §836(b). As the Court explains, ante, at 51, 61, the Military Commission Order abandons the detailed Military Rules of Evidence, which are modeled on the Federal Rules of Evidence in conformity with §836(a)’s requirement of presumptive compliance with district-court rules.

Instead, the order imposes just one evidentiary rule: “Evidence shall be admitted if … the evidence would have probative value to a reasonable person,” MCO No. 1, §6(D)(1). Although it is true some military commissions applied an amorphous evidence standard in the past, see, e.g., 1 Law Reports 117–118 (discussing World War II military commission orders); Exec. Order No. 9185, 7Fed. Reg. 5103 (1942) (order convening military commission to try Nazi saboteurs), the evidentiary rules for those commissions were adopted before Congress enacted the uniformity requirement of 10 U. S. C. §836(b) as part of the UCMJ, see Act of May 5, 1950, ch. 169, 64 Stat. 107, 120, 149. And while some flexibility may be necessary to permit trial of battlefield captives like Hamdan, military statutes and rules already provide for introduction of deposition testimony for absent witnesses, 10 U. S. C. §849(d); R. C. M. 702, and use of classified information, Military Rule Evid. 505. Indeed, the deposition-testimony provision specifically mentions military commissions and thus is one of the provisions the Government concedes must be followed by the commission at issue. See ante, at 58. That provision authorizes admission of deposition testimony only if the witness is absent for specified reasons, §849(d)—a requirement that makes no sense if military commissions may consider all probative evidence. Whether or not this conflict renders the rules at issue “contrary to or inconsistent with” the UCMJ under §836(a), it creates a uniformity problem under §836(b).

The rule here could permit admission of multiple hearsay and other forms of evidence generally prohibited on grounds of unreliability. Indeed, the commission regulations specifically contemplate admission of unsworn written statements, MCO No. 1, §6(D)(3); and they make no provision for exclusion of coerced declarations save those “established to have been made as a result of torture,” MCI No. 10, §3(A) (Mar. 24, 2006), available at www.defenselink.mil/news/Mar2006/d20060327MCI10.pdf; cf. Military Rule Evid. 304(c)(3) (generally barring use of statements obtained “through the use of coercion, unlawful influence, or unlawful inducement”); 10 U. S. C. §831(d) (same). Besides, even if evidence is deemed nonprobative by the presiding officer at Hamdan’s trial, the military-commission members still may view it. In another departure from court-martial practice the military commission members may object to the presiding officer’s evidence rulings and determine themselves, by majority vote, whether to admit the evidence. MCO No. 1, §6(D)(1); cf. R. C. M. 801(a)(4), (e)(1) (providing that the military judge at a court-martial determines all questions of law).

As the Court explains, the Government has made no demonstration of practical need for these special rules and procedures, either in this particular case or as to the military commissions in general, ante, at 59–61; nor is any such need self-evident. For all the Government’s regulations and submissions reveal, it would be feasible for most, if not all, of the conventional military evidence rules and procedures to be followed.

In sum, as presently structured, Hamdan’s military commission exceeds the bounds Congress has placed on the President’s authority in §§836 and 821 of the UCMJ. Because Congress has prescribed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws. At this time, however, we must apply the standards Congress has provided. By those standards the military commission is deficient.


In light of the conclusion that the military commission here is unauthorized under the UCMJ, I see no need to consider several further issues addressed in the plurality opinion by Justice Stevens and the dissent by Justice Thomas.

First, I would not decide whether Common Article 3’s standard—a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” 6 U. S. T., at 3320 (¶(1)(d))—necessarily requires that the accused have the right to be present at all stages of a criminal trial. As Justice Stevens explains, Military Commission Order No. 1 authorizes exclusion of the accused from the proceedings if the presiding officer determines that, among other things, protection of classified information so requires. See §§6(B)(3), (D)(5); ante, at 50. Justice Stevens observes that these regulations create the possibility of a conviction and sentence based on evidence Hamdan has not seen or heard—a possibility the plurality is correct to consider troubling. Ante, at 71–72, n. 67 (collecting cases); see also In re Oliver, 333 U. S. 257, 277 (1948) (finding “no support for sustaining petitioner’s conviction of contempt of court upon testimony given in petitioner’s absence”).

As the dissent by Justice Thomas points out, however, the regulations bar the presiding officer from admitting secret evidence if doing so would deprive the accused of a “full and fair trial.” MCO No. 1, §6(D)(5)(b); see also post, at 47. This fairness determination, moreover, is unambiguously subject to judicial review under the DTA. See §1005(e)(3)(D)(i), 119 Stat. 2743 (allowing review of compliance with the “standards and procedures” in Military Commission Order No. 1). The evidentiary proceedings at Hamdan’s trial have yet to commence, and it remains to be seen whether he will suffer any prejudicial exclusion.

There should be reluctance, furthermore, to reach unnecessarily the question whether, as the plurality seems to conclude, ante, at 70, Article 75 of Protocol I to the Geneva Conventions is binding law notwithstanding the earlier decision by our Government not to accede to the Protocol. For all these reasons, and without detracting from the importance of the right of presence, I would rely on other deficiencies noted here and in the opinion by the Court—deficiencies that relate to the structure and procedure of the commission and that inevitably will affect the proceedings—as the basis for finding the military commissions lack authorization under 10 U. S. C. §836 and fail to be regularly constituted under Common Article 3 and §821.

I likewise see no need to address the validity of the conspiracy charge against Hamdan—an issue addressed at length in Part V of Justice Stevens’ opinion and in Part II–C of Justice Thomas’ dissent. See ante, at 36–49; post, at 12–28. In light of the conclusion that the military commissions at issue are unauthorized Congress may choose to provide further guidance in this area. Congress, not the Court, is the branch in the better position to undertake the “sensitive task of establishing a principle not inconsistent with the national interest or international justice.” Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 428 (1964) .

Finally, for the same reason, I express no view on the merits of other limitations on military commissions described as elements of the common law of war in Part V of Justice Stevens’ opinion. See ante, at 31–36, 48–49; post, at 6–12.

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