Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated by Article I, § 8 and Article III, § 1 of the Constitution unless some other part of that document authorizes a response to the felt need. And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war.
The Constitution makes the President the “Commander in Chief” of the Armed Forces, Art. II, § 2, cl. 1, but vests in Congress the powers to “declare War … and make Rules concerning Captures on Land and Water,” Art. I, § 8, cl. 11, to “raise and support Armies,” id., cl. 12, to “define and punish … Offences against the Law of Nations,” id., cl. 10, and “To make Rules for the Government and Regulation of the land and naval Forces,” id., cl. 14. The interplay between these powers was described by Chief Justice Chase in the seminal case of Ex parte Milligan:
“The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President… . Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature.” 4 Wall., at 139-140.
Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions “without the sanction of Congress” in cases of “controlling necessity” is a question this Court has not answered definitively, and need not answer today. For we held in Quirin that Congress had, through Article of War 15, sanctioned the use of military commissions in such circumstances…. 317 U. S., at 28 (“By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases”). Article 21 of the UCMJ, the language of which is substantially identical to the old Article 15 and was preserved by Congress after World War II, reads as follows:
“Jurisdiction of courts-martial not exclusive. The provisions of this code conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such military commissions, provost courts, or other military tribunals.” 64 Stat. 115.
We have no occasion to revisit Quirin’s controversial characterization of Article of War 15 as congressional authorization for military commissions…. Contrary to the Government’s assertion … even Quirin did not view the authorization as a sweeping mandate for the President to “invoke military commissions when he deems them necessary.” Rather, the Quirin Court recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President had had before 1916 to convene military commissions-with the express condition that the President and those under his command comply with the law of war. See 317 U. S., at 28-29.23 That much is evidenced by the Court’s inquiry, following its conclusion that Congress had authorized military commissions, into whether the law of war had indeed been complied with in that case. See ibid.
The Government would have us dispense with the inquiry that the Quirin Court undertook and find in either the AUMF or the DTA specific, overriding authorization for the very commission that has been convened to try Hamdan. Neither of these congressional Acts, however, expands the President’s authority to convene military commissions…. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the “Constitution and laws,” including the law of war….
Whether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions the President’s use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the “rules and precepts of the law of nations,” Quirin, 317 U. S., at 28-including, inter alia, the four Geneva Conventions signed in 1949. See Yamashita, 327 U. S., at 20-21, 23-24. The procedures that the Government has decreed will govern Hamdan’s trial by commission violate these laws.
FN23: 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.
The proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown…“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.” “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.” And “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”
In this case, as the Court observes, the President has acted in a field with a history of congressional participation and regulation. In the Uniform Code of Military Justice …, 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; it regulates the organization and procedure of those courts; it defines offenses, and rights for the accused; and it provides mechanisms for appellate review. As explained below, the statute further recognizes that special military commissions may be convened to try war crimes. 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…. [Analyzes the compatibility with the statute]
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.
[T]he Constitution vests in the President “[t]he executive Power,” Art. II, § 1, provides that he “shall be Commander in Chief” of the Armed Forces, § 2, and places in him the power to recognize foreign governments, § 3. This Court has observed that these provisions confer upon the President broad constitutional authority to protect the Nation’s security in the manner he deems fit.
Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But “Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act,” and “[s]uch failure of Congress … does not, ‘especially … in the areas of foreign policy and national security,’ imply ‘congressional disapproval’ of action taken by the Executive.” Dames & Moore v. Regan, 453 U. S. 654, 678 (1981). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply-and the Judicial Branch should not infer-that Congress intended to deprive him of particular powers not specifically enumerated. See Dames & Moore, 453 U. S., at 678 (“[T]he enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to invite measures on independent presidential responsibility” (internal quotation marks omitted)).
When “the President acts pursuant to an express or implied authorization from Congress,” his actions are “ ‘supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion … rest[s] heavily upon any who might attack it.’ ” Id., at 668 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring)). Accordingly, in the very context that we address today, this Court has concluded that “the detention and trial of petitioners-ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger-are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.” Ex parte Quirin, 317 U. S. 1, 25 (1942)….
The Court holds that even if “the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed” because of its failure to comply with the terms of the UCMJ and the four Geneva Conventions signed in 1949. This position is untenable.
As with the jurisdiction of military commissions, the procedure of such commissions “has [not] been prescribed by statute,” but “has been adapted in each instance to the need that called it forth.” Indeed, this Court has concluded that “[i]n the absence of attempts by Congress to limit the President’s power, it appears that, as Commander in Chief of the Army and Navy of the United States, he may, in time of war, establish and prescribe the jurisdiction and procedure of military commissions.” This conclusion is consistent with this Court’s understanding that military commissions are “our common-law war courts.” As such, “[s]hould the conduct of those who compose martial-law tribunals become [a] matter of judicial determination subsequently before the civil courts, those courts will give great weight to the opinions of the officers as to what the customs of war in any case justify and render necessary.”
The Court nevertheless concludes that at least one provision of the UCMJ amounts to an attempt by Congress to limit the President’s power. This conclusion is not only contrary to the text and structure of the UCMJ, but it is also inconsistent with precedent of this Court.
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