This educational guide is based on the linked primary sources. It is not a Court publication, is not affiliated with the Court, and is not legal advice.
In brief
Overview
According to Paul D. Clement (respondents), according to Paul D. Clement (respondents), the government argues that military commissions are authorized by longstanding executive power and by congressional enactments.
Background and question before the Court
The Court asked whether the charge before the military commission violates the laws of war.
The petitioner argued that the charge of conspiracy does not violate the laws of war.
What each side argues
Petitioner (Hamdan)
The petitioner asks the Court to preserve the status quo and require the President to respect long‑standing limits on military commissions.
The petitioner argues that the DTA does not divest the Court of jurisdiction for four essential reasons.
The petitioner contends that the military commission’s charge does not violate the laws of war.
Government (Respondent)
According to Paul D. Clement (respondents), the government asserts that the executive branch has long exercised authority to try enemy combatants by military commissions, a power rooted in the Constitution.
According to Paul D. Clement (respondents), the government notes that Congress has repeatedly recognized and sanctioned the authority of military commissions.
The government argues that the charge of conspiracy alleged against the petitioner is not a violation of the laws of war.
According to General Clement, general Clement stated that the Geneva Conventions do not provide relief in these circumstances and therefore do not apply to the commissions.
The government contends that the President’s flexibility with respect to the commissions is limited to the nine provisions of the UCMJ governing translators and deposition testimony.
According to General Clement (U.S. Government), general Clement argued that the suspension clause is satisfied by the exigencies of 9/11 and does not indicate a congressional intent to suspend the writ of habeas corpus.
- [1] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 36
- [2] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 36
- [3] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 19
- [4] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 72
- [5] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 82
- [6] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 57
What happened at oral argument
According to Justice Stevens, justice Stevens announced the start of argument for case 05‑184, Hamdan v. Rumsfeld.
Justice Scalia asked where a change was made from a prior version of the DTA.
Justice Souter asked whether, given the significance of suspending the writ of habeas corpus, a clear statement from Congress is required.
According to Justice Breyer, justice Breyer noted four items that could not be shoehorned into the argument.
Justice Stevens asked what sources of law the commissions have historically enforced.
Justice Breyer asked whether the statutes define the contours of the term “laws of war.”
- [1] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 3
- [2] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 5
- [3] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 61
- [4] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 53
- [5] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 37
- [6] c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdf, p. 74
What the Court decided
Why it matters
Terms to know
No glossary terms are available for this guide.
Primary sources
Read the source materials on the official site or open the immutable repository copy used for this guide.
- c3e2f0ba192b6bd7242f-r1-df55829284fdd306.pdforal argument transcript
Guide generated September 21, 2026. Automated validation accepted this version.