1. The offense being charged must have happened within the area of conflict.
2. The offense being charged must have happened during the conflict.
Thomas asserts (on page 133) that these conditions are both satisfied in the Hamdan case because:
the Executive has determined that the theater of the present conflict includes "Afghanistan, Pakistan and other countries" where al Qaeda has established training camps [ . . . ] and that the duration of that conflict dates back (at least) to Usama bin Laden's August 1996 "Declaration of Jihad Against the Americans," ibid. Under the Executive's description of the conflict, then, every aspect of the charge, which alleges overt acts in "Afghanistan, Pakistan, Yemen and other countries" taking place from 1996 to 2001, satisfies the temporal and geographic prerequisites for the exercise of law-of-war military commission jurisdiction.(Hamdan is accused of cooperating with al-Qaeda during the years referenced, not of any act committed on the battlefield.)
Stevens, on the other hand, notes (in a footnote on page 43) that:
[ . . . ] 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.In other words, Stevens is pointing out that Thomas is playing advocate here, making assertions not made by the government in an attempt to bolster its argument. (For his part, Thomas refers to the majority's decision that the war started when the government says it started as "an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority.")
3. The individual being charged must be a member of the enemy's army and guilty of illegitimate warfare or violation of the laws of war (or a member of your own army and guilty with crimes not otherwise subject to prosecution).
4. The commission may try only "Violations of the laws and usages of war cognizable by military tribunals only," and "[b]reaches of military orders or regulations for which offenders are not legally triable by court-martial under the Articles of war."
Stevens points out (beginning on page 44) that the crime charged -- conspiracy -- is not recognized in the statues or military common law as a war crime, and as such is not legitimate as a charge in this context. Thomas asserts (on page 138):
[ . . . ] Hamdan is an unlawful combatant charged with joining and conspiring with a terrorist network dedicated to flouting the laws of war.Stevens replies by pointing out (in a footnote on page 45) that Thomas is once again making an argument not included in the case presented by the government.
The analysis of this issue goes on for quite a while. Stevens makes a point of distinguishing between the arguments presented by the government and those put forward by Thomas as he addresses them. Thomas also asserts (on page 155) that:
[ . . . ] according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war.In his enthusiasm to advocate the government's position, Thomas seems to forget that he sits atop a system of courts perfectly capable of doing that very thing.
As the analysis of the jurisdictional authority of the tribunal against Hamdan winds down, Stevens takes a little jab at Thomas (on page 56):
In sum, the sources that the Government and JUSTICE THOMAS rely upon to show that conspiracy to violate the law of war is itself a violation of the law of war in fact demonstrate quite the opposite.Thomas, probably as a rejoinder, finally (on page 156) becomes really quite amusing in his petulance:
Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusion that a storm drain is a tributary of the waters of the United States.