Hamdan v. Rumsfeld (2006)

*566 Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, Parts VI through VI-D-iii, Part VI-D-v, and Part VII, and an opinion with respect to Parts V and VI-Div, in which Justice Souter, Justice Ginsburg, and Justice Breyer join. Petitioner Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the Taliban (which then governed Afghanistan), Hamdan was captured by militia forces and turned over to the U. S. military. In June 2002, he was transported to Guantanamo Bay. Over a year later, the President deemed him eligible for trial by military commission for then-unspecified crimes. After another year had passed, Hamdan was charged with one count of conspiracy “to commit . . . offenses triable by military commission.” App. to Pet. for Cert. 65a. *567 Hamdan filed petitions for writs of habeas corpus and mandamus to challenge the Executive Branch’s intended means of prosecuting this charge. He concedes that a court-martial constituted in accordance with the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq. (2000 ed. and Supp. Ill), would have authority to try him. His objection is that the military commission the President has convened lacks such authority, for two principal reasons: First, neither congressional Act nor the common law of war supports trial by this commission for the crime of conspiracy— an offense that, Hamdan says, is not a violation of the law of war. Second, Hamdan contends, the procedures that the President has adopted to try him violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him. The District Court granted Hamdan’s request for a writ of habeas corpus. 344 F. Supp. 2d 152 (DC 2004). The Court of Appeals for the District of Columbia Circuit reversed. 415 F. 3d 33 (2005). Recognizing, as we did over a half century ago, that trial by military commission is an extraordinary measure raising important questions about the balance of powers in our constitutional structure, Ex parte Quirin, 317 U. S. 1, 19 (1942), we granted certiorari. 546 U. S. 1002 (2005). For the reasons that follow, we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an “offens[e] that by . . . the law of war may be tried by military commissions.” 10 U. S. C. §821 . I On September 11, 2001, agents of the al Qaeda terrorist organization hijacked commercial airplanes and attacked the *568 World Trade Center in New York City and the national headquarters of the Department of Defense in Arlington, Virginia. Americans will never forget the devastation wrought by these acts. Nearly 3,000 civilians were killed. Congress responded by adopting a Joint Resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks ... in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (AUMF), 115 Stat. 224, note following 50 U. S. C. § 1541 (2000 ed., Supp. III). Acting pursuant to the AUMF, and having determined that the Taliban regime had supported al Qaeda, the President ordered the Armed Forces of the United States to invade Afghanistan. In the ensuing hostilities, hundreds of individuals, Hamdan among them, were captured and eventually detained at Guantanamo Bay. On November 13, 2001, while the United States was still engaged in active combat with the Taliban, the President issued a comprehensive military order intended to govern the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 Fed. Reg. 57833 (hereinafter November 13 Order or Order). Those subject to the November 13 Order include any noncitizen for whom the President determines “there is reason to believe” that he or she (1) “is or was” a member of al Qaeda or (2) has engaged or participated in terrorist activities aimed at or harmful to the United States. Id., at 57834 . Any such individual “shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.” Ibid. The No *569 vember 13 Order vested in the Secretary of Defense the power to appoint military commissions to try individuals subject to the Order, but that power has since been delegated to John D. Altenburg, Jr., a retired Army major general and longtime military lawyer who has been designated “Appointing Authority for Military Commissions.” On July 3, 2003, the President announced his determination that Hamdan and five other detainees at Guantanamo Bay were subject to the November 13 Order and thus triable by military commission. In December 2003, military counsel was appointed to represent Hamdan. Two months later, counsel filed demands for charges and for a speedy trial pursuant to Article 10 of the UCM J, 10 U. S. C. § 810 . On February 23,2004, the legal adviser to the Appointing Authority denied the applications, ruling that Hamdan was not entitled to any of the protections of the UCMJ. Not until July 13, 2004, after Hamdan had commenced this action in the United States District Court for the Western District of Washington, did the Government finally charge him with the offense for which, a year earlier, he had been deemed eligible for trial by military commission. The charging document, which is unsigned, contains 13 numbered paragraphs. The first two paragraphs recite the asserted bases for the military commission’s jurisdiction— namely, the November 13 Order and the President’s July 3, 2003, declaration that Hamdan is eligible for trial by military commission. The next nine paragraphs, collectively entitled “General Allegations,” describe al Qaeda’s activities from its inception in 1989 through 2001 and identify Usama bin Laden as the group’s leader. Hamdan is not mentioned in these paragraphs. Only the final two paragraphs, entitled “Charge: Conspiracy,” contain allegations against Hamdan. Paragraph 12 charges that “from on or about February 1996 to on or about November 24, 2001,” Hamdan “willfully and knowingly *570 joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with [named members of al Qaeda] to commit the following offenses triable by military commission: attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; and terrorism.” App. to Pet. for Cert. 65a. There is no allegation that Hamdan had any command responsibilities, played a leadership role, or participated in the planning of any activity. Paragraph 13 lists four “overt acts” that Hamdan is alleged to have committed sometime between 1996 and November 2001 in furtherance of the “enterprise and conspiracy”: (1) he acted as Usama bin Laden’s “bodyguard and personal driver,” “believ[ing]” all the while that bin Laden “and his associates were involved in” terrorist acts prior to and including the attacks of September 11, 2001; (2) he arranged for transportation of, and actually transported, weapons used by al Qaeda members and by bin Laden’s bodyguards (Hamdan among them); (3) he “drove or accompanied [U]sama bin Laden to various al Qaida-sponsored training camps, press conferences, or lectures,” at which bin Laden encouraged attacks against Americans; and (4) he received weapons training at al Qaeda-sponsored camps. Id., at 65a-67a, After this formal charge was filed, the United States District Court for the Western District of Washington trans-erred Hamdan’s habeas and mandamus petitions to the United States District Court for the District of Columbia. Meanwhile, a Combatant Status Review Tribunal (CSRT) convened pursuant to a military order issued on July 7, 2004, decided that Hamdan’s continued detention at Guantanamo Bay was warranted because he was an “enemy combatant.” 1 *571 Separately, proceedings before the military commission commenced. On November 8,2004, however, the District Court granted Hamdan’s petition for habeas corpus and stayed the commission’s proceedings. It concluded that the President’s authority to establish military commissions extends only to “offenders or offenses triable by military [commission] under the law of war,” 344 F. Supp. 2d, at 158 ; that the law of war includes the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, T. I. A. S. No. 3364 (Third Geneva Convention); that Hamdan is entitled to the full protections of the Third Geneva Convention until adjudged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the UCM J and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. 344 F. Supp. 2d, at 158-172 . The Court of Appeals for the District of Columbia Circuit reversed. Like the District Court, the Court of Appeals declined the Government’s invitation to abstain from considering Hamdan’s challenge. Cf. Schlesinger v. Councilman, 420 U. S. 738 (1975). On the merits, the panel rejected the District Court’s further conclusion that Hamdan was entitled to relief under the Third Geneva Convention. All three judges agreed that the Geneva Conventions were not “judicially enforceable,” 415 F. 3d, at 38 , and two thought that the Conventions did not in any event apply to Hamdan, id., at 40-42 ; but see id., at 44 (Williams, J., concurring). In other portions of its opinion, the court concluded that our decision in Quirin foreclosed any separation-of-powers objection to *572 the military commission’s jurisdiction, and held that Hamdan’s trial before the contemplated commission would violate neither the UCMJ nor U. S. Armed Forces regulations intended to implement the Geneva Conventions. 415 F. 3d, at 38, 42-43 . On November 7, 2005, we granted certiorari to decide whether the military commission convened to try Hamdan has authority to do so, and whether Hamdan may rely on the Geneva Conventions in these proceedings. II On February 13, 2006, the Government filed a motion to dismiss the writ of certiorari. The ground cited for dismissal was the recently enacted Detainee Treatment Act of 2005 (DTA), Pub. L. 109-148,119 Stat. 2739. We postponed our ruling on that motion pending argument on the merits, 546 U. S. 1166 (2006), and now deny it. The DTA, which was signed into law on December 30, 2005, addresses a broad swath of subjects related to detainees. It places restrictions on the treatment and interrogation of detainees in U. S. custody, and it furnishes procedural protections for U. S. personnel accused of engaging in improper interrogation. DTA §§1002-1004, 119 Stat. 2739 -2740. It also sets forth certain “procedures for status REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.” §1005, id., at 2740. Subsections (a) through (d) of §1005 direct the Secretary of Defense to report to Congress the procedures being used by CSRTs to determine the proper classification of detainees held in Guantanamo Bay, Iraq, and Afghanistan, and to adopt certain safeguards as part of those procedures. Subsection (e) of §1005, which is entitled “JUDICIAL REVIEW of Detention of Enemy Combatants,” supplies the basis for the Government’s jurisdictional argument. The subsection contains three numbered paragraphs. The first paragraph amends the judicial code as follows: *573 “(1) In general.—Section 2241 of title 28, United States Code, is amended by adding at the end the following: “‘(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider— “ ‘(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or “ ‘(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who— “ ‘(A) is currently in military custody; or “‘(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.’” § 1005(e), id., at 2741-2742. Paragraph (2) of subsection (e) vests in the Court of Appeals for the District of Columbia Circuit the “exclusive jurisdiction to determine the validity of any final decision of a [CSRT] that an alien is properly detained as an enemy combatant.” Paragraph (2) also delimits the scope of that review. See §§ 1005(e)(2)(C)(i)-(ii), id., at 2742. Paragraph (3) mirrors paragraph (2) in structure, but governs judicial review of final decisions of military commissions, not CSRTs. It vests in the Court of Appeals for the District of Columbia Circuit “exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).” § 1005(e)(3)(A), id., at 2743. 2 *574 Review is as of right for any alien sentenced to death or a term of imprisonment of 10 years or more, but is at the Court of Appeals’ discretion in all other cases. The scope of review is limited to the following inquiries: “(i) whether the final decision [of the military commission] was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and “(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.” § 1005(e)(3)(D), ibid. Finally, § 1005 contains an “effective date” provision, which reads as follows: “(1) In general.—This section shall take effect on the date of the enactment of this Act. “(2) Review of Combatant Status Tribunal and Military Commission Decisions.—Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.” § 1005(h), id., at 2743-2744. 3 The DTA is silent about whether paragraph (1) of subsection (e) “shall apply” to claims pending on the date of enactment. The Government argues that §§ 1005(e)(1) and 1005(h) had the immediate effect, upon enactment, of repealing federal jurisdiction not just over detainee habeas actions yet to be filed but also over any such actions then pending in any federal court—including this Court. Accordingly, it argues, we *575 lack jurisdiction to review the Court of Appeals’ decision below. Hamdan objects to this theory on both constitutional and statutory grounds. Principal among his constitutional arguments is that the Government’s preferred reading raises grave questions about Congress’ authority to impinge upon this Court’s appellate jurisdiction, particularly in habeas cases. Support for this argument is drawn from Ex parte Yerger, 8 Wall. 85 (1869), in which, having explained that “the denial to this court of appellate jurisdiction” to consider an original writ of habeas corpus would “greatly weaken the efficacy of the writ,” id., at 102-103 , we held that Congress would not be presumed to have effected such denial absent an unmistakably clear statement to the contrary. See id., at 104-105 ; see also Felker v. Turpin, 518 U. S. 651 (1996); Durousseau v. United States, 6 Cranch 307, 314 (1810) (opinion for the Court by Marshall, C. J.) (The “appellate powers of this court” are not created by statute but are “given by the constitution”); United States v. Klein, 13 Wall. 128 (1872). Cf. Ex parte McCardle, 7 Wall. 506, 514 (1869) (holding that Congress had validly foreclosed one avenue of appellate review where its repeal of habeas jurisdiction, reproduced in the margin, 4 could not have been “a plainer instance of positive exception”). Hamdan also suggests that, if the Government’s reading is correct, Congress has unconstitutionally suspended the writ of habeas corpus. We find it unnecessary to reach either of these arguments. Ordinary principles of statutory construction suffice to rebut *576 the Government’s theory—at least insofar as this case, which was pending at the time the DTA was enacted, is concerned. The Government acknowledges that only paragraphs (2) and (3) of subsection (e) are expressly made applicable to pending cases, see § 1005(h)(2), 119 Stat. 2743 -2744, but argues that the omission of paragraph (1) from the scope of that express statement is of no moment. This is so, we are told, because Congress’ failure to expressly reserve federal courts’ jurisdiction over pending cases erects a presumption against jurisdiction, and that presumption is rebutted by neither the text nor the legislative history of the DTA. The first part of this argument is not entirely without support in our precedents. We have in the past “applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.” Landgraf v. USI Film Products, 511 U. S. 244, 274 (1994) (citing Bruner v. United States, 343 U. S. 112 (1952); Hallowell v. Commons, 239 U. S. 506 (1916)); see Republic of Austria v. Altmann, 541 U. S. 677, 693 (2004). But the “presumption” that these cases have applied is more accurately viewed as the nonapplieation of another presumption—viz., the presumption against retroactivity—in certain limited circumstances. 5 If a statutory provision “would operate retroactively” as applied to cases pending at the time the provision was enacted, then “our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.” Landgraf, 511 U. S., at 280 . We have explained, however, that, unlike other intervening changes in the law, a *577 jurisdiction-conferring or jurisdiction-stripping statute usually “takes away no substantive right but simply changes the tribunal that is to hear the case.” Hallowell, 239 U. S., at 508 . If that is truly all the statute does, no retroactivity problem arises because the change in the law does not “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U. S., at 280 . 6 And if a new rule has no retroactive effect, the presumption against retroactivity will not prevent its application to a case that was already pending when the new rule was enacted. That does not mean, however, that all jurisdiction-stripping provisions—or even all such provisions that truly lack retroactive effect—must apply to cases pending at the time of their enactment. 7 “[Njormal rules of construction,” including a contextual reading of the statutory language, may dictate otherwise. Lindh v. Murphy, 521 U. S. 320 , 326 *578 (1997). 8 A familiar principle of statutory construction, relevant both in Lindh and here, is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute. See id., at 330 ; see also, e. g., Russello v. United States, 464 U. S. 16, 23 (1983) (“‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ”). The Court in Lindh relied on this reasoning to conclude that certain limitations on the availability of habeas relief imposed by AEDPA applied only to cases filed after that statute’s effective date. Congress’ failure to identify the temporal reach of those limitations, which governed noncapital cases, stood in contrast to its express command in the same legislation that new rules governing habeas petitions in capital cases “apply to cases pending on or after the date of enactment.” § 107(c), 110 Stat. 1226 ; see Lindh, 521 U. S., at 329-330 . That contrast, combined with the fact that the amendments at issue “affect[ed] substantive entitlement to relief,” id., at 327 , warranted drawing a negative inference. A like inference follows a fortiori from Lindh in this case. “If . . . Congress was reasonably concerned to ensure that [§§ 1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§ 1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases.” Id., at 329. If anything, the evidence of deliberate omission is stronger here than it *579 was in Lindh . In Lindh , the provisions to be contrasted had been drafted separately but were later “joined together and ... considered simultaneously when the language raising the implication was inserted.” Id., at 330 . We observed that Congress’ tandem review and approval of the two sets of provisions strengthened the presumption that the relevant omission was deliberate. Id., at 331 ; see also Field v. Mans, 516 U. S. 59, 75 (1995) (“The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects”). Here, Congress not only considered the respective temporal reaches of paragraphs (1) , (2), and (3) of subsection (e) together at every stage, but omitted paragraph (1) from its directive that paragraphs (2) and (3) apply to pending cases only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within the scope of that directive. Compare DTA § 1005(h)(2), 119 Stat. 2743 -2744, with 151 Cong. Rec. S12655 (Nov. 10, 2005) (S. Arndt. 2515); see id., at S14257-S14258 (Dec. 21, 2005) (discussing similar language proposed in both the House and the Senate). 9 Congress’ rejection of the very language that would have *580 achieved the result the Government urges here weighs heavily against the Government’s interpretation. See Doe v. Chao, 540 U. S. 614, 621-623 (2004). 10 *581 The Government nonetheless offers two reasons why, in its view, no negative inference may be drawn in favor of jurisdiction. First, it asserts that Lindh is inapposite because “Section 1005(e)(1) and (h)(1) remove jurisdiction, while Section 1005(e)(2), (3) and (h)(2) create an exclusive review mechanism and define the nature of that review.” Reply Brief in Support of Respondents’ Motion to Dismiss 4. Because the provisions being contrasted “address wholly distinct subject matters,” Martin v. Hadix, 527 U. S. 343, 356 (1999), the Government argues, Congress’ different treatment of them is of no significance. This argument must fail because it rests on a false distinction between the “jurisdictional” nature of subsection (e)(1) and the “procedural” character of subsections (e)(2) and (e)(3). In truth, all three provisions govern jurisdiction over detainees’ claims; subsection (e)(1) addresses jurisdiction in habeas cases and other actions “relating to any aspect of the detention,” while subsections (e)(2) and (e)(3) vest exclusive, 11 but limited, jurisdiction in the Court of Appeals for the District of Columbia Circuit to review “final decision[s]” of CSRTs and military commissions. That subsection (e)(1) strips jurisdiction while subsections (e)(2) and (e)(3) restore it in limited form is hardly a distinction upon which a negative inference must founder. Justice Scalia, in arguing to the contrary, maintains that Con *582 gress had “ample reason” to provide explicitly for application of subsections (e)(2) and (e)(3) to pending cases because “jurisdiction-ousting” provisions like subsection (e)(1) have been treated differently under our retroactivity jurisprudence than “jurisdiction-creating” ones like subsections (e)(2) and (e)(3). Post, at 662 (dissenting opinion); see also Reply Brief in Support of Respondents’ Motion to Dismiss 5-6. That theory is insupportable. Assuming, arguendo, that subsections (e)(2) and (e)(3) “confer new jurisdiction (in the D. C. Circuit) where there was none before,” post, at 662 (emphasis in original); but see Rasul v. Bush, 542 U. S. 466 (2004), and that our precedents can be read to “strongly indicat[e]” that jurisdiction-creating statutes raise special retro-activity concerns not also raised by jurisdiction-stripping statutes, post, at 662, 12 subsections (e)(2) and (e)(3) “confer” jurisdiction in a manner that cannot conceivably give rise to retroactivity questions under our precedents. The provisions impose no additional liability or obligation on any private party or even on the United States, unless one counts the burden of litigating an appeal—a burden not a single one of our cases suggests triggers retroactivity concerns. 13 *583 Moreover, it strains credulity to suggest that the desire to reinforce the application of subsections (e)(2) and (e)(3) to pending cases drove Congress to exclude subsection (e)(1) from § 1005(h)(2). The Government’s second objection is that applying subsections (e)(2) and (e)(3) but not (e)(1) to pending cases “produces an absurd result” because it grants (albeit only temporarily) dual jurisdiction over detainees’ cases in circumstances where the statute plainly envisions that the D. C. Circuit will have “exclusive” and immediate jurisdiction over such cases. Reply Brief in Support of Respondents’ Motion to Dismiss 7. But the premise here is faulty; subsections (e)(2) and (e)(3) grant jurisdiction only over actions to “determine the validity of any final decision” of a CSRT or commission. Because Hamdan, at least, is not contesting any “final decision” of a CSRT or military commission, his action does not fall within the scope of subsection (e)(2) or (e)(3). There is, then, no absurdity. 14 The Government’s more general suggestion that Congress can have had no good reason for preserving habeas jurisdiction over cases that had been brought by detainees prior to enactment of the DTA not only is belied by the legislative history, see n. 10, supra, but is otherwise without merit. There is nothing absurd about a scheme under which pending habeas actions—particularly those, like this one, that challenge the very legitimacy of the tribunals whose judgments Congress would like to have reviewed—are preserved, and more routine challenges to final decision's ren *584 dered by those tribunals are carefully channeled to a particular court and through a particular lens of review. Finally, we cannot leave unaddressed Justice Scalia’s contentions that the “meaning of § 1005(e)(1) is entirely clear,” post, at 660, and that “the plain import of a statute repealing jurisdiction is to eliminate the power to consider and render judgment—in an already pending case no less than in a case yet to be filed,” post, at 657 (emphasis in original). Only by treating the Bruner rule as an inflexible trump (a thing it has never been, see n. 7, supra) and ignoring both the rest of § 1005’s text and its drafting history can one conclude as much. Congress here expressly provided that subsections (e)(2) and (e)(3) applied to pending cases. It chose not to so provide—after having been presented with the option—for subsection (e)(1). The omission is an integral part of the statutory scheme that muddies whatever “plain meaning” may be discerned from blinkered study of subsection (e)(1) alone. The dissent’s speculation about what Congress might have intended by the omission not only is counterfactual, cf. n. 10, supra (recounting legislative history), but rests on both a misconstruction of the DTA and an erroneous view of our precedents, see supra, at 582-583, and n. 12. For these reasons, we deny the Government’s motion to dismiss. 15 Ill Relying on our decision in Councilman, 420 U. S. 738 , the Government argues that, even if we have statutory jurisdic *585 tion, we should apply the “judge-made rule that civilian courts should await the final outcome of on-going military proceedings before entertaining an attack on those proceedings.” Brief for Respondents 12. Like the District Court and the Court of Appeals before us, we reject this argument. In Councilman , an army officer on active duty was referred to a court-martial for trial on charges that he violated the UCMJ by selling, transferring, and possessing marijuana. 420 U. S., at 739-740 . Objecting that the alleged offenses were not “ ‘service connected,’ ” id., at 740 , the officer filed suit in Federal District Court to enjoin the proceedings. He neither questioned the lawfulness of courts-martial or their procedures nor disputed that, as a serviceman, he was subject to court-martial jurisdiction. His sole argument was that the subject matter of his case did not fall within the scope of court-martial authority. See id., at 741, 759 . The District Court granted his request for injunctive relief, and the Court of Appeals affirmed. We granted certiorari and reversed. Id., at 761 . We did not reach the merits of whether the marijuana charges were sufficiently “service connected” to place them within the subject-matter jurisdiction of a court-martial. Instead, we concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending court-martial proceedings against members of the Armed Forces, 16 and *586 further that there was nothing in the particular circumstances of the officer’s case to displace that general rule. See id,., at 740, 758. Councilman identifies two considerations of comity that together favor abstention pending completion of ongoing court-martial proceedings against service personnel. See New v. Cohen, 129 F. 3d 639, 643 (CADC 1997); see also 415 F. 3d, at 36-37 (discussing Councilman and New). First, military discipline and, therefore, the efficient operation of the Armed Forces are best served if the military justice system acts without regular interference from civilian courts. See Councilman, 420 U. S., at 752. Second, federal courts should respect the balance that Congress struck between military preparedness and fairness to individual service members when it created “an integrated system of military courts and review procedures, a critical element of which is the Court of Military Appeals consisting of civilian judges ‘completely removed from all military influence or persuasion ....’” Id., at 758 (quoting H. R. Rep. No. 491, 81st Cong., 1st Sess., 7 (1949)). Just as abstention in the face of ongoing state criminal proceedings is justified by our expectation that state courts will enforce federal rights, so abstention in the face of ongoing court-martial proceedings is justified by our expectation that the military court system established by Congress—with its substantial procedural protections and provision for appellate review by independent civilian judges—“will vindicate servicemen’s constitutional rights,” 420 U. S., at 758 . See id., at 755-758 . 17 *587 The same cannot be said here; indeed, neither of the comity considerations identified in Councilman weighs in favor of abstention in this case. First, Hamdan is not a member of our Nation’s Armed Forces, so concerns about military discipline do not apply. Second, the tribunal convened to try Hamdan is not part of the integrated system of military courts, complete with independent review panels, that Congress has established. Unlike the officer in Councilman , Hamdan has no right to appeal any conviction to the civilian judges of the Court of Military Appeals (now called the United States Court of Appeals for the Armed Forces, see § 924, 108 Stat. 2831 ). Instead, under Dept, of Defense Military Commission Order No. 1 (Commission Order No. 1), App. C to Brief for Petitioner 46a, which was issued by the Secretary of Defense on March 21, 2002, and amended most recently on August 31, 2005, and which governs the procedures for Hamdan’s commission, any conviction would be reviewed by a panel consisting of three military officers designated by the Secretary. Id., § 6(H)(4). Commission Order No. 1 provides that appeal of a review panel’s decision may be had only to the Secretary himself, § 6(H)(5), and then, finally, to the President, § 6(H)(6). 18 We have no doubt that the various individuals assigned review power under Commission Order No. 1 would strive to act impartially and ensure that Hamdan receive all protections