When Congress has wanted to make claims for violations of customary international law actionable in domestic courts, it has done so. See, e.g., 18 U.S.C. § 2441 (war crimes); 28 U.S.C. § 1350 (tort claims); 10 U.S.C. § 821 (law of war). 18 The Military Claims Act, 10 U.S.C. § 2733, and the Foreign Claims Act, 10 U.S.C. § 2734, are among other vehicles Congress has provided to offer compensation for injuries caused by the military.

The Hamdan plurality concluded to the contrary, in interpreting an Act of Congress that limited the jurisdiction of commissions to “offenses that . . . by the law of war may be tried by military commissions.” 10 U.S.C. § 821. If conspiracy was not such an offense in June 2006, it simply does not follow that it became one simply by virtue of a subsequent Act of Congress (the 36 Ruling on Motion to Dismiss (Ex Post Facto), Second McMillan Decl., Ex.

The UCMJ applies to courts-martial, and does not constrain the Executive’s authority to detain enemy combatants or to review of such detention. See 10 U.S.C. § 821 (“The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions . . . of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions.”).