Amicus Curiae Brief — Rasul v. Bush

ourt, U.

FILED

{yn JAN 1 4 2004

(a) (19

Nos. avs, and 03-343 OFFICE OF THE CLERK

In the Supreme Court of the Gnited States

SHAFIQ RASUL, ET AL., Petitioners

Vv.

GEORGE W. BUSH, ET AL., Respondents

FAWZI KHALID ABDULLAH FAHAD AL ODAH,

ET AL., Petitioners

Vv.

UNITED STATES OF AMERICA, ET AL., Respondents

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE NATIONAL INSTITUTE OF

MILITARY JUSTICE AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

RONALD W. MEISTER

Counsel of Record

JASON D. SANDERS

Cowan, Liebowitz & Latman, P.C.

1133 Avenue of the Americas

New York, NY 10036

(212) 790-9200

eS TTS

i

CONTENTS

Page

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INTEREST OF THE AMICUS CURIAE ..............20006: l

SUMMARY OF ARGUMENT. ............::cccssssssssesrseeeeees 2

TT siiicitticarcsncenennincinineinentncsoenssesnnmasmnitensetenes 3

I. The History Of Domestic And International

Military Law Since Eisentrager Has Been

One Of Steady Progress In The Rule Of Law

During Hostilities As Well As In Peacetime.......... 3

Be I BE iccctcnsenscnccnsinnnssnennnnscncsmesesinessseces 3

i EB ccctscccscccncniennsnnncastrmarevesscesees 6

II. The Treatment Of Individuals Seized During

Hostilities Is Governed By Long-Standing

Law And Practice In The United States

TT cusiieessentniissininsinsavacncdnntinncesascsnmisemmenasesancoeecees 7

A. Applicable Law Provides For The

Determination Of Status By Impartial

, een 7

B. Enforcement Of These Rules Does Not

Interfere With Military Necessity.................++.. 12

III. The Executive Branch Is Not Complying With

These Rules, And Is Failing To Provide The

Benefit Of The Process That Is In Place For

Individuals Seized During Hostilities.....................

TG cncecccaceccsssesasssccscsscscsssesssscscscocessosossoossees

li

AUTHORITIES CITED

Page

Cases

Arizona v. Washington, 434 U.S. 497 (1978)............. 11

Burtt v. Schick, 23 M.J. 140 (1986).............ccc0eee00 2,11

Clinton v. Goldsmith, 526 U.S. 529 (1999) ...........00000 l

Duncan v. Kahanamoku, 327 U.S. 304 (1946)........... 15

Ex parte Quirin, 317 U.S. 1 (1942) w..cececeeeeeeeseeeeeeee 15

Johnson v. Eisentrager, 339 U.S. 763 (1950) .....passim

Reid v. Covert, 354 U.S. 1 (1957) ..cccccosccossscscsscesosscesees 5

Service v. Dulles, 354 U.S. 363 (1957) .........cccccccceeees 10

United States ex rel. Toth v. Quarles,

3SO UZ. 11 (IDBS) .nccccccsecsniesnnmmmestemeene 5

United States v. Care, 18 C.M.A. 535,

40 C.MLR. B67 (IDGT) ncccscrcssssnessintmmesiaieaa 5

United States v. Coplon, 185 F.2d 629 Fe

(26 Cit. 19GGD nccccccsccccsessesstmmiae 16

United States v. Jacoby, 11 C.M.A. 428,

29 CER. 266 (1IDGGBD. .nccccsssssecemia 5

United States v. Lee, 906 F:2d 117

(4 Cis. 19 DGD ..:ccccesisiscsstttmapiiage 11

United States v. Matthews, 16 M.J. 354

(CALA. 19GB anccnsnetisimiinonne 5

United States v. Rogers, 388 F. Supp. 298

(ED. Va. 1DTE? «cesta ll

United States Constitution

ASORGMGEE S conscscsenesstngipsinsiniiiiaiedummamaieiamaadl 5

AGRORERREEE 6 nncccscossnseabinsspsasiitimummaimmimiaiaiaaiiiiiadaaiiaiads 5

AGMERETIGTRS scccscncnanicsiiisiianamaninisiamiiaiailiesssiasiaaieiiiiii 5

re Se See... see...

ill

Treaties

Fourth Geneva Convention, Relative to the

Protection of Civilian Persons in Time

of War, 6 U.S.T. 3516, T.LA.S. 3365..................... 6

Third Geneva Convention, Relative to the

Treatment of Prisoners of War, 6 U.S.T.

i TID, ITED cnncernsceueveecsscesssecsescneseanees passim

Statutes

EE a 11

inc nccrrrenemenmemnnsanansesenszennestansenenste 4

Military Justice Act of 1968, Pub. L. No.

En 4

Military Justice Act of 1983, Pub. L. No.

csr reerertarrenemntemenennensnecsenecsease 4

Uniform Code of Military Justice, Pub. L. No.

81-506, 64 Stat. 107, 149 (1950)... ces —

Ratiabe 2, TO UBC. © BEB ...000.0000000000000000020000000 3,10

Article 5, 10 U.S.C. § 805 .........ccccceecceeeees 3, 10-11

Be ty Oe lise ©) ED cncccencecesccsccecscesesscezecees 12

ee ee es 0) ID exeecneccccszsencusreseencensecenees 4

SB 5

I Be, Be lice © G crnccenscnscesezezenezeencszeecens 4

Rh ee 4

Article 44, 10 U.S.C. § 844 000... .ccccccccseesereeeeeeees 5

BI BBO lee BG cccrccnenczssceneczcensezsceceseeeee 5

BG, FO Ee 6 GD cccccssesessesceessenessvseszse2s0s 4

PB ae 4

Article 67a, 10 U.S.C. § 867a............ccccccceceseeeeeeees 4

PE len 4

Po RS ee 4

Article 143, 10 U.S.C. § 943 ...ccccccsccsssssssseesseenseeees 4

iV

Article 144, 10 U.S.C. § 944 .............cccccsccssccsesssees 4

ee 4

Other Authorities

Air Force Regulation AF JI 31-304 ............ccccccccceeeeeeees 8

Army Judge Advocate General’s School,

Operational Law Handbook (O’Brien

Oh Fe renenecenemnintianitemusmemenmnnmaees 8

Army Regulation 190-8, Enemy Prisoners

of War, Retained Personnel, Civilian

Internees and Other Detainees (1997) .................... 7

Commentary on the Fourth Geneva

Convention (Jean S. Pictet ed. 1952)................0000 6

Department of Defense, Briefing on Enemy

Prisoner of War Status Categories,

Releases and Paroles (May 9, 2003).................++ 13

Department of Defense, Final Report to

Congress: Conduct of the Persian Gulf

Ee 13

Department of the Army, Field Manual on

the Law of Land Warfare, FM 27-10................000++ 8

Evan J. Wallach, Afghanistan, Quirin and

Uchiyama: Does the Sauce Suit the Gander?

Army Lawyer, November 2003, at 18.................... 6

Frederic L. Borch, Judge Advocates In Combat:

Army Lawyers in Military Operations from

Vietnam to Haiti (2001)..............c.sccsceeeseeereenereees 12

Marine Corps Regulation MCO 3461.1 .............c..0000 8

Military Assistance Command Vietnam

Directive No. 20-5 (September 21, 1966,

as amended March 15, 1968).................cccccceeeeeeees 12

Vv

Military Assistance Command Vietnam Directive

No. 20-5 (September 21, 1966, as amended

ng en 8

Military Assistance Command Vietnam, Directive

No. 381-46, Annex A (December 27, 1967)........ 12

National Institute of Military Justice,

Annotated Guide to Procedures for

Trials by Military Commissions of

Certain Non-United States Citizens in

the War Against Terrorism (2002) .............cc000+++++ l

National Institute of Military Justice, Military

Commission Instructions Sourcebook (2003)......... l

Navy Instruction OPNAVINST 3461.6..............cc00008 8

Proclamation 2561, Denying Certain Enemies

Access to the Courts of the United States, 7

Fed. Reg. 5101 (July 3, 1942) ..................ccc.ssees0+ 15

Robinson O. Everett, The Law of War: Military

Tribunals and the War on Terror, Federal

Lawyer 20 (Nov./Dec. 2001)..............:ccccceceeeeeeeees 11

Rule for Courts-Martial 707 .................:cccccsceceseeeeeeeeees 5

Statement of Deputy Secretary of Defense

Wolfowitz, March 23, 2003, Department

of Defense News Transcript,

<www.defenselink.mil/transcripts/2003/

103242003 _t0323mec.html>..................:.cccsceeeeeeees 10

United Nations Security Council Resolution

674, U.N. SCOR, 45th Sess., 2951st mtg.,

U.N.Doc. S/RES/674 (1990) ...........:ccccccsseeceeeneees 10

United States Central Command Regulation

gee 8

White House Press Release, March 23, 2003,

<www.whitehouse.gov/news/releases/2003/

nT I intr errr rienateieenanienens 10

|

INTEREST OF THE AMICUS CURIAE'

The National Institute of Méilitary Justice

(“NIMJ”) is a District of Columbia nonprofit

corporation organized in 1991 to advance the fair

administration of military justice and to foster

improved public understanding of the military justice

system. NIMJ appears regularly as an amicus curiae

before the United States Court of Appeals for the

Armed Forces, and appeared in this Court as an amicus

in support of the Government in Clinton v. Goldsmith,

526 U.S. 529 (1999). NIMJ is actively involved in

public education through its website, <www.nimj.org>,

and through publications including the Annotated

Guide to Procedures for Trials by Military

Commissions of Certain Non-United States Citizens in

the War Against Terrorism (2002) and the Military

Commission Instructions Sourcebook (2003). NIMJ

sponsored the Commission on the Fiftieth Anniversary

of the Uniform Code of Military Justice, chaired by

Hon. Walter T. Cox III, former Chief Judge of the

United States Court of Appeals for the Armed Forces.

NIM3J’s advisory board includes law professors, private

practitioners and other experts in the field, none of

whom are on active duty in the military, but nearly all

of whom have served as military lawyers, several as

flag and general officers. NIMJ is entirely independent

of the Government, and relies exclusively on voluntary

contributions for its programs.

' Counsel for all parties have consented to the filing of this

brief. Copies of their letters have been filed with the Clerk.

Counsel for NIMJ have authored this brief in whole, -aad no

person or entity other than the amicus, its members or its counsel

has made a monetary contribution to the preparation or submission

of this brief.

2

SUMMARY OF ARGUMENT

The Government relies on Johnson y.

Eisentrager for the proposition that upholding

jurisdiction over prisoners held by the United States

military at Guantanamo Bay will interfere with the

exercise of the executive’s power by “fettering...field

commander(s].” (Brief for the Respondents in

Opposition to the petitions for certiorari (“Opp.”) at 11)

The National Institute of Military Justice submits this

brief to emphasize that, in the half-century since

Eisentrager, both domestic military law and the

international law of war have advanced, increasing the

role of the judiciary in respect of military matters, in

war as well as in peace. A well-developed body of law

regarding individuals seized during hostilities has been

enforced regularly by impartial tribunals in past

conflicts, and is being applied today by United States

armed forces in combat. The application of the rule of

law to individuals seized during hostilities is not

inconsistent with the Executive Branch’s exercise of its

war powers, either in theory or in the practice of the

United States over the past fifty years. Nor is there

anything novel about issuing a writ of habeas corpus on

the application of an individual confined by the

military at Guantanamo Bay, something the highest

court of the military did in Burtt v. Schick, 23 M.J. 140

(1986).

3

ARGUMENT

I. The History Of Domestic And International

Military Law Since Eisentrager Has Been

One Of Steady Progress In The Rule Of Law

During Hostilities As Well As In Peacetime

A. Domestic Law

On May 5, 1950, one month before this Court

decided Johnson v. Eisentrager, 339 U.S. 763 (1950),

President Truman signed into law the Uniform Code of

Military Justice (““UCMJ”), Pub. L. No. 81-506, 64

Stat. 107, 149 (1950). When it became effective on

May 31, 1951, the UCM) for the first time established

a single statutory basis for the administration of justice

in all of the United States armed forces. Congress

provided that the UCMJ applies equally ‘n peace and

war, worldwide, UCMJ art. 5, 10 U.S.C. § 805, and to

American service members and prisoners of war in

custody of the armed forces, UCMJ art. 2(a)(1), (9), 10

U.S.C. § 802(a)(1), (9).

The UCMJ reflects a Legislative Branch

determination that rules of law can and do apply to

prisoners of war and other persons located at, among

other places, Guantanamo Bay. Under Article 2,

entitled “Persons subject to this chapter,” the UCM is

specifically made applicable to “persons within an area

leased by or otherwise reserved or acquired for the use

of the United States which is under the control of the

Secretary concerned and which is outside the United

States [with exceptions not applicable].” UCM) art.

2(a(12), 10 U.S.C. § 802 (a)(12). The United States

base at Guantanamo Bay is one such area.

4

This congressionally-mandated system of

military law is modern, comprehensive and of general

application. Moreover, although the UCMJ delegates

to the President the power to prescribe rules of

procedure before courts-martial, military commissions,

and other military tribunals, it circumscribes that power

with the requirement that such procedures “not be

contrary to or inconsistent with this chapter.” UCMJ

art. 36, 10 U.S.C. § 836. The Executive Branch, in

prescribing rules for military commissions, may thus

not impose procedural rules inconsistent with the

UCMJ.

The UCM) established not only a code of

substantive and procedural law, but also a tiered system

of judicial review, including intermediate appellate

courts, UCMJ art. 66, 10 U.S.C. § 866, and extending

up to the civilian United States Court of Appeals for

the Armed Forces, formerly the United States Court of

Military Appeals, UCMJ arts. 67, 141-45, 10 U.S.C.

§§ 867, 941-45. The Military Justice Acts of 1968,

Pub. L. No. 90-632, 82 Stat. 1335, and of 1983, Pub. L.

No. 98-209, 310(a)(1), 97 Stat. 1405, further

professionalized court-martial personnel, see UCMJ

arts. 26, 66, 10 U.S.C. §§ 826, 866, and added

certiorari jurisdiction in this Court, UCMJ art. 67a, 10

U.S.C. § 867a; 28 U.S.C. § 1259. Congress has

forbidden military officers and other persons subject to

the UCMJ to influence unlawfully the actions of

courts-martial and other military tribunals, UCMJ art.

37, 10 U.S.C. § 837, and the military services have

taken further steps to reduce command influence and

insure the independence of the judiciary.

This Court, as well as courts throughout the

military justice system, regularly re-affirm that military

——

5

personnel do not forfeit their rights to the protection of

the law when they enter the military. United States ex

rel. Toth v. Quarles, 350 U.S. 11, 21-22 (1955); United

States v. Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R.

244, 246-47 (1960). Military personnel and prisoners

of war in custody of the armed forces enjoy the

following protections and guarantees, among others:

e Against self-incrimination, compare U.S.

Const. amend. 5 with UCMJ art. 31, 10 U.S.C. § 831.

e Against double jeopardy, compare U.S.

Const. amend. 5 with UCMJ art. 44, 10 U.S.C. § 844.

e Against cruel and unusual punishment,

compare U.S. Const. amend. 8 with UCMJ art. 55, 10

U.S.C. § 855; see United States v. Matthews, 16 M.J.

354 (C.M.A. 1983).

e To a speedy trial, compare U.S. Const.

amend. 6 with Rule for Courts-Martial 707.

e To a knowing, intelligent and voluntary

waiver of trial rights before entering a guilty plea.

United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247

(1967).

Significantly, the rule of law in the military has

also been enforced through the issuance of writs of

habeas corpus by civilian courts. E.g., Reid v. Covert,

354 U.S. 1 (1957); Toth, supra.

Over a half century of experience with the

UCMJ has justified the Legislative determination that

the rule of law can be applied in peace and war without

modification and without concern that doing so will

interfere with Executive Branch power.

6

B. International Law

The international law governing captured

combatants has also developed since the tribunal that

adjudicated the guilt and innocence of the various

defendants in Eisentrager was held. In 1955, the

United States ratified the Third and Fourth Geneva

Conventions, relating to the treatment of prisoners of

war, 6 U.S.T. 3316, T.I.A.S. 3364, and the protection

of civilians in time of war, 6 U.S.T. 3516, T.1LA.S.

3365. These conventions have now been ratified by

191 nations, and form the cornerstone of international

law regarding the treatment of belligerents. They

provide as a bedrock principle that “every person in

enemy hands must have some status under international

law....There is no intermediate status; nobody in

enemy hands can be outside the law.” International

Committee of the Red Cross, Commentary on the

Fourth Geneva Convention 51 (Jean S. Pictet ed.

1952). Central to these conventions is the principle

that, “having committed a belligerent act and having

fallen into the hands of the enemy...such persons shall

enjoy the protection of the present Convention until

such time as their status has been determined by a

competent tribunal.” Geneva Convention Relative to

the Treatment of Prisoners of War, Aug. 12, 1949, 6

U.S.T. 3316 (“GPW”); see Evan J. Wallach,

Afghanistan, Quirin and Uchiyama: Does the Sauce

Suit the Gander? Army Law., Nov. 2003, at 18.

These developments in international law are

designed to safeguard basic rights of captured

personnel and avoid abuses that occurred in past

conflicts. They are consistent with the increased

emphasis on the rule of law as applied to this country’s

own military personnel. The United States has

7

committed itself to abide by these rules, prides itself on

its compliance with them, insists on compliance by

other countries, and condemns foreign governments

that depart from their provisions.

Il. The Treatment Of Individuals Seized During

Hostilities Is Governed By Long-Standing

Law And Practice In The United States

Military

A. Applicable Law Provides For The

Determination Of Status By Impartial

Tribunals

The military forces of the United States have

implemented the international law that was enacted in

the GPW, and was ratified long ago by the United

States, by adopting as their own rules and practice the

Convention’s requirement that individuals seized in

combat be afforded the protection of competent

tribunals to determine their status in doubtful cases.

Army Regulation 190-8, entitled Enemy Prisoners of

War, Retained Personnel, Civilian Internees and Other

Detainees § 1-6 (1997), provides:

(a) In accordance with Article 5 [GPW], if

any doubt arises as to whether a person,

having committed a belligerent act and been

taken into custody by the U.S. Armed

Forces, belongs to any of the categories

enumerated under Article 4, such persons

shall enjoy the protection of the present

Convention until such time as their status

has been determined by a _ competent

tribunal.

8

(b) A competent tribunal shall determine

the status of any person not appearing to be ©

entitled to prisoner of war status who has

committed a belligerent act or has engaged

in hostile activities in aid of enemy armed

forces and who asserts that he or she is

entitled to treatment as a prisoner of war, or

concerning whom any doubt of a like nature

exists.

This identical regulation has been adopted in all

branches of the United States armed forces.

OPNAVINST 3461.6 (Navy), AF JI 31-304 (Air

Force), MCO 3461.1 (Marine Corps). It reflects the

consistent practice, at least since Eisentrager, of

determining belligerent status through the use of

impartial tribunals. See Dep't of the Army, Field

Manual on the Law of Land Warfare, FM 27-10

§ 71(a) (1956) (providing for a “competent tribunal” to

determine the status of belligerents); MACV Directive

No. 20-5 § 5(e) (Sept. 21, 1966, as amended Dec. 16,

1966) (stating that, in doubtful cases, “the necessity for

a determination of status by a tribunal may arise”);

Army Judge Advocate General’s School, Operational

Law Handbook 22 (O’Brien ed. 2003) (directing judge

advocates to “advise commanders that, regardless of

the nature of the conflict, all enemy personnel should

initially be accorded the protections of the GPW

Convention (GPW), at least until their status may be

determined.”’)

In the United States military’s Area of

Operations (“AOR”) that includes Afghanistan and

Iraq, these provisions are further implemented by

United States Central Command [CENTCOM]

Regulation Number 27-13 (1995), which provides:

9

All US military and civilian personnel of the

Department of Defense (DOD) who take or

have custody of a detainee will:....(2) Apply

the protections of the GPW [Geneva

Convention, Relative to the Treatment of

Prisoners of War] to each EPW [Enemy

Prisoner of War] and to each detainee whose

status has not yet been determined by a

Tribunal covered under this regulation.

This regulation applies to “all members of the

United States Forces deployed to or operating in

support of operations in the US CENTCOM AOR.”

Reg. 27-13 § 2. Personnel who fail to treat any

detainee in accordance with the GPW “may be subject

to punishment under the UCMJ or as otherwise

directed by competent authority.” Reg. 27-13 4 7(b).

There is simply no provision in any law,

domestic or international, that permits a country’s

commander in chief, or its chief executive, to issue a

blanket pronouncement that all personnel falling into

the power of the United States in a particular theater of

war are excluded from the protection of the GPW. The

protections afforded by impartial tribunals are not

voluntary or idiosyncratic efforts of field commanders,

or applicable only to some detainees, but are the

product of standing United States government

regulations and orders that implement laws protecting

all classes of detainees. These protections may not be

circumvented by a claim that detained personnel are

not entitled to status as enemy prisoners of war. By the

explicit terms of the GPW, every detainee whose status

has not been determined by an impartial tribunal is

entitled to its protection.

10

Having undertaken to adhere to treaty

obligations, our military services and Commander in

Chief are not free to disregard them. Service v. Dulles,

354 U.S. 363 (1957). Petitioners here are asking for no

more than the enforcement of protections poonees by

this Government’s own procedures.

The Executive Branch has _ emphatically

demanded — and rightly so, as required by international

law — that these protections be accorded to Americans

captured or detained in armed conflict, and has joined

in condemnations of behavior that violates the Geneva

Conventions. U.N.S.C. Res. 674, U.N. SCOR, 45"

Sess., 2951 mtg., U.N.Doc. S/RES/674 (1990). The

Defense Department recently “remind{ed] the Iraqis...

[t]hat there are very clear obligations under the Geneva

Convention to treat prisoners humanely.” Statement of

Deputy Secretary of Defense Wolfowitz, Mar. 23,

2003, Dep't of Defense News _ Transcript,

<www.defenselink.mil/transcripts/2003/t03242003_t03

23nec.html>. In objecting to the televised display of

captured American soldiers, President Bush stated his

insistence that prisoners be afforded the protections of

international law. White House Press Release,

March 23, 2003, <www.whitehouse.gov/news/releases

/2003/03/20030323-1 .html>.

In addition to these Executive Branch

regulations and actions, Congress has specifically

provided for court-martial jurisdiction over persons

entitled to prisoner of war status at Guantanamo Bay.

Such persons are explicitly within the jurisdiction of

courts-martial pursuant to Article 2(a)(9) and (12) of

the UCMJ, 10 U.S.C. § 802(a)(9), (12). Their presence

in Guantanamo Bay is no obstacle to jurisdiction,

because the UCM] applies “in all places,”” UCMJ art. 5,

>

—_—<—e- —-

ee ee

1]

10 U.S.C. § 805. See Robinson O. Everett [Senior

Judge, United States Court of Appeals for the Armed

Forces}, The Law of War: Military Tribunals and the

War on Terror, Fed. Law. 20 (Nov./Dec. 2001).

Domestic law and practice thus make it clear

that Guantanamo Bay has never been regarded by the

United States as a “law-free” zone. United States

courts exercise criminal jurisdiction over both citizens

and aliens at Guantanamo Bay. 18 U.S.C. § 7(3); see

United States v. Lee, 906 F.2d 117 (4" Cir. 1990);

United States v. Rogers, 388 F. Supp. 298, 301 (E.D.

Va. 1975). In connection with the detainees currently

interned at Guantanamo Bay, the United States has

already asserted jurisdiction over an Army chaplain,

two translators, and an intelligence officer. Judicial

resolution of charges against those individuals has not

troubled the Government, which is according rights to

everyone except the detainees themselves.

While the Government devotes much attention

to the supposed unavailability of habeas corpus in

Guantanamo Bay, no such jurisdictional difficulty was

found by the court with responsibility for the military

justice system. In Burtt v. Schick, 23 M.J. 140 (1986),

a Navy enlisted man confined at Guantanamo Bay

sought a writ of habeas corpus after the prosecution

had obtained a mistrial over his objection. Holding

that the mistrial had been obtained without either

“manifest necessity,” Arizona v. Washington, 434 U.S.

497, 505 (1978), or the consent of the accused, the

Court of Military Appeals unanimously granted the

writ against the officer-in-charge of the Guantanamo

Bay brig. In doing so, it found no obstacle to asserting

habeas corpus jurisdiction over individuals at

Guantanamo Bay.

12

B. Enforcement Of These Rules Does

Not Interfere With Military Necessity

The experience of United States armed forces in

combat belies the Government’s expressed concern

that judicial review of the claims of combatants “would

interfere with the President’s authority as Commander

in Chief.” (Opp. at 11) Courts-martial, prisoner status

determinations, and other legal processes have been a

regular adjunct of American wartime operations

throughout the period since Eisentrager.

° During the Vietnam era, the United

States Army held approximately 25,000 courts-martial

in the war theater. In 1969 alone, 7691 of these were

special and general courts-martial, which are trials

presided over by a military judge in which the

defendant is entitled to a panel equivalent to a jury as

provided in the UCMJ. Frederic L. Borch, Judge

Advocates In Combat: Army Lawyers in Military

Operations from Vietnam to Haiti 29 (2001). Another

1146 special and general courts-martial were held in

Vietnam by the Marine Corps in 1969. In addition,

still only in 1969, the Army held 66,702 less formal

disciplinary proceedings under Article 15 of the

UCMJ, 10 U.S.C. § 815. Id.

° The United States Military Assistance

Command in Vietnam enforced strict requirements for

the classification of captured personnel, including

providing impartial tribunals to determine eligibility

for prisoner of war status. Méilitary Assistance

Command Vietnam, Directive No. 381-46, Annex A

(Dec. 27, 1967) and Directive No. 20-5 (Sept. 21, 1966

as amended Mar. 15, 1968.)

13

. During the 1991 Persian Gulf War, the

status of approximately 1200 detainees was determined

by “competent tribunals” established for that purpose.

Dep’t of Defense, Final Report to Congress: Conduct

of the Persian Gulf War 578 (1992); Army Judge

Advocate General’s School, Operational Law

Handbook 22 (O’Brien ed. 2003).

° At this very time, United States forces

in Iraq, a theater of actual combat, are providing

impartial tribunals compliant with Article 5 of the

GPW to adjudicate the status of captured belligerents.

Although details are difficult to come by, American

commanders of forces in Iraq acknowledge that as

many as 100 prisoners there have had their status

adjudicated by impartial tribunals under Article 5 of

the GPW. Dep’t of Defense, Briefing on Enemy

Prisoner of War Status Categories, Releases and

Paroles (May 9, 2003).

If the United States is, at this very moment,

providing Article 5 tribunals in a war theater, it is

difficult to credit the argument that such tribunals in

Guantanamo Bay would interfere with field

commanders. Unlike the tribunals that operated in

Vietnam, Iraq and elsewhere, tribunals in Guantanamo

Bay, or courts in the continental United States with

jurisdiction over the custodians of Guantanamo Bay

detainees, would not be operating in war zones. The

Government offers no credible argument that tribunals

contemplated by Army regulations and required by the

191 nations subscribing to the Geneva Conventions

would, in its words, “interfere with core war powers.”

Opp. at 19. Even less credible is the claim that

providing prisoners who have been detained virtually

incommunicado for almost two years without any

14

adjudication of status would constitute “use of

litigation [as a] weapon” in ongoing hostilities as

described in Eisentrager, 339 U.S. at 777-79. The

rules, policy and practice of United States military

forces show that the involvement of competent

tribunals in determining the status and rights of

detained combatants is a regular and necessary adjunct

of military operations.

Ill. The Executive Branch Is Not Complying

With These Rules, And Is Failing To Provide

The Benefit Of The Process That Is In Place

For Individuals Seized During Hostilities

At its heart, the position of the Executive

Branch is that, because it has unilaterally declared

these individuals to be outside the law, none of the

existing rules governing the treatment of individuals

detained in combat apply. Nor, it says, may any court

or tribunal exercise the traditional power of ensuring

that the Executive Branch obey the law, because, as

Commander in Chief, the President has the final say on

his own powers.

The Government’s position is inconsistent with

its own law and regulations, and with its actions in this

and past conflicts. On the one hand, it argues that the

domestic law enacted by Congress to provide for court-

martial jurisdiction over individuals at Guantanamo

Bay, the international law it has ratified to provide for

impartial tribunals, and the military regulations it has

adopted to apply and enforce those rules, are all

inapplicable to these detainees because the Executive

Branch says they interfere with the President’s

authority to make war. On the other hand, the

Executive Branch by its actions insists on compliance

15

with these standards by other nations, and even accords

statutory protections to its own personnel at

Guantanamo Bay, the very site where it argues that

judicial involvement will “fetter field commanders.”

So long as the United States applies this double

standard, it unavoidably increases the jeopardy of

United States personnel captured abroad, in this and

future conflicts. If this country is to have credibility in

seeking to apply standards of humane conduct in

international conflict; if it is to maintain a position of

moral leadership; and, not least, if it is to protect its

own fighting forces, it should abide by the standards it

has enacted, ratified and adopted.

The Solicitor Gene:al’s authorities in support of

a claimed unlimited and unreviewable right to “capture

and detain,” Opp. at 3, are particularly ill-chusen. In

Duncan v. Kahanamoku, 327 U.S. 304, 324 (1946),

this Court granted a writ of habeas corpus holding that

a Navy employee tried by a military tribunal in 1944

was “entitled to be released” because he was protected

by the Constitution as interpreted under the Hawaiian

Organic Act. In Ex parte Quirin, 317 U.S. 1 (1942),

this Court adjudicated whether the petitioners were

held in lawful custody and whether the tribunal trying

them was lawfully constituted, convening in special

session in defiance of a presidential order declaring

that the federal courts were closed to these defendants.

Proclamation 2561, Denying Certain Enemies Access

to the Courts of the United States, 7 Fed. Reg. 5101

(Jul. 3, 1942).

While the Executive Branch concedes the

possibility that these detainees may have nghts, it

maintains that it alone has authority to determine what

those rights are. It has already determined that the

16

detainees are not entitled to know the charges against

them, are subject to indefinite confinement whether or

not charged and even if acquitted, can have no access

to counsel, and are entitled to no judicial review of

their status or the conditions of their confinement.

Those basic protections being denied, it is difficult to

enumerate what rights known to an American system

of law the Executive Branch proposes to implement.

* * *

Military legal process can and does function

without impairing the Executive’s war powers. The

United States has fought enemies the world over while

recognizing and respecting the rights that it seeks to

deny here. America’s integrity, and the protection of

this country’s own fighting forces, demand that it

continue to recognize those rights today. To ask that

the Executive Branch comply with its own regulations,

which in tum apply consistent domestic and

international law, is not to seek any restraint on the

executive function. To ask that the Judicial Branch

exercise its traditional responsibility of applying the

law, is not to seek any extension of the judicial

function.

In the absence of law; in the absence of checks

and balances; and in the absence of “the alembic of

public scrutiny,” United States v. Coplon, 185 F.2d

629, 638 (2d Cir. 1950) (L. Hand, J.), the Executive

Branch claims the right to operate an unprecedented

secret American prison system free of any restraint or

review. Affirming the decision below will leave the

Executive Branch with unlimited and unreviewable

discretion that fifty years of domestic and international

legal developments have tried to contain.

17

CONCLUSION

The judgment of the court below should be

reversed.

Respectfully submitted.

RONALD W. MEISTER

Counsel of Record

JASON D. SANDERS

Cowan, Liebowitz & Latman, P.C.

1133 Avenue of the Americas

New York, NY 10036

(212) 790-9209

Counsel for Amicus Curiae

National Institute

of Military Justice

January 2004