# Amicus Curiae Brief — Rasul v. Bush

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0703%3A24

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 466

## Text

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
ey Ce eterrincincccicenccnnseicesemsopescanceneemeens il
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,

..................:.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,
,
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,
. 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, .

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0703%3A24. Public record. Not legal advice.