Amicus Curiae Brief — Rasul v. Bush

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Nos. wi se

OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

SHAFIQ RASUL, et al.,

Petitioners,

GEORGE W. BUSH, ef a/.,

Respondents.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, ef ai.,

Petitioners,

UNITED STATES OF AMERICA, ef al.,

Respondents.

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF 175 MEMBERS OF BOTH HOUSES OF

THE PARLIAMENT OF THE UNITED KINGDOM

OF GREAT BRITAIN AND NORTHERN IRELAND*

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

EDWIN S. MATTHEWS, JR. JEREMY CARVER, CBE

Counsel of Record CLIFFORD CHANCE LLP

EDWARD H. TILLINGHAST, III 10 Upper Bank Street

DAMION K. L. STODOLA London E14 5JJ

COUDERT BROTHERS LLP 44-20-7006-1000

1114 Avenue of the Americas

New York, New York 10036

212-626-4400

LORD LESTER OF HERNE HILL QC

DAVID PANNICK QC

BLACKSTONE CHAMBERS

PETER CARTER QC Blackstone House

18 Red Lion Court Temple

London EC4A 3EB London EC4Z 9BW

44-20-7520-6000 44-20-7583-1770

Attorneys for 175 Members of both Houses of the Parliament of the

United Kingdom of Great Britain and Northern Ireland

January 14, 2004 * Amici Curiae listed on the Reverse

Members of the House of Lords:

Lord Ahmed, Lord Alderdice, Lord Alexander of Weedon QC, Lord Alli,

Lord Archer of Sandwell QC, Lord Avebury, Lord Berkeley, Lord Bhatia,

Lord Bowness, Lord Brennan QC, Lord Brittan of Spennithorne QC, Lord

Brooke of Sutton Mandeville, Lord Browne-Wilkinson, Lord Campbell of

Alloway QC, Lord Donaldson of Lymington, Lord Dubs, Lord Elton,

Viscount of Falkland, Lord Faulkner of Worcester, Lord Freyberg, Lord

Goff of Chieveley, Lord Goodhart QC, Lord Grabiner QC, Lord Greaves,

Lord Grenfell, Lord Hannay of Chiswick, Lord Haskins, Baroness Hay-

man, Lord Holme of Cheltenham, Earl of Home, Lord Hylton, Baroness

Jay of Paddington, Lord Joffe, Lord Judd, Baroness Kennedy of the Shaws

QC, Lord Lloyd of Berwick, Baroness Ludford, Lord Mackay of Druma-

doon, Lord Maclellan of Rogart, Baroness Maddock, Lord Methuen,

Baroness Miller of Chilthorne Domer, Lord Morgan, Lord Mustill, Baron-

ess Northover, Lord Ouseley, Lord Bishop of Oxford, Lord Phillips of

Sudbury, Lord Plant of Highfield, Lord Puttnam, Lord Razzall, Lord Rea,

Lord Redesdale, Baroness Rendell of Babergh, Lord Renton QC, Baroness

Richardson of Calow, Lord Roper, Lady Saltoun of Abernethy, Earl of

Sandwich, Baroness Sharp of Guildford, Lord Sheldon, Lord Shutt of

Greetland, Lord Skidelsky, Lord Steel of Aikwood, Lord Stoddart of

Swindon, Lord Taverne QC, Lord Thomas of Gresford QC, Baroness

Thomas of Walliswood, Lord Tope, Baroness Uddin, Lord Wallace of

Saltaire, Baroness Walmsley, Baroness Whitaker, Baroness Wilkins,

Baroness Williams of Crosby, Lord Bishop of Winchester, Lord Bishop of

Worcester, and Lord Wright of Richmond

Members of the House of Commons:

James Arbuthnot, John Austin, Vera Baird QC, Harry Barnes, John Barrett,

Anne Begg, Roger Berry, Harold Best, Crispin Blunt, Peter Bottomley,

Virginia Bottomley, Tom Brake, Kevin Brennan, Annette Brooke, Malcolm

Bruce, Richard Burden, Patsy Calton, Anne Campbell, Sir Menzies

Campbell QC, Martin Caton, lan Cawsey, David Chidgey, Ann Clywd,

Harry Cohen, Robin Cook, Jeremy Corbyn, Jean Corston, Brian Cotter, Tom

Cox, Ross Cranston QC, Edward Davey, Terry Davis, Janet Dean, Andrew

Dismore, Jim Dobbin, Sue Doughty, Julia Drown, Angela Eagle, Huw

Edwards, Annabelle Ewing, Mark Fisher, Edward Garnier QC, Roger

Godsiff, John Gummer, Mike Hancock, Evan Harris, Dai Havard, David

Heath, David Heyes, Paul Holmes, Simon Hughes, Eric IIlsley, Helen

Jackson, Paul Keetch, David Kidney, Peter Kilfoyle, Jim Knight, Norman

Lamb, Anthony Lloyd, lan Lucas, Calum MacDonald, Judy Mallaber, Rob

Marris, Robert Marshall-Andrews, Ann McKechin, Kevin McNamara,

Michael Moore, Julie Morgan, Diana Organ, Joan Ruddock, Bob Russell,

Mohammed Sarwar, Malcolm Savidge, Brian Sedgemore, Jonathan Shaw,

Richard Shepherd, Clare Short, Sidn Simon, Alan Simpson, Chris Smith,

Llewellyn Smith, Paul Stinchcombe, Andrew Stunell, Sir Teddy Taylor,

Simon Thomas, John Thurso, Jenny Tonge, Jon Trickett, Paul Tyler, Brian

White, Betty Williams, Hywe! Williams, Phil Willis, Tony Worthington,

Shaun Woodward, Derek Wyatt, and Richard Younger-Ross

TABLE OF CONTENTS

TABLE OF AUTHORITIES...............0.c0eeeees

INTEREST OF AMICI CURIZ ............66000005.

CIRCUMSTANCES OF UNITED KINGDOM

NATIONALS DETAINED IN

Nee icc ccsccccssescocceses

SUMMARY OF ARGUMENT.................0005:

IIE ddbtnanacdcnsacsoccescccessscceccccccees

I. The Detainees’ Cases Present Disputes

Which Can Only Be Fairly Determined By

An Impartial And Independent Court .......

A. The Circumstances Justifying Detention

Are Unproven And Subject To Dispute. .

B. The Legal Justifications For Detention

Are Ambiguous And Also Subject

SIE Gandcescessccsccccscescccccccces

Il. Indefinite Executive Detention Without Judi-

cial Review Is Inimical To The United States’

Commitment To The Rule of Law and Its

International Obligations......................

A. The United Kingdom And The United

States Share A Common History

And Tradition Of Judicial Review

Of Executive Power ...................055

i iii

Page TABLE OF AUTHORITIES

B. Both Countries Have Played Seminal

Roles In The Development Of The

International Rule Of Law And Human Cases - U.S.

GaBncticccccccasscnscensocesaneeesqoadone |

= ” | Al Odah v. United States, 321 F.3d 1134

C. Past Deviations From The Rule Of Law Sten Gi SP ovaccacescnesscccsnsessoscnnnesoss

And International Obligations In Times —w

Of National Crises Are Embarrassing Atkins v. a 536 U.S. 304 (2002) .............

Episodes In Our Respective Histories .. 22 Duncan v. Louisiana, 391 U.S. 145 (1968)...........

D. United States Courts Consistently Seek Ex Parte Milligan, 71 US. 2 (1866) TYTTITITITITT TT Te

To Act In Harmony With International Groppi v. Wisconsin, 400 U.S. 505 (1971) ...........

Law COPPER EERE HEE EEE EEE EE EEE EEEES 25 Hurd v. Hodge, 334 US. 24 (1948) ner ee eee hae

SD senccndeicessctisdeistiiakuaideiaaaass 28 Hurtado v. California, 110 U.S. 516 (1884) ..........

In re Groban, 352 U.S. 330 (1957) ..........000cce0e:

Korematsu v. United States, 584 F. Supp. 1406

SPR GE, TEED ccccccvcccscccscccescecescssccess

Lawrence v. Texas, 123 S. Ct. 2472 (2003)...........

Marbury v. Madison, 5 U.S. 137 (1803) .............

Muller v. Oregon, 208 U.S. 412 (1908) ..............

Murray v. Schooner Charming Betsy,

Oyama v. California, 332 U.S. 633 (1948) ...........

Republic Steel Corp. v. Maddox, 379 U.S. 650

Peo ccccccseccceccesesececcescssescccsscenccsage

Sarei v. Rio Tinto, 221 F. Supp. 2d 1116

GELB, GR, Bio cccescccccceccncccccsssccecsscess

The Paquete Habana, 175 U.S. 677 (1900) ...........

United States v. Johnson, 383 U.S. 169 (1966).......

United States v. Rezaq, 134 F.3d 1121

"i “Sites

United States v. Yunis, 924 F.2d 1086

RS RAED

Cases - U.K., Commonwealth & European

Attorney-General v. Guardian Newspapers (No. 2),

[1990] 1 A.C. 109 (Eng.).....0.....ccecceeceeeee.

Baker v. Minister of Citizenship, [1999] 2 S.C.R.

EER ee ALS ED

Brannigan & McBride v. United Kingdom,

17 Euro. Ct. H.R. 539 (1993) ..........0..00ce0.

Brogan, et al., v. United Kingdom, 11 Eur. H.R.

RBS et ae

Derbyshire County Council v. Times Newspapers,

[1992] Q.B. 770 (Eng.) .....0...cccceceeeceeeeeeee

Garland v. British Rail, [1983] 2 A.C. 751

ED Sat dcddccsussoeisocnhessdseussasecceeseses

Liversidge v. Anderson, 1942 A.C. 206 (1941)

Pee oscdcnsscnessssneseccvscscoesccsscedsccconess

Loizidou v. Turkey (Preliminary Objections),

20 Eur. H.R. Rep. 99 (1995) .....................

Loizidou v. Turkey, 23 Eur. H.R. Rep. 513

Saat cerning

Minister Immigration & Ethnic Affairs v. Teoh,

128 A.L.R. 353 (Austl. 1995) ....................

R. v. Sec’y State Home Dep't, ex parte Simms,

[2000] 2 A.C. 115 (Eng. HLL.) ...............00..

~ et ae

R. v. Sec’y State, ex parte Ahmed & Others,

[1999] Imm. A.R. 22 (Eng. C.A.)............-+..

R. v. Sec’y State, ex parte Brind, [1991] 1 A.C.

G96 (Erg, HLL.) .......ccccccccccccccccccccccscens

R. v. State Home Dep't, ex parte Behluli, [1998]

IAR 407 (Eng. C.A.) .....ccccccceeeeeeeeeeeeeeees

Tavita v. Minister Immigration, 2 N.Z.L.R. 257

OE. Z. BODE .nccccccccccccccccccccccccccccsccccses

Waddington v. Miah, [1974] 1 W.L.R. 692 (Eng.) ...

Constitutional Documents

AcT For THE LIBERTIES OF PEOPLES, 1639

BEB) ..nccccccccccccccccccccccsscscccsccccccvccoes

BODY OF LIBERTIES, 1641 (Mass.) ...............0005-

ENGLISH BILL OF RIGHTS, 1689..............0000000:

PETITION OF RIGHT, 1628 .............essceeceeseeeees

U.S. Const. Article VI, Section 2...............+5:

Legislative Materials

ANTI-TERRORISM, HOME AND SECURITY ACT

408 PARL. Des., H.C. (6th ser.) (2003) 1151-52...

653 PARL. Des., HLL. (5th ser.) (2003) 938..........

Page

Treaties, Conventions & Other International

Materials

Agreement between the United States and Cuba

for the Lease of Lai.ds for Coaling and Naval

Stations, Feb. 23, 1903, U.S.-Cuba, art. III,

Wie CR SEED ddstcnndcccccsccnssctedccssenescieces

Agreement Reached in the Multi-Party Negotia-

tions, Apr. 10, 1998, reprinted in 37 I.L.M. 751

Pee eecnccdusascnsccnsisiccesdetoiscosdcoisenscces

American Declaration of the Rights and Duties

of Man, May 2, 1948, reprinted in Basic Docu-

ments Pertaining to Human Rights in the

Inter-American System, OEA/Ser.L.V/II.82

ey PE actiiciiddagnddadekeddadesneciess

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punish-

ment, 23 I.L.M. 1027 (1984).................0085

Convention Relating to the Status of Refugees,

Apr. 22, 1954, 189 U.N.T.S. 150 ................

European Convention for the Protection of

Human Rights and Fundamental Freed~ms,

Nov. 4, 1950, 213 U.N.T.S. 221 .......2.........

Geneva Convention Relative to the Protection

of Civilian Persons in Time of War, Aug. 12,

1949, 6 U.S.T. 3516, T.1.A.S. 3365...............

Geneva Convention Relative to the Treatment

of Prisoners of War, Aug. 12, 1949, 6 U.S.T.

Pe CE BT cccccuccunccccunadadeduceeneas

Page

Vii

Page

Inter-American Convention on Human Rights,

Nov. 22, 1969, 1144 U.N.T.S. 123, 9 LL.M. 673.. 20, 21

International Covenant on Civil and Political

Rights, Dec. 19, 1966, 999 U.N.T.S. 171,

DRL LUD cnccucccocecestondeondcensetesontese 20, 21, 24

Protocol Additional to the Geneva Conventions

of 12 August 1949 and Relating to the Protec-

tion of Victims of International Armed Con-

flicts, adopted June 8, 1977, 1125 U.N.T.S. 3... 16

Protocol Relating to the Status of Refugees,

Oct. 4, 1967, 606 U.N.T.S. 267 ..........6.0 sees 7

Universal Declaration on Human Rights,

Dec. 10, 1948, G.A. Res. 217A, 3 U.N.

GAOR, U.N. Doc. A/810 ...........0ccceeeeeees 20, 21

Vienna Convention on the Law of Treaties,

May 23, 1969, 8 I.L.M. 679 (1969) ...........++: 20

Books, Articles & Other Authorities

AMNESTY INT'L, United States of America —

The Threat of a Bad Example 1 (Aug. 2003) ..... 13

Julian Borger & Vikram Dodd, Cuba Britons ‘admit

war crimes’, GUARDIAN, Aug. 12, 2003.......... 10

Mark Bowden, The Persuaders, OBSERVER

(London), Oct. 19, 2003 ...........cceeeeeeeeeees 4

Tania Branigan & Vikram Dodd, The Bitterest

Betrayal, GUARDIAN, July 19, 2003............+. 4,5, 6,8

Justice Stephen Breyer, Changing Relationships

Among European Constitutional Courts,

21 CARDOZO L. REV. 1045 (2000)..............+- 25

Vili

Page

British Broad. Corp., At-a-Glance: Guantanamo

Bay Britons (July 23, 2003) ................00e eee 6

British Broad. Corp., Briton ‘Arrested Over Terror

Links’ (Oct. 30, 2003) ........0.ssseeeeeeeeeeeeees 9

British Broad. Corp., From Student to Terror

EE Ss, ily MIS vk bbnndecccccinctsacoxesssce 9, 10

IAN BROWNLIE, PRINCIPLES OF PUBLIC INTER-

NATIONAL LAW (5th ed. 1998) ................... 15

lan Burrell, Britons at Camp Delta Make a Sorry

Bunch of Warriors, INDEPENDENT (London),

SOUR, Th TEE iicadédudcccuscncccectssncacavecnntes 5, 6, 8

Suicide Bid By Brit Held in Cuba, DAILY RECORD,

PRU Selb MEE wecnccnciccacdndccckecsucsineusnensss 10

ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA

306 (Henry Reeve trans., Schocken 1961)

EN ccenvdscccasensevegecscsnsecenctssaciencenes 24

Vikram Dodd, Guantanamo Bay Detainee Suffers

From Depression, GUARDIAN, Nov. 18, 2003 .... 10

Bob Drogin, No Leaders of Al Qaeda Found at

Guantanamo, L.A. TIMES, Aug. 18, 2002........ 14

THE FEDERALIST No. 78 (Alexander Hamilton) .... 17

THE FEDERALIST No. 80 (Alexander Hamilton) .... 21

7 MARTIN GILBERT, WINSTON S. CHURCHILL:

Be OP WEY CR cn ncncceccccuncacscadees 27

Audrey Gillan, Pakistani intelligence and Americans

‘abduct’ Briton, GUARDIAN, Mar. 9, 2002........ 8

Justice Ruth Bader Ginsburg, Remarks for the Amer-

ican Constitutional Society (Aug. 2, 2003) .... 25, 26

Michael J. Glennon, The Senate Role In Treaty

Ratification, 77 AM. J. INT'L. L. 257 (1983)......

8(2) HALSBURY’S LAWS OF ENGLAND

GEE GE, TEED ccccccccccccsccbsccsccsesscsesconces

Paul Harris & Burhan Wazir, Briton tells of Ordeal

in Bush’s Torture Jail, OBSERVER (London),

BE, Bb Be sacececccccccssvccsesescessssssccese

Letter from William J. Haynes II, Gen.

Counsel, Pentagon, to Sen. Patrick Leahy

eee FE, SITE c cccccccccccccvessccscccecseccccese

Rosalyn Higgins, The IC], the EC], and the

Integrity of International Law, INT'L & COMP.

L. Q. 52.1(1) (2003) ..........seeeeeee eres eee eees

Hala Jaber & Gareth Walsh, Former Catholic

Schoolboy in Al-Qaeda Camp, TIMES (London),

ee ER eee er

Report of Robert H. Jackson To the President,

June 7, 1945, DEP’T ST. BULL., June 10,

BOGE, GB TIPE occccnsscccccvcnccoscncsscescsscenecs

Robert H. Jackson, Opening Statement Before

the International Military Tribunal

GW. Bh, TOG cccccccccccescccccccesseccssscoece

Scott Johnson, Trapped in Prison: Foreigners Jailed

by the Taliban Still Waiting for Safe Passage Out

of Afghanistan, NEWSWEEK WEB EXCLUSIVE,

BOBS, TE, FIGE ccccccvcccccccccsescscccsssescccccecs

Justice Anthony M. Kennedy, Speech at the

American Bar Association Annual Meeting

(Asam, 9, FEB)... .ccccsccccsccccccccccvcccccescees

Page

7,8

Page

Sandra Laville, Father Appeals for Son Held in

Guantanamo, DAILY TELEGRAPH (London),

Pk SE MT Hn tnninnenesensacencsnndsanunsenncss 8

Lisa McCarthy, Release Hopes for Terror Suspects,

BIRMINGHAM EVENING MAIL, Jan. 9, 2004....... 9

News24, Sixth Briton Held at Guantanamo,

SE: HUE iincasuntenpneninenesenenestanictie 10, 11

Justice Sandra Day O’Connor, Federalism of

Free Nations, 28 N.Y.U. J. INT’L L. & POL.

TED skdcisitneetnininnienreneesdsmeninaaniies 25

Sean O'Neill, Feroz Abbasi, DAILY TELEGRAPH

AMEE, BER DS, BITD occ ccccccccccccccsscccces 10

Chief Justice William H. Rehnquist, Remarks

at 100th Anniversary Celebration of the

Norfolk and Portsmouth Bar Association

Se SE EE Scie ceknindnsnnioneanntsadencineniane 23

Chief Justice William H. Rehnquist, Dedication

of the Robert H. Jackson Center (May 16,

ER ee nr en eT ne 27

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW

SI IITITTN vihistisithintaiieliadiaibieaidiiieiniebisenscaididesaiemenciets 15

RESTATEMENT OF THE FOREIGN RELATIONS LAW OF

THE UNITED STATES (Revised) § 314 (Tentative

TI Uh IIE nxcseetbccsonenbsidemiciecammmdiniidn 20

David Rohde, Threats and Responses: The Detainees,

PS. T. BUM, CR, BA, FIM nn cccccccccsccccccsccee 4

David Rose, Guantanamo Bay on Trial, VANITY

FAIR, Jan. 2004, at 88 .............. 00.00.00 eee 6, 7, 10, 15

Secretary Donald H. Rumsfeld, News Briefing

(Nov. 19, 2001).........ccccccccccccvccccccecoceses

Rumsfeld Roundtable with Radio Media

Gam. 1B, BIER)... cccrcccsescoccccccccccccccecceses

BERNARD SCHWARTZ, THE BILL OF RIGHTS:

A DOCUMENTARY HIsToRY (1971) ...........++--

BERNARD SCHWARTZ, THE ROOTS OF FREEDOM: A

CONSTITUTIONAL HISTORY OF ENGLAND (1967) ..

Kim Segupta, Briton Held in Pakistan on Terror

Charges, INDEPENDENT (London), Oct. 30, 2003..

ALFRED W.B. SIMPSON, IN THE HIGHEST DEGREE

ODIOUS: DETENTION WITHOUT TRIAL IN WAR-

TIME BRITAIN (1992) ...........0cceeeeeeeceeeeeees

Rajeev Syal, Families of Camp X-Ray Detainees

Living in Fear of a Racist Backlash, DAILY TELE-

GRAPH (London), Feb. 2, 2002.................+.

THOMAS PITT TASWELL-LANGMEAD, ENGLISH CONSTI-

TUTIONAL HISTORY FROM THE TEUTONIC CONQUEST

TO THE PRESENT TIME (10th ed. 1946) ...........

White House Press Report: Argentina, Philippines,

Guantanamo, South Asia (Jan. 16, 2002) ......

Patrick Wintour, Frantic efforts to bring home

Britons held in Cuba as Blair’s US trip looms,

GUARDIAN, July 12, 2003 .............eeeeeeeeeee

Page

INTEREST OF AMICI CURI'

Each of the amici curiz is a serving member of one of

the two Houses of Parliament of the United Kingdom of

Great Britain and Northern Ireland: the House of Com-

mons and the House of Lords.* Each regards the question

before the Court? as an issue of fundamental importance

to the individual rights not only of British nationals, res-

idents, and refugees, but of all detainees in Guantanamo.

Amici assert neither the guilt nor innocence of those

detained at Guantanamo Bay, and do not ask this Court

to rule one way or another on any claim or charge that

may be raised in future proceedings. Amici submit only

that, under the rule of law, the detainees should be grant-

ed the due process safeguard of independent judicial

review, and do not speculate as to the outcome of any such

proceedings. As members of the Parliament of West-

minster, amici have a duty to protect human rights and

fundamental freedoms against the misuse of public

power. They have a significant, legitimate interest in

seeking to ensure that their fellow citizens and others be

accorded the due process of law deeply rooted in Anglo-

American legal and political heritage.‘

! Letters of consent have been filed with the Clerk. Pursuant to

Rule 37.6, amici state that no counsel for any party authored this brief

in whole or in part, nor did any party to the action before the Court,

or any person or entity other than the undersigned amici, make a mon-

cary contribution to the preparation or submission of this brief.

All amici participate in this brief as parliamentarians, and not

as former cabinet members, senior judges, serving bishops, or any

other capacity they may occupy or have occupied.

The question presented before the Court is: whether United

States courts lack jurisdiction to consider challenges to the legality of

the detention of foreign nationals captured abroad in connection

with hostilities and incarcerated at the Guantanamo Bay Naval Base,

Cuba.

4 Amici do not believe it is appropriate for them to opine on the

measures taken or not taken by the executive branch of the United

Amici recognize the concern expressed in Rule 37(1)

that unnecessary amicus curiz briefs are a burden. Upon

belief, this is the first time members of the Parliament of

Westminster have submitted a brief to this Court. This

brief reflects the profound concern they share for the cen-

tral question before the Court.°

Their concern is not limited to the twelve individuals

entitled to the international protection of the United

Kingdom or to the nationals of other states detained

without recourse to even the most basic legal rights. The

exercise of executive power without possibility of judi-

cial review jeopardizes the keystone of our existence as

nations — namely, the rule of law —as well as the effective

protection of human rights as a matter of international

obligation. Accordingly, amici curie submit this brief in

States government. They acknowledge the constitutional authority

generally of the executive branch to issue executive orders—a power

similar to that of the British government to act under the Royal Pre-

rogative. The Houses of Parliament scrutinize the manner in which

the government exercises such powers, and Britain’s courts review

the lawfulness of government conduct under an increasing variety of

circumstances, even when that conduct takes place under prerogative

powers.

> Members of Parliament have repeatedly articulated these sen-

timents to Her Majesty’s Government, which has committed diplo-

matic effort and resources to protect the due process rights of the

detainees. Prime Minister Tony Blair assured the House of Commons

that “[w]Je will make active representations to the United States ... to

make absolutely sure that any such trial will take place in accordance

with proper international law.” 408 PARL. DeB., H.C. (6th ser.) (2003)

1151-52. Minister of State, Foreign and Commonwealth Office,

Baroness Symons of Vernham Dean, assured the House of Lords that

it is the Government's objective to “ensure that if any British nation-

als are detained at Guantanamo Bay and prosecuted, a fair trial takes

place in accordance with generally recognised principles.” 653 PARL.

Des., H.L. (5th ser.) (2003) 938. Members of Parliament have

employed every potential avenue to voice concern for the British

detainees and turn now to this Court as an alternative, independent

route to ensure that due process is provided.

support of the petitioners Shafiq Rasul, et al., and Fawzi

Khalid Abdullah Fahad Al Odah, et al.

CIRCUMSTANCES OF UNITED KINGDOM

NATIONALS DETAINED IN GUANTANAMO

The Factual Context

Amici submit the following facts to this Court to

underscore the need for independent judicial examina-

tion of the factual and legal bases justifying the indefinite

confinement, without trial, of the detainees in Guanta-

namo.° These untested facts are the only facts that have

reached the public record. If complete and compelling

information about the detainees is not available and

before this Court, it is because the U.S. administration

and military have kept this information secret for the

past two years and excluded all detainees from the ben-

efit of due process.’

In early January 2002, U.S. Armed Forces began trans-

ferring individuals held as prisoners overseas to the U.S.

naval base at Guantanamo Bay, an area within the com-

plete control and jurisdiction of the United States.® It is

reported that approx! mately 660 prisoners from 42 coun-

® On this Court's consideration of facts and opinions, see, ¢.g.,

Atkins v. Virginia, 536 U.S. 304, 316 n.19-21 (2002) (acknowledging

websites, newspaper articles, and polling data); Gropp: v. Wisconsin,

400 U.S. 505, 510-12 (1971) (finding error in trial court's failure to take

requested judicial notice of prejudicial pretrial publicity in misde-

meanor case); Muller v. Oregon, 208 U.S. 412, 419-20 (1908) (recogniz-

ing Brandeis Brief on nonjudicial sources of opinion).

? The British detainees are fortunate to come from a country

which, like the United States, is committed to openness. Amici note

that we may never know even the identity of those detainees who are

nationals of less democratic societies.

t between the United States and Cuba for the Lease

dundee ma Naval Stations, Feb. 23, 1903, U.S.-Cuba, art.

Ill, T.S. No. 418.

tries are being held at Guantanamo’ Throughout this

time, they have not been charged, have rot been allowed

to challenge their confinement, have not been permitted

to consult with legal counsel of their choice and, most

importantly, have not been able to have the legality of

their detention reviewed by any impartial tribunal.

The British Detainees'®

The U.S. military is believed to hold the following ten

British nationals, one British resident and one British

refugee among the prisoners at Guantanamo.

Shafiq Rasul, Asif Iqbal, and Rhuhel Ahmed

Of the 12 British detainees, two, Shafiq Rasul and Asif

Iqbal, are petitioners in Rasul v. Bush, No. 03-343. Togeth-

er with Rhuhel Ahmed, they share common circum-

stances: all deny ever being in Afghanistan as combatants.

British media sources suggest that they were seized in

Pakistan in December 2001 and turned over to U.S. forces

at Shebergan, northern Afghanistan, by Northern Alliance

fighters seeking rewards from U.S. authorities.'! The three

are friends from Tipton, in the West Midlands in Eng-

land.

% See, e.g., Mark Bowden, The Persuaders, OBSERVER (London),

Oct. 19, 2003, available at LEXIS, News Library, OBSRVR File; David

Rohde, Threats and Responses: The Detainees, N. Y. TIMES, Oct. 29, 2002,

available at LEXIS, News Library, NYT File.

"© Note that, for simplicity’s sake, amici refer to the following

prisoners as British based on their ties to the United Kingdom and

regardless of whether they are technically British citizens or residents.

" Tania Branigan & Vikram Dodd, The Bitterest Betrayal,

GUARDIAN, July 19, 2003, available at LEXIS, News Library, GUARDN

File. There is no doubt that the United States offered “substantial

monetary rewards” for “bad folks” captured in Afghanistan at this

time—Secretary of State Donald H. Rumsfeld stated that leaflets

announcing the rewards were “ ing like snowflakes ... in

December in Chicago.” Donald H. Rumsfeld, News Briefing, (Nov. 19,

2001), available at United States Department of Defense, http://www.

defenselink.mil/news/.

wii

Asif Iqbal was 20 years old in 2001. Both of Iqbal’s par-

ents are of Pakistani heritage —his father moved to Eng-

land 41 years ago and his mother 25 years ago. His

parents traveled to Pakistan in July 2001 to find a bride

for him. Iqbal first traveled to Pakistan in September

2001 to join his father in his family’s home town near

Karachi.'? In early October, after arranging the marriage,

Iqbal told his father that he was waveling to Karachi to

meet friends and would return in a week.’* The last time

Iqbal spoke with his family, he te his father

from Karachi to inform him of his safe arrival."

Rhuhel Ahmed, who was 20 at the time of his capture,

was a friend of Iqbal at Alexandra High School in Tip-

ton.!> In early October 2001, Ahmed traveled to Pakistan

to help with Iqbal’s wedding. Three and a half months

later, on January 26, 2002, his family learned he was

being held in Guantanamo Bay.'®

Shafiq Rasul was 24 in 2001, and was another of Iqbal

and Ahmed’s friends from Tipton.” Rasul had briefly

studied law,'* and was thinking of going to Pakistan to

visit relatives, learn Punjabi, and benefit from a comput-

er course there that was less costly than in England."? In

mid-September 2001, Rasul went to Lahore, Pakistan.”°

He contacted his family in October 2001 but was not

heard from again.

2 Raj amilies X-Ray Detainees Living in Fear of a

a rat at maa

LEXIS, News Library, TELEGR File.

Branigan & Dodd, supra, note 11.

“4 Id

Sid.

Id.

7 Id.

18 Jan Burrell, Britons at Camp Delta Make a Sorry Bunch of War-

riors, INDEPENDENT (London), Aug. 3, 2002, available at LEXIS, News

Library, INDPNT File. -

1 Branigan & Dodd, supra, note 11.

20 Syal, supra, note 12.

Jamal Udeen

Jamal Udeen is a 35 year old web designer from Man-

chester, England, and the son of Jamaican parents.*! He

was away from home only three weeks when U.S. forces

came across him in a prison in Kandahar, Afghanistan.”

Udeen told reporters in December 2001 that he was

passing through Afghanistan on his way to Iran but was

detained near the Afghan border by Taliban soldiers who

saw his British passport and accused him of being a

spy.” He was taken to Kandahar Central Prison and tor-

tured by Taliban forces.** The British Foreign and Com-

monwealth Office informed Udeen’s sister that he would

return to England once his passport was located.” His

family discovered, through media reports, that he was

transported to Guantanamo in February 2002.76

Bisher Al-Rawi and Jamil Al-Banna

Al-Rawi and Al-Banna are British residents who were

never close to any zone of military operations. They were

originally arrested and accused of associating with ter-

rorist groups upon arrival at Banjul Airport, Gambia in

November 2002 by the Gambian National Intelligence

Agency.”’ Al-Rawi, an Iraqi citizen, had been a U.K. res-

21 Burrell, supra, note 18.

2 Scott Johnson, Trapped in Prison: Foreigners Jailed by the Taliban

Still Waiting for Safe Passage Out of Afghanistan, NEWSWEEK WEB EXCLU-

SIVE, Dec. 18, 2001, at http:/ / www.msnbc.msn.com/ Default.aspx?id=

3067352&p1=0 (Jan. 11, 2004); Branigan & Dodd, supra, note 11.

% Branigan & Dodd, supra, note 11; Briton Among Thousands of

Taliban Prisoners, GUARDIAN, May 12, 2002, available at LEXIS, News

Library, GUARDN File.

— Branigan & Dodd, supra, note 11.

Id.

23, 2003), http:/ /news.bbc.co.uk/1/hi/ uk/3089395.stm.

2” David Rose, Guantanamo Bay on Trial, VANITY FAIR, Jan. 2004, at

88, 134.

ident for 19 years,“ and Al-Banna, a Jordanian refugee

resident in England,?? were among a group of four men,

all based in the United Kingdom, who were in Gambia in

connection with a peanut-oil processing venture.*”

Al-Rawi and Al-Banna were held incommunicado in

Banjul for approximately two months. They were report-

edly questioned by U.S. investigators into whose custody

they were delivered without judicial process or extradi-

tion proceedings.*! They were transferred to Bagram Air

Base, Afghanistan, in early January 2003—and from there

to Guantanamo Bay—despite a habeas corpus petition

pending in the Gambian courts.

Moazzem Begg

Moazzem Begg is a language teacher, law student and

devout Muslim who lived in Birmingham, England.*? He

moved his family to Afghanistan in 2000 to conduct char-

ity work and help establish an Islamic school.* In the fall

28 |d.; Patrick Wintour, Frantic efforts to bring home Britons held in

Cuba as Blair's US trip looms, GUARDIAN, July 12, 2003, available at

LEXIS, News Library, GUARDN File. Al-Rawi and his family fled

Iraq to escape the regime of Saddam Hussein. The rest of the family

took out British nationality, but Al-Rawi retained his Iraqi nationality

in order to preserve his claim to property stolen from him upon the

long-anticipated fall of Hussein. Clearly he could not depend upon

then-President Hussein to assert his interests to the United States

between the time of his arrest and the moment of Hussein’s fall.

29 Id. To obtain refugee status in the United Kingdom, Al-Banna

would have had to demonstrate that he had a well-founded fear of per-

secution in his country of origin, Jordan. See Convention Relating to the

Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 150; Protocol Relating to

the Status of Refugees, Oct. 4, 1967, 606 U.N.T.S. 267. Like Al-Rawi, Al-

Banna cannot depend on his government to defend his interests.

Id.

32 Paul Harris & Burhan Wazir, Briton tells of Ordeal in Bush’s Tor-

ture Jail, OBSERVER (London), Dec. 29, 2002, available at LEXIS, News

Library, OBSRVR File.

3 Id.

of 2001, as U.S. and U.K. forces entered Afghanistan,

Begg fled with his wife and family to Pakistan.** He was

kidnapped in February 2002 by unknown persons, bun-

dled into a car and smuggled back over the border into

Afghanistan, first to Kandahar and then to Bagram.*° His

wife immediately informed relatives in England, who

sought assistance from the British government and filed

a habeas corpus petition in a Pakistani court.*® The Pak-

istani government denied that Begg was in their custody.

Begg was held by U.S. forces in Afghanistan for a year

after his kidnapping and prior to his transportation to

Guantanamo Bay in the spring of 2003.°”

Tarek Dergoul

Tarek Dergoul is a 25 year old care worker from East

London.* Unlike the other British prisoners, uncon-

firmed reports indicate that he may have been involved

in hostilities, and was captured in the Tora Bora moun-

tain complex in Afghanistan to which retreating Al-Qaida

forces had fled.*” Dergoul, who was born in Britain and is

the son of a retired Moroccan baker, had told his family

in May or June 2001 that he was flying to Pakistan to

learn Arabic.*” His whereabouts were a mystery for

many months.*! In May 2002, his family learned that he

was held in Guantanamo Bay.”

4 Id.

% Audrey Gillan, Pakistani intelligence and A-nericans ‘abduct’

Briton, GUARDIAN, Mar. 9, 2002, available at LEXIS, News Library,

GUARDN File.

%” Sandra Laville, Father Appeals for Son Held in Guantanamo,

DAILY TELEGRAPH (London), Nov. 19, 2003, available at LEXIS, News

Library, TELGR File.

% Burrell, supra, note 18.

9% Id.

Id.

~ Branigan & Dodd, supra, note 11.

Id.

Tariq Mahmud

Tariq Mahmud is a taxi driver from Birmingham, where

his wife and two children continue to live. Mahmud is

believed to hold dual British and Pakistani citizenship.”

Mahmud reportedly left Britain several years ago, moving

to Islamabad after spending time in Afghanistan. Thought

to be in his 30s, Mahmud is understood to have been

arrested near Islamabad, Pakistan as part of an interna-

tional operation orchestrated by American and Pakistani

officials.“ Sources suggest that Mahmud was kidnapped

from Pakistan — picked up by the Americans to gather evi-

dence against another Birmingham man, Moazzam Begg,

whose arrest mirrors that of Mahmud’s.*®

Mahmud is included by amici because his name has

been linked to Guantanamo Bay.* Such is the lack of due

process in this case that his parents, who live in Birm-

ingham, do not know the whereabouts of their son.*”

Feroz Abbasi

Feroz Abbasi was born in Uganda and moved to Britain

with his parents at the age of eight.** The family settled in

the London suburb of Croydon, where Abbasi attended

high school.*? He subsequently took a two-year comput-

ing course at Nescot College in Epsom, England and was

# British Broad. Corp., Briton ‘Arrested Over Terror Links’ (Oct. 30,

2003), available at http:/ /news.bbc.co.uk/1/hi/england/west_mid-

lands/3226315.stm.

“Id.

45 |d.; Kim Segupta, Briton Held in Pakistan on Terror Charges, INDE-

PENDENT (London), Oct. 30, 2003, available at LEXIS, News Library,

INDPNT File. |

4 Lisa McCarthy, Release Hopes for Terror Suspects, BIRMINGHAM

EVENING MAIL, Jan. 9, 2004, available at LEXIS, News Library, BEMAIL

File.

47 Segupta, supra, note 45.

4 ~=British Broad. Corp., From Student to Terror Suspect (Jan. 21,

2002), http:/ / news. bbc.co.uk/1/hi/uk_politics /1773477.stm.

9 Id.

known as a courteous, well-behaved student.*” Abbasi

turned to the study of the Koran and the Muslim faith

after he was mugged in Switzerland.*! He traveled to

Afghanistan in December 2000, apparently for religious

reasons.

Abbasi was taken into custody by U.S. forces in north-

ern Afghanistan in December 2001.°2 His movements

prior to being seized are not known, nor is it known how

or where he was surrendered to U.S. forces by the North-

ern Alliance. Subsequently, he was flown—hooded and

shackled — to what was then Camp X-Ray at Guantanamo

Bay.*’ Abbasi’s mother has stopped receiving correspon-

dence from him,» and he was reportedly diagnosed by a

U.S. military forensic psychiatrist as suffering from

depression.*? News reports reveal that while in Guanta-

namo he tried to hang himself with a towel—one of the

few possessions allowed in the detention center.”

Martin Mubanga

Martin Mubanga is a 29 year old motorcycle courier

from North London.” He is the son of a former Zambian

0 Id.

1 Id.

2 Sean O'Neill, Feroz Abbasi, DAILY TELEGRAPH (London), May 5,

2003, available at LEXIS, News Library, TELEGR File.

Id.

4 Julian Borger & Vikram Dodd, Cuba Britons ‘admit war crimes’,

GUARDIAN, Aug. 12, 2003, available at LEXIS, News Library, GUARDN

File.

°° Vikram Dodd, Guantanamo Bay Detainee Suffers From Depres-

sion, GUARDIAN, Nov. 18, 2003, available at LEXIS, News Library,

GUARDN File.

%© Suicide Bid By Brit Held in Cuba, DAILY RECORD, July 12, 2003,

available at LEXIS, News Library, RECORD File. See also Rose, supra,

note 27 at 91.

%” News24, Sixth Briton Held at Guantanamo, (Dec. 5, 2002), at

http:/ /www.news24.com/ News24/USAttack/0,,2-1195_1183374,00.

html (Jan. 11, 2004).

government official whose family moved to Britain in the

1970s. He was taken into custody in Zambia by local

authorities in March 2002. It is thought that he was held

by the Zambian authorities for some time before being

handed over to U.S. authorities. A Foreign and Com-

monwealth Office official stated that consular access and

information were requested while Mubanga was

detained in Zambia, but that request was refused.** He

was subsequently surrendered to U.S. officials and trans-

ported to Guantanamo Bay.*?

Richard Belmar

Richard Belmar is a former post office worker from

north London.® He became a Muslim during his teenage

years, following the lead of his elder brother. In June

2001 Belmar traveled to Pakistan on a six-week study

trip.*! He called his family twice from Pakistan, telling

them that he enjoyed the culture and intended to extend

his stay.®* Belmar’s parents received a letter from him in

October 2002, saying that he had been arrested in Pak-

istan eight months prior for over-staying his visa.® He

was apparently never in Afghanistan. Between October

and December of 2002, the British Foreign and Common-

wealth Office informed Belmar’s parents that Belmar had

been taken to Guantanamo Bay where he had been seen

by British officials.“

8 Id.

60 Hala Jaber & Gareth Walsh, Former Catholic Schoolboy in Al-

Qaeda Camp, TIMES (London), Dec. 29, 2002, available at LEXIS, News

Library, TIMES File.

“= @

62 Id.

= “w@

“

SUMMARY OF ARGUMENT

The United Kingdom and the United States share an

unshakeable commitment to the rule of law. Recourse to

an independent and impartial tribunal is required by the

rule of law, especially when the justification for deten-

tion is contested or uncertain. Independent judicial

review is the product of over three centuries of constitu-

tional development in both of our countries, beginning

with the struggle between the monarchy and Parliament

in Civil War England and embodied in the U.S. Consti-

tution. The international rule of law is anchored in the

treaties by which both nations are bound.

Amici respectfully submit that this Court should pre-

serve the judiciary’s vital role to insure that executive

actions violate neither the Constitution of the United

States of America nor the international rule of law and

human rights.

Our nations share a unique historical bond, one that

was forged in the Parliamentary achievements of the

English Civil War and articulated in the Petition of Right

and the English Bill of Rights. In its early years, Ameri-

ca relied on that legal inheritance, rather than on abstract

principles of natural law, in defining the scope of its

laws. The Framers created a government of laws rather

than of men, manifesting their intent to place the princi-

ple of legality above all others. Amici urge this Court to

assert its constitutional role to ensure that the division of

powers so carefully crafted by the Framers is not altered

in a way prejudicial to the present, proud commitment to

the rule of law.

ARGUMENT

I. THE DETAINEES’ CASES PRESENT DISPUTES

WHICH CAN ONLY BE FAIRLY DETERMINED

BY AN IMPARTIAL AND INDEPENDENT COURT

A. The Circumstances Justifying Detention Are

Unproven And Subject To Dispute

There is no mechanism in place or being followed to

ensure that the circumstances of these detentions meet

even the most basic standards of due process or human

rights. The rule of law requires reascnable due process

to ascertain the bases asserted in support of prolonged

detention as well as the veracity of the facts that support

those bases. Indefinite detention without charge repre-

sents a violent departure from principles underlying our

common legal heritage.™

The detention center at Guantanamo was designed,

according to the U.S. Administration, to house “the worst

of the worst” and “hardest of the hardcore.”® Yet, other

6 Notwithstanding the situation in Guantanamo, the U.S.

Administration recognizes the need to act in conformity with the rule

of law and with international law: “It is the policy of the United States

Government to pursue human rights and the rule of law as a central

element of foreign policy. The U.S. approach to countering terrorism

does not conflict with or violate this policy.” AMNESTY INT'L, United

States of America—The Threat of a Bad Example 1 (Aug. 2003), at

http:/ /web.amnesty.org/aidoc/aidoc_pdf.nsf/Index/AMR51114200

3ENGLISH/ $File/ AMR5111403.pdf, quoting Letter to Amnesty Int'l

Sec’y Gen. Irene Khan, dated 11 July 2003, from Lorne W. Craner,

Ass’t Sec’y for Democracy, Human Rights and Labor, U.S. Dep't of

State (July 11, 2003). Commenting on the United States’ efforts in the

war on terrorism, the Pentagon General Counsel noted that the

administration will not “compromise its commitment to human rights

in accordance with the law” in “the conduct of this war against a ruth-

less and unprincipled foe.” Letter from William J. Haynes II, Gen.

Counsel, Pentagon, to Sen. Patrick Leahy (June 25, 2003), at

http:/ / www.hrw.org/ press/2003/06/letter-to-leahy.pdf.

6 Secretary Rumsfeld Roundtable with Radio Media (Jan. 15,

2002), available at United States Department of Defense, http://www.

statements by the administration suggest that Guanta-

namo holds no high ranking terrorist of any signifi-

cance.”

On the face of the facts as they are known, there is noth-

ing to indicate any basis for detaining any of the British

detainees. Some of the detainees appear to have been inno-

cently caught up in the Afghan conflict. In addition,

many were seized in foreign countries, some far from the

Afghan hostilities.°? Amici know nothing more about the

various detainees than is summarized above because

U.S. authorities assert the power to detain them with no

outside scrutiny whatsoever, whether by the 42 States

from which they hale, or the U.S. courts.”” These circum-

defense link.mil/ transcripts /2002/t01152002_t0115sdr.html (last vis-

ited Jan. 9, 2004). White House Press Report: Argentina, Philippines,

Guantanamo, South Asia (Jan. 16, 2002), available at United States

Department of State http://usinfo.state.gov/regional/nea/sasia/

afghan/text/0116wthsrpt.htm (last visited Jan. 9, 2004).

67 See Bob Drogin, No Leaders of Al Qaeda Found at Guantanamo,

L.A. TIMES, Aug. 18, 2002 available at LEXIS, News Library, LAT File

(quoting anonymous U.S. intelligence official’s statement that inmates

at Guantanamo “are mostly ‘low and middle-level’ fighters . . . not

‘the big-time guys’”).

6° For example, Jamel Udeen was attempting to travel across

Afghanistan in September 2001 when he was arrested and tortured by

the Taliban as a British spy, then abandoned in a Kandahar jail where

U.S. forces found him some months later.

6 Richard Belmar, Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, Bish-

er Al-Rawi, Jamily Al-Banna, Moazzem Begg, Tariq Mahmud, and

Martin Mubanga.

70 Justice Anthony M. Kennedy has stated that “[a]s a profession,

and as a people, we should know what happens after the prisoner is

taken away” in recommending that prison reform was a proper con-

cern for the entire legal profession, and not only for its criminal law

practitioners. Justice Anthony M. Kennedy, Speech at the American

Bar Association Annual Meeting (Aug. 9, 2003) (transcript available at

http:/ /www.supremecourtus.gov/ publicinfo/speeches/sp_08-09-

03.html). Amici believe that the situation in Guantanamo is equally

deserving of our interest because affirming the court below would

deny this Court's constitutional role.

stances require an objective judicial determination to safe-

guard minimal levels of due process and human rights.

B. The Legal Justifications For Detention Are

Ambiguous And Also Subject To Dispute

Similarly, the reported facts raise serious legal issues

deserving judicial scrutiny. If, as reported, several U.K.

nationals detained in Guantanamo were seized in foreign

countries in return for favors by the United States or in

violation of due process, they are potentially held in

Guantanamo in violation of local and international law.

An initial breach of international law by one state in rela-

tion to a foreign national does not relieve a second state

of its international obligations in respect of those same

nationals. Furthermore, no state’s domestic legislation

can excuse that state or another from strict compliance

with its own international obligations.”!

Martin Mubanga, a U.K. citizen and the son of a former

Zambian government official, was detained by the Zam-

bian government and summarily surrendered to U.S.

authorities before the circumstances of his original deten-

tion were established or tested. Al-Banna and Al-Rawi

were both detained by the Gambian government and

turned over to the U.S., despite a habeas corpus petition

pending on their behalf. Tariq Mahmud and Moazzem

Begg were apparently kidnapped in Pakistan in violation

of Pakistan’s domestic laws and Pakistan’s international

legal obligations to the U.K. The circumstances of Shafiq

Rasul and Asif Iqbal are set forth in other briefs to this

Court, but it merits noting that they and detainee Rhuhel

Ahmed were apparently first seized by Northern Alliance

fighters eager to earn favors from U.S. authorities.”

71 See [AN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 451-

52 (5th ed. 1998); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 320

(1987).

72 Rose, supra, note 27 at 134.

The court below noted that the situation of prisoners of

war detained by armed forces in the middle of hostilities

limits the rights available to those detained.”*> However,

even if some of the British prisoners were detained in the

theatre of military operations, and beyond the protection of

constitutional due process,”4 the grounds for denying them

due process must have long ago expired two years later and

six thousand miles away in an area under no military threat

and under the complete dominion of the U.S. government.”

Il. INDEFINITE EXECUTIVE DETENTION WITHOUT

JUDICIAL REVIEW IS INIMICAL TO THE UNIT-

ED STATES’ COMMITMENT TO THE RULE OF

LAW AND ITS INTERNATIONAL OBLIGATIONS

A. The United Kingdom And The United States

Share A Common History And Tradition Of

Judicial Review Of Executive Power

In establishing a tripartite separation of powers and a

truly independent judiciary, the Framers were aware of,

73 Al Odah v. United States, 321 F.3d 1134, 1139-40 (D.C. Cir. 2003).

74 Even those captured in the course of military operations are

entitled to the protections set out in the Geneva Conventions. See 1949

Convention Relative to the Treatment of Prisoners of War, Aug. 12,

1949, 6 U.S.T. 3114, T.1.A.S. 3365; 1949 Convention Relative to the Pro-

tection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T.

3516, T.1.A.S. 3365; Protocol Additional to the Geneva Conventions of

12 August 1949 and Relating to the Protection of Victims of Interna-

tional Armed Conflicts, adopted June 8, 1977, 1125 U.N.T-S. 3.

75 See Ex Parte Milligan, 71 U.S. 2 (1866) (holding that “[a]s neces-

sity creates the rule, so it limits its duration ... Martial rule can never

exist where the courts are open, and in the proper and unobstructed

exercise of their jurisdiction. It is also confined to the locality of actu-

al war.”). Ironically, U.S. courts have jurisdiction to adjudicate claims

of defendants arrested abroad and forcibly brought to the United

States for purposes of prosecution. See, e.g., United States v. Rezaq, 134

F.3d 1121, 1132 (D.C. Cir. 1998); United States v. Yunis, 924 F.2d 1086,

1091 (D.C. Cir. 1991) (examining “norms of customary international

law” and upholding extraterritorial jurisdiction under Federal

Hostage Taking and Air Piracy statutes).

and could look to, Parliament's prior achievements to sub-

ject the will of the Sovereign to the rule of law.”° In 1627,

Charles I, who had been collecting forced loans from his

subjects, imprisoned five knights in the Tower of London

who refused to comply with the royal “request.” They

sought release through writs of habeas corpus. When the

King returned the writ, he did not state that the knights

had refused to loan him funds, but instead stated that they

were each held “by special command of his majesty (per

speciale mandatum regis).””’ The court affirmed the King’s

absolute prerogative and denied the knights’ petitions.

Parliament responded by forcing the King to sign the

Petition of Right of 1628, which referenced the Magna

Carta and asserted that no person should be subject to

arbitrary arrest or imprisonment.” The King ultimately

accepted the Petition and it thereby became part of the

law inherited by the American colonies.

Almost 40 years later, Parliament again acted to secure

the freedom of the individual from arbitrary detention.

During the English Civil War, the British created their

own version of Guantanamo Bay and dispatched unde-

sirable prisoners to garrisons off the mainland, beyond

the reach of habeas corpus relief. In 1667, Edward Hyde,

First Earl of Clarendon, was impeached, in part for his

role in procuring the illegal imprisonment of political

offenders in remote and unknown places.”? In 1679, Par-

7 “For | agree, that ‘there is no liberty, if the power of judging be

not separated from the legislative and executive powers.’” THE FED-

ERALIST No. 78 (Alexander Hamilton) (quoting CHARLES DE MON-

TESQUIEU, THE SPIRIT OF THE LAWS). See also Marbury v. Madison for the

proposition that constitutional limitations on government authority

can be safeguarded only by the judiciary. 5 U.S. 137 (1803).

77 BERNARD SCHWARTZ, THE ROOTS OF FREEDOM: A CONSTITUTIONAL

HISTORY OF ENGLAND 133 (1967).

78 PETITION OF RIGHT, 1628, art. III.

79 THOMAS PITT TASWELL-LANGMEAD, ENGLISH CONSTITUTIONAL His-

TORY FROM THE TEUTONIC CONQUEST TO THE PRESENT TIME 594 (10th ed. 1946).

liament passed the Habeas Corpus Act foreclosing that

potential for abuse.

In April 1689, almost a century before the Framers gath-

ered in Philadelphia, William and Mary of Orange were

crowned King and Queen after swearing obedience to the

laws of Parliament and reading the Bill of Rights as part of

their oaths.* As a precursor to the American Bill of Rights,

the English Bill of Rights established strict limits on the

Sovereign’s legal prerogatives, including a prohibition

against arbitrary suspension of Parliament's laws.*! It also

established the fundamental constitutional principle of

Parliamentary supremacy and made the executive fully

accountable to Parliament and the courts, often referred to

as the rule of law. Among other things, under the rule of

law the existence or non-existence of a power or duty is a

matter of law, and it is for the courts to determine whether

a particular power exists, define its ambit, and provide an

effective remedy for its unlawful exercise.** The English

Bill of Rights also added other rights: the King was forbid-

den from establishing his own courts or acting as a judge,

and the courts were forbidden from imposing excessive

bail or fines, or cruel and unusual punishments.

The Framers built on this common tradition and draft-

ed a Constitution that institutionalized the separation of

powers and subjected the Legislature and the Executive

to the rule of law.** This Court has repeatedly acknowl-

80 ENGLISH BILL OF RIGHTS, 1689.

$1 ENGLISH BILL OF RIGHTS, 1689, art. I.

82 _8(2) HALSBURY’S LAWS OF ENGLAND (4th ed., 1996), Constitu-

tional Law and Human Rights 96.

8S Even before the U.S. declared its independence, Maryland's

General Assembly passed an Act for the Liberties of Peoples (1639).

In 1641, the Massachusetts Body of Liberties was adopted and argu-

ably became the {irst “American attempt” to enumerate “fundamen-

tal rights ... in a written instrument enacted by the people's

representatives.” BERNARD SCHWARTZ, THE BILL OF RIGHTS: A Docu-

MENTARY History 71 (1971).

edged that the English Bill of Rights inspired many of the

central provisions of the Constitution.** These historical

limits on arbitrary executive power in England, the

development of American constitutional law, and the

corresponding growth of individual liberty on both sides

of the Atlantic, have, since those early days, inspired

impressive contributions by the U.S. to the development

of international human rights and freedoms.

B. Both Countries Have Played Seminal Roles In

The Development Of The International Rule

Of Law And Human Rights

In the wake of the First World War, the United States

played a prominent role in drafting the Statute and Pro-

tocol of the Permanent Court of International Justice

(“PCIJ”), foreshadowing a pattern of international partic-

ipation in the creation and formulation of international

law. The governments of the United States and of the

% “The Constitution of the United States was ordained, it is true,

by descendants of Englishmen, who inherited the traditions of Eng-

lish law and history.” Hurtado v. California, 110 U.S. 516, 530 (1884). See

also Duncan v. Louisiana, 391 U.S. 145, 151-52 (1968) (noting that a jury

trial, expressed in the English Bill of Rights to protect against arbi-

trary rule, came to America with English colonists); United States v.

Johnson, 383 U.S. 169, 178 (1966) (“Since the Glorious Revolution in

Britain . . . the privilege [of the Speech and Debate Clause] has been

recognized as an important protection of the independence and

integrity of the legislature”); Republic Steel Corp. v. Maddox, 379 U.S.

650, 669 (1965) (Black, J., dissenting) (“It was in Magna Carta, the Eng-

lish Bill df Rights, and other such charters of liberty, that there origi-

nally was expressed in the English-speaking world a deep desire of

people to be able to settle differences according to standard, well-

known procedures . . .”); In re Groban, 352 U.S. 330, 351 n.32 (1957)

(Black, Warren, Douglas & Brennan, JJ., dissenting) (surveying British

law to clarify the right to counsel during an investigatory procedure).

85 Notwithstanding the fact that the Senate failed to endorse the

PCIJ’S terms, American participation in the formulation of interna-

tional law was not hampered: a Judge of U.S. citizenship served on

the bench of the PCI) throughout its lifetime. Rosalyn Higgins, The

United Kingdom also contributed significantly to the

drafting of the Universal Declaration of Human Rights

(“UDHR”) and the International Covenant on Civil and

Political Rights (“ICCPR”).°* The governments of both

nations signed and ratified the ICCPR, the Convention

Against Torture,*” and the Geneva Conventions, as well

as regional international human rights treaties.** These

international treaties not only reflect many of the consti-

tutional laws of the United States and the United King-

dom, but also general international law and the values of

our shared political and legal tradition.*? The human

IC], the EC], and the Integrity of International Law, INT'L & Comp. L.Q.

52.1(1) (2003).

8 The United States signed the ICCPR in 1977, ratified it in 1992,

and made reservations that Articles 1 through 27 were not self-exe-

cuting. ICCPR, Dec. 19, 1966, 999 U.N.T.S. 171, 6 LL.M. 368. Notwith-

standing those reservations, the United States, which includes the

judiciary, has an obligation under the ICCPR itself and customary

international law, as reflected in Article 18 of the Vienna Convention

on the Law of Treaties (“VCLT”), to “refrain from acts which would

defeat the object and purpose of a treaty.” VCLT, 8 I.L.M. 679 (1969);

RESTATEMENT OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES

(Revised) § 314 (Tentative Draft No. 1, 1980); Michael J. Glennon, The

Senate Role In Treaty Ratification, 77 AM. J. INT'L L. 257 (1983). See also

Sarei v. Rio Tinto, 221 F. Supp. 2d 1116, 1161-62 (C.D. Cal. 2002) (refer-

ring to an un-ratified treaty as evidence of the content of customary

international law).

8? Convention Against Torture and Otner Cruel, Inhuman or

Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984).

See, e.g., Inter-American Convention on Human Rights, Nov.

22, 1969, 1144 U.N.T.S. 123, 9 LL.M. 673 (“American Convention”);

European Convention for the Protection of Human Rights and Fun-

damental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (“ECHR”).

8° These values include the obligation undertaken by States to

ensure that: (i) no one is subject to arbitrary arrest, detention or exile.

See, e.g., UDHR, Dec. 10, 1948, art. 9, G.A. Res. 217A, 3 U.N. GAOR,

U.N. Doc. A/810; American Declaration of the Rights and Duties of

Man, May 2, 1948, art. XXV, reprinted in Basic Documents Pertaining

to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82

doc. 6 rev.1 (1992) (“American Declaration”); (ii) anyone who is

rights and fundamental freedoms they protect are also

inherent in our common humanity and our democratic

systems of government under law. The judiciary must

protect from an abuse of executive power even those

interests which arise under international law —as noted

by the Framers of the Constitution.”

Should the judiciary fail to fulfill its responsibility to

determine the legality of the British prisoners’ detention,

there would exist a prison for indefinite detention function-

ing in total secret, under the unchallenged exclusive con-

trol of the executive branch of the U.S. government. That

result offends the United States’ domestic and internation-

al commitment to basic due process and human rights.

detained shall be informed of the reasons for his detention and shall

be promptly notified of the charge or charges against him. See, e.g.,

American Convention, art. 7; ICCPR, art. 14; (iii) anyone who is

deprived of his liberty by arrest or detention shall be entitled to take

ings before a court, in order that the court may decide with-

out delay on the lawfulness of his detention and order his release if

the detention is not lawful. See, e.g., American Convention, art. 7;

ICCPR, art. 9; (iv) all persons are equal before the law and entitled

without any discrimination to the equal protection of the law. See, e.g.,

UDHR, art. 7; ICCPR, art. 26; and (v) every accused person is pre-

sumed to be innocent until proved guilty. See, e.g., UDHR, art. 11;

American Declaration, art. XXVI; ICCPR, art. 14.

% Alexander Hamilton commented on the proper scope of judi-

cial review and the importance of international law:

As the denial or perversion of justice by the sentences of

courts, as well as in any other manner, is with reason classed

among the just causes of war, it will follow that the federal

judiciary ought to have cognizance of all causes in which the

citizens of other countries are concerned. This is not less

essential to the preservation of the public faith, than to the

security of the public tranquility. . . . But it is at least prob-

lematical, whether an unjust sentence against a foreigner,

where the subject of controversy was wholly relative to the

lex loci, would not, if unredressed, be an aggression upon his

sovereign, as well as one which violated the stipulations of a

treaty or the general law of nations.

THE FEDERALIST No. 80 (Alexander Hamilton).

C. Past Deviations From The Rule Of Law And

International Obligations In Times Of Nation-

al Crises Are Embarrassing Episodes In Our

Respective Histories

Courts have a duty to vindicate the rule of law when it

is circumvented or abused by legislative or executive

fiat. History harshly judges attempts to detain individu-

als beyond the reach of the rule of law even in times of

crisis. Japanese-American internment during the Second

World War has become the paradigm for the pitfalls of

judicial deference to arbitrary executive detention. The

U.K. had its regrettable equivalent to the military order

used to imprison Fred Korematsu. Under the auspices of

Section 18B of the Wartime Defence Regulation, approx-

imately 27,000 persons were detained between 1939 and

1945 in the U.K without charge, trial, or set term.” This

abuse of executive power allowed arrest and detention

on the Home Secretary’s “reasonable belief” that an indi-

vidual posed a threat to the nation—judicial deference

was presumed. The most conspicuous case thereunder,

Liversidge v. Anderson, also provides the most vigorous

and insightful dissent. 1942 A.C. 206 (1941). Expressing

his deep concern to safeguard the role of the judiciary in

the scheme of the government, Lord Atkin stated, “in

this country, amid the clash of arms, the laws are not

silent. They may be changed, but they speak the same

language in war as in peace.” Id. at 244. Lord Atkin’s

comments, largely disfavored by his fellow Law Lords,

are now universally viewed as an accurate reflection of

the rule of law even in times of war.”

91 Numbers cannot be confirmed because authorities refuse

access to many papers. ALFRED W. B. SIMPSON, IN THE HIGHEST DEGREE

Opious: DETENTION WITHOUT TRIAL IN WARTIME BRITAIN 422 (1992).

% Amici do not opine on how this Court should balance the exi-

gencies of “war or public danger” with the interest of due process when

it comes to ruling on what process is due under the circumstances. Nev-

27 aes

ee es

—_——_— ———

The U.K.’s recent experience with terrorism is equally

instructive. In answering charges that it violated the

human rights of Irish citizens held in the U.K. because of

suspected involvement in terrorism, the U.K. govern-

ment claimed that it was compelled to take severe meas-

ures. However, the powers of detention exercised over

suspected Irish terrorists were eventually criticized by

the European Court of Human Rights as disproportion-

ate violations of human rights.”

Such examples stand out “as a caution that in times of

distress the shield of military necessity and national

security must not be used to protect government institu-

tions from close scrutiny and accountability.”** More-

over, these examples from both the U.S. and U.K. are no

more shocking than the situation in Guantanamo, where

detainees have been precluded from even being

informed of the grounds for their detention or having

their rights brought before any court of law.”

ertheless, as one prominent U.S. jurist has commented, the rule of law

is never completely silent. See Chief Justice William H. Rehnquist,

Remarks at 100th Anniversary Celebration of the Norfolk and

Portsmouth Bar Association (May 3, 2000) (transcript available at http: / /

www.supremecourtus.gov/ publicinfo/ speeches /sp_05-03-00.html).

This suggests that the judiciary must at least take jurisdiction in this case.

% Brannigan & McBride v. United Kingdom, 258 Euro. Ct. H.R. (ser.

A) (1993); Brogan, et al. v. United Kingdom, 11 Eur. H.R. Rep. 117 (1989).

The Good Friday Agreement of 1998 sought to redress those violations

by providing for a specialized tribunal to deal with human rights

reforms, and for changes in policing and the courts. Agreement Reached

in the Multi-Party Negotiations, Apr. 10, 1998, 37 .L.M. 751 (1998).

%4 Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal.

1984).

% The U.K. has its own anti-terrorism measures: the Anti-terror-

ism, Crime and Security Act 2001 (ATCSA). The ATCSA was enacted

on December 14, 2001 and provides for detention of only non-U.K.

nationals. As harsh as the law and the executive decisions made there-

under may be, neither evade judicial scrutiny. ATCSA provides for

judicial review of executive determinations that a person is a suspect-

ed terrorist and provides detainees with their counsel of choice.

It cannot be sufficient for the Respondent to argue that

the actions of U.S. authorities in Guantanamo are non-

reviewable by any U.S. court because these actions took

_ place outside the area of technical U.S. political sover-

eignty.”° The detainees have been brought under duress

by those same authorities and are within their exclusive

control. In so arguing, the Respondent is in fact asserting

that the checks and balances of the Constitution, so care-

fully constructed by the Framers and preserved for more

than two centuries, can be set aside and denied to pris-

oners solely on the basis of a Presidential determination

which is not subject to judicial review. Unchecked power

always begets the greater exercise, and probable abuse,

of that power. Courts have a duty to ensure that today’s

response to military crises cannot subsequently be used

to justify an attack on human rights and due process.”

%° The United States’ total and absolute control over those

detained as enemy combatants at Guantanamo renders it responsible

pursuant to its obligations at international law. The concept of juris-

diction under the ICCPR, for example, is essentially territorial, but

where, exceptionally, a State exercises effective control of foreign ter-

ritory, that territory falls within Article 2(1) of the ICCPR and has

extraterritorial application. The same is true under Article 1 of the

ECHR. See, e.g., Loizidou v. Turkey, 23 Eur. H.R. Rep. 513 (1996);

Loizidou v. Turkey (Preliminary Objections), 20 Eur. H.R. Rep. 99 (1995).

%” Amici recall a distinguished foreigner whose comments on the

potential for executive abuse at the Republic's infancy ring true today:

I think that liberty is endangered when this power [of the

majority] is checked by no obstacles which may retard its

course, and force it to moderate its own vehemence. Unlimit-

ed power is in itself a bad and dangerous thing; human

beings are not competent to exercise it with discretion; and

God alone can be omnipotent, because his wisdom and his

justice are always equal to his power. But no power upon

earth is so worthy of honor for itself, or of reverential obedi-

ence to the rights which it represents, that | would consent to

admit its uncontrolled and all-predominant authority.

ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 306 (Henry Reeve

trans., Schocken 1961) (1835).

te ee

ee ee ee ee te

———— —

D. United States Courts Consistently Seek To Act

In Harmony With International Law

This Court has long recognized that it is appropriate for

U.S. law to be consistent with international law and cus-

tom.” In fact, members of this Court have recognized the

importance of international human rights law to constitu-

tional adjudication as a yardstick of the principles general-

ly shared by the United States with other civilized

nations.” Likewise, the senior constitutional courts in the

% Subject to the Constitution, customary international law and

treaties are the law of the United States. U.S. CONST. art. VI, § 2; Hurd

v. Hodge, 334 U.S. 24, 35 (1948) (striking down racially restrictive leg-

islation as violative of public policy manifested in, inter alia, treaties);

Oyama v. California, 332 U.S. 633, 649-50, 673 (1948) (relying on provi-

sions of the United Nations Charter as a source of legal obligations

and finding Alien Land Law invalid as inconsistent with the “high

ideals” therein) (Black, Douglas, Murphy & Rutledge, JJ., concurring);

The Paquete Habana, 175 U.S. 677 (1900); Murray v. Schooner Charming

Betsy, 6 U.S. 64 (1804).

9% Lawrence v. Texas, 123 S. Ct. 2472 (2003). Members of this Court

have remarked on the value of comparative perspective in judicial

interpretation. See, e.g., Justice Sandra Day O’Connor, Federalism of

Free Nations, 28 N.Y.U. J. INT'L L. & POL. 35 (1996). Justice Stephen

Breyer, Changing Relationships Among European Constitutional Courts,

21 CARDOZO L. REV. 1045, 1060 (2000) (“the nations we visited, like our

own, attach great importance to the rule of law. ... we can learn from

their structural efforts. ... I am certain that comparative constitution-

al study of substance and of structure is part of that task.”). Justice

Ruth Bader Ginsberg has made a similar observation:

A prominent jurist put it this way 14 years ago: ‘For nearly a

century and a half, courts in the United States exercising the

power of judicial review [for constitutionality] had no prece-

dents to look to save their own, because our courts alone

exercised this sort of authority. When many new constitu-

tional courts were created after the Second World War, these

courts naturally looked to decisions of the Supreme Court of

the United States, among other sources, for developing their

own law. But now that constitutional law is solidly grounded

in so many countries, it is time that the United States courts

United Kingdom and other commonwealth countries refer

to and use provisions of the generally recognized interna-

tional human rights instruments—both incorporated and

unincorporated — to interpret and apply domestic common

law,!° legislation,’ and legal doctrines.'®

begin looking to the decisions of other constitutional courts

to aid in their own deliberative process.’

Justice Ruth Bader Ginsburg, Remarks for the American Constitu-

tional Society (Aug. 2, 2003), quoting William H. Rehnquist, Consti-

tutional Courts-Comparative Remarks (1989), reprinted in GERMANY

AND ITs BASIC LAW: PAST, PRESENT AND FUTURE — A GERMAN-AMERICAN

SYMPOSIUM 411, 412 (Paul Kirchhof & Donald P. Kommers eds., 1993).

100 Derbyshire County Council v. Times Newspapers, [1992] Q.B. 770, 812

(Eng.) (noting that, although Article 10 of the European Convention on

Human Rights is not incorporated into English law, “it may be resorted

to in order to help resolve some uncertainty or ambiguity in municipal

law”); Attorney-General v. Guardian Newspapers (No. 2), [1990] 1 A.C. 109,

134 (Eng.) (observing that the common law duty of confidence comport-

ed with Article 10 of the European Convention on Human Rights).

101 See Waddington v. Miah, [1974] 1 W.L.R. 692, 694 (Eng.) (observ-

ing that British immigration laws comport with Article 11(2) of the

UDHR and the ECHR). See also R. v. Sec’y State Home Dep't, ex parte

Simms, {2000] 2 A.C. 115, 130, 131-32 (Eng. H.L.) (noting that even

when public powers are conferred by clear and unambiguous words,

there is a presumption that the legislation conforms with the human

rights treaties by which the U.K. is bound; legislature and executive

are presumed to further, rather than to frustrate, international treaty

obligations); R. v. Sec’y State, ex parte Brind, [1991] 1 A.C. 696 (Eng.

H.L.) (“It is already well settled that, in construing any provisions in

domestic legislation which is ambiguous in the sense that it is capable

of a meaning which either conforms to or conflicts with the [European

Convention for the Protection of Human Rights], the courts will pre-

sume that Parliament intended to legislate in conformity with the con-

vention”); Garland v. British Rail, [1983] 2 A.C. 751 (Eng. H.L.) (finding

that nothing short of an “express positive statement” in an Act of Par-

liament justified a court to construe a provision “in a manner incon-

sistent with a Community treaty obligation of the United Kingdom”).

102) Australian, Canadian, English, and New Zealand courts look

to international standards when applying the “legitimate expecta-

tions” principle to administrative decisions regarding compliance

with unincorporated conventions. See, e.g., Minister Immigration &

Ethnic Affairs v. Teoh, 128 A.L.R. 353 (Austl. 1995); Baker v. Minister of

While courts must take into account the exigencies of

war and national emergency, a country’s courts must

never abdicate their constitutional role. It was an Ameri-

can Supreme Court Justice who reminded the British of

this essential principle in the aftermath of the Second

World War. Sir Winston Churchill argued that Nazi lead-

ers should be shot upon their capture,’ an outcome

averted largely by the United States lobbying for the cre-

ation of the International Military Tribunal at Niirnberg.

Justice Jackson, then Chief of Counsel for the United

States, noted in his opening remarks to the court: “That

four great nations flushed with victory and stung with

injury, stay the hand of vengeance and voluntarily sub-

mit their captive enemies to the judgment of the law is

one of the most significant tributes that Power has ever

paid to reason.” 1

The United States and its allies then faced a great

enemy and had suffered appalling losses. In discussing

what to do with war criminals, the United States’ official

position was premised on the rule of law:

we could execute or otherwise punish them with-

out a hearing. But undiscriminating executions or

punishmen's without definite findings of guilt,

fairly arrived at, would violate pledges repeated-

ly given, and would not set easily on the American

Citizenship, [1999] 2 S.C.R. 817 (Can.); R. v. Sec’y State, ex parte Ahmed

& Others, [1999] Imm. A.R. 22 (Eng. C.A.); R. v. State Home Dep't, ex

parte Behluli, [1998] LAR 407 (Eng. C.A.) (Dublin Convention); Tavita v.

Minister Immigration, 2 N.Z.L.R. 257 (N. Z. 1994).

103 7 MARTIN GILBERT, WINSTON S. CHURCHILL: ROAD TO VICTORY

1941-1945, 1201-02 (1986). See also, Chief Justice William H. Rehnquist,

Dedication of the Robert H. Jackson Center (May 16, 2003) (“the

Nuremberg Trials were surely superior to the summary court martial

proceedings favored by some members of the administration and the

summary executions initially favored by the British.”).

104 _Robert H. Jackson, Opening Statement Before the Internation-

al Military Tribunal (Nov. 21, 1945).

conscience or be remembered by our children with

pride. The only other course is to determine the

innocence or guilt of the accused after a hearing as

dispassionate as the times and horrors we deal

with will permit, and upon a record that will leave

our reasons and motives clear.!®

The Nurnberg trials were established between the vic-

torious Allies and thus did not afford domestic constitu-

tional protection. The United States, however, clearly

understood that at a minimum, a trial and a public record

EDWIN S. MATTHEWS, JR.

Counsel of Record

EDWARD H. TILLINGHAST, III

DAMION K. L. STODOLA

ANDREA G. LAULETTA*

RACHEL WRIGHTSON*

COUDERT BROTHERS LLP

Respectfully submitted,

JEREMY CARVER, CBE

CLIFFORD CHANCE LLP

10 Upper Bank Street

London E14 5JJ

44-20-7006-1000

LORD LESTER OF

HERNE HILL QC

144A f the Americas

were required—if not by the letter of the law, then by saee Sa re DAVID PANNICK QC

New York, New York 10036

principles upon which the Republic was created. erage te a sar yamine

CONCLUSION PETER CARTER QC Temple

London EC4Z 9BW

This case provides the Court with an opportunity to vin- per the ty 06. 30-7903.1 770

dicate the rule of law under the Constitution and preserve 44-20-7520-6000

the role of the courts in ensuring that the exercise of exec-

utive power over the detainees in Guantanamo will not be

above the law. Petitioners’ writs should be granted. * Admission pending in New York

Attorneys of 175 Members of both Houses of

the Parliament of the United Kingdom of

Great Britain and Northern Ireland

105 Report of Robert H. Jackson To the President, June 7, 1945,

DeP’T ST. BULL., June 10, 1945, at 1071, 1073. The report was released

to the press by the White House with Presidential approval and was

accepted by other governments as the official statement of the United

States. It was subsequently placed before all of the delegations at the

London Conference.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.