Amicus Curiae Brief — Rasul v. Bush

Supreme Cour, US 7

FILED

Nos. aux JAN 14 2004

OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

SHAFIQ RASUL, ET AL.,

i Petitioners,

GEORGE W. BUSH, ET AL..,

Respondents.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, ET AL.,

i Petitioners,

UNITED STATES, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF AMICUS CURIAE

OF RETIRED MILITARY OFFICERS

IN SUPPORT OF PETITIONERS

MIRNA ADJAMI JAMES C. SCHROEDER

Midwest Immigrant and Counsel of Record

Human Rights Center GARY A. ISAAC

208 South LaSalle St. STEPHEN J. KANE

Chicago, IL 60603 JON M. JUENGER

(312) 660-1330 Mayer, Brown, Rowe

& Maw LLP

190 South LaSalle St.

Chicago, IL 60603

(312) 782-0600

Ne ee

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE ............ 1

SUMMARY OF ARGUMENT ................. 2

PT cteeeebeeecheedPSdeebeeeoeeess 4

I. The United States Has Played A Leading Role

In Developing International Standards To

Safeguard The Rights Of Captured Prisoners. . . . 4

II. The Geneva Conventions And U.S. Military

Regulations Implementing The Conventions

Require That A Competent Tribunal Determine

The Status Of Captured Prisoners. .......... 7

Ill. The Judicial Branch Has A Duty To Act As A

Check On The Executive Branch, Even In

DE Ciecenhceeeehaceiheeesecees 9

IV. Under The Unique 1903 Lease With Cuba,

The United States Exercises At Least Some

Sovereign Powers Over The Guantanamo Base . 13

V. Failure To Provide Any Judicial Review Of

The Government’s Actions Could Have Grave

Consequences For U.S. Military Forces

Captured In Future Conflicts............. 22

DET +a cews bse eeececesesveceecece 30

ii

TABLE OF AUTHORITIES

Page

Cases:

Brown v. United States, 12 U.S. (8 Cranch) 110

(1814) 2. wc ccccesesesseenne eee 12

Chandler v. Miller, 520 U.S. 305 (1997) .......... 12

Duro v. Reina, 495 U.S. 676 (1990) ............. 20

Estep v. United States, 327 U.S. 114 (1946) ........ 12

Ex parte Milligan, 71 U.S. 2 (1866) .......... 10, 12

Ex parte Quirin, 317 U.S. 1 (1942) .............. 11

Gherebi v. Bush, 2003 WL 22971053

Gta Cie. Des. 16, SAP ot cece eee 14, 17

Johnson v. Eisentrager, 339 U.S. 763

(i) Pe 13, 14, 25, 28

Korematsu v. United States, 323 U.S. 214 (1944) . 10,12

Olmstead v. United States, 277 U.S. 438 (1928) .. 12,29

Reid v. Covert, 354 U.S. 1 (1957) .............. 11

Shaughnessy v. United States ex rel. Mezei,

34S U.S. SRG GREED cccddcccenceenedseuces 10

Sterling v. Constantin, 287 U.S. 378 (1932) ........ 11

United States v. Rice, 17 U.S. 246 (1819) ......... 20

ill

United States v. Verdugo-Urquidez, 494 U.S. 259

DPPC RECS eink aeeceeeccescccceces 22

Treaties and Regulations:

Geneva Convention Relative to the Treatment of Prisoners

of War, Aug. 12, 1949, 6 U.S.T. 3316 ....... 7, 26

Lease of Certain Areas for Naval or Coaling Stations

(1903), T.S. No. 426, 6 Charles I. Bevans, TREATIES

AND OTHER INTERNATIONAL AGREEMENTS OF THE

UNITED STATES OF AMERICA 1776-1949, at 1120

DEG h be ecceececcaccsececce 21

Lease of Lands for Coaling and Naval Stations (1903),

T.S. No. 418, 6 Charles I. Bevans, TREATIES AND

OTHER INTERNATIONAL AGREEMENTS OF THE

UNITED STATES OF AMERICA 1776-1949,

at 1113 (State Dep’t 1971) ............ 13, 14, 21

Relations with Cuba (1934), T.S. No. 866, 6 Charles

I. Bevans, TREATIES AND OTHER INTERNATIONAL

AGREEMENTS OF THE UNITED STATES OF AMERICA

1776-1949, at 1161 (State Dep't 1971) ......... 14

United States Air Force Regulation AFJI 31-304 ...... 8

United States Dep’t of Army, Regulation 190-8,

“Enemy Prisoners of War, Retained

Personnel, Civilian Internees and Other

Detainees,” § 1-5(a)(2) (Oct. 1, 1997) .......... 8

United States Marine Corps Regulation MCO 3461.1 ... 8

iv

United States Navy Regulation OPNAVINST 3461.6 ...

Miscellaneous:

A Se, GU, Da ED ow ccc ccccerecsesuces

Steven W. Becker, “Mirror, Mirror on the

Wall . . .” : Assessing the Aftermath of

September 1 lth, 37 VAL. U. L. REV. 563 (2003) . . .

William W. Bishop, Jr., INTERNATIONAL LAw:

CASES AND MATERIALS (1953) ..............

BLACK’S LAW DICTIONARY (7th ed. 1999) .........

John W. Blaney, Nov. 21, 2002 Press Conference

statement (available at http://usembassy .

state.gov/monrovia/wwwh112102.html) ........

John W. Blaney, Jan. 2, 2003 Statement (available

at http://usembassy .state.gov/monrovia/

DEED oho cecscoseeccssccss

Max Boot, THE SAVAGE WARS OF PEACE (2002) .....

Col. Fred L. Borch, Review of Honor Bound,

} SS -*. =e

Jess Bravin et al., Status of Guantanamo Bay

Detainees is Focus of Bush Security Team’s

Meeting, WALL ST. J., Jan. 28, 2002, atAl6 .....

24

18

24

27

28

Anupam Chander, Guantanamo and the Rule of Law:

Why We Should Not Use Guantanamo Bay to

Avoid the Constitution, FindLaw’s Legal

Commentary (http://writ.news findlaw.com/

commentary/20020307 chander.html) ......... 28

101 Cong. Rec. 9960 (July 6, 1955) ............ 6,7

101 Cong. Rec. 9962 (July 6, 1955) .............. 7

Constitution Project, RECOMMENDATIONS FOR

THE USE OF MILITARY COMMISSIONS

CONT RSS aN Fem renee 8

Contemporary Practice of the United States

Relating to International Law, 62 AM. J.

BT Ee COPED wee ces ewesecoseuesees 10

Department of Defense, Briefing on Enemy

Prisoner of War Status Categories, Releases

and Paroles (May 9, 2003) ............25555: ll

Department of Defense Directive No. 5100.77,

PTT TT TTT TTT TTT 9

Department of Defense, FINAL REPORT TO

WRGEEEED cee ecdcccceceesenceecesess 10

Department of Defense News Briefing

J RS PPP 11

vi

7 Department of State, Despatches from the United

States Ministers to Cuba, 1902-1906 (National

Dt nthececueuGe ciee toeee eine wees 21

Department of State, Office of the Solicitor,

May 7, 1912 Memorandum, National

Archives, Record Group 59, document

Fe ee eee 18

Gen. J.V. Dillon, The Genesis of the 1949

Convention Relative to the Treatment of

Prisoners of War, 5 MIAMI L.Q. 40 (1950) ... 4, 5,6

Jennifer Elsea, Treatment of “Battlefield

Detainees” in the War on Terrorism, CRS

REPORT FOR CONGRESS (Apr. 11, 2002)

Joan Fitzpatrick, Sovereignty, Territoriality, and the

Rule of Law, 25 HASTINGS INT’L & Comp.

L. REV. 303 (2002)

Benjamin Franklin, AN HISTORICAL REVIEW OF

THE CONSTITUTION AND GOVERNMENT

OF PENNSYLVANIA (1759) (Arno Press

SIE a aire re Soe 11

Geneva Conventions for the Protection of War

Victims: Hearing Before the Senate Committee

on Foreign Relations, 84th Cong., Ist Sess.

(1955)

Guzman and Latamble, In re, Annual Digest

and Reports of Pub. Int’! Law Cases,

1933-34, Case No. 43 (Cuba 1933)

Vii

Robert E. Harkavy, GREAT POWER

COMPETITION FOR OVERSEAS BASES (1982) ...... 15

Fred Hiatt, Truth-Tellers in a Time of Terror, WASH.

Post, Mov. 25, Z0UZ, MAIS ..ccccccccccees 24

5 Willis Fletcher Johnson, THE HISTORY OF

VET rrerrrr eri ty 20

>—,___—

Judge Advocate General’s School, OPERATIONAL

LAW HANDBOOK (O’Brien, ed. 2003) .........-.. 9

Harold Hongju Koh, The Case Against Military

Commissions, 96 AM. J. INT’L L. 337 (2002) ..... 27

Joseph Lazar, International Legal Status of

Guantanamo Bay, 62 AM. J. INT’L L. 730 (1968) .. 19

Howard S. Levie, PRISONERS OF WAR IN

INTERNATIONAL ARMED CONFLICT (1977) ...... 4,5

Magna Carta, chapter 30, in 3 THE COMPLETE

STATUTES OF ENGLAND 27 (Halsbury’s :

Laws of England 1929) .......-----+eeeees 25

Mary Ellene Chenevey McCoy, Guantanamo Bay:

The United States Naval Base and its

Relationship with Cuba (unpublished

Ph.D. dissertation, University of Akron, 1995)... . 19

Neil McDonald & Scott Sullivan, Rational

Interpretation in Irrational Times: The

Third Geneva Convention and the “War On

Terror,” 44 HARV. INT’L L.J. 301 (Winter

Dt kkguneedeecud6s oeeneeesacusedus 23

Viii

Mary McGrory, Bungling on the 9-11 Prisoners,

WASH. PosT, Feb. 10, 2002, atB7............ 28

John Mintz & Mike Allen, Bush Shifts Position on

Detainees, WASH. POST, Feb. 8, 2002, atAl ..... 28

Manooher Mofidi & Amy E. Eckert, “Unlawful

Combatants” or “Prisoners of War”: The

Law and Politics of Labels, 36 CORNELL INT’L

SS Fee ee eee Te 27

Robert L. Montague, III, A Brief Study of

Some of the International Legal and Political

Aspects of the Guantanamo Bay Problem,

Sue ED ovccececeécecccecess 18

Marion E. Murphy, THE HISTORY OF

GUANTANAMO BAY (1953) .............. 15, 16

Order of Retaliation, July 30, 1863, in 6

COLLECTED WORKS OF ABRAHAM LINCOLN

Bee Gy Oe GE Gig BUD ccc cccccccecses 26

PAPERS RELATING TO THE FOREIGN RELATIONS

OF THE UNITED STATES, 1903 ............... 19

PAPERS RELATING TO THE FOREIGN RELATIONS

OF THE UNITED STATES, 1912 ............... 19

Robert D. Powers, Jr., Caribbean Leased Bases

Jurisdiction, 15 JAG J. 161 (Oct.-Nov. 1961) ..... 16

ix

Maj. Gen. George S. Prugh, VIETNAM STUDIES,

LAW AT WAR: VIETNAM 1964-1973 (Dep't

of the Army 1975) .......--0+eeeeee 22, 23, 26

RESTATEMENT (THIRD) OF FOREIGN RELATIONS OF

THE UNITED STATES § 206 (1987) ........+.5-. 20

Gabor Rona, Interesting Times for International

Humanitarian Law: Challenges from the

“War on Terror,” 27 FLETCHER F. WORLD

\\ @-l|, ¥ -) PP eereeerrerereTe ei 8

Theodore Roosevelt to John Hay, May 12, 1903,

Theodore Roosevelt Papers, Library of

Congress, Manuscript Division, microfilm

| SPerervrTrvirriiiririt 21

Shehu Sani, U.S. Actions Send a Bad Signal to

Africa: Inspiring Intolerance, INT’L HERALD

TRIB., Sept. 15, 2003, at6 .. 2.6... eee eee eee 24

Martin J. Scheina, The U.S. Presence in

Guantanamo, 4 STRATEGIC REVIEW 81

SR coos eens as 18, 19

U.S. Marine Corps, The Basic School Training

Command, LAW OF WAR/CODE OF CONDUCT

FP rrrrrrrrrriry ei i)

ceases caer caeenmammr ai, mamma ete

INTEREST OF THE AMICI CURIAE'

Amici curiae are three retired military officers. Each one

formerly served as the Judge Advocate General or the senior

legal advisor for a branch of the United States military, and

has extensive experience with U.S. military regulations and

the Laws of War. Each dedicated his military career to the

principle that the mission of the nation’s Armed Forces must

be consistent with the rule of law.

The principal purpose of this brief is to explain to the

Court the profound ramifications, from a military point of

view, of the government’s position that no court can decide

whether foreign prisoners at the United States Naval Base at

Guantanamo Bay, Cuba may be held there without any charges

being brought against them and without being afforded a

hearing by a “competent tribunal” to determine their status, as

required by U.S. military regulations and the Geneva

Conventions of 1949. Amici are concerned that foreigners

capturing American forces in current or future conflicts will

use the failure of the United States to follow the competent

tribunal requirement in the Geneva Conventions at

Guantanamo as justification for refusing to apply the Geneva

Conventions to American captives.

Brigadier General David M. Brahms served in the Marine

Corps from 1963 through 1988, with a tour of duty in

Vietnam. During the 1970s, he served as the principal legal

advisor for POW matters at Headquarters Marine Corps, and

in that capacity, he was directly involved in issues relating to

the return of American POWs from Vietnam. General Brahms

' Pursuant to Rule 37.3 of the Rules of this Court, the parties have

consented to the filing of this brief. The parties’ letters of consent

have been lodged with the Clerk. This brief was not written in

whole or in part by counsel for a party, and no person or entity

other than the amici curiae has made a monetary contribution to the

preparation and submission of this brief.

2

was the senior legal advisor for the Marine Corps from 1985

through 1988, when he retired from the military. General

Brahms is currently in private practice in Carlsbad, California

and is a member of the Board of Directors of the Judge

Advocates Association. He also served as the Technical

Advisor for the film A Few Good Men.

Rear Admiral Donald J. Guter was a line officer in the

United States Navy from 1970 through 1974. After a break for

law school, he returned to the Navy in 1977 and remained in

the Navy until 2002, when he retired from the military. He

served as the Navy’s Judge Advocate General from June 2000

through June 2002. Rear Admiral Guter was in the Pentagon

when it was attacked by terrorists on September 11, 2001.

Rear Admiral John D. Hutson served in the United States

Navy from 1973 to 2000. He was the Navy’s Judge Advocate

General from 1997 to 2000. He is presently the Dean and

President of the Franklin Pierce Law Center in Concord, New

Hampshire.

SUMMARY OF ARGUMENT

For more than 200 years, the United States has been at the

forefront of international efforts to codify and safeguard the

rights of prisoners captured in wartime. Those efforts

resulted, after World War II, in the Geneva Conventions of

1949, which the Senate ratified in 1955. Key provisions of

those Conventions have been incorporated in American

military regulations, including the requirement that the status

of captured persons must be determined by a competent

tribunal if there is any doubt that the captives are prisoners of

war to whom the protections of the Geneva Conventions

apply.

The requirement that prisoners’ status be determined by a

competent tribunal comports with the fundamental principle

that the Constitution established a government of limited

powers. The government should not be permitted, through

3

Executive fiat, to imprison persons indefinitely when no

charges have been brought against them and the prisoners are

barred from all access to courts and other tribunals to

determine their status.

The government’s contention is that no court anywhere on

earth has jurisdiction even to entertain the Guantanamo

prisoners’ claims—that the federal courts could not intervene

even if prisoners there were being executed or tortured. The

government’s position is based on the proposition that only

Cuba, not the United States, has sovereignty over the base.

But under the governing agreements with Cuba—which afford

the United States “complete jurisdiction and control” over the

base in perpetuity—the United States exercises, at a minimum,

some sovereign powers over the base. Military officials have

long regarded the lease, executed in 1903, as providing that

Cuban sovereignty is interrupted while the lease remains in

force; Cuba has only residual sovereignty. In the meantime,

the United States acts as the “pro tanto sovereign” of the base,

as the State Department’s Office of the Solicitor concluded in

1912. Scholars have agreed that the United States exercises at

least some sovereign powers at Guantanamo.

Applying the rule of law to the Guantanamo prisoners is

especially important to the members of the United States

Armed Forces. American troops are dispatched regularly on

a wide variety of missions around the globe. If any of them

are captured, our government will undoubtedly insist that they

be treated in accordance with the principles of the Geneva

Conventions. But if the United States refuses to apply the

competent tribunal requirement in the Geneva Conventions to

the prisoners being held at Guantanamo, it increases the

likelihood that foreign authorities holding American captives

will decide to ignore the Geneva Conventions entirely

—thereby putting the lives of American prisoners at risk.

4

ARGUMENT

I. The United States Has Played A Leading Role In

Developing International Standards To Safeguard The

Rights Of Captured Prisoners.

The United States has long “been a leader in the

development of th[e] trend * * * of bettering the humanitarian

principles invoked in the treatment of prisoners of war.” Gen.

J.V. Dillon, The Genesis of the 1949 Convention Relative to

the Treatment of Prisoners of War, 5 MIAMI L.Q. 40, 41

(1950). A 1785 treaty between the United States and Prussia

“probably constituted the first international attempt to provide

in time of peace for the protection of prisoners of war.”

Howard S. Levie, PRISONERS OF WAR IN INTERNATIONAL

ARMED CONFLICT 5-6 (1977). In 1863, Abraham Lincoln

commissioned Dr. Francis Lieber to draft a code of conduct

for the Union army in treating prisoners of war. Jd. at 7. The

Lieber Code, as it came to be known, “was perhaps the first

formal codification of rules governing the treatment to be

accorded prisoners of war,” Dillon, 5 MIAMI L.Q. at 42, and

it “had a significant influence on the attitude of nations and on

the subsequent Hague Conventions of 1899 and 1907,” ibid.,

which were “the first effective multilateral codification[s] of

the law of war,” Levie, PRISONERS OF WAR, at 8. After World

War I, the United States and Germany entered into an

agreement concerning the treatment of prisoners of war.

Dillon, 5 MIAMI L.Q. at 42. The subsequent 1929 Geneva

Convention Relative to the Treatment of Prisoners of War,

signed by the United States and more than 40 other nations,

bore “a striking resemblance to the United States-German

agreement.” Jd. at 43.

The Geneva Convention of 1929 played a significant role

during World War II. Scholars have concluded that “‘the fact

that millions of prisoners of war from all camps,

notwithstanding the holocaust, did return, is due exclusively

5

to the observance of the Geneva Prisoners of War

Convention.’” Levie, PRISONERS OF WAR, at 10 n.44. “The

American Red Cross attributed the fact of the survival of 99

percent of the American prisoners of war held by Germany

during World War II to compliance with the 1929

Convention.” /bid.

_ But the treatment of prisoners of war during World War II

also indicated that the Geneva Convention of 1929 required

substantial revision to broaden and clarify the circumstances

under which its protections would apply. /d. at 10-11. Some

countries had argued that the 1929 Convention did not apply

to protect prisoners when the invading country had not

formally declared war; Germany had claimed that the 1929

Convention did not apply to Polish prisoners because the

Polish government ceased to exist; and Germany had

contended as well that the 1929 Convention did not apply to

French prisoners because France ceased to be a belligerent

after signing an armistice with Germany. /d. at 11-12.

Following World War II, an American general suggested

to the President of the International Committee of the Red

Cross (“ICRC”) that “a meeting of experts on prisoner of war

affairs of the various belligerent nations be called with the

view of recording for future reference, their experiences under

the Convention of 1929.” Dillon, 5 MIAMI L.Q. at 43. The

ICRC agreed, and sent invitations “to all of the belligerents of

World War II.” Jbid. The United States went on to play “a

major role both in the prepatory steps and in the conference

proceedings.” Geneva Conventions for the Protection of War

Victims: Hearing Before ihe Senate Committee on Foreign

Relations, 84th Cong., 1st Sess., at 3-4 (1955) (“Senate

Hearing”) (statement of Robert Murphy, Deputy Under

Secretary of State). A series of meetings involving the United

States and other nations resulted in the four Geneva

Conventions of 1949, including the Geneva Convention

6

Relative to the Treatment of Prisoners of War. Dillon, 5

MIAMI L.Q. at 43.

The Senate debate on ratification of the 1949 Conventions

suggests that two basic principles animated the Senate’s

eventual decision to ratify. First, there was a belief that it was

critical for the United States to lend its moral authority to the

Conventions and to provide a model for other nations to

follow in treating prisoners of war. In urging Senate approval,

Secretary of State John Foster Dulles stated that American

“participation is needed to enlist the authority of the United

States in the[] interpretation and enforcement” of the

Conventions. Senate Hearing at 61. Secretary Dulles went on

to express the view that “United States ratification of the

Geneva Conventions, by lending further support to their

standards, should influence favorably future behavior toward

prisoners of war.” /d. at 68.

Second, by treating prisoners of war in accordance with

the 1949 Conventions, the United States believed that it would

encourage its enemies to reciprocate in their treatment of

American prisoners of war. Deputy Under Secretary of State

Murphy informed the Senate Committee on Foreign Relations

that although neither North Korea nor the United States had

ratified the 1949 Conventions at the time of the Korean War,

“the moral acceptance of the conventions as a general norm

did have some effect on” North Korea’s treatment of

American prisoners of war during the war. /d. at 5. Looking

to the potential for future conflicts, Secretary Dulles explained

that American “participation is needed to * * * enable us to

invoke them for the protection of our nationals.” /d. at 61.

Similarly, Senator Mike Mansfield stated that “it is to the

interest of the United States that the principles of these

conventions be accepted universally by all nations.” 101

Cong. Rec. 9960 (July 6, 1955). Senator Mansfield explained

that American “standards are already high. The conventions

point the way to other governments. Without any real cost to

ee eee eee

7

us, acceptance of the standards provided for prisoners of war,

Civilians, and wounded and sick will insure improvement of

the condition of our own people as compared with what had

been their previous treatment.” /bid. Senator Alexander Smith

concurred: “I cannot emphasize too strongly that the one

nation which stands to benefit the most from these four

conventions is our own United States. * * * To the extent that

we can obtain a worldwide acceptance of the high standards in

the conventions, to that extent will we have assured our own

people of greater protection and more civilized treatment.”

Id. at 9962.

Il. The Geneva Conventions And U.S. Military

Regulations Implementing The Conventions Require

That A Competent Tribunal Determine The Status Of

Captured Prisoners.

The second paragraph of Article 5 of the Third Geneva

Convention of 1949 provides:

Should any doubt arise as to whether persons, having

committed a belligerent act and having fallen into the

hands of the enemy, belong to any of the categories

enumerated in Article 4 [defining POWs], 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.

The same requirement has been adopted in American

military regulations:

All persons taken into custody by U.S. forces will be

provided with the protections of the GPW [1949

Geneva Convention on Prisoners of War] until some

other legal status is determined by competent

authority.

United States Dep't of Army, Regulation 190-8, “Enemy

Prisoners of War, Retained Personnel, Civilian Internees and

Other Detainees,” § 1-5(a)(2) (Oct. 1, 1997).? The regulation

further provides (id. § 1-6):

(a) Inaccordance 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 US

Armed Forces, belongs to any of the categories

enumerated under Article 4, GPW, such persons shall

enjoy the protection of the present Convention until

such time as their status has been determined by a

competent tribunal.

(b) Acompetent 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.

The United States “has in the past interpreted [Article 5]

as requiring an individual assessment of status before

privileges can be denied. Any individual who claims POW

status is entitled to an adjudication of that status.” Jennifer

Elsea, Treatment of “Battlefield Detainees” in the War on

Terrorism, CRS REPORT FOR CONGRESS 29 (Apr. 11, 2002).

See also Gabor Rona, Interesting Times for International

Humanitarian Law: Challenges from the “War on Terror,” 27

FLETCHER F. WorRLD AFF. 55, 65 (Fall 2003) (Article 5

requires “individualized determinations”); Constitution

Project, RECOMMENDATIONS FOR THE USE OF MILITARY

? Regulations for the other branches of the military contain the

same provisions discussed in the text. See OPNAVINST 3461.6

(Navy); AFJI 31-304 (Air Force); MCO 3461.1 (Marine Corps).

9

COMMISSIONS 3 (Sept. 18, 2002) (“all captives asserting POW

status should be granted the individualized determinations

envisaged by Army regulations”).

Moreover, it is Department of Defense policy to comply

with the Laws of War, including the Geneva Conventions, “in

the conduct of military operations and related activities in

armed conflict, however such conflicts are characterized.”

Judge Advocate General’s School, OPERATIONAL LAW

HANDBOOK 10 (O’Brien, ed. 2003) (emphasis added); see also

Department of Defense Directive No. 5100.77, 45.3.1 (Dec.

9, 1998). Thus, the military instructs its Judge Advocates that

they “should 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.” OPERATIONAL

LAW HANDBOOK at 22. See also U.S. Marine Corps, The

Basic School Training Command, LAW OF WAR/CODE OF

ConDUCT 10 (Dec. 2002) (instructing Marine Corps cadets

that “[e]veryone who is captured or detained during a conflict

should therefore be treated as the Geneva POW Convention

requires until the proper tribunal can judge his or her case”).

Ill. The Judicial Branch Has A Duty To Act As A Check

On The Executive Branch, Even In Wartime.

In times of war, this Court has deferred to a considerable

extent—and properly so—to the military and to the Executive

Branch. But this case poses an issue that this Court has never

decided: whether American courts have jurisdiction to

consider the claims of foreigners captured by American

forces, who are imprisoned indefinitely, without charges,

based simply on the government’s say-so, and who have been

denied access to any court or “competent tribunal” to

The D.C. Circuit’s answer was that the courts have no

role; the Executive Branch’s indefinite umprisonment of

10

petitioners cannot be challenged in any court or tribunal. But

complete judicial deference on this point is at odds with the

specific military regulations already discussed. It is

irreconcilable, too, with the limited government that the

Founding Fathers adopted.

The Constitution was designed to “guard[] the foundations

of civil liberty against the abuses of unlimited power.” Ex

parte Milligan, 71 U.S. 2, 126 (1866). The Constitution must

impose some limits on the authority of government officials to

pronounce that detainees may be held indefinitely, without

being charged and without any sort of hearing or judicial

process. “Such a practice, once established with the best of

intentions, will drift into oppression * * * in this country as

surely as it has elsewhere.” Shaughnessy v. United States ex

rel. Mezei, 345 U.S. 206, 226 (1953) (Jackson, J.,

dissenting). “[D]ifferences in the process of administration

make all the difference between a reign of terror and one of

law.” Ibid. Thus, although the courts “must accord great

respect and consideration to the judgments of the military

authorities,” it is “essential that there be definite limits to

military discretion.” Korematsu v. United States, 323 U.S.

214, 233-234 (1944) (Murphy, J., dissenting). See also

Shaughnessy, 345 U.S. at 218 (Black, J., dissenting) (no

“governmental official, whatever his title, can put or keep

people in prison without accountability to courts of justice”).

To be sure, this is a perilous time, as the President has

any type of hearing or judicial review. Indeed, during

previous wars, the United States has conducted Article 5

hearings to determine whether captured persons should be

accorded POW status under the Geneva Conventions.

Department of Defense, FINAL REPORT TO CONGRESS:

CONDUCT OF THE PERSIAN GULF WAR 578 (1992) (1,196

Article 5 hearings were conducted during the 1991 Gulf War;

886 persons were found to be civilians); Contemporary

11

Practice of the United States Relating to International Law, 62

AM. J. INT’L. L. 754, 768-775 (1968) (hearings during the

Vietnam war). And as of May 2003, the military had held “50

to 100” Article 5 hearings to determine the status of detainees

in the 2003 Iraq War. Department of Defense, Briefing on

Enemy Prisoner of War Status Categories, Releases and

Paroles (May 9, 2003); see also Department of Defense News

Briefing (Apr. 7, 2003) (the United States treated all detainees

during the 2003 Iraq War as prisoners of war before holding

Article 5 tribunals).

Nor do the September 11 attacks and the ensuing war on

terrorism mean that courts may abdicate their vital role in our

constitutional system of chec!> and balances. As Benjamin

Franklin cautioned long ago, “[t]hose who would give up

essential liberty to purchase a little temporary safety, deserve

neither liberty nor safety.” Benjamin Franklin, AN

HISTORICAL REVIEW OF THE CONSTITUTION AND GOVERNMENT

OF PENNSYLVANIA, title page (1759) (Arno Press reprint

1972). This Court has made clear that “the duty * * * rests on

the courts, in time of war as well as in time of peace, to

preserve unimpaired the constitutional safeguards of civil

liberty.” Ex parte Quirin, 317 U.S. 1, 19 (1942) (emphasis

added). “The concept that the Bill of Rights and other

constitutional protections against arbitrary government are

inoperative when they become inconvenient or when

expediency dictates otherwise is a very dangerous doctrine and

if allowed to flourish would destroy the benefit of a written

Constitution and undermine the basis of our government.”

Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion). In

fact, this Court heard and decided Quirin in the summer of

1942, only eight months after the Japanese attack on Pearl

Harbor, when the outcome of the Second World War was still

very much in doubt. See also Sterling v. Constantin, 287 U.S.

378, 401 (1932) (“What are the allowable limits of military

discretion, and whether or not they have been overstepped in

12

a particular case, are judicial questions” ); Milligan, 71 U.S.

at 121 (the “pernicious” idea that a Constitutional provision

“can be suspended during any of the great exigencies of

government * * * leads directly to anarchy or despotism”);

Brown v. United States, 12 U.S. (8 Cranch) 110, 153 (1814)

(Story, J., dissenting) (although the President in wartime “has

a discretion vested in him * * * he cannot lawfully transcend

the rules of warfare established among civilized nations. He

cannot lawfully exercise powers or authorize proceedings

which the civilized world repudiates and disclaims”). If courts

do not “abide by the Constitution” in wartime, “they cease to

be civil courts and become instruments of military policy.”

Korematsu, 323 U.S. at 247 (Jackson, J., dissenting).

Furthermore, “‘[e]xperience should teach us to be most on

our guard to protect liberty when the Government’s purposes

are beneficent. * * * The greatest dangers to liberty lurk in

insidious encroachment by men of zeal, well-meaning but

without understanding.’” Chandler v. Miller, 520 U.S. 305,

322 (1997) (quoting Olmstead v. United States, 277 U.S. 438,

479 (1928) (Brandeis, J., dissenting)). Even assuming that the

government now is acting out of the best of intentions, this

Court has cautioned that “[t}his nation * * * has no right to

expect that it will always have wise and humane rulers * * *.

Wicked men, ambitious of power, with hatred of liberty and

contempt of law, may fill the place once occupied by

Washington and Lincoln.” Milligan, 71 U.S. at 125. If that

ever happens, the “dangers to human liberty” from total

judicial deference to the Executive Branch “are frightful to

contemplate.” Jbid. A successful conclusion to the war on

terror “will have been in vain” if “we discover that in the

process we have destroyed the very freedoms for which we

fought.” Estep v. United States, 327 U.S. 114, 132 (1946)

(Murphy, J., concurring).

13

IV. Under The Unique 1903 Lease With Cuba, The United

States Exercises At Least Some Sovereign Powers Over

The Guantanamo Base.

The government argues that the foregoing principles do

not apply to the Guantanamo prisoners—that federal courts

have no jurisdiction at all even to consider any claims

concerning the detainees’ indefinite imprisonment—because

the “jurisdictional rule” supposedly established by Johnson v.

Eisentrager, 339 U.S. 763 (1950), “is based on sovereignty ,”

and “the Guantanamo detainees are being held outside the

sovereign territory of the United States.” Br. Opp. 15. The

government’s argument that the United States exercises no

sovereign powers over Guantanamo rests on Article III of the

February 1903 lease agreement between the United States and

Cuba, which provides as follows:

While on the one hand the United States recognizes

the continuance of the ultimate sovereignty of the

Republic of Cuba over the above described areas of

land and water, on the other hand the Republic of

Cuba consents that during the period of occupation by

the United States of said areas under the terms of this

agreement the United States shall exercise complete

jurisdiction and control over and within said areas with

the right to acquire (under conditions to be hereafter

agreed upon by the two Governments) for the public

of the United States any land or other

property therein by purchase or by the exercise of

eminent domain with full compensation to the owners

thereof.

T.S. No. 418, Art. III, 6 Charles I. Bevans, TREATIES AND

OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES

OF AMERICA 1776-1949, at 1113, 1114 (State Dep’t 1971).

Because the lease reserves to Cuba “‘ultimate sovereignty’

over the naval base” (Br. Opp. 16), the government asserts,

14

the United States exercises no sovereign powers at the base

and, under Eisentrager, the people imprisoned at Guantanamo

are beyond the reach of any court, including this Court—even

though the United States has had “complete jurisdiction and

control,” T.S. No. 418, Art. III, over the base for more than

a century. Indeed, the government apparently has

acknowledged “that its position would be the same even if the

claims were that it was engaging in acts of torture or that it

was summarily executing the detainees.” Gherebi v. Bush,

2003 WL 22971053, at *13 (9th Cir. Dec. 18, 2003).

We agree with petitioners (Rasul Pet. 19-20) that the

government incorrectly focuses on the technical issue of

“sovereignty,” and that Eisentrager authorizes habeas relief

where the United States enjoys “territorial jurisdiction,”

Eisentrager, 339 U.S. at 768, 771, 778, 781, as the United

States indisputably does at Guantanamo under the express

terms of Article III of the 1903 lease. But the government’s

position is flawed for reasons that go beyond that.

1. The Guantanamo lease is unique. For one thing, the

lease is perpetual—the United States can keep the base as long

as it likes. The original lease, for “coaling or naval stations,”

was not subject to any time limitation, T.S. No. 418, and a

1934 treaty with Cuba confirms that the United States may

retain the base forever if it wishes: it provides that the lease

remains in force “[s]o long as the United States of America

shall not abandon the said naval station of Guantanamo or the

two Governments shall not agree to a modification of its

present limits.” T.S. No. 866, Art. III, 6 Bevans at 1161,

1162.

To our knowlege, Guantanamo is the only military base

located in another country that the United States is legally

entitled to keep in perpetuity. Every other American base

overseas is leased for a specific term, and when that term

expires, either the base must be closed or the agreement

\

}

’

15

renegotiated—a process in which the host countries may seek

a variety of diplomatic, political and economic concessions in

exchange for continued American use of the base. See Robert

E. Harkavy, GREAT POWER COMPETITION FOR OVERSEAS

BASES 3, 5, 206-209 (1982). That type of “bargained

diplomatic exchange” (id. at 5) is entirely absent with

Guantanamo—the United States may stay at Guantanamo as

long as it desires. Cuba has no say in the matter whatsoever.

The Castro government has long objected to the base, but the

United States has remained.

2. In addition, the government’s current interpretation of

Article III of the 1903 lease—and of the “ultimate

sovereignty” provision in particular—is fundamentally at odds

with the interpretation that has long held sway among those

within the U.S. military charged with responsibility for

Guantanamo and for the negotiation and administration of

other base leases. -

The most striking evidence of this is found in a history of

the Guantanamo Naval Station written in 1953—long before

this dispute arose—by Rear Admiral Marion E. Murphy, the

Commander at Guantanamo at the time. Marion E. Murphy,

THE HISTORY OF GUANTANAMO Bay (1953). Rear Admiral

Murphy’s history was published by the Navy and is posted to

this day on the official U.S. Navy web site (www.nsgtmo.

navy.mil/history.htm), which describes the history as a

“monumental work,” although it adds a disclaimer that the

history is not “presented as ‘official documentation’ * * * by

the United States Government or its agencies.”

Admiral Murphy’s understanding of the lease’s “ultimate

sovereignty” provision could not have been clearer:

“Ultimate,” meaning final or eventual, is a key word

here. Jt is interpreted that Cuban sovereignty is

interrupted during the period of our occupancy, since

we exercise complete jurisdiction and control, but in

16

Case occupation were terminated, the area would revert

to the ultimate sovereignty of Cuba.

HISTORY OF GUANTANAMO Bay at 6 (emphasis added). Thus,

Rear Admiral Murphy explained,

it is clear that at Guantanamo Bay we have a Naval

reservation which, for all practical purposes, is

American territory. Under the foregoing agreements,

the United States has for approximately fifty years

exercised the essential elements of sovereignty over

this territory, without actually owning it.

Id. at 7 (emphasis added). Moreover, “[u]nless we abandon

the area or agree to a modification of the terms of our

occupancy, we can continue in the present status as long as we

like.” Id. at 7-8.

The same practical understanding of the lease is reflected

in an analysis published in 1961 by Rear Admiral Robert D.

Powers, Jr., then Deputy and Assistant Judge Advocate

General of the Navy. Caribbean Leased Bases Jurisdiction, 15

JAG J. 161 (Oct.-Nov. 1961).* Rear Admiral Powers began

by observing that in marked contrast to other American

military bases, which “have been leased for a finite term with

fixed provisions as to use and jurisdiction,” the “bases at

Guantanamo Bay in Cuba and the Canal Zone in Panama are

unique in their grants of jurisdiction and their indefinite terms

of occupancy.” Jd. at 161. Rear Admiral Powers went on to

explain:

> As a Navy lawyer, Rear Admiral Powers was directly involved

in negotiating and administering base leases, serving, for example,

as the legal adviser to the U.S. Negotiating Group in connection

with obtaining base rights through agreements with other countries.

15 JAG J. at 161 n.*.

17

IT MAY BE said that the words used regarding

sovereignty in the two treaties [concerning

Guantanamo and the Panama Canal Zone] grant to the

United States the complete right in each case to act as

the sovereign, with titular or residual sovereignty in

the grantor nation. * * * [f merely ultimate sovereignty

is recognized by both parties as remaining in Cuba,

then the exercise of present or actual sovereignty must

be vested in the United States.

Id. at 163 (emphasis added). While acknowledging “that all

the rights of sovereignty” might “not pass” to the United

States given the lease’s recognition of Cuba’s “ultimate

sovereignty,” ibid., Rear Admiral Powers recognized that

Cuba retained “at most a ‘titular’ sovereignty,” id. at 166, a

concept that William Howard Taft, as Secretary of War,

characterized as “‘a barren ideality,’” id. at 164. Like the

original Panama Canal treaty, the Guantanamo lease provided

the United States with a “complete grant of jurisdiction and

control, with only a possibility of reversionary or residual

jurisdiction in the grantor.” Jd. at 163. The United States thus

is “entitled to treat the territory as subject to such laws and

administration as-it may make applicable.” Jd. at 166.*

3. The conclusion that the United States exercises at least

some sovereign powers at Guantanamo is found as well in a

54-page Memorandum prepared in 1912 by the State

Department’s Office of the Solicitor in connection with

negotiations then ongoing between the United States and Cuba

* Similarly, the majority in Gherebi concluded that as long as the

United States retains the Guantanamo base, it “possesses and

exercises all of the attributes of sovereignty, while Cuba retains

only a residual or reversionary sovereignty interest.” 2003 WL

22971053, at *7. Both the majority and dissent recognized that

sovereignty can be shared or partial. /d. at *9 n.17, *20 n.4.

18

to extend the boundaries of the Guantanamo base. After

reviewing the negotiating history leading up to the 1903 lease,

as well as the provision in the lease affording the United States

the power of eminent domain, the Solicitor concluded: “[i]t

would thus appear that this Government, upon the approval of

this Agreement [the 1903 lease] by Cuba, might well have

gone into possession immediately and, as pro tanto sovereign,

have appropriated under the right of eminent domain the

private land found within the leased areas.” May 7, 1912

Memorandum, at 4 (emphasis added), National Archives,

Record Group 59, document no. 811.34537/95. In short, “the

Cuban Government is furnishing to this Government the naval

reservation and is giving to this Government the quasi-

sovereign rights granted without any compensation other than

the payment of this nominal rent.” Jd. at 10 (emphasis added).

4. Scholars likewise have concluded that the terms of the

1903 lease provide the United States with some type of

sovereignty over Guantanamo. Some have concluded that the

United States has “territorial sovereignty” over Guantanamo

as a result of the lease. See William W. Bishop, Jr.,

INTERNATIONAL LAW: CASES AND MATERIALS 300 (1953)

(noting that “[a]t times one state has acquired by lease rights

corresponding more or less closely to territorial sovereignty

over parts of the territory of another state,” and citing the

Guantanamo lease as an example); Robert L. Montague, III,

A Brief Study of Some of the International Legal and Political

Aspects of the Guantanamo Bay Problem, 50 Ky. L.J. 459,

488 (1962) (“the rights conferred upon the United States under

this lease amount to ‘territorial sovereignty’”).

Other scholars agree with Rear Admiral Murphy’s view

that Cuba’s “ultimate” sovereignty over the base means

“eventual” sovereignty, i.e., reversionary sovereignty that

will become effective only if the United States decides to

relinquish the base. See Martin J. Scheina, The U.S. Presence

in Guantanamo, 4 STRATEGIC REVIEW 81, 82 (Spring 1976)

19

(the lease “recognized Cuba’s continuance of ultimate (final or

eventual) sovereignty”); Joseph Lazar, International Legal

Status of Guantanamo Bay, 62 AM. J. INT’L L. 730, 735, 740

(1968) (Article III of the 1903 lease “is an express recognition

by the parties that Cuban sovereignty over the leased areas

rests suspended”; “Cuba has not yet been given the ‘ultimate

sovereignty’ over Guantanamo”); Mary Ellene Chenevey

McCoy, Guantanamo Bay: The United States Naval Base and

its Relationship with Cuba 51 (unpublished Ph.D. dissertation,

University of Akron, 1995) (on file at the University of

Michigan) (“[t]he word ‘ultimate’ was interpreted to mean that

Cuban sovereignty was interrupted during the U.S.

occupancy”).

5. Cuban authorities, too, have recognized implicitly that

Cuba does not exercise complete sovereignty over the base as

a result of the lease. The Cuban Supreme Court held 70 years

ago that “the territory of that Naval Station is for all legal

effects regarded as foreign.” In re Guzman and Latamble,

Annual Digest & Reports of Pub. Int’] Law Cases, 1933-34,

Case No. 43, at 112, 113 (emphasis added). Just six weeks

after signing the lease, Cuban President Tomas Estrada Palma

told the Cuban Senate that the base had been “cede[d]” to the

United States. PAPERS RELATING TO THE FOREIGN RELATIONS

OF THE UNITED STATES (“FOREIGN RELATIONS”), 1903, at

357. In 1912, the United States and Cuba signed an agreement

to expand the base that characterized the 1903 lease as a

“cession in lease” by which the base was “ceded in lease” to

the United States. FOREIGN RELATIONS, 1912, at 295, 297.

(The agreement never went into effect because the Cuban

Senate failed to ratify it. Scheina, 4 STRATEGIC REVIEW at 82.)

And a book published “under the auspices” of the Cuban

government stated that the base had been “formally ceded” to

20

the United States. 5 Willis Fletcher Johnson, THE HISTORY OF

CuBA, page following cover page, 89 (1920).°

6. As the long history of Guantanamo demonstrates, Cuba

does not presently have—and has not had for the past

century—sovereignty in any meaningful sense over the

American base at Guantanamo. “‘Sovereignty’ is a term used

in many senses and is much abused,” but in general “it

implies a state’s lawful control over its territory generally to

the exclusion of other states, authority to govern in that

territory, and authority to apply law there.” RESTATEMENT

(THIRD) OF FOREIGN RELATIONS OF THE UNITED STATES § 206

comment b (1987). Or as this Court has recognized, “[a] basic

attribute of full territorial sovereignty is the power to enforce

laws against all who come within the sovereign’s territory,

whether citizens or aliens.” Duro v. Reina, 495 U.S. 676, 685

(1990). Cuba has no such power—indeed, it has no power

whatever—over Guantanamo. See also United States v. Rice,

17 U.S. 246, 254 (1819) (Story, J.) (during the British

occupation of Castine, Maine in 1814 and 1815, “[t]he

sovereignty of the United States over the territory was, of

course, suspended, and the laws of the United States could no

longer be rightfully enforced there”).

Rather, it is the United States that acts as sovereign at

Guantanamo, for it is United States law that applies there.

And it is the United States—and the United States alone—that

has the power to enforce its law at Guantanamo over all who

set foot within the naval station, including citizens of Cuba.

When the United States and Cuba negotiated detailed terms to

implement the February 1903 lease, Cuba proposed excluding

* A “cession” is the “act of relinquishing property rights”—the

“relinquishment or transfer of land from one state to another, esp.

when a state defeated in war gives up the land as part of the price

of peace.” BLACK’S LAW DICTIONARY 221 (7th ed. 1999).

21

Cuban citizens from the application of U.S. law: “Cuban

citizens who may have committed any crime or misdemeanor

within the boundaries of said statio[n] shall be delivered to the

Cuban authorities, for trial under the laws and by the tribunals

of Cuba.” Art. V, draft of proposed Cuban lease terms

transmitted by Herbert Squiers, U.S. minister in Havana, to

Secretary of State John Hay, Despatch No. 549, June 6, 1903,

7 Despatches from the United States Ministers to Cuba, 1902-

1906, National Archives. But the United States rejected that

proposal, June 20, 1903 telegram, Minister Squiers to

Secretary Hay, id., Despatch No. 572, and the proposed

exclusion was dropped from the final agreement of specific

lease terms signed by the United States and Cuba in July 1903.

Instead , that document provided that ail “fugitives from justice

charged with crimes or misdemeanors amenable to United

States law, committed within [the naval station], taking refuge

in Cuban territory, shall on demand, be delivered up to duly

authorized United States authorities.” T.S. No. 426, Art. IV,

6 Bevans at 1121.

* * *

Less than three months after the United States and Cuba

signed the Guantanamo lease, President Theodore Roosevelt

wrote Secretary of State Hay that “we regard the [Cuban]

coaling stations as ours.” Theodore Roosevelt to John Hay,

May 12, 1903, Theodore Roosevelt Papers, Library of

Congress, Manuscript Division, microfilm reel 416. The

United States has treated Guantanamo “as ours” ever

since—and it is perfectly entitled to continue to “exercise

complete jurisdiction and control” (T.S. No. 418, Art. Ill, 6

Bevans at 1114) over the base as long as it likes. Under these

unique circumstances, the government’s contention that this

Court lacks jurisdiction because Cuba is sovereign at

Guantanamo, and the United States exercises no sovereign

powers there, should be rejected.

22

V. Failure To Provide Any Judicial Review Of The

Government’s Actions Could Have Grave Consequences

For U.S. Military Forces Captured In Future Conflicts.

It is especially important to the members of America’s

armed forces that American courts have jurisdiction to

determine whether the treatment of the Guantanamo prisoners

“competent tribunal” guarantee of the Geneva Conventions.

American failure to provide foreign prisoners with the

protections of the Geneva Conventions may well provide

foreign authorities, in current or future conflicts, with an

excuse not to comply with the Geneva Conventions with

respect to captured American military forces.

This Court has observed that “[t]he United States

frequently employs Armed Forces outside this country—over

200 times in our history—for the protection of American

citizens or national security.” United States v. Verdugo-

Urquidez, 494 U.S. 259, 273 (1990). See also Max Boot, THE

SAVAGE WARS OF PEACE xiv (2002) (“Between 1800 and

1934, U.S. Marines staged 180 landings abroad”). In recent

decades, American armed forces have been engaged

somewhere abroad nearly every year. The historic pattern

shows no sign of abating; “America’s strategic situation today

presents more opportunities than ever before for * * *

entanglements” in “small wars.” Jd. at xix-xx.

It is, unfortunately , inevitable that some American military

personnel involved in future conflicts will be captured or taken

prisoner. When that happens, the United States government

and the families and friends of the detained service men and

women will share a strong interest: ensuring that American

personnel are treated humanely and fairly.

In past conflicts the United States has insisted that

American soldiers held by the enemy be accorded the basic

protections of the Geneva Conventions. See, e.g., Maj. Gen.

23

George S. Prugh, VIETNAM STUDIES, LAW AT WAR: VIETNAM

1964-1973, at 63 (Dep't of the Army 1975); 64 DEP’T OF

STATE BULL. 10 (Jan. 4, 1971) (White House statement

announcing President Nixon's call for application of the 1949

Geneva Conventions to ease “the plight of American prisoners

of war in North Viet-Nam and elsewhere in Southeast Asia”).

The United States has also demanded application of the

principles codified in the Geneva Conventions to captured

U.S. service personnel, even when they were taken prisoner

under circumstances when the Conventions, technically, did

not apply. For example, following the capture of U.S.

Warrant Officer Michael Durant by forces under the control

of Somali warlord Mohamed Farah Aideed in 1993, the

United States demanded assurances that Durant’s treatment

would be consistent with the broad protections afforded under

the Conventions, even though, “[u)nder a strict interpretation

of the Third Geneva Convention’s applicability, Durant’s

captors would not be bound to follow the convention because

they were not a ‘state.’” Neil McDonald & Scott Sullivan,

Rational Interpretation in Irrational Times: The Third Geneva

Convention and the “War On Terror,” 44 HARV. INT'L. L. J.

301, 310 (Winter 2003).°

Invoking international human rights standards, the United

States also has condemned foreign governments that have held

detainees incommunicado, depriving them of the ability to

seek judicial review of their confinements. The United States,

for example, objected recently when the Liberian government

® American invocation of the Geneva Conventions evidently had its

desired effect. “Following these declarations by the United States,

heavy-handed interrogations of Durant appeared to cease, the Red

Cross was allowed to visit him and observe his treatment, and he

was subsequently released by Aideed as a ‘gesture of goodwill.’” 44

HARV. INT'L L.J. at 310.

24

arrested journalist Hassan Bility and held him incommunicado

on the purported ground that he was an “illegal combatant”

involved in terrorist activity. AFRICA News, Jan. 3, 2003

(available on Nexis). In a statement issued by our Ambassador

in Monrovia, “[t}he United States call[ed] on the Government

of Liberia to release those political and other prisoners,

including those such as Hassan Bility * * *, who are being

held without access to lawyers, the civil courts or independent

observers” in “violation of international standards of human

rights and legal protection, and contrary to Liberia’s basic

legal principles.” John W. Blaney, Nov. 21, 2002 Press

Conference statement (available at http://usembassy state.

gov/monrovia/wwwh112102.html). The Ambassador

explained that “our reasons” for seeking the release of

Bility—who had “been held in prison for many months

without ever having been charged with any crime” —did “not

revolve around whether we thought Mr. Bility was or was not

guilty of any crime. That is not the point. An honest and

competent civil court should have judged that question, not

any individual or official.” John W. Blaney, Jan. 2, 2003

Statement (available at http://usembassy .state.gov/monrovia/

wwwhsp0 10203 html).

Yet even as American officials condemn other nations for

detaining people indefinitely without access to a court or

tribunal, authoritarian regimes elsewhere are pointing to U.S.

treatment of the Guantanamo prisoners as justification for such

actions. Eritrea’s Ambassador to the United States defended

his own government’s roundup of journalists by claiming that

their detention without charge was consistent with the United

States’ detention of material witnesses and aliens suspected by

the United States of terrorist activities. Fred Hiatt, Truth-

Tellers in a Time of Terror, WASH. POST, Nov. 25, 2002, at

A15. See also Shehu Sani, U.S. Actions Send a Bad Signal to

Africa: Inspiring Intolerance, INT’L HERALD TRIB., Sept. 15,

2003, at 6 (“indefinite detention in Guantanamo Bay * * *

25

helps justify Egypt’s move to detain human rights campaigners

as threats to national security, and does the same for similar

measures by the governments of Ivory Coast, Cameroon and

Burkina Faso”).

If American detention of the Guantanamo prisoners

SE EE

or tribunal—is regarded as precedent for similar actions by

countries with which we are at peace, it is obvious that it may

be similarly regarded by enemies who capture American

soldiers in an existing or future conflict. As a result, the lives

of captured American military forces may well be endangered

by the United States’ failure to grant foreign prisoners in its

custody the same rights that the United States insists be

accorded to American prisoners held by foreigners.

The importance of reciprocal treatment of a country’s own

citizens or soldiers and those of an enemy has an ancient

pedigree. Nearly 800 years ago, the Magna Carta provided

that foreign merchants from countries at war with England

“shall be attached without harm of body or goods,

until it be known unto us, or our chief justice, how our

merchants be entreated who are then found in the land

making war against us; and if our merchants be well

intreated there, theirs shall be likewise with us.”

Eisentrager, 339 U.S. at 783 n.11 (quoting Magna Carta,

chapter 30, in 3 THE COMPLETE STATUTES OF ENGLAND 27

(Halsbury’s Laws of England 1929)).

During the Civil War, President Lincoln ordered that if the

South “relapse[d] into barbarism” by murdering or enslaving

free black soldiers captured in battle, the Union would

“retaliat{e] upon the enemy’s prisoners in our possession” :

[Flor every soldier of the United States killed in

violation of the laws of war, a rebel soldier shall be

executed; and for every one enslaved by the enemy or

26

sold into slavery, a rebel soldier shall be placed at hard

labor on the public works and continued at such labor

until the other shall be released and receive the

treatment due to a prisoner of war.

Order of Retaliation, July 30, 1863, in 6 COLLECTED WORKS

OF ABRAHAM LINCOLN 357 (Roy P. Basler ed., 1953).

Reciprocity has been especially significant in the context

of the Geneva Conventions of 1949. As noted earlier, the

Eisenhower administration, when urging Senate ratification of

the Conventions, stressed that American accession to the

Conventions would redound to the benefit of captured

American soldiers. Senators recognized the same thing. See

pp. 6-7, supra. In Vietnam, the American decision to apply

the Geneva Conventions’ principles to captured enemy

soldiers was driven in part by the desire to obtain “reciprocal

benefits for American captives.” Prugh, VIETNAM STUDIES at

62-63. And American insistence that the enemy apply the

Geneva Conventions to American POWs in Vietnam saved

American lives:

[A]pplying the benefits of the Convention to those

combat captives held in South Vietnam did enhance the

opportunity for survival of U.S. service members held

by the Viet Cong and North Vietnamese. While the

enemy never officially acknowledged the applicability

of the Geneva Convention, and trec.ment of American

POWs continued to be brutal, more U.S. troops were

surviving capture. Gone were the days when an

American advisor was beheaded, and his head

displayed on a pole by the Viet Cong. On the contrary,

the humane treatment afforded Viet Cong and North

Vietnamese Army prisoners exerted constant pressure

on the enemy to reciprocate, and the American POWs

who came home in 1973 survived, at least in part,

because of [that].

‘an

27

Col. Fred L. Borch, Review of Honor Bound, 163 MIL. L.

REV. 150, 152 (2000).

In the current debate about the Guantanamo prisoners,

commentators have pointed out that “[t}he Geneva

Conventions operate on the principle of reciprocity,” Joan

Fitzpatrick, Sovereignty, Territoriality, and the Rule of Law,

25 HASTINGS INT’L & Comp. L. REV. 303, 317 (2002), and

that if the United States does not apply the Geneva

Conventions, it heightens the risk that captured Americans

will be denied the protection of the Conventions by foreigners.

See Manooher Mofidi & Amy E. Eckert, “Unlawful

Combatants” or “Prisoners of War”: The Law and Politics of

Labels, 36 CORNELL INT’L L.J. 59, 90 (2003) (“Interpolating

unrecognized exceptions into the contours of prisoner of war

status * * * undermines the Geneva Conventions as a whole,”

and could easily “boomerang to haunt U.S. or allied forces:

enemy forces that might detain U.S. or allied troops would

undoubtedly follow the U.S. lead and devise equally creative

reasons for denying prisoner of war status. By flaunting

international law at home, the United States risks

its own authority to demand implementation of international

law abroad”); Steven W. Becker, “Mirror, Mirror on the Wall

...” 2 Assessing the Aftermath of September 11th, 37 VAL. U.

L. REV. 563, 572 (2003) (American failure to grant POW

status under the Geneva Convention “is placing U.S. military

personnel abroad in danger, as we have troops in many parts

of the world, and it is reasonable to assume that at some time

some of them may be captured. If the same treatment is

applied to them, we would be hard put to argue otherwise”):

Harold Hongju Koh, The Case Against Military Commissions,

96 AM. J. INT’L L. 337, 340 (2002) (it “seriously disserves the

long-term interests of the United States—whose nonuniformed

intelligence and military personnel will conduct extensive

armed activities abroad in the months ahead—to assert that any

captive who can be labeled an ‘unlawful combatant’ should be

28

denied prisoner-of-war status under the Geneva

Conventions”).’ As one commentator has observed:

What if another country were to arrest U.S. citizens,

take them to a location over which that country had

control, but no technical sovereignty, and then argue

that the country’s own law did not apply in that

territory—so that our citizens would not have a right to

counsel, or even to know what the charges against

them might be? We would be distressed.

Anupam Chander, Guantanamo and the Rule of Law: Why We

Should Not Use Guantanamo Bay to Avoid the Constitution,

FindLaw’s Legal Commentary (http://writ.news.findlaw.com/

commentary/20020307_chander.html).

In 1950, the Eisentrager Court was concerned that

permitting German nationals to seek habeas relief—after

having received both a trial and post-conviction review by a

military reviewing authority (339 U.S. at 766)—would

“purchase no equivalent for benefit of our citizen soldiers.”

Id. at 779. The concern about equivalent benefit is different

today. In the last half-century, nearly every country on the

planet has adopted the 1949 Geneva Conventions, which,

among other things, guarantees access to a “competent

tribunal” when there is doubt about whether a detainee is a

prisoner of war. It is the United States, which has

incorporated the Geneva Conventions’ competent tribunal

’ The danger that captured Americans might be mistreated is

increased for those American forces overseas, some in Afghanistan

for example, who do not always wear military uniforms. See Mary

McGrory, Bungling on the 9-1] Prisoners, WASH. POST, Feb. 10,

2002, at B7; John Mintz & Mike Allen, Bush Shifts Position on

Detainees, WASH. POST, Feb. 8, 2002, at Al; Jess Bravin et al..,

Status of Guantanamo Bay Detainees is Focus of Bush Security

Team’s Meeting, WALL ST. J., Jan. 28, 2002, at A16.

29

guarantee into American military regulations, that is presently

deviating from international norms. Denying the Guantanamo

prisoners access to a competent tribunal increases the danger

that captured American forces will receive that “equivalent”

treatment.

Seventy-five years ago, Justice Brandeis eloquently

warned:

Our Government is the potent, the omnipresent

teacher. For good or for ill, it teaches the whole

people by its example. * * * If the Government

becomes a lawbreaker, it breeds contempt for law; it

invites every man to become a law unto himself; it

invites anarchy. To declare that * * * the end justifies

the means * * * would bring terrible retribution.

Against that pernicious doctrine this Court should

resolutely set its face.

Olmstead, 277 U.S. at 485 (Brandeis, J., dissenting). The

United States still serves as an example to the world. Our

concern is that, in this instance, the government is setting an

example that is not only fundamentally at odds with the rule of

law, but that puts American troops in peril.

* * *

The questions posed by these cases are momentous. This

Court has never held that foreigners captured abroad by the

United States may be held indefinitely—perhaps for the rest of

their lives—without bringing any charges against them and

without ever providing the prisoners with some sort of hearing

to determine their status. The importance of this question is

magnified because the Guantanamo detentions could last a

very long time indeed. The war on terror may go on for

decades, and we will not know, at the time, when it is finally

over. This war will not end with a surrender ceremony on the

deck of the Missouri.

30

The issues in these cases are especially significant to the

members of American military forces, who may be denied the

protections of the Geneva Conventions in the future by foreign

captors using American treatment of the Guantanamo

detainees as precedent. If there is a “new paradigm” of

warfare following September 11, as some contend, these cases

will determine the rules, or lack of rules, that apply to

captured prisoners in this new type of war—and potentially to

Americans taken captive.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

MIRNA ADJAMI JAMES C. SCHROEDER

Midwest Immigrant and Counsel of Record

Human Rights Center GARY A. ISAAC

208 South LaSalle Street | STEPHEN J. KANE

Chicago, IL 60603 JON M. JUENGER

(312) 660-1330 Mayer, Brown, Rowe &

Maw LLP

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

Counsel for Amici Curiae

JANUARY 2004