# Amicus Curiae Brief — Rasul v. Bush

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0703%3A29

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0703%3A29. Public record. Not legal advice.