Amicus Curiae Brief — Rasul v. Bush

rm ne ree eee

aes Ue

Nos. 03-334, CD) (w) MAR 3 ~ 200+

=—=_ —=—=—_ EE -~c

In The

Supreme Court of the Gnited States

Sd

SHAFIQ RASUL, et al.,

Petitioners,

Vv.

GEORGE W. BUSH

PRESIDENT OF THE UNITED STATES, et ai.,

Respondents.

+

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et ai.,

Petitioners,

Vv.

UNITED STATES OF AMERICA, et ai.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

S

BRIEF AMICUS CURIAE OF LAW PROFESSORS,

FORMER LEGAL ADVISERS OF THE

DEPARTMENT OF STATE AND AMBASSADORS,

RETIRED JUDGE ADVOCATES GENERAL AND

RETIRED MILITARY COMMANDERS, AND

OTHER INTERNATIONAL LAW SPECIALISTS

IN SUPPORT OF RESPONDENTS

S

DAVID B. RIVKIN, JR. RUTH WEDGWOOD

Counsel of Record CHARLES FRIED

LEE A. CASEY MAX KAMPELMAN

DARIN R. BARTRAM Counsel for Amici Curiae

BAKER & HOSTETLER LLP

1050 Connecticut Avenue, NW

Washington, D.C. 20036

(202) 861-1731

| BEST AVAILABLE COPY —

QUESTION PRESENTED

Whether the statutory writ of habeas corpus extends

to foreign enemy combatants captured abroad in the

course of United States military operations against al

Qaeda and the Taliban, who are interned, at Guantanamo

Bay Naval Base and other locations outside the United

States, as combatants during the ongoing conflict.

ii

LIST OF AMICI AND COUNSEL*

Kenneth Anderson is Professor of Law at the Washing-

ton College of Law, American University. He was General

Counsel of the Open Society Institute and the Soros

Foundations from 1994-1996, and Director of the Arms

Project, Human Rights Watch, from 1992-1994.

Carl A. Auerbach is the Distinguished Professor of Law

at the University of San Diego School of Law. He taught

for more than 30 years at the Universities of Wisconsin

and Minnesota. He is a member of the American Law

Institute and the American Academy of Arts and Sciences.

Stewart A. Baker is a partner and head of the Technol-

ogy Department of Steptoe & Johnson in Washington, D.C.

He was General Counsel of the National Security Agency

from 1992-1994.

Darin R. Bartram is a partner in the law firm of Baker &

Hostetler, LLP.

Marshall J. Breger is Professor of Law at the Columbus

School of Law, The Catholic University of America. He

served as Solicitor, Department of Labor, from 1992-1993.

During 1987-1989 he served as alternate delegate of the

U.S. to the U.N. Human Rights Commission in Geneva,

and from 1986-1990 served on the Secretary of State’s

Advisory Committee on International Law.

* Affiliations of amici and their counsel listed for identification

purposes only.

ili

LIST OF AMICI AND COUNSEL - Continued

Lee A. Casey is a partner in the firm of Baker &

Hostetler, LLP, and served in the Office of Legal Counsel

in the U.S. Department of Justice.

Robert A. Destro is Professor of Law at the Columbus

School of Law, The Catholic University of America and

served as Interim Dean from 1999-2001. From 1983 to

1989, he served as a commissioner on the U. S. Commis-

sion on Civil Rights.

John C. Eastman is Professor of Law at Chapman

University School of Law, specializing in Constitutional

Law and Legal History. He is also the Director of the

Center for Constitutional Jurisprudence, a public interest

law firm affiliated with the Claremont Institute for the

Study of Statesmanship and Political Philosophy.

Samuel Estreicher is Charles L. Denison Professor of

Law at New York University School of Law. He is co-

director of the Institute of Judicial Administration.

General Ron Fogleman, U.S. Air Force, Retired, is the

chairman and CEO of an international aviation consulting

firm. He is former Chief of Staff of the U.S. Air Force.

Charles Fried is the Beneficial Professor of Law at

Harvard Law School. He served as U.S. Solicitor General

from 1985-1989, and was an Associate Justice of the

Supreme Judicial Court of Massachusetts from 1995-1999.

Robert P. George is McCormick Professor of Jurispru-

dence and Director of the James Madison Program in

American Ideals and Institutions at Princeton University.

He served on the U.S. Commission on Civil Rights.

iv

LIST OF AMICI AND COUNSEL - Continued

Mary Ann Glendon is the Learned Hand Professor of

Law at Harvard Law School.

Gidon Gottlieb is the Leo Spitz Professor of Interna-

tional Law and Diplomacy Emeritus at the University of

Chicago School of Law, and Distinguished Visiting Fellow,

Hoover Institution, Stanford University.

Malvina Halberstam is Professor of Law at the Benja-

min N. Cardozo School of Law, Yeshiva University. She has

served as Counselor on International Law, U.S. Depart-

ment of State.

Admiral Bruce Harlow, U.S. Navy, Retired, served for

28 years in the Judge Advocate General Corps. He served

as Vice Chairman of the U.S. Delegation to the Third

United Nations Conference on the Law of the Sea, and is

presently a consultant to the U.S. Air Force on interna-

tional law, lecturing at the Air Force Special Operations

School on the law of war.

General Charles Horner, U.S. Air Force, Retired, is

former Commander-in-Chief, North American Aerospace

Defense Command, and U.S. Space Command. He also

commanded the United States Central Command Air

Forces. During Operation Desert Storm and Desert Shield,

he commanded all U.S. and allied air assets.

Mark Janis is the William F. Starr Professor of Law at

the University of Connecticut, and co-author of a casebook

on European Human Rights Law.

Ambassador Max M. Kampelman is Of Counsel at

Fried, Frank, Harris, Shriver & Jacobson. He was twice

named, by Presidents Carter and Reagan, to serve as

v

LIST OF AMICI AND COUNSEL - Continued

Ambassador and Head of the U.S. Delegation to the

Conference on Security and Cooperation in Europe (the

Helsinki process). He has chaired the United Nations

Association, Georgetown University’s Institute for the

Study of Diplomacy, Freedom House, and the American

Academy of Diplomacy. In 1989, he was awarded the

Presidential Citizens Medal by President Reagan. In 1999,

he was awarded the Presidential Medal of Freedom by

President Clinton.

General John Keane, U.S. Army, Retired, is former Vice

Chief of Staff of the Army. He has also commanded the

18th Airborne Corps and the 101st Airborne Division, and

served as the Deputy Commander-in-Chief of the U.S.

Atlantic Command. He was featured in Tom Clancy’s book,

Airborne, and is the recipient of an honorary Ph.D. in Law

from Fordham University.

Michael I. Krauss is Professor of Law at George Mason

University School of Law. He served for five years on

Quebec’s Human Rights Commission.

John O. McGinnis is Professor of Law at Northwestern

University School of Law. From 1991 to 2002 he was on

the faculty of the Benjamin N. Cardozo School of Law,

Yeshiva University. He is a former attorney-adviser and

Deputy Assistant Attorney General, Office of Legal Coun-

sel, U.S. Department of Justice, where his work included

national security matters.

Geoffrey P. Miller is the William T. and Stuyvesant P.

Comfort Professor of Law at New York University School

of Law.

LIST OF AMICI AND COUNSEL - Continued

Major General Michael J. Nardotti, Jr., U.S. Army,

Retired, was the Judge Advocate General of the Army from

1993-1997, the senior military legal advisor to the Army’s

civilian and military leadership and the officer principally

responsible for the administration of military justice and

the delivery of comprehensive legal services to the Army

world-wide.

Michael F. Noone, Jr. is Professor of Law at the Colum-

bus School of Law, The Catholic University. He served

twenty years as a Judge Advocate in the U.S. Air Force.

Philip D. Oliver is Ben J. Altheimer Distinguished

Professor of Law at William H. Bowen School of Law,

University of Arkansas at Little Rock.

Antonio F. Perez is Professor of Law at the Columbus

School of Law, The Catholic University. He served for

several years in the Office of the Legal Adviser of the U.S.

Department of State.

Stephen B. Presser is the Raoul Berger Professor of

Legal History at Northwestern University School of Law.

Michael Ramsey is Professor of Law at the University of

San Diego School of Law, where he teaches international

law.

David B. Rivkin, Jr., is a partner in the law firm of

Baker & Hostetler, LLP, and was Deputy Director, Office

of Policy Development, U.S. Department of Justice, and

served in the White House Counsel’s Office.

Ronald D. Rotunda is the George Mason University

Foundation Professor of Law at George Mason University

——- are ee eae titi

Se —_—- —

vil

LIST OF AMICI AND COUNSEL - Continued

School of Law. He was formerly Albert E. Jenner Professor

of Law at the University of Illinois.

Rear Admiral William L. Schachte, Jr., U.S. Navy,

Retired, was Acting Judge Advocate General, the Navy’s

senior uniformed lawyer. He has served as Director, Navy

International Legal Division, and received an LL.M. in

International and Comparative Law (with highest honors)

from the George Washington University Law School.

Mortimer Sellers is Regents Professor of the University

System of Maryland and Director, Center for International

and Comparative Law.

Major General Nolan Sklute, U.S. Air Force, Retired,

was Judge Advocate General of the Air Force from 1993-

1996. As the senior military legal advisor to the Air Force’s

civilian and military leadership, he was responsible for the

administration of military justice throughout the Air

Force.

Abraham D. Sofaer is the George P. Shultz Distin-

guished Scholar and Senior Fellow at the Hoover Institu-

tion, Stanford University. He served as Legal Adviser of

the U.S. Department of State from 1985-1990.

Richard Steinberg is Professor of Law at the University

of California at Los Angeles School of Law. He serves on

the editorial board of International Organization.

Paul B. Stephan is the Lewis F. Powell, Jr., Professor of

Law at the University of Virginia School of Law.

Rear Admiral Everette D. Stumbaugh, U.S. Navy,

Retired, was Judge Advocate General of the Navy from

Vili

LIST OF AMICI AND COUNSEL - Continued

1988-1990. Earlier in his career, he received an LL.M. in

Public International Law and Comparative Law (with

highest honors) from the George Washington University

Law School. He also served as International Law Advisor

in the Office of the Chief of Naval Operations, Department

of Defense Oceans Policy Coordinator, and Deputy Judge

Advocate General of the Navy.

Robert Turner is former Charles H. Stockton Professor of

International Law at the U.S. Naval War College, and co-

editor of the casebook National Security Law.

Ruth Wedgwood is the Edward B. Burling Professor of

International Law and Diplomacy, School of Advanced

International Studies, Johns Hopkins University. She was

formerly Professor of Law at Yale Law School. She has

served on the Secretary of State’s Advisory Committee on

International Law since 1993, and chaired the Council on

International Affairs of the Association of the Bar of the

City of New York from 1992-1995.

Brigadier General Michael C. Wholley, U.S. Marine

Corps, Retired, is the former Staff Judge Advocate to the

Commandant of the Marine Corps. He served over thirty

years on active duty, including extensive combat duty in

Vietnam as an F-4 Phantom pilot, as Staff Judge Advocate

to several operational commands, and as Chief Judge of

the Navy-Marine Corps Judiciary.

Richard G. Wilkins is Professor of Law at Brigham

Young University. He served as assistant to the Solicitor

General of the U.S. from 1981-1984.

ix

LIST OF AMICI AND COUNSEL - Continued

General Michael J. Williams, U.S. Marine Corps,

Retired, was Assistant Commandant of the Marine Corps

from 2000-2002. He commanded Marine Air Group 26

during Desert Shield and Desert Storm. |

Edwin D. Williamson is a partner at Sullivan & Crom-

well, Washington, D.C. He served as Legal Adviser of the

U.S. Department of State from 1990-1993.

x

TABLE OF CONTENTS

Page

ee 6 Ie ee cccectcscscsscscevscsscssescssessesceesnenss i

LIST OF AMICI AND COUNSEL .........cccccccceccseeeeeeeeees ii

Cle ED cstcinarensascccecenrectscenensenessensncentes x

Ee Ge GakF CU IE SUE ccs ccccencccnncceccoscceccensscvovevencses xi

INTEREST OF AMICI CURIAE..............:cssecscseseeseeeeeees 1

SUMMARY OF ARGUMENT. ...............ccccsceceeeeeeeeeeeseees 1

TET cctscnasssiccdentiniiniananaieseveistinenemntienanaiauveiinns 3

I. The Law of Armed Conflict Applies to the

Conflict Between the United States and al

Cs Ge Ge ccecccccenernscnensccssnsentonersmne: 3

II. The Law of Armed Conflict and Its Scope......... 5

III. Al Qaeda and the Taliban are Unlawful and

Unprivileged Combatants, and Cannot Claim ~

the Full Privileges of the Geneva Conventions.. 8

IV. United States Policy is Consistent with the

Laws and Customs of War ..............cccccsseseeeeeeeees 14

A. The Right to Intern Captured Combat-

ants, and Permissible Locations................. 15

B. Screening Combatants: The Safeguards

FEES TIO ccccccsnsccvsescnssecscenseeeesenecenses , 17

C. How Long Can Unlawful Combatants Be ©

TINT ssisssicstiininieaeniinadiialipiaaneniineumedmeieiedeeiunne 24

D. Trial of Unlawful Combatants in Military

ID icitrcnictnnninatesnnsinenmnacnnnmmentnnnnsene 25

i iiincienscnnscnctetunnnincnenntenierindienenetnes 29

—— _ ———. —

xi

TABLE OF AUTHORITIES

. Page

FEDERAL CASES

Al Odah v. United States, 321 F.3d 1134 (D.C. Cir.

LA aN ee en ERR TT Fer ee MMO PANT 23

Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800) ........ eee eeeeeeees 6

Dalton v. Specter, 511 U.S. 462 (1994)....... 0... cccccccceceeeeeeees 23

Franklin v. Massachusetts, 505 U.S. 788 (1992)............... 23

Johnson v. Eisentrager,; 339 U.S. 763 (1950)....... ...... 24, 29

Ex Parte Quirin, 317 U.S. 1 (1942) ...........ccccccccccscccscrereeees 15

Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801)..............000.... 6

In re Territo, 156 F.2d 142 (9th Cir. 1946) ........0...cc ee 16

The Paquete Habana, 175 U.S. 677 (1900) ...................00008 7

Totten v. United States, 92 U.S. 105 (1875) ..............cccc eee 2

United States v. Ramzi Yousef, 327 F.3d 56 (2d Cir.

ETSI gens meneareeeva kn pee UR ere Or aM 7

OTHER CASES

Furly v. Newnham, 2 Doug. K.B. 419 (1780).................... 16

Legality of the Threat or Use of Nuclear Weapons,

I i eieeeeiininiiie 5

Mohamed Ali and Another v. Public Prosecutor, 3

All E.R. 488 (P.C. 1968), reprinted in HOWARD

LEVIE, ED., DOCUMENTS ON PRISONERS OF WAR

757 (U.S. Naval War College 1979)..............cccccceceeseeees 10

Rex v. Knockaloe Camp Commandant, 87 L.J.K.B.

| ESEERRESAReneanrar a ves teo rs aT Nore Tn cna es ne naEENE 16

TABLE OF AUTHORITIES -— Continued

Page

Velasquez-Rodriguez Case (Honduras), Inter-Am.

Ct. H.R. (ser. C, no. 4) (1988), reprinted in 9

Hum. Rts. L.J. 212 (1988), and in 28 I.L.M. 291

EERE SESE EAE PSEC CEERI A eae eee Sete, TES Oe ee oe 8

FEDERAL STATUTES

| EEE tonne a= mn aoa eT aE eT 24

ET een eS Bn ere 24

Een ene ae Bae ate ee 24

REI ene er aaa a ene ETE ome 26

Articles of War, Pub. L. No. 242, ch. 227, 41 Stat.

EE aU en oe a Oe OR eee 26

Authorization for Use of Military Force, Pub. L. No.

ER 4

TREATIES

European Convention for the Protection of Human

Rights and Fundamental Freedoms, Nov. 4, 1950,

a Ee Ce erincecsiininisciianicieetnceantininniiadnniianinnsnscness 6

Geneva Convention (III) Relative to the Treatment

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

ie TEED Sie censnicnseisasiannecmnecaninaeniianmenninseesieipiasaiibinihion passim

Geneva Convention (IV) Relative to the Protection

of Civilian Persons in Time of War, Aug. 12, 1949,

art. 78, 6 U.S.T. 3516, 75 U.N.T:S. 287..........00..... passim

[Hague] Convention (IV) Respecting the Laws and

Customs of War on Land, with Annex of Regula-

tions, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.....8, 15

-——-_ CoC -_.-

er en ce

Le bs

TABLE OF AUTHORITIES — Continued

Page

International Covenant on Civil and Political

Rights, Dec. 19, 1966, art. 4, 999 U.N.T.S. 171............... 6

Protocol I Additional to the Geneva Conventions of

Aug. 12, 1949, and Relating to the Protection of

Victims of International Armed Conflicts, Dec.

| eR RINNE RE SSE Loe ry ieee 28

UNITED NATIONS RESOLUTIONS

U.N.S.C. Res. 1333 (Dec. 19, 2000), available at

<http://www.un.org/docs/scres/2000/sc2000.htm> ........ 12

U.N.S.C. Res. 1368 (Sept. 12, 2001), available at

<http://www.un.org/docs/scres/2001/sc2001.htm> .......... 4

U.N.S.C. Res. 1373 (Sept. 28, 2001), available at

<http://www.un.org/docs/scres/2001/sc2001.htm> ......... 4

BOOKS, TREATISES, OTHER MATERIALS

Major R.A. Baxter, So-called Unprivileged Belliger-

ency: Spies, Guerillas and Saboteurs, BRITISH

YEARBOOK OF INTERNATIONAL LAW 1951................:000000 14

Raymond Bonner, Threats and Responses: Detain-

ees; Singapore Announces Arrest of 21 Men

Linked to Planned Attacks on U.S. Targets, N.Y.

pee 5

Briefing by Paul Butler, Principal Deputy Assistant

Secretary of Defense for Special Operations and

Low Intensity Conflict, and Army Major General

’ Geoffrey D. Miller, Commander, Joint Task Force

Guantanamo, Feb. 13, 2004, transcript available

at <http://www.defenselink.mil/transcripts/2004/tr

IT ininicentnransenniinenesennitininbiilannsenn 18, 21

xiV

TABLE OF AUTHORITIES — Continued

CORNELIUS VAN BYNKERSHOEK, A TREATISE ON THE

LAW OF WAR 127 (Peter DuPonceau, trans. & ed.)

I STII scasticnicreinsscesmisesenscnntisnneusinpuecienmamveseses

CUMULATIVE DIGEST OF U.S. PRACTICE IN INTERNA-

TIONAL LAW, 1981-1988 3455 (Marian Nash

lacie enanianami

Department of Defense Briefing, Dec. 30, 2003,

available at <http://www.defenselink.mil/tran

scripts/2003/tr20031230-1081.html> ...............cceeeeeeees

Department of Defense Military Commission Order

No. 1, Procedures for Trials by Military Commis-

sions of Certain Non-United States Citizens in the

War against Terrorism, Mar. 21, 2002, available

at <http://www.defenselink.mil/news/Mar2002/

ID ienitcnstpsnsnniiicnncemsictinimteniantammenanes

Department of Defense Military Commission

Instruction No. 2, Crimes and Elements for Trials

by Military Commission, Apr. 30, 2003, available

at <http://www.defenselink.mil/news/May2003/

d20030430milcominstn02. pdf> .............cceceeeeeeeeeeeeeeeeees

Department of Defense Military Commission

Instruction No. 9, Review of Military Commission

Proceedings, Dec. 26, 2003, available at <http://

www.defenselink mil/news/Jan2004/d20040108mil

I sccetdnisiintcsnndsslnenstninniniinteentneneienmenesmeis

Knut Dormann, The Legal Situation of Unlaw-

ful/Unprivileged Combatants, 85 INT'L REV. RED

Si Gn SP iceentinsstccctnsnsnenenncccstncnenesmmesmeseses

TABLE OF AUTHORITIES — Continued

Page

Colonel G.L.A.D. Draper, “The Legal Classification

of Belligerent Individuals” (Paper delivered at

University of Brussels, 1970), reprinted in RE-

FLECTIONS ON LAW AND ARMED CONFLICTS—

SELECTED WORKS ON THE LAWS OF WAR BY THE

LATE PROFESSOR COLONEL G.I.A.D. DRAPER,

O.B.E. 196, 199-200 (Michael A. Meyer and

Hilaire McCoubrey, eds., 1998) ................c:eeeeeeees 7, 21,

Enemy Prisoners of War, Retained Personnel,

Civilian Internees and Other Detainees, Army

Regulation 190-8, OPNAVINST 3461.6, AFJI 31-

SE 9S ea ne

Final Record of the Diplomatic Conference of

gL 13,

DIETER FLECK (ED.), THE HANDBOOK OF INTERNA-

TIONAL HUMANITARIAN LAW (commentary on Joint

Services Regulation 15/2 of the German Bundes-

a es Pee ERI ercccenenniesessscsssccteninnenccensessesses

Ari Fleischer, White House Spokesman, Special

White House Announcement Re: Application of

Geneva Conventions in Afghanistan (Feb. 7,

2002), at LEXIS, Legis Library, Fednew File................

L.C. GREEN, THE CONTEMPORARY LAW OF ARMED

22

ER ER Ee a a er 13, 23

HENRY W. HALLECK, INTERNATIONAL LAW; OR RULES

REGULATING THE INTERCOURSE OF STATES IN

PRAGE ASTD WAR BES CABG) ccccccccccccsccscccssccsccosccccsscscsesece

9 HALSBURY’S LAWS OF ENGLAND pp. 710-11, J 1212

IIE TiIITTITITTITecdeehiiaiacpeeiiinetietstiipenmmmmmenentenseresee

xvi

TABLE OF AUTHORITIES - Continued

Page

INTERNATIONAL COMMITTEE OF THE RED CROSS, THE

GENEVA CONVENTIONS OF 12 AUGUST 1949 —-

COMMENTARY, GENEVA CONVENTION (III) RELA-

TIVE TO THE TREATMENT OF PRISONERS OF WAR 62-

63 (Jean S. Pictet & Jean de Preux eds., 1969)............ 10

Harold Koh, The Case Against Military Commis-

sions, 96 AM. J. INT. L. 337 (2002)..........ccccccccsssccesceoeeees 26

Jean-David Levitte, Setting the Record Straight,

CosMos CLUB BULLETIN, Feb. 2004, at 15....................04 3

Lieber Code, Instructions for the Government of

the Armies of the United States in the Field,

arts. 82-85 (Apr. 24, 1863), available at <http://

www.au.af.mil/au/awc/awcgate/law/liebercode.htm>........ 10

North Atlantic Treaty Organization (NATO),

Statement by the North Atlantic Council (Sept.

12, 2001), reprinted in 40 I.L.M. 1267 (2001)................. 4

Office of the White House Press Secretary, Fact

Sheet, Status of Detainees at Guantanamo (Feb.

7, 2002), available at <http://www.whitehouse.

gov/news/releases/2002/02/20020207-13.html>.............. 9

2 LASSA OPPENHEIM, INTERNATIONAL LAW § 254 (H.

Lauterpacht ed., 7th ed. 1952) ................sssssssssssesssseeeees 11

Organization of American States, press release E-

194/01, Sept. 21, 2001, available at <http://www.

oas.org/OASpage/press2002/en/press2001/sept01/

196 DAGRD .. cocccccccccccccecccscosecsccccssnanensnennsnnaiaannannn 4

W. Hays Parks, Special Forces’ Wear of Non-

Standard Uniforms, 4 CHI. J. INT. L. 493 (2003).......... 11

——s

—s

ae nd a a

es

TABLE OF AUTHORITIES - Continued

Page

PRESERVING OUR INSTITUTIONS — THE FIRST REPORT

OF THE CONTINUITY OF GOVERNMENT COMMISSION

(2003), available at <http://www.continuityof

government.org/pdfs/FirstReport.pdf>.........................6+. 3

Remarks by Alberto R. Gonzales, Counsel to the

President, before the American Bar Association

Standing Committee on Law and National Secu-

rity, Washington, D.C., Feb. 24, 2004, available

at <http://www.abanet.org/natsecurity/judge_

TE 15

Remarks of Secretary of Defense Rumsfeld to Greater

Miami Chamber of Commerce, Feb. 13, 2004, tran-

script available at <http://www.defenselink.mil/

transcripts/2004/tr20040213-0445.html>......... 18, 19, 20

Kenneth Roth, The Law of War in the War on

Terror, FOREIGN AFFAIRS 7 (Jan.-Feb. 2004).................. 26

MARCO SASSOLI AND ANTOINE A. BOUVIER, How

Dogs LAW PROTECT IN WAR? CASES, DOCUMENTS,

AND TEACHING MATERIALS ON CONTEMPORARY

PRACTICE IN INTERNATIONAL HUMANITARIAN LAW

(International Committee of the Red Cross 1999)........ 23

Statement by State Department Spokesman

Richard Boucher, U.S. Department of State Press

Briefing (Feb. 8, 2002), available at <http://

www.state.gov/r/pa/prs/dpb/2002/7918.htm>................ 18

JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL

EEE ET 14

William Taft, Guantanamo Detention is Legal and

Essential, FINANCIAL TIMES, Jan. 12, 2004, at 19... 17, 25

TABLE OF AUTHORITIES - Continued

Page

Two Guantanamo Detainees Charged, United

States Department of Defense News Release No.

122-04, Feb. 24, 2004, available at <http://www.

defenselink.mil/releases/2004/nr20040224-0363.

United States Military Assistance Command

Vietnam, Directive No. 381-46, Military Intelli-

gence: Combined Screening of Detainees (Dec.

Is TI cesar rneencnaiaentaectadan cee aeaireactataeliidiialaiasiaaiianei 17

EMMERICH DE VATTEL, THE LAW OF NATIONS 591, bk.

3, ch. 15 (Dublin, Luke White ed. 1792) (1758) ............ ll

Ruth Wedgwood, Al Qaeda and American Self-

Defense, (Appendix) in SEPTEMBER 11, TERRORIST

ATTACKS, AND U.S. FOREIGN POLicy 176-78 (De-

metrios James Caraley, ed., The Academy of Po-

litical Science, 2002) (reprinting Joint Statement

of Individual High-Level Advisors to the Secre-

Rear CE TID cccssvesssscesnscsnssnnsesenenesenssensnenssemsenssmneneses 28

Ruth Wedgwood, Al Qaeda, Terrorism, and Military

Commissions, 96 AM. J. INT. L. 328 (2003) ................... 26

AMEUR ZEMMALI, COMBATTANTS ET PRISONNIERS DE

GUERRE EN Droit ISLAMIQUE ET EN DROIT HUMA-

NITAIRE (Editions Pedone, Paris 1996) (Ph.D.

thesis, Faculty of Law, University of Geneva).............. 22

—— —— ram —— li

1

INTEREST OF AMICI CURIAE

This brief amicus curiae is respectfully submitted’ by

law professors, former State Department Legal Advisers

and Ambassadors, retired Judge Advocates General and

combatant commanders, and other international law

specialists. Amici believe that the United States Court of

Appeals for the District of Columbia Circuit correctly

decided that the statutory writ of habeas corpus is not

available to foreign enemy combatants captured and held

outside of the United States.

Although the immediate question is jurisdictional, it

touches upon the law of armed conflict, and its relationship

to constitutional, administrative, and public international

law. As lawyers, diplomats, and military professionals who

have gained expertise in these matters, we are concerned

that the choice of the appropriate legal paradigm may

profoundly affect America’s ability to defeat al Qaeda’s

terror campaign against the United States.

¢

SUMMARY OF ARGUMENT

Following the September 11 attacks, Congress author-

ized the President to use military force against al Qaeda

and such “nations, organizations, or persons he deter-

mines” assisted al Qaeda’s acts of war against the United

States. In the midst of a continuing conflict, and in an

effort to regulate the President’s conduct of the war

abroad, petitioners ask the Court to invent an unprece-

dented and unfounded extraterritorial extension of habeas

corpus. Their proposed test of “complete jurisdiction and

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

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

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

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

monetary contribution to the preparation or submission of this brief.

2

control,” as the new limit for the writ, could extend to

American military installations around the world, occu-

pied territory, and even to combat zones such as Iraq, as

well as to other informal and even confidential arrange-

ments between the United States and foreign govern-

ments.” There would be no apparent limit to this

“globalization” of the writ of habeas corpus.

The motive for this proposed legal usurpation is

petitioners’ assertion that the President’s conduct of the

war has violated international law, particularly through

the capture and wartime internment of enemy combatants

at the Guantanamo Bay Naval Station in Cuba. Therefore,

the Court’s consideration of this case may be assisted by

having available the historical and specialized materials

that demonstrate the consistency of the President’s actions

with the principles of international law, including the

tradition of the Geneva Conventions.

Claims made that Guantanamo is a “legal black hole”

or “rights-free zone” unaccountably ignore the settled rules

of the law of armed conflict. That law permits nations to

defend their citizens through the use of military force,

including the capture and detention of enemy combatants

throughout the conflict. Application of these rules does not

depend on whether Congress has “declared war” so long as

an armed conflict is still in progress. Suggestions that the

courts should regulate the capture and detention of foreign

combatants abroad would interpose the judiciary in an

area the Constitution reserves to the political branches.

Neither an activist reading of international law, nor

political criticism of the President’s wartime strategy,

warrants the suggested overthrow of the bright line rule

* Compare Totten v. United States, 92 U.S. 105, 106-107 (1875)

(“public policy forbids the maintenance of any suit in a court of justice,

the trial of which would inevitably lead to the disclosure of matters

which the law itself regards as confidential” including “all secret

employments of the government in time of war”).

3

that limits the statutory remedy of habeas corpus to

matters affecting American citizens and matters occurring

on American sovereign territory.

+

ARGUMENT

I. The Law of Armed Conflict Applies to the

Conflict Between the United States and Al

Qaeda and the Taliban.

The United States has been “at war” at least since

September 11, 2001, when agents of the al Qaeda terrorist

organization seized four American passenger aircraft, and

carried out attacks against the World Trade Center and

the Pentagon.’ Nearly three thousand people were killed;

many hundreds more were wounded; the vast majority of

the victims were civilians. Al Qaeda reportedly hoped to

use the fourth airplane (which crashed in Pennsylvania) to

attack the United States Capitol or the White House. The

gravity of al Qaeda’s attempt to decapitate the American

national government in a coordinated set of attacks has

led to new post-Cold War consideration of how to preserve

the continuity of American democratic government.‘

Congress responded to these extraordinary acts of war

by authorizing the President “to use all necessary and

appropriate force against those nations, organizations, or

* As the French Ambassador to the United States recently said, his

government “immediately viewed [the September 11 attack] as an act of

war” and within an hour, “a French resolution was approved by the

Security Council branding the act as such and calling for pursuit of the

terrorist leaders.” Jean-David Levitte, Setting the Record Straight,

Cosmos CLUB BULLETIN, Feb. 2004, at 15 (reporting the Ambassador's

Dec. 1, 2003 discussion at the Cosmos Club).

* See PRESERVING OUR INSTITUTIONS-THE FIRST REPORT OF THE

CONTINUITY OF GOVERNMENT COMMISSION (2003), ‘available at

<http//www.continuityofgovernment.org/pdfs/FirstReport. pdf>.

4

persons he determines planned, authorized, committed, or

aided the terrorist attacks that occurred on September 11,

2001, or harbored such organizations or persons.” See

Authorization for Use of Military Force, Pub. L. No. 107-

40, 115 Stat. 224 (2001) (emphasis added). Determining

that al Qaeda was responsible for the September 11

attacks, and that the Taliban militia continued to harbor

al Qaeda personne] and training camps, the President

deployed American military forces to Afghanistan. The

legality of the American resort to armed force against al

Qaeda and the Taliban was endorsed by the North Atlantic

Treaty Organization, the United Nations Security Council

(acting under Chapter VII of the U.N. Charter), and the

members of the Rio and ANZUS Pacts.*

In fact, al Qaeda has targeted American military and

diplomatic personnel and American civilians for over a

decade. Beginning in 1992, bombing American peacekeep-

ers in Aden, Yemen, al Qaeda rapidly escalated with the

1993 truck-bomb attack on the World Trade Center. This

was followed by a 1994 car bomb attack on American

soldiers at the Riyadh training center, a 1995 truck bomb

attack on the “Khobar Tower” barracks in Saudi Arabia,

killing 19 and wounding 372 American soldiers, and the

massive 1998 truck bomb attacks on the American Embas-

sies in Kenya and Tanzania, killing 212 and wounding

4500 persons. In January, 2000, al Qaeda attempted

(unsuccessfully) to bomb the U.S.S. The Sullivans, then

* North Atlantic Treaty Organization (NATO), Statement by the

North Atlantic Council (Sept. 12, 2001), reprinted in 40 1.L.M. 1267

(2001); U.N.S.C. Res. 1368 (Sept. 12, 2001), available at <http://www.

un.org/docs/scres/200 1/sc2001.htm>; U.N.S.C. Res. 1373 (Sept. 28, 2001),

available at <http://www.un.org/docs/scres/200 1/sc2001.htm>. The North

Atlantic Council invoked Article 5 of the NATO Treaty for the first time

in its fifty year history. Similarly, the OAS Foreign Ministers invoked

the Inter-American Treaty of Reciprocal Assistance (1947). See OAS

press release E-194/01, Sept. 21, 2001, available at <http://www.oas.org/

OASpage/press2002/en/press200 l/sept01/194.htm>.

5

refueling in Aden harbor, and successfully attacked the

U.S.S. Cole, nine months later in the same port. Since

September 11, 2001, even after the battlefield successes of

American and allied troops in Afghanistan, al Qaeda has

continued to target America and its allies around the

world.* The Taliban has continued to fight American forces

in southeastern Afghanistan, despite the formation of a

new government in Kabul under Hamid Karzai. Osama

bin Laden’s 1998 “fatwa” declaring war against all Ameri-

cans, all Jews, all Christians, and all “apostate” Muslims,

still remains in effect, and the United States is still

battling al Qaeda around the world.

II. The Law of Armed Conflict and Its Scope.

The law of armed conflict is lex specialis, a distinctive

branch of international law that takes account of the

unique problems of warfare.’ Sometimes called “interna-

tional humanitarian law,” it draws upon the same norma-

tive and ethical commitments as human rights law,

attempting to spare innocent civilians and to mitigate the

hardship of warfare. However, in weighing the balance, it

must also take account of the catastrophic effect of enemy

attacks upon the safety and the survival of a nation’s

civilians. It recognizes that, during war, a state must

weigh a complex set of interests — including the need to

protect its society and population against physical harm

and destruction. As a result, the law of armed conflict

permits acts that would be forbidden during peacetime,

including killing enemy soldiers in combat, capturing and

detaining enemy soldiers on the battlefield, and interning

* See, e.g., Raymond Bonner, Threats and Responses: Detainees;

Singapore Announces Arrest of 21 Men Linked to Planned Attacks on

U.S. Targets, N.Y. TIMES, Sept. 17, 2002, at A17.

" See Legality of the Threat or Use of Nuclear Weapons, 1996 1.C.J.

226, at J 25 (1996). .

6

enemy soldiers for the duration of the conflict to prevent

their return to the fight.’

The law of armed conflict’s applicability does not

depend on whether “war” has been formally declared. See

Bas v. Tingy, 4 U.S. (4 Dall.) 37, 43 (1800); Talbot v.

Seeman, 5 U.S. (1 Cranch) 1, 28 (1801); see also, Geneva

Convention (III) Relative to the Treatment of Prisoners of

War, Aug. 12, 1949, common art. 2, 6 U.S.T. 3316, 75

U.N.T.S. 135 (entered into force Oct. 21, 1950) (““Conven-

tion shall apply to all cases of declared war or any other

armed conflict which may arise between two or more of the

High Contracting Parties, even if the state of war is not

recognized by one of them”) (emphasis added) [hereinafter

Geneva III]. Indeed, many countries no longer formally

declare war as such, because of the limitations of the

United Nations Charter, but a state of war exists when-

ever a foreign foe has committed an act of war or aggres-

sion. In the Vietnam conflict, the 1991 Persian Gulf War,

and the 2003 allied intervention against Saddam Hussein

in Iraq, Congress did not formally declare war, but author-

ized the use of force against foreign foes. Congress also

authorized the use of force against al Qaeda and the

Taliban.

The law of armed conflict’s substantive rules depend

both on custom and treaty. Customary law develops from

the practice of states recognized as legally obligatory.

Especially in this area so important to the survival of

* The rights and duties of participants in war and armed conflict

are governed by the law of armed conflict. But it is pertinent to note

that international human rights law also acknowledges that a “public

emergency threatening the life of the nation” may warrant adaptation

of the law to meet the emergency. See International Covenant on Civil

and Political Rights, Dec. 19, 1966, art. 4, 999 U.N.T.S. 171 (entered

into force for the United States, Sept. 8, 1992); European Convention

for the Protection of Human Rights and Fundamental Freedoms, Nov.

4, 1950, art. 15, 213 U.N.TS. 221.

7

states, customary law crucially depends upon the practice

of states. It is not invented by the opinions of individual

moralists or law professors.”

There is no comprehensive treaty text addressing

every wartime issue, and customary law changes in the

face of new problems. Multilateral conferences of states

crafting treaty texts may unavoidably “fight the last

war.” The Hague Conventions of 1899 and 1907 foresaw,

in the so-called “Martens Clause,” that the community of

states would not be able to agree on a detailed text to

codify a solution to all of the problems of war. (For exam-

ple, the 1949 Geneva Conventions apply only to conflicts

“between two or more of the High Contracting Parties.”)"

Accordingly, the Martens Clause calls upon states to

recognize that:

[uJntil a more complete code of the laws of war

has been issued, ... in cases not included in the

Regulations adopted by them, the inhabitants

and the belligerents remain under the protection

and the rule of the principles of the laws of

* See United States v. Ramzi Yousef, 327 F.3d 56, 100-03 (2d Cir.

2003) (“Some contemporary international law scholars assert that they

themselves are an authentic source of customary international law,

perhaps even more relevant than the practices and acts of States ....

[This assertion] may not be unique, but it is certainly without merit.”).

Accord The Paquete Habana, 175 U.S. 677, 700 (1900).

* Law of war authority Colonel G.1.A.D. Draper noted this

problem: “The Geneva Conventions of 1949 are excellent instruments of

humanitarian law but they were unfortunately backwards-looking to

the experience of World War II.” See Colonel G.I.A.D. Draper, The Legal

Classification of Belligerent Individuals (Paper delivered at University

of Brussels, 1970), reprinted in REFLECTIONS ON LAW AND ARMED

CONFLICTS-SELECTED WORKS ON THE LAWS OF WAR BY THE LATE

PROFESSOR COLONEL G.I.A.D. DRAPER, O.B.E. 196, 199-200 (Michael A.

Meyer and Hilaire McCoubrey, eds., 1998).

" Geneva III, supra, art. 2. Al Qaeda, of course, is not a Geneva

party.

8

nations, as they result from the usages estab-

lished among civilized peoples, from the laws of

humanity, and the dictates of the public con-

science.

See Convention (IV) Respecting the Laws and Customs of

War on Land, with Annex of Regulations, Oct. 18, 1907,

preamble, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague

Regulations].

Of course, the attempt to fit the principles of the

Geneva tradition to the raw facts of a terrorist adversary

involves human interests on both sides of the equation.”

The protection of innocent civilians from car bomb attacks

is a human rights interest, just as is the protection of

combatants caught on the battlefield. Nevertheless, the

President has undertaken to treat captured al Qaeda and

Taliban detainees humanely and, in accord with the

principles of Geneva, without conceding that the Geneva

Conventions would apply in all their particulars.

Ill. Al Qaeda and the Taliban are Unlawful and

Unprivileged Combatants, and Cannot Claim

the Full Privileges of the Geneva Conven-

tions.

As Commander-in-Chief, President Bush has deter-

mined that the al Qaeda and Taliban fighters detained at

° The Inter-American Court of Human Rights embraced this point

in the Velasquez-Rodriguez Case (Honduras), Inter-Am. Ct. H.R. (ser. C,

no. 4) (1988), { 172, reprinted in 9 Hum. Rts. L.J. 212 (1988), and in 28

1.L.M. 291 (1989). When the Honduran government disclaimed respon-

sibility by arguing that it was not itself running the death squads, the

Inter-American Court replied that each government has an affirmative

duty to protect the human rights of its citizens, in particular, to guard

against the arbitrary deprivation of life by private groups. So, too, the

United States government has an affirmative duty, under the laws of

war and the principles of human rights, to effectively protect innocent

civilians from the private violence of al Qaeda.

9

Guantanamo Bay are “unprivileged” or “unlawful” com-

batants. Because of this determination, the detainees are

not entitled to the full rights and privileges of prisoners-of-

war (“POWs”) under the Geneva Conventions. The Presi-

dent properly based this conclusion on the traditional

prerequisites of lawful belligerency, as recognized by the

Geneva Conventions. Al Qaeda is “an international terror-

ist group and cannot be considered a state party to the

Geneva Convention,” and both al Qaeda and the Taliban

have failed to satisfy the traditional four-part test of

having a responsible commander, wearing a uniform or

distinctive insignia, carrying arms openly, and conducting

military operations “in accordance with the laws and

customs of war.” See Ari Fleischer, White House Spokes-

man, Special White House Announcement Re: Application

of Geneva Conventions in Afghanistan (Feb. 7, 2002), at

LEXIS, Legis Library, Fednew File.

Nonetheless, the President has undertaken to treat all

internees humanely. See Office of the White House Press

Secretary, Fact Sheet, Status of Detainees at Guantanamo

(Feb. 7, 2002), available at <http://www.whitehouse.gov/

news/releases/2002/02/20020207-13.html> (“The United

States is treating and will continue to treat all of the

individuals detained at Guantanamo humanely and, to the

extent appropriate, and consistent with military necessity,

in a manner consistent with the principles of the Third

Geneva Convention of 1949.”).

It must be emphasized that President Bush did not

invent the classification of unprivileged or unlawful

combatant for the war against al Qaeda and the Taliban.

The first modern effort to codify the law of armed conflict,

Union Army General Order No. 100, gave prime attention

to “unlawful” and “unprivileged” belligerency. General

Order No. 100 was drafted by Columbia University law

professor Francis Lieber, and promulgated by President

Lincoln in 1863. It includes four different categories of

unlawful combatants: “armed prowlers,” “spies,” “highway

10

robbers or pirates,” and “war-rebels.”” In the Lieber Code,

unlawful belligerency meant, at a minimum, that the

fighter was “not entitled to the privileges of prisoners of

war.”

The status of unlawful belligerent or combatant was

recognized throughout the nineteenth and twentieth

centuries, in the Brussels Declaration of 1874, and again

in the Hague Rules of Land Warfare of 1907, and its key

distinctions have been preserved in the modern Geneva

tradition. See Geneva III, supra, art. 4. As noted in the

official Geneva commentary of the International Commit-

tee of the Red Cross, the very definition of “armed forces”

depends upon these “material characteristics” and “attrib-

utes”: “they wear uniform[s], they have an organized

hierarchy and they know and respect the laws and cus-

toms of war.”

The President’s conclusion that the members of al

Qaeda, and the Taliban, are unlawful combatants is

clearly correct. Neither group satisfied the four critical

criteria. Indeed, al Qaeda is nothing but a private organi-

zation. The law of armed conflict does not authorize

* See Lieber Code, Instructions for the Government of the Armies

of the United States in the Field, arts. 82-85 (Apr. 24, 1863), available

at <http//www.au.af.mil/au/awc/awcgate/law/liebercode.htm>.

* Id.

* INTERNATIONAL COMMITTEE OF THE RED Cross, THE GENEVA

CONVENTIONS OF 12 AUGUST 1949-COMMENTARY, GENEVA CONVENTION

(III) RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 62-63 (Jean S.

Pictet & Jean de Preux eds., 1969). See also Mohamed Ali and Another

v. Public Prosecutor, 3 All E.R. 488 (P.C. 1968), reprinted in HOWARD

LEVIE, ED., DOCUMENTS ON PRISONERS OF WAR 757, 763 (U.S. Naval War

College 1979) (“It would be anomalous if the requirements for recogni-

tion of a belligerent with its accompanying right to treatment as a

prisoner of war, only existed in relations to members of [militias or

volunteer corps] and there was no such requirement in relation to

members of the armed forces.”).

11

violence by private individuals, and private groups are not

entitled to the privileges of belligerency — regardless of

whether the motivation is ideological, religious, or politi-

cal. See 2 LASSA OPPENHEIM, INTERNATIONAL LAW § 254 (H.

Lauterpacht ed., 7th ed. 1952) (“Private individuals who

take up arms and commit hostilities against the enemy do

not enjoy the privileges of armed forces . . . ”); CORNELIUS

VAN BYNKERSHOEK, A TREATISE ON THE LAW OF WAR 127

(Peter DuPonceau, trans. & ed.) (Philadelphia 1810) (“We

call pirates and plunderers (praedones) those, who, with-

out authorization of any sovereign, commit depredations

by sea or land.”); DIETER FLECK (ED.), THE HANDBOOK OF

INTERNATIONAL HUMANITARIAN LAW (commentary on Joint

Services Regulation 15/2 of the German Bundeswehr),

§ 304, 71-72 (1995) (“Only states or other parties which

are recognized as subjects of international law can be

parties to an international armed conflict .... combatants

are privileged solely by that entitlement .. . ”).”*

The Taliban’s status also presents anomalous facts.

Although Afghanistan is a party to the 1949 Geneva

Conventions, the Taliban was not its legal government or

“armed forces.” Indeed, the Taliban militia “never claimed

to be the Afghanistan government or armed forces” and

“exercised none of the usual activitie- of a governinent,

other than the negative one of closing down all schools.””

“ See also HENRY W. HALLECK, INTERNATIONAL LAW; OR RULES

REGULATING THE INTERCOURSE OF STATES IN PEACE AND WAR 348 (1861)

(“individual is liable to punishment” for “any act [otherwise] within the

rules of war, not authorised or assumed by his government, as the act of

the state”); EMMERICH DE VATTEL, THE LAW OF NATIONS 591, bk. 3, ch.

15 (Dublin, Luke White ed. 1792) (1758) (“The right of making war...

belongs alone to the sovereign power, which not only decides whether it

be proper to undertake the war, and declare it, but likewise directs all the

operations .... Therefore subjects cannot act herein of themselves, and

without the sovereign’s order they are not to commit any hostility.”).

" W. Hays Parks, Special Forces’ Wear of Non-Standard Uniforms,

4 Cut. J. INT. L. 493, 506 n.21 (2003). Colonel Parks, of the U.S. Marine

(Continued on following page)

12

Neither the United States, the United Nations, the League

of Islamic Nations, nor Switzerland (as the treaty deposi-

tory for the Geneva Conventions) ever recognized the

Taliban as Afghanistan’s government. The Taliban did not

claim Afghanistan’s seat in the U.N. General Assembly,

and the Security Council openly debated whether a bind-

ing Council resolution could be issued against a “non-state

entity” such as the Taliban. See, e.g., U.N.S.C. Res. 1333

(Dec. 19, 2000), available at <http://www.un.org/docs/scres/

2000/sc2000.htm> (condemning “continuing use of areas of

Afghanistan under the control of the Afghan faction known

as Taliban”) (emphasis added). As one widely-respected

military law expert has noted, the Taliban was at most “a

faction engaged in a civil war in a failed state.””

Moreover, even if the Taliban had been a legitimate

government, it did not prosecute war in a legitimate way.

Taliban combatants targeted civilians, killed journalists,

and used civilians and mosques as shields. They acted

with perfidy by pretending to surrender — for example,

= the Taliban/al Qaeda rebellion at the Mazar-i-Sherif

ortress.

The anomalous nature of the parties in the conflict in

Afghanistan has important consequences for the applica-

tion of the Geneva Conventions, and the legal status of the

al Qaeda and Taliban members captured by the United

States. Unlawful combatants are certainly not entitled to

be set at liberty while a war is ongoing, for even lawful

combatants may be captured and held for the duration of

the armed conflict — including follow-on operations against

hold-outs. Unlawful combatants retain protections under

Corps Reserve (Retired), formerly served as the Special Assistant for

Law of War Matters to the Judge Advocate General of the Army.

* Id. Prior to September 11, 2001, only three governments — Saudi

Arabia, Pakistan, and the United Arab Emirates -— recognized the

Taliban, and each withdrew its recognition following September 11.

13

the basic norms of customary international law, the

Martens Clause, and norms comparable to those in com-

mon Article 3 of the Geneva Conventions (applicable to

insurgents in civil wars).'* However, as unlawful combat-

ants, they do not enjoy the full rights and privileges of

Geneva POWs.” Unlawful combatants are denied the full

” Without dispute, all detainees are entitled to humane treatment.

Under the rules of Geneva III, however, lawful combatants would enjoy

a number of privileges — such as the right to military pay, the right to

have free run of the detention camp and the right to gather en masse -—

that are clearly inappropriate or dangerous in the case of al Qaeda and

the Taliban. In addition, under Geneva, lawful combatants may not

gain any advantage because they are cooperating. This could pose an

obstacle to effective collection of intelligence essential in thwarting

future attacks by al Qaeda. Also, classification as a lawful combatant

could potentially immunize a non-state-actor from criminal liability for

terrorist attacks against American military installations and personnel.

* Some writers have suggested that, to assure a “seamless” treaty

regime, any unlawful combatant who falls outside the full statutory

privileges of Geneva III should automatically gain the privileges and

protections of Geneva Convention (IV) Relative to the Protection of

Civilian Persons in Time of War. See Knut Dormann, The Legal

Situation of Unlawful/Unprivileged Combatants, 85 INTL REV. RED

Cross 45 (Mar. 2003). But this was not the view of many States Parties.

See, e.g., Final Record of the Diplomatic Conference of Geneva of 1949,

Vol. II-A, at p. 621 (remarks of U.K. delegate: “The whole conception of

the Civilians Convention was the protection of civilian victims of war

and not the protection of illegitimate bearers of arms, who could not

expect full protection under the laws of war to which they did not

conform.”) See also L.C. GREEN, THE CONTEMPORARY LAW OF ARMED

CONFLICT 189 (1998) (“Not all those falling into the hands of a belliger-

ent become prisoners of war or are entitled to prisoner of war status.

Enemy civilians, for example, when taken into custody or interned do

not fall into this category, and if captured are entitled to treatment in

accordance with Geneva Convention IV, 1949, unless they have taken

part in hostile activities when they may be regarded as unlawful

combatants and treated accordingly.”) (Emphasis added).

Nonetheless, it is worth recalling that even the Fourth Geneva

Convention reflects the exigencies of war. Under Article 5 of that

Convention, civilians of the opposing power who are “in occupied

(Continued on following page)

14

rights of lawful belligerents so as to create an incentive

system for appropriate behavior in wartime. Unlawful

combatants cannot exploit legal asymmetry, demanding

the privileges that they fail to accord to their adversary.

The matter was put plainly by Professor Richard Baxter of

Harvard: “International law deliberately neglects to

protect unprivileged belligerents because of the danger

their acts present to their opponents.” See Major R.A.

Baxter, So-called Unprivileged Belligerency: Spies, Guer-

rillas and Saboteurs, BRITISH YEARBOOK OF INTERNATIONAL

LAW 1951, at 343. “Unlawful belligerency,’” noted Baxter,

“is actually ‘unprivileged belligerency.’”™

IV. United States Policy Is Consistent With the

Laws and Customs of War.

Although the Guantanamo detainees are not entitled

to the full privileges of Geneva POWs, there are several

other practical and legal questions related to their treat-

ment and, with respect to each of these, we believe that

— policy is consistent with international law and

ethics.

territory” or “in the territory of an adversary” are subject to internment

by decision of the detaining power where they are “definitely suspected

of or engaged in activities hostile to the security of the State.” Thus, an

enemy civilian who is suspected of plotting violence, even if he is not

technically a “combatant,” could be interned for the duration of the

conflict. See Geneva Convention (IV) Relative to the Protection of

Civilian Persons in Time of War, Aug. 12, 1949, art. 78, 6 U.S.T. 3516,

75 U.N.T.S. 287.

™ Accord JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL

CONFLICT 549 (1954) (the distinction between “privileged”/“protected”/

“lawful” belligerents or combatants, and “unprivileged”“unprotected”/

“unlawful” belligerents or combatants, “draws the line between those

personnel who, on capture, are entitled under international law to

certain minimal treatment as prisoners of war, and those not entitled to

such protection”).

15

A. The Right To Intern Captured Combatants,

and Permissible Locations

All captured combatants (lawful and unlawful) are

legally subject to detention or internment throughout the

duration of an armed conflict. See Ex Parte Quirin, 317

U.S. 1, 31 (1942); see also, Geneva III, supra, art. 21 (“The

Detaining Power may subject prisoners of war to intern-

ment.”); Hague Regulations, supra, arts. 4-5 (“Prisoners of

war are in the power of the hostile Government ....

Prisoners of war may be interned in a town, fortress,

camp, or other place, and bound not to go beyond certain

fixed limits .... ”). This internment is not punishment,

but a prophylactic measure, the primary purpose of which

is to keep a prisoner from returning to the fight. Allowing

internment, in fact, strengthens the “life-or-death” battle-

field guarantee — that combatants should be permitted to

surrender, and that their opponents must accept the

surrender and “give quarter.” In real world settings, many

armies would not take prisoners if they knew that the

captured enemy would immediately be released, frustrat-

ing efforts to defeat the opposing force.

Further, alien enemy combatants have not been

entitled to challenge their detention in court.” During

World War Two, some 400,000 German and Italian prison-

ers of war were captured and transported to the continen-

tal United States for internment, and were repatriated

only at the end of the war. Initially, their internment was

“indefinite,” since neither they nor their captors knew

when the war would end. Nevertheless, so far as the case

™ Here, citizenship makes a difference of quality and kind.

Americans who have fought for a foreign enemy may seek review of any

capture and detention by habeas corpus. See Remarks by Alberto R.

Gonzales, Counsel to the President, before the American Bar Associa-

tion Standing Committee on Law and National Security, Washington,

D.C., Feb. 24, 2004, available at <http://www.abanet.org/natsecurity/

judge_gonzales. pdf>.

16

reports reveal, the federal courts did not entertain any

habeas petitions challenging this civil internment, which

is simply a normal prerogative of war. The only reported

exception is Jn re Territo, 156 F.2d 142 (9th Cir. 1946),

which concerned an Italian-American enemy combatant

who unsuccessfully asserted that his citizenship should

prevent his detention. This dearth of litigation is consis-

tent with the history of the common law. In English

common law, alien enemy combatants and alien prisoners

of war were plainly excluded from access to the writ of

habeas corpus, no matter where they were detained. See,

e.g., 9 HALSBURY’S LAWS OF ENGLAND pp. 710-11, 4 1212

(2d Ed. 1931-1942) (the writ “will not be granted . . . to an

alien enemy who is a prisoner of war”).”

Although many enemy combatants were transferred

to the United States during World War Two, this is not

required. Under customary law, and the 1949 Geneva

Conventions, the capturing power is merely required to

hold detainees at a safe distance from the fighting, lest

they “be exposed to the fire of the combat zone.” See

Geneva III, supra, art. 23. Captives cannot be held in

penitentiaries or detained on naval vessels (to avoid the

infamous practice of “prison hulks”). They should be

interned in a favorable climate. Jd. But the detaining

power is permitted to choose a place where available

security arrangements will discourage any escape or

rescue attempts.”

* Accord Rex v. Knockaloe Camp Commandant, 87 L.J.K.B. 43, 46

(1917) (Avery, J.) (“There is clear authority that a person who is an

alien enemy prisoner of war is not entitled to apply to the Court for a

writ of habeas corpus.”); Furly v. Newnham, 2 Doug. K.B. 419 (1780)

(“The Court will not grant a habeas corpus ad testificandum to bring up

a prisoner of war.”).

™ These constraints may help to explain the choice of Guantanamo

as a locale.

17

B. Screening Combatants: The Safeguards

Against Mistakes

No one wishes to have non-combatants, of any nation-

ality, subject to mistaken detention as a combatant. A

battlefield can be confusing, and the United States ob-

tained custody of some detained combatants from the

Afghan Northern Alliance and other allied groups. To

safeguard against mistakes, there has been a careful

ongoing process of interviews, screening, and review by

American military and intelligence teams, to assure that

each person was in fact a combatant. According to the

Department of State’s Legal Adviser, more than 10,000

detainees were screened in Afghanistan. The “vast major-

ity” were released. See William Taft, Guantanamo Deten-

tion is Legal and Essential, FINANCIAL TIMES, Jan. 12,

2004, at 19. Only a small number were transferred to

Guantanamo. As Mr. Taft noted, American policy “was,

and is, that only enemy combatants who pose special

security, intelligence or law enforcement concerns are

transferred to Guantanamo.” /d.

Screening teams and review panels are the traditional

method used to categorize combatants (widely used, for _

example, in Vietnam and the Gulf War, see, e.g., United

States Military Assistance Command Vietnam, Directive

No. 381-46, Military Intelligence: Combined Screening of

Detainees (Dec. 27, 1967)). The screening and review

process for combatants captured in the ongoing conflict in

Afghanistan has involved four layers of assessment and

review before a person may be transferred to Guantanamo.

There is an assessment in the field, then another by a

military screening team at a central holding area, then a

third review by a general officer designated by the com-

batant commander of Central Command, and then a

fourth review by an internal Department of Defense

18

review panel, including legal advisors and members of the

Joint Staff.”

Every internee transferred to Guantanamo is again

formally reassessed upon arrival, with another review by

the Southern Command and then by a panel of experts

from the Pentagon, including officials from the General

Counsel’s office and the Joint Staff. A recommendation is

made “whether the detainee should be released, trans-

ferred to the custody of a foreign government or continue

to be detained.”” The recommendation is next sent out to

an interagency experts group, including officials of the

Department of Justice, and then is sent up to the Secre-

tary of Defense or his designee for review.” Foreign gov-

ernments may also be asked for further information

concerning their citizens who were captured in the fight-

ing. Even after the completion of this administrative

review, it remains a prime objective throughout interviews

conducted for military intelligence purposes to revisit the

identity of the person, any aliases he may have used (one

internee had 13 aliases), and the nature of his martial

conduct in Afghanistan and elsewhere. The government

has also stated that it will revisit and re-determine status

whenever any doubt may newly arise in individual cases.”

* See Secretary Rumsfeld Remarks to Greater Miami Chamber

of Commerce, Feb. 13, 2004, transcript available at <http//www.

defenselink.mil/transcripts/2004/tr20040213-0445.html>, and Briefing

by Paul Butler, Principal Deputy Assistant Secretary of Defense for

Special Operations and Low Intensity Conflict, and Army Major

General Geoffrey D. Miller, Commander, Joint Task Force Guantanamo,

February 13, 2004, transcript available at <http://www.defenselink mil/

transcripts/2004/tr20040213-0443.html>.

* Butler Briefing, supra.

” Id.

* See Statement by State Department Spokesman Richard

Boucher, U.S. Department of State Press Briefing (Feb. 8, 2002),

available at <http://www.state.gov/r/pa/prs/dpb/2002/7918.htm>.

19

Of course, the screening process is more complicated

than in other wars. Al Qaeda and the Taliban do not issue

identity cards or dog tags, or assign military ranks. There

are no official rosters of membership, or records of their

deployments. Confirming the captive’s status may require

his interrogation (permissible under Geneva III), scrutiny

of intelligence sources (such as statements of other battle-

field detainees, captured documents, or records taken from

al Qaeda safe houses and training camps), and even more

sensitive sources such as the statements of senior al

Qaeda who have begun to cooperate with the United

States and its allies. As Secretary of Defense Rumsfeld

recently noted, “it takes time to check stories, to resolve

inconsistencies, or in some cases even to get the detainee

to provide any useful information to help resolve the

circumstance.””

To supplement the investigative processes and screen-

ing, the Secretary of Defense recently announced that he

will institute an additional set of safeguard procedures,

through administrative review panels.” These panels will

provide an independent review of each detainee at least

annually, to see whether he can appropriately be trans-

ferred or released. The inquiry will determine whether the

detainee “continues to pose a threat to the United States,”

but of course, any new information concerning his identity

or pre-capture conduct would be pertinent to that deter-

mination. The detainee will have the opportunity to

appear in person. His foreign government can submit

information pertinent to the review, including information

on his behalf. Some form of ombudsman, perhaps a lawyer,

will be made available “to help the detainee understand

what the process and procedures are.” The structure of

the independent panel, additional review of the panel’s

* See Rumsfeld Remarks, supra.

” Id.

20

determination, and methods of assuring that any leads

provided by the detainee are appropriately followed-up,

are issues presently under consideration.” It will be

guided by the commitment that the “United States has no

desire to hold enemy combatants any longer than is

absolutely necessary.”

This is a rigorous process, with administrative checks

and balances far exceeding the single military field-

screening used in many prior conflicts. Compare CUMULA-

TIVE DIGEST OF U.S. PRACTICE IN INTERNATIONAL Law,

1981-1988, at 3455 (Marian Nash Leich, ed. 1995) (“De-

termination of precise status is accomplished through

screening by the capturing or detaining unit commander;

in this case, the U.S. Army ground force commander.”).

This careful and continuous process provides the substan-

tive scrutiny contemplated by the Geneva III treaty.

Although the screening has not been called an “Article 5”

proceeding, in the language of Geneva III, it provides a

searching factual inquiry to protect any person who might

have been swept up in a conflict, while protecting the

" One or more amici have recommended to the Department of

Defense that the administrative review boards should be implemented

in a way that permits a hearing, once intelligence collection and

investigation is complete, at intervals that may be shorter than a year —

upon the request of a detainee and the proffer of any new and relevant

information. In addition, these amici have recommended that the

detainee should be given the assistance of a military lawyer or other

counselor where necessary to organize or present any information on

his behalf. It is a practical challenge to structure a review process,

because some information pertinent to a detainee’s alleged membership

in al Qaeda or the Taliban may derive from highly sensitive sources and

methods. The virtue of using a military review board is that it provides

the greatest chance of a workable accommodation between the compet-

ing claims of the detainee to careful fact-checking, and the public to the

protection of intelligence sources needed to thwart future attacks.

* Rumsfeld Remarks, supra.

- 21

public against the careless release of dangerous combat-

ants who will kill more innocent civilians.”

There are several misconceptions about the nature

and role of so-called Article 5 determinations under

Geneva III applicable to conventional wars and lawful

belligerency. First, there is no requirement that every

combatant detainee should have an Article 5

determination. Rather, in accordance with the treaty’s

language, Article 5 determinations are used only where,

after screening, the detaining power has a remaining

“doubt” about a person’s legal status. As British law of

war authority Colonel G.I.A.D. Draper has noted, “the

Detaining Power seems to be the sole arbiter, in good faith,

of whether a doubt occurs as to the status of the individual

concerned.” See G.I.A.D. Draper, supra, at 220-21 n.23.

The same conclusion is reached by Dr. Ameur Zemmali,

a Francophone scholar of Islamic law and modern

humanitarian law who currently serves as a legal advisor

to the International Committee of the Red Cross. Dr.

Zemmali has noted, “(t]he doubt envisaged by [Article 5] is

an element of which appreciation, subjective by nature, is

* Casual release of an al Qaeda combatant may be far more

dangerous than the release of a foot soldier in a traditional war, since al

Qaeda combatants have been schooled in methods of killing scores of

civilians, and have been taught that this is lawful conduct under the

fatwas of bin Laden. Deputy Assistant Secretary of Defense Paul

Butler, who was formerly an Assistant United States Attorney in the

Southern District of New York and a prosecutor in the 1998 Embassy

Bombings trial, has noted that “[e]Jnemy combatants at Guantanamo

include not only rank-and-file jihadists who took up arms against the

United States, but also senior al Qaeda operatives and leaders, and

Taliban leaders.” Butler Briefing, supra. One example, Mr. Butler has

noted, is an “al Qaeda member who was plotting to attack oil tankers in

the Persian Gulf using explosive-laden fishing boats.” Jd.

22

left implicitly at least, to the detaining power. The point of

view of the adverse Party is not considered.”™

Second, Article 5 determinations are focused on legal

status, rather than a reconstruction of battlefield conduct.

Article 5 speaks of “any doubt ... 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 [of Geneva III].” A typical question

concerning legal status would be a deserter from a mili-

tary unit. In contrast, in the case of the war in Afghani-

stan, the disqualification from lawful belligerency turns

upon the overall characteristics of the Taliban and al

Qaeda, not individual conduct. Such an overall determina-

tion is properly made by the Commander-in-Chief, not by

the varying opinions of field grade officers. The President,

as Commander-in-Chief, has found, inter alia, that al

Qaeda and Taliban fighters systematically failed to follow

the laws of war, and hence did not qualify for lawful

combatancy.

Third, Article 5 determinations are not assigned to

civilian courts or international tribunals, but rather are

made by the military. “No representative of the Protecting

Powers appears to have the right to be present,” notes

Colonel Draper, and there is “no definition of a ‘competent

tribunal.’” See G.LA.D. Draper, supra, at 220-21 n.23. A

“properly constituted tribunal” under Article 5 “need not

... be a court,” agrees Canadian authority L.C. Green,

who was a British war crimes prosecutor in World War

* See AMEUR ZEMMALI, COMBATTANTS ET PRISONNIERS DE GUERRE

EN DROIT ISLAMIQUE ET EN DROIT HUMANITAIRE (Editions Pedone, Paris

1996) (Ph.D. thesis, Faculty of Law, University of Geneva) (“Le ‘doute’

envisagé par [Article 5] est un élément dont |’appréciation, subjective

par nature, est laissée implicitement au moins, a la Puissance déten-

trice. Le point de vue de la Partie adverse n’est pas considéré.”). The

translation in the text above is rendered by counsel to amici.

23

Two.” Article 5 panels in U.S. practice typically consist of

three military officers. The proceedings are administrative

in nature, not civil or criminal, and, under established

U.S. practice, the combatant has no right to counsel.

Petitioners Al Odah, et al., offer the remarkable

suggestion that the Administrative Procedure Act forbids

the President from deciding how to implement the law of

war in light of the nature of the conflict, and in particular

suggest that it is “arbitrary and capricious” to supplement

the Department of Defense joint service rules used for

Article 5 determinations in a conventional war,” with

procedures better suited to an unconventional war.”

But this Court’s precedents make clear that the

President is not considered an “agency” regulated by the

APA. See Franklin v. Massachusetts, 505 U.S. 788, 800-01

(1992); Dalton v. Specter, 511 U.S. 462, 470-74 (1994).”

* L.C. Green, supra, at 190. See also Final Record of the Diplo-

matic Conference of Geneva of 1949, Vol. II-A, at p. 563: “In the opinion

of certain Delegations only a regular Court should be authorized to take

a decision in such cases. The majority of the Committee, in spite of its

sympathy with this point of view, was unable however to accept it.” Cf.

Marco SASSOLI AND ANTOINE A. BOUVIER, How Does LAW PROTECT IN

WAR? CASES, DOCUMENTS, AND TEACHING MATERIALS ON CONTEMPORARY

PRACTICE IN INTERNATIONAL HUMANITARIAN Law 783-84 (International

Committee of the Red Cross 1999) (asking students to consider whether

a screening center, such as the Combined Tactical Screening Centers in

Vietnam, would as such “satisfy Art. 5(2) of Convention III”).

“ See Enemy Prisoners of War, Retained Personnel, Civilian

Internees and Other Detainees, Army Regulation 190-8, OPNAVINST

3461.6, AFJI 31-304, and MCO 3461.1, at 1-6.

*” See Fawzi Khalid Abdullah Fahad Al Odah, et al. v. United

States, Nos. 03-334, 03-343 (Brief on the Merits) at pp. 5, 22 (Jan. 14,

2004).

* Petitioners “do not identify which ‘agency’ of the United States

they have in mind.” Al Odah v. United States, 321 F.3d 1134, 1149 (D.C.

Cir. 2003) (Randolph, J., concurring).

24

The capture and internment of enemy prisoners is also the

archetype of “military authority exercised in the field in

time of war,” and thus is expressly excluded by the APA

from judicial review. See 5 U.S.C. § 701(b)(1)(G); see also 5

U.S.C. § 551(1)(G). The rulemaking requirements of the

APA — which petitioners apparently would like to apply

to the implementation of the Geneva Convention and

international customary law — expressly do not apply to

“military or foreign affairs function|[s].” See 5 U.S.C.

§ 553(a)(1).”

Petitioners equally ignore this Court’s settled conclu-

sion in Johnson v. Eisentrager, 339 U.S. 763 (1950), that

the Geneva Conventions are not subject to direct enforce-

ment in the federal courts. As the Court noted, “[t]he

obvious scheme of the Agreement [is] that responsibility

for observance and enforcement of these rights is upon

political and military authorities.” Jd. at 789 n.14.

C. How Long Can Unlawful Combatants Be

Interned?

The Court’s intervention is also sought because some

detainees were captured more than two years ago. But

active hostilities still continue in Afghanistan, with Tali-

ban infiltration in the southeast, and al Qaeda continues

to target Americans and U.S. allies around the world. The

difficulty in stating when this war will end, of course, is

exacerbated because the principal adversary is a non-

state-entity. There is no government that can enter into a

peace agreement or order its soldiers to demobilize. In-

deed, Osama bin Laden has taught al Qaeda recruits that

continuing to wage a violent jihad against Americans,

Christians, Jews, and “apostate” Muslims is a religious

duty.

* There is a parallel exemption for the decisions of “military

commissions.” See 5 U.S.C. § 701(bX1XF) and (G).

25

Nonetheless, the law of armed conflict permits cap-

tured al Qaeda and Taliban members to be held until the

close of active hostilities, compare Geneva III, supra, art.

118, and it would make little sense to require the release

of combatants who openly boast that they will continue to

attack Americans whenever the opportunity arises. As

State Department Legal Adviser William Howard Taft IV

has noted, “All wars last too long. Releasing captured

combatants to return to the fight would make them last

longer.”

Moreover, the periodic administrative reviews of

status, instituted by the United States, will permit the

identification of individuals who are less likely to continue

the fight if released, and as the backbone of the al Qaeda

organization is broken, many more al Qaeda and Taliban

recruits may be willing to rethink their positions.

D. Trial of Unlawful Combatants in Military

Commissions

Claims that the Guantanamo detainees have been

consigned to a legal “black hole” are further undercut by

the President’s order of November 13, 2001, and the

implementing rules of March 2002, providing for the trial

of certain members of al Qaeda in military commissions.

These criminal prosecutions are distinct from the civil

internment of a combatant until the end of a conflict. The

President has a duty, as a commander, to enforce the law

of war, and it is a long-standing practice to try war crimes

in a military commission. This was the venue used for

criminal trial of enemy combatants in World War Two. The

Nuremberg Trials took place in a military tribunal, and

Geneva III Article 84 actually requires that the trials of

“ Taft, supra.

26

traditional prisoners of war must take place in military

tribunals, rather than civilian courts.

Congress has recognized and acknowledged the

President’s power to convene military commissions, in the

course of its revision of the code of military courts-martial

in 1920 (then called the “Articles of War”), in the passage

of the Uniform Code of Military Justice in 1950, and in the

passage of the 1996 War. Crimes Act.” Article 15 of the

1920 Articles of War stated that “[t]he provisions of these

articles conferring jurisdiction upon courts-martial shall

not be construed as depriving military commissions ... of

concurrent jurisdiction in respect of offenders or offenses

that by statute or by the law of war may be triable by such

commissions.” Articles of War, art. 15, in Pub. L. No. 242,

ch. 227, 41 Stat. 787, 790 (1920) (emphasis added). The

military commissions of World War Two were conducted

without any further specific legislative authority from the

Congress, though some observers have been misled on this

point by the use of the phrase “Articles of War” for the

general revision of the military criminal code in 1920.“

The language of Article 15 was carried forward into 10

U.S.C. § 821, as part of the 1950 Uniform Code of Military

Justice, and provides equally strong authority for the

commissions established by President Bush.

“ See generally, Ruth Wedgwood, Al Qaeda, Terrorism, and

Military Commissions, 96 AM. J. INT. L. 328 (2003).

© See Shafiq Rasul et al., v. Bush, et al., No. 03-334 (Brief on the

Merits), at 30-31 (Jan. 14, 2004); Kenneth Roth, The Law of War in the

War on Terror, FOREIGN AFFAIRS 7 (Jan.-Feb. 2004) (“[T]he government

in Quirin was operating under a specific grant of authority from

Congress ....”); Harold Koh, The Case Against Military Commissions,

96 Am. J. INT. L. 337, 340 & n.20 (2002) (“In Quirin, Congress .. . had

specifically authorized the use of military commissions in its Articles of

War.”).

27

The Secretary of Defense has published detailed rules

for the conduct of such trials, with careful procedural

protections, including proof beyond a reasonable doubt,

presumption of innocence, the defendant's right to cross-

examine witnesses, the right to call defense witnesses, the

right to production of exculpatory evidence, the right to

choice of military defense counsel, the right to retain

civilian counsel, and the right of appeal to an independent

appellate panel.” The trials will be open, except on occa-

sions when classified evidence must be presented, and

military defense counsel will be present whenever any

evidence is considered. The appellate panel has independ-

ent authority to reverse and remand a conviction for

serious errors of law in the conduct of the trial.“ Current

appellate panel appointments include a former U.S.

Attorney General, a former Cabinet officer, a state chief

justice, and a former state attorney general.

To be sure, the military tribunals’ rules permit the

consideration of a broader range of evidence than is

permitted in federal jury trials (namely, any evidence that

has “probative value to a reasonable person”), but that is

also the standard for admissibility used by European

courts and the United Nations war crimes tribunals. The

“ The procedural rules for commission trials are published on the

Internet. See Department of Defense Military Commission Order No. 1,

Procedures for Trials by Military Commissions of Certain Non-United

States Citizens in the War against Terrorism, Mar. 21, 2002, available at

<http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf>.

“ In announcing the appellate rules, a senior de’ense department

official reaffirmed that, “(t]he opinions of the review panel, when the

review panel sends a case back down for further proceedings or for

dismissal of charges, those are binding.” See Department of Defense

Briefing, Dec. 30, 2003, available at <http//www defenselink.mil/

transcripts/2003/tr20031230-1081.html>. See also Department of

Defense Military Commission Instruction No. 9, Review of Military

Commission Proceedings, Dec. 26, 2003, available at <http://www.

defenselink mil/news/Jan2004/d20040 108milcominstno9.pdf>.

28

weight of the evidence must still satisfy the demanding

standard of proof beyond a reasonable doubt. With the

publication of carefully-drawn “Elements of Crimes,” and

the designation of a widely-respected Army Major-General

(Retired) as Appointing Authority, preparations for the

beginning of a trial process are complete. The time taken

in framing fair procedural rules will serve well,“ and

several battlefield detainees have been referred for possi-

ble prosecution, with the appointment of defense counsel.

Two prosecutions have now begun.” The vigor of the

defense that can be expected from military defense counsel

before the military commissions is shown by the amicus

brief filed by several of those defense counsel in the

instant case before this Court.

“ See Department of Defense Military Commission Instruction

No. 2, Crimes and Elements for Trials by Military Commission, Apr.

30, 2003, available at <http://www.defenselink.mil/news/May2003/

d20030430milcominstno2.pdf>.

“ See Ruth Wedgwood, Al Qaeda and American Self-Defense,

(Appendix) in SEPTEMBER 11, TERRORIST ATTACKS, AND U.S. FOREIGN

POLICY 176-78 (Demetrios James Caraley, ed., The Academy of Political

Science, 2002) (reprinting Joint Statement of Individual High-Level

Advisors to the Secretary of Defense).

The procedural rules are consistent with the standards for fair trial

set out in Geneva Convention IV, supra, arts. 72-75, and with Protocol I

Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to

the Protection of Victims of International Armed Conflicts, Dec. 12,

1977, 1125 U.N.TS. 3, art. 75 (albeit the United States is not a party to

Protocol 1). It should be noted that military commissions are, in

principle, a venue in which any member of the armed forces can be

tried for war crimes, although the prevailing practice is to use courts-

martials. Cf Geneva III, supra, art. 102.

“ On February 24, 2004, Guantanamo detainees Ali Hamza Ahmed

Sulayman al Bahlul of Yemen and Ibrahim Ahmed Mahmoud a! Qosi of

Sudan were charged with conspiracy to commit war crimes. See Two

Guantanamo Detainees Charged, United States Department of Defense

News Release No. 122-04, Feb. 24, 2004, available at <http,//www.

defenselink mil/releases/2004/nr20040224-0363 html>.

V. Conclusion

The political branches inevitably play a central role in

shaping the content of international law — both in framing

the state practice that aids the evolution of customary

international law, and in the application of treaties in a

world where foreign adversaries may not respect the same

norms. The power of the Presidency to make battlefield

decisions is essential in protecting the United States

against an adaptable foe that has recruited and trained

young men to conduct a violent jihad against innocent

civilians. This power of the Commander-in-Chief includes

the traditional prerogative of restraining captured enemy

forces who would otherwise return to the fight.

As this Court recognized in Eisentrager, the Geneva

Conventions are not subject to direct enforcement in the

federal courts. “[T]he obvious scheme of the Agreement [is]

that responsibility for observance and enforcement of

these rights is upon political and military authorities.” 339

U.S. at 789 n.14. This sound judgment recognizes that the

primary engine of enforcement must remain the reciprocal

interest shared by all states in the humane conduct of war.

After careful consideration, the President concluded that

al Qaeda and the Taliban were unlawful combatants in

their fight to maintain control of Afghanistan, and this

was a reasonable judgment.

The American commitment to the decent treatment of

all persons in its custody remains a centerpiece of our

foreign policy, including in the war against terrorism. The

struggle against terrorism will be won in large part by our

devotion to the ideals of this country’s founding. But we

must also win on the battlefield. Even lawful foreign

enemy combatants are not entitled to use the courts of

their adversary in order to fight the war. It would be an

extraordinary extension of the judicial role for the courts

to create a roving supervisory jurisdiction over the conduct

30

of American foreign policy and military operations around

the globe. The President’s determination to abide by the

principles of Geneva gives no occasion for this Court to

revolutionize the reach of statutory habeas corpus.

For the foregoing reasons, this Court should affirm

the judgment of the Court of Appeals.

Respectfully submitted,

DaviD B. RIVKIN, JR. RUTH WEDGWOOD

Counsel of Record CHARLES FRIED

LEE A. CASEY Max KAMPELMAN

DARIN R. BARTRAM Counsel for Amici Curiae

BAKER & HOSTETLER LLP

1050 Connecticut Avenue, N.W.

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