Amicus Curiae Brief — Al Odah v. United States

FILED =

> » | OCT3 ap

Nos. 03-334, 03-343 — |_OFFICE OF THE CLERK

In the Supreme Court of the Gnited States

SHAFIQ RASUL, ET AL.,

. Petitioners,

GEORGE W. BUSH, ET AL.,

Respondents.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, ET AL..,

: Petitioners,

UNITED STATES, ET AL.,

Respondents.

On Petition for a 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

TABLE OF CONTENTS

Page

INTEREST OF THE AMICICURIAE ............ I

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

a Os sare sueentabesa 3

I. The United States Has Played A Leading Role

In Developing International Standards To

Safeguard The Rights Of Captured Prisoners. . . . 3

Il. The Geneva Conventions And U.S. Military

Regulations Implementing The Conventions

Require That A Competent Tribunal Determine

The Status Of Captured Prisoners. .......... 6

III. These Cases Raise Issues Of Extraordinary

EE 64 5-06 A MOH. 660k otha 6 Oe see 88 8

A. The Judicial Branch Has A Duty To Act

As A Check On The Executive Branch,

a Os bee oe 6d 8

B. Failure To Provide Any Judicial Review

Of The Government’s Actions Could Have

Grave Consequences For U.S. Military

Forces Captured In Future Conflicts ..... ll

EE bb nec 0e RROD EK HOOD eee ene 20

TABLE OF AUTHORITIES

Page

Cases:

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

'() |) \ PP 10

Chandler v. Miller, 520 U.S. 305 (1997) .......... 11

Estep v. United States, 327 U.S. 114 (1946) ........ 11

Ex parte Milligan, 71 U.S. 2 (1866) ........ 9, 10, 11

Ex parte Quirin, 317 U.S. 1 (1942)... 2... ee ee ees 10

Johnson v. Eisentrager, 339 U.S. 763 (1950) . . 15, 17, 18

Korematsu v. United States, 323 U.S. 214 (1944) .. 9, 10

Olmstead v. United States, 277 U.S. 438 (1928) .. 11, 18

Reid v. Covert, 354 U.S. 1 (1957) ..........545. 10

Shaughnessy v. United States ex rel. Mezei,

34S U.S. BOG CIDER) ow wc cc cr cccesseweneeen 9

Sterling v. Constantin, 287 U.S. 378 (1932) ........ 10

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

1. See 12

iil

Treaties and Regulations:

Geneva Convention Relative to the Treatment of Prisoners

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

United States Air Force Regulation AFJI 31-304 .... 7,8

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) .......... 7

United States Marine Corps Regulation MCO 3461.1 .. . 7

United States Navy Regulation OPNAVINST 3461.6 ... 7

Miscellaneous:

APRICA NewS, Jem. 3, 2003... eee 13

Steven W. Becker, “Mirror, Mirror on the

Wall . . .” : Assessing the Aftermath of

September 11th, 37 VaL. U. L. REV. 563 (2003)... 16

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

statement (available at http://usembassy .

State.gov/monrovia/wwwh112102.html) ........ 13

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

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

EE 14

Max Boot, THE SAVAGE WARS OF PEACE (2002) ..... 12

iv

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

163 Mic. L. Rev. 180(2000) ............... 16

Jess Bravin et al., Status of Guantanamo Bay

Detainees is Focus of Bush Security Team's

Meeting, WALL ST. J., Jan. 28, 2002, atAl6 ..... 17

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.himl) ......... 17

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

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

Contemporary Practice of the United States

Relating to International Law, 62 AM. J.

yk Or tT se 4

Department of Defense Directive No. 5100.77,

es eee Pe 8

64 Dep’T OF STATE BULL. 10 (Jan. 4, 1971) ........ 12

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

Convention Relative to the Treatment of

Prisoners of War, 5 MiAMiL.Q. 40 (1950) ... 3, 4,5

Joan Fitzpatrick, Sovereignty, Territoriality, and the

Rule of Law, 25 HASTINGS INT'L & COMP.

SS S | Perrier 16

Vv

Benjamin Franklin, AN HISTORICAL REVIEW OF

THE CONSTITUTION AND GOVERNMENT

OF PENNSYLVANIA (1759) (Arno Press

SSE &-6 oS G0n6bcOb da eehOSeECRK ES 10

Geneva Conventions for the Protection of War

Victims: Hearing Before the Senate Committee

on Foreign Relations, 84th Cong., 1st Sess.

DEED Sb0t0 oaks bat secbecn cee dtatees 5,6

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

Post, Nov. 25, 2002, at AIS ............... 14

Judge Advocate General’s School, OPERATIONAL

LAW HANDBOOK (O’Brien, ed. 2003) ......... 8,9

Harold Hongju Koh, 7he Case Against Military

Commissions, 96 AM. J. INT'L L. 337 (2002) ..... 17

Howard S. Levie, PRISONERS OF WAR IN

INTERNATIONAL ARMED CONFLICT (1977) ...... 3,4

Magna Carta, chapter 30, in 3 THE COMPLETE

STATUTES OF ENGLAND 27 (Halsbury’s

SP PED wo duedebees es cannes 15

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 6 ohb6s 6000604440000 Ceo sk kKed eee 13

Mary McGrory, Bungling on the 9-11 Prisoners,

WASH. Post, Feb. 10, 2002, a1B7............ 17

vi

John Mintz & Mike Allen, Bush Shifts Position on

Detainees, WASH. PosT, Feb. 8, 2002, atAl .....

Manooher Mofidi & Amy E. Eckert, “Unlawful

Combatants” or “Prisoners of War”: The

Law and Politics of Labels, 36 CORNELL INT'L

Rt SD coc eenttaeeseeseesnavevecs

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

LAW AT WAR: VIETNAM 1964-1973 (Dep t

—, | |. ee re ee 12,

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

Africa: Inspiring Intolerance, INT'L HERALD

= FF.) FF | Pree

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 Viet-

nam. 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 37.2 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 mere 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 thai 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.

This principle 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.

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 CONPLICT 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. /d. at 7. The

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

formal codification of rules governing the treatment to be

4

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.” /d. at 43.

The Geneva Convention of 1929 played a significant role

during Worf 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

to the observance of the Geneva Prisoners of War

Convention.’” Levie, PRISONERS OF WAR, ai 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 Il

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 hot apply to

French prisoners because France ceased to be a belligerent

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

5

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.” /bid. 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 the Senate Committee on Foreign

Relations, 84th Cong., Ist 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

Relative to the Treatment of Prisoners of War, commonly

known as the “Third Geneva Convention.” 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

6

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 ke 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

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.

Article 5 of the Third Geneva Convention of 1949

provides:

7

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:

(a) In accordance with Article 5, GPW, if any doubt

arises as to whether a person, having committed a

belligerent act and been taken into custody by the 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.

? 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)

(b) A competent tribunal shall determine the status of

any person not appearing to be entitled to prisoner of

war status who has committed a belligerent act or has

engaged in hostile activities in aid of enemy armed

forces, and who asserts that he or she is entitled to

treatment as a prisoner of war, or concerning whom

any doubt of a like nature exists.

Id. § 1-6.

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, 4 5.3.1 (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.

Ill. These Cases Raise Issues Of Extraordinary

Significance.

A. 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 foreigners captured by American forces may

be imprisoned indefinitely, without charges, based simply on

the government’s say-so, and without allowing the foreigners

access to any court or “competent tribunal” to determine their

Status.

9

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

role; the Executive Branch’s indefinite imprisonment of—

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). “[DJifferences 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

stated. But that does not justify indefinite confinement without

any type of hearing or judicial review. Indeed, in previous

conflicts, the United States conducted Article 5 hearings to

determine whether captured persons should be accorded POW

status under the Geneva Conventions. OPERATIONAL LAW

HANDBOOK at 22 n.2 (discussing hearings conducted during

the first Gulf War); Contemporary Practice of the United

10

States Relating to International Law, 62 AM. J.INT’L. L. 754,

768-775 (1968) (hearings during the Vietnam war).

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 checks 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

H ISTORICAL 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).

Indeed, 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

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 Cranmch) 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 beneficient. * * * 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, 7! 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.” /bid. 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).

B. Failure To Provide Any Judicial Review Of The

Government’s Actions Could Have Grave

Consequences For U.S. Military Forces Captured

In Future Conflicts.

There is another reason why it is essential that the

government follow American military regulations that

incorporate the “competent tribunal” guarantee of the Geneva

Conventions: American failure to provide foreign prisoners

with the protections of the Geneva Conventions may well

12

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, Anferican 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.

Indeed, 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.

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

13

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

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

> 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.

14

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/

wwwhsp010203 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 * * *

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

— indefinite confinement without any type of review by a court

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

15

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 and the citizens of foreign lands 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.”

Johnson v. Eisentrager, 339 U.S. 763, 783 n.11 (1950)

(quoting Magna Carta, chapter 30, in 3 THE COMPLETE

STATUTES OF ENGLAND 27 (Halsbury’s Laws of England

1929)).

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 p.

5, 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

16

of the Geneva Convention, and treatment 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].

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 undermining

its own authority to demand implementation of international

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

...” ¢ Assessing the Aftermath of September | 1th, 37 VAL. U.

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

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

17

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’LL. 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

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

‘ 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 9-11 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 Al6.

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

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 whether foreigners captured abroad by

19

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.

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. Given the importance of the issues

and the potentially grave practical consequences of the D.C.

Circuit’s decision, this Court’s review is undoubtedly

warranted.

20

CONCLUSION

The petitions for a writ of certiorari should be granted.

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

OCTOBER 2003