Amicus Curiae Brief — Al Odah v. United States

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al 27) | MAR3- af |

Nos. 03-334. 03-343 |

IN THE

Supreme Court of the United States

SHAFIQ RASUL, et al.,

Petitioners,

v.

GEORGE W. BUSH, et ai.,

Respondents.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al.,

Petitioners,

v.

UNITED STATES OF AMERICA, et ai.,

Respondents.

On Writs oF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DistriICT OF COLUMBIA CIRCUIT

BRIEF AMICI CURIAE OF FORMER ATTORNEYS

GENERAL OF THE UNITED STATES, FORMER DIRECTOR

OF THE CIA, RETIRED MILITARY OFFICERS AND

MEDAL OF HONOR WINNERS AND FORMER ASSISTANT

ATTORN’ Y GENERAL IN SUPPORT OF RESPONDENTS

ANDREW G. McBriDE

Counsel of Record

KATHRYN L. COMERFORD

WILey Rein & Fietpinc LLP

1776 K Street NW

Washington, DC 20006

(202) 719-7000

Attorneys for Amici Curiae

186112

__—_—is

| BEST AVAILABLE COPY

TABLE OF CONTENTS

Table of Cited Authorities .....................

I

Introduction and Summary of Argument .........

Argument ........ Lee h EEC ewe ee Ae e eee cnae ts

1.

II.

IV.

The Judgments at Issue Here Are Textually

Committed to the President as Commander-in

Chief and Quintessentially Executive in

DE sciaducenhseedseteeenteskeeurs

Constitutional Rights Applicable to Criminal

Prosecutions Do Not Apply to the Use of

Military Power Against Foreign Nationals.

There Are No Judicially Manageable Standards

To Apply to Military Judgments Made During

IIS 6c waedccecscessens

The Writ of Habeas Corpus Has Never Been

Extended To Aid Foreign Persons Found on

the Battlefield and Detained as Enemy

ED 666 b6NebEs ones een eeRReeEss

Judicial Review in this Context Would Cause

Grave Harm to Both the Military and the

i, dices ndetareeuaenese

Ee Pee ee Tanta Ee eS

Page

1]

15

21

26

30

il

TABLE OF CITEDAUTHORITIES

Page

Cases: 8

Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990).... 18

Atlee v. Laird, 347 F. Supp. 689 (E.D. Pa. 1972) .. 18-19

Baker v. Carr, 369 U.S. 186 (1962) ............. 6

Chappell v. Wallace, 462 U.S. 296 (1983) ....... 28

Chicago & Southern Air Lines v. Waterman S.S. Corp.,

333 U.S. 163 (IDGE) ....+s0ceen eee 10, 20

Crockett v. Reagan, 720 F.2d 1355 (D.C. Cir. 1983)

wT ..”!.!UUUttwt~—OS 18

DaCosta v. Laird, 471 F.2d 1146 (2d Cir. 1973) ... 7

Dep t of the Navy v. Egan, 484 U.S. 518 (1988) ... 20

Furly v. Newnham, 2 Doug. K.B. 419 (1780) ..... 22

Gerstein v. Pugh, 420 U.S. 103 (1975) .......... 11

Gilligan v. Morgan, 413 U.S. 1 (1973) ....... 5-6, 16, 18

Goldwater v. Carter, 444 U.S. 996 (1979) ....... ll

Haig v. Agee, 453 U.S. 280 (1981) ............. 3

Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1874) .. 7

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .. 3

il

Cited Authorities

Page

Harris Trust & Savings Bank v. Salomon Smith

Barney, Inc., 530 U.S. 238 (2000) ............ 6

Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973)

Tee eeeeeedcescoccccccccces 18, 19, 20

Industria Panificadora, S.A. v. United States,

763 F. Supp. 1154 (D.D.C. 1991) ............ 18

Johnson v. Eisentrager, 339 U.S. 763 (1950) ..... passim

Juragua Iron Co. v. United States, 212 U.S. 297

DUPE GE Each esébeceeecccccesccecs 16

Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987)

eters wacseetecesecccccccces 18

Ludecke v. Watkins, 335 U.S. 160 (1948) ........ 21, 26

Luftig v. McNamara, 373 F.2d 664 (D.C. Cir.) .... 18

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

TEs ene eeeccccceseccccccces 3

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) .... 23

Minotto v. Bradley, 252 F. 600 (N.D. Ill. 1918) ... 8

Moxon v. The Fanny, 17 F. Cas. (2 Pet. Adm.)

eek See wedeesecccese$s 9, 21-22

New Orleans v. Steamship Co., 87 U.S. (20 Wall.)

ee ece ede eeneeseccccecccescess 9

iv

Cited Authorities

Page

The Prize Cases, 67 U.S. (2 Black) 635 (1863) ... 9,10

Ex parte Quirin, 317 U.S. 1 (1942) ........ 7, 14, 24, 25

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

Pe onsen ciendéiendeesestneeeee 22

Rex v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551

SE CEE adiudcetédscdsebedes dee 22

Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir.

SD nacccudaeviadaudedécasceerieeee 18

Schaffenius v. Goldberg, | K.B. 284 (1916) ...... 21

Sylvester s Case, 7 Mod. 150 (K.B. 1703) ........ 22

Three Spanish Sailors, 2 Black W. 1324, 96 Eng. Rep.

FR SUPE Vuéuckcenecdeseasasauesaken 22

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

900nesdensusethenawaraeneaeweseneaeee 20

United States v. Caltex (Phillipines), Inc., 344 U.S.

SEED éuéadcsddetacunccaneaneasneeene 16

United States v. Curtiss-Wright Export Corp.,

ee hs SED 6 06 bb04ebbnédeunsseceas 3, 16

United States v. Salerno, 481 U.S. 739 (1987) .... 11

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

SUED bccdecectscccsoncecueseeeenacenecees passim

Cited Authorities

Page

In re Yamashita, 327 U.S. 1 (1946) ............ 9, 24, 25

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

PEED. ovbeeneboucucasteccscancansbens 11

Constitution and Statutes:

ee EU OU ENO Acécddtvoucucetsncadscens 23

es ts ON ee odceccccséveevesscecesess 6

ee I A LIED gc cucddsccdesnuiesenses 8

ee ec aneenens 8, 13, 14, 16

ee GR, GIS GH cccccccccnsccccesst 8, 12, 14, 16

ek GS. GES GO cc cccccccccsecoeseccesi 8, 13, 16

Authorization for Use of Military Force, Pub. L.

No. 107-40, 115 Stat. 224 (2001) ............. 5

Bob Stump National Defense Authorization Act for

Fiscal Year 2003, Pub. L. No. 107-314, 116 Stat.

EEE Kehdbucesedecuéerceeenenscesds ll

Emergency Supplemental Appropriations Act for

Defense and for the Reconstruction of Iraq and

Afghanistan, 2004, Pub. L. No. 108-106, 117 Stat.

SET -cecececcdaccnecncasesesenes he 11

PU UT OUND RO eebseceddeedcdecéaccesesaeas 20 .

OB a GA. De OPED. cccccccccecccsssccees 29

vi

Cited Authorities

Page

Miscellaneous:

THE FepeRAList No. 74 (Alexander Hamilton) (Clinton

A ee ne aneeaeaneus 7

9 Halsbury's Laws of England (2d ed. 1933) ..... 21, 22

Secretary Rumsfeld Remarks to Greater Miami

Chamber of Commerce (Feb. 13, 2004) <http://

www.defenselink.mil/transcripts/2004/

tr20040213-0445.html> .................5.. 15

vVWV—_— Ss ee

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l

INTEREST OF AMICI CURIAE!

Amici the Honorable William P. Barr, the Honorable Edwin

Meese III, and the Honorable Richard Thornburgh are former

Attorneys General of the United States.

Amicus the Honorable R. James Woolsey is former Director

of Central Intelligence, former Ambassador to the Negotiation

on the Conventional Armed Forces in Europe, and former Under

Secretary of the Navy.

Amicus the Honorable Charles J. Cooper is former Assistant

Attorney General for the Office of Legal Counsel.

Amicus General P.X. Kelley, USMC (Ret.) was

Commandant of the Marine Corps and a Member of the Joint

Chiefs of Staff from 1983 to 1987. He served two command

tours in the Republic of Viet Nam.

Amicus Lieutenant General Nicolas B. Kehoe, USAF (Ret.)

served 34 years in the Air Force, including high-level

international security positions within our military and the North

Atlantic Treaty Organization. He began his military career as a

fighter pilot and flight instructor.

Amicus Major General Patrick H. Brady, USA (Ret.) served

over 34 years in the Army, including two tours in the Republic

of Viet Nam, during which he flew over 2000 combat missions,

rescuing over 5000 wounded and earning the Medal of Honor,

the Distinguished Service Cross, six Distinguished Flying

Crosses, and the Purple Heart.

Amicus Major General James E. Livingston, USMC (Ret.)

served over 33 years in the Marine Corps, including three tours

in the Republic of Viet Nam. He has received the Medal of

1. Pursuant to Supreme Court Rule 37.6, amici curiae state that

counsel for amici authored this brief in its entirety. No person or entity

other than amici curiae and their counsel made any monetary contribution

to the preparation of this brief. Letters of consent to the filing of this

brief from all parties to these consolidated cases have been filed with

the Clerk of the Court.

2

Honor, the Distinguished Service Medal, Silver Star, Bronze

Star, and the Purple Heart.

Amicus Colonel Jack Jacobs, USA (Ret.) served 21 years

in the Army, including two tours in the Republic of Viet Nam.

He has received the Medal of Honor, two Silver Stars, and three

Bronze Stars.

Amici share the belief that judgments regarding the use of

military power during an ongoing armed conflict are

constitutionally committed to the President as Commander-in-

Chief. Amici believe that the imposition of procedural and

substantive constraints upon that power, akin to those that exist

in the context of domestic criminal or civil proceedings, is both

constitutionally unjustified and unwise. Such a result would

embroil the federal courts in military, strategic, and political

judgments, disrupt the unitary control and accountability the

Framers provided for in the designation of one Commander-in-

Chief, and place unprecedented and dangerous restrictions on

our soldiers in the field of battle. Amici respectfully submit that

the decision to detain a foreign national captured on the field of

battle in order to prevent harm to our troops, to our military

mission, or to our homeland, is a political question that cannot

be reviewed by the federal courts.

INTRODUCTION AND SUMMARY OF ARGUMENT

Both sets of petitioners in these cases attempt to frame the

question before the Court as whether there exists any exception

to a presumption in favor of judicial review of executive action.

They would have the Court assume that both the writ of habeas

corpus and the underlying constitutional guarantees it is designed

to enforce apply to them, and then search for a statutory

withdrawal or abridgment of that jurisdiction.’ The Rasul

2. See, e.g., Petitioners’ Brief on the Merits at 14, Rasul v. Bush,

No. 03-334 (U.S. Jan. 22, 2004) (“Rasul Br.”) (“[T]he present case

involves no remotely perceptible attempt by Congress to abridge

jurisdiction.” (emphasis added)); id. at 29-30 (noting the “absence of

any Congressional indication that federal courts should be stripped of

(Cont'd)

3

petitioners even argue that a finding of a lack of habeas

jurisdiction in these cases would present serious constitutional

questions under the Suspension Clause.’

Petitioners put the cart before the horse. Judicial review

has never been held to be coextensive with every power that

can be exercised by the political branches. Indeed, the very case

that instituted judicial review also recognized that some

judgments “are by the constitution and laws, submitted to the

executive [and] can never be made in this court.” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 170 (1803). In the context of

the political branches’ conduct of our external relations, and in

particular in the exercise of the war powers, it is more accurate

to say that there is a strong presumption against judicial review.

“(T]he conduct of foreign relations [and] the war power are so

exclusively entrusted to the political branches of government

as to be largely immune from judicial inquiry or interference.”

Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952);

see also, e.g., Haig v. Agee, 453 U.S. 280, 292 (1981) (“Matters

intimately related to foreign policy and national security are

rarely proper subjects for judicial intervention.”).

The fundamental error that runs through all of petitioners’

arguments is the attempt to conflate the Commander-in-Chief’s

exercise of military power against an armed foreign enemy with

the exercise of domestic law enforcement authority. These are

two very distinct constitutional realms and the differences

between them bear directly on the availability of judicial review.

See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S.

304, 315-16 (1936). In the domestic realm of law enforcement,

the government’s role is disciplinary—sanctioning an errant

member of society for transgressing the internal rules of the

body politic. The Framers recognized that in the name of

(Cont'd)

their habeas jurisdiction”); Brief for Petitioners at 6-9, 8-23, Al Odah v.

United States, No. 03-343 (U.S. Jan. 14, 2004) (“Al Odah Br.”’) (same).

3. See Rasul Br. at 21-23.

4

maintaining domestic tranquility an overzealous government

could oppress the very body politic it is meant to protect.

Thus our Constitution makes the fundamental decision to

sacrifice efficiency in the realm of law enforcement by

guaranteeing that no punishment can be meted out in the absence

of virtual certainty of individual guilt. Both the original

Constitution and the Bill of Rights contain a number of specific

constraints on the Executive’s law enforcement powers, many

of which expressly provide for a judicial role as a neutral arbiter

or “check” on executive power. In this realm, the Executive’s

subjective judgments are irrelevant; it must gather and present

objective evidence of guilt satisfying specific constitutional

standards at each stage of a criminal proceeding. The underlying

premise in this realm is that it is better for society to suffer the

cost of the guilty going free than mistakenly to deprive an

innocent person of life or liberty.

The situation is entirely different in armed conflict where

the entire nation faces an external threat. In armed conflict,

the body politic is not using its domestic disciplinary powers to

sanction an errant member, rather it is exercising its national

defense powers to neutralize the external threat and preserve

the very foundation of all our civil liberties. Here the Constitution

is not concermed with handicapping the government to preserve

other values. Rather it is designed to maximize the government’s

efficiency to achieve victory—even at the cost of “collateral

damage” that would be unacceptable in the domestic realm.

For this reason, the Constitution places exclusive authonty

to command military operations in the unitary Executive. In

this realm, the President and his military subordinates must be

free to act upon their subjective judgments as to where to attack,

what level of force to apply, and who poses a danger to the

success of the military mission. In this realm, the ideas that the

President may take coercive action against persons or property

only when he possesses a certain quantum of individualized

evidence or that the judiciary should act as a “check” on his

judgment as to the proper military course are absurd. See United

- ~— ~—

5

States v. Verdugo-Urquidez, 494 U.S. 259, 273-75 (1990).

They would assign to our Framers an unspoken intent to place

the United States at a distinct and unprecedented disadvantage

in military conflict. See Johnson v. Eisentrager, 339 U.S. 763,

779 (1950).

In these cases, there is no doubt that the President is

exercising his military powers as Commander-in-Chief.

The United States has been confronted by a series of unprovoked

attacks on military and civilian targets, culminating in the

devastating attacks of September 11, 2001. It is well settled

that even in the absence of congressional action, Article II fully

empowers, indeed obligates, the President to respond with

appropriate force to meet and defeat such threats. Here,

in addition, Congress specifically authorized the President to

use military force against “those nations, organizations, or

persons he determines planned, authorized, committed, or aided

the terrorist attacks that occurred on September 11, 2001 ...

in order to prevent any future acts of international terrorism

against the United States by such nations, organizations or

persons.”’ Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)

(emphasis added). Thus, exercising these combined powers

under the Constitution, the President launched military action

against al Qaida and the Taliban regime in Afghanistan.

Petitioners in these cases were captured by United States

or allied military forces in the context of active military operations

on the field of battle. They are all foreign nationals who have alleged

no connection to the United States other than their capture and

detention by our military forces. They are held not as punishment

or a prelude to civilian criminal prosecution. Rather, after careful

review through the military chain of command, while hostilities

remain ongoing, the Executive Branch has made the judgment

that their freedom or release would pose an unacceptable risk

to our continuing military efforts.

Amici respectfully submit that the claims of these petitioners

are beyond the jurisdiction of this or any federal court because

they raise political questions. See, e.g., Gilligan v. Morgan,

6

413 U.S. 1, 8-9 (1973); Baker v. Carr, 369 U.S. 186, 216-17

(1962). The judgments at issue here are textually committed by

the Constitution to the President as Commander-in-Chief and

are quintessentially executive in nature. Because none of the

constitutional rights applicable in the criminal context extends

to foreign nationals captured on the field of battle, there are no

judicially discoverable standards to apply. Nor can the President’s

military and political judgments regarding the conduct of a live

conflict be reduced to any judicially manageable test or set of

factors. The wnt of habeas corpus has never been available to

foreign nationals held as enemy combatants and its expansion here

would procuce the extraordinary consequence of setting the

judiciary against the will of both political branches during

ongoing hostilities. Finally, the imposition of judicially created

standards or judicial review would fundamentally alter the

combat mission of our troops from suppression of the enemy to

the collection of evidence. It would cause lasting harm to our

military’s effectiveness and our ability to gather intelligence.

For all these reasons, this Court should find that petitioners’ claims

are nonjusticiable and affirm the judgment below on that ground.‘

ARGUMENT

I. The Judgments at Issue Here Are Textually Committed

to the President as Commander-in Chief and

Quintessentially Executive in Nature.

The Constitution designates the President “Commander in

Chief of the Army and Navy of the United States.” U.S. Const.

art. II, § 2. Once hostilities have begun the President is solely

4. Amici note that the United States argued that petitioners’ actions

were barred by the political question doctrine in the courts below and in

its Opposition to certiorari in this Court. Brief for Appellees at 32-34 &

n.12, Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003) (Nos. 02-

5251, et al.); Brief for Respondents in Opposition at 20 n.8, Rasul v.

United States, Nos. 03-334 & 03-343 (U.S. Oct. 3, 2003). The political

question doctrine thus provides an alternative ground upon which this

Court can affirm the judgment below. See, e.g., Harris Trust & Savings

Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 245 n.2 (2000).

agp ma

7

responsible for determining the methods of waging war. At the

very core of the President’s power as “Commander-in-Chief”

is the exclusive authority to direct how, and against whom,

military power is to be applied to achieve the military and

political objectives of the campaign.°

The Framers made a conscious decision to place all

authority regarding the actual conduct of armed conflict in the

hands of the unitary Executive. As Alexander Hamilton noted

in The Federalist No. 74, even those few state governments that

entrusted the executive power to a multimember council,

nonetheless placed the power to wield military power in the

hands of a single person. He went on to say:

Of all the cares or concerns of government, the

direction of war most peculiarly demands those

qualities which distinguish the exercise of power by

a single hand. The direction of war implies the

direction of the common strength; and the power of

directing and employing the common strength forms

a usual and essential part in the definition of the

executive authority.

THE FEDERALIST No. 74, at 447 (Clinton Rossiter ed., 1961).

Notably absent from the constitutional clauses dealing with

war powers is any mention of the courts. The Constitution’s

failure to confer on the judiciary any responsibility in the area

of military operations contrasts sharply with the provisions

applicable to criminal proceedings, where courts are afforded a

5. See, e.g., Ex parte Quirin, 317 U.S. 1, 26 (1942) (recognizing

that the Constitution “invests the President as Commander in Chief with

the power to wage war which Congress has declared”); Hamilton v.

Dillin, 88 U.S. (21 Wall.) 73, 87 (1874) (emphasizing that the President

“is constitutionally invested with the entire charge of hostile operations”),

see also DaCosta v. Laird, 471 F.2d 1146, 1154 (2d Cir. 1973) (affirming

that the Constitution contains a “specific textual commitment of decision-

making responsibility in the area of military operations in a theatre of

war to the President, in his capacity as Commander in Chief”).

8

significant—indeed the primary—tole in preserving individual

liberties against legislative and executive overreaching. The

Constitution contemplates, for example, that the judiciary will

try criminal cases involving treason against the United States,

U.S. Const. art. III, § 3; that courts will oversee the issuance of

search warrants, id. amend. IV; that grand juries will issue

criminal indictments, id. amend. V; and that courts will afford

criminal defendants “a speedy and public trial,” id. amend. VI.

This interposition of judicial power between the Executive’s

law enforcement authority and members of the body politic

stands in contrast to the complete absence of any judicial role

in the exercise of military powers. Indeed, the idea that the

federal judiciary should protect foreign nationals in the field of

battle against the exercise of the military power of the United

States is, as this Court noted in Eisentrager, an exceedingly

novel one. 339 U.S. at 784. The concept of the judiciary as a

“check” on an overzealous Executive in the context of domestic

civil liberties makes sense. But such a “check” in the context of

the exercise of the war powers against foreign dangers makes

no sense at all. It would override the Framers’ choice of unitary

control and efficiency and place the judiciary in the position of

according constitutional protections, not to members of the body

politic, but to those who aim to destroy both the body politic

and those very protections. Jd. at 779; Minotto v. Bradley, 252

F. 600, 602 (N.D. Ill. 1918) (noting that the courts are not neutral

in war but are allied with the sovereign against its enemies).

The lack of a judicial role in this area has been recognized

since the earliest days of the Republic. In 1793, a federal district

court declined to pass on a libel in admiralty because the case

involved an offense to the territorial sovereignty of the United

States by warring factions. The court reasoned that the response

to this dispute was committed to the political branches and

beyond the judicial power:

Their power is confined to matters of internal police;

externally they have no power: they have none of

i en

9

the powers of peace or war. They have no nght to

command the forces of the country; and these are

the means after negociation fails, by which sovereigns

decide their disputes. The courts of England, though

they decide freely on all matters of internal police,

will not meddle with these rights of the sovereign.

They will not even grant a habeas corpus in the case

of a prisoner of war, because the decision on this

question is in another place, being part of the rights

of sovereignty. Although our judiciary is somewhat

differently arranged, I see not, in this respect, that

they should not be equally cautious.

Moxon v. The Fanny, 17 F. Cas. (2 Pet. Adm.) 942, 947 (D. Pa.

1793).

By its very nature, the designation “Commander-in-Chief”

recognizes no superior authority in the chain of military

command. In armed conflict, that grant must include plenary

authority to direct military force against persons or property the

commander perceives as a threat to the safety of our forces, the

safety of our homeland, or the ultimate military and political

objectives of the war. The President may act not only to destroy

hostile forces, but to deny them military advantage or to secure

advantage for our forces. See, e.g., The Prize Cases, 67 U.S.

(2 Black) 635, 670 (1863). Thus he may expand the geographic

theatre of war, destroy civilian property that could aid the enemy

or endanger our forces, seize useful sources of intelligence

information, and detain persons found in the field of battle he

deems a threat to the success of the military mission. See, e.g.,

New Orleans v. Steamship Co., 87 U.S. (20 Wall.) 387, 394

(1874) (recognizing the military’s authority in time of war to

“do anything necessary to strengthen itself and weaken the

enemy’’). The President’s power to wage war “is not limited

to victories in the field, but carries with it the inherent power

to guard against the immediate renewal of the conflict.”

In re Yamashita, 327 U.S. 1, 12 (1946).

10

At the heart of any of these military decisions is the

judgment of what constitutes a threat or potential threat and

what level of coercive force should be employed to deal with

these dangers. See The Prize Cases, 67 U.S. at 679 (recognizing

that the President “must determine what degree of force the

crisis demands”). In each case, the President, with the advice of

his military commanders, must make prudential judgments based

upon an assessment of whether a risk is presented. Even in cases

where there is substantial uncertainty whether particular

individuals pose a danger, the President must make a judgment

whether prudence nevertheless dictates treating such persons

as hostile in order to avoid an unacceptable risk to our military

objectives.

By their nature, these military judgments must rest upon a

broad range of information, opinion, prediction, and even

surmise. The President’s assessment may include reports from

his military and diplomatic advisors, field commanders,

intelligence sources, or the opinions of allied nations. He must

decide what weight to give each of these sources. He must

evaluate risks in light of the present state of the conflict and

the overall military and political objectives of the campaign.

The “very nature of executive decisions” in this area “‘is political,

not judicial.” Chicago & Southern Air Lines v. Waterman S.S.

Corp., 333 U.S. 103, 111 (1948).

Both sets of petitioners attempt to downplay any intrusion

on the Executive’s military powers by emphasizing that it has

now been more than two years since their capture and that they

are held “in a place far from the battlefield.” Al Odah Br. at 12;

Rasul Br. at 9. The Court should not be fooled. Neither their

present location nor the fact that they have been held for two

years changes the fact that petitioners seek judicial scrutiny of

the basis for their detention, which inevitably involves the

re-examination of decisions made on the battlefield itself during

active hostilities. It also entails second-guessing the Executive's

ll

judgment that their release today would pose an unacceptable

risk in what is an ongoing conflict.°

Il. Constitutional Rights Applicable to Criminal

Prosecutions Do Not Apply to the Use of Military Power

Against Foreign Nationals.

Throughout their briefs, petitioners use the language of the

criminal law and rely upon principles developed in the context

of criminal prosecution. Thus, petitioners argue that they are

detained, “without charges, trial, access to counsel or the courts

or process of any kind.” Rasul Br. at 9. They claim they are

“innocent of any wrongdoing,” id., and seek to require the

Executive to establish an individualized factual predicate for

their detention, as is required for pre-trial detainees. Al Odah

Br. at 14n.14.

They alternatively invoke the protections of the Fourth,

Fifth, and Sixth Amendments. See, e.g., Rasul Br. at 2 (mght of

grand jury indictment and nght to counsel); id. at 17 n.18

(Fourth Amendment nights regarding seizure of the person (citing

Gerstein v. Pugh, 420 U.S. 103 (1975)), and due process

protections afforded to criminal defendants subject to pretrial

detention (citing United States v. Salerno, 481 U.S. 739 (1987))).

6. Petitioners are wrong when they suggest that this 1s a case where

the President's actions are contrary to congressional will and that

therefore the President's power is “at its lowest ebb.” Rasul Br. at 14-15

& n.12; Al Odah Br. at 25 (both citing Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)). In fact the

opposite is true. In addition to the Joint Resolution authorizing the use

of military force, Congress has continued to appropriate monies for the

war effort, see, e.g., Pub. L. No. 108-106, 117 Stat. 1209 (2003), as well

as funds to construct new military facilities at Guantanamo Bay Naval

Base. See, e.g., Pub. L. No. 107-314, § 2201(b), 116 Stat. 2458, 2687

(2002). Thus, this is a case where the President’s “authority 1s at its

maximum,” Youngstown, 343 U.S. at 635-37 (Jackson, J., concurring),

and if “Congress chooses not to confront the President, it is not

(the courts’] task to do so.” Goldwater v. Carter, 444 U.S. 996, 998

(1979) (Powell, J., concurring).

12

The Al Odah petitioners would have this Court find rights to

counsel, visitation rights, and “access to an impartial tribunal

to review whether any basis exists for their continued

imprisonment,” Al Odah Br. at 4-8, in the Due Process Clause

of the Fifth Amendment.

In laying claim to these rights, petitioners ignore two critical

legal principles. First, petitioners are not being detained pursuant

to the Executive’s domestic authority to punish them for any

past violations of the criminal law. Their detention as enemy

combatants is a tool of war, utilized by the Commander-in-Chief

and his military subordinates to advance an ongoing military

operation by preventing petitioners from rejoining the conflict

or otherwise undermining our military and strategic goals.

Second, petitioners have no “substantial connections with

this country,” Verdugo-Urquidez, 494 U.S. at 271, that would

allow them to claim the protection of the Bill of Rights. They

have never attempted voluntarily to place themselves in any

relation with the domestic body politic, and their only connection

to the United States is that they were confronted by American

military forces on the field of battle. They had no constitutional

nghts on the field of battle itself, and their capture by our military

did not vest them with any such rights. See id. at 275 (Kennedy,

J. concurring) (“the Constitution does no‘ create, nor do general

principles of law create, any juridical relation between our

country and some undefined, limitless class of noncitizens who

are beyond our territory”).’

7. By necessity, both sets of petitioners are decidedly vague about

exactly what constitutional nghts they claim to possess, and when they

claim to have first acquired those nghts. If capture and military detention

are sufficient to confer such nghts, petitioners must have enjoyed them

dunng their military detention in Afghanistan. This would that

prisoners of war presently held in Iraq enjoy the same constitutional

protections. By contrast, if petitioners’ position is that they only acquired

constitutional mghts when they were involuntarily transferred to

(Cont'd)

13

One need look no further than the text of the Sixth

Amendment to confirm that the Bill of Rights does not protect

foreign nationals from the exercise of the military power in times

of war. See Eisentrager, 339 U.S. at 782. The Sixth

Amendment's opening clause, “[{iJ}n all criminal prosecutions,”

U.S. Const. amend. VI (emphasis added), limits its reach to

the Executive’s exercise of his domestic law enforcement

authority. The rights enumerated thereafter confirm this

limited application; the concepts of a speedy and public trial,

an impartial jury drawn from “the State and district wherein the

crime shall have been committed,” and compulsory process,

among others, id., are impossible to apply in the context of

foreign military actions. Thus, petitioners’ rhetoric aside, nothing

in the Constitution entitles them to a “trial” or anything like the

adversarial proceeding described in the Sixth Amendment.

Similarly, the Fourth Amendment, by its terms, has no

application to foreign nationals who can claim no connection

to our body politic, and this Court has recognized that it cannot

be applied to “foreign policy operations.” Verdugo-Urquidez,

494 US. at 273. The Fourth Amendment provides, in part, that

“(t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated.” U.S. Const. amend. IV (emphasis added).

As this Court has held, “the people” was “a term of art employed

in select parts of the Constitution” that “refer[red] to a class of

persons who are part of a national community or who have

otherwise developed sufficient connection with this country to

be considered part of that community.” Verdugo-Urquidez,

494 U.S. at 265. And, according to this Court, the “history of

the drafting of the Fourth Amendment also suggests that its

(Cont'd)

Guantanamo Bay, then their possession of those rights is entirely

dependent on the executive decision to detain them there. Yet elsewhere

petitioners argue that their constitutional mghts and access to the courts

cannot depend upon the Executive's decision to detain them in a

particular location. See, e.g., Al Odah Br. at 7-8 & n.7.

14

purpose was to restrict searches and seizures which might be

conducted by the United States in domestic matters.” Id. at 266

(emphasis added).

Indeed, as the Court explained in Verdugo-Urquidez,

contemporaries of the Framers authorized the President, in an

undeclared war with France, “ ‘to subdue, seize and take any

armed French vessel, which shall be found within the

jurisdictional limits of the United States, or elsewhere, on the

high seas.’ ” Jd. at 267 (citation omitted). Both United States

naval forces and privateers acting by order of the President

boarded and seized foreign ships without affording their crews

any of the protections enumerated in the Fourth Amendment.

“[B)ut it was never suggested that the Fourth Amendment

restrained the authority of congress or of United States agents

to conduct operations such as this.” /d. at 268.

This Court has also rejected the notion that the protections

of the Fifth Amendment apply to foreign persons outside the

territory of the United States. Its “rejection of extraterritorial

application of the Fifth Amendment was emphatic,” id. at 269:

Such extraterritorial application of organic law

would have been so significant an innovation in the

practice of governments that, if intended or

apprehended, it could scarcely have failed to excite

contemporary comment. Not one word can be cited.

No decision of this Court supports such a view. None

of the learned commentators on our Constitution has

even hinted at it. The practice of every modern

government is opposed to it.

Eisentrager, 339 U.S. at 784; see also Quirin, 317 U.S. at 40-

41. The Eisentrager Court further relied on the text of the Fifth

Amendment to confirm its limited application. As the Court

explained, any reading of the Fifth Amendment that would give

foreign nationals more rights than those afforded to American

citizen soldiers and sailors “in actual service in time of War,”

15

is simply absurd. 339 U.S. at 782-83 (“It would be a paradox

indeed if what the Amendment denied to Americans it

guaranteed to enemies.”).*

Finally, as a logical matter, if any of these protections

traditionally applicable in American criminal cases were read

to apply to enemy combatants held pursuant to military authority

during active hostilities, there is no reason why other constitutional

rights would not also be so extended. See id. at 784. This Court

has exposed the idea that battlefield combatants are entitled to

the full panoply of constitutional protections as a frivolous one.

See id. at 784-85. There is no principled basis upon which the

Court can accord these petitioners certain constitutional nghts

and not others. And if they possess those nghts at Guantanamo

Bay, there is no principled basis to deny them those rights at

any other stage of their capture of confinement.

Ill. There Are No Judicially Manageable Standards To

Apply to Military Judgments Made During an Ongoing

Conflict.

Both sets of petitioners claim a right to some form of

adversarial process by which they may challenge their military

8. Even if the Due Process Clause did apply to these petitioners, it

is clear that they have received all the process that they are due in the

context of military detention. “Of the roughly 10,000 people that were

originally detained in Afghanistan, fewer than ten percent were brought

to Guantanamo Bay in the first place. The vast majority were processed in

Afghanistan and released in Afghanistan.” Secretary Rumsfeld Remarks

to Greater Miami Chamber of Commerce (Feb. 13, 2004) <http://www.

defenselink.mil/transcripts/2004/tr200402 13-0445 html>. In addition,

the Executive has undertaken a comprehensive, multi-layered, and

ongoing review of the proper classification of each pnsoner at Guantanamo

Bay. /d. What petitioners seek is an “impartial tribunal” and some form

of adversarial process either supervised by or conducted by a civilian

court. That process is incompatible with the decision being made—

in meeting and defeating attacks on the United States, the President's

duty as Commander-in-Chief is not to be “neutral and detached,” but

rather to place the security of our nation and our military forces above

the interests of the enemy or even those suspected of being the enemy.

16

detention, either in a federal court or in an “impartial tribunal”

ordered by a federal court. These claims depend upon the

proposition that the Commander-in-Chief is required to meet

some evidentiary standard, some predicate threshold, before he

may use the coercive power of the United States military against

a particular individual in the field of battle. An essential corollary

to this proposition is that the federal courts are capable of

devising and applying procedural rules and substantive standards

to constrain the President’s discretion in this area.

Neither the proposition nor its corollary can withstand scrutiny.

The conduct of war cannot be reduced to an individualized

balancing of rights against interests. The military cannot be

required to develop an evidentiary predicate before attacking a

particular position, using a particular weapon, or detaining and

holding persons found in the field of battle. By its nature, war

causes collateral damage every day that would be a per se violation

of the Due Process Clause in the domestic setting. See, e.g.,

United States v. Caltex (Phillipines), Inc., 344 U.S. 149 (1953);

Juragua Iron Co. v. United States, 212 U.S. 297 (1909).

Nor is a civilian court capable of developing judicially

manageable standards to either govern or evaluate military

judgments made during an ongoing conflict. A court cannot

declare the Executive’s judgment here “valid” or “invalid” the

way it would a search warrant or an arrest in the domestic realm.

Rather, it could only register disagreement as a policy matter

with the balancing of competing interests by the primary decision

maker, whose institutional competence and sources of

information are vastly superior to that of the judiciary in this

area. Gilligan, 413 U.S. at 10 (“it is difficult to conceive of an

area of governmental activity in which the courts have less

competence”); Curtiss-Wright, 299 U.S. at 320 (noting the

superior sources of information available to the Executive

Branch in the context of a foreign conflict).

Because none of the specific guarantees of the Fourth, Fifth,

or Sixth Amendments applies, see supra Part Il, none of the

i.

17

well-established benchmarks for executive conduct in the area

of domestic law enforcement can offer the federal courts any

guide for evaluation of the military judgments at issue here.

The Court would be called upon to invent substantive and

procedural rules from whole cloth, with no guidance from the

text or history of the Constitution. Petitioners’ vague calls for

an “impartial tribunal” and “legal process” leave unanswered a

host of questions that the federal courts would be required to

answer if this Court approves the exercise of jurisdiction over

these cases. Who bears the burden of proof in these proceedings

and what is the proper evidentiary standard (e.g., reasonable

suspicion, probable cause, preponderance of the evidence,

or beyond a reasonable doubt)? What rights would prisoners of

war enjoy in these impartial proceedings (e.g. , rights of compulsory

process, to confront witnesses, to receive “exculpatory” evidence

from the government)? Would the rules of evidence apply to

exclude all hearsay, including intelligence information?

War is necessarily rife with uncertainties that cannot he

reduced to a particular quantum of proof in a trial-like forum.

Even a small risk that a person confronted on the battlefield is a

threat may justify coercive military action—even lethal action-——

where the potential harm is great. In such circumstances, the

Commander-in-Chief and his military subordinates may

conclude that any mistake from failure to act would have such

grave consequences that they must adopt a sweeping approach

that exposes persons who may be “not guilty,” in the sense that

term is used in our criminal law, to coercive military force.’

9. For example, suppose there is a chance that one of the petitioners

in these cases is a trained nuclear scientist who is a member or

sympathizer of al Qaida. The President has made a prudential judgment

that this person must be detained for the safety of our troops and the

homeland. By what standard will a federal court second guess that

judgment or impose a legal and evidentiary framework according to

which the judgment must be made? Moreover, unlike the President, a

federal court is not politically accountable to the American people if its

decision to order the release of such a detainee has tragic consequences.

18

It is for these reasons, that the federal courts have consistently

declined to impose “legal process” on the President’s decisions

to use military force, including the Viet Nam War, see, e.g.,

Luftig v. McNamara, 373 F.2d 664 (D.C. Cir.), cert. denied,

387 U.S. 945 (1967); the bombing of Cambodia, see, e.g.,

Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert.

denied, 416 U.S. 936 (1974); the provision of military aid in El

Salvador, see, e.g., Crockett v. Reagan, 720 F.2d 1355 (D.C.

Cir. 1983), cert. denied, 467 U.S. 1251 (1984); the provision of

military aid in Nicaragua, see, e.g., Sanchez-Espinoza v. Reagan,

770 F.2d 202 (D.C. Cir. 1985); the deployment of armed forces

to the Persian Gulf, see, e.g., Lowry v. Reagan, 676 F. Supp.

333 (D.D.C. 1987); the removal from power of Panamanian

General Manuel Noriega, see, e.g., Industria Panificadora, S.A.

v. United States, 763 F. Supp. 1154 (D.D.C. 1991), aff'd, 957

F.2d 886 (D.C. Cir.), cert. denied, 506 U.S. 908 (1992); and

Operation Desert Storm, see, e.g., Ange v. Bush, 752 F. Supp.

509 (D.D.C. 1990).

These precedents reflect the fundamental principles that

decisions regarding the use of military power in response to

external threats “should fall upon the shoulders of those elected

by the people to make those decisions,” Ange, 752 F. Supp. at

513, and that the judiciary is not institutionally capable of

reviewing the myriad political and strategic considerations that

underlie such decisions, Gilligan, 413 U.S. at 10-11.

Any attempt to arrive at such a set of standards for these

cases in the present state of the conflict, based on a snapshot in

time of the circumstances of an ongoing war, would risk placing

the Commander-in-Chief in a legal straitjacket in responding

to future developments that a court cannot possibly foresee. Even

if a “court could possibly devise a manageable set of standards

for answering the questions . . . , world politics today change

sO rapidly that it might, by setting forth rules, create a rigid

matnx that would unnecessarily restrict the executive some time

in the future when the powers denied today may be essential to

the well-being of the United States then.” Atlee v. Laird, 347 F.

19

Supp. 689, 707 (E.D. Pa. 1972) (emphasis added); Holtzman,

484 F.2d at 1311 (noting that the situation in Cambodia

“fluctuates daily and we cannot ascertain at any fixed time either

the military or diplomatic status”).

These concerns are clearly present here. The war against

both al Qaida and the Taliban is still active and over 8,000

American troops remain in the Afghanistan theatre in harm’s

way. Judicial restrictions on the military detention of persons

captured in the field of battle could have a direct and deleterious

effect on the military’s ability to defeat the remaining Taliban and

al Qaida elements, who continue to attack our troops and our

allies in an attempt to destabilize the new government in Kabul.

Petitioners attempt to distance themselves from these

precedents and the ongoing conflict by claiming that they “are

not challenging any action taken in ‘occupied territory’ or on

the field of battle.” Al Odah Br. at 22 n.44. This cannot be

accurate. As noted above, petitioners’ claims that they are

innocent of any wrongdoing and that they are not adherents of

al Qaida or the Taliban necessarily require a judicial inquiry

into their conduct on the battlefield and their interaction with

United States and allied military forces in the zone of battle, as

well as into the Executive’s continuing judgment that their

release would cause harm to the military mission. See supra

pp. 10-11. Moreover, by their nature such judicial inquiries will

establish standards that the Executive will be required to follow

in future encounters with persons on the field of battle.

Nor could federal courts effectively app/y any set of

standards to the President’s judgments in these cases. The

exercise of jurisdiction over these petitioners’ claims would

require federal courts to intrude into the President’s most

sensitive sources of military and political intelligence. The Rasul

petitioners would require the President to produce such

information directly to a federal court in a habeas corpus

proceeding. The Al Odah petitioners would require the Executive

to conduct the equivalent of an on-the-record hearing under the

20

Administrative Procedure Act, presumably followed by judicial

review.'° As this Court has held, the judiciary has neither the

constitutional warrant nor the institutional capacity to review

decisions based upon intelligence sources and information that

should remain within the Executive Branch:

The President, both as Commander-in-Chief and as

the Nation’s organ for foreign affairs, has available

intelligence services whose reports neither are nor

ought to be- published to the world. It would be

intolerable that courts, without the relevant

information, should review and perhaps nullify

actions of the Executive taken on information

properly held secret. Nor can courts sit in camera in

order to be taken into executive confidence.

Chicago & Southern Air Lines, 333 U.S. at 111; Dept of the

Navy v. Egan, 484 U.S. 518, 530 (1988); Totten v. United States,

92 U.S. (2 Otto) 105, 106-07 (1875); see also Holtzman, 484

F.2d at 1310 (“We are not privy to the information supplied to

the Executive by his professional military and diplomatic

advisers and even if we were, we are incompetent to evaluate it.”’).

Finally, this is a case where the greater power must include

the lesser, and neither is subject to judicial constraint. Petitioners

make no claim that a military decision to use lethal force against

them on the field of battle would be subject to judicial scrutiny.

Yet they claim that because a lesser degree of military force

10. At one point in their brief, the Al Odah petitioners indicate

that they seek only executive process and “do not contend that an Article

III] court must itself conduct that process and review the basis for each

individual detention.” Al Odah Br. at 47. Yet they devote a substantial

portion of their brief to arguing that the judicial review provisions of the

APA apply to their case and none of the military exceptions to judicial

review is applicable. /d. at 21-23. Thus, at the end of the day, even the

Al Odah petitioners would have the federal courts make the final

decisions in this area, as they do when they sit in review of any

— agency, under one of the standards specified in 5 U.S.C.

21

was used against them, a duty arose in the Executive to justify

his actions in court. But as discussed above, the constitutional

nature of both decisions is the same—a strategic and military

judgment that is beyond the realm of judicial review. See, e.g.,

Ludecke v. Watkins, 335 U.S. 160, 166 (1948) (“A war power

not subject to judicial review is not transmuted into a judicially

reviewable action because the President chooses to have that

power exercised within narrower limits .. . .”’).

IV. The Writ of Habeas Corpus Has Never Been Extended

To Aid Foreign Persons Found on the Battlefield and

Detained as Enemy Combatants.

Far from supporting the petitioners’ calls for judicial

intervention, both the English and early American history of

the writ of habeas corpus reveals that the writ was unavailable

to prisoners of war or enemy combatants. For the English courts,

enemy aliens and combatants simply had no rights against the

Crown that could be enforced via the writ. The English courts

also expressed concern that entertaining jurisdiction over the

writ in such circumstances would constitute judicial interference

with the exercise of sovereign powers that belonged to the Crown

alone. These same concerns\animate the early American cases,

and along with the limitations implied in the Suspension Clause

itself, they make clear that the writ does not extend to foreign

nationals captured in the field of battle.

The history of the writ at English common law makes clear

that it did not protect prisoners of war or enemy combatants.

As traditionally understood, the writ was never available to

“an alien enemy who is a prisoner of war.” 9 Halsbury s Laws

of England (Halsbury) pt. Il, 4 1212, at 710-11 (2d ed. 1933)

(the writ “will not be granted . . . to an alien enemy who is a

prisoner of war”); see Schaffenius v. Goldberg, | &.i3. 284, 305

(1916) (Ld. J. Warrington) (“The authorities that have deen cited

to us with regard to prisoners of war in old times only go to

this, that the prisoner of war could not sue out 2 writ of habeas

corpus. Of course nobody now disputes that.”); Moxon, 17

22

F. Cas at 947. When the “safety of the realm” was at issue, “and

the Government thereupon intern{ed] . . . alien enem[ies],

the action of the Executive in so doing [wa]s not open to review by

the Courts by habeas corpus.” Halsbury, § 1202 note (c), at 703.

For those alien enemies who invaded the realm, it was

equally clear that no resort could be had to the courts for issuance

of the writ because the alien enemy invader had no rights at all.

See Sylvester s Case, 7 Mod. 150 (K.B. 1703) (“Ifan alien enemy

come into England without the queen’s protection, he shall be

seized and imprisoned by the law of England, and he shall have

no advantage by the law of England, nor for any wrong done to

him here.”); see also 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.”’).

The fact of imprisonment in the King’s realm did not alter

the alien enemy prisoner of war’s legal entitlement—he still

could not obtain a writ of habeas corpus. See, e. g., Rex v. Schiever,

2 Burr. 765, 97 Eng. Rep. 551 (K.B. 1759) (denying the writ to

a prisoner of war held captive in Liverpool); Three Spanish

Sailors, 2 Black W. 1324, 96 Eng. Rep. 775 (K.B. 1779) (declaring

that “alien enemies and prisoners of war [are] not entitled to

any of the privileges of Englishmen; much less to be set at liberty

on habeas corpus” and denying the wnit to Spanish seaman brought

as prisoners of war to England); see also 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” in context

where American prisoner of war was held at Plymouth.).

Nor did the enemy’s claim that he was the national of a

neutral nation, pressed into service by an enemy nation, captured

by privateers, or misled as to his status help his cause. Schiever,

2 Burr. 765, 97 Eng. Rep. at 551 (man claimed to have been the

“subject of a neutral power, taken on board of an enemy’s ship;

but forced ... into the enemy’s services”); see also Three

Spanish Sailors, 2 W.B. 1324, 96 Eng. Rep. at 775 (Spanish

~ —

23

seamen claimed “they were taken as prisoners of war on board

of a Spanish privateer,” transferred to an English ship on promise

of work for wages, and then turned over by the English captain

as prisoners of war). "'

The sole reference to the writ of habeas corpus in the

Constitution confirms that the Framers did not intend access to

the writ to extend to foreign nationals captured outside the

United States. The Suspension Clause provides: “The Privilege

of the Writ of Habeas Corpus shall not be suspended, unless

when in Cases of Rebellion or Invasion the Public Safety may

require it.”’ U.S. Const. art. I, § 9 (emphasis added). The language

of the exception confirms the Framers’ understanding that the

writ did not apply to military operations abroad. Only where

military operations took place on U.S. soil was there any need

to address the possibility of suspension. See Ex parte Milligan,

71 U.S. (4 Wall.) 2, 127 (1866) (discussing martial rule and

suspension of the writ in the context of invasion or rebellion

within the United States). That the Framers were aware that the

United States could be called upon to fight in foreign wars cannot

be doubted. Yet, they did not provide for suspension of the

writ in cases of attacks by or upon American forces abroad.

The absence of any exception in the case of overseas conflicts

indicates that the Framers never intended that the writ would

be extended to aliens involved in wars on foreign soil. Moreover,

such an extension would mean that the writ could never be

suspended in the case of foreign conflicts. The limited reach of

the writ is further confirmed by the reference to “the Public

Safety,” tying both the scope of the writ and the scope of the

exception to the domestic body politic.

11. Contrary to the suggestion made in the Brief Amici Curiae of

Legal Historians in Support of Petitioners at 20-24, English common

law cases do not reveal searching judicial review into whether persons

seeking the writ were in fact “alien enemies.” Instead, as discussed above,

each of the cases cited by the Legal Historians involves threshold

dismissal of the petitioner’s case regardless of his factual allegations

attacking his “alien enemy” or “prisoner of war” status.

24

Not only do petitioners’ claims to the writ lack any support

in its history or the text of the Constitution, they can find no

support in the decisions of this Court. Petitioners’ argument on

this score is a contrived pastiche of quotations from cases

involving criminal defendants, resident aliens, or persons

convicted of war crimes in military tribunals. What petitioners

cannot find is any precedent for a court entertaining the writ to

examine and possibly overturn the President’s judgment that a

foreign national captured in the field of battle must be held as

an enemy combatant while hostilities are ongoing. The lack of

any such case is a testimony to the extraordinary expansion of

both the writ and judicial power sought by these petitioners.

Both sets of petitioners also rely heavily upon this Court’s

decisions in Quirin and Yamashita for the proposition that

jurisdiction lies here and the only question at issue is scope of

review. Neither decision supports the exercise of habeas

jurisdiction over these petitioners’ claims. Quirin does not even

suggest that foreign nationals held as enemy combatants can

invoke the writ. The Court avoided the question by noting that

at least one petitioner (Haupt) claimed to be an American citizen

and all the petitioners had at one time been residents of the

United States. 317 U.S. at 20. This Court has subsequently

indicated that jurisdiction in Quirin was predicated on several

factors, none of which is present in the context of detention of

enemy combatants captured abroad." In fact, the Quirin Court

expressly left open the question whether Congress had any

constitutional authority to “restrict the power of the Commander-

in-Chief to deal with enemy belligerents.” /d. at 20. Quirin

certainly cannot be read for the proposition that Congress has

12. See, e.g., Eisentrager, 339 U.S. at 779-80 (distinguishing Quirin

because, inter alia, it involved a prisoner who “was, or claimed to be,

a citizen,” the prisoners “were tried by a Military Commission sitting in

the District of a when civil courts were open and functioning

normally,” and “[t}hey were arrested by civil authorities and the

prosecution was directed by the Attorney General, a civilian prosecutor”).

25

limited the power of the Executive to detain “enemy

belligerents” through the vehicle of the habeas corpus statute.

More fundamentally, neither Quirin nor Yamashita involved

review of a military decision to detain foreign nationals as enemy

combatants in order to incapacitate them during hostilities. Both

cases involved the individualized trial and punishment of

particular prisoners of war for violations of the laws of war.

The military commissions in which the Quirin petitioners and

Yamashita were tried were held pursuant to a statute recognizing

the President’s authority to convene military commissions

consistent with the laws of war. See Quirin, 317 U.S. at 26-27;

Yamashita, 327 U.S. at 7. In both cases, the Court refused to

engage in any examination of the merits of the military

commission’s decision, focusing only on whether there was

jurisdiction within the terms of the Articles of War. Quirin,

317 U.S. at 25 (“We are not concerned here with any question

of the guilt or innocence of petitioners.”); Yamashita, 327 U.S.

at 17 (““We do not here appraise the evidence on which petitioner

was convicted. ... These are questions within the peculiar

competence of the military officers composing the commission

and were for it to decide.”).

Thus, the Quirin and Yamashita Courts not only limited

their inquiries to the question of jurisdiction, they expressly

eschewed any review of the underlying merits of the military

decisions themselves. Neither case says anything about judicial

review of enemy combatant status, or the power of the President

to detain enemy combatants during ongoing hostilities. And both

cases decline to review exactly the kind of military judgments

concerning battlefield conduct and status that these petitioners

seek to put before the federal courts."

13. Indeed, even in the context of the review of detention of resident

aliens under the Alien Enemy Act, this Court has recognized its

constitutional and institutional incapacity to review the judgments of

the President regarding a military need for continued detention of

(Cont'd)

26

Finally, it does not advance petitioners’ cause to suggest

that their circumstances—being alleged nationals of friendly

nations caught up with enemy forces—are somehow unique in

the annals of war. In fact, included among the more than 400,000

prisoners of war held in the United States during World War II

were Russian or Polish nationals deemed to be enemy

combatants by the United States or its allies. Many claimed to

be civilians mistakenly swept up with the capture of German

troops, and many were part of German forced-labor battalions

who were involuntarily pressed into the service of the enemy.

These prisoners of war were nationals of friendly nations, as

petitioners claim to be here, but it was undoubtedly within the

power of our military forces to meet them as enemies in the

field and to hold them as enemy combatants when captured.

They were no more entitled to the writ of habeas corpus than

were the German troops whom they fought beside, and no court

of law has ever held otherwise. If the writ lies for these

petitioners, it must perforce lie for any enemy combatant who

makes a post hoc claim that he was not an actual belligerent.

V. Judicial Review in this Context Would Cause Grave

Harm to Both the Military and the National Security.

Petitioners’ status as enemy combatants has been reviewed

and re-reviewed within the Executive Branch and the military

command structure. Nevertheless, petitioners claim that they

are constitutionally entitled to an evaluation of the factual

predicate for their detention through some judicial or quasi-

judicial proceeding, involving an impartial arbiter and an

(Cont'd)

~ potentially hostile foreign nationals. See, e.g., ludecke, 335 U.S. at 170

(“It is not for us to question a belief by the President that enemy aliens

who were justifiably deemed fit for internment during active hostilities

do not lose their potency for mischief during the period of confusion

and conflict which 1s characteristic of a state of war even when the guns

are silent but the peace of Peace has not come. These matters are of

political judgment for which judges have neither technical competence

nor official responsibility.”).

27

adversarial testing of evidence. What they seek is a judicial

“check on the power of the executive,” Al Odah Br. at 42, in

order to alter the “executive’s focus” from defending the nation

to the protection of the personal liberties of those we are fighting

against, id. at 45. By definition, the imposition of legal process

on the Executive’s exercise of the war power and the introduction

of the judiciary as a second decision maker in this area will

impair the efficiency of our military forces. The very purpose

of such constraints in the domestic criminal realm is to sacrifice

efficiency and unitary control in order to protect other values.

As this Court has noted, extension of these concepts to the use

of military power in armed conflict would have “significant

and deleterious consequences for the United States in conducting

activities beyond its boundaries.” Verdugo-Urquidez, 494 U.S.

at 273; Eisentrager, 339 US. at 779.

Any such extensivn of the judicial power to the supervision

of our military operations in time of war would not only be

wholly unprecedented, but it would be fundamentally

incompatible with the power to wage war itself, so altering and

degrading that capacity as to negate the Constitution’s grant of

that power to the President.

First, the imposition of such procedures would

fundamentally aiter the character and mission of our combat

troops. To the extent that the decisions to detain persons as

enemy combatants are based in part on the circumstances of the

initial encounter on the battlefield, our frontline troops will have

to concern themselves with developing and preserving evidence

as to each individual they capture, at the same time as they

confront enemy forces in the field. They would be diverted from

their primary mission—the rapid destruction of the enemy by

all means at their disposal—to taking notes on the conduct of

particular individuals in the field of battle. Like policeman, they

would also face the prospect of removal from the battlefield to

give evidence in a habeas court or a court-ordered proceeding.

See Eisentrager, 339 U.S. at 779.

28

Nor would the harm stop there. Under petitioners’ theory,

the military would have to take on the further burden of detailed

investigation of petitioners’ factual claims once they are taken

to the rear. Again, this would radically change the nature of the

military enterprise. To establish the capacity to conduct

individualized investigations and adversarial hearings as to every

detained combatant would make the conduct of war—especially

irregular warfare—vastly more cumbersome and expensive.

For every platoon of combat troops, the United States would

have to field three platoons of lawyers, investigators, and

paralegals. Such a result would inject legal uncertainty into our

military operations, divert resources from winning the war into

demonstrating the individual “fault” of persons confronted in

the field of battle, and thereby uniquely disadvantage our military

vis-a-vis every other fighting force in the world.

Second, the introduction of an ultimate decision maker

outside of the normal chain of command, or altogether outside

the Executive Branch, would disrupt the unitary chain of

command and undermine the confidence of frontline troops in

their superior officers. The impartial tribunals petitioners seek

could literally overrule command decisions regarding battlefield

tactics and set free prisoners of war whom American soldiers

have risked or given their lives to capture. The effect of such a

prospect on military discipline and morale is impossible to

predict, Chappell v. Wallace, 462 U.S. 296, 300, 305 (1983)

(courts are “ ‘ill-equipped to determine the impact upon

discipline that any particular intrusion upon military authority

might have’ ” (citation omitted)), but it cannot be positive.

. Third, exercising jurisdiction over petitioner’s claims would

directly threaten our relations with our allies in the continuing

war effort. Allies will naturally hesitate to entrust us with

prisoners captured in the field of battle if our military’s promise

to detain them is an empty one. If our allies question our ability

to detain enemy combatants, or feel that their own actions may

be subject to subsequent judicial scrutiny, they will have a strong

. PTT

29

disincentive to turn battlefield prisoners over to the United

States, thus denying our forces a potentially valuable source of

intelligence. Indeed, a detailed set of post hoc judicial procedures

imposed upon the capture of prisoners of war may well have

the perverse effect of encouraging both allies and our own forces

to prefer lethal over non-lethal force.

Fourth, judicial review of presidential judgments regarding

the treatment of prisoners of war would directly undermine the

ability of the United States to speak with “one voice” to allies,

neutrals, and foes alike. Promises made to allies could be broken

by judicial decree, and threats made to the enemy could be

rendered idle. Eisentrager, 339 U.S. at 779 (“Nor is it unlikely

that the result of such enemy litigiousness would be a conflict

between judicial and military opinion highly comforting to

enemies of the United States.’’).

Finally, by necessity the decisions of the Executive Branch

in this area are based upon myriad intelligence sources, many

of which are extremely sensitive in nature. In the context of the

“impartial review” petitioners seek, must the Executive produce

or identify the intelligence sources regarding petitioners’

adherence to the enemy or their activities in the field of battle”

The imposition of adversarial proceedings on executive decision

making in this area entails the possibility that the Executive

may be forced to release a person whom he knows to be hostile

and to pose a continuing threat to our military operations in

order not to comprise intelligence sources. While we are willing

to accept such a possibility in the enforcement of our criminal

laws, see, e.g., Classified Information Procedures Act, 18 U.S.C.

app. 3 §§ 1-16, we simply cannot do so in the context of our

national security.

30

CONCLUSION

For the reasons stated above, the decision of the Court of

Appeals should be affirmed on the ground that the military

judgments at issue in these cases are political questions whose

resolution is textually committed to the President as

Commander-in-Chief.

Respectfully submitted,

ANDREW G. McBripE

Counsel of Record

KATHRYN L. COMERFORD

Wiey Rew & Frecpinc LLP

1776 K Street NW

Washington, DC 20006

(202) 719-7000

Attorneys for Amici Curiae