Amicus Curiae Brief — Rumsfeld v. Padilla

Supreme Court, U.S

FiLED

APR 2 - 2004

No. 03-1027. rae

| OFFICE OF THE CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

DONALD RUMSFELD, SECRETARY OF DEFENSE, Petitioner

Vv.

JOSE PADILLA; DONNA R. NEWMAN,

AS NEXT FRIEND OF JOSE PADILLA, Respondents

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF AMICI CURIAE

INTERNATIONAL LAW PROFESSORS

LISTED HEREIN IN SUPPORT OF RESPONDENTS

Linda A. Malone*

Marshall-Wythe Foundation Professor of Law

College of William & Mary School of Law

613 South Henry Street, Suite NW 240

Williamsburg, VA 23187

(757) 221-3844

Jordan J. Paust

Law Foundation Professor

University of Houston Law Center

100 Law Center

Houston, TX 77204

*Counsel of Record for Amict Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ............. cc ceeeceeeeees i

TABLE OF AUTHORITIES ....................005. iii

INTEREST OF AMICI CURIAE ................0045. 1

SUMMARY OF ARGUMENT ...................05.. 2

ARGUMENT

I. There Must Be Judicial Review of the Propriety

PL ctcccecuuaeeneeneseenesestienss 3

II. Human Rights Law Prohibits Arbitrary Detention

and Requires Judicial Review ................ 3

A. International Human Rights Law Prohibits

Arbitrary Detention ................... 3

B. International Human Rights Law Requires

Independent, Fair, and Effective Judicial

DE ctuvcedoesdedheventenseseseces 9

III. The Judiciary Has the Power and Responsibility to

Determine the Legal Status and Rights of

DEE ourek cbs ebkdeeseeseebessensdeces< 13

A. Judicial Power Exists Under International

Law and Article III of the Constitution ..13

-ii-

B. Judicial Power Is Recognized in

Case Law

C. The Standard of Review Must Involve

Independent, Fair, Effective, and Meaningful

Judicial Review ...................... 28

IV. OO eee 29

-iii-

TABLE OF AUTHORITIES

Case Page

UNITED STATES CASES

Bas v. Tingy, 4 U.S. (4 Dall.) 37, (1800) ........... 8, 23

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

EEE EE 7, 8, 22

Charge to Grand Jury for the District of Virginia,

EE EES ESSE POPP PTET TTY LETT 15

Colepaugh v. Looney, 235 F.2d 429, (10 Cir. 1956),

cert. denied, 352 U.S. 1014 (1957) ............. 20

Cook v. United States, 288 U.S. 102 (1933) ........ 6, 22

Cruikshank v. United States, 431 F. Supp. 1355,

Ne sc c cece seecces 25

De Sanchez v. Banco Central de Nicaragua, 770 F.2d

EEE 4

Elgee's Adm'r v. Lovell, 8 F. Cas. 449, (C.C.D. Mo. 1865)

(No. 4,344) (Miller, J., om circuit).............. 23

Ex parte Bollman, 8 US. (4 Cranch) 75, (1807) ........ 25

Ex parte Merryman, 17 F. Cas. 144, (C.C.D. Md. 1861)

EEL ESE EEE ESDP OPE OTT T TT 25

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) ...... 20, 26

Ex parte Orozco, 201 F. 106, (W.D. Tex. 1912) .... 21, 26

Ex parte Quirin, 317 U.S. 1, 25, (1942) .... 16,20, 21, 22

Ex parte Toscano, 208 F. 938, (S.D. Cal. 1913)......... 20

Filartiga v. Pena-Irala, 630 F.2d 876, (2d Cir. 1980)....14

Fletcher v. Peck, 10 U.S. (6 Cranch) 87,

(1810) (Marshall, C.J.) 2... 6. cee 15

Ford v. United States, 273 U.S. 593, (1927) ........... 22

Hamdi v. Rumsfeld, 316 F.3d 450 (4" Cir. 2003) 1, 28, 29

-jv-

Henfield’s Case, 11 F. Cas. 1099, (C.C.D. Pa. 1793)

es GP GEES bv ccnscndcodideccces 14,17

Henry v. United States, 361 U.S. 98 (1959)............ 18

Hilton v. Guyot, 189 U.S. 113 (1895) .................. 19

Hirabayashi v. United States, 320 U.S. 81 (1943) ...... 25

In re Fagan, 8 F. Cas. 947 (D.C.D. Mass. 1863)

SED 6.048 66cccdudadadsedtntedeeune 21

In re Keeler, 14 F. Cas. 173 (D.C.D. Ark. 1843)

ed CE 546 bb cddescancusnadesuiebaeeelee 21

In re Territo, 156 F.2d 142 (9 Cir. 1946) ............ 20

Johnson v. Jones, 44 Ill. 142 (S.Ct. Ill. 1867) ......... 25

Johnson v. Twenty-One Bales, 13 F. Cas. 855

(C.C.D.N.Y. 1814) (No. 7,417) ................ 23

Juando v. Taylor, 13 F. Cas. 1179,

(D.C.S.D.N.Y. 1818) (No. 7,558) .............. 21

Juragua Iron Co. v. United States,

ET eccucucesucsceccussaent 23

Kim Ho Ma v. Ashcroft, 257 F.3d 1095

PD nc ccebucvecessdncacesme 4

Korematsu v. United States, 323 U.S. 214, 218 (1944) .. 25

Korematsu v. United States, 584 F. Supp. 1406

ey ee i Wes at" 25

Lawrence v. Texas, 2003 U.S. Lexis 5013 (2003) ....... 20

Ma v. Reno, 208 F.3d 815, 830 (9" Cir. 2000) .......... 4

Maria v. McElroy, 68 F. Supp.2d 206

8 EE ne ree eee 11

Martinez v. City of Los Angeles,

141 F.3d 1373 (9™ Cir. 1992) ................. 4

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................. 8

Mehinovic v. Vuckovic, 198 F. Supp.2d 1322

SGD cancecucdnedutbanedeataeu 4

-v-

Miller v. United States, 78 U.S.

vig 8) |.) Sr 23

Mitchell v. Harmony, 54 US.

o ) h)) |, | rr 26

Padilla v. Rumsfeld, 352 F.3d 695

SED occ cs cccccdnccondececendeseeet 6

Padilla v. Rumsfeld, 233 F. Supp.2d 564

PED vcocccccdeusuceseevesenenes 28

Padilla v. Rumsfeld, 243 F. Supp.2d

GOR ED cccnccdccoescocscesensees 28

Raymond v. Thomas, 91 U.S. 712 (1875) ............- 26

Respublica v. Chapman, 1 U.S. 53

PT BED cccccccescaencedeceuseocess 22

Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382,

PO SD cccccnkcocdscundeseseceeesseds 18

Rodriguez-Fernandez v. Wilkinson, 505 F. Supp. 787,

Pee See «. cengeucsuscesoseeenees 4,19

Santiago v. Nogueras, 214 U.S. 260 (1909) ..........-. 8

Shapiro v. Ferrandina, 478 F.2d 894

PRE BED ccccccceceseesesecsececoencet 22

Sterling v. Constantin, 287 U.S. 378 (1932) ...... 24, 25

Talbot v. Jansen, 3 U.S. (3 Dall.) 133

CRT GeO. GD ccccccccccccccccccesesces 15

Talbot v. Seeman, 5 U.S. (1 Cranch.) 1 (1801) .......... 8

The Flying Fish, 6 U.S. (2 Cranch) 170 (1804) ..... 8, 23

The Nereide, 13 U.S. (9 Cranch) 388 (1815) ....... 14, 20

The Paquete Habana, 175 U.S. 677 (1900) .... 16,19, 23

The Prize Cases, 67 U.S. (2 Black) 635 (1862) ...... 9, 23

The Thomas Gibbons,

12 U.S. (8 Cranch) 421 (1814) ............0005- 8

Trans World Airlines v. Franklin Mint Corp.,

466 U.S. 243 (1984) ... 2... eee ee eee eeees 6, 16

-vi-

United States v. Bakeas, 987 F. Supp. 44

ne 10, 11

United States v. Duarte-Acero, 208 F.3d

a Ee 10, 11

United States v. Duarte-Acero, 132 F. Supp.2d

ED 6 accu ccseneaes bance 11

United States v. Ferris, 19 F.2d 925

ED 66 e eke ebb ddneeinddeanud 22

United States v. Guillem, 52 U.S. (11 How.)

DE? steuudnacebesdesensddbesceunddescs 20

United States v. Lee, 100 U.S. 196 (1882) ............ 23

United States v. Noriega, 808 F. Supp. 791,

FS RR ere 20

United States v. Noriega, 746 F. Supp.

og ot nes eee eecceuse 20

United States v. Ravara, 2 U.S.

(2 Dall.) 297 (C.C.D. Pa. 1793) ............... 14

United States v. Russell, 80 U.S. (13 Wall.)

DP ccanbudhéncdeddbennednessocesess 26

United States v. Schooner Peggy, 5 US.

(1 Cranch) 103 (1801) ........... 0.0... 0000s 23°

United States v. Smith, 27 F. Cas. 1192

a eueeuet 8

United States v. Toscanino, 500 F.2d 267

(2d Cir. 1974), reh’g denied, 504 F.2d 1380

DL a éé¢ctadedhnandisebadsevaetess 22

United States v. United States District Court,

ne 25

United States v. Verdugo-Urquidez,

PPP osucéescceeeevcoccoes 8, 22

United States v. Yunis, 681 F. Supp. 909

DDT ddicudedsenaduededacuaneadues 22

-Vii-

United States v. Yunis, 681 F. Supp. 896

REE, GD ccccccoscceccceceseceoevesese 22

United States ex rel. Zdunic v. Uhl,

137 F.2d 858 (2d Cir. 1943) ....... 2... 0c ee ee 25

Waite v. The Antelope, 28 F. Cas. 1341

(D.C.D. S.Car. 1807) (No. 17,045) ...........-- 15

Woods v. Cloyd W. Miller Co., 333 U.S. 138

(1948) (Jackson, J., concurring) ..........+.++- 25

Xuncax v. Gramajo, 886 F. Supp. 162

(D. Maes. 1905)... wc ccc cc cccccccccccccccees 4

Youngstown Sheet & Tube Co. v. Sawyer,

$43 U.S. 579 (1952) ..... ccc c cece ec eeeeeces 8

INTERNATIONAL CASES AND OPINIONS

Advisory Opinion OC-10/89, Inter-Am. Ct. H.R.,

(ser. A) No. 10, para. 45 (14 July 1989) ......... 5

Reservations to the Convention on Genocide,

y) \IP EPR & . reer y

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 8, cls. 11,14,18 .......00-eeeeee 8

U.S. Const. art. VI, cl. 2 2... 0.6 cece eee eee ee eeee 9

UNITED STATES STATUTES

18 U.S.C. § 4001(a) .. 0... e eee 6

28 U.S.C. $1381 ...... 6c cece cece ee eee ee eeee 17, 18

PUN IEE 0c bd Nastéucseneessvesetesanseteus 10

OPINIONS OF U.S. ATTORNEYS GENERAL

Pe ED civ dccdvennneddcscueieceee 14

on dirt ae cddendeudeeees 14

BO, BG BEC cccccccccccccccceccccces 15

11 Op. Att’y Gen. 297, 299-300 (1865) ............... 21

21 Op. Att’y Gen. 267 (1895) ......... cee eee eee ees 23

TREATIES

American Convention on Human Rights, Nov. 12, 1969,

1144 U.N.T.S. 123, O.A.S. T.S. No. 36 .......... 5

Geneva Convention Relative to the Protection of

Hague Convention No. V Respecting the Rights and

Duties of Neutral Powers and Persons in Case of

War on Land, 18 Oct. 1907, 36 Stat. 2310,

a 21

International Covenant on Civii and Political Rights,

Dec. 9, 1966, 999 U.N.T.S.171 ................ 4

O.A.S. Charter, done April 30, 1948,

119 U.N.T.S. 3, 2 U.S.T. 2394,

T.LA.S. No. 2631, amended by the

Protocol of Buenos Aires,

done 27 Feb. 1967, 21 U.S.T. 607,

I ee eT oe 5

Vienna Convention on the Law of

Treaties, May 22, 1969, 1155 U.N.T.S. 332 ...... 9

-ix-

TREATY-RELATED DOCUMENTS,

DECISIONS, AND REPORTS

American Declaration of the Rights and Duties of Man,

O.A.S. Res. XXX (1948), O.A.S. Off. Rec.

OEA/Ser.L/V./1.4, rev. (1965) .........05 ee eeee 4

Inter-American Comm. on Human Rights, Report on the

Situation of the Inhabitants of the Interior of

Ecuador Affected by Development Activities,

Chapter VII (1996), O.A.S. Doc. OEA/Ser.L/V/II.96,

doc. 10, rev. 1 (April 24,1997) ..........0eeeee 5

Report of the Committee, 1994 Report,

vol. 1,49 U.N. GAOR, Supp. No. 40,

UWE. Bee. APGBIED wn cccccccccccccccccscccces 11

Report of the Working Group on Arbitrary Detention,

Civil and Political Rights, Including the Question

of Torture and Detention, Comm’n on Hum. Rts.,

59" sess., item 11(a) of provisional

agenda, E/CN.4/2003/8 (Dec. 16, 2002) ......... 4

MISCELLANEOUS MATERIALS

The Federalist No. 3 (John Jay)

(J.C. Hamilton ed. 1868) ...........5 cee eeees 14

Restatement of the Foreign Relations

Law of the United States (8d ed. 1987) ......... 9

Louis Henkin, Foreign Affairs and the United States

Constitution (2d ed. 1996) ..........0ce eens: 13

Edwin D. Dickinson, The Law of Nations as Part of the

Law of the United States, 101 U. Pa. L. Rev.

DD 6c -ceceeeddacdesedsontaseades 13, 14

-x-

Harold Hongju Koh, Js International Law Really State

Law?, 111 Harv. L. Rev. 1824 (1998) .......... 13

Monroe Leigh, Is the President above Customary

International Law?, 86 Am. J. Int’l L. 757

RY We ee eee lied ieee tiene’ 24

Jordan J. Paust, International Law as Law of the

United States (2d ed. 2003) ..............000ee 6

Jordan J. Paust, Judicial Power To Determine the Status

and Rights of Persons Detained Without Trial,

44 Harv. Int’l L.J. 503 (2003), available at

http://www.law.harvard.edu/studorgs/ilj/

EEE CORD Ebb ieed ddan dk dvekceceeekee 4

Jordan J. Paust, Paguete and the President:

Rediscovering the Brief for the United States,

34 Va. J. Int] L. 981 (1994) .................. 16

—

INTEREST OF AMICI CURIAE

The Circuit Court’s opinion in this case is generally

appropriate, with one major issue insufficiently developed

(as explained in Part II.A. herein) The District Court’s

opinions in this case (and the district court’s and Circuit

panel’s in Hamdi v. Rumsfeld) contained certain errors,

misstatements and improper standards that, if considered,

are of grave and pressing concern with respect to the right of

all persons under international law to independent, fair,

effective, and meaningful judicial review of the propriety of

their detention and, similarly, with respect to numerous and

predominant trends in U.S. judicial decisions (see especially

Part III.C herein). Human rights and other international

laws are also relevant to the content and contours of the

Fifth Amendment to the U.S. Constitution and to

congressional and Executive powers relevant to this petition.

Padilla and Hamdi are now both partly before this Court and

any errors and improper standards, if accepted, could have

serious and unwanted consequences. Amici curiae, the

international law professors named below, include the Amici

in Padilla before the Second Circuit or other professors who

have lectured and/or published widely on these and related

matters.’ This amicus memorandum sets forth their

considered views. Amici sign this memorandum on their own

behalf and not as representatives of their respective schools.

The affiliations of amici are listed in the appendix.

‘Letters of consent to the filing of this brief accompany this brief.

No counsel for a party authored this brief in whole or in part and no

person, other than Amici, their members, or their counsel, made a

monetary contribution to the preparation or submission of this brief.

-%

-2-

SUMMARY OF ARGUMENT

The Circuit Court’s opinion in this case is generally

correct, although needing further analysis concerning

relevant congressional powers, as considered in Part II.A.

herein. The District Court in this case, however, had made

certain errors and misstatements concerning appropriate

legal standards of review of the propriety of detention (see

Part III.C)-that, if accepted, could have serious unwanted

consequences. The District Court had been correct, however,

in affirming that there must be judicial review of the

propriety of the detention of Jose Padilla by the Executive

branch and access to a lawyer for such purpose. Human

rights and other international laws, which bind the United

States and are part of the law of the United States in various

ways, prohibit arbitrary detention and require independent,

fair, and effective judicial review. The status of Mr. Padilla

(e.g., as detainee, enemy combatant, or unlawful combatant)

will not obviate the reach of relevant human rights and other

international legal rights, nor would it limit the reach of the

Fifth Amendment to a U.S. citizen. The U.S. judiciary has

the power and responsibility under international law, Article

III of the U.S. Constitution, and numerous U.S. judicial

decisions applying international law, the Bill of Rights, and

other legal norms, to determine the legal status and rights of

persons detained by the Executive. The meaning of the Fifth

Amendment to the U.S. Constitution is also informed by

customary and treaty-based human rights to due process,

including access to courts and to judicial review of the

propriety of detention.

-3-

ARGUMENT

I. There Must Be Judicial Review of the Propriety

of Detention

Under international law and numerous U.S. judicial

decisions applying international law, the Bill of Rights, and

other legal norms, there are legal limits to the power to

detain persons without trial. Contrary to claims by the

Administration, judicial review of the propriety of detention

must be made available and no legal standard of review

permits complete deference to Executive determinations with

respect to the legal status and rights of persons detained

without trial. See Parts II & III below. It bears emphasis

that nothing in the U.S. Constitution or in relevant

international law authorizes suspension indefinitely of

constitutional rights applicable to a U.S. citizen on the mere

allegation or determination of status by members of the

Executive branch.

Il. Human Rights Law Prohibits Arbitrary

Detention and Requires Judicial Review

A. International Human Rights Law

Prohibits Arbitrary Detention

Under international law, which is part of the law of

the United States in several ways (see Part III.A & B), tests

concerning the propriety of detention include relevant human

rights standards that are both treaty-based and part of

customary international law; and they are applicable in

times of both peace and war. Human rights standards

-4-

recognized in nearly all major human rights instruments

include the fundamental prohibition of “arbitrary” arrest or

detention of individuals. See, e.g., Kim Ho Ma v. Ashcroft,

257 F.3d 1095, 1114 (9" Cir. 2001); Ma v. Reno, 208 F.3d 815,

830 (9 Cir. 2000); Martinez v. City of Los Angeles, 141 F.3d

1373, 1384 (9 Cir. 1992); De Sanchez v. Banco Central de

Nicaragua, 770 F.2d 1385, 1397 (5” Cir. 1985); Mehinovic v.

Vuckovic, 198 F. Supp.2d 1322, 1328-29, 1344, 1349-50, 1352,

1357-58, 1360 (N.D. Ga. 2002); Xuncax v. Gramajo, 886 F.

Supp. 162, 184 (D. Mass. 1995); Rodriguez-Fernandez v.

Wilkinson, 505 F. Supp. 787, 798-800 (D. Kan. 1980); infra

note 3; Report of the Working Group on Arbitrary Detention,

Civil and Political Rights, Including the Question of Torture

and Detention, para. 64, p.20, Comm’n on Hum. Rts., 59%

sess., item 11(a) of provisional agenda, E/CN.4/2003/8 (Dec.

.¢. 2002), availiable at

http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/

c58095e9f8267e6cc1256cc60034de72?Opendocument; Jordan

J. Paust, Judicial Power To Determine the Status and Rights

of Persons Detained Without Trial, 44 Harv. Int] L.J. 503,

505-07 (2003) (hereinafter Paust, Judicial Power].

As an example, Article 9(1) of the International

Covenant on Civil and Political Rights, Dec. 9, 1966, 999

U.N.T.S. 171 {hereinafter ICCPR], a treaty ratified by the

U.S., requires: “Everyone has the right to liberty and security

of person. No one shall be subject to arbitrary arrest or

detention. No one shall be deprived of his liberty except on

such grounds and in accordance with such procedure as are

established by law.” Among other relevant and binding

human rights instruments is the American Declaration of the

Rights and Duties of Man, O.A.S. Res. XXX (1948), O.A.S.

Off. Rec. OEA/Ser.L/V//1.4, rev. (1965), which is now a legally

-5-

authoritative indicia of human rights protected through

Article 3(k) of the O.A.S. Charter, a treaty of the United

States, done April 30, 1948, 119 U.N.T.S. 3, 2 U.S.T. 2394,

T.LA.S. No. 2631, amended by the Protocol of Buenos Aires,

done 27 Feb. 1967, 21 U.S.T. 607, T.1.A.S. No. 6847 [see also

id. arts. 44, 111). See, e.g., Advisory Opinion OC-10/89, Inter-

Am. Court H.R., (ser. A) No. 10, para. 45 (14 July 1989);

Inter-American Comm. on Human Rights, Report on the

Situation of the Inhabitants of the Interior of Ecuador

Affected by Development Activities, Chapter VII (1996),

O.A.S. Doc. OEA/Ser.L/V/II.96, doc. 10, rev. 1 (April 24, 1997)

(“The American Declaration...continues to serve as a source

of international obligation for all member states....”); see also

American Convention on Human Rights, preamble and art.

29(d), Nov 12, 1969,1144 U.N.T.S. 123, O.A.S. T.S. No. 36.

Article XXV of the Declaration assures: “No person may be

deprived of his liberty except in the cases and according to

the procedures established by pre-existing law.”

Whether Mr. Padilla is a peacetime detainee, a

wartime “enemy combatant” detained in the U.S., or a so-

called unlawful combatant detained in the U.S., is ultimately

unimportant, because every person has a fundamental

human right to freedom from arbitrary detention, every

person has a fundamental and peremptory human rignt to

judicial review of the propriety of detention (see next section),

and customary human rights to due process are incorporated

through common Article 3 of the 1949 Geneva Conventions

and apply to any person who is detained during an armed

conflict regardless of personal status. See, e.g., Paust,

Judicial Power, supra, at 505-14 & ns.27, 29 (demonstrating

that common Article 3 applies to all detainees, also provides

minimum guarantees in an international armed conflict, and

-6-

incorporates customary human rights to due process as

among “all the judicial guarantees which are recognized as

indispensable by civilized peoples”). Similarly, the President

has no power to suspend application of the Constitution,

especially the Fifth Amendment, to a U.S. detainee

regardless of the status of such a person and regardless of the

President’s provisional characterization. See Part III.B.

The Second Circuit panel in Padilla ruled that 18

U.S.C. § 4001(a) (2000) (the 1971 “Non-Detention” Act)

precluded Executive detention of U.S. citizens because the

Act requires that U.S. citizens shall not be “detained by the

United States except pursuant to an Act of Congress” and

that no such legislation exists. Padilla v. Rumsfeld, 352 F.3d

695 (2d Cir. 2003), quoting § 4001(a). We agree, although the

analysis was incomplete, given the authority under treaty

law of the United States to detain certain persons under

certain circumstances. First, the 1971 congressional

limitation of authority to detain should be interpreted

consistently with 1949 treaty-based authority to detain

outlined in Article 5 of the Geneva Civilian Convention, 75

U.N.T.S. 287. When a clash between the two is unavoidable,

there must be a clear, unequivocal intent of Congress to

override prior treaty law for the legislation to prevail under

the last-in-time rule (which is not evident from the face of the

1971 legislation or legislative history addressed by the

Second Circuit panel). See, e.g., Trans World Airlines, Inc. v.

Franklin Mint Corp., 466 U.S. 243, 352 (1984); Cook v.

United States, 288 U.S. 102, 120 (1933); Jordan J. Paust,

International Law as Law of the United States (2d ed. 2003)

(hereinafter Paust, International Law], at 99, 101, 120, 125

n.3, and other cases cited. Even when such an intent can be

demonstrated, there are Supreme Court-based exceptions to

-7-

the last-in-time rule that assure the primacy of treaty law

and one such exception requires that the law of war (at least

duties and rights thereunder) prevail. See, e.g., Paust,

International Law, supra, at 99-107, 120, and cases cited.

More generally, presidential power can be enhanced by

international law since the President must faithfully execute

law, including international law, and the duty creates a

competence to do so. See, e.g., id. at 9, 16, 44-47, 79, 82, 88,

180, 185, 457, 468-69, 480-81. Following this approach, it

might be argued that the President’s authority to detain

under Geneva law prevails over the 1971 Act.

Nonetheless, following the reasoning of cases such as

Brown v. United States, 12 U.S. (8 Cranch) 110, 129 (1814),

the competence of the United States to detain certain persons

under Articles 5, 42, and 78 of the Geneva Civilian

Convention is only exercisable by Congress. In Brown, the

majority recognized that the laws of war created a

competence for the United States to seize enemy property

located within the U.S. but held that such a competence must

be exercised by Congress. In dissent, Justice Story suggested

that the President could execute that competence since all

were in agreement that the President was bound to execute

the law of war during a war declared by Congress and

Congress had set no legislative limits on the President's

power to execute such laws or to carry on the war. /d. at 145,

149, 153. Even if one follows Story’s approach, however,

Congress has clearly set a limit on the power to detain U.S.

persons and the congressional limit would prevail. This

Court has recognized that Congress does have power to place

certain limits on the exercise of presidential powers during

war and occupation. See, e.g., United States v. Verdugo-

Urquidez, 494 U.S. 259, 275 (1990) (Rehnquist, C.J.)

-8-

(“restrictions on” executive use of “armed force” can be

imposed by “treaty, or legislation”); Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 602, 609-10 (1952)

(Frankfurter, J., concurring); id. at 635-36 n.2, 654-55

(Jackson, J., concurring); id. at 659-60 (Burton, J.,

concurring); id. at 662 (Clark, J., concurring); Santiago v.

Nogueras, 214 U.S. 260, 266 (1909) (limits during

occupation); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

407 (1819) (Congress has power to “conduct a war”); The

Thomas Gibbons, 12 U.S. (8 Cranch) 421, 427-28 (1814) (re:

seizure of ships abroad); Brown v. United States, 12 U.S. (8

Cranch) 110 (1814) (re: seizure of property here); The Flying

Fish, 6 U.S. (2 Cranch) 170, 177-78 (1804) (re: seizure of

ships abroad); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28

(1801) (same); Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40-42 (1800)

(same); United States v. Smith, 27 F. Cas. 1192, 1228-31

(C.C.D.N.Y. 1806) (Paterson, J., on circuit) (use of force

abroad); 9 Op. Att’y Gen. 516, 518-19 (1860) (Congress can

limit use of “land and naval forces” that are otherwise “under

his orders as their commander-in-chief”); see also U.S. Const.,

art. I, §8, cls. 11 (Congress has power to “make Rules

concerning Captures on Land and Water”), 14, 18.

Recognition that the Geneva Conventions prevail over the

1971 legislation would not answer the question whether it is

Congress or the Executive that has the power to exercise a

treaty-based competence on behalf of the United States to

detain certain persons even though the Executive is bound to

comply with duties and rights based in Geneva law (and,

similarly, Congress cannot abrogate duties or rights or

authorize their infraction, see, e.g., Paust, International Law,

supra, at 106-07, 109), nor would it answer the question

whether congressional power exists to set limits and, thus,

9.

has primacy, in case the power to detain is generally shared.

The Prize Cases, 67 U.S. (2 Black) 635 (1862), are not

inconsistent because, in earlier legislation, Congress had

specifically authorized the use of force in response to

invasions or insurrections and had placed no other limits in

the legislation. Ultimately, we agree that Congress has

appropriately set a limit.

B. International Human Rights Law

Requires Independent, Fair, and

Effective Judicial Review

When a person is detained by a state, human rights

law requires the availability of judicial review of the

propriety of detention. See, e.g, Paust, Judicial Power, supra,

at 507-10, and references cited. For example, as mandated

in Article 9(4) of the International Covenant on Civil and

Political Rights, “[aJnyone who is deprived of his liberty by

arrest or detention shall be entitled to take proceedings

before a court, in order that the court may decide without

delay on the lawfulness of his detention and order his releuse

if the detention is not lawful.” Access to courts for judicial

*Under a U.S. Senate declaration during ratification, if legally

operative, the ICCPR would be partly (not fully) non-self-executing.

Several amici consider the Senate declaration to be either void ab initio as

a matter of law (since it is inconsistent with the object and purpose of the

. Covenant — see, e.g., Restatement of the Foreign Relations Law of the

United States §313(1Xc) & cmt. c (Sed. 1987); Vienna Convention on the

Law of Treaties, May 22, 1969, art. 19%c), 1155 U.N.T.S. 131; Reservations

to the Convention on Genocide, [1951] I1.C.J. 15, 21) or inoperative because

it would not be compatible with the Supremacy Clause, U.S. Const. art. VI,

cl.2). In any event, the declaration expressly did not inhibit the reach of

Article 50 (which mandates in self-executing terms that all “[tjhe

-10-

determination of rights, minimum customary due process

guarantees, and the right to an effective remedy are also

guaranteed more generally under Article 14(1) of the ICCPR,

as supplemented by General Comments of the Human Rights

Committee created by the Covenant, and Articles XVIII and

provisions shall extend to all parts of federated States without any

limitations or exceptions.”) and the Executive intended only that the

ICCPR “not create a private cause of action directly under the treaty.”U.S.

Sen. Exec. Rep. 102-23, 31 1.L.M. 645, 648 (102d Cong, 2d Sess, 1992).

Also, the ICCPR can be used for other purposes (e.g., defensively or

indirectly through constitutional amendments or statutes), and the habeas

Statute executes for habeas purposes any other relevant, partly non-self-

executing provisions. See, e.g., United States v. Duarte-Acero, 208 F.3d

1282, 1284 (11 Cir. 2000) (despite declaration, ICCPR is supreme law of

the land); United States v. Duarte-Acero, 132 F. Supp.2d 1036, 1040 n.8

(S.D. Fla. 2001) (declaration does not apply when raising “ICCPR claims

defensively”); United States v. Bakeas, 987 F. Supp. 44 (D. Mass. 1997);

Paust, Fitzpatrick, Van Dyke, Jnternational Law and Litigation in the U.S.

75-76, 193-94 (West Group 2000). In this case, Mr. Padilla uses the

ICCPR defensively and as executed for habeas purposes by the habeas

statute.

Alternatively, the right is also customary international law and,

as such, is directly operative as law of the United States concerning

individual rights, judicial power and responsibility, and Executive

discretion. See, e.g., id. at 110-33, 169-70, 244-60; Paust, International

Law, supra, at 5-9, 143-46, and numerous cases cited. An express purpose

of the habeas statute is to allow habeas review for any person “in custody

in violation of...the laws or treaties of the United States.” 28 U.S.C. §

2241.

, *

XXV of the American Declaration.’ See, e.g., Paust, Judicial

Power, supra, at 507-10.

The human rights standard concerning judicial

review should involve contextual inquiry into whether

detention is reasonably needed under the circumstances and,

thus, is not arbitrary. However, under the Geneva Civilian

Convention, detention of alien persons in the U.S. who pose

threats to security during war must be “absolutely

necessary.” Id. art. 42; Paust, Judicial Power, supra at 512-

14 & n.29 (see also id. at 518-25, concerning judicial review,

and id. at 514-18 & ns.39-46, concerning private rights under

and use of the Geneva Conventions for habeas and other

purposes). Mr. Padilla, as a U.S. citizen, does not benefit

from Article 42, but he does have all of the minimum

customary human rights to due process (including judicial

review of detention) through common Article 3 of the Geneva

Conventions. See, e.g., Paust, Judicial Power, supra at 510-

14 & ns.27, 29.

..the Human Rights Committee [under the ICCPR]

has recognized that freedom from arbitrary detention

or arrest is a peremptory norm jus cogens (and is,

“The Human Rights Committee is an authoritative body.

“General Comments and decisions in individual cases are recognized as a

major source for interpretation of the ICCPR” and are “authoritative.”

Maria v. McElroy, 68 F. Supp.2d 206, 232 (E.D.N.Y. 1999). See United

States v. Bakeas, 987 F. Supp. 44, 46 n.4 (D. Mass. 1997) (“the Human

Rights Committee has the ultimate authority to decide whether parties’

clarifications or reservations have any effect.”); Report of the Committee,

1994 Report, vol. 1, 49 U.N. GAOR, Supp. No. 40, U.N. Doc. A/49/40, para.

5 (“General comments...are intended... [among other purposes] to clarify

the requirements of the Covenant....”); see also United States v. Duarte-

Acero, 208 F.3d 1282, 1285 n.12, 1287-88 (11" Cir. 2000). General

comments can be found at http//www1.umn.edu/humanrts/gencomm.

-12-

thus, a right of fundamental and preemptive

importance), has expressly declared that a state ‘may

not depart from the requirement of effective judicial

review of detention,’ and has affirmed that ‘the right

to take proceedings before a court to enable the court

to decide without delay on the lawfulness of the

detention must not be diminished by a State party’s

decision to derogate from the Convention.’ Similarly,

the Inter-American Court of Human Rights has

recognized that judicial guarantees essential for the

protection of nonderogable or peremptory human

rights are also nonderogable in times of emergency,

that the human right to be brought promptly before

a judge must be subject to judicial control, and that

judicial protection must include the right to habeas

corpus or similar petitions and cannot be suspended

during a time of national emergency. Finally, the

European Court of Human Rights has recognized that

detention by the Executive without judicial review of

the propriety of detention is violative of fundamental

human rights law. Such widespread recognition and

the jus cogens nature of the right to freedom from

arbitrary detention affirm the nonderogability of

judicial review and therefore require that the

executive branch may not exercise its discretion to

detain without independent, fair, and effective

judicial review. Indeed, it is difficult to imagine a

more arbitrary system of detention than one

involving an executive branch unbounded by law and

whose decisions are not subject to effective judicial

review.

-13-

Paust, Judicial Power, supra, at 507-10, and numerous

references cited.

Il. The Judiciary Has the Power and

Responsibility to Determine the Legal Status

and Rights of Detainees

The U.S. judiciary has the power and responsibility

under international law, Article III of the U.S. Constitution,

and numerous U.S. judicial decisions applying international

law, the Bill of Rights, and other legal norms to determine

the legal status and rights of persons detained.

A. Judicial Power Exists Under

International Law and Article III of the

Constitution

The Founders uniformly expected that the customary

law of nations, like treaties, was binding, was supreme law,

created private and governmental rights and duties, and

would be applicable in U.S. federal courts.‘ At the time of

the formation of the Constitution, John Jay had written:

‘For early views, including those of Bee, Bradford (Att’y Gen.),

Chase, Duponceau, Hamilton, Ingersoll, Iredell, Jay, Jefferson, Lee (Att'y

Gen.), Madison, Marshall, Mason, Nicholas, Paterson, Randolph (Att'y

Gen.), Story, B. Washington, Wilson, Wirt (Att’y Gen.), see, e.g., Paust,

International Law, supra; see also Louis Henkin, Foreign Affairs and the

United States Constitution 234, 610 n.20 (2ed. 1996); Edwin D. Dickinson,

The Law of Nations as Part of the Law of the United States, 101 U. Pa. L.

Rev. 26, 35-38, 43-46, 48-49, 55-56 (1952); Harold Hongju Koh, /s

International Law Really State Law?, 111 Harv. L. Rev. 1824, 1925, 1841,

1846, 1852 (1998).

<r’

“Under the national government...the iaws of nations, will

always be expounded in one sense...[and there is] wisdom...in

committing such questions to the jurisdiction and judgment

of ccurts appointed by and responsible only to one national

government..." In 1792, Attorney General Randolph

declared: “[t]he law of nations, although not specially

adopted...is essentially a part of the law of the land.” In

1793, then Chief Justice Jay recognized that “the laws of the

United States,” the same phrase found in Article III, § 2, cl.

1 and in Article VI, cl. 2 of the Constitution, includes the

customary “law of nations” and that such law was directly

incorporable for the purpose of criminal sanctions.’ That

same year it was affirmed that the “law of nations is part of

the law of the United States.”* Chief Justice Jay had also

charged a grand jury in Virginia that year in markedly

familiar words: “The Constitution, the statutes of Congress,

the law of nations, and treaties constitutionally made

*The Federalist No. 3, at 62 (John Jay) (J.C. Hamilton ed. 1868).

*1 Op. Att’y Gen. 26, 27 (1792). See also 1 Op. Att'y Gen. 68, 69

(1797) (“the law of nations in its fullest extent...[is] part of the law of the

land.”). See also The Nereide, 13 U.S. (9 Cranch) 388, 422-23 (1815), cited

in Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980); Paust,

International Law, supra, at 40 n.44, 41-42 n.45.

"Henfield’s Case, 11 F. Cas. 1099, 1101 (C.C.D. Pa. 179%) (No.

6,360); see also id. at 1103-04, 1112, 1115. See also Dickinson, supra note

3, at 46, 56 (“a constituent part of the national law of the United States...,”

adding: “the Constitution accepted the Law of Nations as national law....”

Id. at 48); Paust, International Law, supra, at 6-8, 34 n.38, 40-48 ns.44-57.

*United States v. Ravara, 2 U.S. (2 Dall.) 297, 299 n.* (C.C.D. Pa.

1793).

-15-

compose the laws of the United States.” In 1795, Justice

Iredell addressed direct incorporation of customary

international law and affirmed the fact of incorporation with

or without a statutory base: “[t)his is so palpable a violation

of our own law...of which the law of nations is a part, as it

subsisted either before the act of Congress on the subject, or

since....” Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 159-61 (1795)

(Iredell, J.). See also 1 Op. Att’y Gen. 566, 570-71 (1822) (law

of nations is part of “the laws of the country” and “our laws”).

With respect to the broad range of matters subject to

incorporation, he added: “all...trespasses committed against

the general law of nations, are enquirable....” Jd. An early

case had also expressly related the duty to incorporate

customary international law to the Constitution: “courts...

(ijn this country...are bound, by the Constitution of the

United States, to determine according to treaties and the law

of nations, wherever they apply.” Waite v. The Antelope, 28

F. Cas. 1341, 1341 (D.C.D. S.Car. 1807) (No. 17,045). Later,

Chief Justice Marshall affirmed that our judicial tribunals

“are established ...to decide on human rights.” Fletcher v.

Peck, 10 U.S. (6 Cranch) 87, 133 (1810), and human rights

precepts have been used since the dawn of the U.S. See, e.g.,

Paust, Judicial Power, supra, at 167-96.

Similar recognitions had occurred previously and

would occur throughout our history, demonstrating that

application of international law in cases otherwise properly

before the courts is emphatically within the province of

judicial power and the original intent of the Framers.

Quotations from merely a few other Supreme Court decisions

round out such recognitions. For example, in 1942 the

*Charge to Grand Jury for the District of Virginia, May 22, 1793.

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Supreme Court summarized its practice in ascertaining and

applying a portion of customary international law, the law of

war:

From the very beginning of its history this Court has

recognized and applied the law of war as including

that part of the law of nations which prescribes...the

status, rights and duties of enemy nations as well as

of enemy individuals.

Ex parte Quirin, 317 U.S. 1, 27 (1942). As affirmed in The

Paquete Habana, “International law is part of our law, and

must be ascertained and administered by the courts of justice

of appropriate jurisdiction, as often as questions of right

depending upon it are duly presented for their

determination.”

The judicial power to identify, clarify and apply

customary international law has a constitutional base.

Under Article III, § 2, cl. 1 of the Constitution, not only

might matters involving customary international law arise

under other parts of the Constitution as such or treaties, but

they can also arise as and under the phrase “the Laws of the

175 U.S. 677, 700 (1900) (emphasis added); see also id. at 708,

714 (“bound to take judicial notice of, and to give effect to” international

law; “it is the duty of this court”) (emphasis added). Concerning little

known claims of the Executive, the actual holding in Paquete Habana, and

more recent errors with respect to the rationale and ruling and misuse of

the case, see, e.g., Jordan J. Paust, Paguete and the President:

Rediscovering the Brief for the United States, 34 Va. J. Int'l L. 981 (1994).

See also Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 261

(1984) (O’Connor, J., opinion) (power “delegated by Congress to the

Executive Branch” as well as a relevant congressional-executive

“arrangement” must not be “exercised in a manner inconsistent

with...international law.”); Paust, International Law, supra, at 143-46, and

cases cited.

-17-

United States.” As recognized by the first Chief Justice of

the U.S. Supreme Court, this same phrase, “the laws of the

United States,” includes the customary “law of nations.”

Henfield’s Case, 11 F. Cas. 1099, 1101 (C.C.D. Pa. 1793) (No.

6,360) (Jay, C.J.). Thus, although treaties have an express

constitutional base in Article III, a primary base for judicial

incorporation of customary international law can be found in

the phrase “Laws of the United States” contained in the

same Article and also in Article VI, cl. 2, which affirms that

both treaties and “the Laws of the United States” are “the

supreme Law of the Land.”

As the Restatement recognizes: “Matters arising

under customary international law also arise under ‘the laws

of the United States,’ since international law is ‘part of our

law’...and is federal law.” Restatement, supra, § 111, RN 4;

see also id., cmt. e; Paust, International Law, supra, at 6-7,

41-42 n.45, and numerous cases cited; Paust, Judicial Power,

supra at 514-25. Thus, cases “arising under customary

international law” are “within the Judicial Power of the

United States under Article III, section 2 of the Constitution”

(Restatement, supra, § 111, cmt. e); and such law, “while not

mentioned explicitly in the Supremacy Clause,” is supreme

federal law within the meaning of Article VI, cl. 2 Ud. § 111,

cmt. d). For these reasons, the phrase “laws...of the United

States” contained in 28 U.S.C. § 1331 gives the district courts

original jurisdiction over all civil cases arising under

customary international law. Restatement, supra, § 111,

cmt. e and RN 4; Paust, International Law, supra, at 6-7, 43

n.48, andnumerous cases cited; Paust, Judicial Power, supra

at 514-25. Thus, a general jurisdictional competence exists

to apply customary international law as law of the United

States (including “substantive” rights, duties, causes of

-18-

action, nonimmunity, and rights to remedies thereunder)

under 28 U.S.C. § 1331 whether or not other statutes refer

expressly to the “law of nations” or to customary

international law and, thus, provide additional bases for

federal jurisdiction or additional substantive law.

Throughout our history, fundamental human rights

have also conditioned the meaning of due process under the

Fifth Amendment (see, e.g., Paust, International Law, supra,

at 192-93, 196, 248 n.392, 254-55 n.459, and cases cited; see

also Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1388-

89 (10 Cir. 1981)), and have been used as aids to interpret

the content of other amendments (see, eg., Paust,

International Law, supra, at 5-6, 34 n.37, 192-96, 246-55),

especially the Fourth Amendment concerning unlawful

seizures and detention (see, e.g., id. at 195, 248 n.392, 251

n.425, quoting especially Henry v. United States, 361 U.S. 98,

101 (1959) (“arrest on mere suspicion collides violently with

the basic human right of liberty.”)). The very purpose of the

Ninth Amendment was to guarantee unenumerated human

rights to all of our citizens. As demanded and expected by the

Framers, human rights are our own, see, e.g., id. at 323-26,

331-35, 339-40, passim, and such human rights can also

clarify the meaning of the Fifth Amendment. No one doubts

that Mr. Padilla is entitled to due process of law under the

Fifth Amendment. His customary and treaty-based

fundamental human right to independent, fair, effective, and

meaningful judicial review of the propriety of his detention

should also be used as an aid for interpretation of the

contours and meaning of his due process rights under the

Fifth and Ninth Amendments. The U.S. Constitution has

had significant impact abroad shaping human demands and

expectations, particularly with respect to an evolved and

-19-

global meaning of due process under customary human

rights law. For U.S. courts, evolved international due

process requirements will be familiar.

Since international law is law of the United States in

several senses noted above, the judiciary also has the power

to take judicial notice of and, thus, to identify and clarify

customary international law. See Paust, International Law,

supra, at 7, 46-47 n.53, and cases cited. More importantly,

such attributes of international law and judicial power

compel recognition that the judiciary is bound to identify,

clarify and apply customary international law in cases or

controversies otherwise properly before the courts. As

Justice Gray recognized in Hilton v. Guyot (and would

reiterate in The Paquete Habana):

International law in its widest and most

comprehensive sense...is part of our law, and must be

ascertained and administered by the courts of justice,

as often as such questions are presented in litigation

between man and man, duly submitted to their

determination.

Hilton v. Guyot, 159 U.S. 113, 163 (1895) (emphasis added).

Similar recognitions have existed throughout our

early history (see, e.g., Paust, International Law, supra, at 8,

47 n.56, and cases cited), and have found expression in more

recent federal opinions. See, e.g., id. at 8, 47-48 n.57, and

cases cited; Rodriguez-Fernandez v. Wilkinson, 505 F. Supp.

at 798-800. U.S. courts have also considered decisions of

international courts and commissions as well as foreign

courts addressing human rights in order to clarify human

rights protected through our Constitution and various

statutes. See, e.g., Paust, International Law, supra, at 3-4,

-20-

19-21 n.17, 25-26 n.23, and cases cited; see also Lawrence v.

Texas, 123 S.Ct. 2472 (2003) (re: liberty interest, due

process).

B. Judicial Power Is Recognized in Case

Law

More specifically, issues concerning prisoner of war

and other status, the propriety of detention, and provisional

characterizations by the Executive during war have been

reviewed by numerous courts according to international legal

standards regardless of the alleged status of the detainee.”

"See, e.g., Ex parte Quirin, 317 U.S. at 25, 27 (whether or not so-

called unlawful combatants); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 131

(1866) (despite insistence “that Milligan was a prisoner of war, and

therefore excluded from the privileges of the statute,” the Court concluded:

“liJt is not easy to see how he can be treated as a prisoner of war” under

the facts); id. at 134 (Chase, C.J., dissenting) (“Milligan was imprisoned

under the authority of the President, and was not a prisoner of war,” thus

demonstrating that the Court ultimately determines such status); United

States v. Guillem, 52 U.S. (11 How.) 47 (1850); The Nereide, 13 U.S. (9

Cranch) 398, 429 (1815); Colepaugh v. Looney, 235 F.2d 429, 431 (10 Cir.

1956) (regarding “access to the courts for determining the applicability of

the law of war to a particular case,” the Executive “could not foreclose

judicial consideration of the cause of restraint, for to do so would deny the

supremacy of the Constitution and the rule of law under it as construed

and expounded in the duly constituted courts of the land. In sum, it would

subvert the rule of law to the rule of man.”), cert. denied, 352 U.S. 1014

(1957); In re Territo, 156 F.2d 142 (9 Cir. 1946); United States v. Noriega,

808 F. Supp. 791, 793-96 (S.D. Fla. 1992); id., 746 F. Supp. 1506, 1525-29

(S.D. Fla. 1990); Ex parte Toscano, 208 F. 938, 942-44 (S.D. Cal. 1913)

(Executive detention of belligerents from Mexico during a Mexican civil

war was appropriate under Article 11 of the Hague Convention No. V

Respecting the Rights and Duties of Neutral Powers and Persons in Case

of War on Land, T.S. No. 540, 36 Stat. 2310 (18 Oct. 1907), and was not

-21-

In response to claims in Ex parte Quirin that Executive

unreasonable under the circumstances, including “admitted facts”; habeas

“petitioners are completely within the provisions” of the treaty; and it was

the President's “duty to execute said treaty provisions.”); Ex parte Orozco,

201 F. 106, 111-12 (arrest and imprisonment without trial of a person

suspected of organizing an expedition against Mexico in violation of

neutrality “merely upon an order directed by the President” were illegal

and “(could not] be sustained in a court of justice,” and “conditions then

existing repelled the thought that the intervention of the military was

necessary to the administration of justice,” “civil courts...were competent

to deal with all disturbers of the peace and with all persons offending

against the neutrality,” and it was the duty of the military to deliver the

detainees “to the civil authorities”), 118 (“assaults of arbitrary power” are

impermissible and despite the fact that the President “has earnestly and

persistently endeavored to enforce” neutrality and “was actuated by the

high motive to faithfully execute the laws,” such considerations “should not

affect the determination of legal questions” and, under the circumstances,

there had been an “unlawful exercise of power”) (W.D. Tex. 1912); id. at

111, also quoting 21 Op. Att'y Gen. 267, 273 (1895) (“executive has no

right to interfere with or control the action of the judiciary” concerning

“proceedings against persons charged with being concerned in hostile

expeditions”); Jn re Fagan, 8 F. Cas. 947, 949 (D.C.D. Mass. 1863) (No.

4,604) (re: “persons detained under military authority as soldiers or

prisoners of war, or spies,” “(t]he writ of habeas corpus is unquestionably

applicable to all these cases, and had long been actually and frequently

used therein.”); Jn re Keeler, 14 F. Cas. 173, 175 (D.C.D. Ark. 1843) (No.

7,637) (court will decide if detention is unlawful, will consider “the

circumstances,” and decide whether “reasonable grounds” support the

habeas petition, but if “upon his own showing” petitioner is “clearly a

prisoner of war and lawfully detained” denial of habeas is proper;

moreover, “a strong case ought to be made out” by the petitioner so as not

to unduly interfere with lawful military authority); Juando v. Taylor, 13

F. Cas. 1179, 1183 (D.C.S.D.N.Y. 1818) (No. 7,558) (“the parties in this war

must be considered as regularly at war under...protection of the...laws of

war; to be treated as prisoners of war”); Respublica v. Chapman, 1 U.S. 53,

59 (S.Ct. Pa. 1781) (“Those persons were, accordingly, treated as Prisoners

of War.”), and other cases cited in Paust, Judicial Power, supra at 518-25

& n.71, 525-26.

-22-

decisions are determinative and that, in any case, enemy

aliens being detained should be denied access to courts (317

U.S. at 23), the Supreme Court was emphatic that “neither

the [President’s] Proclamation nor the fact that they are

enemy aliens forecloses considerations by the courts of

petitioners’ contentions....” Jd. at 25. Indeed, as Ex parte

Quirin recognizes, legal status and rights under

international law are matters of law within the ultimate

prerogative of the judiciary. See also Part III.A.

U.S. courts have also made final determinations

concerning the propriety of seizures of persons abroad in

violation of international law” and have made final

determinations concerning the seizure of enemy or neutral

property in time of armed conflict, often in conflict with the

determinations of the Executive branch.” In Brown v.

"See, e.g., Eord v. United States, 273 U.S. 593, 606 (1927)

(Executive branch violation of a treaty would affect jurisdiction); United

States v. Toscanino, 500 F.2d 267, 276-79 (2d Cir. 1974), reh'g denied, 504

F.2d 1380 (2d Cir. 1974) (also quoting Shapiro v. Ferrandina, 478 F.2d

_ 894, 906 n.10 (2d Cir. 1973) (courts should assure “that the Executive lives

up to our international obligations”)); United States v. Yunis, 681 F. Supp.

909, 914-15 (D.D.C. 1988); id., 681 F. Supp. 896, 906 (D.D.C. 1988) (“The

government cannot act beyond the jurisdictional parameters set forth in

principles of international law....”); United States v. Ferris, 19 F.2d 925,

926 (N.D. Cal. 1927) (Executive seizure, in violation of customary

“international law” and a treaty, obviated jurisdiction and is “not to be

sanctioned by any court”); Paust, Judicial Power, supra at 518-25 & n.72.

See also United States v. Verdugo-Urquidez, 494 U.S. 259, 275 (1990)

(Rehnquist, C.J.); Cook v. United States, 288 U.S. 102 (1933) (seizure of

ship in violation of treaty).

"See, e.g., The Paquete Habana, 175 U.S. 677 (1900) (regarding

illegal seizures and detention of enemy ships, cargo and crew outside the

United States in time of armed conflict); Brown v. United States, 12 U.S.

-23-

United States, Justice Story affirmed that the President

during war “has a discretion vested in him, as to the manner

and extent, but 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.” 12 U.S. (8 Cranch)

110, 153 (1814) (Story, J., dissenting)."* Later, in Sterling v.

(8 Cranch) 110 (1814); The Flying Fish, 6 U.S. (2 Cranch) 170 (1804); see

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

v. Lee, 100 U.S. 196, 219-21 (1882); Miller v. United States, 78 U.S. (11

Wall.) 268, 314-16 (1870) (Field, J., dissenting) (“The power to prosecute

war...is a power to prosecute war according to the law of nations, and not

in violation of that law.”); The Prize Cases, 67 U.S. (2 Black) 635 (1862)

(judicial determination of the propriety of a blockade and seizures under

the laws of war, and the President “is bound to take care that the laws be

faithfully executed,” including the laws of war); United States v. Schooner

Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (The President cannot authorize

seizure of a vessel in violation of a treaty); Bas v. Tingy, 4 U.S. (4 Dall.) 37,

43 (1800) (Chase, J.) (war's “extent and operations are...restricted by...the

law of nations”); Johnson v. Twenty-One Bales, 13 F. Cas. 855, 863

(C.C.D.N.Y. 1814) (No. 7,417); Elgee's Adm'r v. Lovell, 8 F. Cas. 449, 454

(C.C.D. Mo. 1865) (No. 4,344) (Miller, J., on circuit) (concerning the “law

of natio.s, ...no proclamation of the president can change or modify this

law”); 11 Op. Att'y Gen. 297, 299-300 (1865) (laws of war and more general

laws of nations “are of binding force upon the departments and citizens of

the Government” and neither Congress nor the Executive can “abrogate

them or authorize their infraction.”); Paust, Judicial Power, supra, at 518-

25 & n.73; see also Paust, International Law, supra, at 143-46. Bas also

involved a judicial determination whether a war existed and who was an

“enemy.” See 4 U.S. (4 Dall.) at 39 (Moore, J.), 40-42 (Washington, J.), 43-

45 (Chase, J.), 46 (Paterson, J.).

“The majority did not disagree and affirmed that while exercising

presidential discretion, the Executive can only pursue the law. See id. at

128-29 (Marshall, C.J.). For uniform views of the Founders and other

cases recognizing that the President is bound by international law, see,

-24-

Constantin, the Court affirmed that the line between

permissible discretion and law is one that must be drawn by

the judiciary:

It does not follow from the fact that the Executive has

this range of discretion, deemed to be a necessary

incident of his power to suppress disorder, that every

sort of action the... [Executive] may take, no matter

how unjustified by the exigency or subversive of

private right and the jurisdiction of the courts, ... is

conclusively supported by mere executive fiat. What

are the allowable limits of military discretion, and

whether or not they have been overstepped in a

particular case, are judicial questions. Thus, in the

theatre of actual war, there are occasions in which

private property may be taken... [but] the officer may

show the necessity in defending an action... [before

the judiciary].

e.g., Paust, International Law, supra, at 143-46, 155-60 ns.6-38. See also

former Legal Advisor, U.S. Dep’t of State, Monroe Leigh, Is the President

above Customary International Law?, 86 Am. J. Int'l L. 757, 760, 762-63

(1992) (“When the President orders a violation of customary international

law,...he abuses his discretion and may be compelled by*. the courts to obey

the dictates of customary international law.”).

-25-

287 U.S. 378, 400-01 (1932).° The Court quoted Mitchell v.

“Concerning the extent of judicial review, see also id. at 403: “the

findings of fact made by the District Court are fully supported by the

evidence”; United States v. United States District Court, 407 U.S. 297, 316-

17 (1972) (members of the Executive branch “should not be the sole judges”

of their actions despite an Executive claim that a wiretap to gather

intelligence was “a reasonable exercise of the President’s power...to protect

the national security.” Jd. at 299-301); Woods v. Cloyd W. Miller Co., 333

U.S. 138, 146-47 (1948) (Jackson, J., concurring); Korematsu v. United

States, 323 U.S. 214, 218 (1944) (Black, J.) (“we cannot reject as

unfounded the judgment of the military” and there is “ground for

believing,” quoting Hirabayashi v. United States, 320 U.S. 81, 99 (1943)

(which also stated that in context, “[vjiewing these data in all their

aspects,” the political branches “could reasonably have concluded”; id. at

98)); id. at 234 (Murphy, J., dissenting) (“it is essential that there be

definite limits to military discretion ... the military claim must subject

itself to the judicial process of having its reasonableness determined and

its conflicts with other interests reconciled...,” next quoting Sterling v.

Constantin, and adding: “The judicial test ... is whether the deprivation is

reasonably related to a public danger that is so ‘immediate, imminent, and

impending’ as not to admit of delay and not to permit the intervention of

ordinary constitutional processes to alleviate the danger.”)); Ex parte

Bollman, 8 U.S. (4 Cranch) 75, 101 (1807) (Court decided that there was

not sufficient evidence to show that petitioners were levying war against

the United States); Ex parte Merryman, 17 F. Cas. 147, 148-50(C.C.D. Md.

1861) (No. 9,487); United States ex rel. Zdunic v. Uhl, 137 F.2d 858, 861

(2d Cir. 1943) (regarding Executive detention of an alleged German enemy

alien, “[o]n these and any other disputed facts he-is entitled to a judicial

inquiry before the court can determine whether his relation to the German

‘nation or government’ brings him within the statutory definition of alien

enemies.”); Korematsu v. United States, 584 F.Supp. 1406, 1420 (N.D. Cal.

1984) (“the shield of military necessity and national security must not be

used to protect governmental actions from close scrutiny and

accountability.”); Cruikshank v. United States, 431 F. Supp. 1355, 1359 (D.

Haw. 1977) (“The Government should not have the ‘discretion’ to commit

illegal acts... In this area, there should be no policy option... [and] there

is no exception to this rule for the acts of the CLA”); Johnson v. Jones, 44

-26-

Harmony, “Every case must depend on its own

circumstances.” 287 U.S. at 401, quoting 54 U.S. (13 How.)

115, 134 (1851).

Judicial review of military actions taken under

circumstances of claimed “necessity” during war has also

occurred in other cases and involved contextual inquiry

whether military actions were required, “reasonable,” or

plainly justified.” Thus, exercise of war or national security

powers must not only fall within the limits of law, but also

must not take exception in the name of “necessity” or under

some theory that the end justifies the means. To this sort of

claim, the Supreme Court gave an apt reply in Ex parte

Milligan: ~

—

Ill. 142, 147-48, 160-61 (1867), quoted in Ex parte Orozco, 201 F. at 115-17;

supra notes 12-14; infra note 17.

“See, e.g., Raymond v. Thomas, 91 U.S. 712, 716 (1875) (when

reviewed under the circumstances, a military order was recognizably

arbitrary and void, the court adding: “It is an unbending rule of law, that

the exercise of military power, where the rights of the citizen are

concerned, shall never be pushed beyond what the exigency requires” as

determined by the courts); United States v. Russell, 80 U.S. (13 Wall.) 623,

627-28 (1871) (judicial inquiry obtained whether there was “a state of facts

which plainly lead to the conclusion that the emergency was such that it

justified” an action); Mitchell v. Harmony, 54 U.S. (13 How.) 115, 134-35

(1851) Gudicial review of military action involves inquiry whether there is

“reasonable ground for believing” that a seizure is required and “it is not

sufficient to show that he exercised an honest judgment...; he must show

by proof the nature and character of the emergency, such as he had

reasonable grounds to believe....”); Paust, Juaicial Power, supra at 618-25

& n.80; see also Paust, International Law, supra, at 143-46, and cases

cited; supra notes 11-14.

-27-

Time has proven the discernment of our ancestors....

Those great and good men foresaw that troublous

times would arise, when rulers and people would

become restive under restraint, and seek by sharp

and decisive measures to accomplish ends deemed

just and proper; and that the principles of

constitutional liberty would be in peril, unless

established by irrepealable law.... The Constitution of

the United States is a law for rulers and people,

equally in war and in peace, and covers with the

shield of its protection all classes of men, at all times,

and under all circumstances. No doctrine, involving

more pernicious consequences, was ever invented by

the wit of man than that any of its provisions can be

suspended during any of the great exigencies of

government. Such a doctrine leads directly to

anarchy or despotism, but the theory of necessity on

which it is based is false; for the government, within

the Constitution, has all the powers granted to it,

which are necessary to preserve its existence...

71 U.S. (4 Wall.) 2, 120-21 (1866). The Court also

emphasized that precisely at such times “the President...is

controlled by law, and has his appropriate sphere of duty,

which is to execute... [and not violate] the laws,” Jd. at 121,

adding: “[b]y the protection of the law human rights are

secured; withdraw that protection, and they are at the mercy

of wicked rulers....” Jd. at 119.

-28-

Cc. The Standard of Review Must Involve

Independent, Fair, Effective, and

Meaningful Judicial Review

As overwhelming trends in judicial decision and

relevant international law demonstrate, the standard for

judicial review must involve independent, fair, effective, and

meaningful judicial review of the propriety of detention. See

Parts II.B and III.A & B. It can be noted that the District

Court in Padilla did not use such standards and provided far

too much deference to the Executive when alleging that

courts should only determine whether the Executive has

presented “some evidence” to support detention without trial.

233 F. Supp.2d 564, 610 (S.D.N.Y. 2002). This is not the

standard of proof. There must be inquiry into whether

detention is reasonably needed under the circumstances.

Further, in time of war, there must be independent inquiry

into whether detention of certain aliens is absolutely

necessary. See Part II.B; Paust, Judicial Review, supra, at

Parts II.A.2 & C.2 and III.C.2. Padilla II rightly required

access to a lawyer, rightly recognized his right to respond

(including his right to present facts), and rightly recognized

that there must be judicial review beyond the Executive’s

evidence (see 243 F. Supp.2d 42, 53-54, 56 (S.D.N.Y. 2003);

Paust, Judicial Review, supra, at Part III.C.2), but the “some

evidence” standard, even as expanded, is not the correct

standard. The District Court also assumed in error (per

dicta) that if Padilla had been captured abroad in a zone of

active combat operations that he would have no right to

present facts. 243 F. Supp.2d at 56-57. Compare cases

supra, notes 15-20. Statements in Hamdi v. Rumsfeld, 316

F.3d 450, 476 (4™ Cir. 2003), clearly contrary to venerable

-29-

Supreme Court precedent noted herein, that Hamdi was “not

entitled to challenge the facts presented” by the Executive

and that judicial “inquiry must be circumscribed to avoid

encroachment into...military affairs” (id.. at 473), were

clearly in error and threatening to civil liberties. There must

be a proper check on Executive power in wartime based upon

law when liberty and other legal rights are directly in peril,

as required by independence and responsibilities of the

judiciary under Article III of the Constitution, the Fifth

Amendment, and various international laws noted above.

CONCLUSION

For the foregoing reasons, we support the decision of

the Second Circuit in Padilla. Further, the legal errors and

misstatements by the District Court in Padilla concerning

judicial review of the propriety of detention and standards

for judicial review should not guide inquiry, and proper legal

standards for independent, fair, effective, and meaningful

judicial review should be utilized.

Respectfully submitted on behalf of amici,

Linda A. Malone*

Marshall-Wythe Foundation Professor of Law

College of William & Mary School of Law

613 South Henry Street, Suite NW 240

Williamsburg, VA 23187

(757) 221-3844

-30-

Jordan J. Paust

Law Foundation Professor

University of Houston Law Center

100 Law Center

Houston, TX 77204

*Counsel of Record for Amici Curiae

Appendix-1

William J. Aceves is Professor of Law and Director of

the International Legal Studies Program at California

Western School of Law.

Jeffrey F. Addicott is Assistant Professor of Law and

Director of the Center for Terrorism Law at St. Mary’s

University School of Law.

Deborah Anker is Director of Harvard Immigration

and Refugee Clinic.

Donna E. Arzt is the Bond, Schoeneck and King

Distinguished Professor of Law at Syracuse University

College of Law and Co-Director of the school’s Center for

Global Law and Practice.

M. Cherif Bassiouni is Professor of Law and President

of the International Human Rights Institute at De Paul

University.

Michael J. Bazyler is Professor of Law at Whittier

Law School.

Karima Bennoune is Assistant Professor of Law at

Rutgers University School of Law, Newark.

Nathaniel Berman is Professor of Law at the

Brooklyn Law School.

Paul Schiff Berman is Professor of Law at the

University of Connecticut School of Law.

Charles Biblowit is Professor of Law at St. John’s

University School of Law.

Richard B. Bilder is Foley & Lardner-Bascom

Emeritus Professor of Law at the University of Wisconsin

Law School.

Appendix-2

Christopher L. Blakesley is Professor of Law at the

William S. Boyd School of Law at the University of Nevada,

Las Vegas.

Carolyn Patty Blum is Clinical Professor of Law at

the University of California at Berkeley.

Leslie A. Burton is Professor of Legal Writing and Co-

Director of Solving Legal Problems Program at the Golden

Gate University Law School, San Francisco, California.

Ahmed I. Bulbulia is Professor of Law at Seton Hall

University Law School.

Cindy G. Buys is Assistant Professor of Law at the

Southern Illinois University School of Law.

Roger S. Clark is Board of Governors Professor of Law

at Rutgers University School of Law, Camden.

Marjorie Cohn is Professor of Law at the Thomas

Jefferson School of Law.

Anthony D’Amato is Leighton Professor of Law at

Northwestern University School of Law.

Connie de la Vega is Professor of Law at the

University of San Francisco School of Law.

Nora V. Demleitner is Professor of Law at the Hofstra

University School of Law.

Daniel H. Derby is Professor of Law and Director of

International Programs at the Touro Law Center.

Laura Dickinson is Associate Professor at the

University of Connecticut School of Law.

David M. Driesen is Associate Professor at Syracuse

University College of Law.

Robert F. Drinan, S.J., is Professor of Law at

Georgetown University Law Center.

Appendix-3

Mark A. Drumbl is Assistant Professor and Ethan

Allen Faculty Fellow at the Washington & Lee University

School of Law.

Gabriel Eckstein is Associate Professor of Law at the

Texas Tech University School of Law.

George E. Edwards is Professor of Law and Director

‘of Program in International Human Rights Law at the

Indiana University School of Law.

Valerie Epps is Professor of Law and Director of the

International Law Concentration at Suffolk University Law

School.

Stephanie Farrior is Professor of Law at the

Pennsylvania State University, Dickinson School of Law.

David S. Favre is Professor of Law at the Michigan

State University-DCL College of Law.

James R. Fox is Professor of Law at the Dickinson

School of Law of the Pennsylvania State University.

Kenneth S. Gallant is Professor of Law and Director

of Clinical Programs at the University of Arkansas at Little

Rock, William H. Bowen School of Law.

Alejandro M. Garro is Adjunct Professor of Law at

Columbia University School of Law.

Ibrahim J. Gassama is Associate Professor of Law at

the University of Oregon School of Law.

Dr. Michael J. Godreau-Robles is Professor of Law at

the University of Puerto Rico School of Law, Rio Piedras,

Puerto Rico.

Gunther Handl is Eberhard Deutsch Professor of

Public International Law at Tulane University School of

Law.

Appendix-4

Berta Esperanza Hernandez-Truyol is Levin, Mabie

& Levin Professor of Law at the University of Florida College

of Law.

Richard A. Hesse is Emeritus Professor of Law at the

Franklin Pierce Law Center.

Kirk W. Junker is Assistant Professor and Director of

International Programs at Duquesne University School of

Law.

Michael J. Kelly is Associate Professor of Law at the

Creighton University School of Law.

Walter J. Kendall, III is Professor of Law at the John

Marshall Law School.

Mattias Kumm is Professor of Law and Director of the

J.S.D. Program at the New York University School of Law.

Michael A. Lawrence is Professor of Law at Michigan

State University College of Law.

Hope Lewis is Professor of Law at the Northeastern

University School of Law.

Bert B. Lockwood is Distinguished Service Professor

and Director of the Urban Morgan Institute for Human

Rights at the University of Cincinnati College of Law.

Linda A. Malone is Marshall-Wythe Foundation

Professor of Law at The College of William and Mary School

of Law.

Stephen C. McCaffrey is Distinguished Professor and

Scholar at the UOP McGeorge School of Law. .

Jonathan Miller is Professor of Law at the

Southwestern University School of Law.

M. Nicole Morrison is Clinical Instructor and Staff

Attorney in the Immigration Law Clinic at the Thurgood

Marshall School of Law.

Appendix-5

James A.R. Nafziger is Thomas B. Steol Professor of

Law and Director of International Law Programs at

Willamette University College of Law.

Ved Nanda is John Evans University Professor and

Thomas G. Marsh Professor of Law at the University of

Denver College of Law.

John A. Maher is Emeritus Dean and Professor at The

Dickinson School of Law at The Pennsylvania State

University.

Saul Mendlovitz is Dag Hammarskjold Professor of

Law at the Rutgers Law School-Newark.

James R. Maxeiner is Visiting Associate Professor of

Law at the University of Missouri-Kansas City School of

Law.

Jennifer Moore is Professor of Law and Associate

Dean for Academic Affairs at the University of New Mexico

School of Law.

Ved P. Nanda is Evans University Professor,

Thompson G. Marsh Professor and Director, International

Legal Studies Program at the University of Denver College

of Law.

Kevin Outterson is Associate Professor of Law at the

West Virginia University School of Law.

Daniel G. Partan is Professor of Law and William

Butler Scholar in International Law at Boston University

School of Law.

Jo M. Pasqualucci is Professor of Law at the

University of South Dakota School of Law.

Jordan J. Paust is Law Foundation Professor at the

University of Houston Law Center and Co-Director of the

International Law Institute.

Appendix-6

Randall Peerenboom is Professor of Law at the UCLA

School of Law.

Michael J. Perry is Robert W. Woodruff Professor of

Law at Emory University School of Law.

Ellen Podgor is Professor of Law at the Georgia State

University School of Law.

Harry G. Prince is Professor of Law at the University

of California - Hastings College of the Law.

John Quigley is President’s Club Professor in Law at

The Ohio State University College of Law.

Paula R. Rhodes is Associate Professor of Law and

Director of LL.M. in American & Comparative Law at the

University of Denver College of Law.

Henry J. Richardson III, is Professor of Law at

Temple University School of Law.

Toni Robinson is Professor of Law at the Quinnipiac

University School of Law.

Catherine A. Rogers is Long-Term Visiting Associate

Professor of Law at the Universita Commerciale Luigi

Bocconi in Milan, Italy and Associate Professor of Law at the

Paul M. Hebert Law Center at the Louisiana State

University.

Naomi Roht-Arriaza is Professor of Law at the

University of California Hastings College of Law.

Leila Sadat is Professor of Law at Washington

University St. Louis School of Law.

Matsu Taylor Saito is Professor of Law at the Georgia

State University College of Law.

Michael P. Scharf is Professor of Law and Director of

the Frederick K. Cox International Law Center at Case

Western Reserve University School of Law.

Appendix-7

Steve Shepard is Professor of Law at the University

of Arkansas School of Law.

Peter J. Spiro is Professor of Law at the Hofstra

University Law School.

Barbara Stark is College of Law Faculty Scholar and

Professor of Law at the University of Tennessee.

Beth Stephens is Professor of Law at Rutgers

University School of Law, Camden.

Jonathan K. Stubbs is Professor of Law at The

University of Richmond School of Law.

Allen N. Sultan is Professor of Law at the University

of Dayton Law School.

Mark A. Summers is Professor of Law at Barry

University, Dwayne O. Andreas School of Law.

Frederick Tse-shyang Chen is Professor of Law at

Quinnipiac University.

A. Dan Tarlock is Distinguished Professor of Law at

the Chicago-Kent College of Law.

Fernando R. Tesén is Tobias Simon Eminent Scholar

- at Florida State University College of Law.

Johan D. van der Vyver is I.T. Cohen Professor of

International Law and Human Rights at Emory University

School of Law.

Jon M. Van Dyke is Professor of Law at the William

S. Richardson School of Law, University of Hawaii at Manoa.

Burns H. Weston is Bessie Dutton Murray

Distinguished Professor of Law Emeritus and Director of the

UI Center for Human Rights at the University of lowa

College of Law.

Gabriel Wilner is Charles Kirbo Professor of

International Law at the University of Georgia School of

Law.

Appendix-8

Richard J. Wilson is Professor of Law and Director of

the International Human Rights Law Clinic at American

University, Washington, D.C.

Jeanne M. Woods is Henry F. Bonura, Jr.

Distinguished Professor of Law at Loyola University School

of Law, New Orleans.

Eric K. Yamamoto is Professor of Law at the

University of Hawaii School of Law.