# Amicus Curiae Brief — Rumsfeld v. Padilla

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0732%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 426

## Text

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.

-16-

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0732%3A16. Public record. Not legal advice.