Amicus Curiae Brief — Rumsfeld v. Padilla

, we U.S |

ie | APR 12 2004 |

eat il OFFICE OF THE a,

IN THE

Supreme Court of the Gnited States

DONALD RUMSFELD,

Petitioner,

V.

JOSE PADILLA AND 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 LAW OF WAR EXPERTS

AS AMICI CURIAE IN SUPPORT OF

THE RESPONDENT

DAVID J. SCHEFFER *

GEORGETOWN UNIVERSITY

LAW CENTER

600 New Jersey Ave., N.W.

Washington, DC 20001-2075

(202) 662-993 |

JEFFREY K. WALKER

INSTITUTE FOR INTERNATIONAL

LAW AND POLITICS,

GEORGETOWN UNIVERSITY

37th and O Streets, N.W.

Washington, DC 20057

* Counsel of Record (703) 323-9255

| ee en ee me ee or RE TT aN Se een me een

Wit SON-EPES PRINTING CO., IN (202) 789-0096 -— WASHINGTON.D C. 20001

TABLE OF CONTENTS

Page

a eB ee ietranesctnntcmnenscsnsnsencnsmensnssens il

INTEREST OF AMICUS CURIAE .........cccccssscssssseeeesees l

SUMMARY OF ARGUMENT .....000.......ccecececeeeeeeeeeeees

FOS cernensctmnnscccsnnnsesnisentennsssereenaseenssemeneniunenanees

I. CUSTOMARY INTERNATIONAL LEGAL

NORMS THAT MANDATE FUNDA-

MENTAL GUARANTEES FOR _INDI-

VIDUAL RIGHTS ARE THE LAW OF THE

SE CIS We Pcccnsnccsencremsenensnsccsneccenmmmancenseve 4

A. U.S. Constitutional Practice, Foreign

Practice, And International Treaty Provi-

sions Establish, Through The Conjunction

Of State Practice And Opinio Juris, That

Certain Individual Rights Are Customary

I i tennscctennsmtsntimenrnnennes 5

B. Article 75 Of 1977 Protocol I Enumerates

The Rights Established Through Cus-

tomary International Law As Fundamental

ID csenscmnesncerninccnnsneasnmecssenisesnmenmenn 9

C. Petitiener’s Alleged Status As An “Enemy

Combatant” In No Way Affects His

Entitlement To These Fundamental

eR i cncncsncccnnenscssennmmeasienaecsmeenn 11

Il. THE GOVERNMENT IS OBLIGATED TO

RESPECT AND ENSURE PROTECTION OF

THESE FUNDAMENTAL GUARANTEES... 14

CONCLUSION ............. eesunesussecessuessanenssesnensesssassnsmensets 15

(i)

il

TABLE OF AUTHORITIES

CASES

The Nereide, 13 U.S. 388 (1815)........:ccseeseeeeeees

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

U.S. v. Shakur, 690 F. Supp. 1291 (S.D.N.Y.

CONSTITUTIONAL PROVISIONS

U.S. Const. amends. I-VIII, XIII-XV & XIX......

STATUTES

FED. R. Crim. P. 5, 6, 16, 23 & 31 ......ccccscccsscsseseees

Uniform Code of Military Justice, 10 U.S.C.

6S GREE cccssecseencnsnsnssttenenineemmmeimaaal

FOREIGN STATUTES

French Criminal Procedure Code, Bk. I, Title III,

§V (1988 tr. Kock & Frase)............csccsssesseees

German Code of Criminal Procedure, Bk. I, Title

IX, Title X, Title XI, (1965 tr. Niebler &

Swedish Code of Judicial Procedure, Ch. 24,

§§ 4-24 (1979 tr. Burzelius & Ginsburg) ..........

TREATIES

American Convention on Human Rights, Nov.

22, 1969, 1144 U.N.T.S. 123, 9 LL.M. 673 ......

Geneva Convention [I] for the Amelioration of

the Condition of the Wounded and Sick in

Armed Forces in the Field, Aug. 12, 1949,

6 U.S.T. 3114, TS UPS TB. BE ccccccccessssssssssssssses

Geneva Convention [II] for the Amelioration of

the Condition of the Wounded, Sick and

Shipwrecked Members of Armed Forces at

Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75

Uh |

ill

TABLE OF AUTHORITIES—Continued

Geneva Convention [III] Relative to the Treat-

ment of Prisoners of War, Aug. 12, 1949,

6 U.S.T. 3316, 75 U.N.T.S. 1351 o..........ceeceees

Geneva Convention [IV] Relative to the

Protection of Civilian Persons in Time of War,

Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 ...

International Covenant on Civil and Political

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

Protocol Additional [I] to the Geneva

Conventions of Aug. 12, 1949, and Relating to

the Victims of International Conflicts, June 8,

1977, 1125 U.N.T.S. 3, 16 LL.M. 1391 ............

Statute of the International Court of Justice, 59

SE

OTHER AUTHORITIES

AIR FORCE INSTRUCTION 51-401, TRAINING AND

REPORTING TO ENSURE COMPLIANCE WITH

THE LAW OF ARMED CONFLICT (1994) ..............

ARMY FIELD MANUAL 27-10, THE LAW OF LAND

EN CI reesnssenemannensssmnenenevenseseses

CHARTER OF RIGHTS AND FREEDOMS, arts. 7-14

|

CJCSI 3121.01A, STANDING RULES OF EN-

GAGEMENT FOR U.S. FORCES, encl. A (Jan.

DAVID J. BEDERMAN, CHRISTOPHER J. BORGEN &

DAVID J. MARTIN, INTERNATIONAL LAW: A

HANDBOOK FOR JUDGES 26-30 (2003)...............

THE DECLARATION OF INDEPENDENCE para. 3

I IIT hicritteinenerensiesnanieieemeiemeeinimpnemmmmaes

iv

TABLE OF AUTHORITIES—Continued

DECLARATION OF THE RIGHTS OF MAN, arts. 7-11

SPIED Fee nccnnenmnememenenne

DEPARTMENT OF DEFENSE DIRECTIVE 5100.77,

DoD LAW OF WAR PROGRAM (Dec. 1998)........

INTERNATIONAL AND OPERATIONAL LAW DE-

PARTMENT (THE JUDGE ADVOCATE GENERAL’S

SCHOOL, U.S. ARMY), OPERATIONAL LAW

ee

JOHN A. BOYD, OFFICE OF THE LEGAL ADVISER,

DEPARTMENT OF STATE, DIGEST OF UNITED

STATES PRACTICE IN INTERNATIONAL LAW

gg Ie

JORDAN J. PAUST, INTERNATIONAL LAW AS LAW

OF THE UNITED STATES 7-11 (2d ed. 2003)........

Michael Matheson, The United States Position

on the Relation of Customary International

Law to the 1977 Protocols Additional to the

1949 Geneva Conventions, Remarks before

Session One of the Humanitarian Law

Conference (Fall 1987), in 2 AM. U. J. INT'L

5 £0, a

MAGNA CARTA (1297), ART. XX, XXIV, XXXIX,

ee a een

Melysa Sperber, John Walker Lindh and Yaser

Esam Hamdi: Closing the Loophole in

International Humanitarian Law for American

Nationals Captured Abroad While Fighting

with Enemy Forces, 40 AM. CRIM. L. REV. 159

OFFICE OF THE LEGAL ADVISER, DEPARTMENT OF

STATE, CUMULATIVE DIGEST OF UNITED

STATES PRACTICE IN INTERNATIONAL LAW

1981-1988 3434-3435, 3441 (1995)...

Page

13

12

Vv

TABLE OF AUTHORITIES—Continued

Patrick E. Tyler, Ex-Guantanamo Detainee

Charges Beating, N.Y. TIMES, Mar. 12, 2004,

CREE wecernnseneemmeneeeen

Reagan, President’s Message to the Senate

Transmitting the Protocol, 23 WEEKLY Comp.

PRES. DOC. 91 (Jam. 29, 1987) ..........cccccceeeeeees

Restatement (Third) of the Foreign Relations

Law of the United States § 102 (1987)..............

THE DECLARATION OF INDEPENDENCE para. 3

ee

Thomas E. Ricks, Commander Punished as Army

Probes Detainee Treatment, WASH. POST, Apr.

GOR RGD cnnmentemmmemmnmenen

U.S. Department of State, Human Rights (2003),

available at http://www.state.gov/g/dri/hr.........

Page

13

13

IN THE

Supreme Court of the Anited States

No. 03-1027

DONALD RUMSFELD,

Petitioner,

Vv.

JOSE PADILLA AND 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 LAW OF WAR EXPERTS

AS AMICI CURIAE IN SUPPORT OF

THE RESPONDENT

INTEREST OF THE AMICUS CURIAE

Pursuant to Federal Rule of Appellate Procedure 29(a),

both parties to this case, namely Theodore B. Olson, Solicitor

General, Attorney for Petitioner-Appellees United States of

America, George W. Bush, Donald H. Rumsfeld and M.A.

Marr, Commander, and Donna R. Newman, Esq., Attorney

for Respondent-Appellant Jose Padilla, have consented to the

filing of this brief by amici curiae.

Amici curiae are experts on the law of war and inter-

national humanitarian law. ~

—

2

David J. Scheffer is a visiting professor at Georgetown

University Law Center, where he teaches public international

law, international institutions law, and international criminal

law. He is the former U.S. Ambassador-at-Large for War

Crimes Issues (1997-2001) and exercised significant respon-

sibility within the U.S. Government for the investigation

and prosecution of atrocity crimes (genocide, crimes against

humanity, and war crimes) on a global basis. On behalf of

the U.S. Government, he negotiated the statutes of and coor-

dinated support for the international and hybrid criminal

tribunals of the last decade exercising jurisdiction over

atrocity crimes. He is a member of the New York, District of

Columbia, and Supreme Court Bars.

Lt. Col. Jeffrey K. Walker (Ret.) is a Senior Fellow at the |

Institute for International Law and Politics at Georgetown

University. He served as a judge advocate in the U.S. Air

Force (1988 - 2003). During his tenure, he acted as legal

advisor on law of armed conflict policy and implementation

and served as law of war advisor to U.S. Air Force

Headquarters at the Pentagon. He also taught the law and

ethics of war as an adjunct professor of law at the College of

William & Mary. He is a member of the Illinois Bar.

They file this brief to bring to the Court’s attention critical

fundamental guarantees in international humanitarian law that

have been overlooked in both the Petitioner’s and Respon-

dent’s pleadings in this case.

SUMMARY OF ARGUMENT

In this case, the Government has stressed the need to

obtain potential intelligence from Respondent Jose Padilla

regarding future terrorist acts and has thus sought to justify

the extreme measures taken to obtain this information. Such

measures include denying Padilla the rights and privileges of

a prisoner of war, refusing to bring criminal charges against

him, and creating a legal black hole within the territory of the

ee -

_e 2.

3

United States through tortured interpretations of consti-

tutional rights, the law of war, international humanitarian law,

and the jurisprudence of this Court=all with the aim of

preventing judicial scrutiny. The decision of the Court of

Appeals, the pleadings of Padilla’s counsel, and other

amicus briefs address these issues with strong and well-

reasoned arguments.

This amicus brief addresses only one critical issue that

might otherwise be overlooked. In the event this Court re-

verses (in full or in part) the Court of Appeals and agrees with

the Government’s contention that “Padilla is an enemy

combatant closely associated with al Qaeda and should be

detained as such in the course of the ongoing conflict,” (Pet.

14), this Court should instruct the Government to provide all

fundamental guarantees contained in Article 75 of Protocol I

Additional to the Geneva Conventions of 12 August 1949,

and Relating to the Protection of Victims of International

Armed Conflicts [hereinafter 1977 Protocol I].'

Such fundamental guarantees constitute customary inter-

national law binding on the Government by the long usage of

civilized states coupled with a universally recognized opinio

juris reflected in widespread incorporation of these funda-

mental guarantees into domestic and international legal

instruments. These fundamental guarantees include inter alia

respect for one’s honor and religious practices, protection

against violence to one’s physical or mental well-being,

prompt notification of the reasons for one’s detention, release

from detention with minimum delay, and protection against

post facto criminalization of one’s actions. These customary

international law fundamental guarantees are enumerated and

memorialized in Article 75 of 1977 Protocol I. As a result,

Article 75 constitutes a provision of customary international

' International treaties are referred to herein in an abbreviated form.

Complete citations are provided in the Table of Authorities.

4

law protecting Padilla’s individual rights and binding upon

the Government.

ARGUMENT

I. CUSTOMARY INTERNATIONAL LEGAL

NORMS THAT MANDATE FUNDAMENTAL

GUARANTEES FOR INDIVIDUAL RIGHTS

ARE THE LAW OF THE UNITED STATES.

This Court has held that customary international law, the

“customs and usages of civilized nations,” is part of the law

of the United States.’ Customary international law derives

from a widespread and consistent practice of nations followed

out of a sense of legal obligation (opinio juris). The United

States, as a State Party to the United Nations Charter and the

Statute of the International Court of Justice, has accepted that

a secondary source (treaties being the primary source) of

applicable law for the International Court of Justice is

“international custom, as evidence of a general practice

accepted as law.” The texts of international agreements not

only bind State Parties but can also provide evidence of

customary law binding on all states.°

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

* Id.; The Nereide, 13 U.S. 388, 423 (1815) (“. . . the Court is bound by

the law of nations, which is part of the law of the land.”). See generally

DAVID J. BEDERMAN, CHRISTOPHER J. BORGEN & DAVID J. MARTIN,

INTERNATIONAL LAW: A HANDBOOK FOR JUDGES 26-30 (2003); JORDAN

J. PAUST, INTERNATIONAL LAW AS LAW OF THE UNITED STATES 7-11 (2d

ed. 2003).

* RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE

UNITED STATES § 102 (1987).

* Statute of the International Court of Justice, art. 38(1) (b), 59 Stat.

1055, T.S. No. 993.

° RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE

UNITED STATES § 102(3) (1987).

5

A. U.S. Constitutional Practice, Foreign Practice,

And International Treaty Provisions Establish,

Through The Conjunction Of State Practice

And Opinio Juris, That Certain Individual

Rights Are Customary International Law.

Each of the fundamental guarantees enumerated in Article

75 of the 1977 Protocol I is common to major legal systems,

including “all judicial guarantees recognized as indispensable

by civilized peoples.”’ The primary mechanisms for building

customary international human rights law include bringing

national law and domestic practice into compliance with

international principles,® incorporating international princi-

ples into national constitutional instruments,’ and invoking

’ Article 3 common to the four 1949 Geneva Conventions regarding the

treatment of the sick and wounded at sea and on the land, shipwrecked

persons, prisoners of war, and civilians. International agreements incor-

porating the fundamental guarantees included in Article 75 to which the

U.S. is a Signatory or State Party include the four 1949 Geneva

Conventions, the International Covenant on Civil and Political Rights,

Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 and the American Conven-

tion on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673.

* The fundamental guarantees enumerated in Article 75 have long been

a part of U.S. anc foreign domestic criminal procedure. See, e.g., FED. R.

CRIM. P. 5, 6, 16, 23, & 31; Swedish Code of Judicial Procedure, Ch. 24,

§§ 4-24 (1979 tr. Burzelius & Ginsburg); German Code of Criminal

Procedure, Bk. I, Title IX, §§112-121, Title X, § 134-136a, Title XI, §§

137-149 (1965 tr. Niebler & Pfeiffer); French Criminal Procedure Code,

Bk. I, Title Ill, §V, arts. 114-118, §VII, arts. 137-138 (1988 tr. Kock &

Frase).

* Most of the fundamental guarantees that have ripened into customary

international law have their foundation in long- respected common law,

democratic continental, and U.S. constitutional guarantees. See, e.g., U.S.

CONST. amend. I-VIII, XIII-XV, & XIX; THE DECLARATION OF

INDEPENDENCE para. 3 (U.S. 1776); MAGNA CARTA (1297), arts. XX,

XXIV, XXXIX, XL, & XLV; CHARTER OF RIGHTS AND FREEDOMS, arts.

7-14 (Canada 1982); i SCLARATION OF THE RIGHTS OF MAN, arts. 7-11

(France 1789).

6

international human rights principles in national policy or

diplomatic communications. "°

Although President Ronald Reagan determined that the

United States would not ratify 1977 Protocol I,'' the few

provisions (out of 101 articles) in 1977 Protocol I ultimately

contested by the Government did not include Article 75,7

Indeed, the Deputy Legal Adviser of the U.S. Department of

State at the time, Michael J. Matheson, confirmed in explicit

terms that Article 75 and most of the other provisions of

Protocol I reflected “the principles that we [the United States]

believe should be observed and in due course recognized as

customary law, even if they have not already achieved that

status in their relationship to the provisions of the Protocol.”"*

'° The U.S. State Department has issued annual Human Rights Reports

for over 25 years. The State Department’s human rights homepage states,

“The protection of fundamental human rights was a foundation stone in

the establishment of the United States over 200 years ago. Since then, a

central goal of U.S. foreign policy has been the promotion of respect for

human rights, as embodied in the Universal Declaration of Human

Rights.” U.S. Department of State, Human Rights (2003), available at

http://www.state.gov/g/dri/hr.

'' Reagan, President’s Message to the Senate Transmitting the Proto-

col, 23 WEEKLY COMP. PRES. Doc. 91 (Jan. 29, 1987). However, the

United States remains a Signatory of 1977 Protocol I.

= See INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT (THE

JUDGE ADVOCATE GENERAL’S SCHOOL, U.S. ARMY), OPERATIONAL LAW

HANDBOOK 11 (2002) (listing articles of 1977 Protocol I specifically

objected to by the U.S. and those (including Article 75) viewed as either

legally binding as customary international law or acceptable practice

though not legally binding).

'? Michael Matheson, The United States Position on the Relaticn of

Customary International Law to the 1977 Protocols Additional to the

1949 Geneva Conventions, Remarks before Session One of the

Humanitarian Law Conference (Fall 1987), in 2 AM. U. J. INT'L L. &

POL'Y 419, 422 (1987) [hereinafter “Matheson”]. Significantly, a

significant extract of the Matheson article is re-published in OFFICE OF

THE LEGAL ADVISER, DEPARTMENT OF STATE, CUMULATIVE DIGEST OF

7

Matheson declined to identify which principles had

attained by 1987 the status of customary international law,

but he made it unmistakably clear that the United States

believed that designated provisions of Protocol I, particularly

Article 75, should be complied with by the United States.

Matheson stated with respect to Article 75:

We support in particular the fundamental guarantees

contained in Article 75, such as the principle. that all

persons who are in the power of a party to a conflict and

who do not benefit from more favorable treatment under

the Conventions be treated humanely in all circum-

stances and enjoy, at a minimum, the protections

specified in the Conventions with-out any adverse

distinction based upon race, sex, language, religion or

UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3434-3435

(1995) [hereinafter DIGEST OF UNITED STATES PRACTICE 1981-1988], thus

reflecting official Government policy. In 1977, in a report summarizing

“the substantive successes of the [1977 Protocol I] Conference in

codifying and developing the law applicable in international armed

conflict,” the U.S. Delegation wrote: “We take satisfaction from the first

codification of the customary rule of proportionality (Article 57), from a

good definition of mercenaries which should not be open to abuse (Article

47), and from the minimum humanitarian standards (Article 75) that must

be accorded to anyone not entitled to better treatment.” JOHN A. BOYD,

OFFICE OF THE LEGAL ADVISER, DEPARTMENT OF STATE, DIGEST OF

UNITED STATES PRACTICE IN INTERNATIONAL LAW 1977 918-919 (1979).

In a March 29, 1988 memorandum submitted as an affidavit in the case of

U.S. v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), Assistant U.S.

Attorney Kerri Martin confirmed that the primary concern of the U.S.

regarding 1977 Protocol I, as stressed by other Government officials in

1987 and 1988, dealt with issues other than those reflected in Article 75 of

1977 Protocol I: “While the U.S. is of the view that certain provisions in

Protocol I reflect customary international law (see, e.g., Treaty Doc. 100-

2, supra, at X), the provisions on wars of national liberation and

combatant and prisoner-of-war status are definitely not in this category.”

DIGEST OF UNITED STATES PRACTICE 1981-1988, supra, at 3441.

8

belief, political or other opinion, national or social

origin, or any similar criteria.

Matheson confirmed the applicability of a// the fundamental

guarantees set forth in Article 75, while pointing by means of

example to those rights set forth in sections (1), (2), (4), and

(5) of 1977 Protocol I.'* Matheson explicitly agreed with the

statement of Professor Theodor Meron that “the United States

basically supports the principles and fundamental guarantees

articulated in article 75 of Protocol I.”"°

This obligation applies to international armed conflicts,

which are covered by 1977 Protocol I. According to the

Government, Padilla participated in an international armed

conflict.'’ Since 1987, the Government has never authorita-

tively questioned the applicability of the Article 75 funda-

mental guarantees as a matter of customary international law.

None of the Government’s pleadings in the lower courts or

before this Court with respect to this case have suggested any

'* Matheson, supra, at 427.

'S Id at 427-428.

'© Id. at 432-433.

'? The Government clearly has determined that the “war on terror” as it

pertains to Padilla is an international armed conflict. The President of the

United States has described Padilla as “closely associated with al Qaeda,

an international terrorist organization with which the United States is at

war” and as an individual who “engaged in conduct that constituted

hostile and war-like acts, including conduct in preparation for acts of

international terrorism that had the aim to cause injury to or adverse

effects on the United States.” See Petitioner’s Motion to Expedite Con-

sideration of Petition for Certiorari and to Establish Expedited Schedule

for Briefing and Argument if Certiorari is Granted 4 2 (Jan. 16, 2004); see

also Joint Appendix Volume II, Hamdi v. Rumsfeld, 282, 349 (4th Cir.

2003) petition for cert. granted (U.S. Jan. 9, 2004) (No. 03-6696)

(declaration of Deputy Commander Donald D. Woolfolk, Joint Task

Force 170, Guantanamo Bay, Cuba, stating in connection with detainees

of the “war on terror” that “our nation is engaged in international armed

conflict against terrorism.”).

9

contrary opinion concerning the status of Article 75’s funda-

mental guarantees as binding customary international law.

B. Article 75 Of The 1977 Protocol I Enumerates

The Rights Established Through Customary

International Law As Fundamental Guarantees.

Article 75(3) of 1977 Protocol I reads:

Any person arrested, detained or interned for actions

related to the armed conflict shall be informed promptly,

in a language he understands, of the reasons why these

measures have been taken. Except in cases of arrest or

detention for penal offences, such persons shall be

released with the minimum delay possible and in any

event as soon as the circumstances justifying the arrest,

detention or internment have ceased to exist.

This principle of prompt notification about the reasons for

detention mirrors the obligation of the Government to ensure

that “judicial investigations relating to a prisoner of war shall

be conducted as rapidly as circumstances permit and so that

his trial shall take place as soon as possible.”'” To date, the

Government has never confirmed in any of its pleadings that

this fundamental guarantee of minimal information about

why one is being detained has ever been complied with

regarding Padilla. By denying Padilla access to counsel

“subject to appropriate security restrictions” until February

11, 2004 (Pet. 12), and keeping Padilla in solitary confine-

ment and incommunicado from any authorities other than his

interrogators and presumably the U.S. military personnel

directly involved with his detention, the Government has

denied federal courts from confirming, even with counsel to

Padilla, whether this single fundamental guarantee of due

process protection was ever met.

'® 1977 Protocol I art. 75(3) (emphasis added).

'? Geneva Convention III, art. 103.

10

If this fundamental guarantee was not met “promptly”

following Padilla’s arrest and detention, then the Government

already has violated the principle of customary international

law codified in Article 75(3). Although some degree of

isolation for a limited period of time may be a necessary step

for interrogation for intelligence purposes, the burden is on

the Government to show that the minimum information re-

quired by Article 75(3) would so impair intelligence-

gathering as to require open-ended incommunicado deten-

tion. Assuming this burden could be met, one must ask why

the Government then failed to justify in any of its public

pleadings this necessity for noncompliance with the custom-

ary international law requirements embodied in Article 75(3).

If such an explanation occurs in the Government’s classified

declarations, then this Court should openly determine whether

Article 75(3) requirements have been satisfied. Regardless,

intelligence needs do not constitute an ace of trumps that

automatically overrides the countervailing minimal rights of

the detainee to know why he is being held. A balance must

be struck, open to examination and review by the courts.

The customary international law confirmed in Article 75(6)

of 1977 Protocol I requires that Padilla “enjoy the protection

provided by this Article” until his final release, “even after

the end of the armed conflict.” As it now stands, if the

Government’s conduct in this case is endorsed, this Court has

no way of confirming that Article 75 protection in fact will

continue in the future, including after the end of the “war on

terror,” particularly in the event criminal charges are brought

against Padilla. Although to date no criminal charges have

been filed in any court proceedings against Padilla, the

customary international law protections set forth in Article

75(4) and Article 75(7) of 1977 Protocol I would apply if this

Court were to decide that the Government’s classification of

Padilla as an “unlawful combatant” or “enemy combatant” is

an unwarranted arbitrary act requiring judicial review.

1]

C. Petitioner’s Alleged Status As An “Enemy

Combatant” In No Way Affects His Entitle-

ment To These Fundamental Guarantees.

Article 75(1) of 1977 Protocol I confirms that all of the

fundamental guarantees set forth in Article 75 apply to an

individual who fits the profile of Padilla as described by the

Government.” Article 75(1) states that:

. . . persons who are in the power of a Party to the

conflict and who co not benefit from more favourable

treatment under the Conventions or under this Protocol

shall be treated humanely in all circumstances and shall

enjoy, aS a minimum, the protection provided by this

Article without any adverse distinction based upon race,

colour, sex, language, religion or belief, political or other

opinion, national or social origin, wealth, birth or other

status, or on any other similar criteria. Each Party shall

respect the person, honour, convictions and religious

practices of all such persons.

Since the Government has denied Padilla the status of (and

the more favorable treatment accorded) a prisoner of war

under the Geneva Convention Relative to the Treatment of

Prisoners of War of August 12, 1949 [hereinafter Geneva

Convention III], and has denied Padilla an objective review of

his status as would normally be required pursuant to Article 5

of Geneva Convention III,”’ Padilla holds the status described

© See Petitioner's Motion to Expedite Consideration of Petition for

Certiorari and to Establish Expedited Schedule for Briefing and Argument

if Certiorari is Granted 4 2 (Jan. 16, 2004). See also Pet. 37

(distinguishing Padilla’s status as an enemy combatant from the status of a

prisoner of war).

?! Persons captured in the field during an international armed conflict

by an opposing force have the right to have their status determined by a

“competent tribunal.” Geneva III, art. 5. If the detainee is to be tried for

offenses resulting from his participation in hostilities, he has the right to

have his status adjudicated before a “judicial tribunal.” 1977 Protocol I,

art. 45(2). However, independent of any determination of status, a

12

in Article 75(1) of 1977 Protocol I in the event this Court

concludes that Padilla is an “enemy combatant.” Padilla’s

U.S. citizenship is irrelevant for this particular purpose, as the

principles embodied in Article 75(1) apply without adverse

distinction based upon national origin.”

The Government has stressed that Padilla is not charged

with any crimes, and therefore need not be accorded any

rights associated with a criminal proceeding, such as right to

counsel. (Pet. 33). Even if Padilla 1) is recognized by this

Court and thus retains his status as an “enemy combatant”

and “unlawful combatant” under the law of war as contended

by the Government (Pet. 33), 2) is not charged with any

crime, 3) does not appear before any court of law (civilian

or military), and 4) is detained indefinitely while the “war

on terror” continues, he is entitled at least to the three

detainee is at least entitled to the fundamental guarantees contained in

Article 75. Article 45(3) of 1977 Protocol | leaves no doubt: “Any person

who has taken part in hostilities, who is not entitled to prisoner-of-war

status and who does not benefit from more favourable treatment in

accordance with the Fourth Convention shall have the right at all times to

the protection of Article 75 of this Protocol.” 1977 Protocol I, art. 45(3).

2 See Melysa Sperber, John Walker Lindh and Yaser Esam Hamdi:

Closing the Loophole in International Humanitarian Law for American

Nationals Captured Abroad While Fighting with Enemy Forces, 40 AM.

Crim. L. REV. 159, 180-183 (2003). Sperber raises the disturbing

possibility of the Government claiming that Article 75 fundamental

guarantees do not apply with respect to the actions of the Government in

relation to its own citizens. Such a claim would defy a plain text reading

of Article 75 and the customary law principles embodied therein. Such an

interpretation would resurrect a point of view put to rest with the

conclusion of the negotiations that culminated in 1977 Protocol |. A

further risk is that any foreign government or non-governmental power

(such as militia or para-miiitary forces) could assert U.S. non-recognition

of such customary law in this case as license (even if unjustifiable)

to deny any such rights to U.S. citizens or military personnel de

tained abroad.

13

fundamental guarantees reflected in Article 75(2), (3) and (6)

of 1977 Protocol I.

Article 75(2) describes prohibited acts “at any time and in

any place whatsoever, whether committed by civilian or by

military agents. . .””’ All members of the U.S. military are

periodically trained that commission of any prohibited acts

such as those enumerated in Article 75(2) is subject to penal

discipline.* Therefore, for purposes of this argument and

because information about the precise nature of Padilla’s

detention is publicly unavailable, one must assume that none

of the prohibited acts described in Article 75(2) have been or

will be committed against Padilla while in military custody.”°

» “The following acts are and shall remain prohibited at any time and

in any place whatsoever, whether committed by civilian or by military

agents: (a) violence to the life, health, or physical or mental well-being of

persons, in particular: (i) murder; (ii) torture of all kinds, whether physical

or mental; (iii) corporal punishment; and (iv) mutilation; (6) outrages

upon personal dignity, in particular humiliating and degrading treatment,

enforced prostitution and any form of indecent assault; (c) the taking of

hostages; (d) collective punishments; and (e) threats to commit any of the

foregoing acts.” 1977 Protocol I, art. 75(2).

** Uniform Code of Military Justice, 10 U.S.C. § 892 (criminalizing

failure to obey general order or regulations); CJCSI 3121.01A, STANDING

RULES OF ENGAGEMENT FOR U.S. FORCES, encl. A, para. 1g (Jan 2000)

(“U.S. forces will comply with the Law of War during military operations

involving armed conflict, no matter how the conflict may be characterized

_ under international law, and will comply with its principles and spirit

during all other operations.”); DEPARTMENT OF DEFENSE DIRECTIVE

5100.77, DOD LAW OF WAR PROGRAM, paras. 4, 5.3, 5.5 (Dec. 1998)

(stating in para. 4 that it is Department of Defense policy to ensure that

the “law of war obligations of the United States are observed and enforced

by the DOD components”); AIR FORCE INSTRUCTION 51-401, TRAINING

AND REPORTING TO ENSURE COMPLIANCE WITH THE LAW OF ARMED

CONFLICT, para. 3.1 (1994) (mandating annual training in law of armed

conflict); ARMY FIELD MANUAL 27-10, THE LAW OF LAND WARFARE,

paras. 498-508 (July 1956).

> But see Thomas E. Ricks, Commander Punished as Army Probes

Detainee Treatment, WASH. POST, Apr. 5, 2004 at Al3; Patrick E. Tyler,

14

Nonetheless, it would be useful for this Court to remind the

Government of the Article 75(2) fundamental guarantees and

require that it demonstrate that procedures are in place to

prevent any such conduct and, if it occurs, to punish any

perpetrator responsible for such prohibited conduct.

Il. THE GOVERNMENT IS OBLIGATED TO

RESPECT AND ENSURE PROTECTION OF

THESE FUNDAMENTAL GUARANTEES.

The fundamental guarantees raised in this pleading are

exceptionally important to uphold as legal obligations binding

on the Government. The customary international law

protections set forth in Article 75 of 1977 Protocol I serve to

protect U.S. citizens, including military and other official

personnel, engaged or otherwise caught up in armed conflict

wherever they may be located in the world. Even if the

Government were to dispute a foreign government’s

designation of an American soldier as an individual not

benefiting from more favorable treatment as a prisoner of war

under Geneva Convention III, Article 75 ensures that such

individual will benefit from the fundamental guarantees set

forth in that article as a matter of customary international law.

If, as a consequence of this case, the Government is allowed

to undermine Article 75 fundamental guarantees, then it will

place in peril all U.S. citizens and official personnel who

must rely on at least these fundamental guarantees even when

a foreign government erroneously or maliciously denies any

such individual more favorable treatment under any of the

Geneva Conventions. The Government defies established

legal authority by acting in such a manner as to undermine

such fundamental guarantees for its own citizens, including

its military, diplomatic, humanitarian, and _ intelligence

personnel operating abroad.

Ex-Guantanamo Detainee Charges Beating, N.Y. Times, Mar. 12, 2004,

at Al2.

15

CONCLUSION

At a minimum, the Petitioner is entitled to the fundamental

guarantees described in Article 75 of 1977 Protocol I,

including those rights that must be provided to individuals

engaged in international armed conflict (as contended by the

Government in this case) who do not benefit from any more

favorable treatment under the Geneva Conventions of 1949 or

the customary international law embodied in 1977 Protocol I.

The Government has long expressed its belief that Article 75

reflects customary international law. The individual interests

of U.S. citizens and official personnel acting abroad will be

profoundly threatened if this Court’s decision has the conse-

quence of undermining the customary international legal

protections incorporated within Article 75.

Respectfully submitted,

DAVID J. SCHEFFER *

GEORGETOWN UNIVERSITY

LAW CENTER

600 New Jersey Ave., N.W.

Washington, DC 20001-2075

(202) 662-9931

JEFFREY K. WALKER

INSTITUTE FOR INTERNATIONAL

LAW AND POLITICS,

GEORGETOWN UNIVERSITY

37th and O Streets, N.W.

Washington, DC 20057

* Counsel of Record (703) 323-9255