Amicus Curiae Brief — Rumsfeld v. Padilla

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IN THE

Supreme Court of the United States

DONALD H. RUMSFELD, Secretary of Defense,

Petitioner,

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 AMICUS CURIAE GLOBAL RIGHTS

IN SUPPORT OF RESPONDENTS

GAY J. MCDOUGALL JAMES F. FITZPATRICK*

MARK BROMLEY *Counsel of Record

GLOBAL RIGHTS KATHLEEN A. BEHAN

1200 18th Street, N.W. JOSHUA A. LEVY

Washington, D.C. 20036 LESLIE M. HILL

(202) 822-4600 CHAD W. HIGGINS

ARNOLD & PORTER LLP

555 12th Street, N.W.

Washington, D.C. 20004

(202) 942-5000

Counsel for Amicus Curiae

April 12, 2004

Balmar Legal Publishing Services, Falls Church, VA (703) 289-9000

TABLE OF CONTENTS

Page

INTERESTS OF AMICUS CURITAE ..0000.........cccccsssssssseoeeeseees 1

SUMMARY OF ARGUMENT ....0000.0.......c:cccccsesesssssesesseseeeeenenes l

a cxteresnersenssesseecnmnentneremresnesseemecsnssenenncmasncnennenntectes 2

L Ce es BION cxcrsxesesesvscccssnscscensnsnseanecenensseneneesnseseete 2

Il. THE GOVERNMENT’S DETENTION OF

MR. PADILLA IS ARBITRARY UNDER

INTERNATIONAL LAW ..00000.0....cccscceseseseeseseseeseeenees 6

A. No Law Establishes Procedures for Detaining

Mr. Padilla as a So-Called “Enemy Combatant’’........ 7

B. The Executive Has Deprived Mr. Padilla of His

Right to Be Notified of the Legal Basis of His

Detention _ 11

C. The Government’s Detention of Mr. Padilla Is

Arbitrary under International Law Because the

Government Has Deprived Him of a Meaningful

i. THE GOVERNMENT’S ASSERTION

THAT IT CAN DISREGARD MANDATES

OF INTERNATIONAL LAW CONFLICTS

WITH THIS COURT’S TRADITIONAL

RELIANCE ON SUCH LAW WHEN

DEFINING THE SCOPE OF THE

GOVERNMENT’S WARTIME DETENTION

POWERS AND INDIVIDUAL RIGHTS. ................... 20

A. The Court Has Considered International Law

When Determining the Scope of Constitutional

III ccecesnansciadanensasenenenensseenbenensepnenesnibinnpanmenntenentes 20

‘i

B. Federal Statutes, Where Ambiguous, Must Be

C. The Court Has Considered International Law

When Determining the Scope of Constitutional

ee sncemmemnemnenents

IV. THE GOVERNMENT’S DETENTION OF

MR. PADILLA IS INCONSISTENT WITH

ITS STRONG CONDEMNATION OF

ARBITRARY DETENTION AND

PROMOTION OF THE RULE OF LAW

TABLE OF AUTHORITIES

FEDERAL CASES

Alvarez-Machain v. United States,

331 F.3d 604 (9th Cir. 2003) ....ccccccccccccccceceeeeceveeees 10, 11, 16

Aquamar, S.A. v. Del Monte Fresh Produce N A..,

ee PEGS BUD ccccccccsessccsscenecessnscscessecccsvess 18

Coker v. Georgia,

ne 23

Duncan v. Kahanamoku,

rR 3

Elledge v. Florida,

eT 23

Enmund v. Florida,

rere 23

Ex parte Milligan,

TT 21

Ex parte Quirin,

a passim

Filartiga v. Pefia-Irala,

TIL, MT ccirsencnegnsnsssesnssenesnssesnscasansesecees 18

Friedrich v. Friedrich,

78 F.3d 1060 (6th Cir. 1996) ..........c.cccccscsseessessnsssesnesenes 23

Gherebi v. Bush,

CE 6, 15

Grutter v. Bollinger,

a 1, 23, 24

Hamdi v. Rumsfeld,

337 F.3d 335 (4th Cir. 2003), cert. granted,

72 U.S.L.W. 3434, (U.S. Jam. 9, 2004)... ccccccccccceeceneeeeeees l

Hines v. Davidowitz,

a 2

Johnson v. Eisentrager,

Fe ae CE IID ct 21

Kadic v. Karadzic,

pot ae 18

Knight v. Florida,

SD Ge CO SED em 23

Lawrence v. Texas,

a ae SD cence 23

Martinez v. City of Los Angeles,

Oe ee Oe crereemennansesmenenee 14

Mathews v. Eldridge,

eT 16

Morgan v. United States,

ee > 6 GRD cenemensenmeseeems 15, 16

Murray v. Schooner Charming Betsy,

EE 22

Nixon v. Shrink Missouri Government PAC,

SD a. SOU GE cee 23

Nunez-Escudero v. Tice-Menley,

ee Ge 23

Padilla v. Rumsfeld,

Fs Fe GD, SED cccsrenmeeemmmenn passim

Sanchez-Espinoza v. Reagan,

moo fll. 0 10, 13

Siderman de Blake v. Argentina,

ee 19

Stanford v. Kentucky,

Oe 23

Talbot v. Janson,

a 20

The Paquete Habana,

OM 20

Thompson v. Oklahoma,

oR 23

Trop v. Dulles,

SIO GE, So Ce ccrcncenserereesseneesssssessenee 23

United States v. Robel,

yo | | 5

United States v. Schultz,

39 C.MLR. 133 (C.MLA. 1969) ..........cccccsseeeseeeeseenseeees 21, 22

United States v. Yousef,

SEP PSG SS GOB Cae. FO ccccsssscrccssccsscsssscsccenseseesssesss 10, 13

Washington v. Glucksberg,

QU 23

Zicherman v. Korean Air Lines Co.,

SOB GS. BEF Cee ccccccesesssesnennmennsnmnen 7,9

INTERNATIONAL CASES

Al-Nashif v. Bulgaria,

36 Bur. H.R. Rep. 37 (2002).............c.c-csesccsssserseserenseess 11

Further Hearing 7048/97, Anon. v. Minister of Defence,

SOTD PB. FB CH ccccescesessssscensccssssscssscssessssssssssennee 18, 19

Caballero v. United Kingdom,

30 Eur. H.R. Rep. 643 (2000)..............c.cccsscessenesnneeenennnnens 18

Fox, Campbell & Hartley v. United Kingdom,

13 Bur. Ct. H.R. (ser. A) (1990) ...........cccececsenssnnneenes 13, 14

Legality of the Threat or Use of Nuclear Weapons,

SOS EOD. FG CB, © ccccccasescsscsscssscssesscsssnssessssssesyesssssseees 17

O'Driscoll v. Sec’y of State for the Home Dep't,

Case No. CO/913/2002

(Q.B. Div’! Ct. 2002), available at 2002 WL

Ee 14

Queen on the Application of Abbasi & Anor. v. Secretary

of State, 2003 U.K.H.R. Rep. 76 (C.A. 2002),

available at 2002 WL 31452092 ............ccseseeseereeenes 18, 19

Regina v. Mullen,

No. 9704978/Z3, 2 Cr. App. R. 143

Te 19, 20

Tan Te Lam v. Superintendent of Tai A Chau Detention

ng, 16

ee 14, 20

TW v. Malta,

PR Cee RI. GE Gi ccccccscesscccccssecssnceressessssveseaveess 14

Winterwerp v. The Netherlands, 7

33 Eur. Ct. H.R. (ser. A) (1979) .0.......cccccccceseerseeeevenes 17, 18

CONSTITUTIONS

CS. Cams. ante. Bh, 6S Vi, GE. B cccccsssscsscssssssscssssssesessenssessens 9

INTERNATIONAL AGREEMENTS

American Convention on Human Rights, adopted Nov.

Bp SEG, CBCG TIRE, CB ccnscnscnsscsassensssssccsnssscesseeresss 19

European Convention for the Protection of Human

Rights and Fundamental Freedoms, Nov. 4, 1950, 213

be) 19

Geneva Convention Relative to the Treatment of

Prisoners of War, opened for signature Aug. 12, 1949,

ee 7,8

vii

Geneva Convention Relative to the Protection of Civilian

Persons in Time of War, opened for signature Aug.

12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 .0.......ccccccceeeceeeees 8

International Covenant on Civil and Political Rights

(“ICCPR”), opened for signature Dec. 16, 1966,

FE ee passim

Organization of African Unity: Banjul Charter on

Human and Peoples’ Rights, Jun. 27, 1981, 21 LL.M.

58 (1982) U.N. Doc. A/810 (1948) .0.......ccccceeeeeeeeeeeeeeeees 19

Protocol Additional to the Geneva Conventions of 12

August 1949, and relating to the Protection of Victims

of International Armed Conflicts, Jan. 23, 1979, 1125

GR a> Durseressnssssemenennmennenenememennentnngennmenenen 13

STATUTES

Authorization for Use of Military Force, Pub. L. No.

107-40, 115 Stat. 224 (2001) ....2.......cccssecceseeeceeeeseeeees 2, 9, 10

LEGISLATIVE

150 Cong. Rec. $2701 (daily ed. Mar. 11, 2004)..8, 10, 12, 13

H. Con. Res. 326, 108th Cong. (2003) ..............cccsceeeeeeeeeeees 26

S. Res. 184, 108th Come, (2003) .....cccccsrecescccccscecevssscsecosscesees 26

MISCELLANEOUS

Alexander Hamilton, Federalist Paper No. 84, in The

Federalist Papers: A Collection of Essays Written in

Support of the Constitution of the United States (Roy

Pe PUGS TIED crnsvanusssrnunesnseenninneneneeneinteamsenens 2,3

American Declaration of the Rights and Duties of Man,

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

ROO I, GED carecnnessesrecsnseemememnnsscnenenememmmemenes 19

Viii

Hearing Regarding U.S.-Cuba Economic Relations

Before Senate Comm. of Finance, 107th Cong. (Sept.

4, 2003) (statement of Alan Larson, Under Secretary

of State for Economic, Business, and Agricultural

Affairs, before the Senate Finance Committee),

available at http://finance.senate.

gov/hearings/testimony/2003test/090403altest.pdf.

Hearing Regarding US-Cub..................cccscssssesseseeeeeereenees 25

Hearing to Review Testimony on Operation Enduring

Freedom Before the Senate Comm. on Armed

Services, 107th Cong. (July 31, 2002) (statement of

Hon. Donald Rumsfeld, Sec. of Defense), available at

http://www.senate.gov/~armed_services/statemnt/200

TE, BG 0xccccccsssssssssesssssesesesceenscssescescsesooeneesees 25

International Committee of the Red Cross, Commentary

Vol. IV: Geneva Convention Relative to the Protection

of Civilian Persons in Time of War, (1958) .........-00s00se000 9

Jordan J. Paust, Judicial Power to Determine the Status

and Rights of Persons Detained without Trial, 44

I, BT Ge Fe Cee eccnnncacccssecscenssnaneenserssescsssennsssess 24

Multilateral Treaties Deposited with the Secretary

General: Status as of Dec. 31, 2002, U.N. Doc.

STA BGVSER B22 (BOB) ..cccccercccsccesccccsccssccssecsssssscsseees 4,17

News Release, Department of Defense, Padilla Allowed

Access to Lawyer (Feb. 11, 2004), at

http://www .defenselink.mil/ releases/2004/nr200402 | 1 -

0341.html. News Release, Department of Defense,

PUGS AMUSE ROGUES ccccccssccscsscssscssssccssssscssnssssssssscssessssees 3

Phil Hirschkorn, After 22 Months, ‘Dirty Bomb’ Suspect

Sees Lawyers, CNN.com, Mar. 3, 2004, at

http://www.cnn.com/2004/LA W/03/03/enemy .combat

GER. WERE .ccccccccssccscscccccscssssnssennesenesseneetessseeeseeeseeeeseesseseneeeenens 3

President George W. Bush, Remarks on Iraq from the

Rose Garden (Apr. 15, 2003), available at

http://www. whitehouse.gov/ news/releases/2003/04/

SER FS 0S” TI cccccccssscccsvscenssccssssscssccsssssscensssssceses 27

Press Release, Senator Jon Kyl, Senate Passes Kyl-

Mikulski Resolution to Free U.S. Resident Held in

China Since 2002 Dr. Yang Jianli Detained in China

for Pro-Democracy Views, (Jul. 30, 2003) available at

REED Waele BEG Cee cncccssencssssesitecesemessnpemstnesensnsnenesnenenessees 26

Resolution to Free U.S. Resident Held in China Since

2002 Dr. Yang Jianli Detained in China for Pro-

Democracy Views, available at 2003 WL 11710378

Soe GHD ena icconcccnvesennneinncsnnenennmesietntaneiummensnmmennenmnensees 26

Restatement (Third) of The Foreign Relations Law of

The United States (1987) .............:..:cccccecseeeeeees 10, 13, 16, 22

Sandra Day O’Connor, Federalism of Free Nations, 28

Pee Bede EE B Bice GB FR BO (BBG) ccccecccecccscssccsscssensssncsosassecees 9

State Department Spokesman Richard Boucher, in U.S.

Department of State Press Release, Transcript: State

Department Noon Briefing, May 29, 2003, available

at 2003 WL 2048222 (May 29, 2003) ...........ccccsceesseeeeeeees 27

Statement of Ambassador Madeleine K. Albright, United

States Permanent Representative to the United

Nations, on Human Rights Situations and Reports

before U.N. General Assembly, Third Comm. (Social,

Humanitarian and Cultural) (Nov. 28, 1995), available

at http://dosfan.lib.uic.edu/ERC/intlorg/press_releases/

FOF Ie ccnenscnscersscsssnssssnssntemensssssnscssnensnmnsesessummneseuseanece 25

Statement of Harold Hongju Koh, U.S. Assistant

Secretary of State, Democracy, Human Rights &

-Labor, Before the U.N. Commission on Human Rights

BURR, TR, Sa oseccccccsnsccnsscsnsssssssssessssnessscsssnsnsnammmensanennanes 25

Statement of Lorne W. Craner, Assistant Secretary of

State for Democracy, Human Rights, and Labor,

Hearing on a Review of the State Department Country

Reports on Human Rights Practices, Before the House

Subcomm. on Terrorism, Nonproliferation and Human

Rights, of the House Comm. on Int’! Relations,

available at 2003 WL 1998849 (Apr. 30, 2003)......... 25, 26

Statement of Lorne W. Craner, Assistant Secretary of

State for Democracy, Human Rights, and Labor,

Before a Helsinki Commission hearing on Sept. 9,

2003, in U.S. Department of State Press Release,

Lorne Craner Testimony at Sept. 9 Helsinki

Commission Hearing, available at 2003 WL 2050164

(Sept. 10, 2003) ..........cscssscesesessesssrssencssnssensssensesseensenes 25, 26

State of the Union Address, at http://www.whitehouse.

gov/news/releases/2002/0 1/print/20020129-1 1.htm!

(Jam. 29, 2002) .........-c.ccesesssssssescerensensenseecsosscssssosesssnsensenses 27

Thomas Paine, Dissertation on First Principles of

Government, in 2 The Complete Writings Of Thomas

Paine (Philip S. Foner ed., 1945) ..........-sesseseeseeeeseesensees 5,6

Universal Declaration of Human Rights, G.A. Res. 217A

(IID), U.N. Doc. A/810 (1948) .........-ccceeseeeeeenennneensees 19, 26

U.N. GAOR 3d Comm., 13th Sess., Agenda Item 32,

863d mtg. at 137 para. 17 (1958)............ssseesereeneeeenenes 4,6

U.N. Hunan Rights Comm., General Comment No. 29,

U.N. Doc. CCPR/C/21/Rev. 1/Add.11 (2001) ............. 16, 17

U.S. Department of State’s Annual Human Rights

Report (Mar. 31, 2003), in U.S. Department of State

Press Release, State Department Report Outlines

Human Rights Abuses in Iraq-Powell Cites Saddam's

Regime as Great Threat to Global Peace, Stability,

available at 2003 WL 2047088 ...........-.--ssesseserseereeeneeenes 25

INTERESTS OF AMICUS CURIAE'

Global Rights respectfully submits this brief in support

of respondents, José Padilla and Donna R. Newman, as Next

Friend of José Padilla. Both parties have consented to the

filing of this brief.

Global Rights is a non-profit public interest legal

organization with projects in twenty-two countries engaged in

training, technical assistance, advocacy, and litigation around

the world. Founded in 1978 as the International Human

Rights Law Group, Global Rights provides legal assistance

and information in the field of international human rights law

and maintains consultative status with the Economic and

Social Council of the United Nations. Global Rights’ goals

include the development and promotion of international legal

norms, and its advocates work closely with individuals and

organizations worldwide to expand the scope of human rights

protections for men and women. Global Rights has

represented individuals and organizations before national and

international tribunals and has appeared as amicus curiae in

numerous cases in the United States. See, e.g., Hamdi v.

Rumsfeld, 337 F.3d 335 (4th Cir. 2003), cert. granted, 124 S.

Ct. 981 (2004); Grutter v. Bollinger, 539 U.S. 306 (2003).

SUMMARY OF ARGUMENT

Although the United States has played a central role in

shaping international human rights and humanitarian law, it

has disregarded its obligations under one of the principal

human rights treaties it ratified and helped author, the

International Covenant on Civil and Political Rights

This brief was not authored, in whole or in part, by counsel for

4 ng Ang ne ph bpd. At >

member: its monetarily to the preparation or

submission of the brief. The parties consented to the filing of the brief and

SS SS ae ee ere

— —-——— -

—_—_“_—S=— eee

(“ICCPR”), and under customary international law, by

arbitrarily detaining José Padilla. Mr. Padilla is being held

outside the imprimatur of law and, absent a legitimate basis

for his on-going detention under present conditions, his

detention is arbitrary per se. Moreover, by denying Mr.

Padilla meaningful access to counsel and a substantive

opportunity to challenge the basis of his detention, the

Executive has deprived Mr. Padilla of the process due under

international law.

The Court of Appeals for the Second Circuit correctly

held that Article II of the United States Constitution and

Congress’ Authorization for Use of Military Force (“Joint

Resolution”) do not authorize the Executive to arrest Mr.

Padilla, a U.S. citizen on U.S. soil, and then detain him as an

“enemy combatant.” See Padilla v. Rumsfeld, 352 F.3d 695,

698 (2d Cir. 2003). In light of its long tradition of

considering international law when defining the scope of

detention powers during periods of conflict, in examining the

breadth of an individual right, and in interpreting ambiguity in

Congressional acts, this Court should not read international

law to permit Article II or the Joint Resolution to support Mr.

Padilla’s arbitrary detention. We therefore urge the Court to

affirm the Second Circuit’s decision in this case.

ARGUMENT

I. INTRODUCTION

The fundamental principle of a free society is that

personal liberty cannot be denied in the absence of a lawful

mandate. See Hines v. Davidowitz, 312 U.S. 52, 71 (1941)

(describing Congressional opposition to “unnecessary and

irritating restrictions upon personal liberties of the individual”

because those restrictions “were at war with the fundamental

principles of our free government”). Arbitrary detention is

anathema to the Framers’ vision for the United States legal

system: “[TJhe practice of arbitrary imprisonments, [has]

been, in all ages, the favorite and most formidable instrument ]

of tyranny.” Alexander Hamilton, Federalist Paper No. 84,

in The Federalist Papers: A Collection of Essays Written in

Support of the Constitution of the United States 261 (Roy P.

Fairfield ed. 1981); see also Duncan v. Kahanamoku, 327

U.S. 304, 322-23 (1946) (“[T]he founders . . . were opposed

to governments that placed in the hands of one man the power

to make, interpret and enforce the laws. Their philosophy has

been the people’s throughout our history. For that reason we

have maintained legislatures chosen by citizens or their

representatives and courts and juries to try those who violate

legislative enactments.”).

In this case, the President, as Executive and Commander-

in-Chief, has asserted near absolute power over José Padilla in

disregard of a number of basic human rights that the United

States has been instrumental in developing and defending

around the world. The Executive has claimed the power to

deprive Mr. Padilla of his liberty indefinitely, of any

meaningful assistance of counsel, of the right to know the

charges against him, and of the right to a meaningful

opportunity to challenge the basis of his detention. Added to

this deprivation of procedural rights is the fact that until only

last month, Mr. Padilla has been held largely incommunicado

at a secret location, in conditions that are unknown, and for a

purpose that remains secret.’ This gross assertion of power is

inconsistent with the letter and structure of international

human rights and humanitarian law that the United States has

? Mr. Padilla has been held largely incommunicado from the time he

was taken into military custody in June 2002 until March 3, 2004 when he

was permitted to meet and speak with his lawyers. The Government

claimed that it allowed “[Mr.] Padilla access to counsel as a matter of

discretion and military authority.” News Release, Department of Defense,

Padilla Allowed Access to Lawyer (Feb. 11, 2004), a@

http://www.defenselink.mil/releases/2004/ nr20040211-0341.html. The

Government videotaped Mr. Padilla’s meeting with counsel, stationed a

member of the military for the entirety of the meeting, and photocopied all

of the attorneys’ notes from that meeting. See Phil Hirschkorn, After 22

Months, ‘Dirty Bomb’ Suspect Sees Lawyers, CNN.com, Mar. 3, 200%, at

http://www.cnn.com/2004/LA W/03/03/ enemy .combaiant. visit/.

helped to create and promulgate worldwide, in the name of

liberty and justice.’

The prohibition on arbitrary detention in_ the

International Covenant on Civil and Political Rights

(“ICCPR”), opened for signature Dec. 16, 1966, 999 U.N.T.S.

171, and ratified by the United States on June 8, 1992," is

clear. The ICCPR is the binding law of the United States, and

the U.S. Government abided by the prohibition on arbitrary

detention for nearly a decade. Whether dealing with Soviet or

Cuban spies, Iraqi Republican Guard, or persons accused of

committing or conspiring to commit terrorist acts in the

United States, such as Abu Omar, Timothy McVeigh and

Terry Nichols, the United States has — until the attacks of

September 11, 2001 — observed the ICCPR’s provisions

governing detention. Many of those individuals were spies

and saboteurs of the highest order with heinous plots against

the United States, but the Government provided them with the

protections guaranteed by Article 9 of the ICCPR, including

meaningful access to counsel and a meaningful opportunity to

review the basis of their detentions.

The unique circumstances surrounding Mr. Padilla’s

detention require adherence to those provisions of the ICCPR

designed to proscribe government action that would deprive

individuals of their fundamental human rights. Mr. Padilla

was initially apprehended in Chicago O’Hare International

Airport by one of the national law enforcement entities of the

* The United States played a principal role in the drafting and

negotiation of the ICCPR. See U.N. GAOR 3d Comm., 13th Sess.,

Agenda Item 32, 863d mtg., at 137 para. 17 (1958) (describing comments

from a U.S. representative regarding the ICCPR’s prohibition on arbitrary

detention).

* ‘The treaty became effective in the United States on September 8,

1992, three months after the President deposited it with the United Nations

Secretary General. See Multilateral Treaties Deposited with the Secretary

General: Status as of Dec. 31, 2002, U.N. Doc. ST/LEG/SER.E/22, at 165

(2002).

U.S. Government, the Federal Bureau of Investigation. This

arrest followed the issuance of a material witness warrant by a

grand jury in the Southern District of New York.

Subsequently, on the basis of two conclusory statements,

without providing any opportunity to challenge these

statements, the Executive transferred Mr. Padilla from law

enforcement custody to the United States Navy for indefinite

detention aboard a Naval brig as a so-called “enemy

combatant.” See Determination of President George W. Bush

para. 6 (June 9, 2002); Declaration of Michael H. Mobbs para.

16 (Aug. 27, 2002) (“Mobbs Decl.”); see also Padilla, 352

F.3d at 699-701. To our knowledge, never before in U.S.

history has the Executive arrested and detained a US. citizen

on U.S. soil, then transferred him into the care of the

Secretary of Defense as a so-called “enemy combatant”

without full Congressional authorization and without any

meaningful opportunity to challenge the basis of detention.

As this Court noted a quarter of a century before the

United States ratified the ICCPR, our defense of this country

includes the defense of its democratic and humanitarian

values: “Implicit in the term ‘national defense’ is the notion

of defending those values and ideals which set this Nation

apart.” United States v. Robel, 389 U.S. 258, 264 (1967) (“It

would indeed be ironic if, in the name of national defense, we

would sanction the subversion of one of those liberties . . .

which makes the defense of the Nation worthwhile.”).

After taking a lead role in the development of

international human rights law and, in particular, the ICCPR,

the U.S. Government now challenges the applicability of that

law to the detention of Mr. Padilla. Since the Second World

War, the United States maintained the good fortune of not

sustaining a major attack on its mainland. Military and

economic strength, combined with an arsenal of foreign

policy tools, has kept America’s enemies in check. Among

those policy tools have been the promotion of democracy, the

rule of law, and the protection of human rights, combined

with a keen awareness of reciprocity. See Thomas Paine,

Dissertation on First Principles of Government, in 2 The

Complete Writings Of Thomas Paine 588 (Philip S. Foner ed.,

1945) (“He that would make his own liberty secure must

guard even his enemy from oppression; for if he violates this

duty he establishes a precedent that will reach to himself.”).

But in the face of the September 11, 2001 attacks, the

Government has disregarded the ICCPR and customary

international law’s prohibition on arbitrary detention.’ The

Government’s haste to act has also dangerously undermined

the fundamental foreign policies that have been the

foundation of our relations with the world community.

Global Rights therefore urges steadfast adherence to the rule

of law.

Il. The Government’s Detention of Mr. Padilla Is

Arbitrary under International Law.

The Government’s detention of Mr. Padilla is arbitrary

under international law because the ICCPR, which is binding

on the United States, provides that “[e]veryone has the right

to liberty and security of person” and “[nJo one shall be

subjected to arbitrary .. . detention.” ICCPR art. 9(1). See

U.N. GAOR 3d Comm., 13th Sess., Agenda Item 32, 863d

mtg. at 137 para. 17 (1958) (discussing argument from a U.S.

representative to include “arbitrary” rather than “illegal” or

“unjust” in Article 9 of the ICCPR because “the word

‘arbitrary’ embodied both ideas and indeed went appreciably

beyond them”). Accordingly, “[nJo one shall be deprived of

Following the Government's argument that it should be permitted to

hold the Guantanamo Bay detainees indefinitely, the Court of Appeals for

the Ninth Circuit considered whether the Government was also free to

torture or summarily execute the detainees. See Gherebi v. Bush, 352 F.3d

1278, 1299-1300 (9th Cir. 2003). The Court stated that “the government

advised [ } that its position would be the same even if the claims were that

it was engaging in acts of torture or that it was summarily executing the

detainees.” Id. (“To our knowledge . . . the U.S. government has never

before asserted such a grave and startling proposition.”).

* In interpreting the treaty, the Court should consider the intent of the

his liberty except on such grounds and in accordance with

such procedures as are established by law.” ICCPR art. 9(1).

The law does not recognize the term “enemy combatant” as

legal grounds for the indefinite and unchallengeable detention

of Mr. Padilla. Moreover, the Government has failed to

notify Mr. Padilla of the charges against him, as required by

Article 9(2) of the ICCPR and customary international law.

Finally, the Government has denied Mr. Padilla a meaningful

opportunity to challenge the basis of his detention, as required

by Article 9(4) of the ICCPR and customary international law.

A. No Law Establishes Procedures for Detaining

Mr. Padilla as a So-Called “Enemy Combatant.”

The Government maintains that Mr. Padilla’s detention

is legitimate and outside judicial review solely because they

have designated him as an “enemy combatant.”

Determination of President George W. Bush para. 6 (June 9,

2002); (Mobbs Decl. para. 16); Pet’r’s Br. at 27-49.

However, the term “enemy combatant” is both undefined and

unrecognized at law.

The Government relies exclusively on Ex parte Quirin,

317 U.S. 1 (1942), as the lone source of law to support its

classification of Mr. Padilla as a so-called “enemy

combatant.” See Pet’r’s Br. at 6, 7, 14, 28, 30-34, 42, 47, 49.

Other than Quirin, no source of U.S. or international law,

including the laws of war,’ references the term “enemy

parties to the treaty and their post-ratification understanding of the treaty.

See Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996) (stating

that the Court has “traditionally considered as aids to its interpretation the

negotiating and drafting history (travaux préparatoires) and the

postratification understanding of the contracting parties”).

” The laws of war were largely incorporated into the Geneva

Conventions after World War II. Neither the Third nor the Fourth Geneva

Convention, ratified and binding on the United States in instances of

declared wars and armed conflicts, refer to the Government's newly

invented classification “enemy combatant.” See Geneva Convention

Relative to the Treatment of Prisoners of War, opened for signature Aug.

12, 1949, 6 U.S.T. 3316, arts. 4-5, 75 U.N.T.S. 135 (entered into force

combatant.” The Government’s reliance on Quirin is

misplaced, as the Court in that case did not create a new and

completely unprivileged class of combatants. Rather, the

Court used the term “enemy combatant” when noting the

difference between lawful and unlawful combatants."

Furthermore, neither this Court’s use of the term “enemy

combatant” in Quirin nor adherence to the White House

Counsel’s “enemy combatant” designation procedures, see

150 Cong. Rec. $2701, S2703-—S2704 (daily ed. Mar. 11,

2004) (reprinting Alberto Gonzales, White House Counsel,

Remarks before the American Bar Association’s Standing

Committee on Law and National Security, (Feb. 24, 2004)),

permits the Executive to strip the so-deemed “enemy

combatants” of all procedural rights. Notably, while

borrowing the term “enemy combatant” from Quirin to

describe Mr. Padilla, the Government fails to address the

difference in process afforded to the Quirin saboteurs and Mr.

Padilla. In Quirin, the Government formally notified the Nazi

saboteurs of the charges against them, allowed them

with respect to the United States Feb. 2, 1956) (“Third Geneva

Convention”); Geneva Convention Relative to the Protection of Civilian

Persons in Time of War, opened for signature Aug. 12, 1949, 6 U.S.T.

3516, 75 U.N.T.S. 287 (entered into force with respect to the United States

Feb. 2, 1956) (“Fourth Geneva Convention”). After ratification and

deposit of the treaty instrument, the Third and Fourth Geneva Conventions

took effect with regard to the United States on February 2, 1956.

* Detainees, to whom the Third and Fourth Geneva Conventions

apply and whom those Conventions nevertheless do not protect, are often

referred to as “unlawful combatants.” Before those Conventions were

opened for signature, this Court defined the terms “lawful combatant” and

“unlawful combatant.” Ex parte Quirin, 317 U.S. 1, 30-31 (1942) (“By

universal agreement and practice the law of war draws a distinction

between the armed forces and the peaceful populations of belligerent

nations and also between those who are lawful and unlawful combatants.

Lawful combatants are subject to capture and detention as prisoners of war

by opposing military forces. Unlawful combatants are likewise subject to

capture and detention, but in addition they are subject to trial and

punishment by military wibunals for acts which render their belligerency

unlawful.”) (foomote omitted).

representation by counsel, tried them before military tribunals

at the time they filed their petitions for writ of habeas corpus,

and afforded them the opportunity to challenge the

Government's evidence against them. See Ex parte Quirin,

317 U.S. at 6-10. That abundance of process provided to the

Quirin saboteurs stands in stark contrast to Mr. Padilla’s

complete denial of process.

Since Quirin is unable to support the Government’s

invented classification of “enemy combatant,” and there is no

other legal support for this imagined term, the detention of

Mr. Padilla violates the well-settled principle of customary

international law that “[e]very person in enemy hands must

have some status under international law.” Commentary Vol.

IV: Geneva Convention Relative to the Protection of Civilian

Persons in Time of War 51 (Jean S. Pictet 1958) (“There is no

intermediate status; nobody in enemy hands can fall outside

the law.”) (emphasis omitted).

Consistent with that principle is the express requirement

of the ICCPR, a treaty ratified by and thus binding on the

United States,” that “no one shall be deprived of his liberty on

by the United States, are the supreme law of the land. See U.S. Const.

arts. II, § 2 & VI, cl. 2; Zicherman, 516 U.S. at 226 (stating that “a treaty

by the United States is . . . the law of this land”) (citing U.S.

art. II, § 2); Sandra Day O'Connor, Federalism of Free Nations, 28

Int’! L. & Pol. 35, 42 (1997) (stating that “domestic courts should

faithfully recognize the obligations imposed by international law. The

Supremacy Clause of the United States Constitution gives legal force to

foreign treaties, and our status as a free nation demands faithful

compliance with the law of free nations.”).

Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)

(“Joint Resolution”), nor the Executive’s constitutional

powers authorized Mr. Padilla’s detention. See Padilla, 352

F.3d at 699, 710-715, 722-724. Therefore, the White House

Counsel’s procedures for designating an enemy combatant,

purportedly authorized under Article [I] and the Joint

Resolution and publicly announced nearly two years after Mr.

Padilla was so designated, see 150 Cong. Rec. at $2703-

$2704, lack any legal authority."

Likewise, customary international law’ flatly prohibits

arbitrary detention: “A state violates international law if, as a

matter of state policy, it practices, encourages, or condones . . .

prolonged arbitrary detention.” Restatement (Third) of the

Foreign Relations Law of the United States § 702(e) (1987)

(“Restatement (Third)”). See, e.g., Alvarez-Machain v.United

States, 331 F.3d 604, 621 (9th Cir.) (en banc) (holding that

detention is “arbitrary” and an abridgement of human rights

when “it is not pursuant to law; it may be arbitrary also if it is

The United Nations Human Rights Committee and several

international legal scholars have noted that detentions justified under

international law. See Restatement (Third) of the Foreign Relations Law

of the United States § 702 cmt. h (1987) (stating that detention is arbitrary

“if it is not pursuant to law; it may be arbitrary also if it is incompatible

with the principles of justice or with the dignity of the human person”)

(internal quotations and citation omitted). Thus, if the Government's

interpretation of the existing U.S. laws, ¢.g., Article [I and the Joint

Resolution, that purportedly authorize Mr. Padilla’s detention is arbitrary

under international law, then his detention may be characterized as unjust.

'" Customary international law, or the law of nations, “results from a

general and consistent practice of states followed by them from a sense of

legal obligation.” Restatement (Third) § 102(2); see Sanchez-Espinoza v.

Reagan, 770 F.2d 202, 206 (D.C.Cir. 1985) (noting that the terms

“customary international law” and “law of nations” are interchangeable);

see also United States v. Yousef, 327 F.3d 56, 91 0.24 (2d Cir. 2003)

(“Customary international law is comprised of those practices and customs

that States view as obligatory and that are engaged in or otherwise acceded

to by a preponderance of States in a uniform and consistent fashion.”’).

incompatible with the principles of justice or with the dignity

of the human person”) (citation omitted), cert. granted, 124 S.

Ct. 807, 821 (2003); Al-Nashif v. Bulgaria, 36 Eur. H.R. Rep.

37 para. 94 (2002) (“National authorities cannot do away with

effective control of lawfulness of detention by the domestic

courts whenever they choose to assert that national security

and terrorism are involved. . . .”’).

Neither the ICCPR nor customary international law

creates an exception from this prohibition on arbitrary

detention for the Executive’s invented “enemy combatant”

classification - a label apparently contrived as a

rationalization to deny detainees any rights due under the law.

Thus, the President cannot declare through Executive fiat that

a certain class of detainees is immune to the prohibition on

arbitrary detention imposed by the ICCPR and customary

international law.

B. The Executive Has Deprived Mr. Padilla of His

Right to Be Notified of the Legal Basis of His

Detention.

The Executive’s contrived “enemy combatant”

classification does not exist at law; beyond that the

Government failed to define it at the time Mr. Padilla was

arrested. This predicament puts Mr. Padilla in an impossible

legal position: Even if he were afforded the opportunity to

challenge the basis of his detention, he could not do so in the

absence of a standard defining “enemy combatant.” By not

providing Mr. Padilla with a definition of the term “enemy

combatant” at the time he was arrested, the Executive has

failed to notify him of the legal basis for his detention.

This failure to notify Mr. Padilla of the charges against

him at the time he was arrested violates Article 9(2) of the

ICCPR, which requires that “[a]nyone who is arrested shall be

informed, at the time of arrest, of the reasons for his arrest and

shall be promptly informed of any charges against him.”

ICCPR art. 9(2). When the Government released Mr. Padilla

from the custody of the Department of Justice, which was

holding him as a material witness, it detained him anew under

a classification undefined at law and thus violated Article 9(2)

of the ICCPR.

Ignoring the clear requirements of the ICCPR, the

Government attempts to find support for its spurious “enemy

combatant” designation by exaggerating a passing reference

to the term in Quirin, a Supreme Court decision that pre-dates

the United States’ ratification of the ICCPR by nearly a half

century. See Pet’r’s Br. at 28; Quirin, 317 US. at 1.

Although the Court used the term “enemy combatant” in its

discussion of wartime detainees, the Court never defined it.

Instead, the Court invoked the term to characterize “offenders

against the law of war.” Quirin, 317 U.S. at 31 (explaining

that an offender against the law of war is, inter alia, “an

enemy combatant who without uniform comes secretly

through the lines for the purpose of waging war by destruction

of life or property”) (emphasis added). The Government

incorrectly stated that in Quirin, the Court recognized that

“the ‘universal agreement and practice’ under the ‘law of war’

holds that enemy combatants are ‘subject to capture and

detention . . . by opposing military forces.’” Pet’r’s Br. at 28

(citing Quirin, 317 U.S. at 30-31); see also Pet’r’s Br. at 33.

Rather, the Quirin Court stated that “unlawful” — not enemy —

combatants are “subject to capture and detention . . . by

opposing military forces.” Quirin, 317 U.S. at 30-31. Thus,

neither Quirin nor any other source of law -— U.S. or

international — appears to provide Mr. Padilla or this Court

with any definition of “enemy combatant.” The Court’s lone

reference to the term provides Mr. Padilla with insufficient

notice of the legal basis of his detention. In violation of

Article 9(2) of the ICCPR, the Government has failed not

only to define the term, but also to provide Mr. Padilla at the

time of his arrest with a set of criteria or a standard that

triggers its applicability to a particular detainee.”

? The White House Counsel's procedures for designating “enemy

combatants” state that the Executive may designate US. citizens as enemy

The Executive’s failure to provide Mr. Padilla with

notice of the legal basis for his detention is also unlawful

under customary international law. See Restatement (Third) §

702 cmt. h (providing that detention is arbitrary if it “is not

accompanied by notice of charges”); Protocol Additional to

the Geneva Conventions of 12 August 1949, and relating to

the Protection of Victims of International Armed Conflicts,

Jan. 23, 1979, 1125 U.N.T.S. 3, art. 75(3) (stating that “[a}ny

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

international law. See supra note 11 and accompanying text.

Explaining the import of Article 5(2) of the European

Convention on Fundamental Freedoms and Human Rights

(“ECHR”), the European Court of Human Rights noted that

Article 5(2) “contains the elementary safeguard that any

“enemy combatant” for those citizens arrested on U.S. soil as “[clitizens

who associate themselves with the military arm of the enemy government,

pea Pm te nm Set cet pe Ae gr ee

.” Id. at $2704. But the White House Counsel publicly announced

hostile acts.” Jd. at $2704 (quoting Quirin, 317 U.S. at 38).

person arrested should know why he is being deprived of his

liberty.” Fox, Campbell & Hartley v. United Kingdom, App.

Nos. 12244/86, 12245/86, 12383/86, 13 Eur. H.R. Rep. 157,

170 (1990), available at 1991 WL 838719. Further, the

European Court stated that “any person arrested must be told,

in simple, non-technical language that he can understand, the

essential legal and factual grounds for his arrest, so as to be

able, if he sees fit, to apply to a court to challenge its

lawfulness in accordance with paragraph 4” of Article 5 of the

ECHR. I/d.; see also O'Driscoll v. Sec’y of State for the Home

Dep’t, Case No: CO/913/2002 para. 24 (Q.B. Div’! Ct. 2002),

available at 2002 WL 31523307 (agreeing with the European

Court of Human Rights that “to be properly prescribed by law

an offence must be adequately accessible, and it must be

formulated with sufficient care to enable the citizen to

regulate his conduct, if need be with appropriate advice”)

(citing Sunday Times v. United Kingdom, 2 Eur. H..R. Rep.

245 (1979). The European Court of Human Rights also has

required judges presiding over bond determination hearings to

make sure that individuals are detained only upon a careful

review of the legal standard for detention. See TW v. Malta,

App. Nos. 25644/94, 25642/94, 29 Eur. H.R. Rep. 185, 189

para. 41 (2000) (requiring the judge to review the

circumstances of detention by referring to legal criteria to

determine whether there are reasons to justify detention and to

order the release if there are no such reasons). In Spain, the

authorities must immediately inform those arrested for

terrorist crimes of the reason for their arrests. See TC, May

16, 2000 (S.T.C. 127). Moreover, at least one U.S. federal

court of appeals has found that detention is arbitrary if

executed without an adequate explanation of the legal basis

for the detention. See Martinez v. City of Los Angeles, 141

F.3d 1373, i384 (9th Cir. 1998) (stating that “[dJetention is

arbitrary if ‘it is not accompanied by notice of charges,””

among other things) (quoting Restatement (Third) § 702 cmt.

h and citing ICCPR art. 9).

By depriving Mr. Padilla of the right to notice of the

legal basis of his detention, the Executive is arbitrarily

detaining Mr. Padilla under international law.

C. The Government’s Detention of Mr. Padilla Is

Arbitrary under International Law Because the

Government Has Deprived Him of a Meaningful

Opportunity to Challenge the Basis of His

Detention.

In addition to detaining Mr. Padilla under a classification

that is neither authorized nor defined, the Government also

has arbitrarily detained Mr. Padilla by not providing him with

a meaningful opportunity to challenge the basis of his

detention. This opportunity, widely recognized as a

fundamental right, is required by Article 9(4) of the ICCPR

and by customary international law.

Regardless of how the Government classifies or

characterizes Mr. Padilla, he is entitled to the protections of

the ICCPR, providing that “[aJnyone who is deprived of his

liberty by arrest or detention shall be entitled to take

proceedings before a court, in order that that court may decide

without delay on the lawfulness of his detention and order his

release if the detention is not lawful.” ICCPR art. 9(4). At

least one U.S. federal court of appeals recently noted that

Article 9(4) of the ICCPR requires the United States to

subject Executive detention to judicial review. See Gherebi,

352 F.3d at 1283 n.7 (quoting ICCPR art. 9(4)).

Mr. Padilla’s detention for nearly two years without the

opportunity to challenge the Government’s characterization of

his status deprives him of the fundamental right to liberty and

security embodied in Article 9(4). In direct contravention of

its obligations under the ICCPR, the Government has denied

Mr. Padilla “proceedings before a court” by precluding any

testimony in refutation of his detention and by failing to

notify him of the legal basis of his detention. See, e.g.,

Morgan v. United States, 304 U.S. 1, 18 (1938) (stating that

the right to a “‘full hearing’ — a i.ir and open hearing .. .

embraces not only the right to present evidence but also a

reasonable opportunity to know the claims of the opposing

party and to meet them”). Such a denial of process must

survive at least the rigorous review recognized by U.S. due

process, see Mathews v. Eldridge, 424 U.S. 319, 345-46

(1976), and the law of other states, see, e.g., Tan Te Lam v.

Superintendent of Tai A Chau Detention Centre, A.C. 97, 111

para. 22 (P.C. 1996) (stating that Hong Kong “courts should

construe strictly any statutory provision purporting to allow

the deprivation of individual liberty by administrative

detention and should be slow to hold that statutory provisions

authorise administrative detention for unreasonable periods or

in unreasonable circumstances”). This lack of process

constitutes procedural arbitrariness under the ICCPR and

must be remedied, if the United States is to comply with its

obligations under the ICCPR. See Alvarez-Machain, 331 F.3d

at 620 (stating that “there exists a clear and universally

recognized norm prohibiting arbitrary arrest and detention”).

Although the ICCPR provides procedures for derogating

from its prohibition on arbitrary detention, the Government

has ignored these procedures. To derogate from the ICCPR,

the derogating government must officially proclaim the

existence of a “public emergency which threatens the life of

the nation.” ICCPR art. 4(1). Derogation is permitted only

when it is “strictly required by the exigencies of the

situation,” does not involve discrimination, and is consistent

with the derogating government’s other obligations under

international law. /d. It is not enough that summary

detention without review is within the reasonable range of

responses to the situation; the situation must make derogation

imperative. See U.N. Hum. Rts. Committee, General

Comment 29 para. 5, U.N. Doc. CCPR/C/21/Rev.1/Add.11

(2001) (“General Comment No. 29”) (stating that derogating

parties must show not only that the exigencies “justify”

derogation, but that they “require” it). Parties to the ICCPR

may not derogate from certain ICCPR articles. See ICCPR

art. 4(2). However, Article 9, prohibiting arbitrary detention,

is not among them. See id.

The derogating power must notify the other ICCPR

parties through the Secretary General of the United Nations.

See id. art. 4(3). States historically have followed derogation

procedures to respond to emergency conditions without

adverse consequence. The ICCPR makes clear that states

derogating from it must only do so temporarily. See General

Comment No. 29 para. 1. The British government recently

derogated from: the ICCPR to pass the Anti-Terrorism, Crime

and Security Act of 2001. See Multilateral Treaties Deposited

with the Secretary General: Status as of Dec. 31, 2002, U.N.

Doc. ST/LEG/SER.E/22 (2002). In addition, Algeria,

Argentina, Azerbaijan, Chile, Colombia, Ecuador, Guatemala,

Israel, Nambia, Nepal, Nicaragua, Peru, Poland, the Russian

Federation, Serbia and Montenegro, Sri Lanka, Sudan, and

Trinidad and Tobago all have formally derogated from the

ICCPR in states of siege or imposition of martial law

occurring in the past twenty years. See id.

Having failed to derogate formally from Article 9 of the

ICCPR, however, the Government must adhere to it even in

the most trying times. See Legality of the Threat or Use of

Nuclear Weapons, 1996 LC.J. 226 para. 25 (Jul. 8) (“The

Court observes that the protection of the International

Covenant of Civil and Political Rights does not cease in times

of war, except by operation of Article 4 of the Covenant

whereby certain provisions may be derogated from in a time

of national emergency.”).

Even if the Government decidea to derogate, the United

Nations Human Rights Committee, a panel of experts

established to monitor ICCPR implementation, stated recently

that “[iJn order to protect non-derogable rights, the right to

take proceedings before a court to enable the court to decide

without delay on the lawfulness of detention, must not be

diminished by a State party’s decision to derogate from the

Covenant.” General Comment No. 29 para. 16.

Moreover, customary international law requires

governments to provide their detainees with a meaningful

opportunity to challenge the basis of their detention in times

of war and peace. See Winterwerp v. The Netherlands, 2 Eur.

H.R. Rep. 387, 403 para. 39 (1979) (“In a democratic society

subscribing to the rule of law no detention that is arbitrary can

ever be regarded as lawful.”) (footnote omitted) (citing

European Convention for the Protection of Human Rights and

Fundamental Freedoms art. 5(3)); Kadic v. Karadzic, 70 F.3d

232, 242 (2d Cir. 1995) (stating that arbitrary detention

violates the laws of war); Caballero v. United Kingdom, App.

No. 32819/96, 30 Eur. H.R. Rep. 643, 652 paras. 42-44

(2000) (finding automatic denial of bail arbitrary, in part,

because. the judge failed, having heard the accused himself, to

examine all the facts relating to the existence of a genuine

public interest justifying denial).

A principal source of this requirement under customary

international law is foreign case law reviewing challenges to

alleged arbitrary detentions.” Judiciaries in foreign countries

facing ongoing terrorist threats have required their

governments to provide detainees a meaningful opportunity to

challenge the basis of detention, even when the detainees are

suspected either of committing or conspiring to commit

terrorist acts or of being members of a terrorist organization.

See, e.g., Further Hearing 7048/97, Anon. v. Minister of

Defence, 54(1) P.D. 721, 743 (2000) (permitting Hezbullah

detainees the opportunity to challenge the basis of their

* U.S. courts historically have determined the content of customary

international law by examining the practices of nations, as evidenced by

treaties, U.N. declarations, court decisions, and scholarly writings. See

Filartiga v. Pefia-lrala, 630 F.2d 876, 880 (2d Cir. 1980) (“The law of

nations ‘may be ascertained by consulting the works of jurists, writing

professedly on public law; or by the general usage and practice of nations;

or by judicial decisions recognizing and enforcing that law.’”) (quoting

United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820) (examining

scholarly writings to determine content of the “law of nations”)); see also

Aquamar, S.A. v. Del Monte Fresh Produce N.A., 179 F.3d 1279, 1295

(11th Cir. 1999) (“We look to a number of sources to ascertain principles

of international law, including international conventions, international

customs, treatises, and judicial decisions rendered in this and other

countries.”’).

detentions by the Israeli government and invalidating

detention past the limit of the detainees’ sentences); Queen on

the Application of Abbasi & Anor. v. Secretary of State, 2003

U.K.H.R. Rep. 76 para. 60 (C.A. 2002), available at 2002

WL 31452052 (finding that “[t]he underlying principle,

fundamental in English law, . . . that every imprisonment is

prima facie unlawful” is applicable to British citizens “in war

as in peace,” as “‘no member of the executive can interfere

with the liberty . . . of a British subject except on the

condition that he can support the legality of his action before

a court of justice.”” (quoting R v. Home Secretary ex p.

Khawaja (1984) 1 A.C. 74))."*

As part of the requirement to provide a meaningful

opportunity to challenge the basis of detention, British and

Spanish courts have held that detainees, accused of

committing crimes involving acts of terrorism, are entitled to

the right to counsel. See Regina v. Mullen, No. 9704978/Z3,

2 Cr. App. R. 143, at 14 (Crim. App. 1999) (holding that

“insulation” of an individual, suspected of conspiring to cause

explosions likely to endanger life or cause serious injury to

property, “from any legal advice following his detention . . .

* The consistent practice of other nations under a sense of legal

obligation serves as further evidence of customary international law’s

prohibition on arbitrary detention. See, e.g., American Convention on

Human Rights, adopted Nov. 22, 1969, Hein’s No. KAV 2307, art. 7(2)+ 3),

1144 U.N.T.S. 123 (“No one shall be subject to arbitrary arrest or

imprisonment.”); American Declaration of the Rights and Duties of Man,

O.A.S. Res. XXX (1948), O.A.S. Off. Rec. OEA/Ser. LV/1.4 Rev. (1965)

art. 25; European Convention for the Protection of Human Rights and

Fundamental Freedoms, Nov. 4, 1950, art. 5(1), 213 U.N.T.S. 222;

Organization of African Unity: Banjul Charter on Human and Peoples’

Rights, Jun. 27, 1981, 21 LL.M. 58 (1982); Universal Declaration of

Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810, arts. 3, 9 (1948);

Siderman de Blake v. Argentina, 965 F.2d 699, 719 (9th Cir. 1992) (“The

Universal Declaration of Human Rights is a resolution of the General

Assembly of the United Nations. As such, it is a powerful and

authoritative statement of the customary international law of human

rights.””).

was contrary to [his] entitlement as a matter of human rights”

and thus “in breach of Public International Law”); TC, May

16, 2000 (S.T.C., 127) (requiring the authorities to

immediately inform detainee, after being arrested for a crime

involving terrorism, of his right to counsel).

Ill. THE GOVERNMENT’S ASSERTION THAT IT

CAN DISREGARD MANDATES OF INTERNATIONAL

LAW CONFLICTS WITH THIS COURT’S

TRADITIONAL RELIANCE ON SUCH LAW

WHEN DEFINING THE SCOPE OF THE

GOVERNMENT’S WARTIME DETENTION

POWERS AND INDIVIDUAL RIGHTS.

This Court has traditionally considered international law

when interpreting the scope of Executive detention powers,

ambiguity in federal statutes, and individual rights.”

Therefore, the Government cannot rely on Article [I of the

Constitution and the Joint Resolution to support the arbitrary

detention of Mr. Padilla because it is inconsistent with

international law. See Resp’t’s Br. in Opp’n to Pet. for Cert.

at 14-17.

A. The Court Has Considered International Law

When Determining the Scope of Constitutional

Powers.

When reviewing the scope of the Executive’s detention

powers, this Court has long considered international law.

Even in the Government’s centerpiece case, Ex parte Quirin,

* In determining the scope of the Government’s constitutional powers,

as well as the scope of individual rights, this Court frequently has looked

to international law. “International law is part of our law, and must be

ascertained and administered by the courts of justice of appropriate

jurisdiction.” Paquete Habana, 175 U.S. 677, 700 (1900). Customary

international law has long been embedded into American common law.

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

this Court, when reviewing the scope of wartime detention

powers granted to the Executive under Article II, referred to

international law in determining what procedural protections

must be afforded to those captured and held as “enemy

belligerents.” Ex parte Quirin, 317 U.S. at 31, 38.

Considering whether the acts charged constituted an offense

against the law of war, this Court consulted various sources of

domestic and international law to determine the scope of the

Executive's detention powers. /d. at 35-36 (“This precept of

the law of war has been so recognized in practice both here

and abroad, and has so generally been accepted as valid by

authorities on international law that we think it must be

regarded as a rule or principle of the law of war recognized by

this Government by its enactment of the Fifteenth Article of

War.”’) (citing and quoting foreign military manuals and other

texts).

Similarly, in determining whether a German national

convicted by a U.S. military commission could pursue habeas

relief, the Court extensively reviewed the then-relevant rules

of international law to ensure that they would not be violated

by its decision. See Johnson v. Eisentrager, 339 U.S. 763,

785-88 (1950); id. at 785 (noting “[t}he practice of every

modern government”); id. at 786 (citing treaty law); id. at

787-88 (citing Hague Regulations and secondary sources on

international law). Likewise, in Ex parte Milligan, the Court

‘cited the practices of foreign governments in support of its

holding that the Executive lacked constitutional power to

subject civilians to military courts-martial where the civil

administration was not deposed and its courts were open. 71

U.S. (4 Wall.) 2, 38-40 (1866) (discussing power of English

and French monarchs to impose courts-martial upon subjects).

In turning its back on the demands of international law, the

Government is violating the clear precepts of American

jurisprudence enunciated by the Court.

that, exceeding his orders, a U.S. Marines lance corporal’s forced entry

B. Federal Statutes, Where Ambiguous, Must Be

Construed Consistently with Applicable

International Law.

Similarly, the Government must enforce the Joint

Resolution consistently with international law and avoid a

construction of the Joint Resolution, or any other

Congressional act, that would violate international law “if any

other possible construction remains.” Murray v. Schooner

Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

Accordingly, courts will not interpret a statute to supercede

international law absent a clear showing that Congress intended

for the statute to do so. See Restatement (Third) § 114.

The Joint Resolution generally empowers the Executive

to use “all necessary and appropriate force” against those

nations, organizations, or persons responsible for the

September ith terrorist attacks, or those persons that

harbored such organizations or persons, in order to prevent

future terrorist attacks against the United States. But

detaining Mr. Padilla as an “enemy combatant,” a term

unrecognized and undefined at law, cannot be “necessary and

appropriate.” Moreover, the Joint Resolution never expressly

authorizes the Executive to detain Mr. Padilla (or others) as

an “enemy combatant” without any opportunity to challenge

the basis of his detention. Therefore, to the extent that Mr.

Padilla’s detention is inconsistent with international law, the

Joint Resolution cannot be interpreted to authorize his

detention without a meaningful opportunity to challenge the

basis of his detention. See Padilla, 352 F.3d at 712 (stating

that the President’s authority to detain Mr. Padilla as an

“enemy combatant” is not “at its maximum” because the Joint

Resolution does not authorize his detention) (citing

into a Vietnamese home with the intent to summarily execute its

inhabitants “is unjustifiable under the laws of this nation, the principles of

international law, or the laws of land warfare.” United States v. Schultz,

39 C_M.LR. 133, 136 (C.M.A. 1969).

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635

(1952)) (Jackson, J., concurring).

C. The Court Has Considered International Law

When Determining the Scope of Constitutional

Rights.

Moreover, when interpreting the scope of certain

constitutional rights, this Court also has considered foreign

precedent and treaty law.” Specifically, the Court has

considered foreign precedent when discussing the right to

engage in sodomy in the privacy of one’s home, see Lawrence

v. Texas, 539 U.S. 558, __, 123 S. Ct. 2472, 2483 (2003), the

history of assisted-suicide law, see Washington v. Glucksberg,

521 U.S. 702, 718 n.16 (1997), the application of the Eighth

Amendment to the death penalty, see, e.g., Thompson v.

Oklahoma, 487 U.S. 815, 830-31 (1988) (Stevens, J.);

Enmund v. Florida, 458 U.S. 782, 796-97 & n.22 (1982);

Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977); Trop v.

Dulles, 356 U.S. 86, 102-03 (1958); see also Stanford v.

Kentucky, 492 U.S. 361, 389-90 (1989) (Brennan, J.,

dissenting); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer,

(Breyer, J., concurring). Last term, Justices Breyer and

peer Dipl te tegen hy pny ye dye

Ginsburg also discussed the International Convention on the

Elimination of All Forms of Racial Discrimination, a treaty

ratified by the U.S., as support for the Court’s observation

that affirmative action programs “must have a logical end

point.” Grutter, 539 U.S. at 306 (Ginsburg, J., concurring)

(framing the extent to which admissions programs at the

University of Michigan may consider race, in part, by

observing the “international understanding of the office of

affirmative action”).

IV. THE GOVERNMENT’S DETENTION OF MR.

PADILLA IS INCONSISTENT WITH ITS STRONG

CONDEMNATION OF ARBITRARY DETENTION

AND PROMOTION OF THE RULE OF LAW

WORLDWIDE.

The rule of law is only as strong as a government’s

adherence to it. Its fortitude depends not only upon the

independence of a judiciary, but also upon the Executive

branch’s commitment to law enforcement and to the

principles that such enforcement is aimed to preserve. Thus,

in the context of international and domestic human rights and

humanitarian law, the Government must enforce not only the

law but also the principles of human dignity. See Jordan J.

Paust, Judicial Power to Determine the Status and Rights of

Persons Detained without Trial, 44 Harv. Int’! L.J. 503, 531

(2003) (“Destruction of American values, overreaction, the

weakening of real bases of strength of our democratic

institutions, and lawless law enforcement can fulfill terrorist

terrorist attacks. Judges in a democracy committed to law and

human dignity cannot countenance such a result.”).

By detaining Mr. Padilla outside the law for over two

years without either the opportunity to present testimony to

refute the basis of his detention or meaningful access to

counsel, the Government is engaging in the very practice of

arbitrary detention that it has condemned worldwide for

decades. In statements to Congress and to the United Nations,

United States government officials recently and repeatedly

Rumsfeld quoted an Amnesty International report stating that the

“Afghans suffered pervasive ‘human rights abuses, including arbitrary

detention . Hearing to Review Testimony on Operation Enduring

Freedom Before the Senate Comm. on Armed Services, 107th Cong. (July

31, 2002) (statement of Hon. Donald Rumsfeld, Sec. of Defense),

Larson, Under Secretary of State for Economic, Business, and Agricultural

* Statement of Harold Hongju Koh, U.S. Assistant Secretary of State,

Democracy, Human Rights & Labor, Before the U.N. Commission on

Human Rights (Mar. 30, 2000) (stating that “in the Democratic Republic

? While U.S. soldiers were marching to Baghdad, Secretary of State

Colin Powell, referring to the State Deparument’s 2002 Iraq Country

and continued to deny citizens the basic right to due process.” U.S.

Department of State’s Annual Human Rights Report (Mar. 31, 2003), in

U.S. Department of State Press Release, State Department Report Outlines

Human Rights Abuses in Iraq-Powell Cites Saddam's Regime as Great

ne available at 2003 WL 2047088.

* Statement of Lorne W. Craner, Assistant Secretary of State for

Democracy, Human Rights, and Labor, Before a Helsinki Commission

their practice of arbitrary detention. Also, the House and

Senate have passed resolutions urging the People’s Republic

of China to release Wang Bingzhang and Dr. Yang Jianli,

who have been arbitrarily detained. See S. Res. 184, 108th

Cong. (2003) (resolving that Dr. Jianli’s detention violates

Article 9 of the ICCPR and Article 9 of the Universal

Declaration of Human Rights, G.A. Res. 217A (III), U.N.

Doc. A/810 (1948)); H. Con. Res. 326, 108th Cong. (2003);

Press Release, Senator Jon Kyl, Senate Passes Kyl-Mikulski

Resolution to Free U.S. Resident Held in China Since 2002

Dr. Yang Jianli Detained in China for Pro-Democracy Views

(July 30, 2003), available at 2003 WL 11710378. The force

of this position is severely diluted when the United States

denies fundamental aspects of due process to its own wartime

detainees. For example, Russia’s arbitrary detentions

continue in the face of what Russia has deemed to be terrorist

threats from Chechen forces, despite statements from U.S.

officials condemning such detentions. See Craner Statement,

supra note 23 (stating that Russia’s arbitrary detentions “are

not consistent with international humanitarian law or Russia’s

OSCE and international human rights commitments”).

As an unjustified violation of international law, the

Government’s arbitrary detention of Mr. Padilla also has

compromised the United States’ concerted effort to promote

democracy and the mule of law abroad. Despite the

Government’s blatant disregard for international law here, the

Executive has repeated the case to the American people that

the objective of establishing a rule of law in Afghanistan and

hearing on Sept. 9, 2003, in U.S. Department of State Press Release, Lorne

Craner Testimony at Sept. 9 Helsinki Commission Hearing, available at

2003 WL 2050164 (Sept. 10, 2003).

* Statement of Lome W. Craner, Assistant Secretary of State for

Democracy, Human Rights, and Labor, Hearing on a Review of the State

Department Country Reports on Human Rights Practices, Before the

House Subcomm. on Terrorism, and Human Rights, of

the House Comm. on Int’! Relations, available at 2003 WL 1998849 (Apr.

30, 2003).

Iraq underlies the U.S. military — and now nation-building —

exercises there. At his first State of the Union Address,

President Bush emphasized that “no nation is exempt from”

the defense of liberty and justice. State of the Union Address,

at http://www. whitehouse. gov/news/releases/2002/0 1/prin

20020129-11.html (Jan. 29, 2002).” The President enunciated

similar objectives for the invasion of Iraq last year: “As we

press on to liberate every corner of Iraq, . . . [wJe’ll help the

Iraqi people to establish a just and representative government,

which respects human rights and adheres to the rule of law.”

President George W. Bush, Remarks on Iraq from the Rose

Garden (Apr. 15, 2003), available at http://www. whitehouse. gov/

news/releases/ 2003/04/ print/20030415-10.html.” Enforcing

and practicing those policy objectives have secured the fair

treatment of our own men and women captured on the field of

See CEP RNS GETS Wy Se 6D GS Se

world.

CONCLUSION

Amicus, Global Rights, respectfully urges the Court to

affirm the decision below not only to hold the United States to

its commitments under international law, but also to preserve

** Punctuated by applause from both sides of the House chamber, the

President further stated: “America will always stand firm for the non-

negotiable demands of human dignity: the rule of law; limits on the power

of the state; respect for women; private property; free speech; equal

justice; and religious tolerance.” State of the Union Address, at

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re oe a

the long-standing regime of human rights law that has

protected scores of individuals from arbitrary caprice and

Executive whim.

Respectfully submitted,

JAMES F.FITZPATRICK*

*Counsel of Record

KATHLEEN A. BEHAN

JOSHUA A. LEVY

LESLIE M. HILL

CHAD W. HIGGINS

ARNOLD & PORTER LLP

555 12th Street, N.W.

Washington, D.C. 20004

(202) 942-5000

GAY J. MCDOUGALL

MARK BROMLEY

GLOBAL RIGHTS

1200 18th Street, N.W.

Suite 602

Washington, D.C. 20036

(202) 822-4600

Counsel for Amicus Curiae

April 12, 2004

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.