# Amicus Curiae Brief — Rumsfeld v. Padilla

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0732%3A37

## Record

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

## Text

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No. 03-1027

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IN THE
Supreme Court of the United States

DONALD H. RUMSFELD, Secretary of Defense,
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 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

i

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

iv

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

Vv
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

vi

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

ix
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

x

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

2

(“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,

3

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/.

4

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).

5

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,

6

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

5

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

7

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).

9

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.”).

10

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.”’).

11
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

12

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

13

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).

14

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).

15

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 .. .

16

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.

17

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

18

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.”’).

19

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.””).

20

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 ... ”).

21
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.

© During the Vietnam War, the U.S. Military Court of Appeals ruled
that, exceeding his orders, a U.S. Marines lance corporal’s forced entry

\

22

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).

23

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

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24

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

H.
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

26

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).

27

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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28

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0732%3A37. Public record. Not legal advice.