Amicus Curiae Brief — Hamdi v. Rumsfeld

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No. 03-6696

In the Supreme Court of the Gnited States

YASER ESAM HAMDI; ESAM FOUAD HAMDI,

As Next Friend of YASER ESAM HAMDI

Petitioners,

Vv.

DONALD H. RUMSFELD, W.R. PAULETTE, Commander,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF CERTAIN FORMER

PRISONERS OF WAR AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

PHILIP ALLEN LACOVARA

Counsel of Record

ANDREW J. PINCUS

ANDREW J. SCHAEFER

Mayer, Brown, Rowe & Maw LLP

1909 K Street, N.W.

Washington, D.C. 20006-1157

(202) 263-3000

EOE...

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE .....0..... ce eeeeeeeeeeees l

SUMMARY OF ARGUMENT .....0.... cece ccceceseeteeeseeeeeenees 2

TE seriniesiiciceincitcieaaiiiiiaacinaanbieainaiveiisiaiisdiieisiiniceuvainiininaninits 4

I. THE GENEVA CONVENTIONS PROTECT

ALL PARTIES TO CONFLICT, AS THE

UNITED STATES HAS REPEATEDLY AF-

FIRMED, AND EXTEND IMPORTANT

PROTECTIONS TO PERSONS CLAIMING

TO BE PRISONERS OF WAR. ......ccccccccccesccsosesesseess 4

Il. FEDERAL COURTS MAY EXAMINE THE

LAWFULNESS OF MILITARY CON-

FINEMENT OF AMERICANS WHO

CLAIM PRISONER OF WAR STATUS. ................. 9

Il. FAILURE TO ADHERE TO THE GENEVA

CONVENTIONS ENDANGERS AMERI-

CAN TROOPS AND CIVILIANS ABROAD........ 12

A. The United States Ratified the Geneva

Conventions In Part to Protect Our

Own Service Members ....................000.s00e000: 12

B. The United States Government’s Strict

Adherence to the Principles and Re-

quirements of the Geneva Conventions

Has Helped Save American Lives in

le I cintirpecentinirmtnnannnteds 13

od Discarding the Principles Embodied in

the Geneva Conventions Encourages

Others to Do the Same, to the Detri-

ment of International Law.......................04.. 21

CURA IINIS cocasenssesesensscsssesesinesceninnisnnuaioneasienneisasentanetin 25

TABLE OF AUTHORITIES

Page

Cases

Hamdi v. Rumsfeld, 316 F.3d 450 (4" Cir. 2003)....... 20, 23

Hamdi v. Rumsfeld, 337 F.3d 335 (4 Cir. 2003) ......c... 21

Immigration and Naturalization Serv. v. St. Cyr, 533

UW. BP GIGS D o:erssmssssiseesintipiainiiamniembamimiaaiaaimaiaa 9

In re Yamashita, 327 U.S. 1 (1946).........cccccccsssesssscseseseees 25

Lonchar v. Thomas, 517 U.S. 314 (1996) .......cccccccccesseereeees Y

Padilla v. Rumsfeld, 352 F.3d 695 (2"™ Cir. 2003) ............ 11

Smith v. Bennett, 365 U.S. 708 (1961) .....cccccceccseseeseseseeneeees 9

Swain v. Pressley, 430 U.S. 372 (1977) ......cccccccsssesessseeseeees y

Statutes

101 Cong. Rec. 9960 (July 6, 1955)..........ccccseeeseesseseeeees 13

Antiterrorism and Effective Death Penalty Act,

Pub. L. 104-132, 110 Stat. 1214 (1996) oe eeeees 10

Illegal Immigration Reform and Immigrant Responsibility

Act, Pub. L. 104-208, 110 Stat. 3009-546 (1996)....... 10, 11

Sea CIEL, Soisictisicciiaiciccaadinainictndestesasanmiaumtiaimeds econ 4

Treaties and Regulations

Army Regulation 190-8, Enemy Prisoners of War,

Retained Personnel, Civilian Internees and Other

Ne Se iticccistesenscscessccnsenstieesenoniaiinieitieies 7,8

ee ee

Dep’t of the Navy, NWP 1-14M: The Commander's

Handbook on the Law of Naval Operations 11-3 (1995)....8

Geneva Convention Relative to the Protection of

Civilian Persons in Time of War, Aug. 12, 1949, 6

U.S.T. 3356, 75 U.N.T.S. 287........... eas 20

Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75

Se 4,5, 6,7

Miscellaneous

George H. Aldrich, The Laws of War on Land, 94 AM. J.

Ce 5, 13,15

George H. Aldrich, The Taliban, Al Qaeda, and the

Determination of Illegal Combatants, 96 AM. J. INT’L

oS ee 16

Col. Fred L. Borch, Review of Honor Bound, 163 MIL.

Te 15

John Cloud, What's Fair in War?, TIME, Apr. 7, 2003..... 17

Contemporary Practice of the United States Relating

to International Law, 62 AM. J. INT’L L. 754 (1968).......... 8

Frank Davies, U.S. Policy May Dilute Protection of

POWs, SAN JOSE MERCURY NEWS, Mar. 25, 2003 ........... 17

Dep’t of Defense News Transcript, Briefing on Geneva

Convention, EPW’s and War Crimes (Apr. 7, 2003)........ 17

Dep’t of Defense News Transcript, Deputy Secretary

Wolfowitz Interview with New England Cable News

Ia cael eerreeememennemnnepesnenboesnesent 18

Dep’t of Defense, Briefing on Enemy Prisoner of

War Status Categories, Releases and Paroles (May 9,.

Department of Defense, FINAL REPORT TO CONGRESS:

CONDUCT OF THE PERSIAN GULF WAR (1992)................... 17

Dwight D. Eisenhower, CRUSADE IN EUROPE (1949) ...... 16

Geneva Conventions of the Protection of War Victims:

Hearing Before the Senate Comm. on Foreign Relations,

84" Cong., Ist Sess., (1955)......sssesseeee enienmeimicienn 12, 16

Judge Advocate General’s School, OPERATION LAW

HANDBOOK (O’Brien, ed. 2003)..............::ccccceeeeeeeeeeeenees ..8

Lawyers Committee for Human Rights, ASSESSING

THE NEW NORMAL: LIBERTY AND SECURITY FOR THE

POsST-SEPTEMBER 11 UNITED STATES (Fiona Doherty &

Deborah-Pearlstein, eds. 2003).................sesseeeeeeeseeeeeseeeees 23

SN eG A NE a =

Steve Levin, /nternational Law Often a Casualty,

PITTSBURGH PosT-GAZETTE, Mar. 25, 2003 ............000000-- 17

Paul Lewis, U.N., Urged by U.S., Refuses to Exchange

Somalis, N.Y. TIMES, Oct. 8, 1993 .00.........::ccccescceseseeceeees 19

Senator John McCain, Speech to the American Red Cross

Promise of Humanity Conference (May 6, 1999)............ 14

Neil McDonald & Scott Sullivan, Rational Interpretation

in Irrational Times: The Third Geneva Convention and

the “War on Terror,” 44 HARV. INT’L L. J 301 (Winter

Steven Lee Myers, Serb Officer, Captured by Rebels,

Held by U.S., N.Y. TIMES, Apr. 17, 1999 .cccsseenseesnees 18

Note, Safeguarding the Enemy Within, 71 FORDHAM

Bn: SE: a TEI iocteicorstontenscenenininninnananienniegenicnnieiiiaanetic 14

Note: The Facade of Humanitarian Intervention for

Human Rights in a Community of Sovereign Nations,

15 Ariz. J. INT’L & Comp. LAW 871 (1998)...............0.... 19

Preserving Our Freedoms While Defending Against

Terrorism: Hearings Before the Senate Comm. on the

Judiciary, 107" Cong., 1% Sess. (2001)........:::s++seseseeseeeees 22

Maj. Gen. George S. Prugh, VIETNAM STUDIES, LAW

AT WAR: VIETNAM 1964-73 (Dep’t of the Army 1975).. 14

S. Rep. No. 84-9 (1955) -.ssscsossssccessessssssssnsssesseseseeseeee 12, 16

Rowan Scarborough, Powell Wants Detainees to be

Declared POWs, WASH. TIMES, Jan. 26, 2002 ................ 20

Katharine Q. Seelye, Powell Asks Bush to Review Stand

on War Captives, N.Y. TIMES, Jan. 27, 2002............::00++. 20

Andrew Stephen, NS Profile: Colin Powell, NEw

EE Te, Gh, i cienininiisdesitdnanintiinininaiiadineinindas 20

Jonathan Turley, Trials and Tribulations: The

Antithetical Elements of Military Governance in a

Madisonian Democracy, 70 GEO. WASH. L. REV. 648

ST cecinscstcenicsncsiacseiieasiiaieiamtingeaniaiiiaiaagsiaatiiaiemmaaaaae 5,22

Michel Veuthey, The American Red Cross-Washington

College of Law Conference, 33 AM. U.L. REV. 83

I viciicetcasnecniinaiiicinaasicaiientianiaiiianiiiiniateteminaatenenainatatia 13

White House Release, President Discusses Military

Gravatian OEas. 23, TITS) oxcccccecscesccsenscsvsseesemssssssneneansssts 18

White House Release, Statement by the Press Secretary

on the Geneva Convention (May 7, 2003) ............:00-0000+ 17

INTEREST OF THE AMICI CURIAE'

Amici are former U.S. soldier prisoners of war whose

lives have been deeply affected by our enemies’ compliance,

or failure to comply, with the mandates of the Geneva Con-

ventions.

Amici take no position on whether petitioner Hamdi (“Pe-

titioner”) has committed acts that warrant treatment as an en-

emy combatant.” Nevertheless, they file this brief to urge

this Court to examine and reverse the Fourth Circuit’s refusal

to allow a U.S. citizen allegedly detained in a war zone the

opportunity to challenge before a competent tribunal his ex-

clusion from the protections of the Geneva Conventions.

Douglas “Pete” Peterson served as a fighter pilot and

commander in the U.S. Air Force from 1954-1981 and at-

tained the rank of full colonel. In 1966, he was shot down

over North Vietnam and spent six and a half years as a pris-

oner of war. From 1997-2002, Mr. Peterson served as U.S.

Ambassador to Vietnam. Pnor to his ambassadorship, he

served three terms as a U.S. Congressman.

Leslie H. Jackson is the Executive Director of American

| Ex-Prisoners of War, a non-profit, congressionally chartered

veterans organization that represents approximately 50,000

former prisoners of war and their families. When his B-17

bomber crashed on April 24, 1944, Mr. Jackson was captured

by the German Army and transferred to a converted concen-

tration camp. While the experience was harsh, Mr. Jackson’s

' Pursuant to Rule 37.3 of the Rules of this Court, the parties have

consented to the filing of this brief. The parties’ letters of consent

have been lodged with the Clerk. This brief was not written in

whole or in part by counsel for a party, and no person or entity

other than the amici curiae has made a monetary contribution to

the preparation and submission of this brief.

? Amici use the term “enemy combatant” to mean a member of the

armed forces of a nation with which the United States is at war.

captors treated him in accord with the Geneva Conventions

of 1929. Mr. Jackson believes that his survival and health

while in captivity are the result of the German Army’s adher-

ence to the 1929 Geneva Conventions.

The experiences of Edward Jackfert and Paul Reuter offer

a sharp contrast. Mr. Jackfert is former National Commander

of American Defenders for Bataan & Corregidor, Inc.

(“American Defenders”), an organization providing support

for prisoners of war held by the Japanese during World War

II. Mr. Reuter is the National Adjutant and Legislative Offi-

cer for the American Defenders. In 1942, both men were

taken prisoner by Japan, which did not purport to follow the

1929 Geneva Conventions. Mr. Reuter was forced to take

part in the horrific Bataan Death March; Mr. Jackfert, simi-

larly, was subject to a mass transportation of Allied prisoners

of war via a “hell ship” from the Philippines to Japan. Each

man was forced into slave labor. During their years of cap-

tivity, they saw their compatriots starved, beaten and killed.

SUMMARY OF ARGUMENT

For decades the United States has endeavored to ensure

the safety and well-being of its citizens when they are cap-

tured by hostile forces. Those efforts are now at risk. The

issue is whether an American citizen, apparently captured on

a field of battle, may be denied by his own country the pro-

tections long accorded to those taken prisoner by the United

States in wartime, without running afoul of our obligations

under the Geneva Convention Relative to the Treatment of

Prisoners of War (“GPW”). Failure to abide by the terms of

the Geneva Conventions in this case not only deprives Peti-

tioner of the nghts to which he is entitled, it increases the

likelihood that other nations will fail to follow Convention

protections in the treatment of Americans taken prisoner

overseas.

Petitioner was captured by Northern Alliance forces dur-

ing fighting in Afghanistan, and was later turned over to the

United States military for detention. The United States de-

clined to designate Petitioner a “prisoner of war” or to extend

to Petitioner the full rights due to POWs under international

law, including access to a “competent tribunal” to determine

his status. Instead, Petitioner has been detained indefinitely,

virtually incommunicado, deprived even of the opportunity to

challenge the particulars of his designation as a combatant.

Merely branding a detainee a “terrorist” does not place

the person in a lawless twilight zone unprotected by either

the criminal justice system or the laws of war. Indeed, the

government has never even asserted that Petitioner is a “ter-

rorist.” He was captured on a battlefield. This is enough to

give him the presumptive status of a POW, with all of the

rights and protections accorded that status, unless and until a

“competent tribunal” established under the GPW finds that

he is not entitled to this status.

Unless the federal courts exercise their authority to re-

view the lawfulness of Petitioner’s detention and his right to

be treated as a POW under the international treaty to which

the United States is bound, Petitioner’s treatment will estab-

lish a precedent that jeopardizes the safety of all Americans

who may find themselves taken prisoner in the course of

armed conflict.

Americans troops are regularly dispatched on a wide va-

riety of missions throughout the world. Despite our nation’s

best efforts, some of these troops eventually will face hostile

situations and some may be captured, as has happened in the

last decade alone in such disparate theaters as Serbia, Iraq,

Somalia and China. American civilians travel throughout the

world and may also find themselves taken prisoner by our

country’s enemies. It is unquestionably in our national inter-

est that captured Americans be provided the full protections

to which they are entitled under international law. Our gov-

ernment’s failure to abide by our obligations under the Ge-

neva Convention seriously undermines this national interest.

Amici accordingly urge this Court to reverse the decision

of the U.S. Court of Appeals for the Fourth Circuit, and to

enforce the United States’ binding obligation to abide by the

Geneva Convention.

ARGUMENT

I. The Geneva Conventions Protect all Parties to Con-

flict, as the United States has Repeatedly Affirmed,

and Extend Important Protections to Persons Claim-

ing to Be Prisoners of War.

In the aftermath of World War II, nations throughout the

world ratified the four Geneva Conventions. These four con-

ventions grew out of an existing body of humanitarian law,

including the 1929 Geneva Conventions offering similar pro-

tection, and created a comprehensive code of international

law to regulate the conduct of war and, most importantly, to

ensure that all persons detained during armed combat -—

whether combatants or civilians — are afforded significant

legal protection. Of particular relevance, Article 3 common

to each Convention generally forbids “the passing of sen-

tences and the carrying out of executions without previous

judgment pronounced by a regularly constituted court, af-

fording all the judicial guarantees that are recognized as in-

dispensable by civilized peoples.” See, eg., - Geneva

Convention Relative to the Treatment of Prisoners of War

[(“GPW”], Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 et

seq., Art. 3(1)(d).

Because they have been ratified by the United States, the

four Geneva Conventions are the supreme law of the land.

U.S. Const. Art. VI. The United States has abided by both

the spirit and letter of the Conventions in its applicable poli-

cies, procedures, and regulations. The United States military,

for example, has incorporated language from the GPW into

its military regulations. It also consistently has adhered to

the requirements of the GPW in every conflict since World

War II. The government, likewise, has publicly affirmed the

validity and usefulness of the Conventions whenever Ameri-

cans abroad have been captured. Such support for the Con-

ventions is due, at least in part, to the recognition that the

Conventions help save American lives.

The GPW, in particular, affords captured soldiers both

substantive and procedural protections meant to ensure each

detainee’s safety and dignity, and the GPW’s provisions ap-

ply broadly. Article 4 of the GPW defines “prisoners of war”

to include “[m]Jembers of the armed forces of a Party to the

conflict, as well as members of militias or volunteer corps

forming part of such armed forces,” together with

“{m]jembers of regular armed forces who profess allegiance

to a government or an authority not recognized by the De-

taining Power.” Furthermore, the GPW recognizes as poten-

tial POWs citizens who join armed units when “on the

approach of the enemy [they] spontaneously take up arms to

resist the invading forces.” GPW, art. 4; see also Jonathan

Turley, Trials and Tribulations: The Antithetical Elements of

Military Governance in a Madisonian Democracy, 70 GEO.

WASH. L. REV. 648, 756-57 & n.685 (2002) [‘Trials and

Tribulations’ (stressing that argument that Taliban fighters

are not POWs is “virtually meritless” and serves to raise “se-

rious dangers for our own soldiers”); George H. Aldrich, The

Laws of War on Land, 94 AM. J. INT’L L. 42, 43-44 (2000)

(“Laws of War’ (discussing Article 4).

Article 5 of the GPW imposes a presumptive requirement

that every alleged combatant be treated as a prisoner of war,

with all the protections that flow from that status, unless and

until a “competent tribunal” reaches a contrary determina-

tion. Thus, all contracting parties, including the United

States, must treat those captured in the course of armed con-

flict as POWs “from the time they fall into the power of the

enemy and until their final release and repatriation.” GPW,

Art. 5. There is one — and only one — exception to that re-

quirement:

“Should any doubt arise as to whether persons, having

committed a belligerent act and having fallen into the

hands of the enemy, belong to any of the categories

[deserving of POW status], such persons shall enjoy

the protection of the present Convention until such

time as their status has been determined by a compe-

tent tribunal.” Jd. at 3324 (emphasis added).

Nor is the POW designation merely academic. POW des-

ignation governs the manner in which a detained person may

be treated and affords POWs many rights to which they oth-

erwise may not be entitled during time of conflict. Under the

GPW, for example, a prisoner of war may “only be trans-

ferred by the Detaining Power to a Power which is a party to

the Convention and after the Detaining power has satisfied

itself of the willingness and ability of such transferee Power

to apply the Convention.” GPW, art. 12. POWs must be

“humanely treated” and must be protected “against acts of

violence or intimidation and against insults and public curi-

osity.” Jd., art. 13. POWs are entitled “in all circumstances

to respect for their persons and their honor” and shall “retain

the full civil capacity which they enjoyed at the time of their

capture” to the extent possible. /d., art. 14. Nor may a POW

be discriminated against on basis of gender, race, religion, or

other such distinction. /d., arts. 14, 16. POWs are required

to provide no more that “surname, first names and rank, date

of birth, and army, regimental, personal or serial number, or

failing this, equivalent information.” /d., art. 17. They can-

not be coerced to answer further and may not be “threatened,

insulted, or exposed to unpleasant or disadvantageous treat-

ment of any kind” should they refuse. /d.

Moreover, POWs may not be “interned in penitentiaries”

unless incarceration is necessary to protect their safety. /d.,

art. 22. Rather, “[p]risoners of war shall be quartered under

conditions as favorable as those for the forces of the Detain-

ing Power who are billeted in the same area,” (id., art. 25),

and shall have access to such benefits as the ability to prepare

their own meals, (id., art. 26), access to a canteen, (id., art.

28), monthly medical inspections, (id., art. 31), “complete

latitude in the exercise of their religious duties,” (id., art. 34),

and “opportunities for taking physical exercise, including

sports and games, and for being out of doors,” (id., art. 38).

In short, the GPW prohibits contracting parties from treating

detainees who are presumed to be POWs as criminals and

prohibits the detaining power from confining the detainees in

conditions resembling a civilian or military prison.

The United States has recognized the significance of the

POW designation in its military regulations and consistently

has adhered to these obligations in past military conflicts.

The United States Army, for example, has incorporated the

GPW directly into its binding regulations on the treatment of

wartime detainees:

“In accordance with Article 5, GPW, if any doubt

arises as to whether a person, having committed a bel-

ligerent act and been taken into custody by the US

Armed Forces, belongs to any of the categories enu-

merated in Article 4, GPW, such persons shall enjoy

the protection of the present Convention until such

time as their status has been determined by a compe-

tent tribunal.” Army Regulation 190-8, Enemy Pris-

oners of War, Retained Personnel, Civilian Internees

and Other Detainees § 1-6(a) (1997) (emphasis

added). *

Even those detainees “not appearing to be entitled to

prisoner of war status” have the right to assert their claim for

determination by a competent tribunal. Jd. § 1-6(b); see also

Dep’t of the Navy, NWP 1-14M: The Commander's Hand-

book on the Law of Naval Operations 11-3 (1995) (providing

that even “individuals captured as spies or as illegal combat-

ants have the right to assert their claim of entitlement to pris-

oner-of-war status before a judicial tribunal and to have the

question adjudicated”). The United States regularly has con-

ducted so-called Article 5 hearings to determine whether cap-

tured persons should be accorded POW status under the

Geneva Conventions. See, e.g., Judge Advocate General’s

School, OPERATION LAW HANDBOOK 22 at n.2 (O’Brien, ed.

2003) (discussing hearings conducted during first Gulf War);

Contemporary Practice of the United States Relating to In-

ternational Law, 62 AM. J. INT’L L. 754, 768-75 (1968) (dis-

cussing hearings conducted during Vietnam War).

In sum, there is a well-developed set of legal doctrines,

based on international treaty obligations, that provide both

substantive protections to POWs and the process for deter-

mining the right to POW status. Detention that disregards

both the substantive protections to which POWs are entitled

and the process due for determining claims to that status is

clearly unlawful.

> This regulation was jointly promulgated by the Headquarters of

the Departments of the Army, Navy, Air Force and Marine Corps,

Washington, D.C., October 1, 1997.

Il. Federal Courts May Examine The Lawfulness Of

Military Confinement Of Americans Who Claim

Prisoner Of War Status‘

Petitioner, by applying for a writ of habeas corpus, seeks

judicial review of the government actions that have led to his

confinement both incommunicado and without charge. The

writ should issue. Meaningful judicial review is entirely ap-

propriate where the conduct in question, if permitted to stand,

would violate the United States’ obligations under interna-

tional law, to the detriment of one of its own citizens. Cer-

tainly there can be no argument here that Petitioner’s right to

the writ can be validly curtailed because he has not yet ex-

hausted other avenues of relief. Petitioner has been afforded

no other avenues of review whatsoever.

The writ of habeas corpus has been described as the

“highest safeguard of liberty.” Smith v. Bennett, 365 U.S.

708, 712 (1961) (quoted in Lonchar v. Thomas, 517 U.S.

314, 322 (1996)). Dismissal of the writ “denies the petitioner

the protections of the Great Writ entirely, risking injury to an

important interest in human liberty.” Lonchar, 517 U.S. at

325. “At its historical core, the writ of habeas corpus has

served as a means of reviewing the legality of Executive de-

tention, and it is in that context that its protections have been

strongest.” Immigration and Naturalization Serv. v. St. Cyr,

533 U.S. 289, 301 (2001) (citing cases); see also Swain v.

Pressley, 430 U.S. 372, 386 (1977) (Burger, C.J., concurring)

(“the traditional Great Writ was largely a remedy against ex-

* Amici recognize that the parties will brief the legal question of

whether this Court has jurisdiction to hear this case. Amici do not

with to repeat those arguments and do not here submit a compre-

hensive analysis of the applicable law of jurisdiction. Rather,

amici here illustrate the distinction between past review of applica-

tions for the writ of habeas corpus and the circumstances of the

instant case.

ecutive detention”). The wrongs for which Petitioner seeks

redress go to the heart of the Executive Branch’s power to

detain Petitioner and, if he may be detained, whether the writ

should be available to determine the process that is due to

ascertain the legal rights attached to his status as a detainee.

Although Congress has from time to time passed legisla-

tion restricting the applicability of the writ, such limitations

nevertheless comport with underlying principles of due proc-

ess. Not surprisingly, Congress has made no attempt to di-

vest the federal courts of their historic power to examine the

justification for Executive detention, when — as in this case —

no other tribunal, civilian or military, has adjudicated the

lawfulness of the detention and the grounds for confinement.

Congress’ recent efforts to limit access to the writ all presup-

pose that the applicant for the writ already has enjoyed the

benefit of a fair judicial or administrative tribunal that adju-

dicated the grounds for continued detention. For example,

the Antiterrorism and Effective Death Penalty Act, Pub. L.

104-132, 110 Stat. 1214 (1996), limits the extent to which a

claimant may petition a federal court for a writ of habeas

corpus, but nevertheless permits a application once the peti-

tioner has “exhausted the remedies available in the courts of

the State” in which he or she is being held, or otherwise was

not permitted to exhaust any available state remedies. See 28

U.S.C. § 2254(b)(1) (2003); see also 28 U.S.C. § 2264(a)

- (limiting federal court review of applications by capital de-

fendants to those claims that have been “decided on the mer-

its in State courts,” subject to exceptions). Likewise, the

Illegal Immigration Reform and Immigrant Responsibility

Act, Pub. L. 104-208, Div. C, 110 Stat. 3009-546 (1996),

curtails federal jurisdiction with regard to certain offenses

involving aliens. See, e.g., 8 U.S.C. 1252(a)(2)(C) (2003)

(forbidding judicial review of final deportation order against

an alien found removable for having committed certain enu-

merated offenses). Again, however, aliens falling under this

act’s scope are provided administrative remedies by which to

test the lawfulness of their detention. See, e.g., 8 U.S.C. §§

1225(b), (c) (providing mechanism for review of determina-

tion that arriving aliens are deportable).

In the present case, by contrast, Petitioner has been af-

forded no opportunity to plead his case. Thus the govern-

ment should not curtail his right to petition for a writ of

habeas corpus. The right to have a “competent tribunal” ad-

judicate Petitioner’s claim to POW status under the GPW is

clear, yet he has been denied both that right and the means to

contest the denial of that status.

This case was filed in the Eastern District of Virginia,

where Respondent Secretary of Defense is located. See

Padilla v. Rumsfeld, 352 F.3d 695, __, 2003 U.S. App.

LEXIS 25616,*34-*35 (2nd Cir. 2003) (acknowledging gov-

ernment’s argument that Secretary Rumsfeld is “located in

the Eastern District of Virginia”). A federal district court

with personal jurisdiction over the government representa-

tives responsible for Petitioner’s treatment has the power —

and the responsibility — to issue a writ of habeas corpus to

determine whether the detaining officials have complied with

the procedures that the GPW establishes as the governing

standard for judging the lawfulness of the detainee’s con-

finement.

As we next discuss, the compelling national interest in

protecting Americans taken prisoner by hostile powers pro-

vides a powerful justification for concluding that the federal

courts have both the authority and the duty to ensure that the

United States complies with its obligations under the GPW.

Ill. Failure To Adhere To The Geneva Conventions

Endangers American Troops And Civilians Abroad.

A. The United States Ratified the Geneva

Conventions In Part to Protect Our Own Service

Members.

The integrity of the Geneva Conventions is crucial to the

safety and security of U.S. troops and civilians abroad, as the

ratifiers themselves recognized:

“If the end result [of ratification] is only to obtain for

Americans caught in the maelstrom of war a treat-

ment which is 10 percent less vicious than what they

would receive without these conventions, if only a

few score of lives are preserved because of the efforts

at Geneva, then the patience and laborious work of all

who contributed to that goal will not have been in

vain.” S. Rep. No. 84-9, at 32 (1955) [“Ratifying Re-

port”)

The United States played a “major role both in the prepa-

tory steps and in the conference proceedings” for the Geneva

Conventions. Geneva Conventions of the Protection of War

Victims: Hearing Before the Senate Comm. on Foreign Rela-

tions, 84" Cong., Ist Sess., at 3-4 (1955) [“Senate Hearing”)

(statement of Robert Murphy, Deputy Under Secretary of

State). Senate debate on the Geneva Conventions makes

plain that the Senate’s decision to ratify was animated in

large part by the belief that American compliance with the

Geneva Conventions would encourage our enemies to recip-

rocate in their treatment of American POWs, civilians, and

others.

For example, as Secretary of State John Foster Dulles ex-

plained, American “participation is needed to . . . enable us to

invoke [the Geneva Conventions] for the protection of our

nationals.” See, e.g., id. at 61. Senator Mike Mansfield

agreed, arguing that while American “standards are already

high”:

“The conventions point the way to other govern-

ments. Without any real cost to us, acceptance of the

standards provided for prisoners of war, civilians, and

wounded and sick will insure improvement of the

condition of our own people... .” 101 Cong. Rec.

9960 (July 6, 1955).

B. The United States Government’s Strict

Adherence to the Principles and Requirements of

the Geneva Conventions Has Helped Save

American Lives in Earlier Conflicts.

Reciprocity — the expectation that acting in a humanitar-

ian manner may encourage one’s enemy to do the same —

remains “a powerful actual factor” in the application of inter-

national humanitarian law. Michel Veuthey, The American

Red Cross-Washington College of Law Conference, 33 AM.

U_L. REV. 83, 89 (1983). Treating those captured in a war

zone, such as Petitioner, in accordance with basic shared

standards means that our own captured forces stand a much

better chance of surviving captivity unharmed. Ignoring that

reality not only contravenes the plain text of the GPW, but

also places Americans around the world at grave risk of pre-

cisely the type of mistreatment the Geneva Conventions aim

to prevent.

1. The enlightened self-interest behind ratification of

the Geneva Conventions has proven effective in conflicts

preceding the “war on terrorism.” Thousands of Americans

were taken prisoner during the Vietnam War. Even though

North Vietnam publicly asserted that all American POWs

were war criminals, and hence not entitled to the protections

of the GPW, (Laws of War at 62 n.100), the United States

applied the Geneva Conventions’ principles to all enemy

POWs — both North Vietnamese regulars and Viet Cong — in

part to try to ensure “reciprocal benefits for American

captives.” Maj. Gen. George S. Prugh, VIETNAM STUDIES,

LAW AT WAR: VIETNAM 1964-73, at 63 (Dep’t of the Army

1975); see also 64 DEP’T OF STATE BULL. 10 (Jan. 4, 1971)

(White House statement announcing President Nixon’s call

for application of the 1949 Geneva Conventions to ease “the

plight of American prisoners of war in North Viet-Nam and

elsewhere in Southeast Asia”); Note, Safeguarding the

Enemy Within, 71 FORDHAM L. REv. 2565, 2574 (2003)

(noting U.S. Army’s establishment of widespread Article 5

tribunals in Vietnam to adjudicate POW status of enemy

detainees).

Former Vietnam POWs, and others, assert to this day that

the United States government’s adherence to the principles of

the Geneva Conventions helped protect them. As Senator

(and ex-POW) John McCain explained on the fiftieth anni-

versary of the Geneva Conventions:

“{A]pplying the benefits of the Convention to those

combat captives held in South Vietnam did enhance

the opportunity for survival of U.S. service members

held by the Viet Cong and North Vietnamese. While

the enemy never officially acknowledged the applica-

bility of the Geneva Convention, and treatment of

American POWs continued to be brutal, more U.S.

troops were surviving capture. Gone were the days

when an American advisor was beheaded, and his

head displayed on a pole by the Viet Cong. On the

contrary, the humane treatment afforded Viet Cong

and North Vietnamese Army prisoners exerted con-

stant pressure on the enemy to reciprocate, and the

American POWs who came home in 1973 survived,

at least in part, because of [that].” Col. Fred L.

Borch, Review of Honor Bound, 163 MIL. L. REV.

150, 152 (2000).

“The Geneva Conventions and the Red Cross were

created in response to the stark recognition of the true

horrors of unbounded war. And I thank God for that.

I am thankful for those of us whose dignity, health

and lives have been protected by the Conventions .. .

_ 1 am certain we all would have been a lot worse off

if there had not been the Geneva Conventions around

George H. Aldrich was the State Department lawyer re-

sponsible for applying international humanitarian law during

the Vietnam War, and was also Secretary of State Kissinger’s

legal advisor for the negotiation of the 1973 peace agreement

between the United States and North Vietnam. Laws of War,

at 62 n.99. He has noted:

which an international consensus formed about some

very basic standards of decency that should apply

even amid the cruel excesses of war.” ’

Others likewise assert that the American adherence to the

Geneva Conventions in Vietnam saved American lives:

> Senator John McCain, Speech to the American Red Cross Prom-

ise of Humanity Conference (May 6, 1999), available at

http:/www.senate.gov/~mccain/index.cfm?fuseaction=Newscenter.

Viewpressrelease&Content_id=820.

“My experience with the law in the Vietnam War and

my subsequent thoughts about it have convinced me

that, whenever a state chooses to send its armed

forces into combat in a previously noninternational

armed conflict in another state —- whether at the invita-

tion of that state’s government or of the rebel party —

the conflict must then be considered an international

armed conflict, and the rebel party must be considered

to have been given, from the date of such interven-

tion, belligerent status, which, as a matter of custom-

ary international law, brings into force all of the laws

governing international armed conflicts. /d. at 62.

The Vietnam experience demonstrated to American au-

thorities, who were “painfully aware of the experiences in

Korea and Vietnam,” the benefits to Americans of full com-

pliance with the Geneva Conventions. George H. Aldrich,

The Taliban, Al Qaeda, and the Determination of Illegal

Combatants, 96 AM. J. INT’L L. 891, 898 (2002) (“{I}t would

be much easier and more convincing for the United States to

conclude that the members of the armed forces of the effec-

tive government of most of Afghanistan [as of September 11,

2001] should, upon capture, be treated as POWs. This is

what we did in Vietnam, where we found it desirable to give

virtually all enemy prisoners POW status.”’).

Although Vietnam-era statements regarding the impor-

tance of the Geneva Conventions are common, they are

hardly unique. On the contrary, since World War II the

United States has repeatedly reaffirmed the importance of the

Conventions, in general, and of the GPW, in particular. Gen-

eral Eisenhower, for example, pointedly explained that the

Western Allies treated German prisoners in accordance with

the principles of international humanitarian law because “the

Germans had some thousands of American and British pris-

oners and I did not want to give Hitler the excuse or justifica-

tion for treating our prisoners more harshly than he already

was doing.” Dwight D. Eisenhower, CRUSADE IN EUROPE

469 (1949).

Similarly, during the Korean War the “moral acceptance

of the conventions as a general norm did have some effect”

on both American and North Korean treatment of POWs,

even though neither side had then ratified the GPW. Senate

Hearing, at 5 (statement of Deputy Under Secretary of State

Murphy); see also Ratifying Report, at 31 (noting that while

“the treatment of our soldiers captured in Korea by the

Communists was in many respects ruthless and below civi-

lized norms, . . . without the convention, that treatment could

have been still worse”).

- << <a oe ——-

— ~~

The United States government's allegiance to the princi-

ples enshrined in the Geneva Conventions has continued

even in our most modern conflicts. During the 1991 Gulf

War, the United States armed forces readily afforded full pro-

tection under the Geneva Conventions to the more than

86,000 Iraqi POWs in its custody. Dep’t of Defense News

Transcript, Briefing on Geneva Convention, EPW’s and War

Crimes (Apr. 7, 2003). Almost 1,200 Article 5 hearings were

conducted, resulting in 886 prisoners being determined to be

civilians. Department of Defense, FINAL REPORT TO CON-

GRESS: CONDUCT OF THE PERSIAN GULF WAR 578 (1992).

During the present conflict in Iraq, the government has

stressed that it “believes in the principles and in the law of

the Geneva Convention,” and that “America’s values .. are

reflected in the Convention.” White House Release, State-

ment by the Press Secretary on the Geneva Convention (May

7, 2003). Dozens of Article 5 tribunals were convened

within the first two months of the 2003 Iraq War. Depart-

ment of Defense, Briefing on Enemy Prisoner of War Status

Categories, Releases and Paroles (May 9, 2003).

It is thus unsurprising that contemporary experts have

embraced this same lesson of U.S. history in wartime: treat-

ing one’s enemy in accordance with the Geneva Convention

encourages like protection of one’s own captured troops.

Steve Levin, International Law Often a Casualty, PITTS-

BURGH PosT-GAZETTE, Mar. 25, 2003, at A-9 (noting Prof.

Jules Lobel’s statement that it “is in every country’s interest

to treat prisoners in accordance with the Geneva Convention

because soldiers in your army could be taken prisoner, too”);

Frank Davies, U.S. Policy May Dilute Protection of POWs,

SAN JOSE MERCURY NEwsS, Mar. 25, 2003, at A-7 (comment

by Eugene Fidell, director of National Institute of Military

Justice, that showing Iraqi POWs in U.S. media “really com-

plicates matters when you’re trying to build a case about the

treatment of your own POWs”); see also John Cloud, What's

Fair in War?, TiME, Apr. 7, 2003, at 66 (arguing that U.S.

should apply GPW in Iraq because “it is that very document

that could help those young American captives get home

safe’).

2. In addition to upholding the principles of the

Geneva Conventions itself, the United States routinely

demands that foreign parties do the same. Often the United

States makes such demands for the stated purpose of

protecting Americans abroad. For example, after American

soldiers were captured during the 2003 Iraq War and abused,

the United States condemned Iraqi treatment of American

POWs as violating the GPW and contrasted it to the United

States’ own treatment of prisoners it has taken. President

Bush demanded that American POWs in Iraq “be treated

humanely . . . just like we’re treating the prisoners that we

have captured humanely.” White House Release, President

Discusses Military Operation (Mar. 23, 2003). Deputy

Secretary of Defense Wolfowitz likewise invoked the

Geneva Conventions when objecting to Iraqi treatment of

U.S. POWs: “We've seen those scenes on Al Jazeera that

others have seen. We have reminded the Iraqis . . . that there

are very clear obligations under the Geneva Convention to

treat prisoners humanely .. . . We treat our own prisoners,

and there are hundreds of Iraqi prisoners, extremely well.”

Dep’t of Defense News Transcript, Deputy Secretary

Wolfowitz Interview with New England Cable News (Mar.

23, 2003).

Similarly, when American soldiers were taken prisoner

during NATO military action against Serbia in 1999 and

quickly shown on Serbian television beaten and humiliated,

the United States immediately demanded that these soldiers

be treated as prisoners of war under the Geneva Convention;

moreover, the Department of Defense was quick to contrast

Serbia’s mistreatment of American POWs with the humane

treatment afforded Serbian POWs under the Geneva Conven-

tion. Steven Lee Myers, Serb Officer, Captured by Rebels,

Held by U.S., N.Y. TIMES, Apr. 17, 1999, at A9.

Pease ere ~

The United States has demanded that American POWs be

treated in conformance with the Geneva Conventions even in

situations where the GPW may not have been applicable. In

1993 in Somalia, for example, an American and a Nigerian

soldier were both captured by forces loyal to warlord

Mohammad Farah Aideed while part of a humanitarian mis-

sion to that devastated region. Paul Lewis, U.N., Urged by

U.S., Refuses to Exchange Somalis, N.Y. TIMES, Oct. 8,

1993, at Al6 [“Refuses to Exchange”’]. International observ-

ers generally agreed that, at the time of the capture, Somalia

had no functioning government, meaning that there was no

“state” party obligated to treat the captured American and

Nigerian in accordance with the GPW. See Neil McDonald

& Scott Sullivan, Rational Interpretation in Irrational Times:

The Third Geneva Convention and the “War on Terror,” 44

HARV. INT’L L. J 301, 310 (Winter 2003). Nevertheless, the

United States not only demanded that these two soldiers be

treated in accordance with the Geneva Conventions, but fur-

ther stressed that those Somali fighters captured by the

United States — neither American, nor fighting on behalf of

an organized government — would be treated as prisoners of

war under the Geneva Convention. See Refuses to Exchange,

id.; see also Note: The Facade of Humanitarian Intervention

for Human Rights in a Community of Sovereign Nations, 15

Ariz. J. INT’L & Comp. LAw 871, 891 & n.177 (1998) (“The

factions at war in Somalia were not trained soldiers. Instead,

‘[t]he typical Somali fighter [was viewed] as an [u]ntrained,

undisciplined teen-ager with a contraband weapon and no

field support or political allegiance.”’) (internal citations omit-

ted). Petitioner is entitled ‘», and should receive, no less.

3. It is only in the context of more recent efforts to

combat terrorism that the Executive Branch appears to have

lost sight of both its legal obligations and the long-range

interests of our own troops and citizens. Within months of

the September 11 attacks, Secretary of State Colin Powell,

retired U.S. Army General and former Chairman of the Joint

Chiefs of Staff, recognized that the Geneva Conventions

applied to Al Qaeda and Taliban fighters captured in

Afghanistan, and he declared that those captured fighters

would have the opportunity to have their status adjudicated

by a competent tribunal, as required by the GPW. Rowan

Scarborough, Powell Wants Detainees to be Declared POWs,

WASH. TIMES, Jan. 26, 2002, at Al; Katharine Q. Seelye,

Powell Asks Bush to Review Stand on War Captives, N.Y.

TIMES, Jan. 27, 2002, at Al; see also Andrew Stephen, NS

Profile: Colin Powell, NEW STATESMAN, Dec. 16, 2002,

passim (discussing Secretary Powell’s military career). Why

the government has failed to observe these obligations in the

instant case remains unclear. Regardless, it disserves the

interests of American troops and civilians who will find

themselves seized by hostile forces in the future.

Moreover, the interests of American citizens caught up in

hostilities extend beyond military combatants. Like the

GPW, the fourth of the Geneva Conventions, the Geneva

Convention Relative to the Protection of Civilian Persons in

Time of War, Aug. 12, 1949, 6 U.S.T. 3356, 75 U.N.T.S. 287

{““Fourth Convention’’], confers upon non-combatants various

substantive and procedural protections designed to check a

detaining power’s mistakes. Although the Fourth Conven-

tion recognizes that it may be possible for a nation’s security

to be so threatened that it may validly suspend full applica-

tion of the rights of the Fourth Convention to a given civil-

ian, the Fourth Convention nevertheless emphasizes that any

such suspension is temporary: “[S]uch persons shall never-

theless be treated with humanity, and in case of trial, shall

not be deprived of the nghts of fair and regular trial pre-

scribed by the present Convention.” /d., art. 5.

The court below held that the Convention nghts of any-

one apprehended in a war zone, whether soldier or civilian,

may be protected only by diplomatic intervention from the

apprehended person’s own country — whether or not that

country is the detaining power. Hamdi v. Rumsfeld, 316 F.3d

450, 468-69 (4" Cir. 2003) [hereinafter Hamdi JI]. As Judge

Luttig warned, however, this interpretation has dire conse-

quences:

“The embedded journalist or even the unwitting tour-

ist could be seized and detained in a foreign combat

zone. Indeed, the likelihood that such could occur is

far from infinitesimal where the theater is global, not

circumscribed, and the engagement is an unconven-

tional war against terrorists, not a conventional war

against an identifiable nation state.” Hamdi v. Rums-

feld, 337 F.3d 335, 358 (4" Cir. 2003) (Luttig, J., dis-

senting).

Thus, if a hostile power chooses to follow the lead of the

American government in this case, these unwitting detainees

may find themselves held without charge, for an indefinite

period of time. Indeed, the government’s position even ex-

tends to civilians seized by our forces and declared “terrorist

supporters.” As Judge Motz pointed out, the ruling below

would mean that “any American citizen” seized in a part of

the world where American troops are present . . . could be

imprisoned indefinitely . . . if the Executive asserted that the

area was a zone of active combat.” Jd. at 372 n.3 (Motz, J.,

dissenting).

C. Discarding the Principles Embodied in the

Geneva Conventions Encourages Others to Do

the Same, to the Detriment of International Law.

These concerns about the welfare of Americans abroad

are hardly academic. The United States has a vested interest

in following both the letter and the spirit of the Geneva Con-

ventions in order to avoid taking any steps that would en-

courage other nations to discard the Conventions’ principles.

The Defense Department’s clear departure from its estab-

lished practice in its treatment of Petitioner and others simi-

larly situated not only lowers the bar for its own conduct, it

encourages authoritarian regimes around the globe to commit

abuses in the name of counter-terrorism.

Even before September 11, 2001, the United States rec-

ognized the threat extrajudicial practices posed to Americans

abroad. The United States, for example, objected to the mili-

tary trial of American Lori Berenson, detained by Peruvian

authorities on-charges of terrorism; the United States de-

plored the relative lack of due process safeguards afforded

Ms. Berenson under the military trial procedure. Preserving

Our Freedoms While Defending Against Terrorism: Hear-

ings Before the Senate Comm. on the Judiciary, 107" Cong.,

1" Sess., at 2001 WL 26187921 (Nov. 28, 2001) (testimony

of Scott L. Silliman, Professor of Law) (“There seems little

difference in the measure of due process afforded Berenson

in Peru and what is called for under the President’s military

order [regarding enemy combatants seized in Afghanistan],

and I believe this opens us up to a charge of hypocrisy from

the international community.”); see also Tribunals and

Tribulations, at 759 n.695 (providing State Department’s

1999 description of deficiencies in Peru’s military trials).

Since September 11, 2001, these concerns have multi-

plied. The following regimes, among others, have acted to

suppress lawful dissent and quell political opposition, all the

while self-consciously invoking the very language the United

States has used in justifying its treatment of individuals such

as Petitioner: Egypt (where President Mubarak endorsed a

diminished post-September 11 concept of the “freedom of the

individual”); Liberia (where then-President Taylor ordered a

critical journalist declared an “enemy combatant,” jailed, and

tortured); Zimbabwe (where President Mugabe, while voic-

ing agreement with the Bush Administration’s policies in the

war on terror, declared foreign journalists and others critical

of his regime “terrorists” and suppressed their work); Eritrea

(where the governing party arrested 11 political opponents,

has held them incommunicado and without charge, and de-

fended its actions as being consistent with United States ac-

ee ae

tions after September 11); and China (where the Chinese

government charged a peaceful political activist with terror-

ism and sentenced him to life in prison; the U.S. State De-

partment noted “with particular concern the charge of

terrorism in this case, given the apparent lack of evidence

[and] due process”). See Lawyers Committee for Human

Rights, ASSESSING THE NEW NORMAL: LIBERTY AND SECU-

RITY FOR THE PoST-SEPTEMBER 11 UNITED STATES, at 77-80

(Fiona Doherty & Deborah Pearlstein, eds. 2003).

Regardless whether these regimes are currently at peace

with the United States, the time may come when their nations

become hostile ground. Americans some day may be cap-

tured or detained in these locations as a result of actions aris-

ing out of, or incident to, military operations. The Defense

Department’s decision to deny Petitioner access to a compe-

tent tribunal to adjudicate his case will only serve to harm the

future interests of Americans in these countries and around

the world. Although the court below erred in rejecting the

applicability of the Geneva Conventions, the court correctly

noted the Conventions’ purpose:

“There is a powerful and self-regulating national in-

terest in observing the strictures of the [Geneva] Con-

vention, because prisoners are taken by both sides of

any conflict. This is the very essence of reciprocity

and, as the drafters of the Convention apparently de-

cided, the most appropriate basis for ensuring compli-

ance.” Hamdi III, at 469.

Reciprocity is as important now as it was when the Ge-

neva Conventions were created over fifty years ago. Ameri-

can servicemembers can proudly serve their country knowing

that their country has fought, tooth and nail, to ensure that the

Conventions protect them. When the United States departs

from its established practice, rejects those aspects of the

Conventions that it believes to be too burdensome or incon-

venient — and thereby encourages less noble actors to do the

same — innocent Americans may ultimately pay the price.

xe KK HK

The question presently facing this Court is a momentous

one. Two and one-half years after his capture, Petitioner lan-

guishes in a jail cell, virtually incommunicado, neither

charged with, nor tried for, nor convicted of any crime. Peti-

tioner has been deprived of any opportunity to challenge the

denial of his POW status. The Defense Department insists

that no charge or hearing is necessary and intimates that none

may be forthcoming. Petitioner’s American citizenship ap-

parently is treated as irrelevant. Such conduct represents a

radical departure from this nation’s traditions. If allowed to

stand, it would cause lasting damage not only to Petitioner,

but to all Americans worldwide, now and in the future, who

may some day be captured or detained by hostile forces and

deserve the law’s full protection.

Only months after the end of World War II, when that

conflict’s terrible suffering was fresh in the minds of every

American, Justice Rutledge, in language equally applicable

today, warned his fellow citizens against withholding the

right to due process from America’s enemies:

“[T]here can be and should be justice administered

according to law. In this stage of war’s aftermath it is

too early for Lincoln’s great spirit, best lighted in the

Second Inaugural, to have wide hold for the treatment

of foes. It is not too early, it is never too early, for the

nation steadfastly to follow its great constitutional

traditions, none older or more universally protective

against unbridled power than due process of law in

the trial and punishment of men, that is, of all men,

whether citizens, aliens, alien enemies or enemy bel-

ligerents. It can become too late.

“This long-held attachment marks the great divide be-

tween our enemies and ourselves. Theirs was a phi-

losophy of universal force. Ours is one of universal

law, albeit imperfectly made flesh of our system and

so dwelling among us. Every departure weakens the

tradition, whether it touches the high or the low, the

powerful or the weak, the triumphant or the con-

quered. If we need not or cannot be magnanimous,

we can keep our own law on the plane from which it

has not descended hitherto and to which the defeated

foes’ never rose.” Jn re Yamashita, 327 U.S. 1, 41-42

(1946) (Rutledge, J., dissenting).

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.