Opposition Brief — Hamdan v. Rumsfeld

No. 05-184

In the Supreme Court of the Gnited States

SALIM AHMED HAMDAN, PETITIONER

v.

DONALD H. RUMSFELD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counse' of Record

PETER D. KEISLER

Assistant Attorney General

GREGORY G. KATSAS

Deputy Assistant Attorney

General

DOUGLAS N. LETTER

ROBERT M. LOEB

ERIC D. MILLER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTIONS PRESENTED

1. Whether courts should abstain from interfering

with ongoing military commission proceedings.

2. Whether the President has the authority to

establish military commissions.

3. Whether the Geneva Convention Relative to the

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

3316, creates judicially enforceable rights.

4. Whether courts may disregard the President’s

determination as Commander in Chief that al Qaeda

combatants are not covered by the Geneva Convention.

5. Whether petitioner has a colorable claim of

prisoner-of-war status under the Geneva Convention.

6. Whether the federal regulations governing

military commissions must conform to the provisions in

the Uniform Code of Military Justice that apply only to

courts-martial.

(1)

TABLE OF CONTENTS

Page

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I ait £ eed han bvGedbess ve euel S atbke Poukenebee 30

TABLE OF AUTHORITIES

Cases:

Arizona v. Fulminante, 499 U.S. 279 (1991) 2.0.20... 12

Bowrin v. INS, 194 F.3d 483 (4th Cir. 1999) 2.2.2.2... 19

Colepaugh v. Looney, 235 F.2d 429

(10th Cir.), cert. denied, 515 U.S. 1142 (1995) ...... 29

Cuban Am. Bar Ass‘n v. Christopher, 43 F.3d

1412 (11th Cir.), cert. denied, 515 U.S. 1142

ON ne a ee eek dat 19

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ....... 12

Government of the Canal Zone v. Scott, 502 F.2d

I a i a a 19

Gusik v. Schilder, 340 U.S. 128 (1950) .............. 22

Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d

1326 (2d Cir. 1992), vacated sub nom. Sale v.

Haitian Ctrs. Council, Inc., 509 U.S. 918

PE teks Ca dnbRtedvesedees 4bach hed okohasees 19

Hamdi v. Rumsfeld, 124. Ct. 2633

Dn ¢iccu tame cies sahsbhadoden 6, 13, 19, 22, 23, 24

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

CE Sick doce dws ne sake ob 0A9 12

Cases—C ontinued: Page

Hirota v. MacArthur, 338 U.S. 197 (1949) .......... 22

Jimenez Vv. Aristeguieta, 311 F.2d 547 (5th Cir.

GED o cnwiccscndedascsnddvces ua benseeaenee 19

Johnson v. Bisentrager, 339 U.S. 763 (1950) .... 8, 15, 19

AKadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) .. 2... .. 20

Moussaoui v. United States, 1258. Ct. 1670

BD i000 0 céncendcynccecesededeesaees canton 13

Madsen v. Kinselk, 343 U.S. 341 1952) oe ee ee 24

Mason, Ex parte, 256 F. 384 (C.C.N.C.N.Y.

GED scconsdede-cameecd Gdwankseanseunimpuneeee 25

Milligan, Ex parte, 71 U.S. (4 Wall.) 2 (1866) ....... 23

Noyd v. Bond, 395 U.S. 683 (1969) 2... cee eee 22

Ogbudimka vy. Ashcroft, 342 F.3d 207 (3d Cir.

SEED baddccddiepinccsdduetnchsedadesbasseeneae 20

Quirin, Ex parte, 317 U.S. 1 (1942) ..... 13, 14, 18, 23, 29

Rein v. Socialist Peoples Libyan Arab

Jamahiriya, 162 F.3d 748 (2d Cir. 1998), cert.

Geniod, GET U.S, IGGB CIGD oo ccc cciccsavcccveses 19

Rushen v. Spain, 464 U.S. 114 (1983) 20... eee eee 12

Schlesinger v. Councilman, 420 U.S. 738

(EGE kk vavcdatvdsessdbvteneucbasonelacn 14, 21, 22

Sosa v. Alverez-Machain, 12438. Ct. 2739

GED nan bbec-ceenesssessnceeisaasueueseneuee 2]

The Prize Cases, 67 U.S. (2 Black) 635 (1862) ....... 28

United States v. Anderson, 38 C.M.R. 386

eds BONER cc cenccendencuevessenchaneteetcusn 17

l'nited States v. Averette, 41 C.M.R. 363

Es SUED 6k. c CiKd cdc keue ves tubceverene 17, 18

V

Cases—Continued: Page

United States v. Bancroft, 11 C.M.R.3

ee eed eeeeh tobe deneeenn « 18

United States v. Ortiz, 422 U.S. 891 (1975) 2... 66... 25

United States v. Reyes, 48 C.M.R. 882

Ec svscdie peakeeadeeesodecntcrees 1s

United States v. Verdugo-Urquidez, 494 U.S.

ES Shi Se ae Cie eed in euedaduns 19

Virginia Military Inst. v. United States, 508

EE Bee ee cei a dae eaeeedecndace’ 12

Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2008) ....... 20

Yamashita, In re, 327 U.S. 1 (1946) 2... eee. 18, 22

Zadvydas v. Davis, 533 U.S. 678 (2001) 2... 0... 19

Zamora vy. Woodson, 42 C.M.R. 5 (C.M.A, 1970) .. 17, 18

Constitution, treaties, statutes and regulations:

U.S. Const. Amend. VI (Confrontation Clause) ...... 12

Geneva Convention Relative to the Treatment of

Prisoners of War:

July 27, 1929, 47 Stat. 2021, 118 L.N.T.S.3438 .... 26

Art. 31, 47 Stat. 2041 2... ccc eee ewes 26

FR Fe, Se UR TI ccc eRe vevcccecccvces 26

Aug. 12, 1949,6 US.T. 3316 ............ eee eeees 6

Art. 3,6 U.S.T. 3318 ......... 9, 10, 20, 21, 27

Pm NE Se eee 26

Art. 4A(2), 6 U.S.T. 3320 ............ 0 eee. 26

Art. 4A(4), 6 U.S.T. 3820 .............. 26, 27

PR. BOG UAT. GED ciccccccccccccsovdss 26

TEPC EEEED cocecccesccoscscees 26

VI

Statutes and regulations—Continued: Page

North Atlantic Treaty, Apr. 4, 1949, art. 5, 63

Stat. 2244, 34 U.N.TS. 206 2... ccccccccccccccces Oe

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

SG PEA SPUN cvccdveccareccvadie 2, 28

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

BN TEGO, cccccctcccvvcceccussoccevedecessecess 6

DURE pu bvActancabetbdudadebetaceecsnes 6

10 U.S.C. 802(10) (Art. 2(10)) ...........4..- 16, 17

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Ps ONEED s vcncesckcddcedcccesi 3, 8,9

SPRUE vvhddsccsedbecadeebeesesobwets 17

10 U.S.C. 839 (Art. 39) .........006. gebeedcveees 7

IOUSC.2GMe) ..........02. eh saamaadeneneana

SPURL” ¢hansé csedbedsdebsdhseades dwukaabous 25

PUES MEE . 6deccocuceneeeeconasanenséseonsudces 19

32 C.F.R.:

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ED 616-5604 cdedetacveennstesebeeent bates 4

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ED bp cubotsnndccndvetcensddestecdéeloanns 4

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DEED» ceccocsdeecnswsnsatescedeandens 12

PE EAS ES enn ny fae ewe ee 5

EE o.<-000.sebensk6e0éseuseuseeussseanate 5

PEE ou Ghccdidtcdusedcedocsccabsenséaubaus 5

Vil

Miscellaneous: Page

Curtis A. Bradley & Jack L. Goldsmith,

Congressional Authorization and the War on

Terrorism, 118 Harv. L. Rev. 2047 (2005) ........ 17

Bryan Bender, U.S. Endures Deadliest

Year in Afghanistan, Boston Globe, July 3,

2000 <http://www.boston.com/news/world/

middeleast/articles/2005/07/03/us_endures _

deadliest year in_afghanistan/> ................ 13

Commentary to the Geneva Convention Relative

to the Treatment of Prisoners of War (Red

SOUND GEE 8 cep dpnancé seveciedsccaveqavedcscons 25

Detention, Treatment and Trial of Certain Non-

Citizens in the War Against Terrorism, 66

POE BE PRU GEEUED cccccceseeccncsevesccccons 3

Ingrid Detter, The Law of War (2d ed. 2000) ........ 28

Louis Fischer, Nazi Sabotenrs on Trial (2003) ...... 15

Charles Howland, Digest of Opinions of the Judge

Advocate General of the Army (1912) ............ 29

Restatement (Third) of the Foreign Relations

Law of the United States (1987) ..............006: s

Statement of NATO Secy. Gen. (Oct. 2, 2001)

<http://www.nato,jnt/docu/speech/200 1/501 100

PE ndnducendcesesusas S cba dseensesdde cases 29

Revised Military Commission Order No. 1 (Aug.

31, 2005) <http://www.defenselink.mil/

news/Sep2005/d20050002order.pdf> .....5, 11, 12,15

Robert L. Stern et al., Supreme Court Practice

SO ED Kcecndcerxeececadecdensdsocescssnsi 13

Jn the Supreme Court of the United States

No. 05-184

SALIM AHMED HAMDAN, PETITIONER

,

DONALD H. RUMSFELD, ET AL.’

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-18a)

is reported at 415 F.3d 33. The opinion of the district

court (Pet. App. 20a-49a) is reported at 344 F. Supp. 2d

152

JURISDICTION

The judgment of the court of appeals was entered on

July 15, 2005. The petition for a writ of certiorari was

filed on August 8, 2005. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

' The government sought the dismissal of all but Secretary Rumsfeld

as respondents in this case. The district court's docket sheet indicates

that all of the respondents save the Secretary were terminated on

November 23, 2004, after the government filed its notice of appeal,

which listed all of the original respondents in the caption.

(1)

STATEMENT

1. On September 11, 2001, the United States en-

dured a foreign enemy attack more savage, deadly, and

destructive than any sustained by the Nation on any one

day in its history. That morning, agents of the al Qaeda

terrorist network hijacked and crashed four commercial

airliners while targeting the Nation’s financial center

and its seat of government. The attacks killed approxi-

mately 3000 people and caused injury to thousands

more, destroyed billions of dollars in property, and ex-

acted a heavy toll on the Nation’s infrastructure and

economy. |

The President took immediate action to defend the

country and to'prevent additional attacks. Congress

swiftly enacted its support of the President’s use of “all

necessary and appropriate force against those nations,

organizations, or persons he determines planned, autho-

rized, committed, or aided the terrorist attacks that oc-

curred on September 11, 2001.” Authorization for Use

of Military Force (AUMF), Pub. L. No. 107-40, § 2(a),

115 Stat. 224.

The President ordered the armed forces of the

United States to subdue the al Qaeda terrorist network

and the Taliban regime in Afghanistan that supported it.

In the course of these armed conflicts, which remain

ongoing, the United States, consistent with the Nation's

settled practice in times of war, has seized numerous

persons and detained them as enemy combatants. And

consistent with historical practice, the President or-

dered the establishment of military commissions to try

members of al Qaeda and others involved in interna-

tional terrorism against the United States for violations ~

of the laws of war and ether applicable laws. In doing

5)

so, the President expressly relied on “the authority

vested in me * * * as Commander in Chief of the

Armed Forces of the United States by the Constitution

and the laws of the United States of America, including

the |AUMF] * * * and sections 821 and 836 of title 10,

United States Code.” Detention, Treatment, and Trial

of Certain Non-Citizens in the War Agarust Terrorism,

66 Fed. Reg. 57,833 (2001) (Military Order).”

2. In July 2003, the President, acting pursuant to the

Military Order, designated petitioner for trial before a

military commission, finding “that there is reason to

believe that | petitioner] was a member of al Qaeda or

was Otherwise involved in terrorism directed against the

United States.” Pet. App. la-2a. Petitioner was charged

with a conspiracy to commit attacks on civilians and ci-

Section 821 of Title 10, United States Code, provides in relevant |

part:

Art. 21. Jurisdiction of courts-martial not exclusive

The provisions of this chapter conferring jurisdiction upon

courts-martial do not deprive military commissions * * * of

concurrent jurisdiction with respect to offenders or offenses

that by statute or by the law of war may be tried by military

commissions. ]

Section 836 of Title 10, United States Code, provides in relevant part:

Art. 36. President may prescribe rules

(a) Pretrial, trial, and post-trial procedures, including modes

of proof, for cases arising under this chapter triable in

courts-martial, military commissions and other military

tribunals, * * * may be prescribed by the President by

regulations which shall, so far as he considers practicable,

apply the principles of law and the rules of evidence generally

recognized in the trial of criminal cases in the United States

district courts, but which may not be contrary to or

inconsistent with this chapter.

4

vilian objects, murder and destruction of property by an

unprivileged belligerent, and terrorism. /d. at 62a-67a.

The Charge against petitioner arises out of his close

connection to Osama bin Laden and his participation

from February 1996 to November 2001 in al Qaeda’s

campaign of international terrorism against the United

States. Pet. App. 65a-67a. The Charge states that peti-

tioner served as bin Laden’s bodyguard and personal

driver. In that capacity, he delivered weapons and am-

munition to al Qaeda members and associates; trans-

ported weapons from Taliban warehouses to the head of

al Qaeda’s security committee at Qandahar, Afghani-

stan; purchased or otherwise secured trucks for bin

Laden’s bodyguard detail; and transported bin Laden

and other high-ranking al Qaeda operatives in convoys

with armed bodyguards. /bid.

The Charge also states that petitioner was aware

that bin Laden and his associates had participated in

terrorist attacks against U.S. citizens and property, in-

cluding the September 11 attacks. Pet. App. 65a. Peti-

tioner received terrorist training himself, learning to

use machine guns, rifles, and handguns at an al Qaeda

training camp in Afghanistan. /d. at 67a.

The military commission proceedings at Guantanamo

accord petitioner numerous procedural protections. He

has the right to legal counsel and is provided with

trained counsel. 32 C.F.R. 9.4(c)(2). He has a right io a

copy of the Charge in a language he understands, 32

C.F.R. 9.5(a), the presumption of innocence, 32 C.F.R.

9.5(b), and proof beyond a reasonable doubt, 32 C.F.R.

9.5(¢c). He may confront witnesses against him, 52

C.F.R. 9.501), and may subpoena his own witnesses, if

reasonably available, 32 C.F.R. 9.5th). Petitioner will

have access to all evidence, except classified and other

5

national security material (protected information),

which nevertheless must be provided to his detailed de-

fense counsel before being admitted against him. 32

C.F.R. 9.5(e), 9.6(d)(5), 9.9." If petitioner is found guilty

by the commission, that judgment will be reviewed by a

review panel comprised of three military officers (which

may include civilians commissioned as such), at least one

of whom has experience as a judge,’ the Secretary of

Defense, and ultimately the President, if he does not

designate the Secretary as the final decisionmaker. 32

C.F.R. 9.6(h).” ;

* On August 31, 2065, Secretary Rumsfeld approved changes tu the

military commission procedures, including new language providing that

the accused and civilian defense counsel “shall be provided access to

Protected Information * * * to the extent consistent with national

security, law enforcement interests, and applicable law.” See Revised

Military Commission Order No. 1 § 6(D)(5)(b) (Aug. 31, 2005) <http://

www.defenselink.mil/news/Sep2005/d20050902order.pdf>. The revised

procedures further provide that, to the extent such access is denied and

“an adequate substitute for that information|] * * * is unavailable, the

Prosecution shall not introduce the Protected Information as evidence

without the approval of the Chief Prosecutor” and the presiding officer

“shall not admit the Protected Information as evidence if” its admission

“would result in the denial of a full and fair trial.” /bid.

' As the district court acknowledged, the review panel is comprised

of “some of the most distinguished civilian lawyers in the country,” Pet.

App. 39a, including Griffin B. Bell, a former federal appeals court judge

and Attorney General, and William T. Coleman, a former cabinet sec-

retary, id. at 39a n.13.

” Prior to the district court's order enjoining the commission pro-

ceedings, the Appointing Authority for Military Commissions, see 32

C.F.R. 9.2, granted in part petitioner's motion to remove several of the

commission members based on questions regarding their impartiality.

Referencing standards applied in federal and international courts, the

Authority ordered the removal of three commission members. See

http: www.defenselink.mil/news/Oct2004/d2004 1021 panel pdf,

6

While at Guantanamo, petitioner has also been given

a hearing before a Combatant Status Review Tribunal,

which confirmed that he is subject to continued deten-

tion as an-enemy combatant who is “either a member of

or affiliated with Al Qaeda.” C.A. App. 249; see Hamdi

v. Rumsfeld, 124 S. Ct. 2633 (2004) (plurality opinion)

(concluding that Congress has authorized the detention

of enemy combatants by enacting the AUMF); id. at

2678-2679 (Thomas, J., dissenting).

3. Petitioner’s counsel instituted these proceedings

by filing a petition for habeas corpus and/or mandamus

in the United States District Court for the Western Dis-

trict of Washington, alleging in relevant part that trial

before a military commission rather than a court-martial

convened under the Uniform Code of Military Justice

(UCMJ), 10 U.S.C. 801 et seq., would be unconstitutional

and a violation of the Geneva Convention Relative to the

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

3316 (the Geneva Convention). See C.A. App. 38-68.

While petitioner acknowledged that he worked for bin

Laden for many years before his capture, see id. at 50-

51 (paras. 15-16), he asserted that he was unaware of bin

Laden’s terrorist activities, ‘d. at 52 (para. 19). The

district court transferred the case to the United States

District Court for the District of Columbia. /d. at 195.

4. The district court granted the petition in part,

holding that petitioner could not be tried before a mili-

tary commission. Pet. App. 49a. The court first declined

to abstain to allow proceedings to continue before the

military commission, which was in the midst of a hearir*

to consider the very claims that petitioner raises in his

federal-court petition, and was a month away from the

scheduled trial date. See C.A. App. 250. The court in-

stead held that abstention was “neither required nor

appropriate” because petitioner challenged the jurisdic-

tion of the commission over him. Pet. App. 24a.

; Next, the district court ruled that the military com-

mission lacked jurisdiction over petitioner because a

“competent tribunal” had yet to determine whether he

was entitled to prisoner-of-war (POW) status under the

Geneva Convention, a status that the court believed

would preclude his trial by military commissiou. See

Pet. App. 29a-3la. In so holding, the district court de-

termined that the Convention grants petitioner rights

enforceable in federal court and disregarded the Presi-

dent’s determination that al Qaeda combatants are not

covered by the Convention. /d. at 29a-30a, 36a.

The district court further held that, even if a “com-

petent tribunal” were to determine that petitioner is an

unlawful enemy combatant rather than a POW, he could

still not be tried by a military commission unless the

commission rules are amended to conform with Article

39 of the UCMJ, 10 U.S.C. 839, which governs the pres-

ence of the accused at a court-martial. Pet. App. 46a-

47a.

Based on these legal rulings, the district court took

the extraordinary and unprecedented step of enjoining

the ongoing military commission proceedings, and it

ordered that petitioner be released to the general deten-

tion population at Guantanamo Bay Naval Base. Pet.

App. 49a.

After the government filed a notice of appeal, peti-

tioner filed a petition for a writ of certiorari before judg-

ment, which this Court denied on January 18, 2005.

5. The court of appeals reversed. Pet. App. la-18a.

With respect to the claims that it viewed as going to the

power of the military commission to try petitioner, the

court declined to abstain. /d. at 3a-4da. On the merits,

8

however, the court of appeals rejected petitioner's

claims. Specifically, it held that, through the AUMF and

Articles 21 and 36 of the UCMJ, 10 U.S.C. 821, 836, Con-

gress has given the President authority to establish mili-

tary commissions. Pet. App. 4a-7a.

The court of appeals also rejected petitioner's reli-

ance on the Geneva Convention. Pet. App. 7a-13a. It

held that the 1949 Geneva Convention does not create

judicially enforceable rights. The court based this con-

clusion on the principle that treaties, “even those di-

rectly benefitting private persons, generally do not cre-

ate private rights or provide for a private cause of action

in domestic courts.” /d. at 7a-8a (quoting Restatement

(Third) of the Foreign Relations Law of the United

States § 907 cmt. (a) at 395 (1987)). In particular, it ob-

served that in Johnson v. Eisentrager, 339 U.S. 763

(1950), this Court held that the 1929 version of the

Geneva Convention did not create judicially enforceable

rights. The court found Fisentrager dispositive with

respect to the current version of the Convention, be-

cause none of the differences between the 1949 and 1929

Conventions undermined Eisentrager’s analysis. Pet.

App. 9a-10a.

The court of appeals held in the alternative that,

even if the Geneva Convention were judicially enforce-

able, petitioner could not claim its protection. The court

agreed with the President’s determination that the Con-

vention does not apply to members of al Qaeda, which,

as a non-state terrorist organization, is not one of the

“High Contracting Parties” to the Convention. Pet.

App. lla. And petitioner did not qualify as a member of

a group that met the Convention’s requirements for

POW status. /bid. The court found petitioner’s reliance

on Army Regulation 190-8 to establish POW status

9

equally unavailing. The court explained that the Presi-

dent had determined that al Qaeda operatives such as

petitioner are not prisoners of war and that, to the ex-

tent the regulation required a “competent tribunal” to

determine his status, the military commission itself

could make that determination. Pet. App. 16a.

The court of appeals further held that petitioner was

not protected by Common Article 3 of the Geneva Con-

vention, 6 U.S.T. 3318, which applies only to “armed con-

flict not of an international character.” Pet. App. 12a.

The court observed that the President has determined

that this provision is inapplicable to the conflict with al

Qaeda, because the conflict is “international in scope.”

Ibid. The court explained that the President’s interpre-

tation of a treaty provision is entitled to “great weight,”

ibid., and it upheld his “reasonable view of the provi-

sion,” id. at 13a. It went on to explain that, even if Com-

mon Article 3 did apply, abstention would be appropri-

ate because his claims under Common Article 3 concern

“not whether the Commission may try him, but rather

how the Commission may try him,” which is “by no

stretch a jurisdictional objection.” /bid. Accordingly,

even if (contrary to the court’s ruling) his claim had

merit, it could properly be brought “in federal court af-

ter he exhausted his military remedies.” /bid.

Finally, the court of appeals rejected the district

court’s conclusion that Article 36 of the UCMJ, 10

U.S.C. 836, see note 2, supra, requires that the rules

governing military commissions comply with the UCMJ

provisions applicable by their express terms to courts-

martial only. The court of appeals observed that, be-

cause “the UCM takes care to distinguish between

‘courts-martial’ and ‘military commissions,” the district

ee eee sree

10

court’s reading “would obliterate” the distinction the

UCMJ draws between them. Pet. App. 14a.

Judge Williams concurred. He took issue only with

the court’s analysis of Common Article 3, which he be-

lieved to be applicable to the conflict with al Qaeda. Pet.

App. 18a. Because he agreed with the majority that the

Geneva Convention is not enforceable in court and that

any claims under Common Article 3 should be deferred

until the completion of the military-commission proceed-

ings, Judge Williams “fully agree|d] with the court's

judgment.” /d. at 17a.

ARGUMENT

The decision of the court of appeals is interlocutory.

It simply reversed the district court’s erroneous deci-

sion to enjoin ongoing military commission proceedings

a month before the scheduled trial date. Petitioner's

trial before a military commission has not yet begun.

The military commission may acquit petitioner or may

resolve some or all of petitioner’s claims in his favor, and

some may not even arise (e.g., if classified materials are

not presented at trial). In the event petitioner is con-

victed, an actual trial would create a record that would

facilitate any review by this Court. Moreover, the deci-

sion of the court of appeals on the merits is correct and

does not conflict with any decision of this Court or any

other court of appeals. Thus, further review at this time

is unwarranted.

1. a. The interlocutory nature of the court of ap-

peals’ decision makes plenary review premature, just as

it was eight months ago. See 125 S. Ct. 972 (2005). Pro-

ceedings before petitioner's military commission had

just begun when they were enjoined by the district

court. Under the decision of the court of appeals, those

11

proceedings will now be allowed to continue. Further

proceedings before the military commission may make

it unnecessary for this Court to address any number of

the questions currently presented in the case. If the

commission finds petitioner not guilty, the Court can

avoid these issues altogether.

Even if petitioner is convicted, many of the issues

that petitioner presses now may never arise in his case.

For example, petitioner objects to military commission

rules providing that a defendant may be excused from

proceedings at which classified evidence is presented.

Although petitioner was excused from a portion of voir

dire in which classified information was discussed, it is

entirely possible that no classified evidence will be intro-

duced by the prosecution at petitioner’s trial. The clas-

sified material at issue in the voir dire was related toa

recusal issue entirely collateral to the merits of the case

against petitioner. It involved evidence concerning the

impartiality of the commission, not evidence against the

accused. Accordingly, the voir dire proceedings in no

way suggest that classified evidence will be introduced

against petitioner.” Even if such evidence is sought to

be introduced, however, the commission’s rules, as

amended on August 31, 2005, provide for it to be shared

with the defendant “to the extent consistent with na-

"In light of the August 31, 2005 revisions to the allocation of

responsibilities between the presiding officer and the other commission

members and to the number of commission members, see Revised

Military Commission Order No. 1 §§ 4(A)(2), (5) and (6), the composi-

tion of petitioner's commission (other than the presiding officer) is

likely tochange. Accordingly, petitioner's present complaint about his

exclusion from portions of the voir dire (he was not excluded from voir

dire of the presiding officer) may well be rendered moot. These

changes to the military commission procedures highlight why it would

be unwise for this Court to review the case in this interlocutory posture.

12

tional security, law enforcement interests, and applica-

ble law,” and require its exclusion if “admission of such

evidence would result in the denial of a full and fair

trial.” Revised Military Commission Order No. 1

§$ 6(D)(5\(b). See note 3, supra.

Finally, even if the commission does consider such

evidence, petitioner’s counsel can argue that the evi-

dence should be given minimal or no weight in light of

petitioner’s inability personally to review and respond to

it. 32 C.F.R. 9.6(d)(2). Then, if petitioner is convicted,

and the admission of the evidence is deemed erroneous,

the error would be subject to harmless-error analysis.

This Court has recognized that even “constitutional er-

rors can be harmless,” Arizona v. Fulminante, 499 U.S.

279, 306 (1991), and it has applied that analysis to claims

similar to those advanced by petitioner. See, e.g., Dela-

ware v. Van Arsdall, 475 U.S. 673 (1986) (violation of

Confrontation Clause); Rushen v. Spain, 464 U.S. 114

(1983) (per curiam) (violation of right to be present at

every phase of trial). Post-trial application of the

harmless-error rule might even make it unnecessary for

the Court to determine whether the commission's proce-

dures had in fact resulted in error.

For all of those reasons, review of petitioner's claims

at this juncture would be premature. See Hami/ton-

Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258

(1916) (interlocutory status of the case “of itself alone

furnishe|s] sufficient ground for the denial” of the peti-

tion); see also Virginia Military Inst. v. United States,

508 U.S. 946 (1993) (opinion of Scalia, J., respecting de-

nial of certiorari). Indeed, this Court routinely denies

petitions by criminal defendants challenging interlocu-

tory determinations that may be reviewed at the conclu-

sion of criminal proceedings. See Robert L. Stern et al..

13

Supreme Court Practice § 4.18, at 258 n.59 (8th ed.

2002); see, e.g., Moussaoui v. United States, 125 S. Ct.

1670 (2005). The rationale behind this Court’s general

practice in criminal cases applies with even greater

force to the circumstances presented here, where the

legal issues raised by petitioner would require the Court

to make possibly unnecessary determinations affecting

the exercise of the President’s core Commander-in-

Chief and foreign affairs authority.

b. Petitioner has not shown that he will be preju-

diced by deferring resolution of his claims until after an

adverse military-commission judgment, if he is con-

victed. Petitioner notes that he has been detained for

several years at Guantanamo Bay. Pet. 29. But as an

individual who has been determined by a Combatant

Status Review Tribunal to be “either a member of or

affiliated with Al Qaeda,” Pet. App. 2a, petitioner is sub-

ject to detention as an enemy combatant regardless of

the outcome of this litigation or whether he is ultimately

convicted of a specific war crime, see Hamdi v.

Rumsfeld, 124 S. Ct. 2633 (2004) (plurality opinion); éd.

at 2678-2679 (Thomas, J., dissenting); Ew parte Quirin,

317 U.S. 1, 28 (1942); see also Pet. App. 47a (the district

court noting that petitioner “may be detained for the

duration of the hostilities in Afghanistan if he has been

appropriately determined to be an enemy combatant”).

Petitioner was captured in Afghanistan, where military

operations are ongoing. See, e.g., Bryan Bender, U.S.

Endures Deadliest Year in Afghanistan, Boston Globe,

July 3, 2005 <http://www.boston.com/news/world/

middleeast/articles/2005/07/03/us_endures_

deadliest year_in_afghanistan/>. Tellingly, petitioner's

federal action challenged only the commission process

and did not advance any legal claims challenging his

Cee eT ee mM

14

detention as an enemy combatant. See C.A. App. 56-64;

Pet. App. 47a n.18.

_ Petitioner objects that he may be prejudiced by hav-

ing to present a defense before a commission, because

reversal of its judgment would result in a retrial. Pet.

28a. But this supposed burden is no different from that

faced by any criminal defendant subject to trial before

a tribunal that has arguably violated the defendant's

rights. It provides no basis for deviating from this

Court’s ordinary practice of avoiding interlocutory con-

sideration of a defendant's claims in a criminal proceed-

ing.’

Petitioner misplaces relianee on bx parte Quirin,

317 U.S. 1 (1942), to justify interlocutory review. The

petitioners there, who included a presumed U.S. citizen

captured on U.S. soil, faced imminent execution, which

is not the case here. Interlocutory review there, which

‘ As petitioner noves (Pet. 28), the court of appeals concjuiled that

post-trial review of his jurisdictional challenges would be insufficient

to protect his “right not to be tried by a tribunal that has no juris-

diction.” Pet. App. 4a. That aspect of the court of appeals’ decision is

anomalous, because there is no general right to interlocutory review

of jurisdictional challenges. and a confirmed alien enemy combatant

should have no greater ryzht to pre-trial federal review of his challenge

to military jurisdiction than an American service-member, \¢v

Schlesinger v. Councilman, 420 U.S. 738 (1975), especia™y whiek the

challenge is not to military jurisdiction generally, but to the type of

military tribunal in which he wall be tried. See Pet. 8 (“Petitioner asks

simply for a trial that comports with this nation's traditions, * * * such

as acourt-martial under 10 U.S.C_&818 (authorizing courts martial to try

law-of-war violations).”). But even if the court of appeals were correct

as to either the appropriateness of abstention or as to /fx jumsdiction

over an appeal as of right, that does not inform this Court's discre-

tionary exercise of certiorari review. The interlocutory posture of a

case counsels against Supreme Court review even if the error wlti-

mately to be corrected is of a jurisdictional dimension.

15

took place in the midst of proceedings, provided an al-

ternative to staying an execution. But the Court did not

intervene to stop trial proceedings from commencing to

prevent the “injury” of undergoing trial by a commission

of questionable jurisdiction.” Because petitioner faces a

maximum sentence of life imprisonment, this Court will

have the opportunity to review petitioner's claims at the

appropriate time in the event an adverse final judgment

is entered against him. See Pet. App. 16a (noting that

petitioner’s commission “consists of three colonels”);

Revised Military Commission Order No. 1 § 6(G) (Aug.

31, 2005) (commission may sentence defendant to death

only if comprised of at least seven members in addition

to presiding officer). Moreover, this case involves an

alien enemy combatant captured abroad, a context in

which the jurisdiction of military commissions has long

been clear, and in which the Court has been content to

resolve jurisdictional questions after a trial before the

commission. See Johnson v. Eisentrager, 339 U.S. 763,

786 (1950).

While petitioner claims (Pet. 30) that the court of ap-

peals’ decision implicates “the integrity of our judicial

system,” there is no reason this Court could not protect

the judicial system's integrity by reviewing the case in

the ordinary course. That approach not only would

avoid the possibility that the Court would unnecessarily

~ Specifically, the Court heard the case at (he close of the presenta-

tion of evidence before the commission. The Court never entered a

stay. and closing arguments commenced before the Court issued its

decision. See Louis Fisher, Naz: Sabotenrs on Trial 64-79 (2003).

” As mentioned in note 6, s#pra, the composition of petitioner's _

commission is likely to change, but in all events, like his original com-

mission, the reconstituted commission will contain less than the number

of members required to impose a death sentence.

16

decide questions implicating the most sensitive national

security concerns without the benefit of a complete and

concrete record, but would also promote the public in-

terest in bringing to justice in an expeditious manner

those members of enemy forces who have violated the

laws of war. The district court's ill-considered and un-

precedented injunction has already resulted in delaying

military commission proceedings for nearly a year. A

grant of certiorari now would only compound the delay.

c. Finally, petitioner cites the need for guidance in

other pending cases as supporting review before a final

judgment in his case. But the number of other cases

raising claims about the military commissions is small,

and those individuals likewise can raise their claims in

the commissions in the first instancé and post-conviction

in the event they are found guilty. Moreover, to the ex-

tent other detainees not currently subject to trial by a

military commission have an interest in some of the is-

sues decided by the court of appeals here, they have the

opportunity to litigate those issues in the specific con-

texts implicated by their detention and can seek clarity

and guidance from the court of appeals in their own

cases (up to and including guidance frem the en banc

court, a step petitioner here bypassed).

2. Petitioner contends that the decision of the court

of appeals creates a variety of conflicts with decisions of

other courts of appeals. None of those asserted conflicts

withstands scrutiny.

a. Petitioner suggests that, when the court of ap-

peals interpreted the AUMF to authorize military com-

missions, it created a conflict with decisions of the Court

of Military Appeals. Pet. 13. The cases cited considered

only the interpretation of Article 2110) of the UCMJ,

which “{ijn time of war” subjects to court-martial juris-

17

diction “persons serving with or accompanying an armed

force in the field.” 10 U.S.C. 802(10). See Zamora v.

Woodson, 42 C.M.R. 5,6 (C.M.A. 1970); United States v.

Averette, 41 C.M.R. 363, 363 (C.M.A. 1970). In each

ease, which involved the court-martial of a civilian, the

Court of Military Appeals construed the language “in

time of war” to refer to a declared war. Those holdings

in no way conflict with the decision of the court of ap-

peals here.

First, Congress has authorized the President to es-

tablish procedures for military commissions, 10 U.S.C.

—s—836(a), and it has explained that court-martial jurisdic-

tion does not “deprive military commissions *~* * of con-

current jurisdiction,” 10 U.S.C. 821. Neither of those

provisions uses the language “in time of war” to limit the

availability of commissions, which have been employed

in conflicts without regard to whether they followed for-

mal declarations of war. See, e.g., Curtis A. Bradley &

Jack L. Goldsmith, Congressional Authorization and

the War on Terrorism, 118 Harv. L. Rev. 2047, 2129

(2005) (observing that military commissions “have been

used in connection with formally declared wars as well

as other military conflicts, such as the Civil War and

conflicts with Indian tribes”). Further, the court of ap-

peals in this case properly determined that the AUMF,

which directed the President to-use “all necessary and

appropriate force” against al Qaeda, had authorized him

to establish military commissions. See Pet. App. 5a-7a.

Second, it is well settled that the UCMJ applies gen-

erally to armed conflicts, including the Vietnam conflict

at issue in Zamora and Averette, in which the United

States has engaged without a formal declaration of war.

See, ¢.g., Uniited States v. Anderson, 38 C.M.R. 386, 387

W.M.A. 1968) (“The current military involvement of the

18

United States in Vietnam undoubtedly constitutes a

‘time of war’ in that area, within the meaning of ie

43."); United States vy. Bancroft, 11 C.M.R. 3, 5-6

(C.M.A. 1953) (finding that conflict in Korea is “time of

war” under the UCMJ). The decisions cited by peti-

tioner are inapposite, because they apply only to civil-

ians subjected to a court-martial, see United States v.

Reyes, 48 C.M.R. 832, 835 (A.C.M.R. 1974) (en banc);

Averette, 41 C.M.R. at 365-366; Zamora, 42 C.M.R. at 6,

unlike petitioner, a confirmed enemy combatant charged

before a military commission with violating the laws of

war applicable to combatants.

b. Petitioner next asserts that there is a circuit con-

flict with respect to “the basic question of whether those

facing trials at Guantanamo can assert any constitu-

tional protection.” Pet. 16. The court of appeals did not

resolve that issue, and the decision below therefore nei-

ther creates nor implicates any split of authority on that

issue.” Pet. App. 4a-5a. Instead, the court assumed

that petitioner could raise constitutional claims; it sim-

ply rejected petitioner’s separation-of-powers argument

on the merits. /d. at 5a-7a. That decision implicates no

conflict among the circuits and rests on a straightfor-

ward application of the AUMF, the statutes referring to

military commissions, and this Court’s decisions inter-

preting them. /bid. (discussing Quirin, 317 U.S. at 28-

29: In re Yamashita, 327 U.S. 1, 11, 19-20 (1946); and

” The issue of whether the detainees held as enemy combatants at

the Guantanamo Bay Naval Base can assert rights under the United

States Constitution is more squarely presented in appeals (A/ Odah v.

United States, Nos. 05-5064, 05-5095 through 05-516 (D.C. Cir.), and

Boumedicnev. Bush, Nos. 05-5062 & 05-5063 (D.C. Cir.) set for argu-

ment before the D.C. Circuit on September 8, 2005.

19

Hamdiv. Ruimsfeld, 124 S. Ct. 2633, 2640-2642 (2004)

(plurality opinion)).'' :

c. Petitioner further contends that the court of ap-

peals created a conflict with other circuits when it held

that he could not seek court enforcement of the Geneva

Convention. Pet. 20-25. Petitioner does not argue that

any other court of appeals has held the Convention to be

judicially enforceable, for wone has. Instead, he claims

that he is entitled to enforce the Convention through the

habeas statute, 28 U.S.C. 2241. That argument over-

looks that the habeas statute is merely a grant of juris-

diction, see, e.g., Bowrin v. INS, 194 F.3d 483, 489 (4th

Cir. 1999); it does not create any substantive rights, see,

e.g., Jimenez v. Aristeguieta, 311 F.2d 547, 557 n.6 (Sth

—

"In any event, there is no bona fide conflict in regard to whether

aliens outside the United States have due process rights under the

Federal Constitution. Indeed, this Court has been “emphatic” in

rejecting “the claim that aliens are entitled to Fifth Amendment rights

outside the sovereign territory of the United States.” (wited States v.

Verdugo-U rquidez, (94 US. 259, 269 1990); see Evsentrager, 389 U.S.

at 781-785; Zadeydas Vv. Davis, 533 US. 678 (2001). The Circuit rulings

cited by petitioner are not to the contrary. See Cuban Am. Bar Ass’y

v. Christopher, 48 F.3d 1412, 1425 1th Cir.) thelding that Cubans

detained at the Guantanamo Bay Naval Base have no constitutional,

right to due process or speech), cert. denied, 515 U.S. 1142 (1995). In

Reiav. Socialist People’s Libgan Avab Jamahiriya, 162 F.3d 74s (2d

Cir. 1998), cert. denied, 527 U.S. 1008 (1999) (see Pet. 16n.11), the court

of appeals did not address the constitutional due process rights of aliens

abroad. The other cited circuit cases serve petitioner no better:

Haitian Ctrs. Conner, Inewv. MeNary, 969 F.2d 1326 (2d Cir. 1992),

was vacated by this Court, Sele v. Hartian Ctrs. Conned, Tne, 909 US.

O18 (1993), and has no precedential value. Government of the Canal

Zone ¥. Seott, S02 F.2d 566 (ath Cir. 1974), discussed constitutional

rights in the former Panama Canal Zone. At the time, the Canal Zone

was deemed an unincorporated sovereign territory of the United

States. See af. at Obs,

20

Cir. 1962), and its reference to treaties does not make

treaties that provide for enforcement only at the State-

to-State level judicially enforceable any more than does

28 U.S.C. 1331's reference to “treaties.” The authorities

petitioner cites do not support his argument. In

Ogbudimka v. Ashcroft, 342 F.3d 207, 218 n.22 (2003),

the Third Circuit expressly declined to consider an argu-

ment similar to that advanced by petitioner, while in

Wang v. Ashcroft, 320 F.3d 130, 140-141 & n.16 (2003),

the Second Circuit allowed a habeas petitioner to seek

enforcement of rights created by a statute, not by a

treaty, see id. at 140 (noting Wang's argument that the

Foreign Affairs Reform and Restructuring Act “creates

individual rights based on” the Convention Against Tor-

ture).

d. Finally, petitioner suggests that there is a “split

in authority about Common Article 3” of the Geneva

Convention. Pet. 27. Even if there were such a split,

this case would be_a poor vehicle for considering that

issue. The court of appeals expressly held, in the alter-

native, that the Geneva Convention is not judicially en-

forceable and that petitioner's Common Article 3 claims

are subject to abstention. Accordingly, there are two

independent legal obstacles—neither of which implicates

a split of authority—to reaching the Common Article 3

question. In any event, no split of authority exists. The

case cited by petitioner, Aadic v. Karadzic, 70 F.3d 232,

243 (2d Cir. 1995), held that Common Article 3 (6 U.S.T.

3318) “binds parties to internal conflicts” even if they

are not states. It did not consider the applicability of

Common Article 3 to a conflict, such as that between the

United States and al Qaeda, that is not internal to a

ctate. As the court of appeals explained in this case, Pet.

App. l2a-15a, such a conflict may reasonably be de-

21.

os

scribed as being “of an international character” and

therefore outside the scope of Common Article 3, as the

President determined.”

>. a. Given the interlocutory nature of the petition,

the government will not engage in a point-by-point re-

buttal of petitioner’s lengthy arguments on the merits

for reversal of the court of appeals’ holding. As an ini-

tial matter, however, there is a substantial likelihood

that this Court would not even reach the merits of peti-

tioner’s arguments, because, if the Court were to review

the case now, it first would have to consider the thresh-

old question of abstention to allow the pending military

commission proceedings to move forward.

In the past, this Court has recognized the need for

judicial abstention in the face of proceedings before a

military tribunal. As the Court has explained, the need

for protection against judicial interference with the

“primary business of armies and navies to fight or be

ready to fight wars” “counsels strongly against the exer-

cise of equity power” to intervene in an ongoing court-

martial. Schlesinger v. Conncilman, 420 U.S. 738, 757

(1975). The Court has held that even a case with rela-

tively limited potential for interference with military

action—/.e., the prosecution of a serviceman for posses-

sion and sale of marijuana—implicated “unique military

exigencies.” /bid. These exigencies normally preclude

a court from entertaining “habeas petitions by military

= Kadic was not a habeas case, but looked to Common Article 3 in

evaluating the viability of the plaintiffs’ claims under the Alien Tort

Statute (ATS). This Court’s decision in Sosa v. Alranes-Machain, 124

S.Ct. 2739, 2763, 2767 (2004), superseded the Second Circuit's approach

to the ATS, making ciear that the ATS does not render judicially

enforceable those treaties that themselves do not create judicially

enforceabie rights.

22

prisoners unless all available military remedies have

been exhausted.” /d. at 758. Accord Gusik v. Schilder,

340 U.S. 128, 133 (1950); Noyd v. Bond, 395 U.S. 683,

696 (1969).

The concern for interference with military exigencies

is only heightened where, as here, the military proceed-

ings involve enforcement of the laws of war against an

enemy force targeting civilians for mass death. See

Yamashita, 327 U.S. at 11 (“trial and punishment of en-

emy combatants” for war crimes is “part of the conduct

of war operating as a preventive measure against such

violations”); Hirota v. MacArthur, 338 U.S. 197, 208

(1949) (Douglas, J., concurring) (“punishment of war

criminals * * * dilutles| * * * enemy power and

involv|es| retribution for wrongs done”).

The court of appeals relied on Quiri in declining to

abstain with respect to petitioner's jurisdictional claims.

That reliance was misplaced, because no party argued

for abstention in Quirin, and the case is distinguishable

in a number of other key respects. As explained above,

pp. 14-15, the petitioners in Qvirin included a presumed

U.S. citizen captured in the United States and facing

imminent execution, unlike Hamdan, an alien enemy

combatant captured abroad whose commission cannot

sentence him to death. The urgency that attended

Quirin thus does not exist here. Moreover, the legal

landscape has changed considerably since 1942. The

Quvirin decision itself, recently reaffirmed in Hamdi,

124 8S. Ct. at 2643 (plurality opinion); id. at 2682

(Thomas, J., dissenting), and Yamashita and

Kiseutrager (both of which were decided post-military

trial) make clear that military commissions in a variety

of circumstances may try enemy combatants for offenses

against the laws of war. Permitting petitioner's military

23

commission to go forward under the authority of these

decisions hardly constitutes the type of exigency ertsts—

that justifies halting a military proceeding conducted

during an ongoing armed conflict.

In short, the court of appeals erred in declining to

abstain. That decision does not implicate a split in cir-

cuit court authority or otherwise independently merit

the Court’s review. Indeed, al) of the reasons that this

Court has held abstention to be appropriate in similar

circumstances counsel, a fortior:, against interlocutory

review of this petition. Considerations of separation of

powers, deference to military proceedings, avoiding ab-

stract questions and unnecessary decisions all favor de-

ferring judicial review, including review by this Court,

until after the commission proceedings run their course.

Moreover, the prospect that review at this time would

lead to nothing more than the reaffirmation of Council-

man also militates against interlocutory review.

b. Moreover, petitioner has not shown that the court

of appeals’ decision is inconsistent with the Constitution,

the UCMJ, or international law, much less that it is so

glaringly inconsistent that it warrants this Court's re-

view. notwithstanding both the petition’s interlocutory

nature and the absence of any circuit conflict.

Petitioner suggests that his trial by military com-

mission would be inconsistent with Ew parte Milligan,

71 U.S. (4 Wall.) 2 (1866). Mi/ligan has no application to

this case. Milligan involved the military trial of a U.S

citizen who was detained within the United States and

was not “part of or associated with the armed forces of

the enemy,” Quirin, 317 U.S. at 45. As an alien captured

overseas and confirmed to be an enemy combatant, peti-

tioner cannot liken his predicament to Milligan’s. See

Hamdi, 124 S. Ct. at 2642 (plurality opinion). In any

24 t

event, as petitioner acknowledges, Pet. 11, to whatever

extent Milligan might have limited the use of military

commissions, it was superseded by Quirin. And as the

plurality in Hamdi recognized, Quirin establishes that

“the capture, detention, and trial of unlawful combat-

ants, by ‘universal agreement and practice,’ are ‘impor-

tant incident{s| of war.” 124 S. Ct. at 2640 (quoting

Quirin, 317 U.S. at 28) (emphasis added). Because

Quirin “both postdates and clarifies Milligan,” it pro-

vides “the most apposite precedent” here. /d. at 2643.

ii. Petitioner contends that his trial by military com-

mission would be inconsistent with the UCMJ. Pet. 16-

20. This is not a claim of the right not to be tried, but

rather simply a challenge as to how petitioner will be

tried. That is a matter to be reviewed, if at all, at the

end of the commission proceedings. In any event, the

argument is without merit. As the court of appeals ex-

plained, the UCMJ expressly preserves military-com-

mission jurisdiction, and the UCMJ provisions regulat-

ing courts-martial cannot be read to impose the same

procedural requirements on military commissions. Con-

gress has never sought to regulate military commissions

comprehensively; rather, it has recognized and approved

the President's historic use of military commissions as

he deems necessary to prosecute offenders against the

laws of war. Pet App. l4a-l5a (citing Madsen vy.

Kinsella, 343 U.S. 341, 346-348 (1952)). If military com-

missions were required to follow the same procedures as

courts-martial, there would be no point in having a mili-

tary commission, whose jurisdiction the UCM. recog-

nizes precisely because of the historic authority and

flexibility the President has had to administer justice to

enemy fighters who commit offenses against the laws of

war.

4

S

iii. Petitioner invokes two additional statutes that

were not addressed by the court of appeals: 10 U.S.C.

3037(¢)(3), which directs the Judge Advocate General of

the Army to “receive, revise, and have recorded the pro-

ceedings of courts of inquiry and military commissions”;

and 18 U.S.C. 242, a criminal statute that prohibits vari-

ous forms of discriminatory conduct against aliens. Pet.

17. Because these statutory claims were never ade-

quately raised before the court of appeals and never

addressed by that court, they have not been preserved

and are not properly presented to this Court. See

l'nited States v. Ortiz, 422 U.S. 891, 898 (1975) (declin-

ing to consider issue “raised for the first time in the pe-

tition for certiorari”).

iv. Petitioner contends that his trial by military com-

mission would violate international law. Pet. 13-16. To

the extent he relies upon the Geneva Convention, his

claim is fully addressed by the thorough opinion of the

court of appeals, which explained that the Convention

does not create judicially enforceable rights. Pet. App.

Moreover, these new statutory arguments lack merit. Even

assuming that 10 U.S.C. 3057(¢) creates privately enforceable rights,

petitioner's claim is meritless. That provision, which merely identifies

a duty of the Judge Advocate General, has been interpreted in its

predecessor form as setting out a clerical function; the provision does

not authorize the Judge Advocate General to engage in substantive

review of military commission proceedings. See Ew parte Mason, 256

F. 384, 387 (CLCLN.D.N.Y. 1882). As for 18 U.S.C. 242, that provision

does not apply to petitioner, because he is not a “person in any State,

Territory, Commonwealth, Possession, or District” within the meaning

of the statute. IS U.S.C. 242. Moreover, petitioner cites no authority

for the proposition that this criminal statute is privately enforceable, let

alone that it has any application in the context of war, in which enemy

aliens have always been subjected to different treatment from citizens,

See generally Eysentrager.

26

7a-10a. There is no circuit conflict on this issue warrant-

ing this Court’s review, and the court of appeals’ ruling

is fully consistent with this Court's construction of the

prior version of the treaty in Kisentrager. Petitioner

has identified nothing in the current Convention's text

or drafting and ratification history to suggest the revo-

lutionary intent to create judicially enforceable rights.

To the contrary, the enforcement provisions of the 1949

Convention, like its predecessor, make clear that dis-

agreements und alleged violations are to be addressed

via State-to-State negotiations and neutral-party over-

sight, not by domestic courts. Compare art. 11, 6 U.S.T.

3326 and art. 132, 6 U.S.T. 3420 (1949 Convention), with

art. 31, 47 Stat. 2041 and art. 87, 47 Stat. 2061 (Geneva

Convention Relative to the Treatment of Prisoners of

War, July 27, 1929, 47 Stat. 2021, 118 L.N.T.S. 345).

In any event, even if the issue of the enforceability of

the Convention in court by a person captured as part of

an armed conflict were deemed to present an issue war-

ranting this Court's review, this case would not provide

an appropriate vehicle for addressing the issue. As the

court of appeals held, petitioner would not qualify for

POW protection under the Convention in any event.

Petitioner now claims that he could obtain POW status

under Articles 4A(1) and (4), 6 U.S.T. 3320."' Pet. 27.

But these claims were not raised in the court of appeals,

see Pet. App. lla, and are contradictory. Article 4A(1)

'' Petitioner asserts that, because he claims POW status under

Articles 4AQ1) and (4), he need not satisfy the eriteria set out in Article

4A(2). Pet. 27. That assertion lacks merit because the term “armed

forces” in Articles 4AC1) and (4) is properly read as limited to armed

forces that comply with the criteria set out in Article 4A(2). See

Commentary to the Geneva Convention Relative to the Treatment ot

Prisoners of War 62458 (Red Cross 1952).

27

grants POW status to “members 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,”

whereas Article 4A(4) grants such status to persons who

are vot members of the armed forces, but who accom-

pany them. Moreover, petitioner’s assertion of Article

4A(1) status conflicts with his assertion in his habeas

petition that he is an innocent civilian. See C.A. App. 51-

52. And petitioner’s assertion of Article 4A(4) status

conflicts with the finding by the Combatant Status Re-

view Tribunal that petitioner is a combatant. In any

event, petitioner may raise his claim that he is an inno-

cent civilian (which is a refutation of the Charge) as a

defense in his trial before the military commission.

Thus, that fact-bound issue is not properly presented to

this Court.

Finally, petitioner asserts rights under Article 5 of

the Convention, but in doing so he disregards the

phrase that limits the Article’s application to conflicts

“not of an international character.” Pet. App. 12a (quot-

ing Common Article 3). The President has determined

that this provision is inapplicable to the conflict with al

Qaeda because the conflict is “international in scope.”

Ibid. As the court of appeals observed, even if Common

Article 3 did apply, it would not affect whether peti-

tioner could be tried by a military commission, but only

what procedures the commission would have to use. /d.

at 13a. For this reason, any claim under that article

should be brought, if at all, after trial, if petitioner is

convicted.

v. Petitioner further contends that the laws of war

do not apply to his case because the conflict between the

United States and al Qaeda is not a war between two

states. Pet. 13-16. That contention lacks merit. As an

28

initial matter, whether thereexists a state of armed con-

flict against an enemy to which the laws of war apply is

a political question for the President, not the courts.

See The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862)

(“Whether the President in fulfilling his duties, as

Commander-in-Chief, in suppressing an insurrection,

has met with such armed hostile resistance, and_a civil

war of such alarming proportions as will compel him to

accord to them the character of belligerents, is a ques-

tion to be decided by him, and this Court must be gov-

erned by the decisions and acts of the political depart-

ment of the Government to which this power was en-

trusted.”) (emphasis in original). In any event, the sug-

gestion that the laws of war do not apply to conflicts

against non-state entities is flatly incorrect. It is well

established that the laws of war fully apply to armed

conflicts involving groups or entities other than tradi-

tional nation-states: “it is not necessary to constitute

war, that both parties should be acknowledged as inde-

pendent nations er sovereign states.” /d. at 666; see

also Ingrid Detter, The Law of War 134 (2d ed. 2000)

(“non-recognition of groups, fronts or entities has not

affected their status as belligerents nor the ensuing sta-

tus of their soldiers as combatants’).

The President recognized that al Qaeda’s repeated

attacks against the United States created a state of

armed conflict, see Military Order § l(a), as did Con-

gress when it supported the President’s exercise of his

Commander-in-Chief authority against the “nations,

organizations, or persons he determines” were respon-

sible for the September 11 attacks. AUMF, 115 Stat.

224 (emphasis added). Moreover, NATO, upon conclud-

ing that al Qaeda was responsible for directing those

attacks from abroad, took the unprecedented- step of

29

: invoking Article 5 of the North Atlantic Treaty, which

provides that an “armed attack against one or more of

{the parties] shall be considered an attack against them

all.” North Atlantic Treaty, Apr. 4, 1949, art. 5, 65 Stat.

2244, 34 U.N.T.S. 246; see Statement of NATO Secy.

Gen. (Oct. 2, 2001) <http://www.nato.int docw/ speech,

2001/s011002a.htm>. All of those actions eliminate any

possible doubt concerning the applicability of the laws of

war to the conflict with al Qaeda, and nothing in the

Geneva Convention indicates that a state of armed con-

flict cannot exist when a State is attacked by an entity

that is not entitled to the Convention's protections."”

-

Petitioner's related contention that the charge against him is not

“prosecutable by a commission” (Pet. 14) is equally meritless. Con-

spiracy to commit offenses against the laws of war—the offense with

which petitioner is charged—has been prosecuted before military com-

missions throughout this Nation's history. See Qasr, 317 U.S. at 23;

Coleynugh v. Looney, 235 F.2d 429, 482 0th Cir, 1996) (upholding

military-commission trial of Nazi saboteur charged with conspiracy),

cert. denied, 352 U.S. 101411957); Charles Howland, Digest of Opinions

of the Judge Advocate General of the Arwg VOTL 1912) Gdentifying

conspiracy “to violate the laws of war by destroying life or property in

aid of the enemy” as an offense against the laws of war that was

“punished by military commissions” during the Civil War).

a ee

30

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAtL D. CLEMENT

Nolicitor General

PETER D. KEISLER

Assistant Attorney General

Greoory G. KATSAS

Deputy Assistant Attorney

General

DOUGLAS N. LETTER

Roper’ M. Lore

Eric D. MILLER

Attorneys

SEPTEMBER 2005