Amicus Curiae Brief — Hamdan v. Rumsfeld

ad

No. 05-184

In The

Supreme Court of the Anited

+

SALIM AHMED HAMDAN

Petitioner,

V.

DONALD H. RUMSFELD, et al.

Respondents.

S

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

e

BRIEF FOR AMICUS CURIAE

IBRAHIM AHMED MAHMOUD AL QOSI

IN SUPPORT OF PETITIONER

(TREATIES: ENFORCEABILITY ON

HABEAS/MANDAMUS)

+

LT. COL. SHARON A. SHAFFER PAUL S. REICHLER

UNITED STATES AIR FORCE Counsel of Record

OFFICE OF THE CHIEF LAWRENCE H. MARTIN

DEFENSE COUNSEL JONAS J. MONAST

OFFICE OF MILITARY COMMISSIONS NIENKE C. GROSSMAN

1851 S. Bell Street, Suite 103 FOLEY HOAG LLP

Arlington, Virginia 22202 1875 K Street, NW,

Suite 800

Washington, DC 20006

(202) 223-1200

Counsel for Amicus Curiae

CUOCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the military commission established by

the President to try petitioner and others similarly situ-

ated for alleged war crimes in the “war on terror” is duly

authorized under Congress’s Authorization for the Use of

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

the Uniform Code of Military Justice (UCMJ); or the

inherent powers of the President?

2. Whether petitioner and others similarly situated

can obtain judicial enforcement from an Article III court of

rights protected under the 1949 Geneva Convention in an

action for a writ of habeas corpus challenging the legality

of their detention by the Executive branch?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........cccccssssecsecsesseseeees i

TABLE OF AUTHORITIES. ..........0:sccsccsescesecseeseeseeees iv

INTEREST OF AMICUS CURIAE ...0....ccccescessessesseoes 1

SUMMARY OF ARGUMENT .....0......ccccscesseeseseeeseesees 1

OLED Sa eee mM 3

I. PETITIONER MAY ENFORCE HIS RIGHTS

UNDER THE GPW IN AN ACTION FORA

WRIT OF HABEAS CORPUG........0.......ccccceees 3

A. The Plain Text of the Habeas Statute

and This Court’s Jurisprudence Provide

for Habeas Relief When an Individual Is

Detained in Violation of United States

ey TI circcsuninensiasssanantoiegmen 3

1. The Plain Text of the Habeas Statute

Establishes That Individuals Held in

Violation of Treaty Obligations Are

Bs Ge GD TOU vevcccctcccccccescssecesess 3

2. This Court Has Repeatedly Held That

Habeas Relief Is Available for Treaty

I dn sincciahetinionticnninciptinesninainucntiodiiiins 7

B. The Court of Appeals Not Only Ignored

the Text of the Habeas Statute and This

Court’s Precedent, It Misunderstood the

Role of Treaties in Our Constitutional

DRS tS BANG TaN Sw acer mee 10

1. The Framers of Our Constitution In-

tended Most Treaties To Be Judicially

TERRE Se Rag be Poa ee ee ll

iii

TABLE OF CONTENTS - Continued

Page

2. The Court of Appeals Misconstrued

This Court’s Precedent on the Judi-

cial Enforceability of Treaties............. 14

3. The Footnote Dicta in Eisentrager

Does Not Answer the Question Pre-

IIIT i iiindiiiiiisitaniaitenins -adaumeumtighednininabdiis 21

C. The GPW Can Be Applied in This Case.... 23

Il. IN THE EVENT THE COURT FINDS THAT

A PETITION FOR A WRIT OF HABEAS

CORPUS IS NOT THE APPROPRIATE VE-

HICLE FOR PETITIONER TO ENFORCE

HIS TREATY RIGHTS UNDER THE GPW,

MANDAMUS RELIEF IS NECESSARY......... 24

SN iaiiciicis dciininsesdanactniinditiatigipudidaiaicaninninatas 30

iv

TABLE OF AUTHORITIES

Page

CASES

Amoco Prod. Co. v. S. Ute Tribe, 526 U.S. 865

SEIT chlciceicontsinseanieneieeedalstdibeshdidsilababiiedithaindinn thehaaenieibcidedididiains 5

Atl. Mut. Ins. Co. v. Comm’r, 523 U.S. 382 (1998) ............. 4

Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438

STTTITTTID sincheniesciceiisuin cease sii ities acaiidaainihdtianiaiide 4

Charlton v. Kelly, 229 U.S. 447 (1913).................. 15, 19, 20

Cheney v. U.S. Dist. Court for the Dist. of Columbia,

SORE Sa ET CUT saiesccasesicitinrsbccviciaicsbeliniie Aapiiditisbnpeenbacmmncadigisiats 27

Chickasaw Nation v. United States, 534 U.S. 84

SETI cscisclicstcaciasniieachasiceteanbaiatbiahinsamateeiamidiataslapiinaienetitdnalieie 4

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976).............. 4

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829) ............ passim

Good Samaritan Hosp. v. Shalala, 508 U.S. 402

IITs: seccsiphetstindalnicechomtiineandelinstcari anata eiatithaieabieri nbs Sci 4

Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir.

SUITE i:cisisisihdaiatiscisindiedbaidetivaiibelaiiestiistlelliceaiiibiapadioalihiathin 10, 11, 14, 15

Head Money Cases, 112 U.S. 580 (1884)............... 13, 14, 15

Heckler v. Ringer, 466 U.S. 602 (1984) 0.0... eee 25

Jama v. Immigr. and Cust. Enforcement, 125 S. Ct.

SE CITI iciiitndisnadiinniedincipinipbaidiataniaebusmiiiitendimesanlamalaia 21

Johnson v. Eisentrager, 339 U.S. 763 (1950)...11, 21, 22, 23

Jordan v. Tashiro, 278 U.S. 123 (1928) ..........0......00... 26, 27

Lindh v. Murphy, 521 U.S. 320 (1997).......... ccc cccecceseeeeeeeeees 3

Mali v. Keeper of the Common Jail, 120 US. 1

’ (1887), aff'g In re Wildenhus, 28 F. 924 (C.C.N.J.

NED anccccctetniiercsesniintnssndiniutinatiasneinniiitiaimnaaatiel passim

v

TABLE OF AUTHORITIES — Continued

Page

Marbury v. Madison, 5 U.S. 137 (1803)............ 2, 26, 28, 29

Medellin v. Dretke, 125 S. Ct. 2088 (2005) ............ ee 23

Patterson v. McLean Credit Union, 491 U.S. 164

AROSE eee eee eT ene en Re 7

Perrin v. United States, 444 U.S. 37 (1972)..................cccee 5

Rasul v. United States, 542 U.S. 466 (2004)................. 7, 22

Roberts v. United States, 176 U.S. 221 (1900)............ 28, 29

Societe Nationale Industrielle Aerospatiale v. U.S.

Dist. Court for the S. Dist. of Iowa, 482 U.S. 522

RARE RRS, ET i ott she ne TOs ee 27

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)............. 7,12

U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship,

SEER RTA EER Eee ae OE 21

United States v. N.E. Rosenblum Truck Lines, 315

SERRE CANE ON rs NO ae PS 4

United States v. Percheman, 32 U.S. (7. Pet.) 51

a cr a 15, 17, 18

United States v. Rauscher, 119 U.S. 407 (1886) ........ passim

Weinberger v. Rossi, 456 U.S. 25 (1982)........................ 4,5

Whitney v. Robertson, 124 U.S. 190 (1888)........... 15, 18, 19

CONSTITUTIONAL PROVISIONS, STATUTES, AND TREATIES

Ces Oe BE eicrivneccnscctsepetngenensscnntncnninatenvmensaiiapminaine + 25

ee ye i ciicteetenncninccntnn pienipntecntansitsecmnmetnnmaneeseinniten 2

Be CDs Sb CUE cnnapececcsosescnceseesersessestintomensniees 1, 3, 5, 10, 23

Act of Feb. 5, 1867, ch. 28, 14 Stat. 385..........................008 5

TABLE OF AUTHORITIES -— Continued

Page

Detainee Treatment Act of 2005, Title X, Dep’t of

Defense Appropriations Act of 2006, Pub. L. No.

SFR APRs SENT RRIRE PTET E IS FoR ere 3, 25

Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316............... 1

ee I NN iii aicenicciniieaniatl icelieeicati ieee ael 29

2 Go Oe FO Re ry ee 11

MISCELLANEOUS

3 DEBATES IN THE SEVERAL STATE CONVENTIONS ON

THE ADOPTION OF THE FEDERAL CONSTITUTION (J.

I 29

3 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND (Chicago, Univ. of Chicago

I 25, 26

151 ConG. REc. $14,253 (Dec. 21, 2005)...................... eee 25

ALEXANDER M. BURRILL, A LAW DICTIONARY AND

GLOSSARY (2d ed. Baker, Voorhis & Co. 1869) ................ 6

Carlos Manuel Vazquez, The Four Doctrines of Self-

Executing Treaties, 89 AM. J. INT'L L. 695 (1995) ......... 12

J. MADISON, JOURNAL OF THE CONSTITUTIONAL

CONVENTION (E. Scott ed. 1893) ............0..0. cece cece eee 12

1

INTEREST OF AMICUS CURIAE'

Amicus curiae Ibrahim Ahmed Mahmoud al Qosi is an

alien detainee currently being held at the U.S. military

installation in Guantamano Bay, Cuba. Mr. al Qosi was

initially detained by Pakistani authorities in December 2001,

and was turned over to the custody of the United States

military and transferred to Afghanistan soon thereafter. In

January 2002, Mr. al Qosi was flown to Guantanamo Bay.

On July 3, 2003, after over 500 days of confinement, he was

designated as one of the first six Guantanamo Bay detainees

to be tried by Military Commission. Mr. al Qosi has a case

pending before the United States-District Court for the

District of Columbia in which he is seeking, inter alia, a writ

of habeas corpus and a writ of mandamus.

SUMMARY OF ARGUMENT

The plain text of 28 U.S.C. § 2241(c)(3) (the “Habeas

Statute”) provides that individuals detained in violation of

any duly ratified treaty obligation, including the Geneva

Convention Relative to the Treatment of Prisoners of War,

Aug. 12, 1949, 6 U.S.T. 3316 (the “GPW”), may challenge

their detention in a habeas proceeding, regardless of the

presence of additional non-treaty legislation. Put another

way, the Habeas Statute implements all voluntarily

assumed treaty obligations, at least to the extent of

affording habeas relief. This straightforward reading of

the statutory text is confirmed by the undisturbed prece-

dent of this Court.

’ Letters of consent to the filing of this brief have been lodged with

the Clerk of Court pursuant to Rule 37.43. Pursuant to Rule 376,

counsel for amicus states that no counsel for a party authored this brief

in whole or in part and no person, other than amicus or his counsel,

made a monetary contribution to the preparation of this brief.

2

The court of appeals failed to acknowledge both the

plain text of the Habeas Statute and this Court’s prior

holdings. Even more, the court of appeals misstated the

role of treaties in our constitutional scheme. The Framers

of our Constitution intended most treaties to be judicially

enforceable in any appropriate proceeding, including

habeas, just like an act of Congress. This Court should

correct those errors and reiterate the proper place of

treaties in our country’s judicial system.

In the event the Court concludes that Petitioner may

not enforce his treaty rights under the GPW by means of a

petition for a writ of habeas corpus, mandamus relief is

necessary. Building on the common law right to manda-

mus, the modern Mandamus Act allows federal courts to

hear “any action” to compel government officials to per-

form their duties, including those created by treaties. 28

U.S.C. § 1391. As Chief Justice John Marshall stated in

1803, mandamus “ought to be used upon all occasions

where the law has established no specific remedy, and

where in justice and good government there ought to be

one.” Marbury v. Madison, 5 U.S. 137, 168-69 (1803). In

the absence of habeas relief, this is just such a case.

3

ARGUMENT

I. PETITIONER MAY ENFORCE HIS RIGHTS

UNDER THE GPW IN AN ACTION FOR A WRIT

OF HABEAS CORPUS.

A. The Plain Text of the Habeas Statute and This

Court’s Jurisprudence Provide for Habeas

Relief When an Individual Is Detained in Vio-

lation of United States Treaty Obligations.

1. The Plain Text of the Habeas Statute

Establishes That Individuals Held in

Violation of Treaty Obligations Are En-

titled to the Writ.

The Habeas Statute states: “The writ of habeas corpus

shall not extend to a prisoner unless ... {hje is in custody

in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2241(c\(3) (emphasis added).

Thus, according to the plain text of the statute, Congress

meant for the writ of habeas corpus to extend to prisoners

held in violation of not just the Constitution and laws of

the United States, but also the treaties thereof. The

language could not be more emphatic. Indeed, by using the

double disjunctive formulation “... or... or... ,” Con-

gress underscored its intent that treaty violations would

form am independent basis for affording habeas relief,

above and beyond such grounds as may exist under the

Constitution or laws of the United States.’

* The provisions of the Detainee Treatment Act of 2005 purporting

to amend 28 U.S.C. § 2241 do not apply to this case. Under Section

1005(hX1) of the Act, the changes to Section 2241 apply prospectively

only. See Detainee Treatment Act of 2005, Title X, Dep’t of Defense

Appropriations Act of 2006, Pub. L. No. 109-148 (stating that changes

“take effect on the date of the enactment of this Act;” i.e., December 30,

2005); see also Lindh v. Murphy, 521 U.S. 320 (1997).

4

A court’s goal in construing a statute is to ascertain

and carry out the intent of the legislature. See, e.g., Ail.

Mut. Ins. Co. v. Comm’r, 523 U.S. 382, 387 (1998) (stating

that a court “must give effect to the unambiguously

expressed intent of Congress”) (citation and internal

quotation marks omitted); United States v. N.E. Rosen-

blum Truck Lines, 315 U.S. 50, 53 (1942). The starting

point for analysis is the plain text of the statute. Good

Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993);

Ernst & Ernst v. Hochfelder, 425 U.S. 185, 200-01 (1976).

In the absence of ambiguity, the plain text is also the

ending point of the analysis. See, e.g., Barnhart v. Sigmon

Coal Co., Inc., 534 U.S. 438, 450 (2002) (“The inquiry

ceases if the statutory language is unambiguous and the

statutory scheme is coherent and consistent.”) (citation

and internal quotation marks omitted). Ambiguity is

defined as language “capable of being understood in two or

more possible senses or ways.” Chickasaw Nation uv.

United States, 534 U.S. 84, 90, 94 (2001) (citing WEBSTER’S

NINTH NEW COLLEGIATE DICTIONARY 77 (1985)).

The word “treaties” as used in the Habeas Statute is

not ambiguous. Any individual held in violation of any

ratified treaty of the United States is entitled to the Great

Writ. To be sure, the Court has found the word “treaties”

ambiguous in unrelated contexts. For example, in

Weinberger v. Rossi, 456 U.S. 25 (1982), the Court consid-

ered whether a statute prohibiting employment discrimi-

nation on military bases unless permitted by “treaty”

included even non-ratified Executive agreements. Jd. at

29-30 (citing 5 U.S.C. § 7201). The Court found the word

ambiguous on this score, and held that it should be con-

strued broadly enough to emcompass such agreements. Id.

The ambiguity feund in Weinberger is immaterial here,

however. The question now before the Court concerns only

whether duly ratified treaties such as the GPW are en-

forceable in a habeas preceeding. There is thus no need to

5

deliberate over the shades of gray raised by the extension of

the term “treaties” in Weinberger, and no reason exists to

deviate from a plain text reading of the statute in this case.

Moreover, this Court’s jurisprudence makes clear that

the existence vel non of ambiguity is to be determined by

reference to the historical context in which the statutory

terms were used. The question is not whether a term is

ambiguous in the mind of a contemporary observer, but

rather whether the term was capable of bearing more than

ome mearing at the time it was incorporated into the

statute. See, e.g. Amoco Prod. Co. v. S. Ute Tribe, 526 US.

865, 873 (1999) (analyzing whether coalbed methane gas

qualifies as “coal” within the meaning of the 1909 and

1910 Coal Lands Acts by looking to the common under-

standing of that term in 1909 and 1910); see also Perrin v.

United States, 444 U.S. 37, 42 (1972) (“... unless other-

wise defined, words will be interpreted as taking their

ordinary, contemporary, common meaning” at the time

Congress enacted the statute). The relevant text of

§ 2241(cX3) was added to the statute in 1867. See Act of

Feb. 5, 1867, ch. 28, 14 Stat. 385. At that time, the term

“treaties” contained no material ambiguity. Indeed, a

common understanding of treaties had emerged in both

the case law and legal treatises. Por example, taking into

consideration Chief Justice Marshall’s opinion in Foster v.

Neilson, 27 U.S. (2 Pet.) 253 (1829), an 1869 treatise

defined the term as follows: P

In international law. An agreement between two

or more independent states. An agreement,

league, or contract between two or more nations

or sovereigns, formally signed by commissioners

properly authorized, and solemnly ratified by the

several sovereigns, or the supreme power of each

state.

6

A treaty is, in its nature, a contract between two

nations; not a legislative act. It does not gener-

ally effect of itself the object to be accomplished,

especially so far as its operation is infra-

territorial, but is carried into execution by the

sovereign power of the respective parties to the

instrument.

In the United States, a different principle is es-

tablished. Our constitution declares a treaty to

be the law of the land. It is, consequently, to be

regarded in courts of justice as equivalent to an

act of the legislature, whenever it operates of it-

self, without the aid of any legislative provi-

sion... .

ALEXANDER M. BURRILL, A LAW DICTIONARY AND GLOSSARY

543 (2d ed. Baker, Voorhis & Co. 1869) (internal citations

omitted). Because it is an “agreement, league, or contract

between two or more nations or sovereigns, formaily

signed by commissioners properly authorized, and sol-

emnly ratified,” there can be no doubt that the GPW i is a

“treaty” within the scope of the Habeas Statute as drafted

by the 1867 Congress. The Court need look no further than

the plain text of the Habeas Statute to answer the ques-

tion presented. Because the proposed military commission

trial of Petitioner violates the GPW, he is entitled to a writ

of habeas corpus."

* For a discussion of the distinction between treaties that “operate

of themselves” and those that do not, see infra, Section (1)(B\(2).

* It is beyond the scope of this amicus brief to argue the various

ways in which the proposed trial by military commission of Mr.

Hamdan (and amicus curiae, Mr. al Qosi) violate the GPW. Those issues

are addressed in Petitioner’s brief and by other amici.

7

2. This Court Has Repeatedly Held That

Habeas Relief Is Available for Treaty

Violations.

This Court has confirmed this straightforward read-

ing of the Habeas Statute on repeated occasions. E.g., Mali

uv. Keeper of the Common Jail, 120 U.S. 1 (1887) (hereinaf-

ter “Wildenhus”), aff’g In re Wildenhus, 28 F. 924 (C.C.NwWJ.

1887); United States v. Rauscher, 119 U.S. 407 (1886).

These cases carry particular weight for at least two rea-

sons. First, prior interpretation of a statute is binding in

later cases interpreting the same statute. Patterson v.

McLean Credit Union, 491 U.S. 164, 172-73 (1989) (“Con-

siderations of stare decisis have special force in the area of

statutory interpretation, for here, unlike in the context of

constitutional interpretation, the legislative power is

implicated, and Congress remains free to alter what we

have done.”), superseded by statute, Civil Rights Act of

1991, Pub. L. No. 102-166, 105 Stat. 1071; Rasul v. United

States, 542 U.S. 466, 493 (2004) (Scalia, J., dissenting)

(referring to the “almost categorical rule of stare decisis in

statutory cases”). Second, insofar as Wildenhus and

Rauscher were decided in the years more closely following

enactment of the 1867 Habeas Statute, they best articu-

late the intent of the Reconstruction Era Congress. See

Sosa v. Alvarez-Machain, 542 U.S. 692, 700-02 (2004)

(citing contemporaneous case law and commentary to

construe the Alien Tort Claims Act).

In Wildenhus, supra, the Consul of Belgium had filed

a petition for a writ of habeas corpus for the release from a

New Jersey jail of three Belgian citizens, one charged with

murder of a fellow Belgian on board a Belgian ship docked

in New Jersey and two held to serve as witnesses at trial

against the first. The Consul based his petition on a treaty

between the United States and Belgium which provided

that the respective consuls “shall have exclusive charge of

——

8

the internal order” of merchant vessels of their nations,

and argued.that New Jersey did not have jurisdiction over

a crime taking place between Belgians on a Belgian ship.

The Court framed the issue presented as follows:

By §§ 751 and 753 of the Revised Statutes [where

what is now § 2241(c)\(3) was then codified] the

courts of the United States have power to issue

writs of habeas corpus which shall extend to

prisoners in jail when they are ‘in custody in vio-

lation of the constitution or a law or treaty of the

United States,’ and the question we have to con-

sider is, whether these prisoners are held in vio-

lation of the provisions of the existing treaty

between the United States and Belgium.

120 U.S. at 11. With no further inquiry, citation, or justifi-

cation aside from the plain language of the Habeas Stat-

ute, the Court concluded that the treaty between the

United States and Belgium could serve as a basis for

habeas relief. It stated:

The treaty is part of the supreme law of the United

States, and has the same force and effect in New

Jersey that it is entitled to elsewhere. If it gives the

consul of Belgium exclusive jurisdiction over the

offence which it is alleged has been committed

within the territory of New Jersey, we see no rea-

son why he may not enforce his rights under the

treaty by writ of habeas corpus in any proper

court of the United States.

Id. at 17 (emphasis added). The Court’s language is

striking and shows that the text of the Habeas Statute

could not be more clear — “we see no reason why he may

not enforce his rights under the treaty by writ of habeas

corpus....” Jd. From the Court’s perspective, the only

hard question was whether the crimes at issue fell within

the scope of the treaty. Although the Court ultimately held

that they did not, id. at 17-18, this in no way minimizes

9

the import of the holding on the enforceability of treaty

rights on habeas.

In Rauscher, supra, decided one year before Wilden-

hus, the Court similarly underscored the availability of

habeas relief for treaty violations. In that case, defendant

Rauscher was extradited to the United States from Great

Britain pursuant to an 1842 extradition treaty. In contra-

vention of the treaty, Rauscher was indicted for and

convicted of a crime different from the one with which he

had been charged in the extradition proceedings. 119 U.S.

at 409. Before judgment was entered, the Circuit Court

certified the question of the propriety of the conviction to

this Court. Jd. The Court concluded that the indictment

and conviction were improper because they ran afoul of

the extradition treaty. Jd. at 430. After first reviewing at

length the importance of treaties in American law, id. at

418-20, the Court considered the remedies available to

detainees in circumstances like Rauscher’s. By way of

example, the Court noted that defendants could proceed by

“writ of error from the Supreme Court of the United States

to the state court which may have committed such an error.

The case being thus removed into that court, the just effect

and operation of the treaty upon the rights asserted by the

prisoner would be there decided.” Jd. at 431. More signifi-

cantly for present purposes, the Court also ruled:

If the party, however, is under arrest and desires

a more speedy remedy in order to secure his re-

lease, a writ of habeas corpus from one of the

Federal judges or Federal courts, issued on the

ground that he is restrained of his liberty in vio-

lation of the Constitution or a law or a treaty of

the United States, will bring him before a Fed-

eral tribunal, where the truth of that allegation

can be inquired into, and, if it be well founded, he

will be discharged.

10

Id. (emphasis added). The Court concluded by declaring:

This is a complete answer to the proposition that

the rights of persons extradited under the treaty

cannot be enforced by the judicial branch of the

government, and that they can only appeal to the

executive branches of the treaty governments for

redress.

Id. (emphasis added).

Consistent with the text of 28 U.S.C. § 2241(c)(3), this

Court has thus repeatedly ruled that individuals held in

violation of the treaty obligations of the United States are

entitled to a writ of habeas corpus. Interestingly, in both

Rauscher and Wildenhus the Court did not concern itself

with the questica of whether or not the relevant treaty

obligations were accompanied by additional non-treaty

legislation. Instead, in line with the Supremacy Clause,

see infra, Section (I)(B)(1), the Court assumed that all

ratified treaties are the law of the land and read the

Habeas Statute itself to afford a basis for relief for treaty

violations. The only pertinent question was whether the facts

presented amounted to a violation of the treaties at issue.

B. The Court of Appeals Not Only Ignored the

Text of the Habeas Statute and This Court’s

Precedent, It Misunderstood the Role of

Treaties in Our Constitutional Scheme.

The court of appeals erroneously ruled that a violation .

of the GPW cannot form the basis of a successful habeas

action. Hamdan v. Rumsfeld, 415 F.3d 33, 38-40 (D.C. Cir.

2005). In so doing, it ignored both the plain text of the

Habeas Statute and this Court’s prior holdings in

Rauscher and Wildenhus. Indeed, the lack of careful

consideration by the court of appeals is demonstrated in

the first instance by the fact that it did not mention, much

11

less come to grips with the implications of, either decision.

The court of appeals’ decision was based on two ostensible

reasons: (1) treaties “do not create judicially enforceable

individual rights,” and (2) the lower court considered itself

bound by footnote dictum from Johnson v. Eisentrager, 339

U.S. 763 (1950), to the effect that “responsibility for

observance and enforcement of . . . {rights protected by the

1929 Geneva Convention] is upon political and military

authorities.” Hamdan, 415 F.3d at 39-41 (citing Eisen-

trager, 339 U.S. at 789 n.14). It was wrong on both counts.

The court of appeals’ error was more fundamental

than merely ignoring the statutory text and overlooking

binding precedent from this Court that refutes EHisen-

trager. It misconstrued the place of treaties in the consti-

tutional order the Framers designed, as well as the duty of

United States courts to adjudicate treaty-based claims.

Put differently, it is not surprising the court of appeals

incorrectly concluded that treaty violations were not

cognizable in habeas because it misunderstood the judici-

ary’s general obligation to enforce treaty rights in any

appropriate proceeding, including habeas.

1. The Framers of Our Constitution In-

tended Most Treaties To Be Judicially

Enforceable.

The Supremacy Clause states: “This Constitution, and

the Laws of the United States which shall be made in

Pursuance thereof; and all treaties made, or which shall be

made, under the Authority of the United States, shall be

the supreme Law of the Land.” U.S. Const. art. VI, cl. 2.

In construing this language, it is important to understand

the Framers’ purpose in including it. Under the prevailing

British common law at the time the Constitution was

drafted, treaties of the United Kingdom did not constitute

the law of the land, and did not provide rules of decision in

12

court, absent implementing legislation from Parliament.

See Carlos Manuel Vazquez, The Four Doctrines of Self-

Executing Treaties, 89 Am. J. INT'L L. 695, 697-98 (1995).

Owing in part to the experience under the Articles of

Confederation, during which period states routinely

flouted federal treaty mandates, the Framers specifically

chose to adopt the contrary rule in the new Constitution.

See Sosa, 542 U.S. at 716 (“The Continental Congress was

hamstrung by its inability to ‘cause infractions of treaties,

or of the law of nations to be punished.’” (quoting J.

MADISON, JOURNAL OF THE CONSTITUTIONAL CONVENTION

60 (E. Scott ed. 1893))). The Supremacy Clause was

designed specifically to make this change clear. See

Vazquez, supra, at 699 (stating that the Supremacy Clause

was adopted “to avert violations of treaties attributable to

the United States, and ... the Founders sought to accom-

plish this goal by making treaties enforceable in the courts

at the behest of affected individuals without the need for

additional legislative action, either state or federal”). In

other words, the Supremacy Clause was included in the

Constitution to confirm that in the United States a treaty

would carry the same weight and equally provide rules of

decision in court as an act of Congress.

The Court’s Rauscher opinion makes clear the distinc-

tion between the British and American rules on the applica-

bility of treaties in domestic law. In evaluating the question

before it — whether Rauscher’s indictment and conviction

violated the Anglo-American extradition treaty — the Court

looked first for relevant judicial authority from Great Brit-

ain. It found little, “for the reason that treaties made by the

crown of Great Britain with other nations are not in those

courts considered as part of the law of the land, but the

rights and the duties growing out of those treaties are

looked upon in that country as matters confided wholly for

13

their execution and enforcement to the executive branch of

the government.” Rauscher, 119 U.S. at 417.”

The Court then went on to review its own jurispru-

dence, pausing first upon Chief Justice Marshall’s opinion

in Foster v. Neilson, supra, in which he stated: j

A treaty is in its nature a contract between two

nations, not a legislative act.... In the United

States a different principle is established. Our

constitution declares a treaty to be che law of the

land. It is consequently to be regarded in courts

of justice as equivalent to an act of the legisla-

ture whenever it operates of itself, without the

aid of any legislative provision. ...

Rauscher, 119 U.S. at 418 (citing Foster, 27 U.S. (2 Pet.) at

314). The Court next turned to the Head Money Cases, 112

U.S. 580 (1884), in which the Court again observed that a

“treaty is primarily a compact between independent

nations.” 119 U.S. at 418 (quoting Head Money Cases, 112

U.S. at 598). However, it went on:

But a treaty may also contain provisions which

confer certain rights upon the citizens or subjects

of one of the nations residing in the territorial

limits of the other, which partake of the nature of

municipal law, and which are capable of en-

forcement as between private parties in the

courts of the country. ... The Constitution of the

United States places such provisions as these in

the same category as other laws of Congress [in

the Supremacy Clause]. A treaty, then, is a law of

* The Court’s analysis also cites an 1867 English treatise distin-

guishing the domestic application of treaties in both countries: “in

England, {relevant treaty) provision{s] could not come into effect

without an act of parliament, but in the United States a treaty is as

binding as an act of congress.” Jd. (citing Clarke, Ext. 38 (1867))

(internal quotation marks omitted).

14

the land, as an act of Congress is, whenever its pro-

visions prescribe a rule by which the rights of the

private citizen or subject may be determined. And

when such rights are of a nature to be enforced in a

court of justice, that court resorts to the treaty for a

rule of decision for the case before it as it would to

a statute.

Rauscher, 119 U.S. at 418-19 (quoting Head Money Cases,

112 U.S. at 598-99) (internal quotations omitted). From these

principles, the Court concluded that the 1842 extradition

treaty was “the supreme law of the land, which the courts

are bound to take judicial notice of, and to enforce in any

appropriate proceeding the rights of persons growing out of

that treaty,” including habeas. Jd. at 419.

2. The Court of Appeals Misconstrued

This Court’s Precedent on the Judicial

Enforceability of Treaties.

The court of appeals misunderstood this Court’s juris-

prudence to stand for the proposition that treaties depend

for enforcement only on the “interest and honor” of states

parties, and from this concluded that violations of treaties

are not judicially cognizable. Hamdan, 415 F.3d at 38-39.

But as even the summary discussion of Foster, the Head

Money Cases and Rauscher above makes clear, the court of

appeals’ conclusion turns this Court’s precedents on their

head.

The court of appeals, for instance, cited the Head

Money Cases for the idea that “a treaty is primarily a

compact between nations,” and “depends for the enforce-

ment of its provisions on the interest and honor of the

government which are parties to it.” Hamdan, 415 F.3d at

39 (citing Head Money Cases, 112 U.S. at 598). Yet, the

15

real import of the Head Money Cases is found in the

language that begins where the court of appeals’ analysis

ends. As discussed above, the full quotation of the Court in

the Head Money Cases in fact explained that many trea-

ties are judicially enforceable from the moment they are

ratified because when treaty “rights are of a nature to be

enforced in a court of justice, that court resorts to the

treaty for a rule of decision for the case before it as it

would to a statute.” 119 U.S. at 418-19. Thus, rather than

supporting the court of appeals’ reasoning, the decision in

the Head Money Cases, fairly read, contradicts it.

The court of appeals similarly misunderstood the

other cases it cited for the proposition that if a treaty is

violated, it ““‘becomes the subject of international negotia-

tions and reclamation,’ not the subject of a lawsuit.”

Hamdan, 415 F.3d at 38-39 (citing Head Money Cases, 112

U.S. at 598; Charlton v. Kelly, 229 U.S. 447, 474 (1913);

Whitney v. Robertson, 124 U.S. 190, 194-95 (1888); and

Foster, 27 U.S. (2 Pet.) at 306, 314, overruled on other

grounds, United States v. Percheman, 32 US. (7. Pet.) 51

(1833)). As it did with the Head Money Cases, the court of

appeals relied on carefully excised phrases taken out of

context, and failed to consider the totality of those opin-

ions. Properly read, those cases, just like the Head Money

Cases, contemplate that the majority of treaties may in

fact become “the subject of a lawsuit.”

The two oldest cases, Foster and Percheman, show

that the Court fully expected that the judiciary would

adjudicate treaty-based claims, so long as the treaty

concerned fell within the broad category of treaties that

operate of themselves, “without the aid of the legislature.”

Foster, 27 U.S. (2 Pet.) at 314. Foster involved a land title

dispute in which the Court was charged with determining

the applicability of the 1819 “treaty of amity, settlement,

and limits” in which Spain ceded all of its territory east of

16

the Mississippi River to the United States. The treaty

stipulated that all Spanish land grants made before

January 24, 1818, “shall be ratified and confirmed to the

persons in possession of the lands, to the same extent that

the same grants would be valid if the territories had

remained under the dominion” of the Spanish king. Jd. at

310 (emphasis added). While the plaintiff argued that the

treaty affirmed the property rights Spain had earlier

granted his predecessor in interest, the defendant asserted

that Spain did not have title to the land at the time it

made its initial grant. In his ruling, Chief Justice Mar-

shall articulated for the first time what has since come to

be understood as the dichotomy between “self-executing”

and “non-self-executing” treaties. He wrote:

Our constitution declares a treaty to be the law

of the land. It is consequently to be regarded in

courts of justice as equivalent to an act of the leg-

islature whenever it operates of itself, without

the aid of any legislative provision; but when the

terms of the stipulation import a contract, when

either of the parties engages to perform a par-

ticular act, the treaty addresses itself to the po-

litical, not the judicial, department; and the

legislature must execute the contract before it

can become a rule for the court.

Id. at 314. To discern whether the treaty “operated of

itself” or instead “imported a contract” promising future

action by the legislature, the Court looked no further than

the text of the treaty itself:

The article under consideration does not declare

that all the grants made by his catholic majesty

before the 24th of January 1818, shall be valid to

the same extent as if the ceded territories had

remained under his dominion. It does not say

that those grants are hereby confirmed. Had such

been its language, it would have acted directly on

17

the subject, and woula have repealed those acts of

congress which were repugnant to it; but its lan-

guage is that those grants shall be ratified and

confirmed to the persons in possession, &c. By

whom shall they be ratified and confirmed? This

seems to be the language of a contract; and if it

is, the ratification and confirmation which are

promised must be the act of the legislature.

Id. at 314-15 (emphasis added). Thus, the 1819 treaty

could not serve as a rule of decision, but only because it

did not “declare” or “confirm” the rights of the pre-1818

Spanish grantees. Rather (at least as initially construed in

Foster), it explicitly contained executory elements contem-

plating an-intervening act of Congress. Justice Marshall’s

opinion thus makes clear the limited nature of the cate-

gory of treaties that “import a contract” requiring execu-

tion. Only those treaties that expressly contain executory

undertakings that require additional action to complete

are included. In all other cases, whenever a treaty declares

or affirms rights, it is “to be regarded in courts of justice as

equivalent to an act of the legislature.” Jd. at 314. Accord-

ingly, the Chief Justice’s analysis in Foster demonstrates

that any ratified treaty that declares the rights of indi-

viduals, and does not expressly “import a contract” requir-

ing something else to be done, is equivalent to an act of the

legislature and must be enforced by the judiciary as it

would an act of Congress.

Interestingly, in the Percheman case four years later,

the Court confirmed that treaties that declare rights can

in fact create rules of decision in our courts without

further action by Congress. As did Foster, Percheman

involved a land title dispute implicating the 1819 treaty of

amity, settlement, and limits between Spain and the

United States. This time, the Court had both the Spanish

and English texts of the treaty before it, and determined

that the Spanish text provided that Spanish land grants

18

prior to 1818 “shall remain ratified and confirmed to the

persons in possession of them ... ” 32 U.S. (7 Pet.) at 88

(emphasis added). The Court held that the English and

Spanish versions of the treaty could “without violence, be

made to agree,” id., and that even though the English

version presented in Foster stated that pre-1818 Spanish

land grants “shall be ratified and confirmed,” these words,

on reexamination in light of the Spanish text, did not

necessarily contemplate some future legislative act, but

rather “may import that ... [the land grants] ‘shall be

ratified and confirmed’ by force of the instrument itself.”

Id. at 89. Thus, when faced with conflicting translations of

key treaty provisions — one supporting a reading in which

the treaty “operated of itself” and the other supporting a

reading which “imported a contract” — Chief Justice

Marshal! chose the former, and proceeded to apply the

provisions of the treaty to the dispute before him.

Taken together, Foster and Percheman demonstrate that

from its earliest years, this Court has recognized the judici-

ary’s constitutional role in enforcing treaty-based rights,

excepting only those limited cases where the terms of the

treaty itself contain executory elements unambiguously

leaving work to be done by the political branches and promis-

ing that such work will be done (i.e., “import a contract”).

Whitney v. Robertson, also cited by the court of ap-

peals, underscores the status of treaties in our constitu-

tional scheme, not their lack of enforceability. In that case,

plaintiffs argued that they should not be required to pay

duties on sugar imported from the Republic of San Do-

mingo because a bilateral treaty with the United States

required that goods from that country be admitted to the

United States on the same terms as similar goods from

any other foreign country. 124 U.S. at 191. The Court

rejected plaintiff’s claim, and held that legislation author-

izing the exaction of duties passed subsequent to the

19

ratification of the treaty superseded the treaty’s provi-

sions. Jd. at 194. The Court’s analysis was, however, based

on the conventional principle that “the one last in date will

control the other.” Jd. Even so, the Court emphasized the

importance of treaties in the framework of our Constitu-

tion. It stated: “By the Constitution a treaty is placed on

the same footing, and made of like obligation, with an act

of legislation. Both are declared by that instrument to be

the supreme law of the land, and no superior efficacy is

given to eithér over the other.” Jd. Thus, contrary to the

position adopted by the court of appeals, treaties do not

have any less force and effect in our legal system than

legislation. They are entitled to equal respect and the

courts should be no less vigilant in monitoring fidelity to

one than the other.

Charlton v. Kelly, the last decision cited by the court

of appeals for the contention that treaties cannot “become

the subject of a lawsuit,” actually proves the opposite point

— the judiciary has the obligation to enforce treaty-based

rights and duties. At issue in Charlton was an extradition

treaty between the United States and Italy that required

that both governments deliver up all “persons” charged

with committing specified crimes in one country and then

seeking refuge in the other. 229 U.S. at 465. Defendant

Charlton, a U.S. citizen, sought habeas relief because,

while Italy consistently interpreted the word “persons” to

exclude its own citizens, the United States regularly

extradited its own citizens for crimes committed in Italy.

Id. at 475. This Court affirmed the lower court’s denial of

the habeas petition. In so doing, the Court observed that

the United States may have had the right to abrogate the

treaty at one time, but had waived any such right by

continuing to deliver up its own citizens. The concluding

line of the Court’s opinion is a resounding statement of the

judiciary’s role in treaty enforcement:

20

The executive department having thus elected to

waive any right to free itself from the obligation

to deliver up its own citizens, it is the plain duty

of this court to recognize the obligation to sur-

render the appellant as one imposed by the

treaty as the supreme law of the land and as af-

fording authority for the warrant of extradition.

Id. at 476.

As the foregoing discussion makes clear, the court of

appeals’ opinion is based on a fundamental misreading of

this Court’s decisions concerning the place of treaties in

American law. The anti-treaty bias reflected in the court of

appeals’ opinion is contrary to the scheme crafted by the

Framers of our Constitution and set out in the Supremacy

Clause. Although a narrow category of treaties explicitly

containing executory elements may not be judicially

enforceable without the requisite legislative action, this

Court has repeatedly underscored the judiciary’s role in

ensuring compliance with a broader set of treaty-based

rights and duties. Viewed against this background, there

is nothing remarkable about the ease with which the

Court in Wildenhus and Rauscher concluded that habeas

claims may be grounded on treaty violations. Especially

given the plain text of the Habeas Statute, in which the

1867 Congress so explicitly reiterated the importance of

treaty-based rights, this Court should conclude that the

GPW declares rights that are enforceable upon petition for

a writ of habeas corpus.°

* Even were one to accept the court of appeals’ erroneous conclu-

sion that treaties generally require legislative execution in order to

become “the subject of a lawsuit,” the Habeas Statute itself can be read

to implement any and all ratified treaty obligations, at least to the

extent of affording habeas relief.

21

3. The Footnote Dicta in Eisentrager Does

Not Answer the Question Presented.

The court of appeals erred further in concluding that

footnote 14 of this Court’s opinion in Johnson v. Eisen-

trager, supra, answered the question about the applicabil-

ity of the GPW in the negative.’ It did not. The Court’s

statements in footnote 14 constituted dictum and, as such,

are without precedential value. Time and time again, this

Court has explained that, “[djictum settles nothing, even

in the court that utters it.” Jama v. Immigration and

Customs Enforcement, 125 S. Ct. 694, 706 (2005); see also

U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S.

18, 24 (1994) (invoking the Court’s “customary refusal to

be bound by dicta”).

The opening line of Justice Jackson’s majority opinion

in Eisentrager states: “The ultimate question in this case

is one of jurisdiction of civil courts of the United States vis-

a-vis military authorities in dealing with enemy aliens

overseas.” 339 U.S. at 765. The Court answered this

question by holding that nonresident enemy aliens cap-

tured and held overseas have no constitutional right to be

heard in U.S. courts. See id. at 781. The brief footnote

discussing the petitioners’ right to enforce the 1929 Geneva

Convention was irrelevant to this disposition. Once the

* Footnote 14 states, “We are not holding that these prisoners have

no right which the military authorities are bound to respect. The

United States, by the Geneva Convention of July 27, 1929, 47 Stat.

2021, concluded with forty-six other countries, including the German

Reich, an agreement upon the treatment to be accorded captives. These

prisoners claim to be and are entitled to its protection. It is, however,

the obvious scheme of the Agreement that responsibility for observance

and enforcement of these rights is upon political and military authori-

ties. Rights of alien enemies are vindicated under it only through

protests and intervention of protecting powers as the rights of our

citizens against foreign governments are vindicated only by Presiden-

tial intervention.” 339 U.S. at 789 n.14.

22

Court determined that it lacked jurisdiction, any discussion

of the merits of petitioners’ treaty claims was unnecessary

and therefore dictum. Indeed, in his dissenting opinion,

Justice Black pointed out that the entire section of the

majoritys opinion in which footnote M appears was

composed of “gratuitous conclusions.” Jd. at 794.

Even as-the Eisentrager majority dropped a footnote

to record its view that the petitioners could not themselves

enforce their rights under the 1929 Geneva Convention, it

proceeded to consider their treaty-based claims on the

merits in the next two paragraphs of the opinion’s text. See

id. at 789-90. Thus, the Court itself underscored the

gratuitous nature of its observation by disregarding it in

subsequent portions of its decision. |

The court of appeals’ reliance on Eisentrager’s footnote

dictum was particularly misplaced in light of this Court’s

more considered opinions addressing the enforceability of

treaty rights under the Habeas Statute in Wildenhus and

Rauscher, supra. These decisions, closer in time to the

passage of the Habeas Statute and never overturned by

legislative action, were not even cited, much less over-

ruled, by Eisentrager. As such, Eisentrager was doubly

dubious as precedent, particularly on a question of such

great import. See Rauscher, 119 U.S. at 431 (stating that

the availability of habeas relief “is a complete answer to

the proposition that the rights of persons extradited under

the treaty cannot be enforced by the judicial branch of the

government, and that they can only appeal to the execu-

tive branches of the treaty governments for redress”).

The court of appeals’ reliance on the Eisentrager

footnote was ill-advised for still another reason. As this

Court addressed at some length in Rasul, supra, the Eisen-

trager opinion concerned only petitioners’ constitutional

right to habeas, not the distinct statutory rights created by

the Habeas Statute. See Rasul, 542 U.S. at 476-79. Even

23

accepting that footnote 14 constituted part of Eisentrager's

holding (which it did not), and that it overruled Wildenhus

and Rauscher sub silentio (which it also did not), the most

that could be concluded from it is that detainees have no

constitutional right to habeas relief premised on treaty

violations. This, of course, is a different question from the

one presented here; that is, whether federal detainees

have a statutory right to habeas relief when the Executive

violates voluntarily assumed treaty obligations. Because

the Habeas Statute, as repeatedly construed by this Court,

so clearly provides that they de Eisentrager is incapable of

bearing the weight the court of appeals tried to put on it.

C. The GPW Can Be Applied in This Case.

As the foregoing analysis demonstrates, Mr. Hamdan is

entitled to a writ of habeas corpus based on violations of the

GPW. The Convention is a ratified treaty of the United

States, and it declares nights which are capable of being

violated by Executive detention.” See 28 U.S.C. § 2241(c)(3).

* The Convention repeatedly refers to itself as a rights-conferring

instrument. For example, Article 6 states that High Contracting Parties

may not make special agreements that “adversely affect the situation of

prisoners of war, as defined by the present Convention, nor restrict the

rights which it confers upon them.” GPW, art. 6. Similarly, Article 7

states that “[plrisoners of war may in no circumstances renounce in

part or in entirety the rights secured to them by the present Convention

... " Id., arts. 6, 7 (emphasis added). Still further, in Article 5, the

Convention states that if there is any doubt about whether a person is a

prisoner of war as defined by Article 4, they “shall enjoy the protection

of the present Convention until such time as their status has been

determined by a competent tribunal.” /d., arts. 4, 5 (emphasis added).

The use of the phrase “protection of this Convention” signifies that the

Convention acts of itself to impart rights to individuals. Cf. Medellin v.

Drethe, 125 S. Ct. 2088, 2104 (2005) (observing that the Court “has

repeatedly enforced treaty-based rights of individual foreigners, allowing

them to assert claims arising from various treaties,” even in the absence

of any “special magic words” in the text of those treaties.) (O’Connor,

(Continued on following page)

24

Nothing more is required either under the Habeas Statute

or this Court’s precedent. Indeed, this case follows a

fortiori from Wildenhus, in which the Court held that

there was “no reason why” a writ for habeas corpus could

not issue. 120 U.S. at 17. The treaty there gave the Bel-

gian Consul in the United States “exclusive charge” over

crimes committed by Belgian nationals on board Belgian

ships. When three Belgian citizens were detained in New

Jersey as a result of an incident on board a Belgian ship,

the Consul brought a habeas action seeking the release of

his fellow citizens. Mr. Hamdan’s case is stronger than the

Belgian Consul’s for at least two reasons. First, here it is

Mr. Hamdan himself who is being detained in violation of

the applicable treaty. His rights are thus being more

directly impinged by Executive action. Second, the rights-

declaring character of the GPW is much more obvious that

the jurisdictional treaty at issue in Wildenhus. Given that

the Belgian Consul was capable of using a treaty-based

guarantee of exclusive jurisdiction to effect the release of

others, there is even less “reason why” Mr. Hamdan

cannot enforce his more obvious rights under the GPW “by

writ of habeas corpus in any proper court of the United

States.” Id.

Il. IN THE EVENT THE COURT FINDS THAT A

PETITION FOR A WRIT OF HABEAS CORPUS

IS NOT THE APPROPRIATE VEHICLE FOR

PETITIONER TO ENFORCE HIS TREATY

RIGHTS UNDER THE GPW, MANDAMUS RE-

LIEF IS NECESSARY.

If the Court concludes notwithstanding the text of the

Habeas Statute and the weight of precedent that Mr.

Stevens, Souter, and Breyer, JJ., dissenting) (citing Asakura v. Seattle,

265 U.S. 332 (1924) and Kolovrat v. Oregon, 366 U.S. 187 (1961)).

25

Hamdan may not enforce his treaty rights under the GPW

by means of a petition for a writ of habeas corpus, a writ of

mandamus is necessary.”

28 U.S.C. § 1361 provides that district courts have

jurisdiction over “any action in the nature of mandamus to

compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.” 28

U.S.C. § 1361 (emphasis added). This section codifies the

common law of mandamus and make writs of mandamus

available to the same extent as afforded at common law.

See Heckler v. Ringer, 466 U.S. 602, 616 (1984). As stated

in BLACKSTONE’S COMMENTARIES, the use of mandamus to

enforce individual rights existed under the British legal

system long before the founding of this nation: “A writ of

mandamus is, in general, a command ... directed to any

person,. corporation, or inferior court of judicature ...

requiring them to do some particular thing therein speci-

fied [which is] consonant to right and justice.” 3 WILLIAM

* As noted above, see supra n. 2, the Detainee ‘Treatment Act does

not alter the application of the Habeas Statute to this case. Neither

does it effect the availability of mandamus relief. Indeed, even if the

changes to 28 U.S.C. § 2241 are construed to apply retrospectively to

deprive the courts of habeas jurisdiction in pending cases, mandamus

jurisdiction over this case remains. Although the newly created section

2241(e(2) purports also to deprive the courts of jurisdiction over “any

other action ... relating to any aspect of the detention” by Guantanamo

detainees, Detainee Treatment Act § 1005(e)(1), this action does not

relate to any aspect of Petitioner's “detention.” Rather, it relates to the

Executive's attempt to try him and others similarly situated before an

unlawful military commission in contravention of his GPW rights. See

151 CONG. REc. $14,253 (Dec. 21, 2005) (“[T]he language in Section

{1005(e(2)] that prohibits ‘any other action against the United States’

applies only to suits brought relating to an ‘aspect of detention by the

Department of Defense.’ Therefore, it is my understanding that this

provision would not affect the ongoing litigation in Hamdan v. Rumsfeld

before the Supreme Court because that case involves a challenge to trial

by military commission, not to an aspect of a detention... .”) (statement

of Sen. Feingold).

26

BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 110

(Chicago, Univ. of Chicago Press 1979) (1768) (emphasis in

original). “For it is the peculiar business of the court” to

enforce “the due exercise of [nondiscretionary] judicial or

ministerial powers ... not only by refraining their ex-

cesses, but also by quickening their negligence, and

obviating their denial of justice.” Jd. at 110-11.

The enduring importance of mandamus in American law

was cemented by Marbury v. Madison. Quoting Lord Mans-

field, Chief Justice Marshall stated:

“Whenever ... there is a right to execute an of-

fice, perform a service, or exercise a franchise

(more specifically if it be in a matter of public

concern, or attended with profit) and a person is

... dispossessed of such right, and has no other

specific legal remedy, this court ought to assist by

mandamus, upon reasons of justice, as the writ

expresses, and upon reasons of public policy. . . .”

In the same case, he says, “this writ ought to be

used upon all occasions where the law has estab-

lished no specific remedy, and where in justice

and good government there ought to be one.”

5 U.S. at 168-69.

This Court has long recognized that writs of manda-

mus may issue to direct compliance with duties created

not only by the Constitution and laws of the United States,

but also by treaties. In Jordan v. Tashiro, 278 U.S. 123

(1928), for example, Japanese aliens residing in California

sought a writ of mandamus to the Secretary of State of

California to secure the right to form business enterprises

as provided in the Treaty of Commerce and Navigation

between the Government of the United States and the

Empire of Japan. Jd. at 124. The Court granted the writ,

finding that (1) the treaty granted Japanese citizens the

privilege of carrying on trade within the United States,

27

and (2) the Secretary erred by giving the terms thereof an

unduly narrow reading. Jd. at 126-28. In reaching its

holding, the Court recognized:

The principles which should control the diplo-

matic relations of nations, and the good faith of

treaties as well, require that their obligations

should be liberally construed so as to effect the

apparent intention of the parties to secure equal-

ity and reciprocity between them. Upon like

ground, where a treaty fairly admits of two con-

structions, one restricting the rights that may be

claimed under it and the other enlarging them,

the more liberal construction is preferred.

Id. at 127.

More recently, the Court took up the question of

whether petitioners may enforce the Hague Convention on

the Taking of Evidence Abroad in Civil or Commercial

Matters by seeking a writ of mandamus. Societe Nationale

Industrielle Aerospatiale v. U.S. Dist. Court for the S. Dist.

of Iowa, 482 U.S. 522 (1987). Although it ultimately denied

the writ because the treaty in question was “intended as a

permissive supplement, not a pre-emptive replacement” of

other methods of securing evidence, the Court nonetheless

evaluated the petitioners’ claim on the merits. Jd. at 536.

In so doing, it necessarily recognized the continuing

validity of enforcing treaty rights in an action for manda-

mus.

Under this Court’s precedent, mandamus may issue if:

the party seeking the relief has “no other adequate means

to attain the relief he desires”; the “right to issuance of the

writ is ‘clear and indisputable’”; and the issuing court is

“satisfied that the writ is appropriate under the circum-

stances.” Cheney v. U.S. Dist. Court for the Dist. of Colum-

bia, 542 U.S. 367, 380-81 (2004) (internal citations

omitted). If the Court finds that a petition for a writ of

28

habeas corpus is not the appropriate vehicle for Mr.

Hamdan and other detainees similarly situated to enforce

their treaty rights under the GPW, there would be “no

other adequate means to attain the relief” they seek than

mandamus. See id. In such event, and especially in light of

the importance of treaties in our constitutional scheme as

discussed at length in Section (1)(B) above, there could be

no more appropriate application of Lord Mansfield’s

admonition that writs of mandamus “ought to be used

upon all occasions where the law has established no

specific remedy, and where in justice and good government

there ought to be one.” Marbury, 5 U.S. at 169 (quoting

King v. Baker, 3d Burrows 1266).

As noted above, see supra n.4, it is beyond the scope of

this amicus brief to analyze each of the ways in which Mr.

Hamdan’s proposed trial by military commission violates

the United States’ “clear and indisputable” treaty duties

under the GPW. Those matters are well-covered in Mr.

Hamdan’s brief on the merits and in the briefs of other

amici. Amicus curiae Mr. al Qosi does note, however, that

it is no defense in these circumstances to argue that

compliance with the duties enshrined in the GPW involves

some measure of discretion, and thus are insufficiently

“clear.” As this Court has observed, every duty involves an

irreducible measure of discretion, but that fact cannot be

used to eviscerate the office of mandamus. The- Court’s

decision in Roberts v. United States, 176 U.S. 221 (1900), is

particularly instructive:

Every statute to some extent requires construc-

tion by the public officer whose duties may be de-

fined therein.... Every executive officer whose

duty is plainly devolved upon him by statute

might refuse to perform it, and when his refusal is

brought before the court he might successfully

plead that the performance of the duty involved

the construction of a statute by him, and therefore

29

it was not ministerial, and the court would on

that account be powerless to give relief. Such a

limitation of the powers of the court, we think,

would be most unfortunate, as it would relieve

from judicial supervision all executive officers in

the performance of their duties, whenever they

should plead that the duty required of them

arose upon the construction of a statute, no mat-

ter how plain its language, nor how plainly they

violated their duty in refusing to perform the act

required.

Id. at 231; see also id. (recognizing that the writ of man-

damus would “become practically valueless” if not granted

where “a public officer is commanded to do a particular act

by virtue of a particular statute”).

In the absence of habeas relief, mandamus would not

only be “appropriate” under the circumstances, it would be

necessary to ensure fidelity to our Constitution. The

Supremacy Clause places treaties on par with both our

Constitution and statutes, U.S. Const. art. VI, cl. 2;

Article III, section 2 states that “the judicial power shall

extend to all cases arising under the Constitution, laws

and treaties of the United States.” Jd., art. ITI, § 2. Abdica-

tion of the judiciary’s oversight role would thus be no more

appropriate with respect to rights and duties created by

treaties than those created by other sources of law. See

Marbury, 5 U.S. at 177 (“It is emphatically the province

and duty of the judicial department to say what the law

is.”).

Of the Articles of Confederation, Madison stated: “Our

Confederation is so notoriously feeble, that foreign nations

are unwilling to form any treaties with us; they are ap-

prized that our general government cannot perform any of

its engagements, but that they may be violated at pleasure

by any of the states.” 3 DEBATES IN THE SEVERAL STATE

30

CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTI-

TUTION 135-36 (J. Elliot 2d. ed. 1836). If the courts decline

to compel Executive compliance with “engagements” of our

federal government, our nation is in danger not only of

repeating the mistakes that led to the failure of the Arti-

cles of Confederation, but also breaking faith with the

Constitution the Framers entrusted to us. Without habeas,

mandamus is appropriate and necessary.

CONCLUSION

For the foregoing reasons, this Court should reverse

and remand the judgment of the Court of Appeals.

Respectfully submitted,

Lt. CoOL. SHARON A. SHAFFER PAUL S. REICHLER

UNITED STATES AIR FORCE Counsel of Record

OFFICE OF THE CHIEF LAWRENCE H. MARTIN

DEFENSE COUNSEL JONAS J. MONAST

OFFICE OF MILITARY COMMISSIONS NIENKE C. GROSSMAN

1851 S. Bell Street, Suite 103 FOLEY HOAG LLP

Arlington, Virginia 22202 1875 K Street, NW,

Suite 800

Washington, DC 20006

(202) 223-1200

Counsel for Amicus Curiae

January 6, 2006