Amicus Curiae Brief — Hamdan v. Rumsfeld

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/

| JAN & 2006

IN THE _oMce oP Tar CLERK

Supreme Court of the United States

ope

SALIM AHMED HAMDAN,

Petitioner,

DONALD H. RUMSFELD, SECRETARY OF DEFENSE,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

BRIEF AMICUS CURIAE OF THE

AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF PETITIONER

STEVEN R. SHAPIRO

Counsel of Record

BEN WIZNER

LEE GELERNT

OMAR C. JADWAT

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

Attorneys for Amicus

TABLE OF CONTENTS

Page

I Ce PINE stestcustesincsnsonicininnnnstncnuiniitiaseaniodsees ]

STA TERETE OF THE CARE ccccccccccccscvscecescscocesessesccocsecees |

DUREIGARY GF ARGUMENT cccccscscsescscssccsscsessoscosscsscseses 3

ITS sctciensenscinienceninsiitecillninintinsicbinpestineineninmiete 4

I. There Is No Basis For Assuming That

Congress Intended To Authorize Military

Commission Rules That Fail To Meet Even

The Minimum Standards Of Impartiality and

EI nsiscrinesctnsniicabensencsiiapsnaceaisidetbinbactneneiteiapedliiidinie 4

A. The Military Commission Process

Violates The Core Principle Of Impartial

FR cpncicsstetintonnsemnnmdedituninaeiinti 6

B. The Commission Process Violates The

Core Principle Of Adequate

I I eintnteicicinctnitivenncinciiimmiaias 13

C. The Commission Process Permits The

Use Of Evidence Obtained Through

Coercive Interrogation ..............secsccsssecesesees 17

Il. The Distinction Between Citizens And

Non-Citizens In The Military Commission

Rules ls Unsupported By History Or

NY HEIN sovcincsitacidenviicntasenssissiinecsente 21

A iiininethiiinatnivinaicianiiapiiniaibeitnctiiaiinginisinniatleiiiiiioitiia 26

TABLE OF AUTHORITIES

Cases ; Page

A and others v. Secretary of State for the

Home Department (No 2), {2005} W.L.R. 193

available at http://www.publications.parliament

Juk/pa/1d200506/ldjudgmt/jd05 1208/aand.pdf................. 19

Ashcraft v. Tennessee, 322 U.S. 143 (1944) ooo. 18

Blackburn v. Alabama, 361 U.S. 199 (1960) ...........c00000 18

Brown v. Mississippi, 297 U.S. 278 (1936) o.cccccccccsseeseeseees 17

Chan Gun v. United States, 9 App. D.C. 290, 1896 WL

Se is SEE: SITE siacisatnentiashbbirentiaieinatibociecionianduiientonnss 23

Ex parte Oe Te 6 UID sincvsiienicccssnencitivnensnnanetoneniti 22

Fey v. Austria, 24 February 1993,

BR RS ee mereeeer 1]

Filartiga v. Pena-lrala,

Ss PUI cencctscecncnceicninnssnsiniacheninniaeta 19

Gherebi v. Bush, 374 F.3d 727

ee 6

Gonzalez del Rio v. Peru, (263/1987), 28 October 1992,

Report of the Human Rights Committee, vol. II,

UE SUN cociccstsininstsinadidlabandtninbieditenniemnnieniicnnmeasinteh 11

Griffin v. Illinois, 351 U.S. 12 (1956) occ cceetteeteeteeees 23

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..........0... 3, 5, 9, 25

In re Murchison, 349 U.S.133 (1955) .o.cccccccccscceeeeeeeeeeeees 6,9

Karttunen vy. Finland, (387/1989), 23 October 1992,

Report of the Human Rights Committee,

I Si, Ses IU aeticicetenccintnestineneceennmenenntinenen 11

Marshall v. Jerico, Inc., 446 U.S. 238 (1980) 0... 9

Rodriguez-Silva v. INS, 242 F.3d 243 (Sth Cir. 2001) ........ 23

Spano v. New York, 360 U.S. 315 (1959) oo.cccceeeeeeeeees 18

Takahashi v. Fish and Game Comm'n,

es GUID seeniesticiibiecneneiasibiesosiataneeisislnantshindetiinni 24

Tumey v. Ohio, 273 U.S. 510 (1927) .....cececceeseseeteeeee 15, 16

Weiss v. United States, 510 U.S. 163 (1994) oo... 6, 13

Wong Wing v. United States,

ee SPITE cecktcsicieenrcdivieuininiaticieiittdnniiteediainis 22, 23, 24

Zadvydas v. Davis, 533 U.S. 678 (2001)... cece 23,24

Statutes and Regulations

Sh ST er ee EN 13

ISIS OE aE LTE ROS 13

nA eceltieicoil 17

NINE nitt-cacicinokeavninihicnessda chplianecesibonts 16

10 U.S.C. § 866 vorcccooee osha 16

| ECT es 16, 17

PE BE, BOD vs cecsivissisnisiigce 24

1B UBL. BDO snssccscorsssittilitiiamsummisiiaieiaaenn 12

DUBE. 6 DG cccccccvinnseiiviieaticsinpansitiae 14

GE UGL. 0 TOON casicvinviiicinibsicclesinoninsaminamaenn 24

6 Ped Diniy, SUID acscsinsseiselcicitsesosoceitchiciannaesaee nen 2

International Materials

African [Banjul] Charter on Human and Peoples’ Rights,

June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21

RB, Sip COI cxcncicsicientvcsinispesnisimaiieaniionpennstislidaananaaaaa 1]

American Convention on Human Rights,

Sah. 0G, OS 7G, BOOS CDE T Ee. Co Bicccccssicsncscntecsssonsessens 10, 19

American Declaration of the Rights and

Duties of Man. O.A.S. Res. XXX,

reprinted in Basis Documents Pertaining

to Human Rights in the Inter-American System,

OEA/Ser.L.V/II.82doc.6rev.] at 17(1992) 1948.00.00... 10

Basic Principles on the Independence of

the Judiciary, Adopted by the Seventh

United Nations Congress on the Prevention

of Crime and the Treatment of Offenders

Aug. 26, 1985 to Sept. 6, 1985, U.N. Doc.

A/CONF.121/22/Rev.1 at 59 (1985) .......ccccccccceeseeseseeeeeeees 9

iv

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment,

G.A. res. 39/46, U.N. GAOR, 42™ Sess.,

June 26, 1987, [annex, 39 U.N. GAOR Supp.

(No. 51) at 197, U.N. Doc. A/39/51 (1984)}] ............. 18, 19

Convention on the Protection of Human Rights

and Fundamental Freedoms,

sy EL POU Gs Bs SEE ccnccncecessccccecosscrecceeses 10, 19

Declaration on the Protection of All Persons

from Being Subjected to Torture and Other

Cruel, Inhuman or Degrading Treatment or

Punishment, G.A. Res. 3452 (XXX)

U.N. GAOR, 30" Sess., Dec. 9, 1975,

inn ID ociscsesiecnegungnnasnnsnonnsescevanesessaceee 19

Geneva Convention Relative to the Protection

of Civilian Persons in Time of War (Geneva IV),

eae 12, 16

Geneva Convention Relative to the Treatment

of Prisoners »f War (Geneva III), Oct. 21, 1950,

a 11, 12, 16, 20

International Covenant on Civil and Political

Rights, G.A. Res. 2200 A (XX1), U.N. GAOR,

21" Sess., Supp. (No. 16) at 52,

I cccsoenceonunnnnancocen 9.10

Protocol Additional to the Geneva Conventions

of Aug. 2, 1949 and Relative to the Protection

of Victims of International Armed Conflicts,

EE, 2 ssusspensesabonoonces 12

U.N. Human Rights Committee, General Comment

No. 13: Equality before the courts on the right

to a fair trial and public hearing by an independent

court established by law (13 April, 1984) ............ccccee 11

Universal Declaration of Human Rights,

G.A. Res. 217 A (III), U.N. GAOR,

PP is cicestiditthcituniciaesanestnstnatéciiitebiaal 9, 18

Other Authorities

Vanessa Blum, Defense Lawyer Challenges

Impartiality of Guantanamo Commission

Members, Legal Times, Aug. 26, 2004 00000.......cccccccceeeeeees 8

Jess Bravin, Jackie Calmes, & Carla Ann Robbins,

Status of Guantanamo Bay Detainees is

Focus of Bush Security Team's Meeting,

Wall Street Journal, January 28, 2002 «0.00.00... 15, 16

Guy Dinmore and Cathy Newman,

Iraq Controversies Mar Ovations for Blair,

Pimamcind Temes, July 08, 2003 ........0..eccesesssecsssessecesssereses 15

Louis Fisher, Congressional Research Service, Military

Tribunals: Historical Patterns and Lessons ..................+. 22

Stephen J. Fortunato, Jr., A Court of Cronies,

In these Times (Jume 28, 2004) ............:ccccccccccccccscserceeeees 14

David Glazier, Kangaroo Court or Competent Tribunal?

Judging the 21" Century Military Commission,

rs Chic Ss AIRNUED tcertenpntnesinnsieaveiciideinnantintsiicandndaccinapidaaibasiida 22

John Hendren, Military Trial Opens with a Challenge,

Sk, WERNER, AGM TED, Bie Orcccncccrssccescsncssccnssesestetnccqsasnats 7,8

Neal K. Katyal and Laurence H. Tribe,

“Waging War, Deciding Guilt: Trying the Military

Tribunals,” 111 Yale L.J. 1259 (2002) .........:.ccceeee 21, 22

Neil A. Lewis, 2 Prosecutors Faulted Trials for Detainees,

New York Tismes, Aap. 1, 20085 .........0.0.:ecc-ssccccrcsscessscesesers 8

Toni Locy, U.S. Tribunal Could Lose Members,

Se NG, NI BT, SII centccrtticcsntsitncctitnnaistennimesenonnall 8

Military Commission Instruction No. 9 ..................ccccceseeeee 15

Military Commission Order No. 1 ..............cc0cccceeeeees passim

Military Commission Order No. 2 .............::cccesseseeeeeeeeeseeenees 7

Remarks by Secretary Rumsfeld to Greater

Miami Chamber of Commerce (Feb. 13, 2004),

available at www.defenselink.mil .....................ccec0eceeeeees 16

Wolfowitz Interview with Jim Lehrer,

News Hour available at http://www.dod.gov/transcripts/

2002/103222002_ 10321 Wol. ft «00... eeeecseeeeeeeeeeeeeees 7

vil

INTEREST OF AMICUS'

The American Civil Liberties Union (ACLU) its a

nationwide, nonprofit, nonpartisan organization with more

than 500,000 members dedicated to the principles of liberty

and equality embodied in the Constitution. The ACLU was

founded in 1920, largely in response to the curtailment of

liberties that accompanied America’s entry into World War

1, including the prosecution of political dissidents and the

denial of basic due process rights for non-citizens. In the

intervening eight decades, the ACLU has frequently

appeared before this Court during other periods of national

crisis when concerns about security have been used by the

government as a justification to abridge individual rights.

This case raises those issues once again. The military

commission rules developed by the executive branch call

into question both our nation’s commitment to fair process,

even for those accused of war crimes, and to the system of

checks and balances that was designed to safeguard against

the abuses of concentrated power. The ACLU therefore has

a significant interest in the proper resolution of this case.

STATEMENT OF THE CASE

On November 13, 2001, President Bush issued an

order establishing a system of military commissions with

jurisdiction to try designated non-citizens for certain alleged

terrorist offenses. “Detention, Treatment, and Trial of

' Pursuant to Rule 37.3, letters of consent to the filing of this brief have

been lodged with the Clerk of the Court. Pursuant to Rule 37.6, counsel

for amicus curiae state that no counsel for a party authored this brief in

whole or in part and no person other than amicus curiae, its members or

its counsel made a monetary contribution to this brief

Certain Non-Citizens in the War Against Terrorism,” 66

Fed.Reg. 57,833. Although that initial order has been

supplemented by a series of additional orders and

instructions promulgated by the Depaitment of Defense over

the past four years, key elements of the commissions have

remained unchanged. Commission members are not

insulated from command influence. The same senior

officials who must approve any charges against a detainee

also hear any appeal from a conviction. There is no

provision in the rules for ultimate review by an Article III

court, and there is no bar to the introduction of coerced

testimony in commission proceedings.

Nearly two years after his initial capture in

Afghanistan, Hamdan was designated for trial before a

military commission after the President declared “that there

is reason to believe that [Hamdan] was a member of al

Qaeda or was otherwise involved in terrorism directed

against the United States.” Hamdan v. Rumsfeld, 344 F.

Supp. 2d 152, 155 (D.D.C. 2004) (internal citation omitted).

In essence, the government contends that Hamdan served as

Osama bin Laden’s driver and bodyguard, and that he

participated in a conspiracy to commit terrorism.

Hamdan filed a petition for habeas corpus, which was

granted by the district court on two principal grounds. /d.

First, the district court ruled that Hamdan must to be tried in

accordance with the Uniform Code of Military Justice

(UCMJ) unless and until a “competent tribunal” determines

that he is not entitled to prisoner of war status, as required by

the Geneva Conventions. /d at 165. Second, the district

court held that the military commission rules developed by

the President and the Defense Department were inconsistent

with the UCMJ because they did not adequately protect

Hamdan’s right to confront the evidence and witnesses

against him. /d. at 172.

2

The court of appeals disagreed. Hamdan v.

Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005). It rejected

Hamdan’s claim that the President had exceeded his

authority by establishing military commissions that Congress

had never authorized. Jd. at 38. Contrary to the district

court, it concluded that the Geneva Conventions were not

judicially enforceable, id. at 40, and that any challenge to the

adequacy of the commission procedures under the Geneva

Conventions could not be brought in any event until the

proceedings were concluded. /d. at 42. Finally, the court of

appeals held that the confrontation rights in ine UCM]J cited

by the district court applied only to courts martial and not to

military commissions. /d. at 42-43.

SUMMARY OF ARGUMENT

For reasons set forth at length in other briefs, the

President does- not have unilateral authority to establish

military commissions in the absence of congressional

authorization, and the Authorization for Use of Military

Force in Afghanistan cannot be read as a “blank check”

enabling the President to do whatever he chooses as long as

he describes it as a part of the war against terrorism. Hamdi

v. Rumsfeld, 542 U.S. 507, 536 (2004). Given the structura!

deficiencies highlighted in this brief, it is implausible tc

assume that Congress ever in fact authorized the military

commission system that Hamdan is challenging.

The military commission rules, as they now exist, do

not guarantee an independent trial court, do not provide for

impartial appellate review, and do not prohibit the use of

coerced testimony despite extensive evidence that coercive

interrogation techniques have been used at Guantanamo Bay

and elsewhere. In short, they do not provide a fair trial

3

before a fair tribunal under any recognized set of legal

standards, whether those standards are derived from the

Constitution, our international treaty commitments,

customary international law, or the Uniform Code of

Military Justice. At a minimum, this Court should require a

clear statement from Congress before it is deemed to have

departed so dramatically from established legal norms.

Here, there is none.

The fundamental unfairness of these military

commissions is further compounded by their discriminatory

reach. Congress has authorized military commissions in the

past, but it has never previously drawn a distinction between

citizens and non-citizens. That its not surprising. By their

very nature, military commissions impose punishment, and

both this Court and Congress have repeatedly insisted that

punishment be imposed under a uniform set of rules that

applies to citizens and non-citizens alike. There is no reason

in this case to test the limits of that constitutional rule. But

there is ample to reason to be skeptical of any claim that

Congress authorized the President to abandon that tradition

of evenhanded treatment without discussion and sub silentio.

ARGUMENT

I. THERE IS NO BASIS FOR ASSUMING

THAT CONGRESS INTENDED TO AUTHORIZE

MILITARY COMMISSION RULES THAT FAIL TO

MEET EVEN THE MINIMUM STANDARDS OF

IMPARTIALITY AND FAIRNESS

The military commission system devised by the

President and Secretary of Defense to prosecute detainees

whose guilt they have already publicly declared is so

4

fundamentally flawed that the “risk of erroneous deprivation

of a detainees’s liberty” - or even his life — “is unacceptably

high.” Hamdi, 542 U.S. at 532-33 (2004). The commission

system fails to afford defendants the most rudimentary and

irreducible requirements of a fair trial, including an impartial

arbiter of fact and law, an adequate and neutral review

process, and protection against the use of coerced and

unreliable evidence.? Moreover, the commission’s flawed

rules are subject to change, ad hoc and on the fly, by the very

officials who devised and administer them, such that

defendants have no guarantee that the rules will not be

altered during trial to suit the government’s political

objectives.

Far from a handful of procedural shortcomings that

could perhaps be corrected through post-conviction review,

the flaws inherent in the commission system are structural in

nature and demand an immediate remedy because they

preclude altogether an impartial and reliable evaluation of

guilt or innocence. Though the government has elsewhere

argued otherwise, it is beyond reasonable dispute that the

government cannot operate military tribunals without

affording some fundamental rights to terrorism suspects;

otherwise, nothing would prevent the government from

° The military commission system contains numerous additional serious

deficiencies that, at a minimum, are less likely to be remedied because of

the structural flaws discussed above. For example, the rules permit the

use of secret evidence to which defendants and their civilian lawyers will

have no access, even if that evidence is not classified (Military

Commission Order (“MCO") No. § § 6(D)(5)); there is no remedy for the

systemic violation of defendants’ speedy trial rights, defendants do not

have the power to require the commission to subpoena witnesses or

documents, even if such evidence is crucial to the defendant's case, and

proceedings may be held in secret and may exclude the defendant and his

civilian counsel, notwithstanding counsel's security clearance, and with

no requirement of findings on the record setting forth the reasons for

court closure (MCO No. | § 6(B)(3)).

5

simply executing the detainees without any trial at all. Cf

Gherebi v. Bush, 374 F.3d 727, 738 (9"" Cir. 2004) (noting

government's argument that no legal authority would prevent

it from “engaging in acts of torture” or “summarily

executing” Guantanamo detainees).

By any recognized legal standard, these commissions

are manifestly deficient. Were Congress expressly to

authorize such biased and arbitrary proceedings, this Court

would be squarely faced with substantial questions as to the

scope and applicability of protections guaranteed by the

Constitution, our treaty obligations, customary international

law, and the Uniform Code of Military Justice. In the

absence of such express authorization, this Court should not

construe a general force authorization enacted days after the

terrorist attacks, or any other general statutory provision, as

providing authority for military commissions that are so

fundamentally inconsistent with existing law and past

practice.

A. The Military Commission Process Violates

The Core’ Principle Of Impartial

Adjudication

This Court has held that “a fair trial in a fair tribunal

is a basic requirement of due process,” and that “a necessary

component of a fair trial is an impartial judge.” Weiss v.

United States, 510 U.S. 163, 178 (1994) (internal citation

omitted). Fairness requires not only “an absence of actual

bias in the trial of cases,” but also rules and safeguards “to

prevent even the probability of unfairness.” I/n re

Murchison, 349 U.S.133, 136 (1955). The military

commissions at issue do not merely lack important

protections against partiality: by their very structure and

composition, they promote the appearance of bias.

Under the commission system, an “Appointing

Authority” controls the make-up of the commission panel,

the procedure of the commission itself, and, through its

influence and predisposition on issu-s, also potentially

controls the verdict of the commission. The Appointing

Authority, who is himself appointed by the Secretary of

Defense, selects the commission members, including the

presiding officer, and may remove them for “good cause.”

MCO No. 1 § 4(A)(1) and (3). At the same time, the

Appointing Authority is responsible for approving and

referring criminal charges to the commission on behalt of the

executive branch. /d. at 6(A)(2). Thus, the very same entity

that chooses the judge and jury possesses, as the charging

prosecutor, a vested interest in the result.”

Meanwhile, there is no requirement that commission

members, with the exception of the presiding officer, have

any legal experience. Indeed, a member of the commission

in Petitioner Hamdan’s case, since removed, conceded under

questioning by defense counsel that he was unfamiliar with

the Geneva Conventions. See John Hendren, Military Trial

Opens with a Challenge, L.A. Times, Aug. 25, 2004.

Although recent amendments have shifted some legal

responsibilities away from commission members and

towards the presiding officer, commission members retain

the authority to rule on questions of evidence. MCO No. |

§§ 4(A)(6) and 6(D)(1). Other legal decisions, including any

dispositive questions, will be decided by the Appointing

Authority himself on an interlocutory basis. /d at

4(A)(5)(e).

* The original Appointing Authority was Deputy Secretary of Defense

Pauli Wolfowitz, see MCO No. 2, who had previously declared that “the

only people that would be subjected to these commissions are . . . guilty

of serious terrorist crimes against the United States.” Wolfowitz

Interview with Jim Lehrer, News Hour, available at

http://www .dod.gov/transcripts/2002/103222002 10321 wol.html.

7

The absence of independence and impartiality is

evident not only in the structure of the military commissions

but in their actual composition: the presiding officer is an

intimate and longtime friend of the Appointing Authority

and has stated that he does not believe Guantanamo

detainees possess any “speedy trial” rights;* some

commission members were involved in the capture and

interrogation of enemy forces in Afghanistan;? and one

member, since removed from the commission, has admitted

calling the Guantanamo detainees “terrorists.”° These are

not the individuals whom the executive branch would

appoint to a tribunal were fairness — or even the appearance

of fairness — its paramount concern. Rather, the composition

of the tribunal is consistent with the accusation by former

members of the prosecuting team that the commission’s

members were handpicked to ensure conviction.’

The structural and actual bias of the commission

system is fundamentally at odds with constitutional due

process requirements, and is inconsistent with international

human rights law and with the UCMJ. As this Court has

- recently held, due process requires, at a minimum, that

defendants be afforded “a fair opportunity to rebut the

* John Hendren, Military Trial Opens with a Challenge, L.A. Times,

Aug. 25, 2004.

> See Vanessa Blum, Defense Lawyer Challenges Impartiality of

Guantanamo Commission Members, Legal Times, Aug. 26, 2004.

* See Toni Locy, U.S Tribunal Could Lose Members, USA Today, Sept.

14, 2004, at SA.

” One former member of the military prosecution team has charged that

the commission members who will sit as both judge and jury over the

tribunals were “handpicked and will not acquit [the] detainees,” and has

characterized the entire process as “rigged.” Neil A. Lewis, 2

Prosecutors Faulted Trials for Detainees, New York Times, Aug. |,

2005. A second former commission prosecutor has described the

commission system as a “severe threat to the reputation of the military

justice system and even a fraud on the American people.” /d

8

Government’s factual assertions before a_ neutral

decisionmaker.” Hamdi, 542 US. at 533. The

impermissible fusing of prosecutorial and judicial functions

is particularly problematic. As this Court as explained, “[iJt

would be very strange if our system of law permitted a judge

to act as a grand jury and then try the very persons accused

as a result of his investigations.” Jn re Murchison, 349 U.S.

at 137. Having been involved in the “accusatory process,” a

judge “cannot be, in the very nature of things, wholly

disinterested in the conviction or acquittal of those accused.”

Id. This Court has “jealously guarded” the right to trial by a

judge who has no stake in the outcome, because the principle

of impartiality “ensuries] that no person will be deprived of

his interests in the absence of a proceeding in which he may

present his case with assurance that the arbiter is not

predisposed to find against him.” Marshall v. Jerico, Inc.,

446 U.S. 238, 242 (1980).

Similarly, international human rights law codified in

numerous instruments, has long mandated that every person

facing criminal punishment has the right to trial by a

competent, independent, and impartial tribunal established

by law.® The Universal Declaration of Human Rights

provides unambiguously that “[e]veryone is entitled in full

equality to a fair and public hearing by an independent and

impartial tribunal, in the determination of his rights and

obligations and of any criminal charge against him.” G.A.

Res. 217 A (III), U.N. GAOR, 3" Sess., Art. 10, 1948.

(Universal Declaration of Human Rights). The International

Covenant on Civil and Political Rights likewise mandates

that, “[ijn the determination of any criminal charge against

* See generally Basic Principles on the Independence of the Judiciary,

Adopted by the Seventh United Nations Congress on the Prevention of

Crime and the Treatment of Offenders Aug. 26, 1985 to Sept. 6, 1985,

U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985).

9

him, or of his rights and obligations in a suit at law, everyone

shall be entitled to a fair and public hearing by a competent,

independent and impartial tribunal established by law.” G.A.

Res. 2200 A (XXI), U.N. GAOR, 21* Sess., Art. 14, Supp.

(No. 16) at 52, U.N. Doc. A/6316 (1966). That principle,

and indeed that language, is echoed in numerous treaties and

conventions, including the Third and Fourth Geneva

Conventions,’ the American Convention on Human Rights, '°

the American Declaration of the Rights and Duties of Man,"

the European Convention,’* and the African Charter.”

” See fns 18-20, infra, and accempanying text.

'° “Every person has the right to a hearing, with due guarantees and

within a reasonable time, by a competent, independent, and impartial

tribunal, previously established by law, in the substantiation of any

accusation of a criminal nature made against him or for the determination

of his rights and obligations of a civil, labor, fiscal, or any other nature.”

American Convention on Human Rights, Jul. 18, 1978, 1144 U.N.T.S.

123, Art. 8(1) (American Convention). The Convention was signed by

the United States on June |, 1977, but never ratified.

'' “Every person accused of an offense has the right to be given an

impartial and public hearing, and to be tried by courts previously

established in accordance with pre-existing laws, and not to receive cruel,

infamous or unusual punishment.” American Declaration of the Rights

and Duties of Man, O.A.S. Res. XXX, reprinted in Basis Documents

Pertaining to Human Rights in the Inter-American System,

OEA/Ser.L.V /I1.82doc.6rev.1 at 17(1992), 1948, Ant. XXVI. (Adopted

May 2, 1948, by the Ninth International Conference of American States,

Bogota, Columbia. As a member state of the Organization of American

States (OAS), the United States is bound by the Charter of the OAS

(Bogota, 1948) as amended by the Protocol of Buenos Aires, ratified by the

United States on April 23, 1968. In accordance with the OAS Charter, the

United States is bound to respect the provisions of the American

Declaration of the Rights and Duties of Man.)

'? “In the determination of his civil rights and obligations or of any

crimina! charge against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law.” Convention on the Protection of Human

Rights and Fundamental Freedoms, Art. 6(1), Nov. 4, 1950, 213

U.N.T.S. 222 (European Convention).

10

The right to be tried before an impartial tribunal is so

basic that the United Nations Human Rights Committee has

declared it “an absolute right that may suffer no exception” '*

and has underscored the particular importance of impartiality

when military or special courts try civilians.’ Impartiality

“implies that judges must not harbour preconceptions about

the matter put before them, and that they must. not act in

ways that promote the interests of one of the parties.” The

European Court has emphasized that judges must not have a

“preconceived view on the merits of a case.”

The Geneva Conventions have codified this core

principle with respect to both prisoners of war and civilians

in wartime. The Geneva Convention Relative to the

Treatment of Prisoners of War (Geneva III) requires that

“[iJn no circumstances whatever shall a prisoner of war be

tried by a court of any kind which does not offer the essential

guarantees of independence and impartiality as generally

'’ “Every individual shall have the right to have his cause heard. This

comprises ... the right to be tried within a reasonable time by an

impartial court or tribunal.” ). African [Banjul] Charter on Human and

Peoples’ Rights, June 27, 1981, Art. 7(1), OAU Doc. CAB/LEG/67/3 rev.

5, 21 1.L.M. 58 (1982).

'* Gonzalez del Rio v. Peru, (263/1987), 28 October 1992, Report of the

Human Rights Committee, vol. II, (A/48/40), 1993, at 20.

' “The Committee notes the existence, in many countries, of military or

special courts which try civilians .... While the Covenant does not

prohibit such categories of courts, nevertheless the conditions which it

. lays down clearly indicate that the trying of civilians by such courts

should be very exceptional and take place under conditions which

genuinely afford the full guarantees stipulated in article 14.” U.N. Human

Rights Committee, General Comment No. 13: Equality before the courts

on the right to a fair trial and public hearing by an independent court

established by law (13 April, 1984)

"© Karttunen v_ Finland, (387/1989), 23 October 1992, Report of the

Human Rights Committee, vol. Il, (A/48/40), 1993, at 120, para. 7.2

' Fey v Austria, 24 February 1992, 255 Eur. Court. H.R. Ser. A 13,

para. 34

recognized.” Geneva Ill, Art. 84, Oct. 21, 1950, 75 U.N.T.S.

135. Willfully depriving a prisoner of war of the rights of a

fair and regular trial as prescribed in the Convention, or

ordering the same, is a grave breach of the Convention, and

is a crime under United States law.'*

The Geneva Convention Relative to the Protection of

Civilian Persons in Time of War (Geneva IV) mandates

equivalent fair trial protections for any nationals of a state

bound by the Convention who, in the case of a conflict or

occupation, find themselves in the hands of an adverse party.

Geneva IV, Art. 4, Oct. 21, 1950, 75 U.N.T.S. 287. Like

Geneva Ill, moreover Geneva IV proscribes as a grave

breach the willful deprivation of the rights of a protected

person to a fair and regular trial.'” Additional Protocol I to

the Geneva Conventions,” which supplements the rules for

protected persons under Geneva IV, mandates that sentences

may not be passed, nor penalties executed, except pursuant

to a conviction pronounced by an impartial and regularly

constituted court.” Finally, Common Article Three of the

Conventions, which is applicable irrespective of the status of

the conflict with Al Qaeda, requires that any trial occur

before a “regularly constituted court affording all the judicial

guarantees which are recognized as indispensable by

civilized peoples.” Geneva I-IV, Art. 3(1)(d).

* 18 USC. § 2441

'? Geneva IV, Art 147. See also An. $, which allows suspension for

some nights mandated by Geneva IV, but reiterates that persons shall not

be deprived of the right to fair and regular trial.

Protocol Additional to the Geneva Conventions of Aug. 2, 1949 and

Relative to the Protection of Victims of International Armed Conflicts,

Art. 147 Dec. 7, 1978, 1125 U.N.T.S. 3 (Additional Protocol 1). The

U.S. signed but did not ratify Protocol |.

*' Additional Protocol I, Art. 75(4)

1?

oe

This commitment to fairness and impartiality is also

reflected in the UCMJ, which contains numérous safeguards

to prevent against bias in the courts-martial system,

including an independent judiciary outside the chain of

command, 10 U.S.C. § 826(a); selection criteria for courts-

martial members that tum on age, education, training,

experience, length of service, and judicial temperament, 10

U.S.C. § 825(d)(2); and supervision of the system by Judge

Advocates General, “who have no interest in the outcome of

a particular court-martial.” Weiss v. United States, 510 U.S.

163, 180 (1994). All of these protections are notably absent

from the military commission rules.

In response to widespread criticism and embarrassing

media accounts, the government has recently announced

some modifications to the system, but those modifications do

not address the inherent flaws in the military commission

system. The ad hoc changes were made more than a year

into the process, without notice to or any input from defense

counsel, and were made by the very officials in charge of the

prosecutions. There is no guarantee — procedural or

substantive — that these same officials will not make further

changes at any stage of the commission proceedings. As a

result, the commission process remains wholly at the whim

of those who have a decidedly vested interest in securing

CONVICtIONS.

B. The Commission Process Violates The

Core Principle Of Adequate Appellate

Review

There is little chance that the deficiencies that mar

the military commission process will be meaningfully

addressed on appeal. That is because initial review of the

commission's decision is entrusted to the same Appointing

Authority who referred the charges, selected the

13

commission’s members, and previously ruled on dispositive

matters and defense motions. MCO No. | § 6(H)(3). It is

hard to conceive of a situation in which an Appointing

Authority, whose prestige has been so intertwined with a

prosecution, would reverse the very convictions that he had

sought. And the appeal process is no less skewed at its

higher levels.

The Secretary of Defense has appointed a review

panel comprised of four members. The panel cannot

plausibly be deemed an impartial arbiter. Two members of

the review panel served on the Department of Defense panel

that crafted the very trial procedures that are likely to form

an important basis for appeal. See Stephen J. Fortunato, Jr.,

A Court of Cronies, In these Times (June 28, 2004). Another

pane! member wrote, in a published op-ed piece, that “[iJt is

clear that the September |! terrorists and detainees, whether

apprehended in the United States or abroad, are protected

neither under our criminal-justice system nor under the

international Law of War.” Jd. The fourth member is a

close friend of Secretary Rumsfeld, has a vacation home near

the Secretary of Defense’s, and once bought property from

him. /d. Under any legal standard, each of the members of

the review member should properly be subject to recusal.””

The review panel is fundamentally flawed in its

procedures as well as its composition. It is not required to

read any defense submission or to hear oral argument. MCO

No. | § 6(H)(4). Because the panel must issue its written

= See e g. 28 USC. § 455(a) (“Any justice, judge, or magistrate of the

United States shall disqualify himself in any proceeding in which his

impartiality might reasonably be question”), id at (b) (same, where judge

“has a personal bias or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts concerning the proceeding”).

14

ruling within 75 days of receipt of the case,” defense

counsel will have little time to prepare its appellate papers

for possible inclusion in the panel’s deliberations. /d. As

with the commission below, the review pancl’s members

may be removed for “good cause,” and replaced by the

Secretary of Defense — who, along with the President, is the

final reviewer of the commission’s decision. Military

Commission Instruction No. 9 § 4(B)2; MCO No. | §

6(H)(5) and (6). The rules do not provide for direct appeal

of the executive’s determination to any civilian court,

including this Court.

That such a system of review falls well below

minimal constitutional requirements is beyond dispute. As

this Court has stated, a “situation in which an official

perforce occupies two practically and seriously inconsistent

positions, one partisan and the other judicial, necessarily

involves a lack of due process of law in the trial of

defendants charged with crimes before him.” Tumey v.

Ohio, 273 U.S. 510, 534 (1927). It is the “general rule” that

“officials acting in a judicial or quasi-judicial capacity are

disqualified by their interest in the controversy to be

decided.” Jd at 522. The President and the Secretary of

Defense, who created these commissions and whose political

reputations are bound up in them, and who by design serve

as the appellate forum of last resort, have made no effort to

hide their views of the tribunal defendants. The President

has stated, for example: “I know for certain these are bad

people.” Guy Dinmore and Cathy Newman, /rag

Controversies Mar Ovations for Blair. Financial Times, July

18, 2003. And Secretary Rumsfeld has characterized

Guantanamo detainees as “among the most dangerous, best-

trained, vicious killers on the face of the Earth.” Jess Bravin,

* Prior to the August 31, 2005 amendments, the review was to have been

completed within 30 days.

15

Jackie Calmes, & Carla Ann Robbins, Status of Guantanamo

Bay Detainees is Focus of Bush Security Team's Meeting,

Wall Street Journal, January 28, 2002, at Al6.”*

This utterly deficient appellate review process

directly contravenes universal human rights principles as

well. For example, the Third Geneva Convention requires

that “[e]very prisoner of war shall have, in the same manner

as the members of the armed forces of the Detaining Power,

the right of appeal or petition from any sentence pronounced

upon him, with a view to the quashing or revising of the

sentence or the reopening of the trial.” Geneva III, Art. 106.

Similarly, the Fourth Geneva Convention, which governs the

treatment of civilians, provides that “[a] convicted person

shall have the right to appeal provided for by the laws

applied by the court. He shall be fully informed of his right

to appeal or petition and of the time limit within which he

may do so.” Geneva IV, Art.73.

In crafting appellate rules for courts-martial,

Congress enacted a series of requirements that in no way

resemble the political rubber-stamp afforded by the

commission system. Under the UCMJ, review of a guilty

finding in a court-martial is conducted by a judge advocate

who has not “acted in the same case as an accuser,

investigating officer, member of the court, military judge, or

counsel... .” 10 U.S.C. § 864. An appeal of a conviction

then proceeds to a Court of Criminal Appeals comprised of a

three-judge panel conforming to uniform rules of procedure,

10 U.S.C. § 866, and, subsequently, to the Court of Appeals

for the Armed Forces, 10 U.S.C. § 867. The Court of

** See also remarks by Secretary Rumsfeld to Greater Miami Chamber

of Commerce (Feb. 13, 2004), available at www.defenselink mil (“[T}he

people in U.S. custody are .. . enemy combatants and terrorists who are

being detained for acts of war against our country.”).

16

Criminal Appeals is composed of civilian judges who serve

fixed terms of 15 years and are not subject to removal by the

prosecuting entity. Finally, direct review its available in this

Court. 10 U.S.C. § 867a.

By appointing themselves final arbiters of the

commission’s verdicts, the President and Secretary of

Defense have insulated themselves from the political

embarrassment that a reversed conviction might cause. By

creating a system utterly devoid of checks and balances, they

have deprived defendants of fundamental legal protection

against executive errors and misdeeds.

C. The Commission Process Permits The Use

Of Evidence Obtained Through Coercive

Interrogation

This Court has long held that confessions obtained

through torture or other “methods . . . revolting to the sense

of justice” may not be used in judicial proceedings. Brown

v. Mississippi, 297 U.S. 278, 286 (1936). Likewise,

Congress has prohibited the extraction of incriminating

statements through compulsion in court-martial proceedings,

and provided that “[njo statement obtained from any person .

. through the use of coercion, unlawful influence, -or

unlawful inducement may be received in evidence against

him in a trial by court-martial.” 10 U.S.C. § 831(d). Under

the commission system however, evidence “shall be

admitted if, in the opinion of the Presiding Officer [or a

majority of the commission] . . . the evidence would have

probative value to a reasonable person.” MCO No. | §

6(D\(1). This rule is an invitation to torture. In effect, the

commissions have been set up to allow the same people who

extract information from detainees through torture to use this

evidence to adjudicate the guilt or innocence of the

defendant.

17

The fundamental prohibition against the use of

evidence secured through torture serves dual functions,

protecting both the reliability and the integrity of judicial

proceedings. As this Court has explained, “[t]he abhorrence

of society to the use of involuntary confessions does not turn

alone on their inherent untrustworthiness. It also turns on the

deep-rooted feeling that the police must obey the law while

enforcing the law; that in the end life and liberty can be as

much endangered from illegal methods used to convict those

thought to be criminals as from the actual criminals

themselves.” Spano v. New York, 360 U.S. 315, 320-321

(1959). Thus, this Court has committed itself to “enforc[ing}

the strongly felt attitude of our society that important human

values are sacrificed where an agency of the government, in

the course of securing a conviction, wrings a confession out

of an accused against his will.” Blackburn v. Alabama, 361

U.S. 199, 206-07 (1960). Our Constitution’s commitment to

human rights is to be contrasted with the attitudes of

“governments which convict individuals with testimony

obtained by police organizations possessed of an

unrestrained power to seize persons suspected of crimes

against the state, hold them in secret custody, and wring

from them confessions by physical or mental torture”; as this

Court has pledged, “[s]o long as the Constitution remains the

basic law of our Republic, America will not have that kind of

government.” Ashcraft v. Tennessee, 322 U.S. 143, 155

(1944).

The prohibition against torture under international

law is universal and obligatory, and proscribes in all

instances the use at trial of evidence secured through

torture.’ In a recent unanimous ruling, the British law lords

* See eg. Universal Declaration of Human Rights, Article 5 (“No one

shall be subjected to torture or to cruel, inhuman or degrading treatment

or punishment’); The Convention Against Torture and Other Cruel,

18

resoundingly reaffirmed that principle, holding that evidence

obtained through torture was inadmissible, regardless of its

source. As Lord Carswell explained: “The objections to the

admission of evidence obtained by the use of torture are

twofold, based, first, on its inherent unreliability and,

secondly, on the morality of giving any countenance to the

practice .... [T]Jorture is torture, whoever does it, judicial

proceedings are judicial proceedings, whatever their purpose

— the former can never be admissible in the latter. ” A and

others v. Secretary of State for the Home Department (No 2),

[2005] W.L.R. 193, para. 147, 150 H.L.(D) (internal citation

omitted).° This principle is reflected in Common Article

Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, U.N.

GAOR, 42nd Sess., June 26, 1987, [annex, 39 U.N. GAOR Supp. (No.

51) at 197, U.N. Doc. A/39/51 (1984)], Art. 2(1) and (2) ("Each State

Party shall take effective legislative, administrative, judicial or other

measures to prevent acts of torture in any territory under its jurisdiction,”

and "No exceptional circumstances whatsoever, whether a state of war or

a threat or war, internal political instability or any other public

emergency, may be invoked as a justification of torture."); Declaration on

the Protection of All Persons from Being Subjected to Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452

(XXX) U.N. GAOR, 30" Sess., Dec. 9, 1975, U.N. Doc. GA/3452 (1975)

(“Any statement which is established to have been made as a result of

torture or other cruel, inhuman or degrading treatment or punishment

may not be invoked as evidence against the person concemed or against

any other person in any proceedings.”),; American Convention, Art. 5(2)

(“No one shall be subjected to torture or to cruel, inhuman, or degrading

punishment or treatment. All persons deprived of their liberty shall be

treated with respect for the inherent dignity of the human person.”),

European Convention, Art. 3 (“No one shall be subjected to torture or to

inhuman or degrading treatment or punishment. “);see also Filartiga v

Pena-lrala, 630 F.2d 876, 884 (2d Cir. 1980) (“Having examined the

sources from which customary international law is derived — the usage of

nations, judicial opinions and the work of jurists — we conclude that

official torture is now prohibited by the law of nations. The prohibition

is clear and unambiguous, and admits of no distinction between the

treatment of aliens and citizens.”’).

**4vailable at http://www publications parliament.uk/pa

19

Three of the Geneva Conventions, which unequivocally

prohibits torture, see Geneva I-]V, art. 3(1)(a), and in the

Third Geneva Convention, which specifies that “[n]o moral

or physical coercion may be exerted on a prisoner of war in

order to induce him to admit himself guilty of the act of

which he is accused.” Geneva III, art. 99.

Unfortunately, concern about the use of toriure to

secure evidence is far from speculative. Pursuant to

litigation under the Freedom of Information Act, the ACLU

has obtained concrete evidence that detainees at Guantanamo

Bay have been abused during interrogations and during the

regular course of their detention. Detainees have been

subjected to beatings, sometimes resulting in loss of

consciousness; stress positions; extreme temperatures for

extended periods of time; sexual humiliation; sexual assault;

religious humiliation and manipulation of religious symbols;

loud music and strobe lights; sleep deprivation; denial of

food and access to bathrooms; and other techniques

described by government officials as “highly aggressive.”

One document recounts the observations of an FBI agent

posted to Guantanamo:

On a couple of occasions, | entered

interview rooms to tind a detainee chained

hand and foot in a fetal position to the floor.

with no chair, food, or water. Most times

they had urinated or defecated on

themselves and had been left there for 18. 24

hours or more. On one occasion. the air

conditioning had been turned down so far

and the temperature was so cold in the room.

1d200506/Idjudgmujd05 1208/aand.pdf

*’ Voluminous documentation of the above is available at

http://www aclu.org/torturefoia.

20

that the barefooted detainee was shaking

with cold .... On another occasion, the

A/C had been turned off, making the

temperature in the unventilated room

probably well over 100 degrees. The

detainee was almost unconscious on the

floor with a pile of hair next to him. He had

apparently been literally pulling his own hair

out throughout the night. . . bs

The possibility that evidence secured through the

methods described above might form the basis for a

conviction — or even a sentence of death — infects the

legitimacy of the entire commission process. Indeed, the

absence of an express prohibition against the use of such

tainted evidence creates an irresistible incentive for the

prosecutors of the detainees to become their torturers.

II. THE DISTINCTION BETWEEN

CITIZENS AND NON-CITIZENS IN THE MILITARY

COMMISSION RULES IS UNSUPPORTED BY

HISTORY OR CONGRESSIONAL ACTION

The petitioner in this case is facing trial before a

military commission that only has jurisdiction over “non-

citizens.” A United States citizen charged with identical acts

could only be prosecuted in federal court. There is no reason

to believe that Congress authorized this differential

treatment, and powerful reasons to believe that it did not.

First, it is apparently unprecedented. See Neal K.

Katyal and Laurence H. Tribe, “Waging War, Deciding

Guilt: Trying the Military Tribunals,” 111 Yale LJ. 1259,

*§ See http://www.aclu.org/torturefoia/released/FBI.121504.5053.pdf.

21

1298 (2002). By most accounts, the United States began

using military commissions in 1847 during the Mexican-

American War. David Glazier, Kangaroo Court or

Competent Tribunal? Judging the 2]" Century Military

Commission, 89 Va. L. Rev. 2005, 2027 (“It is generally

agreed that the real origin of the military commission dates

from the Mexican War of 1846-1848”). Unlike the Order in

this case, however, the Order used in the Mexican-American

War subjected both citizens and non-citizens to military

tribunals. Louis Fisher, Congressional Research Service,

Military Tribunals: Historical Patterns and Lessons 12

(quoting memoir stating that “all offenders, Americans and

Mexicans, were alike punished” under Order); Glazier,

supra, at 2030 (noting that “a majority of the persons tried

by military commissions in Mexico were American

citizens”). That tradition of evenhanded treatment has been

maintained ever since, including during the Second World

War, the last time military commission trials were used by

the United States. See Ex parte Quirin, 317 U.S. 1, 37

(1942) (finding that both citizens and non-citizens were

Subject to World War II military commissions).

Second, this Court has held for more than a century

that the government cannot impose a separate regime of

punishment on non-citizens. In Wong Wing v. United States,

163 U.S. 228 (1896), the government sentenced four Chinese

citizens to sixty days at hard labor for violating the

immigration laws and ordered them deported at the

conclusion of their sentence. /d. at 234; see also id. at 239

(Field, J., concurring and dissenting). The Court left the

deportation order undisturbed, but invalidated the 60-day

sentence because it had been imposed without the

constitutional protections afforded to citizens charged with a

criminal offense. /d. at 237-38. The Court acknowledged

that the federal government has wide latitude to regulate

immigration, and may, in that capacity, differentiate between

22

citizens and non-citizens. Jd. at 237. But the Court left no

doubt that where the government “sees fit to . . . subject[] the

persons of such aliens to infamous punishment,” id., the

ability to discriminate came to an end, and “aliens shall not

be held to answer for a capital or other infamous crime”

without the protections afforded citizens under. the Fifth

Amendment. Jd. at 238.”

Since Wong Wing, this Court has_ repeatedly

reaffirmed that the federal government’s authority to

distinguish between citizens and non-citizens under the

immigration laws does not confer any authority on the

government to discriminate against non-citizens when

imposing punishment. See, e.g., Zadvydas v. Davis, 533

U.S. 678, 694 (2001) (citing Wong Wing for the rule that, in

the context of “punitive measures . . . all persons within the

territory of the United States are entitled to the protection of

the Constitution”) (internal quotation and citation omitted).

See also Chan Gun v. United States, 9 App. D.C. 290, 1896

WL 14831 at *5 (D.C. Cir. 1896) (citing Wong Wing for the

proposition that “[w]hen . . . the enactment goes beyond

arrest and necessary detention for the purpose of deportation

and undertakes also to punish the alien for his violation of

the law, the judicial power will intervene and see that due

provision shal! have been made, to that extent, for a regular

judicial trial as in all cases of crime”); Rodriguez-Silva v.

INS, 242 F.3d 243, 247-48 (Sth Cir. 2001) (noting that

although the federal government has wide latitude to set

“criteria for the naturalization of aliens or for their admission

to or exclusion or removal from the United States,” it is

settled that “an alien may not be punished criminally without

*? Cf. Griffin v. Illinois, 351 U.S. 12, 17 (1956) (stressing that “the

central aim of our entire judicial system . . . is [that] all people charged

with crime must, so far as the law is concerned, stand on an equality

before the bar of justice in every American court”) (internal quotations

omitted).

23

the same process of law that would be due a citizen of the

United States,” citing Wong Wing).

Third, the Wong Wing principle is also reflected in a

series of important congressional statutes. For example, 42

U.S.C. § 1981 provides:

All persons within the jurisdiction of

the United States shall have the same right in

every State and Territory to .. . give evidence,

and to the full and equal benefit of all laws

and proceedings for the security of persons

and property as is enjoyed by white citizens,

and shall be subject to like punishment, pains,

penalties, taxes, licenses, and exactions of

every kind, and to no other.

Although 42 U.S.C. § 1981 does not expressly mention

alienage, it has long been understood to protect non-citizens

against unequal treatment. Takahashi v. Fish and Game

Comm'n, 334 U.S. 410, 419 (1948) (reiterating that the

protections of 42 U.S.C. § 1981 “extend to aliens as well as

to citizens”) (citing additional cases).

The same point is explicitly made in 18 U.S.C. § 242,

which provides:

Whoever, under color of any law,

Statute, ordinance, regulation, or custom,

willfully subjects any person in any State,

Territory, Commonwealth, Possession, or

District to the deprivation of any rights,

privileges, or immunities secured or protected

by the Constitution or laws of the United

States, or to different punishments, pains, or

penalties, on account of such person being an

24

alien, or by reason of his color, or race, than

are prescribed for the punishment of citizens,

shall be fined under this title or imprisoned...

The point here is not that either statute necessarily

applies to this case, but merely that both statutes are part of

the backdrop against which any congressional action or

inaction regarding military commissions must be understood.

Put another way, it is reasonable to expect that Congress

would have been explicit if it meant to authorize a system of

differential punishment for non-citizens that is inconsistent

with historic practice, general constitutional principles, and

longstanding legal rules that mandate equality in the

administration of justice, when it considered its response to

the terrorist attacks of September 11, 2001.

Finally, it is worth noting that the government,

moreover, vigorously fought against the notion that Congress

had authorized different treatment for citizens and non-

citizens when it was defending its designation of two

American citizens, Yaser Hamdi and Jose Padilla, as “enemy

comvatants.” This Court agreed in Hamdi, holding that the

Authorization for Use of Military Force in Afghanistan

allowed the government to detain anyone captured on the

battlefield in Afghanistan as an “enemy combatant,”

regardless of citizenship. Hamdi, 542 U.S. at 518-19. It is

therefore disingenuous for the government now to read the

AUMF as endorsing a distinction between citizens and non-

citizens that it previously and strenuously disavowed.

CONCLUSION

For the reasons stated herein, the judgment below

should be reversed.

Respectfully Submitted,

Steven R. Shapiro

Counsel of Record

Ben Wizner

Lee Gelernt

Omar C. Jadwat

American Civi! Liberties

Union Foundation

125 Broad Street, 18" Floor

New York, NY 10004

(212) 549-2500