Amicus Curiae Brief — Hamdan v. Rumsfeld

SAN 3 ' Ms

No. 05-184

IN THE

Supreme Court of the Anited States

~

SALIM AHMED HAMDAN.

Petitioner,

V,

DONALD H. RUMSFELD, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

_—

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE ON BEHALF OF

FORMER FEDERAL JUDGES

SHIRLEY M. HUFSTEDLER AND WILLIAM A. NORRIS

IN OPPOSITION TO RESPONDENTS’

MOTION TO DISMISS FOR WANT OF JURISDICTION

a a

—_ —_——

PETER J. RUBIN

Counsel of Record

Georgetown Univ. Law Center

600 New Jersey Ave., NW

Washington, DC 20001

(202) 662-9388

Counsel for Amici Curiae

Dated: January 31, 2006

i

TABLE OF CONTENTS

Page

TABLE CP ALFIE CER cccesccccsctesscrsservsvesnsessessesnestenssoses il

INTERESTS OF AMICI CURIAE AND MOTION FOR

LEAVE TO FILE BRIFF AMICI CURIAE ..........:cc0sse0eeee0000 l

I Bed GREE ccsenscccenssscceseneeinecntnviernnssecesanmmmapnoessses 2

SPE EIS BUREN ecreveinscncinnsvtenstinasatenmnipennnbesiniensennnscimenteiied 2

PETITE nicisiscicressscprattnnbeniaitcttinasitheguniimesinnmeitoninmanninintens 3

I. THE ACT DOES NOT BY ITS TERMS DIVEST THIS

COURT OF JURISDICTION OVER THiS CASE........... 3

Il. TO THE EXTENT JT DIVESTS COURTS OF

HABEAS JURISDICTION, §1005 VIOLATES THE

Fe CNS CELT. cceeiensencccnsnsscsssveviveccsespsosnoeetibense 7

Il. TO THE EXTENT §1005 PROHIBITS THIS AND

ALL OTHER FEDERAL COURTS FROM HEARING

CONSTITUTIONAL CLAIMS OF GUANTANAMO

DETAINEES, INCLUDING PETITIONER, IT

VELA FE Ae Te cerstcescceseesesevnecnsscsotonnivtcemieneson 13

TV. TO THE EXTENT §1005 EXTING''ISHES

PETITIONER’S CONSTITUTIONAL CLAIMS, IT

VIOLATES DUE PROCESS. .....ccsccsscessesssessessveseeceresvevee 16

V. TO THE EXTENT §1005 ELIMATES THIS

COURT’S JURISDICTION OVER THE FEDERAL

CLAIMS OF DETAINEES HELD AT GUANTANAMO

BAY, IT VIOLATES EQUAL PROTECTION. ............. 19

SR ANTE scccssencvsarnsiavin enitsnsivinsinanibatnanasuintatinidiomnuansiinbiation 20

il

TABLE OF AUTHORITIES

PAGE

CASES

Abney v. United States, 431 U.S. 651 (1977).......ceeeeeeeeeeees 14

Adarand Constructors v. Pena, 515 U.S. 200 (1995).......... 19

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

IIT cdicebieahiendbiie sicnipaseiebinaaiisinbeesbimdbamedceaiedaslitesnniabhenpiaiakaini 13

Boumediene v. Bush, No. 05-5062, sua sponte Per Cunam

Order (CADC January 27, 2006) ...........cceeeeeees penaniondin 2

Bowen v. Johnston, 306 U.S. 26 (1939). .......cccceecceseeceeeeeeeeees 9

Brown v. Allen, 344 U.S. 443 (1953) .........ccsccsessseereceessseeeseees 8

a OG, FOE Fa Pe Ce secicitireniscicintisciennieciimiies 18

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building

& Constr. Trades Council, 485 U.S. 568 (1988)............... 6

Ex parte GNGO, FAZ3 UB. ZED CUGOS) a ccecccvcosevosenesosecsvosesssoseosss 6

Ex Parte McArdle, 74 U.S. 506 (1868)...........cceeeeesseseseeeees 4

Ex Parte Milligan, 71 U.S. 2 (1866) ..............::cceeseeseeeeeereeees 10

Ex parte Gadirin, 317 US... 1 CIP6Z) -occcccoscvsnscesesscsccccsecosesesooess 9

Ex Parte Young, 209 U.S. 123 (1908)............csssceseeserseeseees 13

Felker v. Turpin, 518 U.S. 651 (1996)........:cccccceeeeeeeees 7, 8,15

Foley Bros., Inc. v, Filardo, 336 U.S. 281 (1949) ..........:.00 9

Green v. United States, 355 U.S. 184 (1957)..........ccceceeeeeees 18

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ........... 11, 13-14,19

Hirota v. MacArthur, 338 U.S. 197 (1948) ...........cccccceeeeeeeeees 9

Bey ce FI, FT is 9 CIID eticitneccnitccesiccccticisnccctnncicned 9

INS v. Bt. Cor, F53 US. FEO CAA) ewccccesesrossccsccscosensecossasseress §

Johnson v. Eisentrager, 339 U.S. 763 (1950).........:::e000 9, 10

Logan v. Zimmerman BruSh Co., 455 U.S. 422 (1982).17, 18

"ae See we Lite 2), | ee 17

Marbury v. Madison, 5 U.S. 137 (1803)........:.:0-2ee0000 16, 19

Plaut v. Spendthrift Farms, 514 U.S. 211 (1995) ...--.ceceeeeeees 5

R. v. Schiever, 97 Eng. Rep. 551 (K.B. 1759)........--::ceeeeeeee 8

Rasul v. Bush, 542 U.S. 466 (2004)... ceceeeeee serene passim

Romer v. Evans, 517 U.S. 620 (1996)................::sseseeceeeeenene 20

il

Swain v. Pressley, 430 U.S. 372 (1977)........:scccssssesessseeeeees 7,8

United States v. Ron Pair Enterprises, 489 U.S. 235 (1989).4

Webster v. Doe, 486 U.S. 592 (1988). .......ceeceeceseeeeeseees 15, 16

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

UI italscssiscatisiacaaihieeaiiiteiccadi cictacbaeigitnadeaiedibontabaeibspentneiadbiie 11,13

STATUTES

Se eee MET cciscvtictcleocitehounsetiansndbianddeibipbinsiiansipipenciientnbadiatah 5, 6

See TA taes TUTTI ciscievsiineciniehceinesindiunadcaaltstionteaiteahinsdpdaaeniiieaneutmadpil 5

ea: TIT sicentiendocininaiinibciicicsaidenintehamvniitepitabatintsiids 4,5

Act Of Diawels 27, 1GGE, 15 Smt. BG vccccccccccccsescccsececcscscesesseceees 4

Act of Sept. 24, 1789, ch. 20, Sec. 14, 1 Stat. 82.0.0... 8

Detainee Treatment Act of 2005, Pub. L. No. 109-148, Div.

Rs Dis SP BETO vinsetenccenittibineniicnaiinimimnintiin passim

OTHER AUTHORITIES

Stephen Breyer, Active Liberty (2005) 00.0... eseseeeseseeeeeseees 4

Friendly, “Is Innocence Irrelevant? Collateral Attack on

Criminal Judgments,” 38 U. Chi. L. Rev. 142 (1970)....... 7

Hart, “The Power of Congress to Limit the Jurisdiction of

Federal Courts: An Exercise in Dialectic,” 66 Harv. L.

Ss, Si a a 10, 15

Merriam Webster Online Dictionary ...............:ccccceseeeeeeeees 1]

Robert L. Stern, et. al, Supreme Court Practice (s" Ed. 2002)

2

EERE EEE EEE EEE HEHE EEE EEE OEE EEE EEE EERE EEE EERE EERE EEE

Wallach, “Graham Amendment and Guantanamo,” New

po GB RE RS ee ne eee 3

CONSTITUTIONAL PROVISIONS

I a 3, 16-20

oe RE REAPER te eM OTOL Pe Bee? 20

a ER an Pe RS ee, Soe 3, 7-12

ea NN: OUI Si ce siiensersiitpeiscnprttiiicuscidlaiiiaeacnsaiideiscis 3, 13, 15, 16

9

to Guantanamo Bay. See Rasul, 542 U.S. 466 (2004); see

also id. at 485-488 (Kennedy, J., concurring). Jolson y.

Eisentrager, 339 U.S. 763 (1950), had held that certain

aliens detained overseas by the United States were not

entitled as a constitutional matter to habeas corpus in federal

courts. This Court distinguished such aliens from those, like

Petitioner, imprisoned in Guantanamo, Rasu/, 542 U.S. at

476 (listing differences in facts “critical” to Eisentrager’s

constitutional holding), and it concluded that Guantanamo is

within the “territorial jurisdiction” of the United States. Id.

at 480 (citing Foley Bros., Inc. v, Filardo, 336 U.S. 281, 285

(1949) (distinguishing lands within the “territorial

jurisdiction” of the Untied States with those that are mere

“possessions )). Indeed, this Court concluded that

Guantanamo was “sovercign territory” of the United States

in the sense that defined the “historical reach of the writ of

habeas corpus” at common law. Id. at 481-482. Those at

Guantanamo — ordinary prisoners held on suspicion of crime

on the base, for example, as well as detainees in the situation

of Petitioner — are entitled therefore to seek habeas relief

from the federal courts under the Constitution. Accord

Hirota v. MacArthur, 338 U.S. 197, 201-202 (1948)

(Douglas, J., concurring) (“Habeas corpus is an historic wnt

and one of the basic safeguards of personal liberty. See

Bowen v. Johnston, 306 U.S. 19, 26. There is no room for

niggardly restrictions when questions relating to its

availability are raised. ... Today Japanese war lords appeal

to the Court for application of American standards of justice.

Tomorrow or next year an American citizen may stand

condemned in Germany or Japan by a military court or

commission. If no United States court can inquire into the

lawfulness of his detention, the military have acquired,

contrary to our traditions (see Ex parte Quirin, 317 U.S. 1; In

re Yamashita, 327 U.S. 1), a new and alarming hold on us.”’).

| Even more directly, Justice Kennedy distinguished

Eisentrager while applying its framework to conclude that

for Guantanamo detainees, unlike the detainces in

10

Eisentrager, there was, indeed, a constitutional entitlement

to seek habeas relief. See id. at 486-488 (Kennedy, J.,

concurring in judgment). He relied first upon the fact that

“Guantanamo Bay is in every practical respect a United

States territory, and it is one far removed form any

hostilities,” id. at 487, and second upon the conclusion that

the need for “continued detention to meet military

exigencies” had weakened “as the period of detention

stretches from months to years.” Id. at 488. A petition for

habeas from a Guantanamo detainee he concluded is “within

the proper realm of the judicial power.” Id. at 486. Thus, he

concluded that, unlike the complaints brought by the German

prisoners in Eisentrager, the complaints of the Guantanamo

detainees do not “concer|n] matters within the exclusive

province of the Executive, or the Executive and Congress, to

determine.” Id. He concluded Guantanamo detainees like

Petitioner have a right under the Constitution to bring

. petitions for habeas corpus.

Thus, whether what the Suspension Clause protects is

habeas as its scope was at the time of the Framing, or habeas

as its scope is today, this statute implicates the Suspension

Clause. Under that Clause, Congress lacks power to suspend

the writ of habeas corpus with respect to such detainees

“unless when in Cases of Rebellion or Invasion the public

Safety may require it.” U.S. Const. Art. I. Sec. 9, cl. 2.

“(Where statutory jurisdiction to issue the wnt obtains, but

the privilege of it has been suspended in_ particular

circumstances, the Court has declared itself ready to consider

the validity of the suspension and, if it is found invalid, of

the detention.” Hart, “The Power of Congress to Limit the

Jurisdiction of Federal Courts: An Exercise in Dialectic,” 66

Harv. L. Rev. 1362, 1398 (1953) (hereinafter “Hart's

Dialogue’) (citing Ex Parte Milligan, 71 U.S. 2 (1866)).

Section 1005 violates the Suspension Clause for at

least two reasons. To begin with, the war on terror under

which detainees are being held at Guantanamo, grave though

it is, involves neither “Rebellion” nor “Invasion” such that

1]

Congress may suspend the writ. The seriousness of the war

on terror and the seriousness of the threat posed by Al] Qaeda

cannot be gainsaid. And amici believe that the United States

should, and under the Constitution does, have at its disposal

all the tools necessary to fight and win the war on terror. But

the Constitution contains no exception for wartime, and even

the Suspension Clause is limited to the circumstances

justifying its inclusion in the Constitution. “The Suspension

Clause was by design a safety valve, the Constitution’s only

‘express provision for exercise of extraordinary authority

because of a crisis.” Hamdi v. Rumsfeld, 542 U.S. 507, 562

(2004) (Scalia, J., dissenting) (quoting Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J.,

concurring)). As Justice Scalia wrote two years ago “Our

Federal Constitution contains a provision. explicitly

permitting suspension, but limiting the situations in which it

may be invoked.” Id.

There can be no question that there is no “Rebellion”

now taking place in the United States; we cannot imagine

that the Government would contend otherwise. Nor are we

faced today with any “Invasion” within the meaning of the

Suspension Clause. The dastardly attacks of September 1]

took place on American soil. But if they involved an

“invasion” sufficient to warrant suspension of the writ, that

invasion ended long ago. And if the threat of another such

act is enough of a threat of invasion to permit suspension of

the writ, then now, and for the rest of our lives, the writ may

be suspended throughout the United States, though there are

no ongoing hostilities and the civilian courts remain open.

The dictionary defines invade to mean “‘to enter for conquest

or plunder.” Mernam Webster Online Dictionary available

at http://www.m-w.com/dictionary/invade (first definition).

No such invasion is going on now and there are no ongoing

hostilities on American soil, the hallmarks of invasion.

Indeed, with its pairing of, “rebellion” with

“invasion,” the structure of the Clause confirms this reading

of the latter word. Both “rebellion” and “invasion” include

12

only situations when there is warfare here within the United

States. While the war on terror poses grave threats,

blessedly, at least at the moment, there is no such warfare.

Second, .this Suspension is not “required” by the

“public safety.” To begin with, the statute’s own terms make

any such claim impossible: The Act does not purport to

eliminate entirely federal court review of all claims even of

the most dangerous Guantanamo detainees, those who will

be tried by military commission and sentenced to death. See

DTA §1005(e)(3) (providing for limited review as of right of

this class of military tribunal convictions). Rather, this

statute seeks to effect, with respect to that most serious class

of cases, a rule of abstention, structuring, but not eliminating,

judicial review.

While this may be an appropriate action for Congress

to take with respect to other statutory causes of action, it may

not do so with respect to habeas. It is authorized to suspend

the writ only where public safety requires. But this kind of

law, which actually leaves federal courts open in the most

grave class of cases, renders implausible any argument that

suspension is required for the public safety.

Finally, the statute fails the public safety bar in a

second way. The Constitution’s Suspension Clause

envisions threats to public safety of the dimension associated

vith invasion or rebellion. And a congressional judgment

that such a threat exists must certainly be granted broad

latitude. But this does not leave this. Court without a

responsibility to exercise its judgment to determine that there

is at least a plausible case to be made that public safety is in

that serious way threatened by continued availability of the

writ of habeas corpus.

_ Here, no such claim can plausibly be made. The

circumstances under which Congress has acted to deny

habeas relief to the prisoners at Guantanamo — to overrule

this Court’s decision in Rasu/ — prisoners held in a United

States territory “far removed from any hostilities” and for

such a long period of time that “the case for contmued

13

detention to meet military exigencies” lacks force, Rasui,

542 U.S. at 487-488 (Kennedy, J., concurring), simply fails

even to resemble the situation of a threat to public safety that

could justify invocation of the Suspension Clause. And

indeed, the Government never even asserts that the need to

limit the nights of these individuals, held on a naval base on

an island ninety miles away from Florida, is related to public

safety at all. ;

Il. TO THE EXTENT §1005 PROHIBITS THIS

AND ALL OTHER FEDERAL COURTS

FROM HEARING CONSTITUTIONAL

CLAIMS OF GUANTANAMO DETAINEES,

INCLUDING PETITIONER, IT VIOLATES

ARTICLE Il.

Section 1005 goes beyond stripping the federal courts

of habeas jurisdiction. It purports further to bar “any other

action against the United States or its agents relating to any

aspect of the detention . . . of an alien at Guantanamo Bay,

Cuba” who is in military custody or who is held as an

“enemy combatant.”” §1005(e). This action, of course, was

brought not merely as one seeking habeas relief, but as an

action for mandamus as well, and that alternative basis for

district court jurisdiction implicates this aspect of the statute.

The statute eliminates jurisdiction with respect to an

entire class of cases, without regard for who the plaintiff is —

be it the detainee, his or her next frend, or some third party

injured by some aspect of the detention — and regardless of

the cause of action under which suit might be brought, be it

statutory, like the mandamus action here, see 28 U.S.C.

$1361, or directly under the Constitution for equitable relief,

see, €.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952); Ex Parte Young, 209 U.S. 123 (1908), or for

damages, see Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388 (1971). It eliminates federal court jurisdiction,

and hence the possibility of bringing all claims under the

federal constitution, including Due Process claims such as

the one recognized in //amdi v. Rumsfeld, 542 U.S. 507

14

(2004), for detention without process and Fifth Amendment

claims alleging that a detaince’s treatment violated Due

Process. In fact, it eliminates for these many hundred

detainees, and whatever other detainees the President orders

transferred to Guantanamo, even claims for violation of the

statutory prohibition of torture contained in the Detainee

Treatment Act itself. See DTA §1003 (“No individual in the

custody or under the physical control of the United States

Government, regardless of nationality or physical location,

shall be subject to cruel, inhuman or degrading treatment or

punishment”). :

Indeed, it purports to create a class of individuals

housed in a geographical law-free zone, where they are

subject to Executive whim without hope of judicial reprieve,

a dangerous and unprecedented situation never countenanced

by our courts, and one this Court again refused to permit as

- recently as Rasul v. Bush.

Petitioner himself is within this class, for although

there 1s an exception to the jurisdictional bar permitting those

sentenced by a military commission to death or to a sentence

of ten years or more to bring an appeal as of nght in the D.C.

Circuit, which also was given discretionary jurisdiction over

other convictions by military commission, see DTA

§1005(e)(3), the jurisdictional bar as Respondents would

have this Court construe it purports to extinguish the

possibility of Petitioner obtaining federal judicial relief for

the very constitutional! violation alleged here: The violation

wrought by forcing a man to stand trial and face life

imprisonment before an _ unconstitutionally composed

tnbunal that is without authority ah initio so to try him. This

is not a violation for which under our Constitution one may

be made to wait for redress until after a tainted verdict has

been announced. See, e.g., Abney v. United States, 431 U.S.

651, 659, 661-662 (1977) (internal quotation marks and

Citations omitted) (a constitutional claim “contesting the very

authority of the Government to hale [the putative defendant]

into court to face trial,” there one under the Double Jeopardy

3 15

Clause, is a claim that government may not “subject([t} [that

person] to embarrassment, expense and ordeal and compef[]]

him to live in a continuing state of anxiety and insecurity;”

consequently “if a criminal defendant is to . . . enjoy the full

protection of the [Constitution], his . . . challenge ... must

be reviewable before that subsequent [trial ].’’)

In stripping the federal courts of jurisdiction to hear

any and all constitutional claims arising among detainees at

Guantanamo, this unprecedented statute violates Article IJII

of the Constitution in two ways.

First, if it is construed to limit this Court’s

jurisdiction, it violates the Article III principle articulated by

Professor Hart in his landmark Dialogue. While the

Congress has broad authority to regulate the jurisdiction of

federal courts under the Exceptions Clause, U.S. Const. Art.

Ill, Sec. 2,° that authority has a limit. As Professor Hart

explained, Congress may not make exceptions to this Court’s

appellate jurisdiction “as will destroy the essential role of the

Supreme Court in the constitutional plan.” Hart’s Dialogue,

66 Harv. L. Rev. at 1402; cf. Felker, 518 U.S. at 667 (Souter,

J., concurring) (noting that it is an “open” question whether a

law completely barring Supreme Court review, even of lower

court determinations answering the nonconstitutional

question whether a habeas petition is successive, exceeds

Congress’s Exception Clause power).

Second, if DTA §1005 is construed to apply to this

case, this statute goes even further, raising, for the first time

in the nation’s history, the “‘serious constitutional question”

this Court has always in the past avoided “that would arise if

a federal statute were construed to deny any judicial forum

for a colorable constitutional claim.” Webster v. Doe, 486

U.S. 592, 603 (1988). This Court has avoided that question

* “In all other Cases before mentioned, the Supreme Court shall

have appellate Jurisdiction, both as to Law and Fact, with such

Exceptions, and under such Regulations, as the Congress shall

make.”” U.S. Const. Art. Ill, Sec. 2.

16

in what might be called an aggressive manner. Indeed, in

Webster, while Justice Scalia urged that “it is simply

untenable that there must be a judicial remedy for every

constitutional violation,” id. at 613 (Scalia, J., dissenting),

not a single other Justice joined him. This Court has never

held that Congress may strip the Supreme Court of

jurisdiction over certain constitutional claims without vesting

authority in some federal court to hear those cases. And,

given the conclusion reached in Rasu/ and Hamdi that the

treatment of detainees on sovereign American territory many

thousands of miles from the battlefield and months or years

after their capture is not within the absolute discretion of the

President in exercise of his commander-in-chief power, but

is subject to constitutional challenge before the federal

courts, the core Article IIJ principle underlying that history

must be applied equally here.

Whatever the scope of Congress’s power over federal

court jurisdiction, if the statute were read to oust federal

courts from all jurisdiction to hear Petitioner’s constitutional

claims, such action would infringe on the irreducible

minimum committed to this Court and the lower federal

courts by the Constitution, the “judicial power of the United

States” vested in them by Article III. This Court should, of

course, construe the statute not to apply to this case in order

to avoid this most grave constitutional question. But if it

should find itself unable to do so, it must hold the statute

unconstitutional as a violation of Article IIL.

IV. TO THE EXTENT §1005 EXTINGUISHES

PETITIONER’S CONSTITUTIONAL

CLAIMS, IT VIOLATES DUE PROCESS.

As Chief Justice John Marshall long ago observed,

there can be no right without a remedy. “The government of

the United States has been emphatically termed a

government of laws, and not of men. It will certainly cease

to deserve this high appellation, if the laws furnish no

remedy for the violation of a vested legal right.” Marbury v.

Madison, 5 U.S. 137,163 (1803) (Marshall, CJ.). Under this

17

principle, if §1005 is held to apply to this case it will, in

unprecedented fashion, extinguish the constitutional rights of

Petitioner and all other detainees held at Guantanamo, rights

for the vindication of which this Court has determined they

may invoke the jurisdiction of the federal courts. See Rasul,

542 US. at 484; id. at 483 n. 15. Because the Act would do

so solely on the basis of these detainees’ geographic location

at Guantanamo Bay, it would do so arbitrarily and in

violation of the Due Process Clause of the Fifth Amendment.

It is well-settled that, as a matter of Due Process, a -

legal claim may be denied only upon “a fair assessment of

the facts and the law.” See M.L.B. v. S.L.J., 519 U.S. 102,

129 (1996) (Kennedy, J., concurring). Thus an individual

may not be barred from prosecuting even an otherwise-

available appeal from a paternity suit — a legal action that the

Constitution does not require be provided in the first instance

~ solely on the basis that she has inadequate funds to pay to

prepare the record. Id.; see also id. at 570 (opinion of the

Court) (relying on both Due Process and Equal Protection).

To extinguish her right on that basis would be arbitrary and

would thus violate Due Process.

Similarly, this Court found that the mandatory

dismissal of a discrimination claim based solely upon the

actions of a government official in failing to hold a

statutorily-required conference within a mandatory 120-day

period violated the claimant’s nghts under the Due Process

Clause. Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982). The Constitution does not permit a legal claim to be

denied solely on such an arbitrary basis, but requires an

opportunity to present one’s case and to have it fairly judged

on the ments. “[T]he State may not finally destroy a

[constitutionally protected] interest without first giving the

putative Owner an opportunity to present his claim of

entitiement.” Id. at 433.

If it is construed to apply to this case, $1005 presents,

in a far more serious context, precisely the situation

described in Logan and M.L.B. The statute does not purport

18

to alter Petitioner’s substantive rights. It “is a procedural

limitation on the claimant's ability to assert his rights.”

Logan, 455 U.S. at 434. “[T]he Due Process Clause grants

the aggrieved party the opportunity to present his case and

have its merits fairly judged.” Id. at 433. Yet in this case,

solely by reason of Petitioner’s placement at Guantanamo

Bay by the very Executive Branch whose actions are at issue

here, the statute purports to extinguish his right to

adjudication of his constitutional and other claims.

Here, the most fundamental rights recognized in our

law are at stake. Petitioner seeks to avoid being put on trial

for a grievous crime before what he alleges is an

unconstitutionally composed tribunal. Among other things,

he alleges that the unconstitutional composition of the

tribunal inherently prevents it from rendering the fair and

tmpartial verdict required by American law. He alleges that

the Government may not put him through the “ordeal and

compe[l] him to live in a continuing state of anxiety and

insecurity.” Green v. United States, 355 U.S. 184, 187

(1957). And this Court cannot ignore what is true: the

implications of a guilty verdict rendered by such a tribunal

will infect any and all subsequent proceedings in his case —

in a way that may well cost him his freedom for the rest of

his life. Cf. Bush v. Gore, 531 U.S. 1046, 1047 (2000)

(order granting stay) (Scalia, J. concurring) (counting of

presidential election ballots under a system alleged to be

unlawful! had to be stopped ex ante in order to avoid the taint

of illegitimacy it might cast on the eventual victor).

The Due Process violation is even more troubling

than similar ones that have confronted the Court, for the

condition upon which a detainee’s nghts are extinguished —

detention at Guantanamo Bay — is not fixed ex ante.

Detainees are wholly within the power of the Executive

Branch of Government and, absent some judicial action,

completely at its mercy. They may be held at any location,

literally anywhere in the world, and may be transferred from

one location to another at the absolute discretion of

19

Executive Branch officials. Detainees who have been

declared “enemy combatants” have, indeed, been held not

only at Guantanamo, but at other locations throughout the

world, including within the continental United States. See,

e.g., Hamdi, 542 U.S. at 510 (detainee held in South

Carolina). The troubling degree of Executive power thus

conveyed by the statute to extinguish detainees’ claims only

exacerbates the Due Process violation involved.

V. TO THE EXTENT §1005 ELIMATES THIS

COURT’S JURISDICTION OVER THE

FEDERAL CLAIMS OF DETAINEES HELD

AT GUANTANAMO BAY, IT VIOLATES

EQUAL PROTECTION.

This Court has determined that detainees in

Guantanamo are entitled to petition for writs of habeas

corpus and to invoke the protection of the Constitution and

laws of the United States. Rasul, 542 U.S. at 484. To the

extent the DTA is read to eliminate for those held at

Guantanamo Bay all federal court jurisdiction to hear their

claims of violations of federal constitutional and statutory

law, original and appellate, pending and yet-to-be filed, it

violates the Equal Protection component of the Due Process

Clause of the Fifth Amendment. See Adarand Constructors

v. Pena, 515 U.S. 200, 217 (1995) (“the equal protection

obligations imposed by the Fifth and the Fourteenth

Amendments [are] indistinguishable”’).

As Chief Justice Marshall again explained for the

Court, “The very essence of civil liberty certainly consists in

the nght of every individual to claim the protection of the

laws, whenever he receives an injury. One of the first duties

of government is to afford that protection.” Marbury y.

Madison, 5 U.S: at 163.

A jurisdiction-stripping statute of the breadth claimed

by the Respondents for §1005 would leave Petitioner with no

protection of the laws. It would deny individuals placed at

Guantanamo Bay by the Government equal protection of a//

the laws. No statute has ever been construed by this Court to

20

have such an effect upon individuals entitled to invoke the

Constitution’s protection. Indeed, this Court has observed

that such a “disqualification of a class of persons from the

right to seek specific protection from the law is

unprecedented in [this Court’s] jumsprudence.” Romer y.

Evans, 517 U.S. 620, 632 (1996).

Such a blanket denial to those placed by the

Administration in the prison camp at Guantanamo Bay

would have “the peculiar property of imposing a broad and

undifferentiated disability on a single named group.” Id. at

632. This Court has ruled that this is “an exceptional and. . .

invalid form of legislation,” id., as of course it must be under

a Constitution that guarantees Equal Protection to all

“person{s}.” U.S. Const. Amdt. XIV.

“It is not within our constitutional tradition to enact

laws of this sort.” Romer, 517 U.S. at 633. And even if

some balancing were appropriate to determine whether such

a law complied with the Constitution’s command, the statute

here could not survive. There is no compelling state interest

that requires that detainees at Guantanamo be treated worse

than detainees held elsewhere in the world. As this Court

has already ruled, there can be no genuine claim of military

necessity concerning the rules at Guantanamo so long as it

remains “far removed from any hostilities” and the periods

of detention have “stretched to months and years,” well

beyond the “matter of weeks” during which a claim of such

necessity would have strength. See Rasul, 542 U.S. at 487-

488 (Kennedy, J., concurring). Nor,-indeed, is there even

any rational basis for such a distinction so long as detention

at Guantanamo, rather than any of the myriad other federal

military detention facilities, remains solely a matter of

Executive Branch discretion. See supra at 18-19.

CONCLUSION

It is essential that this Court not permit the Judicial

Branch’s authority to rule on questions of constitutional right

to be ousted by statute, and that this Court’s own doors

remain open to appeals like the one in this case.

21

Respondents’ motion should be denied and this Court should

hear and address the merits of the case in due course.

Respectfully submitted,

PETER J. RUBIN

Counsel of Record

Georgetown Univ. Law Center

600 New Jersey Ave., NW

Washington, DC 20001

(202) 662-9388

Counsel for Amici Curiae

January 31, 2006

BEST AVAILABLE COPY

~ }

; oe,

—_ 4

No. 05-184

IN THE

Supreme Court of the Anited States

Saciht AHMED Hanipan,

Peniione?,

\

DON ALD H. RUMSFELD. ET AL..

Respondents

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF 1PPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

AMICUS CURIAE BRIEF OF 422 CURRENT AND

FORMER MEMBERS OF THE UNITED KINGDOM

AND EUROPEAN UNION PARLIAMENTS IN

SUPPORT OF PETITIONER

jInternational Law—Need For Adherence|

CLAUDE B. STANSBURY

(Counsel of Record)

Freshtields Bruckhaus Deringer LLP

7U1 Pennsylvania Avenue, NW

Washington. DC 20004-2692

(202) 777-4500

Counsel for Amica Curtae

We sta Bee: Petsite Co tty - $22 54 SG - Wieeeliog O C Loot

TABLE OF CONTENTS

TABLE OF AUTHORITIES 0000.0.0...0.cccccccccceceeteeneeeeees iv

INTEREST OF THE AMICI CURIAE 000000000..0..ccccccceceeees l

SUMMARY OF ARGUMENT 0... ooccccccccccteceeeneeeeeees 3

SED sncriccsnsinnnsteninsnnsinsecssiiaiensstionasennapiinsssanniasaneninii 4

|

I. The United States And T ie Nations Of Europe

Share A Common Heritage Of Respect For

Human Rights And The Rule Of Law ................... 4

A. The United States Has Long Been A Standard

Bearer For Human Rights And The

SETI sisisinssinibnttiingtniappeinbiadniiiannanibtonesactinine 4

B. Our Common Heritage Is Codified In A

Network Of Human Rights Treaties And

Other International Legal Obligations ........... 5

1. The United States Is Bound By The

SERIF Race Eee 6

2. The United States Is Bound By The

Torture Convention ........0......0.0.:ccccccccceeeeee 7

3. The United States Is Bound Not To

Defeat The Object And Purpose Of

SIT dcusiienintaeniicaiscbadetniesdisitinaddieadteiatiaitias 8

4. Customary International Law Obliges

The United States To Respect

Fundamental Human Rights .................... 9

C. It Is Crucial For The International Legal

Order That The United States Abide By

Its International Legal Commitments ............ 10

The War On Terror Is Not Conducted In A

Legal “Black Hole”: It Is Governed By

International Legal Standards Of Human

Rights And Respect For The Rule Of Law ...........

A. International Legal Standards Of Human

Rights And Respect For The Rule Of Law

Apply To The Conduct Of The United

States Anywhere In The World .......................

B. International Legal Standards Of Human

Rights And Respect For The Rule Of Law

Apply In Time Of Armed Conflict And

National Emergency ...............:.:-::eccsesseeeeneeenees

C. International Legal Standards Of Human

Rights And Respect For The Rule Of Law

Apply In Respect Of Alleged Al Qaeda

Di emBOTS ......cccccrccscscsessoresecssceoccesserscnscossessoeses

The Military Commission System Does Not

Meet International Legal Standards Of Human

Rights And Respect For The Rule Of Law ...........

A. The Military Commission System Violates

Prisoners’ Right To An Impartial

Determination Of Their Guilt Or

PID cenccsecescusssescosnesssnsensorsenisnevennnnneoneenscses

B. Military Commissions Violate International

Law Because There Is No Appeal To An

Independent Judicial Body ..................-.....000++.

C. Military Commissions Deny Prisoners’

Right To A Speedy en

D. Military Commissions Violate The Right

To A Fair Trial Because They Admit

Evidence Obtained Through Torture .............

11

11

13

15

16

16

19

21

23

USUTIITIITIITIITY ‘dlccicinleisesaseteshasedscensbicibusiseaubiiesinatipionainiamebasodamasion

APPENDIX

SHEER REET EEE HEE EEE HEHEHE EEE EEE EEE EEE EHR OHHH ROH EE

TABLE OF AUTHORITIES

UNITED STATES MATERIALS

Cases

Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001) ..........000

Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005) .............

Haynes v. State of Washington, 373 U.S. 503 (1963) .........0+

Kadic v. Karad, 70 F.3d 232 (2d Cir. 1995), cert.

denied, 518 U.S. 1005 (1996) . .........sscsseccecssesseeesreeseerseeeneeees

Martinez v. City of Los Angeles, 141 F.3d 1373

(Sta Clie. 199G) ....cecvesserscrerescercensonscescsssssesscsonessecsoossnsesseseonensones

Rasul v. Bush, 542 U.S. 466 (2004) .......:.:c0008 esevensneuneneeenatin

Thompson v. Oklahoma, 487 U.S. 815 (1988) .......ccceceseeeeees

United States v. Matta-Ballesteros, 7\ F.3d 754

(Dd Cli. 19DS) o00ccecescosscrsccersssecesnsosnenvenesensescessesseanessssosnesensean

U’Ren v. Bagley, 245 P. 1074 (Or. 1926) ......cceceereeeereneeneenees

Wong Sun v. United States, 371 U.S. 471 (1963) ....cccceeeeeeee

Treaties

American Convention on Human Rights, Nov. 22, 1969,

yo Lit & A > . Rana

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment,

YO LR kA | Ba ee See

European Convention for the Protection of Human Rights

and Fundamental Freedoms, Nov. 4, 1950,

DUD UTE TB. FBI ccccccccccessscsccessccennssocensesssnstsnnsessnesasshentanenssian

iv

23

Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 2, 1949, 6 U.S.T. 3114,

SE TES Se eee passim

International Covenant on Civil and Political Rights,

i ee , scseenensounoonoonononncs passim

Protocol Additional to the Geneva Conventions of 12

August 1949, and relating to the Protection of Victims -

of International Armed Conflicts (Protocol I), art. 1(2),

adopted June 8, 1977, 1125 U.N.T.S. 3 .o.cccccccsecsecssesseeseeeeeers 13

Vienna Convention on the Law of Treaties, May 23,

LRT TSS AEN 8,12

Executive Materials

Department of Defense Directive 5105.70, available at

http://www0.dtic.mil/whs/directives/corres/pdf/d510570_

I a race cincindccrcencemecanecenatns 17

Department of Defense, Military Commission

Instruction No. 9 (Oct. 11, 2005), available at

http://www.defenselink.mil/news/Oct2005/

d2005101 4MCI9. pdf sseeedenditigsneesinpnsandddennensnegsaescinenessnessnessnansees 17

Department of Defense, Military Commission Order

No. | (Aug. 31, 2005), superseding Department of

Defense, Military Commission Order No. |

(Mar. 21, 2002), 32 C.F.R. §§ 9.1 to 9.13 (2005) oo... passim

Exec. Order No. 13,107, 61 Fed. Reg. 68,991

ES cae 5,8

Letter from William J. Haynes Il, General Counsel of the

U.S. Department of Defense, to the Honorable Patrick J.

Leahy, dated June 25, 2003, available at http://www.

hrw.org/press/2003/06/letter-to-leahy pdf ............ccccccccccceeees 24

\

Military Order of November 13, 2005, “Detention,

Treatment, and Trial of Certain Non-Citizens in the War

Against Terrorism,” 66 Fed. Reg. 57,833

ee

Secretary of State Condoleezza Rice, Statement at

Press Event with Ukrainian President Viktor Yushchenko

(Dec. 7, 2005), transcript available at

- http://www.state.gov/secretary/rm/2005/57723.htm ........ pesase

Legislative Materials

138 CONG. REC. $4784 (daily ed. Apr. 2, 1992) ..........c000

S. Exec. Rep. No. 23, 102d Cong., 2d Sess. (1992) ........00+

INTERNATIONAL MATERIALS

Cases

A and others v. Sec’y of State for the Home Dep't;

X and another v. Sec’y of State for the Home Dep't,

[2004] UKHL 56 (Dec. 16, 2004) ........cccceceeeenerenseeseneenennnenes

A and others v. Sec’y of State for the Home Dep't,

[2005] UKHL 71 (Dec. 8, 2005), available at

http://www.publications.parliament.uk/

pa/ld200506/Idjudgmv/jd05 | 208/aand.pdf ...............eeereeee

Brown v. Jamaica, H.R.C. Communication No. 775/1997,

U.N. Doc. CCPR/C/65/D/775/1997 (Mar. 23, 1999) .............

Cagas v. The Philippines, H.R.C. Communication

No. 788/1997, U.N. Doc. CCPR/C/73/D/788/1997

(O6t. 23, ZOOL) ...ccccorerecerescrccssercccccsssessvenencosscsserevscseseosenssessoces

Casaregio v. Uruguay, No. 56/1979, Views of the H.R.C.,

U.N. Doc. CPR/C/13/D/56/1979

(July 29, 1981) .........cccccrccssersorserseeseeneserensesssessnssssssoesessserenss

vi

Coard v. United States, Case 10.951, Inter-Am. C.H.R.,

Report No. 109/99, OEA/Ser.L./V/II.106,

RE eS a a passim

Cooper v. United Kingdom,

IED cccintiitgniteteeinsiabiiniiaiainaidinaiaiiiiniaias 18

Findlay v. United Kingdom,

NL I RE ES passim

Francis v. Trinidad and Tobago, H.R.C. Communication

No. 899/1999 (views adopted on July 25, 2002) ......0.0.0000..... 23

Grieves v. United Kingdom,

RCO ee DE ETN 18

Hauschildt vy. Denmark,

RETRO OE Ee 18

Hill v. Spain, H.R.C. Communication No. 526/1993

(views adopted on Apr. 2, 1997) ............cccsccscssscesecsessseseseesese 20

Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territories, 2004 1.C.J.,

(Advisory Opinion of July 9, 2004), available at

http://www. icjcij.org/icjwww/idocket/imwp/imwp _

EE ELE aE CR passim

Liversage v. Andersen, [1942] A.C. 206 (H.L.) ........cccccceceeeee 2

Lopez Burgos v. Uruguay, No. 52/1979, Views of the

H.R.C., U.N. Doc. CCPR/C/13/D/52/1979

SERIE SOUR, TIED cicricincnerhceeansiinniesinecdinaninitiidtiiapmebiininiapiatanimttiinsseas 12, 13

Paul v. Guyana, H.R.C. Communication No. 728/1996,

U.N. Doc. CCPR/C/73/D/728/1996 (Dec. 21, 2001) ......0.0.... 24

vii

Prosecutor v. Hazim, Case No. IT-96-21, (ICTY Appeals

Chamber Decision of Nov. 22, 1996),

available at http://www.un.org/icty/celebici/appeal/

Goclates- SIG) TTI TG III ccccccecscoccsssscscsnsesessssssscessssesssressscssese 20

Roach and Pinkerton v. United States, Case 9647, Inter-Am.

C.H.R., Report No. 3/87, OEA/Ser.L./V/11.71,

Bas. DEBU. 0 CIDBT) .cecccccccssescsccesesescscsecessscsscescsssnessssssseosssorecs y

Sextus v. Trinidad and Tobago, H.R.C. Communication

No. 818/1998, U.N. Doc. CCPR/C/72/D/81 8/1998

(Daaly 16, 2001) ........ccsosecesrecsessessorsvesessnenreerensenseosnencsesssssoseorers 23

Vazquez v. Spain, H.R.C. Communication No. 701/1996,

U.N. Doc. CCPR/C/69/D/701/1996 (Aug. 11, 2000) ............ 20

Other International Materials

American Declaration of the Rights and Duties of Man,

May 2, 1948, reprinted in Basic Documents Pertaining to

Human Rights in the Inter-American System,

OEA/Ser.L. V/I1.82 doc. 6 rev. 1 (1992) ...cccccccccccerereeeneeeeneees 9,12

General Comment No. 29, States of Emergency (article 4),

U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001) .......secsseerseseees 15

H.R.C. General Comment 8(16), U.N. Doc.

BEA IE ARGO ccccecccssssesssssnssssveserscecseneresssnesasssssnnnennassneensees 21

H.R.C. General Comment No. 13(21), U.N. Doc.

OO OOO SSS 21

H.R.C., General Comment No. 20, U.N. Doc.

AD cccccscscnsesnccnsstnnsnsnntstnancsnsseesesenetnesnestiusnmmmentes 24

International Bar Ass’n, “IBA calls for end to use of

(Emergency) Supreme State Security Courts and military

courts in Egypt,” Feb. 2000, available at

http://archive.ibanet.org/humri/intervent.asp .............---.eseee0 20

vill

Report submitted by the United States of America under

Article 40 of the ICCPR, U.N. Doc. CCPR/C/81/Add 4

FEUD ccrvscecsnansniatisdanasinepiastguennanpititnennileaipiastenseieiaantiiininaede

Universal Declaration of Human Rights, Dec. 10, 1948,

G.A. Res. 217A, 3 U.N. GAOR, U.N. Doc. A/810 ............... passim

OTHER MATERIALS

Brief of Human Rights Institute of the International

Bar Association as Amicus Curiae in Support of Petitioners,

Rasul v. Bush, 542 U.S. 466 (2004)

RN ee a a TT

Brief [Revised] of 305 United Kingdom and European

Parliamentarians as Amici Curiae in support of Petitioner-

Appellee, Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005)

Se We csstincnetisensctssssitapennecsietnntiessnnteiiidineegiiiavninsnaigeeindunats

~ J. Kennedy, Inaugural Address (Jan. 20, 1961),

reprinted in Inaugural Addresses of the Presidents of the

United States, S. Doc. No. 101-10 (1989) oo... cccceeee,

Leslie C. Green, The Contemporary Law of Armed Conflict

RNS IPITED ‘ccscteshrteninsinteantanitecntsdadstinnasndiniidtiptanttenitaiiemtiianmabanees

Memorandum of Law on Behalf of 271 United Kingdom and

European Parliamentarians as Amici Curiae in support of

Petitioner, Hamdan v. Rumsfeld, 344 F. Supp. 2d. 152

(D.D.C. 2004) (No. 04-1519-FR) ........ccccccccsesccessceeceseerteesenens

ix

INTEREST OF THE AMICI CURIAE

This brief is submitted on behalf of a group of 422 U.K.

and European parliamentarians, including 310 current or former

Members of the U.K. Parliament and 112 current or former

Members of the European Parliament (the “amici”).' The full list

of amici is attached as an Appendix to this brief.

Amici are drawn from all across Europe, and the group

spans the political spectrum, including senior figures from all

major political parties in the U.K.. The grou, also includes 13

former judges of the highest court in the U.K.; senior lawyers;

former Cabinet Ministers, including a Secretary of State for

Defense; a former Attorney-General; a former European

Commissioner and U.K. ambassador to the United Nations; two

former Speakers of the House of Commons; 13 Bishops and

Archbishops of the Church of England; a former Archbishop of

Canterbury; a Vice President of the European Parliament; and a

former Vice President of the European Commission.

The same amicus group (originally numbering 271, then

304 and now 422 signatories) filed briefs in support of Hamdan ia

the courts below and also supported Hamdan’s petitions for

certiorari. In each of those filings, as here, amici express no view

on whether Hamdan has engaged in acts of terrorism or any other

conduct in violation of the laws of war, international law more

generally, or U.S. law. Nor do amici seek to express any view on

the legitimacy of the military action in Afghanistan or Iraq or the

politics or tactics of the “war on terror” in general. These are

questions on which amici hold differing individual views.

Amici have participated in this case from the outset

because, despite their divergent political views, they share a

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

Clerk. No counsel for a party in this case authored the brief in whole

or in part and no person or entity other than the amici or their counsel

~ made a monetary contribution to the preparation or submission of

this brief.

common view that it is important to the international legal order

that, even when faced with the threat of international terrorism, the

United States comply with the standards set by international

humanitarian law and human rights law. Amici have taken part in

these proceedings to urge the courts to ensure that the treatment

accorded to prisoners such as Hamdan—be they terrorists or not—

meets these standards.

The outcome of this case is, for Hamdan, of course, of

enormous personal significance: he faces the prospect of being

cast outside the legal order, into a shadow world where neither the

Constitution or Laws of the United States nor the rules of

international law specifically applicable to individuals caught up in

armed combat, nor apparently even the rules of international law

relating to fundamental human rights, give him any protection.

For the community of liberal democracies committed to

the rule of law, which each member of the amicus group is or has

been privileged to serve, the stakes are equally high. While this

case presents a number of contested issues of U.S. law (which

amici do not address), to the outside world it boils down to the

simple, but crucial, question of whether the system of legal norms

that purports to restrain the conduct of states vis-a-vis individuals

within their power will survive the terrorist threat. This case can

thus be seen as one battle in the war between the evil logic of

terrorism and the bedrock principles that individuals are entitled to

fair and humane treatment and that the actions of all states are

subject to the rule of law—principles which American and

coalition soldiers today fight to uphold in Afghanistan, Iraq and

elsewhere.

If the Court of Appeals’ determination that law, including

international law, offers no protection to individuals such as

Hamdan is the last word on this question, amici fear that the lesson

that will be drawn by the wider world is that the evil of terrorism

has proved more than a match for our principles. Amici urge this

Court to reaffirm what liberal democracies the world over have

long asserted: that even “amid the clash of arms, the laws are not

silent.” Liversage v. Andersen, [1942] A.C. 206 (H.L.).