# Amicus Curiae Brief — Hamdan v. Rumsfeld

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0208%3A46

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 557

## Text

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.).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0208%3A46. Public record. Not legal advice.