Amicus Curiae Brief — Hamdan v. Rumsfeld

i

ia | : Supremo Cow, US,

No. 05-184 FILED

IN THE JAN 6 2006

LS tt

Supreme Court of the United Stateverc: OP THE CLERK

SALIM AHMED HAMDAN,

Petitioner,

Vv.

DONALD H. RUMSFELD,

SECRETARY OF D®FENSE, er al.,

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DistRICT OF COLUMBIA CIRCUIT

BRIEF OF MILITARY LAW HISTORIANS, SCHOLARS,

AND PRACTITIONERS (Military Commissions and the

Articles of War)

TERESA WYNN ROSEBOROUGH

Counsel of Record

CHARLES Lester, JR.

Joun A. CHANDLER

ELIZABETH V. TANIS

JENNIFER M. Rusin

LEIGHTON Moore

AnprEW W. Broy

KRISTEN H. GLOVER

SUTHERLAND AsBILL & BRENNAN LLP

999 Peachtree Street, N.E.

Atlanta, GA 30309

(404) 853-8000

Counsel for Amici Curiae

198797 cr

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ............

INTERESTS OF THEAMICI CURIAE ..........

SUMMARY OF THE ARGUMENT ............

CTT ETT TST TTT TPT TTLT TTT Teer

A. CONGRESS HAS ULTIMATE AUTHORITY

OVER THE CREATION OF MILITARY

GEUUE 6 obec ccnidevideccnnnse

1. The Constitution Gives Congress

Authority over the Procedures and

Regulations for Military Commissions.

See eee eee eee e Be ee ee 6. See eS eee 6 68 6 Se

2. Congressional Authority over Military

Commissions Has Been Recognized by

the Executive and Military Officers and

in Legislative History. ..............

B. ABSENT A SUFFICIENT IMPRACTICABIL-

ITY FINDING WHEN CONDUCTING MILI-

TARY COMMISSIONS, THE PRESIDENT

MUST APPLY THE PRINCIPLES OF LAW

AND RULES OF EVIDENCE GENERALLY

RECOGNIZED IN THE UNITED STATES DIS-

GS. bonne vW'00 5b5 Shee ude.

Page

il

Contents

The Plain Language of Article 36 Provides

That the Rules Generally Applied in

Military Commissions Are to Be Those

Recognized in the District Courts. ....

The President Has Not Overcome the

Presumption That Congress Intended for

His Impracticability Determination to Be

Subject to Judicial Review. ..........

The President’s Impracticability

Determination Should Be Reviewed

Under the “Arbitrary or Capricious”

PEED cb v-cuectsnecvccsoseveseus

The President’s Impracticability Finding

Is Arbitrary and Capricious. .........

The President’s Impracticability Finding

Is Not Sufficiently Detailed to Allow for

Meaningful Judicial Review. .........

THE PROCEDURES ADOPTED BY THE

MILITARY ORDER SHOULD BE

REJECTED AS INCONSISTENT WITH

THE HISTORICAL UNDERSTANDING OF

“MILITARY COMMISSIONS” ENACTED

Fe tf PPT eee TUTTI TT TTT eee

Page

1]

16

17

iii

Contents

When Congress Used the Term “Military

Commissions” in Article 36 of the

Uniform Code of Military Justice, It

Intended the President to Act

Consistently with the Historical

Understanding of What Constitutes a

Military Commission. ..............

Historically, Military Commissions

Have Included Core Procedural

Safeguards Designed to Provide

Defendants with a Fair Opportunity to

Rebut the Charges Against Them. .....

a. The Mexican War: The First

Military Commissions Adopted

Court-Martial Procedures. .......

b. The Civil War: Procedures in

Military Commissions Continued to

Conform Closely to Court-Martial

a EE rer err

c. The Philippine Insurrection:

Military Commissions Followed the

Scott Model and Used the Same

Procedures as Courts-Martial.

Page

18

21

23

25

iv

Contents

Page

d. As of 1916, “Military Commissions”

Included a Core Group of Procedural

Safeguards That Generally Were

Identical to Those Provided in Courts-

PEE 0 b0ccsnecbucueeawenans 26

3. The Tribunals Established by the

Military Order Lack Necessary Features

of Military Commissions as They Have

Been Historically Understood. ....... 27

CER MAMEES cv ccccpeceserdccisvaveneenent 30

TABLE OF CITED AUTHORITIES

Page

CASES:

Atchison, Topeka & Santa Fe Ry. v. Wichita

Bd. of Trade, 412 U.S. 800 (1973) ........ 12, 16, 17

Black v. Romano,

SE 16

Board of Governors v. Agnew, ;

<< noch able 6 a6eesen veces 11

Franklin v. Massachusetts,

i ike pcp eekeduttcedesesd 14

Gutierrez de Martinez v. Lamagno,

enc d dee cdandeeecucns ll

ICC v. Louisville & Nashville R.R.,

eh ie ae tk eneeeeesesece 13

INS v. Chadha,

CTE eed ckeeeet 11, 12

Industri’ Union Dep't, AFL-CIO v. American

Petroleum Inst., 488 U.S. 607 (1980) ......... 10

J.W. Hampton, Jr. & Co. v. United States,

oe ee de cuweensnnsees 10

Korematsu v. United States,

ee eee eene’s 28

vi

Cited Authorities

Page

Leedom v. Kyne,

Se ED 8.bs'n calcth buuaesbanaaees 11

Loving v. United States,

Dae Gs POP EEED bbcdecussccoseses 4,10, 12,14

Madsen v. Kinsella,

ee ED nnecusenkeenesuncaeess 6

Ex parte Milligan,

gO Rr TTT re 27

Mistretta v. United States,

Fe rere 5, 12

Molzof v. United States,

fe frre rr rere 18

Morissette v. United States,

S42 U.S. 246 (1952)... 2. cc ccccccccccceves 18

Public Citizen v. U. S. Dep't of Justice,

ee ee ED oubadunenatcetasdectans 6

Shields v. Utah Idaho Cent. R.R.,

Pe, CUT EROEED ob cncncvsevaeneneenes 12, 13

Tagg Bros. & Moorhead v. United States,

Fe es GPO Kc cccbhaccvekebessesecns 13

vil

Cited Authorities

United States v. Bin Laden,

126 F. Supp. 2d 264 (S.D.N.Y. 2000) ......

United States v. Curtis,

PEs SCONES 6.6 eee cctcdacsesescens

United States v. Gotti,

155 F.3d 144 (2d Cir. 1998) ..............

United States v. Little Lake Misere Land Co..,

ee bend ieee cae

United States v. McVeigh,

153 F.3d 1166 (10th Cir. 1998) ...........

Wolff v. McDonnell,

SE es SE CUO TD Se sevesevcctscweces

In re Yamashita,

Fe Wes SEED nove cecccccdcccccecens

CONSTITUTION:

a Ce, Oe, SP vo cceceecetaseve

i Cr Cr La, Oo cvceseodecoanees

ee eee Oe Oe © oc vessttonvee ses

Page

15

14

15

13

15

16

27

vill

Cited Authorities

Page

STATUTES:

PUES cevcccccsescssccveeteoceseces 12

DU EP MOEED ccccntesceccccosecsvcseess 14

SPU EEE Gawasdvodcecccescadtnseeeendn 8

Fe OED Coc ccncctsvedecescsecs 3, 12, 14, 18

RE OIG on dicks ice ceenieuaeseaans 27

FP ee DEED KE ce ccieceusertiviedeneens 5 16

ee i oc ciuk daceodutnadeen ane 16

PP EE cteducccscccccescscsseneess 16

Fe PERE. vec ccoscccnscecesuncneecns 18

1916 Revised Articles of War, Article 36 ......... 9

Intelligence Reform and Terrorism Prevention Act

of 2004, Pub. L. No. 108-458 § 6001 ......... 16

Act of Apr. 10, 1806, 2 Stat. 359 (1845) ......... 22

Act of Aug. 29, 1916, § 1342, art. 38, 39 Stat. 418,

|e RE ee at Be EEC 82 oe Wee 4

ix

Cited Authorities

Armies of the United States, Apr. 10, 1806, 2 Stat.

PE PR UE ED be cccevedavecsaciene

Civil Liberties Act of 1988, Pub. L. 100-383, 102

BR. Fa GUD cece cccctecdvesceceseses

Classified Information Procedures Act, Pub. L. No.

96-456, 94 Stat. 2025 (1980) .................

Headquarters, Division of the Philippines, G.O. 31,

Jun. 11, 1900 in 2S. Doc. 57-1, at9..........

Headquarters, Division of the Philippines, G.O. 179,

Jul. 19, 1901, in Charges of Cruelty, Etc. to the

Natives of the Philippines, S$. Doc. 57-1 No. 205

* Ti arencbhskaiédeedssebesienennvenesaces

LEGISLATIVE MATERIALS:

House of Representatives Report to accompany H.R.

7049, as reprinted in 1956 U.S.C.C.A.N. 4613,

SD ceececnndedeabeededsduddedeosewnens

House of Representatives Report No. 101-665, at 334

as reprinted in 1990 U.S.C.C.A.N. 2931, 3060

Senate Report No. 81-486, as reprinted in 1950

Ft of FO PPT TT TTT TTT TTT

Page

x

Cited Authorities

Page

Senate Report No. 96-197, at 123-25 as reprinted in

1979 U.S.C.C.A.N. 1818, 1828-30 ........... 21

Revision of the Articles of War: Hearing on S. 3191

Before the S. Subcomm. on Military Affairs, 64th

I PGE oo 0b 000 bs6se0s vecdesenss 19, 20

Revision of the Articles of War: Hearing on H.R.

23628 Before the H. Comm. on Military Affairs,

GG, DO CUPEED co ccccccccssesssucess 19

RULES, REGULATIONS AND ADMINISTRATIVE

MATERIALS:

ee, Sn A No os i eee eee eee 29

ES RS re re eee 29

Executive Order: Detention, Treatment, and Trial of

Certain Non-Citizens in the War Against Terrorism,

66 Fed. Reg. 57833 (Nov. 13, 2001) .... 3, 14, 28, 29

2 Op. Att’y Gen. 344 (1830) ...............00.5. 25

17 Op. Att’y Gen. 310 (1882) ............-0.-. 25

xi

Cited Authorities

Page

OTHER AUTHORITIES:

David Glazier, Precedents Lost: The Neglected

History of the Military Commission, 46 Va. J. Int’!

L. 5 (forthcoming Feb. 2006) ..........0045: passim

Davip A. LockMiLLer, ENocH H. Crowper 66-84

I, 9G et ate et te i ee ete oe 26

David A. Schlueter, The Court-Martial: An

Historical Survey, 87 Military L. Rev. 129, 140

RRR ES a eee er oe Eee 6

I Richard J. Pierce, Apministrative LAw TREATISE

a iat aia ia da eed ele a 13

WILLIAM WINTHROP, MiLitary LAW AND PRECEDENTS,

ep eee’ 7,25

l

~ INTERESTS OF THE AMICI CURIAE*

David W. Glazier, Elizabeth L. Hillman, Jonathan Lurie,

Diane H. Mazur, David P. Sheldon, Gary D. Solis, Christopher

F. Wilson, and Donald N. Zillman, who respectfully submit this

brief as amici curiae, currently practice in the field of military

law, either as practitioners or scholars. Many of these amici

have served on active duty in the military, either in the

operational field or as military lawyers. They include some of

the nation’s leading experts on military law. Amici are qualified

to file this brief on the basis of their extensive military

experience, knowledge of the legal issues in this field, and

commitment to upholding the rule of law as part of American

military operations.

David Glazier served twenty-one years as a Navy surface

warfare officer, culminating with command of the U.S.S. George

Philip, a guided missile frigate. He is a research fellow at the

University of Virginia School of Law’s Center for National

Security Studies.

Elizabeth Hillman served as an active-duty U.S. Air Force

officer for seven years. She holds a Ph.D. in history from Yale

University, and is an associate professor of law at Rutgers

University. She also serves on the National Institute of Military

Justice (“NIMJ”) Board of Directors.

Jonathan Lurie is a professor of history at Rutgers

University, where he teaches legal history and military legal

history; he has authored a two-volume history of the military

appellate system and lectured on military legal history in

numerous forums, including the U.S. Supreme Court.

Diane Mazur served on active duty as a U.S. Air Force

officer. She is the University of Florida Research Foundation

* This brief has been authored in its entirety by undersigned

counsel. No person or entity, other than the namned amici and their

counsel, made any monetary contribution to the preparation and

submission of this brief. The parties have consented to this filing.

2

Professor of Law at the University of Florida College of Law

and a member of the NIMJ Board of Advisors.

David Sheldon served as a Navy Judge Advocate General

Corps officer, representing service members before military

appeals courts and the Supreme Court. He practices military

- law in Washington, D.C., and he is a member of the NIMJ Board

of Advisors.

Dr. Gary D. Solis retired as a Lieutenant Coionel after

twenty-six years on active duty in the U.S. Marine Corps. He

spent eighteen of those years as a Judge Advocate, during which

time he tried 433 criminal cases and presided over 330 trials as

a general court-martial judge. He teaches the law of war at the

U.S. Military Academy at West Point and also has taught at

Georgetown University and the London School of Economics.

Christopher F. Wilson served as an Army Judge Advocate

General Corps officer from 1981-1985, with duty in Germany

and at Fort Ord. He practices military law in California.

Donald N. Zillman teaches constitutional law, national

resources law, and national security law at the University of

Maine School of Law. He previously served as dean of that law

school from 1991-1998, and he was the Distinguished Visiting

Professor of Law at the United States Military Academy in 1990.

He is a member of the NIMJ Board of Advisors.

Amici express no opinion as to the guilt or innocence of

Petitioner Salim Ahmed Hamdan on the offenses with which

he is charged. However, amici agree with the district court's

ruling that the procedures set forth for the military commission

established to adjudicate the charges against Hamdan, as

prescribed by the President’s executive order, are unlawful.

At this point in our nation’s history, it is vitally important

to reaffirm our commitment to the rule of law in order to secure

key moral and legal terrain in the global war on terrorism. To

3

permit these military commissions to go forward as currently

constituted would indelibly stain the nation’s reputation and

undermine its larger efforts in the war on terrorism.

SUMMARY OF THE ARGUMENT

Contrary to congressional enactment and historical practice,

the President has claimed the authority to adopt procedures for

“military commissions” which lack the following core

procedural safeguards: (1) neutral decisionmakers;

(2) critical evidentiary protections; and (3) judicial review. When

Congress authorized the President to conduct military

commissions, it did not give him unlimited power to define

their procedures. Two sources limit the President’s power to

fashion procedures for military commissions. First, in Article

36 of the Uniform Code of Military Justice (“Article 36”),

10 U.S.C. § 836 (2005), Congress directed the President to apply,

in military commissions, the principles of law and rules of

evidence generally recognized in the United States district courts

unless their application would be impracticable. Second, the

President’s power is limited by the historical understanding of

what constitutes a “military commission,” because Congress

used a legal term of art in Article 36 that had an established

historical meaning at the time Article 36 was enacted.

In his November 13, 2001 Executive Order (the “Military

Order”), the President surpassed the limits on his authority

to fashion procedures for military commissions. Because the

President’s global impracticability finding was arbitrary and

capricious, the Military Order purporting to authorize the

military commissions to deviate from the principles of law

and rules of evidence generally recognized in the United

States district courts exceeds the President’s authority under

Article 36. The military commissions created by the Military

Order also lack the core procedural safeguards found in

historical military commissions.

4

ARGUMENT

A. CONGRESS HAS ULTIMATE AUTHORITY OVER

THE CREATION OF MILITARY COMMISSIONS.

The most accurate historical understanding of military

commissions is that the ultimate authority to create

procedures for such commissions belongs to the Congress.

Once Congress has used its authority, the President’s

authority is superseded.

1. The Constitution Gives Congress Authority Over

the Procedures and Regulations for Military

Commissions.

The Constitution establishes legislative supremacy over

military justice and violations of customary international law.

Although the President is made “Commander in Chief of the

Army and Navy of the United States,” U.S. Const. art II, § 2,

cl. 1, Article I grants Congress, not the President, power to

“make Rules for the Government and Regulation of the land

and naval forces,” U.S. Const. art. I, § 8, cl. 14, and to “define

and punish . . . offences against the law of nations.”

U.S. Const. art. I, § 8, cl. 10. As this Court has recognized,

“Congress . . . exercises a power of precedence over, not

exclusion of, Executive authority” in this area of law. Loving

v. United States, 517 U.S. 748, 767 (1991).'

1. Congress did not give the President authority to review findings

of courts-martial until 1806. See Act of Apr. 10, 1806, 2 Stat. 359 (1845).

Limited authority to issue supplemental rules of procedure for courts-

martial and military commissions did not follow until 1916. See Act of

Aug. 29, 1916, § 1342, art. 38, 39 Stat. 418, 656; David Glazier,

Precedents Lost: The Neglected History of the Military Commission,

46 Va. J. Int’| L. 5, 62-66 (forthcoming Feb. 2006), available at http://

papers.ssrn.com/sol3/papers.cfm?abstract_id=811045 (hereinafter

“Glazier, Precedents Lost’).

5

The Government has argued strenuously that the

President has the inherent power, as Commander in Chief,

to create military commissions even in the absence of

congressional authorization. That proposition finds some

limited support in the early historical practice of the

Executive and in certain precedents of this Court; yet it does

not address the question presented. While the Commander

in Chief may possess power to create military commissions

in response to certain exigencies of war or military

occupation, that power does not authorize nim to disregard

constitutional, customary, or congressionally dictated

procedural norms. Rather, such discretion as he possesses 1s

limited by historical precedent and by Congress’s

constitutional authority.

As the Government conceded in its brief to the Court of

Appeals, the “history of military practice [with respect to

military commissions] is legally significant.” (Brief for

Appellants, Appeal No. 04-5393, D.C. Cir., at 60.) It is one-

sided, however, to attribute authority to the historical

instances in which Chief Executives established commissions

in the absence of express congressional authorization, while

ignoring the fact that such tribunals as a rule have afforded

the accused procedural safeguards that the Guantanamo Bay

commissions lack. To the extent that “traditional ways of

conducting government ... give meaning to the

Constitution,” Mistretta v. United States, 488 U.S. 361, 401

(1989) (internal quotation marks omitted), they do so not by

creating governmental powers ex nihilo, nor merely by

expanding them ad infinitum, but by standing as normative

guideposts for their exercise. Precedent may empower, but

it also restricts.

More importantly, Congress’s constitutional authority

over military commission procedure, when exercised, limits

0

executive action. See Madsen v. Kinsella. 343 U.S. 341, 348-

9 (1952) (In the absence of attempts by Congress to limit

the President's power, it appears that. as Commander-in-

Chief of the Army and Navy of the United States, he may, in

time of war, establish and prescribe the jurisdiction and

procedure of military commissions ... .°) (emphasis added).

This is an instance in which “the balance” between the

branches “already has been struck by the Constitution itself.”

Public Citizen v. United States Dept. of Justice, 491 US.

440, 486 (1989) (Kennedy, J., concurring). Plainly Congress's

power to make rules for the governance of land and naval

forces would be hollow if the President could trump those

rules by issuing a rule of his own tn his capacity as

Commander in Chiet.

2. Congressional Authority over Military Commissions

Has Been Recognized by the Executive and Military

Officers and in Legislative History.

From its curhiest history, America has consistently

maintained the view, adopted from Great Britain,” that the

2. By the time of the founding of the United States, the British

Parhiament had asserted substantial control over both the jurisdiction

of and procedure for military tribunals. See. e.g. David A. Schlueter,

The Court-Martial: An Historical Survey, 87 Malo. Res. 129. 140

(1980). bor example. in 1689, Parliament enacted the first of a series

of annual Mutiny Acts. allowing the monarchs to hold matitary trials

within the Kingdom tor those persons and those serious ollenses

specthically authorized by statute, and establishing mandatory

procedural guidelines for the general court-martial such as miinioun

panel composition. Glazier, Precedents Lost at iO-TL. By 1775

Parhament allowed the executive to promulgate Articles ot Wag

detining lesser olfenses and providing military justice procedures

elective at home and abroad. with the Articles being issued by a

vovermment minister who could be called upon to justify his actions

betore Parliament. fd. at 12-13. At the same time. the overarching

Mutiny Acts then regulated the British Army worldwide. dd.

7

legislature maintains ultimate authority over the creation of

military commissions and of the procedures used in such

commissions. For example, while commanding the standing

regiment that Virginia established during the French and Indian

War, George Washington refused to execute deserters during a

period when the colony’s first Mutiny Act had lapsed, on the

ground that “we have no law at present to punish them.” Letter

from George Washington to Robert Dinwiddie, Dec. 10, 1756

quoted in Glazier, Precedents Lost at 16. Similarly, the second

Continental Congress appointed a committee to prepare rules

for governing the Army the same day it adopted a resolution

calling for raising it, and adopted the first American Articles of

War, based indirectly on the British Articles, just sixteen days

later on June 30, 1775. See Wittiam Winturop, Miuitary Law

AND PRECEDENTS 21 (2d ed. 1920). These actions recognize both

that the rule of law applies even in wartime and that the

legislature has supreme authority over military justice.

In the period leading up to the enactment of the Articles of

War, American military officers generally rejected any notion

of authority beyond specific statutory mandates. For example,

‘when Andrew Jackson attempted to expand military jurisdiction

to cover a trial of Louis Louailler in New Orleans in 1815, both

his second-in-command and the military trial panel itself rejected

all charges not explicitly based on provisions of the Articles of

War specifically applicable to non-military persons. Glazier,

Precedents Lost at 25.* When the Army’s subsequent

commander, General Winfield Scott, created the “military

commission” during the Mexican War to fill critical gaps in the

statutory Articles of War, he specifically noted that he did so

3. Jackson subsequently directed the execution of two British

citizens during the first Seminole War in 1818, but he quickly

retreated from any claim that he had done so based on a valid trial

after congressional committees criticized his actions. Glazier,

Precedents Lost at 26-31.

8

“until Congress could be stimulated to legislate on the subject.”

Id. at 32-33 (quoting WINFIELD Scott, 2 Memoirs OF LigUTENANT

GENERAL Scott 393 (1864)). President Lincoln, despite making

extensive use of military commissions, apparently did not

question congressional authority over them. /d. at 45.

Even more significant is the legislative history behind the

predecessor to Article 21 of Uniform Code of Military Justice,

10 U.S.C. § 821. Article 21 states: “The provisions of this chapter

conferring jurisdiction upon courts-martial do not deprive

military commissions, provost courts, or other military tribunals

of concurrent jurisdiction with respect to offenders or offenses

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

commissions, provost courts, or other military tribunals.” This

language, originally proposed by Army Judge Advocate General

Enoch H. Crowder in 1912 and enacted by Congress in 1916,

has been widely cited by both the executive and judicial branches

as congressional authorization for military commission trials.

Glazier, Precedents Lost at 58-59. Facially Article 21 simply

preserves concurrent military commission jurisdiction over

offenses “that by statute or by the law of war may be tried by

military commissions... .” 10 U.S.C. § 821. The impetus behind

this article was the concern of the executive branch that statutory

expansion of court-martial jurisdiction over persons and offenses

previously only triable by military commission wouid strip the

military commission of authority over those persons or crimes.

The fact that two Administrations saw the need for this text

emphasizes that Congress’s power, when exercised, supersedes

the President’s authority to prescribe rules for military

commissions. Glazier, Precedents Lost at 62. *

4. Because the Military Order is based on an order issued by

Franklin D. Roosevelt, it must be noted that even the Roosevelt

Administration acknowledged significant, albcit not exclusive,

congressional authority over military commissions. Respondent's

Answer to Petitions at 34.

9

B. ABSENT A SUFFICIENT IMPRACTICABILITY

FINDING, WHEN CONDUCTING MILITARY

COMMISSIONS, THE PRESIDENT MUST APPLY

THE PRINCIPLES OF LAW AND RULES OF

EVIDENCE GENERALLY RECOGNIZED IN THE

UNITED STATES DISTRICT COURTS.

In Article 36, Congress delegated to the President limited

authority to create rules of procedure for military

commissions. In the Military Order, the President exceeded

that authority.

- 1. The Plain Language of Article 36 Provides That

the Rules Generally Applied in Military

Commissions Are to Be Those Recognized in the

District Courts.

Congress provided in Article 36 that:

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

including modes of proof, for cases arising under

this chapter triable in courts-martial, military

commissions and other military tribunals, and

procedures for courts of inquiry, may be

prescribed by the President by regulations which

shall, so far as he considers practicable, apply the

principles of law and the rules of evidence

generally recognized in the trial of criminal cases

in the United States district courts, but which may

not be contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this

article shall be uniform insofar as practicable.

10

By its plain terms, this statute is a delegation of rule-making

authority. See Loving, 517 U.S. at 769 (referring to Article

36 as “indicative of congressional intent to delegate . . .

authority to the President”). It is equally plain that “the

delegation is set within boundaries the President may not

exceed.” /d. at 771. Indeed, the statute’s constitutionality

depends upon the presence of these boundaries, for in

delegating its power Congress is required to “lay down by

legislative act an intelligible principle to which the person

or body authorized to [act] is directed to conform.” J. W.

Hampton Jr. & Co. v. United States, 276 U.S. 394, 409

(1928).

Statutory clauses that limit executive discretion under a

delegation of legislative authority are construed in favor of

stricter limitation, under the doctrine of avoidance of

constitutional questions. See Indus. Union Dept. v. American

Petroleum Inst., 448 U.S. 607, 646 (1980) (“A construction

of the statute that avoids [an] open-ended grant [of legislative

authority] should certainly be favored.”). Under this

principle, the limiting language of Article 36 must be given

meaningful effect, especially in a case where the President

seeks to establish a tribunal that departs from the traditional

understanding of military commissions. Cf. Loving, 517 U.S.

at 772 (rejecting a non-delegation challenge to Article 36,

but stating that “[{hJad the delegations here called for the

exercise of judgment or discretion that lies beyond the

traditional authority of the President, Loving’s last argument

that Congress failed to provide guiding principles to the

President might have more weight.”).

Only by making a determination of impracticability can

the President escape Congress’s requirement that military

commissions apply the rules of procedure generally

recognized in U.S. district courts. The Military Order

11

establishing the military commissions contains the

President’s purported determination of impracticability as

authorization for departure from the requirements of Article

36. This determination, however, cannot withstand judicial _

review. -

2. The President Has Not Overcome the Presumption

That Congress Intended for His Impracticability

Determination to Be Subject to Judicial Review.

The Government wrongly contends that the President’s

impracticability finding is not subject to judicial review.

“(When a Government official’s determination of a fact or

circumstance . . . is dispositive of a court controversy, federal

courts generally do not hold the determination unreviewable.

Instead, federal judges traditionally proceed from the ‘strong

presumption that Congress intends judicial review.’”

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 424 (1995).

This Court has “stated time and again that judicial review of

executive action ‘will not be cut off unless there is persuasive

reason to believe that such was the purpose of Congress.’”

Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140

(1967), abrogated on other grounds as recognized by

Califano v. Sanders, 430 U.S. 99 (1977)); see also Leedom

v. Kyne, 358 U.S. 184, 191 (1958) (holding reviewable NLRB

certification of a mixed bargaining unit); Bd. of Governors

of Fed. Reserve Sys. v. Agnew, 329 U.S. 441, 444 (1947)

(holding reviewable orders of the Federal Reserve Board

removing directors of national banks from office). The Court

will not “lightly infer that Congress does not intend judicial

protection of rights it confers against agency action taken in

excess of delegated powers.” Leedom, 358 U.S. at 190. “The

courts, when a case or controversy arises, can always

‘ascertain whether the will of Congress has been obeyed,’

and can enforce adherence to statutory standards.” JNS v.

12

Chadha, 462 U.S. 919, 953 n.16 (1983) (citation omitted)

(quoting Yakus v. United States, 321 U.S. 414, 425 (1944)).

The presumption of reviewability is a natural result of

the non-delegation doctrine, which forbids Congress from

delegating legislative power to the executive. According to

the non-delegation doctrine, Congress must supply the

executive with an “intelligible principle” to guide the

executive’s exercise of quasi-legislative power. Loving, 517

U.S. at 758-59; Mistretta v. United States, 488 U.S. 361,

372 (1989). Thus, congressional delegations of power to the

executive are not “unbounded, and it is the duty of a

reviewing court to determine whether the course followed

by the [executive] is consistent with its mandate from

Congress.” Atchison, Topeka & Santa Fe Ry. v. Wichita Bd.

of Trade, 412 U.S. 800, 806 (1973).

In this case, the President has not overcome the

presumption that courts are empowered to review the

impracticability determination required by Article 36 for the

President to authorize deviations from the “principles of law

and rules of evidence generally recognized in the trial of

criminal cases in the United States district courts.” 10 U.S.C.

§ 836.

3. The President’s Impracticability Determination

Should Be Reviewed Under the “Arbitrary or

Capricious” Standard.

Prior to the adoption of the Administrative Procedure

Act (“APA”), 5 U.S.C. § 551, et seq., the Supreme Court

reviewed executive orders affecting individual rights to

determine whether they were arbitrary and capricious and

whether executive findings were supported by substantial

evidence. See, e.g., Shields v. Utah Idaho Cent. R.R., 305

U.S. 177, 185 (1938) (“The sole remaining question would

be whether the Commission in arriving at its determination

13

departed from the applicable rules of law and whether its

finding had a basis in substantial evidence or was arbitrary

and capricious.”); /CC v. Louisville & Nashville R.R., 227

U.S. 88 (1913). Before the enactment of the APA, the Court

had developed a federal common law of administrative

review as a form of statutory gap-filling. Cf. United States

v. Little Lake Misere Land Co., 412 U.S. 580, 593 (1973)

(“[T]he inevitable incompleteness presented by all legislation

means that .. . . federal courts [have the power] to declare,

as a matter of common law or ‘judicial legislation,’ rules

which may be necessary to fill in interstitially or otherwise

effectuate the statutory patterns enacted in the large by

Congress.”).

In other words, Congress had delegated a large amount

of power and discretion to executive agencies, but prior to

the enactment of the APA, Congress had not specified what

level of deference the courts should show to most agency

determinations. See generally I Richard J. Pierce,

ADMINISTRATIVE LAW TREATISE § 1.4 (2002). The Court

responded by creating a deferential standard of review for

executive actions—the Court would not overturn an

administrative decision unless it was without evidentiary

support or arbitrary and capricious. See, e.g., Shields, 305

U.S. at 185; Tagg Bros. & Moorhead v. United States, 280

U.S. 420, 444 (1930).

In 1946, Congress enacted the APA, which largely

codified and supplemented the body of federal common law

that had developed in this area. The APA did not, however,

purport to overrule the existing body of federal common

administrative law in areas to which it did not apply. Instead,

the APA simply does not speak to what level of deference is

due executive action falling outside the ambit of the APA.

Thus, in cases involving a challenge to executive action not

subject to the APA — like the Military Order at issue in this

14

case, see 5 U.S.C. §§ 551(1)(F), (H) (excluding authority

for passing “significant” executive orders passed during a

national emergency or time of war, courts-martial, and

military commissions from definition of “Agency” subject

to APA); Franklin v. Massachusetts, 505 U.S. 788, 800-01

(1992) (holding that the President is not an “agency” for

purposes of the APA) — courts still have the power, under

pre-APA federal common law, to review executive orders to

determine whether they are arbitrary or capricious.

4. The President’s Impracticability Finding Is

Arbitrary and Capricious.

Though Article 36 authorizes the President to prescribe

rules of procedure for courts-martial, military commissions,

and other tribunals (such as a board of inquiry), such rules

must conform to “the principles of law and the rules of

evidence generally recognized in the trial of criminal cases

in the United States district courts.” 10 U.S.C. § 836. This

“intelligible principle” bounds executive discretion in the

grant of regulatory power. See Loving, 517 U.S. at 772-773,

see also United States v. Curtis, 32 M.J. 252, 263 (1991).

Article 36 also includes a limited exception affording the

President discretion to depart from this intelligible principle

when he considers such rules to be “impracticable,” but

neither the text of the President’s impracticability finding

nor the history of military tribunals provides any evidence

that adhering to generally recognized principles of law and

rules of evidence would be impracticable in the present case.

The President’s Article 36(a) impracticability

determination, stated tersely in Section 1(f) of his Military

Order, is based solely on “the danger to the safety of the

United States and the nature of international terrorism... .”

66 Fed. Reg. 57833, § 1(f). This determination neither

follows from the considerations cited in Section 1(f) nor the

15

factual findings that precede it in Sections I(a)-(e) of the

Military Order. Indeed, the Military Order articulates no

nexus between its impracticability determination and the

procedural rules it establishes for commissions in Section 4.

The “danger to the safety of the United States” comes not

from the operation of our judicial system or courts-martial,

but from the Al Qaeda terror network.

The President’s impracticability determination is also at

odds with the history of military commissions and similar

tribunals, which plainly demonstrates that they can provide

baseline procedural and evidentiary fairness while preserving

confidentiality, national security, and the need for

governmental autonomy. Organized crime kingpins, along

with domestic and international terrorists, have been tried,

convicted and sentenced in U.S. courts. See, e.g., United

States v. Gotti, 155 F.3d 144 (CA2 1998). The deadliest

domestic terrorists in U.S. history, with a demonstrated

antipathy to the U.S. government and its legal systems, were

tried and convicted in U.S. civilian courts applying traditional

procedural and evidentiary rules. See, é.g., United States v.

McVeigh, 153 F.3d 1166 (CA10 1998), abrogated in part on

other grounds by Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). Similarly, the top leaders of Al Qaeda—the same

organization that prompted the Military Order—have been

tried in federal court (albeit in absentia) for their participation

in terrorist attacks upon the United States. See United States

v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000) (ruling

on various motions in limine before trial).

There is simply nothing about international terrorism per

se which suggests that U.S. courts or courts-martial are incapable

of adjudicating the guilt of suspected terrorists. See generally

PETER BercrNn, Hoty Wak, INc. (2001 ); NETWorKS AND Netwars:

THE FUTURE OF TERROR, Crime, AND MILITANCY (JOHN ARQUILLA,

Davip F. Ronreprt, eds., RAND 2001). Quite to the contrary,

16

history suggests that U.S. courts are fully capable of trying

suspected terrorists while preserving national! security. “(T]he

nature of international terrorism” does not, without more,

justify departure from these U.S. jurisprudential norms.°

Accordingly, the President’s impracticability determination

is arbitrary and capricious and should be set aside.

5. The President’s Impracticability Finding Is Not

Sufficiently Detailed to Allow for Meaningful

Judicial Review. :

An executive order subject to judicial review must

contain specific enough findings of fact and give a clear

enough statement of reasoning to allow that judicial review

to “fulfill its role effectively.” Black v. Romano, 471 US.

606, 618 n.10 (1985) (Marshall J., concurring); see Atchison,

Topeka & Santa Fe Ry., 412 U.S. at 807, Wolff v. McDonnell,

418 U.S. 539, 565 (1974). “[An] agency must set forth clearly

the grounds on which it acted. For ‘{the Court] must know

5. Moreover, Congress has codified laws specifically targeting

international terrorists and the legal issues associated with

adjudicating them. See, e.g., 18 U.S.C. § 2339B (criminalizing

material support to foreign terrorist organizations); 18 U.S.C.

§ 2339D (criminalizing military-style training with a designated

foreign terrorist organization); see also 18. U.S.C. § 6001,

Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L.

No. 108-458 (amending the Foreign Intelligence Surveillance Act to

authorize clandestine surveillance of individual terrorists not

connected to a foreign power). Congress also has legislated how

sensitive national security cases that involve concerns of classified

information and physical security should be handled. See generally

Classified Information Procedures Act, Pub. L. No. 96-456, 94 Stat.

2025 (1980). With these laws and others, Congress has established

the legal framework with which to prosecute alleged terrorists in

U.S. district courts.

17

what a decision means before [it can] say whether [the

decision] is right or wrong.” Atchison, Topeka & Santa Fe

Ry., 412 U.S. at 807.

In this case, the Military Order does not contain sufficient

detail to allow for meaningful review of the President’s

impracticability determination. As noted above, the order

contains nothing more than a conclusory assertion that

applying the rules of evidence and principles of law generally

applicable in the United States district court would be

impracticable. Notably absent is any discussion of why it

would be impracticable, other than the order’s use of the

vague phrase “the nature of international terrorism.” In sum,

the President’s global finding of impracticability is not

sufficiently detailed to allow meaningful judicial review, and

the Court should, at a minimum, order the President to give

a more thorough explanation of the reasoning underlying his

decision.

C. THE PROCEDURES ADOPTED BY THE MILITARY

ORDER SHOULD BE REJECTED AS INCONSIS-

TENT WITH THE HISTORICAL UNDERSTANDING

OF “MILITARY COMMISSIONS” ENACTED IN

ARTICLE 36.

Even if the President could refuse to apply the procedures

used in the district courts, the historical understanding of

the term “military commission,” as enacted in Article 36,

independently limits his ability to abandon core procedural

safeguards. The Military Order dispenses with those core

procedural safeguards and therefore exceeds the President’s

authority. ~

18

1. When Congress Used the Term “Military

Commissions” in Article 36 of the Uniform Code of

Military Justice, It Intended the President to Act

Consistently with the Historical Understanding of

What Constitutes a Military Commission.

The statutory provision currently appearing at 10 U.S.C.

§ 836 was originally enacted as Article 38 of the 1916 Revised

Articles of War. See 39 Stat. 656 (1916). This Court has

identified as a “cardinal rule of statutory construction” the

principle that “[w]here Congress borrows terms of art in

which are accumulated the legal tradition and meaning of

centuries of practice, it presumably knows and adopts the

cluster of ideas that were attached to each borrowed word in

the body of learning from which it was taken and the meaning

its use will convey to the judicial mind unless otherwise

instructed.” Molzof v. United States, 502 U.S. 301, 307 (1992)

(quoting Morissette v. United States, 342 U.S. 246, 263

(1952)). As explained by the author of the Revised Articles

at a 1916 congressional hearing, the term “military

commission” is such a term of art with a settled meaning

comprising certain structures and procedures:

The military commission—a war court—had its

Origins in . . . 1847 (Genferal] Scott). Its

jurisdiction was confined mainly to criminal

offenses of the class cognizable by civil courts in

time of peace committed by inhabitants of the

theater of hostilities. A further war court was

originated by Gen[eral] Scott at the same time,

called ‘council of war,’ with jurisdiction to try the

same classes of persons for violations of the laws

of war, mainly guerrillas. These two jurisdictions

were united in the later war court of the Civil War

and Spanish War periods, for which the general

19

designation of ‘military commission’ was

retained. The military commission was given

statutory recognition in... 1863... . Its

composition, constitution, and procedure follows

the analogy of courts-martial.

Revision of the Articles of War: Hearing on S. 3191 Before

the S. Subcomm. on Military Affairs, 64th Cong. 40 (1916)

(citations omitted and emphasis added). This understanding

of the military commission necessarily informed the

consideration of and ultimate decision to enact the 1916

Revised Articles of War. Because the ultimate goal of

statutory construction is to give effect to Congressional

intent, Article 36 must be reviewed in the light of this

historical backdrop.

Article 36 was intended to give the President only a

limited scope of authority to define evidentiary rules to permit

publication of an authoritative manual on court-martial

procedure. It was drafted to give the President the same power

as that historically granted to this Court to prescribe the

“mode of proof” in equity, maritime, and admiralty cases.

Revision of the Articles of War: Hearing on H.R. 23628

Before the H. Comm. on Military Affairs, 62d Cong. 39

(1912). The drafter of Article 36, Judge Advocate General

Crowder, intended to use it to “prescribe how documents

should be proved and of what a court-martial should take

judicial cognizance.” /d.

[Judge Advocate General] Crowder: . . . [I]n the

matter of introducing documentary evidence

officers of the Army are rarely sufficiently familiar

with the rules, and we want an opportunity to

promulgate definite rules so that the judge

advocate trying a case or the counse! for the

defense will know just what formalities to comply

20

with in order to get a document before the court.

The rules to be promulgated will cover mainly

military record evidence.

[Congressman]: I suppose if you get this revision

that you or some one [sic] will immediately reduce

- to a manual of some sort the procedure, etc., under

these articles for guidance of the officers?

[Judge Advocate General] Crowder: That will be

accomplished by a revision of the present manual —

of procedure. It will not require very much revision

to adapt it to the requirements of these statutes; it

will require some amplification.

Id. at 42.

This restrictive view of the President’s authority to

promulgate regulations was reiterated shortly before the Revised

Articles of War were enacted in 1916. Judge Advocate General

Crowder then explained the purpose of this provision as follows:

Even in time of peace military courts are separated

from libraries and their only recourse is to manuals

to ascertain the proper procedure and the rules of

evidence. We wish the authority of this article in

order that the President may proceed, with the

sanction of statute law, but under authority of

Congress, to promulgate modes of proof, so that

officers of the Army will be informed through

promulgates ruls [sic] of simple methods of proof,

where, for example, handwriting is to be established

or documents are to be introduced in evidence.

REVISION OF THE ARTICLES OF War: HEARING ON §. 319] BrrForE

THE S. Suscomm. ON Miivary AFrairs, 64th Cong. 96 (1916). Judge

Advocate General Crowder anticipated that the President

“will exercise the authority here sought to be conferred in a

very conservative way.” Id. at 97 (emphasis added). Indeed, the

21

1916 legislative history indicates that while conferring this

authority on the President was recognized as “necessary for

attaining the ends of justice,” the power was not “unlimited.”

Id. (emphasis added).

The available legislative history associated with subsequent

revisions of Article 36 does not indicate an intention on the part

of Congress to expand its scope beyond that originally

contemplated in the 1916 Articles of War. See H.R. Rep. No.

101-665 at 334, as reprinted in 1990 U.S.C.C.A.N. 2931, 3060;

S. Rep. No. 96-197 at 123-25, as reprinted in 1979

U.S.C.C.A.N. 1818, 1828-30; H.R. Rep. Accompanying H.R.

7049, as reprinted in 1956 U.S.C.C.A.N. 4613, 4620; S. Rep.

No. 81-486, as reprinted in 1950 U.S.C.C.A.N. 2222, 2241;

Glazier, Precedents Lost at 76-77. The statutory grant of

rulemaking authority to the President was narrow, intended only

to permit the promulgation of technical evidentiary rules in

court-martial proceedings. The current Manual for Courts-

Martial is an appropriate exercise of the President’s authority

under this statute to provide a comprehensive stand-alone

reference for military trials. Article 36 does not, however, confer

upon the President an unlimited power to establish procedures

for trial by military commission. A military commission itself

has certain inherent procedural attributes, departure from which

is not authorized by Article 36.

2. Historically, Military Commissions Have Included

Core Procedural Safeguards Designed to Provide

Defendants with a Fair Opportunity to Rebut the

Charges Against Them.

The history of military commissions prior to Congress’s

1916 enactment of the predecessor to Article 36 supports the

conclusion that “military commission” had already gained a

settled meaning as an entity providing a certain set of key

procedural safeguards. In particular, in the three contexts prior

to 1916 in which military commissions were prominently

22

used—the Mexican War, the Civil War, and the Philippine

Insurrection—military commissions consistently utilized key

procedural safeguards that the tribunals established by the

Military Order lack. See infra Part C.3.

a. The Mexican War: The First Military Com-

missions Adopted Court-Martial Procedures.

General Winfield Scott, the commander of the United States

Army during the Mexican War, created the first military

commissions through General Orders (GO.) No. 20 at Tampico,

in order to try common criminal offenses committed by or upon

U.S. soldiers. Glazier, Precedents Lost at 29 (citing General

Winfield Scott, General Orders (G.O.) No. 20 in Orpers AND

SPECIAL ORDERS, HEADQUARTERS OF THE ARMY, WAR WITH Mexico,

1847-48 139-40, Vol. 41 1/2 at 140, Records Group 94, National

Archives, Washington D.C. (hereinafter “Scott Orpers”)).

General Scott specifically required that the military commissions

use established court-martial procedure:

Every military commission under this order, will be

appointed, governed and limited as prescribed by

the 65th, 66th, 67th, and 97th, of the said rules and

articles of war, and the proceedings of such

commissions will be duly recorded, in writing,

reviewed, revised, disapproved or approved, and the

sentences executed—all as in the cases of the

proceedings and sentences of courts-martial;

provided, that no military commission shail try any

case clearly cognizable by any court martial.

Id. at 30 (quoting Scorr Orpers at 140).°

6. The cited Articles of War defined the authority to convene

and review general courts-martial (Article 65), defined the authority

for regimental and garrison courts (Article 66), limited punishments

by lesser tribunals (Article 67), and required separate courts for

regular and volunteer soldiers (Article 97). See An Act for

Establishing Rules and Articles for the Government of the Armies

of the United States, Apr. 10, 1806, 2 Stat. 359, 367, 371 (1845).

23

Scott established a separate tribunal he called Councils of

War for trying law of war violations (or “war crimes”), which

differed from the military commissions (and courts-martial)

primarily in terms of subject-matter jurisdiction, rather than

procedures. /d. at 32 (citing Scort Orpers at 367, GO. 181

(June 19, 1847) and Scotr Orpers at 380, GO. 184 (June 24,

1847)). Scott did adopt more summary procedures for trying

“guerillas and rancheros,” but those procedures still required

the use of trial panels of at least three officers. /d. at 32-33(citing

Scott Orpers, G.O. 372 (Dec. 12, 1847)).’ While only twenty-

one individuals are documented as having been tried by Councils

of War, military commissions tried at least 406 persons in

Mexico and California, convicting 231. /d. at 33 (citing Scott

Orpers, G.O. 372 and Headquarters, Army of Mexico G.O. 37,

Mar. 23, 1848, in Nat’L ARCHIVES AND Recorbs SERVICE, ORDERS

AND SPECIAL OrpersS IssuED BY Mas. Gen. WILLIAM O. BUTLER

AND Mas. Gen. WILLIAM J. WorTH TO THE ARMY IN MEXICO IN

1848, microfilmed on T-1114 (Nat’l Archives Microfilm

Publ’ns) (1969)).

b. The Civil War: Procedures in Military

Commissions Continued to Conform Closely

to Court-Martial Procedures.

The Civil War saw widespread use of the military

commission with 4,271 trials documented during the war and

another 1,435 during Reconstruction. Glazier, Precedents

Lost at 37 (citing Mark E. Neety, Jr., THe Fare or Liperty:

ABRAHAM LINCOLN AND Civit Liserties 168-73, 176-77

(1991)). Notably, properly constituted military commissions

continued the practice of close conformance to court-martial

procedures. General Henry W. Halleck issued guidance on

7. Amici have located no proof that these summary procedures

were ever used during the Mexican War.

24

the subject in 1862 shortly before he became the General in

Chief of the Union Army. General Halleck noted that:

[I]t is the usage and custom of war among all

civilized nations to refer [crimes in occupied or

threatened territory] to a duly constituted military

tribunal consisting of reliable officers, who acting

under the solemnity of an oath and the

responsibility always attached to a court of record

will examine witnesses, determine the guilt or

innocence of parties accused and fix the

punishment. This is usually done by courts-

martial; but in our country these courts have a very

limited jurisdiction both in regard to persons and

offenses. Many classes of person cannot be

arraigned before such courts for any offense

whatsoever, and many crimes committed even by

military officers, enlisted men or camp retainers

cannot be tried under the “Rules and Articles of

War.” Military commissions must be resorted to

for such cases and these commissions should be

ordered by the same authority, be constituted in a

similar manner and their proceedings be

conducted according to the same general rules as

courts-martial in order to prevent abuses which

might otherwise arise.

(Id. at 38 (quoting Henry W. Halleck, Headquarters

Department of the Missouri, General Orders No. 1, Jan. 1.,

1862, in | THe War Or Tue Resection: A Compitation OF

THe OrriciaL Recorps Or TH& Union AND CONFEDERATE

Armies Series II, 248 (1894) (“HALLECK Orpers”)). General

Halleck enumerated specific examples of the required

correlation between the military commission and the court-

martial. /d. The one departure from court-martial procedures

that Halleck endorsed was to permit military commission

25

panels to consist of three officers, but he directed that “{a]

larger number will be detailed where the public service will

permit.” /d. at 38-39 (quoting HALLECK Orpers at 248). The

Secretary of War subsequently endorsed Halleck’s chosen

military commission procedure. /d. at 39 (citing Letter from

L. Thomas to Major General J. C. Fremont, Apr. 9, 1862 in

2 THe WAR OF THE REBELLION: A COMPILATION OF THE OFFICIAL

RECORDS OF THE UNION AND CONFEDERATE ARMiES Series II

282 (1894)).

c. The Philippine Insurrection: Military

Commissions Followed the Scott Model and

Used the Same Procedures as Courts-Martial.

The third and final significant use of military

commissions prior to the enactment of the predecessor to

Article 36 was during the military occupation in the

Philippines. Again, there is significant evidence of close

procedural conformity between Philippine military

commissions and courts-martial, particularly in the faithful

application of the common law rules of evidence. By

customary practice, reinforced by two Attorney General

opinions, U.S. courts-martial employed the common law

rules of evidence “recognized and followed by the criminal

courts of the country.” Glazier, Precedents Lost at 51 (quoting

William Winthrop, Mictrary Law Anp Precepents, 472

(2d. ed. 1920), 2 Op. Att'y Gen. 344 (1830) (noting English

military adherence to common law rules), and 17 Op. Att'y

Gen 310 (1882) (holding absent congressional guidance,

military courts are governed by the same rules of evidence

as “ordinary courts of criminal jurisdiction”)). These common

law rules were scrupulously applied to the Philippine military

commissions. For example, where hearsay was admitted,

convictions were upheld only if proven by untainted

evidence; otherwise they were disapproved. /d. (citing

Headquarters, Division of the Philippines, G.O. 179, Jul. 19,

26

1901, in Charges of Cruelty, Etc. to the Natives of the

Philippines, S. Doc. 57-1 No. 205 Pt. 2. at 218 (1902) (“S.

Doc. 57-1”); Headquarters, Division of the Philippines, G.O.

31, Jun. 11, 1900 in 2 S. Doc 57-1, at 9). Confessions could

only be introduced with a showing of voluntariness and

independent evidence of the crime. /d. at 52 (citing

Headquarters, Division of the Philippines, GO. 232, Aug

22, 1901 in 2 S. Doc 57-1, at 363). Improper application of

protections against self-incrimination and an erroneous ruling

that a witness was incompetent to answer a question to" 2

detriment of the accused were sufficient to overturn a murder

conviction. /d. at 52 (citing Headquarters, Division of the

Philippines, G.O. 44, Mar. 7, 1901 in 2 S. Doc 57-1, at 120).

Philippine military commissions also conformed to other

generally accepted principles of procedural justice, with

convictions overturned for failure to hear all available

evidence, id. (citing Headquarters, Division of the

Philippines, G.O. 232, Aug 22, 1901, in S. Doc 57-1, at 363,

Headquarters, Division of the Philippines, G.O. 39, Feb. 27,

1901, in S. Doc 57-1, at 116,) or from double jeopardy

concerns, id. (citing Headquarters, Division of the

Philippines, G.O. 24, Feb 1, 1901, in S. Doc 57-1, at 104).

Of particular note is the fact that the author of the predecessor

to Article 36, Judge Advocate General Crowder, was the

senior military lawyer and legal advisor to U.S. commanders

in the Philippines from July 1898—July 1901. /d. at 53 (citing

David A. Lockmiller, ENock H. Crowper 66-84 (1955)).

d. As of 1916, Military Commissions Afforded

a Core Group of Procedural Safeguards That

Generally Were Identical to Those Provided

in Courts-Martial.

When Congress enacted the predecessor to Article 36,

the history plainly shows that the practice was for military

commissions to provide a baseline set of rights, generally

27

identical to those provided in courts-martial. At that time, these

rights included:

¢ Neutral decision makers;

¢ Rules of evidence generally equivalent to those used in

criminal trials in the federal district courts, including a

presumption against the admissibility of hearsay;

¢ The right to have all evidence considered;

¢ The right against double jeopardy; and

¢ The right to collateral review of one’s conviction.

See supra pp. 22-26; Ex Parte Milligan, 71 U.S. 2, 121-22

(1866) (granting petition for habeas corpus from conviction by

military commission).* This history provides a minimum

standard that informed Congress’s understanding of the term

“military commission.”

3. The Tribunals Established by the Military Order

Lack Necessary Features of Military Commissions

as They Have Been Historically Understood.

As detailed in Part I1.C.2., supra, in the years preceding

the enactment of the predecessor to Article 36, military

commissions historically incorporated critical procedural

safeguards, mirroring courts-martial in most respects.’ By

8. The modern version of the Uniform Code of Military Justice

permits appeal to the Supreme Court through a writ of certiorari. 10

U.S.C. § 867(a).

9. To be sure, during World War II, there were deviations from

this historical pattern. See, e.g., In re Yamashita, 327 U.S. 1, 23 (1946).

It is amici’s position that the history preceding (and informing) the

enactment of the statutory predecessor to Section 836 should control,

(Cont'd)

28

contrast, the military commissions established by the Military

Order lack these procedural safeguards.'° Specifically:

¢ The Military Order fails to provide neutral

decisionmakers because it expressly allows review only

by the President or, if he so chooses, the Secretary of

Defense. 66 Fed. Reg. § 4(c)(8).

* The Military Order, which adopted a standard for

admissibility of “[t}he probative value to a reasonable

man,” /d. at § 4(c)(3), permits significant deviations

from the evidentiary rules historically used in military

(Cont'd)

and that the World War II cases, like their sister case of Korematsu v.

United States, 323 U.S. 214 (1944) (upholding internment of persons

of Japanese ancestry), should be viewed as aberrations. See Civil

Liberties Act of 1988, Pub. L. 100-383, 102 Stat. 903, § 1989a (1988)

(officially apologizing for “fundamental violations of the basic civil

liberties and constitutional rights of these individuals of Japanese

ancestry”).

10. In its brief below, the Government argued that if the Court

required military commissions to use the same procedures as courts-

martial, the words “military commission” would be superfluous in the

Uniform Code of Military Justice. The Government's argument is flawed

for two reasons. First, as amici argue in this brief, the Court need only

hold that Congress intended military commissions to utilize certain core

procedures necessary to ensure accurate results and basic procedural

fairness in order to reject the procedurally inadequate military

commissions created by the Military Order. Second, even if the Court

were to hoid that military commission procedures must track court-

martial procedures identically, the words “military commission” in the

Uniform Code of Military Justice would not be superfluous because

military commissions and courts-martial have historically had different,

although somewhat overlapping, jurisdictions.

29

commissions and today used in both courts-martial and

the federal district courts."

¢ The Military Order specifically denies access to any

form of judicial review, including (apparently)

federal collateral review. Jd. at §7(b)(2).""

These aberrations are inconsistent with the historical

understanding of what constitutes a military commission.

Equally important, as historical figures such as General

Halleck acknowledged, (see supra p. 24), application of the

historical procedures is crucial for ensuring both that

defendants before military commissions get fair trials and

that the outcomes of the trials are reliable. Because of his

failure to include these minimum procedural rights in the

Military Order, the Presideat exceeded his authority under

Article 36 and, therefore, the Court should reject these

military Commissions.

a

11. The standing Military Rules of Evidence employed in courts-

martial are based almost verbatim on the Federal Rules of Evidence.

Compare, e.g., Military R. Evid. 401-03 (governing relevancy and unfair

prejudice) and Military R. Evid. 801-07 (governing the admissibility

of hearsay) with Fed. R. Evid. 401-03 and Fed. R. Evid. 801-07.

12. Amici acknowledge that there are other ways in which the

military commissions created by the Military Order varies from modern

court-martial and district court procedure. As explained above, (see

supra Part B), amici believes that these variations are not authorized

and should be rejected. Here, by contrast, amici are focusing on the

ways that the procedure of the military commissions at issue vary from

historical practice, which forms a procedural minimum implicit in

Congress's use of the term “military commission.”

30

CONCLUSION

To promote the rule of law, to maintain America’s moral

supremacy, and to avoid impairment of America’s ultimate

victory in the war on terror, it is critical that the military

commissions conduct their work in full accord with American

constitutional law and its best historical precedent. This Court

should reverse the decision of the United States Court of

Appeals for the District of Columbia Circuit.

Respectfully submitted,

TERESA WYNN ROSEBOROUGH

Counsel of Record

CHARLES LEsTER, JR.

JoHN A. CHANDLER

ELIZABETH V. TANIS

JENNIFER M. Rusin

LEIGHTON Moore

ANprREW W. Broy

KrisTteEN H. GLOVER

SUTHERLAND ASBILL & BRENNAN LLP

999 Peachtree Street, N.E.

Atlanta, GA 30309

(404) 853-8000

Counsel for Amici Curiae