Amicus Curiae Brief — Hamdan v. Rumsfeld

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OFFICE OF THE (lice x

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No. 05-184

In The

Supreme Court of the Anited States

SALIM AHMED HAMDAN,

Petitioner,

- VETSUS -

DONALD RUMSFELD, Secretary of Defense, et al.,

Respondents.

On a Writ of Certiorari

To The United States Court of Appeals

For The District of Columbia Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS as AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

DONALD G. REHKOPF, JR.

Counsel of Record

BRENNA & BRENNA, PLLC

31 East Main Street, Suite 2000

~ Rochester, New York 14614

(S85) 454-2000

January 2006

am OE OY NETO O-oov«A0O-———=

TABLE OF CONTENTS

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AMICUS CURIAE STATEMENT OF INTEREST ....... I

DESPUES GOW ATSUIEEINE occ ncccccsccseccssens 2

I. “MILITARY COMMISSIONS” ............... 3

A. DEY wives wedndcs eshukesauees 3

B. The “Necessity” Requirement. ........... 5

II. CONGRESSIONAL ACTION ..............4.. 9

A. RR SUNS, vc sn ccesvtebeucacen 9

B. Comprehensive Legislation - the UCMJ... 15

1. Jurisdictional Aspects of the UCM3J.

headuceld oskenssasenedecore 16

y Congress Has Preempted the Field of

Military Commissions........... + 18

Ul. INTERNATIONAL LAW AND _ MILITARY

ep rr ae nae pee rca 19

A. Military Law, International Law and Military

ee ea ya ea yb hoes oa4 20

B. Presidential Precedents. ............26: 21

IV. UNLIKE THE PROCEDURES HEREIN, MILITARY

COMMISSIONS HAVE HISTORICALLY USED THE

SAME RULES OF PROCEDURE AND EVIDENCE

AS GENERAL COURTS-MARTIAL. ......... 24

A. The Quirin and Yamashita Anomalies. ... 26

B. The Procedures Demied. ... 20.005 ccce. 28

EE / ides bunedb a's skeen kas haan Cheat 29

EE icone see ikwines eRe REE CORTES A-l

ME sede tue. ncLeicen a nheekackaw neon A-8

TABLE OF AUTHORITIES

CASES:

Caldwell v. Parker, 252 U.S. 376 (1920) ........+5+5: 29

Colepaugh v. Looney, 235 F.2d 429 (10" Cir. 1956), cert.

denied, 352 U.S. 1014 (1957). .....---- cece eee eee 27

Crawford v. Washington, 541 U.S. 36 (2004). ...---.-+- 9

Dames & Moore v. Regan, 453 U.S. 654 (1981). ....--. 20

Ex parte McCardle, 74 U.S. 506 (1868). .....---++-++: 1]

Ex parte Milligan, 71 U.S. 2 (1866). .....-...++++- 10, 11

Ex parte Quirin, 317 U.S. 1 (1942). .....-.++. 5, 6, 26, 27

Fleming v. Page, 50 U.S. 603 (1850) «1... +. eee eee eee: 4

Hamdan vy. Rumsfeld, 415 F.3d 33 (DC Cir. 2005) ...... 17

Hammond v. Squire, 51 F.Supp 227 (W.D. Wash. 1943) . 27

In re Yamashita, 327 US. 1(1946). ....-...+-++ 5, 16,27

Jecker v. Montgomery, 54 U.S. 498 (1952) ...----- 0-5 4

Kahn v. Anderson, 255 U.S. 1 (1921). .. 6... 6-202 e eee 18

Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804). ....-.---- 12

Loving v. United States, 517 U.S. 748 (1996) ....... 18, 29

Madsen v. Kinsella, 343 U.S. 341 (1952). ........ 5, 14, 18

EEE PD Te eT ee ee ee S

The Schooner Peggy, 5 U.S. (1 Cr.) 103 (1801) ..... 20,21

U.S. ex rel. Wessels v. McDonald, 265 F. 754 (E.D. NY, 1920),

app. dismissed per stip. 256 U.S. 705 (1921). ......... 14

United States v. Russell, 80 U.S. 623 (1872) ........... 6

United States v. Yasui, 48 F.Supp. 40 (D. Ore., 1942), aff'd 320

Gk EAP CREED nibs ccnrcctescsévscedcecderredisens 8

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

Pee Te eT CTT TTT CUT TT TET TTT TET T TT 2, 3, 12, 30

CONSTITUTIONAL PROVISIONS:

Article I, § 8, U.S. Constitution ................ 2, 10,15

Asticte Vi, § 2, U.S. CORSMIMIOM 2. cece csccsccevces 19

STATUTES:

Fe BOP GRE ook ove deeeedaoteccnaccsecensescns 9

PU TRUE. 6.66 65-506 6066666400 Cb56s cbbnnd baedes l

De PEE Cs cbr ecocnensseedccosessosenvseeees 1

10 U.S.C. §§ 801 et seq., Uniform Code of Military Justices 2

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fd errr ere er TTT TT Tere ee 15, 16

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POUBE. OOS 2c cccvceccvstcsvedeensicne See

POUL OEE. 6 ccvesonidendediautene 6, 15, 16, 18, 2

Lit ied |: PPrrrrrrrrTrr Tyre tir 2

PULSE. SESE ..ocnccsvnctececsseusececegebuneun 2

UA GERD. 00k ivcnscccncnecasnsnsavues passim

BP UA. BEET ccccccccncocvescdvcnsensesnucaoual 3

PUR. BO os vcnccicccttiescconecceekel ene 3

DOUBLE, GEE oc vnvesvccncesccscicvess (4ueerene 4

TOUR. GOD occcccvcccovcessctsdaseuscseneeel 4

pik tot | | PPPOE rTErrrrrroer or re 4

10 U.S.C. § 860(e). ....... ‘ocgeeesanssenpheeheae ee 12

SOUS. GGG cccucscvissesdciscnaaueieeseee 19,5

POUR GSES oocncocssctnccéeckedasanuensewan 16,5

POULBEA OTD cccccccvdvcdcestdnansconsaunswenn 16,5

OUR. GIST 6 sve vespnne sevens 12, 19, 30, 5

32 DUR, SOR, SIRE 6 eve vccpdccevsccckenseweun 10

re Ferrer 10

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13 Stat. 356 (July 2, 1864). ...... ERE ee err eeere 11

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15 Stat. 44 (March 27, 1868). ...... Esa ans eee 11

18 Stat. 244 (June 23, 1874). ....... cece cece eee 12

lt ivsteees 13

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a us cas ewenéeeeie 13, 14

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OTHER AUTHORITIES:

Article 102 of the 1949 Geneva Convention (III) Relative to the

Treatment of Prisoners of War [GPW], 6 U.S.T. 3316, 3394

TEN ALLELE IES EP ET Pe eee Tee eee e ee TTT TT ET 16, 26

14 Opn. Atty Gen 249 (June 7, 1873). . 2... 6. 66 ee eee ee 7

1949 Geneva Conventions .........06056- 2, 6, 16, 23, 29

S2 CPR. § 9.3 (QDOS) 2c ccccvcsccccee abn cheeekese 17

66 F.R. 57833, Military Order, November 13, 2001 .. 19, 28

Benét, A Treatise on Military Law and the Practice of Courts-

Martial, 6" ed., (1868). .... 6.0662 e eee cree eee eens 7

Brig. Gen. E. Dudley, LL.D., USA (ret), Military Law and the

Procedure of Courts-Martial, 3 ed. (1910) .....--- 13, 25

Brig.Gen. J. Snedeker, Military Justice Under the Uniform

Code (1953). 2... ccc ce cece cee e ee eeeccneeeeereees 25

Cramer, Military Commissions: Trial of the Eight Saboteurs, 17

Wash. L. Rev. 247 (1942). . 0... . ee cee eee cece eens 20

Davis, A Treatise on the Military Law of the United States, a.

C0. (1909) 2... cece cece eee e eee eeneeererseees 3

DeHart, Observations on Military Law (1859 pub.). ...-.- 3

DoD Directive 5100.77 (1998) ..... 6.606 - eee eens 22

DoD Instruction 2000.14 (1994) .. 2... 6... e ee ee eee 21

EO 10214 (February 8, 1951). «1... 0-0 eee eee eee ees 22

EO 11476 (June 19, 1969)... 2... eee eee eee ees 23

EO 12473 (April 13, 1984). 2... -- cece reece erences 23

EO 12960 (May 12, 1995)... 0... eee ee eee eee eee 23

EO 13140 (October 6, 1999). ....- 6. eee eee reece ees 23

EO 13262 (April 11, 2002) .... 6. ee cece eee eee eee ee 23

EO 13365 (December 3, 2004) .... 2... ee es ee eeeees 23

Fairman, The Law of Martial Rule, ro eee 6

F. Lieber, Instructions for the Government of Armies of the

United States in the Field, (1898) [reprint of War Department,

General Order No. 100 (April 23, 1863)]. .....-.--.-.--. 5

Fisher, Military Tribunals: Historical Patterns and Lessons,

CRS Report for Congress (July 9, 2004) ...........554: 3

Fisher, Nazi Saboteurs on Trial (2003) ........---- 26, 27

FM 19-40, Handling Prisoners of War (3 November 1952),

indenipipdiced sabi pisehekeensecshenneaeunne 26, A-9

FM 27-10, The Law of Land Warfare (18 July 1956). . A-10

FM 27-5, Army and Navy Manual of Military Government and

Civil Affairs (22 December 1943) .............-.45- A-8

FM 27-5, Basic Field Manual of Military Government (30 July

SD ev kaduacd iabocbnundavenscudepeaeneint 25, A-8

Geneva Convention on Prisoners of War, 27 July 1929..17, 23

Green, The Military Commission, 42 Am. J. Int’] L. 832 (1948).

ChvdweShbes tadddbncecivanndensecnenedeeeeeaewel 20

MacDonnell, Military Commissions and Courts-Martial, March

BOG? Army Lawyer 19 2. cccccccccccscccccccese 20-21

Mason, /nter Arma Silent Legis: Chief Justice Stone's Views, 69

SED. T. TRU. GR CI oo ccc ecccccccsccceveces a

Manual for Courts-Martial (1908) [MCM] .........-..- 8

RT 5 + ck Seewens Ueetacedewedéqsescens 15, 16,

6 +64 acnbutsenwarketivecsseseeseeuete Im

DE cick éceey ksaeevadidekpebieneeredeen 23

vil

IE i i cc vnddav ine baneadavaestbeeas 23

EE nn. cisieduiabasenacnasesiensaens 23

MCI No. 9, Review of Military Commission Proceedings

(Revised) (October 11, 2005)... .------ ee eee e eee eeee 12

Miller, Relation of Military to Civil and Administrative

Tribunals In Time of War, 7 Ohio St. L.J. 188 (1941). ... 20

Neely, The Fate of Liberty: Abraham Lincoln and Civil

Liberties (1991) 2.0.2... ccc e eee eee ee eee eees 8, 10

Note, Kangaroo Court or Competent Tribunal ?: J udging the

21" Century Military Commission, 89 Va. L. Rev. 2005 (2003)

ceapbacedvevddsedéctsasesevensioscesendst 24, 27, 28

Opinions of the Judge Advocate General of the Army, April-

December 1917 (1919). .....---- ee eee cece eee eeees 21

Randall. The Civil War and Reconstruction, (1937). ....- 11

Randall, Constitutional Problems Under Lincoln, rev. ed.,

(1951) occ ccccccccccccccccvcccccccncccssscssoees 8

Rehnquist, All The Laws But One, (1998). ....--++++++> 8

Tillotson, The Articles of War Annotated (1942) ..... 15, 25

Wiener, Civilians Under Military Justice, (1967). ..-.--- 14

Winthrop, Digest of Opinions of the Judge Advocate General,

at 324 et seq., (1880) .... 2-6. cece cree renee 3,7

Winthrop, Military Law and Precedents, 2 ed., at 832 (1920

FEprint) . 2... eee eee tee tenner eenees passim

vill

UCM] -

GLOSSARY

Article(s) of War

“Combatant Status Review Tribunal”

Department of Defense

Executive Order

U.S. Naval Base, Guantanamo Bay, Cuba

Acronym for “Judge Advocate” - uniformed

military lawyer of cach branch certified by

TJAG to perform judge advocate duties

Military Commission Instruction Number — _

Manual for Courts-Martial (date)

Military Commission Order Number _.

Prisoners of War

The Judge Advocate General - statutory

position of the highest ranking uniformed

lawyer for each military service

Uniform Code of Military Justice

AMICUS CURIAE STATEMENT OF INTEREST’

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

The National Association of Criminal Defense Lawyers

(“NACDL”] is a non-profit corporation with a subscribed

membership of more than 13,000 national members, including

military defense counsel, public defenders, private practitioners

and law professors, and an additional 35,000 state, local and

international affiliate members. The American Bar Association

recognizes the NACDL as onc of its affiliate organizations and

awards it full representation in its House of Delegates.

The NACDL was founded in 1958 to promote study and

research in the field of criminal law; to disseminate and advance

knowledge of the law in the area of criminal practice; and to

encourage the integrity, independence and expertise of defense

lawyers in criminal cases, both civilian and military. Among the

NACDL's objectives are ensuring justice and due process for

persons accused of crime, promoting the proper and fair

administration of criminal justice and preserving, protecting and

defending the adversary system and the U.S. Constitution. The

NACDL’s Military Law Committee is co-chaired by two

members with over 50 years of combined military JAG

experience.

The NACDL's interest in this case is two-fold.” First,

the exercise of military jurisdiction via “military commissions”

is a little known component of military jurisprudence and is

being fundamentally misapplied herein. Second, the structure

und current procedures contravene established military and

international law.

‘No counsel for a party authored this Brief in whole or in part. No

person, entity or organization other than the Amicus Curiae made a

monctary contribution to the preparation and submission of this Brief or to

counsel.

*Counscel for the Partics have consented to Amicus Curiae filing this

Brief and such have been filed with the Court.

SUMMARY OF ARGUMENT

Military commissions as part of our jurisprudence were

created out of “military necessity” during the Mexican-

American War of the 1840’s. The necessity was that in

personam and subject-matter jurisdiction for courts-martial

were strictly limited by statute and did not cover civilians,

Prisoners of War [POWs], or “war” crimes.” Commissions

were first used in areas of Mexico under martial law where the

civilian courts were not functioning and generally used

established courts-martial procedures. In 1863, Congress

statutorily recognized these “war courts.”

In the intervening years and especially after the

enactment of the Uniform Code of Military Justice {UCMJ],”

Congress extensively exercised its “war powers” with

considerable legislation pertaining to “military commissions,”

to include specifically recognizing the right of confrontation,

under its textual grants of authority in Article I, § 8, U.S.

Constitution. Furthermore, consistent with the provisions of the

various 1949 Geneva Conventions ratified by the United States,

Congress has expanded the in personam jurisdiction of the

UCMIJ, to now include Petitioner for any purported “war

crimes,” thus negating any actual military necessity for

convening a military commission. The military commissions

created by Respondents are “incompatible with the express or

implied will of Congress. . . .”* Constitutionally, there is no

“inherent” Presidential authority to create these military

commissions and the challenge to their jurisdiction by

Petitioner via habeas corpus has long been recognized in our

military law:

_.. United States courts may, on writ of habeas

*But see 18 U.S.C. § 2441, War Crimes (enacted in 1996), and 10

U.S.C. § 818 (General court-martial jurisdiction for “war crimes”).

“Codified at 10 U.S.C. §§ 801 et seq.

SYoungstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637

(1952)(Jackson, J., concurring).

corpus, inquire into the legality of detention of

a person held by military authority, at any time,

either before or during trial or while serving

sentence... .°

I, “MILITARY COMMISSIONS”

A, Basic History

Before 1847, the military “commission” was an

unknown entity.’ Prior to assuming command of U.S. forces

during the Mexican War, General Winfield Scott recognized

that there was no legal jurisdiction to try offenders, civilian or

military, during a foreign occupation.” No federal statute

existed either authorizing or establishing a mechanism for

trying offenders, so Scott drafted an Order establishing

proposed military tribunals.’ The Secretary of War

“recommended legislation that would authorize a military.

*Manual for Courts-Martial (1917), 18 [hereinafter “MCM”}.

Military tribunals other than courts-martial existed. See generally,

Fisher, Military Tribunals: Historical Patterns and Lessons, CRS Report for

Congress (July 9, 2004), available on-line at:

http://www. fas.org/irp/crs/RL32458.pdf (last accessed J-nuary %. 2006)

[hereinafter “Fisher, Tribunals”). Regardless of the rmenclature, the

weight of scholarly opinion is that they originated in 1847 during the

Mexican War. See, Winthrop, Military Law and Precedents, 2” ed.. at 832

(1920 reprint) [hereinafter “Winthrop”}; Davis, A Treatise on the Military

Law of the United States, 2 ed., at 307 et seq., (1909); Winthrop, Digest of

Opinions of the Judge Advocate General, at 324 et seg., (1880). Notably,

the leading pre-Civil War military law treatise, copyrighted in 1846, makes

no mention of “military commissions.” DeHart, Observations on Military

Law (18589 pub.).

‘Fisher, Tribunals, 11-12; Winthrop, $32.

“Scot! created two tribunals: one, “military commissions” for

conventional criminal activity, the other was the “council of war” for

violations of the “laws of war.” Winthrop, op cit’ By the Civil War these

two tribunals had morphed into a single entity, the “military commission.”

tribunal, but [Congress] declined to act.” © The Constitutional

authority for military commissions thus began in Justice

Jackson’s “zone of twilight.”

While Amicus Curiae is not aware of any authority

whereby the constitutionality of General Scott’s tribunals or

their jurisdiction were legally challenged, the unilateral

actions of the military regarding other aspects of the Mexican

War, did not fare well. In Fleming v. Page,”* this Court

emphatically rejected the military’s attempt to declare a

captured Mexican city part of the United States." In an

analogous situation to General Scott's military tribunals, this

Court condemned the military’s attempt to unilaterally - but

under purported Executive authority - create a Prize Court in

Mexico.”

Jecker is fundamental in analyzing the Respondents’

position and the Court of Appeal’s claims of Presidential power

under the law of war. This Court simply and squarely rejected

that claim, holding: “{N]either the President nor any military

officer can establish a court in a conquered country, and

authorize it to decide upon the rights of the United States, or of

individuals in prize cases, nor to administer the laws of

nations.” 54 U.S. at 515 [emphasis added].

“Fisher, Tribunals, 12 (footnote omitted).

“Youngstown, supra, 635-38 (1952) (Jackson, J., concurring).

Amicus submits that there is no inherent P.csidential power to create such

military commissions under our Constitution absent Congressional

authorization. mn

‘%tnilateral” here is used in the context that there was no express

Congressional authorization for the military's actions.

50 U.S. 603 (1850).

The President's] conquests do not ... extend the operation of our

institutions and laws beyond the limits before assigned to them by the

legislative power.” 50 U.S. at 615 [emphasis added].

‘SJecker v. Montgomery, 54 U.S. 498, 512-16 (1852).

Modern American usage of military commissions” has

been limited to the World War II era. Three significant

commission cases were decided by this Court - Quirin,"’

Yamashita,'"* and Madsen."® None of these cases offer any

precedential value to the case sub judice, as the limited in

personam jurisdiction of the then Articles of War was replaced

by an expansive in personam jurisdictional statute when

Congress enacted Article 2, UCMJ, in 1950.”

i The “Necessity” Requirement.

Military necessity ... consists in the

necessity of those measures which are

indispensable for securing the ends of war and

which are lawful according to modern usage and

usages of war.*! 4

Dr. Lieber was a special advisor to Lincoln and his War

Department as a recognized expert on the laws of war. Yet, he

clearly noted - and the United States adopted - that “military

necessity” is limited by the law of war and is not a “blank

check” for unfettered Executive action.

‘Amicus does not include the various international military

tribunals post-WW II, e.g., Niiremberg and Tokyo, nor those sanctioned

under U.N. auspices.

"Ex parte Quirin, 317 U.S. 1 (1942). Quirin did not adcress the

procedural and evidentiary issues in that habeas corpus action.

“In re Yamashita, 327 U.S. 1 (1946).

“Madsen v. Kinsella, 343 U.S. 341 (1952). There ire other

“military commission” cases from this era, but these are the legally

significant ones relevant here.

“10 U.S.C. § 802. This took effect in 1951, after Madsen’s trial.

“E. Lieber, Instructions for the Government of Armics of the United

States in the Field, (1898) [reprint of War Department, Generai Order No.

100 (April 23, 1863)}.

Winthrop in his treatise explains the legitimate necessity

concept in relation to military commissions and the conundrum

faced by General Scott in Mexico:

The occasion for the military

commission arises principally from the fact that

the jurisdiction of the court-martial proper, in

our law, is restricted by statute almost

exclusively to members of the military force and

to certain specific offenses defined in a written

code. It does not extend to many criminal acts,

especially of civilians, peculiar to a time of war

Our military has consistently construed military

“necessity” aS an emergency power, as another respected

military scholar noted during the height of WW II and after the

Quirin decision:” “{Mlilitary commissions are extraordinary

bodies called upon to act in abnormal situations . . . [and] the

extent of their power will often raise difficult questions of

law.”

Fairman’s conclusions were not aberrations, but were

=Winthrop, at 831. Three facts are key in examining this.

Winthrop’s observations were made before Congress passed the “concurrent

jurisdiction” statute in 1916, currently at 10 U.S.C. § 821; second, they were

made before Congress enacted a greatly expanded in personam jurisdiction

statute in 1950, 10 U.S.C. § 802; and third, they were prior to the ratification

of the 1949 Geneva Conventions’ limitations on military commissions’

jurisdiction. There simply is no “occasion” for using commissions today.

™Fairman, The Law of Martial Rule, 2” ed., Chapter X, (1943)

(“When the emergency had passed, it is believed that the military tribunals

should at once desist from the trial of alleged offenses. . . .” (p. 268)]

(hereinafter, “Fairman”). See also, United States v. Russell, 80 US. 623,

628 (1872) (Union forces had commandeered a steamer in 1864]: “[I}t is the

emergency . . . that gives the right, and it is clear that the emergency must

be shown to exist before the taking can be justified.” The trial of Mr.

Hamdan by military commission (versus court-martial) is hardly

necessitated at this date by any “war ime” emergency.

*“P airman, 278.

distillations of military law at the time, including another Civil

War era expert, Army Lieutenant C olonel Benét.” Benét noted

that in “carrying on war,” crimes are committed that were not

triable by courts-martial nor any civil court - hence, the

jurisdictional “necessity” for trial by military commission.”

Five years after Benét’s conclusions, the question was presented

to the Attorney General. During the Medoc Indian War of

1873, the issue of whether the classic war crime of “perfidy”

could be tried by a military commission, arose. Under a flag of

truce to discuss a peace treaty, Medoc warriors killed the United

States’ negotiators. Noting that “no civil tribunal has

jurisdiction,” the Attorney General concluded that a military

commission had jurisdiction to try the offenders.”’

Winthrop provides the basis for this “necessity”

jurisdiction:

Military Commissions have become

adopted as authorized tribunals in this country in

time of war. They are simply criminal war

courts, resorted to for the reason that the

jurisdiction of Courts Martial, creatures as

they are of statute, is restricted by law and

cannot be extended to include certain classes of

offences which in war would go unpunished in

the absence of a provisiona! forum for the trial

of offenders. [emphasis added}™

The United States’ military formally adopted this

“Benét, A Treatise on Military Law and the Practice of Courts-

Martial, 6" ed., Chapter XV, “Military Commissions,” (1568).

*Id., 203.

714 Opn. Atty Gen 249, 252 (June 7, 1873).

*Winthrop, Digest of Opinions of the Judge Advocate General, 325

(1880). However, the basis for this “necessity” no longer exists duc to the

expanded jurisdictional parameters of the UCM3.

rationale in the 1908 Manual for Courts-Martial.”” Or, as a

noted Civil War historian characterized the legal commentary

during that era, they “saw trials by military commission as

plugging loopholes in the law in wartime . . . yao

This Court in the context of civilian citizens, has created

a relevant corollary to the “necessity” rule: “The exigencies

which have required military rule on the battlefront are not

present in areas where no conflict exists.”*’ Guantanamo Bay,

whatever else it might be, is not a battlefield nor the situs of a

conflict involving Mr. Hamdan.”

Finally, we respectfully submit that the question of the

“existence of military necessity is justiciable. . . .”°* As the

Yasui Court astutely observed: “[I]f the necessity did not exist,

uatil some political or military authority has faith enough in the

position to proclaim a state of martial law, a court which is in

fact open, should not find the existence of necessity as a fact.””*

That is the exact status here - an ex post facto decision

by the Respondents claiming a fictitious “necessity” to try

Petitioner by an atypical “military commission.” The Executive

has the prerogative to try Hamdan, but a false claim of

“necessity” cannot imbue jurisdiction in a military commission.

*~MICM (1908), 6. [“Military Commissions, for the trial of

offenders against the laws of war . . . [are] founded in necessity.”

“Neely, The Fate of Liberty: Abraham Lincoln and Civil Liberties,

180 (1991) [hereinafter “Neely”}.

“Reid v. Covert, 354 U.S. 1, 34-5 (1957) [emphasis added].

Professor Randall in his seminal work, Constitutional Problems

Under Lincoln, rev. ed., at xviii (1951), posits: “In thinking of ‘military

necessity,” one should ask: Necessity for what? ... If wrongfully applied,

military necessity may be a fraud.” Chief Justice Rehnquist apparently

concurred: “It is all to easy to slide from a case of genuine military necessity

_.. to one where the threat is not critical and the power either dubious or

non-existent.” All The Laws But One, 224 (1998).

United States v. Yasui, 48 F.Supp. 40,52 (D. Ore., 1942), aff'd on

other grounds, 320 U.S. 115 (1943).

“Id.

Military commissions are creations of necessity - not the

necessity of war, but the necessity of having some “court”

available to exercise criminal jurisdiction. Thus, if a general

court-martial has both in personam and subjeci-maiter

jurisdiction over Petitioner, no military necessity exists legally

or factually, for the use of a military commission.

Il. CONGRESSIONAL ACTION

A. Legislative History.

Congress did not act on Gencral Scott’s 1847 request for

specific legislation authorizing military commissions. That was

not a symbol of benign neglect as Congress, to include the

Continental Congress, had always taken an active role in

exercising its legislative prerogatives over military justice.

Thus:

e On June 30, 1775, the first American “ Articles

of War” were enacted;*”

On September 20, 1776, the revised Articles of

War were enacted;

On May 31, 1786, Congress revised portions of

the Articles of War;”’

On April 10, 1806, Congress substantially

rewrote the entire Articles of War;

On July 17, 1862, Congress authorized the

appointment of a “Judge Advocate General,” “to

whose office shall be returned, for revision, the

“Winthrop, 953.

“Id., 961.

"Id., 972.

“2 Stat. 359 (1806). It should be noted that Congress in Asrticle 74

{2 Stat. at 368] recognized the right of actual confrontation when

authorizing the limited use of depositions in son-capital proceedings.

Crawford v. Washington, 541 U.S. 36 (2004).

records and proceedings of all courts-martial

and military commissions ... .””

Thereafter, on September 24, 1862, Lincoln suspended

the privilege of habeas corpus by Proclamation and directed

that:

_. . all Rebels and Insurgents, their aiders and

abettors . . . shall be subject to martial law and

liable to trial and punishment by Courts Martial

or Military Commission...”

As part of the Military Conscription Act of March 3, 1863,"

Congress for the first time exercised its Article I, § 8, power to

expressly provide for trial by military commission in two

separate areas:

l. Section 30, provided for trial by military

commission or general court-martial for murder

and other crimes of violence by members of the

U.S. military; and

2. Section 38, authorized the trial of spies by

military commission or general court-martial.

On that same date, Congress also passed the Habeas

Act? which ultimately formed the statutory basis for the

decision in Ex parte Milligan.’ That legislation demonstrated

a profound commitment by Congress that the rule of law, not

the dictates of the President, would govern those in military

custody. Or, as Professor Randall, the noted Lincoln scholar,

observed:

Whereas arrest and releases had previously been

at the discretion of the executive, it was now

12 Stat. 598, § 5 (1862). Mandating “revision” proceedings and

records retention are indicia of Congressiona! control.

“As quoted in Neely, op cit., 64-6.

*")2 Stat. 731 (1863).

“212 Stat. 75S (1863).

“71 U.S. 2 (1866).

intended that the further holding of prisoners

should depend upon judicial procedure.

(emphasis added)

Congress further demonstrated its active role involving

military commissions with an 1864 amendment to the 1863

Act.* Specifically, Congress delegated to various subordinate

miliiary commanders, consistent with the 1863 Act, the

authority to approve certain sentences, stating that § 21 “shall

apply as well to the sentence of military commissicns as to

those of courts-martial ....”*° If anyone at that time thought

that the President had “inherent” power and control over

military commissions, this 1864 legislation (as well as the 1863

Habeas Act) would have been superfluous. Milligan,*’ long ago

rejected that concept.

After the surrender of the South, Congress effectively

placed it under martial law and expressly provided via the

Reconstruction Acts, for trials by military commissions.” But,

it was not just the President who felt Congressional scrutiny

over the role of military commissions. Ore McCardle was

detained for trial by military commission and sought habeas

corpus relief. On appeal to this Court and after oral argument

but prior to a decision, Congress passed legislation revoking

this Court’s appellate jurisdiction over his habeas appeal.”

Thus, the appeal was dismissed “for want of jurisdiction.”

“Randall, The Civil War and Reconstruction, 400 (1937).

“13 Stat. 356 (July 2, 1864); § 1, modified § 21 of the 1863 Act.

“Id.

"Ex parte Milligan, 71 U.S. 2 (1866).

“See, e.g... 14 Stat. 428 (1867).

“15 Stat. 44 (March 27, 1848).

“Ex parte McCardle, 74 U.S. 506 (1868). Whether or not this

amounted to a de facto suspension of the writ of habeas corpus under Art.

(continued...)

Congress had now expressly demonstrated its control

over military commissions to both of the other branches of the

federal government. This “expressed will” of Congress under

its Article I authority, leaves the President herein little room for

discretion under Justice Jackson’s third, Youngstown category.”

In 1874, Congress modified the Judge Advocate General

Act,* mandating that he “shall receive, revise, and have

recorded the proceedings of all courts-martial, courts of inquiry

and military commissions. . ..” This directive, which is still in

effect, demonstrates strong (and continued) Congressional

interest in the military commission process - something hardly

indicative of inherent and unrestricted Executive power as

claimed herein. Amicus respectfully submits that the

Commission’s rules of procedure called “Instructions,” totally

violate this statute as the TIAG “revision” process™ was simply

eliminated by Respondents’ procedures.” The President as

Commander-in-Chief, cannot supercede an express act of

Congress passed pursuant to its “war powers.” Little vy.

Barreme, 6 U.S. (2 Cr.) 170 (1804), settled that issue.

Congressional control over the Commander-in-Chief, as

relevant herein, is perhaps best demonstrated by the Act of

March 1, 1875: “the President is hereby authorized . . . to make

and publish regulations for the government of the Army in

(continued)

1, § 9, U.S. Const. was not decided.

“Youngstown, supra, 637-38.

18 Stat. 244 (June 23, 1874).

10 U.S.C. § 3037(c)(3).

“The TJAG “revision” process for military commissions under §

3037 is different from that used in courts-martial. 10 U.S.C. § 860fe). This

differentiation emphasizes extensive Congressional control over this

process.

“See MCI No. 9, Review of Military Commission Proceedings

(Revised) (October 11, 2005). All of the MCI’s are available on-line at:

attp://www.defenselink.mil/news/Aug2004/commussions_:nstrucuens.hunl

accordance with existing laws.””’ Anything to the contrary,

viz., the MCls herein, is ultra vires under Barreme, supra.

The 19/6 Articles of War,”’ constituted a major revision

in military jurisprudence and unless placed into the proper

3358

construct, will plague the analysis of “military commissions.

Prior to 1916, the im personam jurisdiction of courts-

martial, was with a few well-defined exceptions, limited to

members of our military, while the subject-matter jurisdiction

was limited to crimes specified in the Articles of War. The new

1916, Article 12, ° provided in personam jurisdiction for

general courts-martial over “any person who by the law of war

18 Stat. 337 (1875)[emphasis added]. That limited delegation is

still the law also. 10 U.S.C. § $36(a).

"39 Stat. 650 et seq. (1916).

“To understand the 1916 Articles of War in the context of military

commissions, it is imperative to understand the pre-1916 jurisprudence.

See, e.g., Brig. Gen. E. Dudley, LL.D., USA (ret), Military Law and the

Procedure of Courts-Martial, 3" ed. (1910):

[Military commissions] are organized under the laws of

war and under martial law, as a military necessity, for

cases involving persons and offenses outside the powers

and duties conferred upon the statutory tribunals and

therefore beyond the jurisdiction of courts provided for in

the Rules and Articles of War. [/d., 17]

**e ee

During the existence of war... the military commander

is authorized, by the cstablished customs and usages of

the laws of war, to organize tribunals for the trial of

offenders and offenses, under those laws, not subject to

ordinary civil or military tribunals. \n the service of the

United States such tribunals are called “military

commissions.” (%d., 312}[emphasis added].

Thus, the “necessilty” for a military commission was (a) a lack of in

personam jurisdiction; or (b) a lack of subject-matter jurisdiction, 1e.,

“beyond the jurisdiction” of courts-martial.

"39 Stat at 692.

is subject to trial by military tribunals. . . 0 This

Congressional expansion of court-martial jurisdiction over war

crimes and war criminals was feared by the Army Judge

Advocate General, General Crowder, to be susceptible to an

interpretation that military commissions would become extinct.

To insure that did not happen, Crowder proposed a

totally new Article 15," which stated that Article 12, “shall not

be construed as depriving military commissions . . . of

concurrent jurisdiction in respect to offenders or offenses that

by the law of war may be triable” by military commission.

Congress was shrinking the sphere of “military necessity” for

commissions, while simultaneously expanding the jurisdiction

of courts-martial.”

In practice Crowder’s expamsive concept of concurrent

jurisdiction was historically rejected by the military itself, until

the matter sub judice."”

“I¢ Again, Congress was-iaking control - taking the ad hoc

jurisdiction of miliary commissions and placing “offenders and offenses”

under the Articles of War.

5°99 Stat. at 653.

‘General Crowder, when he first proposed Article 15 to Congress

in 1912, gave the following rationale:

| was influenced to propose the article 1S. largely perhaps

by experience during our second intervention in Cuba. It

was not very long after that intervention . . . until two

soldiers were charged with homicide of some natives.

There was no civil court of the United States with

jurisdiction. Plainly the court-martial could not try them,

as the condition was not war. [emphasis added].

As quoted in Madsen, supra, 353, n. 20. This rationale is consistent with the

“military necessity” doctrine which is the underlying premise for military

commissions. It is also consistent with other historical analysis of Arucle

15. See also, Wiener, Civilians Under Military Justice, 305 (1967).

“Compare, U.S. ex rel. Wessels v. McDonald, 265 F. 754 (E.D.

NY, 1920), app. dismissed per stip. 256 U.S. 705 (1921). Wessels, an

undercover German naval officer, was arrested in New York City dunng

WW | as an enemy alien. Thereafter, “he was arrested by the Naval

(continued...)

Except where [commissions] have been invested

by statute with a jurisdiction concurrent with

courts-martial, their authority cannot be

extended to the trial of offenses which are

specifically, or in general terms, made

punishable by courts-martial by the Articles of

War or other statutes. (citation omitted) “

Amicus submit that this statement reflects the correct

(and current) state of the law under the UCMJ. There is no in

personam nor subject-matter jurisdictional necessity to trigger

the lawful convening of a military commission to try Hamdan.

B. Comprehensive Legislation - the UCMJ.

After the Second World War, Congress again revamped

military law. The result was the UCMJ.” It represents a

comprehensive and uniform exercise of the “war power”

textually conferred to Congress in Article 1, § 8, of the

Constitution. The initial and perhaps most profound change

was with the significantly expanded provisions for in personam

jurisdiction in UCMJ Articles 2 and 3, 10 U.S.C. §§ 802-8053.

Once again, Congress was taking control by expancing the

jurisdiction of courts-martial while simultaneously shrinking

*(_..continued)

authorities on the charge of being a spy, and is now to be tned by a couri-

martial of the Navy.” Id., 758. He sought habeas relief, claiming that he

should be tried in federal court. There is no indicia that a military

commission was considered under Crowder’s premise.

“Tillotson, The Articles of War Annotated, 33 (1942). The curren!

version of Article of War 15, is Article 21, UCMJ, 10 U.S.C. § 821. In view

of the expansive in personam jurisdiction in the UCMJ [10 U.S.C. § 802),

President Truman appears to have adopted Colonel Tillotson’s asalysis in

promulgating the MCM (1951), p. 17.

“64 Stat. 107 (1950).

the penumbra of “military necessity.”

1. Jurisdictional Aspects of the UCMJ.

In addition to the comprehensive expansion of persons

now subject to the provisions of the UCMJ, Congress continued

in a slightly modified format the provisions of Articles of War

12 and 15 - now Articles 18 and 21, UCMJ [10 U.S.C. §§ 818

and 821}. Article 18, UCMJ, 10 U.S.C. § 818, provides general

court-martial jurisdiction over two categories of people:

1. “Persons subject to this chapter;” °’ and

2. “Any person who by law of war is subject to

trial by a military tribunal.”

Thus, the phrase “any person” makes § 818 truly concurrent

with § 821. But, the reverse is not true, as 10 U.S.C. § 821’s

“military commission” jurisdiction is limited to “offenders or

offenses that by statute{] or by the law of war[’] may be tried

by military commissions. . . .”

Mr. Hamdan is simply not an “offénder” who is subject

“Cf, Yamashita, supra, 19-20, where the Court concluded that the

lack of Article 2, AW, in personam jurisdiction justified trial by military

commission which did not comply with the procedural requirements in the

then AW. As discussed infra, there is in personam UCMS jurisdiction over

Hamdan, thus the UCM3 Icgislatively moots Yamashita on this point.

"See, 10 U.S.C. §§ 802 and 803.

“The only statutes authorizing trial by military commission are 10

U.S.C. § 904, Aiding the Enemy; and § 906, Spies.

Amicus Curiae knows of no “offenders or offenses” that may be

tried by military commission under the “law of war.” Article 102 of the

1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War

[GPW], 6 U.S.T. 3316, 3394 (ratified after the UCM3)), mandates trial by the

same forum as our military forces are subject to, viz., courts-martial. Art.

102, GPW, moots the interpretation of Art. 63, of the 1929 Geneva

Convention in Yamashita, supra, 20-23. By 1951, during the Korean War,

the government apparently abandoned the Yamashita interpretation as Art.

63 was cited as support in an annotation to Art. 18, UCMJ, 10 U.S.C. §818,

for general court-martial jurisdiction. MCM (1951), at 419.

to the jurisdiction of a military commission under the plain

language of § 821. There is no “necessity” to use a commission

to insure that any purported “war crimes” do not go unpunished,

because Congress has specifically made Mr. Hamdan subject to

the in personam jurisdiction of the UCMJ and specifically

general court-martial jurisdiction under 10 U.S.C. § 818, via

two provisions in § 802(a):

tke Ke

(9) Prisoners of war{”] in custody of the armec forces.

e+e *

(12) Subject to any treaty or agreement to which the

United States is or may be a party or to any accepted

rule ef international law, persons within an area leased

by ur otherwise reserved or acquired for the use of the

United States which is under the control of the

Secretary concerned and which is outside the United

States and outside the Commonwealth of Puerto Rico,

Guam, and the Virgin Islands. [emphasis added]

We respectfully submit that unless and until a competent

tribunal determines otherwise, Hamdan is presumptively

entitled to POW status.” Furthermore, Respondents cannot

deny that Mr. Hamdan is a prisoner within Guantanamo Bay

“If there is a bona fide “war on terror” that justifies prosecuting

Hamdan for alleged “law of war” violations, after he was captured on a

battlefield, it is anon sequitur to say that he is not a “prisoner of war.” That

is a factual question. Whether he is entitled to POW privileges under the

GPW is a legal question to be resolved under Art. 5, GPW.

"Art. 5, GPW. The Court below erred when it concluded Haiadan

can raise his Art. 5, GPW, issue before his military commission. Hamdan

v. Rumsfeld, 415 F.3d 33, 43 (DC Cir. 2005). The limited subject-matter

jurisdiction of the military commission precludes overruling the President’s

decision. 32 C.F.R. § 9.3 (2005). The Court below was also in error when

it held, “The President found that Hamdan was not a prisoner of war...”

Hamdan, 415 F.3d at 43. The Presidential “finding” of July 3, 2003,

involving Mr. Hamdan never addresses Hamdan’s POW status. Available

at http://“www.defensclink.mil/news Dec 2005 d2005 | 2 1SpribhlHamdan.pdf

{last accessed: January 4, 2006].

Naval Base, an “area leased by or otherwise reserved or

acquired for the use of the United States which is under the

control of the Secretary concerned and which is outside the

United States” viz., in Cuba - a place that Respondents placed

him at while presumably knowledgeable of the UCMJ’s

provisions.” The Respondents simply cannot claim that some

mythical military necessity obviates the clear, plain and written

will of Congress that Petitioner is subject to the UCMJ by being

confined at our Naval Base in Cuba. There is no “concurrent”

jurisdiction because there is no underlying jurisdictional

necessity for a military commission trial in Hamdan’s case.

2. Congress Has Preempted the Field of

Military Commissions.

While General Scott in 1847 may have acted in a “zone

of twilight” in the then absence of Congressional authority,

today Respondents’ actions fly in the face of and are

incompatible with the expressed will of Congress.

In addition to the provisions of 10 U.S.C. §§ 818 and

821, discussed above, Congress has enacted legislation

pertaining to military commissions in twenty other statutes.”

These include inter alia; (1) Mandating that procedures,

modes of proof and rules of evidence in military commissions

be consistent with U.S. District Courts and the UCMJ;” (2)

"Cf, 10 U.S.C. § 802()(7), providing UCMIJ in personam

jurisdiction over “Persons in custody of the armed forces serving a sentence

imposed by a court-martial2’ Kahn v. Anderson, 255 U.S. 1 (1921).

"See, Appendix “A” hereto, containing the siatutory excerpts.

10 U.S.C. § 836. This is hardly the case herein. “[T]he President

may not exceed” the “boundaries” of § 836(a). Loving v. United States, 517

U.S. 748, 772 (1996). Furthermore, the Court below was simply wrong in

its analysis of Madsen, supra, [415 F.3d at 43]. Madsen was tried in

February 1950 [343 U.S. at 344], and the UCMJ went into effect in 1951

and played no part in the Madsen analys's. The Court below also ignored

the legislative history of 10 U.S.C. § 836(a), at Hearings, House -

(continued...)

Making it a crime to “knowingly and intentionally” fail to

enforce or comply with the UCMJ’s procedural rules;” and (3)

Mandating that both the Army and Air Force Judge Advocates

General “receive, revise and have recorded the proceedings of

... military commissions;””

This comprehensive pattern of legislation which is

totally inconsistent with the procedures and regulations

pertaining to the military commission Petitioner is facing,

defeats any claim that Congress has somehow authorized the

Respondents” actions herein. It also belies any legitimate

“military necessity” to try Hamdan by military commission.

Il, INTERNATIONAL LAW AND MILITARY

COMMISSIONS.

It is axiomatic that “all Treaties made . . . shall be the

supreme Law of the Land... .” Art. VI, § 2, U.S. Const.

(continued)

Subcomm. of the Armed Services Comm.; 81* Cong., 1* Sess. [H{R 2498]

| Testimony Concerning Proposed Article 36, UCMJ]:

Rep. Rivers: “As a result of this, neither the President nor any of the

three services have any authority to agree on anv rules of

procedure contrary to the discussion before this

committee or the intent of Congress.”

Mr. Larkin: “I think that is provided, Mr. Rivers: ‘shal not be

contrary to or ineonsistent with this code.’” |at 1015];

*s* #6

Rep. Elston: “The President is bound by this cod2?”

Col. Dinsmore: “I think so, yes, sir.” [at 1016-17].

10 U.S.C. § 898. Notably, 32 C.F.R. Pt. 10, Military Commission

Instructions, § 10.4 warns military commission participants that a ‘uilure to

observe applicable procedures may result in “punitive measures imposed

under 10 U.S.C. 898... .” This coupled with the Military Order of

November 13, 2001 [66 F.R. 57833] which directs the military commission

at issue herein, which invoked inter alia 10 U.S.C. §§ 810 and 836, would

strongly suggest that the procedural aspects of the UCMJ do apply herein.

*10 U.S.C. §§ 3037(c)(3) and 803 7(c)(3). The present commission

procedures and rules totally ignore these Congressional mandates.

19 '

—_

Furthermore, treaties have long impacted on our generic

military law, to include the Commander-in-Chief: “It is

certainly true that the execution of a contract between nations

is to be demanded from, and . . . superintended by the executive

of each nation... .””’ Chief Justice Marshall went on to

conclude: “[{I}n great national concerns where individual rights,

acquired by war, are sacrificed for national purposes, the

contract .. . ought always to receive a construction conforming

to its manifest import . . . .”

A. Military Law, International Law and

Military Commissions.

International treaties further restrict the

jurisdiction of military commissions. .. . {the

U.S.] has entered into several treaties that affect

how or when it can use commissions and the

minimum due process necessary at a

commission.”

Our military jurisprudence has long considered military

commissions as “an agency for administering international

law.” Manifest from that is the premise that treaties govern

military commissions.” Furthermore, as one commentator

notes: “The significance of Geneva Conventions III and 1V to

"The Schooner Peggy, 5 U.S. (1 Cr.) 103, 109 (1801).

™Id., 110. Marshall’s observations were echoed by one of the

Quirin prosecutors, Army TJAG, General Cramer: “In this total war, the rule

of law rather than the rule of man, must be preserved.” Cramer, Military

Commissions: Trial of the Eight Saboteurs, 17 Wash. L. Rev. 247 (1942).

MacDonnell, Military Commissions and Courts-Martial, March

2002 Army Lawyer 19, 30 [citing the four 1949 Geneva Conventions}.

Miller, Relation of Military to Civil and Administrative Tribunals

In Time of War, 7 Ohio St. LJ. 188, 193, n. 10 (1941).

“Green, The Military Commission, 42 Am. J. Int’! L. 832, 838

(1948).

the jurisdictional boundaries of military commissions is

considerable.”

As early as 1917, the Army TJAG was asked to render

a formal opinion concerning German POWs, international law

and military commissions. In an Opinion dated December 27,

1917, it was noted that the provisions of the Hague Convention

of 1909, “are good evidence of what is just and acceptable

under international law.’”*’ The opinion further notes that under

AW 12 of the 1916 Articles of War, a general court-martial had

“jurisdiction” over the POWs. Of remarkable interest however,

is the Opinion’s recommendation that “it is inadvisable to resort

to a... military commission in such case.”™

B. Presidential Precedents.

From at least the time of Calvin Coolidge, American

Presidents have ordered our military to observe and comply

with international law in general and applicable treaties in

particular. While the NACDL disagrees strenuously with the

Respondents’ position that the Geneva Conventions (and other

treaties) provide no authority for Petitioner’s relief herein, their

arguments ignore two key facts. First, there is a long history in

our military jurisprudence of complying with international law

and treaties.” Second, Presidents have long ordered their

military subordinates to observe and comply with international

law by promulgating appropriate regulations.”

MacDonnell, op cit., 33.

“Opinions of the Judge Advocate General of the Army, April-

December 1917, 276 (1919).

*“7d., 1 6. This Opinion although given shorly after he 1916

“concurrent jurisdiction” statute was enacted, is thus consistent with the

“military necessity” concept of military commission jurisdiction.

* See, e.g., The Schooner Peggy, supra.

“See DoD Instruction 2000.14 (1994), § 4.1.3, mandcting that

(continued...)

By Executive Order [“EO”] dated November 29, 1927,

President Coolidge promulgated MCM (1928)."’ He observed:

“The sources of military jurisdiction include the Constitution

and international law... .” Jd.,1,91. When the UCMJ was

enacted in 1950, President Truman promulgated MCM (1951).

Since many of Truman’s military advisors and counsel were the

same individuals who worked with Congress on the UCMJ, the

MCM (1951) is considered to be an authoritative treatise on

military jurisprudence and the intent of the UCM§Js drafters.

Truman’s MCM stated the following:

1. “The sources of military jurisdiction include the

Constitution and international law. International law includes

the law of war. [1, 9 1];

2. (Military Commissions) “Subject to any applicable

rules of international law or to any regulation prescribed by the

President . . . these tribunals will be guided by the applicable

principles of law and rules of procedure and evidence

prescribed for courts-martial.” [1, 1 2][emphasis added];”

3. “Certain limitations on . . . military tribunals to

adjudge punishments under the law of war are prescribed in

international conventions. . . .” [18, 9 14b];

“(...continued)

“actions to combat terrorism outside the United States . . . comply with

applicable Status of Forces Agreements (SOFAs), other international

agreements and memoranda of understanding.” See also, DoD Directive

5100.77 (1998), 9 3.1, defining the Law of War as encompassing “all

international law for the conduct of hostilities binding on the United States

. . Including treaties and international agreements to which the United

States is a party... .” and 94.1, noting that “It is DoD policy to ensure that

.. + [t}he law of war obligations of the United States are observed and

enforced by the DoD Components.” The DoD publications are available at:

http://www .dtic.mil/whs/directives/ [last accessed, January 4, 2006).

*’Since then al! MCMs have been issued as Executive Orders.

“EO 10214 (February 8, 1951).

All references here are to MCM (1951) {page _,9__).

*This self-proclaimed exemption is limited by 10 U.S.C. § 836(a).

4. [Note] “See Articles 45-67, inclusive, Geneva

Convention of 27 July 1929 (Prisoners of War).” [413, Art.

2(9), UCMJ];

5. [Note] “Pertinent treaties or executive agreements

should be consulted . .. .” [414, Art. 2(12), UCMJ];

6. [Note] “... The limitations on the discretion of

military tribunals to adjudge punishments against prisoners of

war are prescribed in the Geneva Convention on Prisoners of

War, 27 Suly 1929... .” [419, Art. 18, UCMJ};

7. “Congress has adopted the system of military

common law applied by military tribunals so far as it should be

recognized and deemed applicable by the courts and as further

defined and supplemented by the Hague Convention.” (Citation

omitted) [420, Art. 21, UCMJ];

The MCM (1969),”' provided similar instructions and

observations. | Subsequent MCMs are in accord: sce,

MCM (1984); MCM (1995)” [same]; and MCM (2000)"*

[same]. Most notably, the MCM (2005)” issucd by the

President, did not change any of the foregoing provisions

regarding international! law, treaties or military commissions.

With this historical Executive precedent, Amicus

respectfully submits that Respondents’ position that the Geneva

Conventions provide no authority for Petitioner’s relief, is not

only totally without merit, but ignores 76 years of precedent, to

include amendments made to the MCM during this litigation,

“EO 11476 (June 19, 1969).

EO 12473 (April 13, 1984). RCM 201(a)(3) and its Discussion

cites the 1949 Geneva Convention Relative to Civilians in Time of War, the

Discussion to RCM 201(f)(1)(B)(ii), also cites to this; while Appendix 21's

Analysis of the “Sources of military jurisdiction,” cites the 1949 Geneva

Convention on Prisoners of War.

“EO 12960 (May 12, 1995).

“EO 13140 (October 6, 1999).

Incorporating FO 13262 (April 11, 2002), and EO 13365

(December 3, 2004),

which totally failed to alter or even distinguish this precedent.

IV. UNLIKE THE PROCEDURES HEREIN,

MILITARY COMMISSIONS HAVE

HISTORICALLY USED THE SAME RULES OF

PROCEDURE AND EVIDENCE AS GENERAL

COURTS-MARTIAL.

General Scott, the “inventor” of military commissions,

mandated that they use “the court-martial procedures of the

Articles of War.” Winthrop in his seminal work notes that

military commissions “will ordinarily be governed upon all

important questions, by the established rules and principles of

law and evidence.””’ Tillotson’s treatise in 1942, concluded:

In the absence of statutory regulation .

military commissions are governed as to forms

of procedure by the laws of war. The rules

which apply to general courts-martial have

almost uniformly been applied. ... their

proceedings have been similar and similarly

recorded... .”

The first major treatise to be published after the UCMJ

went into effect in 1951, contains authoritative analysis, under

Article 36(a), UCMJ, 10 U.S.C. § 836(a):

Power to prescribe the procedure, including

modes of proof . . . was also conferred. The

legislative policy with respect to these policies

is fairly well declared by the Uniform Code

considered as a whole, and as explained in the

hearings in the committees of Congress. The

*Note, Kangaroo Court or Competent Tribunal?: Judging the 21”

Century Military Commission, 89 Va. L. Rev. 2005, at 2028 (2003)

[hereinafter “Tribunal Note”).

Winthrop, 842; see also, Dudley, op cit., 314.

“Tillotson, 34: see also, Tribunal Note, 2039-44.

powers to prescribe regulations are powers to

fill up the details. To the power to prescribe the

procedure and modes of proof is coupled a

standard, the principles of law and rules of

evidence generally recognized in the trial of

criminal cases in the United States district

courts, so that the President cannot be said to

have an unfettered discretion in exercising the

power despite the fact that the standard need be

followed only ‘so far as he deems practicable.’

The power does not extend to the making of any

rule which affects the substantive rights of an

accused person . . . . [emphasis added]”

While the commentators generally agreed that military

commissions would use the same procedures and evidentiary

rules as general courts-martial, the actual practices and

regulations of the Army after Colonel Winthrop’s death in

1899. offer compelling proof that the current procedures are in

derogation of accepted military law and practice.

Army Field Manual [“FM”] 27-5, Basic Field Manual

of Military Government (30 July 1940),'” stated the generally

accepted rule: “The procedure of military commissions shall be

the same as that of general courts martial, cxcept insofar as

obviously inapplicable.” [§ 27; emphasis added]. Of particular

note countering any suggestion that the aberrational procedures

Brig.Gen. J. Snedeker, Military Justice Under the Uniform Code,

31 (1953). The author goes on w note, “Any powers he [The President]

possesses to issue regulations relating to military justice must therefore stem

from legislation.” Jd, 39. General Snedeker after examining the

jurisdictional issucs discussed supra, concluded: “[A] military comission,

in the absence of martial law or military government, has no jurisdiction .

...” Id, 150-51. [emphasis added].

Relevant excerpts are provided in Appendix “B” at A-8, infra.

used in Quirin, supra, have (or had) any precedential value,"

is the 1943 edition of FM 27-5, (promulgated a year after

Quirin). By now the FM™ was a joint Army and Navy

regulation and noted, “ . . . military commissions follow the

procedure of general Army or Navy courts martial, except

where such procedure is plainly inapplicable. .. .” [1 44;

emphasis added].

In FM 19-40, Handling Prisoners of War (3 November

1952),"" which post-dated the UCMJ and anticipated the

ratification of the 1949 Geneva Conventions, the Army noted:

“...mo proceedings or punishments contrary to the provisions

of the Geneva Convention relative to the Treatment of

Prisoners of War are allowed.” [ 12; emphasis added]. Lastly,

the 1956 edition of FM 27-10, ™ discusses Art. 102, GPW:

Interpretation. Prisoners of war, including those

accused of war crimes against whom judicial

proceedings are instituted ... are entitled to the

same procedural safeguards accorded to

military personnel of the United States who are

tried by courts-martial under the Uniform

Code of Military Justice or by other military

tribunals under the laws of war. (See UCMJ,

arts. 2 (9), 18, and 21.). [% 178(b); emphasis

added].

A. The Quirin and Yamashita Anomalies.

Quirin’s precedential value is first limited by the fact

that significant procedural and evidentiary issues (the deviations

See generally Fisher, Nazi Saboteurs on Trial (2003).

‘See Appendix “B” infra.

103 i d.

Id. ; a 1976 revision was made, but does not affect the paragraphs

relevant herein. As of January 5, 2006, this FM is still the current version.

105

from courts-martial practice) were not decided by the Court.

Second, the military itself essentially abandoned the proc:dures

utilized in Quirin, as the 1943 FM 27-5, supra, and current FM

27-10, supra, show.” For roughly 100 years, the military had

successfully used the court-martial model for conducting

military commission trials, without any major problems.

Indeed, in the subsequent Nazi “invader” prosecution, the

government retreated significantly from the Quirin model, back

towards the court-martial model (albeit not complete!y).'”’

Thus, Quirin other than being of historic | interest, offers no

support for the Respondents.

The Yamashita decision offers no help to the

Respondents. As noted above, the decision held that because

Article 2, AW, did not encompass General Yamashita, he could

not avail himself of the procedural protections within the

Articles of War. 327 U.S. at 18-20." ‘Tne UCMJ’s expansive

Article 2, 10 U.S.C. § 802, in personam jurisdictional

provisions Clearly encompasses Hamdan, and Yamashita cannot

support the aberrant procedures and rules Respondents are

seeking to use in Hamdan’s military commission trial.

Quirin and Yamashita were aberrations from the long-

Standing principle that the “rules” governing military

commission proceedings and the evidence used therein, would

be those most familiar to the members of such commissions, the

rules and procedures for ccurts-martial. Article 36, UCMJ, 10

U.S.C. § 836, allows for no other interpretation. See, e.g.,

Hammond v. Squire, 51 F.Supp 227, 228 (W.D. Wash. 1943)

[Habeas case from Military Commission], which observed: -

"See Tribunal Note, 2053 et seq., and Mason, Inter Arme Silent

Legis: Chief Justice Stone's Views, 69 Harv. L. Rev. 806 (1956).

‘This also assumes that the military did more than acquies-e to the

atypical process and procedures in Quirin, handled primarily oy the

Attorney General personally. See Fisher, Nazi Saboteurs on Trial (2003).

Colepaugh v. Looney, 235 F.2d 429 (10" Cir. 1956), cert. denied,

352 U.S. 1014 (1957). Compare, Tribunal Note, supra, 2089-61.

See also, Tribunal Note, supra, 2064 et seq.

“[T]he military commission so designated was in all respects a

court organized as a naval court martial, and its proceedings

were conducted in keeping with the rules governing such a

tribunal... .”

B. The Procedures Denied.

Amicus would note that the source document for the

military commissions sub judice is the President’s Military

Order [PMO] of November 13, 2001,"” as supplemented by the

MCOs and MCIs.'"° These procedures have virtually no

relation to contemporary courts-martial procedures and rules,

and as one commentator has noted, they mark “a half-century

leap backward in military legal norms” and “seem to reflect the

deliberate incorporation of outmoded rules of procedure that fail

to meet contemporary standards of justice.”””’

Specifically, by way of illustration only, Amicus would

note that military commission defendants are denied the

following procedural rights guaranteed in gencral courts-martial

under the UCMJ:'** (1) prohibiting pretrial punishment [§ 813];

(2) charges signed under oath based on personal knowledge or

investigation [§ 830], (3) a formal pretrial investigation with

confrontation rights [§ 832]; (4) right against former jeopardy

[§ 844]; (S) equal opportunity with prosecution to obtain

evidence and witnesses [8 846]; (6) “legal and competent

evidence” [§ 851(c)(1)];'° (7) a vote of three-fourths of the

members for all sentences in excess of 10 years (versus two-

thirds) [§ 852(b)(2)]; (8) judicial appeals [§§ 866, 867 & 867a];

‘66 Fed.Reg. 57833 (November 16, 2001).

“I°All = are

Officially available on-line at:

link. mil’

ws/commissions.html [last access: 01/05/06].

"Tribunal Note, 2019-20.

"All § references are to 10U.S.C.§ __.

PMO § 4(c)(3), only requires evidence having “probative value

to a reasonable person.”

(9) a designated military judge to preside | § 826]; and (i 0) the

right of the accused to be present at all stages of the proceedings

[§ 839(a)].

All of the aforementioned UCM) rights foster | ustice

and the appearance of justice, and as this Court can judicially .

note, have not impaired military prosecutions of even the most

complex cases.'* Unlike the situation in Loving, supra, there

is absolutely no indicia that Congress has delegated broad

powers pertaining to military commissions. To the contrary, it

has limited Executive discretion in the context of procedures,

etc., by prohibiting those “contrary to or inconsistent with” the

UCMS’s framework of procedures and modes of prouf [10

U.S.C. § 836(a)], as well as the entire legislative scheme.

CONCLUSION

Certainly, it cannot be assumed that the

mere existence of a state of war begot of

necessity the military power asserted... .*"°

If one traces the “evolution” of what is now 10 U.S.C.

§ 802, Congress - not the President - has steadily expanded both

the in personam and subject-matter jurisdiction of courts-

martial to both persons and crimes that had not been covered

prior to 1863. The doctrine of “military necessity” which

spawned military commissions has been steadily erodec since

Congress first spoke on this subject. Historical and legal

analysis show an inverse relationship between the expansion of

courts-martial jurisdiction and the shrinking jurisdiction of

military commissions. That coupled with the provisions of the

1949 Geneva Conventions mandating a trial forum as applicable

to eur own military, viz., courts-martial, constitutionally

precludes Respondents from trying Mr. Hamdan by military

commission - especially as they are now constituted.

See, e.g., Loving v. United States, supra.

"Caldwell v. Parker, 252 U.S. 376, 385 (1920) [WW I case}.

By enacting Article 2(a)(12), UCMJ, 10 U.S.C. §

802(a)(12), Congress has clearly and expressly provided for in

personam jurisdiction over Petitioner because of the situs of his

incarceration at our Guantanamo Bay Naval Station.

Additionally, through comprehensive legislation Congress has

pre-empted the field pertaining to military commissions. As

Justice Jackson observed in Youngstown, “Courts can sustain

exclusive presidential control . . . only by disabling the

Congress from acting upon the subject.”’”® The Executive

cannot ignore or countermand a law passed pursuant to a

specific, textual grant of constitutional power to Congress,

much less directly violate such a law. Yet, with respect to the

power that Congress gave the Army and Air Force TJAGs to

“receive, revise and have recorded the proceedings of .. .

military commissions;”"’’ the President has done just that with

the Instructions promulgated for the military commissions

herein - instructions that are an anathema to 160 years of

military jurisprudence.

The decision of the Court below should respectfully be

reversed,

Respectfully Submitted,

DONALD G. REHKOPF, JR.,

Counsel of Record

BRENNA & BRENNA, PLLC

31 East Main Street, Suite 2000

Rochester, New York 14614

(S85) 454-2000 X12

On behalf of Amicus Curiae

THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYFRS

January 6, 2006

343 U.S. at 637-38,

"10 U.S.C. §§ 3037(c)(3) and 8037(c)3).

APPENDIX A

5 U.S.C. § 551: [Administrative Procedure Act]

(1) "agency" . . . does not include—

** *& *k * \

(F) courts martial and military commissions;

5 U.S.C. § 701:

**#e € *

(b) For the purpose of this chapter--

(1) "agency" . . . does not include

*x*ee**

(F) courts martial and military

commissions;

10 U.S.C. § 802:

(a) The following persons are subject to this chapter:

**e xe

(9) Prisoners of war in custody of the armed

forces.

‘eee

(12) Subject to any treaty or agreement to which

the United States is or may be a party or to any accepted

rule of international law, persons within an area leased

by or otherwise reserved or acquired for the use of the

United States which is under the control of the Secretary

concerned and which is outside the United States and

outside the Commonwealth of Puerto Rico, Guam, and

the Virgin Islands.

10 U.S.C. § 818:

Subject to section 817 of this title (article 17),

general courts-martial have jurisdiction to try persons

subject to this chapter for any offense made punishable

by this chapter and may, under such limitations as the

President may prescribe, adjudge any punishment not

forbidden by this chapter, including the penalty of death

A-l

when specifically authorized by this chapter. General

courts-martial also have jurisdiction to try any person

who by the law of war is subject to trial by a military

tribunal and may adjudge any punishment permitted by

the law of war. . ..

10 U.S.C. § 821: -

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.

10 U.S.C. § 828: |

Under such regulations as the Secretary

- concerned may prescribe, the convening authority of a

. military commission, . . . shall detail or employ

qualified court reporters, who shall record the

proceedings of and testimouy taken before that...

commission. Under like regulations the convening

authority of a. . . military commission, . . . may detail

or employ interpreters who shall interpret for the . . .

commission.

10 U.S.C. § 831:

(a) No person subject to this chapter may compel

any person to incriminate himself or to answer any

“question the answer to which may tend to incriminate

him.

(b) No person subject to this chapter may

interrogate, or request any statement from, an accused

or a person suspected of an offense without first

informing him of the nature of the accusation and

advising him that he does not have to make any

statement regarding the offense of which he is accused

or suspected and that any statement made by him may

A-2

be used as evidence against him in a trial by court-

martial.

any person to make a statement or produce evidence

before any military tribunal if the statement or

evidence is not material to the issue and may tend to

degrade him.

***#* *

10 U.S.C, § 836:

(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.

10 U.S.C. § 837: re

(a)... No person subject to this chapter may

attempt to coerce or, by any unauthorized means,

influence the action of a court-martial or any other

military tribunal or any member thereof, in reaching the

findings or sentence in any case, or the action of any

convening, approving, or reviewing authority with

respect to his judicial acts. ~...

10 U.S.C. § 847: ;

(a) Any person not subject to this chapter who -

(1) has been duly subpenaed to appear as a

witness before a. . . military commission, . . . or before

any military or civil officer designated to take a

deposition to be read in evidence before such a court,

commission, or board;

*** * * ont

A-3

(3) willfully neglects or refuses to appear, Or

refuses to qualify as a witness or to testify or to produce

any evidence which that person may have been legally

subpenaed to produce;

is guilty of an offense against the United States.

*e# ee *

for the United States in ny such court of original

criminal jurisdiction shall, upon the certification of the

facts to him by the military . . . commission, . . . file an

information against and prosecute any person violating

this article.

10 U.S.C. § 848:

A... military commission may punish for

contempt any person who uses any menacing word,

sign, or gesture in its presence .. ..

10 U.S.C. § 849: Depositions.

***

(d) A duly authenticated deposition taken upon

reasonable notice to the other parties, so far as otherwise

admissible under the rules of evidence, may be read in

evidence or, in the case of audiotape, videotape, or

similar material, may be played in evidence before any

military . . . commission in any case not capital . . .

10 U.S.C. § 850:

(a) In any case not capital . . . the sworn

testimony, contained in the duly authenticated record of

proceedings of a court of inquiry, of a person whose

eral testimony cannot be obtained, may, if otherwise

admissible under the rules of evidence, be read in

evidence by any party before a court-martial or military

commission if the accused was a party before the court

of inquiry and if the same issue was involved or if the

accused consents to the introduction of such evidence.

A-4

10 U.S.C. § 898:

Any person subject to this chapter who -

(1) is responsible for unnecessary delay in the

disposition of any case of a person accused of an

offense under this chapter; or

(2) knowingly and intentionally fails to enforce

or comply with any provision of this chapter regulating

the proceedings before, during, or after trial of an

accused;

shall be punished as a court-martial may direct.

10 U.S.C. § 904:

Any person who -

(1) aids, or attempts to aid, the enemy with arms,

ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors

or protects or gives intelligence to, or communicates or

corresponds with or holds any intercourse with the

enemy, cither directly or indirectly;

shall suffer death or such other punishment as a court-

martial or military commission may direct.

10 U.S.C. § 906:

Any person who in time of war is found lurking

as a spy or acting as a spy in or about any place, vessel,

the armed forces, or in or about any shipyard, any

manufacturing or industrial plant, or any other place or

institution engaged in work in aid of the prosecution of

the war by the United States, or elsewhere, shall be tried

by a general court-martial or by a military commussion

and on conviction shall be punished by death.

10 U.S.C. § 3037: [Army] Judge Advocate General,

Assistant Judge Advocate General, and general _ officers of

Judge Advocate General's Corps: appointment; duties.

**#* +

A-5

other duties prescribed by law -

**¥*e* *€

(3) shall receive, revise, and have

recorded the proceedings of courts of inquiry

and military commissions.

10 U.S.C. § 8037: [Air Force] Judge Advocate General,

Deputy Judge Advocate General: appointment;

duties :

**e 4 *

addition to other duties prescribed by law -

(1) receive, revise, and have recorded

the proceedings of courts of inquiry and

military commissions; and... .

18 U.S.C. § 203:

(a) Whoever, otherwise than as provided by law for the

proper discharge of official duties, directly or indirectly-

(1) demands, seeks, receives, accepts, or agrees

to receive or accept any compensation for any

representational services, as agent or attorney or

otherwise, rendered or to be rendered either

personally or by another--

** ee

(B) at a time when such person is an

officer or employee or Federal judge of the

United States in the executive, legislative, or

judicial branch of the Government, or in any

agency of the United States, in relation to any

proceeding, application, request for a ruling or

other determination, contract, claim,

controversy, charge, accusation, arrest, or other

particular matter in which the United States is a

party or has a direct and substantial interest,

before any department, agency, court, court-

martial, officer, or any civil, military, or naval

commission; OF

A-6

kee KE

shall be subject tothe penalties set forth in section 216

of this title.

18 U.S.C. § 3156:

(a) As used in sections 3141-3150 of this chapter--

xe ee *

(2) the term "offense" means any criminal

offense, other than an offense triable by court-martial,

military commission, provost court, or other miitary

tribunal...

**e#*4# 4%

(b) As used in sections 3152-3155 of this chapter-

see ue *

(2) the term “offense” means any Federal

criminal offense . . . (other than a Class B or C

misdemeanor or an infraction, or an offense triable by

court-martial, military commission, provost court, OF

- other military tribunal).

18 U.S.C. § 3172:

As used in this chapter—

*e*ee4

(2) the term “offense” means any Federal

criminal offense . . . (other than a Class B or C

misdemeanor or an infraction, or an offense triable by

court-martial, military commission, provost court, or

other military tribunal).

18 U.S.C. § 3261:

** & *

a court-martial, military commission, provost court, OF

other military tribunal of concurrent jurisdiction with

respect to offenders or offenses that by statute or by the

law of war may be tried by a court-martial, military

commission, provost court, or other military tribuval.

A-7

APPENDIX “B”

ARMY REGULATIONS

Field Manual [FM] 27-5, Basic Field Manual of Military

Government (30 July 1940):

[p, 14] § 27. “PROCEDURE.-a. Military

commissions. -The procedure of military commissions shall be

the same as that of general courts martial, except insofar as

obviously inapplicable.” [emphasis added];

[p. 17} { 29(c). “Military commissions will keep a

separate record of the trial of each case in form as nearly as

practicable like that of a general court manial.” [emphasis

added];

FM 27-5, Army and Navy Manual of Military Government

and Civil Affairs (22 December 1943):

[p. 51-2] "40(a) “... In general, the rules for army or

navy general courts martial will serve as a guide in

determining the compositions of military commissions,

including the designation of law members, trial judge

advocates, and necessary assistants. The pruvision for a law

member, with powers and duties similar to those of a law

member of an army general court martial, promotes sound

decisions on matters of law and speed in procedure, and is

recommended for such military commissions for both the army

and the navy.” [emphasis added];

[p.55] { 44 [Procedure] (b): “Military Commissions.

It is generally advisable to direct that military commissions

follow the procedure of general Army or Navy courts martial,

except where such procedure is plainly inapplicable. -

[emphasis added].

A-8

[p.57] § 46 [Records] (b): “Military Commissions.,

Military commissions should keep records similar to those of

Army or Navy general courts martial.”

[p. 58] § 58 [Review] (b): “Military Commissions.

No sentence of a military commission may be carried into 2ffect

until its record shall have been examined by the staff judge

advocate of the officer appointing the commission cr his

successor (see A. W. 46); nor may the sentence of any military

commission be carried into effect until it shall have been

approved by the appointing officer.”

FM 19-40, Handling Prisoners of War (3 November 1952):

[iii] FOREWORD “The Geneva Conventions of 1949,

many provisions of which have been incorporated in this

manual, have at the date of publication not come into force as

to the United States and are accordingly not yet binding on the

United States or its forces. Until the coming into force of the .

Conventions the provisions of this manual will be given effect

only to the extent that the United States has, acting unilaterally

and by special directives, directed that the provisions of the

Geneva Conventions of 1949 will be applicable in certain

designated areas.”

[1] 2. Scope. “This manual covers pertinent aspects of

the Geneva Conventions of 1949 that pertain to the treatment of

prisoners of war. It covers operations of capturing troops,

collection; interrogation; evacuation; handling prisoners of war

in division, corps, army, and communications zone arcas;

disciplinary measures: utilization of prisoner-of-war labor; and

operations and functions of the military police prisoner-o!-war

processing company and the military police guard company.”

[4] 9 5(c). “Such [1949] Geneva Conventions as are

binding on the United States in a conflict are binding on all

United States troops in the same manner as the Constitution and

laws of the United States.” (Sic - as in orginal)

A-9

[6] 6(b). “Should any doubt; arise as to whether persons,

having committed a belligerent act and having fallen into the

hands of the enemy, belong to any of the categories listed

above, such persons shal] enjoy the protection of the Geneva

Convention relative to the Treatment of Prisoners of War until

such time as their status has been determined by a competent

tribunal.” [emphasis added].

[13] 12. “As prisoners of war are subject to the laws,

regulations, and orders in force in the armed forces of the

detaining power, designated officers in the Armed Forces of the

United States and military tribunals of the United States are

authorized to impose disciplinary and judicial punishment,

respectively, pursuant to the provisions of the Uniform Code of

Military Justice and the Manual for Courts-Martial, United

States, 1951. However, if any law, regulation, or order of the

United States declares acts committed by a prisoner of war to be

punishable, whereas the same acts would not be punishable if

committed by a member of the Armed Forces of the United

States, such acts entail disciplinary punishments only. In any

event, no proceedings or punishments contrary to the

provisions of the Geneva Convention relative to the

Treatment of Prisoners of War are allowed.” {emphasis

added].

FM 27-10, The Law of Land Warfare (18 July 1956).'"*

[p. 11] 913. “... While general courts-martial have

concurrent jurisdiction with military commissions, provost

courts, and other types of military tribunals to try any offender

who by the law of war is subject to trial by military tribunals

(UCMIJ, art. 18), it has generally been held that military

commissions and similar tribunals have no jurisdiction of such

purely military offenses specified in the Uniform Code of

"SA revision (“change” in military parlance) was filed in 1976

amending portions of the FM, none affect the paragraphs quoted herein.

A-10

Military Justice as are expressly made punishable by sentence

of court-martial (except where the military commission is also

given express statutory authority over the offense (UCMJ, arts.

104, 106)). In practice, offenders who are not subject to the

Uniform Code of Military Justice but who by the law of war

are subject to trial by military tribunals, are tried by military

commissions, provost courts, or other forms of military

tribunals.” [emphasis added}.

[p. 68-9] | 178(b) [discussing GPW, Art. 102]

“Interpretation. Prisoners of war, including those accused of

war crimes against whom judicial proceedings are instituted, are

subject to the jurisdiction of United States courts-martial and

military commissions. They are entitled to the same

procedural safeguards accorded to military personnel of the

United States who are tried by courts-martial under the

Uniform Code of Military Justice or by other military

tribunals under the laws of war. (See UCMJ, arts. 2 (9), 18,

and 21.).” [emphasis added].

\ ey 9 Coult, US

FILED

or: 4 mm

LS GAN. & 2006

No. 05-184 :

. OFFICE OF THE CLERK |

In the Supreme Court of the Anited States

SALIM AHMED HAMDAN, Petitioner

Vv.

DONALD H. RUMSFELD, ET AL., Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE NATIONAL INSTITUTE OF

MILITARY JUSTICE AND THE BAR

ASSOCIATION OF THE DISTRICT OF COLUMBIA

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

EUGENE R. FIDELL STEPHEN A. SALTZBURG

Counsel of Record 2000 H Street, N.W.

Feldesman Tucker Washington, D.C. 20052

Leifer Fidell LLP (202) 994-7089

200! L Street, N.W.

Washington, D.C. 20036

(202) 466-8960

DIANE MARIE AMANN KATHLEEN A. DUIGNAN

400 Mrak Hall Drive 4801 Massachusetts Ave., N.W.

Davis, California 95616 Washington, D.C. 20016

(530) 754-9099 (202) 274-4322

Attorneys for Amici Curiae

January 2006

INTEREST OF THE AMICI CURLAE

SUMMARY OF ARGUMENT

ARGUMENT

IL.

CONTENTS

Federal and international law mandates that

petitioner, whose status never has been

determined by a “competent tribunal," be

tried by court-martial

Army Regulation 190-8 establishes this

requirement as a matter of United States

MEN ear er Se ee TUR RL en A eS

AR 190-8 not only stands on its own as

U.S. law, but also demonstrates the U.S.

understanding of its obligations under

the Third Geneva Convention and

implements that Convention, should an

act of implementation be necessary ............

Trial of petitioner must be by regular

RA RM hc Seer ree Aecanwee

The military commission is invalid because

the President’s derogation from generally

recognized principles of law and rules of

evidence violates requirements established

by Congress and the Manual for Courts-

Martial

Poe PUP ROTC OOOO RSC OE COCO SUE E eee eee

CREE REE EEE REE HERE Eee

A. The President has not given legally

sufficient reasons for abandoning settled

BIS CIID ccccececcnsnsccincenscnisinsiicinietideiicsevedins 21

B. Military commission procedures and

rules of evidence deny fair-trial rights

basic to the domestic and international

law of war, and thus are impermissibly

“contrary to or inconsistent with” the

SOUND eccetenssiintinubbubhaniiasaiiehidtibenteineieubinauuiianaiian 24

AUTHORITIES CITED

United States Constitution:

Fee, EG, 0G ccevsisectatsccsninictnenisnnictescnimsnnmanciuninatan 5

BI TE vitchesnsscvciasiearenceatiitagtittngttaiiabidiineninidiniaieas 4,27

ee 12

United States Cases:

Brown v. Mississivpi, 297 U.S. 278 (1936) .....-..:c000+ 24

Burns v. Wilson, 346 U.S. 137 (1953)....... 17, 26-27, 28

Clinton v. Goldsmith, 526 U.S. 529 (1999) ......ccccceeees ]

Coolidge v. New Hampshire, 403 U.S. 443

CRIT UD acncecsscteisenccianenieiineniatnineneimenmenianananneeegs 24

Crawford v. Washington, 541 U.S. 36 (2004)............ 25

Dickerson v. United States, 530 U.S. 428 (2000)......... 9

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).......... 12

Gideon v. Wainwright, 372 U.S. 335 (1963)...........+-. 25

iil

Gratiot v. United States, 45 U.S. (4 How.)

SUITE stisacidistacedaiias ibaa cnsdinanibntisinicniinimitniadaie 5

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

TE: SUEUIND sncchbiinbeshitiniahnisneddeiitgndinapitiveiietisennisiacn 14, 28

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

Sn I acchdnctiiicibbiisesiiegduainidinieiénticenints 14, 15, 16

Hamdi v. Rumsfeld, 542 U.S. 507

IIIT sinitiadiaticdiicseadiaasapidpinnduceaiionetainsic 4,9, 15, 19, 29

In re Oliver, 333 U.S. 257 (1948) .....cccccescesesereeeeeeees 25

In re Yamashita, 327 U.S. 1 (1946).........cccccceeees 17, 25

Johnson v. Yellow Cab Transit Co., 321 U.S.

Pe sisnintaneitesdcteneniniiiininitanesniidensiaininatstnaieugiin 5

Klopfer v. North Carolina, 386 U.S. 213 (1967)........ 25

Loving v. United States, 517 U.S. 748 (1996)........ 5,22

Malloy v. Hogan, 378 U.S. 1 (1964) 00. eeeeeeeees 24

Mapp v. Ohio, 367 U.S. 643 (1961) .......cceceecceeseeeeees 24

National Institute of Military Justice v. Dep't of

Defense, 2005 WL 3440832 (D.D.C. Dec.

ils See ccetnevnestenidenessnsnataneiscintapienpinacsennenmetnneetion 2

Rasul v. Bush, 542 U.S. 466 (2004) oo... eee 1, 24

Service v. Dulles, 354 U.S. 363 (1957) ecccccecceseceeeees 23

Standard Oi! Co. of California v. Johnson, 316

Se NE OE ssinatctninticnitngvniesnneistiastcinticseniadinnnneciin 5

United States v. Ezell, 6 M.J. 307 (C.M.A. 1979)......21

United States v. Freeman, 44 U.S. (3 How.) 556

SID csisnieiisshsicnadisiianennissdineninainbiidainnniieibeetannamnsnenteniete 5

United States v. Kemp, 32 C.M.R. 89 (C.M.A.

Si csciidcinlticipuinantiiintediitainieiibatindiniuibaidbividnidemenicistoeii 27

United States v. Lindh, 212 F. Supp. 2d 541

SITS WH: SUI nivscieineenisesesinsstaiinninntndanestnnspecpéncontotda 14

United States v. Noriega, 808 F. Supp. 791 (S.D.

i: SI IE iiss ceceensictinicinindrtuttiieentitaniictennbedieia 14

United States v. Scheffer, 523 U.S. 303

CRBIIED wvccecsecssesescstonnnesssncnssnbsdunineaiuisssimiiaamiaaliniad 22

United States v. Sojfer, 47 M.J. 425

RFD. i iccccscistanisinenispiossasniiaiiititieisiiiuiiiiisiiaa 27

United States v. Wimberley, 36 C.M.R. 159

CDAD. BOGE cevsccccssesnstssceicincsinninitanmesntuiainiatiail 21

Washington v. Texas, 388 U.S. 14 (1967) ......:ccecceeee 25

Youngstown Sheet & Tube Co. v. Sawyer,

DED UG. SHO CIOGED wriccoresreccstsciscniniininustesinemuant 4

United States Resolutions and Statutes:

AO TE. 8 FE cxrsersisssnnsschissinntissnicmabiuuiiaiisdipiimesnaan 5

Administrative Procedure Act, 5 U.S.C. §

POA cccsesrereseotenssssinstintnninitsitesiiiiininisiabilatidaiiinaall 22

Authorization for Use of Military Force

Joint Resolution, Pub. L. No. 107-40,

tia f- , FeeEe 19, 21, 30

Federal. Rules of Evidence

fe Ree : siineptidinididsiiaaiaa 22

ED ccccenssctnssvennisnantintaitiniamiaiiiidiaduialicaiimneaia 29

Military Justice Act of 1983, § 10, Pub. L.

98-209, 97 Stat. 1393 (1983) (codified at

BB GEL. CET cccncvsetercnsnscivsstcisiituniateiaumiaimebianain 27

Uniform Code of Military Justice, 10 U.S.C. §§ 801-

DOG ...ccinscsccnsensicetiadentaearecssssntnmmmiahssiniaail 5

Art. 2(a)(9), 10 U.S.C. § 802(a)(9)...0.. eee eeeeeeeeees 5

Rat, FA, SO UBC. BBE cececcsccctsenssssintnicinniin 19, 23

Pe | le) ee 22

oe BS ik ee passim

ASt. FD, ID UBL. § TID concccssecsccccccscssorcssssssvescsees> 28

Arts. 49-50, 10 U.S.C. §$§ 849-50 o.cccccsscsssessseeeseen 28

Arts. 59-67, 10 U.S.C. §§ 859-67 ..ccscsssscossssessseeee 27

Arts. 141-45, 10 U.S.C. §§ 941-45 ooocccccsccsssseseen 27

United States Orders, Directives, and Regulations:

Army Regulation 190-8, Enemy Prisoners

of War, Retained Personnel, Civilian

Internees and Other Detainees (1997) ........... passim

Dep’t of Defense Directive 2310.1

SUITED. :cetniatiacepnttninsininatmnenteenenesanementnanmensencsees 4,8,14

Dep’t of Defense, Military Comm’n Order

No. |, Procedures for Trials by

Military Commissions of Certain Non-

Citizens in the War Against Terrorism

(Aug. 31, 2005), hetp://www.

defenselink.mil/news/Sep2005/

d20050902order.pdf ...........ccccccceees 23-24, 27, 28, 29

Detention, Treatment, and Trial of

Certain Non-Citizens in the War

Against Terrorism, 66 Fed. Reg.

EE 16, 19, 22, 23, 27, 29

Instructions for the Government of Armies

of the United States in the Field, General

Orders No. 100 (Apr. 24, 1863) ......... 10, 11, 17, 26

Manual for Courts-Martial, United

EEE 3, 5, 19, 20, 21, 29

Mem., Deputy Sec’y of Defense to Sec’y of

Navy, Order Establishing Combatant

Status Review Tribunal (July 7, 2004),

http://www.defenselink.mil/news/Jul200

4/d20040707 review. pdf .........ccccccceseeeeeeeeeeeseeees 15-16

Mem., Sec’y of Navy, Implementation of

Combatant Status Review Tribunal

Procedures for Enemy Combatants

detained at Guantanamo Bay Naval

Base, Cuba (July 29, 2004),

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

Jul2004/d20040730comb.pdf ............0:000++

Military Rules of Evidence

EE enon ener ene ae

Regulations Concerning the Convention

Against Torture, 64 Fed. Reg. 5470-01

(Feb. 19, 1999) (codified passim in 8

CF BA, CRI i ccnvsescnczscsessnnsscsessvssevtesnnesceceees

U.S. Military Assistance Command,

Vietnam, Annex A of Directive No. 381-

46 (Dec. 27, 1967), reprinted in

Contemporary Practice of the United

States Relating to International Law, 62

AM. J. INT'L L. 754 (1968)....cccccsssscveeesseveeon

Treaties the United States Has Ratified:

Convention (No. [) for the Amelioration of

the Condition of the Wounded and Sick

in Armed Forces in the Field, 6 U.S.T.

DEBS (EDS) nccrecccescossccscescessesesensecssssnssnseceees

Convention (No. IT) for the Amelioration of

the Condition of the Wounded, Sick, and

Shipwrecked Members of Armed Forces

at Sea, 6 U.S.T. 3217 (1949) ...cccccccccsssseeseen

Convention (No. IL) Relative to the

Treatment of Prisoners of War, 6 U.S.T.

| eee

vil

Convention (No. IV) Relative to the

Protection of Civilian Persons in Time of

War, 6 US.T. S506 (IDB) .ncccrcrecccsseccessscccssscccsesses 10

Geneva Convention Relative to the

Treatment of Prisoners of War, July 27,

1929, 47 Stat. 2021, 2 Bevams 932 ............cccccceeereees 9

International Covenant on Civil and Political

Rights, Dec. 16, 1966, 999 U.N.T.S. 171.............. 28

Cases from outside the United States:

A v. Sec'y of State for the Home Dept.

[2005] UKHL 71, [2005] All ER (D) 124

ae 29

Kostovski v. Netherlands, 166 Eur. Ct.

ee 28

Statutes and Rules from outside the United States:

International Criminal Tribunal for the

former Yugoslavia, Rules of Procedure

and Evidence, IT/32/REV.36 (2005),

http://www.un.org/icty/legaldoc-

e/basic/rpe/procedureindex.htm.................:0+++ 26, 29

Statute of the International Criminal

Tribunal for the Former Yugoslavia, S.C.

Res. 827, U.N. SCOR, 48th Sess.,

3217th mtg., Annex, U.N. Doc.

S/RES/827 (1993), as amended (2003),

http://www.un.org/icty/legaldoc-

ee 26

Vili

Other Authorities:

Diane Marie Amann, Guantanamo, 42

COLUM. J. TRANSNAT’L L. 263 (2004)...........00200+- 26

Diane Marie Amann, Harmonic

Convergence? Constitutional Criminal

Frocedure in an International Context,

Gy 25

THE AMERICAN HERITAGE DICTIONARY OF

THE ENGLISH LANGUAGE (3d ed.

1992)... one siete

Kevin J. Dury, A Face Lift (and Much

More) for an Aging Beauty: The Cox

Commission Recommendations to

Rejuvenate the Uniform Code of Military

Justice, 2002 L. REV. MICH. St. U. DET.

I chant chiinhltlinet haat a tat acne iaitianlia 20, 27

DONALD BEVAN & EDMUND TRZCINSKI,

ES een 10

GARY B. BORN, INTERNATIONAL CIVIL

LITIGATION IN UNITED STATES COURTS

a ee 14

Eugene R. Fidell, Judicial Review of

Presidential Rulemaking Under Article

36: The Sleeping Giant Stirs, 4 MIL. L.

ee 22

Eugene R. Fidell, Dwight H. Sullivan &

Detlev F. Vagts, Military Commission

Law, ARMY LAWYER 47

(Dec. 2005), available at: http://www.

jagcnet.army.mil/ JAGCNET

INTERNET/HOMEPAGES/AC/

JAGSAWEB.NSF//Main?Open

I iciinataciiecta ici etietieidinimmnanintiettl 5-6, 21

| FINAL RECORD OF THE DIPLOMATIC

CONFERENCE OF GENEVA OF 1949

GEE cosensennenmncmaneentenmesensmamedncsmecssnnmecaionnen 13

Geneva Conventions for the

’ Protection of War Victims:

Hearing Before the Comm. on

Foreign Relations of the U.S.

Senate, 84th Cong. (1955) ....... 10-11, 13, 14, 17, 25

Int’) Comm. Red Cross, Geneva

Conventions of 12 August 1949. United

States of America, http://www. icrc.org/

ihl.nsf/NORM/D6B53FSBSDI4F35AC1

256402003F9920?OpenDocument.............:0c000+

Int’! Comm. Red Cross, /nternational

Humanitarian Law - Treaties and

Documents, http://www. icrc.org/ihl.nsf/C

GQNV PRES TOREBVIGW .cccccccccsscccscccsscessccssccsssceses

Derek Jinks & David Sloss, Js the President

Bound by the Geneva Conventions?,90_ -

CORNELL L. REV. 97 (2004).........ccseeceseeeeeenes

THE LAWS OF ARMED CONFLICTS (Dietrich

Schindler & Jiti Toman eds., 3d ed.

STE sueciiuinitiiinsnsnntinitictainelatialiiabintiiniemunniiennventts

Neil A. Lewis, U.S. Charges Two at

Guantanamo with Conspiracy, N.Y.

, 8 & & 8 7 2s

ELLA LONN, FOREIGNERS IN THE

I CIID ctctensencecmntececsensonseneinszccnsmeanes

Gregory E. Maggs, Judicial Review of

the Manual for Courts- Martial, 160

Fes ics > EE ccretennicensnceesincnsiemnnniiadates

, Qa —-—--—rst—=‘=w tS”)

Theodor Meron, Francis Lieber’s Code

and Principles of Humanity, 36

COLUM. J. TRANSNAT’L L. 269 (1997)

National Institute of Military Justice,

ANNOTATED GUIDE TO PROCEDURES

FOR TRIALS BY MILITARY

COMMISSIONS OF CERTAIN NON-

UNITED STATES CITIZENS IN THE WAR

AGAINST TERRORISM (2002).........cc:ccceccceeeeeeeeeererenes |

National Institute of Military Justice,

MILITARY COMMISSION INSTRUCTIONS

SOURCEBOOKS (2003-04) .0.......ccccccseceesesenenreeeeees 1,2

National Institute of Military Justice,

Statement on Civilian Participation

as Defense Counsel] in Military

Commissions, July 11, 2003........:cccccccceseercerseeeeeees 2

JEAN PICTET, HUMANITARIAN LAW AND

THE PROTECTION OF WAR VICTIMS

COD TID .<cnsscoemsscenssancovessentemenesvsssastascteoseessens 13, 17, 28

RESTATEMENT (THIRD) OF THE FOREIGN

RELATIONS LAW OF THE UNITED

BEATER CIGET) cccccccccescccccssnscscsesssssscsssseccees 12, 14, 15

STEPHEN A. SALTZBURG, LE D.

SCHINAS! & DAVID A.SCHLUETER,

MILITARY RULES OF EVIDENCE

MANUAL (Sth ed. 2003) .......ccccccesssseeeersereseneereneees 29

Patricia M. Wald, Rules of Evidence in

the Yugoslav War Tribunal, 21

QUINNIPIAC L. REV. 761 (2003).........-.cccceeceeensees 25

INTEREST OF THE AMICI CURIAE®

The National Institute of Military Justice

(“NIMJ”) is a District of Columbia nonprofit

corporation organized in 199] to advance the fair

administration of military justice and foster improved

public understanding of the military justice system.

NIMJ’s advisory board includes law professors, private

practitioners, and other experts in the field, none of

whom are on active duty in the military, but nearly all

of whom have served as military lawyers, several as

flag and general officers.

NIMJ appears regularly as an amicus curiae

before the United States Court of Appeals for the

Armed Forces, and appeared in this Court as an amicus

in support of the government in Clinton v. Goldsmith,

526 U.S. 529 (1999), and in support of the petitioners

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

NIMJ is actively involved in public education

through its website, www.nimj.org, and through

publications including the ANNOTATED GUIDE TO

PROCEDURES FOR TRIALS BY MILITARY COMMISSIONS

OF CERTAIN NON-UNITED STATES CITIZENS IN THE

WAR AGAINST TERRORISM (2002) and two volumes of

MILITARY COMMISSION INSTRUCTIONS SOURCEBOOKS

(2003-04). NIMJ has also endeavored to improve

public understanding of the military. commissions by

Counsel for all parties have consented to the filing of this

brief. Copies of their letters have been filed with the Clerk.

Counsel] for NIMJ and BADC have authored this brief in whole,

and no person or entity other than the amici, their members or

their counsel have made a monetary contribution to the

preparation or submission of this brief.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.