Amicus Curiae Brief — Hamdan v. Rumsfeld

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FILED |

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iS ¥ JAN 6 - 2006

OFFICE OF THE CLERK

No. 05-184

————————_——————

IN THE

Supreme Court of the Anited States

SALIM AHMED HAMDAN

Petitioner,

DONALD H. RUMSFELD, SECRETARY OF DEFENSE, &T AL.

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE THE URBAN MORGAN

INSTITUTE FOR HUMAN RIGHTS IN SUPPORT

OF PETITIONER REGARDING THE

CHARMING BETSY CANON

CHRISTOPHER J. WRIGHT*

TIMOTHY J. SIMEONE

JOSEPH C. CAVENDER

HARRIS, WILTSHIRE &

GRANNIS LLP

1200 EIGHTEENTH ST., N.W.

WASHINGTON, DC 20036

(202) 730-1300

* Counsel of Record

TABLE OF CONTENTS

TR Ae Ge RAT Ta circ cerierscseveessccescesenscsvenses

INTEREST OF AMICUS CURIAE..............c:cccceeees

SUMMARY OF ARGUMENT ......0..00....ccccccesseeeseeees

ITE snerintecianliciatetaiinteingevbiteninctinteniisinictitnditigs

If.

THE CHARMING BETSY CANON

ESTABLISHES A STRONG

PRESUMPTION AGAINST

INTERPRETATIONS OF FEDERAL

LAW THAT WOULD VIOLATE

INTERNATIONAL LAW. ............::000000

APPLYING THE CHARMING BETSY

CANON IN THIS CASE WILL

ADVANCE CORE

CONSTITUTIONAL AND PUBLIC

Fe PCRS ceecesensnnicedntenanntatimreniie

A. Separation of Powers.................0.

B. The Executive Branch’s Long-

Standing Commitment to Abide by

International Humanitarian Law.....

C. The Geneva Conventions Have

Received the Advice and Consent

of a Supermajority of the Senate ....

Ill.

THE AUMF’S GENERAL

AUTHORIZATION FOR USE OF

MILITARY FORCE DOES NOT

AUTHORIZE THE PRESIDENT TO

ESTABLISH MILITARY

COMMISSIONS IN VIOLATION OF

INTERNATIONAL LAW. ............ccceee

SECTION 821 DOES NOT

AUTHORIZE THE PRESIDENT TO

ESTABLISH MILITARY

COMMISSIONS IN VIOLATION OF

INTERNATIONAL LAW......00.0. cece

APPLYING THE CHARMING BETSY

CANON WOULD SIMPLIFY THE

ISSUES BEFORE THIS COURT............

CONCLUSION

SEER EEE EEE ERED

ill

TABLE OF AUTHORITIES

CASES

Allegheny Ludlum Corp. v. United States, 367

Fe Be OO Gees OR ccscicsnsncecctnsscorsesenes

Commodities Futures Trading Comm'n v.

Nahas, 738 F.2d 487 (D.C. Cir. 1984)..........

EEOC vy. Arabian Am. Oil Co., 499 U.S. 244

Ex Parte Quirin, 317 U.S. 1 (1942) wc cceceeeeeeee

F. Hoffman-La Roche, Ltd. v. Empagran, S.A.,

Re es a a crceretievansecipenctsinitinariinieanciins

Finley v. United States, 490 U.S. 545 (1989)......

George E. Warren Corp. v. EPA, 159 F.3d 616

rs a, OU i cacindaenceiciniediniedisciibcipiaiiadiniiniaedies

Hamdi v. Rumsfeld, 542 U.S. 507 (2004)............

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

Heong v. United States, 112 U.S. 536 (1884).....

In re Rath, 402 F.3d 1207 (Fed. Cir. 2005).........

In re Yamashita, 327 U.S. 1 (1946)..............0000.

Kim Ho Ma v. Ashcroft, 257 F.3d 1095 (9th Cir.

Lauritzen v. Larsen, 345 U.S. 571 (1953)...........

MacLeod v. United States, 229 U.S. 416 (1913).

McCulloch v. Sociedad Nacional de Marineros

de Honduras, 372 U.S. 10 (1963) ............006..

‘

Murray v. The Schooner Charming Betsy, 6

U.S. (2 Cranch) 64 (1804) .00.00. cc ccceeeeeeeee passim

Pacific Seafarers, Inc. v. Pacific Far East Line,

Inc., 404 F.2d 804 (D.C. Cir. 1968) .............. 21

South African Airways v. Dole, 817 F.2d 119

he. Ras Ue Rte a

Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801)... 4

Trans World Airlines, Inc. v. Franklin Mint

Corp., 466 U.S. 243 (1984) oo... cecceeeeeees 5

United States v. Aluminum Corp. of Am., 148

F.2d 416 (2d Cir. 1945) oo... eecccceeceecceseeeeeeees 7

United States v. Corey, 232 F.3d 1166 (9th Cir.

ee iciscinsoasiaingssinuiiiniclitiedpalak ans nnsiliait Bouma 12

United States v. Hensel, 699 F.2d 18, 26-27 (1st

FI. Tie inacccciescenstntinsincnssisiidainsaialiasebiniiiimiiiian 7

United States v. Laden, 92 F. Supp. 2d 189

ies hc A cicstaiinnesecedioditimnisiisiaiiiaiiaetedaniss 14

United States v. Payne, 264 U.S. 446 (1924)...... 13

United States v. Robinson, 843 F.2d 1 (1st Cir.

epee iccissacaiicnediasdiinestiaititvsinaseienbitmadaiiemlammdiiien 6

United States v. United Cont'l Tuna Corp., 425

Ss CU PE cissceesbciincessniaieaicaies ttiadasiaibiaaiaanaiig 5, 6

Weinberger v. Rossi, 456 U.S. 25 (1982)............ 5, 6-7, 19

Youngstown Sheet & Tube Co. v. Sawyer, 343

Ss PO ccvirostincisttdcteninligiiaibadeeaiiale 12

Yusuf Ali v. Ashcroft, 346 F.3d 873 (9th Cir.

I icsnsintcsnsictsiornitaniemncitedidpuaitvnbiaiaiapataiaiiiia 14

CONSTITUTION

U.S. Const. art. I, § 8, Ch. VL cece cecceeteeeeeenees 10

SII, Ui citibsnsiseieensncnncsteinpncsasesumnecsensces 18

STATUTES, REGULATIONS, AND OTHER

GOVERNMENT SOURCES

nn UIT dtinatiiesaaliansiinciunditatnensseniastennseesnees passim

Army Regulation 190-8: Enemy Prisoners

of War, Retained Personnel, Civilian

Internees and Other Detainees,

available at http://www.apd.army.mil/

hE A NR 6, 17

Authorization for Use of Military Force, Pub. L.

No. 107-40, 115 Stat. 224 (Sept. 18, 2001)

TIT ticthdeitticietnheiaebeaiiapnasitaiieasiaenesnaineepeianieecneen passim

Department of Defense, Directive 5100.77: DoD

Law of War Program (Dec. 9, 1998)............. 16

Federal Nonintercourse Act, ch. 10, § 1, 2 Stat.

TT intiithalediabaierdnbicaeialebitinedtiesenestinandanaenn 3

Memorandum for William J. Haynes II, General

_ Counsel, Department of Defense, from John

Yoo, Deputy Assistant Attorney General,

Office of Legal Counsel, re: Application of

Treaties and Laws to al Qaeda and Taliban

Detainees (January 9, 2002), available at

http://www.msnbc.msn.com/id/

5025040/site/newsweek/ ..............ccccesseceeeeees 16

News Transcript, United States Department of

Defense, Briefing on Detainee Operations at

Guantanamo Bay 3 (February 13, 2004), at

http://www.defenselink.mil/transcripts/2004/

tr200402 13-0443 It 0.0... eee cccecseeeeeeeee 16

News Transcript, United States Department of

Defense, Briefing on Geneva Convention,

EPW’s and War Crimes | (April 7, 2003), at

http://www.defenselink.mil/transcripts/2003/

104072003 _t407genv.html............cc0cccssseveeeee 15-16

LEGISLATIVE MATERIALS

147 Cong. Rec. H5638, H5653, H5675 (daily

EE IE 19

TREATY

Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T.

OTHER MATERIALS

Curtis A. Bradley, The Charming Betsy Canon

and Separation of Powers: Rethinking the

Interpretive Role of International Law, 86

a Cc, GE ctecneeeencesrmeneninnionventeninn 4

Curtis A. Bradley & Jack L. Goldsmith,

Congressional Authorization and the War

on Terrorism, 118 Harv. L. Rev. 2048

A. Christopher Bryant & Carl Tobias, Quirin

Revisited, 2003 Wisc. L. Rev. 309 (2003)..... 23

vii

A. Christopher Bryant & Cari Tobias,

Youngstown Revisited, 29 Hastings Const.

Reh ee POE crceceninerisecnestisibindinnibinepianiatiien

Einer Elhauge, Preference-Eliciting Statutory

Default Rules, 102 Colum. L. Rev. 2162

STII cishesiciliniisasitaliissiedoeiniilintiageiiiialasiaaiiaitaiaisaats

William N. Eskridge, Jr., Overriding Supreme

Court Statutory Interpretation Decisions,

8, FRR

David Glazier, Note, Kangaroo Court or

Competent Tribunal: Judging the 21st

Century Military Commission, 89 Va. L.

SS ene ere

David Golove, Military Tribunals, International

Law, and the Constitution: A Franckian-

Madisonian Approach, 35 N.Y.U. J. Int’! L.

Neal K. Katyal & Laurence H. Tribe, Waging

War, Deciding Guilt: Trying the Military

Tribunals, 111 Yale LJ. 1259 (2002)...........

David Lewittes, Constitutional Separation of

War Powers: Protecting Public and Private

Liberty, 57 Brook. L. Rev. 1083 (1992)........

Michael D. Ramsey, Presidential Declarations

of War, 37 U.C. Davis L. Rev. 321 (2003)...

Restatement (Second) of the Foreign Relations

Law of the United States § 3(3) (1965).........

Restatement (Third) of the Foreign Relations

Law of the United States § 114 (1987)..........

vill

Colonel James P. Terry, Operation Desert

Storm: Stark Contrasts in Compliance With

the Rule of Law, 41 Naval L. Rev. 83 (1993)

Francis Wharton, Commentaries on Law §§

I cinirinnitininsinirtinnalessaaniaaiativiniden

Ingrid Brunk Wuerth, Authorizations for the Use

of Force, International Law, and the

Charming Betsy Canon, 46 B.C. L. Rev. 293

STII diinviiaiccchnciedtieeediiliatnseibntnaiateimaiieceninapebesinge

Ingrid Brunk Wuerth, The President's Power to

Detain “Enemy Combatants": Modern

Lessons from Mr. Madison's Forgotten War,

98 Nw. U. L. Rev. 1567 (2004)..................0-

INTEREST OF AMICUS CURIAE'

The Urban Morgan Institute for Human Rights, amicus

curiae, respectfully submits this brief in support of Petitioner,

Salim Ahmed Hamdan. The Urban Morgan Institute for

Human Rights was founded in 1979 at the University of

Cincinnati College of Law. The Institute edits the Human

Rights Quarterly, a scholarly journa! published by The Johns

Hopkins University Press, and sponsors Pennsylvania Studies

in Human Rights, a book series published by the University

of Pennsylvania Press. The Institute ts devoted to the study

of international human nights law and is thus particularly well

suited to express an informed view om the comstruction of

acts of Congress against the backdrop of intemmational law.

SUMMARY OF ARGUMENT

This Court should reject the government’s contention that

10 U.S.C. § 821 and the Authorization to Use Military Force

(AUMF) authorize Mr. Hamdan’s trial! by a special military

commission. Federal law should be construed where possible

to avoid a conflict with international law and Congress did

not clearly authorize persons like Mr. Hamdan to be tried by

military commissions in violation of the Geneva

Conventions. }

' Counsel for the parties have consented to the filing of this brief,

and their consents have been filed with the Clerk of this Court.

No counsel for any party to the litigation authored this bref in

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

its members, or counsel made any monetary contribution to the

preparation or submission of this brief.

A long-established and largely uncontroversial canon of

Statutory interpretation—the “Charming Betsy” canon—

provides that “an act of congress ought never to be construed

to violate the law of nations, if any other possible

construction remains.” Murray v. The Schooner Charming

Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). Other briefing

before the Court amply demonstrates—and we therefore do

not reiterate—that it would violate international law,

including core provisions of the Geneva Conventions of

1949, to try Mr. Hamdan in the military commission the

government established. See Geneva Convention Relative to

the Treatment of Prisoners of War, opened for signature Aug.

12, 1949, 6 U.S.T. 3316.

Application of the Charming Betsy canon to this case will

promote core constitutional and public policy values. First,

applying the canon here will advance fundamental

separation-of-powers principles—the Framers conferred on

Congress, not the President, primary authority over the extent

and manner of U.S. compliance with international law.

Second, applying the Charming Betsy canon in this case

would be consistent with the Executive Branch’s own public

commitment to follow the very international legal norms at

issue in the case. And third, applying the Charming Betsy

canon here would give effect to the will of a supermajority of

the Senate, which gave its formal advice and consent in

ratifying the Geneva Conventions.

Nothing in Section 821 or the AUMF provides any

justification for overriding the Charming Betsy presumption.

Far from authorizing the use of a military commission where

that would violate international law, Section 821 provides

that military commissions have concurrent jurisdiction with

courts-martial with respect to offenses “that by statute or by

the law of war may be tried by military commission.” Thus,

Section 821 references international law—‘the law of war’”—

and provides for trial by a military commission in cases when

international law permits trials in that tribunal. The AUMF,

which authorizes the use of force against persons involved in

the September 11 terrorist attacks, says nothing about trials

by military commissions. It does not come close to meeting

Charming Betsy’s requirement of an affirmative expression

of congressional intent to authorize violations of international

law.

ARGUMENT

I. THE CHARMING BETSY CANON ESTAB-

LISHES A STRONG PRESUMPTION

AGAINST INTERPRETATIONS OF FEDERAL

LAW THAT WOULD VIOLATE INTERNA-

TIONAL LAW.

The Charming Betsy canon derives its name from Chief

Justice Marshall’s 1804 opinion for a unanimous Court in

Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch)

64 (1804). The question there was whether the schooner’s

owner had violated the Nonintercourse Act of 1800

prohibiting trade with France during our undeclared war with

that nation. The Act applied to “any person or persons

resident within the United States or under their protection.”

Federal Nonintercourse Act, ch. 10, § 1, 2 Stat. 7, 8 (1800).

The Charming Betsy’s owner argued in part that applying the

Act to him, as a Danish citizen, would violate “rights of

neutrality” under international law. 6 U.S. at 107. The Court

reasoned that “an act of congress ought never to be construed

to violate the law of nations, if any other possible

construction remains” and agreed with the owner that the Act

did not apply to him. /d. at 118.7

Charming Betsy’s commonsensical presumption, this

Court has explained, is required out of respect for Congress.”

In Heong v. United States, 112 U.S. 536 (1884), the Court

construed a federal law restricting Chinese immigration not

to override a treaty with China that accorded a right of re-

entry to laborers previously residing in the United States.

The Court wrote:

[I]t would be wanting in proper respect for the

intelligence and patriotism of a co-ordinate

department of the government were it to

doubt, for a moment, that these considerations

fof the United States’ international

obligations] were present in the minds of

[(Congress’s] members when the legislation in

question was enacted. ,

* Notably, even Charming Betsy does not appear to have been the

Court's first application of this principle. In Talbot v. Seeman, 5

U.S. (1 Cranch) 1, 43 (1801), Chief Justice Marshali wrote that

“the laws of the United States ought not, if it be avoidable, so to

be construed as to infract the common principles and usages of

nations.” See Curtis A. Bradley, The Charming Betsy Canon and

Separation of Powers: Rethinking the Interpretive Role of

International Law, 86 Geo. L.J. 479, 486 (1998). In later cases,

too, the Court has applied this canon of construction without

specifically citing The Charming Betsy. See, e.g., Heong v. United

States, 112 U.S. 536 (1884).

- * Ina similar vein, Professor Bradley has suggested that the canon

can be understood as reinforcing the constitutional separation of

powers. See generally Bradley, The Charming Betsy Canon and

Separation of Powers, 86 Geo. L.J. 479.

Id. at 540.

Consistent with this “respect for the intelligence and

patriotism” of Congress, this Court looks for an “affirmative

expression of congressional intent” before it construes a

statute to conflict with the international obligations of the

United States. E.g., Weinberger v. Rossi, 456 U.S. 25, 32

(1982) (construing a federal statute prohibiting employment

discrimination not to apply on U.S. military bases in the

Philippines so as to avoid conflict with an international

agreement concluded by the President that mandated

preferential employment of Filipinos at those facilities); F.

Hoffman-La Roche, Ltd. v. Empagran, S.A., 542 U.S. 155

(2004) (employing the canon as an aid in discerning

Congress’s intent that the Sherman Act should not apply to

foreign plaintiffs complaining of foreign adverse economic

effects).*

* The Charming Betsy canon’s basic presumption that Congress

legislates with knowledge of the relevart legal landscape finds

support in two other interpretive canons. First, courts require a

clear statement by Congress before concluding that a subsequent

statute has “abrogated or modified” a treaty (like the Geneva

Conventions). E.g., Trans World Airlines, Inc. v. Franklin Mint

Corp., 466 U.S. 243, 252 (1984). Second, courts also assume that

Congress did not intend to repeal domestic law by implication.

See, e.g., United States v. United Cont'l Tuna Corp., 425 U.S. 164,

168 (1976); see also Heong, 112 U.S. at 549-50 (comparing the

presumption against repeal of domestic law by implication to the

presumption against assuming Congress has intended to violate the

terms of a treaty). This Court has applied this canon to avoid an

interpretation that would permit the “evasion” of a prior act of

Congress, reasoning that “{b]oth types of ‘repeal'—effective and

actual—involve the compromise or abandonment of previously

articulated policies, and we would normally expect some

expression by Congress that such results are intended.” United

This Court and the lower courts have employed the

Charming Betsy canon in_interpreting a broad range of

federal laws. See, e.g., McCulloch v. Sociedad Nacional de

Marineros de Honduras, 372 U.S. 10 (1963) (using the canon

to interpret the National Labor Relations Act); Lauritzen v.

Larsen, 345 U.S. 571 (1953) (Jones Act); Kim Ho Ma v.

Ashcroft, 257 F.3d 1095, 1114 (9th Cir. 2001) (Immigration

and Nationality Act); George E. Warren Corp., v. E.P.A., 159

F.3d 616, 624 (D.C. Cir. 1998) (Clean Air Act); United

States v. Robinson, 843 F.2d 1 (1st Cir. 1988) (smuggling

statutes). Moreover, the Charming Betsy canon is triggered

by all the various sources of international law. In Charming

Betsy itself and the F. Hoffman-La Roche case, for example,

the Court relied upon the canon to avoid conflicts with

customary international law, while Heong invoked the canon

to avoid potential conflict with a treaty. The Weinberger case

applied the canon to avoid a conflict with an executive

agreement, even though that agreement had not received the

approval of the Senate constitutionally required for treaties.

Weinberger thus confirms that even non-self-executing

treaties, which (like executive agreements) are not directly

enforceable in domestic courts absent implementing

Cont'l Tuna Corp., 425 U.S. at 169. For exactly the same reason,

this Court should require clear language from Congress before

concluding that the President has been authorized to act contrary

to international law, and particularly contrary to those provisions

of the Geneva Conventions that have been incorporated into

domestic law. See Hamdi v. Rumsfeld, 542 U.S. 507, 549-50

(2004) (Souter, J., concurring in part, dissenting in part, and

concurring in the judgment) (describing Army Regulation 190-8,

which was adopted to implement part of the Geneva Conventions);

Army Regulation 190-8: Enemy Prisoners of War, Retained

Personnel, Civilian Internees and Other Detainees, available at

http://www.apd.army.mil/pdffiles/r190_8.pdf.

legislation, can provide the basis for application of the canon.

Thus, in this case the Court can apply the Charming Betsy

canon without deciding whether the Geneva Conventions are

self-executing or enforceable by individuals.

Examples of the lower courts applying the Charming

Betsy canon are too numerous to catalog exhaustively here,

but there can be no question that the canon has been widely

invoked by leading jurists both contemporary and historical.

See, e.g., United States v. Hensel, 699 F.2d 18, 26-27 (Ist

Cir. 1983) (Breyer, J.) (explaining that, in enacting a statute

authorizing Coast Guard searches, Congress had clearly

intended that the Charming Betsy canon would apply);

United States v. Aluminum Corp. of Am., 148 F.2d 416, 443

(2d Cir. 1945) (Hand, J.) (reasoning that Congress intended

the courts “not to read general words, such as those in this

Act, without regard to the limitations customarily observed

by nations upon the exercise of their powers”); South African

Airways v. Dole, 817 F.2d 119, 125 (D.C. Cir. 1987) (“Since

the days of Chief Justice Marshall, the Supreme Court has

consistently held that congressional statutes must be

construed wherever possible in a manner that will not require

the United States ‘to violate the law of nations.””) (quoting

The Schooner Charming Betsy, 6 U.S. (2 Cranch.) at 118.); Jn

re Rath, 402 F.3d 1207, 1211-12 (Fed. Cir. 2005)

(overcoming the Charming Betsy presumption where the

statute and legislative history were clear that Congress did

not intend to fully incorporate an international convention on

trademarks). Moreover, in addition to its articulation by the

courts, the Charming Betsy doctrine has long been canonized

in the American Law Institute’s Restatements of Foreign

Relations. The Second Restatement, published in 1965,

stated: “If a domestic law of the United States may be

interpreted cither in a manner consistent with international

law or in a manner that is in conflict with international law, a

court in the United States will interpret it in a manner that is

consistent with international law.” Restatement (Second) of

the Foreign Relations Law of the United States § 3(3) (1965).

Similarly, the 1987 Third Restatement provides that wherever

“fairly possible,” courts will construe statutes or acts of

Congress “so as not to conflict with international law or with

an international agreement of the United States.”

Restatement (Third) of the Foreign Relations Law of the

United States § 114 (1987).

Finally, although this Court’s recent ruling on related

issues in Hamdi v. Rumsfeld did not cite the Charming Betsy

decision, its analysis in that case mirrored the canon’s

application. In Hamdi, one aspect of the plurality opinion

rejected the Government’s claim that the AUMF authorized

“indefinite detention” of enemy combatants, 542 U.S. at 519

(O’Connor, J. plurality opinion), a conclusion joined by all of

the Justices with the exception of Justice Thomas. /d. at 539

(Souter, J., concurring in part, dissenting in part, and

concurring in the judgment, joined by Justice Ginsburg); id.

at 573-76 (Scalia, J., dissenting, joined by Justice Stevens).

The plurality reasoned that the AUMF (upon which the

Government relies in this litigation as well) could not

reasonably be read as authorization for indefinite detention

because “ijt is a clearly established principle of the law of

war that detention may last no longer than active hostilities.”

Id. at 520 (citing, inter alia, Article 118 of the Geneva

Convention (II!) Relative to the Treatment of Prisoners of

War). Justice Souter, joined by Justice Ginsburg, agreed with

the plurality that potential violations of international law

made it impossible to credit the Administration’s broad

reading of the AUMF. See id. at 547-51. In Hamdi, the

Court thus rebuffed the Administration’s proffered

interpretations of the AUMF precisely because those

constructions would have created a conflict between U.S. and

- international law.’ That is the essence of the Charming Betsy

doctrine that amicus urges this Court to apply in this case.

In short, the well-established Charming Betsy canon

reflects the presumption—unchallenged in this litigation—

that Congress generally intends to keep the United States in

compliance with the nation’s international obligations.

Amicus submits that application of this principle compels the

conclusion that Congress has not authorized any treatment of

Mr. Hamdan that violates the Geneva Conventions.

Il. APPLYING THE CHARMING BETSY CANON

IN THIS CASE WILL ADVANCE CORE

CONSTITUTIONAL AND PUBLIC POLICY

VALUES.

The justifications for applying the Charming Betsy canon

are particularly strong in this case. First, the doctrine will

advance separation-of-powers principles—the Framers

conferred on Congress, not the President, primary authority

over the extent and manner of U.S. compliance with

international law, particularly in wartime. Second, the

Executive Branch’s own repeated commitments to follow the

* Accordingly, Hamdi weighs heavily against the D.C. Circuit’s

suggestion that the President’s construction of the United States’

obligations under international law is dispositive of the question

whether a conflict exists. See Hamdan v. Rumsfeld, 415 F.3d 33,

41 (D.C. Cir. 2005). The President has no more authority to

“construe” away conflicts between the AUMF and international

law here than in Hamdi. Indeed, ceding the President such

authority would fundamentally undermine the Charming Betsy

doctrine, which presumes congressional familiarity with

international law, not with a presidential “construction” of that

law developed during litigation. See also pp. 13-15, infra

(explaining that Charming Betsy has been applied repeatedly to

defeat the Executive Branch’s interpretation of a statute).

international legal norms at issue in this case make

application of the canon especially appropriate. And third,

applying the Charming Betsy canon here will give effect to

the will of a supermajority of the Senate.

A. Separation of Powers

The grounds for construing the AUMF and 10 U.S.C.

§ 821 to avoid violations of international law are stronger

here than in most statutory interpretation cases because the

text of the Constitution vests Congress—not the President—

with substantial authority over core issues of international

law involving war. Moreover, to the extent that there

remains any ambiguity regarding congressional intent, it is

the President-—-not individuals like Mr. Hamdan-—who has

the greater capacity to influence Congress’s agenda and to

seek explicit authorization for his actions.

Article I of the Constitution grants Congress the power to

“declare War, grant Letters of Marque and Reprisal, and

make Rules concerning Captures on Land and Water.” U.S.

Const. art. I, § 8, cl. 11. At the time of the framing, all three

of these powers relating to the conduct of war were defined

terms at international law. By vesting these powers in

Congress, the Framers deliberately placed core questions of

international law relating to the conduct of war under the

control of Congress rather than the President. See, e.g.,

Michael D. Ramsey, Presidential Declarations of War, 37

U.C. Davis L. Rev. 321, 336-57 (2003) (describing the

meaning of “declare war” in eighteenth-century international

law); Francis Wharton, Commentaries on Law §§ 216-18,

455 (1884) (describing international law governing the nght

of capture and noting that the Constitution vests Congress

with the power to authorize captures); David Lewittes,

Constitutional Separation of War Powers: Protecting Public

and Private Liberty, 57 Brooklyn L. Rev. 1083, 1173 (1992)

(describing letters of marque and reprisal and noting that

although under British precedent it was the executive who

issued such letters, the U.S. Constitution expressly lodges

this authority with Congress).

The Framers thus made a deliberate judgment that in this

context Congress, not the Executive, would have primary

responsibility to determine the extent and manner of U.S.

compliance with international law. The Charming Betsy

canon’s strong presumption against interpretations of federal

statutes that would permit violations of international law

helps to effectuate that judgment. The canon sensibly limits

congressional authorizations of non-compliance’ with

international law to those circumstances where Congress has

specifically authorized the violation.

Requiring explicit congressional authorization for

violations of international law also serves separation of

powers principles because the Executive has the best chance

of securing legislation from Congress to correct

interpretations by the courts with which the Executive

disagrees. See Einer Elhauge, Preference-Eliciting Statutory

Default Rules, 102 Colum. L. Rev. 2162, 2174 (2002) (citing

William N. Eskrdge, Jr., Overriding Supreme Court

Statutory Interpretation Decisions, 101 Yale L.J. 331, 334-

36, 338-40, 344-45, 397 (1991)). Certainly the array of

legislation enacted following the September 11 attacks

provides strong evidence of the President’s power to control

the legislative agenda in times of war. See, eg. A.

Christopher Bryant & Carl Tobias, Youngstown Revisited, 29

Hastings Const. L.Q. 373, 386-91 (2002) (describing the

Senate’s suspension of its normal operating procedures in the

days after September 11 in order to expedite the President’s

requests); Neal K. Katyal & Laurence H. Tribe, Waging War,

Deciding Guilt: Trying the Military Tribunals, 111 Yale L.J.

1259, 1276-77 (2002) (noting that after September 11,

Congress managed “[iJn record time” to “consider{] and

enact[] a broad array of laws, many of them in almost

precisely the form sought by the President”) (footnote

omitted). The Charming Betsy doctrine also serves separation

of powers values by providing a bright-line rule against

which Congress can make future authorizations and against

which the President can take action. Cf Finley v. United

States, 490 U.S. 545, 556 (1989) (“What is of paramount

importance is that Congress be able to legislate against a

background of clear interpretive rules.”).°

In a relatively recent case, the Ninth Circuit questioned in

dicta whether the Charming Betsy canon should be applied

against the Executive Branch. See United States v. Corey,

232 F.3d 1166, 1177-79 (9th Cir. 2000). Corey addressed the

applicability of a federal criminal statute to conduct in a

foreign country. The criminal defendant in that case argued

that applying the statute to his conduct would violate

customary international law governing extraterritorial

application of statutes, and that under the Charming Betsy

° Notably, the Charming Betsy canon’s limited field of operation

also helps to preserve the separation of powers. The canon does

not apply if constitutional text puts the power in question squarely

in the President’s hands (under the Commander-in-Chief clause,

for example) because in that context the scope of authorization by

Congress is irrelevant. See Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 585 (1952) (“The President’s power, if any,

. must stem either from an act of Congress or from the

Constitution itself.”) (emphasis added). Nor does the canon apply

if Congress has explicitly authorized the President to take the

action in question. In other words, the canon matters only to the

extent that the President’s authority depends upon congressional

authorization and that the scope of such authorization is itself

unclear.

canon the court should accordingly refuse this interpretation.

The panel rejected this argument on the ground that the

concurrent jurisdiction did not violate-international law. See

id. at 1179. In dicta, however, the court said that the

concerns underlying the Charming Betsy canon “are

obviously much less serious where the interpretation arguably

violating international law is urged upon us by the Executive

Branch of our government” and that “we must presume that

the President has evaluated the foreign policy consequences

of such an exercise of U.S. law and determined that it serves

the interests of the United States.” /d. at 1179 n.9.

This dicta from Corey is entirely incorrect. The opinion

stated, for example, that this Court had never invoked the

canon against the Executive Branch in a case to which it was

a party. That is wrong: In 1913, the Court ruled against the

Executive Branch in MacLeod v. United States, 229 U.S. 416

(1913), a case involving the collection of duties in occupied

territory. The Executive Branch claimed that a subsequent

act of Congress had ratified the collection of duties by a

military collector of customs in Manila, but the Court

disagreed, reasoning that “it should not be assumed that

Congress proposed to violate the obligations of this country

to other nations.”’ 229 U.S. at 434. Lower courts, even

including the Ninth Circuit itself, have also used the canon to

” The Supreme Court has also relied upon the presumptions

against implied repeal of a treaty and against extraterritorial

application of statutes—see n.4, supra—to reject interpretations of

federal statutes proffered by the executive branch in cases in

which it is a named party. See, e.g., United States v. Payne, 264

U.S. 446 (1924). Similarly, the Court has applied the presumption

against extraterritorial application of U.S. law to defeat an

agency's interpretation of a statute. See, e.g. EEOC v. Arabian

Am. Oil Co., 499 U.S. 244, 248 (1991).

defeat the Executive Branch’s interpretation of a statute. See

Allegheny Ludlum Corp. v. United States, 367 F.3d 1339,

1348 (Fed. Cir. 2004); Yusuf Ali v. Ashcroft, 346 F.3d 873,

885-86 (9th Cir. 2003); Kim Ho Ma, 257 F.3d at 1114;

Commodities Futures Trading Comm'n v. Nahas, 738 F.2d

487, 493-95 (D.C. Cir. 1984); United States v. Laden, 92 F.

Supp. 2d 189, 214-15 (S.D.N.Y. 2000); see also Ingrid Brunk

Wuerth, Authorizations for the Use of Force, International

Law, and the Charming Betsy Canon, 46 B.C. L. Rev. 293,

338-46 (2005) (detailing the use of the canon contrary to the

position of the Executive Branch).* These cases demonstrate

the courts’ insistence that Congress make clear its intention

to violate international law, even where the Executive Branch

has made its position clear.

Equally as troubling as the factual inaccuracy of the Ninth

Circuit’s opinion, the court also misapprehended the

fundamental purpose of the Charming Betsy canon. It is true

that, in the broadest terms, the Charming Betsy canon is

about reducing the risk of unwarranted international tension.

But as this Court has explained, see Heong, 112 U.S. at 540,

the canon is more specifically about respecting Congress’s

prerogative to legislate. The point of the canon is not for the

court to consider which interpretation of a statute might cause

the fewest foreign policy complications—an approach that

might, as the Ninth Circuit suggested, render Charming Betsy

less relevant where the Executive Branch had already

considered those consequences. Rather, the Charming Betsy

canon is a way to determine what Congress has authorized by

statute, and the President’s opinion of the foreign policy

* To be sure, various agencies litigate on behalf of the Executive,

but nothing in these cases suggests that courts should differentiate

among agencies when applying the Charming Betsy canon to

construe a statute.

- 15

ramifications of any particular statutory interpretation,

however well or poorly considered, is irrelevant to that

determination.

B. The Executive Branch’s Long-Standing

Commitment to Abide by International

Humanitarian Law

In this case, the Executive Branch’s own consistent,

publicly avowed commitment to follow international law

provides a further reason to apply the Charming Betsy

doctrine. It is unlikely that Congress would have intended to

authorize violations of the very international norms that the

Executive Branch has pledged to uphold.

The Executive Branch has consistently reiterated its

commitment to follow the law of war, both customary and

treaty-based. From the famous blockade ordered by

President Lincoln at the outset of the Civil War that

_ generated The Prize Cases, to the scizure of Cuban fishing

vessels during the Spanish-American war, to the military

trials of World War II, to U.S. conduct in the Persian Gulf

war, American Presidents have repeatedly made explicit their

desire to comport with the law of war. See David Golove,

Military Tribunals, International Law, and the Constitution:

A Franckian-Madisonian Approach, 35 N.Y.U. J. Int’] L. &

Pol. 363, 378-94 (2003); Colonel James P. Terry, Operation

Desert Storm: Stark Contrasts in Compliance With the Rule

of Law, 41 Naval L. Rev. 83 (1993). Today, the Bush

administration continues to defend its treatment of detainees

around the world as consistent with international law.”

* News Transcript, United States Department of Defense, Briefing

on Geneva Convention, EPW’s and War Crimes | (April 7, 2003),

available at http://www.defenselink.mil/transcripts/2003/

104072003 t407genv.html (“Let me talk a little bit about

Indeed, the Department of Defense requires all branches of

the armed forces to comply with the law of war in conducting

military operations and related activities. See Department of

Defense Directive, DoD Law of War Program, No. 5100.77

(Dec. 9, 1998), available at http://www.dtic.mil/whs/

directives/corres/pdf2/d5 10077p.pdf.

The Executive Branch has also explicitly committed itself

to the Geneva Conventions. Specifically with respect to

detainees at Guantanamo like Mr. Hamdan, the Department

of Defense has publicly maintained that their treatment

comports with the Geneva Conventions. See News

Transcript, United States Department of Defense, Briefing on

Detainee Operations at Guantanamo Bay (February 13,

2004), available at http://www.defenselink.mil/transcripts/

2004/tr200402 13-0443.html. Although the Bush

Administration has made controversial decisions about the

scope of the Geneva Conventions,'° it has not denounced or

[Department of Defense] policies and the conflict in Iraq. The

United States and coalition forces conduct all operations in

compliance with the law of war. No nation devotes more

resources to training and compliance with the laws of war than the

United States. U.S. and coalition forces have planned for the

protection and proper treatment of Iraqi prisoners of war under

each of the Geneva conventions I have identified. These plans are

integrated into current operations.”) (statement of W. Hays Parks,

Special Assistant to the Army Judge Advocate General).

'" See, e.g., Memorandum for William J. Haynes II, General

Counsel, Department of Defense, from John Yoo, Deputy

Assistant Attorney General, Office of Legal Counsel, re:

Application of Treaties and Laws to al Qaeda and Taliban

Detainees (January 9, 2002) (concluding that the Geneva

Conventions do not apply to detainees from the war in

Afghanistan), available at —http://www.msnbc.msn.com/id/

5025040/site/newsweek/.

repudiated them, but rather has repeatedly reaffirmed its

intention to comply with them.

The Executive Branch’s commitment to comply with the

Geneva Conventions is also reflected in the Army

Regulations themselves:

All persons taken into custody by U.S. forces

will be provided with the protections of the

[Geneva Convention Relative to the

Treatment of Prisoners of War] until some

other legal status is determined by competent

authority.

Army Regulation 190-8 § 1-5(a)(2). The purpese of army

regulation 190-8 was to implement customary international

law as well as the Geneva Conventions. Army Regulation

190-8 § 1-1(b). See also Hamdi, 542 U.S. at 549-51 (Souter,

J., concurring in part, dissenting in part, and concurring in the

judgment, joined by Justice Ginsburg) (noting that these

regulations were adopted to implement the Geneva

Conventions). Regulation 190-8 itself provides that “[{i]n the

event of conflicts or discrepancies between this regulation

and the Geneva Conventions, the provisions of the Geneva

Conventions take precedence.” Army Regulation 190-8

§ 1-1(b)(4). The consistent commitment by the Executive

Branch to comply with international law, and specifically

with the Geneva Conventions, reinforces the Charming Betsy

presumption that general authorizations by Congress, such as

the AUMF and 10 U.S.C. § 821, extend only to those actions

that do not violate international law.

C. The Geneva Conventions Have Received the _

Advice and Consent of a Supermajority of the

Senate

The Geneva Conventions provide a robust basis for

applying the Charming Betsy presumption for another reason:

they reflect limitations on government conduct to which the

Senate has already given its formal advice and consent via

the constitutionally required supermajority vote. U.S. Const.

art. Il. The Senate’s ratification of these treaties means that

the Senate itself (as well as the President) has previously

considered and approved the Geneva Conventions’

limitations on the use of force. Moreover, the Senate has

considered the issue in the same context in which it arises in

this case: defining and limiting the actions that the U.S.

military is permitted to take. Because the Charming Betsy

canon is based on the presumed intent of Congress, it applies

particularly well here, where a supermajority of the Senate

has already specifically approved the limitations imposed by

international law.

lil. THE AUMF’S GENERAL AUTHORIZATION

FOR USE OF MILITARY FORCE DOES NOT

AUTHORIZE THE PRESIDENT TO

ESTABLISH MILITARY COMMISSIONS IN

VIOLATION OF INTERNATIONAL LAW.

The AUMF provides, in pertinent part:

(a) IN -GENERAL.—That the President is

authorized to use all necessary and appropriate

force against those nations, organizations, or

persons he determines planned, authorized,

committed, or aided the terrorist attacks that

occurred on September 11, 2001, or harbored

such organizations or persons, in order to

prevent any future acts of international

terrorism against the United States by such

nations, organizations or persons.

Authorization for Use of Military Force (AUMF), Pub. L.

No. 107-40 (S.J. Res. 23), § 2, 115 Stat. 224 (Sept. 18, 2001).

Significantly, this general language says nothing at all about

detentions or trials by military commission, and certainly

does not meet Charming Besty’s requirement of “affirmative

expression of congressional intent” to authorize violations of

international law. See Weinberger, 456 U.S. at 32. As other

briefing before this Court amply demonstrates, however, the

commission convened to try Mr. Hamdan does violate

numerous aspects of international law, including core

provisions of the Geneva Conventions of 1949. See Geneva

Convention Relative to the Treatment of Prisoners of War,

opened for signature Aug. 12, 1949, 6 U.S.T. 3316. This

Court should therefore apply the Charming Betsy canon, and

reject the government’s urging to construe the generalized

text of the AUMF as sanctioning ~such international law

violations.

Moreover, nothing in the iegislative history of the AUMF

provides any basis to conclude that Congress intended to

authorize the President to violate international law. To the

contrary, comments by members of the House confirm that

Congréss expressly contemplated that the scope of the

AUMF would be limited by international law. See, e.g., 147

Cong. Rec. H5638, H5653 (daily ed. Sept. 14, 2001)

(statement of Rep. Clayton) (noting that Congress would

monitor the President’s use of force to make sure it is “in

accordance with international laws’’); id. at HS675 (statement

of Rep. Jackson) (“we must [] affirm the principles that came

under attack on September | 1—respect for innocent life and

international law.’’).

The D.C. Circuit’s decision below failed even to address

the implications of Charming Betsy for the AUMF. Instead,

the court invoked this Court’s rulings in Jn re Yamashita, 327

U.S. 1 (1946), and Ex Parte Quirin, 317 U.S. 1 (1942).

Those cases did not, however, interpret the general~

declarations of war as authorizing military commissions, out

instead relied on the narrow, more explicit grants of authority

in the Articles of War. See Yamashita, 327 U.S. at 7 and

Quirin, 317 U.S. at 27 (both primarily addressing Article 15);

see also Ingrid Brunk Wuerth, The President’s Power to

Detain “Enemy Combatants”: Modern Lessons from Mr.

Madison's Forgotten War, 98 Nw. U. L. Rev. 1567, 1575-80

(2004). Quirin and Yamashita thus actually undermine the

government’s argument that the general authorization for the

use of force in the AUMF includes authorization for military

commissions. Moreover, as discussed below, in both cases

the Court was careful to conclude that the military

commissions in question complied with international law,

and therefore the two cases provide no support for the

argument that the AUMF authorizes the President to convene

military commissions in violation of international law.

This Court’s recent decision in Hamdi further supports

reading the AUMF consistent with international law. As set

forth supra at 8-9 and n.6, the plurality opinion by Justice

O’Connor, joined by Chief Justice Rehnquist and Justices

Kennedy and Breyer, reasoned that the AUMF did not

authorize “indefinite detention,” 542 U.S. at 519 (O’Connor,

J., plurality opinion), a conclusion joined by al! of the

Justices with the exception of Justice Thomas. See id. at 539

(Souter, J., concurring in part, dissenting in part, and

concurring in the judgment, joined by Justice Ginsburg); id.

at 573-76 (Scalia, J., dissenting, joined by Justice Stevens).

The plurality found that the AUMF did not authorize such

detention because it would be contrary to the law of war, and

cited Article 118 of the Third Geneva Convention in support.

Id. at 520. For precisely the same reason, this Court should

hold that the AUMF does not authorize trials by military-

commissions or detentions that violate international law,

including the Geneva Conventions.

IV. SECTION 821 DOES NOT AUTHORIZE THE

PRESIDENT TO ESTABLISH MILITARY

COMMISSIONS IN VIOLATION OF INTER-

NATIONAL LAW.

Charming Besty’s presumption a’so undermines the

government’s reliance on 10 U.S.C. § 821, the federal statute

that purportedly authorizes the military commissions at issue

in this case. Indeed, the express language of section 821

demonstrates that Congress did not intend to authorize the

President to establish military commissions in violation of

international law.

Section 821 provides that the jurisdiction of courts-

martial does not deprive “military commissions” of

“concurrent jurisdiction with respect to offenders or offenses

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

commission.” 10 U.S.C § 821 (emphasis added). While the

Charming Betsy canon applies even to statutes that make no

mention of international law, the text of section 821 itself

limits the use of military commissions to those permitted

under the “law of war.” Applied to section 821, therefore,

the presumption that “Congress did not intend an application

that would violate principles of international law” is not just

“fairly inferred,” but explicitly rendered. See Pacific

Seafarers, Inc. v. Pacific Far East Line, Inc., 404 F.2d 804,

814 (D.C. Cir. 1968). ;

The D.C. Circuit relied on Jn re Yamashita, 327 US. at

19-20, and Ex Parte Quirin, 317 U.S. at 29-36, to conclude

that section 821 does authorize the military commission

challenged in this case. See Hamdan v. Rumsfeld, 415 F.3d

33, 38 (D.C. Cir. 2005). Once again, however, the lower

court failed to recognize the relevance of the Charming Betsy

canon. While section 821 plainly authorizes military

commissions in general, neither of the cases cited by the D.C.

Circuit even addresses the question whether Congress

intended section 821 to authorize the use of military

commissions in violation of international law. To the extent

that the plain text of section 821 leaves any doubt on that

score—and we believe the statute itself answers the question

in the negative—the Charming Betsy canon reinforces the

conclusion that Congress intended no such thing.

Significantly, to the extent that the cases upon which the

D.C. Circuit relied are relevant here, they only confirm that

section 821 does not empower the President to violate

international law. In both Ex Parte Quirin, 317 U.S. at 29-

36, and Jn re Yamashita, 327 U.S. at 14-17, the Court

interpreted predecessor provisions to 10 U.S.C. § 821. And

in both cases, the Court carefully scrutinized whether the

alleged conduct violated the law of war before upholding the

use of military commissions. See also Curtis A. Bradley &

Jack L. Goldsmith, Congressional Authorization and the War

on Terrorism, 118 Harv. L. Rev. 2048, 2132 (2005)

(reasoning that the President’s statutory authority to use

military commissions is “probably limited by international

law’’). In Yamishita, the petitioner alleged that his trial by

military commission for offenses committed while he was a

combatant violated certain protections afforded by the

Geneva Convention of 1929, a precursor to the 1949 Geneva

Conventions. 327 U.S. at 20-23. The Court carefully

reviewed the 1929 Convention before concluding that the

relevant protections applied only to trials for offenses

committed during detention as a prisoner of war, not to trials

for offenses committed during combat. /d.'' If the President

had the authority under 10 U.S.C. § 821 to convene military

commissions with procedures that violate international law,

this discussion would have been entirely unnecessary. See

also A. Christopher Bryant & Carl Tobias, Quirin Revisited,

2003 Wisc. L. Rev. 309, 327-29 (2003) (noting that in Ex

Parte Quirin the Supreme Court independently determined

whether the charges against the Nazi saboteurs constituted

offenses against the law of war cognizable by a military

tribunal).

In short, the Supreme Court’s opinions in Quirin and

Yamashita only confirm what is already clear from the text of

section 821 and the application of the Charming Betsy canon:

the statute does not authorize the President to convene

military commissions in violation of international law.

'' The 1949 Geneva Conventions extended these protections to

cover trials for offenses committed during combat. See David

Glazier, Note, Kangaroo Court or Competent Tribunal: Judging

the 21st Century Military Commission, 89 Va. L. Rev. 2005, 2079-

80 (2003).

'? The D.C. Circuit’s reference to 10 U.S.C. § 836, see Hamdan,

415 F.3d at 38, likewise does not support the conclusion that

Congress authorized military commissions in violation of

international law. Section 836 provides that the President may

establish procedures for military commissions, but it does not in

any way suggest that Congress approved procedures inconsistent

with international law. In light of the Charming Betsy canon, this

Court should not read such authorization into the statute.

Vv. APPLYING THE CHARMING BETSY CANON

WOULD SIMPLIFY THE ISSUES BEFORE

THIS COURT.

The government’s contention that Congress has

authorized Mr. Hamdan’s trial by military commission lies at

the heart of its case here. The Charming Betsy canon speaks

directly to that issue, establishing that Congress intended its

authorization to extend only to treatment of defendants that

complies with the United States’ obligations under

international law. Applying the Charming Betsy canon in

this case would allow this Court to avoid deciding whether

the Geneva Conventions are self-executing and whether Mr.

Hamdan has any independent ability to press the Conventions

as a basis for relief—-two issues of concern to the court

below. The Charming Betsy canon clarifies that the real

question here is not whether Mr. Hamdan can rely on the

Geneva Conventions, but whether Congress intended to

authorize the President to violate them. Mr. Hamdan plainly

has standing to challenge the government’s interpretation of

the AUMF and section 821, and concluding that Congress

did not intend to authorize applications of those enactments

that violate international law obviates the need to debate the

status of the Conventions themselves.

CONCLUSION

Congressional authorization is central to the

government’s argument in this case and to the D.C. Circuit’s

ruling below, yet the Charming Betsy canon—a basic rule of

statutory interpretation with deep historical roots—shows

that Congress has not authorized the President to try Mr.

Hamdan by special military commission in violation of

international law. Pursuant to the Charming Betsy canon,

courts presume that Congress does not intend to authorize

violations of international law. To the extent that Mr.

Hamdan’s trial would violate international law, this Court

should conclude that neither the AUMF nor 10 U.S.C § 821

provides authorization for such a trial.

Respectfully Submitted,

CHRISTOPHER J. WRIGHT*

TIMOTHY J. SIMEONE

JOSEPH C. CAVENDER

HARRIS, WILTSHIRE &

GRANNIS LLP

1200 Eighteenth Street, N.W.

Washington, DC 20036

(202) 730-1300

* Counsel of Record

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.