Amicus Curiae Brief — Munaf v. Geren

, oT &. '

10 fetes. mere ary

App Nos. 07-894 and 06-1686 | FILED

| SER 28

In The

Supreme Court of the

PETE GEREN, SECRETARY OF THE ARMY, et al.,

Petitioners,

Vv.

SANDRA K. OMAR AND AHMED S. OMAR,

as next friends of Shawqi Ahmad Omar,

Respondents.

MOHAMMAD MUNAF, et al.,

Petitioners,

Vv.

PETE GEREN, SECRETARY OF THE ARMY, et al.,

Respondents.

6

~~

On Writ Of Certiorari To The United States Court

_. Of Appeals For The District Of Columbia Circuit

o

wv

BRIEF OF FORMER U.S. DIPLOMATS AND

NATIONAL SECURITY SPECIALISTS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

o

v

HAROLD HONGJU KOH

(Counsel of Record)

HOPE R. METCALF

RAMZI KASSEM

ALLARD K. LOWENSTEIN

INTERNATIONAL HUMAN |

RIGHTS CLINIC — NATIONAL

LITIGATION PROJECT

YALE LAW SCHOOL

127 Wall Street

New Haven, CT 06510

(203) 432-1660

February 2008 Counsel for Amici

COCKLE LAW BRIEF PRINTING CO. (808) 226-4064

OR CALL COLLECT (482) 343-2831

i

TABLE OF CONTENTS

Page

EEE De aC ae ORL E ETT ee See i

II cris icciceacsinnienisicnieatiniepaielitienial iii

CLE EE eT a 1

EEN TO a RE eT 2

I iiiiinhsiniineieascnencsnseniainaapiinepseadniitiiinieinn 3

I. The United States Government Is Respon-

sible for the Actions of United States

Forces Operating Under Its Effective

Command and Control................::cccccceeeeeees 6

A. The structure, operation and legal

history of the MNF-I confirm that the

U.S., not the U.N., exercises command

and control over MNF-I operations ...... 8

B. The U.S. exercises effective command

and control over all aspects of MNF-I

detention operations.........................000+5 16

C. The U.S. Government bears legal

responsibility under international law

for the detentions at issue here ............ 19

D. The structure of MNF-I detention

operations precludes meaningful re-

view of detention outside U.S. courts... 24

II. The Right of United States Citizens to the

Writ of Habeas Corpus Under the U‘S.

Constitution Cannot Be Suspended Simply

by Participation in a Multinational Force ..... 26

li

TABLE OF CONTENTS -— Continued

Page

A. U.S. citizens held overseas under

effective U.S. control are entitled to

habeas corpus to challenge their ;

I censececpsvintienstananitibiatieiaciminis 26

B. Hirota v. MacArthur does not divest

this Court of habeas jurisdiction .......... 28

C. Under international law, U.N. author-

ization does not immunize the United

States from judicial accountability

with respect to the detentions of Omar

ee itiithinticinhicnitniiicenrvatheiniiclicainianss 34

SI cisicnndcinitisendictinnbeieinicndiitiisetasiuiicinmiigedaain 37

Appendix: Qualifications of Amici ..................00+ App. 1

TABLE OF AUTHORITIES

Page

CASES

Braden v. 30th Judicial Circuit Ct., 410 U.S.

i aaa ainmiieieinatin 27

Demore v. Kim, 538 U.S. 510 (2003) .............. cee eeee eee 30

Ex parte Bollman, 8 U.S. 75 (1807) ..........ccccccceeeeeees 29

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .................. 29

Hirota v. MacArthur, 338 U.S. 197 (1949).......... passim

INS v. St. Cyr, 533 U.S. 289 (2001) ................scccccesees 30

Missouri v. Holland, 252 U.S. 416 (1929).................. 29

Reid v. Covert, 354 U.S. 1 (1957) ............ccceeeeeeeeee 27, 29

United States ex rel. Toth v. Quarles, 350 U.S.

in IIE ichideteteainnnindinigniinihinniedatsmnniinteninnnntneates 27, 28

United States v. Alaska, 521 U.S. 1 (1997)................ 20

United States v. Louisiana, 394 U.S. 11 (1969)......... 20

CONSTITUTION, STATUTES, REGULATIONS, RULES, AND

LEGISLATIVE HISTORY

Authorization For Use of Military Force Against

Iraq Resolution of 2002, Pub. L. No. 107-243,

SS aicnchiinntstrcncsicentadienginaianiesancess 30

The Imminent Transfer of Sovereignty of Iraq:

Testimony Before the H. International Re-

lations Comm., 108th Cong. (May 13, 2004)............. 9

iv

TABLE OF AUTHORITIES -— Continued

Page

Nomination of General George W. Casey, dr.,

USA, for Reappointment to the Grade of

General and to be Commander, Multinational

Force-Iraq: Hearing Before the S. Comm. On

Armed Sucs., 108th Cong. (Jun. 24, 2004)......... 9,14

ee ee , iecattbscrnenensentecs 29

U.S. Ratification of International Covenant on

Civil and Political Rights, 58 Fed. Reg.

45934, 45942 (Dep’t of State Aug. 31, 1993).......... 35

OTHER AUTHORITIES

Mike Allen, Expert on Terrorism to Direct

Rebuilding, WASH. Post, May 2, 2003.................... 11

Maj. W. James Annexstad, The Detention and

Prosecution of Insurgents and Other Non-

Traditional Combatants, ARMY L. (Jul. 2007)........ 18

Beyond Abu Ghraib: Detention and Torture in

Iraq, Al Index, MDE 14/001/2006 (Mar. 6,

CEES TATE NEES Ne CC NT Re oe 24

THE BLUE HELMETS: A REVIEW OF UNITED

NATIONS PEACE-KEEPING (2d ed. United

I need 5

Rajiv Chandrasekaran, Ties to GOP Trumped

Know-How Among Staff Sent to Rebuild

Iraq, WASH. Post, Sep. 17, 2006...................cccceeeeeee ll

Paul F. Diehl, INTERNATIONAL PEACEKEEPING

a ll 6

Vv

TABLE OF AUTHORITIES -— Continued

John Hillen, BLUE HELMETS: THE STRATEGY OF

U.N. MILITARY OPERATIONS (2000) ................cccc0eeeeeee 4

Documentary Appendix, Hirota v. MacArthur,

338 U.S. 197 (1949) (Nos. 239, 240, 248).....31, 32, 33

Brief for the Petitioner, Hirota v. MacArthur,

338 U.S. 197 (1949) (Nos. 239, 240, 248)............... 28

Brief for the National Lawyers Guild as

Amicus Curiae Supporting Respondents,

Hirota v. MacArthur, 338 U.S. 197 (1949)

Sa: TI, BI Be ievitccecencnsiicensitinnsteasigiiittiataminprisiasi 32

Mariam Karouny & Alastair Macdonald, Jragi

Minister Slams U.S. Detention Policy, REUTERS

ee REIS 80 SO 19

Nicolas Kredel, OPERATION “ENDURING FREEDOM”

AND THE FRAGMENTATION OF INTERNATIONAL

LEGAL CULTURE: COMPARING US CoMMON LAW

AND CIviL LAW PERSPECTIVES ON THE INTER-

NATIONAL USE OF FORCE (2006) ..............:.ccseeeeseeeeeeeees 6

Mark Matthews, For U.N. Help, U.S. Promises

Oversight Role, BALT. SUN, Sep. 4, 2003................... g

Hilaire McCoubrey & Nigel D. White, THE

BLUE HELMETS: LEGAL REGULATION OF UNITED

NATIONS MILITARY OPERATIONS (1996)...................006 4

Richard R. Minear, ViCTOR’S JUSTICE (1973).............. 32

John Pike, Coalition Joint Task Force 7 (CJTF

7), at http://www.globalsecurity.org/military/

RET OORT BIR occ s0ccccscsessccsmnsemeniinninnaaa 13

vi

TABLE OF AUTHORITIES — Continued

Page

Philip R. Piccigallo, THE JAPANESE ON TRIAL

ESET RAE eee oe OT a ae a 31

Walter Pincus, U.S. Holds 18,000 Detainees in

Iraq: Recent Security Crackdown in Baghdad

Nets Another 1,000, WasH. Post, Apr. 15,

i cotennts 19

Dan Sarooshi, INTERNATIONAL OGANIZATIONS AND

THEIR EXERCISE OF SOVEREIGN POWERS (2005) ....... 35

Finn Seyersted, UNITED NATIONS FORCES IN THE

LAW OF PEACE AND WAR (1966)...............ccccccceeeeeeeees 28

THE OCCUPATION OF IRAQ: THE OFFICIAL Docu-

MENTS OF THE COALITION PROVISIONAL AUTHORITY

eae 14

U.S. CENTCOM, Detainee Release Board Re-

views 300 Cases During First Week, Aug. 30,

Caillat isicerintallsanicdiidndshdiiinedicinieksenscnenenneniontes 17, 31

MILITARY AND EXECUTIVE ORDERS

Coalition Provisional Authority Memorandum 3,

“Criminal Procedures,” CPA/MEM/27 (Jun. 3,

ES SE ees eR 16, 17, 25

Coalition Provisional Authority Order 99, “Joint

Detainee Committee,” CPA/ORD/99 (Jun. 27,

Coalition Provisional Authority Order 100,

“Transition of Laws, Regulations, Orders, and

Directives Issued by the Coalition Provisional

Authority,” CPA/ORD/28 (Jun. 2004)................0000 12

§

vii

TABLE OF AUTHORITIES — Continued

Page

Presidential Decision Directive 25, signed by

President Clinton May 1994, reproduced in

United States Administration Policy on

Reforming Multilateral Peace Operations, 33

Se iedinttertdlatiaritadintcedetdiendonenecnesees 7

FOREIGN AND INTERNATIONAL MATERIALS

R. (on the application of Al-Jedda) v. Secretary

of State for Def. (2007) U.K_H.L. 58 ........... 18, 22, 23

Behrami v. France and Saramati v. France,

Germany and Norway, 45 E.Ct. H.R. 1 (2007) ......23

Committees on Defence and Foreign Affairs,

Supplementary Memorandum from the

Ministry of Defence (Jan. 11, 2007) ..................0000+. 18

The Convention on the Safety of United

Nations and Associated Personnel, Art. 4,

G.A. Res. 51/137, 51 U.N. GAOR Supp. (No.

49), U.N. Doc. A/51/49 (Vol. 1 (1996), available

at http://www.un.org/law/cod/safety.htm.................. 5

G.A. Res. 56/82, U.N. Doc. A/RES/56/82 (Dec.

STINT ccicicencnmntscstininisinsniindasaiiantebadaibeimiieiiumeericenen 21

International Law Commission, Responsibility

of International Organizations: Titles and

Texts of the Draft Articles 4, 5, 6 and 7

Adopted by the Drafting Committee, U.N.

Doc. A/CN.4/L.648 (May 27, 2004) .0........cccccceeeeeeee 20

International Law Commission, Report to the

General Assembly, U.N. Doc..A/59/10 (2004) ......... 21

viii

TABLE OF AUTHORITIES — Continued

International Law Commission, Report of the

International Law Commission on the Work

of Its Fifty-third Session, U.N. Doc. A/56/10

RE ERs Ey 8 NR ROY OR SOT EOE SECO COED 20

Letter to the President of the Security Council,

U.N. Doc. S/2003/538 (May 8, 2003)..................ccc000 i]

S.C. Res. 84, U.N. Doc. S/RES/84 (Jul. 7, 1950)........ 28

S.C. Res. 425, U.N. Doc. S/RES/425 (Mar. 19,

EER se a Ca me ne a 10, 14

S.C. Res. 743, U.N. Doc. S/RES/743 (Jan. 31,

ER Ee ec eS ee 5

S.C. Res. 872, U.N. Doc. S/RES/872 (Jun. 22,

ES: PPE eres LT AN ee 5

S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 22,

TET iciciscinstectninnteenusiidensaiiaitiainteiituit imei dimeatabeieiaaiias 8, 11, 12

S.C. Res. 1511, U.N. Doc. S/RES/1511 (Oct. 16,

TI is ichsithastenteesceciscinpaiaasiimctaiiadinitiihddetl ites dailies 13, 14

S.C. Res. 1546, U.N. Doc. S/RES/1546 (Jun. 8,

SEE seac eens es renee ee 11, 13, 14, 35

The Secretary-General, Report of the Secretary-

General pursuant to Paragraph 24 of Security

Council Resolution 1483 (2003), U.N. Doc.

S/2003/715 (July 17, 20038)..............ccrecesessesseeeeeees 12

The Secretary-General, Report of the Secretary-

General Pursuant to Paragraph 124 of

Resolution 1483 (2003) and Paragraph 12 of

Resolution 1511 (2003), U.N. Doc. S/2004/625

ix

TABLE OF AUTHORITIES — Continued

Page

The Secretary-General, Report of the Secretary-

General Pursuant to Paragraph 30 of

Resolution 1546, U.N. Doc. S/2004/959 (Dec.

The Secretary-General, Report of the Secretary-

General Pursuant to Paragraph 30 of

Resolution 1546, U.N. Doc. S/2005/373 (Jun.

The Secretary-General, Report of the Secretary-

General Pursuant to Paragraph 30 of

Resolution 1546 (2004), U.N. Doc. S/2006/360

State Parties to the Rome Statute of the ICC,

http://untreaty.un.org/ENGLISH/bible/english

internetbible/partl/chapterXVIIltreaty 11.asp

(last visited February 20, 2008) ....................00000008 25

Statute of the International Court of Justice,

June 26, 1945, 59 Stat. 1055, T.S. No. 933 ............ 25

U.N. Assistance Mission for Iraq, Human Rights

Report for the Period Nov. 1 — Dec. 31, 2005,

http//www.uniraq.org/documents/HR%20Report

%20Nov%20Dec%2005%20EN. PDF... cece 15

KR EE Te 20

U.N. Doc. A/CN.4/545 (Jun. 25, 2004) 200.000.0000: 21

U.N. Doc. A/CN.4/556 (May 12, 2005)................0.000. 22

U.N. Mission in Haiti, Facts and Figures, http:/

www.un.org/Depts/dpko/missions/minustah/facts.

IE <sunistenstshentthdinencinadsuincicsmniasleiincinatesintibdadiisiemntipaagatienipiavtneel 4

a

1

INTEREST OF AMICI’

Amici are former U.S. diplomats and national

security specialists who have collectively participated

in the creation and structuring of numerous multina-

tional forces.” Amici deny that U.S. civilian courts are

somehow divested of habeas jurisdiction to hear

claims of U.S. citizens held abroad by U.S. armed

forces in Iraq simply because those U.S. forces par-

ticipate in an operation that carries a multinational

label.* To the contrary, Amici’s hands-on experience

with multinational forces confirms that the exercise

of habeas jurisdiction by U.S. courts on behalf of

American citizens challenging their detention by U.S.

forces participating in the Multinational Force in Iraq

is expected, legal, appropriate, and in no way pre-

sents the dire foreign affairs crisis suggested by the

Government.

' Counsel for all parties have consented to the filing of this

brief, and those consents are on file with the Clerk of the Court.

No counsel for a party in this case authored this brief in whole

or in part, and no person or entity, other than amici and their

counsel, has made a monetary contribution to the preparation or

submission of this brief.

* For a full listing of the qualifications of amici, see Appen-

dix.

* Amici take no position on the scope of the injunctive relief

ordered by the district court.

2

SUMMARY OF ARGUMENT

Shawqi Omar and Mohammad Munaf are U.S.

citizens being detained by U.S. soldiers under U.S.

command in the Multinational Force in Iraq (“MNF-

I”). Under United States and international law, they

have a legal right to seek a writ of habeas corpus to

challenge their detention. The Solicitor General

argues that the MNF-I’s multilateral affiliation

effectively immunizes its actions from judicial scru-

tiny. Ironically, the Government suggests that MNF-

I's mandate under international law somehow ex-

empts it from clear international law obligations to

recognize the availability of habeas corpus to de-

tained prisoners.

The Solicitor General’s brief claims that the mere

act of U.N. authorization — without any meaningful

change in U.S. command and control — automatically

nullifies a U.S. citizen’s right to a writ of habeas

corpus. But U.S. habeas jurisdiction is an integral

component of the existing system of U.S. command

and control and bolsters its accountability. This is

particularly true where, as here, the U.S. citizens

being detained are being held in a U.S. military

facility by U.S. armed forces commanded and con-

trolled by U.S. military leaders.

In Iraq, the United States government remains

fully responsible for the actions of its own soldiers

toward its own citizens. Preservation of effective U.S.

command and control does not preclude, but rather

anticipates, that judicial accountability for illegal

li FC eT ee Ee Re I Ne ay PE Ra ME eee Noe te eee ee ee Te Eee

>

,

j

3

detentions of U.S. citizens will be maintained through

the exercise of civilian court habeas jurisdiction.

The Solicitor General’s position is contrary to the

established habeas rights of U.S. citizens, breaks

with U.S. military and diplomatic practices, and is

contrary to the overwhelming weight of international

law and custom. Amici believe that United States

foreign policy interests are ill-served by the claim

that our country’s military personnel should answer

to no law, especially when the mere fact of U.N.

authorization is cited to deny American citizens their

day in court. This Court should hold that the act of

U.S. participation in MNF-I does not suspend the

right of United States citizens to the writ of habeas

corpus.*

ARGUMENT

The Solicitor General claims that U.S. courts lack

jurisdiction to review habeas petitions filed on behalf

of U.S. citizens in any case where citizens are “held

by a multinational force abroad pursuant to interna-

tional authority.” Gov't Brief, at 12 (emphasis added).

Yet this sweeping statement blurs the practical

* To so hold, this Court need not decide whether and when

habeas relief may be available in two other factual situations

not presented here: when foreign nationals are detained by

multinational forces under American command and control, or

when American citizens are detained by multinational forces

under the effective command and control of an international

body.

4

differences among the various kinds of multinational

forces abroad that operate pursuant to international

authority. Contrary to the Government’s suggestion, all

MNFs are not equally “international.” “In many ways

traditional U.N. peacekeeping and U.N.-authorized

military enforcement actions are at opposite ends of

the spectrum of U.N. military involvement in a

conflict zone.”

“Blue Helmet” peacekeeping forces under the

aegis of the U.N. or other international organizations

operate with troops voluntarily contributed by mem-

ber states,° funded by their assessed contributions

° Hilaire McCoubrey & Nigel D. White, THE BLUE HELMETS:

LEGAL REGULATION OF UNITED NATIONS MILITARY OPERATIONS 19

(1996). The term “Blue Helmet” technically refers to the helmets

worn by U.N. peacekeepers or peace enforcers carrying arms

under the U.N. flag. John Hillen, BLUE HELMETS: THE STRATEGY

OF U.N. MILiTary OPERATIONS 29-30 (2000). Amici use that term

to describe all forces that operate analogously to U.N.-controlled

operations by being effectively organized and commanded by

international, intergovernmental bodies.

* Genuinely international forces usually enjoy meaningful

participation from the militaries of many nations from the

outset. See, e.g., U.N. Mission in Haiti, Facts and Figures, http://

www.un.org/Depts/dpko/missions/minustah/facts.html (detailing

the multinational composition of the command structure and

contributions of the nations involved). Even where one country

contributes the majority of the soldiers to a Blue MNF, other

participating countries still make significant contributions in

the form of military force contributions, or logistical or technical

support and funding. Crucially, the international body organiz-

ing the force appoints its commander and exercises actual

operational control over personnel for the duration of the

mission. See infra, note 7.

5

and under the control of a force commander appointed

by the international organization.’ By contrast, “Green

Helmet” forces, even those that are authorized by

the U.N. or other international organizations, are

composed of troops not under U.N. control, but rather

" Though force-contributing states in a typical U.N.-run

coalition retain a measure of control over their contingents,

especially with regard to the troop discipline, the rules of

engagement and use of lethal force, the U.N.-appointed com-

mander exercises command and control over most other signifi-

cant operations. See, e.g., THE BLUE HELMETS: A REVIEW OF

UNITED NATIONS PEACE-KEEPING 405 (2d ed. United Nations,

1990) (“A United Nations peace-keeping operation consists of a

commander who is designated Force Commander ... and a

number of contingents provided by selected Member States ...

upon the request of the Secretary-General.... The military

personnel of an operation, although remaining in their national

service are, during the period of the assignment to the operation,

international personnel under the authority of the United

Nations and subject to the instructions of the [U.N.] commander,

through the chain of command.”). For example, the Secretary-

General typically negotiates the status of forces agreement. See

The Convention on the Safety of United Nations and Associated

Personnel, Art. 4, G.A. Res. 51/137, 51 U.N. GAOR Supp. (No.

49), U.N. Doc. A/51/49 (Vol. 1) (1996), available at http://www.

un.org/law/cod/safety.htm (“The host State and the United

Nations shall conclude as soon as possible an agreement on the

status of the United Nations operation and all personnel en-

gaged in the operation including, inter alia, provisions on

privileges and immunities for military and police components of

the operation.”). In addition, the U.N.-appointed force com-

mander reports directly to the Special Representative of the U.N.

Secretary-General, who is in overall command of the mission. S.C.

Res. 743, U.N. Doc. S/RES/743 (Jan. 31, 1992) (Croatia, Bosnia

& Herzegovina); S.C. Res. 872, U.N. Doc. S/RES/872 (Jun. 22,

1993) (Rwanda).

6

under the “unified command” of one or more national

militaries.”

By any measure, MNF-I is a Green Helmet force

under effective U.S. command and control. Legal and

historical precedents confirm that habeas jurisdiction

attaches whenever U.S. forces acting as part of a

multinational force exercise effective command and

control over a detained U.S. citizen. Under those

circumstances, detained U.S. citizens like Omar and

Munaf do not forfeit their habeas rights.

I. The United States Government Is Respon-

sible for the Actions of United States

Forces Operating Under Its Effective

Command and Control.

As diplomatic practitioners, Amici confirm that the

general practice of the United States when participating

in multinational military activities — whether or not

* A recent example is the initial U.S. role in what became a

multinational force in Afghanistan. Operation Enduring Free-

dom began with force command and control vested entirely with

the U.S. See, e.g., Nicolas Kredel, OPERATION “ENDURING FREE-

DOM” AND THE FRAGMENTATION OF INTERNATIONAL LEGAL CULTURE:

COMPARING U.S. COMMON LAW AND CIVIL LAW PERSPECTIVES ON

THE INTERNATIONAL USE OF FoRCE 48-57 (2006) (describing the

origination and management of Operation Enduring Freedom in

Afghanistan). Additionally, Green Helmet operations of this sort

differ in significant ways from Blue Helmet operations, in that

they “operate[] with open-ended mandates and ... undertake

long-range planning and maintain autonomy.” Paul F. Diehl,

INTERNATIONAL PEACEKEEPING 134 (1993).

7

those activities are endorsed or authorized by the

U.N. — is to form arrangements that leave undisturbed

both U.S. command and control and the normal juris-

diction of U.S. military and civilian courts as part and

parcel of that command and control.”

With respect to the Multinational Force in Iraq,

three points are clear. First, the relevant question for

this Court is not whether MNF-I generally acts under

color of international authority, but whether the

MNF-I forces who detained Omar and Munaf are U.S.

soldiers acting under effective U.S. command and

control. Second, the political, legal and historical

record in Iraq shows that the United States deliber-

ately arranged its participation in MNF-I so that only

U.S. authorities would have command and control

over all aspects of its armed forces, including the

detention of prisoners. Third, under relevant law and

practice, actions of United States forces operating

under U.S. command and control in a UN-authorized

MNF are legally attributable to the United States,

not the United Nations. Where detention of U.S.

* See Presidential Decision Directive 25, signed by President

Clinton May 1994, reproduced in United States Administration

Policy on Reforming Multilateral Peace Operations, 33 1.L.M.

795, 798 (1994) (stating that “the President ... will never

relinquish command authority over U.S. forces” and will “con-

sider placing appropriate U.S. forces under the operational

control of a competent U.N. commander for specific U.N. opera-

tions authorized by the Security Council”). It appears that this

policy directive was never rescinded by the subsequent admini-

stration.

8

nationals is at issue, United States officials remain

fully accountable to a U:S. civilian court through the

writ of habeas corpus.

A. The structure, operation and legal his-

tory of the MNF-I confirm that the

U.S., not the U.N., exercises command

and control over MNF-I operations.

From the first presence of U.S. troops on Iraqi

soil in March of 2003, the U.S. has expressly and

repeatedly confirmed its national command and

control over U.S. forces in Iraq, and the U.N. has

affirmed this policy choice. In many multinational

military interventions, an international civilian

entity is created to take over control of a troubled

country at the time of the introduction of military

forces. In Irag, however, the initial invasion and

occupation of Iraq by the U.S. and U.K. occurred in

the Spring of 2003, without U.N. authorization.

The U.S. maintained the firm position that

Security Council authorization would not displace the

preexisting command structure that placed U.S.

CENTCOM in effective and ultimate control. In the

two months between occupation and U.N. recogni-

tion,” the U.S. expressly asserted command and

control of coalition troops in accordance with its

° See S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 22, 2003).

rer

9

unique role as occupying power." And in September

2003, in anticipation of the Security Council’s au-

thorization of MNF-I, then-Secretary of State Colin

Powell said that “the U.S. will remain the commander

of the unified command. .. .””

"In a May 8, 2003 letter to the President of the U.N.

Security Council, the Permanent Representatives of the U.K.

and U.S. declared that the United States will act “under existing

command and control arrangements through the Commander of

Coalition Forces,” a U.S. military commander. Letter to the

President of the Security Council, U.N. Doc. S/2003/538 (May 8,

2003) (emphasis added).

* Mark Matthews, For U.N. Help, U.S. Promises Oversight

Role, BALT. Sun, Sep. 4, 2003, at 1A. Secretary Powell acknowl-

edged that “there will be an element in the resolution that calls

upon the United States as the leader of the military coalition to

report on a regular basis to the United Nations, since it is a

United Nations authorized multinational force, if the resolution

passes,” but he in no sense suggested that such a reporting

requirement ceded any element of effective command and

control to the United Nations. Id. Indeed, General Casey,

commander of MNF-I testified that there was “no reporting

chain that goes back to the United Nations” and that U.N.

authorization had no effect on U.S. command and control of

MNF-I operations. See Nomination of General George W. Casey,

dr., USA, for Reappointment to the Grade of General and to be

Commander, Multinational Force-Irag: Hearing Before the S.

Comm. On Armed Sucs., 108th Cong. (Jun. 24, 2004) (Statement

of Gen. George W. Casey, Jr.); The Imminent Transfer of Sover-

eignty of Iraq: Testimony Before the H. International Relations

Comm., 108th Cong. (May 13, 2004) (statement of Lt. Gen.

Walter L. Sharp, Director, Strategic Plans and Policy, The Joint

Staff) (“[The MNF] is subordinate to General Abizaid as Com-

mander, U.S. Central Command.”).

a“ —s_- -- =

10

In light of the United States’s unambiguous

position, the U.N. never sought to deploy Blue Hel-

met Forces or to exercise effective control over U.S.

forces operating in Iraq under the auspices of MNF-

I.” To the contrary, the text and history of the perti-

nent U.N. resolutions — along with the reports sub-

mitted pursuant thereto by the Secretary-General —

demonstrate that the U.N. envisioned its own role in

Iraq as a limited one that never purported to exert

effective command or control over the MNF-I.

U.N. Security Council Resolution 1483 affirmed

the authority and control of the Coalition Provisional

Authority (“CPA”) and the limited role of the U.N.

’ The absence of U.N. command and control over MNF-I is

significant because when it so chooses, the United Nations

plainly does have the power to create a Blue Helmet security

force, comprised of multinational forces and subject to its

effective command, under Chapter VII of the U.N. Charter. In

1978, for example, the U.N. Security Council established

UNIFIL: “a United Nations interim force for Southern Lebanon

for the purpose of confirming the withdrawal of Israeli forces,

restoring international peace and security and assisting the

Government of Lebanon in ensuring the return of its effective

authority in the area, the Force to be composed of personnel

drawn from Member States.” S.C. Res. 425, U.N. Doc.

S/RES/425, 43 (Mar. 19, 1978). UNIFIL is composed of peace-

keeping forces from 27 different nations, and is headed by a

Force Commander appointed by the Secretary-General, in

addition to the Special Representative of the Secretary-General

for Southern Lebanon. The Security Council has extended

UNIFIL’s mandate numerous times since 1978; its current

mandate ends in August 2008.

11

itself.* Resolution 1483 recognized “ ... the specific

authorities, responsibilities, and obligations under

applicable international law of those states [i.e. the

U.S. and the U.K.} as occupying powers under unified

command....” Unified command over any security

operations was placed in the hands of the United

States,” while the U.N. was afforded a carefully

defined “role in humanitarian relief, the restructuring

of Iraq, and the restoration and establishment of

national and local institutions for representative

governance.” S.C. Res. 1483, 15, U.N. Doc. S/RES/1483

(May 22, 2003).

The Security Council never sought to exer-

cise authority or control over the CPA." The U.N.

“ The Coalition Provisional Authority was set up by occupy-

ing U.S. forces in April 2003 and functioned as a stand-in for an

Iraqi government until June 2004. Rajiv Chandrasekaran, Ties

to GOP Trumped Know-How Among Staff Sent to Rebuild Iraq,

WasH. Post, Sep. 17, 2006, at Al. During this period, it re-

mained a funded branch of the U.S. Department of Defense,

with its American administrators, Lt. Gen. Jay Garner and L.

Paul Bremer, reporting directly to Secretary of Defense Donald

Rumsfeld. See Mike Allen, Expert on Terrorism to Direct Re-

building, WasH. Post, May 2, 2003, at Al.

“ Resolution 1546 specifies that the entire MNF-I serves

under the “unified command” of the U.S. S.C. Res. 1546, 410 at

4, U.N. Doc. S/RES/1546 (Jun. 8, 2004).

In fact, the opposite is true: the U.N., lacking a security

force of its own, relied on negotiations with the United States as

unified commander of the CPA and MNF-I to provide security for

U.N. personnel in Iraq. See, e.g., The Secretary-General, Report

of the Secretary-General Pursuant to Paragraph 124 of Resolu-

tion 1483 (2003) and Paragraph 12 of Resolution 1511 (2003),

(Continued on following page)

Eee eee eer

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| |

-

12

Secretary-General, in his first report made under

Resolution 1483, acknowledged that command and

control over security forces remained within the sole

control of the CPA and that “executive law enforce-

ment responsibilities are the sole responsibility of the

[Coalition Provisional] Authority, under Resolution

1483 (2003) and international humanitarian law.””

Upon its creation in May 2004, the Green Helmet

MNF-I expressly adopted the CPA’s command and

control structure that, as explained above, minimized

U.N. oversight of multinational forces. See Coalition

Provisional Authority Order Number 100, “Transition

of Laws, Regulations, Orders, and Directives Issued

by the Coalition Provisional Authority,” CPA/ORD/28

(Jun. 2004). The MNF-I was created to replace the

47, U.N. Doc. S/2004/625 (Aug. 5, 2004) (“The United Nations

lacks the integral resources for the early discharge of its own

security responsibilities in Iraq. Therefore, it will have to rely on

the Interim Government of Iraq and the multinational force to

provide its security.”); The Secretary-General, Report of the

Secretary-General Pursuant to Paragraph 30 of Resolution 1546,

921, U.N. Doc. S/2004/959 (Dec. 8, 2004) (“An agreement is

being negotiated with the United States, as the State whose

armed forces are vested with unified command of the multina-

tional force, concerning protection by the multinational force of

the United Nations presence in Iraq.”).

" The Secretary-General, Report of the Secretary-General

pursuant to Paragraph 24 of Security Council Resolution 1483

(2003), 951, U.N. Doc. S/2003/715 (July 17, 2003). The Secre-

tary-General considered but rejected the establishment of an

international police force “under United Nations auspices”

because he believed that to create a “parallel system for law

enforcement” would not be effective. Jd. (emphasis added).

13

security wing of the CPA, the Coalition Joint Task

Force 7 (created on June 14, 2003), which had in

turn replaced the Coalition Forces Land Component

Command (“CFLCC”). At all relevant times, the Force

Commander was a U.S. Army General.”

In three ways, U.N. Security Council Resolutions

1511 and 1546, adopted on October 16, 2003 and June

8, 2004, respectively, expressly refrained from assert-

ing U.N. authority and control over MNF-I. First,

the resolutions distinguished between the U.N.-led

United Nations Assistance Mission for Iraq which

would serve humanitarian functions, on one hand,

and “a multinational force under unified command” to

provide security enforcement, on the other. S.C. Res.

1511, 999, 13, U.N. Doc. S/RES/1511 (Oct. 16, 2003);

S.C. Res. 1546 997, 9, U.N. Doc. S/RES/1546 (Jun. 8,

2004). Second, the U.N. authorized the MNF-I be-

cause its presence “is at the request of the incoming

Interim Government of Iraq,” not because the MNF

operated under U.N. Security Council auspices. Id.

q9. That is, it is not U.N. action that renders the

MNF-I’s presence in Iraq lawful under international

law. Nor did the U.N. assert the power to terminate

the mandate of the MNF-I of its own accord — a power

* See John Pike, Coalition Joint Task Force 7 (CJTF 7), at

http://www.globalsecurity.org/military/agency/dod/qjtf-7.htm. The

CFLCC was commanded by Lt. Gen. David McKiernan, U.S.

Army; CJTF-7 and MNF-I were commanded until the end of

June 2004 by Lt. Gen. Ricardo Sanchez, U.S. Army, succeeded by

Gen. George Casey, U.S. Army, and Gen. David Petraeus, US.

Army, the present commander of MNF-I.

14

that it had expressly reserved for itself with respect

to other multinational forces.” Third, the U.S. Gov-

ernment, as effective commander of the MNF — and

not the Secretary-General or any other Member State

— was given responsibility for reporting to the Secu-

rity Council on the MNF’s behalf. S.C. Res. 1511,

supra, (25; S.C. Res. 1546, supra, 931.

Subsequent actions by the U.S. and the U.N.

clearly show that Resolutions 1511 and 1546 only

solidified U.S. control over MNF-I forces to the exclu-

sion of any meaningful supervisory role by the U.N.

The former U.S. commander of MNF-I operations

repeated that there existed “no reporting chain that

goes back to the United Nations.”” Meanwhile, the

U.S. has expressly declared that “U.S. and U.K.

military forces retain legal responsibility for those

prisoners of war and detainees in U.S. and U.K.

custody respectively.””

* See, e.g., S.C. Res. 425, supra, at 2 (“The United Nations

Interim Force [in Lebanon] shall be established . . . for an initial

period of six months . . . It shall continue in operation thereafter,

if required, provided the Security Council so decides.”).

* See Nomination of General George W. Casey, Jr., USA, for

Reappointment to the Grade of General and to be Commander,

Multinational Force-Iraq: Hearing Before the S. Comm. On

Armed Svcs., 108th Cong. (Jun. 24, 2004) (Statement of Gen.

George W. Casey, Jr.).

" Written Submission from the CPA to the U.N. High

Commissioner for Human Rights, 28 May 2004, reproduced in

THE OCCUPATION OF IRAQ: THE OFFICIAL DOCUMENTS OF THE

COALITION PROVISIONAL AUTHORITY (2008) (Stefan Talmon, ed.).

}

‘

‘

;

3

{

7

‘

4

d

In response, the U.N. has repeatedly cited its

complete lack of control over those operations in a

series of reports expressing concern over the potential

illegality of the MNF-I’s detention operations under

international humanitarian law.” See The Secretary-

General, Report of the Secretarv-General Pursuant to

Paragraph 30 of Resolution 1546, 472, U.N. Doc.

S/2005/373 (Jun. 7, 2005) (“One of the major human

rights challenges remains the detention of thousands

of persons without due process. ... Prolonged deten-

tion without access to lawyers and courts is prohib-

ited under international law, including during states

of emergency.”). Human Rights Reports issued by the

United Nations Assistance Mission in Iraq (UNAMI)

have registered increasing alarm over the potentially

illegal conditions of MNF-I detention. See U.N. Assis-

tance Mission for Iraq, Human Rights Report for the

Period Nov. 1 - Dec. 31, 2005, http://www.uniraq.org/

documents/HR%20Report%20Nov%20Dec%2005%20EN.

PDF (warning that holding detainees without access

to judicial review is a violation of international law).

In sum, the U.S. has repeatedly confirmed that in

Iraq, it, and not the U.N., exercises sole command

and control over MNF-I detention operations. The

“ The Secretary-General has expressly called for the

Multinational Force to act in accordance with international

humanitarian and human rights law. See, e.g., The Secretary-

General, Report of the Secretary-General Pursuant to Paragraph

30 of Resolution 1546 (2004), U.N. Doc. S/2006/360 (Jun. 2,

2006).

16

same U.S. command and control assumes the judicial

accountability, not.the immunity, of U.S. officials for

claimed illegality arising out of those U.S.-controlled

operations.

B. The U.S. exercises effective command

and control over all aspects of MNF-I

detention operations.

The policies and practices of MNF-I detention

operations make clear that it is the U.S. — not the

U.N. or the Interim Government of Irag (1.G.I.) — that

exercises effective command and control over the

detention of individuals in the custody of U.S. troops

in Iraq.

Coalition Provisional Authority Memorandum 3

and Order 99 provide for the basic structure of deten-

tion operations of national forces operating under the

MNF-I umbrella. See Coalition Provisional Authority

Memorandum 3, “Criminal Procedures.” CPA/MEM/27

(Jun. 3, 2004); Coalition Provisional Authority Order

99, “Joint Detainee Committee,” CPA/ORD/99 (Jun.

27, 2004). These documents empower each “national

contingent of the MNF” to apprehend, detain, and

classify internees for up to 18 months without any

oversight of the U.N., L.G.L, or cooperating national

contingents.

CPA 3 creates two categories of detainees: crimi-

nal detainees and security internees. Criminal de-

tainees are “persons who are suspected of having

committed criminal acts”; security internees are

17

persons detained for “imperative reasons of security.”

S/RES/1483 at §5(1). MNF-I national contingents

have the “right to apprehend” both types of persons.

Id. at §5(1), §6(1).”

In elaborating upon the structure provided by CPA

Order 3, the U.S. MNF-I detention operation has placed

final authority to detain or release an internee in the

hands of a US. official, with no oversight or review

from an alternate sovereign or organization. In 2004, a

body called the Combined Review and Release Board

(CRRB) was established, comprising two representa-

tives each from the Iraqi ministries of Justice, the

Interior, and Human Rights and three MNF officers.

News Release, U.S. CENTCOM, Detainee Release

Board Reviews 300 Cases During First Week, Aug. 30,

2004, available at http://www.globalsecurity.org/wmd/

library/news/iraq/2004/08/iraq-040830-centcom01.htm.

This body is responsible for periodic review of the

detainee’s status. But the CRKB only possesses the

* A detainee is afforded differing procedural rights depend-

ent upon his classification. A criminal detainee has the right

against self-incrimination, to consult an attorney, to be advised

of the charges against him, and to be brought before a judicial

officer no later than 90 days from date of induction into the

detention center. Jd. at §5(1Xa)(d). A security internee has no

right to counsel. Each security detainee receives review at six

month intervals, id. at §6(1)(5), and any application over

continued detention over 18 months must be made to the Joint

Detention Committee, which is composed of Iraqi and US.

officials. Id. at §6(6); CPA/ORD/99, §2(1). As explained above,

however, ultimate authority to detain or to release rests with the

U.S. command.

18

power to make recommendations regarding a de-

tainee’s status. “The final approval for all releases

rests with the MNF’s Deputy Commanding General

for Detainee Operations|[.]” Jd. Ultimate authority to

release a detainee rests with the U.S., and the deci-

sion to release or continue detention at this highest

level is non-reviewable.”

The practice of U.S. MNF-I detention reinforces

the formal arrangements that places the U.S. in full

and effective control of U.S. detention in Iraq. “In

a real sense, the strength of a criminal case begins

and ends with [coalition forces].” Maj. W. James

Annexstad, The Detention and Prosecution of Insur-

gents and Other Non-Traditional Combatants, ARMY

L. 72, 75 (Jul. 2007) (describing that the decisions to

apprehend, detain, charge, classify, and transfer a

detainee are made by U.S. Task Force 134 before

Iraqi authorities are contacted); see also, Walter

“ The structure of U.K. MNF-I detention, held by the

Al-Jedda court to be in the effective control of the U.K., is

parallel to that of the U.S., with a British Divisional Internment

Review Committee (“DIRC”), which shares responsibility for

detention review with a Combined Review and Release Board

(“CRRB”) composed of Iraqi and U.K. members. Committees

on Defence and Foreign Affairs, Supplementary Memorandum

from the Ministry of Defence (Jan. 11, 2007), available at http//

www. publications. parliament.uk/pa/cm200607/cmselect/cmdfence/

209/7011108.htm. Following reviews, the CRRB “makes recom-

mendations to the DIRC for consideration.” Jd. As the U.K.

Ministry of Defense made clear in a submission to the Select

Committee on Defence, this system of review “mirrors the U.S.

) process, in which the CRRB’s recommendations are considered

by the Commanding General of MNF-I.” Jd.

' ion | d

19

Pincus, U.S. Holds 18,000 Detainees in Iraq: Recent

Security Crackdown in Baghdad Nets Another 1,000,

Wash. Post, Apr. 15, 2007, at A24 (quoting military

spokesman attesting that the “initial decision to

detain or release those arrested is made by a U.S.

unit commander with the assistance of an Army

lawyer.”).

Further, any belief that the Iraqi presence on the

CRRB transforms detention into a joint endeavor

between Irag and the U.S. is belied by the words of

former Iraqi Minister of Justice, Abdul Hussein

Shandal who stated, in reference to Iraqi participa-

tion in the CRRB process: “The representatives of the

MNF in the committee have the rights and all the

authority under the UN resolution.” Mariam Karouny

& Alastair Macdonald, Iragi Minister Slams U.S.

Detention Policy, REUTERS (Sep. 14, 2005) (emphasis

added). He described detention by MNF-I forces as

“overseen by the Multinational Force and ... not in

the control of the justice ministry.” Jd.

C. The U.S. Government bears legal re-

sponsibility under international law

for the detentions at issue here.

When ascribing legal responsibility for the ac-

tions of troops engaged in multinational forces, the

determinative test is “effective command and con-

trol.” That test comports with the widely accepted

rule of international law that the actions of forces

such as the MNF-I — including detention of citizen

20

prisoners — are attributable to the force-contributing

state — here, the United States — whose contingent

exercises effective control over the actions at issue.

The International Law Commission (ILC) and the

U.N. Secretariat confirm that under relevant interna-

tional law, a test of “effective control” determines

when a national force bears legal responsibility for an

MNF’s actions.”

The International Law Commission’s Draft

Articles on the Responsibility of International Organi-

sations make clear that U.N. authorization alone does

not absolve a Member State of primary responsibility

for the State’s actions.” The ILC’s authoritative

* This Court has recognized the ILC as “[e]stablished by the

United Nations General Assembly in 1947 to codify interna-

tional law,” and has often relied upon ILC opinions to inform its

construction of treaties. United States v. Louisiana, 394 U.S. 11,

1623, 28 n.7 (1969); see also United States v. Alaska, 521 U.S. 1,

24-25 (1997) (relying upon ILC draft articles to illustrate

meaning of Convention on the Territorial Sea and the Contigu-

ous Zone). Article 13 of the United Nations Charter provides

that the General Assembly shall initiate studies and make

recommendations for the “progressive development of interna-

tional law and its codification.” U.N. Charter, art. 13, 94. Most of

the major drafts of the ILC have been adopted as international

conventions. International Law Commission, Report of the

International Law Commission on the Work of Its Fifty-Third

Session, U.N. Doc. A/56/10 (2001).

* International Law Commission, Responsibility of Inter-

national Organizations: Titles and Texts of the Draft Articles 4,

5, 6 and 7 Adopted by the Drafting Committee, U.N. Doc.

A/CN.4/L.648 (May 27, 2004). The ILC’s draft articles on Re-

sponsibility of International Organisations resulted from a

request of the U.N. General Assembly in December 2001. G.A.

(Continued on following page)

21

commentary clarifies that “the decisive question in

relation to attribution of a given conduct appears to

be who has effective control over the conduct in ques-

tion.” International Law Commission, Report to the

General Assembly, U.N. GAOR, 56th session, Supp.

No. 10, U.N. Doc. A/59/10 (2004) (emphasis added).”

The U.N. Secretariat has articulated the same

test of effective control for determining responsibility:

“In joint operations, namely, those conducted by a

United Nations peacekeeping operation and an

operation conducted under national or regional

command and control, international responsibility lies

where effective command and control is vested and

practically exercised.” U.N. Doc. A/CN.4/545, at 9917-

18 (Jun. 25, 2004) (emphasis added). The Secretariat

further emphasized that “the Council itself or the

United Nations as a whole cannot be held responsible

for an unlawful act by the State conducting the opera-

tion, for the ultimate test of responsibility remains

;

Res. 56/82, 98, U.N. Doc. A/RES/56/82 (Dec. 12, 2001) (“[The

General Assembly] [rlequests the International Law Commis-

sion, taking into account paragraph 259 of its report, to begin its

work on the topic ‘Responsibility of international organizations’

and to give further consideration to the remaining topics to be

included in its long-term programme of work, having due regard

to comments made by Governments.”).

” “The conduct of an organ of a state ... that is placed at

the disposal of another international organization shall be

considered under international law an act of the latter organiza-

tion if the organization exercises effective control over that

conduct.” International Law Commission, Report to the General

Assembly, 4109, U.N. Doc. A/59/10 (2004) (emphasis added).

e

4

a

22

‘effective command and control.’” U.N. Doc. A/CN.4/556,

at 46 (May 12, 2005) (emphasis added).

The House of Lords recently applied the effective

control test to this very force, MNF-I, when it held

that a U.K. national could bring an action in U.K.

courts for actions by the U.K. forces in MNF-I. In R.

(on the application of Al-Jedda) v. Secretary of State

for Def., [2007] U.K.H.L. 58, whose facts are strik-

ingly parallel to the instant case, the appellant was

detained by U.K. forces in MNF-I without trial or

charge for over two years and successfully challenged

his detention before the House of Lords. Id. at (41-3.

The majority cited the ILC in following the

effective control test. Jd. at 5. Lord Bingham, writing

for the majority, applied a five-part test to determine

whether the U.K. exercised effective control:

* Were UK forces placed at the disposal of the

U.N.? Did the U.N. exercise effective control

over the conduct of UK forces? Is the specific

conduct of the UK forces in detaining the ap-

pellant to be attributed to the U.N. rather

than the UK? Did the U.N. have effective

command and control over the conduct of UK

forces when they detained the appellant?

Were the UK forces part of a U.N. peacekeep-

ing force in Iraq?

Id. at 422.

Applying the effective control test, the House of

Lords decided that MNF-I should be considered a

Green Helmet force because: (1) The U.N. did not

. —

wre

7) ga

23

dispatch coalition forces; (2) The Coalition Provisional

Authority (CPA) was established by the U.S., not the

U.N.; and (3) “at no time did the US or the UK dis-

claim responsibility for the conduct of their forces or

the U.N. accept it. It cannot realistically be said that

US and UK forces were under the effective command

and control of the U.N.” Id. at 423.

The House of Lords Decision in Al-Jedda sup-

ports a conclusion here that effective control of the

U.S. soldiers in the MNF-I, resides with the U.S., not

the U.N. Al-Jedda’s reasoning confirms that U.S.

forces under effective U.S. command and control

remain legally responsible for their actions. The U.S.

retains full legal responsibility for detention of civil-

ians such as Omar and Munaf without trial or

charge.” Nowhere did the U.S. officials who created

MNF-I evince the slightest intent to remove Ameri-

can forces under their command and control from

U.S. judicial authority. Given that neither the U.S.

nor the U.N. has ever stated any intent to disrupt

U.S. command and control over MNF-I — and that

* The House of Lords’ reasoning is confirmed by Behrami v.

France and Saramati v. France, Germany and Norway, 45 E.Ct.

H.R. 1 (2007), where the European Court of Human Rights

similarly relied upon the ILC’s “effective control” test in analyz-

ing the status of the multinational forces in Kosovo and attribut-

ing responsibility for their actions. As in Al-Jedda, the Behrami

Court focused on who exercised effective command and control

over the multinational force. In both cases, the Court concluded

that the multinational NATO military force in Kosovo, KFOR,

was under effective international control, not the control of the

individual member states. Jd. at 39.

24

maintaining judicial accountability plays a critical

role in preserving that command and control — the

jurisdictional reach of U.S. military and civilian

courts over U.S. forces remains undiminished.

D. The structure of MNF-I detention op-

erations precludes meaningful review

of detention outside U.S. courts.

Absent the availability of habeas corpus in a U.S.

federal court, the structure of MNF-I detention

operations precludes alternative forms of meaningful

review of detention of a U.S. citizen by a U.S. custo-

dian in Iraq. Within the MNF-I detention scheme, an

American citizen detained by U.S. forces in Iraq

operating under the umbrella of the MNF-I may be

detained indefinitely, without counsel, and without

access to any independent or meaningful review of his

classification as a “security internee.””

Similarly, should a U.S. citizen be labeled a

“criminal detainee” at some point in his detention and

later transferred to the Central Criminal Court of

Iraq, that court will have no jurisdiction to review his

* See Amnesty International, Beyond Abu Ghraib: Detention

and Torture in Iraq, MDE 14/001/2006 (Mar. 6, 2006), http://

asiapacific.amnesty.org/library/Index/ENGMDE 1400 12006?open

&cf=ENG-IRQ (describing MNF-I procedures, including denial

of opportunity to contest charges and lack of meaningful review

by CRRB).

25

detention at the hands of the MNF-I.” Nor would a

U.S. citizen detained by U.S. troops in Iraq have

recourse to any alternate tribunals, such as the

International Court of Justice (“ICJ”) or the Interna-

tional Criminal Court (“ICC”).”

The Solicitor General’s position in this case,

which would incapacitate the federal judiciary and

leave U.S. citizens to be tried by foreign courts,

cannot be squared with the U.S. Government’s cur-

rent reluctance to have U.S. citizens tried by such

judicial bodies as the International Criminal Court.

And it would be ironic indeed if member nations could

invoke U.N. authorization to avoid judicial scrutiny of

international human rights violations. As diplomatic

practitioners, Amici have always assumed that the

institutions of the U.S. government will exercise

effective jurisdiction and control over its own military

* CPA/MEM/03, §5(3) (establishing that Central Criminal

Court of Iraq has no jurisdiction to review the legality of the

detention at hands of MNF-I).

" For the ICJ to review Petitioners’ detention, the U.S.

would have to make an application against itself before the ICJ,

as only states may be parties before that tribunal - a scenario

that is both procedurally impossible and politically improbable.

Statute of the International Court of Justice, art. 34, June 26,

1945, 59 Stat. 1055, 1059, T.S. No. 933 (“Only states may be

parties in cases before the Court.”). Moreover, neither Iraq nor

the U.S. is a State Party to the Rome Statute, which leaves the

ICC with no jurisdiction to review Omar and Munaf’s claims of

illegal detention. State Parties to the Rome Statute of the ICC,

http:/Auntreaty.un.org/ENGLISH/bible/englishinternetbible/partI/

chapterXVIlII‘treaty11.asp (last visited February 20, 2008).

26

personnel. It ill-serves United States foreign policy

interests to claim that our country’s military person-

nel answer to no law, especially when the mere fact of

U.N. authorization is used to deny American citizens

their day in court.

II. The Right of United States Citizens to the

Writ of Habeas Corpus Under the U.S. Con-

stitution Cannot Be Suspended Simply by

Participation in a Multinational Force.

American participation in an _ international

military force such as the MNF-I cannot suspend the

Great Writ for U.S. citizens. To so hold would permit

the executive to escape judicial review by fiat, a

result anathema to the centuries-long history of

habeas corpus. Instead, U.S. constitutional and

military history teach that habeas jurisdiction at-

taches whenever U.S. forces — even those acting

pursuant to international agreement —- exercise

effective command and control over a citizen de-

tainee.

A. U.S. citizens held overseas under effec-

tive U.S. control are entitled to habeas

corpus to challenge their detention.

American citizens held overseas by U.S. armed

forces have a right to habeas corpus. “When the

Government reaches out to punish a citizen who is

abroad, the shield which the Bill of Rights and other

27

parts of the Constitution provide to protect his life

and liberty should not be stripped away just because

he happens to be in another land.” Reid v. Covert, 354

U.S. 1, 6 (1957) (plurality op.). For U.S. citizens held

abroad, the only relevant jurisdictional inquiry is

whether an ultimate custodian — here, the Secretary

of the Army - is within the territorial jurisdiction of

the district court. Braden v. 30th Judicial Circuit Ct.,

410 U.S. 484, 495 (1973).

The mere fact that the U.S. force detaining the

petitioner operates pursuant to U.N. authorization

does not suffice to divest a court of habeas jurisdic-

tion. In United States ex rel. Toth v. Quarles, 350 U.S.

11 (1955), the sister of a former U.S. soldier held in

Korea sought habeas in the D.C. federal courts on

behalf of her brother, challenging his court-martial

for a crime allegedly committed while serving with

the United Nations Joint Command (UNJC) in that

country. Despite its name, the UNJC was a multina-

tional operation both established and operated by the

United States Government. Like MNF-I, the UNJC

was a “joint operation,” under the effective command

of the United States military, which was by far the

largest contributor of ground forces, naval power, and

air power in Korea. Although undertaken on the

recommendation of the U.N. and supported by 16

participating member-states, the U.S. Government

exercised effective command and control over the

a

28

military effort there.” In granting the writ, this

Court never suggested that U.N. authorization of the

multinational operation somehow divested U.S.

courts of habeas jurisdiction over a U:S. citizen heid

in the U.S. military's custody. Id.

B. Hirota v. MacArthur does not divest

this court of habeas jurisdiction.

The Solicitor General’s sole authority for his

claim that “United States courts lack jurisdiction to

review the detention [by US forces] of individuals

held abroad pursuant to international authority” is

Hirota v. MacArthur, 338 U.S. 197 (1949), a nine-

sentence opinion that has never since been cited by

this Court. In Hirota, Japanese war criminals chal-

lenged the authority of General Douglas MacArthur,

Supreme Commander of Allied Forces, to establish

the International Military Tribunal for the Far East

(IMTFE) as well as its adequacy of process. Brief for

the Petitioner, at 16-19, Hirota v. MacArthur, 338

U.S. 197 (1949). In refusing to entertain the habeas

petition, the Court tersely stated that “under the

foregoing circumstances the courts of the United

“ In fact, unlike MNF-I, U.N. authorization preceded the

creation of the multinational force in Korea. See S.C. Res. 84,

U.N. Doc. S/RES/84 (Jul. 7, 1950). Yet the composition and

command structure of the UNJC showed that the United States

retained effective control of its participating forces. Indeed, the

United Nations “had no legal powers over or in respect of the

Force.” Finn Seyersted, UNITED NATIONS FORCES IN THE LAW OF

PEACE AND War 121-22 (1966).

-

29

States have no power or authority to review, to af-

firm, set aside or annul the judgments and sentences

imposed on these petitioners” without articulating

which of “the foregoing circumstances” were disposi-

tive. 338 U.S. at 198 (emphasis added).

The Solicitor General overreads Hirota as “estab-

lish{ing] that United States courts lack jurisdiction to

review the detention of individuals held abroad

pursuant to international authority, including indi-

viduals held by United States forces acting as part of

a multinational force.” But Hirota established no

such thing.

Congress alone ~— not the Executive, the U.N. or

any other multinational body — has the power to

suspend habeas corpus, and only then “in cases of

rebellion or invasion.” U.S. Const. art. I, § 9, cl. 2.”

Nor can an executive agreement with foreign sover-

eigns authorize what the Constitution forbids.“ These

* See, e.g., Ex parte Bollman, 8 U.S. 75, 101 (1807) (“If at

any time the public safety should require the suspension of

(habeas] .. . it is for the legislature to say so”) (emphasis added);

Hamdi v. Rumsfeld, 542 U.S. 507, 562 (2004) (Scalia, J., dissent-

ing on other grounds) (“(Sjuspension must be effected by, or

authorized by, a legislative act.”).

“ See Reid, 354 U.S. at 5-6 (“The United States is entirely a

creature of the Constitution. Its power and authority have no

other source.... [Nlo agreement with a foreign nation can

confer power on the Congress, or on any other branch of Gov-

ernment, which is free from the restraints of the Constitution.”).

See also Missouri v. Holland, 252 U.S. 416, 432-34 (1929) (treaty

cannot authorize national government “to do that which the

Constitution forbids”).

oe * ed eee oo eS ee ee ee Oe be a aes

30

constitutional presumptions militate against reading

Hirota so sweepingly. By the Government’s logic, the

Executive could unilaterally extinguish the habeas

rights of U.S. citizens under U.S. control simply by

entering into a multinational force agreement.”

Nothing in Hirota authorized the Executive to carve

out a habeas-free zone for U.S. citizens simply by

entering into an accord with a foreign nation.

In Hirota, as here, the controlling “circum-

stances” cited as the basis for the Court’s ruling were

not — as the Government claims — whether there was

an international source of authority for petitioners’

detention, but rather, whether the U.S. exercised

effective command and control over the detention.

Although the United States played a leading role in

the occupation and spearheaded the IMTFE, that

tribunal was fundamentally international in its

establishment and operations in ways that the MNF-I

is plainly not.

* The Government’s claim that Congress’ authorization of

the use of military force to “enforce all relevant United Nations

Security Council resolutions regarding Iraq,” Authorization For

Use of Military Force Against Iraq Resolution of 2002, Pub. L.

No. 107-243, §(3XAX2), 116 Stat. 1501 (2002), impliedly sus-

pended Omar and Munaf’s rights to habeas corpus violates this

Court’s requirement of “a clear indication that Congress in-

tended that result.” INS v. St. Cyr, 533 U.S. 289, 299 (2001).

There is not the faintest suggestion in the authorization’s text or

legislative history that Congress intended to suspend habeas

corpus with this authorization. Cf. Demore v. Kim, 538 U.S. 510,

517 (2003) (“[W)here a provision precluding review is claimed to

bar habeas review, the Court has required a particularly clear

statement that such is Congress’ intent.”).

31

Unlike MNF-I, which was stamped ex post facto

with U.N. legitimacy, General MacArthur’s authority

to establish the IMTFE grew from a series of interna-

tional agreements that preceded its founding.” Once

established, the IMTFE was fully multilateral in its

operations. Unlike MNF-I, where US CENTCOM

does not report to the U.N. or Iraq, prosecutions by

the tribunal had to be multilaterally approved and

General MacArthur had to consult with Allied powers

before modifying decisions of the tribunal. Each of the

eleven IMTFE judges represented a member of the

Allied nations and the Charter allowed for any Allied

nation to appoint an associate counsel to assist the

Chief of Counsel. Jd. Art. 8(b). The indictments filed in

the IMTFE were issued jointly by all eleven nations. See

* On December 27, 1945, the United States, the USSR, and

the United Kingdom - with China’s concurrence - established

the multilateral Far Eastern Commission (FEC) to oversee

Japan’s compliance with the Treaty of Surrender. Comprising

eleven nations, the FEC’s functions included “formulat{ing] the

policies, principles, and standards in conformity with which the

fulfillment by Japan of its obligations under the Terms of

Surrender may be accomplished,” and “review, on the request of

any member, any directive issued to the Supreme Commander

for the Allied Powers or any action taken by the Supreme

Commander involving policy decisions within the jurisdiction of

the Commission.” Agreement of Foreign Ministers at Moscow on

Establishing Far Eastern Commission and Allied Council for

Japan, 27 Dec. 1945, Art. II(AX1),(2), Documentary Appendix, at

14, Hirota v. MacArthur, 338 U.S. 197 (1949) (Nos. 239, 240,

248). The FEC approved the establishment of the IMTFE, and

each member state enjoyed the power to review and amend the

IMTFE charter. Philip R. Piccigallo, THE JAPANESE ON TRIAL 10-

11 (1980).

32

Indictment (lodged with the Tribunal on April 29, 1946),

Documentary Appendix, at 49, Hirota v. MacArthur,

338 U.S. 197 (1949) (Nos. 239, 240, 248).

The Government notes that “the tribunal’s rulings

were subject to modification by [General MacArthur].”

Govt Brief, at 20. But the FEC required him to

consult with the diplomatic representatives of each

Allied nation before rendering a decision. Richard R.

Minear, VICTOR’S JUSTICE 160-61 (1973). That provi-

sion was added to ensure that those nations exerted

influence over the Supreme Commander and the U.S.

Executive. As litigants recognized at the time, a

judicial finding sustaining Hirota’s complaints would

have amounted to a judicial abrogation of the inter-

national tribunal and nullified U.S. commitments.”

Based on this lengthy record of Allied involvement,

the U.S. State Department certified in Hirota that

*” The National Lawyers Guild wrote in an amicus brief that

A decision by the Supreme Court of the United States

to review the determinations of the [IMFTE] would,

by violating the consensual acts of the co-equal Allied

national states, impair the legal structure for the oc-

cupation of Japan, and imply to other Allied national

states, that the United States, speaking through its

Supreme Court, now regrets its agreements with its

co-equal Allies, and in reviewing the proceedings and

determinations of the [IMTFE] is contravening the in-

ternational agreements made with them.

Brief for the National Lawyers Guild as Amicus Curiae Support-

ing Respondents, Hirota v. MacArthur, 338 U.S. 197 (1949) (Nos.

239, 240, 248).

33

the IMTFE was an international, and not a domestic,

tribunal, as did the IMTFE itself.”

Hirota thus stands only for the proposition that a

U.S. court may not sit in habeas review of the rulings

of a Nuremberg-like, international tribunal. Yet

ignoring this history, the Solicitor General makes

much of Justice Douglas’s recognition that the FEC

was required “to respect the chain of command from

the United States Government to the Supreme Com-

mander and the Supreme Commander’s command of

occupation forces.” Hirota, 338 U.S. at 206 (Douglas,

J. concurring). Yet the Government omits Justice

Douglas’s far more relevant conclusion that

Our inquiry is directed not to the conduct of

the Allied Powers but to the conduct of our

own officials. . . . If an American General holds

a prisoner, our process can reach him wherever

he is. To that extent at least, the Constitution

follows the flag. It is no defense for him to say

that he acts for the Allied Powers. He is an

American citizen who is performing functions

for our government. It is our Constitution

which he supports and defends. If there is

evasion or violation of its obligations, it is no

defense that he acts for another nation.

There is at present no group or confederation

* Letter from the Acting Secretary of State, December 14,

1948, Documentary Appendix B, at 110-14, Hirota v. MacArthur,

338 U.S. 197 (1949) (Nos. 239, 240, 248).

34

to which an official of this Nation owes a

higher obligation than he owes to us.”

In a case where judicial interference would force

the United States to backtrack on an international

commitment, or constrain or usurp the authority of

another state participant in an international tribu-

nal, stronger foreign policy objections may exist to the

assertion of habeas jurisdiction. But Omar and

Munaf are being detained by a Green Helmet MNF

subject to exclusive U.S. command and control.

Maintaining the accountability of American officials

in that MNF to the rule of law through American

courts poses no similar foreign policy problem. As the

House of Lords recognized in analogous circum-

stances, where, as here, U.S. forces possess the

unchecked authority unilaterally to hold or release a

U.S. citizen detainee, they can be judicially ordered to

exercise that authority without offending any other

state participating in the MNF.

C. Under international law, U.N. authori-

zation does not immunize the United

States from judicial accountability

with respect to the detentions of Omar

and Munaf.

Nor, finally, is there any basis under interna-

tional law for the Solicitor General’s claim that the

act of U.N. authorization — without meaningful

* Id. at 204.

35

change in U.S. command and control — can nullify a

detainee’s internationally recognized human righi to

a judicial evaluation of the lawfulness of his deten-

tion. Article 9 (4) of the International Covenant on

Civil and Political Rights, to which the United States

is a party, declares that “Anyone who is deprived of

his liberty by arrest or detention shall be entitled to

take proceedings before a court, in order that that

court may decide without delay on the lawfulness of

his detention and order his release if the detention is

not lawful.” U.S. Ratification of International Cove-

nant on Civil and Political Rights, 58 Fed. Reg.

45934, 45942 (Dep’t of State Aug. 31, 1993).

Mere participation in MNF-I operation does not

immunize United States personnel from legal respon-

sibility pursuant to their own national judicial ac-

countability mechanisms.“ Entering the MNF-I did

not disable preexisting national judicial accountabil-

ity mechanisms that apply to Member States’ actions

within MNF enforcement arrangements. Moreover,

even if conducted under U.N. authorization, when

U.S. actions violate established human rights norms,

such as the norms against torture or detention with-

out judicial review, such actions are ultra vires, and

“ “In order to continue to contribute to security, the MNF

must continue to function under a framework ... in which the

contributing states have responsibility for exercising jurisdiction

over their personnel.” S/RES/1546. See also Dan Sarooshi,

INTERNATIONAL ORGANIZATIONS AND THEIR EXERCISE OF SOVEREIGN

Powers 63 (2005) (“The State cannot seek to escape responsibil-

ity for its own acts . . . by hiding behind the non-binding decision

of an organization.”).

36

cannot be attributable solely to the U.N., leaving the

responsible force-contributing State above the law.

This is particularly true when a U.S. citizen is

detained in a U.S. military facility under the un-

checked and complete control of U.S. armed forces,

and the MNF proposes to transfer the U.S. citizen to

the jurisdiction of a foreign court that may not fully

protect his internationally recognized human rights.

Even if this Court were to agree with the Government

that the MNF-I is a thoroughly international force,

that assumption should equally compel the conclusion

that the U.N. lacks authority to give MNF-I power to

act contrary to international law. It would be ironic

indeed if this Court were to construe MNF-I’s man-

date under international law to exempt participating

U.S. officials from clear international obligations to

respect the availability of habeas corpus for detained

prisoners.

Justice Douglas, concurring in Hirota, propheti-

cally wrote:

I assume that we have no authority to review

the judgment of an international tribunal.

But if as a result of unlawful action, one of

our Generals holds a prisoner in his custody,

the writ of habeas corpus can effect a release

from that custody. It is the historic function

of the writ to examine into the cause of re-

straint of liberty. We should not allow that

inquiry to be thwarted merely because the

jailer acts not only for the United States but

for other nations as well.... Tomorrow or

next year an American citizen may stand

37

condemned in Germany or Japan [or Iraq] by

a military court or commission. If no United

States court can inquire into the lawfulness

of his detention, the military have acquired,

contrary to our traditions, a new and alarm-

ing hold on us.“

CONCLUSION

For the foregoing reasons, the Court should

affirm the Court of Appeals in Omar, reverse in

Munaf; and remand both cases to the District Court

for further proceedings.

Respectfully submitted,

HAROLD HONGJU Kou

(Counsel of Record)

Hope R. METCALF

RAMZI KASSEM

ALLARD K. LOWENSTEIN

INTERNATIONAL HUMAN RIGHTS

CLINIC — NATIONAL

LITIGATION PROJECT

YALE LAw SCHOOL

127 Wall Street

New Haven, CT 06510

(203) 432-1660

Counsel for Amici

“ Hirota, 338 U.S. at 202 (Douglas, J., concurring) (empha-

sis added).

App. 1

APPENDIX: QUALIFICATIONS OF AMICI

Madeleine K. Albright served as Permanent Repre-

sentative to the United Nations from 1993 to 1997

and as U.S. Secretary of State from 1997-2001. Dr.

Albright is the first Michael and Virginia Mortara

Endowed Professor in the Practice of Diplomacy at

the Georgetown School of Foreign Service and the

first Distinguished Scholar of the William Davidson

Institute at the University of Michigan Business

School. Dr. Albright is the Chairman of The Na-

tional Democratic Institute for International Af-

fairs and also serves on the Board of Directors of

the New York Stock Exchange.

Stephen W. Bosworth is Dean of the Fletcher

School of Law and Diplomacy at Tufts University.

During his diplomatic career, he served as U‘S.

Ambassador to the Republic of Korea, U.S. Ambas-

sador to the Philippines, U.S. Ambassador to Tuni-

sia, Director of the State Department Policy

Planning Staff, Principal Deputy Assistant Secre-

tary for Inter-American Affairs, and Deputy Assis-

tant Secretary for Economic Affairs. He has also

served as Executive Director of the Korean Penin-

sula Energy Development Organization (KEDO)

and President of the United States-Japan Founda-

tion.

Jeffrey Davidow is President of the Institute of the

Americas at the University of California, San

Diego. He served as U.S. Ambassador to Mexico

from 1998 to 2002, under both President Clinton

and President Bush, and as U.S. Ambassador to

Zambia (1988-1990), and Venezuela (1993-1996).

From 1996 to 1998, he was Assistant Secretary of

App. 2

State for Inter-American Affairs. After 34 years in

the State Department, he retired with the personal

rank of Career Ambassador.

William Durch is a Senior Associate at the Henry L.

Stimson Center in Washington. He served as Pro-

ject Director for the Panel on United Nations Peace

Operations in 2000 and Scientific Adviser to the

U.S. Defense Threat Reduction Agency in 1999 and

2001. He is the coauthor of The Brahimi Report

and the Future of Peace Operations (Stimson,

2000).

Herbert J. Hansell served as the Legal Adviser of

the U.S. Department of State from 1977 to 1979,

Member of the Permanent Court of Arbitration,

The Hague, from 1978-1980, and Senior Adviser

and Ambassador to the Mideast Peace Negotiations

in 1980. He served as Adviser to the United States

Trade Representative on international investment

in 1980, and as Adviser to the American Law Insti-

tute Restatement of the Foreign Relations Law of

the United States. He is also Retired Partner at the

law firm of Jones Day.

Karl Inderfurth served as Assistant Secretary of

State for South Asian Affairs from 1997 to 2001. He

also served as Special Representative of the Presi-

dent and Secretary of State for Global Humanitar-

ian Demining from 1997 to 1998 and US.

Representative for Special Political Affairs to the

United Nations, with ambassadorial rank and

Deputy U.S. Representative on the U.N. Security

Council from 1993 to 1997. He is the John O. Ran-

kin Professor of the Practice of International Af-

fairs and the Director, Graduate Program in

A I a ce — a

App. 3

International Affairs at George Washington Uni-

versity.

Alan Kreczko served as acting Assistant Secretary

of State for Population, Refugees and Migration

from 2001 to 2002. He also served as Special Assis-

tant to the President and Legal Adviser for the Na-

tional Security Council from 1993 to 1997 and as

Deputy Legal Adviser for the Secretary of State

from 1988 to 1993.

James C. O’Brien, a Principal of the Albright Group

LLC, served as Special Presidential Envoy for the

Balkans from 2000 to 2001, as Principal Deputy

Director of the State Department Policy Planning

Staff from 1998 to 2000, and as a State Department

official from 1989 to 2001.

Thomas R. Pickering served as the Under Secre-

tary of State for Political Affairs from 1997 to 2001,

and was the U.S. Ambassador and Permanent Rep-

resentative to the United Nations from 1989 to

1992. A Career Ambassador, during his diplomatic

career, he also served as Assistant Secretary of

State for Oceans, Environment and Science, U.S.

Ambassador to The Russian Federation, U.S. Am-

bassador to India, U.S. Ambassador to Israel, U.S.

Ambassador to El Salvador, U.S. Ambassador to

Nigeria, U.S. Ambassador to The Hashemite King-

dom of Jordan, and Executive Secretary of the De-

partment and Special Assistant to the Secretary.

He was also President of the Eurasia Foundation

and Senior Vice President for International Rela-

tions of The Boeing Company 2001-2005 and is cur-

rently Vice Chairman of Hills & Co.

App. 4

J. Stapleton Roy is Vice Chairman of Kissinger

Associates, Inc. A Career Ambassador, he served as

U.S. Ambassador to Indonesia, U.S. Ambassador to

the Peoples’ Republic of China, and U.S. Ambassa-

dor to Singapore. He also served as Assistant Sec-

retary of State for Intelligence and Research,

Executive Secretary of the Department and Special

Assistant to the Secretary, and as Deputy Assistant

Secretary for East Asian and Pacific Affairs.

Eric Schwartz served for eight years at the U.S.

National Security Council, ultimately heading the

White House office responsible for humanitarian

and United Nations affairs. A visiting faculty mem-

ber at Princeton University's Woodrow Wilson

School of Public and International Affairs, he was

also the UN Secretary General’s Deputy Special

Envoy for Tsunami Recovery, and in 2003 and 2004,

he was the second-ranking official at the Office of

the UN High Commissioner for Human Rights.

Earlier in his career, he served as a Staff Consult-

ant to the U.S. House of Representatives Foreign

Affairs Subcommittee on Asian and Pacific Affairs,

and as Washington Director of the human rights

organization Asia Watch (now known as Human

Rights Watch-Asia). Mr. Schwartz currently serves

as Executive Director of the Connect US Fund.

Wendy Sherman a Principal of The Albright Group

and former Counselor of the Department of State

and Special Advisor to the President and Secretary

of State and North Korea Policy Coordinator.

Nancy Soderberg was the Vice-President for Multi-

lateral Affairs at the International Crisis Group,

and served as Deputy Assistant to the President for

App. 5

National Security Affairs and as the U.S. Ambassa-

dor and Representative for Special Political Affairs

at the United Nations.

Strobe Talbott served as Deputy Secretary of State

from 1994-2001, and Ambassador-at-large and Spe-

cial Advisor to the Secretary of State for the former

Soviet Union from 1993-1994.

Frank G. Wisner is Vice Chairman, External Af-

fairs, at American International Group. A career

diplomat with the personal rank of Career Ambas-

sador, he previously served as Ambassador to India

from 1994-1997. Additionally, he held the positions

of Ambassador to Zambia (1979-82), Egypt (1986-

91), and the Philippines (1991-92). Mr. Wisner has

served in a number of positions in the U.S. gov-

ernment, including Undersecretary of Defense for

Policy (1993-94), Undersecretary of State for Inter-

national Security Affairs (1992-93), Senior Deputy

Assistant Secretary for African Affairs (1982-86),

and Deputy Executive Secretary of the Department

of State (1977). During the course of his career,

Frank Wisner served in the Middle East and South

and East Asia. Today Mr. Wisner is a member of the

Boards of Directors of American Life Insurance

Company (ALICO), EOG Resources and Ethan Al-

len, as well as the boards of numerous non-profit

organizations. He is an advisor to Kissinger

McClarty Associates.