Amicus Curiae Brief — Boumediene v. Bush

-

MOTION FILED 5/008 ~

OCT 9 - 2007 Ber. .

Nos. 06-1195 and 06-1196

IN THE

SUPREME COURT OF THE UNITED STATES

LAKHDAR BOUMEDIENE, et al., Petitioners,

v.

GEORGE W. BUSH, et al., Respondents,

KHALED A.F. AL ODAH, et al., Petitioners,

v.

UNITED STATES OF AMERICA, et al., Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE

AND BRIEF AMICUS CURIAE OF THE

AMERICAN CENTER FOR LAW AND JUSTICE

IN SUPPORT OF RESPONDENTS

JAY ALAN SEKULOW

(Counsel of Record)

STUART J. ROTH

ROBERT W. ASH

BENJAMIN P. SISNEY

AMERICAN CENTER FOR

LAW & JUSTICE

201 MARYLAND AVE., N.E.

WASHINGTON, DC 20002

(202) 546-8890

(202) 546-9309 (FAX)

Attorneys for Amicus Curiae

1

MOTION FOR LEAVE OF COURT TO FILE

BRIEF AMICUS CURIAE IN SUPPORT OF

RESPONDENTS IN THE ABOVE CAPTIONED

CASES

Movant, the American Center for Law and

Justice (ACLJ), respectfully moves this Court for

leave to file a Brief Amicus Curiae in support of the

United States Government Respondents in the

above-captioned cases.

ARGUMENT AND INTEREST OF AMICUS

In support of this Motion, the ACLJ avers as follows:

(1)

(2)

(3)

(4)

The ACLJ is a not-for-profit public interest

law firm committed to the constitutional

separation of powers.

The proper resolution of this case is a matter

of substantial concern to the ACLJ because it

will significantly impact the ability of the

executive and legislative branches to conduct

foreign policy and carry out wartime duties.

Pursuant to Sup. Ct. Rule 37.3(a), the ACLJ

has obtained consent from every counsel of

record in this matter, save one, to file its

Brief Amicus Curiae in support of U.S.

Government Respondents. The _ consent

letters will be filed with the Court.

The ACL.J recently discovered that consent

was not obtained from Respondent Khadr’s

counsel of record. It was the ACLJ’s

understanding that Respondent Khadr had

been represented by counsel of record for

2

Petitioners Al Odah, et. al., and that due

consent had already been provided.

(5) The ACLJ has attempted to contact

Respondent Khadr’s counsel of record by

phone and electronic mail, but to no avail.

(6) Because the ACLJ desires to file its Brief

Amicus Curiae on the same day that

Respondents must file their brief, October 9,

2007, it is now impossible for the ACLJ to

meet the 10-day notice requirement set forth

in the new rule changes, or to disclose that

all counsels of record have given consent.

(7) As such, to comply with Sup. Ct. Rule

37.3(b), the ACLJ files this Motion seeking

leave of Court to file its Brief Amicus Curiae.

(8) Moreover, the ACLJ believes that the

analysis in its Brief Amicus Curiae will

assist this Court in properly resolving this

issue.

CONCLUSION

FOR THE FOREGOING REASONS, The

American Center for Law and Justice respectfully

requests that this Court grant the ACLJ leave to file

its Brief Amicus Curiae in support of the United

States Government Respondents in the above-

captioned cases.

October 9, 2007

3

Respectfully submitted,

JAY ALAN SEKULOW

(Counsel of Record)

STUART J. ROTH

ROBERT W. ASH

BENJAMIN P. SISNEY

AMERICAN CENTER FOR

LAW & JUSTICE

201 MARYLAND AVE., N.E.

WASHINGTON, DC 20002

(202) 546-8890

(202) 546-9309 (Fax)

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...000....... cc ecccecsecseeeeeees iii

ABBREVIATIONS ..............::ccccssccssesceeeeseeeeeeeeeseeeens vill

INTEREST OF AMICUS. ..............cccccccecccescseeseeeeeeee 1

SUMMARY OF THE ARGUMENT....................0... 2

ET stiiibiinninenuiiiniinnnoniensnbentnsnteteneennitenereneiens 3

I. ENACTMENT OF THE MILITARY

COMMISSIONS ACT LAWFULLY

REMOVED FROM THIS COURT ITS

AUTHORITY TO ISSUE WRITS OF

HABEAS CORPUS TO GUANTANAMO

Se IIE sxtssiescscncnncedeionssemnanntecieeninnectqcees 3

A. Congress Has Constitutional Authority to

Limit This Court’s Jurisdiction, Even to

Cases Which Have Been Argued Before,

But Jot Yet Decided By, The Court ............... 4

B. Even if This Court Were to Determine

That Some Type of Hearing is Required

for Petitioners, An Adequate Alternative

to Habeas Already Exists...........................000:. 7

Il. EVEN BRITISH COURTS WOULD NOT

ISSUE THE GREAT WRIT TO ENEMY

ALIENS INTERNED IN WARTIME ................. 10

ll

IIl.IN ITS HAMDAN DECISION, THIS COURT

ERRED IN CONCLUDING THAT THE

GENEVA CONFERENCE OF 1949

INTENDED COMMON ARTICLE 3 TO

APPLY TO PERSONS LIKE PETITIONERS ... 14

A. Separation of Powers Requires that

Courts Proceed Cautiously in Interpreting

Treaties to Avoid Interfering with Powers

Accorded by the Constitution Solely to the

Political Branches and to Avoid

Inadvertently Ceding Sovereign Rights

and Prerogatives........................cssscceeeeeeeeeeeees 17

C. Even a Cursory Review of the Final

Record of the Geneva Conference of 1949

Clearly Demonstrates that the Majority of

Delegations Intended Common Article 3

to Apply to Serious Internal Conflicts

Like Civil Wars and to Nothing Else............ 23

ED oc ccnssccccrcesisnseesentesntiniionmninieeiaeainiiaall 28

ill

TABLE OF AUTHORITIES

Page(s)

Cases

Air France v. Saks, 470 U.S. 392 (1985) .......00000.... 19

Aptheker v. Sec'y of State, 378 U.S. 500 (1964)...... 18

Baker v. Carr, 369 U.S. 186 (1962) .........0.0000000000000 16

Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.

2007), cert. granted, 127 S. Ct. 3078 (June

cs eacmeidnttignnnensones 4

Chan v. Korean Air Lines, Ltd., 490 U.S. 122

EE 20

Chew Heong v. United States, 112 U.S. 536

LESSEE Se i 19, 20

Durousseau v. United States, 10 U.S. (6 Cranch)

SS EE 5

El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng,

i i ssuusosnusunese 20, 21

Ex Parte Bollmaa, 8 U.S. (4 Cranch) 75 (1807)........ 5

Ex parte McCardle, 74 U.S. (1 Wall.) 506 (1868).. 5, 6

Ex Parte Quirin, 317 U.S. 1 (1942) ..........ccccceeeeeeeees 4

Felker v. Turpin, 518 U.S. 651 (1996) ............00..... 5, 6

iv

Haig v. Agee, 453 U.S. 280 (1981) 0.0.0.0... cceeceeeeees 18

Hamdan v. Rumsfeld, 126 S. Ct. 2749

REISS ee sree seer er eee Owe 4,14

Harris v. Nelson, 394 U.S. 286 (1969) ............cccceeeee )

Hirabayashi v. United States, 320 U.S. 81 (1943).. 18

In re Yamashita, 327 U.S. 1 (1946) .0.........:ccceeeeeeees nS)

INS v. St. Cyr, 533 U.S. 289 (2001) ......cccsccccseesseee0e 10

Johnson v. Jisentrager, 339 U.S. 763 (1950).... 3, 6, 9

Peyton v. Rowe, 391 U.S. 54 (1968).............::cccccccceees 7

Powell v. McCormack, 395 U.S. 486 (1969) ............ 16

R. v. Schiever, 2 Burr. 765 (1759)..........cccccccc00e. 11, 12

Rasul v. Bush, 542 U.S. 466 (2004)............. 3, 4, 6, 10

Reed v. Wiser, 555 F.2d 1079, (2nd Cir. 1977),

cert. denied, 434 U.S. 922 (1977) ......cccecceeeees 19

Sullivan v. Kidd, 254 U.S. 433 (1921) .............cce 17

Sumitomo Shoji Am., Inc. v. Avagliano,

ee SI csceiiesnapieiendintiniiteiictitihinieiieaanen 19

Swain v. Pressley, 430 U.S. 372 (1977)............. 7, 8,9

United States v. Hayman, 342 U.S. 205 (1952).... 7, 8

v

Statutes, Constitutions, and Other Laws

Detainee Treatment Act of 2005, Pub. L. No. 109-

ee, es SE iensnensedittatientnninnengnisninnntanenenees 4,9

Military Commissions Act of 2006, Pub. L. No.

ig BS ee 4,6,9

a RR ener 17

I ES Oe 4, 5,6

Other Authorities

Diplomatic Conference of Geneva of 1949,

Geneva, Switz., April 26-Aug. 12, 1949,

2A Final Record (2004)...............00.0se0ssscessseessee0s 24

Diplomatic Conference of Geneva of 1949,

Geneva, Switz., April 26-Aug. 12, 1949,

2B Final Record

ee aisinsteniccchdtesiinns 14, 15, 18, 19, 24, 25, 26, 27

Robert W. Ash, Square Pegs and Round Holes:

Al-Qaeda Detainees and Common Article 3,

__ Ind. Int'l & Comp. L. Rev. __ (2007)

| SEES ase Ses e aaa ee eens ee 14

Brief for the Commonwealth Lawyers

Association as Amicus Curiae in Support of

the Petitioners, Boumediene v. Bush, No. 06-

1195, cert. granted, 127 S. Ct. 3078 (June 29,

SU iaiisicniniaesilsiehintmntisiesiiikiinshiahcieitpiteiliatinttaatnicamaiai 10, 11

vi

Nathan A. Canestaro, “Smal/ Wars" and the

Law: Options for Prosecuting the Insurgents

in Iraq, 43 Colum. J. Transnat’] L. 73

Commentary II Geneva Convention for the

Amelioration of the Condition of the

Wounded, Sick and Shipwrecked Members of

Armed Forces at Sea (Jean S. Pictet, ed.,

| EE ree ener aE 27

Commentary II] Geneva Convention Relative to

the Treatment of Prisoners of War (Jean S.

Pictet, ed., ICRC 1960)... 15, 16, 21, 23, 24, 26, 27

Commentary [V Geneva Convention Relative to

the Protection of Civilian Persons in Time of

War (Jean S. Pictet, ed., ICRC 1958) ................ 15

G.LA.D. Draper, The Status of Combatants and

the Question of Guerilla Warfare, 45 Brit.

8 See 14,15

Tom Farer, Humanitarian Law and Armed

Conflicts: Toward the Definition § of

"International Armed Conflict,” 71 Colum. L.

FRR EP ECC OEE ere oe rear nee 21

Geneva Convention (III) Relative to the

Treatment of Prisoners of War, Aug. 12,

1949, 6 U.S.T. 3316, 75 U.N.T-S. 135.... 11, 26, 27

vil

Derek Jinks, September 11 and the Laws of

War, 28 Yale J. Int’] L. 1 (2003)............. 15, 19, 21

Sir Arnold Duncan McNair, J/nternational Law

EES AEE EL ae eee ae 11

Sir Arnold Duncan McNair, Legal Effects of War

RES EC ESTE CEI eNO 11

Oxford Dictionary of Political Quotations

(Antony day ed., 1996) ...........::ccccesceesseeeeseeees 21, 22

Press Release, Fred W. Baker III, Am. Forces

Press Serv., Dep’t Releases Audio Recording

of 9/11 Mastermind’s Tribunal (Sept. 13,

2007), available at http-//www.defenselink.

mil/news/ newsarticle.aspx?7id=47437............... 8,9

vill

ABBREVIATIONS

GC II cmt. Commentary Il Geneva

Convention for the Amelioration

of the Condition of the Wounded,

Sick and Shipwrecked Members

of Armed Forces at Sea

GC Ill Geneva Convention (III) Relative

to the Treatment of Prisoners of

War

GC III cmt. Commentary Ill Geneva

Convention Relative to the

Treatment of Prisoners of War

GC IV cmt. Commentary IV Geneva

Convention Relative to the

Protection of Civilian Persons in

Time of War

ICRC International Committee of the

Red Cross

1

INTEREST OF AMICUS:

Amicus curiae The American Center for Law and

Justice (ACLJ) is a not-for-profit public interest law

firm committed to upholding the integrity of our

constitutional system of government based on

separation of powers. Jay Alan Sekulow, ACLJ

Chief Counsel, has argued and participated as

counsel of record in numerous cases involving

constitutional issues before this Court as well as

before lower federal and state courts. The ACLJ is

very concerned about Petitioners’ attempt to subvert

the well-established authority of the Executive and

Legislative Branches to deal with the exigencies of

war in all their facets and to transfer such authority

to the Judiciary. The ACLJ urges this Court to

uphold the validity of the Military Commissions Act

'This Brief is filed with the consent of all the parties, save one.

The consent letters of the U.S. Government, Respondent

Khalid, and Petitioners Boumediene, et. al., are filed herewith.

Blanket consent letters from Petitioners El-Banna, et. al., and

Al Odah, et. al., were filed with this Court on August 14 and

September 4, 2007, respectively. Pursuant to Rule 37.6, amicus

ACLJ discloses that no counsel for any party in this case

authored this brief in whole or in part, and no person or entity,

other than amicus curiae, its members, or its counsel, made a

monetary contribution to the preparation of the submission of

this Brief. Counsel of record for all parties, except for

Respondent Khadr, received notice at least 10 days prior to the

due date, of the amicus ACLJ’s intention to file this Brief.

Because Respondent Omar Khadr's counsel could not be

reached, the ACLJ was unable to comply with this provision

and obtain his permission to file this Brief. As a result, the

ACLJ has filed a Motion for Leave of Court to file its Brief

Amicus Curiae in this matter.

2

and to allow military commissions to proceed

unhindered and as directed by the Congress.

SUMMARY OF THE ARGUMENT

In enacting the Military Commissions Act of

2006, Congress acted lawfully pursuant to its

constitutional authority to remove from this Court’s

jurisdiction the ability to entertain Petitioners’

requests for writs of habeas corpus. As such, this

Court must dismiss Petitioners’ causes. If this Court

were to conclude instead that Petitioners are entitled

to some type of disinterested hearing regarding their

detention, an adequate alternative forum—the

Combatant Status Review Tribunal (“CSRT”)—

already exists to answer the question whether

Petitioners are being properly detained by the

Executive. Hence, there is no violation of the

Suspension Clause, and this Court should dismiss

Petitioners’ requests. To the extent that this Court

considers relevant what British courts would do in

similar circumstances, the Great Writ has

historically been denied by British courts to persons

interned during hostilities. Hence, there is no

historical basis in British law to sanction the issuing

of writs of habeas corpus to those interned as enemy

aliens at Guantanamo Bay. Finally, much confusion

surrounding how to treat the Guantanamo detainees

results from this Court’s misinterpretation of the

meaning and reach of Common Article 3 of the 1949

Geneva Conventions. A proper reading of what

transpired at Geneva in 1949 shows that delegates

in Geneva never intended Common Article 3 to reach

persons like Petitioners. Hence, permitting them

3

access to United States courts on the basis of

Common Article 3 is clearly erroneous and should be

reversed.

ARGUMENT

I. ENACTMENT OF THE MILITARY

COMMISSIONS ACT LAWFULLY REMOVED

FROM THIS COURT ITS AUTHORITY TO

ISSUE WRITS OF HABEAS CORPUS TO

GUANTANAMO BAY DETAINEES

On June 28, 2004, in Rasul v. Bush, 542 U.S. 466

(2004), this Court ruled that detainees held at the

Guantanamo Bay Naval Base in Cuba could seek

writs of habeas corpus in United States District

Courts to challenge their detention. /d. at 484. This

Court based its conclusion on statutory grounds, /d.

at 479, and hence declined to disturb its prior ruling

in Johnson v. Eisentrager, 339 U.S. 763 (1950). In

Eisentrager, this Court had concluded, based on

Constitutional grounds, that detainees incarcerated

by the United States overseas who had never been in

the United States could not challenge their detention

before United States courts. Jd. at 777-78. In fact,

this Court concluded under the circumstances in

Eisentrager, that no United States court had

jurisdiction to issue a writ of habeas corpus on behalf

of petitioners. /d. at 778, 781. In Rasul, on the other

hand, this Court ruled that, because federal statutes

had changed, Guantanamo Bay detainees are now

able to seek writs of habeas corpus. Aasu/, 542 U.S.

at 478-79. Because the Court was able to decide the

4

case on statutory grounds, without disturbing the

Eisentrager decision, it explicitly did so. Jd. at 479.

The fRasu/ decision proved to be _ highly

controversial. In the wake of that decision,

Congress, pursuant to its Constitutional authority to

delimit the appellate jurisdiction of this Court, see

U.S. Const. art. III, § 2, cl. 2, enacted the Detainee

Treatment Aci of 2005 (“DTA”), Pub. L. No. 109-148,

119 Stat. 2680, in an attempt to overrule by statute

what this Court had decided in Rasul. The DTA was

challenged by Petitioners in Hamdan v. Rumsfeld,

126 S. Ct. 2749 (2006), and this Court ruled that the

DTA did not remove the Court’s jurisdiction with

respect to habeas petitions pending at the time of the

DTA’s enactment. Jd. at 2762-69. That decision also

proved to be highly ccntroversial. Congress

responded by enacting the Military Commissions Act

of 2006 (“MCA”), Pub. L. No. 109-366, 120 Stat.

2600, to make clear to this Court and all other

federal courts that they no longer had jurisdiction to

issue writs of habeas corpus to any Guantanamo Bay

detainee, irrespective of when a detainee might have

filed suit seeking such relief. MCA §§ 7(a)-(b), 120

Stat. at 2636. Now, the MCA is being challenged

before this Court.

A. Congress Has Constitutional Authority to

Limit This Court’s Jurisdiction, Even to Cases

Which Have Been Argued Before, But Not Yet

Decided By, The Court

Congress has the authority to remove petitions

for writs of habeas corpus from the jurisdiction of all

federal courts, including this Court. Likewise,

5

Congress may divest this Court of any appellate

review over original petitions for writs of habeas

corpus. The Constitution provides this Court with

original jurisdiction in a few enumerated cases and

then explains: “In all the other Cases before

mentioned, the supreme Court shall have appellate

Jurisdiction, both as to Law and Fact, with such

Exceptions, and under such Regulations as the

Congress shall make.” U.S. Const. art. III, § 2, cl. 2

(emphasis added). The source of jurisdiction for this

Court, therefore, is the Constitution, but it has long

been settled that Congress has the authority to limit

and regulate such jurisdiction. See, e.g., Felker v.

Turpin, 518 U.S. 651, 661 (1996) (citing Durousseau

v. United States, 10 U.S. (6 Cranch) 307, 314 (1810));

Ex parte McCardle, 74 U.S. (1 Wall.) 506, 512-14

(1868).

Regarding writs of habeas corpus, this Court has

“long recognized that ‘the power to award the writ by

any of the courts of the United States, must be given

by written law.” Felker, 518 U.S. at 663-64

(emphasis added) (quoting Ex Parte Boliman, 8 US.

(4 Cranch) 75, 94 (1807)). What Congress enacts,

however, it may also rescind. And, in such an

instance, this Court is “not at liberty to inquire into

the motives of the legislature. [The Court] can only

examine into its power under the Constitution; and

the power to make exceptions to the appellate

jurisdiction of this court is given by express words.”

Ex parte McCardle, 74 U.S. at 514 (emphasis added)

(referencing U.S. Const. art. III, § 2, cl. 2).

Ex parte McCardle established the necessary

legal principles controlling this issue. In McCardle,

the Court was in the process of deciding a habeas

6

petition on appeal, pursuant to jurisdiction granted

by an act of Congress in March 1867. 74 U.S. at 512.

After the Court had heard oral arguments but before

a final opinion issued, Congress repealed the Act

relied upon by the petitioner. Congress did not

repeal the “whole appellate power of the court, in

cases of habeas corpus,” but only review of “appeals

from Circuit Courts under the act of 1867.” Jd. at

515. When Congress repealed the statute, the Court

lacked jurisdiction and had to dismiss McCardle’s

cause. The Court aptly noted that “judicial duty is

not less fitly performed by declining ungranted

jurisdiction than in exercising firmly that which the

Constitution and the laws confer.” Jd. at 514-15.

Regarding unlawful enemy combatants detained

overseas who have never entered the United States,

this Court recognized no _ constitutional basis

granting U.S. courts jurisdiction to hear their

petitions for writs of habeas corpus. E£isentrager,

339 U.S. at 777-78. In Rasu/l, this Court concluded

that U.S. courts have statutory authority to hear

such requests. Aasul, 542 U.S. at 484. Yet now, by

means of the MCA, Congress has deliberately,

expressly, and plainly removed any such statutory

grant. As in McCardle, the MCA does not remove

the whole appellate power of the Court, but “a plain|[]

instance of positive exception” is made by the MCA’s

terms regarding Guantanamo Bay detainees. See

McCardle, 74 U.S. at 514.

Congress has authority to set statutory limits on

this Court’s jurisdiction. See, e.g., U.S. Const. art.

III, § 2, cl. 2; Felker, 518 U.S. at 661. Congress has

explicitly exercised such authority. See MCA §§

7(a)-(b), 120 Stat. at 2636. As such, this Court—and

7

every other United States court—lacks jurisdiction

to hear Petitioners’ habeas claims and must dismiss

for want of jurisdiction.

B. Even if This Court Were to Determine That

Some Type of Hearing is Required for

Petitioners, An Adequate Alternative to

Habeas Already Exists

The purpose of the Great Writ is to allow a

person detained by the Executive to challenge the

legal basis of his detention before an impartial

adjudicative body. Peyton v. Rowe, 391 U.S. 54, 58

(1968). Under United States law, the existence of an

adequate alternative remedy suffices to extinguish

one’s right to the Great Writ. Swain v. Pressley, 430

U.S. 372, 381 (1977) (noting that “the substitution of

a collateral remedy which is neither inadequate nor

ineffective to test the legality of a person’s detention

does not constitute a suspension of the writ of

habeas corpus”). Whenever possible, judicial

prudence instructs courts to avoid far-reaching and

unpredictable constitutional implications. See, e.g.,

United States v. Hayman, 342 U.S. 205, 223 (1952)

(“This Court will not pass upon the constitutionality

of an act of Congress where the question is properly

presented unless such adjudication is unavoidable

****”) Thus, Congress may explicitly deny access to

writs of habeas corpus, regardless of where the

Great Writ might otherwise apply, and avoid conflict

with the Suspension Clause so long as Congress

provides an adequate and effective alternative to

habeas. The MCA passes that test.

8

A substitution to habeas relief avoids Suspension

Clause questions if it is adequate and effective “to

test the legality of a person’s detention.” Swain, 430

U.S. at 381; Hayman, 342 U.S. at 223. In Swain,

Congress enacted D.C. Code § 23-110 (1970), which

directed a prisoner under the sentence of a D.C.

Superior Court to seek habeas type relief in the

District of Columbia’s courts instead of Article III

courts. Swain, 430 U.S. at 374. A prisoner

challenged the statute as an _ unconstitutional

suspension of the writ of habeas corpus. Jd. at 379.

The prisoner argued that any substitution remedy

“not ‘exactly commensurate with habeas relief

available in a [federal] district court is a suspension

of the writ,” and, since judges in the D.C. Superior

Courts do not enjoy life tenure and salary protection

as federal district court judges enjoy, the prisoner

argued that § 23-110 was not exactly commensurate.

Id.

The Court rejected an “exactly commensurate’

standard in testing the adequacy of § 23-110.

Instead, the fact that D.C. Superior Court judges do

not have life tenure or salary protection was no

problem because, as the Court emphasized, state

court judges are still presumed to be competent

officials. Jd. at 382-83 & n.18. In the instant

matter, Congress has deemed military judges

overseeing the Combatant Status Review Tribunals

(“CSRTs”) to be competent to test the legality of

Petitioners’ detention.? Yet, in any event, the MCA

2The CSRTs are working. According to a recent release, “[a]ll

detainees at Guantanamo Bay have been through the CSRT

process, and dozens have been found to [no] longer be enemy

combatants and released or transferred to their home

9

allows for review of CSRT determinations in an

Article II] court—the United States Circuit Court of

Appeals for the District of Columbia Circuit. See

MCA § 950(g), 120 Stat. at 2622.

The adequacy of an alternative to habeas is also a

matter of scope. See Swain, 430 U.S. at 381-82. A

key error in Judge Rogers’ dissenting opinion below

on this issue is that she misunderstood the proper

scope of habeas corpus review of military tribunal

decisions. See Boumediene v. Bush, 476 F.3d 981,

1004-06 (D.C. Circuit 2007), cert. granted, 127 S. Ct.

3078 (June 29, 2007) (No. 06-1195) (Rogers, J.,

dissenting). She characterized the scope of habeas

review as being broad, a “careful consideration and

plenary processing of their claims.” /d at 1005

(quoting Harris v. Nelson, 394 U.S. 286, 298 (1969)).

Quite the opposite is true. The historic scope of

habeas review of military tribunals “is of most

limited scope,” inquiring “only whether the military

tribunal was !-gally constituted, and whether it had

jurisdiction to impose punishment for the conduct

charged.” Eisentrager, 339 U.S. at 797 (Black, J.,

dissenting) (emphasis added) (relying on Jn re

Yamashita, 327 U.S. 1 (1946)); see also Ex Parte

Quirin, 317 U.S. 1, 25 (1942). Despite che limited

scope required of habeas review of military tribunals

in the past, the DTA and MCA significantly expand

the scope of review for detainees at Guantanamo.

See DTA §§ 1005(a), (e)(2), 119 Stat. at 2740-42

(providing, for example, annual reviews of detention,

countries.” Press Release, Fred W. Baker III, Am. Forces Press

Serv., Dep't Releases Audio Recording of 9/11 Mastermind’s

Tribuna! (Sept. 13, 2007), available at http‘//www.defenselink.

mil/news/newsarticle.aspx?id=47437.

10

periodic examination for any new relevant evidence,

and review by the United States Court of Appeals for

the D.C. Circuit). As such, Petitioners have little to

complain about in that regard.

Congress has provided an adequate and effective

alternative to habeas in the DTA and MCA. And,

affirming this alternative avoids deciding

unnecessary and problematic constitutional issues.

The Court should dispose of Petitioners’ claims

accordingly.

Il. EVEN BRITISH COURTS WOULD NOT ISSUE

THE GREAT WRIT TO ENEMY ALIENS

INTERNED IN WARTIME

In the Judiciary Act of 1789, Congress authorized

federal courts to issue writs of habeas corpus. As

such, this Court has concluded that the Suspension

Clause protects the writ “as it existed in 1789.” JNS

v. St. Cyr, 533 U.S. 289, 301 (2001). For an

understanding of the common law writ, British

sources have been discussed at length. See, e.g.,

Rasul, 542 U.S. at 481-82; id. at 502-04 (Scalia, J.,

dissenting). The Amicus Brief submitted by the

Commonwealth Lawyers Association in support of

Petitioners in this matter cites to a number of

sources which actually buttress rather than harm

Respondents’ case. See Br. for the Commonwealth

Lawyers Ass’n as Amicus Curiae in Support of the

Pet’rs at 8 n.19, Boumediene v. Bush, No. 06-1195,

cert. granted, 127 S. Ct. 3078 (June 29, 2007)

{hereafter Commonwealth Brief]. Among the sources

relied upon by the Commonwealth Lawyers

Association is a book by Sir Arnold Duncan McNair.

11

Id. (citing Sir Arnold Duncan McNair, Jnternational

Law Opinions (hereafter Opinions] (The University

Press 1956)). The McNair book notes the following

concerning British law: “[A] prisoner of war is not

entitled to this writ [i.e., a writ of habeas corpus].”

McNair, Opinions at 106. That observation, in turn,

cites to another book by Lord McNair. See McNair,

Legal Effects of War (hereafter War] 54-60 (2d ed.

1944). In this latter source, Lord McNair cites

English cases in the 18th and 19th centuries for the

proposition that detained prisoners of war are “not

entitled to a writ of habeas corpus.” /d. at 56. He

continues: “Although internment *** does not

destroy the alien enemy’s normal procedural

capacity, there is one remedy previously referred to

which is denied to an alien enemy when interned,

namely, the writ of habeas corpus.” Id. at 59

(emphasis added). Lord McNair also notes “that

persons, of whatever nationality and wherever they

may be, who are in the military or civilian

employment of the enemy would be debarred from

suing in an English court.” Jd at 61 (emphasis

added).

Since Lord McNair is drawing on such early

sources, he uses the phrase “prisoner of war” in its

common historical understanding, i.e., a person

taken captive and detained pursuant to armed

hostilities, rather than in the more technical, narrow

understanding from the Third Geneva Convention of

1949. See GC III art. 4. Notably, Lord McNair cites

the case of R&R. v. Schiever, 2 Burr. 765 (1759). See

McNair, War at 56. In Schiever, “the writ was

denied to the subject of a neutral State captured

upon an enemy ship and then held as a prisoner of

12

war, though he contended that he had been forced to

serve on the enemy ship.” Id. Many of the detainees

at Guantanamo Bay make similar claims about

being innocent bystanders or being impressed

against their will into some service. Nevertheless,

according to Lord McNair’s usage of the phrase, the

detainees at Guantanamo Bay—ypersons detained

and incarcerated pursuant to hostilities directed

against the armed forces of the United States—

would surely qualify as prisoners of war under such

a definition. As such, they, too, as war internees,

would be denied the writ of habeas corpus under

British law. Even the Commonwealth Lawyers’ brief

seems to understand this. See Commonwealth Brief

at 10, n.21 (qualifying its conclusion that the Great

Writ would issue in a British court on the

assumption that petitioners are not “enemy aliens”’).

Further, the fact that the United States Government

refers to the captives at Guantanamo Bay as

“detainees” instead of as prisoners of war results

from a conscious decision by United States officials

to use the definition of Prisoners of War as defined

in Article 4 of the Third Geneva Convention of 1949.

3The issue regarding enemy aliens is important, since

petitioners are nationals of countries at peace with the United

States. Yet, the common presumption that nationals of friendly

countries are friendly is, at most, a rebuttable presumption.

When a foreign national’s actions constitute hostile acts

directed against the United States, surely the United States is

no longer bound by the legal presumption that such persons are

“friendly.” Their hostile acts belie such presumed friendship.

To expect otherwise is to elevate form over substance.

Petitioners’ nationalities are irrelevant when their actions are

hostile—it is their actions which define them as enemy aliens,

irrespective of their nationalities.

13

As such, any differences between American and

British law on this matter concerning the

Guantanamo Bay detainees seem to rest on

semantics. The Guantanamo Bay detainees fully

qualify as “prisoners of war” under Lord McNair’s

definition even as they fail to do so under the

narrower definition laid out in Article 4 of the Third

Geneva Convention. Yet, as Lord McNair points out,

historically, it is the more general definition that

British courts would have applied when disallowing

the Great Writ.

The term Prisoners of War in the Third Geneva

Convention is very specific and is to be used to

determine which combatants may avail themselves

of the many protections laid out in the Third

Convention. The term was never meant to

determine that combatants failing to meet the

standards of conduct expected by the Conventions

could, as a result of their greater lawlessness,

thereby qualify for greater legal rights and privileges

than those who did comply. Even to suggest such a

thing is patently absurd. Those who do not meet the

Article 4 criteria are not entitled to the Third

Convention’s protections. That does not mean,

however, that those same persons, when interned,

are not prisoners of war in the sense described by

Lord McNair and, hence, precluded under British

law from seeking a writ of habeas corpus in a British

court. They should also be denied access to the Great

Writ by American courts in such circumstances.

14

IILIN ITS HAMDAN DECISION, THIS COURT

ERRED IN CONCLUDING THAT THE

GENEVA CONFERENCE OF 1949 INTENDED

COMMON ARTICLE 3 TO APPLY TO

PERSONS LIKE PETITIONERS

In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006),

this Court concluded that Common Article 3 of the

1949 Geneva Conventions applies to detainees

currently held at Guantanamo Bay, Cuba. /d. at

2796. The Court based its conclusion on the “literal

meaning” of the phrase “not of an international

character,” id. at 2795-96, and the statement in the

ICRC Commentary that “the scope of the Article

must be as wide as possible,” sd. at 2796.

The Court’s conclusion seriously misinterprets

what the High Contracting Parties actually agreed

to when negotiating Common Article 3. See

generally The Diplomatic Conference of Geneva of

1949, Geneva, Switz., April 26-Aug. 12, 1949, 2B

Final Record (hereafter Final Record] at 9-16, 26, 27,

34, 35, 36°37, 38, 40-50, 76-79, 82-84, 90, 93-95, 97-

104, 107, 120-127, 129, 157, 165, 171, 189, 325-339

(2004) (discussing the issues surrounding the

adoption of Common Article 3); see also Robert W.

Ash, Square Pegs and Round Holes: Al-Qaeda

Detainees and Common Article 3, _ Ind. Int &

Comp. L. Rev. _, _ (2007) (forthcoming)

(summarizing how Common Article 3 was adopted,

what the High Contracting Parties intended Article

3 to accomplish, and how Article 3 is currently being

misapplied); G.I.A.D. Draper, The Status of

Combatants and the Question of Guerilla Warfare,

45 Brit. Y.B. Int'l L. 173, 210 (1971) (noting that,

15

because Article 3 “was a pioneer provision in a

multilateral convention restricting States in their

manner of quelling internal rebellion,” “it was

accepted with difficulty and considerable caution’

(emphasis added)).

Further, the Court’s reliance on the ICRC quote

about Article 3’s “wide scope” is misplaced and fails

to take into account the following: (1) that the ICRC

is an advocacy organization with its own views and

agenda, see, e.g., GC III cmt. at 36 (“Does this mean

that Article 3 is not applicable in cases where armed

strife breaks out in a country, but does not fulfill any

of the above conditions? We f.e., ICRC] do not

subscribe to that view. We fi.e., ICRC/ think, on the

contrary, that the scope of application of the Article

must be as wide as possible.” (emphasis added)); GC

IV cmt. at 23 (“That may not be a strictly legal

interpretation; it does not altogether follow the text

itself; but it is in our fi.e., ICRC’s/ opinion the only

honourable and reasonable solution.” (emphasis

added)); GC IV cmt. at 27 (noting that the ICRC

encounters obstacles “as a/ways when endeavoring

to go a step beyond the text of the Conventions’

(emphasis added)); see a/so Derek Jinks, September

11 and the Laws of War, 28 Yale J. Int'l L. 1, 24

(2003) (noting that ICRC Commentaries’

“interpretive propositions are themselves fraught

with ambiguities”); (®) that the ICRC, as a non-State

actor, was not—and, indeed, could not be—a High

Contracting Party to the 1949 Conventions and, as

such, could not, and did not, vote on the wording or

meaning of any provision of the 1949 Conventions,

see 2B Final Record at 336 (ICRC representative

admitted that the meaning and reach of Article 3 fell

16

“within the exclusive competence of governments”);

and (3) that the ICRC admits that questions of

interpretation of individual articles of the

Conventions must be answered by the respective

High Contracting Parties, not the ICRC, see, e.g,

GC III cmt. foreword (“The Committee, moreover,

whenever called upon for an opinion of a provision of

an international Convention, always takes care to

emphasize that only the participant States are

qualified, through consultation between themselves,

to give an official and, as it were, authentic

interpretation of an intergovernmental treaty.”

(emphasis added)).

The implications of this Court’s erroneous

interpretation of Article 3 are far-reaching. This

Court’s Hamdan decision has wrongly required the

United States Government to assume international

treaty obligations to which the United States had

never agreed at Geneva in 1949. Further, by its

decision, this Court has, in effect, compelled the

Government to cede _ sovereign rights and

prerogatives concerning treatment of unlawful

combatants which the political branches had meant

to retain. Since decisions which cede sovereign

rights and prerogatives are political decisions, this

Court improperly arrogated to itself authority

reserved in the Constitution to the political

branches, thereby violating separation of powers.

Powell v. McCormack, 395 U.S. 486, 518 (1969) (“It

is well established that the federal courts will not

adjudicate political questions.”); Baker v. Carr, 369

U.S. 186, 210 (1962) (The “nonjusticiability of a

political question is primarily a function of the

separation of powers.”). As such, this Court should

17

reverse its prior decision regarding the meaning and

reach of Article 3.

A. Separation of Powers Requires that Courts

Proceed Cautiously in Interpreting Treaties to

Avoid Interfering with Powers Accorded by

the Constitution Solely to the Political

Branches and to Avoid Inadvertently Ceding

Sovereign Rights and Prerogatives

Consistent with the principle of separation of

powers, the Constitution of the United States

distributes to each of the three branches of the

federal government authority regarding treaties.

The Constitution accords to the Executive Branch

the authority to negotiate treaties or. behalf of the

United States. U.S. Const. art. I], § 2, cl. 2. The

Constitution accords to the United States Senate the

responsibility to give its advice and consent to

treaties submitted to it by the President for

ratification. Jd. The Judiciary, in turn, has the

responsibility to interpret such treaties, once

ratified. See, e:g., Sullivan v. Kidd, 254 U.S. 433,

442 (1921) (noting that “construction of treaties is

judicial in its nature”).

One must keep in mind that treaties—as

agreements between and among sovereign powers—

implicate the sovereign rights of the High

Contracting Parties thereto. As such, in order to

avoid inadvertently ceding sovereign rights and

prerogatives meant to be protected and retained, any

United States court interpreting the meaning and

reach of a treaty must diligently endeavor to

discover specifically what the United States and its

18

treaty partners actually sought to achieve as well as

what they actually agreed to be bound by. That is

especially true when the treaty concerns matters

relating to war and national security. See, e.g., Haig

v. Agee, 453 U.S. 280, 307 (1981) (citing Aptheker v.

Sec’y of State, 378 U.S. 500, 509 (1964) (noting as

“obvious and unarguable” that there is no

governmental interest more compelling than security

of the Nation)). See also Hirabayashi v. United

States, 320 U.S. 81, 93 (1943) (noting that “/w/here

*** the conditions call for the exercise of judgment

and discretion and for the choice of means by those

branches of the Government on which the

Constitution has placed the responsibility for war-

making, it is not for any court to sit in review of the

wisdom of their action or substitute its judgment for

theirs.” (emphasis added)). Surely, negotiating the

terms of a convention on how to modify the law of

war is such an instance.

Moreover, as with domestic legislation, a treaty’s

terms result from the give-and-take of the parties

involved in negotiating them. Hence, despite the

noblest of goals and intentions, parties to a treaty

may be forced to pursue their ultimate goals by

means of a series of small steps rather than by one

giant step. Such was the case with Common Article

3. See, eg., 2B Final Record at 335 (“On the one

hand *** we are told that [Article 3] does not go far

enough, while on the other *** it is said it goes much

too far. These two criticisms compensate each other.

And to those who complain that the suggested

solution does not go far eneugh, there is a pertinent

reply: Half a loaf is better than no bread.” (emphasis

added)); id. (describing Article 3 as a “comparatively

19

modest” achievement); Jinks, September 11, 28 Yale

J. Intl L. at 20 (noting that evidence exists

“suggestling] that Common Article 3 applies only to

civil wars” and that “textual ambiguity in the

provision raises some questions about whether

[Article 3] applies to transnational armed conflict”).

Because of the stakes involved (e.g., issues of

national sovereignty and considerations of national

reputation for good faith adherence to international

agreements), when interpreting a treaty, a court

should employ additional safeguards to ensure that

the treaty’s terms are carried out in good faith. Good

faith implementation, however, does not require that

a nation go beyond the terms it has agreed to, end no

United States court has legitimate authority to

compel such a result.

B. Judicial Standard for Interpreting Treaties

The judicial standard for interpreting treaties is

well-settled in the United States. This Court noted

in Air France v. Saks, 470 U.S. 392 (1985), that

United States courts have a responsibility to read a

treaty in a manner “consistent with the shared

expectations of the contracting parties.” Id. at 399

(emphasis added) (citing Reed v. Wiser, 555 F.2d

1079, 1090 (2d Cir.), cert. denied, 434 U.S. 922

(1977)); see also Sumitomo Shoji Am., Inc. v.

Avagliano, 457 U.S. 176, 185 (1982) (noting that in

interpreting a treaty a court’s “role is limited to

giving effect to the intent of the treaty parties”);

Chew Heong v. United States, 112 U.S. 536, 540

(1884) (noting that treaties are to be interpreted

“according to the intention of the contracting

20

parties”). Determining the intent of treaty partners

and ensuring that treaties are faithfully

implemented require judicial diligence and a look

beyond the text to the drafting history of the treaty

(to the so-called travaux preparatoires). Yet,

determining the parties’ intent and ensuring faithful

implementation necessarily exclude judicial

alteration of a treaty’s terms and reach:

[Tlo alter, amend, or add to any treaty, by

inserting any clause, whether small or great,

important or trivial, would be on our part an

usurpation of power, and not an exercise of

judicial functions. It would be to make, and

not to construe a treaty. Neither can this

Court supply a casus omissus In a treaty, any

more than in a law. We are to find out the

intention of the parties by just rules of

interpretation applied to subject matter; and

having found that, our duty is to follow it as

far as it goes, and to stop where that stops—

whatever may be the imperfections or

difficulties which it leaves behind.

Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 135

(1989) (alteration in original) (emphasis added)

(quoting Zhe Amiable Isabella, 19 U.S. (6 Wheat.) 1,

71 (1821)).

Going beyond the four corners of the treaty is

key. “Because a treaty ratified by the United States

is not only the law of this land *** but also an

agreement among sovereign powers, we have

traditionally considered as aids to its interpretation

the negotiating and drafting history ****” El Al Isr.

21

Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167

(1999) (emphasis added) (quoting Zicherman v.

Korean Airlines, Ltd., 516 U.S. 217, 226 (1996)).

That should be especially true of Common Article 3

where multiple understandings of its terms are

possible. See, e.g., GC III cmt. at 35 (admitting that

the phrase “armed conflict not of an international

character” is “vague”); Jinks, September 11, 28 Yale

J. Intl L. at 38-41 (noting three plausible

understandings of the phrase “armed conflict not of

an international character”); Nathan A. Canestaro,

“Small Wars” and the Law: Options for Prosecuting

the Insurgents in Iraq, 43 Colum. J. Transnat’] L. 73,

94 (2004) (noting that the “precise meaning” of

“armed conflict not of an international character’ is

unclear”); Tom Farer, Humanitarian Law and

Armed Conflicts’ Toward the Definition of

“International Armed Conflict,” 71 Colum. L. Rev.

37, 43 (1971) (“One of the most assured things ***

about the words ‘armed conflict not of an

international character is that no one can say with

assurance precisely what meaning they were

intended to convey.”).

Additionally, treaties are negotiated by diplomats

speaking different languages. This periodically leads

to misunderstandings. Even speaking a common

language is no guarantee that misunderstandings

will not occur. As George Bernard Shaw famously

quipped: “England and America are two countries

separated by a common language.” See Oxford

4Winston Churchill cited an historical example to corroborate

Shaw’s famous quip. Churchill related the following

concerning an incident between the British and American

Chiefs of Staff during World War II:

22

Dictionary of Political Quotations 337 (Antony Jay

ed., 1996). One can multiply the chances for

misunderstanding when non-native speakers begin

considering English terms for treaties, just as one

can safely assume the same in reverse when non-

native speakers of other languages attempt to

express themselves in those languages. Hence,

confining one’s analysis to the four corners of the

treaty can lead to erroneous interpretations—as

occurred here. Reviewing the treaty’s text in its

context by examining the treaty’s drafting history

(the travaux preparatoires) is essential to ferret out

what was actually agreed to. That did not occur in

the Hamdan case and helps explain why the Court

erred in its interpretation of the meaning and reach

of Common Article 3.

The enjoyment of a common language was of course

a supreme advantage in all British and American

discussions. The delays and _ often partial

misunderstandings which occur when interpreters are

used were avoided. There were however differences of

expression, which in the early days led to an amusing

incident. The British Staff prepared a paper which

they wished to raise as a matter of urgency, and

informed their American colleagues that they wished to

“table it.” To the American Staff “tabling” a paper

meant putting it away in a drawer and forgetting it. A

long and even acrimonious argument ensued before

both parties realised [sic] that they were agreed on the

merits and wanted the same thing.

Winston S. Churchill, The Grand Alliance 688 (1951).

23

C. Even a Cursory Review of the Final Record of

the Geneva Conference of 1949 Clearly

Demonstrates that the Majority of

Delegations Intended Common Article 3 to

Apply to Serious Internal Conflicts Like Civil

Wars and to Nothing Else

At the 1949 Geneva Conference, the ICRC

presented the following text (known as _ the

“Stockholm Draft”) to the delegates for their

consideration:

In all cases of armed contlict which are not of

an international character, especially cases of

civil war, colonial conflicts, or wars of religion,

which may occur in the territory of one or

more of the High Contracting Parties ****

GC III cmt. at 31 (emphasis added). The proposed

text proved to be very controversial:

From the very outset, divergences of views

became apparent. A considerable number of

delegations were opposed, if not to any and

every provision in regard to civil war, at any

rate to the unqualified application of the

Convention to such conflicts**** It was said

that [the proposal] would cover all forms of

insurrections, rebellion, and the break-up of

States, and even plain brigandage**** To

compel the Government of a State in the

throes of internal conflict to apply to such a

conflict the whole of the provisions of a

Convention expressly concluded to cover the

24

case of war would mean giving its enemies,

who might be no more than a handful of rebels

or common brigands, the _ status. of

belligerents, and possibly even a certain

degree of legal recognition.

Id. at 32 (emphasis added). At the Plenary Meeting

on April 26, 1949, the articles common to all four

conventions (which included Article 35) were referred

to the committee known as the “Joint Committee.”

2B Final Record at 128. At the very first meeting of

the Joint Committee to consider extending legal

protections to victims of non-international conflicts,

the Stockholm Draft’s call for applying the

Conventions’ provisions to “a// cases of armed

conflict which are not of an international character”

elicited a number of concerns. See, e.g., id. at 10

(noting that applying international protections “to

civil war would strike at the root of national

sovereignty and endanger national security ****”

(emphasis added)). Ultimately, because the language

was so controversial, a separate, Special Committee

was formed to deal specifically with Article 3.

Because of delegates’ concerns about the breadth

of the Stockholm proposal, the Specia/ Committee

decided to abandon the Stockholm Janguage—to wit,

that the Convention would apply “in a// cases of

armed conflict which are not of an international

character,” see GC III cmt. at 31 (emphasis added)—

and to define more clearly to which cases of armed

5Note that Common Article 3 was initially paragraph 4 of

Article 2. 2A Final Record at 128. It then was redesignated as

Article 2A, id. at 129, before ultimately becoming Article 3.

25

conflict not of an international character the

Conventions should apply.

Throughout their discussions, the concerns of the

various delegations centered solely on civil wars and

other significant interna/ conflicts, such as

insurgencies and rebellions. See, e.g, 2B Final

Record at 10, 13. No delegation anticipated any type

of conflict like the ongoing Global War on Terror

(GWOT). As a result, all discussions centered on civil

wars and similar internal conflicts. It stretches

credulity to the breaking point to conclude that

delegates knowingly agreed that Article 3 was to

apply to situations which they neither anticipated

nor discussed. The language in the Joint Committee

report to the Plenary Committee confirms this view.

Following many weeks of meetings and

discussion, the Joint Committee delivered its report

to the Plenary Committee for consideration by all

delegations to the Conference. The portion of its

report concerning Common Article 3 read, in

pertinent part, as follows:

In the Stockholm Draft, the fourth

paragraph of Article 2 [what ultimately

became Common Article 3]® stipulated that, in

all cases of armed conflict not of an

international character, each of the Parties to

the conflict should be bound to implement the

provisions of the Conventions.

At the present Conference, the question

immediately arose of deciding what was to be

understood by “armed conflict not of an

international character which may occur in

6See supra note 5.

26

the territory of one of the High Contracting

Parties.” Jt was clear that this referred to

civil war, and not to a mere riot or

disturbances caused by bandits. States could

not be obliged as soon as rebellion arose

within their frontiers, to consider the rebels as

regular belligerents to whose benefit the

Conventions had to be applied. But at what

point should the suppression of the rising be

regarded as a civil war? ****

2B Final Record at 129 (emphasis added). Nowhere

in the Final Record is there any indication that any

other types of conflict were considered other than

serious domestic conflicts. Moreover, the delegates

had consciously and intentionally removed the term

“all” from the phrase proposed at Stockholm, “In a//

cases of armed conflict which are not of an

international character ****” See id. at 45. They

adopted the following phrasing instead:

In the case of an armed conflict not of an

international character occurring in the

territory of one of the High Contracting

Parties, each Party to the conflict shall be

bound to apply, as a minimun, the following

provisions ****

See, e.g., GC Ill art. 3. Moreover, throughout the

process, the majority of delegates to the 1949

Conference sought to narrow the reach of Article 3,

not expand it. See, e.g, GC III cmt. at 30 (moting

even before the Geneva Conference began that

“[tIhere was reason to fear that there might be

objections to the idea of imposing international

“"

*

27

obligations on States in connection with their

internal affairs ****” (emphasis added)); id. at 31

(noting that the proposal of the Government Experts

in 1947 “fell a long way short of that of the Red

Cross Societies”); 2B Final Record at 335-36 (noting

that the ICRC “was aware from the outset *** that

the original text *** had no chance whatsoever of

being adopted by Governments ****”), Hence, the

issue of Article 3’s alleged “wide scope” merely

reflects the aspirations of the ICRC, a non-party to

the Conference. As a non-party, the ICRC had no

authority to decide either the text or the meaning of

any single article in any of the four Geneva

Conventions adopted in 1949. Relying on the ICRC

comment that Article 3 was meant to be applied

broadly, therefore, is like relying on Al Gore’s

assessment of President Bush’s views on global

warming— it simply cannot be taken at face value.

Civil wars, insurrections, rebellions, and the like

are serious armed conflicts occurring within one

country. This concept fully comports with Article 3’s

current language: “In the case of armed conflict not

of an international character occurring in the

territory of one of the High Contracting Parties ****”

See, e.g., GC III art. 3 (emphasis added); see also GC

II cmt. at 33 (noting that Article 3 applies to conflicts

“similar to international war, but [which] take place

within the confines of a single country’ (emphasis

added)). Hence, it is fully reasonable that the

language adopted by the High Contracting Parties in

Geneva was meant to limit Article 3’s reach to civil

wars and the like and to exclude any type of conflict

similar to today’s conflict with al-Qaeda and other

global terrorist groups. To conclude that Article 3

28

was meant to apply to such broader conflicts

contradicts both the language and the negotiating

history of Article 3 and is clearly erroneous. Thus,

this Court should revisit this matter and correct its

error by reversing its decision in Hamdan that

Common Article 3 applies to detainees at

Guantanamo Bay Naval Base in Cuba.

CONCLUSION

In light of the foregoing, Amicus Curiae The

American Center for Law and Justice respectfully

urges this Court to uphold the validity of the

Military Commissions Act, to allow military

commissions to proceed unhindered and as directed

by the Congress, and to reverse its erroneous

interpretation of Common Article 3.

October 9, 2007 Respectfully submitted,

JAY ALAN SEKULOW

(Counsel of Record)

STUART J. ROTH

ROBERT W. ASH

BENJAMIN P. SISNEY

AMERICAN CENTER FOR

LAW & JUSTICE

201 MARYLAND AVE., N.E.

WASHINGTON, DC 20002

(202) 546-8890

(202) 546-9309 (Fax)

Attorneys for Amicus Curiae