Amicus Curiae Brief — Boumediene v. Bush
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\e FILED
AUG 2 4 2007
62) OFFICE OF THE CLEAK
SUPREME COURT, U.S.
Nos. 06-1195 & 06-1196
Jn 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, ET AL., Respondents.
On Writs of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit
BRIEF AMICUS CURIAE OF
NATIONAL INSTITUTE OF MILITARY JUSTICE
IN SUPPORT OF PETITIONERS
STEPHEN A. SALTZBURG JENNIFER S. MARTINEZ
GEORGE WASHINGTON Counsel of Record
UNIVERSITY LAW SCHOOL STANFORD LAW SCHOOL
2000 H Street, NW 559 Nathan Abbott Way
Washington, DC 20052 Stanford, CA 94305
(202) 994-7098 (650) 725-2749
AKNON D. SIEGEL RONALD W. MEISTER
ERICA L. HOVANI COWAN Linpowittz & LATMA P.C
DeECHERT LLP 1133 Avenue of the Americas
1775 | Street, NW New York, NY 10036
Washington, DC 20006 (212) 790-9200
(202) 261-3300
August 24, 2007 Counsel for Amicus Curiae
TABLE OF CONTENTS
Page
SED GI PUP MI III cccscccssinssscnsovnasnonsinonicsosnnsinnnse iil
INTEREST OF THE AMICUS CURIAE ........0.cccccceceeeees |
SUMMARY OF ARGUMENT .............0....cccsscccsesoocesereosees 2
GEES SI NS EE ANE ES ae oP oe OOD See 3
1. THE LAW OF WAR PROVIDES
APPLICABLE STANDARDS FOR JUDGING
THE LEGALITY OF PETITIONERS’
BES BEES BUEN ccccsccccescosesecees puinienddipidanuniamtbaicbenseiinns 3
A. Military law guarantees fair procedures
to classify detainees in accordance with
RRO ISS HAA eee ea 3
B. This Court has traditionally used the law of
war to inform its interpretation of
congressional statutes related to armed
conflict and the scope of executive war
TT hatciirbinediinnacneitiimdiondteiindeatctintiinissatihdticienowinised 8
Il. PETITIONERS’ DETENTION IS NOT
AUTHORIZED BY THE LAW OF WAR............ 1]
A. The procedures used by the CSRTs do not
comport with the law of war ..........000. ccccececeeee. Il
B. The CSRTs used a definition of “combatant”
that is inconsistent with the law of war............ 14
1. The law of war distinguishes between
“combatants” and “civilians” .........00..00006 15
2. This Court's decisions have rested upon
a narrow definition of “combatant” that
is consistent with the law of war ..............+. 22
(il. THE GOVERNMENT’S DEPARTURE FROM
THE LAW OF WAR ENDANGERS
AMERICAN SOLDERS AND CIVILIANG.......... 24
A. The CSRTs’ broad definition of the term
“combatant” erodes the most fundamental
distinction in the law of waf................ccccccceeeee- 24
B. The CSRTs’ broad redefinition of the term
“combatant” erodes fundamental liberties....... 27
C. The Government’s disregard for the law of
war endangers American soldiers and
SITTIN sntiisticnsscsicideniictvencinnissciinnniibieaiigtiidteriatinnduieiniall 28
TNE istpitdctimnenicnicnnuinasititincnatetinnniesiousninaibbinaiaa 30
TABLE OF AUTHORITIES
Page(s)
CASES
al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007)............. 20
. Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800) ooo eee 10
Boumediene v. Bush, 476 F.3d 981
a A I senda lihieinesitishninattisentiiinitaléebosiouuneiie 2, 3, 14
Brown v. United States,
Fe Grams Ge GUNED BU CEB EG) oa csnsecsucccesencccceesvecesssssvers 9
Clinton v. Goldsmith, 526 U.S. 529 (1999) ceccsseesseesense |
Duncan v. Kahanamoku, 327 U.S. 304 (1946) .....cccccccceeee 26
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)............. 23-24
Ex parte Ouirin, re) SE. . Scions passim
Dione v. Shevin, 407 U.S. 67 (1972)... cccccccecccceseeeceees 13
Gratiot v. United States, 45 U.S. (4 How.) 80 (1846) ........ 5
In re Guantanamo Detainee Cases,
355 F. Supp. 2d 443 (D.D.C. 2005),
vacated sub nom. Boumediene v. Bush,
te ET od A) ) passim
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) .......... 1, 9, 20
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..........cc005. passim
Rasul v. Bush, 542 U.S. 466 (2004)..........cccccesseeeseeseceeees 1,4
Service v. Dulles, 354 U.S. 363 (1957) ....cccccccccscecseserseeeeee 8
Talbot v. Seeman, § U.S. (1 Cranch) 1 (1801) scsssscssssssssse 10
The Prize Cases, 67 U.S. (2 Black) 635 (1863) -....c.scsses0e-0 9
STATUTES, REGULATIONS, AND
MILITARY AUTHORITIES
PEP EAA © TEED ‘cocsssnceneiehuninanpeninenetidinensliantiiasibiaginaaainna 5
FS SAL... BOO OE stcssrrdiserisinuninstingutsinninidiaalaal 27
SPF Es © Penn sctenctineienienncinsiiintamnaicitnniiicaiiie 9
DE Comite, Gaaee. Fie BGP ce cenecsevensesescrsstwtscceessseinannanin 28
Army Regulation 190-8, Enemy Prisoners of War,
Retained Personnel, Civilian Internees and
Sr ee Ce Dicer tetttitideinilinitcendonipiatindsiins passim
Authorization for Use of Military Force,
Pub. L. No. 107-40, 115 Stat. 224 (2001) ......... 9, 10,14
Deputy Secretary of Defense, Order Establishing
Combatant Status Review Tribunal
GEREN (op. ce TITOED cncsiceisnedecsevemnianidsehdiicieiiaaiaieaninaliae 12, 15
Secretary of the Navy, /mplementation of Combatant Status
Review Tribunal Procedures for Enemy Combatants
Detained at Guantanamo Bay Naval Base, Cuba
COREY a GEE iccricicincpisccuichidinciientuiiamisigaiaamaae 12, 13
iV
Uniform Code of Military Justice, 10 U.S.C. §§ 801 ef seq.:
ER Tee 4
NE Re TO 4
I i 9
United States Air Force Regulation AFJI 31-304............... 5
United States Army Central Command Regulation 27-13 . 6
United States Dep’t of the Army, Field Manual on
the Law of Land Warfare,
FM 27-10 (1956) ------------------------------- 5,17, 19, 25
United States Dep’t of the Army, Operational
Law Handbook (2004) 00........c.cccccccceeeseeeeeeeees 6, 16-17, 25
United States Dep’t of the Navy, The Commander's
Handbook on the Law of Naval Operations (1995)........ >
United States Marine Corps Regulation MCO 3461.1 ....... 5
United States Military Assistance Command
for Vietnam, Directive No. 20-5 (Mar. 15, 1968,
amended, Sept. 21, 1966), reprinted in
Contemporary Practice of the United States Relating
to International Law, 62 AM. J. INT’LL. 754 (1968)...... 7
United States Military Assistance Command
for Vietnam, Directive No. 381-46, Annex A
(Dec. 27, 1967), reprinted in Contemporary Practice
of the United States Relating to International Law,
ee 6-7
United States Navy Regulation OPNAVINST 3461.6)...... 5
TREATIES AND OTHER INTERNATIONAL SOURCES
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 et seq.:
Sig Up uitasdschcaacinticnipctinimnbicesenninsncensciennitamphatiatapbetendiinniilals 17
SIDE. I ctsttiiene eenghiecabcaaiesteitbimncnsintepsencicstiiipimmiaeaicaiduliin 12
GAIN, FP snniestcstentintansennageasncscitipasituanianticianiteigipiiepidasisiidadiilian 16
NT Ti ncancartiinreapiecertntuiigitecicsenntinnsinesetapmessibicmimintiiaiaadical 4,9
GR BE siteecinrestnennse-wttscntcnnnicntbiigbinnninsiteieiaminimmaade 12
FID FFF stcinnin tienes: wimeteprniadinnssstentisaptimntbicsniuniiueanidinhiae 22
Geneva Convention [IV] Relative to the Protection of
Civilian
Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516,
75 U.N.T.S. 287 et seq.:
Fela Ticetisinssrineaheenpespanincntasiinnicementncnsitigengpitaiiniaiasiain 16, 19
SIRS aie ditesinaiceasivtitvianinisepicninneastmnuannjeiinmniadaidaial 19
aA srerivustpsansottntpentetediemmsannpuibepmeiniiaenpenieaneiiaiain 19
Fes Tae ateciiniincsiapscentverensvingssenscnnnasepnianiiioeinmmniniiniadiedian 24
AER, FB sniccccnctantscanessaintotgeseavissensninnaitteatnniiibininiiiciidas 19
Hague Convention [IV] Respecting the Laws
and Customs of War on Land and Regulations
Annexed Thereto, Oct. 18, 1907, 36 Stat. 2277............ 25
Int’! Comm. of the Red Cross, Commentary on the
Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (Claude Pilloud
i cieinieistitsictiacatednsniihieniindbinitintanlidaatesiiin 18, 24
Int’! Comm. of the Red Cross, Commentary to the
[IV Geneva Convention (Jean S. Pictet ed. 1958)...... 8, 16
vi
ey
Protocol Additional [I] to the Geneva Conventions of
Aug. 12, 1949, and Relating to the Protection of Victims
of International .4rmed Conflicts, June 8, 1977, 1125
U.N.T.S. 3, 16 1.L.M. 1391 et seq.:
gE SER ERA an ae ne 16, 23
ree tatieeitinithindiociaetcinsliashblpaicduisdseintihinditnpiinaposiaasbiiaiianiale 23
FE en ee TE mT 16
STIPE Gish diciainnastshniniabpnappnnintaliaepethinndadtesiaiiipetinmisdgpeasuaal 17, 25
nN sbtaibbehnitvesatbdbesasdeiiaianbearecninesbebeimatneattinaiiggeaaiiindiaieg 24
Sit itetaletinteniciieatilaiiinisnenataisiiiaahaaticattaectaiigiinieinnitihtalibains 19
Protocol Additional [II] to the Geneva Conventions of
Aug. 12, 1949, and Relating to the Protection of Victims
of Non-International Armed Conflicts, June 8, 1977,
1125 U.N.T.S. 609, 16 1.L.M. 1442 ef seq.:
I i 17, 19, 25
Reservations by the United Kingdom to Art. 1,
para. 4 & art. 96, para. 3 of Additional Protocol I
(Dec. 12, 1977), available at www.icrc.org/ihL.nsf ...... 21
U.N.S.C. Res. 674, U.N. SCOR, 45th Sess..,
295 1st mtg., U.N.Doc. S/RES/674 (1990)... 29
Public Comm. Against Torture v. Israel,
46 I.L.M. 375 (Isr. Supr. Ct. 2007) 200.0... 17,18
OTHER AUTHORITIES
George H. Aldrich, The Taliban, Al Qaeda, and the
Determination of Illegal Combatants,
96 AM. J. INT’L L. 891, 893 (2002)... 19
Geoffrey Best, WAR AND Law SINCE 1945 (1994)........... 25
Vil
Frederic L. Borch, JUDGE ADVOCATES IN COMBAT:
ARMY LAWYERS IN MILITARY OPERATIONS FROM
VIETNAM TO HAATI (2001)................ hachihndiiehaliniitehisaiescanata 6
President George W. Bush, Address to a Joint Session of
Congress and the American People (Sept. 20, 2001),
availabie at http://www.whitehouse.gov/news/releases/
200 1/09/200 10920-8 Ft... ceeeseessseeseeeesesessenees 22
President George W. Bush, Remarks (March 23, 2003),
available at http://www.whitehouse. -gov/news/releases/
i EE ee 29
John Cerone, Jurisdiction and Power:
The Intersection of Human Rights Law &
the Law of Non-International Armed Conflict
in an Exira-Territorial Context, 40(s) Isr. L. REV.
(forthcoming 2007), available at
http://papers.ssrn.com/sol3/papers.cfm?
RE TT cee RRP 20
Mark Denbeaux et al., Report on Guantanamo Detainess:
A Profile of 517 Detainees through Analysis of
Department of Defense Data (2006), available at
http://law.shu.edu/news/guantanamo report final
Soe STE OTe eunctcciecinctoeaciitamstacsearitiiaasiaiaiiaitinieriitniientibiantiti 2
Dep’t of Defense, Briefing on Enemy Prisoner of
War Status Categories, Releases and Paroles
I iia clans tained inate tieectinieaninithinmaal 7
Knut Dormann, The Legal Situation of
“Unlawful/Unprivileged Combatants,”
85 INT’L REV. RED Cross 45 (March 2003)................. 20
vill
Geneva Conventions for the Protection of War Victims:
Hearing Before the Senate Comm. on Foreign Relations,
S4th Cong., bet Sess. (1955S) .............cccccccccccsscecseeccceseees 28
Robert K. Goldman, /nternational Humanitarian Law:
Americas Watch's Experience in Monitoring
Internal Armed Conflicts, 9 AM U. J. INT’L.
REESE Si ce 18
L.C. Green, THE CONTEMPORARY LAW OF
ARMED CONFLICT (2d ed. 2000)............c.ccceccccseeeeeeeeeeee 18
THE HANDBOOK OF HUMANITARIAN LAW IN
ARMED CONPLICTS (Dieter Fleck ed. 1995)....0000000000.... 24
_ INSTRUCTIONS FOR THE GOVERNMENT OF
ARMIES OF THE UNITED STATES IN THE FIELD
(Lieber Code) (Apr. 24, 1863) .......00000..... wtitiiniiinmdionsieas 24
Josef L. Kunz, The Chaotic Status of the Laws
of War and the Urgent Need for Their Revision,
| ERE 28
Howard S. Levie, PRISONERS OF WAR IN
INTERNATIONAL ARMED CONFLICT (1977) ..0000....00000000- 28
Michael J. Matheson, The United States Position on
the Relation of Customary International Law to the 1977
Protocols Additional to the 1949 Geneva Conventions,
Remarks before Session One of the Humanitarian Law
Conference (Fall 1987), 2 AM.U. J. INT'L
I PP 16
_ Hilaire McCoubrey & Nigel D. White,
INTERNATIONAL LAW AND ARMED CONFLICT
STITT nsetiiceinectnidenpsntebnnanepetesemnensmbannsinnsbspesininiieliiiimapitiiie 2!
1X
Maj. Gen. George S. Prugh, VIETNAM STUDIES,
LAW AT WAR: VIETNAM 1964-73 (1975) .......cccccccceseeees 29
Marco Sassoli, Use and Abuse of
the Laws of War in the “War on Terrorism,”
22 LAW & INEQ..195 (2004) 20
William H. Taft IV, Legal Adviser, Dep’t of State,
Memorandum to Counsel to the President
(Feb. 2, 2002), available at http://www. fas.org/sgp/
I acisiccaditiciiileenieteinsceitiatneininsiutehassiiiatiesiasiin iis 29
Kenneth Watkin, Warriors Without Rights? Combatants,
Unprivileged Belligerents, and the Struggle Over
Legitimacy, Harvard Program on Humanitarian Policy
and Conflict Research (Winter 2005) ............ccccccccceeeees 26
Deputy Secretary of Defense Paul Wolfowitz,
Interview with New England Channel News
(Mar. 23, 2003), available at
http://www.defenselink.mil/transcripts/
transcript.aspx ?transcriptid=2 131 ooo... cccceceeseseeeeeee 29
INTEREST OF THE AMICUS CURIAE!'
The National Institute of Military Justice (NIMJ) is a
District of Columbia nonprofit corporation organized in
1991 to advance the fair administration of military justice
and improve public understanding of military law. NIMJ’s
officers and advisory board include law professors, private
practitioners, and other experts in the field, none of whom
is on active duty in the military, but nearly all of whom
_ have served as military lawyers, several as flag and general
officers.
NIMJ appears regularly as an amicus curiae before the
United States Court of Appeals for the Armed Forces, and
has appeared in this Court as an amicus in support of the
Government in Clinton v. Goldsmith, 526 U.S. 529 (1999),
and in support of the Petitioners in Rasul v. Bush, 542 U.S.
466 (2004), and Hamdan v. Rumsfeld, 126 S. Ct. 2749
(2006).
NIMJ is actively involved in public education through its
~ website, www.nimj.org, and through publications including
the Annotated Guide to Procedures for Trials by Military
Commissions of Certain Non-United States Citizen in the
War Against Terrorism (2002) and two volumes of Military
Commission Instructions Sourcebooks (2003-04). NIMJ
has also sought to improve public understanding of military
law by seeking release of comments on the rules governing
military commissions. NIMJ is independent of the
Government and relies for its programs exclusively upon
voluntary private contributions.
' Pursuant to Rule 37.6, amicus affirms that no counsel for the parties
authored this brief in whole or in part, and no person or entity other
than the amicus curiae, its members, and its counsel made a monetary
contribution to the preparation or submission of this brief. The parties
have consented to the filing of this brief, and their letters of consent
have been filed with the Clerk.
SUMMARY OF ARGUMENT
For more than five years, hundreds of individuals, from
more than forty countries, have been held in. military
detention by the United States at its Naval Base in
Guantanamo Bay and subjected to repeated interrogations
under harsh conditions. According to the most
comprehensive study of the population at Guantanamo
Bay,’ 93% of the prisoners were captured by parties others
than the United States and its coalition partners, at a time
when the United States was paying bounties for prisoners.
Fewer than half of the prisoners are accused of committing
a hortile act. Many were captured far from zones of active
combat in Afghanistan and Iraq, in civilian settings in
places as far-flung as Bosnia and Zambia. Many are held
for nothing more than staying at hotels recommended by
international travel guides, fleeing from troops fighting the
Taliban, or owning a rifle or a Casio watch.”
Petitioners here contend that they are innocent. of
wrongdoing, engaged neither in combat nor in acts of
terrorism, and are held without just cause. They further
contend that they are entitled to a meaningful hearing at
which the legality of their detention can be evaluated using
fair procedures and an appropriate definition of the conduct
for which they may lawfully be detained as combatants.
The majority below did not reach these claims because
it concluded that it lacked jurisdiction over these habeas
petitions and that the Constitution did not extend to
Guantanamo. 476 F.3d 981, 994 (D.C. Cir. 2007). This
brief does not focus on the jurisdictional issues or the
question of the Constitution’s territorial scope. Rather, it
focuses on two of the claims that Petitioners would have
the Court consider once it holds that it has jurisdiction and
reaches the merits of their habeas petitions: first, that the
” Mark Denbeaux et al., Re port on Guantanamo Detainees, A Profile of
517 Detainees through Analysis of Department of Defense Data (2006).
3
Id. at 17.
procedures used by the Combatant Status Review Tribunals.
(CSRTs) were inadequate; and second, that there is no
lawful basis for Petitioners’ detention because the CSRTs
used a substantive definition of “combatant” that is not
supported by the law of war and thus exceeds the scope of
authority granted to the President by Congress. In one of
the decisions on review, Judge Green held the CSRTs
facially deficient on both these grounds. 355 F. Supp. 2d
443 (D.D.C. 2005). Similarly, Judge Rogers, dissenting in
the Court of Appeals, thought the CSRT procedures
inadequate, 476 F.3d at 1004-06, and skeptically described
the Government’s definition of “combatant” as “evolving
and unlimited,” id. at 1012 n.14. These judges were
correct.
NIMJ files this brief to demonstrate how the
Government’s treatment of the prisoners at Guantanamo
represents a dramatic and unlawful deviation from
traditional military law and practice, both in terms of the
procedures used to classify detainees and in terms of the
substantive definition of “combatant.” The Governmeni’s
unlawful and unauthorized actions violate the rights of
these Petitioners, and would endanger U.S. military
personnel and civilians by undermining the law of war.
After resolving the threshold jurisdictional issues, this
Court should hold that Petitioners are entitled to habeas
relief based on the procedural and substantive deficiencies
of the CSRTs.
ARGUMENT
l. THE LAW OF WAR PROVIDES APPLICABLE
STANDARDS FOR JUDGING THE LEGALITY OF
PETITIONERS’ DETENTION
A. Military law guarantees fair procedures to classify
detainees in accordance with the law of war
The U.S. military has traditionally used fair procedures to
classify prisoners in accordance with the law of war. The
Government's failure to provide such procedures for the
3
Guantanamo detainees is a stark departure from this
tradition of compliance with the law.
Contrary to the Government’s argument _ that
Guantanamo is a “law free” zone, U.S. armed forces
everywhere in the world are governed by a comprehensive
legal framework for the administration of justice. The
Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 801-940, applies in peace and war, worldwide, and to
American service members and people -in their custody.
UCMS arts. 2(a)(1), (9) and 5, 10 U.S.C. §§ 802(a)(1), (9)
and 805. These provisions reflect a_ legislative
determination that rules of law can and do apply to persons
located at, among other places, Guantanamo Bay.*
For over half a century, the UCMJ and implementing
regulations have required compliance with the law of war,
including the requirement that individuals seized in combat
be afforded the protection of contemporaneous, competent
and neutral tribunals to determine their status in doubtful
cases in conformance with the law of war. This
requirement stems from the Third Geneva Convention,
which specifies that should there be any doubt “as to
whether persons, having committed a belligerent act” are
eniitled to prisoner of war status, “such persons shall enjoy
the protection of the present Convention until such time as
their status has been determined by a competent tribunal.” °
This obligation is implemented in U.S. law through
Army Regulation 190-8, Enemy Prisoners of War, Retained
Personnel, Civilian Internees and Other Detainees 4 1-1(b)-
(1997) (AR 190-8). The Regulation is no mere aspiration,
* UCMJ Article 2 makes the UCM) applicable to “persons within an
area leased by or otherwise reserved or acquired for the use of the
United States which is under the controi of the Secretary concerned and
which is outside the United States.” 10 U.S.C. § 802 (a)(12); see
Rasul, 542 U.S. at 481-82 (Guantanamo Bay is such an area.).
* Geneva Convention [III] Relative to the Treatment of Prisoners of
War, Aug. 12, 1949, art. 5, 6 U.S.T. 3316, 75 U.N.T.S. 135.
4
but a detailed, enforceable rule of law promulgated under
the authority of the UCMJ.° AR 190-8 specifically states
that it “implements international law,” including the
Geneva Conventions. The Regulation provides that, “{i}n
accordance with Article 5” of the Third Geneva
Convention, in case of doubt “[a] competent tribunal shall
determine the status of any person not appearing to be
entitled to prisoner of war status who has committed a
belligerent act or has engaged in hostile activities in aid of
enemy armed forces.”’ Such tribunals are legally required
to determine whether individuals in custody meet the law
of war definition of civilian rather than combatant, and
whether or not they are entitled to prisoner of war status.
Id. 4 1-6(e)( 10) (listing possible determinations).
The requirement that wartime detainees’ status must be
determined by impartial tribunals in accordance with the
law of war is recognized throughout authoritative sources
on military law. This requirement is incorporated in the
Department of the Army’s Field Manual on the Law of
Land Warfare, FM 27-10, at ¥ 71(a) (1956) (providing for a
“competent tribunal” to determine the status of
belligerents) (The Law of Land Warfare); the Department
of the Navy’s Commander’s Handbook on the Law of
Naval Operations § 11-7 (1995) (even “individuals
captured as spies or illegal combatants have the right to
assert their claim of entitlement to prisoner-of-war status
before a judicial tribunal and to have the question
adjudicated”); and the Army Judge Advocate General’s
* This Regulation was issued pursuant to 10 U.S.C. § 121, which
authorizes the President to “prescribe regulations to carry out his
functions, powers, and duties under this title.” Duly enacted
regulations like AR 190-8 constitute U.S. law. Gratiot v. United States,
45 U.S. (4 How.) 80, 117 (1846) (“As to the army regulations, this
court has too repeatedly said, that they have the force of law .. . .”).
” This identical regulation has been also adopted in the Navy
(OPNAVINST 3461.6), Air Force (AF JI 31-304), and Marine Corps
(MCO 3461.1.).
School’s Operational Law Handbook 26 (2004) (directing
judge advocates to “advise commanders that, regardless of
the nature of the conflict, all enemy personnel should
initially be accorded the protections of the [Third Geneva
Convention], at least until their status may be determined”)
(Army Operational Law Handbook).
In the United States military’s Area of Operations
(AOR) that includes Afghanistan and Iraq, these provisions
are further implemented by United States Central
Command (CENTCOM) Regulation 27-13 (1995), which
provides that U.S. personnel “who take or have custody of
a detainee will: . . . (2) Apply the protections of the [Third
Geneva Convention] to each [Enemy Prisoner of War] and
to each detainee whose status has not yet been determined
by a Tribunal covered under this regulation.” This
regulation applies to “all members of the United States
Forces deployed to or operating in support of operations in
the US CENTCOM AOR.” Id. 4 2. Personnel who fail to
treat any detainee in accordance with the Geneva
Conventions “may be subject to punishment under the
UCMJ.” Id. 4 7(b).
The military’s otherwise consistent record of compliance
with these laws belies the Government’s argument in these
cases that legal process is incompatible with war. The U.S.
Military Assistance Command in Vietnam, for example,
enforced strict requirements for the classification of
captured personnel, including providing impartial tribunals
to determine eligibility for prisoner-of-war _ status.
Directive No. 381-46, Annex A (Dec. 27, 1967), and
Directive No. 20-5 (Sept. 21, 1966, as amended Mar. 15,
1968); see also Frederic L. Borch, JUDGE ADVOCATES IN
COMBAT: ARMY LAWYERS IN MILITARY OPERATIONS FROM
VIETNAM TO HAITI 29 (2001).
During Operation Desert Storm, the United States
processed 69,822 Iraqi troops pursuant to AR 190-8. Borch,
supra, at 22. The International Red Cross accordingly
6
reported that the United States complied with the Geneva
Conventions more fully than any other nation in any
- previous conflict. /d. Similarly, in Panama in 1989-90, the
United States provided tribunals to adjudicate the status of
4100 captured troops, promptly releasing 4000 and granting
POW status to the remaining 100. /d. at 104-06. More
recently, U.S. forces have also provided impartial tribunals
- compliant with Article 5 to adjudicate the status of captured
belligerents in the current conflict in Iraq, a theater of
active combat. Dep't of Defense, Briefing on Enemy
Prisoner of War Status Categories, Releases and Paroles
(May 9, 2003).
The Government’s failure to provide the Guantanamo
detainees with AR 190-8 hearings immediately after their
capture is a dramatic break from decades of consistent
military practice of compliance with the law. Since the
United States has provided AR 190-8 tribunals in the war
theaters of Vietnam, Panama, Iraq, and elsewhere, it is
' difficult to credit the argument that such tribunals at
Guantanamo Bay, or litigation in the District of Columbia
courts, would interfere with field commanders. Unlike the
past tribunals that operated under fire, tribunals in
Guantanamo Bay, or courts in the continental United
States, would not be held in war zones. The Government
offers no credible argument that tribunals required by
military regulations and by the 194 nations subscribing to
the Geneva Conventions would interfere with its war
powers. The rules and practice of United States military
forces establish that the involvement of competent tribuna!s
in determining the status and rights of detained combatants
is a regular component of military operations, and essential
to ensuring compliance with the law of war.
There is simply no provision in any law, domestic or
international, that permits the President to issue a blanket
pronouncement that a military detention facility is outside
the law or that all individuals falling into the control of the
United States in a particular theater of war are outlaws.
These protections may not be circumvented by a claim
that detained personnel are not entitled to status as enemy
prisoners of war. The Regulations implementing the
Geneva Conventions provide a comprehensive framework
for the treatment of persons caught up in armed conflict. By
their explicit terms, every detainee whose status has not
been determined by an impartial tribunal is entitled to their
protection.
Having undertaken to adhere to these legal obligations,
our military services and commander-in-chief are not free
to disregard them. Service v. Dulles, 354 U.S. 363 (1957).
The protections afforded by impartial tribunals are not
voluntary or idiosyncratic efforts of field commanders, or
applicable only to some detainees, but are the product of
United States law, regulations, and orders protecting all
classes of detainees.
B. This Court has traditionally used the law of war to
inform its interpretation of statutes related to armed
conflict and the scope of executive war powers
American compliance with the law of war has also been
ensured by this Court’s practice of looking to the law of
war to inform the meaning of statutory provisions related to
armed conflict, as well as the scope of inherent executive
power. Based on these precedents, this Court should again
be guided by the law of war in determining whether there is
legal authority for the continued detention of Petitioners at
Guantanamo.
* Reliance on the customary law of war (as reflected in the Geneva
Conventions, among other sources) as a guide for interpretation of the
scope of authorized government powers is analytically distinguishable
from invoking the Geneva Conventions as a “source of rights” as
described in section 5 of the Military Commissions Act of 2006
(MCA). When Congress does not intend its enactments to be read in
light of international law, it says so explicitly, as it did in section
8
The Court relied on the law of war most recently in
interpreting Article 21 of the UCMJ in Hamdan. Two
years earlier, the plurality similarly relied on the law of war
in interpreting the Authorization for Use of Military Force
(AUMF), Pub. L. No.: 107-40, 115 Stat. 224 (2001) in
Hamdi, 542 U.S. at 520-21; id at 550 (op. of Souter, J.).
The plurality in Hamdi also indicated that the law of war
could be relevant as one possible benchmark for evaluating
whether particular procedures for classifying wartime
detainees satisfy the constitutional requisites of due
process. 542 U.S. at 538 (referring to AR 190-8 in
discussing the “possibility that the [due process] standards
we have articulated could be met by an appropriately
authorized and properly constituted military tribunal’’)
(plurality op.); id. at 550 (op. of Souter, J.) (finding the
detention of Petitioner unauthorized because of the
Government’s failure to comply with AR 190-8 and art. 5
of the Third Geneva Convention).
These decisions are only the latest in a long line of cases
throughout American history that rely on the international
law of war as a guide to the scope of government powers in
armed conflict. See Ex parte Quirin, 317 U.S. 1, 27-28
(1942) (the Court has “recognized and applied the law of
war as including that part of the law of nations which
prescribes, for the conduct of war, the status, rights and
duties of enemy nations as well as of enemy individuals”);
The Prize Cases, 67 U.S. (2 Black) 635, 667 (1863)
(looking to international law of war to determine legality of
wartime seizures by executive); Brown v. United States, 12
U.S. (8 Cranch) 110, 153 (1814) (Story, J., dissenting)
(noting that the President “cannot lawfully transcend the
6(a)(2) of the MCA regarding the interpretation of the War Crimes Act.
18 USC. § 2441(d). Thus, regardless of the meaning or proper
application of these provisions of the MCA, reliance on the law of war
as a guide for interpretation of authorized powers is as appropriate in
this case as in other cases throughout American history.
9
rules of warfare established among civilized nations. He
cannot lawfully exercise powers or authorized proceedings
which the civilized world repudiates and disclaims,” in
dissent from a majority opinion that restricted presidential
war powers even further to measures explicitly authorized
by Congress); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28
(1801) (“congress may authorize general hostilities, in
which case the general laws of war apply to our situation;
or partial hostilities, in which case the laws of war, so far as
they actually apply to our situation, must be noticed”); Bas
v. Tingy, 4 U.S. (4 Dall.) 37, 43 (1800) (“If a general war is
declared, its extent and operations are only restricted and
regulated by the jus belli, forming a part of the law of
nations; but if a partial war is waged, its extent and
operation depend on our municipal laws.”’).
Against this historic backdrop of compliance with the
law of war, Congress would need to be exceptionally clear
if it intended to empower the President to detain people in a
manner not authorized by the law of war. Far from
indicating an intent to authorize such deviation, however,
Congress here authorized the President to use “necessary
and appropriate force.” AUMF § 2(a).
As the plurality of this Court concluded in Hamdi, the
AUMF’s reference to “necessary” and “appropriate”
military force should be interpreted in light of
_ “longstanding law-of-war principles,” 542 U.S. at 521, to
encompass only “fundamental and accepted” military
detention practices that are by “‘universal agreement and
practice’” part of the lawful waging of war, id. at 518; see
id. at 549 (op. of Souter, J.) (rejecting government’s “claim
here to be acting in accordance with customary law of war
and hence to be within the terms of the Force Resolution.”).
". PETITIONERS’ DETENTION IS NOT
AUTHORIZED BY THE LAW OF WAR
As the above sections indicate, the requirements of the
law of war are relevant both because of the binding military
10
rules and regulations that implement them and because this
Court has traditionally relied on the law of war in
interpreting the lawful scope of government powers in
armed conflict. The continued detention of Petitioners at
Guantanamo is unauthorized and illegal because the
Government has deviated from both the procedural and
substantive requirements of the law of war.
Petitioners are entitled to habeas relief on at least two
grounds: first, the CSRTs employed procedures that are
legally inadequate; and second, the CSRTs classified
prisoners based on a substantive definition of “combatant”
for which there is no authority. As the court below
correctly concluded, because Petitioners’ detention is not
consistent with the law of war, it cannot be part of the
“necessary and appropriate” force that Congress has
authorized the President to use in fighting terrorism. 355 F.
Supp. 2d at 475.
A. The procedures used by the CSRTs do not
comport with the law of war
In accordance with the binding regulations described
above, the U.S. military has traditionally used the
procedures of AR 190-8 to classify prisoners in accordance
with the law of war. None of the Petitioners received the
hearings required by AR 190-8 immediately following their
detention, and this fact alone renders their detention in
violation of the law.
Moreover, the Government’s attempt in the courts below
to characterize the CSRT proceedings as comparable to
those required by AR 190-8 misses the point that, at this
late date, several years and half a world away from the
place of capture, such minimal process is unacceptable. As
this Court's decision in Hamdi made clear, “initial captures
on the battlefield [where AR 190-8 hearings pursuant to
Article 5 are held] need not receive the process we have
discussed here; that process is due only when the
determination is made to continue to hold those who have
been seized.” 542 U.S. at 534 (emphasis added). Whereas
battlefield needs may require a more summary proceeding,
the defects in the CSRTs had no such justification.
Petitioners here were far from a combat zone, and had been
regularly interrogated for years, allowing the Government
ample time to develop its evidence. The resulting
proceedings ought to have been more robust if they were to
remedy the lack of contemporaneous AR 190-8 hearings;
instead they were less so.
The CSRTs did not provide even the minimum
safeguards of an AR 190-8 proceeding. AR 190-8 hearings
are based on evidence secured in compliance with the
Geneva Conventions, which prohibit torture and coercion;”
the CSRTs are not."” AR 190-8 hearings are conducted
contemporaneously and near the place of capture, where
witnesses are available; the CSRTs were conducted years
later and thousands of miles from the battlefield. AR 190-8
hearings presume prisoners to be entitled to POW
protections until proven otherwise (at 4 1-6(a)); the order
creating the CSRTs begins with a recitation that the
detainees subject to the CSRTs have already been
determined to be enemy combatants,'' requires the
detainees to prove otherwise without access to witnesses
* AR 190-8, 2-La(1)(d) (“[t}he use of physical or mental torture or any
coercion to compel prisoners to provide information is prohibited”);
Third Geneva Convention arts. 3(1 (a), 17.
'’ Sec’y of the Navy, Implementation of Combatant Status Review
Tribunal Procedures for Enemy Combatants Detained at Guantanamo
Bay Naval Base, Cuba § G(7) (July 29, 2004) (CSRT Memorandum)
(allowing use of “any information it deems relevant and helpful”); see
also In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 472-73
(discussing allegations of CSRT use of statements obtained through
torture or coercion).
‘' Deputy Sec’y of Defense, Order Establishing Combatant Status
Review Tribunal § a (July 7, 2004) (CSRT Order)
12
and without being informed of the identity of accusers,"
and in any event cannot grant detainees POW status.'?
The failure of the CSRTs to meet even the basic
requirements of AR 190-8 — let alone provide the additional
protections necessary as a matter of due process to justify
detention after so many years — is indicative of the degree
to which they are inconsistent with the traditional law of
war. The CSRTs are unauthorized because their deviation
from the procedures required by the law of war takes them
outside of Congress’s authorization of “necessary and
appropriate” force. Their departure from the law of war is
also relevant to the issue of whether they satisfy the Due
Process Clause. Cf Hamdi, 542 U.S. at 538. While
compliance with the law of war is not alone enough to
satisfy constitutional standards of due process, cf. id. at 575
n.5 (Scalia, J., dissenting), failure to comply with even the
most minimal law of war standards for battlefield tribunals
certainly belies the argument that a given procedure
constitutes due process.
Any neutral observer asked to describe the features of a
civilized system of justice would be hard-pressed to
identify anything more basic than the right to be informed
of the basis for detention; the right to be confronted with
evidence; and the rights to challenge that evidence and
have assistance in doing so. Fuentes v. Shevin, 407 U.S.
67, 80 (1972). As this Court made clear in Hamdi, “These
essential constitutional promises may not be eroded.” 542
U.S. at 533. Petitioners here have been denied these most
basic rights.
In one of the decisions below, Judge Green — the only
district judge to have reviewed the CSRTs in depth — found
that they were woefully insufficient. She held that the
'° CSRT Memorandum §§ G(11), F(8). G(9).
' CSRT Memorandum, Encl. 9, Combatant Status Review Tribunal
Decision Report Cover Sheet) (“The Tribunal has determined that he
(isis not) an enemy combatant as defined in [CSRT Order)").
13
detainees had stated a valid claim that the CSRTs violated
the Due Process Clause because in all cases detainees were
(1) not provided with adequate notice of the bases for their
detention; (2) forbidden access to material evidence upon
which the CSRTs determined their status; (3) not given a
fair opportunity to rebut the evidence upon which their
Status was determined; and (4) not provided with
meaningful assistance to oppose the claims against them.
355 F. Supp. 2d at 468-72. In addition, the district court
concluded that, in at least some of the cases, the CSRTs
were alleged to have relied on evidence that was obtained
by interrogations so severe as to amount to torture or
impermissible coercion. Judge Rogers, who dissented from
the jurisdictional ruling of the Court of Appeals, reached a
similar conclusion. 476 F.3d at 1004-06.
B. The CSRTs used a definition of “combatant” that
is inconsistent with the law of war
Judge Green also properly concluded below that the
CSRTs were legally deficient because they employed a
vague and overly broad definition of “enemy combatant.”
355 F. Supp. 2d at 474-76.
In Hamdi, this Court recognized that the “necessary and
appropriate force” authorized by Congress in the AUMF
encompassed the detention of the “limited category” of
persons who were “‘part of or supporting forces hostile to
the United States or coalition partners’ in Afghanistan and
who ‘engaged in an armed conflict against the United
States’ there.” 542 U.S. at 516, 518 (plurality op.)
(emphasis added). As the Court explained, such detentions
were supported by “longstanding law-of-war principles.”
Id. at 521.
As Judge Green found, “[t}he definition of ‘enemy
combatant’ in the Order creating the CSRTs is significantly
broader than the definition considered in Hamdi.” 355 F.
Supp. 2d at 475. The CSRT Order defines “enemy
combatant” to be “an individual who was part of or
14
supporting Taliban or al Qaeda forces, or associated forces
that are engaged in hostilities against the United States and
its coalition partners.” CSRT Order § a (emphasis added).
The Order specifies that this “includes” any person who has
“committed a belligerent act or has directly supported
hostilities in aid of enemy armed forces.” /d. But it does
not require that a person detained as a combatant have
committed a belligerent act, directly supported hostilities,
or otherwise “engaged in an armed conflict against the
United States,” as required by Hamdi. To the contrary,
merely “supporting” the Taliban, al Qaeda, or associated
forces is sufficient to subject one to indefinite military
detention under the CSRT Order definition. /d.
At the hearing in the district court, the Government's
attorney demonstrated the breadth of the CSRT definition
in response to a series of hypotheticals. The Government
argued that a variety of persons who did not participate
directly in hostilities could be detained as combatants,
including: “[a] little old lady in Switzerland who writes
checks to what she thinks is a charity that helps orphans in
Afghanistan but [what] really is a front to finance al-Qaeda
activities,” “a person who teaches English to the son of an
al Qaeda member,” and a “journalist who knows the
location of Osama Bin Laden but refuses to disclose it to
protect her source.” 355 F. Supp. 2d at 475.
The law of war classifies all these individuals as
civilians, not combatants. Congress’s authorization of
“necessary and appropriate” force cannot properly be read
to encompass the classification and detention of individuals
under the definition used by the CSRTs.
I. The law of war distinguishes between “combatants”
and “civilians”
The Geneva Conventions, and especially Additional
Protocol |, prescribe with considerable detail the rights and
duties of people caught up in armed conflict.'* Additional
Protoco! I states that “combatants,” who are “members of
the armed forces of a Party ‘to a conflict,” art. 43(2), are
lawful military targets, while non-combatants are not.'°
This deliberately limits the class of people who lawfully
may be targeted by opposing military forces. People who
are actually in the armed forces of a nation-state are
deemed combatants and are generally lawful targets at all
times; people who are not in the armed forces are generally
not combatants and are generally not lawful targets.
Because the law of war provides a comprehensive
scheme for people caught up in warfare, there is no
intermediate status. Individuals must be classified either as
combatants or civilians: “[e]very person in enemy hands
must have some status under international law: he is either
a prisoner of war and, as such, covered by the Third
Convention, [or] a civilian covered by the Fourth
Convention .... There is no intermediate status; nobody in
enemy hands can be outside the law.” Int'l Comm. of the
Red Cross, Commentary. to the 1V Geneva Convention 51
(Jean S. Pictet ed. 1958); see also Army Operational Law
'* Although the United States has not ratified Additional Protocol [, it
has acknowledged that much of the treaty reflects binding customary
international law. Army Operational Law Handbook at \1; Michael J.
Matheson, The United States Position on the Relation of Customary
International Law to the 1977 Protocols Additional to the 1949 Geneva
Conventions, 2 AM. U. J. INT'L L. & POL’ Y 419, 420 (1987).
'S Additional Protocol | further defines combatants to include: “all
organized armed forces, groups and units which are under a command
responsible to that Party for the conduct of its subordinates, even if that
Party is represented by a Government or an authority not recognized by
an adverse Party.” Additional Protocol | art. 43(1). Members of
disorganized militia groups who are not under a command responsible
to a state Party to the conflict are not combatants under this definition.
Conversely, civilians are defined as persons who do not fall into one of
the categories of persons entitled to prisoner of war status pursuant to
article 4 of the Third Geneva Convention and article 43 of Additional
Protocol |. See Additional Protocol | art. 50.
16
Handbook 142 (“Anyone not qualifying as a combatant, in
the sense that they are entitled to [prisoner of war] st us
upon capture, should be regarded as a civilian.”); Tie Law
of Land Warfare 4| 73.
The law of war recognizes that civilians may cause
harm in armed conflict. They may be treated as targets of
force and, inferentially, as combatants, but only “for such
time as they take a direct part in hostilities.”'° The law of
_ war standard, therefore, for when people who are not
ordinarily defined as combatants may be treated as
combatants is when they take a “direct part” in “hostilities.”
This standard contains three relevant criteria. First, it
applies only to “hostilities.” This word has a narrower
connotation than the phrase “armed conflict,” which
appears frequently elsewhere in the Geneva Conventions."’
Thus, an individual who would not ordinarily be considered
a combatant must participate in actual “hostilities” — rather
than the relevant armed conflict more generally — to lose
protection as a civilian. The standard also has a clear
temporal dimension. It lasts only “for such time” as the
individual takes a direct part in hostilities. A civilian who
takes part in hostilities regains his civilian status after his
direct participation has ceased (although he may be
criminally prosecuted for his illegal participation in
hostilities).'* Finally, the test sets up a demanding nexus.
The individual must take a “direct” part. While this phrase
is not further defined, it clearly provides that indirect aid—
no matter how valuable—does not suffice.
A civilian does not become a combatant because he
generally “supports” troops. Nor does he become a
“Additional Protocol [, art. 51(3) (“Civilians shall enjoy the protection
afforded by this Section, unless and for such time as they take a direct
art in hostilities.”); Additional Protocol [1, art. 13 (same).
” See, e.g., Third Geneva Convention, art. 2.
'* See Public Comm. Against Torture v. Israel, 46 1.L.M. 375, 393 (Isr.
Supr. Ct. 2007).
17
combatant because an opposing commander suspects he
might, at some point in the future, plot to engage in violent
acts.'” If the rule were otherwise, large parts of the civilian
population of a country at war would become lawful targets
for attack. Shooting a gun on a battlefield constitutes
taking a “direct part in hostilities.” So, too, would
hijacking an airplane with the intent to use it as missile.
Driving a truck full of explosives or carrying a gun towards
the battlefield with the imminent intent to engage in combat
could also amount to taking a direct part in hostilities. See
Public Comm. Against Torture v. Israel, 46 1.L.M. at 391.
By contrast, supporting the enemy cause off the battlefield,
conspiring with the enemy, contemplating taking part in
battle in the future, and sympathizing with the enemy do
not constitute taking a direct part in hostilities under the
law of war, although those acts may be punishable under
domestic criminal law.”°
'? See Int’! Comm. of the Red Cross, Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August
1949, at 619 (Claude Pilloud et al. eds. 1987) (Commentary to
Protocols) (noting that there is “a clear distinction between direct
participation in hostilities and participation in the war effort,” to avoid
endangering large parts of the civiltan population).
°° Public Comm. Against Torture v. Israel, 46 1.L.M. at 392 (direct
participation does not include someone who “aids the unlawful
combatants by general strategic analysis, and grants them logistical,
general support, including monetary aid.”); Robert K. Goldman,
International Humanitarian Law: Americas Watch's Experience in
Monitoring Internal Armed Conflicts,9 AM U. J. INT'L. L. & POL’ y 49,
70 (1993) (“[A] civilian can be considered to participate directly in
hostilities when he actually takes part in fighting, whether singly or as a
member of a group. Such participation . . . would also include acting as
a member of a weapons crew or providing target information for
weapons systems ‘intended for immediate use against the enemy, such
as artillery spotters or members of ground observer teams.’”);
Commentary to Protocols at 516 (“Direct participation im hostilities
implies a direct causal relationship between the activity engaged in and
the harm done to the enemy at the time and place where the activity
18
A civilian who participates directly in hostilities would
in some circumstances be violating the law of war, and in
the Government’s nomenclature would presumably be
labeled an “unlawful combatant.””' “Illegal combatant” or
“unlawful combatant” is not a term that appears in any
treaty on the law of war. Commentators have occasionally
used these phrases to describe someone who does not
receive the privileges accorded to combatants, the most
important of which are prisoner of war status and immunity
from prosecution for merely engaging in combat. As used
by these commentators, the phrase “unlawful combatants”
actually encompasses two sets of people: members of the
regular armed forces who do not wear uniforms and do not
bear arms openly (and thereby lose their privileged
combatant status) and civilians who unlawfully participate
directly in battle (who never had privileged combatant
status to begin with).
As persons in the latter category retain their civilian
Status, it is arguably improper to refer to them as
combatants at all under the law of war: they are more
accurately described as “unprivileged _ belligerents.”
George H. Aldrich, The Taliban, Al Qaeda, and the
Determination of Illegal Combatants, 96 AM. J. INTL L.
891, 893 (2002).
Members of the Taliban armed forces would properly
be considered combatants in the conflict in Afghanistan.
Similarly, members of groups associated with the Taliban,
takes place.”); L.C. Green, THE CONTEMPORARY LAW OF ARMED
CONFLICT 107 (2d ed. 2000).
*' A civilian who directly participated in hostilities could be treated as
a combatant only in the sense that he would become a lawful target of
attack for the duration of his direct participation; in all other senses he
would remain a civilian protected by the Fourth Geneva Convention.
Fourth Geneva Convention art. 4; The Law of Land Warfare 4 73. The
Fourth Geneva Convention would not prohibit the detention or criminal
prosecution of such a person, provided that procedural safeguards were
observed. Aris. 42, 43, 78; Additional Protocol | art. 75(4).
19
such as al Qaeda, who fought on the battlefield in
Afghanistan and who served under a command responsible
to Taliban officials, could also be classified as combatants
in that conflict. In addition, other individuals who fought
on the battlefield could be treated as combatants during
their actual participation in the fighting.
‘ At the same time, persons who are not alleged to be
members of a regular armed force of a nation state, nor to
have participated directly in _ hostilities, cannot be
categorized as combatants—lawful or unlawful. For many
of the prisoners at Guantanamo, including a number of the
Petitioners in this case, the Government does not claim that
th — directly in hostilities in Afghanistan or
Ira Nor are many of these detainees alleged to be
2 As this Court recognized in Hamdan, the bulk of the 1949 Geneva
Conventions and Additional Protocol | apply only in armed conflicts
between state parties to the Conventions. A more limited body of law
applies to armed conflicts “not of an international character,” 126 S. Ct.
at 2795-96, and thus is potentially applicable to those detainees not
connected to international armed conflict in Iraq or Afghanistan. Like
the law applicable to international armed conflict, the rules for non-
international armed conflict distinguish between combatants and
civilians. Civilians may not be targets of attack “unless and for such
time as they take a direct part in hostilities.” Additional Protocol II, art.
13. Thus, as in international armed conflict, those taking no direct part
in hostilities cannot lawfully be classified as combatants. Furthermore,
and in contrast to the law applicable in international armed conflict, the
law of war applicable in non-international armed conflict arguably
provides no independent authority for detaining cither combatants or
civilians. al-Marri v. Wright, 487 F.3d 160, 184-186 (4th Cir. 2007);
John Cerone, Jurisdiction and Power: The Intersection of Human
Rights Law & the Law of Non-International Armed Conflict in an
Extra-Territorial Context, 40 Isr. L. REV. (forthcoming 2007) (“while
the law of inter-state armed conflict authorizes the conflicting states to
detain enemy combatants for the duration of hostilities, no analogous
provision exists in the law of non-international armed conflict.”);
Marco Sassoli, Use and Abuse of the Laws of War in the “War on
Terrorism,” 22 LAW & INEQ. 195, 210-11 (2004); Knut Dormann, The
Legal Situation of “Unlawful/Unprivileged Combatants,” 85 INTL
20
> >
members of “organized armed forces, groups and units
which are under a command responsible to [the Taliban
Government or the Government of Iraq] for the conduct or
its subordinates.” :
Regardless of the facts of each Petitioner’s case, the
fundamental problem is that the CSRTs employed a
definition of “combatant” that is overly broad, and so it is
‘impossible to determine based on their findings which
individuals have been properly detained. The CSRT
definition encompasses many individuals who are not
members of the armed forces of a nation-state, who did not
participate directly in hostilities, aud who never committed
any belligerent act. Such individuals are civilians under the
law of war. They may be arrested and punished under
other laws, but they do not fall within Congress’s
authorization for “necessary and appropriate” military
force.”*
REV. RED Cross 45, 47 (2003). While the law of war does not prohibit
the detention of either combatants or civilians in non-international
armed conflict, authority for such detentions cannot be derived directly
from the law of war and must be explicitly authorized by and consistent
with domestic legal and constitutional standards, and international
human rights law. .
> To the extent that some detainees at Guantanamo are unconnected
with aspects of the “war on terror” that qualify as armed conflict, the
law of war provides no authority whatsoever for their detention as
“combatants.” Not all terrorist actions rise to the level of armed
conflict. Indeed, terrorist actions by private groups have not
customarily been viewed as creating armed conflicts. Hilaire
McCoubrey & Nigel D. White, INTERNATIONAL LAW AND ARMED
CONFLICT 318 (1992). For example, as the United Kingdom stated
when it ratified Additional Protocol |: “It is the understanding of the
United Kingdom that the term ‘armed conflict’ of itself and in its
context denotes a situation of a kind which is not constituted by the
commission of ordinary crimes including acts of terrorism whether
concerted or in isolation.” Reservations by the United Kingdom to Art.
|, para. 4 & art. 96, para. 3 of Additional Protocol | Key aspects of
some parts of the “war on terrorism” diverge from traditional
21
2. This Court’s decisions have rested upon a narrow
definition of “combatant” that is consistent with the
law of war
This Court’s previous decisions have hewed closely to
the traditional definition of “combatant” under the law of
war as described above. Yaser Hamdi, for example, was
alleged to have participated directly in hostilities at the time
of his capture. Northern Alliance forces were “engaged in
battle” with the Taliban when Hamdi’s: Taliban unit
surrendered. Hamdi himself was allegedly carrying a
Kalashnikov assault rifle at the time of his surrender. In its
decision, the Court repeatedly emphasized Hamdi’s direct
participation in hostilities on a foreign battlefield. 542 U.S.
at 522 n.1 (“the basis asserted for detention by the military
is that Hamdi was carrying. a weapon against American
troops on a foreign battlefield”); id. at 523 (referring to the
“context of this case: a United States citizen captured in a
foreign combat zone”) (emphasis omitted); 542 U.S. at 517
(decision addresses only the “narrow question” of whether
the Government had authority to detain as “enemy
combatants” individuals who were “part of or supporting
forces hostile to the United States or coalition partners” in
assumptions of the law of war. For example, the “war on terrorism”
does noi have clear geographic parameters. Furthermore, the law of
armed conflict anticipates that armed conflict will, at some point, end,
and regulates the return from a state of war to normal life. Third
Geneva Convention art. 118 (“Prisoners of war shall be released and
repatriated without delay after the cessation of active hostilities.”). As
defined by the Government, however, the “war on terror” will not end
until al Qaeda (an ill-defined and amorphous group) and its “associated
forces” or supporters (also undefined), anywhere in the world are
eradicated. See, ¢.g., President Bush’s Address to a Joint Session of
Congress and the American People (Sept. 20, 2001) (“Our war on terror
begins with al Qaeda, but it does not end there. It will not end until
every terrorist group of global reach has been found, stopped and
defeated.”).
22
Afghanistan and who “engaged in an armed conflict against
the United States” there.).
In addition to participating directly in hostilities at the
time of his capture, Hamdi was also specifically alleged to
be affiliated with a Taliban government militia unit, 542
U.S. at 513, and therefore to be a part of the “organized
armed forces, groups and units which are under a command
responsible to [a] Party for the conduct of its subordinates.”
Additional Protocol |, art. 43(2). The defendants in Ex
parte Quirin, also had the “status of an enemy belligerent”
when they entered the United States, id. at 38, having worn
uniforms of the German Marine Infantry when they came
ashore from German military submarines, id. at 21.
By contrast, the Court held that the prisoner in Ex Parte
Milligan was not a combatant. Milligan was accused of
“joining and aiding” a “secret society” for the “purpose of
overthrowing the Government,” “holding communication
with the enemy,” “conspiring to seize munitions of war
stored in the arsenals,” and “to liberate prisoners of war” in
Indiana at a time when it “was constantly threatened to be
invaded by the enemy.” 71 U.S. at 6-7. Nevertheless,
Milligan was entitled to a civilian criminal trial. As the
Court exp\»ined:
If in Indiana he conspired with bad men to assist the
enemy, he is punishable for it in the courts of
Indiana; but, when tried for the offence, he cannot
plead the rights of war; for he was not engaged in
legal acts of hostility against the Government, and
only such persons, when captured, are prisoners of
war. If he cannot enjoy the immunities attaching to
the character of a prisoner of war, how can he be
subject to their pains and penalties?
Id. at 131. As the Court emphasized in Hamdi, the key
distinction was Milligan’s lack of direct participation in
hostilities: “Had Milligan been captured while he was
assisting Confederate soldiers by carrying a rifle against
23
Union troops on a Confederate battlefield, the holding of
the Court might well have been different.” 542 U.S. at 522.
In short, as the Court indicated in Hamdi, it has upheld
the detention of enemy combatants only when “based on
longstanding law-of-war principles.”. The Court has
warned that “[{i]f the practical circumstances of a given
conflict are entirely unlike those of the conflicts that
informed the development of the law of war, that
~-derstanding may unravel.” 542 U.S. at 521. The
G. vernment’s attempted extension of the term combatant
through the overbroad CSRT definition is- exactly the
unraveling the Court foresaw.
Ill. THE GOVERNMENT’S DEPARTURE FROM
THE LAW OF WAR ENDANGERS AMERICAN
SOLDIERS AND CIVILIANS
A. The CSRTs’ broad redefinition of the term
“combatant” erodes the most fundamental distinction
in the law of war
The principle of distinctyon, which requires
distinguishing between combatants and civilians, is the
most fundamental principle of the law of war. As the
official commentary to the additional protocols of the
Geneva Convention observes, “the principle of protection
and distinction forms the basis of the entire regulation of
war.” Int'l Comm. of the Red Cross, Commentary to
Protocols 586; HANDBOOK OF HUMANITARIAN LAW IN
ARMED CONEPLICTS 65 (Dieter Fieck ed. 1995); Quirin, 317
U.S. at 30-31 (noting that “[b]y universal agreement and
practice,” the law of war draws a distinction between “the
armed forces” and civilian populations); INSTRUCTIONS FOR
THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN
THE FIELD (Lieber Code) art. 22 (1863).
The concept of combatant determines who may be the
lawful target of military attack. Combatants may be
intentionally shot, bombed, or otherwise targeted with
lethal force. See Additional Protocol I art. 48; Additional
24
Protocol II art. 52(2). Civilians are protected from being _
the intentional targets of armed attack, as long as they do
not participate directly in hostilities. See Additional
Protocol I art. 51(2); Additional Protocol II art. 13(2). “The
principle of distinction is sometimes referred to as the
“grandfather of all principles,” as it forms the foundation
for much of the Geneva tradition of the law of war. The
essence of the principle is that military attacks should be
directed at combatants and military targets, and not
civilians or civilian property.” Army Operational Law
Handbook 166.
Within certain limits, combatants may be attacked with
lethal force wherever they are found.”* Thus, if all persons
alleged to “support” al Qaeda or associate groups truly
were “combatants,” the law of war would not only allow
them to be held until the end of active hostilities, but in
many circumstances would allow them to be shot upon
discovery, at any point, anywhere tn the world.”°
Military officers, statesmen, judges, and scholars have
long recognized that any blurring between the categories of
combatant and non-combatant could lead to a severe
breakdown in limits. on whom military forces may
legitimately target. See Geoffrey Best, WAR AND LAW
SINCE 1945, at 254-66 (1994). In many wars, virtually
every member of society — from farmers and factory
workers to government bureaucrats — may provide direct or
24
While it is forbidden “to kil! or wound an enemy who, having laid
down his arms, or having no longer the means of defense, has
surrendered at discretion,” Hague Convention [IV} Respecting the
Laws and Customs of War on Land art. 23(c), the law of war authorizes
attacks on “individual soldiers or officers of the enemy whether in the
zone of hostilities, occupied territory, or elsewhere.” The Law of Land
Warfare 4 31. Attacks on combatants must also be proportional and
necessary to military objectives.
*> Moreover, the Government might also be allowed to inflict collateral
damage on bystanders. Fourth Geneva Convention art. $3, Additional
Protocol | art. 52.
25
indirect support to the nation’s military. Designating as
combatants people who provide indirect support to a party
engaged in armed conflict but who do not directly
participate in hostilities would threaten to legitimize the
wholesale targeting of civilian populations. See Kenneth
Watkin, Warriors Without Rights? Combatants,
Unprivileged_ Belligerents, and the Struggle Over
Legitimacy, Harvard Program on Humanitarian Policy and
Conflict Research, 8-11 (Winter 2005). Moreover,
maintaining a clear legal separation between combatants
and non-combatants reinforces the separation of military
and civilian functions and control. “Thje] supremacy of the
civil over the military is one of our great heritages. It has
made possible the attainment of a high degree of liberty
regulated by law rather than by caprice. Our duty is to give
effect to that heritage at all times, that it may be handed
down untarnished to future generations.” Duncan v.
Kahanamoku, 327 U.S. 304, 325 (1946) (Murphy, J.,
concurring). Expanding the definition of “combatant” of
necessity increases the scope of military authority over civil
socie . Nations that adopt sweepingly overbroad
definitions of “combatant,” such as the one proffered by the
Government in this case, run the risk of thrusting upon the
military the roles of judge and jailer to a degree far
exceeding military necessity.
Indeed, one of the most chilling aspects of the attacks
of September 11, 2001 was the attackers’ intentional
targeting of civilians, a fundamental violation of the law of
war. Some terrorist rhetoric refuses to acknowledge the
distinction between civilians and combatants — labeling all
U.S. and Israeli citizens, for example, the “enemy.” This
verbal sleight of hand renders the law of war useless,
because it justifies the killing of any individual. It is
precisely to protect against such abuses that the law of war
defines “combatants” narrowly.
The CSRTs’ definition of combatant renders the
distinction between civilian and combatant illusory. This
Court should, instead, employ the definition of
“combatant” contained in the law of war in interpreting
Congress’s authorization of “necessary and appropriate”
force.
B. The CSRTs’ broad redefinition of the term
“combatant” erodes fundamental liberties
Accepting the CSRTs’ redefinition of the term “enemy
combatant” would also erode fundamental liberties by
extending the law of war far beyond its traditional domain.
The law of war allows the Government extraordinary
powers to deprive individuals of life, liberty and property
with relatively minimal process. These extraordinary
powers are justified both by battlefield exigency and by
their limited temporal and geographic scope. If the
Government’s position in this case is accepted, it would
extend those extraordinary powers without any of these
limits.
The Government’s own statements in litigation reveal
how the breadth of its redefinition of the term “combatant”
would encompass the “little old lady in Switzerland,” the
English teacher, and the journalist. 355 F. Supp. 2d at 475.
The consequences of designation as an “enemy combatant”
are severe, since such individuals will not be granted the
due process of a criminal trial that those who are criminally
accused of providing “material support” to terrorism are
given. See 18 U.S.C. § 2339A-2339D. The breadth of the
definition of enemy combatant is thus particularly troubling
in light of the minimal process that individuals so classified
are likely to receive before being indefinitely deprived of
their liberty — or even their lives.
Moreover, such a broad expansion of the category of
persons who can be treated as “combatants” could
potentially affect U.S. citizens and persons in the United
States as well as aliens overseas. See Hamdi, 542 U.S. at
27
520 (“a citizen, no less than an alien” can be subject to
military detention and trial); Ex parte Quirin, 317 U.S. at
37 (“Citizenship in the United States of an enemy
belligerent does not relieve him from the consequences of a
belligerency which is unlawful because in violation of the
law of war.”). While the differences between persons
arrested in the United States and those seized abroad are of
potential constitutional significance, this Court should be
extremely wary of the possible domestic consequences of
endorsing the Government’s novel redefinition of the term
“combatant.”
B. The Government’s disregard for the law
endangers American soldiers and personnel
Compliance with the law of war is necessary to protect
the safety and welfare of American soldiers and civilians.
As Secretary of State Dulles testified during the Senate’s
consideration of the Geneva Conventions, America’s
“participation is needed to . . . enable us to invoke them for
the protection of our nationals.” Geneva Conventions for
the Protection of War Victims: Hearing Before the Senate
Comm. on Foreign Relations, 84th Cong. Ist Sess. 3-4
(1955). Senator Alexander Smith added, “I cannot
emphasize too strongly that the one nation which stands to
benefit the most from these four conventions is the United
States.” 101 Cong. Rec. 9962 (1955).
Time and again, the United States’ adherence to the
Conventions and their precursors has saved American lives.
In World War II, for example, “The American Red Cross
attributed . . . the survival of 99 percent of the American
prisoners of war held by Germany . . . to compliance with
the [1929] Convention.” Howard S. Levie, PRISONERS OF
WAR IN INTERNATIONAL ARMED CONFLICT 10 n.44 (1977).
The fact that millions of POWs from all camps returned
home was “due exclusively to the observance of the
Geneva Prisoners of War Convention.” Josef L. Kunz, The
28
Chaotic Status of the Laws of War and the Urgent Need for
Their Revision, 45 AM. J. INT’L L. 37, 45 (1951).
To safeguard its own troops, the United States has been
steadfast in applying the Geneva Conventions even to
combatants whose governments insisted the Conventions
did not bind them. Thousands of American soldiers taken
prisoner during the Vietnam War benefited from the United
States’ commitment to afford all enemy POWs the
protections of the Conventions to secure “reciprocal
benefits for American captives.” Maj. Gen. George S.
Prugh, VIETNAM STUDIES, LAW AT WAR: VIETNAM 1964-
73, at 63 (1975). The United States provided those
protections not only to North Vietnamese soldiers but also
to the Viet Cong, who did not subscribe to the laws of war.
Id.
The Executive Branch has emphatically demanded —
and rightly so — that these protections be accorded to
Americans captured or detained overseas, and has joined in
condemnations of behavior that violates them. U.N.S.C.
Res. 674, U.N. SCOR, 45th Sess., 295!st mtg., U.N.Doc.
S/RES/674 (1990). The Defense Department took pains to
“remind the Iraqis . . . [t]hat there are very clear obligations
under the Geneva Convention to treat prisoners humanely.”
Statement of Deputy Secretary of Defense Paul Wolfowitz,
Mar. 23, 2003, Interview with New England Channel News
(Mar. 23, 2003). In objecting to the televised display of
captured American soldiers, President Bush stated his
insistence that prisoners be afforded the protections of
international law. President George W. Bush, Remarks
(Mar. 23, 2003).
The Legai Adviser to the Department of State
commented on the consequences to American forces that
would arise from a departure from these rules, “[ajny small
benefit from reducing -further [the application of the
Geneva Conventions] will be purchased at the expense of
the men and women in our armed forces that we send into
29
combat.” William H. Taft [V, Legal Adviser, Dep’t of
State, Memorandum to Counsel to the President (Feb. 2,
2002).
Denying Guantanamo detainees the protections of the
law of war is a departure from past practice that weakens
the United States’ ability to demand that the Conventions
be applied to Americans captured during armed conflicts
abroad.
The lives of American military and civilian personnel
are endangered by the United States’ failure to grant
foreign prisoners in its custody the same rights that the
United States insists be accorded to American prisoners
held by foreigners.
CONCLUSION
The Government’s position in this case is inconsistent
with decades of sound military law and policy. If endorsed
by this Court, it will do considerable violence to that vital
body of law that protects soldiers, civilians, and all those
caught up in war. After resolving the threshold
jurisdictional issues, this Court should hold that Petitioners
are entitled to habeas relief because the CSRTs used
inadequate procedures and an unauthorized definition of
“combatant” not supported by the law of war.
August 24, 2007 Respectfully submitted.
JENNIFER S. MARTINEZ
Counsel of Record
STANFORD LAW SCHOOL
559 Nathan Abbott Way
Stanford, CA 94305
(650) 725-2749
30
RONALD W. MEISTER
COWAN, LIEBOWITZ & LATMAN P.C.
1133 Avenue of the Americas
New York, NY 10036
(212) 790-9200
STEPHEN A. SALTZBURG
GEORGE WASHINGTON UNIVERSITY
LAW SCHOOL
2000 H Street, NW
Washington, DC 20052
(202) 994-7098
ARNON D. SIEGEL
ERICA L. HOVANI
DECHERT LLP
1775 | Street, NW
Washington, DC 20006
(202) 261-3300
Counsel for Amicus Curiae
31
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