# Amicus Curiae Brief — Al Odah v. United States (Nos. 06-1196, 06-1195)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0526%3A20

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007

## Text

a

MOTION FILED 51008 e

OCT 9 - 2007 eer _

Nos. 06-1195 and 06-1196

IN THE
SUPREME COURT OF THE UNITED STATES

LAKHDAR BOUMEDIENE, et al., Petitioners,
Vv

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) The ACLJ is a not-for-profit public interest

law firm committed to the constitutional
separation of powers.

(2) 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.

(3) 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.

(4) The ACLJ 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 ...00........ ccc ceeeeeeeeeeeeees iii
TT cariiciecriencdiniennddnsonneinienisscentenneinenie vill
STE GE MEF acccsccnesccsstsssccssecethonscnsesessncsee 1
SUMMARY OF THE ARGUMENT...................0...0.. 2
TET cieeshaseditininineaiidenanedghiabiiteisinainiininbniinipentinitdneds 3

I. ENACTMENT OF THE MILITARY
COMMISSIONS ACT LAWFULLY
REMOVED FROM THIS COURT ITS
AUTHORITY TO ISSUE WRITS OF
HABEAS CORPUS TO GUANTANAMO
TT cic adishininstsinsisnniaiiocninsiieaicsishiivbenansee 3

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 ............... 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.........................00000. 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
I iicccccecccecteiicticnieniiinnnuiaiidlionsin 17

B. Judicial Standard ffor Interpreting
EE iscisieiaieducodinnceienhdianiesiniapateabiimaniehinasinedccaiaiia tt 19

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

Ne cncxcsecsinnnininnvincasinnsidiniiceaaaniaiimaite 28

ili

TABLE OF AUTHORITIES
Page(s)
Cases
Air France v. Saks, 470 U.S. 392 (1985) ................. 19
Aptheker v. Sec’y of State, 378 U.S. 500 (1964)...... 18
Baker v. Carr, 369 U.S. 186 (1962) ...............cccccee 16

Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.
2007), cert. granted, 127 S. Ct. 3078 (June

A eee ‘)
Chan v. Korean Air Lines, Ltd., 490 U.S. 122

ERS RES Se 20
Chew Heong v. United States, 112 U.S. 536

EEE EELS EE TE AEN ne 19, 20
Durousseau v. United States, 10 U.S. (6 Cranch)

ERNE ES A SAE A 5
E] Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng,

LE A a 20, 21
Ex Parte Bollman, 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) .........ccccceeceeeceees ‘)

Felker v. Turpin, 518 U.S. 651 (1996) ...0..000.000000... 5, 6

1V

Haig v. Agee, 453 U.S. 280 (1981) ..........ccceeeceeeeeees 18
Hamdan v. Rumsfeld, 126 S. Ct. 2749

— ESSPESRER SPREE Pare aioe raven eT 4,14
Harris v. Nelson, 394 U.S. 286 (1969) .0.....0.....cccceeeee )

Hirabayashi v. United States, 320 U.S. 81 (1943).. 18
In re Yamashita, 327 U.S. 1 (1946) ........cccce cece S)
INS v. St. Cyr, 533 U.S. 289 (2001)........... cece 10

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

Peyton v. Rowe, 391 U.S. 54 (1968).......00..ccccecceeee. 7
Powell v. McCormack, 395 U.S. 486 (1969) ............ 16
R. v. Schiever, 2 Burr. 765 (1759)..........c.0:0000000 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) .0........cccceeeee 19
Sullivan v. Kidd, 254 U.S. 433 (1921) ....... pitied 17
Sumitomo Shoji Am., Inc. v. Avagliano,

a ee Se iiiciceesiiereeniiabdiensinteseninitabcnnishacania’ 19
Swain v. Pressley, 430 U.S. 372 (1977)..........0. 7, 8,9

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

v

Statutes, Constitutions, and Other Laws

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

Se SN NE csisninsteianinsiitisesianinianpiihinansesbeineie 4,9
Military Commissions Act of 2006, Pub. L. No.
og BS ee 4,6,9
fe RR RR enn 17
eee 8 eee 4,5,6
Other Authorities

Diplomatic Conference of Geneva of 1949,
Geneva, Switz., April 26-Aug. 12, 1949,
BA Pied Bence EGO ....ccceccccecevecessscsevesesceesses 24

Diplomatic Conference of Geneva of 1949,
Geneva, Switz., April 26-Aug. 12, 1949,
2B Final Record
RET 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)
SIRE SEN aia Rene ee ce eee Eom 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,
NESE eT ee cee ne eet oS Ey a 10, 11

vi

Nathan A. Canestaro, “Small Wars" and the
Law: Options for Prosecuting the Insurgents
in Iraq, 43 Colum. J. Transnat’] L. 73
RTE RAG a ny oe Serna eRe aR aM eRe Aw 21

Winston S. Churchill, The Grand Alliance

Commentary II Geneva Convention for the
Amelioration of the Condition of the
Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea WJean S. Pictet, ed.,
EERIE REE eae rain eerciee anne ernTr aE 27

Commentary III] Geneva Convention Relative to
the Treatment of Prisoners of War (Jean S.
Pictet, ed., ICRC 1960) ... 15, 16, 21, 23, 24, 26, 27

Commentary [IV Geneva Convention Relative to
the Protection of Civilian Persons in Time of
War (Jean S. Pictet, ed., ICRC 1958) ..........0..... 15

G.LA.D. Draper, The Status of Combatants and
the Question of Guerilla Warfare, 45 Brit.
_s & ,,%. |. <TR 14, 15

Tom Farer, Humanitarian Law and Armed
Conflicts: Toward the _ Definition of
‘International Armed Conflict,” 71 Colum. L.
I a aihcenens 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, /nternational Law
ES RPC Sloe ar sese or ae pe nr aC Ne 11

Sir Arnold Duncan McNair, Lega/ Effects of War
es Aa iencincsiasecesainseesiindidertctnsinieiinapianmanonesvangas 11

Oxford Dictionary of Political Quotations
EE eee 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?id=47437............... 8,9

GC II cmt.

GC Ill

GC III cmt.

GC IV cmt.

ICRC

vill

ABBREVIATIONS

Commentary Il Geneva
Convention for the Amelioration
of the Condition of the Wounded,
Sick and Shipwrecked Members
of Armed Forces at Sea

Geneva Convention (IID Relative

to the Treatment of Prisoners of
War

Commentary Ill Geneva
Convention Relative to the
Treatment of Prisoners of War

Commentary IV Geneva
Convention Relative to the

Protection of Civilian Persons in
Time of War

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 E]-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 r sult, 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. /d. 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 Rasu/, 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. /d. at 479.

The fasu/ 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 Act of 2005 (“DTA”), Pub. L. No. 109-148,
119 Stat. 2680, in an attempt to overrule by statute
what this Court had decided in Rasu/. 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 controversial. 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 Bollman, 8 U.S.
(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. Lisentrager,
339 U.S. at 777-78. In Rasul, this Court concluded
that U.S. courts have statutory authority to hear
such requests. Rasu/, 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, 420
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 “exact/y commensuraté’
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 III 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 legally constituted, and whether it had
jurisdiction to impose punishment for the conduct
charged.” Lisentrager, 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 the 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,

.ountries.” 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?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 Assn 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

Td. (citing Sir Arnold Duncan McNair, /nternational
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 li.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 Warl 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.” Td. 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. 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 McNai:’s usage of the phrase, the
detainees at Guantanamo Bay—persons 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,” id. 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, Sguare 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 ap 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 [i.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 [i.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”); (2) 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 iplications 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 on behalf of the
United States. U.S. Const. art. II, § 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 “comstruction 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 g-als 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, e.g. 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 enough, 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, and 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 The 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 Aave
traditionally considered as aids to its interpretation
the negotiating and drafting history ****” E] 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.”4 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 conflict 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 interna! 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. £2e, 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 language—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

‘Note 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 internal conflicts, such as
insurgencies and rebellions. See, eg, 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

6 See 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 minimum, 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 (noting
even before the Geneva Conference began that
“ItIhere 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 emt. 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0526%3A20. Public record. Not legal advice.