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

Nos. 06-1195 & 06-1196 AUG 2 4 2007

eee OF THE Tos

Sei Court of the United States

LAKHDAR BOUMEDIENE, et ai.,

Petitioners,

v.

GEORGE W. BUSH, et ai.,

Respondents.

KHALED A.F. AL ODAH, NEXT FRIEND OF FAWZI

KHALID ABDULLAH FAHAD AL ODAH, et al.,

Petitioners,

v.

UNITED STATES OF AMERICA, et ai.,

Respondents.

On WrRITs OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE CANADIAN

PARLIAMENTARIANS AND PROFESSORS

OF LAW IN SUPPORT OF REVERSAL

CRAIG FORCESE WiuiaM R. STEIN

FACULTY OF Law Counsel of Record

UNIVERSITY OF OTTAWA Scott H. CHRISTENSEN

57 Louis Pasteur Street HuGHEs HuBBarRD & REED LLP

Ottawa, Ontario K1N 6N5 1775 1 Street, N.W.

Canada Washington, D.C. 20006

(202) 721-4600

Counsel for Amici Curiae Canadian

Parliamentarians and Professors of Law

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAE

SUMMARY OF ARGUMENT

Il.

TABLE OF CONTENTS

CUSTOMARY INTERNATIONAL LAW

SHOULD INFORM THIS COURT’S

DECISION ON THE

CONSTITUTIONALITY OF THE

MILITARY COMMISSIONS ACT

UNDER THE SUSPENSION CLAUSE ..........

A. The Application Of Constitutionai

Provisions To Non-Citizens Should Be

Decided In The Context Of The United

States’ Obligations Under Customary

NE ICT Cee Oe

B. U.S. Obligations Under Customary

International Law Apply To Detainees

At Guantanamo Bay..............:cccceeseceeeeees

THE MILITARY COMMISSIONS ACT IS

INCONSISTENT WITH USS.

OBLIGATIONS UNDER CUSTOMARY

INTERNATIONAL LAW TO PROVIDE

MINIMUM STANDARDS OF

TREATMENT TO FOREIGN

Dene cms csescnniendimpenitoniiccnetnocmniennpassceees

A. The Minimum Standards Of Treatment

Guarantee The Right To Independent

SEETHER HEHEHE OTHER

SECRETE HERERO HEHE EEO e

SOCORRO EEE E EEE HEHE HEHEHE EEE EEE HEHEHE EHEEEE

ii

And Impartial Review Of The Basis

EI reno 12

1. Minimum standards of treatment

require that non-citizens have

access to independent judicial

review of the basis for arrest and

re ichecinscehtiheciteanihiiesianecisinintinioesies 13

2. Minimum standards of treatment

protect non-citizens against

GOMRES OF FABICE.......00000ccccsccecceserceees 16

3. The Military Commissions Act

violates these minimum

standards of treatment...................... 18

B. The MCA Violates Minimum

Standards Of Treatment Guaranteeing

Non-Discriminatory Treatment Of

Non-Citizens With Respect To Core

Se niceticthnintetnninpnsitevesditnimnenconsiescion 21

1. Minimum standards of treatment

bar discrimination based on

national origin with respect to

access to habeas-type relief.............. 21

2. The Military Commissions Act

violates the non-discrimination

SE haiecinantenbeviiesnbiiaiinescneenenseisinin 23

C. U.S. Obligations Under Customary

International Law Apply During Times

he FI ccciccctctsnitctntcinnvinnnnianesion 24

GIES cevecemencescnneniecnpusnanmmnenienseninienmenenmmansenniaen 26

lil.

TABLE OF AUTHORITIES

U.S. CASES

Atkins v. Virginia, 536 U.S. 304 (2002)........sccscesceeeeeseeeneeees 4

EM Ltd. v. Republic of Argentina, 473 F.3d 463 (2d

EERE eee ec ere ere ee ee ne aS 10

Hamdan v. Rumsfeld, 548 U.S. __, 126 S. Ct. 2749

STII tasiedaierssshchiiceaiteciemanstiiaievbeaninicvtaibinibtiatbesdgeteranbiancwniiniete 5, 20

Lawrence v. Texas, 539 U.S. 558 (2003) ........:cccesseseeeeeseeeee 4

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

ITI iti csc ctscieniniedicaaiecitiibpindleansihintinentonsantuoonniias 6

The Nereide, 13 U.S. (9 Cranch) 388 (1815) .......... eee 6

The Paquete Habana, 175 U.S. 677 (1900) .........ccccceeeeeeeeeees 6

Pierce v. Carskadon, 83 U.S. 234 (1872) .......ccccccccccceeeeseeees 19

Rasul v. Bush, 542 U.S. 466 (2004) .0...ccccccceeeeeeeeeneees 10, 16

Roper v. Simmons, 543 U.S. 551 (2005) .......cccccsecssseeseeesseeeeee 4

Thompson v. Oklahoma, 487 U.S. 815 (1988)..........cccccceeee 4

United States v. Romano, 706 F.2d 370 (2d Cir. 1983)....... 17

West v. Multibanco Comermex, §.A., 807 F.2d 820

RCO, TIBI) n2ccccocccsnsosevsvssosvsscssonsesesesveseosonsneneesensqsosooses 21

Zadvydas v. Davis, 533 U.S. 678 (2001) ......cccecceseeceeseeeeeee 16

iV

U.S. STATUTES AND

ADMINISTRATIVE MATERIALS

WARIIE. 0 DU isciisctviscissssroctstnhannsncnaensteannad 24

I a icciccidstaissicnensibidiameesamicaaeaaa 23

RTI II ocr srecsnrenrnsninicionimnsaiatideriail 23

I 1 asisesccesrisinicsieidebessitsisiiaiiieimeuasasamiaia 10

127 Cong. Rec. $27,419-21 (1981) ....ccccsesssssssvssssssssssssssesenee 8

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

REO meee ener re 19-20

Exec. Order No. 8749, 6 Fed. Reg. 2252 (May 3, 1941) .... 10

Military Commissions Act of 2006, Pub. L. No. 109-

Py RN TIED cenccsccncsstnsecicctensnnianntosaiiinndiaie passim

S. Exec. Rep. No. 97-23 (1981) c.ccccssssescssssssssessesssssessseessseeen 8

PUBLICATIONS

Arms Control and Disarmament, 1978 Digest § 7 ................ 8

Harry A. Blackmun, The Supreme Court and the Law

of Nations, 104 Yale L.J. 39 (1994)... cececccceeeeteeseeeeeeees 2

Edwir M. Borchard, The Diplomatic Protection of

Citizens Abroad, or the Law of International Claims

CTW scxcsinssiescternnccinninpiiniieiigéenninattitiaebiipaamiastibaaiansaninnine 12, 17

David Clark & Gerard McCoy, The Most

Fundamental Legal Right: Habeas Corpus in the

CTS Cie ctctscnicsccinaiinnsnaiapsinsinsiaivaiitisedocsiaats 18

Vv

_ Frank Griffith Dawson & Ivan L. Head, Jnternational

Law National Tribunals and the Rights of Aliens

Sel iniciebiinsntninnststneinintnatetamanennaian iideientaneaniennaee emamnenteees 10

Restatement (Third) of Foreign Relations Law § 711

Sarah Joseph, Jenny Schultz and Melissa Castan, The

International Covenant on Civil and Political Rights:

Cases, Materials and Commentary (2d ed. 2004).............. 14

OTHER AUTHORITIES

A y. Australia, U.N. Hum. Rts. Comm.,

Communication No. 560/1993, U.N. Doc.

CCPR/C/59/D/560/1993 (1997) ........cccccecscsscessessecesseeeeeees 15

Agreement for the Lease to the United States of

Lands in Cuba for Coaling and Naval Stations,

U.S.-Cuba, Feb. 16-23, 1903, T.S. No. 418............0c00:000 10

Baban v. Australia, U.N. Hum. Rts. Comm.,

Communication No. 1014/2001, U.N. Doc.

CCPR/C/78/D/1014/2001 (2003) .........cccccccccceescecssceeseeesees 15

Bakhtiyari v. Australia, U.N. Hum. Rts. Comm.,

Communication No. 1069/2002, U.N. Doc.

CCPR/C/79/D/1069/2002 (2003) ........ccccccccsesceeeseceesees 14, 15

Bandajevsky v. Bela us, U.N. Hum. Rts. Comm.,

Communication No. 1100/2002, U.N. Doc.

CCPR/C/86/D/1 100/2002 (2006) ..........cccccccccceseeeeseees 14, 15

C. v. Australia, U.N. Hum. Rts. Comm..,

Communication No. 900/1999, U.N. Doc.

CCPR/C/76/D/900/1999 (2002) ...........cccccecceceecseeceeceececeees 15

vi

Carranza Alegre v. Peru, U.N. Hum. Rts. Comm.,

Communication No.1 126/2002, U.N. Doc.

CCPR/C/85/D/1 126/200228 (Nov. 17, 2005) ................... 14

Case Concerning the Application of the Convention

on the Prevention and Punishment of the Crime of

Genocide (Bosn. & Herz. v. Serb. & Mont.),

General List No. 91,2007LC.J. _— (Feb. 26) ............... 8-9

Charkaoui v. Canada, 2007 SCC 9 (Cam). .....ccccccsceseeeeeeees 16

Council of Europe, Convention for the Protection of

Human Rights and Fundamental Freedoms, opened

for signature Apr. 11, 1950, 213 U.N.T\S. 221........... 16, 18

Habeas Corpus in Emergency Situations (Arts. 27(2),

~ 25(1) ate. (6) American Convention on Human

Rights), Advisory Opinion, 1987 Inter-Am. Ct. H.R.

Oaee. Ae a ek TE eestmeemes 18

International Covenant on Civil and Political Rights,

opened for signature Dec. 16, 1966, 999 U.N.T.S:

171 (entered into force Mar. 23, 1976) ...............0000 passim

Legal Consequences of the Construction of a Wall in

the Occupied Palestinian Territory, Advisory

Opinion, 2004 L.C.J. 136 (July 9) ...........csccscsseeseseeereeseeees 9

Lopez Burgos v. Uruguay, U.N. Hum. Rts. Comm.,

Communication No. 52/1979, U. N. Doc.

ee 9

I i ale 21

Sy YG 8 Oe ee 4-6

Vii

Rameka v. New Zealand, U.N. Hum. Rts. Comm.,

Communication No. 1090/2002, U.N. Doc.

CCPR/C/79/D/1090/2002 (2003 > ...........:2.0000 Bi 15-16

Report of the International Law Commission to the

General Assembly, 56 U.N. GAOR Supp. (No. 10),

ee es I iccttnctsinntncenssesnimunencssennsemneetzarsen 25

Shafiq v. Australia, U.N. Hum. Rts. Comm.,

Communication No. 1324/2004, U.N. Doc.

CCPR/C/88/D/1324/2004 (2006) ........-..ssccceceeeeeeeeeeeeneens 14

Treaty for the Prohibition of Nuclear Weapons in

Latin America, opened for signature Feb. 14, 1967,

I Ait iiietetcirenedsnesitineciniisindtiionidaneaseninenesesnmenscens 7

Vuolanne v. Finland, U.N. Hum. Rts. Comm.,

Communication No. 265/87, U.N. Doc. Supp. No.

I 15

U.N. Hum. Rts. Comm., Concluding Observations:

United States, advance unedited version, 87th Sess.

Se A ctinsssinccetininiinieniicesinninteinennintemnsteiennméntnnen 16

U.N. Hum. Rts. Comm., General Comment 31,59 U.N.

GAOR Supp. (No. 40), U.N. Doc. A/59/40 (2004)............. )

U.S. Dep’t of State, Treaty for the Prohibition of

Nuclear Weapons in Latin America and the

Caribbean (Treaty of Tlatelolco) ............cccccseeeereeeeeeeeeeereees 8

Paul Wolfowitz, Deputy Secretary of Defense,

Memorandum for the Secretary of the Navy re:

Order Establishing Combatant Status Review

cg BF 24

Zaoui v Attorney-General (No 2), [2006] 1 N.Z.L.R.

NE Sa ienicniihienpsiseietncitensivinninensndetninionainasiesmapeinnnnnnnntnnienies 4-5

Amici curiae support reversal of the judgment of the

United: States Court of Appeals for the District of Columbia

Circuit entered in these consolidated cases. 476 F.3d 934

(D.C. Cir. 2006).

INTEREST OF THE AMICI CURIAE

Amici are Canadian parliamentarians and Canadian

professors of law with an interest in international and public

law and, in many cases, expertise in the areas of public and

international law implicated in these cases. Their names and

affiliations are listed in the Appendix to this brief.

These cases raise matters of particular relevance to

Canadian lawmakers and law professors. First, Canada is a

staunch ally of the United States and has deployed soldiers in

Afghanistan alongside U.S. troops. Canadian lawmakers and

law professors have, therefore, 2 strong interest in an

outcome in these cases that corresponds closely to existing

doctrines of international law applied by Canada and other

allied nations.

Second, one of the detainees affected by these cases,

Omar Khadr, is a Canadian citizen who has been detained at

Guantanamo Bay since 2002, following his capture by U.S.

forces in Afghanistan. He has been charged with various

offences and is in proceedings before the Military

Commission. Canadian lawmakers and law professors have

a strong interest in urging treatment of Canadian citizens that

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

amici certifies that no counsel for a party authored this brief in whole

or in part and that no person, other than amici, its members, or its

counsel, made a monetary contribution to the preparation or

submission of this brief.

meets internationally-recognized standards, not least those

established in customary international law as described

below.

Third, the international context of these cases

imprints this Court’s deliberations with precedential

significance that extends beyond the United States. The

United States’ contribution to the rule of law and human

rights has been exceptional and in many cases foundational.

There are principles at stake in this appeal that transcend the

interests of any Petitioner. How this Court construes the

obligations of the United States in relation to the treatment

and prosecution of alien detainees in an inchoate and

potentially indefinite campaign against terrorism will affect

how other nations understand their own, identical obligations

in this campaign and in future conflicts. The interests of the

United States and the global community are best served by

an approach that hews closely to existing standards of

customary international law. An approach inconsistent with

doctrines of international law will generate uncertainty about

the scope of international norms and could redound to the

detriment of the United States and its allies (such as Canada)

by encouraging similar practices by states antagonistic to the

United States and its allies. In this arena, the interpretation

of the U.S. legal principles at issue in these cases should, in

the words of Justice Harry A. Blackmun, “be informed by a

decent respect for the global opinions of mankind.”

? Harry A. Blackmun, The Supreme Court and the Law of Nations,

104 Yale L.J. 39, 48 (1994) (referring specifically to the Eighth

Amendment).

SUMMARY OF ARGUMENT

Petitioners in these cases are foreign nationals who

have been detained indefinitely at a military facility

controlled by the United States at Guantanamo Bay. The

Military Commissions Act of 2006 (“MCA”) denies non-

citizens the right to petition an impartial and fair judiciary

for a writ of habeas corpus.’ This Court is asked to decide

whether the MCA violates the Suspension Clause of the U.S.

Constitution. The application of constitutional provisions to

non-citizens should be decided in the context of the United

States’ obligations under customary international law. Those

obligations apply to detainees at Guantanamo Bay because it

is under exclusive and comprehensive U.S. control. As a

result, customary international law should inform this

Court’s decision on the constitutionality of the MCA.

By restricting non-citizen detainees’ meaningful

access to any independent and impartial tribunal to challenge

the basis for their confinement — i.e., by prohibiting relief

akin to habeas corpus — the MCA violates customary

international law. In particular, the MCA fails to meet the

minimum standards set by customary international rules on

the treatment of aliens, including during times of armed

conflict. The MCA falls far short of those minimum

standards because it (1) deprives aliens of core protections

afforded by customary international norms and

(2) impermissibly discriminates between citizens and non-

citizens by denying non-citizens internationally-recognized

legal nghts to which citizens and non-citizens are both

entitled.

> Pub. L. No. 109-366, § 7, 120 Stat. 2600, 2635-36 (2006).

ARGUMENT

I. CUSTOMARY INTERNATIONAL LAW

SHOULD INFORM THIS COURT’S DECISION

ON THE CONSTITUTIONALITY OF THE

MILITARY COMMISSIONS ACT UNDER THE

SUSPENSION CLAUSE

On numerous occasions, this Court has looked to

international precedent and practice to inform its position on

constitutional issues.* This Court’s practice is consistent

with other common law jurisdictions with written bills of

rights.” It is also an important approach on issues that

* See, e.g., Roper v. Simmons, 543 U.S. 551, 575-78 (2005) (looking

to international practice and treaties in interpreting the Eighth

Amendment’s application to the juvenile death penalty); Lawrence v.

Texas, 539 U.S. 558, 572-73 (2003) (invoking the laws and practices

of other countries, international treaties, and decisions of the

European Court of Human Rights, in determining applicability of the

Due Process Clause of the Fourteenth Amendment on state power to

proscribe private sexual conduct between consenting adults); Atkins

v. Virginia, 536 U.S. 304, 316 n.21 (2002) (noting that “within the

world community, the imposition of the death penalty for crimes

committed by mentally retarded offenders is overwhelmingly

disapproved” in determining whether the practice transgresses the

prohibition against cruel and unusual punishment); Thompson v.

Oklahoma, 487 U.S. 815, 830-31 (1988) (contemplating world

opinion and practice in determining whether the Constitution would

permit execution of criminals under the age of 16).

5 See, e.g., R. v. Hape, 2007 SCC 26 4 55-56 (Can.) (in interpreting

Canada’s constitutionalized bill of rights, the Canadian Charter of

Rights and Freedoms, the court signaled the need to “ensure

consistency between its interpretation of the Charter, on the one

hand, and Canada’s international obligations and the relevant

principles of international law, on the other” and held that in

“interpreting the scope of application of the Charter, the courts

should seek to ensure compliance with Canada’s binding obligations

under international law where the express words are capable of

supporting such a construction”); Zaoui v Attorney-General (No 2),

implicate the interests of the international community.°

These are not cases in which the Court is being asked to

apply international law in its assessments of rights that touch

exclusively on United States territory, persons, and interests.

Rather, the subject matter of these cases concerns non-

citizens who were captured outside the territories of the

United States in a conflict governed by international law,’

and who are detained at a military facility whose status is, in

part, governed by an international agreement. In deciding

whether the MCA violates the Suspension Clause, therefore,

the Court should consider whether the United States’

obligations to non-citizens under customary international law

include the obligation to provide relief akin to habeas corpus

to allow them to challenge their indefinite detention.

A. The Application Of Constitutional Provisions

To Non-Citizens Should Be Decided In The

Context Of The United States’ Obligations

Under Customary International Law

Not long after the nght to petition for a writ of habeas

corpus was enshrined in the U.S. Constitution, this Court

recognized customary international law as part of U.S. law.

The earliest cases interpreting the status of customary

[2006] 1 N.Z.L.R. 289, § 90 (N.Z.S.C.) (interpreting the New

Zealand Bill of Rights in keeping with the International Covenant on

Civil and Political Rights).

See R. v. Hape, supra note 5, 433 (observing that, where the

application of the Charter “implicates interstate relations, the tools

that assist in the interpretation exercise include Canada’s obligations

under international Jaw and the principle of the comity of nations”).

” See Hamdan v. Rumsfeld, 548 U.S. _, 126 S. Ct. 2749, 2795-98

(2006) (applying the Geneva Conventions, and specifically Common

Article 3).

international law held that international law was part of U.S.

law and binding on the actions of the government. The

Court explained that it is generally “bound by the law of

nations which is a part of the law of the land.” The Nereide,

13 U.S. (9 Cranch) 388, 423 (1815); see The Paquete

Habana, 175 U.S. 677, 700 (1900) (“International law is part

of our law, and must be ascertained and administered by the

courts of justice of appropriate jurisdiction as often as

questions of right depending on it are duly presented for their

determination.”).

To be sure, Congress may by statute supersede

customary international law. Any such legislative

enactment, of course, must be consistent with the

Constitution. And, we submit, in examining whether

legislation in derogation of customary international law

violates a constitutional provision, the Court should apply

the same rule of construction it applies to an act of Congress:

the constitutional provision “ought never to be construed to

violate the law of nations if any other possible construction

remains.” Murray v. Schooner Charming Betsy, 6 U.S. (2

Cranch) 64, 118 (1804) (Marshall, C.J.); see also The

- Paquete Habana, 175 U.S. at 700 (courts must look to

“customs and usages of civilized nations” in interpreting

domestic law). This approach would be consistent with that

adopted by other common law jurisdictions. See, e.g., R. v.

Hape, 2007 SCC 26 4955-56 (Can.) (interpreting the

Canadian Charter of Rights and Freedoms consistently with

international law). Accordingly, in determining the

application of the Suspension Clause to the detainees at

Guantanamo, the Court should construe the clause so as to

effectuate, not violate, the United States’ obligations under

customary international law.

As we show below, customary international law

requires the United States to afford aliens under its control a

judicial remedy that is akin to habeas corpus. The Court,

therefore, should construe the Suspension Clause to

guarantee aliens under U.S. control at Guantanamo access to

the Great Writ. The MCA, by purporting to foreclose access

to that remedy, violates the Constitution as well as the

standards of customary international law.

B. U.S. Obligations Under Customary

International Law Apply To Detainees At

Guantanamo Bay

The United States’ obligations under customary

international law apply to detainees at Guantanamo Bay.

First, the United States has accepted that, as a matter

of international law, the military base at Guantanamo is

territory for which it is internationally responsible. In 1978,

President Carter transmitted to the Senate, for its advice and

consent to ratification, Additional Protocol I to the 1967

Treaty for the Prohibition of Nuclear Weapons in Latin

America (Treaty of Tlatelolco). This protocol commits state

parties to respect certain obligations on the deployment of

nuclear weapons “in Latin America in territories for which,

de jure or de facto, they are internationally responsible.”®

The Secretary of State’s accompanying report to the

* Treaty for the Prohibition of Nuclear Weapons in Latin America,

Additional Protocol I art. 1, opened for signature Feb. 14, 1967,

1968 U.N.T.S. 326.

President on the Protocol, also transmitted to the Senate,

observed that:

By adhering to Protocol I, the United States

undertakes to apply [certain articles] of the

Treaty to territories within the zone of

application [of the Treaty] for which, de jure

or de facto, the United States is internationally

responsible (Article 1). The territories

affected by our adherence to Protocol I will

include Puerto Rico, the Virgin Islands, the

Canal Zone (until entry into force of the

Panama Canal Treaties), and our military base

at Guantanamo.”

The Senate ratified Additional Protocol I in November 1981

without attaching any understandings material to the

question of the United States’ international responsibility for

Guantanamo Bay.'°

As the state de jure or de facto internationally

responsible for the military base at Guantanamo, the United

States bears unquestionable international responsibility for

actions undertaken by its officials within that territory.'' The

Arms Control and Disarmament, 1978 Digest § 7, at 1616 (quoting

the accompanying report to the President from Secretary of State

Cyrus R. Vance on Additional Protocol I, dated May 15, 1978)

(emphasis added).

127 Cong. Rec. $27,419-21 (1981); S. Exec. Rep. No. 97-23 (1981);

see also U.S. Dep’t of State, Treaty for the Prohibition of Nuclear

Weapons in Latin America and the Caribbean (Treaty of Tlatelolco)

(summarizing the Senate understandings and reiterating that “[t}he

U.S. Protocol I territories include Puerto Rico, the U.S. Virgin

Islands, and the naval base at Guantanamo Bay”), available at

http://www.state.gov/t/ac/trt/4796.htm.

Case Concerning the Application of the Convention on the

Prevention and Punishment of the Crime of Genocide (Bosn. &

substantive international law standards discussed below thus

attach to U.S. conduct at Guantanamo Bay.

Second, the factual circumstances at Guantanamo

Bay attract application of the international human nights

obligations found in the International Covenant on Civil and

Political Rights (“ICCPR”)."? As noted below, ICCPR rights

apply also as customary standards of minimum treatment of

aliens. By its own terms, the.ICCPR requires the United

States “to respect and to ensure to all individuals within its

territory and subject to its jurisdiction the nights recognized

in” the treaty.'? A state’s “jurisdiction,” of course, may

extend beyond its sovereign territory and protect persons

within the power and effective control of the state, even

outside of that state’s territory.’*

Herz. v. Serb. & Mont.), General List No. 91,2007 LC.J. _, $385

(Feb. 26) (describing the “well-established rule, one of the

cornerstones of the law of State responsibility, that the conduct of

any State organ is to be considered an act of the State under

international law, and therefore gives rise to the responsibility of the

State if it constitutes a breach of an international obligation of the

State”).

2 Opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into

force Mar. 23, 1976).

3 ICCPR art. 2(1).

See, e.g., Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136,

180 (July 9); U.N. Hum. Rts. Comm., General Comment 31, 59 U.N.

GAOR Supp. (No. 40) 4 10, U.N. Doc. A/59/40 (2004); Lopez

Burgos v. Uruguay, U.N. Hum. Rts. Comm., Communication No.

52/1979, 9 12.3, U. N. Doc. CCPR/C/13/D/52/1979 (1981) (noting

that Article 2(1)’s references to jurisdiction and territory “does not

imply that the State party concerned cannot be held accountable for

the violations of rights under the Covenant which its agents commit

upon the territory of another State, whether with the acquiescence of

the Government of that State or in opposition to it’).

10

The military base at Guantanamo lies within the

“exclusive jurisdiction and control” of the United States.

Rasul v. Bush, 542 U.S. 466, 476 (2004). Under the

agreement between the United States and Cuba, “the United

States shall exercise complete jurisdiction and control over

and within” Guantanamo.'* An executive order'® and federal

_ regulations'’ control access and egress from this territory.'®

Accordingly, in its activities at Guantanamo, the United

States is required to adhere to its obligations under

customary international law.

II. THE MILITARY COMMISSIONS ACT IS

INCONSISTENT WITH U.S. OBLIGATIONS

UNDER CUSTOMARY INTERNATIONAL

LAW TO PROVIDE MINIMUM STANDARDS

OF TREATMENT TO FOREIGN NATIONALS

For more than a century, customary international law

has recognized that states must not treat aliens in a manner

that violates international “minimum standards of

treatment.”'? Minimum standards of treatment include basic

'S Agreement for the Lease to the United States of Lands in Cuba for

Coaling and Naval Stations, U.S.-Cuba, art. III, Feb. 16-23, 1903,

T.S. No. 418.

1 Exec. Order No. 8749, 6 Fed. Reg. 2252 (May 3, 1941).

7” 32 CFR. pt. 761.

'8 For example, persons may only be admitted to the Guantanamo

military bas. with the authorization of U.S. military officials. 32

C.F.R. §§ 761.8-761.19.

"9 See, e.g., Restatement (Third) of Foreign Relations Law § 711

(1987) (discussing the nature and customary status of minimum

treatment); EM Ltd. v. Republic of Argentina, 473 F.3d 463, 466 n.2

(2d Cir. 2007) (citing Frank Griffith Dawson & Ivan L. Head,

International Law National Tribunals and the Rights of Aliens 10

(1971) (describing the “International Minimum Standard of Justice”

11

substantive human rights, including a right to independent

and impartial review of the basis for detention. Minimum

standards of treatment also preclude a state from

discriminating in the application of these rights on the basis

of national origin. A detention system that denies the right

to seek prompt habeas-type relief from a _ regularly-

constituted court violates these standards of international

law.

The doctrine of reciprocity underlies the minimum

standards of treatment. Prior to the emergence of

international human rights law following World War II, the

two main sources of individual protection under international

law were the laws of war (later “humanitarian law’’) and the

rules of minimum treatment (defended through the doctrine |

of diplomatic protection). In both instances, while the right

and the correlative duty reside in states, the benefit inures to

individuals. Humanitarian law and the law of minimum

treatment presupp’ se that all states share an equal interest in

the fair treatment of their citizens at the hands of foreign

states, whether during conflict or peace time. Inherent in a

state’s desire to ensure fair treatment of its own citizens by

foreign states is the corresponding obligation to treat fairly

aliens over whom it has power. As U.S. jurist and State

Department attorney Edwin Borchard wrote in his seminal

1915 treatise on the diplomatic protection of citizens abroad:

The views and the principles [the United

States] has declared in the exercise of its right

to protect American citizens abroad have, as a

as “the standard of substantive and procedural treatment which

aliens purportedly should receive in ‘civilized’ States and which they

thus should receive abroad under international law’’)).

12

general rule, been tempered by the knowledge

that that it must recognize as belonging to

aliens within this country the same rights that

it seeks to establish for its citizens abroad, the

measure of its obligations being the measure

of its rights.”° |

Borchard’s observation remains timely almost a century

later.

A. The Minimum Standards Of Treatment

Guarantee The Right To Independent And

Impartial Review Of The Basis For Detention

Minimum treatment standards include important

substantive guarantees. Thus, the United States, like all

_ States,

is responsible under international law for

injury to a national of another state caused by

an official act or omission that violates (a) a

human right that ... a state is obligated to

respect for all persons subject to its authority;

[or] (b)a_ personal right that, under

international law, a state is obligated to

respect for individuals of foreign nationality.”'

This doctrine of minimum treatment predates international

human rights law.” The latter now incorporates protections

once guaranteed exclusively by the minimum treatment

standards, but does so without diminishing the content of

customary minimum treatment.

20 Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad,

or the Law of International Claims, at viii (1915).

2! Restatement (Third) of Foreign Relations Law § 711.

22 § 711 reporters’ note 2.

13

For this reason, the substantive customary minimum

treatment standard is transgressed where a state violates

“those rights which the state is obligated to respect for all

persons subject to its authority. whether pursuant to

international human rights agreements to which it is party or

under the customary law of human rights.””’ Specifically, a

state’s responsibility to individuals of foreign

nationality under customary law includes the

obligation to respect the civil and political

rights articulated in the principal international

human rights instruments — the Universal

Declaration and the /nternational Covenant on

Civil and Political Rights —- as rights of

human beings generally ..., but not political

rights that are recognized as human rights only

in relation to a person’s country of citizenship,

such as the right to vote and hold office, or the

right to return to one’s country.”

In this manner, most of the rights guaranteed in the ICCPR

are a material component of customary minimum treatment

standards and are properly at issue in these cases.

1. Minimum standards of treatment require

that non-citizens have access to

independent judicial review of the basis for

arrest and detention

The provision of the ICCPR most material to these

cases, Article 9(4), provides that: “Anyone who is deprived

of his liberty by arrest or detention shall be entitled to take

proceedings before a court, in order that that court may

> § 711 cmt. b.

** —§ 711 cmt. c (emphasis added).

14

decide without delay on the lawfulness of his detention and

order his release if the detention is not lawful.”*° This

provision was inspired by the common law writ of habeas

corpus,” and is designed to relieve persons of arbitrary

detentions in violation of Article 9(1).7’

Compliance with Article 9(4) requires “review of the

substantive justification of detention.””* This review must

“include the possibility of ordering release” where the

detention is arbitrary or otherwise violates the ICCPR and

must not be limited to a review of “mere formal compliance

of the detention with domestic law governing the

detention.”

25 ICCPR art. 9(4).

26 Sarah Joseph, Jenny Schultz and Melissz astan, The J/nternational

Covenant on Civil and Political Rights: Cases, Materials and

Commentary 330 (2d ed. 2004). Article 9(4) acts to preserve a

remedy akin to habeas corpus. For instance, the U.N. Human Rights

Committee has held that a law that restricted the possibility of

seeking habeas corpus relief with respect to persons under

investigation, in that case for the offence of terrorism, violated

Article 9(4). Carranza Alegre v. Peru, U.N. Hum. Rts. Comm.,

Communication No. 1126/2002, 49 3.3, 7.3, U.N. Doc. CCPR/C/85/

D/1126/2002 (2005); see also Bandajevsky v. Belarus, U.N. Hum.

Rts. Comm, Communication No. 1100/2002, 4 10.3-10.4, U.N.

Doc. CCPR/C/86/D/1100/2002 (2006) (Article 9(4) violated where

an individual was arrested pursuant to a law that did not allow a

challenge to that detention before a court).

27 Article 9(1) reads: “Everyone has the right to liberty and security of

person. No one shall be subjected to arbitrary arrest or detention. No

one shall be deprived of his liberty except on such grounds and in

accordance with such procedure as are established by law.”

28 Bakhtiyari v. Australia, U.N. Hum. Rts. Comm., Communication

No. 1069/2002, 9.5, U.N. Doc. CCPR/C/79/D/1069/2002 (2003).

2 Shafiq v. Australia, U.N. Hum. Rts. Comm., Communication No.

1324/2004, ¢ 7.4, U.N. Doc. CCPR/C/88/D/1324/2004 (2006); see

15

The review also must be by a “court,” even in cases

involving military detentions.°° The ICCPR guarantees that

any tribunal determining a criminal charge or any “rights and

obligations in a suit at law” must be “competent,

independent and impartial.”*' A determination of a habeas

corpus right before a court is a suit at law determining a

right; this judicial body must, therefore, be “competent,

independent and impartia

] 9932

30

31

32

also A v. Australia, U.N. Hum. Rts. Comm., Communication No.

560/1993, 9 9.5, U.N. Doc. CCPR/C/59/D/560/1993 (1997) (“While

domestic legal systems may institute differing methods for ensuring

court review of administrative detention, what is decisive for the

purposes of article 9, paragraph 4, is that such review is, in its

effects, real and not merely formal. By stipulating that the court must

have the power to order release ‘if the detention is not lawful,’

article 9, paragraph 4, requires that the court be empowered to order

release, if the detention is incompatible with the requirements in

article 9, paragraph 1, or in other provisions of the Covenant.”);

Bakhtiyari v. Australia, supra note 28, at 99.4 (concluding that

Article 9(4) was violated where the prolonged detention of a non-

citizen in immigration matters depended entirely on a determination

of whether that person was an alien with proper papers and there was

“no discretion for a domestic court to review the justification of her

detention in substantive terms”); Baban v. Australia, U.N. Hum. Rts.

Comm., Communication No. 1014/2001, 47.2, U.N. Doc.

CCPR/C/78/D/1014/2001 (2003) (same); C. v. Australia, U.N. Hum.

Rts. Comm., Communication No. 900/1999, 98.3, U.N. Doc.

CCPR/C/76/D/900/1999 (2002) (same).

See Vuoianne v. Finland, U.N. Hum. Rts. Comm., Communication

No. 265/1987, 4 9.6, U.N. Doc. CCPR/C/35/D/265/1987 (1989).

ICCPR art. 14(1).

See Bandajevsky v. Belarus, supra note 26, at 49 10.3-10.4

(concluding that Art. 9(4) was violated where there was no

possibility of challenging the lawfulness of a detention before a court

and noting, in a discussion incorporated into its conclusion on Art.

9(4), that “it is inherent to the proper exercise of judicial power, that

it be exercised by an authority which is independent, objective and

impartial in relation to the issues dealt with”); Rameka v. New

16

The habeas-type relief must be timely. Citing

international instruments’ and pointing to this Court’s

decisions, the Supreme Court of Canada recently ruled that

denying a detained suspected terrorist access to the courts for

a period of 120 days violated Canada’s constitutional right to

habeas corpus and the bar on arbitrary detention.» The

United Nations Human Rights Commission has underscored

that detainees at Guantanamo are entitled under Article 9 “to

proceedings before a court to decide without delay” the

legality of the detention.*°

2. Minimum standards of treatment protect

non-citizens against denials of justice

A state niay prosecute a non-citizen for crimes

committed in circumstances where it has jurisdiction over

the crime and the accused. In so doing, however, the state

Zealand, U.N. Hum. Rts. Comm., Communication No. 1090/2002,

47.4, U.N. Doc. CCPR/C/79/D/1090/2002 (2003) (suggesting that

Art. 9(4) would have been violated in a parole release vontext if the

parole board had been “insufficiently independent, impartial or

deficient in procedure for these purposes”).

3 Council of Europe, Convention for the Protection of Human Rights

and Fundamental Freedoms art. 5, opened for signature Apr. 11,

1950, 213 U.N.T.S. 221.

— Rasul, 542 U.S. 466; Zadvydas v. Davis, 533 U.S. 678 (2001).

> Charkaoui v. Canada, 2007 SCC 9, 4] 90-94 (Can.).

%° UN. Hum. Rts. Comm., Concluding Observations: United States,

advance unedited version, § 18, 87th Sess. (July 10-28, 2006),

available at http://www.ohchr.org/english/bodies/hre/docs/

AdvanceDocs/CCPR.C.USA.CO.pdf (emphasis added).

17

must not violate customary minimum treatment standards by

engaging in a “denial of justice.”””

The concept of “denial of justice” in customary

international law is defined as an injury “consisting of, or

resulting from, denial of access to courts, or denial of

procedural fairness and due process in relation to judicial

proceedings, whether criminal or civil.”** By the beginning

of the last century, it was established that:

Undoubtedly the absence of any impartial

tribunal from which justice may be sought, the

arbitrary control of the courts by the

government, the inability or unwillingness of

the courts to entertain and adjudicate upon the

grievances of a foreigner, or the use of, the

courts as instruments to oppress foreigners

and deprive them of their just mghts may each

and all be regarded as equivalent to a denial of

justice.*”

By the end of the last century, it was established that a state

is responsible

if it fails to provide to an alien remedies for

injury to person or property, whether inflicted

7 See, e.g., United States v. Romano, 706 F.2d 370, 375 (2d Cir. 1983)

(“In the absence of a denial of justice, as that concept is understood

in public international law, no principle of international law is

violated by a state which prosecutes and punishes an alien for a

crime committed in its own territory.”).

** Restatement (Third) of Foreign Relations Law § 711 cmt. a; see also

Romano, 706 F.2d at 375 (“In international law an alien may assert a

denial of justice only upon a demonstration of grave or serious

defects, such as a refusal to grant rights reasonably to be expected by

an accused in a criminal trial.”’).

39

Borchard, supra note 20, at 335-36 (footnotes omitted).

18

by the state or by private persons in

circumstances in which a remedy would be

provided by the major legal systems of the

world. That such remedy might not be

available because under domestic law the state

or an official is immune from suit does not

diminish the state’s responsibility under

international law.”°

It is indisputable that the major legal systems of the world

recognize a right to habeas corpus or similar relief.*'

3. The Military Commissions Act violates

these minimum standards of treatment

By denying non-citizens a mght to habeas corpus

relief before the regularly-constituted courts of the United

States,” the MCA violates the standard of minimum

40

4)

42

Restatement (Third) of Foreign Relations Law §711 cmt.e

(emphasis added).

The writ of habeas corpus features in the legal systems of common

law countries. See, e.g., David Clark & Gerard McCoy, The Most

Fundamental Legal Right: Habeas Corpus in the Commonwealth

(2000) (examining the habeas writ in the states of the British Empire

and Commonwealth). Under different names, it is also found in civil

law jurisdictions. See, e.g., Habeas Corpus in Emergency Situations

(Arts. 27(2), 25{1) and 7(6) American Convention on Human

Rights), Advisory Opinion, 1987 Inter-Am. Ct. H.R. (ser. A) No. 8,

49 32-43 (Jan. 30, 1987), available at http://www.corteidh.or.cr/

docs/opiniones/seriea_08 ing.pdf (noting the prevalence of the

habeas-like remedy of “amparo” and habeas itself in Latin America

and discussing the habeas protections in the American Convention

on Human Rights); see also European Convention, supra note 33,

art. Art 5(4) (guaranteeing a habeas right in the 46 European state

parties to that instrument).

See MCA § 3(a), 120 Stat. at 2623-24 (codified at 10 U.S.C.

§ 950j(b)) (“[N]o court, justice, or judge shall have jurisdiction to

hear or consider any claim or cause of action whatsoever . . . relating

to the prosecution, trial, or judgment of a military commission under

19

treatment under customary international law expressed in

human rights law and captured in the concept of denial of

justice. Indeed, the Supreme Court has previously

recognized that the deprivation of full and complete access to

the courts is a form of punishment.*’ This is precisely what

the MCA does by limiting detainees’ access to the courts for

habeas corpus petitions.

The MCA regime’s reliance on the Combatant Status

Review Tribunal (“CSRT”) is no substitute for habeas

corpus relief because it does not meet the competent,

impartial and independent tribunal standard required under

international law. These tribunals are not independent of the

executive. As Petitioners and other amici set forth in greater

detail, the form of appellate review in the D.C. Circuit limits

the grounds of review available to Petitioners and is too

cramped to overcome the infirmities of the CSRT.“* These

limitations would not exist on habeas corpus review.

Because the habeas-stripping provisions of the MCA

also purport to remove habeas authority over Military

this chapter, including challenges to the lawfulness of procedures of

military commissions under this chapter.”); § 7(a), 120 Stat. at 2636

(codified at 28 U.S.C. § 2241(e)(1)) (“No court, justice, or judge

shall have jurisdiction to hear or consider an application for a writ of

habeas corpus filed by or on behalf of an alien detained by the

United States who has been determined by the United States to have

been properly detained as an enemy combatant or is awaiting such

determination.”).

“Pierce v. Carskadon, 83 U.S. 234, 237-39 (1872) (holding that a

West Virginia law limiting access to the courts for former

Confederate sympathizers was an unlawful attainder).

Detainee Treatment Act of 2005, Pub. L. No. 109-148,

§ 100S(eX2)(C), 119 Stat. 2680, 2742 (scope of review for CSRT

determinations).

20

Commissions, the consequence of upholding the MCA »

would be to permit criminal trial and punishment —

including the death penalty — of detainees by the executive,

without meaningful recourse to a competent, impartial, and

independent tribunal as required by international law. The

D.C. Circuit’s scope of appellate review of military

commission decisions is circumscribed in exactly the same

manner as its review of CSRT determinations.” Thus,

contrary to this Court’s ruling in Hamdan v. Rumsfeld,”°

detainees would not be able to raise pre-trial challenges

before an independent tribunal on such fundamental

questions as whether the commission has subject matter

jurisdiction over offenses defined ex post facto, such as

conspiracy;*’ whether evidence obtained through coercion is

admissible;** or whether hearsay evidence may be used to

secure a conviction resulting in the death penalty.”

** Compare MCA §3, 120 Stat. at 2622 (codified at 10 U.S.C.

§ 950g(c)) (scope of review for military commissions) with Detainee

Treatment Act § 1005(e)(2)(C), 119 Stat. at 2742.

“© See 126 S. Ct. at 2788 (finding it “appropriate” to review military

commission procedures prior to a final decision).

“” See MCA §3, 120 Stat. at 2630 (codified at 10 U.S.C.

§ 950v(b)(28)) (defining conspiracy as a crime triable by military

commission).

“8 See MCA § 3(a), 120 Stat. at 2607 (codified at 10 U.S.C. § 948r(c),

(d)) (permitting the admission of a statement obtained by coercion so

long as the military judge deems the statement reliable, the interests

of justice would be served by its admission, and, for those statements

obtained after the enactment of the Detainee Treatment Act, the

methods used do not qualify as “cruel, inhuman, or degrading

treatment” under that Act).

*? See MCA § 3(a), 120 Stat. at 2608-09 (codified at 10 U.S.C. § 949a)

(providing the Secretary of Defense with wide latitude to establish

pretrial, trial and post-trial procedures, including the admission of

_—~

21

B. The MCA Violates Minimum Standards Of

Treatment Guaranteeing Non-Discriminatory

Treatment Of Non-Citizens With Respect To

Core Civil Rights

Minimum standards of treatment under customary

international law also’ indisputably incorporate non-

discrimination obligations, which bar treatment of non-

citizens in certain ways that fall below the treatment for

citizens. The MCA violates the principle of non-

discrimination.

1, Minimum standards of treatment bar

discrimination based on national origin

with respect to access to habeas-type relief

The minimum treatment standards preclude

discriminatory treatment that favors citizens over non-

citizens:

Internationally recognized human _ nights

generally apply to aliens as to nationals. ...

Discrimination against aliens in matters that

are not themselves human nghts may

nonetheless constitute a denial to the

individual of the equal protection of the

laws.”

hearsay evidence); Mil. Comm’n R. Evid. § 304(g)(1) (“An oral

confession or admission of the accused may be proved by the

testimony of anyone who heard the accused make it, even if it was

reduced to writing and the writing is not accounted for.”’).

*° Restatement (Third) of Foreign Relations Law § 711 cmt. f; see also

West v. Multibanco Comermex, S.A., 807 F.2d 820, 832 (9th Cir.

1987) (noting. in a case concerning an alleged taking by Mexico of

foreign-owned property that “[i]nternational law requires that aliens

22

While this limitation on discriminatory treatment does not

apply to all civil and political rights,” it does preclude

denials of justice reflecting discrimination between citizens

and non-citizens: “It is a wrong under international law for a

state to deny a foreign national access to domestic courts. . . .

That is the central meaning of ‘denial of justice.’”™

Under the minimum treatment standard, non-citizens

enjoy basic human rights “equally with the state’s own

nationals.””> —_ Indeed, by its own terms, the ICCPR

emphatically prohibits discriminatory application of rights

between nationals and non-nationals. In Article 2, it requires

“Tejach State Party to the present Covenant . . . to respect and

to ensure to all individuals within its territory and subject to

its jurisdiction the rights recognized in the present Covenant,

without distinction of any kind, such as ... national or

social origin.”™*

As noted, this requirement of non-discrimination on

the basis of national origin is relaxed for certain political

rights that are reserved for “citizens.” And, of course,

“aliens” may be expelled from national territories.*°

Discrimination on the basis of nationality, however, is

not be discriminated against or singled out for regulation by the

state”).

‘! For example, see those listed in Restatement (Third) of Foreign

Relations Law § 711 reporters’ note 2(C).

*2 -§ 711 reporters’ note 2(B).

°° § 711 cmt. b.

*# —ICCPR art. 2(1) (emphasis added).

8 See id. art. 25.

© See id. art. 13.

23

impermissible in relation to core legal rights. Thus, the

habeas-type protections in Article 9 of the ICCPR apply to

“anyone.” Article 26 confirms that:

All persons are equal before the law and are

entitled without any discrimination to the

equal protection of the law. In this respect,

the law shall prohibit any discrimination and

guarantee to all persons equal and effective

protection against discrimination on an

ground such as. . . national or social origin.”

Article 14 underscores that:

All persons shall be equal before the courts

and tribunals. In the determination of any

criminal charge against him, or of his rights

and obligations in a suit at law, everyone shall

be entitled to a fair and public hearing by a

competent, independent and impartial tribunal

established by law.”

2. The Military Commissions Act violates the

non-discrimination principle

The MCA eliminates the availability of habeas relief

in the federal courts for alien enemy combatants alone.””

Indeed, the entire military commissions system established

by the MCA applies exclusively to “alien unlawful enemy

combatant{s].”” Alien unlawful enemy combatants are

persons who are not citizens of the United States and who

*” Id. art. 26 (emphasis added).

*8 /d. art. 14(1) (emphasis added).

*° 28 U.S.C. § 2241 (effective Oct. 17, 2006).

© 10 U.S.C. § 948c.

24

(1) have engaged in or “purposefully and materially

supported hostilities against the United States or its co-

belligerents” but are not lawful enemy combatants or

(2) have “been determined to be [] unlawful enemy

combatant[s]” by the CSRT.°' The CSRT is itself

constituted to determine the status only of foreign nationals

detained at Guantanamo Bay naval base.”

U.S. citizens who in all respects other than their

nationality meet the definition of unlawful enemy

combatants are subject to a very different legal system.

Citizens charged with crimes identical to those faced by non-

citizens detained at Guantanamo Bay are subject to the

jurisdiction of civilian courts or courts-martial, where they

are afforded full procedural due process protections,

including the right to habeas corpus. The rights protected by

the standards of minimum treatment in customary

international law (including those expressed in the ICCPR)

are not enjoyed equally by aliens and U.S. citizens in a

system that extends greater rights to similarly-situated

citizens than to non-citizens.

Cc. U.S. Obligations Under Customary

International Law Apply During Times Of

Armed Conflict

That some Guantanamo prisoners have been seized in

a situation of armed conflict is irrelevant to this analysis.

First, both non-citizens and U.S. citizens have been detained

6! § 948a(1), (3).

* Paul Wolfowitz, Deputy Secretary of Defense, Memorandum for the

Secretary of the Navy re: Order Establishing Combatant Status

Review Tribunal (July 7, 2004).

25

by the United States as combatants, yet U.S. citizens are not

subject to the habeas repeal or to the military commissions

process. The fact of alienage neither exacerbates nor

distinguishes the alleged culpability of alien combatants in

relation to citizen combatants. Second, in a situation of

armed conflict, international humanitarian law is the /ex

specialis — that is, a specialized body of law that applies in

lieu of conflicting, general rules. An armed conflict,

however, displaces more general rules of international law

only where a principle of international humanitarian law is

irreconcilably inconsistent with the regular law.”

There is no principle of international humanitarian

law that would be offended by the application of minimum

treatment in these cases. Nor is there any practical objection

to the habeas relief these rules of minimum treatment

require. Petitioners are not being held in exigent

circumstances in battlefield conditions. On the contrary,

they are far removed from any theater of conflict and have

been held in the clear and uninterrupted custody of the

United States for as long as six years during an inchoate and

potentially interminable campaign against terrorism. In

these unique and unprecedented circumstances, there is no

persuasive, practical objection to Petitioners being provided

® See Report of the International Law Commission to the General

Assembly, 56 U.N. GAOR Supp. (No. 10) .t 358, U.N. Doc. A/56/10

(2001), available at hittp://untreaty.un.org/ilc/texts/instruments/

english/commentaries/9_6 2001.pdf (discussing the application of

the doctrine of /ex specialis, and noting: “For the /ex specialis

principle to apply it is not enough that the same subject matter is

dealt with by two provisions; there must be some actual

inconsistency between them, or else a discernible intention that one

provision is to exclude the other.”).

26

full recourse to the courts of the United States by way of a

writ of habeas corpus.

CONCLUSION

This Court should reverse the judgment below.

Respectfully submitted,

CRAIG FORCESE WILLIAM R. STEIN

FACULTY OF LAW Counsel of Record

UNIVERSITY OF OTTAWA ScoTT H. CHRISTENSEN

57 Louis Pasteur Street HUGHES HUBBARD & REED LLP

Ottawa, Ontario K1N 6N5 1775 I Street, N.W.

CANADA Washington, D.C. 20006

Telephone: (202) 721-4600

Counsel for Amici Curiae Canadian

Parliamentarians and Professors of Law

Dated: August 23, 2007

APPENDIX

APPENDIX

PARLIAMENTARIANS

Omar Alghabra, MP, Mississauga-Erindale

Hon. Warren Allmand, PC, QC, Former MP and Former

Solicitor General of Canada.

Alex Atamanenko, MP, BC Southern Interior

Hon. Larry Bagnell, PC, MP, Yukon, Former Parliamentary

Secretary to the Minister of Natural Resources

Senator Tommy Banks, Alberta

Hon. Sue Barnes, PC, MP, London West, Former

Parliamentary Secretary to the Minister of Justice and

Attorney General of Canada

Dawn Black, MP, New Westminster-Coquitlam

Hon. Ed Broadbent, PC, Former MP, Ottawa-Centre

Olivia Chow, MP, Trinity-Spadina

Joe Comartin, MP, Windsor-Tecumseh

Hon. Irwin Cotler, PC, MP, Mount Royal, Former Minister

of Justice and Attorney General of Canada, Opposition Critic

for Human Rights

Hon. Hedy Fry, PC, MP, Vancouver Centre, Former

Parliamentary Secretary to the Minister of Citizenship and

Immigration :

Hon. John Godfrey, PC, MP, Don Valley West, Former

Parliamentary Secretary to the Prime Minister (Cities)

Yvon Godin, MP, Acadie-Bathurst

Hon. Marlene Jennings, PC, MP, Notre-Dame-de-Grace —

Lachine, Former Parliamentary Secretary to the Prime

Minister (Canada-U.S.)

2a

Hon. Jack Layton, PC, MP Toronto-Danforth, Leader of the

New Democratic Party

Hon. Flora MacDonald, PC, Former MP, Former Minister

of Foreign Affairs

Hon. Diane Marleau, PC, MP, Sudbury, Former Minister

for International Cooperation

Tony Martin, MP, Sault Ste. Marie and Algoma

Irene Mathyssen, MP, London-Fanshawe

Hon. John McCallum, PC, MP, Markham-Unionville,

Former Minister of National Defence

Alexa McDonough, MP, Halifax, NDP Foreign Affairs and

International Development Critic

Hon. Dan McTeague, PC, MP, Pickering-Scarborough East,

Official Opposition Critic for Foreign Affairs (Consular

Services), Former Parliamentary Secretary to the Minister of

Foreign Affairs

Hon. Maria Minna, PC, MP, Beaches-East York, Former

Minister for International Cooperation

Peggy Nash, MP, Parkdale-High Park

Senator Vivienne Poy, Ontario

Hon. Geoff Regan, PC, MP, Halifax West, Former Minister

of Fisheries and Oceans |

Hon. Lucienne Robillard, PC, MP, Westmount-Ville-

Marie, Former Minister of Citizenship and Immigration

Hon. Allan Rock, QC, PC, Former MP, Former Minister of

Justice and Attorney General of Canada and Former

Ambassador to the United Nations for Canada

Bill Siksay, MP, Burnaby-Douglas

Lloyd St. Amand, MP, Brant

3a

PROFESSORS OF LAW

Professor Sharryn J. Aiken, Faculty of Law, Queen’s

University

Professor Amir Attaran, Faculty of Law, University of

Ottawa

Adjunct Professor David Baker, Faculty of Law,

University of Toronto

Professor Benjamin L. Berger, Faculty of Law, University

of Victoria

Professor Vaughan Black, Dalhousie Law School,

Dalhousie University

Professor W.A. Bogart, Faculty of Law, University of

Windsor

Professor Kristen Boon, Seton Hall Law School

Professor Jutta Brunnée, Faculty of Law, University of

Toronto

Professor Michael Byers, Canada Research Chair in Global

Politics and International Law, UBC Department of Political

Science

Professor Emily F. Carasco, Faculty of Law, University of

Windsor

Professor Sujit Choudhry, Scholl Chair, Faculty of Law,

University of Toronto

Professor Arthur Cockfield, Associate Dean, Queen’s

University Faculty of Law

Professor Francois Crépeau, Canada Research Chair in

International Migration Law, Centre for International Studies

(CERIUM) , Faculty of Law, University of Montreal

Professor John Currie, Faculty of Law, University of

Ottawa

4a

Professor Catherine Dauvergne, Canada Research Chair in

Migration Law, Associate Dean of Graduate Studies and

Research, UBC Faculty of Law

Professor Richard F. Devlin, Associate Dean Graduate

Studies and Research, Dalhousie Law School, University

Research Professor, Dalhousie University

Professor Aaron A. Dhir, Osgoode Hall Law School, York

University

Professor Bernard M. Dickens, Professor Emeritus,

Faculty of Law, University of Toronto

Professor David Dyzenhaus, Faculty of Law, University of

Toronto

Professor Craig Forcese, Faculty of Law, University of

Ottawa

Professor Evan Fox-Decent, Faculty of Law, McGill

University

Professor M. Michelle Gallant, Associate Dean, Faculty of

Law, University of Manitoba

Professor Donald Galloway, Faculty of Law, University of

Victona

Professor Noemi Gal-Or, Director, Institute for

Transborder Studies (ITS) , Department of Political Science,

Kwantlen University College

Adjunct Professor Jason Gratl, UBC Faculty of Law,

President, BC Civil Liberties Association

Professor Rebecca Johnson, Faculty of Law, University of

Victoria

Professor Nicole LaViolette, Faculty of Law, University of

Ottawa

Professor Yves Le Bouthillier, Faculty of Law, University

of Ottawa

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Professor Sébastien Lebel-Grenier, Vice-Dean, Research

and Graduate Studies, Director of the Common Law and

Transnational Law Program, Sherbrooke University

Professor Peter Leuprecht, Director of the Montreal

Institute of International Studies, Université de Québec 4

Montréal

Professor Glen Luther, College of Law, University of

Saskatchewan

Professor Michael Lynk, Faculty of Law, University of

Western Ontario

Professor Audrey Macklin, Faculty of Law, University of

Toronto

Professor Ravi Malhotra, Faculty of Law, University of

Ottawa

Professor Moira L. McConnell, Dalhousie Law School,

Dalhousie University

Professor Maeve McMahon, Department of Law, Carleton

University

Professor Catherine Morris, Institute for Dispute

Resolution and Faculty of Law, University of Victoria

Professor Bradford W. Morse, Faculty of Law, University

of Ottawa

Professor Val Napoleon, Faculty of Law and Faculty of

Native Studies, University of Alberta

Professor Martha O’Brien, Faculty of Law, University of

Victoria

Professor Obiora Chinedu Okafor, Osgoode Hall Law

School, York University

Adjunct Professor Grace Pastine, UBC Faculty of Law,

Litigation Director, BC Civil Liberties Association

6a

Professor Jim Phillips, Faculty of Law, University of

Toronto

Professor René Provost, Faculty of Law, McGill University

Professor Tim Quigley, College of Law, University of

Saskatchewan

Professor Linda C. Reif, CN Professor of International

Trade, Faculty of Law, University of Alberta

Professor Kent Roach, Faculty of Law, University of

Toronto

Adjunct Professor Darryl Robinson, Faculty of Law,

University of Toronto

Professor Teresa Scassa, Faculty of Law, University of

Ottawa

Professor Martha Shaffer, Faculty of Law, University of

Toronto

Professor Peter Showler, Director, The Refugee Forum,

Human Rights Research and Education Centre, University of

Ottawa

Professor Penelope Simons, Faculty of Law, University of

Ottawa

Professor Don R. Sommerfeldt, Sessional Instructor,

Faculty of Law, University of Alberta

Professor Lorne Sossin, Faculty of Law, University of

Toronto

Professor Joanne St. Lewis, Faculty of Law, University of

Ottawa

Professor David M. Tanovich, Faculty of Law, University

of Windsor

Professor William Tetley, McGill Law Faculty, Former

Minister of Financial Institutions, Government of Quebec

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Professor Barbara von Tigerstrom, College of Law,

University of Saskatchewan

Professor Sheila Wildeman, Dalhousie Law School,

Dalhousie University

Professor Stepan Wood, Osgoode Hall Law School, York

University

Professor Jacob Ziegel, Faculty of Law, University of

Toronto