# 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%3A25

## Record

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

## Text

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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Sa

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0526%3A25. Public record. Not legal advice.