# Amicus Curiae Brief — Al Odah v. United States (Nos. 06-1196, 06-1195) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0526%3A40 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2007 ## Text \e FILED AUG 2 4 2007 62) OFFICE OF THE CLEAK SUPREME COURT, U.S. Nos. 06-1195 & 06-1196 In the Supreme Court of the Anited States LAKHDAR BOUMEDIENE, ET AL., Petitioners, Vv. d GEORGE W. BUSH, ET AL., Respondents. KHALED A.}. AL ODAH, ET AL., Petitioners, Vv. UNITED STATES, ET AL., Respondents. On Writs of Certiorari to the United States Court of Appeals for the District of Columbia Circuit BRIEF AMICUS CURIAE OF NATIONAL INSTITUTE OF MILITARY JUSTICE IN SUPPORT OF PETITIONERS STEPHEN A. SALTZBURG JENNIFER S. MARTINEZ GEORGE WASHINGTON Counsel of Record UNIVERSITY LAW SCHOOL STANFORD LAW SCHOOL 2000 H Street, NW 559 Nathan Abbott Way Washington, DC 20052 Stanford, CA 94305 (202) 994-7098 (650) 725-2749 ARNON D. SIEGEL RONALD W. MEISTER ERICA L. HOVANI COWAN LigBowitTz & LATMAN P.C. DECHERT LLP 1133 Avenue of the Americas 1775 | Street, NW New York, NY 10036 Washington, DC 20006 (212) 790-9200 (202) 261-3300 August 24, 2007 Counsel for Amicus Curiae TABLE OF CONTENTS Page Bs Oe AT I ie wncecccescnsssncsecevesesestesnnecsonseneeses ill INTEREST OF THE AMICUS CURIAE. ............... daaene 1 SUMMARY OF ARGUMENT. ........0c0ssccccccscsssvcsscssscessosveens 2 i TTIIUTTP ) passim Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) .......... 1, 9, 20 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .................. passim il Rasul v. Bush, 542 U.S. 466 (2004)... ccccceeeesteeeeeeee 1,4 Service v. Dulles, 354 U.S. 363 (1957)........ccccccecessesecseseees 8 Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) .csssssssssssssee 10 The Prize Cases, 67 U.S. (2 Black) 635 (1863).......-se.sse-s-: 9 STATUTES, REGULATIONS, AND MILITARY AUTHORITIES SL Cok |: RAM TE 5 SO UGE: © SIGUA DIGI aac isicccssrccssertcssnsiesiaaan 27 SR BOI i iccsihsicicticosienaeicitaaali cuca 101 Cong. Rec. 9962 (1955) ..ccecsssssccsssssscsesssccsssseveeseseseen 28 Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and CE ERROG CIF T Piccwivictiivcsvusicitinvitemineniintiniinats passim Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) ......... 9, 10,14 Deputy Secretary of Defense, Order Establishing Combatant Status Review Tribunal Cele Fs BIO cintensntssinniicninnimmeiiieiimaiaien 12, 15 Secretary of the Navy, /mplementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base, Cuba CTS Tis GD cihccccciniiscnniniervinnciaiiais sacsieigivoviaiiniaiaiine 12, 13 1V Uniform Code of Military Justice, 10 U.S.C. §§ 801 ef seq.: NE 4 I tec aicientnscnepenitnnncatoniadnsoncnten 4 TD cca neninatnibnitignepecsnsennnessonees 9 United States Air Force Regulation AFJI 31-304............... 5 United States Army Central Command Regulation 27-13 . 6 United States Dep’t of the Army, Fie/d Manual on the Law of Land Warfare, , FM 27-10 (1956) ------------------------------- 5,17, 19, 25 United States Dep’t of the Army, Operational Law Handbook (2004) ..........cccccccseeseceeseseeeeees 6, 16-17, 25 United States Dep’t of the Navy, The Commander's Handbook on the Law of Naval Operations (1995)........ > United States Marine Corps Regulation MCO 3461.1 ....... 5 United States Military Assistance Command for Vietnam, Directive No. 20-5 (Mar. 15, 1968, amended, Sept. 21, 1966), reprinted in Contemporary Practice of the United States Relating to International Law, 62 AM. J. INT’L L. 754 (1968)...... 7 United States Military Assistance Command for Vietnam, Directive No. 381-46, Annex A (Dec. 27, 1967), reprinted in Contemporary Practice of the United States Relating to International Law, re 6-7 United States Navy Regulation OPNAVINST 3461.6)...... 5 TREATIES AND OTHER INTERNATIONAL SOURCES Geneva Convention [III] ‘Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 et seq.: GRE, Bh cccicccnsstnnccsntocnsenntetennimnintmnaaneicenemniaminioniiainl 17 UIE, D exncascssscinectinnsacniapinncmennemntionnineinanilil 12 BEER, 9 ccemsrinemmmamnenenmimnamniminnniil 16 GID, F secrrvenniarnncsrmncinniestansabintnatincisasingmmaimanassaaiiiiinpgs 4,9 FRR, GB ccneesccsesccsnssesnssescinnnnsasetentemannionninnntanisasnnisindiiiiel 12 GR, CED ccesensspecensecennitecntmasnsanatammnmmnannannnninsiniiiiaiit 22 Geneva Convention [IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 et seq.: FRG rsereennnnararecnsiennsenmitmnenmsenpaninmnuneinoeineiie 16, 19 Fs SI ccenescoseccnexnnssensetienanssnnsnnestnecemnnasmnentmaniiasensiannit 19 FA Fi ccecerenarsenteneinssecernmnntieagrmcaniinnrnnatnntinieniiiainiadiaa 19 FAIR, FD cccensnesmncnsennetsemcnntnimannninenamenmainatiaansiitiiiigs 24 BID, Ta eentnncncncemensnireennagacanantnsacmenmnnnnaitnnegeitith 19 Hague Convention [IV] Respecting the Laws and Customs of War on Land and Regulations Annexed Thereto, Oct. 18, 1907, 36 Stat. 2277............ 25 Int’! Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Claude Pilloud I cceiiriciihteiiieiideseiinisieaiciadinieicemdlctaaeiaahidaaindadl 18, 24 Int’! Comm. of the Red Cross, Commentary to the 1V Geneva Convention (Jean S. Pictet ed. 1958) ...... 8, 16 v1 Protocol Additional [I] to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3, 16 LL.M. 1391 et seq.: SE AIIET ciicnnnttstelinsiniidieesicninasantinisacsincnamennciencmmentetitnaieiiaden 16, 23 IID TIED osxpcoctnnsreccnensccsczenensincesiiotiesquatansequedesemaneincnntniuscitte 23 SE ai eneneinennsstennnatillinnanscismcnscsnnnmnniogunpisedommmanpensietues 16 SEED SPT CSRT Memorandum, &nc\. %, Combatant Status Review Tribunal Decision Report Cover Sheet) (“The Tribunal has determined thai he (is)\(ws not) am enemy combatant as defined in [CSRT Order)’’). 13 detainees had stated a valid claim that the CSRTs violated the Due Process Clause because in all cases detainees were (1) not provided with adequate notice of the bases for their detention; (2) forbidden access to material evidence upon which the CSRTs determined their status; (3) not given a fair opportunity to rebut the evidence upon which their status was determined; and (4) not provided with meaningful assistance to oppose the claims against them. 355 F. Supp. 2d at 468-72. In addition, the district court concluded that, in at least some of the cases, the CSRTs were alleged to have relied on evidence that was obtained by interrogations so severe as to amount to torture or impermissible coercion. Judge Rogers, who dissented from the jurisdictional ruling of the Court of Appeals, reached a similar conclusion. 476 F.3d at 1004-06. B. The CSRTs used a definition of “combatant” that is inconsistent with the law of war Judge Green also properly concluded below that the CSRTs were legally deficient because they employed a vague and overly broad definition of “enemy combatant.” 355 F. Supp. 2d at 474-76. In Hamdi, this Court recognized that the “necessary and appropriate force” authorized by Congress in the AUMF encompassed the detention of the “limited category” of persons who were ““‘part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ there.” 542 U.S. at 516, 518 (plurality op.) (emphasis added). As the Court explained, such detentions were supported by “longstanding law-of-war principles.” Id. at $21. As Judge Green found, “[t]he definition of ‘enemy combatant’ in the Order creating the CSRTs is significantly broader than the definition considered in Hamdi.” 355 F. Supp. 2d at 475. The CSRT Order defines “enemy combatant” to be “an individual who was part of or 14 supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States and its coalition partners.” CSRT Order § a (emphasis added). The Order specifies that this “includes” any person who has “committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” /d. But it does not require that a person detained as a combatant have committed a belligerent act, directly supported hostilities, or otherwise “engaged in an armed conflict against the United States,” as required by Hamdi. To the contrary, merely “supporting” the Taliban, al Qaeda, or associated forces is sufficient to subject one to indefinite military detention under the CSRT Order definition. /d. At the hearing in the district court, the Government's attorney demonstrated the breadth of the CSRT definition in response to a series of hypotheticals. The Government argued that a varicty of persons who did not participate directly in hostilities could be detained as combatants, including: “aj little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities,” “a person who teaches English to the son of an al Qaeda member,” and a “journalist who knows the location of Osama Bin Laden but refuses to disclose it to protect her source.” 355 F. Supp. 2d at 475. The law of war classifies all these individuals as civilians, not combatants. Congress’s authorization of “necessary and appropriate” force cannot properly be read to encompass the classification and detention of individuals under the definition used by the CSRTs. 1. The law of war distinguishes between “combatants” and “civilians” The Geneva Conventions, and especially Additional Protocol |, prescribe with considerable detail the nghts and duties of people caught up in armed conflict.'* Additional Protoco! | states that “combatants,” who are “members of the armed forces of a Party to a conflict,” art. 43(2), are lawful military targets, while non-combatants are not.'> This deliberately limits the class of people who lawfully may be targeted by opposing military forces. People who are actually in the armed forces of a nation-state are deemed combatants and are generally lawful targets at all times; people who are not in the armed forces are generally not combatants and are generally not lawful targets. Because the law of war provides a comprehensive scheme for people caught up in warfare, there is no intermediate status. Individuals must be classified either as combatants or civilians: “[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, [or] a civilian covered by the Fourth Convention .... There is no intermediate status; nobody in enemy hands can be outside the law.” Int’l Comm. of the Red Cross, Commentary. to the 1V Geneva Convention 51 (Jean S. Pictet ed. 1958); see also Army Operational Law '* Although the United States has not ratified Additional Protocol |, it has acknowledged that much of the treaty reflects binding customary international law. Army Operational Law Handbook at \1; Michael J. Matheson, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additiona! to the 1949 Geneva Conventions, 2 AM. U. J. INT’L L. & POL’y 419, 420 (1987). 'S Additional Protocol 1 further defines combatants to include: “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a Government or an authority not recognized by an adverse Party.” Additional Protocol | art. 43(1). Members of disorganized militia groups who are not under a command responsible to a state Party to the conflict are not combatants under this definition. Conversely, civilians are defined as persons who do not fall into one of the categories of persons entitled to prisoner of war status pursuant to article 4 of the Third Geneva Convention and article 43 of Additional Protocol |. See Additional Protocol | art. 50. 16 Handbook 142 (“Anyone not qualifying as a combatant, in the sense that they are entitled to [prisoner of war] status upon capture, should be regarded as a civilian.”); The Law of Land Warfare | 73. The law of war recognizes that civilians may cause harm in armed conflict. They may be treated as targets of force and, inferentially, as combatants, but only “for such time as they take a direct part in hostilities.”’° The law of _ war standard, therefore, for when people who are not ordinarily defined as combatants may be treated as combatants is when they take a “direct part” in “hostilities.” This standard contains three relevant criteria. First, it applies only to “hostilities.” This word has a narrower connotation than the phrase “armed conflict,” which appears frequently elsewhere in the Geneva Conventions."” Thus, an individual who would not ordinarily be considered a combatant must participate in actual “hostilities” — rather than the relevant armed conflict more generally — to lose protection as a civilian. The standard also has a clear temporal dimension. It lasts only “for such time” as the individual takes a direct part in hostilities. A civilian who takes part in hostilities regains his civilian status after his direct participation has ceased (although he may be criminally prosecuted for his illegal participation in hostilities).'* Finally, the test sets up a demanding nexus. The individual must take a “direct” part. While this phrase is not further defined, it clearly provides that indirect aid— no matter how valuable—does not suffice. A civilian does not become a combatant because he generally “supports” troops. Nor does he become a “Additional Protocol [, art. 51(3) (“Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.”’); Additional Protocol II, art. 13 (same). See, e.g., Third Geneva Convention, art. 2. '* See Public Comm. Against Torture v. Israel, 46 1.L.M. 375, 393 (Isr. Supr. Ct. 2007). 17 combatant because an opposing commander suspects he might, at some point in the future, plot to engage in violent acts.'” If the rule were otherwise, large parts of the civilian population of a country at war would become lawful targets for attack. Shooting a gun on a battlefield constitutes taking a “direct part in hostilities.” So, too, would hijacking an airplane with the intent to use it as missile. Driving a truck full of explosives or carrying a gun towards the battlefield with the imminent intent to engage in combat could also amount to taking a direct part in hostilities. See Public Comm. Against Torture v. Israel, 46 1.L.M. at 391. By contrast, supporting the enemy cause off the battlefield, conspiring with the enemy, contemplating taking part in battle in the future, and sympathizing with the enemy do not constitute taking a direct part in hostilities under the law of war, although those acts may be puma under domestic criminal law.”° ' '? See Int’! Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 619 (Claude Pilloud et al. eds. 1987) (Commentary to Proto-ols) (noting that there is “a ciear distinction between direct participation in hostilities and participation in the war effort,” to avoid endangering large parts of the civilian population). 2° Public Comm. Against Torture v. Israel, 46 1.L.M. at 392 (direct participation does not include someone who “aids the unlawful combatants by general strategic analysis, and grants them logistical, general support, including monetary aid.”); Robert K. Goldman, International Humanitarian Law: Americas Watch's Experience in Monitoring Internal Armed Conflicts, 9 AM U. J. INT’L. L. & POL’y 49, 70 (1993) (“[A] civilian can be considered to participate directly in hostilities when he actually takes part in fighting, whether singly or as a member of a group. Such participation . . . would also include acting as a member of a weapons crew or providing target information for weapons systems ‘intended for immediate use against the enemy, such as artillery spotters or members of ground observer teams.””); Commentary to Protocols at 516 (“Direct participation in hostilities implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and place where the activity 18 A civilian who participates directly in hostilities would in some circumstances be violating the law of war, and in the Government’s nomenclature would presumably be labeled an “unlawful combatant.””' “Illegal combatant” or “unlawful combatant” is not a term that appears in any treaty on the law of war. Commentators have occasionally used these phrases to describe someone who does not receive the privileges accorded to combatants, the most important of which are prisoner of war status and immunity from prosecution for merely engaging in combat. As used by these commentators, the phrase “unlawful combatants” actually encompasses two sets of people: members of the regular armed forces who do not wear uniforms and do not bear arms openly (and thereby lose their privileged combatant status) and civilians who unlawfully participate directly in battle (who never had privileged combatant status to begin with). As persons in the latter category retain their civilian status, it is arguably improper to refer to them as combatants at all under the law of war: they are more accurately described as “unprivileged _ belligerents.” George H. Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal Combatants, 96 AM. J. INT’L L. 891, 893 (2002). Members of the Taliban armed forces would properly be considered combatants in the conflict in Afghanistan. Similarly, members of groups associated with the Taliban, takes place.”); L.C. Green, THE CONTEMPORARY LAW OF ARMED CONFLICT 107 (2d ed. 2000). *' A civilian who directly participated in hostilities could be treated as a combatant only in the sense that he would become a lawful target of attack for the duration of his direct participation; in all other senses he would remain a civilian protected by the Fourth Geneva Convention. Fourth Geneva Convention art. 4; The Law of Land Warfare 4 73. The Fourth Geneva Convention would not prohibit the detention or criminal prosecution of such a person, provided that procedural safeguards were observed. Arts. 42, 43, 78; Additional Protocol | art. 75(4). 19 such as al Qaeda, who fought on the battlefield in Afghanistan and who served under a command responsible to Taliban officials, could also be classified as combatants in that conflict. In addition, other individuals who fought on the battlefield could be treated as combatants during their actual participation in the fighting. ’ At the same time, persons who are not alleged to be members of a regular armed force of a nation state, nor to have participated directly in_ hostilities, cannot be categorized as combatants—lawful or unlawful. For many of the prisoners at Guantanamo, including a number of the Petitioners in this case, the Government does not ciaim that they participated directly in hostilities in Afghanistan or Iraq.“ Nor are many of these detainees alleged to be ? As this Court recognized in Hamdan, the bulk of the 1949 Geneva Conventions and Additional Protocol | apply only in armed conflicts between state parties to the Conventions. A more limited body of law applies to armed conflicts “not of an international character,” 126 S. Ct. at 2795-96, and thus is potentially applicable to those detainees not connected to international armed conflict in lraq or Afghanistan. Like the law applicable to international armed conflict, the rules for non- international armed conflict distinguish between combatants and civilians. Civilians may not be targets of attack “unless and for such time as they take a direct part in hostilities.” Additional Protocol II, art. 13. Thus, as in international armed conflict, those taking no direct part in hostilities cannot lawfully be classified as combatants. Furthermore, and in contrast to the law applicable in international armed conflict, the law of war applicable in non-international armed conflict arguably provides no independent authority for detaining cither combatants or civilians. al-Marri v. Wright, 487 F.3d 160, 184-186 (4th Cir. 2007); John Cerone, Jurisdiction and Power: The Intersection of Human Rights Law & the Law of Non-International Armed Conflict in an Extra-Territorial Context, 40 Isr. L. REV. (forthcoming 2007) (“while the law of inter-state armed conflict authorizes the conflicting states to detain enemy combatants for the duration of hostilities, no analogous provision exists in the law of non-international armed conflict.”), Marco Sassoli, Use and Abuse of the Laws of War in the “War on Terrorism,” 22 LAW & INEQ. 195, 210-11 (2004); Knut Dormann, The Legal Situation of “Unlawful/Unprivileged Combatants,” 85 INT'L 20 members of “organized armed forces, groups and units which are under a command responsible to [the Taliban Government or the Government of Iraq] for the conduct or its subordinates.” | Regardless of the facts of each Petitioner’s case, the fundamental problem is that the CSRTs employed a definition of “combatant” that 1s overly broad, and so it is impossible to determine based on their findings which individuals have been properly detained. he CSRT definition encompasses many individuals who are not members of the armed forces of a nation-state, who did not participate directly in hostilities, and who never committed any belligerent act. Such individuals are civilians under the law of war. They may be arrested and punished under other laws, but they do not fall within Congress’s authorization for “necessary and appropriate” military force.”° REV. RED Cross 45, 47 (2003). While the law of war does not prohibit the detention of either combatants or civilians in non-international armed conflict, authority for such detentions cannot be derived directly from the law of war and must be explicitly authorized by and consistent with domestic legal and constitutional standards, and international human rights law. > To the extent that some detainees at Guantanamo are unconnected with aspects of the “war on terror” that qualify as armed conflict, the law of war provides no authority whatsoever for their detention as “combatants.” Not all terrorist actions rise to the level of armed conflict. Indeed, terrorist actions by private groups have not customarily been viewed as creating armed conflicts. Hilaire McCoubrey & Nigel D. White, INTERNATIONAL LAW AND ARMED CONFLICT 318 (1992). For example, as the United Kingdom stated when it ratified Additional Protocol |: “It is the understanding of the United Kingdom that the term ‘armed conflict’ of itself and in its context denotes a situation of a kind which is not constituted by the comunission of ordinary crimes including acts of terrorism whether concerted or in isvlation.” Reservations by the United Kingdom to Art. 1, para. 4 & art. 96, para. 3 of Additional Protocol | Key aspects of some parts of the “war on terrorism” diverge from traditional 21 2. This Court’s decisions have rested upon a narrow definition of “combatant” that is consistent with the law of war This Court’s previous decisions have hewed closely to the traditional definition of “combatant” under the law of war as described above. Yaser Hamdi, for example, was alleged to have participated directly in hostilities at the time of his capture. Northern Alliance forces were “engaged in battle” with the Taliban when Hamdi’s. Taliban unit surrendered. Hamdi himself was allegedly carrying a Kalashnikov assault rifle at the time of his surrender. In its decision, the Court repeatedly emphasized Hamdi’s direct participation in hostilities on a foreign battlefield. 542 U.S. at 522 n.| (“the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield”); id. at 523 (referring to the “context of this case: a United States citizen captured in a foreign combat zone”) (emphasis omitted); 542 U.S. at 517 (decision addresses only the “narrow question” of whether the Government had authority to detain as “enemy combatants” individuals who were “part of or supporting forces hostile to the United States or coalition partners” in _assumptions of the law of war. For example, the “war on terrorism” does not have clear geographic parameters. Furthermore, the law of armed conflict anticipates that armed conflict will, at some point, end, and regulates the return from a state of war to normal life. Third Geneva Convention art. 118 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”). As defined by the Government, however, the “war on terror” will not end until al Qaeda (an ill-defined and amorphous group) and its “associated forces” or supporters (also undefined), anywhere in the world are eradicated. See, ¢.g., President Bush's Address to a Joint Session of Congress and the American People (Sept. 20, 2001) (“Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.”’). ~~ 22 Afghanistan and who “engaged in an armed conflict against the United States” there.). In addition to participating directly in hostilities at the time of his capture, Hamdi was also specifically alleged to be affiliated with a Taliban government militia unit, 542 U.S. at 513, and therefore to be a part of the “organized armed forces, groups and units which are under a command responsible to [a] Party for the conduct of its subordinates.” Additional Protocol |, art. 43(2). The defendants in Ex parte Quirin, also had the “status of an enemy belligerent” when they entered the United States, id. at 38, having worn uniforms of the German Marine Infantry when they came ashore from German military submarines, id. at 21. By contrast, the Court held that the prisoner in Ex Parte Milligan was not a combatant. Milligan was accused of “joining and aiding” a “secret society” for the “purpose of overthrowing the Government,” “holding communication with the enemy,” “conspiring to seize munitions of war stored in the arsenals,” and “to liberate prisoners of war” in Indiana at a time when it “was constantly threatened to be invaded by the enemy.” 71 U.S. at 6-7. Nevertheless, Milligan was entitled to a civilian criminal trial. As the Court explained: If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war; for he was not engaged in legal acts of hostility against the Government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties? Id. at 131. As the Court emphasized in Hamdi, the key distinction was Milligan’s lack of direct participation in hostilities: “Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against 23 Union troops on a Confederate battlefield, the holding of the Court might well have been different.” 542 U.S. at 522. In short, as the Court indicated in Hamdi, it has upheld the detention of enemy combatants only when “based on longstanding law-of-war principles.”. The Court has warned that “[i]f the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.” 542 U.S. at 521. The Government’s attempted extension of the term combatant through the overbroad CSRT definition is- exactly the unraveling the Court foresaw. lil. THE GOVERNMENT’S DEPARTURE FROM THE LAW OF WAR ENDANGERS AMERICAN SOLDIERS AND CIVILIANS A. The CSRTs’ broad redefinition of the term “combatant” erodes the most fundamental distinction in the law of war The principle of distinction, which requires distinguishing between combatants and civilians, is the most fundamental principle of the law of war. As the official commentary to the additional protocols of the Geneva Convention observes, “the principle of protection and distinction forms the basis of the entire regulation of war.” Int'l] Comm. of the Red Cross, Commentary to Protocols 586; HANDBOOK OF HUMANITARIAN LAW IN ARMED CONPLICTS 65 (Dieter Fleck ed. 1995); Ouirin, 317 U.S. at 30-31 (noting that “[b]y universal agreement and practice,” the law of war draws a distinction between “the armed forces” and civilian populations); INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD (Lieber Code) art. 22 (1863). The concept of combatant determines who may be the lawful target of military attack. Combatants may be intentionally shot, bombed, or otherwise targeted with lethal force. See Additional Protocol | art. 48; Additional 24 Protocol II art. 52(2). Civilians are protected from being - the intentional targets of armed attack, as long as they de not participate directly in hostilities. See Additional Protucol | art. 51(2); Additional Protocol II art. 13(2). “The principle of distinction is sometimes referred to as the “ grandfather of all principles,” as it forms the foundation for much of the Geneva tradition of the law of war. The essence of the principle is that military attacks should be directed at combatants and military targets, and not civilians or civilian property.” Army Operational Law Handbook 166. Within certain limits, combatants may be attacked with lethal force wherever they are found.”* Thus, if all persons alleged to “support” al Qaeda or associate groups truly were “combatants,” the law of war would not only allow them to be heid until the end of active hostilities, but in many circumstances would allow them to be shot upon discovery, at any point, anywhere in the world.” Military officers, statesmen, judges, and scholars have long recognized that any blurring between the categories of combatant and non-combatant could lead to a severe breakdown in limits on whom military forces may legitimately target. See Geoffrey Best, WAR AND LAW SINCE 1945, at 254-66 (1994). In many wars, virtually every member of society — from farmers and ‘factory workers to government bureaucrats — may provide direct or 24 While it is forbidden “to kill or wound an enemy who, having laid down his arms, or having no longer the means of defense, has surrendered at discretion,” Hague Convention [IV} Respecting the Laws and Customs of War on Land art. 23(c), the law of war authorizes attacks on “individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere.” The Law of Land Warfare 4 31. Attacks on combatants must also be proportional and necessary to military objectives. °° Moreover, the Government might also be allowed to inflict collateral damage on bystanders. Fourth Geneva Convention art. 53; Additional Protocol | art. 52. 25 indirect support to the nation’s military. Designating as combatanis people who provide indirect support to a party engaged in armed conflict but who do not directly participate in hostilities would threaten to legitimize the wholesale targeting of civilian populations. See Kenneth Watkin, Warriors Without Rights? Combatants, Unprivileged Belligcrents, and the Struggle Over Legitimacy, Harvard Program on Humanitarian Policy and Conflict Research, 8-11 (Winter 2005). Moreover, maintaining a clear legal separation between combatants and non-combatants reinforces the separation of military and civilian functions and control. “Thje] supremacy of the civil over the military is one of our great heritages. It has made possible the attainment of a high degree of liberty regulated by law rather than by caprice. Our duty is to give effect to that heritage at all times, that it may be handed down untarnished to future generations.” Duncan v. Kahanamoku, 327 U.S. 304, 325 (1946) (Murphy, J., concurring). Expanding the definition of “combatant” of necessity increases the scope of military authority over civil society. Nations that adopt sweepingly overbroad definitions of “combatant,” such as the one proffered by the Government in this case, run the risk of thrusting upon the military the roles of judge and jailer to a degree far exceeding military necessity. Indeed, one of the most chilling aspects of the attacks of September 11, 2001 was the attackers’ intentional targeting of civilians, a fundamental violation of the law of war. Some terrorist rhetoric refuses to acknowledge the distinction between civilians and combatants — labeling all U.S. and Israeli citizens, for example, the “enemy.” This verbal sleight of hand renders the law of war useless, because it justifies the killing of any individual. It is precisely to protect against such abuses that the law of war defines “combatants” narrowly. 26 The CSRTs’ definition of combatant renders the distinction between civilian and combatant illusory. This Court should, instead, employ the definition of “combatant” contained in the law of war in interpreting Congress’s authorization of “necessary and appropriate” force. B. The CSRTs’ broad redefinition of the term “combatant” erodes fundamental liberties Accepting the CSRTs’ redefinition of the term “enemy combatant” would also erode fundamental liberties by extending the law of war far beyond its traditional domain. The !aw of war allows the Government extraordinary powers to deprive individuals of life, liberty and property with relatively minimal process. These extraordinary powers are justified both by battlefield exigency and by their limited temporal and geographic scope. If the Government’s position in this case is accepted, it would extend those extraordinary powers without any of these limits. The Government’s own statements in litigation reveal how the breadth of its redefinition of the term “combatant” would encompass the “little old lady in Switzerland,” the English teacher, and the journalist. 355 F. Supp. 2d at 475. The consequences of designation as an “enemy combatant” are severe, since such individuals will not be granted the due process of a criminal trial that those who are criminally accused of providing “material support” to terrorism are given. See 18 U.S.C. § 2339A-2339D. .The breadth of the definition of enemy combatant is thus particularly troubling in light of the minimal process that individuals so classified are likely to receive before being indefinitely deprived of their liberty — or even their lives. Moreover, such a broad expansion of the category of persons who can be treated as “combatants” could potentially affect U.S. citizens and persons in the United States as well as aliens overseas. See Hamdi, 542 U.S. at 27 520 (“a citizen, no less than an alien” can be subject to military detention and trial); Ex parte Quirin, 317 U.S. at 37 (“Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.”). While the differences between persons arrested in the United States and those seized abroad are of potential constitutional significance, this Court should be extremely wary of the possible domestic consequences of endorsing the Government’s novel redefinition of the term “combatant.” B. The Government’s disregard for the law endangers American soldiers and personnel Compliance with the law of war is necessary to protect the safety and welfare of American soldiers and civilians. As Secretary of State Dulles testified during the Senate’s consideration of the Geneva Conventions, America’s “participation is needed to . . . enable us to invoke them for the protection of our nationals.” Geneva Conventions for the Protection of War Victims: Hearing Before the Senate Comm. on Foreign Relations, 84th Cong. Ist Sess. 3-4 (1955). Senator Alexander Smith added, “I cannot emphasize too strongly that the one nation which stands to benefit the most from these four conventions is the United States.” 101 Cong. Rec. 9962 (1955). Time and again, the United States’ adherence to the Conventions and their precursors has saved American lives. In World War II, for example, “The American Red Cross attributed . . . the survival of 99 percent of the American prisoners of war held by Germany . . . to compliance with the [1929] Convention.” Howard S. Levie, PRISONEKs OF WAR IN INTERNATIONAL ARMED CONFLICT 10 n.44 (1977). The fact that millions of POWs from all camps returned home was “due exclusively to the observance of the Geneva Prisoners of War Convention.” Josef L. Kunz, The 28 Chaotic Status of the Laws of War and the Urgent Need for Their Revision, 45 AM. J. INT’L L. 37, 45 (1951). To safeguard its own troops, the United States has been steadfast in applying the Geneva Conventions even to combatants whose governments insisted the Conventions did not bind them. Thousands of American soldiers taken prisoner during the Vietnam War benefited from the United States’ commitment to afford all enemy POWs the protections of the Conventions to secure “reciprocal benefits for American captives.” Maj. Gen. George S. Prugh, VIETNAM STUDIES, LAW AT WAR: VIETNAM 1964- 73, at 63 (1975). The United States provided those protections not only to North Vietnamese soldiers but also to the Viet Cong, who did not subscribe to the laws of war. Id. The Executive Branch has emphatically demanded — and rightly so — that these protections be accorded to Americans captured or detained overseas, and has joined in condemnations of behavior that violates them. U.N.S.C. Res. 674, U.N. SCOR, 45th Sess., 295!st mtg., U.N.Doc. S/RES/674 (1990). The Defense Department took pains to “remind the Iraqis . . . [t]hat there are very clear obligations under the Geneva Convention to treat prisoners humanely.” Statement of Deputy Secretary of Defense Paul Wolfowitz, Mar. 23, 2003, Interview with New England Channel News (Mar. 23, 2003). In objecting to the televised display of captured American soldiers, President Bush stated his insistence that prisoners be afforded the protections of international law. President George W. Bush, Remarks (Mar. 23, 2003). The Legal Adviser to the Department of State commented on the consequences to American forces that would arise from a departure from these rules, “[a]ny small benefit from reducing -further [the application of the Geneva Conventions] will be purchased at the expense of the men and women in our armed forces that we send into 29 combat.” William H. Taft IV, Legal Adviser, Dep’t of State, Memorandum to Counsel to the President (Feb. 2, 2002). Denying Guantanamo detainees the protections of the law of war is a departure from past practice that weakens the United States’ ability to demand that the Conventions be applied to Americans captured during armed conflicts abroad. The lives of American military and civilian personnel are endangered by the United States’ failure to grant foreign prisoners in its custody the same rights that the United States insists be accorded to American prisoners held by foreigners. CONCLUSION The Government’s position in this case is inconsistent with decades of sound military law and policy. If endorsed by this Court, it will do considerable violence to that vital body of law that protects soldiers, civilians, and all those caught up in war. After resolving the _ threshold jurisdictional issues, this Court should hold that Petitioners are entitled to habeas relief because the CSRTs used inadequate procedures and an unauthorized definition of “combatant” not supported by the law of war. August 24, 2007 Respectfully submitted. JENNIFER S. MARTINEZ Counsel of Record STANFORD LAW SCHOOL 559 Nathan Abbott Way Stanford, CA 94305 (650) 725-2749 30 RONALD W. MEISTER COWAN, LIEBOWITZ & LATMAN P.C. 1133 Avenue of the Americas New York, NY 10036 (212) 790-9200 STEPHEN A. SALTZBURG GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 2000 H Street, NW Washington, DC 20052 (202) 994-7098 ARNON D. SIEGEL ERICA L. HOVANI DECHERT LLP 1775 | Street, NW Washington, DC 20006 (202) 261-3300 Counsel for Amicus Curiae 31 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0526%3A40. Public record. Not legal advice.