Amicus Curiae Brief — Al Odah v. United States (Nos. 06-1196, 06-1195)
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AUG 2 4 2007
Nos. 06-1195, 06-1196 OFFICE OF THE CLERK
SUPREME
In the Supreme Court of the Gnited States
LAKHDAR BOUMEDIENE, ET AL., Petitioners,
Vv.
GEORGE W. BUSH, ET AL., Respondents.
KHALED A.F. AL ODAH, ET AL., Petitioners,
Ve
UNITED STATES, ET AL., Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
_ BRIEF AMICUS CURIAE
OF RETIRED MILITARY OFFICERS
IN SUPPORT OF PETITIONERS
PHILIP ALLEN LACOVARA JAMES C. SCHROEDER
DANIEL B. KIRSCHNER GARY A. ISAAC
MAYER, BROWN, ROWE Counsel of Record
& MAw LLP STEPHEN J. KANE
1675 BROADWAY CATHERINE A. BERNARD
New York, NY 10019 JEFFREY A. BERGER
(212) 506-2500 HEATHER M. LEWIS
MAYER, BROWN, ROWE
& MAw LLP
71 SOUTH WACKER DRIVE
CHICAGO, IL 60606
(312) 782-0600
1
TABLE OF CONTENTS
Page
INTEREST OF THE AMICI CURIAE................ccceseeseeseeees |
SUMMARY OF ARGUMENT................csscsssssssscosesessccessees 2
RIESE Reape = NC Reon Ree 4
I. The United States Has Played A Leading Role
In Developing International Standards To
Safeguard The Rights Of Captured Prisoners ........... 4
II. CSRTs Do Not Comport With Military Law
POs sibelibiicnieitsin thialinisibniesictditpsiidihibabeinnhseieciomesmuave 9
Ill. | Holding Guantanamo Detainees Indefinitely
Without Any Meaningful Judicial Review
Increases The Risk To American Armed ©
RII: cichcicsssnssiesinieibeipenitaslagnaaibabnitesanidipiaeereeeeneceereneees 13
IV. Constitutional Protections Apply To Detainees
Held At The Guantanamo Base.....................::c00008: 22
IY cvnerctncinciesiiiniavininienieninaenstuccnasmcnminanidsenila
il
TABLE OF AUTHORITIES
Page
Cases:
Duro v. Reina, 495 U.S. 676 (1990) .........ccccscseeeeseseeeeeeeeeees 28
In re Guzman and Latamble, Annual Digest & Reports of
Pub. Int’! Law Cases, 1933-34, Case No. 43 ................0 27
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .........:ccccesceeeees 2,12
Rasul v. Bush, 542 U.S. 466 (2004) .0......ccceccceceteeeeeeeee passim
United States v. Rice, 17 U.S. 246 (1819).......0cccccecssessensees 28
United States v. Thomas, 22 M.J. 388 (CMA 1986)............ 10
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)...14
Statutes:
a ase HI ciedsescsicsccprnsnscscscnecsecentsocncnsntevacnieouieninelin 10
Detainee Treatment Act of 2005,
Pub. L. No. 109-148, Tit. X, 119 Stat. 2739.......... 2, 10, 13
Treaties and Regulations:
Art. 56, U.S. Army General Order No. 100 (1863)............0++ 4
ili
Lease of Certain Areas for Naval or Coaling
Stations (1903), T.S. No. 426, 6 Charles
I. Bevans, TREATIES AND OTHER
INTERNATIONAL AGREEMENTS OF THE
UNITED STATES OF AMERICA 1776-1949,
OE BE ee Ie BION © BT OD esssttcccsnccvecsscceosecccvcsccsesscosseces 29
Lease of Lands for Coaling and Naval Stations
(1903), T.S. No. 418, 6 Charles I. Bevans,
TREATIES AND OTHER INTERNATIONAL
AGREEMENTS OF THE UNITED STATES OF AMERICA
1776-1949, at 1113 (State Dep’t 1971)... 22, 30
Third-Geneva Convention Relative to the Treatment of
Prisoners of War, 6 U.S.T. 3316
PE ic TEPONPTN diecisnlatciseentinianantsiindncencons CS ACRE 7,8
United States Air Force Regulation AFJI 31-304 .................. 8
United States Dep’t of Army Regulation
190-8, “Enemy Prisoners of War, Retained
Personnei, Civilian Internees and Other
Detainees” (Oct. 1, 1997) ..00.........eeceeceeeeeeee 2, 3, 8,9, 11, 12
United States Marine Corps Regulation MCO 3461.1...........8
United States Navy Regulation OPNAVINST 3461.6........ ool
Miscellaneous:
Geoffrey Best, HUMANITY IN WARFARE (1980)..................-+. 4
William W. Bishop, Jr., INTERNATIONAL LAw:
CASES AND MATERIALS (1953)...............2:ceseceeeeeeeseeeeeceeees 26
BLACK’S LAW DICTIONARY (7th ed. 1999) ...0000......ecceeeeeeee 28
iv
John W. Blaney, Jan. 2, 2003:Statement .
(available at http://usembassy.state.gov/monrovia/
WWwwhsp0 10203 html) ..0....... cc eeteceececeseeeeeeeeeeeeeeeeeecenees 16
Col. Fred L. Borch, Review of Honor Bound,
163 MIL. L. REV. 150 (2000)....2.........:ccccesccsessseeseeeeseeeerees 19
Jeffrey K. Cassin, United States’ Moral Authority
Undermined: The Foreign Affairs Costs of Abusive
Detentions, 4 CARDOZO PuB. L. POL’Y &
Es SOR I i hctdenintinndiestoctictiineseneusecmnesencieccenciiiid 16
Wesley K. Clark, The Next Iraq Offensive,
N.Y. TIMES, Dec. 6, 2005, at A2 ...........ccccccccccoccoscscssscecees 20
101 Cong. Rec. 9960 (July 6, 1955)... eesteeeeeeeeeeeeenees 7
101 Cong. Rec. 9962 (July 6, 1955)... ecseeeeeeeeeeeeeenees 7
Dep’t of Defense, Combatant Status Review
Tribunals Order (July 7, 2004).............:cccccccseceseeeeees 10, 11
Dep’t of Defense Directive No. 5100.77 (Dec. 9, 1998)........ 9
Dep’t of Defense, Final Report to Congress:
Conduct of the Persian Gulf War L-3 (1992) ..............00+ 13
Dep’t of Defense News Transcript, Deputy Secretary
Wolfowitz Interview with New England Cable
FRI, Tp, POO ED ccivercintimnesisitiassnsinsinavtinitevsnteciitnintaes 15
64 Dep’t of State Bull. 10 (Jam. 4, 1971)......c.cccsscsscssceseseesee 15
7 Dep’t of State, Despatches from the United
States Ministers to Cuba, 1902-1906, National
FIO ctnctsiccasciecticciniessiidsia-cipinisestidieaiemmmaiiiadiubisesitimaniineei tes 29
Vv
Dep’t of State, Office of the Solicitor, May 7, 1912
Memorandum, National Archives, Record Group 59,
document no. 81 1.34537/95 .0.......ccccceeeeseeeeeeeecenerseneesenees 26
Gen. J.V. Dillon, The Genesis of the 1949 Convention
Relative to the Treatment of Prisoners of War,
DD tee GP GO cccrnccscencnsecscceerscsccnseceeseecceeccese 4, 5,6
Dwight D. Eisenhower, CRUSADE IN EUROPE (1949) .......... 18
Statement of Adm. William J. Fallon, Senate Committee
on Armed Services (Jan. 30, 2007) (available at http://
armed-services.senate.gov/ hearings.cfm) ...............000000: 20
Joan Fitzpatrick, Sovereignty, Territoriality, and the
Rule of Law, 25 HASTINGS INT’L & Comp. L. REV. 303
EE eee 19
Statement of Dr. Robert M. Gates, Senate Committee
on Armed Services (Jan. 23, 2007) (available at http://
armed-services.senate.gov/ hearings.cfim) ...................++. 20
Geneva Conventions for the Protection of War Victims:
Hearing Before the Senate Committee on Foreign
Relations, 84th Cong., Ist Sess. (1955)...............00000 6, 7,9
Robert E. Harkavy, GREAT POWER COMPETITION FOR
EEE 23
Fred Hiatt, 7ruth-Tellers in a Time of Terror, WASH. POST,
Er 17
Iran Denies British Sailors Mistreated, Claims “Pressure,”
AGENCE FRANCE PRESSE, Apr. 7, 2007 (available on
EE ce ieee
vi
Bill K. Jarkloh, U.S. Against Government Failure
to Produce Bility, Others, THE NEWS (NIGERIA),
July 10, 2002 (available on Nexis)................cccccesceeeeeeeeees 17
Willis Fletcher Johnson, THE HisTORY OF CUBA (1920)......28
Judge Advocate General’s School, OPERATIONAL LAW
HANDBOOK (O’Brien, ed. 2003).............cccccccssessesseeeeeseeeees 9
P.X. Kelly & Robert F. Turner, War Crimes and the White
House: The Dishonor in a Tortured New ‘Interpretation’
of the C. eva Conventions, WASH. POST, July 26, 2007
0 DD cccinteninptetiisitaistinrenisimmenrtabncinniannneinsitienntiaaiennen 20
Josef L. Kunz, The Chaotic Status of the Laws of War
and the Urgent Necessity For Their Revision,
pe is er etcrttentiiittntecmmennnnnndeis 5
Joseph Lazar, /nternational Legal Status of
Guantanamo Bay, 62 AM. J. INT’L L. 730 (1968)............. 27
Howard S. Levie, PRISONERS OF WAR IN
INTERNATIONAL ARMED CONFLICT (1977)........-:0:0+: 4, 5,6
Liberia; Journalist Tortured, Envoy Blaney Discloses,
Wants Gov't to Honor Terms of Agreement,
AFRICA NEWS, JAN. 3, 2003 (available on Nexis)............. 16
Christine Lowe, Guarding Gitmo, MARINE TIMES,
I is Se teretinetinnesrnnisiennniitiminalinemmnminiaenmmennten 11
Bronwen Maddox, 7ruth is casualty in fog of
the Afghan war, THE TIMES (London), May 8, 2002 ....... 11
Magna Carta, chapter 30, in 3 THE COMPLETE
STATUTES OF ENGLAND 27 (Halsbury’s Laws of
CE ienicencenninicnptinnieimtibainntntiinnmeneianies 17, 18
ome
vii
Manual of Courts-Martial, Rule 2-104 (2005) .............:0000++ 10
Evan Mawdsley, THUNDER IN THE EAST: THE
NAZI-SOVIET WAR 1941-1945 (2005) ...........cccsseeeeeeeeeeees 18
Marion E. Murphy, THE HistoRY OF GUANTANAMO
BI ee eccrnetcnterarnnsncenersitinsmsanapetinpemincmmemnsasen 24
Mary Ellene Chenevey McCoy, Guantanamo Bay: The
United States Naval Base and its Relationship with
Cuba (unpublished Ph.D. dissertation, University
le aii ei ntictieniabinapsintimmatnspiatineiiinmmmnneenseeees 27
Neil McDonald & Scott Sullivan, Rational
Interpretation in Irrational Times: The Third Geneva
Convention and the “War On Terror,” 44 HARV.
Be eel NE EE cocsipntsenenssetectanctcnecencestecscease 15
Mem. to Counsel to the President (Feb. 2, 2002)
(www.fas.org/sgp/othergov/taft. pdf). .................ccccceceeeeee 20
Robert L. Montague, III, A Brief Study of Some of the
International Legal and Political Aspects of the
Guantanamo Bay Problem, 50 Ky. L.J. 459 (1962)........ 27
PAPERS RELATING TO THE FOREIGN RELATIONS
| 28
PAPERS RELATING TO THE FOREIGN RELATIONS OF THE
I 28
Letter from Gen. David H. Petraeus to Multi-National
Force—Iraq (May 10, 2007) (http://tinyurl.com
Statement of Gen. David H. Petraeus, Senate Committee
on Armed Services (Dec. 5, 2006) (available at http://
armed-services.senate.gov/hearings.cfm) .....................+. 20
Vili
Letter from Colin Powell to Sen. John McCain
(Sept. 13, 2006), quoted in 152 Cong.
AT IEET vied iesticiecehiangsnatbncnptinddednstopsecntemnednisceneempeennents 21
Robert D. Powers, Jr., Caribbean Leased Bases
Jurisdiction, 15 JAG J. 161 (Oct.-Nov. 1961)............. 25, 26
Maj. Gen. George S. Prugh, ViET NAM STUDIES,
LAW AT WAR: VIET NAM 1964-1973 (Dep’t of
I iitertalethicndihibcitaainialitlnieninicaputntneasennsensietnes 18
RESTATEMENT (THIRD) OF FOREIGN RELATIONS
OF THE UNITED STATES §206 (1987) ...........cccccccceseceeeeeeee 28
Maura Reynolds, No Tax Hike For Bridges,
L.A. TIMES, Aug. 10, 2007 at A12 000.0... eee eeceeeeneeeeeees 11
Martin J. Scheina, The U.S. Presence in
Guantanamo, 4 STRATEGIC REVIEW 81
I icici dria dbdiinitigdiiectieibulinensinaneneiatvsnttesancen 27, 28
Shehu Sani, U.S. Actions Send a Bad Signal
to Africa: Inspiring Intolerance, INT’L HERALD
a a a iatertcrreceenepnnicncenivenmestcnsesersenmmenepenenes 17
State Department, Daily Press Briefing,
Feb. 10, 2003 (http://www.state.gov/r/pa/prs/dpb/2003/
ciate incihinnacibdatatecicticnialiniincigniinenensnantnentdnnndnncias 16
U.S. Marine Corps, The Basic School Training
Command, LAW OF WAR/CODE OF CONDUCT
U.S. Senate Judiciary Committee Hearing on
Detainee Trials (Aug. 2, 2006) (statement of
General Richard Myers, former Chairman of the
EER eC EE ae 21
ix
Letter from Gen. John W. Vessey (Ret.) to Sen.
John McCain (Sept. 12, 2006), quoted in 152
Cong. Rec. $10412 (daily ed. Sept. 28, 2006)
INTEREST OF THE AMICI CURIAE'
Amici curiae are retired military officers. Each has
extensive experience with U.S. military regulations and the
Laws of War. Each believes that the mission of the Nation’s
Armed Forces must be consistent with the rule of law.
The purpose of this brief is to explain the profound
ramifications, from a military point of view, of the
government’s position that foreign prisoners at the United
States Naval Base at Guantanamo Bay, Cuba may be held
indefinitely without any meaningful judicial review of their
imprisonment. Amici are concerned that foreigners capturing
American forces in current or future conflicts will use the
example of Guantanamo as justification for indefinite
detention of American captives.
Brigadier General David M. Brahms served in the Marine
Corps from 1963 through 1988, with a tour of duty in
Vietnam. During the 1970s, he served as the principal legal
advisor for POW matters at Headquarters Marine Corps, and
in that capacity, he was directly involved in issues relating to
the return of American POWs from Vietnam. General
Brahms was the senior legal advisor for the Marine Corps
from 1985 through 1988, when he retired. He is currently in
private practice in California and was formerly a member of
the Board of Directors of the Judge Advocates Association.
He also served as the Technical Advisor for the film A Few
Good Men.
' Pursuant to Rule 37.6, amici affirm that no counsel for a party authored
this brief in whole or in part and that no person other than amici and their
counsel made a monetary contribution to its preparation or submission.
The parties’ letters consenting to the filing of this brief have been lodged
with the Clerk.
2
Rear Admiral Donald J. Guter was a line officer in the
United States Navy from 1970 through 1974. After a break
for attending law school, he returned to the Navy in 1977 and
remained in the Navy until 2002, when he retired from the
military. He served as the Navy’s Judge Advocate General
from June 2000 through June 2002. Admiral Guter was in the
Pentagon when it was attacked by terrorists on September 11,
2001. He is currently the Dean of Duquesne University
School of Law.
Rear Admiral John D. Hutson served in the United States
Navy from 1973 to 2000. He was the Navy’s Judge Advocate
General from 1997 to 2000. He is the Dean and President of
the Franklin Pierce Law Center in Concord, New Hampshire.
SUMMARY OF ARGUMENT
For more than 200 years, the United States has been at the
forefront of international efforts to safeguard the rights of
prisoners captured in wartime. Those efforts resulted, after
World War II, in the Geneva Conventions of 1949, which the
Senate ratified in 1955. Key provisions of those Conventions
have been incorporated in Army Regulation 190-8, including
the requirement that the status of captured persons be
determined by a competent tribunal shortly after capture if
there is any doubt about whether the captives are prisoners of
war. Persons found to be innocent civilians are released.
The Combatant Status Review Tribunals (“CSRTs”)
created in the wake of Rasul v. Bush, 542 U.S. 466 (2004),
and Hamdi v. Rumsfeld, 542 U.S. 507 (2004), occurred years
after the detainees were captured and do not even measure up
to the streamlined battlefield procedures established by
Regulation 190-8, let alone the protections provided by the
writ of habeas corpus. Unlike hearings under Regulation 190-
8, command influence and the permissible use of evidence
obtained by torture tainted the CSRTs at issue here. The
result is a “procedure” that lacks the integrity of Regulation
190-8 hearings and permits individuals to be detained for the
3
rest of their lives as “enemy combatants” based on the
flimsiest of evidence. There is no legitimate justification for
providing such a grossly deficient process years after the
detainees’ capture and thousands of miles away from any
battlefield. The severely constricted review of CSRT findings
permitted by the Detainee Treatment Act of 2005 (“DTA”)
provide no meaningful opportunity for detainees to challenge
their potentially lifelong imprisonment.’
Providing Guantanamo prisoners with meaningful judicial
review of their imprisonment is especially important to the
members of the United States Armed Forces. If the United
States detains “enemy combatants” without providing a fair
and meaningful hearing, it increases the likelihood that
foreign forces capturing American troops in the future will
ignore the Geneva Conventions entirely—thereby putting the
lives of American prisoners at risk. And even if our enemies
do not comply with the Geneva Conventions, it is important
for our military to do so. Adhering to U.S. law and upholding
traditional American values are well-established hallmarks of
the American military tradition; they also provide moral
authority that is critically important to the ability of our
soldiers to wage and win war with a minimum of resistance.
The government contends that it is not required to provide
detainees with meaningful judicial review because the
Guantanamo base is not under United States sovereignty.
This Court rejected that position in Rasul, recognizing that
the governing agreements with Cuba provide the United
> The petitioners’ briefs and other amicus briefs address whether or not
some detainees are subject to military jurisdiction at all. This brief does
not discuss that issue, but compares the CSRTs to the military procedures
provided at the time of capture for persons properly subject to military
jurisdiction.
4
States with “complete jurisdiction and contro!” over the base
in perpetuity. Military officials have long regarded the lease,
executed in 1903, as interrupting Cuban sovereignty; Cuba’s
sovereignty will resume if the United States ever decides to
return the base to Cuba. In the meantime, the United States
acts as the “pro tanto sovereign” of the base, as the State
Department’s Office of the Solicitor concluded in 1912.
ARGUMENT
I. The United States Has Played A Leading Role In
Developing International Standards To Safeguard
The Rights Of Captured Prisoners.
For more than 200 years, the United States has “been a
leader in * * * bettering the humanitarian principles invoked
in the treatment of prisoners of war.” Gen. J.V. Dillon, The
Genesis of the 1949 Convention Relative to the Treatment of
Prisoners of War, 5 MiAMi L.Q. 40, 41 (1950). A 1785 treaty
between the United States and Prussia “probably constituted
the first international attempt to. provide in time of peace for
the protection of prisoners of war.” Howard S. Levie,
PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 5-6
(1977). In 1863, Abraham Lincoln commissioned Dr. Francis
Lieber to draft a code of conduct for the Union Army in
treating prisoners of war. Jd. at 7. The Lieber Code “was
perhaps the first formal codification of rules governing the
treatment to be accorded prisoners of war.” Dillon, 5 MIAMI
L.Q. at 42.
Among other things, the Lieber Code provided that “(a]
prisoner of war is subject to no punishment for being a public
enemy.” Art. 56, U.S. Army General Order No. 100 (1863).
The Lieber Code became the “quarry from which all
subsequent codes were cut” and the “basis of every
convention and revision on the subject” of conduct toward
prisoners of war. Geoffrey Best, HUMANITY IN WARFARE 129
(1980). It had a “significant influence” on other nations and
on the Hague Conventions of 1899 and 1907, Dillon, 5
5
MIAMI L.Q. at 42, which were “the first effective multilateral
codification{[s] of the law of war.” Levie, PRISONERS OF
WAR, at 8. After World War I, the United States and
Germany entered into an agreement concerning the treatment
of prisoners of war. Dillon, 5 MIAMI L.Q. at 42. The
subsequent 1929 Geneva Convention Relative to the
Treatment of Prisoners of War, signed by the United States
and more than 40 other nations, bore “a striking resemblance
to the United States-German agreement.” /d. at 43.
The Geneva Convention of 1929 played a significant role
during World War II. The fact “that millions of prisoners of
war from all camps, notwithstanding the holocaust, did
return, is due exclusively to the observance of the Geneva
Prisoners of War Convention.” Josef L. Kunz; The Chaotic
Status of the Laws of War and the Urgent Necessity For
Their Revision, 45 Am. J. INT’L L. 37, 45 (1951). “The
American Red Cross attributed the fact of the survival of 99
percent of the American prisoners of war held by Germany
during World War II to compliance with the 1929
Convention.” Levie, PRISONERS OF WAR, at 10 n.44.
The treatment of POWs during World War II also
indicated that the Geneva Convention of 1929 required
substantial revision to broaden and clarify the circumstances
under which its protections would apply. Levie, PRISONERS
OF WAR, at 10-11. Some countries had argued that the 1929
Convention did not apply when the invading country had not
formally declared war. Germany had claimed that the
Convention did not apply to Polish prisoners because the
Polish government had ceased to exist and that the
Convention did not apply to French prisoners because France
ceased to be a belligerent after signing an armistice with
Germany. /d. at 11-12. Moreover, the 1929 Convention did
not establish a procedure for determining whether a captive is
a prisoner of war: “[d]uring World War II the decision that
an individual was not entitled to prisoner-of-war status had
6
frequently been made summarily and by persons of very low
rank.” Levie; PRISONERS OF WAR, at 55.
Following World War II, at the suggestion of an American
general, the International Committee of the Red Cross
convened “a meeting of experts on prisoner of war affairs of
the various belligerent nations.” Dillon, 5 MIAMI L.Q. at 43.
The United States went on to play “a major role both in the
prepatory steps and in the conference proceedings.” Geneva
Conventions for the Protection of War Victims: Hearing
Before the Senate Committee on Foreign Relations, 84th
Cong., Ist Sess., at 3-4 (1955) (“Senate Hearing”) (statement
of Robert Murphy, Deputy Under Secretary of State).
Meetings involving the United States and other nations
resulted in the four Geneva Conventions of 1949, including
the Geneva Convention Relative to the Treatment of
Prisoners of War. Dillon, 5 MIAM! L.Q. at 43.
The debate on the 1949 Conventions shows that two basic
principles animated the Senate’s decision to ratify. First, the
United States had to lend its moral authority to the
Conventions and provide a model for other nations to follow
in treating prisoners of war. In urging Senate approval,
Secretary of State John Foster Dulles stated that American
“participation is needed to enlist the authority of the United
States in the[] interpretation and enforcement” of the
Conventions. Senate Hearing at 61. Secretary Dulles went on
to express the view that “United States ratification of the
Geneva Conventions, by lending further support to their
standards, should influence favorably future behavior toward
prisoners of war.” /d. at 68.
Second, by treating prisoners of war in accordance with
the 1949 Conventions, the United States believed that it
would encourage its enemies to reciprocate in their treatment
of American prisoners of war. Deputy Under Secretary of
State Murphy informed the Senate Committee on Foreign
Relations that although neither North Korea nor the United
7
States had ratified the 1949 Conventions at the time of the
Korean War, “the moral acceptance of the conventions as a
general norm did have some effect on” North Korea’s
treatment of American prisoners during the war. /d. at 5.
Looking to future conflicts, Secretary Dulles explained that
American “participation is needed to *** enable us to
invoke them for the protection of our nationals.” /d. at 61.
Similarly, Senator Mike Mansfield stated that “it is to the
interest of the United States that the principles of these
conventions be accepted universally by all nations.” 101
Cong. Rec. 9960 (July 6, 1955). Senator Mansfield explained
that American “standards are already high. The conventions
point the way to other governments. Without any real cost to
us, acceptance of the standards provided for prisoners of war,
civilians, and wounded and sick will insure improvement of
the condition of our own people as compared with what had
been their previous treatment.” Jbid. Senator Alexander
Smith concurred: “I cannot emphasize too strongly that the
one nation which stands to benefit the most from these four
conventions is our own United States. * * * To the extent that
we can obtain a worldwide acceptance of the high standards
in the conventions, to that extent will we have assured our
own people of greater protection and more civilized
treatment.” /d. at 9962.
One important protection is Article 5 of the Third Geneva
Convention Relative to the Treatment of Prisoners of War
(“GPW”) (Aug. 12, 1949, 6 U.S.T. 3316), which provides:
Should any doubt arise as to whether persons, having
committed a belligerent act and having fallen into the
hands of the enemy, belong to any of the categories
enumerated in Article 4 [defining POWs], such
persons shall enjoy the protection of the present
Convention until such time as their status has been
determined by a competent tribunal.
The same requirement has been part of American miliary
regulations for decades:
All persons taken into custody by U.S. forces will be
provided with the protections of the GPW until some
other legal status is determined by competent
authority.
United States Dep’t of Army, Regulation 190-8, §1-
5(a)(2) (Oct. 1, 1997).° The regulation further provides
(id. §1-6):
(a) In accordance with Article 5, GPW, if any doubt
arises as to whether a person, having committed a
belligerent act and been taken into custody by the US
Armed Forces, belongs to any of the categories
enumerated under Article 4, GPW, such persons shall
enjoy the protection of the present Convention until
such time as their status has been determined by a
competent tribunal. —
(b) A competent tribunal shall determine the status of
any person not appearing to be entitled to prisoner of
war status who has committed a belligerent act or has
engaged in hostile activities in aid of enemy armed
forces, and who asserts that he or she is entitled to
treatment as a prisoner of war, or concerning whom
any doubt of a like nature exists.
Hearings unde: Regulation 190-8 are designed to occur
shortly after a prisoner’s capture. Anyone determined to be
an innocent civilian is “immediately returned to his home or
> Regulations for the other branches of the military contain the same
provisions discussed in the text. See OPNAVINST 3461.6 (Navy); AFJI
31-304 (Air Force); MCO 3461.1 (Marine Corps). Predecessor versions
of Regulation 190-8 also included these provisions.
9
released.” Reg. 190-8, §1.6(e)(10)(c). Prisoners of war are
released when the active military conflict ends. Geneva
Convention, Art. 118 (“Prisoners of war shall be released and
repatriated without delay after the cessation of active
hostilities”).
It has been Defense Department policy to comply with the
Laws of War, including the Geneva Conventions, in
conducting “military operations and related activities in
armed conflict, however such conflicts are characterized.”
Judge Advocate General’s School, OPERATIONAL LAW
HANDBOOK 10 (O’Brien, ed. 2003) (emphasis added); see
also Department of Defense Directive No. 5100.77, 95.3.1
(Dec. 9, 1998). Thus, the military instructs its Judge
Advocates that they “should advise commanders that,
regardless of the nature of the conflict, all enemy personnel
should initially be accorded the protections of the GPW
Convention (GPW , at least until their status may be
determined.” OPERATIONAL LAW HANDBOOK at 22. See also
U.S. Marine Corps, The Basic School Training Command,
LAW OF WAR/CODE OF CONDUCT 10 (Dec. 2002) (instructing
new Marine Corps officers that “[e]veryone who is captured
or detained during a conflict should therefore be treated as
the Geneva POW Convention requires until the proper
tribunal can judge his or her case’’).
II. CSRTs Do Not Comport With Military Law
Principles.
Although the model of Regulation 190-8 was invoked by
some members of Congress to justify ousting the courts of
habeas jurisdiction and replacing habeas with limited judicial
review of the CSRTs, there are fundamental differences
between CSRTs and hearings under Regulation 190-8—
differences that cannot be corrected under the severely
10
circumscribed review provided by the DTA, Pub. L. No. 109-
148, Tit. X, 119 Stat. 2739. The CSRTs depart significantly
from standards followed by the military for decades.
First, the CSRTs conducted after Rasul were irretrievably
infected with the pemicious effects of command influence—
the pressure that superiors exert over military subordinates.
Command influence eliminates “a forum where impartiality
is not impaired”; it is the “mortal enemy of military justice.”
United States v. Thomas, 22 M.J. 388 (CMA 1986). Its effect
is so harmful to the objectivity and the validity of any
military tribunal that it is prohibited by the Code of Military
Justice and the rules governing courts-martial. 10 U.S.C. §
837(a) (barring any attempt “to coerce” or “influence the
action of a court-martial or any other military tribunal”);
Manual of Courts-Martial, Rule 2-104 (2005) (“No person”
may “coerce” or “influence” the actions of any military
tribunal “with respect to such authority’s judicial acts”).
Command influence is inextricably intertwined with the
CSRT process in both form and practice. The CSRT Order
itself proclaimed that “[e]ach detainee” receiving a CSRT
already “has been determined to be an enemy combatant
through multiple levels of review.” CSRT Order §a (July 7,
2004) (emphasis added). Even before the CSRT Order, the
President labeled the detainees as “killers” and “terrorists.”
Bronwen Maddox, Truth is casualty in fog of the Afghan
* The DTA also directed the Department of Defense to establish new
rules, inter alia, to “ensure” that “to the extent practicable” future CSRTs
assess whether any statement “derived from or relating to [the] detainee”
was obtained by. torture or coercion and “the probative value (if any) of
any such statement.” /d. §1005(b)(1). But the DTA provided that such
new rules would apply only “with respect to any proceeding beginning on
or after the date of the enactment of this Act,” ie., December 30, 2005.
All of the petitioners’ CSRTs were held before then.
11
war, THE TIMES (London), May 8, 2002. More recently, the
President reiterated that “a lot” of Guantanamo detainees “are
killers.” Maura Reynolds, No Tax Hike For Bridges, L.A.
TIMES, Aug. 10, 2007, at A12. On a visit to the Guantanamo
base in January 2002, former Secretary of Defense Donald
Rumsfeld described the detainees as “among the most
dangerous, best trained, vicious killers on the face of the
earth.” Christine Lowe, Guarding Gitmo, MARINE TIMES,
Feb. 11, 2002, at 211. Statements like these made it
exceedingly unlikely that a CSRT would reach a contrary
conclusion. Indeed, in a naked assertion of command
influence, in some of the rare cases where a detainee was
found by his CSRT panel not to be an enemy combatant,
higher ranking officials in the chain of command insisted on
another bite at the apple—a “do-over” by the same panel or a
new panel—until the CSRT reached the “correct” result: an
enemy combatant finding. Al-Odah v. Bush, No. 06-1196,
Reply to Opp. to Pet: for Rehearing, Decl. of Lt. Col.
Stephen Abraham 423.
Second, CSRTs were allowed to consider evidence against
a detainee procured by torture. The CSRT Order permitted
CSRT decisions to be based on “any information [the panel]
deems relevant and helpful to a resolution of the issue before
it,” including hearsay evidence obtained through
interrogation procedures prohibited by the Geneva
Conventions. CSRT Order §g(9). Regulation 190-8 hearings,
by contrast, bar evidence obtained by torture. Army Reg.
190-8, Ch. 2-1a(1)(d) (“The use of physical or mental torture
or any coercion to compel prisoners to provide information is
prohibited”). The government’s ability in the CSRTs to use
evidence procured by torture stacked the deck even more
heavily in its favor: an out-of-tribunal statement uttered by an
unknown individual under coercion—the content of which
was kept secret from the detainee—could result in a
detainee’s indefinite imprisonment.
12
Third, Regulation 190-8’s stripped-down procedures are
necessary for. the battlefields on which they were intended to
operate, where captured people must be sorted quickly. See
Regulation 190-8, Chs. 2-3. That justification does not apply
to CSRTs for individuals held thousands of miles from an
active theatre of war, years after their capture. See Hamdi,
542 U.S. at 534 (plurality opinion) (distinguishing the
process due when “continu[ing]:to hold those who have been
seized” compared to “initial captures on the battlefield”);
Rasul, 542 U.S. at 488 (Kennedy, J., concurring) (“Perhaps,
where detainees are taken from a zone of hostilities,
detention without proceedings or trial would be justified. by
military necessity for a matter of weeks; but as the period of
detention stretches from months to years, the case for
continued detention to meet military exigencies becomes
weaker’).
Fourth, an erroneous determination under the CSRT
process has repercussions far more severe than an error in a
Regulation 190-8 hearing. A prisoner-of-war finding means
that the person is held until the end of hostilities. But given
the nature of the “war on terror’—which may last
indefinitely—an “enemy combatant” label imposed by a
CSRT may result in imprisonment for the rest of a detainee’s
life. Our Nation’s military tradition does not permit imposing
a life sentence on a suspected enemy without substantially
greater procedural protections than the CSRTs provide.
Taken together, these differences show that CSRT
proceedings are little more than a facade, without even the
substantive protections that ensure compliance with Article 5
of the Geneva Conventions and that invest 190-8 tribunals
with legitimacy in the eyes of the world. Hearings conducted
by the U.S. military under Article 5 have long been models
of fairness, as evidenced by the large numbers of detainees
released as non-combatants during past conflicts following
such hearings conducted in the field. For example, in the
1991 Gulf War, nearly 1,200 hearings resulted in the release
13
of about 75% of those initially detained. Dep’t of Defense,
Final Report to Congress:.Conduct of the Persian Gulf War
L-3 (1992). In contrast, the CSRT regime is heavily tilted in
favor of an enemy combatant finding, which undermines the
legitimacy of the military justice system.
These serious defects are compounded by the sharply
limited judicial review the DTA provides for CSRT findings.
The DTA limits the D.C. Circuit to deciding whether the
findings were “consistent with the standards and procedures”
for CSRTs.:DTA §1005(e)(2)(C)(i). This tautology does not
remedy the defects in the “standards and procedures” of the
CSRT program. While the statute provides that the D.C.
Circuit may consider the Constitution “to the extent * * *
applicable,” §1005(e)(2)(C)(ii), the government’s view is that
no Constitutional provisions apply to the detainees held at
Guantanamo. Br. Opp. 19-25. If the Court rejects that
position, as it should, then it should reject the Government’s
reliance on the CSRT results. In light of the possibility of
what amounts to a life sentence, the CSRT procedures and
limited DTA review do not measure up to Constitutional
standards, as a number of other briefs explain.
III. Holding Guantanamo Detainees Indefinitely Without
Any Meaningful Judicial Review Increases The Risk
To American Armed Forces.
The significant deficiencies of the CSRTs may well have
an adverse effect on the members of America’s armed forces.
If the United States holds prisoners indefinitely—potentially
lifetime imprisonment—based on sham CSRT proceedings
and without providing meaningful judicial review of their
imprisonment, enemies in current or future conflicts may use
that as an excuse to mete out similar treatment to captured
American military forces.
This risk is greater today than it was in 2004, when the
Court decided Rasul. Since then, American standing in the
world has plummeted. Guantanamo and the government’s
14
treatment of the prisoners there have become lightning rods
for anti-American sentiment, fostering the perception that the
United States no longer stands for the rule of law. Upholding
potentially lifelong imprisonment of Guantanamo detainees
based on CSRTs that are widely viewed as preordained
proceedings could make the world a great deal more perilous
for American servicemen and women captured abroad.
This Court has observed that “[t]he United States
frequently employs Armed Forces outside this country—over
200 times in our history—for the protection of American
citizens or national security.” United States v. Verdugo-
Urquidez, 494 U.S. 259, 273 (1990). In recent decades,
American armed forces have been engaged somewhere
abroad nearly every year. It is inevitable that some American
military personnel operating abroad will be captured or taken
prisoner. When that happens, the United States government
and the families and friends of detained servicemen and
women will share a strong interest: ensuring that American
personnel are treated fairly and returned promptly when the
conflict is over.
In past and present conflicts, the United States has insisted
that American soldiers held by the enemy be accorded the
basic protections of the Geneva Conventions. Ironically,
Deputy Secretary of Defense Paul Wolfowitz invoked the
Conventions when objecting to Iraqi treatment of American
POWs: “We've seen those scenes on Al Jazeera that others
have seen. We have reminded the Iraqis * * * that there are
very clear obligations under the Geneva Convention to treat
prisoners humanely.” Dep’t of Defense News Transcript,
Deputy Secretary Wolfowitz Interview with New England
Cable News (Mar. 23, 2003). Similarly, when American
troops captured during NATO military action against Serbia
in 1999 were shown on Serbian television, beaten and
humiliated, the United States immediately demanded their
treatment as prisoners of war under the Geneva Conventions.
Steven Lee Myers, Serb Officer, Captured by Rebels, Held by
- *
‘
i
15
U.S., N.Y. Times, Apr. 17, 1999, at A9. The United States
had the same reaction during Vietnam. See 64 Dep’t of State
Bull. 10 (Jan. 4, 1971) (announcing President Nixon’s call
for applying the 1949 Geneva Conventions to ease “the
plight of American prisoners of war in North Viet-Nam and
elsewhere in Southeast Asia”).
The United States has demanded that captured U.S. service
personnel be treated in accord with the Geneva Conventions
even in situations where the Conventions technically did not
apply. After the 1993 capture of U.S. Warrant Officer
Michael Durant by forces under the control of Somali
warlord Mohamed Farah Aideed, the United States
demanded assurances that Durant’s treatment would be
consistent with the protections afforded by the Conventions,
even though “[(uJnder a strict interpretation of the Third
Geneva Convention’s applicability, Durant’s captors would
not be bound to follow the convention because they were not
a ‘state."” Neil McDonald & Scott Sullivan, Rational
Interpretation in Irrational Times: The Third Geneva
Convention and the “War On Terror,” 44 HARV. INT’L L.J.
301, 310 (Winter 2003).°
Invoking international human nights standards, the United
States has condemned foreign governments that have held
detainees incommunicado o. deprived them of the ability to
seek judicial review of their confinements. For example, the
United States objected when Liberia arrested journalist
Hassan Bility and held him incommunicado on the purported
* “American invocation of the Geneva Conventions evidently had its
desired effect. “Following these declarations by the United States, heavy-
handed interrogations of Durant appeared to cease, * * * and he was
subsequently released by Aideed as a ‘gesture of goodwill.” 44 HARV.
INT’L L.J. at 310.
16
ground that he was an “illegal combatant” involved in
terrorist activity. Liberia; Journalist Tortured, Envoy Blaney
Discloses, Wants Gov't to Honor Terms of Agreement,
AFRICA NEwsS, Jan. 3, 2003 (available on Nexis). The United
States Ambassador in Monrovia explained that “[{a]n honest
and competent civil court” should have judged whether Bility
was guilty of a crime, “not any individual or official.” John
W. Blaney, Jan. 2, 2003 Statement (http://usembassy.
state.gov/monrovia/wwwhsp010203.html). Similarly, the
State Department expressed “deep concern” over the trial of
a Chinese democracy activist who was held incommunicado
for six months and whose “trial was conducted in secret,
raising questions about the nature of the evidence against him
and the lack of due process.” State Department, Daily Press
Briefing, February 10, 2003 (http://www.state.gov/r/pa/prs/
dpb/2003/17590.htm). See also Jeffrey K. Cassin, United
States’ Moral Authority Undermined: The Foreign Affairs
Costs of Abusive Detentions, 4 CARDOZO PuB. L. POL’y &
ETHICS J. 421, 440-445 (2006) (noting that in recent years,
the United States has censured Cuba, Turkmenistan,
Uzbekistan, and Burma for holding dissidents or suspected
terrorists incommunicado and/or without due process of law).
Yet even as American officials condemn other nations for
detaining people. indefinitely, authoritarian regimes have
pointed to U.S. treatment of the Guantanamo prisoners as
justification for such actions. Liberia’s former President
Taylor defended Bility’s treatment by maintaining that Bility
was being treated in the same manner as the U.S. treats its
own “terrorists.” Bill K. Jarkloh, U.S. Against Government
Failure to Produce Bility, Others, THE NEWS (NIGERIA), July
10, 2002 (available on Nexis). Eritrea’s Ambassador to the
United States defended his government’s roundup of
journalists by claiming that their detention without charge
was consistent with the United States’ detention of material
witnesses and aliens suspected by the United States of
terrorist activities. Fred Hiatt, Truth-Tellers in a Time of
17
Terror, WASH. POST, Nov. 25, 2002, at A15. See also Shehu
Sani, U.S. Actions Send a Bad Signal to Africa: Inspiring
Intolerance, INT’L HERALD TRIB., Sept.. 15, 2003, at 6
(“indefinite detention in Guantanamo Bay * * * helps justify
Egypt’s move to detain human rights campaigners as threats
to national security, and does the same for similar measures
by the governments of Ivory Coast, Cameroon and Burkina
Faso”).
If indefinite detention of the Guantanamo prisoners—
based on sham CSRT proceedings and without any
meaningful judicial review of the factual and legal basis of
their imprisonment—is regarded as precedent for similar
actions by. countries with which we are at peace, it obviously
may be similarly regarded by enemies who capture American
soldiers in an existing or future conflict. E.g., /ran Denies
British Sailors Mistreated, Claims “Pressure,” AGENCE
FRANCE PRESSE, Apr. 7, 2007 (available on Nexis) (quoting a
spokesperson for Iranian President Ahmadinejad, defending
Iran’s March 2007 seizure of 15 British sailors captured in
Iraqi waters, by noting that the Guantanamo detentions have
made “the United States * * * the biggest hostage taker”). As
a result, the lives of captured American military forces may
well be endangered by our Nation’s failure to permit
Guantanamo detainees to pursue the habeas corpus petitions
filed after this Court decided Rasul.
The importance of reciprocal treatment of a country’s own
citizens or soldiers and those of an enemy has an ancient
pedigree. Nearly 800 years ago, the Magna Carta provided
that foreign merchants from countries at war with England
“shall be attached without harm of body or goods,
until it be known unto us, or our chief justice, how our
merchants be entreated who are then found in the land
making war against us; and if our merchants be well
intreated there, theirs shall be likewise with us.”
ee ee
18
Johnson v. Eisentrager, 339 U.S. 763, 783 n.11 (1950)
(quoting Magna Carta, chapter 30, in 3 THE COMPLETE
STATUTES OF ENGLAND 27 (Halsbury’s Laws of England
1929)).
Shortly after World War II ended, General Eisenhower
explained to Soviet Marshal Zhukov why German POWs
received the same rations as American soldiers:
Well, in the first place my country was required to do
so by the terms of the Geneva Convention. In the
second place the Germans had some thousands of
American and British prisoners and I did not want to
give Hitler the excuse or justification for treating our
prisoners more harshly than he was already doing.
Dwight D. Eisenhower, CRUSADE IN Europe 469 (1949).°
In Vietnam, the American decision to apply the Geneva
Conventions’ principles to captured enemy soldiers was
driven in part by the desire to obtain “reciprocal benefits for
American captives.” Maj. Gen. George S. Prugh, VIETNAM
STUDIES, LAW AT WAR: VIETNAM 1964-1973, at 62-63 (Dep’t
of the Army 1975). Our insistence that the enemy apply the
Geneva Conventions to American POWs in Vietnam saved
American lives:
[A]pplying the benefits of the Convention to those
combat captives held in South Vietnam did enhance
the opportunity for survival of U.S. service members
held by the Viet Cong and North Vietnamese. While
® On the Russian front, in contrast, the belligerents did not follow the
Geneva Conventions, with horrific results. The consensus is that at least
55% of Soviet POWs died in German captivity, while some 38% of
German POWs held by the Soviets perished. Evan Mawdsley, THUNDER
IN THE EAST: THE NAZI-SOVIET WAR 1941-1945 103, 238 (2005).
19
the enemy never officially acknowledged the
applicability of the Geneva Convention, and treatment
of American POWs continued to be brutal, more U.S.
troops were surviving capture. Gone were the days
when an American advisor was beheaded, and his
head displayed on a pole by the Viet Cong. On the
contrary, the humane treatment afforded Viet Cong
and North Vietnamese Army prisoners exerted
constant pressure on the enemy to reciprocate, and the
American POWs who came home in 1973 survived, at
least in part, because of [that].
Col. Fred L. Borch, Review of Honor Bound, 163 MIL. L.
REV. 150, 152 (2000).
In current debates about the Guantanamo detainees and
prisoners from the conflicts in Afghanistan and Iraq, military
officers, government officials, and commentators have
pointed out that “[t]he Geneva Conventions operate on the
principle of reciprocity,” Joan Fitzpatrick, Sovereignty,
Territoriality, and the Rule of Law, 25 HASTINGS INT’L &
Comp. L. REV. 303, 317 (2002), and that if the United States
does not apply the Geneva Conventions, it heightens the risk
that captured Americans will be denied the protection of the
Conventions by foreigners. In recent Senate hearings,
Defense Secretary Gates, General Petraeus, and Commander
Fallon all testified that standards for detainee treatment must
be based on the principle of reciprocity, and all agreed that
the manner in which we treat our own detainees may directly
affect the treatment of captured U.S. soldiers. Statement of
Gen. David H. Petraeus, Senate Committee on Armed
Services (Dec. 5, 2006); Statement of Dr. Robert M. Gates,
Senate Committee on Armed Services (Jan. 23, 2007);
Statement of Adm. William J. Fallon, Senate Committee on
Armed Services (Jan. 30, 2007) (all available at http://armed-
services.senate.gov/ hearings.cfm).
20
Similarly, William. H. Taft IV, the State Department’s
Legal Adviser, wrote the President in 2002 that “[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 combat.”
Mem. to Counsel to the President (Feb. 2, 2002) (www. fas.
org/sgp/othergov/taft.pdf). See also, e.g., Wesley K. Clark,
The Next Iraq Offensive, N.Y. TIMES, Dec. 6, 2005, at A27
(“among retired officers, there is deep concern that the Bush
administration’s attitude on the treatment of detainees has
jeopardized not only the safety of our troops but the moral
purpose of our effort”); P.X. Kelly & Robert F. Turner, War
Crimes and the White House: The Dishonor in a Tortured
New ‘Interpretation’ of the Geneva Conventions, WASH.
Post, July 26, 2007, at A21 (“The Geneva Conventions
provide important protections to our own military forces
when we send them into harm’s way. Our troops deserve
those protections, and we betray their interests when we
gratuitously ‘interpret’ key provisions of the Conventions in
a manner likely to undermine their - effectiveness”). The
danger that captured Americans might be mistreated is
increased for those American forces overseas, some in
Afghanistan for example, who do not always wear military
uniforms.
In addition to the interest in obtaining reciprocal benefits
for our own captured soldiers, adherence to traditional legal
principles furthers the United States’ moral authority, which
decreases the ability of our enemies to tum civilian
populations against us and in turn increases the ability of our
troops to wage and win war with a minimum of casualties.
See Letter from Gen. David H. Petraeus to Multi-National
Force-Iraq (May 10, 2007) (http://tinyurl.com/35wpe7)
(“Adherence to our values distinguishes us from our enemy.
This fight depends on securing the population, which must
understand that we—not our enemies—occupy the moral
=
21
high ground”). As General John Vessey wrote in comments
echoed by Secretary of State Colin Powell:
I continue to read and hear that we are facing a
“different enemy” in the war on terror; no matter how
true that may be, inhumanity and cruelty are not new
to warfare nor to enemies we have faced in the past. In
my short 46 years in the Armed Forces, Americans
confronted the horrors of the prison camps of the
Japanese in World War II, the North Koreans in 1950-
53, and the North Vietnamese in the long years of the
Vietnam War, as well as knowledge of the Nazi’s
holocaust depredations in World War I. Through
those years, we held to our own values. We should
continue to do’so.
Letter from Gen. John W. Vessey (Ret.) to Sen. John McCain
(Sept. 12, 2006), quoted in 152 Cong. Rec. $10412 (daily ed.
Sept. 28, 2006); Letter from Colin Powell to Sen. John
McCain (Sept. 13, 2006), quoted ibid.; see also U.S. Senate
Judiciary Committee Hearing on Detainee Trials (Aug. 2,
2006) (“Even in a conflict like this where you don’t expect
particularly good treatment, * * * we have to set the standard;
I think that’s our obligation as a country * * *’’) (statement of
General Richard Myers, former Chairman of the Joint Chiefs
of Staff).
Nearly 80 years ago, Justice Brandeis warned:
Our government is the potent, the omnipresent
teacher. For good or for ill, it teaches the whole people
by its example. * * * If the government becomes a
lawbreaker, it breeds contempt for law; it invites every
man to become a law unto himself; it invites anarchy.
To declare that * * * the end justifies the means * * *
would bring terrible retribution. Against that
pernicious doctrine this Court should resolutely set its
face.
22
Olmstead v. United States, 277 U.S. 438, 485 (1928)
(Brandeis, J., dissenting). The United States still serves as an
example to the world. Our concern is that, in this instance,
the government is setting an example that is not only
fundamentally at odds with the rule of law, but that - our
own troops in greater peril.
IV. Constitutional Protections Apply To Detainees Held
At The Guantanamo Base.
The government attempts to justify the wholly inadequate
procedures offered to Guantanamo detainees by asserting that
ordinary principles of habeas corpus and due process do not
apply because the government is holding the detainees
outside the sovereign territory of the United States. Br. Opp.
19-24. This argument rests on the February 1903 lease
agreement between the United States and Cuba, which
provides in pertinent part:
While on the one hand the United States recognizes
the continuance of the ultimate sovereignty of the
Republic of Cuba over the above described areas of
land and water, on the other hand the Republic of
Cuba consents that during the period of occupation by
the United States of said areas under the terms of this
agreement the United States shall exercise complete
jurisdiction and control over and within said areas.
T.S. No. 418, Art. III, 6 Charles I. Bevans, TREATIES AND
OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES
OF AMERICA 1776-1949, at 11 13, 1114 (State Dep’t 1971).
In Rasul, this Court rejected the contention that the rights
of Guantanamo detainees depended on the technicalities of
sovereignty. The. Court held that “the reach of the writ” of
habeas corpus has always “depended not on formal notions
of territorial sovereignty, but rather on the practical question
of ‘the exact extent and nature of the jurisdiction or dominion
exercised in fact by the [government].’” 542 U.S. at 482. As
On ee a
23
Justice Kennedy concluded in his concurring opinion: “What
matters is the unchallenged and indefinite control that the
United States has long exercised over Guantanamo Bay.
From a practical perspective, the indefinite lease of
Guantanamo Bay has produced a place that belongs to the
United States.” Jd. at 487. In short, “Guantanamo Bay is in
every practical respect a United States territory.” Jbid.
The Rasul Court was correct. But even if “formal notions
of territorial sovereignty” (Rasul, 542 U.S. at 482) were
relevant, government officials and legal scholars have long
rejected the contention that the United States “is not
sovereign over Guantanamo Bay.” Br. Opp. 24.
1. The Guantanamo lease “is no ordinary lease. Its term is
indefinite and at the discretion of the United States.” Rasul,
542 U.S. at 487 (Kennedy, J., concurring). To our
knowledge, Guantanamo is the only military base located in
another country that the United States is legally entitled to
keep in perpetuity. Every other American base overseas is
leased for a specific term, and when that term expires, either
the base must be closed or the agreement renegotiated—a
process in which the host countries may seek a variety of
diplomatic, political, and economic concessions in exchange
for continued American use of the base. See Robert E.
Harkavy, GREAT POWER COMPETITION FOR OVERSEAS BASES
3, 5, 206-209 (1982). That type of “bargained diplomatic
exchange” (id. at 5) 's entirely absent with Guantanamo—the
United States may stay at Guantanamo as long as it desires.
Cuba has no say in the matter whatsoever. The Castro
government has repeatedly objected to the base, but the
United States has remained for more-than a century.
2. The government’s current interpretation of Articie III
of the 1903 lease—and of the “ultimate sovereignty”
provision in particular—is fundamentally at odds with the
interpretation that has long held sway among those in the
24
U.S. military charged with responsibility for Guantanamo
and for negotiating and administering other base leases.
The most striking evidence of this is found in a history of
the Guantanamo Naval Station written in 1953—1long before
this dispute arose—by Rear Admiral Marion E. Murphy, the
Commander at Guantanamo at the time. Marion E. Murphy,
THE HISTORY OF GUANTANAMO BAY (1953). Rear Admiral
Murphy’s history was published by the Navy and is posted to
this day on the official U.S. Navy web site (http://
www.cnic.navy.mil/Guantanamo/AboutGTMO/gtmohistgene
ral/gtmohistmurphy/gtmohistmurphyintro), which describes
the history as a “monumental work,” although it adds that the
history is not “presented as ‘official documentation’ * * * by
the United States Government or its agencies.”
Rear Admiral Murphy’s understanding of the lease’s
“ultimate sovereignty” provision could not have been clearer:
“Ultimate,” meaning final or eventual, is a key word
here. Jt is interpreted that Cuban sovereignty is
interrupted during the period of our occupancy, since
we exercise complete jurisdiction and control, but in
case occupation were terminated, the area would
revert to the ultimate sovereignty of Cuba.
HISTORY OF GUANTANAMO Bay at 6 (emphasis added). Thus,
Rear Admiral Murphy explained,
it is clear that at Guantanamo Bay we have a Naval
reservation which, for all practical purposes, is
American territory. Under the foregoing agreements,
the United States has for approximately fifty years
exercised the essential elements of sovereignty over
this territory, without actually owning it.
Id. at 7 (emphasis added). “Unless we abandon the area or
agree to a modification of the terms of our occupancy, we
can continue in the present status as long as we like.” /d. at 7-
8.
25
The same practical understanding of the lease is reflected
in an analysis published in 1961 by Rear Admiral Robert D.
Powers, Jr., then Deputy and Assistant Judge Advocate
General of the Navy. Caribbean Leased Bases Jurisdiction,
15 JAG J. 161 (Oct.-Nov. 1961).’ Rear Admiral Powers began
by observing that in marked contrast to other American
military bases, which “have been leased for a finite term with
fixed provisions as to use and jurisdiction,” the “bases at
Guantanamo Bay in Cuba and the Canal Zone in Panama are
unique in their grants of jurisdiction and their indefinite
terms of occupancy.” /d. at 161. Rear Admiral Powers went
on to explain:
IT MAY BE said that the words used regarding
sovereignty in the [Guantanamo and the Panama
Canal Zone] treaties grant to the United States the
complete right in each case to act as the sovereign,
with titular or residual sovereignty in the grantor
nation. * * * Jf merely ultimate sovereignty is
recognized by both parties as remaining in Cuba, then
the exercise of present or actual sovereignty must be
vested in the United States.
Id. at 163 (emphasis added). While acknowledging “that a//
the rights of sovereignty” might “not pass” to the United
States given the lease’s recognition of Cuba’s “ultimate
sovereignty,” ibid., Rear Admiral Powers recognized that
Cuba retained “at most a ‘titular’ sovereignty,” id. at 166, a
concept that William Howard Taft, as Secretary of War,
characterized as “‘a barren ideality,’” id. at 164. Like the
7
As a Navy lawyer, Rear Admiral Powers was directly involved in
negotiating and administering base leases, serving, for example, as the
legal adviser to the U.S. Negotiating Group in connection with obtaining
base rights through agreements with other countries. 15 JAG J. at 161 n.*.
26
original Panama Canal treaty, the Guantanamo lease
provided the United. States with a “complete grant of
jurisdiction and control, with only a possibility of
reversionary or residual jurisdiction in the grantor.” Jd. at
163. The United States thus is “entitled to treat the territory
as subject to such laws and administration as it may make
applicable.” Jd. at 166.
3. The conclusion that the United States exercises at least
some sovereign powers at Guantanamo is found as well in a
54-page Memorandum prepared in 1912 by the State
Department’s Office of the Solicitor in connection with
negotiations then ongoing between the United States and
Cuba to extend the boundaries of the Guantanamo base. After
reviewing the negotiating history leading up to the 1903
lease, as well as the provision in the lease affording the
United States the power of eminent domain, the Solicitor
concluded: “[i]Jt would thus appear that this Government,
upon the approval of this Agreement [the 1903 lease] by
Cuba, might well have gone into possession immediately
and, as pro tanto sovereign, have appropriated under the right
of eminent domain the private land found within the leased
areas.” May 7, 1912 Memorandum at 4 (emphasis added),
National Archives, Record Group 59, document no.
811.34537/95. In short, “the Cuban Government is furnishing
to this Government the naval reservation and is giving to this
Government the quasi-sovereign rights granted without any
compensation other than the payment of this nominal rent.”
Id. at 10 (emphasis added).
4. Scholars likewise have concluded that the terms of the
1903 lease provide the United States with some type of
sovereignty over Guantanamo. Some have concluded that the
United States has “territorial sovereignty” over Guantanamo
as a result of the lease. See William W. Bishop, Jr.,
INTERNATIONAL LAW: CASES AND MATERIALS 300 (1953)
(noting that “[a]t times one state has acquired by lease rights
corresponding more or less closely to territorial sovereignty
27
over parts of the-territory of another state,” and citing the
Guantanamo lease as an example); Robert L. Montague, III,
A Brief Study of Some of the International Legal and
Political Aspects of the Guantanamo Bay Problem, 50 Ky.
L.J. 459, 488 (1962) (“the rights conferred upon the United
States under this lease amount to ‘territorial sovereignty””).
Other scholars agree with Rear Admiral Murphy’s view
that Cuba’s “ultimate” sovereignty over the base means
“eventual” sovereignty, i.e., reversionary sovereignty that
will become effective only if the United States decides to
relinquish the base. See Martin J. Scheina, The U.S. Presence
in Guantanamo, 4 STRATEGIC REVIEW 81, 82 (Spring 1976)
(the lease “recognized Cuba’s continuance of ultimate (final
or eventual) sovereignty”); Joseph Lazar, /mternational Legal
Status of Guantanamo Bay, 62 Am. J. INT’L L. 730, 735, 740
(1968) (Article II] of the 1903 lease “is an express
recognition by the parties that Cuban sovereignty over the
leased areas rests suspended”’; “Cuba has not yet been given
the ‘ultimate sovereignty’ over Guantanamo”); Mary Ellene
Chenevey McCoy, Guantanamo Bay: The United States
Naval Base and its Relationship with Cuba 51 (unpublished
Ph.D. dissertation, University of Akron, 1995) (on file at the
University of Michigan) (“[t]he word ‘ultimate’ was
interpreted to mean that Cuban sovereignty was interrupted
during the U.S. occupancy”).
5. Cuban authorities, too, have recognized implicitly that
Cuba does not exercise complete sovereignty over the base as
a result of the lease. The Cuban Supreme Court held more
than 70 years ago that “the territory of that Naval Station is
for all legal effects regarded as foreign.” In re Guzman and
Latamble, Annual Digest & Reports of Pub. Int’] Law Cases,
1933-34, Case No. 43, at 112, 113 (emphasis added). Just six
weeks after signing the lease, Cuban President Tomas
Estrada Palma told the Cuban Senate that the base had been
“cede[d]” to the United States. PAPERS RELATING TO THE
FOREIGN RELATIONS OF THE UNITED STATES (“Foreign
28
Relations”), 1903, at 357. In 1912, the United States and
Cuba signed an agreement to expand the base that
characterized the 1903 lease as a “cession in lease” by which
the base was “ceded in lease” to the United States. Foreign
Relations, 1912, at 295, 297. (The 1912 agreement never
went into effect because the Cuban Senate failed to ratify it.
Scheina, 4 STRATEGIC REVIEW at 82.) And a book published
“under the auspices” of the Cuban government stated that the
base had been “formally ceded” to the United States. 5 Willis
Fletcher Johnson, THE HISTORY OF CUBA, page following
cover page, 89 (1920).
6. As the long history of Guantanamo demonstrates, Cuba
does not presently have—and has not had for more than 100
years—sovereignty in any meaningful sense over the
American base at Guantanamo. “‘Sovereignty’ is a term used
in many senses and is much abused,” but in general “it
implies a state’s lawful control over its territory generally to
the exclusion of other states, authority to govern in that
territory, and authority to. apply law there.” RESTATEMENT
(THIRD) OF FOREIGN RELATIONS OF THE UNITED STATES §206
cmt b (1987). Or as this Court has recognized, “[a] basic
attribute of full territorial sovereignty is the power to enforce
laws against all who come within the sovereign’s territory,
whether citizens or aliens.” Duro v. Reina, 495 U.S. 676, 685
(1990). Cuba has no such power—indeed, it has no power
whatever—over Guantanamo. See also United States v. Rice,
17 U.S. 246, 254 (1819) (Story, J.) (during the British
occupation of Castine, Maine in 1814 and 1815, “[t}he
* A “cession” is the “act of relinquishing property rights”—the
“relinquishment or transfer of land from one state to another, esp. when a
state defeated in war gives up the land as part of the price of peace.”
BLACK’S LAW DICTIONARY 221 (7th ed. 1999).
29
sovereignty of the United States over the territory was, of
course, suspended, and the laws of the United States could no
longer be rightfully enforced there”’).
It is the United States that acts as sovereign at
Guantanamo, for it is United States law that applies there.
And it is the United States—and the United States alone—
that has the power to enforce its law at Guantanamo over all
who set foot within the naval station, including citizens of
Cuba. When the United States and Cuba negotiated detailed
terms to implement the February 1903 lease, Cuba proposed
excluding Cuban citizens from the application of U.S. law:
“Cuban citizens who may have committed any crime or
misdemeanor within the boundaries of said: statio[n] shall be
delivered to the Cuban authorities, for trial under the laws
and by the tribunals of Cuba.” Art. V, draft of proposed
Cuban lease terms transmitted by Herbert Squiers, U.S.
minister in Havana, to Secretary of State John Hay, Despatch
No. 549, June 6, 1903, 7 Despatches from the United States
Ministers to Cuba, 1902-1906, National Archives. But the
United States rejected that proposal, June 20, 1903 telegram,
Minister Squiers to Secretary Hay, id., Despatch No. 572,
and the proposed exclusion was dropped from the final
agreement of specific lease terms signed by the United States
and Cuba in July 1903. Instead, that document provided that
all “fugitives from justice charged with crimes or
misdemeanors amenable to United States law, committed
within (the naval station], taking refuge in Cuban territory,
shall on demand, be delivered up to duly authorized United
States authorities.” T.S. No. 426, Art. [V, 6 Bevans at 1121.
* * od
Less than three months after the United States and Cuba
signed the Guantanamo lease, President Theodore Roosevelt
wrote Secretary of State Hay that “we regard the [Cuban]
coaling stations as ours.” Theodore Roosevelt to John Hay,
May 12, 1903, Theodore Roosevelt Papers, Library of
30
Congress, Manuscript Division, microfilm reel 416. The
United States has treated Guantanamo “as ours” ever since—
and it is perfectly entitled to continue to “exercise complete
jurisdiction and control” (T.S. No. 418, Art. III, 6 Bevans at
1114) over the base as long as it likes. Under these unique
circumstances, the Court should reject the government’s
argument that the petitioners have no rights under the U.S.
Constitution because Cuba is “sovereign” at Guantanamo.
CONCLUSION
It is a sad fact that the United States is no longer
recognized as a leader in the development of international
standards for the treatment of captured prisoners. Instead, it
is regarded by many around the world as an outlaw nation,
using a rigged process to reach a predetermined result that is
effectively immune from independent judicial review. That
perc’ption increases the risk to American military forces
unfortunate enough to be captured by enemies abroad. Only
by rejecting the government’s position and upholding the
Guantanamo detainees’ right to pursue the habeas petitions
filed after Rasul will the Court demonstrate that our Nation’s
adherence to the rule of law remains alive and well.
The judgment of the court of appeals should be reversed
and the cases remanded for consideration of the detainees’
habeas corpus petitions on the merits.
Respectfully submitted.
PHILIP ALLEN LACOVARA JAMES C. SCHROEDER
DANIEL B. KIRSCHNER GARY A. ISAAC
MAYER, BROWN, ROWE Counsel of Record
& Maw LLP STEPHEN J. KANE
1675 BROADWAY CATHERINE A. BERNARD
NEw YorRK, NY 10019 JEFFREY A. BERGER
(212) 506-2500 HEATHER M. LEWIS
MAYER, BROWN, ROWE
& MAw LLP
71 SOUTH WACKER DRIVE
CHICAGO, IL 60606
(312) 782-0600
Counsel for Amici Curiae
AUGUST 2007
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.