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

uP 3) CD

Nos. 06-1195, 06-1196 Fil ED

cs zi AUG 2 4 200

OFFICE THE CLERK

‘Supreme Court of the Unites! Sires

|

>_> 2s

LAKHDAR BOUMEDIENE, ET AL.,

Petitioners,

——V,—-

GEORGE W. BUSH, ET AL.,

Respondents.

KHALED A. F. AL ODAH, ET AL.,

Petitioners,

——\yY -e

UNITED STATES OF AMERICA, ET AL.,

Responaents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICUS CURIAE

UNITED NATIONS HIGH COMMISSIONER

FOR HUMAN RIGHTS

IN SUPPORT OF PETITIONERS

DONALD FRANCIS DONOVAN

Counsel of Record

CATHERINE M. AMIRFAR

NATALIE L. REID

WILLIAM H. TAFT V

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022

(212) 909-6000

Counsel for Amicus Curiae

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ................

SUMMARY ARGUMENT. ...............scccceees

EEE sd bvncentntnnccedciscnsessccsevsenscess

I.

II.

To Hold Petitioners, the United States

Must Comply with Article 9 of the

TS TIE I APSE = IRE oe Oe

A. The United States Must Afford

Petitioners the Protections of

Article 9 Regardless of Their

Detention at Guantanamo Bay......

B. The United States Must Afford

Petitioners the Protections of

Article 9 Regardless of Their

ee Sc cnccnenetesseeeses

C. The United States Must Afford

Petitioners the Protections

of Article 9 Regardless of

the Possible Concurrent

Applicability of International

SRUMTONTON EW. occcccsscccccccece

The United States’s Treatment of

the Guantanamo Detainees Violates

Article 9 of the Covenant................

14

16

19

ii

PAGE

A. Article 9 Guarantees Petitioners

a Right to Judicial Review of

i 19

B. United States Law as Construed

by the Court of Appeals Would

Not Satisfy Article 9. ...........00. 23

ET Nivkctupicesecesscandedovadsasnessece 30

iil

TABLE OF AUTHORITIES

Federal) Cases: PAGE

Air France v. Saks, 470 U.S. 392 (1985)......... 7]

Boumediene v. Bush, 476 F.3d 981

ee adie cckdadntweses 29, 30

Fujitsu Ltd. v. Federal Express Corp.,

yg 8 fF Fy Js | ) ere 7

Gerstein v. Pugh, 420 U.S. 103 (1975)........... 29

Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006)..... 18

In re Guantanamo Detainee Cases,

355 F. Supp. 2d 443 (D.D.C. 2005).......... 28

Murray v. Schooner Charming Betsy,

6 U.S. (2 Creme) 66 CIGBS). nc ccccccccccccss 2

Plyler v. Doe, 457 U.S. 202 (1982) ............... 15

Rasul v. Bush, 542 U.S. 466 (2004)............... 8, 15

Wales v. Whitney, 114 U.S. 564 (1885)........... 23

International and Foreign Cases:

A and others v. Secretary of State

for the Home Department,

i es Pr CD cccccccccscscedscscsee 8, 26

Cantoral-Benavides v. Peru,

2000 Inter-Am. Ct. H.R. (ser. C)

Fes USE MD cscccccsccccsesscccccce 20

iV

PAGE

Case Concerning Armed Activities

on the Territory of the Congo

(Dem. Rep. Congo v. Uganda),

Be BE Be 92 GND. TD cisenscdvveccicccssees 12

Hilaire, Constantine and Benjamin, et al.

v. Trinidad and Tobago,

2002 Inter-Am. Ct. H.R. (ser. C)

Pe Wie GE ls SIS vcicnccccécdccesebannens 20

Imbrioscia v. Switzerland,

BT Bue. Ce. TBR. SOE CIGGSD occ cvcccccccccccss 20

Legal Consequences of the Construction

of a Wall in the Occupied Palestinian

Territory, Advisory Opinion,

Oe Cede BP GI Pei vevenccesensonsens 11,12, 17

Legality of the Threat or Use of Nuclear

Weapons, Advisory Opinion,

SG BA5D. Tae GH Bisa snccnsowscsendscovess 17

Minister for Immigration & Multicultural &

Indigenous Affairs v. B (2004)

239 CAR. FES CARMINE occ sccvccsesvcccess 8

United States Diplomatic and Consular

Staff in Tehran (U.S. v. Iran),

SO Cd. FED Bei ccavcncevcccscvdesssess 22

Wloch v. Poland, 34 Eur. Ct. H.R. 9 (2000)...... 20

Treaties and Federal Statutes:

African [Banjul] Charter on Human

and People’s Rights, adopted

June 27, 1981, 1520 U.N.T.S. 217........... 19

American Convention on Human Rights,

Nov. 22, 1969, 1144 U.N.T.S. 123........... 19

Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or

Punishment, G.A. Res. 39/46,

_U.N. Doc. A/39/51 (Dec. 10, 1984).......... 21, 26

Detainee Treatment Act of 2006,

Pub. L. No. 109-148, 119 Stat. 2939

a es cc cccccccoece 26, 28, 29

European Convention for the Protection

of Human Rights and Fundamental

Freedoms, Nov. 4, 1950,

etc incaccencnececeseccccces 19

Geneva Convention Relative to the

Treatment of Prisoners of War,

Aug. 12, 1949, 75 U.N.T.S. 972 ............. 17

International Covenant on Civil and

Political Rights, opened for signature

Dec. 16, 1966, G.A. Res. 2200A (XX1),

U.N. Doc. A/6316, 999 U.N.T.S. 171........ passim

Military Commissions Act of 2006,

Pub. L. No. 109-366, 120 Stat. 2600 ........ 24

Optional Protocol to the International

Covenant on Civil and Political Rights,

opened for signature Dec. 16, 1966,

G.A. Res. 2200A (XXI]),

U.N. Doc. A/6316, 999 U.N.T.S. 302........ 9

Statute of the International Court of Justice,

June 26, 1945, 59 Stat. 1031 ................. 11

vi

Universal Declaration of Human Rights,

G.A. Res. 217A (III), U.N. Doc A/810

GR, GR Bs ncccccccoscccccosccccscsescese

Vienna Convention on the Law of Treaties,

May 23, 1969, 1155 U.N.T.S. 331 ...........

Constitutional Provisions:

Mo i sd daaiemaeinn

United Nations Materials:

Reports of the International Law Commission

to the General Assembly, [1966]

2 Y.B. Int’| L. Comm’n 217,

U.N. Doc. A/CN.4/SER.A/1966/Add.1......

Responsibility of States for Internationally

Wrongful Acts, G.A. Res. 56/83,

U.N. Doc. A/Res/56/83 (Dec. 12, 2001) ....

Situation of Human Rights in Occupied

Kuwait, G.A. Res. 45/170,

U.N. Doc. A/RES/45/170

sd a eee

Body of Principles for the Protection of All

Persons Under Any Form of Detention

or Imprisonment, G.A. Res. 43/173,

U.N. Doc. A/RES/43/173 (Dec. 9, 1988)....

U.N. C’ttee Against Torture, Conclusions

and Recommendations of the

Committee Against Torture,

U.N. Doc. CAT/C/USA/CO/2

—_— { Se aeeersseeres

PAGE

7, 11

14

13

PAGE

U.N. C’ttee on the Eliminaticn of Racial

Discrimination, Concluding Observations

of the Committee on the Elimination

of Racial Discrimination,

U.N. Doc. CERD/C/ISR/CO/13

ne 13

U.N. C’ttee on the Rts. of the Child,

Concluding Observations,

U.N. Doc. CRC/C/15/Add.195

i cnceenseneece 13

U.N. Econ. & Soc. Council, Comm'n on

Hum. Rts., Report of the Working

Group on Arbitrary Detention and

Special Rapporteurs: Situation of

Detainees at Guantanamo Bay,

U.N. DOC. E/CN.4/2006/120

Se i A cndunedigniddcdcescosanesessssous 14

U.N. Hum. Rts. C’ttee,

Mukong v. Cameroon,

U.N. Doc. CCPR/C/51/D/458/1991

SE Ee, SNE Udi nevedecoccdestececcecesscces 22

U.N. Hum. Rts. C’ttee,

Baban et al. v. Australia,

U.N. Doc. CCPR/C/78/D/1014/2001

MT nidackenhcatieiadeatescdconsese 23

U.N. Hum. Rts. C’ttee,

Celiberti de Casariego v. Uruguay,

U.N. Doc. CCPR/C/13/D/56/1979

SE CEE Gn bli eaaiinbhdokwiwiannes 13

PAGE

U.N. Hum. Rts. C’ttee, Concluding

Observations of the Human Rights

Committee: United States of America,

U.N. Doc. CCPR/C/USA/CO/3/Rev. |

hs SB iideichicoutideiadesneecnneceaece 7, 24

U.N. Hum. Rts. C’ttee, General Comment

No. 8: Right to liberty and security

of persons (article 9),

U.N. Doc. HRI/GEN/1/Rev.7

a i icnnncsescesos 16, 21, 22

U.N. Hum. Rts. C’ttee, General Comment

No. 15: The position of Aliens

under the Covenant,

U.N. Doc. HRI/GEN/1/Rev.6

SE el SE dekh dbnnsmoctncecepesccessodcese 15

U.N. Hum. Rts. C’ttee, General Comment

No. 20: Concerning Prohibition of

Torture and Cruel Treatment or

Punishment (article 7),

U.N. Doc. HRI/GEN/1/Rev.1 (1992) ........ 20

U.N. Hum. Rts. C’ttee, General Comment

No. 29: States of Emergency (article 4),

U.N. Doc. CCPR/C/21/Rev.1/Add.11

CERES, Fike AED cv ewedccedcccocescsccesesccccss 2¢

U.N. Hum. Rts. C’ttee, General Comment

No. 31: Nature of the General Legal

Obligation Imposed on States

Parties to the Covenant,

U.N. Doc. CCPR/C/21/Rev.1/Add.13..... 7, 13,17

U.N. Hum. Rts. C’ttee, General Comment

No. 32: Right to Equality Before Courts

and Tribunals and to Fair Trial (article 14),

U.N. Doc. CCPR/C/GC/32/CRP. 1

iid coca dadsedsanncesewsssees

U.N. Hum. Rts. C’ttee,

Alphen v. The Netherlands,

U.N. Doc. CCPR/C/39/D/305/1988

Ss Be ENED bcintinddncusdveseccnnseccccccces

U.N. Hum. Rts. C’ttee, /nitial Report

of the United States to the

Human Rights Committee,

U.N. Doc. CCPR/C/81/Add.4

Mik Mdicndbedsccsrsscesscesvecss 15,

U.N. Hum. Rts. C’ttee,

Lopez Burgos v. Uruguay,

U.N. Doc. CCPR/C/13/D/52/1979

Ts SEED chddeddtunccocesdtasoovccerecess

U.N. Hum. Rts. C’ttee, Morael v. France,

U.N. Doc. CCPR/C/36/D/207/1986

ST S, MED cd dcddusedaeedeeedsdaesesecceos

U.N. Hum. Rts. C’ttee, Mpaka-Nsusu v.

Zaire, U.N. Doc. CCPR/C/27/D/157/1983

SS Ss SEE Pn etecncidcsceascassdesivcnseccee

U.N. Hum. Rts. C’ttee, Nicholas v. Australia,

U.N. Doc. CCPR/C/80/D/1080/2002

I, I i

U.N. Hum. Rts. C'ttee, Perterer v. Austria,

U.N. Doc. CCPR/C/81/D/1015/2001

Ss GE CEE bnduweepnavasscceccessaseccenes

PAGE

20

22

U.N. Hum. Rts. C’ttee, Shafiq v. Australia,

U.N. Doc. CCPR/C/88/D/1324/2004

GONG, Gilg Dees sn cedecenccvediscesnssescocess

U.N. Hum. Rts. C’ttee, Summary Record of the

Hundred and Ninety-Fourth Meeting,

U.N. Doc. No. E/CN.4/SR.194

ELLE TTD

U.N. Hum. Rts. C’ttee, Third Periodic Report

of the United States to the Human Rights

Committee, U.N. Doc. CCPR/C/USA/3

GEOG, Fy Sew vccccccsoccscessccscsseccscess

U.N. Hum. Rts. C’ttee, Vuolanne v. Finland,

U.N. Doc. CCPR/C/35/D/265/1987

a

Written Reply of U.S. Government to the List

of Issues To Be Taken Up in Connection

with the Consideration of the Second

and Third Periodic Reports of the

United States of America to the Human

Rights Committee (July 17, 2006)...........

Other Authorities:

IAN BROWNLIE, PRINCIPLES OF PUBLIC

INTERNATIONAL LAw (6th ed. 2003)........

CUSTOMARY INTERNATIONAL HUMANITARIAN

LAW: RULES (Jean-Marie Henckaerts &

Louise Doswald-Beck eds., 2005) ...........

Government’s Motion for Entry of Protective

Order, Bismullah v. Gates, No. 06-1197

(D.C. Cie. AGB. ZF. TOGO) ccccccccsccccvcesess

PAGE

21

11

24

16

28

xi

Government’s Reply in Support of Motion

for Entry of Protective Order,

Bismullah v. Gates, No. 06-1197

(D.C. Cir. Nov. 13, 2006)...............0065

Government’s Response in Opposition to

Motion to Compel, Bismullah v. Gates,

No. 06-1197 (D.C. Cir. Aug. 21, 2006)....

THE INTERNATIONAL BILL OF RIGHTS:

THE COVENANT ON CIVIL

AND POLITICAL RIGHTS

(Louis Henkin ed., 1981)...................

International Committee of the Red Cross,

International Humanitarian Law

and Human Rights..............0.0.00000000-

Memorandum for the Secretaries of the

Military Departments et al.,

“Implementation of Combatant Status

Review Tribunal Procedures for

Enemy Combatants Detained at

U.S. Naval Base Guantanamo Bay,

Cuba” (July 14, 2006) ..................088.

Memorandum from Deputy Secretary of

Defense to Secretary of the Navy,

Order Establishing Combatant Status

Review Tribunal (July 7, 2004)............

THEODOR MERON, HUMAN RIGHTS

LAW-MAKING IN THE UNITED NATIONS

SRE vocersecconsncnnccsccnnesosesecesvcccces

MANFRED NOWAK, CCPR COMMENTARY

CP Ey SOP vecccsccccccccsccccocececcceoess

PAGE

xii

PAGE

RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW OF THE

UNITED STATBS (1967) ....cccccccccsccccccces 2

S. Exec. Doc. L, 92d Cong., Ist Sess. 1 (1971).. 7

INTEREST OF AMICUS CURIAE

Amicus curiae United Nations High Commissioner for

Human Rights Louise Arbour is the senior United

Nations official responsible for human rights.' By Gen-

eral Assembly resolution 48/141, adopted by consensus

of all States, she is charged to promote the effective

enjoyment by all persons of their civil, cultural, eco-

nomic, political, and social rights; to prevent human

rights violations; and to enhance international coopera-

tion in the promotion and protection of human rights. In

fulfilling her mandate, the High Commissioner monitors,

investigates, and reports on individual States’ compli-

ance with their obligations under international human

rights law. The Office of the High Commissioner also

serves as the Secretariat for all human rights treaty mon-

itoring bodies within the United Nations. Given those

responsibilities, she has gained great expertise in the

interpretation and application of international human

rights law, in both conventional and customary form, in

a wide variety of contexts.

One of the principal instruments of international

human rights law is the International Covenant on Civil

and Politicai Rights, opened for signature Dec. 16, 1966,

G.A. Res. 2200A (XXI), U.N. Doc. A/6316, 999

U.N.T.S. 171 (entered into force Mar. 23, 1976) [the

“ICCPR” or the “Covenant”], to which the United States

is party. Among the rights guaranteed by the Covenant

are the right to be free from arbitrary arrest and deten-

tion and the right to have a court determine whether a

detention is lawful and, if it is not, order release. The

prohibition of prolonged arbitrary detention also con-

No counsel for a party authored this bricf in whole or in part;

no person or entity other than amicus curiae and her counsel made a

monetary contribution to its preparation or submission; and the par-

ties have consented to its filing by letters on file with the Clerk.

2

stitutes customary international law. See, e.g., The Body

of Principles for the Protection of All Persons Under

Any Form of Detention or Imprisonment, G.A. Res.

43/173, Annex, Principle 11 (Dec. 9, 1988); RESTATE-

MENT (THIRD) OF FOREIGN RELATIONS LAW OF THE

UNITED STATES §§ 701-02 (1987) [the “RESTATE-

MENT” ] (United States bound by customary international

law of human rights, including protection against pro-

longed arbitrary detention).

The cases now before this Court squarely implicate

these rights. The High Commissioner recognizes that the

United States Constitution makes treaties of the United

States, along with the Constitution and federal statutes,

part of the “supreme law of the land.” U.S. CONST. art.

VI, cl. 2. The High Commissioner also recognizes that,

consistent with the rule of international law that a State

may not invoke its own law to excuse a failure to com-

ply with a treaty or other international obligation,’ this

Court has held, from its very beginnings, that the United

States’s domestic law should be interpreted, if at all pos-

sible, to comply with the United States’s international

obligations. See, e.g., Murray v. Schooner Charming

Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of

Congress ought never to be construed to violate the law

of nations if any other possible construction remains

. . . -); RESTATEMENT § 114. The United States Con-

stitution and this Court have thereby expressed their pro-

found respect for the rule of pacta sunt servanda—a

State must comply with its agreements—“perhaps the

most important principle of international law.” RESTATE-

MENT § 321 cmt. a.

‘ See Vienna Convention on the Law of Treaties art. 27, May

23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention];

Responsibility of States for Internationally Wrongful Acts, G.A. Res.

56/83, Annex, arts. 3-4, U.N. Doc. A/Res/56/83 (Dec. 12, 2001).

3

The High Commissioner therefore files this brief to

emphasize to this Court the importance of the questions

raised by these cases and to express her views on the

United States’s international obligations as they apply to

those questions. Much of the High Commissioner’s work

consists of identifying a given State’s obligations under

international human rights law, publicly and privately

urging compliance with those obligations, and mar-

shalling all appropriate actors in support. To be sure, in

developed democracies, national standards of protection

will often meet, or even surpass, the requirements of

international law. That result cannot be assumed, how-

ever; whether national standards fully satisfy the require-

ments of international law must be carefully assessed on

a case-by-case basis.

A State’s compliance with its obligations under the

Covenant and other human rights treaties reflects its

basic commitment to the rule of law. The High Com-

missioner’s experience accordingly has been that a

State’s domestic courts, and in particular its courts of

last resort, have a definitive role in vindicating human

rights guarantees conferred under applicable interna-

tional human rights treaties. In exercise of the mandate

entrusted to her by the international community, the

High Commissioner calls on this Court to give full effect

to the United States’s international obligations in adju-

dicating the questions presented.

SUMMARY OF ARGUMENT

The obligations of the Covenant, voluntarily assumed

by the United States by its ratification of the treaty in

1992, extend to the Petitioners in these cases, regardless

of their detention at Guantanamo Bay, their status as

non-citizens, or the concurrent applicability of any pro-

4

visions of international humanitarian law. Basic princi-

ples of treaty interpretation, as well as consistent author-

itative interpretation of the Covenant by the International

Court of Justice, the United Nations Human Rights Com-

mittee, and respected commentators, confirm that the

treaty’s provisions apply extraterritorially to all persons

within the power or effective control of a State Party,

such as Petitioners. Moreover, because the rights pro-

tected by the Covenant are universal, they do not stand

aside in times of armed conflict, and the provisions of

the Covenant continue to apply. To the extent that pro-

visions of international humanitarian law also apply,

international human rights law informs their interpre-

tation, complements them, and frequently provides clar-

ity and detail as to their requirements, as in the case of

judicial review of detention.

Article 9(4) of the Covenant requires that individuals

deprived of their liberty have access to a court in order

to test the lawfulness of their detention. As a matter of

international law, this judicial review must consider

whether the detention is reasonable in all the circum-

stances, encompassing an assessment of the full justifi-

cation for the detention, and must permit reference to

both national and international law. In addition, the

reviewing court must have the power to order release if

the detention is judged unlawful. Continued detention

without justification and review by the State is inher-

ently arbitrary, and therefore a breach of international

law as codified in Article 9 of the Covenant.

As construed by the United States Court of Appeals

for the District of Columbia in these cases, United States

law falls substantially short of the requirements of Arti-

cle 9 for persons detained at Guantanamo. The proce-

dures and evidentiary rules employed by the Combatant

Status Review Tribunals frustrate subsequent effective

5

judicial review of the lawfulness and reasonableness of

a prisoner’s detention. These processes, even combined

with the scope of review by the Court of Appeals, do not

satisfy the obligations of the United States under the

Covenant.

As a matter of international law, the United States is

obliged to respect and ensure the rights set forth in the

Covenant, including the substantive and procedural pro-

tections of Article 9, with regard to these Petitioners.

The current system fails to do so. This Court should

ensure that provisions of domestic law are construed and

applied consistent with the United States’s international

obligations, and thereby confirm the United States’s con-

tinued commitment to the protection and promotion of

human rights.

ARGUMENT

I. To Hold Petitioners, the United States Must Com-

ply with Article 9 of the Covenant.

When it ratified the Covenant, the United States

undertook “to respect and to ensure to all individuals

within its territory and subject to its jurisdiction the

rights recognized [there], without distinction of any

kind, such as race, colour, sex, language, religion, polit-

ical or other opinion, national or social origin, property,

birth or other status.” ICCPR art. 2(1). It also agreed that

every person “has the right to liberty and security of per-

son,” that no person “shall be subjected to arbitrary

arrest and detention,” and that no person “shall be

deprived of his liberty except on such grounds and in

accordance with such procedure as are established by

law.” ICCPR art. 9(1). Finally, it agreed that any person

“who is deprived of his liberty by arrest or detention

shall be entitled to take proceedings before a court, in

6

order that that court may decide without delay on the

lawfulness of his detention and order his release if the

detention is not lawful.” ICCPR art. 9(4).?

The High Commissioner respectfully submits that

these rights and obligations apply fully to the United

States’s treatment of Petitioners even if (1) Guantanamo

Bay is not a territory of the United States; (2) the

detainees are aliens; and (3) any provisions of interna-

tional humanitarian law might also apply.

A. The United States Must Afford Petitioners

the Protections of Article 9 Regardless of

Their Detention at Guantanamo Bay.

A State Party to the Covenant undertakes to apply its

protections to “all individuals within its territory and

subject to its jurisdiction.” ICCPR art. 2(1). The United

States has expressed the view that “the obligations

assumed by the United States under the Covenant apply

only within the territory of the United States.”* The

3 Under Article 4 of the Covenant, certain of the Covenant’s

protections may be suspended in a time of national emergency. Under

that provision, any party “availing itself of the right of derogation

shall immediately inform the other States Parties to the present

Covenant, through the intermediary of the Secretary-General of the

United Nations, of the provisions from which it has derogated and of

the reasons by which it was actuated.” ICCPR art. 4(3). The United

States has made no such communication, but instead has expressly

recognized that its obligations under the Covenant remain binding.

See, e.g., Written Reply of U.S. Government to the List of Issues To

Be Taken Up in Connection with the Consideration of the Second

and Third Periodic Reports of the United States of America to the

Human Rights Committee, 14-15 (July 17, 2006), available at http://

www.ohchr.org/english/bodies/hrc/docs/AdvanceDocs/USA-writ-

tenreplies.pdf (“|C]Jounterterrorism measures as a general matter sat-

isfy U.S. obligations under the Covenant.”).

* See U.N. Hum. Rts. C’ttee, Third Periodic Report of the

United States to the Human Rights Committee, 9 130, Annex 1, U.N.

7

United States’s attempt to restrict the scope of its com-

mitment is inconsistent with basic principles of treaty inter-

pretation and authoritative interpretations of Article 9.

Under Article 31 of the Vienna Convention, the

Covenant must “be interpreted in good faith in accor-

dance with the ordinary meaning to be given to the terms

of the treaty in their context and in the light of its object

and purpose.” See Reports of the International Law

Commission to the General Assembly, [1966] 2 Y.B. Int’!

L. Comm’n 217, 219-20, U.N. Doc. A/CN.4/SER.A/1966/

Add.1 [hereinafter /LC Commentary] (official com-

mentary of International Law Commission on Vienna

Convention) (“the application of the means of interpre-

tation in [Article 31] would be a single combined oper-

ation” involving all elements there specified).° Applying

that rule, a State Party’s obligations under the Covenant

apply wherever it exercises authority capable of affect-

ing enjoyment of Covenant rights by individuals subject

to that authority or, put another way, whenever an

individual is within the State Party’s power or effective

control. See U.N. Hum. Rts. C’ttee, General Comment

No. 31: Nature of the General Legal Obligation Imposed

on States Parties to the Covenant, 911, U.N. Doc.

CCPR/C/21/Rev.1/Add.13 (May 26, 2004) [hereinafter

Doc. " CPR/C/USA/3 (Nov. 28, 2005); see also U.N. Hum. Rts.

C'ttee, Concluding Observations of the Human Rights Committee:

United States of America, 910, U.N. Doc. CCPR/C/USA/CO/3/Rev. 1

(Dec. 18, 2006) [hereinafter Concluding Observations}.

5

Although the United States has not ratified the Vienna Con-

vention, United States courts have recognized that its provisions cod-

ify customary international law. See, e.g., Fujitsu Lid. v. Fed. Express

Corp., 247 F.3d 423, 433 (2d Cir. 2001); see also S. Exec. Doc. L, 92d

Cong., Ist Sess. | (1971) (letter of submittal from Secretary of State

to President) (“Although not yet in force, the Convention is already

generally recognized as the authoritative guide to current treaty law

and practice.”).

General Comment No. ?])}.° Hence, Article 2(1) plainly

extends the protections of the Covenant to all persons

within a State Party’s territory and also to all persons

within its jurisdiction.’

® The Human Rights Committee is the expert body established

under the Covenant to monitor compliance with the treaty. States Par-

ties to the Covenant, including the United States, report to the Human

Rights Committee on their implementation of its provisions. The

Committee's concluding observations on periodic reports submitted

by States Parties, views on individual communications submitted

under the First Optional Protocol to the Covenant, or General Com-

ments elaborating the understanding of specific provisions of the

Covenant, while not formally binding as a matter of law, constitute

authoritative interpretations of the treaty. International courts, as well

as national courts in both common and civil law jurisdictions, have

regularly relied on the Committee’s statements when interpreting and

applying the Covenant. See, e.g., Minister for Immigration & Multi-

cultural & Indigenous Affairs v. B (2004) 219 C.L.R. 365, 9148 (High

Court of Australia) (“In ascertaining the meaning of the ICCPR. . .

it is permissible, and appropriate, to pay regard to the views of the

UNHRC.”); A and others v. Sec'y of State for the Home Dep't, [2005]

UKHL 71, [2006] 2 A.C. 221 (H.L.).

7 The High Commissioner recognizes that, even if Article 2(1)

were given the restrictive, “territory”-only interpretation the United

States has urged, the Covenant would still extend to the United

States's detention of Petitioners for the simple reason that Guanta-

namo Bay “is in every practical respect a United States territory.”

Rasul v. Bush, 542 U.S. 466, 487 (2004) (Kennedy, J., concurring);

see also id. at 480 (Stevens, J.) (plurality opinion) (“|T}he United

States exercises ‘complete jurisdiction and control’ over the Guan-

tanamo Bay Naval Base, and may continue to exercise such control

permanently if it so chooses.”). For purposes of the applicability of

the Covenant, however, the Court need not parse the status of Guan-

tanamo Bay. Given the authority and control the United States exer-

cises over the Guantanamo detainees, its Covenant obligations apply

whether or not Guantanamo Bay constitutes United States territory.

9

First, the ordinary meaning of the relevant terms leads

to that result. See IAN BROWNLIE, PRINCIPLES OF PUB-

LIC INTERNATIONAL LAW 602 (6th ed. 2003) (“what

matters” in treaty interpretation “is the intention of the

parties as expressed in the text”) (emphasis in original).

As a purely formal matter, it might be argued that the

phrase “all individuals within [a State Party’s] territory

and subject to its jurisdiction” is susceptible of two dif-

ferent readings: the word “and” could be read either con-

junctively, limiting the scope of the treaty to a State

Party’s territory, or disjunctively, requiring a State Party

to comply with its treaty obligations with regard to any

person subject to its jurisdiction, regardless of their

location. The more limited reading can be promptly

rejected, however. By recourse to the basic principle of

territoriality, a person within a State’s territory would

generally be subject to its jurisdiction. Hence, the con-

junctive reading would render the phrase “subject to its

jurisdiction” mere surplusage, offending the basic inter-

pretive principle of textual effectiveness (effet utile) as

well as standard canons of treaty interpretation. Cf. Air

France v. Saks, 470 U.S. 392, 398 (1985).

Second, the context also supports the extraterritorial

reading. Under Article 31(2)(b) of the Vienna Conven-

tion, the context of a treaty term includes “any instru-

ment which was made by one or more parties in connection

with the conclusion of the treaty and accepted by the

other parties as an instrument related to the treaty.” The

First Optional Protocol to the ICCPR, which permits

individuals to make submissions to the Human Rights

Committee on alleged violations of the treaty, contains

no territorial restriction. Optional Protocol to the Inter-

national Covenant on Civil and Political Rights, art. 1,

opened for signature Dec. 16, 1966, G.A. Res. 2200A

(XX1), U.N. Doc. A/6316, 999 U.N.T.S. 302 (entered

into force Mar. 23, 1976) (Committee may receive com-

10

munications from “individuals subject to [a State

Party’s] jurisdiction”). Needless to say, there would be

no reason to allow the Human Rights Committee to

receive complaints from persons not entitled to the pro-

tections of the treaty in the first place. See Thomas Buer-

genthal, Jo Respect and To Ensure: State Obligations

and Permissible Derogations, in THE INTERNATIONAL

BILL OF RIGHTS: THE COVENANT ON CIVIL AND

POLITICAL RIGHTS 72, 74-75 (Louis Henkin ed., 1981);

THEODOR MERON, HUMAN RIGHTS LAW-MAKING IN

THE UNITED NATIONS 106—07 (1986) (“A better inter-

pretation is that suggested by Buergenthal” supported by

“(t]he language of the Optional Protocol, formulated

after [Art. 2(1)] had been completed.”).

Finally, the object and purpose of the provision also

supports the extraterritorial reading. The rights guar-

anteed by the Covenant are, by definition, universal.*

Limiting a State Party’s obligations to its own territory

“would be unconscionable,” because that reading would

“permit a State party to perpetrate violations of the

Covenant on the territory of another State, which vio-

lations it could not perpetrate on its own territory.” U.N.

Hum. Rts. C’ttee, Lépez Burgos v. Uruguay, 9.12.3, U.N.

Doc. CCPR/C/13/D/52/1979 (July 29, 1981). See Buer-

genthal, supra, at 73-74 (restrictive territorial reading of

Article 2(1) “is specious and would produce results that

were clearly not intended,” because it would nullify

other rights clearly set forth in the treaty); MANFRED

NOWAK, CCPR COMMENTARY 44 (2d ed. 2005) (“When

8 See Universal Declaration of Human Rights, G.A. Res. 217A

(III), Preamble, U.N. Doc A/810 (Dec. 10, 1948) (“Member States

have pledged themselves to achieve . . . the promotion of universal

respect for and observance of human rights and fundamental free-

doms,” in order “to secure their universal and effective recognition

and observance, both among the peoples of Member States themselves

and among the peoples of territories under their jurisdiction”).

11

State parties. . . take actions on foreign territory that

violate the rights of persons subject to their sovereign

authority, it would be contrary to the purpose of the

Covenant if they could not be held responsible.”).°

The International Court of Justice has expressly

endorsed the extraterritorial reading of Article 2(1). See

Statute of the International Court of Justice art. 38(1)(d),

% — Since the conclusion that the Covenant applies extraterrito-

rially results from the text of the treaty read in context and in light of

its object and purpose, see Vienna Convention art. 31, there is no need

to refer to the negotiating and drafting history, or travaux prépara-

toires. See id. art. 32 (“preparatory work” as supplementary means of

interpretation if means identified in Article 31 insufficient); LC Com-

mentary, at 220 (“[P]reparatory work . . . does not. . . have the

same authentic character as an element of interpretation, however

valuable it may sometimes be in throwing light on the expression of

the agreement in the text.”). In any event, distinguished scholars have

concluded that the travaux confirm the extraterritorial interpretation.

See Buergenthal, supra, at 74 (concluding upon review of the travaux

that “Article 2(1) permits and requires a different construction” than

one which limits its scope to a State’s territory); accord Meron, supra,

at 106—09. At a minimum, even if the travaux could be read to show

that some delegates expressed a concern to avoid imposing obliga-

tions on States Parties either to exert extraterritorial legislative juris-

diction, or to act with regard to persons under the sovereign authority

of another State, nothing in the travaux supports immunizing States

Parties from the obligations and prohibitions of the Covenant when

they in fact exercise power and control over persons outside their ter-

ritory. See Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory, Advisory Opinion, 2004 1.C.J. 136,

9 109 (July 9) [hereinafter Wall Advisory Opinion} (“The travaux pré-

paratoires of the Covenant. . . show that, in adopting the wording

chosen, the drafters of the Covenant did not intend to allow States to

escape from their obligations when they exercise jurisdiction outside

their national territory.”); see also U.N. Hum. Rts. C’ttee, Summary

Record of the Hundred and Ninety-Fourth Meeting, 932, U.N. Doc.

No. E/CN.4/SR.194 (May 25, 1950) (United States delegation

explaining that military “troops, although maintained abroad,

remained under the jurisdiction of the State”).

12

June 26, 1945, 59 Stat. 1055, 1060 (“judicial decisions”

as means of determining international law). In 2004, the

Court observed that, “while the jurisdiction of States is

primarily territorial, it may sometimes be exercised out-

side the national territory.” Hence, the Court continued,

“[cJonsidering the object and purpose of the Interna-

tional Covenant on Civil and Political Rights, it would

seem natural that, even when such is the case, States par-

ties to the Covenant should be bound to comply with its

provisions.” Wall Advisory Opinion, supra, at 4 109. The

Court therefore concluded that the Covenant applied to

Israel’s conduct in the West Bank. /d. at 99 110-11.

The following year, in the Case Concerning Armed

Activities on the Territory of the Congo (Dem. Rep.

Congo v. Uganda), 2005 1.C.J. __, 9216 (Dec. 19),

the Court reiterated that precise point, holding that

“international human rights instruments are applicable

‘in respect of acts done by a State in the exercise of

its jurisdiction outside its own territory,’ particularly

in occupied territories.” Having concluded that during

the relevant period Uganda was an occupying power

in Ituri, a district in the northeast region of the Congo,

the Court held that it had violated its obligations under

several international human rights and international

humanitarian law treaties, including the Covenant. /d. at

9219.

Likewise, in a series of cases submitted under the

Optional Protocol that predate the ratification of the

Covenant by the United States, the Human Rights Com-

mittee confirmed that the obligations under the Covenant

extended beyond the territorial control of the State and

applied the Covenant to cases of kidnapping by State

agents abroad. See Lépez Burgos, supra, at 912.1 -

13

12.3; U.N. Hum. Rts. C’ttee, Celiberti de Casariego v.

Uruguay, 49 10.1 — 10.3, U.N. Doc. CCPR/C/13/D/56/

1979 (July 29, 1981)."°

The Human Rights Committee recently reaffirmed the

extraterritorial scope of obligations under the Covenant,

Stating that a State Party “must respect and ensure the

rights laid down in the Covenant to anyone within the

power or effective control of that State Party, even if not

situated within the territory of the State Party.” General

Comment No. 31, supra, at 1 10. The Committee con-

tinued: “This principle also applies to those within the

power or effective control of the forces of a State Party

acting outside its territory, regardless of the circum-

stances in which such power or effective control was

obtained, such as forces constituting a national contin-

gent of a State Party assigned to an international peace-

keeping or peace-enforcement operation.” /d. The

February 2006 report to the Human Rights Council by

the Chairperson-Rapporteur of the Council’s Working

Group on Arbitrary Detention and other Special Rap-

porteurs expressly applied that understanding to the

Guantanamo Bay detainees, concluding that “the par-

ticuiar status of Guantanamo Bay under the international

lease agreement between the United States and Cuba and

under United States domestic law does not limit the obli-

gations of the United States under international human

10 ‘The same interpretive approach has been followed by other

human rights treaty bodies. See, e.g., U.N. C’ttee on the Elimination

of Racial Discrimination, Concluding Observations of the Committee

on the Elimination of Racial Discrimination, 932, U.N. Doc.

CERD/C/ISR/CO/13 (June 14, 2007); U.N. C’ttee Against Torture,

Conclusions and Recommendations of the Committee Against Torture,

WW 14-16, U.N. Doc. CAT/C/USA/CO/2 (July 25, 2006); U.N. C’ttee

on the Rts. of the Child. Concluding Observations, 92, U.N. Doc.

CRC/C/15/Add.195 (Oct. 9, 1992).

14

rights law towards those detained there.”'' And the

extraterritorial interpreiation was confirmed at the high-

est political level of the United Nations when the Gen-

eral Assembly, in its Resolution 45/170 on the situation

of human rights in sccupied Kuwait, confirmed the

application of Iraq’s obligations under the Covenant in

territory occupied by it in Kuwait. See G.A. Res. 45/170,

U.N. Doc. A/RES/45/170 (Dec. 18, 1990) (adopted by

vote of 144-1, with United States in favor).

B. The United States Must Afford Petitioners

the Protections of Article 9 Regardless of

Their Status as Aliens.

The United States’s obligations under the Covenant

extend to “all individuals within its territory and subject

to its jurisdiction. . . without distinction of any kind .

. . .” ICCPR art. 2(1) (emphasis added). Hence, what-

ever interpretation might be given the phrase “all indi-

viduals within its territory and subject to its

jurisdiction,” there can be no suggestion that the pro-

tections afforded by Article 9 of the Covenant do not

extend to citizens and non-citizens alike. Indeed, Article

26 of the Covenant expressly prohibits discrimination in

the administration of justice. ICCPR art. 26 (“All per-

sons are equal before the law and are entitled without

any discrimination to the equal protection of the law.”).

The United States recognized the point when it

explained its implementation of specific provisions of

the Covenant:

Aliens living in the United States, even though not

U.S. citizens, generally enjoy the constitutional and

'!_ U.N. Econ. & Soc. Council [ECOSOC], Comm’n on Hum. Rts.,

Report of the Working Group on Arbitrary Detention and Special Rap-

porteurs: Situation of Detainees at Guantanamo Bay, 911, U.N. DOC.

E/CN.4/2006/120 (Feb. 27, 2006).

15

Covenant rights and protections of citizens, includ-

ing. . . freedom from torture or cruel, inhuman or

degrading treatment or punishment; prohibition of

slavery; the right to liberty and security of person;

the right to humane treatment for persons deprived

of their liberty... .

U.N. Hum. Rts. C’ttee, Initial Report of the United

States to the Human Rights Committee, 195, U.N. Doc.

CCPR/C/81/Add.4 (Aug. 24, 1994) (emphasis added).

See also Plyler v. Doe, 457 U.S. 202, 210 (1982)

(“Aliens, even aliens whose presence in this country is

unlawful, have long been recognized as ‘persons’ guar-

anteed due process of law by the Fifth and Fourteenth

Amendments.”); cf. Rasul, 542 U.S. at 481 (“Aliens held

at the base, no less than American citizens, are entitled

to invoke the federal courts’ authority under [the federal

habeas statute].”).

The application of the Covenant to persons under the

control of State Parties without regard to citizenship

inheres in the Covenant’s purpose to ensure respect for

human rights. “[T]he rights set forth in the Covenant

apply to everyone, irrespective of reciprocity, and irre-

spective of his or her nationality or statelessness.” U.N.

Hum. Rts. C’ttee, General Comment No. 15: The Posi-

tion of Aliens Under the Covenant, 41, U.N. Doc.

HRI/GEN/1/Rev.6 at 140 (Apr. 11, 1986). “Thus, the

general rule is that each one of the rights of the

Covenant must be guaranteed without discrimination

between citizens and aliens.” /d. at 4 2.

The limited number of provisions in the Covenant that

do allow for distinctions between citizens and non-citi-

zens do so explicitly. For example, the rights guaranteed

under Article 25, including the right to vote, are

restricted to “citizens,” and the right to freedom of

movement secured by Article 12(1) applies only to those

16

within the relevant territory. By contrast, the provisions

of Article 9 apply, without qualification, to “all indi-

viduals” subject to arrest or detention by a State Party.

General Comment No. 8, at 91.

C. The United States Must Afford Petitioners

the Protections of Article 9 Regardless of the

Possible Concurrent Applicability of Inter-

national Humanitarian Law.

Given the universality of international human rights,

the protections of the Covenant neither disappear nor are

set aside in times of armed conflict. Apart from the lim-

ited provisions for formal notification of derogation in

public emergencies provided for by Article 4 (to which

the United States has not resorted),' there is no provi-

sion in the Covenant providing for the suspension of its

guarantees in times of armed conflict. It is instead well

established that the application of international human-

itarian law in the context of armed conflict does not pre-

clude the concurrent enforcement of international human

rights obligations:

Human rights are inherent to the human being and

protect the individual at all times, in war and in

peace. International humanitarian law only applies

in situations of armed conflict. Thus, in times of

armed conflict international human rights law and

international humanitarian law both apply in a com-

plementary manner.

Int’! C’ttee of the Red Cross, International Humanitarian

Law and Human Rights, http://www.icrc.org/Web/eng/

siteengO. nsf/htmlall/section_ihl_and_human_rights. See

also 1 CUSTOMARY INTERNATIONAL HUMANITARIAN

LAW: RULES 299-306 (Jean-Marie Henckaerts & Louise

Doswald-Beck eds., 2005).

12 See note 3, supra.

17

In its Advisory Opinion on the Legality of the Threat

or Use of Nuclear Weapons, 1996 1.C.J. 226, 4 25 (July

8), the International Court of Justice expressly so held

with respect to the Covenant, stating that “the protection

of the International Covenant of Civil and Political

Rights does not cease in times of war.” In the Wall Advi-

sory Opinion, supra, at 9] 105-06, the Court reiterated

that human rights law applies in times of conflict, and in

addition held that, while some rights may be exclusively

matters of international humanitarian law or international

human rights law, “others may be matters of both these

branches of international law.” See also General Com-

ment No. 31, supra, at 411 (“While, in respect of certain

Covenant rights, more specific rules of international

humanitarian law may be specially relevant for the pur-

poses of the interpretation of Covenant rights, both

spheres of law are complementary, not mutually exclu-

Sive.”’).

Consequently, even in times of armed conflict, human

rights law applies. Where provisions of international

humanitarian law apply, human rights law may also

inform their interpretation or complement them. For

instance, the fundamental guarantees of judicial process

in times of non-international armed conflict assume

clearer content from the more detailed rules of human

rights law that are codified in the Covenant and other

human rights instruments, and their interpretation by

courts and international monitoring bodies. See Geneva

Convention Relative to the Treatment of Prisoners of

War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S.

972 (hereinafter Common Article 3] (setting out in gen-

erally phrased language the minimum guarantees to be

respected in armed conflict, including “judgment pro-

nounced by a regularly constituted court affording all the

judicial guarantees which are recognized as indispens-

18

able by civilized peoples”) (emphasis added); cf. ICCPR

arts. 9, 14 (requiring prompt hearing after arrest or

detention “before a judge or other officer authorized by

law,” upholding right to fair trial and to petition court

for review of legal basis of detention, and specifying

basic judicial guarantees). As a result, in a non-inter-

national armed conflict, the relevant provisions of the

Covenant provide clarity and detail to the more general

protection contained in Common Article 3 to govern

issues related to detention, including the judicial guar-

antees afforded, the competence, independence and

impartiality of the tribunal, the permissible duration of

proceedings, and the scope of review by a court or tri-

bunal.

The determination of whether a particular individual

has been captured and detained in the course of armed

conflict, whether international or non-international as

those terms are understood in international humanitarian

law, is a fact-intensive inquiry governed by the rules of

that body of international law.'? Regardless of whether

any provision of international humanitarian law might

apply to any of the Petitioners, however, the United

States’s obligations under the Covenant and customary

international law of human rights remain intact as to all

of them.

13 In Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795-97 (2006), this

Court applied the provisions of Common Article 3 to the conflict

between the United States and Al Qaeda in Afghanistan.

19

Il. The United States’s Treatment of the Guanta-

namo Detainees Violates Article 9 of the

Covenant.

A. Article 9 Guarantees Petitioners a Right to

Judicial Review of Their Detention.

Pursuant to Article 9(4), a State Party must ensure that

“{a]nyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings before a

court, in order that that court may decide without delay

on the lawfulness of his detention and order his release

if the detention is not lawful.” ICCPR art. 9(4).'* While

Article 9(4) reflects a broad practice among national

legal traditions, many built on principles of habeas cor-

pus and amparo, the obligation of the United States aris-

ing from Article 9(4) is neither fully defined by nor

dependent on constitutional provisions or federal statutes

affording access to habeas relief per se. Hence, in order

to ensure compliance by the United States with its obli-

gations under the Covenant, the judicial access afforded

by the United States to persons it has detained must be

assessed for compliance with each of the requirements

set forth in Article 9(4).

First, Article 9(4) requires that individuals deprived

of their liberty be “entitled to take proceedings before a

court.” ICCPR art. 9(4) (emphasis added). For purposes

of Article 9(4), the “court” must observe the basic pro-

cedural guarantees that ensure a fair hearing as required

by Article 14(1) of the Covenant. ICCPR art. 14(1)

” Similar provisions appear in the European Convention for the

Protection of Human Rights and Fundamental Freedoms art. 5(4),

Nov. 4, 1950, 213 U.N.T.S. 222 (“ECHR”), the American Convention

on Human Rights art. 7(6), Nov. 22, 1969, 1144 U.N.T.S. 123, and the

African [Banjul] Charter on Human and People’s Rights art. 6,

adopted Junc 27, 1981, 1520 U.N.T.S. 217.

20

(“[E]veryone shall be entitled to a fair and public hear-

ing by a competent, independent and impartial tribunal

established by law.”).'° In particular, a court’s proce-

dures must grant a prisoner meaningful access to the evi-

dence used against him and afford him the opportunity to

obtain evidence and testimony in his defense.'® For the

same reason, a court’s procedures must allow prisoners

adequate access to legal counsel'’ and cannot consider

evidence obtained by torture."

5 See generally U.N. Hum. Rts. C’ttee, General Comment No.

32: Right to Equality Before Courts and Tribunals and to Fair Trial

(article 14), 9917-18, U.N. Doc. CCPR/C/GC/32/CRP.1 (June 19,

2007); U.N. Hum. Rts. C’ttee, General Comment No. 29: States of

Emergency (article 4), 915, U.N. Doc. CCPR/C/21/Rev.1/Add.11

(Aug. 31, 2001) (“The provisions of the Covenant relating to proce-

dural safeguards may never be made subject to measures that would

circumvent the protection of non-derogable rights.”).

16 See generally Wloch v. Poland, 34 Eur. Ct. H.R. 9, 99 126-131

(2000) (interpreting the provision of ECHR analogous to ICCPR art.

9(4) to find detention lawful only where defense has equal access to

government’s evidence presented in court); Cantoral-Benavides v. Peru,

2000 Inter-Am. Ct. H.R. (ser. C) No. 69, 415 (Aug. 18, 2000) (recog-

nizing the right of parties “to prepare a proper defense . . . [and] to

question witnesses.”); U.N. Hum. Rts. C’ttee, Perterer v. Austria, 99.2,

U.N. Doc. CCPR/C/81/D/1015/2001 (Aug. 20, 2004) (describing “prin-

ciples of impartiality, fairness and equality of arms as implicit {in Arti-

cle 14(1))”); U.N. Hum. Rts. C’ttee, Morael v. France, 99.3, U.N. Doc.

CCPR/C/36/D/207/1986 (July 28, 1989) (“[T]he Covenant should be

interpreted as requiring a number of conditions, such as equality of

arms, respect for the principle of adversary proceedings, preclusion of

ex officio reformatio in pejus, and expeditious procedure.”).

17 See, e.g., Hilaire, Constantine and Benjamin, et al. v.

Trinidad and Tobago, 2002 Inter-Am. Ct. H.R. (ser. C) No. 94,

91 152(b) (June 21, 2002) (detainee entitled to “adequate legal assis-

tance for the effective preservation of constitutional motions”);

Imbrioscia v. Switzerland, 17 Eur. Ct. H.R. 441, 99 33-34, 38 (1993).

8 U.N. Hum. Rts. C’ttee, General Comment No. 20: Concern-

ing Prohibition of Torture and Cruel Treatment or Punishment (arti-

21

Second, the court must have the power to decide

“without delay on the lawfulness of [the] detention.”

ICCPR art. 9(4) (emphasis added); see also U.N. Hum.

Rts. C’ttee, General Comment No. 8: Right to liberty

and security of persons (Art. 9), 41, U.N. Doc.

HRI/GEN/1/Rev.7 (June 30, 1982).'° The Human Rights

Committee has made clear that “lawfulness” within the

meaning of Article 9(4) is not limited merely to an

assessment of compliance with national law or of pro-

cedural regularity, but also compliance with international

law, including the prohibition of arbitrary detention con-

tained in Article 9(1) of the Covenant itself,” the

requirement of legal certainty, here with respect to the

standards supporting detention contained in Article 15 of

cle 7), 9.12, U.N. Doc. HRI/GEN/1/Rev.1 (1992); see also Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment art. 15, G.A. Res. 39/46, U.N. Doc. A/39/51 (Dec. 10,

198 .) (“Convention against Torture”) (“Each State Party shall ensure

that any statement which is established to have been made as a result

of torture shall not be invoked as evidence in any proceedings, except

against a person accused of torture as evidence that the statement was

made.”).

19 Article 9(4) requires that judicial review be provided “with-

out delay.” While detailed consideration of the facts of individual

cases is beyond the scope of this brief, the High Commissioner notes

that it is difficult to conceive of any possible justification for the

delay in many of these cases of many years.

20 ICCPR art. 9(1) (“Everyone has the right to liberty and secu-

rity of person. No one shall be subjected to arbitrary arrest or deten-

tion. No one shall be deprived of his liberty except on such grounds

and in accordance with such procedure as are established by law.”).

In a series of cases relating to immigration detention, the Human

Rights Committee found that the reviewing court's limited mandate

violated both Article 9(1) and Article 9(4). See, e.g., U.N. Hum. Rts.

C’ttee, Shafiq v. Australia, 97.4, U.N. Doc. CCPR/C/88/D/1 324/2004

(Nov. 13, 2006).

22

the Covenant,”' and customary international law.”* The

prohibition against arbitrary detention set forth in Arti-

cle 9(1) applies to “all deprivations of liberty,” includ-

ing executive detentions “for reasons of public security.”

U.N. Hum. Rts. C’ttee, General Comment No. 8, supra,

at 711, 4. Accordingly, to suffice under Article 9(4), a

court’s inquiry into the lawfulness of detention must be

broad enough to encompass an assessment of the overall

arbitrariness vel non of the detention.

In order to avoid a characterization of arbitrariness,

detention must “not only be lawful but reasonable in all

the circumstances.” U.N. Hum. Rts. C’ttee, Alphen v.

The Netherlands, 45.8, U.N. Doc. CCPR/C/39/D/305/

1988 (Aug. 15, 1990); see also U.N. Hum. Rts. C’ttee,

Mukong v. Cameroon, 9.9.8, U.N. Doc. CCPR/C/51/D/458/

1991 (Aug. 10, 1994) (“ ‘[A]rbitrariness’ is not to be

equated with ‘against the law,’ but must be interpreted

more broadly to include elements of inappropriateness,

injustice, lack of predictability, and due process of

law.”).

Finally, the court must have the power to order release

if the detention is not lawful. “Judicial review of the

lawfulness of detention under article 9, paragraph 4, is

- ICCPR art. 15(1) (“No one shall be held guilty of any crim-

inal offence on account of any act or omission which did not consti-

tute a criminal offence, under national or international law, at the time

when it was committed.”). See U.N. Hum. Rts. C’ttee, Nicholas v.

Australia, 97.5, U.N. Doc. CCPR/C/80/D/1080/2002 (Mar. 24, 2004).

22 «See United States Diplomatic and Consular Staff in Tehran

(U.S. v. Iran), 1980 1.C.J. 3, 42 (May 24) (“Wrongfully to deprive

human beings of their freedom and to subject them to physical con-

straint in conditions of hardship is in itself manifestly incompatible

with the principles of the Charter of the United Nations, as well as

with the fundamental principles enunciated in the Universal Decla-

ration of Human Rights.”).

23

not limited to mere compliance of the detention with

domestic law but must include the possibility to order

release if the detention is incompatible with the require-

ments of the Covenant, in particular those of article 9,

paragraph 1.” U.N. Hum. Rts. C’ttee, Baban et al. v.

Australia, 47.2, U.N. Doc. CCPR/C/78/D/1014/2001

(Sep. 18, 2003). If a State Party is incapable of justify-

ing the continued detention of a prisoner, the failure to

release the prisoner would be inherently arbitrary, and a

violation of Article 9(1). U.N. Hum. Rts. C’ttee, Mpaka-

Nsusu v. Zaire, 910, U.N. Doc. CCPR/C/27/D/157/ 1983

(Mar. 26, 1986). Under these circumstances, continued

detention of Petitioners would also constitute a direct

violation of Article 9(2). ICCPR art. 9(2) (“Anyone who

is arrested shall be informed, at the time of arrest, of the

reasons for his arrest and shall be promptly informed of

any charges against him.”).

B. United States Law as Construed by the Court

of Appeals Would Not Satisfy Article 9.

In the United States, rights guaranteed by Article 9(4)

have traditionally been protected by the writ of habeas

corpus. U.N. Hum. Rts. C’ttee, /nitial Report of the

United States to the Human Rights Committee, supra, at

q 254 (“Through habeas corpus a person may obtain an

immediate judicial hearing on the legality of the deten-

tion and an order directing the official who holds him in

custody to release him, if appropriate.”) (citing Wales v.

Whitney, 114 U.S. 564, 574 (1885)). Because the United

States relied on existing statutes and constitutional pro-

visions to ensure that the “fundamental rights and free-

doms protected by the Covenant. . . can be effectively

asserted and enforced by individuals in the judicial sys-

tem,” id. at 48, restrictions on the reach and availability

24

of habeas corpus implicate the United States’s obliga-

tions under the Covenant.

According to the Court of Appeals, the Military Com-

missions Act of 2006, Pub. L. No. 109-366, 120 Stat.

2600 [hereinafter MCA] stripped the federal courts of

jurisdiction to hear pending habeas claims by Petition-

ers. Whether Congress intended such a result, and

whether, if Congress so intended, the legislation violates

constitutional provisions, are matters for this Court to

decide as a matter of national law. If United States law

were as construed by the Court of Appeals to preclude

habeas corpus, however, the United States would be in

breach of its obligations under the Covenant for failing

to provide judicial review of the lawfulness of detention

that satisfied the three components of Article 9(4).

First, the administrative CSRTs clearly cannot them-

selves qualify as “courts” under Article 9(4), if only

because their structure within the executive branch and

their composition of military officers render them insuf-

ficiently independent and impartial to discharge the judi-

cial function.” In addition, the rules and evidentiary

procedures employed do not provide the basic procedu-

ral protections necessary to safeguard the rights set forth

in the Covenant.** Contrary to the requirement that

23 _‘*ULN. Hum. Rts. C’ttee, Vuolanne v. Finland, 99.6, U.N. Doc.

CCPR/C/35/D/265/1987 (May 2, 1989) (review of petitioner’s case by

superior military officer “did not have a judicial character [and there-

fore] cannot be deemed to be a ‘court’ within the meaning of article

9, paragraph 4”).

24 On its review of the United States’s most recent periodic

report under the Covenant, and following a lengthy written and oral

dialogue with senior United States officials, the Human Rights Com-

mittee expressed its concern that the procedures governing the CSRTs

“may not offer adequate safeguards of due process” in light of Arti-

cle 9(4). Concluding Observations, supra, at 918.

25

detainees be given equal access to the government’s evi-

dence supporting detention, CSRTs provide the detainees

only superficial and oftentimes wholly incomplete infor-

mation. According to the Department of Defense’s

instructions for CSRTs, the Government need only pro-

vide detainees with a summary of the Government’s

unclassified evidence supporting continued detention

and none of the classified information otherwise con-

sidered by the CSRT.* Further, while detainees are

ostensibly able to obtain the attendance of witnesses on

their own behalf who are “reasonably available,” Imple-

mentation Enclosure (1) at 6, detainees appear to be

restricted in practice to seeking testimony from other

Guantanamo Bay detainees, and even those requests are

reported to be regularly refused.

The injury done by the imposition of such evidentiary

hurdles :s compounded by the rules denying detainees

access to counsel. Rather than legal counsel, detainees

are assigned a “Personal Representative.” Implementa-

tion Enclosure (1) at 2. The Personal Representative,

however, is not a lawyer, and indeed, must inform the

detainee at their initial meeting: “I am neither a lawyer

nor your advocate. . . . None of the information you

provide me shall be held in confidence and I may be

obligated to divulge it at the hearing.” Implementation

Enclosure (3) at 3.

There is also unacceptable risk that the evidentiary

record generated during the CSRT phase will reflect evi-

dence obtained through torture or cruel, inhuman, or

25 -“- Deputy Secretary of Defense, Memorandum for the Secre-

taries of the Military Departments ct al., “? .aplementation of Com-

batant Status Review Tribunal Procedures for Enemy Combatants

Detained at U.S. Naval Base Guantanamo Bay, Cuba” (July 14, 2006),

Enclosure (1) at 7(H)(5), available at http://www.defenselink.mil/

news/Aug2006/d20060809CSRTProcedures.pdf [hereinafter Imple-

mentation].

26

degrading treatment of others or of the prisoner himself.

Neither the Detainee Treatment Act of 2006, Pub. L. No.

109-148, 119 Stat. 2939 (2006) [hereinafter DTA], nor

the Government’s instructions for CSRTs categorically

exclude the use of evidence obtained by torture.** Any

underlying act of torture or cruel, inhumane or degrad-

ing treatment would itself be a gross violation of human

rights obligations, as would its use as evidence in a

detention hearing. See Convention against Torture art.

15; ICCPR art. 7 (as explained in General Comment No.

20, 91 12). Any court that accepts into evidence state-

ments obtained through torture, and allows the continued

detention of a prisoner on the basis of that evidence,

ceases to function as a court and becomes, instead, an

instrument of oppression. See A and others, [2006] 2

A.C. 221, supra, at 4 164 (use of coerced statements in

court is not question of power of executive “but rather

the integrity of the judicial process”).

Without effective access to the evidence relied on by

the government to justify continued detention, without

the effective ability to obtain additional material evi-

dence, without sufficient access to counsel, and without

meaningful ability to determine whether inculpatory evi-

dence is the result uf torture or other impermissible coer-

cion, the process afforded by the CSRTs leaves detainees

without any meaningful opportunity to mount an effec-

a Under procedures issued after the DTA’s passage that were not

applied to Petitioners, a CSRT may consider “any information it deems

relevant and helpful to a resolution of the issues before it,” Imple-

mentation Enclosure (1) at 6, and “(A) whether any statement derived

from or relating to such detainee was obtained as a result of coercion;

and (B) the probative value (if any) of any such statement.” DTA

§ 1005(b)(1). Neither the DTA nor the Government's Implementation

instructions for CSRTs contain any analog to the prohibition on the use

of statements obtained through torture in military commissions estab-

lished under the MCA. See MCA § 3(a) (adding 10 U.S.C.A. § 948r(b)).

27

tive defense or otherwise receive a fair hearing. A body

that cannot provide a fair hearing cannot, by definition,

provide meaningful judicial review of detention as

required by Article 9(4).

The factual record presented to the Court of Appeals

for the District of Columbia Circuit under the DTA is

necessarily tainted by the procedural shortcomings of the

CSRT. That court is, of course, a “court” within the

meaning of the Covenant. However, given the structural

deficiencies of the CSRT, effective judicial scrutiny

would be stymied even if ordinary principles of review

applied. Given the narrow review authorized by the

DTA, the Court of Appeals, for its part, is rendered inca-

pable of engaging in the full review of detention

required by Article 9(4) of the Covenant.

Second, the review of CSRT determinations afforded

under § 1005(e)(2) of the DTA is insufficient in scope

and substance to ensure that Petitioners obtain judicial

review of the lawfulness of their detention as required

by Article 9 of the Covenant.

As a threshold matter, effective judicial inquiry into

the lawfulness and reasonableness of detention is seri-

ously frustrated by the unduly vague definition of

“unlawful enemy combatant,” which results in imper-

missible uncertainty regarding the applicable legal stan-

dards. At various times material to the Petitioners, the

executive has applied an unreasonably vague definition

to the term, see Memorandum from Deputy Secretary of

Defense to Secretary of the Navy, Order Establish-

ing Combatant Status Review Tribunal (July 7, 2004),

available at http://www.defenselink.mil/news/Jul2004/

d20040707review.pdf (defining “enemy combatant” as

“an individual who was part of or supporting Taliban or

al Qaeda forces, or associated forces that are engaged in

28

hostilities against the United States or its coalition part-

ners”), or refused to articulate any definition at all. See

In re Guantanamo Detainee Cases, 355 F.Supp.2d 443,

474-78 (D.D.C. 2005). Nor has subsequent legislation

clarified the issue. Indeed, in addition to exposing Peti-

tioners to the prospect of continued arbitrary detention in

violation of Article 9 of the Covenant, this failing

breaches the principle of certainty of law protected by

Article 15 of the Covenant. See Nicholas v. Australia,

supra, at 47.5.

Even if a sufficiently clear legal standard applied, the

narrow scope of review afforded by the DTA precludes

effective judicial review of the lawfulness of detention.

Rather than amounting to a substantive review of justi-

fication for detention, the DTA apparently limits the D.C.

Circuit’s review of CSRT decisions simply to “(i) whether

the status determination of the [CSRT] with regard to such

alien was consistent with the standards and procedures

specified by the Secretary of Defense for [CSRTs]. . .

and (ii) to the extent the Constitution and laws of the

United States are applicable, whether the use of such stan-

dards and procedures to make the determination is con-

sistent with the Constitution and laws of the United

States.” DTA § 1005(e)(2)(c) (emphasis added). The Gov-

ernment interprets the DTA to forbid the Court of Appeals

from engaging in factual inquiries beyond the narrow

record before the CSRT to determine whether the CSRT

did in fact reach a defensible result. See Government’s

Response in Opposition to Motion to Compel at 10-20,

Bismullah v. Gates, No. 06-1197 (D.C. Cir. Aug. 21, 2006);

see also Government’s Motion for Entry of Protective

Order at 13, Bismullah v. Gates, No. 06-1197 (D.C. Cir.

Aug. 25, 2006) (“Because review under the DTA is on the

record of the CSRT, counsel does not have a need to

engage in factual development{[.]”); Government’s Reply

in Support of Motion for Entry of Protective Order at 3,

29

Bismullah v. Gates, No. 06-1197 (D.C. Cir. Nov. 13,

2006) (“[D]iscovery is not appropriate because this.

Court’s review under the DTA is on the record.”). The

disparity between the scope of judicial review required by

the Covenant and the limited review apparently permitted

by the DTA is further exacerbated by the requirement that

the Court of Appeals review the CSRT determination in

light of the “rebuttable presumption in favor of the Gov-

ernment’s evidence.” DTA § 1005(e)(2)(C)(i).

As a result, under the executive’s interpretation of the

DTA, the Court of Appeals lacks both the authority and

the practical ability to make an inquiry into whether con-

tinued detention is substantively justified as a matter of

fact and law. In the absence of such review, the court has

exceedingly limited ability to identify arbitrary deten-

tion. It may be that DTA § 1005(e)(2) permits an inquiry

into “whether the status determination of the Combatant

Status Review Tribunal with regard to such alien was

consistent with. . . the requirement that the conclusion

of the Tribunal be supported by a preponderance of the

evidence.” As Judge Rogers pointed out, however,

“[bJecause a detainee still has no means to present evi-

dence rebutting the government’s case—even assuming

the detainee could learn of its contents—assessing

whether the government has more evidence in its favor

than the detainee is hardly the proper antidote” to the

suspension of habeas. Boumediene v. Bush, 476 F.3d

981, 1006 (D.C. Cir. 2007) (Rogers, J., dissenting). Such

a state of affairs is inimical to “the fundamental require-

ments of the law. . . that a person cannot be subject to

detention unless a neutral and detached magistrate makes

an independent finding that there is sufficient probable

cause to believe that person committed an offence.”

Hum. Rts. C’ttee, /nitial Report of the United States to

the Human Rights Committee, supra, at 9.256 (citing

Gerstein v. Pugh, 420 U.S. 103, 119 (1975)).

30

Finally, if, as Judge Rogers stated, “neither the DTA

nor the MCA require [that a detainee unlawfully held be

released],” Boumediene, 476 F.3d at 1006 (Rogers, J.,

dissenting), the scope of CSRT determinations by the

Court of Appeals is inadequate for the additional reason

that the court is not invested with the authority to release

prisoners who, in its determination, are unlawfully

detained. The authority to release unlawfully detained

prisoners is an explicit requirement of Article 9(4),

because it is the crucial mechanism by which judicial

review protects the fundamental right against arbitrary

detention embodied by the Covenant.

The individuals detained by the United States at Guan-

tanamo Bay are individuals invested with rights under

the Covenant that the United States has voluntarily

agreed by treaty to respect and ensure. Their continued

detention under the legal regime described by the Court

of Appeals squarely violates the United States’s obli-

gations under Article 9 of the Covenant. This Court

should act to bring the United States into compliance

with the commitments it made when it ratified the Con-

vention.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals should be reversed.

August 24, 2007

Respectfully submitted,

DONALD FRANCIS DONOVAN

Counsel of Record

CATHERINE M. AMIRFAR

NATALIE L. REID

WILLIAM H. TAFT V

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, NY 10022

(212) 909-6000

Counsel for Amicus Curiae