Pace International Law Review

Volume 21 Issue 1 Winter 2009 Article 10

January 2009

Beyond Our Borders: The International Law Controversy Concerning the Writ of Habeas Corpus and Guanta´Namo Bay

Michael Palitz

Follow this and additional works at: https://digitalcommons.pace.edu/pilr

Recommended Citation Michael Palitz, Beyond Our Borders: The International Law Controversy Concerning the Writ of Habeas Corpus and Guanta´Namo Bay, 21 Pace Int'l L. Rev. 335 (2009) Available at: https://digitalcommons.pace.edu/pilr/vol21/iss1/10

This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. 26570_pir_21-1 Sheet No. 174 Side A 04/08/2009 15:17:04 1 Military 6-APR-09 12:15 see also for their tireless ef- . E-mail: mjpalitz@ EVIEW Seq: 1 Seq: EVIEW R 1 anamo Campaign, http://www. R 3 ´ AW ANAMO BAY ANAMO AW L L unknown NTRODUCTION 335 anamo.html (last visited Feb. 24, 2009). NTERNATIONAL I I: I NTERNATIONAL I Michael Palitz ACE ART , the Supreme Court determined that de- , the Supreme P ACE This article focuses on whether international law This article focuses on whether 2 BEYOND OUR BORDERS: THE OUR BORDERS: BEYOND anamo Bay violates international law and United Na- international law and United anamo Bay violates CORPUS AND GUANT CORPUS Boumediene v. Bush, 128 S. Ct. 2229, 2276-77 (2008); American Civil Liberties Union Close Guant´ Editor-in-Chief, P The United States’ arbitrary detainment of aliens held at arbitrary detainment of aliens The United States’ 2 3 1 CONCERNING THE WRIT OF HABEAS WRIT THE CONCERNING INTERNATIONAL LAW CONTROVERSY LAW INTERNATIONAL M K forts in producing this tremendous issue. gmail.com. at the 2008 McGill University Graduate This article was presented Legal Scholars Conference.would not have been possible without the This article especially my mother, Kathy Palitz, Sis- support, love, and patience of my family Virginia Dowd.the I also extend deep gratitude to ter, Tara Palitz, and fianc´ee 2008-2009 members of the P Commissions Act of 2006, Pub. L. No. 109-336, 120 Stat. 2600 (codified in scattered sections of 10 and 18 U.S.C.) [hereinafter “MCA”]. Guant´ rights. focused on protecting human tions conventions In Boumediene v. Bush Boumediene v. \\server05\productn\P\PIR\21-1\PIR110.txt aclu.org/safefree/detention/closeGuant´ also trumps this act.Geneva Both the U.N. Charter and the that denounce arbitrary and in- conventions provide directives the Bay, definite detention of foreign citizens. At Guant´anamo without charging these in- United States detains alien citizens dividuals with a crime. The international legal community governmental power and ensure seeks to prevent such abuses of practice arbitrary methods of that the United States does not violating human rights. the Human rights watch groups and (“ACLU”) also want to stop the American Civil Liberties Union rights to aliens who United States from denying communication counsel. wish to seek advice from legal tainees possess habeas corpus rights, and the Court also consid- tainees possess habeas corpus Military Commissions ered the constitutionality of Congress’ Act of 2006. C Y 26570_pir_21-1 Sheet No. 174 Side A 04/08/2009 15:17:04 A 04/08/2009 174 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 174 Side B 04/08/2009 15:17:04 2 M K C Y 8 Ex U.S. Be- 12 [Vol. 21:335 6-APR-09 12:15 However, “nu- ITIGATION IN THE 10 L L.J. 503, 518-25 (2003). L ’ Seq: 2 Seq: NT . I The Supreme Court has AW AND In cases involving foreign In cases involving After the September 11th L ARV 11 6 9 , 44 H unknown Unfortunately for the former Unfortunately 7 Judicial Power to Determine the Status and NTERNATIONAL ., I PACE INT’L L. REV. Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Hamdi v. Rum- Hamdan v. Rumsfeld, 548 U.S. 557 (2006); AUST ET AL , Jordan J. Paust, . art. I, § 9, cl. 2. In limited exceptions, Congress may also suspend Congress may also exceptions, In limited , the Court “recognized and applied the law of war and applied the law of , the Court “recognized Quirin, 317 U.S. 1, 27-28 (1942). 5 J. P ONST . at 985. , 542 U.S. at 473; 28 U.S.C. §§ 2241(a), (c)(3). shall not be suspended except in situations of rebellion except in situations be suspended shall not 4 ORDAN See id See generally Ex parte J Id. See, e.g. Rasul 28 U.S.C. § 2241 (2006). U.S. C 995 (D.C. Cir. 2007) (Rogers, J., Boumediene v. Bush, 476 F.3d 981, When the Supreme Court first addressed this issue in Court first addressed this When the Supreme It is well-established American law that the writ of habeas law that American It is well-established 7 8 9 4 5 6 10 11 12 parte Quirin Rights of Persons Detained Without Trial as including that part of the law of nations which prescribes, for as including that part of the law rights and duties of enemy na- the conduct of war, the status, tions as well as enemy individuals.” or invasion. sfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004). corpus 336 \\server05\productn\P\PIR\21-1\PIR110.txt attacks in 2001, the “Bush Administration made claims that the attacks in 2001, the “Bush Administration power to detain persons without Executive has an unreviewable ‘terrorism.’”trial in a so-called ‘war’ against citizens detained at Guant´anamo Bay, however, scholars debate Bay, however, scholars at Guant´anamo citizens detained even applies to them.whether the Constitution By labeling appears that for- as “enemy combatants,” it these individuals the Constitution George W. Bush circumvented mer President of the protections detainees outside the scope by placing these Constitution. afforded by the dissenting). the writ of habeas corpus as long as it provides an adequate, it provides an as long as of habeas corpus the writ alleged demonstrate the petitioner to means for the alternative his or her detention. violations with merous decisions of the Supreme Court and other federal courts merous decisions of the Supreme demonstrate that this is not correct.” held that the federal courts have jurisdiction to “hear applica- held that the federal courts have person” held “in violation of the tions for habeas corpus by any of the United States.” Constitution or laws or treaties President, the Supreme Court disagrees with his assertions. Court disagrees with President, the Supreme cause of the inherent nature of America’s adversary system, the cause of the inherent nature of United States’ courts provide Supreme Court believes that the citizens to demonstrate their the best fora for detained foreign 165 (2d ed. 2005). https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 174 Side B 04/08/2009 15:17:04 B 04/08/2009 174 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 175 Side A 04/08/2009 15:17:04 3 13 337 pro- 15 6-APR-09 12:15 ´ ANAMO BAY ANAMO Seq: 3 Seq: unknown anamo Bay. A discussion of the With a complete set of facts and in- complete set of With a 14 note 10, at 165. supra ., , 542 U.S. at 466. AUST ET AL P WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT See, e.g., Rasul See American Declaration of the Rights and Duties of Man, art. I, O.A.S. Res. The second part of this comment addresses the historical of this comment addresses The second part Part III of this comment discusses the relevant interna- Part III of this comment discusses Part IV of the comment analyzes the countervailing inter- 13 14 15 M K formation, the courts are better able to make the most informed are better able to make the formation, the courts are prop- as to whether these foreign detainees determinations combatants. erly held as enemy legal issue. controversial international background to this The other branches of continues to debate with the Supreme Court if any, that over the protections and rights, the government have at Guant´alien detainees acts will Court decisions and Congressional recent Supreme background to this debate.help to provide Additionally, The and Duties of Man American Declaration of the Rights 2009] of in- in violation illegitimate detention arbitrary and claims of States of America. laws of the United law and the ternational all of the the court with also provide system will The adversary regard- decision to make an informed facts necessary relevant foreign citizen. ing each \\server05\productn\P\PIR\21-1\PIR110.txt XXX (1948), O.A.S. Off. Rec. OEA/Ser.L/V/I.4 rev. (1965). vides further insight that seems to contradict Congressional vides further insight that seems legislation. and the articles of the Ge- tional law found in the U.N. Charter the Treatment of Prisoners. neva Convention Relative to compare the international law in Through this discussion, I will Convention to recent United the U.N. Charter and the Geneva States military interrogation tactics. This analysis will demon- law and the United strate the conflict between international in an age of terrorism.States’ actions to protect its nation Some with the U.N. Charter and the interrogation techniques conflict the Treatment of Prisoners.Geneva Convention Relative to Al- a duty to protect human rights, though the United States has on the safety and security of the United States’ focus remains its nation.any, can The question remains: To what extent, if established international law re- the United States depart from terrorists?garding detainment of potential the I will address this question. complicated issues surrounding ests between the United States and the international legal com- C Y 26570_pir_21-1 Sheet No. 175 Side A 04/08/2009 15:17:04 A 04/08/2009 175 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 175 Side B 04/08/2009 15:17:04 4 M K C Y 20 a- [Vol. 21:335 6-APR-09 12:15 Seq: 4 Seq: ACKGROUND B unknown ISTORICAL Article 5 states that: II: H PACE INT’L L. REV. 17 ART Rasul v. Bush, 542 U.S. 466, 473 (2004). P . 18 see also Geneva Convention Relative to the Treatment of Prisoners of War art. . .categories of In Part III of this Comment, I will analyze the different .; Article 5 of the Geneva Convention Relative to the Geneva Convention Relative Article 5 of the The tribunal could evaluate the challenges and make a The tribunal could evaluate the See Id Id See id Id 16 When foreign citizens challenge their detention at Guant´When foreign citizens challenge After World War II, the international community realized II, the international community After World War 19 16 17 18 19 20 [s]hould any doubt arise as to whether persons, having committed [s]hould any doubt arise as to whether hands of the enemy, belong to a belligerent act and fallen into the in Article 4 [of the Geneva Con- any of the categories enumerated of Prisoners], such persons vention Relative to the Treatment present Convention until such shall enjoy the protection of the determined by a competent time as their status has been tribunal. reasonable decision based on actual evidence. reasonable decision based on actual the need to provide appropriate protections for prisoners of appropriate protections the need to provide war. Article 5 demonstrates the desire of the parties to the Geneva Article 5 demonstrates the desire of Prisoners to provide Convention Relative to the Treatment hearing by a competent tribu- prisoners of war with a status nal. language demonstrates, the Furthermore, as the Convention determination hearing by a United States must provide a status 338 munity. the writ of habeas revoking analyze whether I will States is the United law that violates international corpus U.N. Charter. follow under the bound to whether I will discuss law. international actions violated congressional I will also in- for implications of the potential a minor analysis troduce States denied de- abroad if the United United States citizens corpus petitions.tainees’ habeas I will offer After this analysis, Supreme Court will provide suggestions to the a conclusion that involving the rights of detainees. in future cases \\server05\productn\P\PIR\21-1\PIR110.txt 5, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. Article 4. Treatment of Prisoners offers protection to individuals held as Treatment of Prisoners offers prisoners of war. namo Bay, the United States must ensure that these individu- namo Bay, the United States must of the Geneva Convention. als receive the protections https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 175 Side B 04/08/2009 15:17:04 B 04/08/2009 175 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 176 Side A 04/08/2009 15:17:04 5 In 339 The 27 22 6-APR-09 12:15 ´ ANAMO BAY ANAMO The September anamo Bay. 26 Seq: 5 Seq: If the United States If the United 23 unknown During the subsequent military 29 American Declaration of the Rights and Duties of American Declaration of the Rights and This article of the Geneva Convention is Convention of the Geneva This article the Supreme Court has considered the the Supreme 25 21 , The Writ of Habeas Corpus challenged whether the deten- “Acting pursuant to that authorization, former “Acting pursuant to that authorization, Quirin, 317 U.S. 1 (1942). how can the government refuse to offer habeas how can the see generally 28 24 .; , 542 U.S. at 470. note 15, art. I (Article I states, “Every human being has the right to note 15, art. I (Article I states, “Every Geneva Convention Relative to the Treatment of Prisoners of War, Geneva Convention Relative to the Treatment , Rasul v. Bush, 542 U.S. 466 (2004); Hamdan v. Rumsfeld, 126 S. Ct. . (as quoted in the Preamble). . . at art. XVIII. WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT Id Ex parte See generally id. E.g. Rasul Id See See id Id note 16, art. 5. supra Since the first Supreme Court decision in 1942 on this issue Court decision in 1942 Since the first Supreme 24 25 26 27 28 29 21 22 23 Ex parte Quirin M K Man, corpus hearings in order to ensure that these foreign citizens in order to ensure that these corpus hearings detained? are not being improperly in President Bush sent U.S. Armed Forces into Afghanistan to President Bush sent U.S. Armed al Qaeda and the Taliban re- wage a military campaign against gime that had supported it.” life, liberty, and the security of his person.”). campaign against the Taliban, the United States Armed Forces campaign against the Taliban, any combatants believed to be proceeded to capture and detain 2749 (2006). in accordance with the American Declaration of the Rights and of the Rights American Declaration with the in accordance as the helped establish United States Man, which the Duties of instrument. human rights first international world’s supra 2009] tribunal. competent \\server05\productn\P\PIR\21-1\PIR110.txt 11th attacks in 2001, however, forced the United States govern- 2001, however, forced the United 11th attacks in corpus rights of potential ter- ment to determine the habeas at Guant´rorists held as enemy combatants Writ of Habeas Corpus an essential right to provide individual Corpus an essential right to provide Writ of Habeas arbitrary government. protection against believes that “[a]ll men are born free and equal, in dignity and men are born free and equal, believes that “[a]ll in rights,” tion of the petitioners for trial by Military Commission on charges against them conformed to the laws of the United States and its Constitution. Declaration states that “[e]very person may resort to the courts may resort to “[e]very person states that Declaration for his legal rights.” to ensure respect response to the attacks, “Congress passed a joint resolution au- response to the attacks, “Congress to use all necessary and appro- thorizing former President Bush organizations, or persons he priate force against those nations, committed, or aided the terror- determines planned, authorized, ist attacks.” C Y 26570_pir_21-1 Sheet No. 176 Side A 04/08/2009 15:17:04 A 04/08/2009 176 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 176 Side B 04/08/2009 15:17:04 6 M K C Y 36 Secret available at [Vol. 21:335 6-APR-09 12:15 In its opin- anamo Bay, 38 Seq: 6 Seq: , Oct. 4, 2007, IMES “They also alleged that “They also alleged 33 dismissed the habeas corpus dismissed the , N.Y. T unknown note 16, at art. 13. However, the detain- upra Rasul Scott Shane, David Johnston & James Risen, Scott Shane, David Johnston & James 35 The military detained these foreign indi- detained The military See 30 PACE INT’L L. REV. The Supreme Court granted certiorari and The Supreme Court granted Specifically, the detainees claimed that they Specifically, the 37 32 The foreign detainees “claimed that denial of these “claimed that denial of The foreign detainees , 542 U.S. at 471. , 542 U.S. at 473. 34 Detainees alleged violations of the Geneva Convention Relative to the Detainees alleged violations of the Geneva . at 471-72. . at 472. . . . at 473 (internal citations omitted). 31 Rasul Id Id Id Id Id Rasul See id. Id. anamo Bay violated Article 13 of the Convention. Article 13 states, “Prison- The District Court in The District Court Beginning in 2002, these foreign detainees, through their through foreign detainees, in 2002, these Beginning 32 33 34 35 36 37 38 30 31 U.S. Endorsement of Severe Interrogations ees complained that the United States violated Article 13 when the United States ees complained that the United States violated force-feeding, and other cruel practiced torture methods such as waterboarding, and degrading treatment. Treatment of Prisoners. Detainees claimed that the United States’ actions in Guant´ treated.” Geneva Convention Relative to ers of war must at all times be humanely the Treatment of Prisoners of War, s have not “ever been a combatant against the United States” or been a combatant against the have not “ever any terrorist acts.” “ever engaged in relatives, “filed various actions in the U.S. District Court for the District Court actions in the U.S. “filed various relatives, of their detention challenging the legality District of Columbia at the base.” http://www.nytimes.com/2007/10/04/washington/04interrogate.html?_r=L&oref= slogin. The Court of Appeals affirmed, holding that “‘theThe Court of Appeals affirmed, privilege of aliens in military custody who litigation’ does not extend to over which the United States have no presence in ‘any territory is sovereign.” 340 members. al Qaeda \\server05\productn\P\PIR\21-1\PIR110.txt held, citing 28 U.S.C. §§ (c)(3), that the federal courts 2241(a), for habeas corpus by any have jurisdiction “to hear applications custody in violation of the Con- person who claims to be held ‘in United States.’”stitution or laws or treaties of the rights violates the Constitution, international law, and treaties Constitution, international rights violates the of the United States.” none has been charged with any wrongdoing, permitted to con- with any wrongdoing, none has been charged or any other or provided access to the courts sult with counsel, tribunal.” viduals at the United States Naval Base in Guant´ Naval Base at the United States viduals Cuba. petitions holding that it had no jurisdiction because the individ- petitions holding that it had no States, but rather in Cuba. uals were not held in the United https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 176 Side B 04/08/2009 15:17:04 B 04/08/2009 176 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 177 Side A 04/08/2009 15:17:04 7 IAMI 341 anamo/ , M Brown v. 6-APR-09 12:15 see also Under this Furthermore, 45 ´ 42 ANAMO BAY ANAMO Seq: 7 Seq: Shaughnessy v. United Shaughnessy “Alien citizens, by the pol- 43 unknown http://www.miamiherald.com/Guant´ “The fact that petitioners in these 44 available at In further support of its position, the Court position, the support of its In further 39 Lease Agreement, U.S.-Cuba, Feb. 23, 1903, T.S. No. 418. Lease Agreement, U.S.-Cuba, Feb. 23, A New Alcatraz Rises: Guant´anamo Ready for Taliban A New Alcatraz Rises: Guant´anamo 40 anamo Bay Naval Base, and may continue to exer- Base, and may continue to anamo Bay Naval , 542 U.S. at 484. , 542 U.S. at 485. , 542 U.S. at 480. “By the express terms of its agreements with Cuba, terms of its agreements with “By the express but see at 474 (citing INS v. St. Cyr, 533 U.S. 289, 301 (2001)); at 474 (citing INS v. St. Cyr, 533 U.S. 289, 41 .; , “no free man should be imprisoned, dispossessed, out- should be imprisoned, dispossessed, , “no free man , Jan. 10, 2002, WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT Rasul Gesellschaft v. Umbreit, 208 U.S. 570, 578 (1908). Rasul Id. 206, 218 (1953) (Jackson, J. & Shaughnessy v. United States, 345 U.S. Rasul Id The Supreme Court reversed the lower court’s holding on reversed the lower court’s The Supreme Court 43 44 45 39 40 41 42 This base, sprawling across 45 square miles on Cuba’s southeastern tip, This base, sprawling across 45 square the United States and the Castro has for years been a sore spot between series of earlier leases and agree- regime, which declared null and void a time.ments dating back to Teddy Roosevelt’s Castro has consistently occupation, and refused to cash called the U.S. presence here an illegal to make good on a lease the checks the United States cut annually agreement. ERALD M K Allen, 344 U.S. 443, 533 (1953) (noting that “[t]he historical purpose of the writ has Allen, 344 U.S. 443, 533 (1953) (noting that without judicial trial.”). been to relieve detention by executive authorities Carol Rosenberg, story/277564.html. States quoted a statement from the opinion in the opinion in statement from quoted a icy and practice of the courts of this country, are ordinarily per- icy and practice of the courts of the redress of wrongs and the mitted to resort to the courts for protection of their rights.” jurisdictional grounds by stating that Guant´anamo Bay’s Naval by stating that Guant´anamo jurisdictional grounds of the United the ‘territorial jurisdiction’ Base is “within States.” lawed, or exiled save by the judgment of his peers or by the law save by the judgment of his peers lawed, or exiled of the land.” H 2009] of habeas that the writ determined Supreme Court ion, the Executive the legality of of reviewing as a means corpus “served have its protections that context that and it is in detention, been strongest.” \\server05\productn\P\PIR\21-1\PIR110.txt the United States exercises ‘complete jurisdiction and control’ exercises ‘complete jurisdiction the United States over Guant´ permanently if it so chooses.” cise such control cases are being held in military custody is immaterial to the cases are being held in military jurisdiction” or right to hear the question of the District Court’s petitions. foreign detainees’ habeas corpus the Court stated that aliens detained in United States military the Court stated that aliens detained States possess “the privilege of custody outside of the United litigation” in United States’ courts. Frankfurter, J., dissenting). C Y 26570_pir_21-1 Sheet No. 177 Side A 04/08/2009 15:17:04 A 04/08/2009 177 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 177 Side B 04/08/2009 15:17:04 8 M K C Y 47 Con- , Con- 49 [Vol. 21:335 6-APR-09 12:15 Rasul Seq: 8 Seq: anamo Bay, Cuba. If the detainees “are being If the detainees 46 unknown . DTA at § 2241. The DTA limited the juris- Congress believed that the DTA Congress believed that the See 51 See id PACE INT’L L. REV. If the detainee was either currently in mili- If the detainee was either currently . appellate review to the United States Congress limited Id 50 Brief of Senators Graham and Kyl as Amicus Curiae Supporting Brief of Senators Graham and Kyl as Amicus , 542 U.S. at 487 (Kennedy, J., concurring). The DTA states that “no court, justice, or judge shall that “no court, justice, or judge The DTA states Detainee Treatment Act of 2005, 28 U.S.C.A §Detainee Treatment Act of 2005, 28 U.S.C.A 2241 (2005) [hereinafter 48 . . . at 487-88 (Kennedy, J., concurring). see also DTA at § 2241(e)(1). Id Id Rasul Id See In response to the Supreme Court’s decision in Supreme Court’s decision in In response to the 49 50 51 46 47 48 diction of federal courts by providing for limited review of Combatant Status diction of federal courts by providing Review Tribunals. “DTA”]; Court of Appeals for the District of Columbia Circuit.Court of Appeals for the District of Columbia With regard to evidentiary in issues, Congress directed the D.C. Circuit to allow for a rebuttable presumption favor of the government’s evidence. the Combatant Status Review Tribunal, the In burden of proof is a “preponderance of evidence” rather than the stricter standard of “beyond a reasonable doubt.” 342 circum- “into the general first inquire the Court must method, has the the Court to determine whether of the detention stances after con- to grant relief petition and to entertain the authority presented.” all of the facts sidering \\server05\productn\P\PIR\21-1\PIR110.txt have jurisdiction to hear or consider ‘an application for the writ to hear or consider ‘an application have jurisdiction detained’” filed by or on behalf of an alien of habeas corpus by of Defense at Guant´the Department held indefinitely, and without benefit of any legal proceeding to of any legal proceeding benefit and without held indefinitely, have a duty to status,” then the federal courts determine their necessity out- to ensure that the military hear these petitions individual. of imprisoning an innocent weighs the dangers had the “immediate effect, upon enactment, of repealing federal had the “immediate effect, upon habeas actions yet to be filed jurisdiction not just over detainee pending in any federal court but also over any such actions then Respondents, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05-184), 2006 WL Respondents, Hamdan v. Rumsfeld, 126 481426.of 2005 provided military procedures for de- The Detainee Treatment Act termining the status of detainees. gress also sought to prevent any detainee from filing an action to prevent any detainee from gress also sought agents relating to any aspect of “against the United States or its the detention.” tary custody or had been determined by the United States tary custody or had been determined of Columbia to have been prop- Court of Appeals for the District then the Act prevented erly detained as an enemy combatant, having jurisdiction to hear the the United States’ courts from foreign detainees’ claims. gress passed the Detainee Treatment Act of 2005 (hereinafter Detainee Treatment Act of gress passed the “DTA”). https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 177 Side B 04/08/2009 15:17:04 B 04/08/2009 177 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 178 Side A 04/08/2009 15:17:04 9 58 57 343 The The 64 63 6-APR-09 12:15 Hamdan v. “In November ´ ANAMO BAY ANAMO 56 Seq: 9 Seq: The District Court 62 “Second, Hamden contends, 61 unknown “First, neither congressional Act “First, neither congressional . 60 Id 54 Hamdan objected to the military commission Hamdan objected to the military Therefore, Congress stated that the Supreme stated that the Congress Therefore, 59 “Hamdan, a Yemeni national, is in custody at an national, is in custody “Hamdan, a Yemeni , 548 U.S. at 566. , 548 U.S. at 567. 53 . 55 . Citing general statutory construction principles, Con- construction general statutory Citing . at 566. . . . at 567. . of inter- Hamdan argued that the crime of conspiracy is not a violation . . . at 558-60. . at 557. WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT 52 Id Id Hamdan Id Id Id Id Id Hamdan Hamdan v. Rumsfeld, 548 U.S. 557, 574 (2006). Hamdan v. Rumsfeld, 548 U.S. 557, 574 See id Id Id In 2006, Salim Ahmed Hamdan challenged the constitu- Ahmed Hamdan challenged In 2006, Salim 57 58 59 60 61 62 63 64 52 53 54 55 56 anamo Bay detainees. anamo Bay M K Rumsfeld tionality of the Detainee Treatment Act of 2005 in Detainee Treatment Act of 2005 tionality of the American prison in Guant´anamo Bay, Cuba.” Bay, in Guant´anamo American prison “Over a year later, former President Bush deemed him eligible former President Bush deemed “Over a year later, crimes.” commission for then-unspecified for trial by military charged with one had passed, Hamdan was “After another year . . . offenses triable by military count of conspiracy ‘to commit commission.’” 2009] . . . .” \\server05\productn\P\PIR\21-1\PIR110.txt for two principle reasons. national law or the law of war. granted Hamdan’s request for a writ of habeas corpus. granted Hamdan’s request for gress believed that the language in the DTA was clear and un- DTA was clear language in the that the gress believed ambiguous. Court lacked jurisdiction to hear the habeas petitions of Guan- petitions to hear the habeas jurisdiction Court lacked t´ 2001, during hostilities between the United States and the between the United 2001, during hostilities was cap- then governed Afghanistan), Hamdan Taliban (which U.S. military.” forces and turned over to the tured by militia the procedures that the President has adopted to try him violate the procedures that the President and international law, includ- the most basic tenets of military must be permitted to see ing the principle that the defendant him.” and hear the evidence against nor the common law of war supports trial by this commission nor the common law of war supports .” for the crime of conspiracy . . . Court of Appeals for the District of Columbia reversed. Court of Appeals for the District Court of Appeals “recogniz[ed] . . . that trial by military commis- Court of Appeals “recogniz[ed] raising important questions sion is an extraordinary measure C Y 26570_pir_21-1 Sheet No. 178 Side A 04/08/2009 15:17:04 A 04/08/2009 178 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 178 Side B 04/08/2009 15:17:04 10 M K C Y 65 66 The 69 In cer- 70 73 [Vol. 21:335 6-APR-09 12:15 Seq: 10 Seq: held that the military commis- the military held that unknown Hamdan Quirin, 317 U.S. 1, 19 (1942). PACE INT’L L. REV. , 548 U.S. at 567. , 548 U.S. at 587-90. 72 The Supreme Court determined that the DTA did not determined that the DTA The Supreme Court see also Ex Parte By applying a “normal rules of construction” approach “normal rules of construction” By applying a .; . at 575. . at 575-76. . at 576-84. . at 589 (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 . . at 596-97. A military commission may not provide an adequate A military commission may 67 68 Id Hamdan Id Id Id Id Hamdan Id Id 71 The Supreme Court also expressed concern about the alter- The Supreme Court also expressed Hamdan also objected to the DTA on constitutional grounds the DTA on constitutional also objected to Hamdan 65 66 67 68 69 70 71 72 73 arguably . . . without any basis in law and operates free from arguably . . . without any basis by Congress . . . intended many of the procedural rules prescribed ensure the reliability of any to safeguard the accused and conviction. native method offered by Congress to address Hamdan’s peti- native method offered by Congress tion. citing Congress’ lack of “authority to impinge upon [the Su- lack of “authority to impinge citing Congress’ in habeas appellate jurisdiction, particularly preme Court’s] cases.” The Court also expressed its view that the role of military com- The Court also expressed its view one—tomissions is “primarily a factfinding . . . determine the law of war.” whether the defendant has violated 344 structure.” in our constitutional balance of powers about the Court in The Supreme \\server05\productn\P\PIR\21-1\PIR110.txt apply to pending writs of habeas corpus filed before the Act took writs of habeas corpus filed before apply to pending effect. (1996)). to interpreting the retroactive effect of the Act, the Supreme the retroactive effect of the Act, to interpreting for the Act to ap- that Congress did not intend Court reasoned filed. corpus that were previously ply to writs of habeas Court also determined that “the Government has identified no that “the Government Court also determined would permit the countervailing interest’ that other ‘important general ‘duty to exercise the federal courts to depart from their them by Congress.’”jurisdiction that is conferred upon tain cases, the United States government does not actually tain cases, the United States crimes, but rather holds them charge some detainees with war their alleged terrorist connec- pending an investigation into sion “lacks power to proceed because its structure and proce- its structure and because power to proceed sion “lacks Geneva Conventions.” UCMJ and the both the dures violate place for redress because the commission is: place for redress because the commission https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 178 Side B 04/08/2009 15:17:04 B 04/08/2009 178 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 179 Side A 04/08/2009 15:17:04 11 77 In 345 76 75 in unlaw- 831, 841 (rev. 6-APR-09 12:15 anamo Bay 80 ´ ANAMO BAY ANAMO , 548 U.S. 557 (in both stated the limited RECEDENTS Seq: 11 Seq: P overt acts, i.e. AW AND Hamdan L see also Hamdan The Court stated: unknown 79 ILITARY , M case, the Court determined that a mili- Court determined case, the Since the government had failed to even Since the government had failed INTHROP , 542 U.S. 466; . 81 Id It appeared to the Court that the conspiracy It appeared to the Court that “At a minimum, the Government must make “At a minimum, 82 78 Hamdan , 548 U.S. at 604. , 548 U.S. at 600. at 602-03. . In the . . at 603. the defen- The Fourth Hague Convention of 1907 required that . (quoting 1 W. W . at 606-07. WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT See id See id. Id Id Hamdan Id Id See generally Rasul Hamdan 74 The Supreme Court also discussed the concept of the law of also discussed the concept The Supreme Court 76 77 78 79 80 81 82 74 75 [I]t is not enough to intend to violate the law of war and commit [I]t is not enough to intend to violate intention unless the overt acts overt acts in furtherance of that the law of war or constitute either are themselves offenses against as an attempt. steps sufficiently substantial to qualify M K 2d ed. 1920)). of these cases, the government held these detainees indefinitely without access to of these cases, the government held these members). counsel or the ability to contact family charge by itself did not constitute a violation of the law of war or charge by itself did not constitute charge many of the foreign detainees held at Guant´charge many of the foreign detainees a military commission is not with crimes, Hamdan argued that his detainment and deter- the appropriate forum to evaluate mine his status. war and the role of international law in alien detention cases. of international law in alien war and the role Through its discussion, the Court in Through its discussion, commission should be re- “The jurisdiction of the military in stricted to cases of offence consisting 2009] tions. \\server05\productn\P\PIR\21-1\PIR110.txt dant charged with a law of war violation must possess some sort of control or au- dant charged with a law of war violation must possess some sort of control or thority over his troops. ful commissions or actual attempts to commit, and not in ful commissions or actual attempts intentions merely.” circumstances in which a military commission should be used to which a military commission circumstances in try a defendant. a substantial showing that the crime for which it seeks to try a that the crime for which a substantial showing to be an of- commission is acknowledged defendant by military law of war.” fense against the tary commission is improper because the crimes alleged against crimes alleged because the is improper tary commission war. of the laws of a violation did not constitute Hamdan such circumstances involving alien detainees, the Supreme detainees, the alien involving such circumstances determi- a proper States law requires that United Court stated to ensure that the writ of habeas corpus in order nation through fair manner. receive due process in a these foreign citizens C Y 26570_pir_21-1 Sheet No. 179 Side A 04/08/2009 15:17:04 A 04/08/2009 179 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 179 Side B 04/08/2009 15:17:04 12 M K C Y 88 85 [Vol. 21:335 6-APR-09 12:15 89 In the Nuremberg of an offense . . . .” of an offense Seq: 12 Seq: 92 , the Supreme Court , the Supreme Historically, the Supreme Historically, 83 ] is not a recognized violation of completion unknown constituting war crimes are the constituting war The members of the Nuremberg 93 Ex parte Quirin Ex parte Quirin, 317 U.S. 1 (1942). Hamdan vert acts ] Both of these crimes require “actual partic- Both of these crimes require “actual O 91 “[ PACE INT’L L. REV. “[T]he only ‘conspiracy’ crimes that have been “[T]he only ‘conspiracy’ crimes 87 90 , 548 U.S. at 606. , 548 U.S. at 610. By effectively excluding conspiracy as a triable of- conspiracy as a triable By effectively excluding . at 607-11. 86 . at 606-07. . at 607. . at 608. . at 610. . at 610 (citing 1 Trial of the Major War Criminals Before the Interna- . . at 607. 84 Hamdan Id Id Id See id Id Hamdan Id Id Id See generally Ex Parte When considering these types of cases, it is important for When considering these types In the 1942 case, In the 85 86 87 88 89 90 91 92 93 83 84 fense in military commissions, the Court actually complied with commissions, the Court actually fense in military commissions. behind establishing military Congress’ rationale swift justice, were formed “to dispense Military commissions captured on of execution, to illegal belligerents often in the form the battlefield.” ipation in a ‘concrete plan to wage war.’”ipation in a ‘concrete plan to wage federal courts to consider international law sources to under- federal courts to consider international to the relevant facts of each stand the law of war as applied case. In fact, “international sources confirm that the crime [of conspiracy] charged [in “placed special emphasis on the special emphasis “placed Therefore, where a detainee is not charged with an overt act in Therefore, where a detainee is military commission is not the violation of a law of war, a petitions. proper forum to hear habeas corpus 346 law. of international a violation of a law of war “that there can be no violation The Court held – without the triable by military commission at least not one – ‘hostile and war- of or attempt to commit a actual commission like act.’” \\server05\productn\P\PIR\21-1\PIR110.txt only proper subject” that military commissions should handle. that military commissions only proper subject” tional Military Tribunal: Nuremberg, Nov. 14, 1945 – Oct. 1, 1946, p. 225 (1947)). tional Military Tribunal: Nuremberg, Nov. 14, 1945 – the law of war.” Court has failed to recognize conspiracy as a violation of the law as a violation conspiracy failed to recognize Court has of war. recognized by international war crimes tribunals . . . are recognized by international and common plan to wage ag- conspiracy to commit genocide gressive war . . . .” trials, Hitler’s most senior associates were convicted of “conspir- trials, Hitler’s most senior associates acy to commit war crimes.” https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 179 Side B 04/08/2009 15:17:04 B 04/08/2009 179 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 180 Side A 04/08/2009 15:17:04 13 ER- 347 : A P Hamdan RIALS 6-APR-09 12:15 T ´ ANAMO BAY ANAMO UREMBERG Seq: 13 Seq: N 101 As “long as the presiding of- 99 unknown Even if a presiding officer deter- NATOMY OF THE 96 , A 100 AYLOR The Court held that the conspiracy The Court held evidence that, in the opinion of the presid- evidence that, 95 any , 548 U.S. at 611-12. , 548 U.S. at 614-15. 36 (1992)). The evidentiary requirements state that “the accused The evidentiary requirements By relying on international law, the Court in law, the Court on international By relying “Under this test, not only is testimonial hearsay and “Under this test, not only is 98 . at 611 (citing T. T . at 612. . at 614. . . . EMOIR anamo Bay. WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT 94 Id Hamdan Id Id Id Id Id Hamdan 97 M In military commission trials, “a two-thirds vote will suffice In military commission trials, “a The Court further stated that “[a]nother striking feature of stated that “[a]nother striking The Court further 94 95 96 97 98 99 100 101 M K evidence obtained through coercion fully admissible, but neither evidence obtained through coercion written statements need be live testimony nor witnesses’ sworn.” for both a verdict of guilty and for imposition of any sentence for both a verdict of guilty and the rules governing Hamdan’s commission is that they permit Hamdan’s commission is the rules governing the admission of and his civilian counsel may be denied access to evidence in the and his civilian counsel may be form of ‘protected information.’” 2009] of as a violation of conspiracy “objected to recognition Tribunal concept Anglo-American that ‘[t]he of war on the ground the law and ar- legal systems part of European was not of conspiracy laws of recognized of the internationally an element guably not war.’” military commis- support for its holding that provided further held at conspiracy cases of alien detainees sions cannot try Guant´ \\server05\productn\P\PIR\21-1\PIR110.txt ficer concludes that the evidence is ‘probative’ . . . and that its ficer concludes that the evidence knowledge would not ‘result in admission without the accused’s the denial of a full and fair trial,’” a military commission can States federal court would never accept evidence that a United admit into a criminal trial. charges’ “shortcomings are not merely formal, but are indicative are not merely formal, charges’ “shortcomings to satisfy the on the Executive’s part here of a broader inability of military com- . . . for establishment most basic precondition necessity.” missions: military ing officer, ‘would have probative value to a reasonable per- ing officer, ‘would have probative son.’” mines “that evidence ‘would not have probative value to a rea- mines “that evidence ‘would not sonable person,’” his decision “may be overridden by a majority of the other commission members.” SONAL C Y 26570_pir_21-1 Sheet No. 180 Side A 04/08/2009 15:17:04 A 04/08/2009 180 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 180 Side B 04/08/2009 15:17:04 14 M K C Y 108 The 110 [Vol. 21:335 6-APR-09 12:15 The Presi- By so hold- 104 112 Seq: 14 Seq: Hamdan claimed that Hamdan claimed 105 107 . Id 109 unknown Hamdan challenged the lack of Hamdan challenged 106 case, Hamdan, on behalf of the alien de- case, Hamdan, anamo Bay, objected to the procedures set anamo Bay, objected PACE INT’L L. REV. , 548 U.S. at 627-33. If the case is appealed, the appellate “panel will the appellate “panel is appealed, If the case The Circuit Court “accepted the Executive’s as- The Circuit Court “accepted , 548 U.S. at 615. 102 Hamdan . . 111 “The President then, unless he has delegated the then, unless he has delegated “The President , the Court discussed the Geneva Conventions. , the Court discussed the Geneva . . . . at 616. . at 628. . . at 615. is taken to a three-member review panel composed Any appeal 103 Id Id Id Hamdan Id See id See id See Hamdan Id Id Id In the Court’s decision in In the final part of the Supreme 103 104 105 106 107 108 109 110 111 112 102 tainees at Guant´ forth for these commissions. task to the Secretary, makes the ‘final decision.’”task to the Secretary, these procedural rules prevent him from reviewing evidence rules prevent him from reviewing these procedural for a fair hearing. against him and inhibit his opportunity Hamdan believed that these commissions eliminate the adver- Hamdan believed that these commissions the best forum to unravel sary system, which arguably provides the truth in a complicated trial. Hamdan 348 a unani- which requires imposition of death (the not including mous vote).” \\server05\productn\P\PIR\21-1\PIR110.txt make its recommendations to the Secretary of Defense” who of Defense” to the Secretary recommendations make its the re- or forward further proceedings remand for “can either dispo- as to final his recommendation President with cord to the sition.” of military officers and designated by the Secretary of Defense, only one member of of military officers and designated by the which need have experience as a judge. “The review panel is directed to ‘disregard not materially have affected the out- any variance from procedures . . . that would come of the trial before the Commission.’” D.C. Circuit Court of Appeals held “that Hamdan could not in- D.C. Circuit Court of Appeals at all” because the Conventions voke the Geneva Conventions during which Hamdan was did not “apply to the armed conflict captured.” dent “may change the commission’s findings or sentence only in the commission’s findings or dent “may change to the accused.” a manner favorable evidentiary and judicial protections for defendants tried under judicial protections for defendants evidentiary and commissions. the rules of military sertions that Hamdan was captured in connection with the sertions that Hamdan was captured and that that war is distinct United States’ war with al Qaeda in Afghanistan.” from the war with the Taliban https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 180 Side B 04/08/2009 15:17:04 B 04/08/2009 180 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 181 Side A 04/08/2009 15:17:04 15 by , 349 i.e. 6-APR-09 12:15 117 The Circuit hors de combat 113 ´ ANAMO BAY ANAMO White House Memoran- Seq: 15 Seq: regularly constituted See Based on the Geneva 116 118 unknown . Id , 548 U.S. at 629. Former President Bush stated that the Geneva , 548 U.S. at 629 (emphasis in original). as Article 3 is known The Circuit Court held: The Circuit Court The Government argued that “Article 2 of these Con- argued that “Article 2 of these The Government 115 . at 630 (emphasis added). “members of This provision also protects . . . at 628-29. 114 WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT Hamdan Hamdan Id Id Id Id affording all the judicial guarantees which are recognized affording all the judicial guarantees The Circuit Court stated that the provisions in Article 3 The Circuit Court stated that 116 117 118 113 114 115 Since Hamdan was captured and detained incident to the conflict captured and detained incident Since Hamdan was and since al not the conflict with the Taliban, with al Qaeda and Party’ is not a ‘High Contracting Qaeda, unlike Afghanistan, – character occurring in the ter- in a conflict ‘not of an international Parties, each Party to the ritory of one of the High Contracting . certain provisions protecting conflict shall be bound to’ . . the hostilities . . . . ‘[p]ersons taking no active part in a signatory of the Conventions, the protections of those Conven- Conventions, the protections of a signatory of the applicable to Hamdan. tions are not . . . M K . . . detention.” court dum, Humane Treatment of Taliban and al Qaeda Detainees 2 (Feb. 7, 2002), http://www.justicescholars.org/pegc/archive/White_House/bush_memo_20020207_ ed.pdf (last visited Feb. 24, 2009). ventions renders the full protections” only to cases “‘of the full protections” only to cases ventions renders declared arise between two armed conflict which may war or of any other High Contracting Parties’”or more of the Con- to the Geneva ventions. Conventions apply to the conflict with the Taliban. Conventions apply to the conflict with Common Article 3 because it appears in every Geneva convention. as indispensable by civilized people.” Another provision prohibits sentencings and executionsAnother provision prohibits sentencings “with- by a out previous judgment pronounced However, Article 3 provides that: 2009] al Qaeda the war with “reasoned that Circuit Court ing, the Geneva Conventions.” the reach of the evades \\server05\productn\P\PIR\21-1\PIR110.txt armed forces who have laid down their arms and those placed Conventions, it appears that the Circuit Court strayed from the Conventions, it appears that the binding international law. “do[ not apply to Hamdan because the conflict with al Qaeda ] Court agreed with the Government that “[t]he conflict with al “[t]he conflict Government that with the Court agreed afforded full protections to which the not . . . a conflict Qaeda is be af- should Geneva Conventions” under the 1949 detainees forded. C Y 26570_pir_21-1 Sheet No. 181 Side A 04/08/2009 15:17:04 A 04/08/2009 181 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 181 Side B 04/08/2009 15:17:04 16 M K C Y [Vol. 21:335 6-APR-09 12:15 Common Ar- Common 120 Furthermore, the The proposed mili- Seq: 16 Seq: 124 126 Therefore, the Court deter- The Supreme Court deter- Court The Supreme 122 unknown 119 To meet those principles, the court To meet those principles, the 125 Int’l Comm. Of Red Cross, Commentary III Geneva PACE INT’L L. REV. 121 See also , 548 U.S. at 630. , 548 U.S. at 631-32. 123 . Rumsfeld, 415 F.3d 33, 41 (D.C. Cir. 2005)). (citing Hamdan v. . . at 631. . at 632. for a par- Military commissions that are specifically constituted . . at 633. Id Hamdan Id Id Hamdan Id Id Id While the term ‘regularly constituted court’ is not specifi- While the term ‘regularly constituted 119 120 121 122 123 124 125 126 some minimal protection, falling short of full protection under the falling short of full protection some minimal protection, a signatory individuals associated with neither Conventions, to the territory . . . involved in a conflict ‘in nor even a nonsignatory of’ a signatory. Convention Relative to the Treatment of Prisoners of War 35 (1987). cally defined in either Common Article 3 or its accompanying cally defined in either Common Convention “defined ‘regularly commentary, the Fourth Geneva ‘ordinary military courts’ and constituted’ tribunals to include tribunals.’”‘definitely exclud[e] all special must afford all “of those trial protections that have been recog- must afford all “of those trial protections law.” nized by customary international Since the official commentaries encourage a broad reading of commentaries encourage a Since the official specifically to 3 in order to provide protections Common Article the Court not of an international character,” rebels in a “conflict conflict between Article 3 is applicable to the held that Common the United States and al Qaeda. 350 not of as a ‘conflict does not qualify in scope’ being ‘international character.’”an international \\server05\productn\P\PIR\21-1\PIR110.txt mined that the Circuit Court’s reasoning was erroneous because was erroneous Court’s reasoning the Circuit mined that here in character’ is used international ‘conflict of an “[t]he term nations.” between to a conflict contradistinction mined that Common Article 3 “require[ed] that Hamdan be mined that Common Article court affording all the judicial tried by a ‘regularly constituted as indispensable by civilized guarantees which are recognized peoples.’” ticular trial do not meet the requirements of a regularly constituted court. Fourth Geneva Convention requires that ordinary military Fourth Geneva Convention requires principles governing the ad- courts must meet “the recognized ministration of justice.” ticle 3 affords: tary commissions “deviate from those [principles] governing tary commissions “deviate from by any evident practical courts-martial in ways not justified https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 181 Side B 04/08/2009 15:17:04 B 04/08/2009 181 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 182 Side A 04/08/2009 15:17:04 17 130 351 6-APR-09 12:15 HARTER ´ ANAMO BAY ANAMO U.N. C Seq: 17 Seq: ACTICS T , “to reaffirm faith in funda- ETWEEN THE unknown B inter alia NTERROGATION ONFLICTS The Charter was also drafted “to establish The Charter was also drafted The member states of the United Nations The member states of the United C U.S. I 131 Even though the Court acknowledged the Gov- Even though the HE 132 , 548 U.S. at 635. AND 128 127 . III: T In so holding, the Court determined that the military the Court determined that the In so holding, Some of the main purposes of the United Nations are to Some of the main purposes of . . . in 1945, there When the United Nations was originally established . at 634. WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT Id See Hamdan See id U.N. Charter Preamble. Id Id Id 129 ART The United Nations Charter formed the United Nations. The United Nations Charter The Court also stated that a military commission may elim- may a military commission also stated that The Court 133 P 128 129 130 131 132 133 127 M K commissions do not meet the requirements that the United not meet the requirements commissions do Conventions. to adhere to under the Geneva States is bound The Charter was created, inate the accused’s ability to be present at trial. to be present accused’s ability inate the this mili- Since Geneva to the stands inapposite rule tary commission the Court con- customary international law, Conventions and conduct or con- accused must, absent disruptive cluded that “an to the evidence for his trial and must be privy sent, be present against him.” 2009] requisite fail to afford the at least, . and for that reason, need . . guarantees.” \\server05\productn\P\PIR\21-1\PIR110.txt determined that there is a need “to practice tolerance and live determined that there is a need as good neighbours, and to together in peace with one another international peace and secur- unite our strength to maintain ity.” were only 51 member states to the United Nations. As of January 11, 2008, the United Nations has 192 member states with its most recent addition of Montene- gro on June 28, 2006. (last United Nations, http://www.un.org/members/list.shtml visited Feb. 24, 2009). conditions under which justice and respect for the obligations conditions under which justice sources of international law can arising from treaties and other be maintained.” mental human rights, in the dignity and worth of the human mental human rights, in the dignity men and women and of nations person, in the equal rights of large and small.” ernment’s national security interest in “denying Hamdan access security interest in “denying ernment’s national that “informa- information,” the Court held to certain sensitive be disclosed to a person of a crime must tion used to convict him.” C Y 26570_pir_21-1 Sheet No. 182 Side A 04/08/2009 15:17:04 A 04/08/2009 182 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 182 Side B 04/08/2009 15:17:04 18 M K C Y 135 [Vol. 21:335 6-APR-09 12:15 141 The United States, 136 Seq: 18 Seq: anamo Bay were, in 140 137 note 31. anamo Bay. unknown supra The Department of Justice issued Absent circumstances requiring a circumstances Absent 142 134 note 16. U.N. Charter art. 1. PACE INT’L L. REV. supra U.N. Charter; Geneva Convention Relative to the Treatment . art. VI, § 2. See also ONST . and the “Judges in every State shall be bound thereby in every State shall be bound and the “Judges Therefore, it appears that the United States must ad- Therefore, it appears that the Shane, Johnston, & Risen, . . . 138 Id See generally See Id See id U.N. Charter art. 51. U.N. Charter art. 103. Id U.S. C 139 On October 4, 2007, the New York Times published an arti- On October 4, 2007, the New York The United States must act in accordance with the U.N. with the act in accordance States must The United This Constitution, and the Laws of the United States which shall be made This Constitution, and the Laws of the United made, or which shall be made, in Pursuance thereof; and all Treaties shall be the supreme Law of the under the Authority of the United States, Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 139 140 141 142 134 135 136 137 138 In the event of a conflict between the obligations of the Members conflict between the obligations of In the event of a their obliga- under the present Charter and of the United Nations obligations other international agreement, their tions under any Charter shall prevail. under the present of Prisoners of War, here to the Charter’s goals of supporting fundamental human here to the Charter’s goals of peace. rights and fostering international cle regarding a secret United States Department of Justice re- cle regarding a secret United severe torture methods during port that sanctioned the use of against alleged terrorists. Charter and cannot make any treaty or international agree- make any treaty or international Charter and cannot with the U.N. Charter. ment that conflicts . . . .” state to act in self-defense, the U.N. Charter prohibits warfare prohibits the U.N. Charter act in self-defense, state to the action. recommends Security Counsel unless the Since the U.N. Charter is a treaty made under the authority of Charter is a treaty made under Since the U.N. Law of the the U.N. Charter is the “supreme the United States, Land” 352 peace, international rights, foster fundamental human promote warfare. and discourage \\server05\productn\P\PIR\21-1\PIR110.txt however, appears to deviate from the Charter through their however, appears to deviate treatment of detainees at Guant´ this report in February 2005, shortly after the Supreme Court this report in February 2005, have the authority to determine held that United States’ courts at Guant´whether the alleged terrorists https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 182 Side B 04/08/2009 15:17:04 B 04/08/2009 182 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 183 Side A 04/08/2009 15:17:04 19 147 353 Mr. 148 6-APR-09 12:15 ´ ANAMO BAY ANAMO Seq: 19 Seq: anamo Bay detainees will Mr. Alberto Gonzales, 145 unknown note 31. note 31. Officials stated that the docu- stated that Officials Contrary to this determination, Human Rights Watch, U.S.: Landmark Tor- Human Rights Watch, U.S.: Landmark 143 anamo Bay “fall within U.S. law and anamo Bay “fall within U.S. law 149 supra supra ee also 146 anamo detainees no legal recourse if they are, in fact, anamo Bay the ability to bring legal action seeking re- anamo Bay the ability to bring legal action Rasul v. Bush, 542 U.S. 466 (2004). The document “provided explicit authorization to explicit authorization “provided The document See also 144 . . . . WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT Shane, Johnston, & Risen, Id Id Shane, Johnston, & Risen, Id Id DTA at § 2241 (2005). S Despite Mr. Comey’s warnings and Congress’ attempt to- warnings and Congress’ Despite Mr. Comey’s lief from the use of torture or cruel and inhumane treatment. The amend- ment leaves Guant´ tortured or mistreated. The treatment of Guant´ [E]ven as the U.S. Congress has passed a prohibition against the use of [E]ven as the U.S. Congress has passed treatment [in the DTA], it is torture and cruel, inhuman, and degrading the judiciary’s ability to enforce set to adopt legislation that would strip . . . would deny the . . . the ban . . . . [t]he Graham-Leven Amendment detainees in Guant´ be shrouded in secrecy, placing detainees at risk for future abuse. 148 149 143 144 145 146 147 seldom resisted pressure from Vice President Dick Cheney . . . to seldom resisted pressure from Vice effective in safeguarding Ameri- endorse policies that they saw as . M K barrage terror suspects with a combination of painful physical of painful with a combination terror suspects barrage simulated tactics, including head-slapping, and psychological frigid temperatures.” drowning and ture Ban Undercut (2005), http://hrw.org/english/docs/2005/12/16/usdom12311. htm. ward outlawing cruel, inhuman, and degrading treatment, cruel, inhuman, and degrading ward outlawing Id the Justice Department issued another secret opinion, one most issued another secret the Justice Department which declared that none of lawmakers did not know existed, violated that standard. the C.I.A. interrogation methods 2009] imprisoned. fact, rightfully \\server05\productn\P\PIR\21-1\PIR110.txt lower level members of the Justice Department criticized Mr. lower level members of the Justice Gonzales stating that he: ment was “an expansive endorsement of the harshest interroga- of the harshest endorsement “an expansive ment was Central Intelligence used by the ever tion techniques Agency.” former United States Attorney General, “approved the legal States Attorney General, “approved former United B. Comey, the . . over the objections of James memorandum . at the depart- general . . . who told colleagues deputy attorney the world eventu- would all be ‘ashamed’ when ment that they it.” ally learned of international agreements.” Gonzales, along with the White House, believed that the inter- Gonzales, along with the White rogation practices at Guant´ C Y 26570_pir_21-1 Sheet No. 183 Side A 04/08/2009 15:17:04 A 04/08/2009 183 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 183 Side B 04/08/2009 15:17:04 20 M K C Y 154 [Vol. 21:335 6-APR-09 12:15 . Id . This arbitrary and This arbitrary ONST Seq: 20 Seq: 151 U.S. C unknown note 31. note 31. see generally supra supra “Mr. Yoo’s memorandum said no inter- “Mr. Yoo’s memorandum said . “He served as general counsel of the U.S. Senate Id 156 . Id PACE INT’L L. REV. U.N. Charter; John Yoo – Biography, http://www.law.berkeley.edu/faculty/ John Yoo – of the Office of Legal Counsel of the Department of the Office of Legal Counsel 152 In fact, “[i]nterrogators were worried that even In fact, “[i]nterrogators were 155 150 153 See also . . turned his agency into an arm of the Bush “Critics say Mr. Gonzales . legal counsel at the C.I.A. . (quoting Paul C. Kelbaugh, deputy Id Shane, Johnston & Risen, Id Id See generally Shane, Johnston & Risen, Id “While [former] President Bush and C.I.A. officials would President Bush and C.I.A. officials “While [former] 155 156 150 151 152 153 154 cans, even though the practices brought the condemnation of the condemnation brought though the practices cans, even in and Democrats rights groups human other governments, Congress. Judiciary Committee from 1995-96, where he advised on constitutional issues and judicial nominations.” yooj/ (last visited Feb. 24, 2009). at the University of John Yoo is a law professor California at Berkeley School of Law. “From 2001-03, he served as a deputy assis- of tant attorney general in the Office of Legal Counsel of the U.S. Department Justice, where he worked on issues involving foreign affairs, national security, and the separation of powers.” rogation practices were illegal unless they produced pain rogation practices were illegal approved techniques had such a painful, multiplying effect approved techniques had such cross the legal line . . . .” when combined that they might of Justice, the White House encouraged painful interrogation of Justice, the White House encouraged legal justification for even methods and “provided a sweeping the harshest tactics.” later insist that the harsh measures produced crucial intelli- the harsh measures produced later insist that and other ex- interrogators, psychologists gence, many veteran equally or more less coercive methods are perts say that effective.” However, as evidenced in the infamous “torture memo” written However, as evidenced in the infamous by John Yoo 354 adopted interrogation administration the Bush Furthermore, coercive detention and (including secret and practices policies previously de- that “the United States had interrogation) used by other countries.” nounced when \\server05\productn\P\PIR\21-1\PIR110.txt White House, undermining the department’s independence.” White House, undermining the department’s to December 2003.Counterterrorist Center from September Interrogators were interrogation methods.often unsure about what were proper Mr. Kelbaugh re- close calls that required consul- ceived numerous questions that “were sometimes tation with the Justice Department). random approach to developing rules regarding the detainment to developing rules regarding random approach principles of the of prisoners contradicts the and treatment the United States Charter and the principles of United Nations Constitution. https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 183 Side B 04/08/2009 15:17:04 B 04/08/2009 183 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 184 Side A 04/08/2009 15:17:04 21 159 355 165 The letter 6-APR-09 12:15 164 Many officials ´ ANAMO BAY ANAMO 157 U.S.: Landmark Torture Seq: 21 Seq: As John D. Hutson As John 158 unknown note 31. . supra The former military members state The former military members Id Human Rights Watch, 163 In the letter, these former military mem- In the letter, See also . . Id note 147. 162 supra , If the United States fails to develop proper proce- States fails to develop proper If the United . at 3. The letter recommends certain criteria that the commission John D. Hutson – Biography, http://www.piercelaw.edu/johnhutson/ John D. Hutson – 161 160 . at 2. . regarding the The letter states that the national and international laws . . WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT Id Id See id Id See generally id See Shane, Johnston & Risen, Id to the President (Sept. 4, 2007), John D. Hutson, et al., An Open Letter On September 4, 2007, Hutson, along with seven other re- 4, 2007, Hutson, along with seven On September 163 164 165 157 158 159 160 161 162 M K Ban Undercut (last visited Feb. 24, 2009). John Hutson served as Judge Advocate General of the United States Navy. bers state that the information gained through torture is often the information gained through bers state that the torture methods “jeopardize[“unreliable” and ] the United to promote democracy and States’ moral and practical authority human rights abroad.” must consider when evaluating the allegations of torture and arbitrary detention. The first criteria that the former military members recommend is a bipartisan commission that contains “recognized experts of unimpeachable credibility in mili- tired military Generals and Admirals, wrote an open letter to and Admirals, wrote tired military Generals President Bush. 2009] or ‘even death.’” to organ failure equivalent for the do a little of this they can you tell someone said, “[I]f for the country’s some people will do a lot of it country’s good, better.” \\server05\productn\P\PIR\21-1\PIR110.txt that torture “seriously undermines the United States’ ability to that torture “seriously undermines global community—a‘win the hearts and minds’ of the goal es- the long term.” sential to defeating terrorism over believed that Mr. Yoo’s conclusion evinced a lack of understand- conclusion evinced that Mr. Yoo’s believed treatment relating to the law relevant international ing of the custody. in United States of prisoners detainment and treatment of prisoners were designed “for critical policy reasons in detainment and treatment of prisoners were designed “for critical policy reasons the United States’ self-interest.” dures to address prisoners’ torture then “official American ac- prisoners’ torture then “official dures to address Americans in the treatment could endanger ceptance of such future.” http://www.humanrightsfirst.org/us_law/PDF/detainees/Military_Leaders_Letter_ President_Bush_FINAL.pdf. also promotes an open investigation into the detention policy also promotes an open investigation from different branches of the that includes representatives a policy in accordance with government in order to develop law including the Geneva Con- United States and international of Prisoners of War. vention Relative to the Treatment C Y 26570_pir_21-1 Sheet No. 184 Side A 04/08/2009 15:17:04 A 04/08/2009 184 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 184 Side B 04/08/2009 15:17:04 22 M K C Y . These Id [Vol. 21:335 6-APR-09 12:15 . The second If a prisoner The parties re- The parties 171 169 166 Seq: 22 Seq: of the Convention de- of the Convention See generally id 168 unknown Article 4 . Id 167 170 . PACE INT’L L. REV. , access to medical treatment, appropriate rations , access to medical . Geneva Convention Relative to the Treatment of Prisoners of War, Geneva Convention Relative to the Treatment . at art. 4. a prisoner Article 4 demonstrates the circumstances in which . at art. 4. . See id Id Id See generally id Id See inter alia note 16. The first category includes “[m]embers of the armed forces includes “[m]embers of the The first category After the United Nations Charter was formed in 1945, the formed in 1945, Charter was United Nations After the 167 168 169 170 171 166 Members of other militias and members of other volunteer corps, Members of other militias and members movements, belonging to a including those of organized resistance in or outside their own terri- Party to the conflict and operating provided that such militias tory, even if this territory is occupied, organized resistance move- or volunteer corps, including such (a) that of being com- ments, fulfill the following conditions: for his subordinates; (b) that of manded by a person responsible at a distance; (c) that having a fixed distinctive sign recognizable former military members want to ensure that the international community under- former military members want to ensure a full and complete inquiry into the stands that the United States has undergone torture allegations. If the United States military promotes torture of their prison- captured United States military mem- ers of war, then there is the possibility that countries. bers may be subject to torture in other of a Party to the conflict as well as members of militias or volun- of a Party to the conflict as well armed forces.” teer corps forming part of such parties of the first Geneva Convention Relative to the Treat- Relative to the Convention of the first Geneva parties in revise their principles sought to Prisoners in 1929 ment of Nations Charter. with the United accordance supra tary and intelligence operations, human rights and international law.” tary and intelligence operations, human 356 \\server05\productn\P\PIR\21-1\PIR110.txt is entitled to prisoner of war status.will provide the prisoner Such determinations the with certain protections and rights under the Geneva Convention Relative to Treatment of Prisoners of War. category includes: fines prisoners of war in six different categories. fines prisoners of food, clothing, humane treatment, and the ability to practice humane treatment, and the of food, clothing, their religious beliefs. convened at the Geneva Convention Relative to the Treatment Convention Relative at the Geneva convened the ideals in 1949 in an attempt to promote of Prisoners of War those princi- Nations Charter by applying found in the United of war. ples to prisoners of war falls under one of the following categories, the prisoner one of the following categories, of war falls under includ- to the protections under the Convention shall be entitled ing, https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 184 Side B 04/08/2009 15:17:04 B 04/08/2009 184 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 185 Side A 04/08/2009 15:17:04 23 a- 174 178 357 6-APR-09 12:15 172 anamo Bay. ´ ANAMO BAY ANAMO Seq: 23 Seq: The fourth, fifth, and sixth The fourth, 173 179 unknown Therefore, the United States argues Therefore, the United States L. 891, 892 (2002). 177 L ’ The Taliban, Al Qaeda, and the Determination of Illegal NT . J. I M . . at 629. 175 , 96 A Geneva Convention Relative to the Treatment of Prisoners of War, Geneva Convention Relative to the Treatment Hamdan v. Rumsfeld, 548 U.S. 577, 629 (2006). . . at art. 5. . at 628-29. WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT See Id See id Id See Id See id George H. Aldrich, Since both al Qaeda and the Taliban armed forces did not Since both al Qaeda and the Taliban note 16, at art. 4. In their attempt to deny prisoner of war protections under In their attempt to deny prisoner Article 5 of the Geneva Convention Relative to the Treat- Geneva Convention Relative Article 5 of the 172 173 174 175 176 177 178 179 [s]hould any doubt arise as to whether persons, having committed arise as to whether persons, having [s]hould any doubt of the enemy, and having fallen into the hands a belligerent act 4, such per- categories enumerated in Article belong to any of the until the protection of the present Convention sons shall enjoy a competent status has been determined by such time as their tribunal. of carrying arms openly; [and] (d) that of conducting their opera- conducting their [and] (d) that of arms openly; of carrying of war. the laws and customs accordance with tions in 176 M K Combatants sign the Geneva Convention Relative to the Treatment of Pris- sign the Geneva Convention Relative does not consider them a proper oners of War, the United States Party to the conflict. that prisoners of war from al Qaeda and the Taliban cannot that prisoners of war from al under category one. seek the protections of the Convention category 2, the United States argues that category 2 also does category 2, the United States or the Taliban because these not apply to either al Qaeda by a person responsible for his groups are not (a) commanded fixed distinctive sign recogniza- subordinates; (b) do not have a ment of Prisoners of War states that: ment of Prisoners supra namo Bay do not fall into the categories defined in Article 4 be- namo Bay do not fall into the categories the requirements of Article cause the detainees failed to meet 4. believes that since Afghanistan Further, the United States also forces, the Taliban cannot seek does not have an official armed protections under category one. The United States’ position is that the detainees at Guant´The United States’ position is 2009] forces of regular armed “[m]embers category includes The third not rec- or an authority to a government allegiance who profess Power.” by the Detaining ognized \\server05\productn\P\PIR\21-1\PIR110.txt categories do not apply to the detainees at Guant´categories do not C Y 26570_pir_21-1 Sheet No. 185 Side A 04/08/2009 15:17:04 A 04/08/2009 185 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 185 Side B 04/08/2009 15:17:04 24 M K C Y supra http://www. [Vol. 21:335 6-APR-09 12:15 Prosper states 187 available at Seq: 24 Seq: Category 3, however, ap- Category 3, however, 182 anamo Bay to obtain protec- anamo Bay to 186 unknown If we assume that the United 185 Geneva Convention Relative to the Treatment of Geneva Convention Relative to the Treatment note 16, art. 4 § A(2). See also . PACE INT’L L. REV. note 179, at 892. , 548 U.S. at 628. The United States claims that the militia mem- that the militia States claims The United supra supra 180 The United States considers this category inapplica- The United States Even though the Taliban had effective control over Even though the Taliban had Remarks at Chatham House from Pierre-Richard Prosper, U.S. Ambas- 183 184 . . at 894. . at 898 n.14. See Hamdan See generally id Id Geneva Convention Relative to the Treatment of Prisoners of War, Aldrich, Id See Id In support of the United States’ decision to deny protec- In support of the United States’ The United States uses the same rationale to deny protec- uses the same rationale to The United States 181 182 183 184 185 186 187 180 181 Prisoners of War, bers of the Taliban and al Qaeda fail to follow the laws of war to follow the laws al Qaeda fail Taliban and bers of the of Article in category 2 set forth meet the standards and do not 4. sador-at-Large for War Crimes Issues (Feb. 20, 2002), tions, the United States Department of State cites, on its web- tions, the United States Department Prosper who is the site, the report of Pierre-Richard Crimes Issues. Ambassador at Large for War tions under category 3 of Article 4. tions under category note 16, art. 4, § A (3). 358 (d) do not openly; and not carry arms distance; (c) do ble at a and cus- with the laws in accordance their operations conduct war. toms of \\server05\productn\P\PIR\21-1\PIR110.txt Afghanistan, the Taliban do not receive prisoner of war protec- Afghanistan, the Taliban do not tions in American prisons. States is correct in its argument that al Qaeda and the Taliban States is correct in its argument of the Geneva Convention, the do not fall under the categories United States deny prisoner of question remains: why does the people captured in the course of war status and protections to which they are entitled to under an international conflict that international humanitarian law? that: pears to provide a possible argument for both al Qaeda and a possible argument for both pears to provide held at Guant´Taliban detainees Convention.tions under the 3, the detainees Under category that they are sufficient evidence to show must establish allegiance to a armed forces who profess “[m]embers of regular by the Detaining an authority not recognized government or Power.” ble because al Qaeda and the Taliban armed forces are not con- ble because al Qaeda and the Taliban as required under Article sidered “regular armed forces” 4(A)(3). https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 185 Side B 04/08/2009 15:17:04 B 04/08/2009 185 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 186 Side A 04/08/2009 15:17:04 25 359 supra http://www. 6-APR-09 12:15 NTERNATIONAL ´ I ANAMO BAY ANAMO available at TATES Seq: 25 Seq: S 188 191 NITED The Supreme Court of the U 192 unknown NTERESTS OF THE Using this interpretation, the de- Using this interpretation, the I 190 note 179. . 11, 2001, Ambassador Prosper has played “Since September OMMUNITY AND THE Id , 542 U.S. at 529. C OUNTERVAILING supra . . envoy, he travels worldwide engaging heads of “As the President’s Id . . Id WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT Id Geneva Convention Relative to the Treatment of Prisoners of War, Aldrich, Id See Hamdi IV: C Prosper and the Bush Administration, however, ignore Bush Administration, however, Prosper and the “It is beyond question that substantial interests lie on both “It is beyond question that substantial 188 189 190 191 192 ART . . . [a] careful analysis through the lens of the Geneva Convention the lens of analysis through . . . [a] careful meet detainees do not that the Taliban to the conclusion leads us would which 4 of the convention criteria under Article the legal status. them to POW have entitled under a respon- They are not sible command. in accor- conduct their operations They do not of war. the laws and customs dance with a fixed do not have They from a distance.distinctive sign recognizable do not And they openly.carry their arms Their conduct and history of attacking conventional disregarding human life and civilian populations, firm proof barbaric philosophies represents norms, and promoting of their denied status. they But regardless of their inhumanity, to be treated humanely. too have the right 189 P M K state.gov/outofdate/bios/p/4417.htm (last visited Feb. 24, 2009).state.gov/outofdate/bios/p/4417.htm (last As Ambassador- State directly and formulates U.S. policy at-Large, “he advises the Secretary of of conflict and elsewhere throughout the responses to atrocities committed in areas world.” a key role in the war on terror and has been the chief negotiator and lead diplomat a key role in the war on terror and has been in for the United States in engaging nations regarding their nationals captured combat.” state and international organizations to build bilateral and international support state and international organizations to for U.S. policies.” the main purpose of the Geneva Convention Relative to the of the Geneva Convention the main purpose Treatment of Prisoners. or a tele- Using either a plain meaning to interpreting the terms in ological (general) purpose approach argue that the categories in Arti- the Convention, the detainees cle 4 are not all-inclusive. sides of the scale in this case.” note 16, art. 4 § A (2). state.gov/s/wci/us_releases/rm/2002/8491.htm. Former President Bush nominated to be the U.S. Ambassador-at-Large for Pierre-Richard Prosper on May 16, 2001 War Crimes Issues. Biography of Pierre-Richard Prosper, Prosper’s argument specifically addresses category 2 of Article specifically addresses category Prosper’s argument 4. 2009] \\server05\productn\P\PIR\21-1\PIR110.txt tainees believe that the rights of prisoners of war should extend tainees believe that the rights 4. beyond those provided for in Article C Y 26570_pir_21-1 Sheet No. 186 Side A 04/08/2009 15:17:04 A 04/08/2009 186 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 186 Side B 04/08/2009 15:17:04 26 M K C Y a- [Vol. 21:335 6-APR-09 12:15 196 The Government 198 Seq: 26 Seq: “[O]ur Constitution “[O]ur However, the Court However, the The government fears 193 195 197 Therefore, courts are mostly Therefore, courts unknown 194 , the government argued that: PACE INT’L L. REV. Hamdi , 542 U.S. at 499. In 542 U.S. at 532. , 542 U.S. at 531. . at 532. . 200 The government believes that any process other than The government believes that . at 531. . at 531. See id Id Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988). Hamdi, Id See Rasul Hamdi See id 199 In support of the United States’ position to deny habeas In support of the United States’ 193 194 195 196 197 198 199 200 during our most challenging and uncertain moments . . . our Na- challenging and uncertain moments during our most tested . . . and to due process is most severely tion’s commitment at that we must preserve our commitment it is in those times for which we fight abroad. home to the principles the Combatant Status Review Tribunal (hereinafter “CSRT”) the Combatant Status Review from their important duties would distract military officers overseas. This line of reasoning demonstrates one of the reasons why the demonstrates one of the This line of reasoning the issue of whether Guant´Supreme Court has addressed 360 balance constitutional the proper States must strike United the rights detainees and rights of alien to protect the necessary of government. branches of the other to habeas corpus petitions. namo Bay detainees have a right government cites “weighty and corpus rights to detainees, the in ensuring that those who sensitive governmental interests during a war do not return have in fact fought with the enemy to battle against the United States.” \\server05\productn\P\PIR\21-1\PIR110.txt states: that, due to the evidentiary requirements, habeas corpus hear- that, due to the evidentiary requirements, secrets and other confiden- ings for detainees may leak military in combat. tial information to our enemies also argues “that its interests in reducing the process available also argues “that its interests are heightened by the practical to alleged enemy combatants a system of trial-like pro- difficulties that would accompany cess.” reluctant “to intrude upon the authority of the Executive in mil- upon the authority of the reluctant “to intrude security affairs.” itary and national recognizes that core strategic matters of warmaking belong in of warmaking matters that core strategic recognizes politically and most are best positioned of those who the hands making them.” accountable for https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 186 Side B 04/08/2009 15:17:04 B 04/08/2009 186 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 187 Side A 04/08/2009 15:17:04 27 , 361 filed Since 207 204 6-APR-09 12:15 briefs ´ ANAMO BAY ANAMO Seq: 27 Seq: anamo Bay and, therefore, anamo Bay and, Amicus Curiae unknown anamo Bay. The Brief of Interna- 206 202 Bid to Give Detainees Right to Appeal Falls Short , the United States cited the Detainee , the United States The United States argued that Congress’ The United States argued that . 203 Brief for United States as Respondent, Boumediene v. Bush, Brief for United States as Respondent, Also, former President George W. Bush, along Also, former President George . at 43. 205 201 . at 43. . at 531-32. WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT See generally Id See generally id See id National Public Radio, Mayer Brown, Boumediene/Al-Odah Supreme Court Case: Brief Resource Id As evidenced by the numerous In the United States’ brief to the U.S. Supreme Court in brief to the U.S. Supreme In the United States’ 202 203 204 205 206 207 201 [M]ilitary officers who are engaged in the serious work of waging engaged in the officers who are [M]ilitary by liti- distracted and dangerously be unnecessarily battle would military operations and discovery into a world away, gation half of national defense sensitive secrets intrude on the would both rubble under the for evidence buried in a futile search and result of war. M K Sept. 19, 2007, http://www.npr.org/templates/story/story.php?storyId=14531579. alternative procedure, the CSRT, will adequately determine alternative procedure, the CSRT, an enemy combatant. whether a detainee is, in fact, habeas corpus hearings will not produce different outcomes hearings will not produce different habeas corpus hearings. than the CSRT Bush Boumediene v. 2009] receive ade- also asserts that the detainees The government that the de- in the CSRT hearings to ensure quate protections held at Guant´tainees are properly \\server05\productn\P\PIR\21-1\PIR110.txt in support of the detainees, both the international and domestic in support of the detainees, both over the United States’ de- communities evinced their concern tainment practices at Guant´ Congress provided for appellate review of the status determina- Congress provided for appellate of Appeals, the Government tion through the D.C. Circuit Court appropriate protection from believes that the detainees receive the Combatant Status Review an erroneous determination by Tribunal. Reporter No. 06-1195 (U.S. Sup. Ct. Dec. 5, 2007), 2007 WL 2972541. Reporter No. 06-1195 (U.S. Sup. Ct. Dec. Center, http://www.mayerbrown.com/probono/commitment/article.asp?id=3706& nid=3193 (last visited Feb. 24, 2009). with other members of his administration, believed that al- with other members of his administration, rights will place great burdens lowing detainees habeas corpus on the federal court system. Treatment Act and the Military Commissions Act as precedent and the Military Commissions Treatment Act for alien created statutory procedures that Congress explicitly adequate alternative to the writ detainees that substitute as an of habeas corpus. C Y 26570_pir_21-1 Sheet No. 187 Side A 04/08/2009 15:17:04 A 04/08/2009 187 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 187 Side B 04/08/2009 15:17:04 28 M K C Y 214 212 [Vol. 21:335 6-APR-09 12:15 note 208, at 19. Regardless of supra 210 Seq: 28 Seq: Although the United Although 208 unknown “Nonetheless, the obligations contained in “Nonetheless, the obligations PACE INT’L L. REV. .; Geneva Convention Relative to the Treatment of Prison- 213 One of those key provisions is that individuals One of those key note 16. 211 209 , 542 U.S. at 530. supra note 16, at art. 5). This is a customary rule of international law that “is This is a customary rule of international . at 6. . at 9 (citing Geneva Convention Relative to the Treatment of Prisoners of . at 15. . at 19-20. Id Id Id See generally id Brief for International Humanitarian Law Experts, Id Hamdi Brief for International Humanitarian Law Experts as Amici Curiae Sup- Brief for International Humanitarian Law supra The Geneva Conventions demonstrate a collective goal to The Geneva Conventions demonstrate 215 209 210 211 212 213 214 215 208 ers of War, respect the human rights of all people regardless of their race, respect the human rights of all of enemy armed forces. gender, or status as a member States has not ratified either Protocol, “it has, nonetheless, rec- either Protocol, “it has, States has not ratified with the humane key provisions dealing ognized that certain interna- constitute binding customary treatment of detainees tional law.” In situations where government action deprives an individual of In situations where government must determine the legiti- their liberty, United States’ courts to prevent erroneous depriva- macy of the detainment in order without sufficient process of tion of an individual’s liberty law. “States Party to the Geneva Conventions face great challenges “States Party to the Geneva Conventions of these rules in in ensuring compliance and implementation the fog of war.” 362 and their Conventions the Geneva Experts cited tional Law com- of an individual the legality as “rules govern[ing] Protocols such confinement, right to challenge confinement, his batant’s be inter- which he may conditions under and the circumstances treatment.” and his general rogated, \\server05\productn\P\PIR\21-1\PIR110.txt prisoner of war status, the Detaining Power must treat the pris- status, the Detaining Power must prisoner of war and dignity of and “safeguard the lives oner humanely combatants.” War, porting Petitioners at 9, Boumediene v. Bush, 533 U.S. __ (2008) (No. 06-1195), porting Petitioners at 9, Boumediene v. 2007 WL 2441573. captured during hostilities are “entitled to a presumption that hostilities are “entitled to a captured during the detainee (the POW until the state holding he or she is a has proved otherwise.” “Detaining Power”) evidenced by widespread state practice, and is reflected in nu- evidenced by widespread state the Geneva Conventions reflect not only a universal moral stan- the Geneva Conventions reflect reflected in the civil, penal, dard, but also binding law, solemnly community of signatories.” and military codes of the global https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 187 Side B 04/08/2009 15:17:04 B 04/08/2009 187 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 188 Side A 04/08/2009 15:17:04 29 363 . The Id 217 6-APR-09 12:15 “At a mini- 223 ´ ANAMO BAY ANAMO 220 Seq: 29 Seq: note 216, at 4. note 216, at 2-3. supra supra “It is the government’s po- 216 222 “[D]etainees are precluded by “[D]etainees are http://www.defenselink.mil/releases/re- anamo” and fell “far short of the anamo” and fell unknown 218 anamo.” “As of August 22, 2007, there were ap- “As of August 22, 2007, there were Under these circumstances where the Under these circumstances where available at 221 224 Geneva Convention Relative to the Treatment of Prison- Geneva Convention Relative to the Treatment of any meaningful review procedure.” meaningful review of any anamo Detainee Cases, 355 F. Supp. 2d 443, 451 (D.D.C. 2005); note 16. supra Guant´ See generally This system “cannot be reconciled with the United be reconciled with the This system “cannot at 4 (citing U.S. Department of Defense, Detainee Transfer Announced, . at 3. . . at 6-7. . at 465. . WRIT OF HABEAS CORPUS AND GUANT CORPUS OF HABEAS WRIT Brief for Amnesty International, et al., Id Id Id Id. In re Id Brief for Amnesty International, et al. as Amici Curiae Supporting Petition- Brief for Amnesty International, et al. as Id Brief for Amnesty International, et al., 219 “The right to be free from arbitrary detention is a univer- free from arbitrary detention “The right to be “International human rights law also defines the nature of defines the nature law also human rights “International 219 220 221 222 223 224 216 217 218 anamo is a citizen of a nation presently at war with the United States.” M K lease.aspx?releaseid=11219). In fact, “[n]one of the individuals detained in Guan- t´ ers of War, States’ obligations under international law.” States’ obligations sally recognized legal norm, essential for upholding the inher- sally recognized legal norm, essential and reaffirmed in every major ent dignity of all human beings human rights treaty.” a competent, independent, and impartial tribunal, which is the tribunal, which and impartial independent, a competent, No. 987-07 (Aug. 9, 2007), see also 2009] interna- and international instruments, treaties, other merous domestic jurisprudence.” tional and non sine qua \\server05\productn\P\PIR\21-1\PIR110.txt the CSRTs’ composition . . . from presenting a meaningful and . . . from presenting the CSRTs’ composition for their deten- to the factual and legal basis effective challenge tion.” CSRTs “were set up by the United States more than two years up by the United States more CSRTs “were set began in Guant´after detentions independent, requirements for a competent, international legal procedures which tribunal administered under and impartial process . . . .” safeguard due mum, the government has conceded that the war could last mum, the government has conceded several generations.” ers at 2, Boumediene v. Bush, 533 U.S. __ (2008) (No. 06-1195), 2007 WL 2441589. ers at 2, Boumediene v. Bush, 533 U.S. proximately 355 detainees remaining in indefinite detention proximately 355 detainees remaining without charge at Guant´ sition that in the event a conclusion by the tribunal that a de- sition that in the event a conclusion is affirmed,” the United States tainee is an ‘enemy combatant’ until the war on terrorism could hold the detainee “in custody to have concluded or until has been declared by the President have determined that the de- the President or his designees security.” tainee is no longer a threat to national C Y 26570_pir_21-1 Sheet No. 188 Side A 04/08/2009 15:17:04 A 04/08/2009 188 Side Sheet No. 26570_pir_21-1 26570_pir_21-1 Sheet No. 188 Side B 04/08/2009 15:17:04 30 M K C Y [Vol. 21:335 6-APR-09 12:15 anamo Bay note 216, at 4-9. supra Therefore, the in- Therefore, Seq: 30 Seq: 225 anamo Bay, the interna- anamo para. 2 (U.S. 1776). ONCLUSION unknown 226 V: C Geneva Convention Relative to the Treatment of NDEPENDENCE I ART P note 16. PACE INT’L L. REV. Brief for Amnesty International, et al., supra By detaining individuals at Guant´ By detaining See generally 227 ECLARATION OF D . at 9. HE See generally Id T On July 4, 1776, the United States declared that all men the United States declared On July 4, 1776, 225 226 227 Prisoners of War, without charge, the United States violates their own founding the United States violates their without charge, principles. Although the international community must respect attempts to protect the safety of the United States’ reasonable an equally important duty to its people, the United States has receives the protections ensure that every detained individual and international human of both the Geneva Conventions rights laws.corpus By providing detainees with proper habeas make a statement to the world hearings, the United States will human rights and the dignity of that the United States respects all people. new Therefore, the United States should formulate commissions to protect de- policies and eliminate its military the Geneva Conventions and tainees’ rights in compliance with international law. possess the unalienable rights of life, liberty, and the pursuit of rights of life, liberty, and possess the unalienable happiness. 364 without an individual detain States may potentially United life at Guant´for their entire charge \\server05\productn\P\PIR\21-1\PIR110.txt actions the individual’s to ensure that wants tional community upon them. detention imposed merit the ternational community demands that the United States provide United States demands that the community ternational form of habeas as “judicial review, in the safeguards such legal systems” to procedures [used] in other corpus” or “similar not to be ille- right of every person protect “the fundamental detained.” gally or arbitrarily https://digitalcommons.pace.edu/pilr/vol21/iss1/10 26570_pir_21-1 Sheet No. 188 Side B 04/08/2009 15:17:04 B 04/08/2009 188 Side Sheet No. 26570_pir_21-1