Government Merits Brief - Hamdan v. Rumsfeld

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court of appeals to have considered the question has rejected
the argument that the habeas statute allows for enforcement
of treaties that do not themselves create judicially enforceable
rights. See Poindexter v. Nash, 333 F.3d 372 (2d Cir. 2003),
cert. denied, 540 U.S. 1210 (2004); Wesson v. United States
Penitentiary Beaumont, 305 F.3d 343 (5th Cir. 2002), cert.
denied, 537 U.S. 1241 (2003); Hain v. Gibson, 287 F.3d 1224
(10th Cir. 2002), cert. denied, 537 U.S. 1173 (2003); United
States ex rel. Perez v. Warden, 286 F.3d 1059 (8th Cir.), cert.
denied, 537 U.S. 869 (2002). Petitioner has provided no basis
for this Court to depart from that settled understanding. 13
b. Petitioner has no valid claim under the Convention
in any event
i. Even if the Geneva Convention were judicially enforceable,
it is inapplicable to the ongoing conflict with al
not purport to hold that treaty rights are privately enforceable in habeas, and
Wildenhus’s Case sheds no light on the question whether the Geneva
Convention, a treaty that implicates the President’s core Commander-in-Chief
powers, may be privately enforced in habeas. The other cases on which
petitioner relies are similarly unavailing. In Ogbudimkpa v. Ashcroft, 342 F.3d
207 (2003), the Third Circuit expressly declined to consider an argument
similar to that advanced by petitioner. See id. at 218 n.22. In Wang v.
Ashcroft, 320 F.3d 130 (2003), the Second Circuit allowed a habeas petitioner
to enforce rights created not by a treaty, but by statute. See id . at 140-141.
13 Moreover, in enacting the DTA, Congress has removed any basis for
arguing that the habeas statute provides a mechanism for enforcing the Geneva
Convention. Congress has replaced habeas jurisdiction with an exclusive
review mechanism that, in contrast to the habeas statute it displaced, omits
treaty-based challenges. See DTA § 1005(e)(2)(C)(ii) and (3)(D)(ii), 119 Stat.
2742, 2743. That action would preclude claims even under treaties that, unlike
the Geneva Convention, give rise to judicially enforceable individual rights, and
is clearly inconsistent with any notion that Congress acted to make the Geneva
Convention applicable to al Qaeda, let alone in any judicially enforceable
manner. Likewise, the system of judicial review that Congress established
presupposes that CSRTs will obviate any treaty-based claim to an essentially
duplicative Article 5 tribunal. See DTA § 1005(e)(2), 119 Stat. 2742.