Government Merits Brief - Hamdan v. Rumsfeld

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Petitioner observes (Br. 45) that he was captured in Afghanistan
and that Afghanistan, unlike al Qaeda, is a party to
the Geneva Convention. But the Convention does not apply
based on where a particular conflict occurs, or a particular
combatant is captured. Instead, Article 2 specifies that the
Convention “shall apply to all cases of declared war or of any
other armed conflict which may arise between two or more of
the High Contracting Parties.” 6 U.S.T. at 3318, 75 U.N.T.S.
at 136 (emphasis added). Because the United States and Afghanistan
are both “High Contracting Parties,” the President
determined that the Convention could potentially apply to
Afghanistan’s Taliban regime. See J.A. 35. It does not follow,
however, that the Convention would cover al Qaeda combatants
who happen to be located in Afghanistan, because the
conflict between the United States and al Qaeda is discrete
and different from the conflict between the United States and
the Taliban (and because al Qaeda is not a “High Contracting
Party” or “Power” for purposes of Article 2). For the reasons
discussed above, the question whether there is one conflict or
two is precisely the kind of foreign-policy judgment that is
committed to the President’s discretion.
ii. Even if this Court were to conclude (notwithstanding
the President’s determination) that the Convention is applicable
to al Qaeda, petitioner’s trial by military commission
would not violate the substantive terms of the Convention.
Petitioner relies (Br. 37) on Article 102 of the Convention,
which provides that “[a] prisoner of war can be validly sen-
(Protocol II), June 8, 1977, 1125 U.N.T.S. 609. In transmitting those protocols
to Congress, President Reagan expressed concern, inter alia, that one of the
protocols would “grant combatant status to irregular forces even if they do not
satisfy the traditional requirements to distinguish themselves from the civilian
population and otherwise comply with the laws of war” and would thereby
“endanger civilians among whom terrorists and other irregulars attempt to
conceal themselves.” S. Treaty Doc. No. 2, 100th Cong., 1st Sess. iv (1987).