Government Merits Brief - Hamdan v. Rumsfeld

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40 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).
41 tenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power.” 6 U.S.T. at 3394, 75 U.N.T.S. at 212. Article 102, however, applies only to a “prisoner of war.” And petitioner does not qualify as a POW for purposes of Article 102 because he does not meet the requirements set out in Article 4 for POW status. The relevant subsection, Article 4(A)(2), provides that members of militias or volunteer corps are eligible for POW status only if the group in question displays “a fixed distinctive sign,” “carr[ies] arms openly,” and “conduct[s] [its] operations in accordance with the laws and customs of war.” 6 U.S.T. at 3320, 75 U.N.T.S. at 138. “[T]he widely accepted view” is that, “if the group does not meet the first three criteria * * * [an] individual member cannot qualify for privileged status as a POW.” W. Thomas Mallison & Sally V. Mallison, The Juridical Status of Irregular Combatants Under the International Humanitarian Law of Armed Conflict, 9 Case W. Res. J. Int’l L. 39, 62 (1977); see, e.g., United States v. Lindh, 212 F. Supp. 2d 541, 552 n.16, 558 n.39 (E.D. Va. 2002) (noting that “[w]hat matters for determination of lawful combatant status is not whether Lindh personally violated the laws and customs of war, but whether the Taliban did so,” and that “there is no plausible claim of lawful combatant immunity in connection with al Qaeda membership”). 16 Al Qaeda does not remotely satisfy those criteria. 17 16 In previous conflicts, the United States has made group status determinations concerning captured enemy combatants. See, e.g., Levie, supra, at 61 (World War II). 17 Petitioner suggests for the first time (Br. 45 n.35) that, even if he does not constitute a POW under Article 4(A)(2) because al Qaeda does not satisfy the specified criteria, he is a POW under Article 4(A)(1) because he is a “[m]ember of the armed forces of a Party to the conflict” or a “member of [the] militia[] or volunteer corps forming part of such armed forces,” or a POW under Article 4(A)(4) because he is a “person who accompan[ies] the armed forces without
Page 1 and 2:
No. 05-184 In the Supreme Court of
Page 3 and 4: TABLE OF CONTENTS Page Jurisdiction
Page 5 and 6: V Cases—Continued: Page Foster v.
Page 7 and 8: VII Cases—Continued: Page United
Page 9 and 10: IX Treaties, statutes, regulations,
Page 11 and 12: XI Statutes, regulations, and rules
Page 13 and 14: XIII Miscellaneous—Continued: Pag
Page 15 and 16: In the Supreme Court of the United
Page 17 and 18: 3 2. a. In November 2001, petitione
Page 19 and 20: 5 Qaeda,” and that he was therefo
Page 21 and 22: 7 SUMMARY OF ARGUMENT I. Petitioner
Page 23 and 24: 9 ity in wartime to hold enemy figh
Page 25 and 26: 11 tured in the United States, Ex p
Page 27 and 28: 13 entertaining “habeas petitions
Page 29 and 30: 15 sion,” and that judicial revie
Page 31 and 32: 17 AUMF authorized the use of milit
Page 33 and 34: 19 UCMJ applies to armed conflicts
Page 35 and 36: 21 Eisentrager, 339 U.S. at 788. Th
Page 37 and 38: 23 The President’s inherent autho
Page 39 and 40: 25 no basis for this Court to inval
Page 41 and 42: 27 1. Military commissions may be a
Page 43 and 44: 29 particular reference to the fact
Page 45 and 46: 31 253, 306 (1829); see generally U
Page 47 and 48: 33 spected * * * in all circumstanc
Page 49 and 50: 35 ever, create no enforceable fede
Page 51 and 52: 37 court of appeals to have conside
Page 53: 39 applicable to “all cases of de
Page 57 and 58: 43 E. Petitioner Does Not Enjoy The
Page 59 and 60: 45 commission. The Court described
Page 61 and 62: 47 (3d ed. 1914); see Richard S. Ha
Page 63 and 64: 49 armed conflicts, * * * which are
Page 65 and 66: APPENDIX 1. 10 U.S.C. 821, Art. 21,
Page 67 and 68: 3a Committee on the Judiciary of th
Page 69 and 70: 5a (2) ELEMENTS OF REPORT.—Each s
Page 71 and 72: 7a (ii) to the extent the Constitut
Page 73 and 74: 9a and Nationality Act and, in part
Page 75 and 76: SECTION 2. 11a AUTHORIZATION FOR US
Page 77 and 78: 13a (d) The ability of the United S
Page 79 and 80: 15a Sec. 3. Detention Authority of
Page 81 and 82: 17a (8) of the record of the trial,
Page 83 and 84: 19a 6. Geneva Convention relative t
Page 85 and 86: 21a (c) outrages upon personal dign
Page 87 and 88: 23a B. The following shall likewise
Page 89 and 90: 25a * * * * * ARTICLE 11 In cases w
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Government Merits Brief - Hamdan v. Rumsfeld

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