Government Merits Brief - Hamdan v. Rumsfeld

42
Petitioner contends (Br. 36-37, 45 n.35) that his assertion
of POW status is itself sufficient to establish “doubt” as to
whether he is a POW, and that he must be treated as a POW
until a tribunal constituted under Article 5 of the Convention
eliminates that doubt. In relevant part, Article 5 provides
that, “[s]hould any doubt arise as to whether persons, having
committed a belligerent act and having fallen into the hands
of the enemy, belong to any of the categories enumerated in
Article 4, such persons shall enjoy the protection of the present
Convention until such time as their status has been determined
by a competent tribunal.” 6 U.S.T. at 3324, 75 U.N.T.S.
at 142. In this case, however, the CSRT process, which
clearly discharges any obligation under Article 5, has removed
any conceivable doubt by confirming prior military
determinations and finding that petitioner is an enemy combatant
who is a member or affiliate of al Qaeda. Pet. App. 2a,
31a. 18
actually being [a] member[].” 6 U.S.T. at 3320, 75 U.N.T.S. at 138. Those
claims have been forfeited because they were not raised in the court of appeals.
Moreover, the Article 4(A)(1) claim assumes facts that contradict the factual
assertions he has previously made, see J.A. 46, and the Article 4(A)(4) claim is
refuted by the CSRT finding that petitioner is an enemy combatant. Petitioner’s
claims fail for the additional reason that the concept of “armed forces”
in Article 4(A)(1) and (A)(4) appears to presuppose that the criteria set out in
Article 4(A)(2) are satisfied. See ICRC Commentary 62-63.
18 The CSRT was patterned after the “competent tribunal” described in
Geneva Convention Article 5 and Army Regulation 190-8 (cited favorably in
Hamdi, 542 U.S. at 538 (plurality opinion)), but provides more process. See 151
Cong. Rec. S12,754 (daily ed. Nov. 14, 2005) (statement of Sen. Graham)
(observing that the CSRT system “is Geneva Convention article 5 tribunals on
steroids”). In proceedings before the CSRT, petitioner was entitled to call
reasonably available witnesses, to question other witnesses, to testify or
otherwise address the tribunal, and not to testify if he so chose. Petitioner was
additionally entitled to a decision, by the preponderance of the evidence, by
commissioned officers sworn to execute their duties impartially, and to review
by the Staff Judge Advocate for legal sufficiency. See Memorandum from