Government Merits Brief - Hamdan v. Rumsfeld

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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
43 E. Petitioner Does Not Enjoy The Protections Of Our Constitution Petitioner’s argument that the President lacks the authority to convene a military commission to try and punish him for his alleged war crimes fails for the many independent reasons discussed above. Because that argument is predicated on the proposition (Br. 10-13) that the Constitution places structural limits on the President’s authority to convene military commissions, however, it fails for an additional, even more fundamental reason. As an alien enemy combatant detained outside the United States, petitioner does not enjoy the protections of our Constitution. See Reply Br. in Support of Mot. to Dismiss for Lack of Jurisdiction 18-20. III. PETITIONER’S PROCEDURAL OBJECTIONS TO HIS MILITARY COMMISSION ARE UNFOUNDED A. The Procedures Established For Petitioner’s Military Commission Do Not Contravene The UCMJ Petitioner argues (Br. 19-23) that the UCMJ requires that any military commission proceeding must conform to the rules for courts-martial. 19 He relies on Article 36(a) of the UCMJ, 10 U.S.C. 836(a), which authorizes the President to promulgate regulations establishing procedures for military Gordon England, Secretary of the Navy, Regarding the Implementation of CSRT Procedures for Enemy Combatants Detained at Guantanamo (July 29, 2004) . In addition, unlike an Article 5 or Army Regulation 190-8 tribunal, the CSRT guaranteed petitioner the rights to have a personal representative for assistance in preparing his case, to receive an unclassified summary of the evidence before the hearing, and to introduce relevant documentary evidence. 19 As a preliminary matter, it is not appropriate to consider objections to the procedures governing the military commissions before the commission has even applied them to petitioner. The DTA expressly authorizes detainees to raise such challenges following a final adverse decision. See § 1005(e)(3), 119 Stat. 2743.
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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 and 54: 39 applicable to “all cases of de
Page 55: 41 tenced only if the sentence has
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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