ISSUES Oral arguments in the cases are coming up soon, and I thought I would take a look at some of the issues I see here. I filed my amicus brief in the case because I thought that 18 USC 2441 was being largely ignored when in fact it should be the central issue in the case. It may not get the detainees everything, but it is the law, and this is supposed to be a nation of laws not men -- and I've heard all the excuses and rationalizations and it keeps adding up the same: George Bush and his administration are a gang of WAR CRIMINALS who are flaunting the laws and attempting to establish the absolute power to arrest and imprison anyone at any time on the Presidents say- so. Etc. I haven't concerned myself too much with the broader issues of the case. My focus is on the IHL, but I do think that as a general principle that all arrests and all detentions are ultimately subject to Habeas, because otherwise, we're looking at exactly the sort of power that the Constitution prohibits. The Constitution does give the Congress the power to suspend habeas -- but it doesn't give anyone the power to abolish it, not does it give the Commander in Chief of the armed forces the power to usurp the powers of the other two branches. Here is what the government response brief (March 29, 2004) has to say about the Geneva Conventions in their summary argument: "Nor is Hamdi's detention inconsistent with Article 5 of the GPW. The GPW is not self-executing and therefore does not confer any private rights that may be enforced in a habeas action. In any event, Article 5 applies only when there is "doubt" as to whether a detainee is entitled to prisoner-of-war (POW) privileges under the GPW. No such doubt exists here because the President has conclusively determined that al Qaeda and Taliban detainees are not entitled to those privileges." Hamdi v. Rumsfeld, On Writ of Cert to the U.S.C.A. for the 4th Circuit, Brief for the Respondents ("Resp. Br."), March 29, 2004, at 9. These arguments are repeated in more detail later, Resp. Br. at 22-24. There are three issues there: 1) Geneva is not self-executing. 2) Article 5 applies only when there is doubt. 3) The President has "conclusively determined" there is no doubt. The first of those issues is a major topic of my brief, the second is a fraudulent misrepresentation of Geneva, and the third is simply a couple of lies in support of the fraud. What GPW Art. 5 actually says is this: The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should 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. Note that the second paragraph doesn't say it applies "only when there is "doubt" as to whether a detainee is entitled to [POW status] as the government claims, what it says is that it applies WHENEVER THERE IS DOUBT that a belligerent is entitled to POW status, and that they are presumed to be POWs until such time as a competent tribunal finds otherwise. This is the biggest of the government's big lies. First, the President's "conclusive determination" is EXACTLY SUCH A DOUBT. Second, the President is NOT a competent tribunal and has no authority to make any such determination. He has the authority to take an enemy belligerent prisoner, but any such prisoner is entitled to the protection of GPW until a competent tribunal finds otherwise. In the event such a finding is made, the prisoner then ceases to have combatant privileges, at which point they become civilians who are subject to civil law for their crimes, if any, as determined by due process of law. There is no authority for indefinite detentions, nor is there any authority for a regime of psychological torture like that which has emerged at Guantanamo. Neither is there any mystery about what "competent tribunal" means. It means a regular judicial proceeding conducted according to law, by independent judges (military or civilian), by the laws in effect prior to the commencement of hostilities. For the President to "determine" the outcome of such a question is what in US military law is referred to as Unlawful Command Influence, and under the Geneva Conventions it's a grave breach -- which makes it a federal felony in US law pursuant to 18 USC 2441. -------------------------------------------------------------------------------- [ The government claims the cert pet. didn't raise Geneva?? ] Cert. Pet. at 30-31 The due process interest at stake is manifest. As this Court has remarked, "[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (quoting Youngberg v. Romeo, 457 U.S. 307, 316 (1982)). And while the Fourth Circuit suggested that Hamdi’s imprisonment does not constitute "punishment," but rather is a "simple war measure," (App. 16a), the truth is otherwise. Hamdi is not being treated as an ordinary prisoner of war, and has not been treated in accordance with the Geneva Convention Relevant to the Treatment of Prisoners of War, 6 U.S.T. 3316, 75 U.N.T.S. 135 ("GPW"), and United States military regulations designed to implement the GPW. See EPW Regulations (J.A. 91-126). Prisoners of war generally cannot be held in correctional facilities, EPW Reg. 3-2(b) (J.A. 99), separated from their fellow soldiers, id. 3-4(b) (J.A. 100), quartered under conditions less favorable than U.S. troops, id. 3-4(e) (J.A. 101), or restricted from receiving mail, id. 3-5(a) (J.A. 101.) The Fourth Circuit held that the GPW was unenforceable because it evinces no intent to provide a right of action and therefore is not self-executing. The habeas statute itself, however, authorizes review of detention in violation of treaties. 28 U.S.C. § 2242(c)(3); cf. Carlos Manuel Vazquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695, 721 (1995) (explaining that whether treaty confers a right of action is "analytically distinct" from the question of self-execution). As for the EPW Regulations designed to implement the GPW, "[s]o long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it." United States v. Nixon, 418 U.S. 683, 696 (1974); accord Billings v. Truesdell, 321 U.S. 542, 551 (1944); Standard Oil Co. v. Johnson, 316 U.S. 481, 484 (1942). The EPW Regulations provide that if any doubt exists whether a person is a prisoner of war, the person must be treated as such until his status is determined by a competent tribunal. EPW Reg. 1-6 (J.A. 96). -------------------------------------------------------------------------------- Misc Notes: Third Battalion, Fifth Special Forces Group, The Liberation of Mazar-e Sharif: 5th SF Group UW in Afghanistan, 15 Special Warfare 34, 36 (June 2002). W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 Social Research 981, 1000 (2002).