JOSE PADILLA (REAL PARTY IN INTEREST), DONNA R. NEWMAN, AS NEXT FRIEND OF JOSE PADILLA, PETITIONERS, VERSUS GEORGE W. BUSH, EX OFFICIO AS COMMANDER IN CHIEF, ET AL, RESPONDENTS.

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06843932
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 92
• Document Creation Date: March 9, 2023
• Document Release Date: September 28, 2020
• Case Number: F-2016-02028

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FindLaw
WINW.F1NDLAW.COM
IN THE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSE PADILLA (Real Party in Interest),
DONNA R. NEWMAN,
as Neu Friend of Jose Padilla,
Petidoners,
- versus - Civil Action No.
02-C1v-4445 (MBM)
GEORGE W. BUSH, ex officio as
Commander in Chief, et al.,
Respondent&
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BRIEF
of
AMICI CURIAE
by
THE NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
and
THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
DONALD G. REHKOPF, JR,
Law Offices of BRENNA & BRE1VNA
31 East Main Street, Sufte 2000
Liberty Plaza
Rochester, New York 14614
[phone]
For Amici Curiae
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TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
INTERESTS OF AMICI CURIAE 1
POINTS AND AUTHORITIES 2
I. JURISDICTION. 2
A. Subject Matter Jurisdiction. 2
B. In Personam Jurisdiction. 2
C. Whitmore Issues 3
1. Judicial Estoppel. 3
2. Ms. Newman Has Proper "Next Friend" Status 5
3. Whitmore Is Not Controlling In Any Event 7
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D. The Respondents Are Proper Parties Herein 8
E. Commander Mares Status. 14
II. JUSTICIABILITY. 19
III. THE ILLEGAL DETENTION OF THE PETITIONER. 24
A. Overview. 24
B. The "War Powers" Do Not Eviscerate the Fourth and Fifth Amendments. 26
C. "MILITARY" LAW. 32
1. Military Law. 32
2. Martial Law. 32
D. Due Process Illegality. 35
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N. THE CONSTITUTION DOES NOT GIVE EITHER PLENARY OR UNREVIEWABLE
POWERS TO THE COMMANDER IN CHIEF IN THE ABSENCE OF A DECLARATION
OF WAR OR THE LAWFUL IMPOSITION OF MARTIAL LAW. 39
A. No Deference is Due a Commander in Chief on Constitutional Interpretation.39
B. There is No Historical, United States Precedent for the Government's Position that
the Commander in Chiefs Decision Herein is Beyond the Reach of the Federal
Judiciary. 40
V. PETITIONER IS EITHER ENTITLED TO PRISONER OF WAR STATUS OR A
JUDICIAL HEARING TO DETERMINE SUCH. 59
CONCLUSIONS 60
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TABLE OF AUTHORITIES
CASES
Allen v. Illinois, 478 U.S. 364 (1986) 12
Application of Yamashita, 327 U.S. 1 (1946) 12
Arlen v. Laird, Sec 'y of Defense, 451 F.2d 684 (2nd Cir. 1971) 10, 12
Atwater v. City of Lago Vista, 533 U.S. 924 (2001). 39
Baker v. Carr, 369 U.S. 186 (1962) 19
Boyd v. Bond, 395 U.S. 683 (1969) 18
Breard v. Greene, 523 U.S. 371 (1998). 53
Burns v. Wilson, 346 U.S. 127 (1953) 9
Carney v. Laird, Sec 'y of Defense, 462 F.2d 606 (1st Cir. 1972).10
Cherokee Nation v. Georgia, 30 U.S. 1(1831) 50
Clinton v. Jones, 520 U.S. 681 (1997) 18,22
County of Riverside v. McLaughlin, 500 U.S. 44 (1991) 25
Cramer v. United States, 325 U.S. 1 (1945) 38
Crandall v. Nevada, 73 U.S. 35(1867) 11
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Dow v. Johnson, 100 U.S. 158 (1879) 25
Duncan v. Kahanamola4, 327 U.S. 304 (1946). 33,53
Ex Parte Bollman, 8 U.S. 75(1807) 43
Ex Parte Hayes v. Sec 'y of Army, 414 U.S. 1327 (1973) 12, 13
Ex Parte Mertyman, 17 Fed.Cas. 144 (C.C.D. Md. 1861)
Ex Parte Milligan,71 U.S. 2(1866)
46, 47,
53,
56
Ex Parte Quirin, 317 U.S. 1(1942)
38,49,
51,
53
13, 15, 27,44-46
Goldsmith v. Clinton, et al., 48 M.J. 84 (CAAF, 1998), rev 'd Clinton v. Goldsmith, 526 U.S. 529
(1999) 8
Harris v. Nelson, 394 U.S. 286 (1969) 26
Haupt v. United States, 330 U.S. 631 (1947) 38
Henkels v. Sutherland, 271 U.S. 298 (1926) 54
Hirabayashi v. United States, 320 U.S. 81(1943) 49
Hirabayashi v. United States, 627 F.Supp 1445 (W.D. Wash. 1986) 49
Kansas v. Crane, 534 U.S. 407(2002) 12
Kansas v. Hendricks, 521 U.S. 346 (1997)
12
Katz v. United States, 389 U.S. 347 (1967)
27
Kilbourn v. Thompson, 103 U.S. 168 (1881)
20
Korematsu v. United States, 323 U.S. 214(1944) 49
Korematsu v. United States, 584 F.Supp 1406 (N.D. Cal. 1984)49
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Lantz v. Seamans, Sec 'y of Air Force, 504 F.2d 423 (rd Cir. 1974) 10
Little v. Barreme, 6 U.S. 170 (1804) 22, 23, 40
Malarkey v. Texaco, Inc., 983 F.2d 1204 (2�d Cir. 1993). 4
Marbury v. Madison, 5 U.S. 137 (1803) 25,40
Middendorf ; Sec 'y of the Navy v. Henry, 425 U.S. 25(1976) 11
Monk v. Martin, Sec 'y of the Navy, 793 F.2d 364 (D.C. Cir. 1986) 8, 11
Monk v. Zelez, 901 F.2d 885 (10th Cir. 1990) 8, 11
Morgan v. Potter, 157 U.S. 195 (1895) 6
New Hampshire v. Maine, 532 U.S. 742(2001) 4
New York Times v. United States, 403 U.S. 713 (1971) 28
Nixon v. Administrator of General Services, 433 U.S. 425(1977) 35
Parisi v. Davidson, 396 U.S. 1233 (1969), further rev., 405 U.S. 34(1972
Powell v. McCormack, 395 U.S. 486 (1969) 20,21
Prize Cases, 67 U.S. 635 (1863) 46
Rasul et al., v. Bush, et al 9
Reid v. Covert, 354 U.S. 1 (1957)57, 58
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) 3
Schlesinger, Sec 'y of Defense v. Councilman, 420 U.S. 738 (1975) 11
Schneiderman v. United States, 320 U.S. 118(1943) 37
9, 10, 12
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Secretary of the Navy v. Avrech, 418 U.S. 676(1974) 11
Solorio v. United States, 483 U.S. 435 (1987). 17, 37
South Carolina v. Kazenbach, 383 U.S. 301 (1966) 35
Sterling v. Constantin, 287 U.S. 378 (1932). 40
Strait v. Laird, Sec 'y of Defense, 406 U.S. 341(1972) 11
Talbot v. Seeman, 5 U .S. 1(1801) 21,39
United States ex rel. Toth v. Quarks, 350 U.S. 11(1955) 5, 6, 8, 9, 12, 56
United States v. Brown, 381 U.S. 437 (1965) 35
United States v. Nixon, 418 U.S. 683 (1974) 22,40
United States v. Noriega, 746 F.Supp 1506 (S.D. FL 1990) 59
United States v. Noriega, 808 F.Supp 791 (S.D. Fl. 1992) 59,60
United States v. Robel, 389 U.S. 258 (1967) 31
United States v. United States District Court, 407 U.S. 297 (1972) 27-29
Waldn v. Cams, 24 MJ 407 (CMA 1987)18
Waller v. Swift, 30 MJ 139 (CMA 1990) 18
Whitmore v. Arkansas, 495 U.S. 149 (1990). 3, 5-7
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 22, 54, 55
Zadvydas v. Davis, 533 U.S. 678 (2001). 2, 36-38
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CONSTITUTIONAL PROVISIONS
Article I, � 2, U.S. Cong. 34
Article I, � 3, U.S. Coast. 34
Article I, � 8, U.S. Coast. 19, 25, 26, 53
Article I, � 8, Cl. 10, U.S. Coast. 20
Article I, � 8, cl. 11-14, U.S. Coast. 21, 30, 33
Article I, � 8, cl. 17 11
Article I, � 9, cl. 2, U.S. Const 27,44
Article I, � 9, cl. 3, U.S. Const 35
Article II, U.S. Coast 19
Article II, � 1, U.S. Const 34
Article II, � 2, U.S. Const 25,30
Article III, � 1, U.S. Const 2
Article 1TI, � 2, U.S. Coast. 2
Third Amendment, U.S. Coast. 25
Fourth Amendment, U.S. Const 19, 26-28, 33, 54
Fifth Amendment, U.S. Coast. 3, 19, 25, 26, 29, 33, 38, 54
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STATUTES
10 U.S.C. � 111(a). 12
10 U.S.C. � 502. 61
10 U.S.C. � 801 et seq., Uniform Code of Military Justice
12 Stat. 326 (1861) 46
28 U.S.C. � 1346 2, 3
28 U.S.C. � 1367(a) 3
28 U.S.C. � 1651, All Writs Act 3,18
28 U.S.C. � 2241 2
28 U.S.C. � 2241(b) 13
28 U.S.C. � 2242 5,7
28 U.S.C. � 1331 2
50 U.S.C. � 1541 et seq., The War Powers Resolution 39
56 Stat 173 (1942) 49
8 U.S.C. �1231(a)(6). 36
Act of March 3, 1863, 12 Stat. 755. 27
Article 2(a), UCMJ, 10 U.S.C. � 802(a) 18
Article 2(a)(9), UCMJ, 10 U.S.C. � 802(aX9). 32,33
Article 9, UCMJ, 10 U.S.C. � 809 21, 33, 37
26, 32, 33, 53
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Article 10, UCMJ, 10 U.S.C. � 810 33
Article 11(b), UCMJ, 10 U.S.C. � 811(b)34
Article 12, UCMJ, 10 U.S.C. � 812 34
Article 31(c), UCMJ, 10 U.S.C. � 831(c). 28
Article 36, UCMJ, 10 U.S.C. � 836
15
Article 67a, UCMJ, 10 U.S.C. � 867a
18
Article 92, UCMJ, 10 U.S.C. � 892
6,
10,
15
Article 96, UCMJ, 10 U.S.C. � 896
6,
16
Article 98(2), UCMJ, 10 U.S.C. �898(2) 34
Article 141 et seq., UCMJ, 10 U.S.C. � 941 18
Joint Congressional "Authorization for Use of Military Force," [H.Joint. Resolution 64,
September 14,2001] 40
Rule 201, F.R.Ev. 27
Rule 4(e), F.R.Civ.P. 3
Rule 4(i), F.R.Civ.P. 3
Rule 8(d), F.R.Civ.P. 5
Rule 12(b), F.R.Civ.P. 5
Rule 17(a), F.R.Civ.P. 4
Rule 56(e), F.R.Civ.P. 5
Rule 81(a)(2), F.R.Civ.P. 2, 14
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Rule 304, Rules for Courts-Martial 16, 17
Rule 305, Rules for Courts-Martial 17
TEXTS and OTHER AUTHORTITES
Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and
Other Detainees (1 October 1997) [Joint Service Regulation] 60
H.W. Koch, In the Name of the Volk Political Justice in Hitler's Germany, (Barnes & Noble,
NY 1997 ed.) 40
Louis Fisher, Military Tribunals: The Quinn Precedent (Congressional Research Service - The
Library of Congress, March 26,2002) 52
Colonel William Winthrop, U.S. Army, Military Law and Precedents, rd ed. (Washington, DC:
Gov't Printing Office, 1920) [Legal Classics Library reprint] 47, 48, 51
Declaration of Independence 24
Department of Defense Directive [DODD] 2310.1 (1994), DoD Program for Enemy Prisoners of
War (EPOW) and other Detainees 14, 15, 17,59
F. Wormuth & E. Firmage, To Chain the Dog of War: The War Power of Congress in History
and Law (Dallas TX: Southern Methodist Univ. Press, 1986) 31
Frederick B. Wiener, A Practical Manual of Martial Law, (Harrisburg, PA: The Military Service
Pub. Co., 1940) 43
H.R. McMaster, Major, U.S. Army, Dereliction of Duty: Lyndon Johnson, Robert McNamara,
The Joint Chiefs of Staff and the Lies that Led to Vietnam (NY: HarperCollins, 1997) 49
John H. Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath
(Princeton, NY: Princeton Univ. Press, 1993) 30,39
John Sirica, To Set the Record Straight, (NY: W.W. Norton & Co., 1979) 49
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Lee S. Tillotson, Colonel, Judge Advocate General's Department, U.S. Army (ret.), The Articles
of War Annotated, (Harrisburg, PA: The Military Service Pub. Co., 1942) 48
Manual for Courts-Martial (2000 Edition) [Washington, DC: GPO] 15,32
P. Maguire, Law and War: An American Story, (Columbia Univ. Press, NY, 2000) 50
Peter Irons, Justice at War (NY: Oxford Univ. Press, 1983) 49
Ralph Ketcham, ed. The Anti-Federalist Papers and the Constitutional Convention Debates,
(NY: Mentor Books, 1986) 31
Robin Toner, Despite Some Concerns, Civil Liberties are Taking a Back Seat, NY Times, Digital
Ed., Nov. 18, 2001. 32
The Federalist Papers, No. 51, 41
The Federalist Papers, Number 48.
39-41
The Federalist Papers, Number 69
30,42
The Federalist Papers, Number 80
24
William C. DeHart, Captain, U.S. Army (Acting Judge Advocate of the Army), Observations on
Military Law (NY: Wiley & Halsted, 1859 ed, copyrighted 1846) [reprinted in 18 Classics in
Legal History, Wm. S. Hein & Co, Buffalo, NY, 1973] 44
TREATIES
The 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War
14, 34, 37, 59
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The 1949 Geneva Convention Relative to the Treatment of Prisoners of War 14,34, 37, 53,
59
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INTERESTS OF AMICI CURIAE
NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
The New York State Association of Criminal Defense Lawyers [NYSACDI], is a not-for-
profit corporation with a subscribed membership of approximately 1,000 attorneys, which
include private practitioners, public defenders, legal aid, and law professors. It is a recognized
State Affiliate of the National Association of Criminal Defense Lawyers.
The NYSACDL was founded in 1986 to promote study and research in the field of
criminal defense law and the related disciplines. Its stated goals include promoting the proper
administration of criminal justice; fostering, maintaining and encouraging the integrity,
independence and expertise of defense lawyers in criminal cases; to protect individual rights and
improve the practice of criminal law; to enlighten the public on such issues; and to promote the
exchange of ideas and research, to include appearing as Amicus Curiae in cases of significant
public interest or of professional concern to the criminal defense bar.
The National Association of Criminal Defense Lawyers ["NACDL1 is a non-profit
corporation with a subscribed membership of more than 10,000 national members, including
military defense counsel, public defenders, private practitioners and law professors, and an
additional 28,000 state, local and international affiliate members. The American Bar Association
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recognizes the NACDL as one of its affiliate organizations and awards it full representation in its
House of Delegates.
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The NACDL was founded in 1958 to promote study and research in the field of criminal
law; to disseminate and advance knowledge of the law in the area of criminal practice; and to
encourage the integrity, independence and expertise of defense lawyers in criminal cases, both
civilian and military. Among the NACDL's objectives are ensuring justice and due process for
persons accused of crime, promoting the proper and fair administration of criminal justice and
preserving, protecting and defending the adversary system and the U.S. Constitution.
The interest of Amici Curiae in this case arises due to the fundamental nature of the core
constitutional issues presented. The basic right of a citizen to legal counsel and to communicate
freely with that attorney has been absolutely debilitated in this case. Furthermore, the
constitutional basis for depriving a citizen of his liberty without any due process of law, is a
matter of grave constitutional concern - especially when such confinement is done in a matter
that holds the citizen incommunicado. As such NYSACDL and NACDL respectfully requests
Amid Curiae status herein.
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POINTS and AUTHORITIES
I. JURISDICTION.
A. Subject Matter Jurisdiction.
It is beyond cavil that a District Court of the United States has subject matter jurisdiction
over a habeas corpus proceeding. Art. III, �� 1 and 2, U.S. Const. Indeed, 28 U.S.C. � 1331,
expressly confers "original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States." Section 2241, of Title 28, U.S.C., specifically confers such
jurisdiction for Writs of Habeas Corpus. See, Zadvydas v. Davis, 533 U.S. 678 (2001).
B. In Personam Jurisdiction.
Amid Curiae will first address this issue due to traditional concerns stemming from the
language of Rule 81(a)(2), F.R.Civ.P., viz., "The writ of habeas corpus shall be directed to
the person having custody of the person detained."
There was no issue as to this Court's jurisdiction pertaining to the validity of Petitioner's
detention under the "material witness" issue. The government under the auspices of the
Department of Justice was simply detaining Petitioner, and this Court had subject matter
jurisdiction, in personam jurisdiction and venue to adjudicate that controversy. While that was
pending, however, the President of the United States, acting in his capacity as Commander in
Chief of the Armed Forces, issued a written Order directing that Petitioner's custody be
transferred to the United States military.
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Respondents are the President ex officio as Commander in Chief, and agents of the
United States. Thus, 28 U.S.C. � 1346, confers jurisdiction over all Respondents herein.
Furthermore, under this Court's Supplemental Jurisdiction, 28 U.S.C. � 1367(a), the present
claims - the continued illegal detention of the Petitioner - are totally related to the original claims
under litigation herein. It is still the United States government who is detaining Petitioner, just a
different federal agency. Indeed, "service of process" may be had pursuant to Rule 4(e),
F.R.Civ.P., in any judicial district and in any event, Rule 4(1), F.R.Civ.P., governs service upon
the respondents herein.
In personam jurisdictional issues flow from Fifth Amendment, Due Process concerns.
See, generally, Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, at 584 (1999). No such
concerns burden the Respondents here, especially in light of 28 U.S.C. � 1346. Nor is this a case
of forum non conveniens. Petitioner was before this Court in a pending matter and the
Respondents - not the Petitioner - caused his physical removal out of this judicial District. That
act of removal, should not now give rise to a complaint that this Court should not exercise its
Supplemental Jurisdiction, assuming of course that it is even necessary to reach that issue.
Finally, pursuant to the All Writs Act, 28 U.S.C. � 1651, even if there were any question
as to in personam jurisdiction herein, that statute provides that this Court "may issue all writs
necessary or appropriate in aid of [its] jurisdiction. . . ." [emphasis added].
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C. Whitmore Issues.1
1. Judicial Estoppel.
Amid begins with an observation based upon the Respondents' Motion to Dismiss. The
Government first admits that Respondent Bush directed that the Petitioner be transferred to the
military's "control."2 Upon information and belief, the source being Petitioner's counsel, Ms.
Newman, this activity was done ex parte, without either notice to or the consent of Petitioner's
counsel. However, the Government then proceeds to expend considerable effort and paper
arguing about the failure of the Amended Petition for Writ of Habeas Corpus to be personally
signed by Petitioner, and attacking Ms. Newman's "next friend" status. Thus, the Government
hardly has "clean hands,"3 in this matter and should in any event be judicially estopped from
contesting Ms. Newman's "next friend" status. See, New Hampshire v. Maine, 532 U.S. 742, at
749-52 (2001).4 Ms. Newman was and remains Mr. Padilla's attorney and it is simply the
1
Whitmore v. Arkansas, 495 U.S. 149 (1990).
2 If the Commander in Chief did not direct Petitioner's transfer to and military confinement, then Petitioner's
continued incarceration is even mote constitutionally suspect. As will be discussed, Amid Clilile submit that the
Commander in Chief has no lawful authority to confine Petitioner, unless Petitioner is a bona fide Prisoner of War,
which Respondents apparently reject. Respondents Rumsfeld, Ashcroft and Marr have no independent legal
authority to imprison any U.S. citizen, absent a Court Order.
3 See, e.g., Malarkey v. Texaco, Inc., 983 F.24 1204, at 1215 (rd Cir. 1993).
4 Lest there be any confusion by either the parties or the Court, Amid is not suggesting any thing other than
such judicial estoppel of the Government's arguments pertaining to "next friend" status for purposes of this
litigation.
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Government's actions, both in removing him to a military jail and then confining him
incommunicado, that affirmatively precluded her from having her client personally sign and
verify either the original or amended Writ petition herein.
Furthermore, under the circumstances, i.e., the Government's clandestine removal and
incommunicado incarceration, Amid Curiae respectfully suggest that the Court resolve this the
way that the Federal Rules of Civil Procedure contemplate: apply Rule 17(a), F.R.Civ.P.,5 and
either allow Ms. Newman to obtain her client's signature to "cure" the issue, or equitably bar the
Government from asserting this schizophrenic and unseemly position. Congress plainly
considered the applicability of the Federal Rules of Civil Procedure as 28 U.S.C. � 2242 clearly
makes reference to them in the context of amending or supplementing the application, to wit: "It
may be amended or supplemented as provided in the rules of procedure applicable to civil
actions."6
5
The applicable portions read:
(a) REAL PARTY IN INTEREST. Every action shall be prosecuted in the name of the
real party in interest. . . . No action shall be dismissed on the ground that it is not
prosecuted in the name of the real party in interest until a reasonable time has been
allowed after objection for ratification of commencement of the action by, or joinder or
substitution of, the real party in interest; and such ratification, joinder, or substitution
shall have the same effect as if the action had been commenced in the name of the real
party in interest [Emphasis added].
6 Amid would note a curious procedural defect with Respondents. Motion to DISMISS. Petitioner's Amended
Petition is a "verified" pleading. Respondents' motion is presumably brought pursuant to Rule 12(b)(1) and (2),
F.R.Civ.P., and they do not deny the verified facts of the Amended Petition. Thus, Petitioner's facts should be
deemed "admitted" for purposes of resolving the Motion to Dismiss. Rule 8(d), F.R.Civ.P. More troublesome
procedurally, Amid suggest, is Respondents complete failure to provide any evidentiary basis for their factual
averments. Compare, Rule 56(e), F.R.Civ.P. For example, Respondents claim that Petitioner is "being held,
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2. Ms. Newman Has Proper "Next Friend" Status.
The Government's reliance on Whitmore is curious at best, if not quite misplaced. The
decision in Whitmore at page 162, cites with approval United States ex rel. Toth v. Quarles, 350
U.S. 11, at 13, n. 3 (1955). If one goes to the opinion in Toth first, the lead respondent, Quarles,
was the Secretary of the Air Force. Furthermore, if one reads the footnote cited in Whitmore, it
notes inter alia: "This habeas corpus proceeding was brought in the District Court for the District
of Columbia by Toth's sister while he was held in Korea. . . ." Thus, two Supreme Court
decisions- Whitmore and Toth - explicitly contradict the Government's fundamental assertions
herein that (a) the only proper respondent is Commander Marx-, and (b) and that a United States
District Court can only have "jurisdiction" where a "proper respondent with 'custody' over
Padilla is present within this Court's territorial jurisdiction." Respondents' joie Motion to
Dismiss, page 2. The Government of course does not address the conundrum presented by Toth,
which Amici submit is a significant oversight. How one can overlook the fact that Toth's sister
filed a writ seeking habeas corpus in the District of Columbia, while Toth himself was confined
- not even within the territory of the United States, but in Korea - as well as the fact that the lead
consistent with the laws and customs of war. . ." as an "enemy combatant." [Motion to Dismiss, p. 4]. These are
factual averments without any evidentiary basis presented to the Court, and on information and belief, the source
being Petitioner's counsel, they are disputed by Petitioner. Despite the rhetoric, Congress simply has not issued a
Declaration of War, a necessary pre- condition Amid respectfully suggests, for the above examples to be true.
7 Amid would also point out to the Court herein, that a conflict of interest appears on the face of the
Government's Motion to Dismiss, for counsel to represent all Respondents jointly. Commander Mar, an active duty
military officer, is subject to prosecution by court-martial for disobeying the "orders" of her superiors, [see 10
U.S.C. � 892] which Respondent's Bush and Riunsfeld are, viz., she could not release Petitioner herein even if she
honestly believed him to be illegally confined. As noted, she would be first violating the "confinement" order of her
superiors, and in any event, she would also be subject to criminal prosecution via court-martial for illegally releasing
a prisoner pursuant to 10 U.S.C. � 896. As will be shown, she lacks the "proper authority" to effectuate Petitioner's
release.
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respondent in Toth was the Service Secretary, in the face of the Government's position herein is
mystifying. While Respondents' counsel may claim ignorance or mistake, they cannot claim
that Toth is a jurisprudential aberration as this precise footnote was cited by the Whitmore Court
as noted above - the very case the Government relies upon herein!
That Respondents' legal position on jurisdiction lacks any legal support, is further
supported by Whitmore 's reliance on and citation to Morgan v. Potter, 157 U.S. 195, at 198
(1895), at page 163 of the Whitmore opinion. In the context of "next friend" principles, Morgan
teaches the reader that a "next friend. . . resembles an attorney . . . ." Ms. Newman not only
"resembles an attorney," she is and was Petitioner's attorney. The Respondents' objections to
Ms. Newman's "next friend" status are not well taken and are clearly not supported by the
Supreme Court's precedent.
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3. Whitmore Is Not Controlling In Any Event.
If one studies the opinion in Whitmore, it is easily seen why it has no applicability nor
control over the case sub judice. Whitmore, a death row inmate himself, sought "next friend"
status for the purported "real party in interest," Simmons, another death row inmate. The
underlying problem in Whitmore - which the Government also appears to have ignored - was that
Simmons was not a real party in interest for two reasons. First, Simmons had clearly voluntarily
and judicially waived all appeals of his death penalty, thus mooting any issue as to its appeal,
assuming that there was no "next friend" issue. Second, as the facts in Whitmore clearly show,
Whitmore was the "real party in interest" as he feared the impact of Simmon's death penalty on
his own death sentence. There was no showing that Simmons lacked access to the Court system
or was mentally incompetent. Indeed, it was to the contrary. Further distinguishing Whitmore
from the case at bar is the Court's observation that
Whitmore . . . does not seek a writ Of habeas corpus on behalf of
Simmons. He desires to intervene in a state-court proceeding to appeal
Simmons' conviction and death sentence. Under these circumstances,
there is no federal statute authorizing the participation of "next friends."
495 U.S. at 164.
Here of course, the precise language of 28 U.S.C. � 2242, expressly allows one to act on "behalf'
of another.8 The Government's arguments and reliance on Whitmore are so misplaced and out of
context, that Amid respectfully submit that the Court cannot give them any credence.
8 The applicable portion reads: "Application for a writ of habeas corpus shall be in writing signed and
verified by the person for whose relief it is intended or by someone acting in his behalf."
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D. The Respondents Are Proper Parties Herehh9
While Amid foster and encourage civility in all aspects of litigation, to include a general
abhorrence for ad hominem attacks, there is a highly troubling aspect to Respondents'
jurisdictional claims. Respondents' counsel have in their Motion to Dismiss at page 11,
contested inter alia the proper status of Respondents' Bush and Rumsfekl, chiming that they are
"not proper respondents in this case." There is a substantial body of case law, including cases
that the Solicitor General's Office participated in, that strongly suggest otherwise in the arena of
military habeas corpus cases. Toth, supra, for example, had the Secretary of the Air Force,
Quarles, as lead Respondent, and if the Respondents' position is correct in the matter sub judice,
then the Supreme Court should have dismissed Toth's "next friend" petition since Toth was
confined in a military brig in Korea.10
A long line of Supreme Court cases are consistent with Toth. Amici respectfully suggest
that where Respondents err on their jurisdictional analysis is their failure to conceptually
differentiate the cases that they rely uponl 1 � post-conviction attacks by convicted prisoners
who are incarcerated pursuant to a "judgment" of a court, committing them to a prison sentence
9 Amki Curiae take no position as to Respondent Ashcroft, as we are not privy to what the arrangements
were between the Attorney General and the Secretary of Defense. It is not germane to OUT position as Amid.
10 Compare, Goldsmith v. Clinton, of al., 48 MI 84 (CAAF, 1998), rev'd Clinton v. Goldsmith, 526 U.S. 529
(1999). While not a habeas action, it was a comparable "extraordinary writ" matter, where both the President and
Secretary of Defense were named Respondents.
11 One exception is Monk v. Martin, Sec 'y of the Navy, 793 F.2d 364 (D.C. Cir. 1986), which is neither
binding nor persuasive in light of Supreme Court precedent to the contrary, which Amid will address separately
infra. See also, Monk v. Zekz, 901 F.2d 885 (10th Gr. 1990) [granting habeas relief].
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� from the reality of the case at bar. Here, Petitioner is incarcerated incommunicado, not by a
valid court order or judgment, i.e., a conviction, but by a purported military order of the
Commander in Chief. Thus, Respondents' legal authority in not only legally irrelevant, but
regrettably misleads the Court. The situation is drastically different in "military" cases � the
area of jurisprudence that Amici Curiae respectfully submit is both controlling, but also supports
the proper exercise of this Court's continuing jurisdiction.12 Respondents' position � if correct
� ultimately could result in no Court having habeas corpus jurisdiction, simply by the fiat of the
Commander in Chief by confining citizens in United States military prisons overseas.13 That of
course is not the law. Toth, supra.
Burns v. Wilson, 346 U.S. 127 (1953) [a plurality, post-conviction habeas action], begins
by noting the substitution of Secretary of Defense Wilson for his predecessor. Why substitute
the lead Respondent if he is not a proper party to begin with? Burns further confirms the plenary
power of Congress; "Congress has taken great care. . to define the rights of those subject to
military law. . . ." 346 U.S. at 140. If Petitioner is subject to military confinement, it must be
subject to some valid Congressional enactment14 While a fractured Court denied habeas relief
12 Amici note that the Government had no apparent challenge to this Court's jurisdiction over issues originally
surrounding Petitioner's arrest and confinement on the Material Witness warrant.
13 Amid would note that there is presently pending a habeas corpus action in the District Court for the
District of Columbia, involving the "detainees" being held at Guantanamo Bay, Cuba's military prison, styled Rasul
et al., v. Bush, et al., which is available at: httpews.findlaw.comihdoesidocs/terrorismIrasu1bush021902pet.htm1
[last accessed on July 1, 2002]. The Government's response contesting the habeas action is at:
http://www.campusy.net/03.18.02%20Gov't%20Response%20to%20Access%20&%20Notice.PDF [last accessed,
July 1, 20021
14
Amid discuss the Congressional authority in detail in Parts III and IV, Wm.
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in Burns, it did so based upon the fact that the habeas issues had been fully adjudicated within
the military legal system, hardly the case herein, as Petitioner has been afforded no judicial
review, military or otherwise.
In Parisi v. Davidson, 396 U.S. 1233 (1969), further rev., 405 U.S. 34 (1972), not only
was the Secretary of the Army a Respondent, but in denying a stay application ina non-criminal,
military habeas proceeding presented to Justice Douglas, he noted:
[A]s the Solicitor General points out, the Secretary of the Army is a party
to his action; hence the case will not become moot by the deployment [of
Petitioner to Vietnam].
Parisi had been ordered to Vietnam during the pendency of his habeas corpus action and was
obviously concerned about jurisdictional issues, if he was forced to leave the Country. Because
of the Solicitor General's concessions, as well as assurances to the lower court that the
Respondents' would "produce" Parisi in response to a Court Order, the stay was denied. The
military hierarchy requires obedience to orders, that should be a given.I5 The military order
herein by the Commander in Chief, 16 simply must be obeyed by all of his subordinates absent a
judicial challenge that such order is illegal or constitutionally defective. That is the very purpose
15
See, 10 U.S.C. � 892, Article 92, UCM.T, making it a crime to violate "lawful" orders in the military.
16 That the Commander in Chief and Secretary Rumsfeld have the requisite "contacts," within this Court's
territorial jurisdiction, is easily demonstrated by the number of Armed Forces Recruiting Stations within the District
The Second Circuit has upheld an even more tenuous jurisdictional basis for a military habeas case, in Arlen v.
Laird Sec 'y of Defense, 451 F.2d 684 (2" Cir. 1971). See also, Lantz v. Seamans, Sec 'y of Air Force, 504 F.2d 423
(2" Cir. 1974); accord, Carney v. Laird, Sec'y of Defense, 462 KW 606 (1� Cir. 1972).
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of this habeas corpus action. Here, per the Solicitor General's argument in Parisi, supra,
Respondents Bush and Rumsfeld � as parties herein � can clearly effectuate a habeas corpus
Order of this Court.
Amici suggest that the manner in which this case arose is also relevant to this Court's
consideration. Despite knowing that Petitioner had counsel and knowing that counsel was
actively contesting the Government's actions, the Government herein proceeded in an ex parte
fashion, thus totally precluding Petitioner's counsel to seek a stay under Parisi concepts. The
Government simply lacks "clean hands" in this matter and equitable considerations should not
allow them to benefit from such by way of claiming that their actions served to divest this Court
of jurisdiction.
A plethora of other Supreme Court cases demonstrates that it has long been an accepted
jurisdictional practice to denominate the Secretary of Defense or applicable Service Secretary as
a named Respondent, with as in Burns, the apparent concession of the Solicitor General's Office.
See, e.g., Strait v. Laird, Sec'y of Defense, 406 U.S. 341(1972) [minimal contacts for military
habeas jurisdiction]; Secretary of the Navy v. Avrech, 418 U.S. 676 (1974) [jurisdictional issue
not decided]; Schlesinger, Sec'y of Defense v. Councilman, 420 U.S. 738 (1975) [injunctive
relief barring court- martial denied]; Middendorf Sec 'y of the Navy v. Henry, 425 U.S. 25(1976)
[no jurisdictional impediment noted to "class action" habeas corpus action].
Respondents' reliance on Monk v. Sec'y of the Navy, 793 F.2d 364 (D. DC 1986), is
misplaced. Monk brought a civil suit seeking inter alia monetary damages and declaratory relief
after he had been court-martialed and convicted. Thus, there was a presumptively valid court
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"judgment" confining him17 and he had exhausted his direct appeals. Monk's holding that a
military prisoner can only bring a federal habeas action in the District where confined18, relies
on the faulty logic that federal "civilian" prisoners are similarly situated to "military" prisoners.
They are not. Civilian prisoners� are in jail pursuant to a Court Order - either pretrial or after
17
As noted, Monk ultimately obtained habeas relief, see, Monk v. Zelez, supra.
18 To the extent that Monk suggested that Virginia, not the District of Columbia, was the proper venue to sue,
that argument plainly ignores the Constitutional doctrine of our "seat of government," found in Article I, � 8, cl. 17,
to wit
To exercise exclusive Legislation in all Cases whatsoever, . . . as may, by Cession of
Particular States, and the Acceptance of Congress, become the Seat oldie Government
of the United States.. . . [Emphasis added].
See, e.g., Crandall v. Nevada, 73 U.S. 35, at 44 (1867), which noted:
The people of these United States constitute one nation. They have a government in
which all of them are deeply interested. This government has necessarily a capital
established by law, where its principal operations are conducted. Here sits its
legislature, composed of senators and representatives, from the States and from the
people of the States. Here resides the Presiden4 directing through thousands of agents,
the execution of the laws over ail this vast country. Here is the seat oldie supreme
Judicial power of the nation, to which all its citizens have a right to resort to claim justice
at its hands. Here are the great executive departments, administering the offices of the
mails, of the public lands, of the collection and distribution of the public revenues, and of
our foreign relations. These are all established and conducted under the admitted powers
of the Federal government [emphasis added].
The Secretary ofDefense is obviously part of the Executive Department, 10 U.S.C. � 111(a).
19
Amid distinguish immigration cases from this category since as by definition, they are not U.S. citizens.
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conviction.20 Military prisoners in pre-trial situations (or detainees), such as Petitioner are
imprisoned not by a Court Order with attendant due process, but by the "order" of a proper
commander. As Toth holds, the legality of that order and subsequent detention is indeed subject
to challenge via habeas corpus.21 See generally, Parisi v. Davidson, supra, and Arlen v. Laird
supra.
Finally, Amid would draw the Court's attention to Ex Parte Hayes v. Sec'', of Army, 414
U.S. 1327 (1973), a decision in Chambers by Justice Douglas. Hayes, on active duty with the
U.S. Army and stationed in Germany, filed an original habeas corpus application with the
Supreme Court. At the suggestion of the Solicitor General, Justice Douglas transferred the case
to the District Court for the District of Columbia pursuant to 28 U.S.C. � 2241(b). Respondents'
herein have "suggested" that were this Court so inclined to transfer jurisdiction, that such should
be to the appropriate district in South Carolina. Respondents however, neglect to advise this
Court how the jurisdictional issues they raise herein pertaining to Respondents' Bush and
Rumsfeld, would not also plague the federal court in South Carolina.
20 The one exception that Amid Curiae would note, are those confined via "civil commitment" proceedings,
something that mandates Due Process. See, e.g., Kansas v. Crane, 534 U.S. 407 (2002) [jury trial provided for civil
commitment as sex offender]; accord, Kansas v. Hendricks, 521 U.S. 346 (1997); and Allen v. Illinois, 478 U.S. 364
(1986) ("strict procedural safeguards" provided]. Amid submit that Petitioner has not even been afforded minimal
due process in his "military" confinement - a fact that the Government basically claims is irrelevant!
21 Compare, Application of Yamashita, 327 U.S. 1 (1946), where General Yamashita was tried and convicted
by a military commission of war crimes while commanding Japanese forces in the Philippines during WW II. While
the Supreme Court denied the writ on the merits, they did not dismiss it for jurisdictional grounds, as in Johnson v.
Eisentrager, 339 U.S. 763 (1950) [habeas jurisdiction denied to German POW's, captured and tried by a military
commission in China, and confined in Germany. As "enemy aliens," they had no right to access American courts,
especially when they had never been in the United States].
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Amici respectfully submit that the "suggestion" of the Solicitor General in Hayes, supra,
(assuming this Court is inclined to transfer, which Amid do not advocate for the reasons stated
herein) that since the underlying "order" confining Petitioner originated with Respondent Bush,
that such order transferred control to "the United States military" [Motion to Dismiss, p. 5], of
which Respondent Rumsfeld is the Secretary of Defense and therefore, the senior civilian in
charge of all U.S. Armed Forces personnel, facilities and Prisoners of War and other military
"detainees." That is no doubt why the Government admits that the "military" transported
Petitioner out of New York [Motion to Dismiss, p. 5]22 Thus, Antici would alternatively argue
that assuming arguendo that a judicial transfer is warranted, that the correct and proper
jurisdiction herein must be the District of Columbia.23
22 This "contact" would seem sufficient for "long arm" jurisdiction, although as Amid suggest, such is not
necessary for this Court's jurisdiction herein.
23 Amid will demonstrate in the next section why Respondent Marr, as a subordinate to both Respondents
Bush and Rumsfeld, has no lawful authority to release Petitioner. Indeed, that was the military's position in Ex
Parte Merryman, 17 Fed.Cas. 144 (C.C.D. Md. 1861).
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E. Commander Mares Status.
Petitioner was required by Rule 81(aX2), F.R.Civ.P., to name Commander Marr24 as a
Respondent But, it is disturbing to read Respondents' argument:
There is only one proper respondent for a habeas petition filed to
challenge the detention of Padilla, and that is the commanding officer of
the Naval Brig in South Carolina, Commander Melanie A. Marr, United
States Navy. [Motion to Dismiss, p. 11].
because that argument is quite wrong. Counsel for Respondents had to have known of
Department of Defense Directive [DODD] 2310.1 (1994), entitled, DoD Program for Enemy
Prisoners of War (EPON9 and other Detainees," which at paragraph 3.3, clearly states:
3.3. Captured or detained personnel shall be accorded an appropriate legal
status under international law.[26] Persons captured or detained may be
transferred to or from the care, custody, and control of the U.S. Military
24 Ms. Marr is both a "Commander" by virtue of her military rank [0-5], as well as her position. She is not
however, at least lawfully, Petitioner's "commander," as he is a civilian. Furthermore, under the UCMJ, a Brig
"Commander" is not analogous to a warden of a federal prison.
25 Available at: http://www.dtic.millwhs/directives/correstpdf/d23101_081894/d23101p.pdf [Adobe a.pdf'
format] [last accessed, July 1, 2002].
26 There is no evidence that this has been done. "International law" states that once captured, that POW status
where disputed, must be decided by an "appropriate tribunal," such as this Court. See, The 1949 Geneva Convention
Relative to the Treatment of Prisoners of War, http://www.unhchr.ch/htmllmenu3/b/91.htm. See also, Convention
Relative to the Protection of Civilian Persons in Time of War, http://www.unhchr.ch/html/menu3/b/92.htm [last
accessed, June 20, 2002].
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Services only on approval of the Assistant Secretary of Defense for
International Security Affairs (ASD(ISA)) and as authorized by the
Geneva Conventions Relative to the Treatment of Prisoners of War and
for the Protection of Civilian Persons in Time of War (references (d) and
(e)). [emphasis added].
Thus, pursuant to a binding and mandatory Directive from Respondent Rumsfeld's own office,
Commander Marr is powerless to do anything affecting Petitioner that is not ordered by either
the appropriate Assistant Secretary of Defense, or his/her superiors, viz., Respondents' Bush and
Rumsfeld. Furthermore, DODD 2310.1, paragraph 4.2, designates the Secretary of the Army
[not the Navy, which Commander Man is in] as the "DoD Executive Agent for the
administration of the DoD EPOW Detainee Program. . ."27
It is abundantly clear that Respondent Bush, as Commander in Chief, and Respondent
Rumsfeld, as Secretary of Defense are indeed proper respondents, while Commander Man lacks
any authority or discretion to do anything but "follow orders." � As Chief Justice Taney
discovered in Merryman, supra, a "brig" commander upon an order from the Commander in
Chief, may not comply even with a valid writ of habeas corpus.28
27 Amid find it curious that in view of this language that both "civilian detainees" who are U.S. citizens �
Padilla and Hamdi (cited in Motion to Dismiss herein) � are imprisoned in Navy, not Army Brigs, which both
happen to lie with the federal Fourth Circuit's jurisdiction.
28
What was not however addressed in Merryman, supra, was the Court's contempt power.
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To understand why Respondent Marr lacks authority in view of both the Commander in
Chief's order and the DoD Directive, Amid note that under military law � the Uniform Code of
Military Justice29 and the Manual for Courts-Martia130 � that it would be a crime for her not to
follow or comply with such. Two specific provisions of the UCMJ apply to Commander Marr:
10 U.S.C. � 892. Article 92. Failure to obey order or regulation
Any person subject to this chapter who -
(1) violates or fails to obey any lawful general order or tegulaticm;
(2) having knowledge of any other lawful order issued by a member of the armed
forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct
10 U.S.C. � 896. Article 96. Releasing prisoner without proper authority
Any person subject to this chapter who, without proper authority,
releases any prisoner committed to his charge, or who through
neglect or design suffers any such prisoner to escape, shall be
29
10 U.S.C. � 801 et seq.
30 The Manual for Courts-Martial (2000 ed), is an Executive Order, promulgated pursuant to 10 U.S.C. �
836. It may be accessed at hftp://wanv.usapa.anny.mil/pdffileshnon2000.pdf [last accessed, July 1,20023.
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punished as a court-martial may direct, whether or not the prisoner
was committed in strict compliance with law.
To understand these statutes, one turns to the Manual for Courts-Martial [MCM] for guidance.
The MCM contains the Rules for Courts-Martial [RCM], the procedural guidelines used to
implement the UCMJ. Two rules govern this situation:
Rule 304. Pretrial restraint
(a) Types of pretrial restraint. Pretrial restraint is moral or physical restraint on a
person's liberty which is imposed before and during disposition of offenses.
Pretrial restraint may consist of conditions on liberty, restriction in lieu of arrest,
arrest, or confinement.
(4) Confinement. Pretrial confinement is physical restraint, imposed by order
of competent authority, depriving a person of freedom pending disposition of
offenses. See R.C.M. 305.
(b) Who may order pretrial restraint.
(1) Of civilians and officers. Only a commanding officer to whose authority
the civilian or officer is subject may order pretrial restraint of that civilian or
officer.
(g) Release. Except as otherwise provided in R.C.M. 305, a person may be released
from pretrial restraint by a person authorized to impose it. Pretrial restraint shall
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terminate when a sentence is adjudged, the accused is acquitted of all charges, or all
charges are dismissed. [emphasis added].
Rule 305. Pretrial confinement
(a) In general. Pretrial confinement is physical restraint, imposed by order of
competent authority, depriving a person of freedom pending disposition of charges.
(b) Who may be confined. Any person who is subject to trial by court-martial may be
confined if the requirements of this rule are met
(c) Who may order confinement. See R.C.M. 304(b).
(g) Who may direct release from confinement Any commander of a prisoner[31], an
officer appointed under regulations of the Secretary concerned to conduct the review
under subsection (i) and/or (j) of this rule, or, once charges have been referred, a
military judge detailed to the court-martial to which the charges against the accused
31 Commander Marr is not Petitioner's "commander" even though she may be the Brig Commander. For pre-
conviction purposes, Petitioner as a civilian, U.S. citizen has no commander. Absent declaring Petitioner a formal
POW, both common sense and military law require a nexus, Le., a military "status," before one can have a military
"commander." See generally, Solaria v.United States, 483 U.S. 435 (1987).
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have been referred, may direct release from pretrial confinement For purposes of this
subsection, "any commander" includes the immediate or higher commander of the
prisoner and the commander of the installation[32] on which the confinement facility
is located.
In view of the fact that (a) Petitioner was ordered into military confinement by the
Commander in Chief; (b) by virtue of the governing regulation, DODD 2310.1's express
language; and (c) the simple fact that Petitioner is a civilian, U.S. citizen, even if he is ultimately
adjudicated an "enemy combatant," Commander Marr simply is not his "custodian" for purposes
of military law. Petitioner's "custodian" for the instant habeas application is as Rule 304(b),
RCM, states, the person who ordered Petitioner's military confmement, either Respondent Bush
or Respondent Rumsfeld. And, as Rule 305(g), RCM, teaches, Commander Marr may not direct
his release.
Amici would note that for persons subject to military law, i.e., the UCMJ,33 does not
specifically provide for direct habeas corpus applications. Indeed, the Supreme Court has
indicated that such relief must be sought from what is now, the United States Court of Appeals
32 Even if the Government's logic were correct, Commander Marr here still would not be authorized to
"release" Petitioner as even the Government must concede that she is not the commander of the "installation," [base]
where the Brig is located. That would be the Commander, Naval Weapons Station, Charleston, SC. The "Brig" is a
sub-unit of the Base, see: http://www.nwschs.navy.mil/ [go to "FACTS" link, and scroll down to "Tenant Units][last
accessed, July 1,2002].
33 Amid note that since the Government contests Petitioner's POW status, that if one reviews Article 2(a),
UCMJ, 10 U.S.C. � 802(a), no cowry of detention is recognized by Congress for Petitioner's confinement
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for the Armed Forces [US CA/tF]34, and formerly called the United States Court of Military
Appeals [CMA]. See, Boyd v. Bon4 395 U.S. 683, at 693 et seq., and footnote 7(1969). Thus,
military persons illegally confined, obtain habeas relief through the All Writs Act, 28 U.S.C. �
1651(a). Absent a concession by the Solicitor General's office herein, in view of Petitioner's
non-military status, Amici do not believe that the U.S. Court of Appeals for the Armed Forces
would have jurisdiction to entertain an "extraordinary writ" in the nature of habeas corpus,"
especially in view of the restrictive interpretation given by the Supreme Court in Clinton v.
Goldsmith, supra. If however, Petitioner is accorded Prisoner of War stetus36, arguably that
Court might have jurisdiction � no case is known to Amid that has ever presented this issue �
as Petitioner would at least be subject to the UCM.I for misconduct as a prisoner. Absent that
however, All Writ's jurisdiction by the CAAF, is very problematic and is not a substitute for an
Article III, Court's plenary consideration of Petitioner's habeas corpus application herein.
34 Review of that Court's decisions is to the Supreme Court through certiorari. Article 67a, UCMJ, 10 U.S.C.
� 867a. The CAAF is a five judge, civilian court that sits in Washington, DC. It is an Article I, Court however, and
thus its jurisdiction is limited. Sec Article 141 et seq., UCMJ, 10 U.S.C. � 941 et seq.
35 Compare, Waller v. Swift, 30 MJ 139 (CMA 1990) [habeas relief granted]; Waldn v. Cams, 24 MI 407
(CMA 1987) [show cause order issued to government on habeas issue]. "M1" is a WestLawill data base for West's
Militaty Justice Reporter system.
36
Amid address that issue in Part V. infra.
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II. JUSTICIABILITY.
Amid Curiae anticipate an issue as to the Court's authority to adjudicate the controversy
herein. Simply put, that is whether or not Petitioner's current and continued military
confinement is Constitutionally authorized. That is not and never has been a "political question."
Again, Amid would note that the issue does not involve the President as Chief Executive and the
general powers of such under Article II, U.S. Const. Rather it is limited to the expressly
delineated Constitutional grant conferring "Commander in Chief' status upon the President over
the Nation's military forces � the authority used to confine Petitioner.
Analysis of the "justiciability" issue begins with the seminal case of Baker v. Carr, 369 U.S.
186 (1962). There the Court noted:
The nonjusticiability of a political question is primarily a function of the
separation of powers. Much confusion results from the capacity of the
"political question" label to obscure the need for case-by-case inquiry.
Deciding whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is itself a delicate
tacercise in constitutional interpretation, and is a responsibility of this Court
as ultimate interpreter of the Constitution. 369 U.S. at 210-11 [emphasis
added]
The "War Powers" at issue herein - the power to militarily arrest and confine the Petitioner -
are given to Congress, not the President, in Article I, � 8. Absent a Congressional delegation in
this area to the Commander in Chief (which them has not been), the issue is more appropriately
focused as whether the instant actions of the Commander in Chief against the Petitioner, are ultra
vires? Judicial standards for evaluating claims under the Fourth and Fifth Amendments are well
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settled, and clearly within the province of the Judiciary. Indeed, historically the Judiciary has
ruled on, for lack of a better term, "political" confinement cases. See, e.g., Kilbourn v.
Thompson, 103 U.S. 168, at 196 (1881) [imprisonment for "contempt" of House of
Representatives illegal as "without any lawful authority."]
The Court in Powell v. McCormack, 395 U.S. 486 (1969), again confronted the
"justiciability" doctrine, and set forth a two-pronged analytical test:
[W]e turn to the question whether the case is justiciable. Two determinations
must be made in this regard. First, we must decide whether the claim
presented and the relief sought are of the type which admit of judicial
resolution. Second, we must determine whether the structure of the Federal
Government renders the issue presented a "political question" - that is, a
question which is not justiciable in federal court because of the separation of
powers provided by the Constitution. 395 U.S. at 516-17.
First, the "claim presented and the relief sought" - that Petitioner is illegally confined and his
release is warranted via habeas corpus - are classic judiciary issues. Thus, the focus must turn to
the "political question" concept. Powell again concisely addresses this matter:
In order to determine whether there has been a textual commitment to a co-
ordinate department of the Government, we must interpret the Constitution.
In other words, we must first determine what power the Constitution confers
. . . before we can determine to what latent, if any, the exercise of that
power is subject to judicial SWIM. 395 U.S. at 519 [emphasis added].
Amici Curiae would note that Art. I, � 8, Cl. 10, U.S. Const, gives Congress the power "To
define and punish Piracies and Felonies committed on the high Seas, and Offences against the
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Law of Nations." This express Constitutional grant, the so-called "textual commitment," to
Congress � not the President � along with the other Article I powers granted to Congress, viz.,
the power to "provide for the common Defence. . . of the United States;"37 the power to declare
war; the power to make "Rules concerning Captures on Land and Water;" "to raise and support
Armies;" "To provide and maintain a Navy;" and "To make Rules for the government and
Regulation of the land and naval Forces;"38 raises significant constitutional concerns about the
legal authority and constitutional scope of the confinement order herein. Chief Justice John
Marshall's early analysis bears noting:
The whole powers of war being, by the constitution of the United States,
vested in congress, the acts of that body can alone be resorted to as our guides
in this enquiry. It is not denied, nor in the course of the argument has it been
denied, that congress may authorize general hostilities, in which case the
general laws of war apply to our situation; or partial hostilities, in which case
the laws of war, so far as they actually apply to our situation, must be noticed.
Talbot v. Seeman, 5 U.S. 1, at 28 (1801). [Emphasis added].
Consistent with this express Constitutional power, Congress has definitively spoken precisely
on the underlying issue before this Court. Specifically, in 10 U.S.C. � 809,39 Congress mandates
"probable cause" as the standard for military confinement. Any present issue as to
"justiciability" is perhaps best resolved by the Powell Court's words:
37
38
Art. I, � 8, cl. 1, U.S. Const.
Art. I, � 8, cl. 11-14, U.S. Ccmst.
39 Article 9, UCKT, Imposition of Restraint. Article 9(a), explains the differences in military terminology
between "arrest" and "confinement," while Article 9(e), mandates a "probable cause" determination.
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Our system of government requires that federal courts on occasion interpret
the Constitution in a manner at variance with the construction given the
document by another branch. The alleged conflict that such an adjudication
may cause cannot justify the courts' avoiding their constitutional
responsibility. 395 U.S. at 549.
The justiciability doctrine was used in an attempt to insulate Presidential conduct from judicial
scrutiny in United States v. Nixon, 418 U.S. 683, at 692 (1974). The Court of course rejected
that argument. Clearly, if the content of a subpoena duces tecum issued to the President by a
prosecutor is justiciable, then similarly, resolution of whether or not the Commander in Chief is
illegally confining a U.S. citizen and denying him access to his counse1,40 absent any "probable
cause" determination, must likewise be justiciable.
In Clinton v. Jones, 520 U.S. 681 (1997), the Court unanimously resolved the "separation of
powers" question presented in a private, civil suit against a sitting President. The Court quickly
noted that rather than being barred from hearing the case by that doctrine, it merely was being
tasked to exercise its core constitutional jurisdiction, to decide "cases or controversies." The
Court emphatically rejected any deference argument by noting that prior cases had significantly
burdened official Presidential conduct, citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579(1952); and United States v. Nixon, supra.41
40 Factually, it must be remembered that an existing and on-going attorney-client relationship exists between
Petitioner and his counsel herein, and that such existed prior to the actions of the Respondents, thus making their
actions complained of even more constitutionally suspect
41 Amid i as will be discussed in greater detail below, submit that Youngstown is both controlling and
dispositive herein.
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Finally, questions as to the justiciability pertaining to the legality of a Commander in Chief
order, were resolved long ago by Chief Justice Marshall. In Little v. Barreme, 6 U.S. 170
(1804), the Court was squarely confronted with this issue - Congress passed a statute42 during a
maritime "war" with France, specifically delegating to the President as Commander in Chief,
powers to seize (and forfeit) certain ships and cargoes. The President issued an order, ostensibly
consistent with the statute. U.S. Navy Captain Little seized a ship pursuant to the Commander in
Chief's order and was promptly sued by the ship's owner's for damages. Little defended on the
ground that he was following an express order from the Commander in Chief, while the ship's
owners argued that the order was illegal, i.e., it exceeded the scope of the Congressional
statutory authorization. The Court speaking through Chief Justice Marshall, held that the
Commander in Chiefs order was indeed illegal, and noted that such an order could never
"legalize" an otherwise illegal act.
Two points from Little, supra, bear noting. First, the Court was called upon to consider the
legality of an order of the Commander in Chief that was clearly premised on a valid
Congressional exercise of its "war powers." Second, for the Court's decision to have any logical
meaning, it must be read to mean that the Commander in Chief cannot sua sponte increase his
power as Commander in Chief beyond that which Congress - the holder of the expressly
enumerated "war powers" - delegates to him. Thus, the matter herein is clearly justiciable and
resolution is dependant, not upon the Commander in Chiefs views of the Constitution, but rather
the Judiciary's views consistent with specific, textually committed Congressional authority.
42 In the matter sub judice there is no statute authorizing the Commander in Chief to summarily confine and
hold incommunicado (including from his own attorney), a United States citizen. Furthermore, Amid Curiae will
demonstrate below that such actions directly contravene specific Congressional enactments.
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THE ILLEGAL DETENTION OF THE PETITIONER.
[T]here ought always to be a constitutional method of giving efficacy to
constitutional provisions.
� Alexander Hamilton, The Federalist, Number 80.
A. Overview.
Our Republic and the democracy that we enjoy, i.e., a government "of the People, by the
People, and for the People," - did not come easily. As history shows, the United States of
America was conceived in terroristic acts that evolved into a full-scale, military revolution. The
"wars" with Native Americans, the Boston Massacre, Lexington and Concord and the ensuing
siege of Boston all contributed to our Revolutionary War against Britain. Indeed, one of the
chief complaints of the "Colonists," against the British Throne was, according to our Declaration
of Independence, ". . . He has affected to render the Military independent of and superior to the
Civil power. . . ."43 Amici Curiae emphasize this history because of its contextual relevance -
the Framers of our Constitution were acutely aware of the dangers of surprise attacks as well as
43 See. http://www.archives.gov/exhibit_hall/charters_of_freedom/declaration/declaration_transcription.html
[last accessed, June 20, 20021 for the complete text.
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full-scale war. The military presence and oppression of King George Ill's armies was a
precipitating factor leading to war.44 Indeed, "terrorism" was a specific concern:
"He has excited domestic insurrections amongst us, and has endeavoured to
bring on the inhabitants of our frontiers, the merciless Indian Savages, whose
known ride of warfare, is an undistinguished destruction of all ages, sexes
and conditions:45
It was with this background that our Constitution was born and from which it must be
interpreted.
Those events were fresh in the minds of the Continental Congress when our Constitution was
drafted, debated and ratified. The "civilian supremacy" influence permeates the document itself:
Article I, � 8: Congress (civilians) regulates the military, declares war, etc.;
Article II, �2: The President (a civilian) is the Commander in Chief of the military;
Third Amendment Citizens cannot be forced to "quarter" the military during
peacetime, and only in a manner prescribed by law during war;
44 See, e.g., ". . .He has kept among us, in times of peace, Standing Armies without the Consent of our
legislatures;"". . .For Quartering large bodies of armed troops among us:" "For protecting them, by a mock Trial,
from punishment for any Murders which they should commit on the Inhabitants of these States:" "He has plundered
our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people." "He is at this time
transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already
begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy
the Head of a civilized nation." Ibid.
45
Ibid. [emphasis added].
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Fifth Amendment The right to indictment by Grand Jury applies to all citizens
"except in cases arising in the land or naval forces. . ." i.e., the military.
Thus, the core constitutional concept is one of civilian control over the military. Or, as the
Supreme Court stated: "The established principle of every free people is, that the law shall alone
govern; and to it the military must always yield." Dow v. Johnson, 100 U.S. 158, at 169 (1879)
Amici Curiae respectfully assert that the military "order" confining the Petitioner as a
civilian, U.S. citizen in a military prison, is simply illegal. Hence, his continued imprisonment is
unconstitutional. County of Riverside v. McLaughlin, 500 U.S. 44 (1991). While we recognize
the constitutional tensions implicit in claiming illegality of the Commander in Chiefs order
under separation of powers concepts, it is indeed both the constitutional role and function of the
judiciary under Article III, of the Constitution, to interpret the Constitution. Marbtay v.
Madison, 5 U.S. 137 (1803), both addresses and resolves this issue. It is the position of the
Amid herein that the seizure and imprisonment of the Petitioner violates both the Fourth and
Fifth Amendments to the Constitution; that the "War Powers" enumerated in the Constitution are
expressly given to the Congress in Article I, � 8; that where Congress has exercised those
powers, which it has done via the Uniform Code of Military Justice, 10 U.S.C. � 801 et seq.,
rUCM.I1 that the President as Commander in Chief is Constitutionally bound to follow and
obey such statutes. Finally, it is long- settled that as Commander in Chief, the President does not
have any independent "war powers," other than being "Commander in Chief," nor does the
Constitution recognize any exceptions by virtue of any claimed "military necessity" or for
"national security." Thus, the Great Writ ofHabeas Cmpus respectfully lies:
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The writ of habeas corpus is the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action. Its pre-eminent
role is recognized by the admonition in the Constitution that: "The Privilege
of the Writ of Habeas Corpus shall not be suspended. . . ." U.S. Const, An I,
9, cl. 2. The scope and flexibility of the writ - its capacity to reach all manner
of illegal detention - its ability to cut through bathers of form and procedural
mazes - have always been emphasized and jealously guarded by courts and
lawmakers. The very nature of the writ demands that it be administered with
the initiative and flexibility essential to insure that miscarriages of justice
within its reach are surfaced and corrected. Harris v. Nelson, 394 U.S. 286,
290-91 (1969) [emphasis added]
B. The "War Powers" Do Not Eviscerate the Fourth and Fifth Amendments.
The Petitioner - a civilian and United States citizen - is incarcerated incommunicado in a
United States military confinement facility, i.e., the U.S. Navy Consolidated Confinement
Facility at Charleston, S.C. On information and belief, the source being Petitioner's counsel, no
criminal charges - civilian or military - are presently pending against Petitioner. Amici Curiae
begin with these facts, because of the Constitutional issues that such military confinement
implicates. Furthermore, this Court may judicially note per Rule 201, F.R.Ev., that Congress has
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not suspended the Writ of Habeas Corpus pursuant to its Article I, � 9, cl. 2, power,46 nor has it
exercised its prerogative to declare "war."
The Fourth Amendment provides in pertinent part:
The right of the people to be secure in their persons . . . against unreasonable.
. . seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing.
. . the persons . . to be seized
Or, as the Supreme Court has observed, "it is recognized that the Fourth Amendment protects
people - and not simply "areas" - against unreasonable searches and seizures.. . ." Katz v. United
States, 389 U.S. 347, at 353 (1967). No "warrant" is known to exist supporting the seizure of the
Petitioner, although counsel for Petitioner has been orally advised that a military "confinement"
order, issued by the President in his capacity as Commander in Chief exists. Neither counsel for
Petitioner nor Amid has received a copy of that confinement order.
Perhaps the seminal case today is United States v. United States District Court,47 where a
"terrorist" by the name of Plamondon was accused of a dynamite bombing of a C.I.A. office in
Ann Arbor, Michigan., When the defense in Plamondon's criminal trial moved for disclosure of
46 While it would seem obvious that since this "suspension" clause is in Article I, U.S. Coast, the Legislative
article, that only Congress may suspend such, history notes that President Lincoln sua sponte ordered the writ
suspended during the Civil War. Chief Justice Taney, on Circuit held such action invalid. Er Pane Merryman, 17
Fed.Cas. 144 (C.C.D. Md. 1861). Congress later in fact, acted to rati4r Lincoln's actions. Act of March 3, 1863,12
Stat. 755.
47
407 U.S. 297 (1972).
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various "wiretap" evidence, Attorney General John Mitchell, responded inter alia that he � not
a Court � had approved the wiretaps "to gather intelligence information deemed necessary to
protect the nation from attempts of domestic organizations to attack and subvert the existing
structure of government." 407 U.S. at 299. The District Court noted that neither the President
nor his Attorney General could ignore the Fourth Amendment, ordered the material produced,
prompting the government's appeal to the Supreme Court
The Government went further, arguing that the wiretaps were "a reasonable exercise of the
President's power (exercised through the Attorney General) to protect the national security."
407 U.S. at 301. In rejecting the position and arguments of the Executive Department, the Court
began:
We begin the inquiry by noting that the President of the United States
has the fundamental duty, under Art. II, � 1, of the Constitution, to "preserve,
protect and defend the Constitution of the United States." Implicit in that duty
is the power to protect our Government against those who would subvert or
overthrow it by unlawful means. 407 U.S. at 310.
According to the Government, there had been "1,562 bombing incidents in the United States
from January 1, 1971, to July 1, 1971, most of which involved Government related facilities.'8
48
407 U.S. at 311, footnote 12.
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Even assuming those figures to be true, the Court refused even in the claims of "national
security," to ignore the Fourth Amendment and its principles:49
National security cases. . . often reflect a convergence of First and
Fourth Amendment values not present in cases of "ordinary" crime. Though
the investigative duty of the executive may be stronger in such cases, so also
is there greater jeopardy to constitutionally protected speech. . . . History
abundantly documents the tendency of Government � however benevolent
and benign its motives � to view with suspicion those who most fervently
dispute its policies. Fourth Amendment protections become the more
necessary when the targets of official surveillance may be those suspected of
unorthodoxy in their political beliefs. The danger to political dissent is acute
where the Government attempts to act under so vague a concept as the power
to protect "domestic security." Given the difficulty in defining the domestic
security interest, the danger of abuse in acting to protect that interest becomes
apparent. 407 U.S. at 313-14. [emphasis added].
The Court continued its lecture to the Chief Executive and Attorney General by observing:
These Fourth Amendment freedoms cannot properly be guaranteed if
domestic security surveillances may be conducted solely within the discretion
of the Executive Branch. The Fourth Amendment does not contemplate the
executive officers of Government as neutral and disinterested magistrates..
. . [T]hose charged with . . . investigative and prosecutorial duty should not be
the sole judges of when to utilize constitutionally sensitive means in pursuing
their tasks. The historical judgment, which the Fourth Amendment accepts, is
that unreviewed executive discretion may yield too readily to pressures to
49 A year earlier in the seminal "Pentagon Papers" case, New York Times v. United States, 403 U.S. 713
(1971), the Court rejected "national security' claims as justifying a prior restraint under First Amendment grounds
for publishing a classified (but mostly embarrassing) study of US. involvement in the war in Vietnam. First
Amendment issues are also implicated herein in the context of the total interference with Petitioner's Sixth
Amendment right to counsel, a right also statutorily conferred via Article 31(c), UCKT, 10 U.S.C. 831(c).
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obtain incriminating evidence and overlook potential invasions of privacy
and protected speech. 407 U.S. at 316-17 [emphasis added].
Finally, in language that will certainly be revisited in the near future, the Court concluded:
We cannot accept the Government's argument that internal security
matters are too subtle and complex for judicial evaluation. Courts regularly
deal with the most difficult issues of our society. There is no reason to believe
that federal judges will be insensitive to or uncomprehending of the issues
involved in domestic security cases. . . . If the threat is too subtle or
complex for our senior law enforcement officers to convey its significance to
a cow% one may question whether there is probable cause for surveillance.
407 U.S. at 320 [emphasis added].
The Fifth Amendment is also implicated herein, to wit:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time of
War or public danger; . . . nor be deprived of life, liberty, or property, without
due process of law . . . .
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However, by virtue of the fact that Petitioner is confined at a military confinement facility
pursuant to a military order of the Commander in Chief,50 versus an "Executive Order," or
"Presidential Order," means that any judicial analysis is thereby limited to the military provisions
of the Constitution and the Resident's authority and power thereunder as Commander in Chief.
Thus, the initial constitutional uncertainty herein is not whether or not the Congress
possesses the constitutionally enumerated "War Powers," because they clearly do, but rather
what authority if any, does the Constitution provide to the President while acting as Commander
in Chief to ignore applicable Congressional enactments, or perhaps more importantly, specific
Amendments to the Constitution? See, John H. Ely, War and Responsibility: Constitutional
Lessons of Vietnam and Its Aftermath (Princeton, NY: Princeton Univ. Press, 1993).51
50 Amid Curiae would note that this is a crucial distinction, viz., that the "order" is a military order of the
Commander in Chief, versus an Executive Order. The distinction is important because as will be shown, the powers
of the President under Article II, of the Constitution clearly include that of being Commander in Chief. However,
the Commander in Chiefs authority, is by definition constitutionally limited pursuant to the express terms of Article
I.
51 Hamilton's Federalist, Number 69, gives no indication that the framer's intended to give the President any
"war powers" other than being the supreme "Commander" of the Nation's armed forces. Indeed, that is the thrust of
Chief Justice Marshall's opinion above. That the President's role was conceived to be restricted, is best shown by
the "Anti-Federalist's" position on the then proposed Constitution, as advocated by Patrick Henry:
If your American chief be a man of ambition, and abilities, how easy is it for him to
render himself absolute: the army is in his hands, and, if he be a man of address, it will be
attached to him; and it will be the subject of long mediation with him to seize the first
auspicious moment to accomplish his design . . . . But, the President in the field, at the
head of his Anny, can prescribe the terms on which he shall reign master, so far that it
will puzzle any American ever to get his neck from under the galling yoke.
Ralph Ketcham, ed. The Anti-Federalist Papers and the Constitutional Convention Debates, (NY: Mentor Books,
1986) at 214.
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[T] he existence of an emergency does not redistribute the powers of
government allocated by the Constitution.52
Chief Justice Warren in United States v. Robel, 389 U.S. 258 (1967), as late as 1967 forcibly
rejected a government argument that its "War Power" justified curtailing constitutional rights, by
stating:
[T]he phrase "war power" cannot be invoked as a talismanic incantation to
support any exercise of congressional power which can be brought within its
ambit. "[E]ven the war power does not remove constitutional limitations
safeguarding essential liberties." Home Bldg & Loan Assn. v. Blaisdell, 290
U.S. 398, 426 (1934). . . 389 U.S. at 263-64.
The Chief Justice went on to observe:
[The] concept of "national defense" cannot be deemed an end in itself,
justifying any exercise of legislative power designed to promote such a goal.
Implicit in the term "national defense" is the nation of defending those
values and ideals which set this Nation apart. For almost two centuries, our
country has taken singular pride in the democratic ideals enshrined in its
Constitution, and the most cherished of those ideals have found expression in
the First Amendment. It would indeed be ironic If, in the name of national
defense, we would sanction the subversion of one of those liberties - the
freedom of association - which makes the defense of the Nation worthwhile.
Id. [emphasis added].
52 F. Wormuth & E. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law
(Dallas TX: Southern Methodist Univ. Press, 1986), at 12.
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While Robel, supra, referred to Congressional "war powers," (something at least recognized
Constitutionally), the concept that such an argument somehow authorizes the President as
Commander in Chief to do what Congress cannot do, must be similarly and firmly rejected
herein.
C. "MILITARY" LAW.
For most lawyers, especially those who have never dealt with the arcane intricacies of the
law as applied to the military or military situations, numerous misconceptions and semantical
inaccuracies exist Similarly the phrase, "military justice" is a term of art referring to practice
under the Uniform Code of Military Justice PCMJ1 and is likewise misused by the press and
politicians.53 Thus, just what are we talking about? The following definitions should suffice:
I. Military Law.
"[T]he exercise of that branch of the municipal law which regulates its
military estab1ishment."54 In the United States, it is the UCMJ, and its
implementing regulations.
2. Mardal Law.
53 Compare, remarks attributed to Vice President Cheney, who is reported to have "told a cheering audience
of conservative lawyers.. ., 'This is a war against terrorism. Where military justice is called for, military justice
will be dispensed." Robin Toner, Despite Some Concerns, Civil Liberties are Taking a Back Seat, NY Times,
Digital Ed., Nov. 18, 2001.
54 Paragraph 2, page I-1, Manual fir Courts-Martial (2000 Edition) [Washington, DC: GPO].
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"A government temporarily governing the civil population within its territory
or a portion of its territory through its military forces as necessity may
require."55
A fortiori the Petitioner a United States citizen who is not a member of the United States
military, cannot Constitutionally have military law applied to him under the present
circumstances, unless the Respondents admit that he is a bona fide Prisoner of War, subject to
United States jurisdiction.56 Furthermore, since "martial law" has not been declared (nor could
it be at this jtmatue),57 no military authority constitutionally exists to confine the Petitioner. In
fact Congress acting under its enumerated "war powers" under Article I, �, U.S. Const, has
spoken in a diapositive fashion. Recognizing as it must, the provisions of both the 4th and 5th
Amendments quoted above, Congress as part of the Uniform Code of Military Justice, enacted
Article 9, UCMJ,58 which states in relevant parts:
(a) Arrest is the restraint of a person by an order, not imposed as a punishment
for an offense, directing him to remain within certain specified limits.
Confinement is the physical restraint of a person.
55
56
57
58
Id.
Art. 2(sX9), UCMJ, 10 U.S.C. � 802(aX9).
See, Duncan v. Kahanamoku, 327 U.S. 304 (1946).
10 U.S.C. � 809.
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(d) No person may be ordered into arrest or confinement except for probable
cause. [emphasis added].
Congress continues its limitations in Article 10, UCMJ, 10 U.S.C. � 810:
Restraint of persons charged with offenses:
. . . When any person subject to this chapter is placed in arrest or confinement
prior to trial, immediate steps shall be taking to inform him of the specific
wrong of which he is accused and to tzy him or to dismiss the charges and
release him. [emphasis added].
It is clear just from the title that "preventive detention," viz., incarceration without charges was
not something that Congress envisioned. Equally as fundamental is the clause, "any person
subject to this chapter." Article 2(a)(9), UCMJ, 10 U.S.C. � 802(a)(9), provides the only
possible basis for the military to acquire "jurisdiction" over the Petitioner, i.e., he is a "Prisoner
of War."59 But, if he is not charged, he must be released, period.
59 If he is a Prisoner of War, then Petitioner is entitled to the various protections provided by the 1949,
Geneva Conventions and Protocols, see, e.g.,The 1949 Geneva Convention Relative to the Treatment of Prisoners of
War, http://www.tuthchr.chihtml/menu3/b/91.htm. See also, Convention Relative to the Protection of Civilian
Persons in Time of War, http://www.unhchr.ch/htmlimenu3/b/92.htm [last accessed, June 20, 2002].
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Article 11(b), UCMJ, 10 U.S.C. � 811(b), also carries the requirement that "uncharged"
persons are not to be confined, to wit
(b) Every commander of a guard or master at arms to whose charge a prisoner
is committed shall, within twenty-four hours after that commitment or as soon
as he is relieved from guard, report to the commanding officer the name of the
prisoner, the offense charged against him, and the name of the person who
ordered or authorized the commitment [emphasis added]
Thus, the Respondents, knowing that no charges have been brought against the Petitioner, are
clearly holding him illegally.60 Indeed, such conduct is per se criminal and it is abhorrent to
think that the Respondents would seek to have this Court either condone or ignore such illegal
conduct.61
60 This itself is a crime under military law as Article 98(2), UCMJ, 10 U.S.C. �898(2), states:
Any person subject to this chapter who -
(2) knowingly and intentionally fails to enforce or comply with any provision of this
chapter regulating the proceedings before, during, or after trial of an accused; shall be
punished as a court-martial may direct.
61 Arguably, the Commander in Chief's refusal to prosecute a clear violation of military law, violates his oath
to". . . preserve, protect and defend the Constitution of the United States." Art. II, � 1, U.S. Coast. That Amid
Curiae concede would be a "political question." The "prosecution" function is vested exclusively within the
Executive Branch, subject to Congressional impeachment Art. I, �� 2 and 3, U.S. Coast.
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Finally, the Respondents are illegally confining the Petitioner as (in their terms) an "enemy
combatant."62 Article 12, UCMJ, 10 U.S.C. � 812, states:
Article 12: Confinement with enemy prisoners prohibited
No member of the armed forces may be placed in confinement in immediate
association with enemy prisoners or other foreign nationals not members of
the armed forces.
Amid Curiae would represent that the Consolidated Naval Brig at Charleston is a military
prison, with (other than Petitioner) military prisonets.63
If the old adage, "actions speak louder than words," has any meaning, then the acts of the
Respondents herein are contemptuous. Contemptuous in the context of disregarding the rather
clear Congressional mandates noted above, and contemptuously disregarding the rights of the
military prisoners confined in the Charleston Brig. One is hard pressed to claim that the
Respondents are contemptuous of Petitioner's rights, since they claim that he is a persona non
grata without any fundamental or constitutional rights. Indeed, by fiat the Commander in Chief
has created a classic Bill of Attainder against the Petitioner herein. While the Constitutional
prohibition against such Bills of Attainder is directed to Congress in Article I, � 9, cl. 3, the so-
called "Limitation Article," it can hardly be claimed that the Commander in Chief can do
62 It is disingenuous at best to arbitrarily claim that Petitioner is an "enemy combatant," but that he is
therefore, somehow not a bona fide Prisoner of War.
63 The undersigned counsel, as an officer of the Court, represents that he personally has a client who was
convicted and sentenced by a U.S. Air Force, General Court-Martial, confined at the Charleston Brig.
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militarily what the Constitution otherwise forbids to be done to a United States citizen.
Compare, United States v. Brown, 381 U.S. 437 (1965). Or, as the Court observed in South
Carolina v. Kazenbach, 383 U.S. 301, at 324(1966):
[C]ourts have consistently regarded the Bill of Attainder Clause of Article I
and the principle of the separation of powers only as protections for
Individual persons and private groups, those who are peculiarly vulnerable
to nonjudicial determinations of guilL"
D. Due Process Illegality.
Amici respectfully suggest that the Government's arguments as to Petitioner's lawful
detention are legally absurd and must fail in light of Zadvydas v. Davis, 533 U.S. 678 (2001).
First, Davis clearly stands for the proposition that habeas corpus is the proper vehicle to contest
illegal confinement by the Government 533 U.S. at 687. If, as the Davis Court said, "A statute
permitting indefinite detention of an alien would raise a serious constitutional concern," 533 U.S.
at 690, then surely, a "military order" "permitting indefinite detention" of a U.S. citizen must
also raise "a serious constitutional concern." The Government cannot seriously argue that a
deportable alien, has more constitutional rights and protections than does a United States citizen
- regardless of how the Commander in Chief designates Petitioner, yet that is the fundamental
effect of their Motion to Dismiss in Petitioner's case.
64 See also, Nixon v. Administrator of General Services, 433 U.S. 425, at 468 at seq. (1977).
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Davis was not a criminal case - it was a deportation proceeding brought pursuant to our
immigration laws, that resulted in a de facto indefinite detention of an alien.65 But, as in other,
non- criminal detention matters,66 due process still protects against illegal detention. 533 U.S. at
693 ["the Due Process Clause applies to all `persons' within the United States. . .1. As herein,
the Government in Davis argued that the Judiciary "must defer to executive. . . decision making
. . . ." 533 U.S. at 695. But, as Davis held, "that power is subject to important constitutional
limitations." (citations omitted) Id.
Petitioner's situation is not such as where Congress � which as noted above, possesses the
Constitutional "war power" and power to regulate the military � has spoken, or even as in
Davis, delegated power to the Executive Branch. Congress simply has not spoken in this regard
and Petitioner's detention is ultra vires. Congress has however spoken on the issue of military
confinement in general, requiring a "probable cause" determination.67 That has not been
accomplished in Petitioner's case.
Simply put, Respondents would have this Court find that they can indefinitely confine
Petitioner pursuant to a military order under military authority after transporting him by military
aircraft, and then turn around and deny that military law as Constitutionally enacted pursuant to
Congressional power, applies to Petitioner's detention. Amid respectfully suggest that this
65 See 8 U.S.C. �1231(aX4
66 See cases cited in footnote 20, supra.
67 See Article 9(d), UCMJ, 10 U.S.C. � 809(d), and the discussion of this issue in Part M, C, supra.
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Court can and must give Congressional enactments, statutes textually committed by the
Constitution to Congress, due deference and apply them in Petitioner's case. Surely, if the
petitioners in Davis were entitled to relief from illegal confinement so is Petitioner.
Finally, Amici would suggest that Congress in enacting the UCMJ, must have been mindful
of the two 1949 Geneva conventions, the one pertaining to POW's and the other to civilians cited
above. The UCMJ was enacted in 1950 and if Congress had any qualms about the Geneva
Conventions, they certainly have had ample time through numerous amendments to the UCMJ,
to have either excluded "enemy combatants," or others from its provisions. Compare, Solorio v.
U.S., supra. Amici would point to the words of the Court in Schneiderman v. United States, 320
U.S. 118, at 120(1943):
We should let our judgment be guided so far as the law permits by the spirit of
freedom and tolerance in which our nation was founded, and by a desire to
secure the blessings of liberty in thought and action to all those upon whom
the right of American citizenship has been conferred by stage, as well as to
the native born. And we certainly should presume that Congress was
motivated by these lofty principles.
That the Government's position relative to Petitioner is both misguided and misplaced, is the
Government's reliance on Ex Parte Quinn, 317 U.S. 1 (1947).68 Whatever the application of
Quinn is to this case, one thing is certain � it did not involve any issues of U.S. citizenship.
The Court's language to that effect is pure dicta and is proven by the Government's own actions.
The "civilian" citizen "co-conspirators," were tried in United States District Courts. See, e.g.,
68 Quirin is addressed in detail in Part V, infra.
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Cramer v. United States, 325 U.S. 1(1945); and Haupt v. United States, 330 U.S. 631 (1947).69
They were not labeled as "enemy combatants," much less detained as such. They were
criminally charged with treason and prosecuted (during wartime no less) in the normal course of
federal criminal proceedings.
Davis confirms that Petitioner is entitled to his Fifth Amendment right of liberty. Amici do
not suggest that the Government cannot criminally prosecute Petitioner, but the Fifth
Amendment also governs that Petitioner has been afforded no Due Process since being turned
over to the military, and that simply is unconstitutional.
69 This "Haupt" was the father of one of the Quirin defendants and was a U.S. citizen. As noted in Amici'
discussion of Quinn, infra, the younger Haupt had forfeited any claim to U.S. citizenship when he enlisted in the
German Army and swore allegiance to Germany. This was conceded by Haupt's Defense Counsel during oral
argument in Quinn.
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IV. THE CONSTITUTION DOES NOT GIVE EITHER PLENARY OR
UNREVIEWABLE POWERS TO THE COMMANDER IN CHIEF IN THE ABSENCE
OF A DECLARATION OF WAR OR THE LAWFUL IMPOSITION OF MARTIAL
LAW.
An ELECTIVE DESPOTISM was not the government we fought for; but one
which should not only be founded on free princOles, but in which the powers
of government should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits, without being
effectually checked and restrained by the others.
--James Madison, The Federalist, Number 48.70
A. No Deference is Due a Commander in Chid on Constitutional Interpretation.
The Commander in Chief is not a co-equal, constitutional branch of our Republic. Thus, the
actions of the Commander in Chief must be viewed through the constitutional limitations placed
on that office, versus that of the Chief Executive in genera1.71 The "power" of the President is
simply not at issue in this case because the illegal confinement has as its basis a military order of
the Commander in Chief. Consequently as Chief Justice Marshal observed 200 years ago, "The
whole powers of war being, by the constitution of the United States, vested in Congress, the acts
70 The complete Federalist Papers are available on-line at: http://tnemory.loc.goviconstifed/fedpapers.html
[last accessed, June 21, 2002].
71
Cf: The War Powers Resolution, 50 U.S.C. � 1541 et seq. See also, Ely, op cit.
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of that body alone can be resorted to as our guides. . . ." Talbot v. Seeman, 51 US. 1, at 28
(1801) [emphasis added].
If one looks to the "original intent" theory of Constitutional Law,72 Chief Justice Marshall's
interpretation must be persuasive authority that the "war powers" belong to the Congress, pure
and simple. The Government's position herein, viz., that the Commander in Chief has unfettered
and unreviewable authority simply by issuing a military order, is simply wrong. It is also
unconstitutional as Little v. Barreme, 6 U.S. 170 (1804), makes clear. Indeed, the Government's
position herein ignores Little as precedent
Finally, when it comes to interpreting and applying the Constitution, especially the
imprisonment of a citizen, as Marbuiy v. Madison, supra, and its progeny teach, it is the duty of
the Judiciary - not the Commander in Chief - to do so. And, as United States v. Nixon, supra,
illustrates, no man - to include the President - is above the law. See, Sterling v. Constantin, 287
U.S. 378 (1932).
B. There is No Historical, United States Precedent for the Government's Position
that the Commander in Chief's Decision Herein is Beyond the Reach of the
Federal Judidary.73
72
See, e.g., Atwater v. City of Lego Vista, 533 U.S. 924 (2001).
73 Adolph Hitler as Fahrer, however made the same claims. See, H.W. Koch, In the Name of the Volk:
Political Justice in Hitler's Germany, (Barnes 8c Noble, NY 1997 ed.)[Hereinafter "Koch"]. Hitler felt that "there
is no room in this concept of the state for the separation of powers." Koch, at 71. Compare, Koch at 72: "Freislar [a
NAZI Justice Department official and later Judge] argues that Hitler acted in a state emergency and therefore what
he did was not only necessary but legal." As Koch notes at 160: "In February 1943 the ruling was made that in
VGH [`Vollcsgerichthof," a special "national security" court] cases Involving citizens of occupied states it would be
a matter of discretion as to whether the defendant would be represented by defence (sic) counsel."
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Absent a formal, Congressional declaration of war,74 or the lawful imposition of martial law,
the Commander in Chiefs military authority is limited by the Constitution. The Federalist
Papers conclusively show that the drafters and framers of our Constitution, firmly rejected the
concepts claimed and envisioned by the Commander in Chief herein. In Federalist, No. 48,
Madison says:
A respect for truth, however, obliges us to remark, that they seem never for a
moment to have turned their eyes from the danger to liberty from the
overgrown and all-grasping prerogative of an hereditary magistrate, supported
and fortified by an hereditary branch of the legislative authority. . . . In a
government where numerous and extensive prerogatives are placed in the
hands of an hereditary monarch, the executive department is very justly
regarded as the source of danger, and watched with all the jealousy which a
zeal for liberty ought to *pin. [Emphasis added].75
Hence, a suspicion of Executive encroachment - both as to power and as to liberty - was clearly
of prime concern to the Drafters. Indeed, while providing for a system of government with a
"separation of powers," it also wisely provided for a Constitutional system of "checks and
balances."
For this reason, that convention which passed the ordinance of
government, laid its foundation on this basis, that the legislative, executive,
and judiciary departments should be separate and distinct, so that no person
74 The Joint Congressional "Authorization for Use of Military Force," [HI Res. 64, September 14,2001], is
not a Declaration of War, nor does it suspend habeas corpus. It offers no authority for the Government herein.
75
http://memory.loc.goviconst/fed/fed_48.htm1 [last accessed, June 23,2002].
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should exercise the powers of more than one of them at the same time. BUT
NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS.
[emphasis in original].76
This concept of Constitutional "Checks and Balances," was the subject of Federalist, No. 51,
which was entitled: "The Structure of the Government Must Furnish the Proper Checks and
Balances Between the Different Departments:"
TO WHAT expedient, then, shall we finally resort, for maintain' ing in
practice the necessary partition of power among the several departments, as
laid down in the Constitution? The only answer that can be given is, that as all
these exterior provisions are found to be inadequate, the defect must be
supplied, by so contriving the interior structure of the government as that its
several constituent parts may, by their mutual relations, be the means of
keeping each other in their proper places.n
It is thus clear that the Commander in Chief cannot sua sponte assume powers neither
enumerated within the text of the Constitution, nor delegated by the Congressional "War Power."
Justice is the end of government It is the end of civil society. It ever has been
and ever will be pursued until it be obtained, or until liberty be lost in the
pursuit [Emphasis adcled].78
76
77
78
Id.
http:llmemory.loc.gov/conat/fedffe&.51.html past accessed; June 23.2002].
Id.
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Alexander Hamilton, the author of Federalist, Number 69, entitled, The Real Character of
the Executive, stated:
The President is to be commander-in-chief of the army and navy of the United
States. In this respect his authority would be nominally the same with that of
the king of Great Britain, but in substance much inferior to it. It would
amount to nothing more than the supreme command and direction of the
military and naval forces, as first General and admiral of the Confederacy;
while that of the British king extends to the DECLARING of war and to the
RAISING and REGULATING of fleets and armies, all which, by the
Constitution under consideration, would appertain to the legislature
[Emphasis added].79
It is therefore abundantly clear that the Framer's view of the Commander in Chiefs power was
limited and again, the War Power clearly resided and remained with the Congress.
In 1792, Congress passed the Militia Act, authorizing the President to federalize the State
Militias in the event of certain domestic contingencies. In 1794, the so-called Whiskey Rebellion
in Western Pennsylvania, required action. Pursuant to the Congressional authority (which
required a form of "probable cause" by a jurist), Washington implemented the Act and ordered
the mobilization of the Militia to suppress the insurrection. Yet, in his "Military Order" he made
no effort to interfere with the Judiciary, indeed he commanded the troops:
79
http://mesnoty.loc.goviconst/fed/fed_69.html [last accessed, June 23,2002].
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You are to exert yourself by all possible means to preserve discipline
amongst the troops, particularly a scrupulous regard to the rights of persons
and property, and a respect for the civil magistrates . .80
Washington clearly understood that his power as Commander in Chief was limited and depended
upon Congressional authority. While the military made numerous arrests, detentions and
prosecutions were handled by the civilian court system.
As early as 1807, the Supreme Court addressed this issue in Ex Parte Bollman, 8 U.S. 75
(1807). Bollman and others were arrested by the Army and charged with treason. The military,
on orders from President Thomas Jefferson, turned the prisoners over to the jurisdiction of the
federal court in the District of Columbia, who then found "probable cause" to detain them. The
prisoners sought relief via habeas corpus, which the Government opposed on numerous grounds.
The Court granted the writs and specifically noted that only Congress could order the suspension
of the writ of habeas corpus. Absent that, it was up to the Court to decide the merits of the
petition for habeas relief- the very issue herein.
One of the earliest legal commentators on "military law," in 1846, rejected the Government's
position advanced herein - and he was a military officer!
The substitution of this power (martial law] for the civil courts, subjects all
persons to the arbitrary will of an hullvidiusl, and to imprisonment for an
indefinite period, or trial by a military body. Of such high importance to the
80 As quoted in Frederick B. Wiener, A Practical Manual of Martial Law, (Harrisburg, PA: The Military
Service Pub. Co., 1940), at 103. Indeed, Washington also sent the federal district judge and the United States
Attorney along, Id., at 55.
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public is the preservation of personal liberty, that it has been thought that
unjust attacks, even upon life or property, at the arbitrary will of the
magistrate, are less dangerous to the commonwealth, than such as are made
upon the personal liberty of the citizen.
Now, to guard against such abuse, the constitution guarantees the
privilege of the writ of habeas corpus . . . and the intervention of congress is
necessaty before such suspension can be made lawful. . . . In commenting
upon this part of the laws of England, Mr. Justice Blackstone says, "but the
happiness of our constitution is, that it is not left to the executive power to
determine when the danger of the state is so great as to render this measure
(the arbitrary imprisonment of a person) expedient, for it is the parliament
only. . . that whenever it sees proper, can authorize the crown, by suspending
the habeas corpus act. . . to imprison suspected persons without giving any
reason for so doing" [quoting Blackstone's Commentaries, at 135]. [Emphasis
added]81
In May of 1861, one Merryman (a civilian) was awakened in his house and arrested by forces
of the U.S. Army. He was placed in military confinement at Fort McHenry. No charges -
civilian or military - were lodged against him, and a "copy of the warrant or order under which
the prisoner was arrested was demanded by his counsel, and refused . . . ." Kr Parte Menyman,
17 Fed. Cas. 144, at 147 (C.C. D. Maryland, 1861). His attorney filed for a writ of habeas
corpus and Chief Justice Taney, as Circuit Judge heard the case. The Commander of the Fort,
refused to comply with the writ, citing President Lincoln's unilateral decision to suspend the
writ. In his decision ordering Merryman's release, Chief Justice Taney first noted that the
81 William C. DeHart, Captain, U.S. Army (Acting Judge Advocate of the Army), Observations on Military
Law (NY: Wiley & Halsted, 1859 ed, copyrighted 1846) [reprinted in 18 Classics in Legal History, Wm. S. Hein &
Co, Buffalo, NY, 19731, at 17-18.
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specific language of Article I, � 9, of the Constitution, gives Congress alone the power to
suspend the writ He continued by noting:
[T]f the high power over the liberty of the citizen now claimed was intended to
be conferred on the president it would undoubtedly be found in plain words in
this [Second] article; but there is not a word in it that can furnish the slightest
ground to justify the exercise of the power. Id.,at 149.
* * * * *
He certainly does not faithfully execute the laws, if he takes upon himself
legislative power, by suspending the writ of habeas corpus, and the judicial
power also, by arresting and imprisoning a person without due process of law.
Nor can any argument be drawn from the nature of sovereignty, or
the necessity of government, for self-defense in times of tumult and danger.
The government of the United States is one of delegated and limited powers.
. . . Id. [Emphasis added]
And no one can believe that, in framing a government intended to guard still
more efficiently the rights and liberties of the citizen, against executive
encroachment and oppression, they would have conferred on the president a
power which the history of England had proved to be dangerous and
oppressive in the hands of the crown. kl,at 150.
** * * *
If the president of the United States may suspend the writ, then the
constitution of the United States has conferred upon him more regal and
absolute power over the liberty of the citizen, than the people of England have
thought it safe to entrust to the crown; a power which the queen of England
cannot exercise at this day. . . Id. at 151.
Justice Taney concluded his constitutional expos�as follows:
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Mr. Justice Story, speaking, in his Commentaries, of the habeas corpus
clause in the constitution, says: "It is obvious that cases of a peculiar
emergency may arise, which may justify, nay, even require, the temporary
suspension of any right to the writ But as it has frequently happened in
foreign countries, and even in England, that the writ has, upon various
pretexts and occasions, been suspended, whereby persons apprehended upon
suspicion have suffered a long imprisonment, sometimes from design, and
sometimes because they were forgotten, the right to suspend it is expressly
confined to cases of rebellion or invasion, where the public safety may
require it. A very just and wholesome restraint, which cuts down at a blow a
fruitful means of oppression, capable of being abused, in bad times, to the
worst of purposes. Hitherto, no suspension of the writ has ever been
authorized by congress, since the establishment of the constitution. It would
seem, as the power is given to congress to suspend the writ of habeas
corpus, in cases of rebellion or invasion, that the right to Judge whether the
exigency had arisen must exclusively belong to that body." 3 Story, Comm.
Const. � 1336. Id. at 151-52. [Emphasis added].
Two years after Merryman, supra, the Supreme Court decided the Prize Cases, 67 U.S. 635
(1863). That opinion is frequently miscited for the erroneous proposition that the Court would
defer to military decisions of the Commander in Chief. There, the case involved a naval
blockade of Confederate ports and the seizure of foreign vessels. What is generally overlooked
is that President Lincoln had sought and received Congressional ratification for his initial
blockade order. 67 U.S. at 670-71; 12 Stat. 326 (1861). Thus, the "war power" of the
Commander in Chief ultimately flowed from Article I, and the Congress.
Ex Parte Milligan, 71 U.S. 2 (1866), resolves the question sub judice. Absent express
Congressional action, a United States citizen cannot be detained or imprisoned by the U.S.
military, absent a bona fide existence of martial law. Milligan, a civilian was granted habeas
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corpus. While much is made of the opinions of the majority and dissent [which did not argue
against the writ, only the reasoning of the Court], it is perhaps more instructive to look at the
arguments of Milligan's counsel, which the majority adopted:
This brings up the true question now before the court Has the President, in
time of war, upon his own mere will and judgment, the power to bring
before his military officers any person in the land, and subject him to trial
and punishment, even to death? The proposition is stated in this form,
because it really amounts to this.
If, the President has this awful power, whence does he derive it? He
can exercise no authority whatever but that which the Constitution of the
country gives him. Our system knows no authority beyond or above the
law.82
He continued by noting:
The power exercised through these military commissions is not only
unregulated by law but it is incapable of being so regulated. It asserts the
right of the executive government, without the intervention of the Judiciary,
to capture, imprison, and kill any person to whom that government or its
paid dependents may choose to impute an offence. This, in its very essence,
is despotic and lawless. It is never claimed or tolerated except by those
governments which deny the restraints of all law. It operates in different ways;
the instruments which it uses are not always the same; it hides its hideous
features under many disguises; it assumes every variety of form. But in all its
mutations of outward appearance it is still identical in principle, object, and
82
1866 U.& LEXIS 861, at 48.
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origin. It is always the same great engine of despotism which Hamilton
described it to be.83 [emphasis added]
The Court agreed with Milligan in its holding:
The statement of this proposition shows its importance; for, if true, republican
government is a failure, and there is an end of liberty regulated by law.
Martial law, established on such a bask, destroys every guarantee of the
Constitution, and effectually renders the 'military independent of and
superior to the civil power"-- the attempt to do which by the King of Great
Britain was deemed by our fathers such an offence, that they assigned it to the
world as one of the causes which impelled them to declare their independence.
Civil liberty and this kind of martial law cannot endure together; the
antagonism is irreconcilable; and, in the conflict, one or the other must
perish." [emphasis added]
That Milligan was interpreted as the correct application of the Constitution, is implicit from
the writings of that century's greatest military law scholar, Colonel William Winthrop, U.S.
Army. In his seminal work, Military Law and Precedents, 2" ed. (Washington, DC: Gov't
Printing Office, 1920) [Legal Classics Library reprint], at 891; he notes the following:
Where. . . an officer of the army is served with a writ of habeas
corpus issuing from a court of the United States, he will make fun return of
the same . . . and on the return day will appear with the body of the petitioner
before the court to abide by its order thereupon. [emphasis added in bold].
83
84
Id., at 142-43.
71 U.S. at 124-25.
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That concept was followed by the military through the beginning of World War IL In a
treatise, Lee S. Tillotson, Colonel, Judge Advocate General's Department, U.S. Army (ret.), The
Articles of War Annotated, (Harrisburg, PA: The Military Service Pub. Co., 1942), the author
notes in a section headed, "HABEAS CORPUS:"
"34. In a case of disputed jurisdiction over a person subject to
military law, as between the civil and military courts, the question should
be raised by writ of habeas corpus in a Federal Court The military
authorities must recognize such writ and surrender the body of the person
wanted in response thereto, keying the whole quesdon to be decided by the
court from which the writ issued" Id., at 163 [Emphasis added].
* * * * *
"38. When, by writ of habeas corpus issued by a Federal court, a
military prisoner is required to be produced in court, regular military travel
orders may be issued entitling the officer in charge, the prisoner, and a
suitable guard, to the authorized travel allowances." /d.,at 164.
Rather than any "due deference" argument to the Commander in Chief; it is quite clear that the
military itself was under the correct constitutional construct that they, the military, must give
"due deference" to the jurisdiction of the federal courts, and indeed, that such courts were the
proper forum to decide "disputed jurisdiction."
One of the great Constitutional anomalies and frauds perpetrated on the Courts, were the
Japanese Evacuation and Internment Cases from the West Coast, shortly after the Pearl Harbor
attack. On February 14, 1942, the President issued Executive Order # 9066, essentially forcing
West Coast Japanese Americans into concentration camps unless they voluntarily "relocated."
However, before the Constitutionality of this Order could be challenged, Congress ratified it.
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See, 56 Stat. 173 (1942). A number of cases ultimately reached the U.S. Supreme Court, which
generally upheld these actions as proper due to the war. See, e.g., Hirabayashi v. United States,
320 U.S. 81 (1943); and Korematsu v. United States, 323 U.S. 214 (1944).
The decisions however, were procured by outright fraud on the Court from the Government
and their only relevance today is that Courts should be highly skeptical of any claims from the
Commander in Chief arguing "military necessity." Indeed, in Korematsu v. United States, 584
F.Supp 1406 (N.D. Cal. 1984), the Court granted a writ of error coram nobis and reversed
Korematsu's conviction. The basis was the Government's misrepresentation throughout the case
of the existence of "intelligence" justifying or providing a clear, military necessity for the
evacuation orders in the first place. It simply existed only in the minds of the Government's
lawyers and some military officers.85 See also, Hirabayashi v. United States, 627 F.Supp 1445
(W.D. Wash. 1986) [reversing in part some of his convictions].86
The Court next visited this area in Ex Parte Quinn, 317 U.S. 1 (1942) [the "Nazi Saboteur"
case]. Indeed, that is the judicial drum that the Government is beating loudest, for that is their
85 For a comprehensive review of this sordid process, see Peter Irons, Justice at War (NY: Oxford Univ.
Press, 1983), where the author - an attorney and professor - documents and traces the government's misconduct;
e.g., "[P]resenting to the Supreme Court a key military report that contained `lies' and `intentional falsehoods.'
[F]iles that disclose the alteration and destruction by War Department officials of crucial evidence in these cases."
Id. at ix. During the "Watergate" affair, according to U.S. District Court Judge John Siricajalse claims of "national
security" were proffered to the Court as a basis to avoid complying with Grand Jury subpoenas. John Sirica, To Set
the Record Straight, (NY: W.W. Norton & Co., 1979), at 155.
86 The misrepresentations of various Commanders in Chief exercising their purported "war power," has been
extensively documented. See, e.g., H.R. McMaster, Major, U.S. Army, Dereliction of Duty: Lyndon Johnson,
Robert McNamara, The Joint Chiefs of Sure and the Lies that Led to Vietnam (NY: HarperCollins, 1997); Sirica, op
cit.
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stated basis for categorizing the Petitioner as an "unlawful combatant" However, even that
claim is not historically accurate from a military perspective.
Tracing history and Army records back to 1862, while the Civil War raged in the Country,
the so-called "Indian Wars" were also escalating - a fact overshadowed by the significance of the
Civil War. That year a portion of the Sioux tribe in Minnesota, the Santee Sioux, rebelled and
declared "war" on the white settlers. They attacked and President Lincoln ordered the Army to
respond in kind.
A short "war" ensued, with Lincoln putting one of his favorite generals,
General John Pope, in charge of federal forces in Minnesota. Pope announced
that "It is my purpose to utterly exterminate the Sioux . . . . They are to be
treated as maniacs or wild beasts, and by no means as people with whom
treaties or compromise can be made."87
After a battle that defeated the Sioux forces, the Army had captured roughly 400 of their
"warriors." What to do with them and how to treat them became the question then - and
ultimately provides some guidance here.
In spite of "sovereignty" issues attaching to the Native Americans,88 and the fact that they
had declared war, the Army refused to accord them "POW" status, and indeed classified them as
87 http://www.lewrockwelloom/dilorenzo/dilorenzo9.html. [Last accessed, June 24, 2002]. Historically,
Washington issued a similar order against the Iroquois. This sounds strangely familiar to the current
Administration's characterizations of the Cuban prisoners - they are so "dangerous" that even in the unlikely event
that a Military Commission might acquit them, they will still be detained.
88 See generally, Cherokee Nation v. Georgia, 30 U.S. I (1831)(Marshall, CJ.). Lincoln seemed to fear that
by granting POW status, it somehow could confer "sovereignty" and hence, an indicia of legitimacy to the Sioux.
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unlawful combatants.89 Thus, a Military Commission was created to try the prisoners. "Critics
of the trials also have argued that the commission was wrong to treat the defendants as common
criminals rather than as the legitimate belligerents of a sovereign power." 90 After truly
"summary" trials by this Military Commission, 303 were sentenced to death. President Lincoln
exercised his prerogative to review the cases and sentences, and commuted all but 38 death
sentences. Other than that review, there was no appeal - indeed, the prisoners had not even
been furnished counsel!
Colonel Winthrop recognized what he termed, "uncivilized combatants," those who do not
respect the laws of war. Thus,
Not being within the protection of the laws of war, they were treated as
criminals and outlaws, not entitled upon capture to be held as prisoners of
war, liable to be shot, imprisoned or banished, either summarily where their
guilt was clear or upon trial and conviction by military commission.
Winthrop, op cit., at 784.
89
P. Maguire, Law and War: An American Story, 32 (Columbia Univ. Press, NY, 2000) ["Maguire"].
90 http://jurist.law.pitteduhr1a1s23.htm [last accessed, June 24, 20021
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Winthrop's observations however must be kept in the context of what he was describing -
combatants who either were captured or surrendered on the battlefield, i.e., "caught in the ace'
guilty, could be dealt with summarily - otherwise they were tried.91
It is thus clear that the concept espoused in Quinn and argued here, viz., that the incantation
of "unlawful enemy combatants," is of judicial origin, is again, simply false. Rather than
acknowledge "sovereignty" issues, the Commander in Chief and his military subordinates used
the euphemism of "unlawful enemy combatants" to justify a deprivation of fundamental rights,
to include rights guaranteed under the Laws of War.
Quinn is a judicial anomaly and of limited value once one actually understands the case.92
First, while there were eight defendants, only seven were involved in the habeas action at the
Supreme Court. All were defended by military counsel, but counsel for one of the Defendants,
Dasch, felt that he had no legal authority to challenge the process because he had been ordered
not to!" Second, it was undisputed that (a) the United States was at war with Germany; (b) that
91 George Washington set the precedent for trying spies, rather than summarily executing them. When British
Major Andre (the collaborator with Benedict Arnold) was captured behind American lines, in civilian clothes,
Washington ordered a military trial. This is discussed in Ex Parte Quirt& 317 U.S. 1, at 31, fn. 9 (1942).
92 For the most comprehensive and recent legal analysis of the case see, Louis Fisher, Minato, Tribunals: The
Quirin Precedent (Congressional Research Service - The Library of Congress, March 26, 2002) available on-line at:
http://fpc.state.govidoctunents/organization/9188.pdf [last accessed, June 24, 2002] [Note, this is in ".pdf" format].
[hereinafter "Fisher"].
93
Fisher, at 12.
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all eight defendants were members of the uniformed German military; and (c) they were on a
military mission (having been brought to the U.S. via Getman U-Boats).
The Government's case was presented by the Attorney General himself, Francis Biddle.
Biddle's argument that the Commander in Chief have "absolute" power over the "enemy," was
not adopted by the Court.94 The Government today cites Quinn for the proposition that even
U.S. citizens could be held as "unlawful enemy combatants," but of course a closer reading does
not support that and to the extent that the Court's opinion comments on it, it is clearly dicta.
Defense Counsel for the seven defendants, Colonel Royall, "conceded that Burger had lost his
citizenship by joining the Nazi Army, while Biddle maintained that Haupt forfeited his
citizenship as well. To Biddle, the essential issue was not U.S. citizenship but the status of the
defendants as enemies of the United States."95 As enemy aliens during wartime, they had no
legal rights to access the civilian courts. None of this has any relevance to the case herein and
therefore, Quinn stands for nothing when there is no declared war, when there is no question as
to "citizenship," indeed, when there are no charges period pending against the Petitioner.
Quinn also suffers from some additional problems - first, Congress in passing the Uniform
Code of Military Justice [1.TCMIJ,96 in 1950, engaged in a comprehensive overhaul of military
law, something Article I, � 8, clearly gives them the power to do. Second, the 1949 Geneva
94 Fisher, at 19.
95 Fisher, at 24-25 (internal citations omitted) [emphasis added].
96 10 U.S.C. � 801, et seq.
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Conventions97 were obviously adopted post-Quinn, so that court never considered them or their
impact on domestic law here in the United States. In reality, the Government seems just to have
ignored Article 5, of the 1949, Convention Relative to the Treatment of Prisoners of War:
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 perms shall enjoy the protection of
the present Convention until such tinge as their status has been determined
by a competent Itibunal. [emphasis added].
Regardless of what status the Petitioner ultimately finds himself in, since there is clearly a
bona fide dispute over his status, he is entitled to judicial review in spite of the Government's
objections. Regardless of the Government's thoughts, the fact remains that treaties are the
"supreme law" of the land. Breard v. Greene, 523 U.S. 371 (1998).
Duncan v. Kahanamoku, supra, is like Milligan, the controlling precedent A civilian
convicted long after the need for martial law expired (e.g., the Courts were open and
functioning), it was thus under the precedent of Milligan, unconstitutional to try a U.S. citizen by
a military tribunal. Therefore, habeas corpus properly was granted as the military had no
authority to hold the "prisoner."
Finally, the core reason that the Government's arguments must fail stems from Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). This is the seminal case discussing the
97
Available at: http://www.icfc.org/11.nsf/WebCONVFULL?OpenView [last accessed, June 24, 20021
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limitations on the President's perceived "War Power." The Court itself held that even in times of
a national emergency, the President lacked any independent legal basis to seize corporations for
the "war effort." Clearly, if the President cannot seize a corporation even as Commander in
Chief; he cannot invest himself with the authority to seize and detain a U.S. citizen, contrary to
the Fourth and Fifth Amendments.98
Justice Jackson's concurring opinion is instructive for two reasons. First, it must be
remembered that he was the Chief United States Prosecutor at the Nuremberg Military Tribunals,
so he had some modicum of knowledge as to that process. Second, he traces the history of the
Chief Executives power - in war and peace - which provides considerable guidance here:
There are indications that the Constitution did not contemplate that the title
Commander in Chief of the Army and Navy will constitute him also
Commander in Chief of the country, its industries and its inhabitants. He has
no monopoly of "war powers," whatever they are. While Congress cannot
deprive the President of the command of the army and navy, only Congress
can provide him an army or navy to command. It is also empowered to make
rules for the "Government and Regulation of land and naval Forces," by
which it may to some unknown extent impinge upon even command
fimctions.
That military powers of the Commander in Chief were not to
supersede representative government of internal affairs seems obvious from
the Constitution and from elementary American history. Time out of mind,
and even now in many parts of the world, a military commander can seize
private housing to shelter his troops. Not so, however, in the United States, for
the Third Amendment says, "No Soldier shall, in time of peace be quartered in
" This interpretation is consistent with Henkels v. Sutherland 271 U.S. 298, at 301 (1926), where the Court
held, "With enemy-owned property . . . the United States may deal as it sees fit [citation omitted]; but it km no suck
latitude in respect of the property of an American citizen." [Emphasis added]. Again, if the enumerated "war
power" of Congress cannot be used to seize property of a civilian citizen, surely it cannot be used to seize the Person
of the Petitioner herein.
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any house, without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law." Thus, even in war time, his seizure of
needed military housing must be authorized by Congress. It also was
expressly left to Congress to "provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and repel Invasions . . . ." Such
a limitation on the command power, written at a time when the militia rather
than a standing army was contemplated as the military weapon of the
Republic, underscores the Constitution's policy that Congress, not the
Executive, should control utilization of the war power as an instrument of
domestic policy. Congress, fulfilling that function, has authorized the
President to use the army to enforce certain civil rights. On the other hand.
Congress has forbidden him to use the army for the purpose of executing
general laws except when expressly authorized by the Constitution or by Act
of Congress.
* * *
His command power is not such an absolute as might be implied from
duit office in a militaristic system but is subject to limitations consistent with a
constitutional Republic whose law and policy-making branch is a
representative Congress. The purpose of lodging dual titles in one max was
to insure that the civilian would control the military, not to enable the
military to subordinate the presidential office. No penance would ever
expiate the sin against free government of holding that a President can escape
control of executive powers by law through assuming his military tole. What
the power of command may include I do not by to envision, but I think it is
not a military prerogative, without support of law, to seize persons or
property because they are important or even essential for the military and
naval establishment. 343 U.S. 643-46.
Justice Jackson next addressed the so-called "emergency" doctrine:
The appeal, however, that we declare the existence of inherent powers ex
necessitate to meet an emergency asks us to do what many think would be
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wise, although it is something the forefathers omitted. They knew what
emergencies were, knew the pressures they engender for authoritative action,
knew, too, how they afford a ready pretext for usurpation. We may also
suspect that they suspected that emergency powers would tend to kindle
emergencies. Aside from suspension of the privilege of the writ of habeas
corpus in time of rebellion or invasion, when the public safety may tequire it,
they made no express provision for exercise of extraordinary authority
because of a crisis. I do not think we rightfully may so amend their work,
and, if we could, I am not convinced it would be wise to do so, although many
modern nations have forthrightly recognized that war and economic crises
may upset the normal balance between liberty and authority. Their
experience with emergency powers may not be irrelevant to the argument
here that we should say that the Executive, of his own vendors, can invest
himself with undefined emergency power& 343 U.S. at 650-51 [Emphasis
added].
* * *
This contemporary. . . experience may be inconclusive as to the
wisdom of lodging emergency powers somewhere in a modem government.
But it suggests that emergency powers are consistent with free government
only when their control is lodged elsewhere than in the Executive who
exercises them. That is the safeguard that would be nullified by our adoption
of the "inherent powers" formula. Nothing in my experience convinces me
that such risks are warranted by any real necessity, although such powers
would, of course, be an executive convenience. [footnotes omitted; emphasis
added] 343 U.S. at 652
In a habeas corpus case involving a former member of the military, but a civilian at the time
of his arrest, the Court in United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), held that the
military could not exercise any jurisdiction over civilians, even for crimes committed by that
person while serving on active duty. In striking down a provision of the Uniform Code of
Military Justice, the Court also noted that, "this assertion of military authority over civilians
cannot rest on the President's power as commander-in-chief, or on any theory of martial law."
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350 U.S. at 14 (citing Milligan]. Plainly, if neither Congress nor the Commander in Chief can
lawfully obtain jurisdiction over a civilian, albeit a former member of the military for specific
criminal acts, that cannot under any interpretation or extrapolation of the law confer any
"jurisdiction" to the Commander in Chief over Petitioner herein.
Thus, the Government is faced with the dilemma of Reid v. Covert, 354 U.S. 1 (1957). Reid
dealt with the trial by courts-martial of two military wives who had killed their husbands while
stationed at overseas bases. They were charged with capital murder and tried by the military at
their respective bases by General Court-Martial, as authorized by a statutory provision in the
UCMJ. After conviction and direct appeals, they sought habeas relief on the grounds that the
military had no criminal jurisdiction over them as civilians. The Supreme Court agreed. Their
analysis began with a reassertion of the civilian-supremacy doctrine:
The tradition of keeping the military subordinate to civilian authority
may not be so strong in the minds of this generation as it was in the minds of
those who wrote the Constitution. . . . The Founders envisioned the wily as
a necessary institution, but one dangerous to liberty if not confined within its
essential bounds. 354 U.S. at 23-24.
The Court went on to look at its own precedents:
On several occasions this Court has been faced with an attempted
expansion of the jurisdiction of military courts. Ex Parte Milligan, 4 Wall. 2,
one of the great landmarks in this Court's history, held that military
authorities were without power to try civilians not in the military. . . by
declaring martial law in an area where the civil administration was not
deposed and the courts were not closed. 354 U.S. at 30-31.
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The Milligan, Duncan and Toth cases recognized and manifested the
deeply rooted and ancient opposition in this country to the extension of
military control over civilians. In each instance an effort to expand the
jurisdiction of military courts to civilians was repalsa 354 U.S. at 33.
Amid respectfully suggest that the situation herein is more egregious. Respondents have
detained and imprisoned, Le., deprived Petitioner of his liberty, without any charges and now
incredibly suggest that a U.S. citizen - regardless of what he may be suspected of- can be denied
both access to his counsel as well as the Judiciary, simply by labeling him an "enemy
combatant," and confining him incommunicado in a military Brig.99
The wisdom of the Reid Court should be heeded: "We should not break faith with this
Nation's tradition of keeping military power subservient to civilian authority, a tradition which
we believe is firmly rooted in the Constitution." 354 U.S. at 40.
" Amici are not implying any misconduct by specific military officials - they are merely following the Orders
of their superiors, the Commander in Chief and Secretary of Defense. Ironically, the Commander of the "detainees"
in Cuba, in a speech to them in April of 2002, stated:
Whether You Are Here at this Camp, or Elsewhere, as Long as I Am Responsible for
You, Be Assured That You Will Be Treated Humanely, and in Accordance with the
Reputation of the United States as a Nation of Laws. [Emphasis added]
At: http://www.nsgtmo.navy.rnil/jtf-160/Cortunander/aptil_7.htm [last accessed, June 25, 2002].
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V. PETITIONER IS EITHER ENTITLED TO PRISONER OF WAR STATUS OR A
JUDICIAL HEARING TO DETERMINE SUCH.
There can be no argument that the United States is bound by the 1949 Geneva Conventions;
indeed the Government acknowledges such in DODD 2310.1, discussed previously. Nor is this
uncharted ground for a District Court. In 1989, General Manuel Noriega of Panama, declared
"war" against the United States, United States v. Noriega, 746 F.Supp 1506 (SD. Fl. 1990).
Considerable litigation ensued about General Noriega's status, to include whether or not he was
a POW and whether or not the District Court had the authority to adjudicate such. The District
Court in a comprehensive opinion at 808 F.Supp 791 (S.D. Fl. 1992), held as follows:
Geneva 11( [the POW Convention] "is self-executing and provides General Noriega
with a right of action in a U.S. court for violation of its provisions;" Id., at 794
That it was not a function of "neutral third parties" to determine POW status, id, at
796;
That it was a "competent tribunal" under international law to make the POW
determination regarding General Noriega; /d.,and finally
That General Noriega was "in fact a prisoner of war as defined by Geneva III. ." Id.
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The Court examined this issue at length and Amid respectfully submit that it is persuasive
authority herein. In closing, the Noriega Court offered this sage observation:
[T]hose charged with that determination [Noriega's confinement location and
status] must keep in mind the importance to our own troops of faithful and,
indeed, liberal adherence to the mandates of Geneva III. Regardless of how
the government views this Defendant as a person, the implications of a failure
to adhere to the Convention are too great to justify departures.
In the turbulent course of international events . . . the relatively
obscure issues in this case may seem unimportant. They are not. The
Implications of a less-than-strict adherence to Geneva III are serious and
must temper any consideration of the questions presentaL 808 F.Supp at
803. [Emphasis added].
Amici Curiae respectfully urge this Court to follow the teachings of Noriega, to liberally
consider Petitioner's status � even as the Government claims as an "enemy combatant,100" �
and to provide him with the protections that both our Constitution and the Geneva Convention on
Prisoners of War mandates. It is the supreme law of the land, and Respondents are obligated to
follow it.
100 Amid have grave concerns whether this alleged status, viz., "enemy combatant" is recognizable under
either international law or U.S. domestic law. As noted above, DODD 2310.1, does not employ this label, and
perhaps more importantly, neither does Army Regulation [AR] 190-8, Enemy Prisoners of War, Retained Personnel,
Civilian Internees and Other Detainees (1997); available at http://www.army.millusapa/epubs/pdfir190_8.pdf [last
accessed, July 8, 2002]. AR 190-8, is a "Joint SCIViCC" Regulation, meaning that it applies to all branches of the
U.S. military. Its stated purpose is to provide "policy, procedures, and responsibilities for the administration,
treatment. . . of enemy prisoners of war (EPW), . . . civilian internees (CI) and other detainees in the custody of
U.S. Armed Forces." AR 190-8, paragraph 1-1(a). This regulation is still in effect, provides specific rights to
Petitioner and yet, Respondents have inexplicably chosen to ignore its requirements. Chapter 5, dealing with
"Civilian Internees" would seem to control.
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CONCLUSIONS
Regardless of what the Commander in Chief may be directing our Armed Forces to do
elsewhere in the world, the simple fact remains that martial law does not exist in the United
States. Thus, both the Commander in Chief as well as his subordinates are subject to the
provisions of the Constitution when it comes to Petitioner's legal rights. The Judiciary has a
time honored and constitutionally commanded role to play in adjudicating Petitioner's rights.
Just as King George III attempted to use his military to subvert civilian rule, so are the
Respondents overtly saying that their military judgment - not the Constitution - suffices "to
render the Military independent of and superior to the Civil Power." Our Declaration of
Independence showed that to be an unacceptable concept then, and it must remain so today.
The time honored words of Martin Niemoeller, bear repeating:
In Germany they came first for the Communists, and I didn't speak up
because I wasn't a Communist;
Then they came for the Jews and I didn't speak up because I wasn't a Jew;
Then they came for the trade unionists and I didn't speak up because I wasn't
a trade unionist;
Then they came for the Catholics and I didn't speak up because I wasn't a
Catholic;
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Then they came for me, and by that time there was no one left to speak up.101
Having just celebrated our Country's independence on the Fourth of July, Amid Curiae must
"speak up" against the illegal detention of Petitioner, as well has his being held incommunicado.
Amid Curiae respectfully submit that the Court herein is bound by the Constitution as Marbury
v. Madison teaches, and respectfully, should grant the writ of habeas corpus sought herein.
Many members of the NYSACDL and NACDL suffered horrifically as a result of the tragedies
of last September 11th and we as members of society cannot tolerate terrorism in any form or
fashion. But, regardless of what the Government suspects Petitioner of, the lessons of history
command that we object to his illegal and incommunicado confinement herein.
Indeed, as Respondents note, vast numbers of our citizenry have mobilized militarily to
engage in combat in locations far from home. But, what Respondents' forget is that each person
in uniform has taken an oath to "support and defend the Constitution of the United States against
all enemies, foreign and domestic.. . ." 10 U.S.C. � 502. Those in uniform now and in times
past who have paid the ultimate sacrifice, did so to "defend the Constitution of the United
States." Doing that is the ultimate fight for "national security" and Amid Curiae respectfully
101 Niemoeller was a decorated German U-Boat commander in WW I. He subsequently became a Lutheran
minister who campaigned against Hitler. He was placed in a concentration camp in 1938 at Dachau, Germany, and
remained there until liberated by the Allies in 1945. This quotation is at:
http://www.nehm.com/contents/niemoller.htrn1 [last accessed, July 1,2002].
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urge this Court to recognize just what our veterans have fought, sacrificed and died for - the
collective rights of all.
Respectfully submitted,
Dated: July , 2002.
DONALD G. REHKOPF, JR.
Law Offices of BRENNA & BRENNA
31 East Main Street, Suite 2000
Liberty Plaza
Rochester, New York 14614
[phone]
On behalf of Amici Curiae, the New York State
Association of Criminal Defense Lawyers; and
The National Association of Criminal Defense Lawyers
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D. The Respondents Are Proper Parties Herein 8
E. Commander Mates Status. 14
II. JUSTICIABILITY. 19
III. THE ILLEGAL DETENTION OF THE PETITIONER. 24
A. Overview. 24
B. The "War Powers" Do Not Eviscerate the Fourth and Fifth Amendments. 26
C. "MILITARY" LAW. 32
1. Military Law. 32
2. Martial Law. 32
D. Due Process Illegality. 35
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