reply brief in support of petitioner’s motion for judgment on the pleadings … · 2010-01-02 ·...

[ORAL ARGUMENT REQUESTED]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) IN RE: ) Misc. No. 08-442 (TFH) ) GUANTANAMO BAY ) No. 04-1136 (JDB) DETAINEE LITIGATION ) __________________________________________)

REPLY BRIEF IN SUPPORT OF PETITIONER’S MOTION FOR JUDGMENT ON THE PLEADINGS AND OPPOSITION TO RESPONDENTS’ CROSS-MOTION TO

DISMISS OR HOLD IN ABEYANCE

Petitioner’s opening brief explains that because of his status as a former child soldier,

Petitioner’s ongoing detention as an adult “enemy combatant” and his referral for trial by an

adult military commission violate the laws and treaties of the United States. See 28 U.S.C.

§ 2241(c). In response to these violations, Petitioner requests two modest and tailored forms of

habeas relief: an injunction preventing a military commission convened under the MCA from

trying him; and placement into an appropriate rehabilitation and reintegration program under the

control of either his native country of Canada or the United States.

In its Opposition, the Government largely ignores Petitioner’s actual requests for relief.

Instead, it invents two alternative and far more sweeping arguments—the claim that juveniles are

immune from war crimes prosecution in any forum, and the claim that juveniles involved in

military conflict cannot be detained at all—and devotes its brief to rebutting these claims. But

Petitioner has not made either argument: contrary to the Government’s insinuations, Petitioner

does not deny that he could be tried in an appropriate forum for his alleged actions, and has

requested neither outright release nor return to anywhere near a battlefield. The Government

may prefer to rebut these claims of its own invention, but as is discussed in detail below, its brief

fails to present any persuasive case against the more modest claims Petitioner has actually raised.

Perhaps recognizing the weakness of its response on the merits, the Government argues

Case 1:04-cv-01136-UNA Document 218 Filed 09/23/2008 of 34

2

that this Court lacks jurisdiction to hear, or that it should abstain from deciding, Petitioner’s

challenge to military commission jurisdiction. The Government also asks this Court to hold his

detention-related claims in abeyance or dismiss them without prejudice pending the outcome of

his military commission trial. None of these arguments has merit. In particular, while in many

or most cases, abstention might be appropriate and the post-conviction review procedures set

forth in the MCA an adequate substitute for habeas corpus, they are emphatically insufficient and

unwarranted here, where a juvenile brings a status-based challenge to a military tribunal’s

personal jurisdiction. This Court should therefore hear Petitioner’s claims, grant Petitioner’s

motion, issue a writ of habeas corpus, and order Petitioner released from all unlawful forms of

jurisdiction and detention and placed into the custody of an appropriate juvenile rehabilitation

and reintegration program.

FACTS AND PROCEDURAL BACKGROUND

Petitioner’s opening brief sets forth in detail the facts and procedural background relevant

to this motion. See Mot. 7-9. Nonetheless, certain items in the Government’s Background

section require a response. First, throughout its Opposition, the Government intimates that

Petitioner has previously raised his claims in federal court. That is largely untrue. The current

motion marks the first time Petitioner has had the opportunity to raise in Article III court his

juvenile-related challenge to the military commission’s personal jurisdiction and his challenge to

his detention as an adult. And while Petitioner previously raised his challenge to his detention as

an “enemy combatant” before the D.C. Circuit in the context of a DTA proceeding, the

Government itself moved to hold that case in abeyance or dismiss it without prejudice pending

resolution of Petitioner’s habeas petition, in order to avoid unnecessary duplication. See Motion

to Hold in Abeyance or in the Alternative Dismiss Without Prejudice at 1, Khadr v. Gates, No.


3

07-1156 (D.C. Cir. June 23, 2008) (attached as Exhibit 1 to the Affidavit of William C. Kuebler

dated September 23, 2008 (“Kuebler Supplemental Affidavit”)). Petitioner eventually agreed,

and has now raised his challenge to his CSRT’s enemy combatancy determination in this Court,

exactly as the Government requested.

The Government also repeatedly cites the D.C. Circuit’s opinion in Khadr v. United

States, 529 F.3d 1112 (D.C. Cir. 2008). But that case is almost wholly irrelevant to the claims

raised here. In Khadr, Petitioner invoked the statutory review procedures set forth in the MCA

to challenge a decision of the Court of Military Commission Review holding that the military

judge in Petitioner’s case was competent to determine whether Petitioner was an “unlawful

enemy combatant.” Id. at 1113. The D.C. Circuit granted the Government’s motion to dismiss

for lack of jurisdiction, holding that the MCA did not give it jurisdiction over Petitioner’s claim,

and that under the collateral order doctrine, no exception to the statutory finality requirement was

warranted. Id. at 1117, 1119. Petitioner’s claim in Khadr thus had nothing to do with his status

as a juvenile or the effect thereof, but instead concerned a technical issue about the power of the

military judge to make an enemy combatancy determination. Petitioner brought that claim not

through a writ of habeas corpus, but instead pursuant to a statutory right of appeal provided by

the MCA. And the Court of Appeals decided that it lacked interlocutory jurisdiction under the

MCA based entirely on its reading of the phrase “final judgment” in the statute. That case, in

other words, had nothing to do with habeas, nothing to do with an MCA military commission’s

authority to try juveniles, and nothing to do with the authority to detain juveniles as adults or

“enemy combatants.” That decision’s only relevance to this proceeding is in establishing, for the

purposes of Suspension Clause analysis, that the MCA does not provide Petitioner with any right

to pre-trial review.


4

The Government further cites (and attaches to its brief) the D.C. Circuit’s per curiam

order denying a motion to stay the military commission proceedings that Petitioner filed in

connection with his DTA petition. See Order at 1, Khadr v. Gates, No. 07-1156 (D.C. Cir. May

30, 2007) (Ex. B to Government Opp’n). That order too is irrelevant here: it addressed a request

for a stay of military commission proceedings in connection with statutory DTA review, not

habeas, and therefore could not even in principle have implicated the Suspension Clause and

abstention issues raised in this motion. Further, the court’s order lacked any analysis, and was

issued before the Supreme Court decided Boumediene, at a time when the law of this circuit held

that Petitioner and other Guantánamo detainees had no constitutional habeas rights. See

Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. Feb. 20, 2007), rev’d 128 S. Ct. 2229 (2008).

The ruling of the military commission concerning the scope of its own jurisdiction, which

the Government also attaches to its brief, similarly has no bearing on Petitioner’s motion. See

United States v. Khadr, No. D-022 (Apr. 30, 2008) (Ex. A to Government Opp’n). Petitioner’s

motion before this Court challenges the personal jurisdiction of that commission based on his

status as a juvenile. An inferior tribunal of limited jurisdiction has no authority to conclusively

determine its own jurisdiction in such a situation. See infra at 10-11. Put simply, Petitioner’s

motion marks his first opportunity to challenge in Article III court the Guantánamo military

commission’s authority over juveniles.

Finally, the Government’s factual summary neglects to mention that (as Petitioner’s

opening brief explained) Petitioner was 10 years old, without any significant autonomy or ability

to distance himself from his family, when his family first began to expose him to al-Qaeda

officials and operations. See Charge Sheet, U.S. v. Khadr, at ¶ 8 (Kuebler Aff., Ex. 2); cf. Opp’n

7-8. Petitioner’s personal history from his days as a young child is directly relevant to the issues


5

before this Court, and helps make clear why—as the law provides—Petitioner cannot be tried

before an adult military commission for his conduct as a juvenile, cannot be detained as an

“enemy combatant” on the basis of alleged associations engaged in below the age of consent,

cannot be detained as an adult, and cannot be denied the opportunity for rehabilitation and

reintegration into society.

ARGUMENT

I. THIS COURT HAS JURISDICTION OVER PETITIONER’S HABEAS CLAIMS

As a threshold matter, this Court has jurisdiction to hear Petitioner’s claims. The

Government does not contest this Court’s jurisdiction to hear Petitioner’s habeas challenges to

his detention as an enemy combatant and as an adult. Cf. Opp’n 38 (arguing that this court

should hold Petitioner’s detention-related claims in abeyance, but not arguing that this Court

lacks jurisdiction over these claims). It does, however, argue that this Court lacks jurisdiction

over Petitioner’s status-based challenge to the military commission’s personal jurisdiction. That

argument lacks merit. As the Government acknowledges, detainees at Guantánamo Bay “are

entitled to a prompt habeas corpus hearing” in a federal district court. Opp’n 43 (quoting

Boumediene, 128 S. Ct. at 2275). Pre-trial challenges to military commission jurisdiction, like

challenges to unlawful detention as an “enemy combatant,” lie at the historical core of the writ of

habeas corpus. This Court should therefore hear those challenges now. Contrary to the

Government’s arguments, the post-conviction review procedures set forth in the MCA are an

inadequate substitute for habeas review, and there is no basis in this case for abstention.

A. Pre-Trial Challenges to Military Jurisdiction Lie at the Core of Constitutional Habeas

The Government first claims that Petitioner’s right to challenge the military

commission’s personal jurisdiction is not a “core habeas right,” and may therefore be suspended


6

with impunity. Opp’n 12-15. That is wrong. As Petitioner explained in his opening brief, it is

well-settled that challenges to military commission jurisdiction lie at the historical heart of

habeas corpus. Mot. 12-16. The Supreme Court recognized this as recently as 2006, in Hamdan

v. Rumsfeld, 548 U.S. 557 (2006) (“Hamdan I”), when it reviewed a Guantánamo detainee’s pre-

trial habeas challenge to the jurisdiction of the military commission then slated to try him. There

was no dispute in that case that a habeas petition was an appropriate vehicle to challenge, before

trial, the military commission’s authority to try a prisoner for the offenses charged; and the Court

noted “compelling historical precedent for the power of civilian courts to entertain challenges

that seek to interrupt the processes of military commissions.” Hamdan I, 548 U.S. at 588-89

(citing Ex parte Quirin, 317 U.S. 1, 25 (1942)); see also In re Yamashita, 327 U.S. 1, 8 (1946).

The Government’s discussion of the “core” of habeas fails entirely to respond to this

controlling Supreme Court precedent. See Opp’n 13-15. The Government likewise fails to

address the numerous cases and scholarly authorities Petitioner cites demonstrating that

historically, the very purpose of the writ of habeas corpus was to test and resolve whether

inferior tribunals, including military commissions, properly asserted jurisdiction. See Mot. 14-15

(citing R.J. Sharpe, The Law of Habeas Corpus 5 (2d ed., Oxford Univ. Press 1989); Edward

Jenks, The Prerogative Writs in English Law, 32 Yale L.J. 523, 525 (1923); Sir Edward Coke, 4

Institutes of the Laws of England 1170 (1797 ed.); Dallin H. Oaks, Habeas Corpus in the States

1776-1865, 32 U. Chi. L. Rev. 243, 258 (1965); The Case of Wolfe Tone, 27 How. St. Tr. 614

(Irish K.B. 1798); Chancey’s Case, 77 Eng. Rep. 1360 (K.B. 1611); Ex parte Yerger, 75 U.S. (8

Wall.) 85 (1869); Reid v. Covert, 354 U.S. 1 (1957); United States ex rel. Toth v. Quarles, 350

U.S. 11 (1955)). The Government similarly fails to address Petitioner’s extensive authority

demonstrating that habeas corpus has historically been the vehicle through which minors,


7

including aliens, have challenged and obtained release from military jurisdiction. Mot. 15-16

(citing Rex v. Parkins, [1758] 2 Kenyon 295, 96 Eng. Rep. 1188; Commonwealth ex rel. Webster

v. Fox, 7 Pa. 336, 340 (1847); In re McDonald, 16 F. Cas. 33 (D. Mass. 1866) (No. 8752); In re

Higgins, 16 Wis. 351 (1863); Commonwealth v. Harrison, 11 Mass. (11 Tyng) 63, 66 (1814)).

Ignoring all this precedent, the Government instead relies primarily on a single case,

Munaf v. Geren, 128 S. Ct. 2207 (2008), to argue that pre-trial jurisdictional challenges fall

outside habeas’ “core.” Opp’n 13. But Munaf stands for no such proposition. The Court in

Munaf held that it did have habeas jurisdiction to hear the petitioner’s claims. Munaf v. Geren,

128 S. Ct. 2207, 2213 (2008) (finding habeas jurisdiction but declining relief on the merits).

Moreover, the petitioners in Munaf sought to avoid release from U.S. detention, not (as here) to

secure release from adult detention and release from pre-trial detention in anticipation of an

MCA trial. See Munaf, 128 S. Ct. at 2221. The Court’s analysis of the appropriateness of

habeas relief in that case thus does nothing to cast doubt on its availability for one of its core

historical purposes: to challenge the jurisdiction of an inferior tribunal. See Mot. 12-16.1 In light

of the weight of precedent holding that pre-trial challenges to the jurisdiction of a military

commission lie at the heart of the writ of habeas corpus, there is no basis to conclude that

Petitioner’s habeas claims are beyond the scope of the Suspension Clause.

1 The Government also suggests that Boumediene did not hold that detainees have a “right to mount a pre-trial challenge to military commission proceedings.” Opp’n 14. But as discussed in Petitioner’s opening brief, Boumediene emphatically affirmed the availability of the writ of habeas corpus to detainees at Guantánamo. See Mot. 11. It is hardly surprising that it did not expressly discuss challenges to military commission jurisdiction, since such challenges were not at issue in that case; and, as discussed, the Government has no answer to the myriad cases and authorities establishing that jurisdictional challenges formed a critical part of the historical core of habeas. Boumediene’s statement that “defendants in courts-martial” must sometimes “exhaust their military appeals,” 128 S. Ct. at 2274 (quoted at Opp’n 14), is simply a restatement of the holding in Councilman, 420 U.S. at 758. As discussed below, that holding does not apply to the challenge raised here. See Section I.C infra.


8

B. Section 950j Does Not Provide an Adequate Substitute to Pre-Trial Challenges to the Jurisdiction of a Military Commission

The Government next argues that Section 950(j) of the MCA provides an adequate

substitute for habeas corpus relief, and therefore lawfully strips this Court of jurisdiction over

Petitioner’s challenge to the military commission’s personal jurisdiction. That too is incorrect.

Initially, as Petitioner’s opening brief explained, Section 950j(b) need not be read to strip this

Court’s jurisdiction over that claim. See Mot. 19 & n.11. But insofar as Section 950j does

purport to strip this Court of habeas jurisdiction over Petitioner’s pre-trial challenge to military

commission jurisdiction, it constitutes an unconstitutional suspension of the writ and is invalid.

See Mot. 19-24.

The Government asserts that the MCA provides a constitutionally adequate “alternative

remedy” to habeas relief by “channeling” Petitioner’s pre-trial claims to a statutory post-trial

review process that can (it claims) assess the sufficiency of evidence against a petitioner, hear all

legal claims a petitioner could bring before an Article III court, and order release. Opp’n 10-12,

15-21. That argument fails on its face: a post-trial review process cannot be an adequate

substitute for the pre-trial review of a tribunal’s jurisdiction provided by the writ of habeas

corpus. The MCA flatly denies Petitioner the opportunity to meaningfully challenge the

jurisdiction of the military commission over juveniles prior to trial. See Khadr, 529 F.3d at

1115-17 (holding that under the MCA, defendants may not take pre-conviction appeals to the

D.C. Circuit). Accordingly, as Petitioner observed in his opening brief, the Government’s

putatively “adequate” alternative simply eliminates the key remedies available through habeas

corpus: the right to avoid trial in a military commission that lacks personal jurisdiction over

Petitioner, and the right to challenge that jurisdiction in a tribunal of record before the trial takes

place. As the D.C. Circuit has previously explained—and as the Supreme Court implicitly


9

recognized in Councilman, 420 U.S. at 738, Reid v. Covert, 354 U.S. 1 (1957), Toth, 350 U.S. at

1, and Quirin, 317 U.S. at 1—“setting aside [a] judgment after trial and conviction insufficiently

redresses the defendant’s right not to be tried by a tribunal that has no jurisdiction.” Hamdan v.

Rumsfeld, 415 F.3d 33, 36 (D.C. Cir. 2005), rev’d on other grounds, 548 U.S. 557 (2006). The

irreparable harms of denying pre-trial review, both to the accused and to U.S. commitments to

international law, are particularly severe in the case of a juvenile being tried in an adult military

proceeding. See Mot. 22. Post-trial review, no matter how elaborate, cannot undo the harms of

having been tried by a tribunal lacking jurisdiction.2

Moreover, even if it were possible for some form of post-trial review to constitute an

adequate alternative to the habeas right Petitioner invokes here, the Government fails to

demonstrate that the MCA’s review procedures would suffice. The MCA fails to mandate the

timely review that habeas demands: D.C. Circuit review under the MCA is only triggered once

the “convening authority” approves the “final decision” of a military commission, see 10 U.S.C.

§ 950c(a), and there is no deadline for the convening authority to do so. In addition, as Petitioner

discussed in his opening brief, it is unclear that the MCA will permit defendants to bring a

sufficiently broad range of post-trial challenges, including challenges to collateral orders and

factual and evidentiary determinations. And the MCA apparently forecloses a petitioner’s ability

to introduce newly-discovered exculpatory evidence. Mot. 22-24; Boumediene, 128 S. Ct. at

2 Tellingly, the Government states that Petitioner seeks habeas to “obtain judicial review of his claim that he cannot be convicted for crimes in violation of the law of war committed while he was a minor.” Opp’n 15 (emphasis added). Of course, Petitioner has not argued that he cannot be convicted of any crimes he allegedly committed as a minor, but rather simply that he cannot be tried for crimes he allegedly committed as a minor by a military tribunal that has been established to try adults. The right Petitioner seeks to vindicate through his habeas writ is therefore not, as the Government would have it, the right not to be “convicted,” but rather the right not to be tried by a tribunal lacking personal jurisdiction over him. That claim cannot be vindicated through post-conviction relief.


10

2267; cf. Boumediene, 128 S. Ct. at 2271-74 (finding the similarly limited DTA review

inadequate in scope). Respondents do not address any of these limitations.

The Government also repeatedly suggests that the Supreme Court’s decision in

Boumediene supports the view that the MCA’s post-conviction review provisions are an

adequate substitute for habeas. See Opp’n 15-18. In fact, that decision supports Petitioner. As

Petitioner noted in his opening brief, Boumediene established that the Suspension Clause “has

full effect at Guantanamo Bay,” that the combination of CSRT hearings and D.C. Circuit review

under the DTA provide an inadequate substitute for habeas petitions challenging the legality of

detention as an enemy combatant, and thus that Guantánamo detainees are entitled to “prompt

habeas corpus hearing[s].” 128 S. Ct. at 2262, 2275. The Government implies that because the

procedures used by military commissions are allegedly more robust than those used by CSRTs,

and involve (for example) adversarial proceedings, habeas review of military commission

jurisdiction is not required under Boumediene. See Opp’n 15, 17. That is wrong. Boumediene

did not squarely analyze what kinds of procedures would be an adequate substitute for pre-trial

habeas challenges to military commission jurisdiction, but nothing in that opinion suggests that

the commission procedures themselves could adequately replace habeas. To the contrary:

Boumediene expressly notes that both Yamashita and Quirin involved military proceedings with

“an adversarial structure,” but that the Court nonetheless undertook habeas review to determine

“whether the Executive had legal authority to try the petitioner by military commission.”

Boumediene, 128 S.Ct. at 2271. That is exactly the kind of habeas review Petitioner seeks here.

The Government further suggests that the military commission itself can provide an

adequate alternative means for testing the jurisdiction of the military commission. See, e.g.,

Opp’n 17 (“in the military-commission proceedings, petitioner could and did raise his claim


11

relating to his age when he committed his crimes”); Opp’n 15 (arguing that military commission

proceedings are adequate because they are adversarial); Opp’n 16 (arguing that military

commission proceedings and post-trial review “comprise a sufficient habeas substitute”). But

the core of Petitioner’s claim is that the military commission established under the MCA lacks

personal jurisdiction to try him because of his status as a juvenile. As a result, whether Petitioner

can raise a jurisdictional challenge in the commission itself, and what procedures the commission

employs for resolving that challenge, are entirely irrelevant. A tribunal of limited jurisdiction,

like the Guantánamo military commission, cannot be the judge of its own jurisdiction: as Chief

Justice Marshall explained, military tribunals are not courts of record, but rather “inferior courts

of limited jurisdiction,” and in deciding the scope of habeas review, they are “not placed on the

same high ground with the judgments of a court of record” such as a civilian court. Ex Parte

Watkins, 28 U.S. (3 Pet.) 193, 209 (1830); see Boumediene, 128 S. Ct. at 2268, 2271 (citing

Watkins). For this reason, the Supreme Court has repeatedly heard pre-trial habeas petitions

challenging the jurisdiction of military commissions, despite the fact that the commissions

themselves could have considered their own jurisdiction. See, e.g., Yamashita, 327 U.S. at 5

(noting that the commission itself had entertained a challenge to its jurisdiction).

The Government also cites the abstention doctrine set forth in Councilman, suggesting

that if MCA review were an inadequate substitute for habeas corpus, Councilman abstention—

“whereby the court will abstain for review of military-criminal proceedings until a judgment is

final”—would “work an unconstitutional suspension of the writ.” Opp’n 19. That is simply

wrong: as discussed below, the Supreme Court has expressly recognized that Councilman

abstention is not appropriate when, as here, a petitioner brings a status-based challenge to the

military tribunal’s personal jurisdiction. See 420 U.S. 759; see also Hamdan I, 548 U.S. at 586.


12

The Government’s observation that the petitioner in Councilman (an Army captain) challenged

the subject-matter jurisdiction of the tribunal over a particular “crime” shows that case to be

inapposite here. See Opp’n 19; see also, Hamdan I, 548 U.S. at 585 (noting that the Councilman

Petitioner’s “sole argument was that the subject matter of his case did not fall within the scope of

court-martial authority”) (emphasis added). The Government’s citation to Younger v. Harris,

401 U.S. 37 (1971), is similarly inapposite: state courts, unlike military commissions, are courts

of record. See Boumediene, 128 S. Ct. at 2268, 2271 (citing Watkins, 28 U.S at 209).3

C. Abstention is Inappropriate Because Petitioner Raises a Status-Based Challenge to the Commission’s Personal Jurisdiction

As Petitioner’s opening brief explains, the abstention doctrine set forth in Schlesinger v.

Councilman, 420 U.S. 738 (1975), is inapplicable to this case because Petitioner has raised a

status-based challenge to the military commission’s personal jurisdiction. Councilman itself

expressly recognized that abstention is inappropriate where, as here, a petitioner raises

“substantial arguments denying the right of the military to try [him] at all,” and in which the

challenge depends on “the status of the person[] as to whom the military asserted its power.” Id.

at 759 (internal quotation marks omitted). See also Hamdan I, 548 U.S. at 586; Boumediene,

128 S. Ct. at 2262 (“[A]bstention is not appropriate in cases . . . in which the legal challenge

turns on the status of the persons as to whom the military asserted its power.”) (internal

punctuation and quotation marks omitted).

The Government discusses at length various differences between the military

commissions at issue in Hamdan I and commissions convened under the MCA (see Opp’n 22-

3 The Government’s assertion that addressing “personal jurisdiction” pre-trial would be “in direct contravention” to the D.C. Circuit’s opinion in Khadr is also plainly wrong. (Opp’n 12, citing Khadr, 529 F.3d at 1117). As noted above, see supra at 3, the D.C. Circuit’s opinion has nothing to do with this court’s habeas jurisdiction or with Petitioner’s status as a juvenile.


13

24), but ultimately concedes, as it must, that under Hamdan I, Boumediene, and Councilman

itself, abstention is inappropriate where a petitioner’s personal jurisdiction challenge “‘turn[s] on

the status of the person[] as to whom the military asserted its power.’” Opp’n 24 (quoting

Hamdan I, 548 U.S. at 586 n.16 (quoting Councilman, 420 U.S. at 759)). Attempting to evade

application of that principle to this case, the Government asserts that merely describing a

challenge as “jurisdictional” is not talismanic and cannot save simply any case from abstention.

Opp’n 24. Petitioner agrees. But by the same token, the category of “jurisdictional” challenges

cannot be a null set, and if this exception to Councilman ever applies, it must apply to this

Motion. Petitioner raised before the military commission several serious challenges to that

tribunal’s subject-matter jurisdiction, including claims that the charges against him violate the Ex

Post Facto Clause, the Bill of Attainder Clause, and the Due Process Clause. But Petitioner has

not raised any of these arguments before this Court. Rather, the sole issue Petitioner raises here

with respect to his military commission trial is that the commission lacks personal jurisdiction

over him because of his status as a former child soldier. That is precisely the kind of status-

based challenge to military jurisdiction that Councilman and subsequent cases have made plain

are inappropriate for abstention.

The cases the Government cites—Khadr and Hamdan v. Gates, No. 04-1519 (D.D.C.

July 18, 2008) (“Hamdan II”)—do not alter this conclusion. As explained above, supra at 3, 12

n.3, adjudicating Petitioner’s claim would not “undercut” the D.C. Circuit’s opinion in Khadr

(Opp’n 25), because Khadr had nothing to do with Councilman abstention, habeas corpus, or

arguments based on juvenile status. Hamdan II is equally inapposite. As Petitioner explained in

his opening brief, Hamdan never asserted (and could not have asserted) that he fell into a class of

persons over whom the military simply lacks all jurisdiction. Rather, he claimed that the military


14

judge had misapplied the relevant law in his particular case. See Mot. 18. Petitioner’s argument

is categorically different: unlike Hamdan, Petitioner falls into a class of persons—juveniles—

who are not even in principle subject to military jurisdiction under the MCA. As a result,

Petitioner has not merely challenged the correctness of his particular unlawful enemy

combatancy determination, but rather has contended that the commission cannot exercise

jurisdiction over him because of his status as a juvenile. His claims thus lie at the heart of the

“long-standing exception to Councilman abstention” recognized by the Hamdan court, Hamdan

II, slip op. at 15, and by Councilman itself.4

D. The Suspension Clause and Abstention Issues in this Motion are Narrow, and Limited to Juveniles Challenging Military Commission Jurisdiction

It bears emphasis that, because they turn on issues specific to Petitioner’s status as a

former child soldier, the abstention and Suspension Clause issues raised by this Motion are

exceedingly narrow. Resolution of these claims in Petitioner’s favor need not affect the claims

of most other detainees at Guantánamo Bay.5 With respect to abstention, as discussed,

Petitioner’s motion presents a rare status-based challenge to military commission jurisdiction.

Accordingly, although abstention would be inappropriate with respect to this Motion, hearing

Petitioner’s claims would have little if any bearing on other possible cases.

4 The Government’s attempts to analogize this case to habeas challenges to state juvenile proceedings and to Younger abstention (see Opp’n 25) are again unavailing. As noted above, state courts are courts of record. But the exception to Councilman abstention applicable here is based in part on the fact that military tribunals are not courts of record, and a recognition that it is therefore critical for Article III courts to review their jurisdiction before they try persons over whom they may not even in principle have jurisdiction. See Boumediene, 128 S. Ct. at 2228 (citing Watkins, 3 Pet. 193); Hamdan, 548 U.S. at 585-89; Councilman, 420 U.S. at 758-59. 5 According to the Government, only one other juvenile is detained as an adult enemy combatant at Guantánamo Bay and slated for trial by an adult military commission convened pursuant to the MCA. See List of Issues to be Taken up in Connection with the Consideration of the Initial Report of the United States of America (CRC/C/OPAC/USA/1), Art. 12(c) (“Report to Committee on Optional Protocol”), available at http://www2.ohchr.org/english/bodies/ crc/docs/AdvanceVersions/CRC.C.OPAC.USA.Q.1.Add.1.doc


15

Similarly, if this Court concludes (as it should) that Section 950j works an

unconstitutional suspension of the writ of habeas corpus in this case, that conclusion would not

necessarily affect other detainees. In ruling on Petitioner’s motion, this Court need not decide

whether the MCA’s post-conviction review procedures are in general an adequate substitute for

habeas review. Rather, it need only decide that, in the case of former child soldiers, these

procedures cannot replace habeas. To be sure, other petitioners may share an interest in having

their claims heard prior to trial. But this interest is particularly acute in Petitioner’s case, for at

least two reasons. First, as has been discussed, Petitioner brings a status-based challenge to the

military commission’s jurisdiction. The Supreme Court’s recognition in Councilman and other

cases of the importance of hearing such challenges prior to trial should inform not simply this

Court’s abstention analysis, but also its analysis of the adequacy of a purported substitute that

provides only post-conviction review. See supra at 12-13; Mot. 21-22. Second, as Petitioner

noted in his opening brief, pre-trial review is particularly critical in cases involving juveniles or

former child soldiers, as subjecting a juvenile to adult criminal processes risks causing

psychological and developmental harm (as well as violating domestic and international legal

norms related to the appropriate treatment of juvenile defendants). See Mot. 22.

II. A MILITARY COMMISSION CONVENED PURSUANT TO THE MCA LACKS AUTHORITY TO TRY PETITIONER As Petitioner explained in his opening brief, the military commission slated to try him

lacks personal jurisdiction because the MCA does not confer jurisdiction over juveniles. See

Mot. 24-35. As a result, Petitioner seeks an injunction preventing any MCA military

commission from trying him for his alleged crimes. See Mot. 35. In its Opposition, the

Government ignores Petitioner’s actual claim, and instead sets out to prove that Petitioner can, in

fact, “be criminally tried for offenses committed when he was fifteen.” Opp’n 27. That much is


16

correct: Petitioner does not dispute that he can be prosecuted in an appropriate forum for any

offenses he allegedly committed as a juvenile. See Mot. 25.

Petitioner may not, however, be tried in an adult military commission convened under the

MCA, because that particular kind of tribunal lacks jurisdiction over him. Military law has long

been understood not to create military jurisdiction for offenses committed by juveniles. This

tradition is reflected in a number of cases interpreting the UCMJ, the acknowledged basis for the

MCA. Further, a pre-existing statutory scheme—the JDA—by its terms governs federal

jurisdiction over juveniles (including aliens abroad) alleged to have violated federal criminal

law, and in addition provides a backdrop against which the MCA should be construed.

Moreover, interpreting the MCA to confer jurisdiction over juveniles would squarely conflict

with the United States’ obligations under the Child Soldier Protocol, a binding legal authority

that requires juveniles detained in armed conflict to be demobilized, rehabilitated, and assisted

with reintegration into society. For these reasons, the MCA should not be read to have implicitly

conferred personal jurisdiction to try juveniles, and accordingly any military commission

convened pursuant to the MCA lacks jurisdiction over Petitioner and must be enjoined.

A. The MCA Reflects Longstanding Military Law, Which Excludes Jurisdiction Over Juveniles

As an initial matter, the Government cannot successfully counter Petitioner’s

straightforward point that the MCA neither expressly establishes jurisdiction over minors nor

sets forth any special procedures to be used in conducting military commission procedures

involving juveniles defendants. Cf. Juvenile Delinquency Act (“JDA”), 18 U.S.C. §§ 5031 et

seq. (setting forth special procedures for trying juveniles); Statute of the Special Court of Sierra

Leone (SCSL Statute), Art. 7 (same). The Government argues that because the MCA creates

jurisdictions over “person[s]” rather than “adult person[s],” it establishes jurisdiction over


17

juveniles who engaged in hostilities against the United States. Opp’n 27-28. But in light of

long-standing military law holding that courts martial lack jurisdiction over juveniles who have

not acquired military status, see Mot. 25-28, and the special provisions of the JDA and the

Optional Protocol, see Mot. 28-35, this argument is exactly backwards: given this pre-existing

legal regime, it would be unreasonable to read the MCA as conferring jurisdiction over juveniles

unless it expressly did so. See Mot. 24-25.6

Attempting to minimize the importance of the military law cited in Petitioner’s opening

brief, see Mot. 25, the Government argues that these UCMJ precedents are “not relevant”

because the MCA provides only that its “procedures” are based on the procedures for courts-

martial set forth in the UCMJ, and “[a]n age limit on criminal liability is not a criminal

‘procedure,’ but a substantive defense to criminal liability.” Opp’n 28. Initially, the

fundamental principles of military jurisdiction expressed in these precedents are highly relevant

to determining the jurisdiction of a military commission, whether or not they are expressly

referenced by the MCA. In any event, the “age limit” embodied in these precedents is a limit on

military jurisdiction based on a juvenile’s lack of capacity to consent to military status, not a

limitation on or “defense” to liability as such. See Mot. 25-27. And jurisdictional limitations are

properly counted procedural, rather than substantive, because courts lacking jurisdiction may not

proceed to the question of whether a defendant has a substantive defense.

6 The same analysis applies to the Government’s argument that the MCA should be read to confer jurisdiction over juveniles because Congress was aware of Petitioner’s charges when the MCA was enacted, and failed to impose an age limit on military commission jurisdiction. See Opp’n 29. Against the backdrop of the longstanding prohibition on military jurisdiction over juveniles, and the existence of the JDA, the Optional Protocol, and the SCSL Statute—all of which recognize the importance of making special provisions for juveniles—the absence of any special provision for juveniles in the MCA confirms that Congress did not intend the MCA to confer jurisdiction over juveniles. Similarly, the fact that Congress did not expressly exclude juveniles from trial by military commission (see Opp’n 29) is irrelevant, because the best reading of the MCA is that it did not confer jurisdiction over juveniles to begin with.


18

The Government also argues that UCMJ cases are “inapposite” because they turn on a

minor’s ability to “chang[e] his status to that of a member of the [United States] military,” and

because Congress set the minimum age of enlistment in the U.S. armed forces by statute. Opp’n

28 (quoting United States v. Blanton, 23 C.M.R. 128, 130 (C.M.A. 1957)) (alterations added by

Government). But as Petitioner noted in his opening brief (see Mot. 26 n.13), the principle

embodied in these cases is fully applicable here: namely, that when someone is below the

minimum age for enlistment, “a person is deemed incapable of changing his status to that of a

member of the military establishment.” Blanton, 23 C.M.R. at 666. “[T]he question is one of

legal competency to effect a change of status,” id., and juveniles, whether in the U.S. or captured

by the United States, lack that legal capacity under the laws and treaties of the United States.

That conclusion stands whether the age of consent is set by statute or by international law. See

U.S. Dep’t of State, Article-by-Article Analysis, attached to Letter of Submittal of Optional

Protocol, July 13, 2000, S. Treaty Doc. No. 106-37 (“Article Analysis”), 2000 WL 33366017, at

*2 (“The [Child Soldier] Protocol raises the age for military conscription to 18 years.”).

B. The MCA Did Not Implicitly Overrule the JDA

In addition, Petitioner’s case falls squarely within the ambit of the JDA, the

comprehensive federal scheme that governs juveniles accused of violating federal law.

Interpreting the MCA to confer jurisdiction over juveniles would require this Court to hold that

the MCA had implicitly repealed the JDA with respect to juvenile detainees at Guantánamo Bay.

But repeals by implication are disfavored, and there is no reason to adopt this interpretation of

the MCA. See Mot. 28-31.

Resisting this conclusion, the Government argues that the JDA is inapplicable to

Petitioner because it applies only in “court[s] of the United States,” 18 U.S.C. § 5032, and


19

(according to the Government) a military commission is not a “court of the United States.”

Opp’n 35. That is incorrect. Initially, the JDA does not refer simply to a “court of the United

States” but to “any court of the United States.” 18 U.S.C. § 5032 (emphasis added). And courts

have held that for purposes of Title 18, “[c]ertainly ‘any court’ includes a military court, the

adjective ‘any’ expanding the term ‘court’ to include ‘one or some indiscriminately of whatever

kind’; ‘one that is selected without restriction or limitation of choice’; or ‘all.’” United States v.

Martinez, 122 F.3d 421 (7th Cir. 1997) (citation omitted); see also United States v. MacDonald,

992 F.2d 967, 970 (9th Cir. 1993). Further, MCA military commissions are established by a

statute enacted by Congress; derive their power from the sovereign authority of the United

States; are convened, directed, and staffed by the Department of Defense and the U.S. armed

services; and sit on territory under U.S. control. Cf. Flick v. Johnson, 174 F.2d 983, 985-86

(D.C. Cir. 1949) (holding that a military tribunal sitting in Germany, whose “power and

jurisdiction . . . stemmed directly from the [international] Control Council . . . exercising its

authority in behalf of the Four Allied Powers” was “an international court” and so not a “tribunal

of the United States”); Hirota v. MacArthur, 338 U.S. 197, 198 (1948) (holding that a military

court in Japan was “not a tribunal of the United States” because it was not established under the

authority and chain of command of the United States, but of “the Allied Powers.”); Munaf, 128

S. Ct. at 2217 (explaining that the commission in Hirota was “an international tribunal” and that

“[t]he [Supreme] Court in Hirota . . . may have found it significant, in considering the nature of

the tribunal established by General MacArthur, that the Solicitor General expressly contended

that General MacArthur, as pertinent, was not subject to United States authority.”).

The Government also cites a number of military court decisions holding the JDA

inapplicable to courts martial, asserting that these cases mean the JDA does not apply to


20

Petitioner’s case. Opp’n 35. They do not. Rather, these cases simply conclude that the JDA

does not apply to juveniles who have properly enrolled in the United States armed forces, based

on the fact that these juveniles have undergone a voluntary change in status from civilians to

soldiers, and on the disciplinary needs of the military. See United States v. Baker, 14 US.C.M.A.

311, 312 (1963). Moreover, these cases turn in part on a finding that it would be “impractical,

perhaps even impossible” for the government to comply with the JDA “in the case of an accused

stationed with the American forces in a foreign country.” Id. at 313. Here, of course, petitioner

is not a voluntary member of the American armed forces, there is no rationale related to military

discipline for lifting the requirements of the JDA, and there is no reason why it would be

“impractical,” let alone “impossible,” for the JDA to apply to his case. Accordingly, the JDA by

its terms governs Petitioner’s case; there is no reason to read the MCA as having implicitly

overruled the JDA by conferring jurisdiction over juveniles.7

C. Interpreting the MCA to Confer Jurisdiction over Juveniles Would Conflict with the United States’ Obligations Under the Child Soldier Protocol

Reading the MCA to confer jurisdiction over juveniles would also conflict with the

obligation imposed on the United States by the Child Soldier Protocol. This conflict provides a

further reason to construe the MCA not to confer jurisdiction over juveniles. See Mot. 31-35.

The Government’s first response to this argument is to claim that the Child Soldier

Protocol is not self-executing and does not confer individual rights. See Opp’n 29-30. As

Petitioner explained in his opening brief, this argument is incorrect. See Mot. 40 n.24. But in

7 Even if the Government were correct that the JDA does not by its terms apply to Petitioner’s case, it would provide an important statutory backdrop against which the MCA should be read. Specifically, the JDA makes clear that the United States, and Congress in particular, recognizes that detaining and trying juveniles for alleged crimes requires special procedures consistent with their special needs and special capacity for rehabilitation. See Mot. 5-6, 28-29. That considered policy would be flagrantly violated if the MCA were construed to confer jurisdiction, sub silentio, over juveniles.


21

any event, it is wholly irrelevant to Petitioner’s argument under the MCA: with respect to the

MCA, Petitioner does not invoke the Protocol as a source of rights, but rather as a binding treaty

obligation in light of which the MCA must be construed.8 See U.S. Const., Art. VI. It is well-

settled that when interpreting a statute and a treaty on the same subject, courts should “endeavor

to construe them so as to give effect to both, if that can be done without violating the language of

either.” Whitney v. Robertson, 124 U.S. 190, 194 (1888); see also Foster v. Neilson, 27 U.S. (2

Pet.) 253, 314 (1829). Here, the best (and only) way to fulfill this mandate is to interpret the

MCA as not implicitly conferring jurisdiction for adult military commissions to try juveniles.

The Government next argues that the Protocol “does not prohibit the United States from

prosecuting [Petitioner] for violations of the law of war,” but rather “simply restricts ratifying

nations from using child soldiers.” Opp’n 31. The first argument is correct but irrelevant:

Petitioner does not claim that the Protocol immunizes him from criminal prosecution in an

appropriate forum with procedures that are consistent with the rehabilitation and reintegration

obligations recognized in the Protocol. See Mot. 33-34; SCSL Statute, Arts. 7(1) & (2). Rather,

he simply claims that the procedures for military commission trial set forth in the MCA are

inconsistent with these obligations. See id. The Government’s assertions that the Protocol does

not prevent ratifying nations from “prosecuting” juveniles at all are therefore irrelevant. See,

e.g., Opp’n 32 (“Nothing in Article 4, however, prevents a ratifying nation from prosecuting

members of such groups for their illegal acts.”); id. (“Article 7 does not address whether minors

8 The Government’s self-execution argument is likewise irrelevant to Petitioner’s claim that the law-of-war limits embodied by the Child Soldier Protocol are relevant to the correct interpretation of the AUMF. See infra at 30; Mot. 38-39. At most, the Government’s argument would be relevant to Petitioner’s secondary claims that his detention as an “enemy combatant” and as an adult violate the Child Soldier Protocol. See Mot. 40, 44. Even with respect to these claims, however, Petitioner has a strong argument that he may bring claims for violations of the Child Soldier Protocol in an action for a writ of habeas corpus. See Mot. 40 n.24.


22

may be criminally charged . . . .”). And sources the Government itself cites, such as General

Comment No. 10 on Children’s Rights in Juvenile Justice and the SCSL Statute (see Opp’n 33-

34 & n.10), confirm that the procedures set forth in the MCA are inappropriate for juveniles.9

The Government’s claim that the Protocol merely requires ratifying nations to refrain

from using juveniles in their own armed forces similarly fails. That reading neglects the plain

text of Article 7(1) of the Protocol, which requires States Parties to cooperate “in the

rehabilitation and social reintegration of persons who are victims of acts contrary to this

Protocol.” Optional Protocol, Art. 7(1). And it is belied by the Government’s own conduct and

statements with respect to juveniles at Guantánamo, which recognize that the United States has

an obligation to treat captured juveniles in accordance with the Protocol’s goals of rehabilitation

and reintegration. See, e.g., United States v. Stuart, 353, 369 (1989) (“The practice of treaty

signatories counts as evidence of the treaty’s proper interpretation, since their conduct generally

evinces their understanding of the agreement they signed.”). In its recent report on its

compliance with the Child Soldier Protocol, for example, the United States declared that it “has a

number of policies in place that attempt to limit the length of time a juvenile is held in

detention,” Report to Committee on Optional Protocol, Art. 12(b), that it “does not currently

detain any juveniles at Guantanamo Bay,” id., and that it “recognizes the special needs of young

detainees and the often difficult or unfortunate circumstances surrounding their situation,” Art.

9 See, e.g., General Comment No. 10, Doc. CRC/C/GC/10 (Apr. 25, 2007), ¶ 10 (in all “juvenile justice” decisions, “the best interests” of the juvenile should be a “primary consideration”); ¶ 13 (juvenile justice procedures must promote “reintegration” and assumption of a “constructive role in society”); ¶¶ 75, 77 (persons under the age of 18 when they commit a crime may not be sentenced to death or life without parole); ¶ 85 (juveniles “deprived of [their] liberty shall not be placed in an adult prison or other facility for adults”); SCSL Statute, Arts. 7(1) & (2) (explicitly conferring jurisdiction over some juveniles; requiring consideration of “rehabilitation” and “reintegration” goals in any proceedings; and prescribing juvenile-appropriate sentences such as educational and vocational training).


23

12(e).10 Accordingly, contrary to the Government’s argument here, the United States itself has at

least implicitly recognized that the Protocol’s obligations extend to treatment of detained

juveniles consistent with the goals of rehabilitation and reintegration. It has simply failed to

honor these obligations in Petitioner’s case.11

D. Petitioner Easily Meets the Standard for Injunctive Relief

Finally, the Government argues that Petitioner is not entitled to injunctive relief because

the balance of harms “tips . . . against” issuing an injunction. Opp’n 36. That argument is

simply wrong. Initially—and critically—the Government appears to ignore the fact that

Petitioner is not seeking a temporary stay of his military commission proceedings pending a

decision by this Court. Rather, he seeks a permanent injunction against his trial by MCA

military commission, as a form of habeas relief for his claim that such military commissions lack

jurisdiction over juveniles. The Government’s discussion of the balance of harms is thus largely

beside the point: if this Court agrees (as it should) that it has jurisdiction over this claim, that

abstention is inappropriate, and that the MCA does not confer jurisdiction over juveniles, there

would be no sensible reason to nevertheless permit an (illegal and ultra vires) MCA proceeding

10 See also Recommended Course of Action for Reception and Detention of Individuals Under 18 Years of Age (Jan. 14, 2003) (Kuebler Supp. Aff., Ex. 2) (enumerating “specific processing actions related to the transport, evaluation, management, and detainment of Pediatric Detainees at Guantanamo Bay, Cuba in order to minimize psychological, emotional, and physical harm.”); Press Release, Transfer of Juvenile Detainees Completed (Jan. 29, 2004) (Kuebler Supp. Aff., Ex. 3) (describing the treatment of other juvenile detainees). 11 The President’s statement, upon signing the MCA, that the Act “[c]omplie[d] with both the spirit and the letter of our international obligations,” see Opp’n 34 (citations omitted), merely bolsters Petitioner’s contention that the MCA must be interpreted so as not to conflict with the Protocol. Subjecting juveniles to military commission trial under the MCA would not comply with the “letter” or the “spirit” of the Protocol; and there is no basis for thinking that, simply by making this broad statement, the President meant to abrogate the United States’ obligations under the Child Soldier Protocol, depart from decades of military precedent, and sanction the implicit overruling of the JDA.


24

to go forward. Unlike in Khadr, Petitioner is not asking the Court to decide (under the collateral

order doctrine) that the balance of harms favors deciding a legal question before, rather than

after, trial. Rather, Petitioner simply contends that, for the reasons discussed above, this Court

has jurisdiction over Petitioner’s habeas claim and that abstention would be inappropriate.

And if this Court agrees that the MCA does not confer jurisdiction over juveniles, an

injunction will plainly serve the public interest and be necessary to prevent Petitioner from

suffering irreparable harm. There can be no public interest in conducting a military commission

proceeding that an Article III court has decided exceeds its jurisdiction. And Petitioner would

suffer serious and irreparable harm from being forced to undergo a military commission trial

before a tribunal that this Court had already held lacked jurisdiction over juveniles.

Further, contrary to the Government’s arguments, an injunction in these circumstances

would not “defeat the public interest” in trying unlawful enemy combatants. Opp’n 36. As

discussed above, Petitioner’s claims with respect to abstention and jurisdiction are narrow; and

his argument with respect to MCA jurisdiction is limited to personal jurisdiction over juveniles.

Accordingly, an injunction against trying juveniles in MCA military commissions would neither

affect the Government’s ability to try other detainees in MCA military commissions, nor affect

the Government’s ability to convene an appropriately-constituted tribunal that could hear war

crimes claims brought against juveniles, including Petitioner.

III. THE GOVERNMENT’S MOTION TO HOLD IN ABEYANCE OR DISMISS PETITIONER’S DETENTION-BASED HABEAS CHALLENGES SHOULD BE DENIED The Government’s cross-motion asks this Court to hold in abeyance or dismiss without

prejudice Petitioner’s detention-related habeas challenges because he has been charged before a

military commission. See Opp’n 38-43. This cross-motion should be denied. Of course, if this


25

Court agrees with Petitioner that MCA military commissions lack jurisdiction over juveniles,

proceedings before such a tribunal would no longer be appropriate, and the basis for the

Government’s motion would collapse.

But even if this Court should disagree, it should nonetheless deny the Government’s

cross-motion. To begin, as a practical matter, there would be no basis for holding the detention-

related claims raised in this motion in abeyance even if Petitioner were still subject to an ongoing

military commission trial. The Government has taken the position that it may detain individuals

at Guantánamo indefinitely, no matter the outcome of military commission proceedings: even if

defendants are acquitted or complete any sentence imposed on them, they will (in the

Government’s view) still be “enemy combatants” subject to indefinite military detention. See

Josh White, Detainee May Not Go Free After Sentence, Wash. Post, Aug. 10, 2008, at A1

(quoting a Pentagon statement that an individual sentenced by a military commission “will serve

his time for the conviction and then he will still be an enemy combatant”). Because the

Government claims the authority to continue to hold Petitioner irrespective of the result of the

military commission proceedings, there is no equitable reason to delay resolution of the

challenges to his detention raised in this motion.

Further, the detention-related challenges in this motion present pure issues of law that

concern Petitioner’s status as a former child soldier. Those issues have now been fully briefed,

and are ripe for resolution. They involve no questions of fact (they do not, for example, require

reference to any factual return), and they present no issues of law on which this Court should, or

even may, defer to an inferior court such as a military commission.

In any event, there is no legal basis for the Government’s request: it conflicts with

Supreme Court precedent, is inconsistent with the Government’s prior representations, and


26

would allow the Government to eviscerate the Suspension Clause. Specifically, in Boumediene,

the Government made an argument similar to the one it makes here, asking the Supreme Court to

refrain from hearing the petitioners’ challenges to their detention on equitable grounds, and to

require the detainees to “exhaust” all statutory review procedures before hearing their habeas

claims. The Supreme Court flatly denied the Government’s request, holding that the petitioners

“need not exhaust the review procedures in the Court of Appeals before proceeding with their

habeas actions in the District Court.” 128 S. Ct. at 2275.

Boumediene thus establishes that the detainees, including Petitioner, need not exhaust any

statutory procedures (or wait any longer) to have their petitions heard in an Article III court.

Having been “denied meaningful access to a judicial forum for a period of years,” Petitioner is

entitled to a “prompt habeas corpus hearing.” Id. at 2263, 2275. The fact that he has been

charged before a military commission is irrelevant. Indeed, in Boumediene, the Government

itself advised the Supreme Court that detainees like Petitioner who are facing military

commission trials are “in exactly the same position as the detainees in Boumediene . . . insofar as

[they] challenge[] [their] detention. The fact that [they are] also subject to trial by military

commission does not distinguish [their] case[s] from those of the detainees in Boumediene.” Br.

in Opp. to Cert., Hamdan v. Gates, No. 07-15, 2007 WL 2115682, at *11 (U.S. July 23, 2007).

Notwithstanding the Supreme Court’s clear language in Boumediene and its own prior

representations, the Government claims that Ex parte Royall, 117 U.S. 241, 250-51 (1886),

permits imposition of an exhaustion requirement in this case. See Opp’n 39-40. But the

Boumediene Court itself dismissed this case and others like it as inapposite in the military

context. In considering the Government’s plea for an equitable exhaustion requirement, the

Court acknowledged that “in other contexts and for prudential reasons this Court has required


27

exhaustion of alternative remedies before a prisoner can seek federal habeas relief.” 128 S. Ct.

2274. It declined, however, to follow that approach with respect to detainees at Guantánamo

Bay. As the Court reasoned, “[m]ost of these cases were brought by prisoners in state custody,

e.g., Ex parte Royall, 117 U.S. 241, and thus involved federalism concerns that are not relevant

here.” Id. at 2274. The federalism concerns at the heart of Ex parte Royall are no more relevant

in the military context today than they were when the Court dismissed them earlier this year.

Finally, it would establish a dangerous precedent to allow the Government to indefinitely

delay consideration of a habeas petition merely by proffering charges before a military

commission. As noted above, the MCA allows the Government to delay finalizing a military

commission conviction indefinitely. Holding in abeyance or dismissing Petitioner’s habeas

claims until the completion of military commission proceedings—let alone until his post-

conviction appeals are exhausted—would in effect permit the Government to evade the

Suspension Clause. That Clause, however, “is designed to protect against these cyclical abuses,”

Boumediene, 128 S. Ct. at 2247, and the writ of habeas corpus, “a right of first importance,” id.

at 2277, is too significant to undermine in this way. The Government’s cross-motion should be

denied, and this Court should reach the merits of Petitioner’s detention-related claims.12

12 The Government also suggests that Petitioner’s detention-related claims should be held in abeyance because “a central issue before the military commission,” whether juveniles can be treated as “enemy combatant[s],” is likely to arise in the military commission proceedings. See Opp’n 41, 42. The mere presence of overlapping issues does not justify further delaying the Article III resolution of these claims promised by habeas corpus and Boumediene. But in any event, the Government’s argument provides no basis for holding in abeyance Petitioner’s claim that he cannot be detained as an adult, which is not an issue that can arise in his military commission proceedings. Accordingly, even if this Court were to hold Petitioner’s challenge to his enemy combatancy determination in abeyance, it should nevertheless decide Petitioner’s challenge to his ongoing detention as an adult.


28

IV. PETITIONER CANNOT BE DETAINED AS A “MEMBER,” “AFFILIATE,” OR “ASSOCIATE” OF AL-QAEDA BECAUSE OF HIS STATUS AS A JUVENILE Petitioner seeks habeas relief not only from an illegal trial, but also from his unlawful

detention as a putative “enemy combatant.” As explained in Petitioner’s opening brief,

Petitioner’s CSRT found that he was an “enemy combatant” subject to continuing detention

under the terms of the DTA solely because he was a “member of, or affiliated with al-Qaeda.”

But under U.S. law, Petitioner cannot be a “member” or “affiliate[]” of al-Qaeda, because he was

a juvenile when he allegedly engaged in the conduct for which he is being detained. Mot. 36-39.

That is enough to resolve Petitioner’s claim: the CSRT’s determination of “enemy combatant”

status—the only basis for Petitioner’s detention now before the Court—is invalid, and it follows

that Petitioner can no longer be detained as an enemy combatant at Gauntanamo Bay. Instead,

Petitioner should be transferred to the custody of his home country, Canada, for placement into a

rehabilitation and reintegration program.

The Government does not seriously contest that the CSRT erred when it designated

Petitioner an “enemy combatant” under the DTA solely on the basis of his “membership” in al-

Qaeda. Instead, it relies on wholly different theories to support Petitioner’s continued detention

as an enemy combatant. Opp’n 44-49. But the only basis for Petitioner’s detention before this

Court at this time is the CSRT determination of al-Qaeda “membership.” Because that

determination is not and cannot be defended by the Government, the Government must

“transfer” or “release” Petitioner to an appropriate program, or, at a minimum, “expeditiously

hold a new CSRT.” See Parhat v. Gates, 532 F.3d 834, 854 (D.C. Cir. 2008) (directing the

Government to release or transfer a detainee, or conduct a new CSRT, because the Government’s

designation of him as an enemy combatant was inconsistent with the requisite legal standard).

In any event, the Government’s alternative arguments for detaining Petitioner are without


29

merit. The Government principally argues that even if the CSRT “membership” determination

was invalid, the 2001 AUMF authorizes the President to detain Petitioner, despite his juvenile

status, as an enemy combatant. Opp’n 44-48. In fact, for much the same reason that the CSRT

determination was erroneous, Petitioner’s detention is not authorized by the terms of the AUMF.

The AUMF allows the use of “all necessary and appropriate force against those nations,

organizations, or persons [the President] determines planned, authorized, committed, or aided

the terrorist attacks that occurred on September 11, 2001.” Pub. L. No. 107-40, § 2, 115 Stat. at

224 (emphasis added). There is no allegation that either Petitioner himself (“persons”) or his

home country of Canada (“nations”) had anything at all to do with the attacks of September 11.

If Petitioner falls within the text of the AUMF at all, it must be through the word

“organizations”—but as explained above (and in Petitioner’s opening brief), because Petitioner is

a juvenile, he cannot be a member of an “organization” like al-Qaeda. Mot. 36-37.

In an effort to address this textual problem, the Government argues that Petitioner, even if

not properly classified as a “member” of al-Qaeda, is subject to detention under the AUMF

because he is “associated with” that entity. Opp’n 48-49. But that position ignores the

underlying basis for the rule that juveniles cannot be “members” of armed forces under the law

of war: the fact that juveniles lack the capacity to consent to such membership. Mot. 38. As

Petitioner’s opening brief explained, that same lack of capacity prohibits the classification of

juveniles as “affiliates” of organizations like al-Qaeda, Mot. 39-40 n.23, and would also prevent

juveniles from being “associated” with such organizations in any meaningful sense. The

Government cannot circumvent the bar on treating juveniles as culpable agents of groups like al-

Qaeda simply by shifting its choice of words once more, from “member” to “affiliate” and now

to “associate.”


30

The AUMF does not authorize Petitioner’s detention for one additional reason. As the

Supreme Court explained in Hamdi, individuals may be detained under the AUMF only if that

detention follows from the laws of war. See Hamdi v. Rumsfeld, 542 U.S. 507, 520 (2004)

(plurality); see also al-Marri v. Pucciarelli, 534 F.3d 213, 229 (4th Cir. 2008) (plurality)

(explaining “the plurality’s reasoning in Hamdi to be that the AUMF authorizes the President to

detain all those who qualify as ‘enemy combatants’ within the meaning of the law of war.”)

(internal quotation marks omitted); id. at 315 (Wilkinson, J., concurring in part and dissenting in

part) (“[A]s the Court explained in Hamdi, ‘longstanding law-of-war principles’ should inform

our understanding of the AUMF and, therefore, the scope of the President’s power to detain

enemy combatants in the current conflict.”). Even if Petitioner otherwise were covered by the

text of the AUMF—which, as shown above, he is not—that requirement would bar his detention.

The Government cites no law of war treaty and no theory of customary international law

providing that juveniles may be classified as enemy combatants, and in fact, as Petitioner’s

opening brief detailed, such treatment of juveniles is prohibited by the Optional Protocol and

other articles of international law. Mot. 38-40.13

The Government also suggests that Petitioner falls within the statutory definition of

“unlawful enemy combatant” in the MCA. Opp’n 45. But both the MCA and its definitions are

entirely inapposite here. The MCA is not a detention statute; it specifies when a person may be

tried for putative war crimes, not when and how a person may be detained, and can provide no

13 The Government’s discussion of the Additional Protocols to the Geneva Conventions and the Optional Protocol on Child Soldiers, Opp’n 51-52, does not establish any authority to classify and detain juveniles as adult “enemy combatants”—indeed, none of these documents even uses the term “enemy combatant.” Nor do the examples cited by the Government, see Opp’n 49-51, establish that the law of war permits the detention of juveniles as “enemy combatants.” In fact, the Government’s lead authority, George S. Prugh, Vietnam Studies: Law of War 67 (1975), specifically notes that Viet Cong prisoners under age eighteen were brought to one location “where they received special rehabilitation, education, and vocational training.” Id.


31

authority for Petitioner’s detention here. And not surprisingly, because the MCA serves a

different purpose than the DTA, it also defines a different class of persons: “unlawful enemy

combatants” subject to trial under the MCA, rather than the “enemy combatants” subject to

detention under the DTA. In short, the MCA’s definition of an “unlawful enemy combatant”

subject to trial has no bearing on whether Petitioner is an “enemy combatant” subject to

detention under the DTA.

Finally, the Government falls back on rebutting an argument that Petitioner has never

made, warning that “[i]f juvenile combatants were automatically entitled to release after their

capture,” they would pose “an ongoing threat” to the United States and its forces. Opp’n 45.

But Petitioner has never argued that juveniles are immune from “preventive detention,” Opp’n

44, 48, or cannot be prevented from “returning to active combat,” Opp’n 46. Petitioner’s actual

and narrower argument is that he cannot be detained under the DTA as an “enemy combatant,”

and the more modest relief he seeks is transfer to the custody of an appropriate rehabilitation and

reintegration program under control of the United States or Canada.

V. PETITIONER’S DETENTION AS AN ADULT MUST END

In addition to arguing that an MCA tribunal lacks personal jurisdiction over juveniles and

that juveniles cannot be detained as “enemy combatants” on the basis of purported membership

in al-Qaeda, Petitioner makes a final, critical claim: even assuming the Government has some

legal basis for detaining Petitioner, that detention must be consistent with treaty obligations on

the treatment of juvenile prisoners, which mandate rehabilitation and assistance in reintegrating

into society. Mot. 41. The Government, despite the length of its Opposition, musters only two

sentences and not a single citation in response. See Opp’n 52. And once more, the

Government’s argument does not correspond to Petitioner’s actual plea for relief.


32

As discussed above and explained more fully in Petitioner’s opening brief, the President

is not authorized by the AUMF, any other statute, or the laws of war to detain juveniles as

“enemy combatants.” But even if this Court were to find that Petitioner can be detained on some

legal basis, it must hold also that he cannot continue to be detained as an adult. The law of war

establishes that juveniles improperly used in armed combat, once captured, must be demobilized,

rehabilitated, and assisted with reintegration into society. See Child Soldier Protocol art. 7;

Convention on the Rights of the Child, Nov. 20, 1989, art. 38(2), 1577 U.N.T.S. 3; id. art. 39; id.

art. 37(b). Whether or not those treaties create judicially enforceable rights for Petitioner, they

do constrain the Government’s authority under the AUMF. See supra at 30 (describing Hamdi’s

construal of the AUMF in accordance with the law of war). The AUMF thus permits the

Government to detain a juvenile arrested in armed combat, but only so long as his treatment is

consistent with the provisions of the law of war, of which the Child Soldier Protocol is a recent

and integral part. The law of war, in turn, requires that Petitioner be released from adult custody

and placed into an appropriate rehabilitation and reintegration program.

In response, the Government simply states, without support, its current position that the

Protocol does not require “reintegrat[ion]” of all juveniles “at the soonest possible date, no

matter the magnitude of the risk that they pose upon their release.” Opp’n 52. As discussed

above, this understanding of the Protocol is belied by the Government’s own statements and

practice. See supra at 22. But even if the Government were correct, the appropriate “date” has

long since passed: Petitioner was captured in July 2002, and has now been detained for more

than six years. Whether or not Petitioner was entitled to placement in a juvenile-appropriate

program immediately upon capture, the “soonest possible date” mark is long gone, and the

passage of six years has rendered irrelevant the Government’s argument on that point.


33

With respect to the risk posed by release, the Government once again mischaracterizes

the relief sought by Petitioner, which in fact involves neither risk nor the opportunity for return

to the battlefield. The crux of Petitioner’s final claim is that if he may be subjected to detention

on some ground—not let free to enable his further “participation in active hostilities,” as the

Government would have it, see Opp’n 52—then that detention must be of a kind suitable for

juveniles under well-established law-of-war principles. Indeed, the very purpose of placing

juveniles in appropriate rehabilitative programs is to prevent their future participation in

hostilities; it is the Government’s own continuing detention of Petitioner in adult facilities that

risks radicalizing him. See Mot. 2. In short, Petitioner has not moved for complete release, but

only release from adult detention and placement in a rehabilitation or reintegration program in

Canada or under the control of the United States.

CONCLUSION

For the reasons set forth above and in Petitioner’s opening brief, this Court should grant

Petitioner’s Motion, issue the Writ, enjoin Petitioner from being tried by an MCA military

commission, and either order Petitioner returned to the custody of his home country for

placement into a rehabilitation and reintegration program, or order him released from adult

detention and placed into a rehabilitation and reintegration program within the control of the

United States.

Dated: September 23, 2008 Respectfully submitted,

/s/ Rebecca S. Snyder Rebecca S. Snyder D.C. Bar No. 474764 Lt. Cmdr. William C. Kuebler


34

United States Department of Defense 1099 14th Street, NW Suite 2000E Washington, D.C. 20005 (202) 761-0133 Karl R. Thompson D.C. Bar No. 489583 O’MELVENY & MYERS LLP 1625 Eye St. NW Washington, D.C. 20006 (202) 383-5300 Admitted Pro Hac Vice Counsel for Petitioner O.K., Civil Action No. 04-1136 (JDB)


Case 1:04-cv-01136-UNA Document 218-2 Filed 09/23/2008 Page 1 of 10

reply brief in support of petitioner’s motion for judgment on the pleadings … · 2010-01-02 ·...

Documents