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Brief of Amici Curiae Retired Federal Jurists in Support of Petitioners’ Supplemental Brief Regarding the Military Commissions Act of 2006*

Published online by Cambridge University Press:  27 February 2017

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International Legal Materials , Volume 45 , Issue 6 , November 2006 , pp. 1280 - 1290
Copyright
Copyright © American Society of International Law 2006

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Footnotes

*

This text was reproduced and reformatted from the text appearing at the website visited (November 27, 2006) <http://www.pegc.us/current_cases.html>.

References

Endnotes

1 Memo, of Deputy Sec'y of Def. to Sec. of Navy, Order Establishing Combatant Status Review Tribunal 1 (July 7, 2004) (A442). Amici respectfully submit with this brief an Addendum of cited materials marked Al to A445.

2 2 (hereinafter “CSRT Procedures”).

3 Dep't of Def., Combatant Status Review Tribunal Summary, available at <//www.defenselink.mil/news/Mar2005/ d20050329csrt.>.

4 Amici take no position on other constitutional deficiencies in the MCA.

5 CSRT Procedures, End. 1 §§ G(7) and G(l 1) (A390) (“There is a rebuttable presumption that the Government Evidence… to support a determination that the detainee is an enemy combat ant, is genuine and accurate.”).

6 See Dep't of Def., Combatant Status Review Tribunal (CSRT) and Administrative Review Board (ARB) Documents, available at <http://www.dod.mil/pubs/foi/detainees/csrt/index.> (last visited Oct. 29, 2006).

7 Because the prisoners did not have access to counsel and many did not attend their CSRT hearing, the CSRT record likely underreports the extent to which evidence obtained by torture formed the basis of enemy combatant determinations.

8 Transcript of Oral Argument at 83-87, Boumediene v. Bush, et al, Civ. No. 041166 (RJL) (D.D.C. Dec. 2, 2004) (A377-81). The DTA required the Department of Defense to revise its procedures so that future CSRTs would, “to the extent practicable, assess whether any statement derived from or relating to such detainee was obtained as a result of coercion; and the probative value (if any) of any such statement.” DTA § 1005(b). The prisoners with cases currently pending in federal court, however, were found to be’ ‘enemy combatants'' under the prior rules. Moreover, the MCA/DTA does not require the prior CSRT determinations to meet the new stan dard, and the MCA explicitly states that the determination of enemy combatant status under the prior rules is final, at least for the purpose of eligibility for trial by a Military Commission. MCA § 948a(l).

9 We note, however, that investigations by the military, interna tional bodies, and human rights organizations revealed that abusive interrogations did occur. See, e.g., Dep't of Def., Army Regulation 15-6: Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade 63 (Aug. 2004) (“Abu Ghraib Report”), available at <//www.de- fenselink.mil/news/ Aug2004/ d20040825fay.>; United Nations, Conclusions and Recommendations of the Committee against Torture: United States of America §§ 24, 26, 30 (July 25, 2006); Human Rights First, Command's Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan (Feb. 2006).

10 See, e.g., Dep't of State, Country Reports on Human Rights Practices - 2005 - Egypt (Mar. 8, 2006), available at <http://www.state.gov/g/drl/rls/hrrpt/2005/61687.>.

11 Margulies, Joseph, Guantdnamo and the Abuse of Presidential Power 182 (New York 2006).Google Scholar

12 These allegations are consistent with the State Department's findings that Pakistan tortures prisoners. See Dep't of State, Country Reports on Human Rights Practices - 2005 - Pakistan (Mar. 8, 2006), available at <http://www.state.gOv/g/drl/rls/hrrpt/2005/61710.>. Ironically, the 2005 report also criti cizes an antiterrorism law under which “coerced confessions are admissible in special courts.” Id. The State Department made similar allegations in its 2004, 2003, 2002, and 2001 reports. See, e.g., Dep't of State, Country Reports on Human Rights Practices - 2004 - Pakistan (Feb. 28, 2005), available at <http://www.state.gOv/g/drl/rls/hrrpt/2004/41743.>.

13 Prisoners held in Afghanistan reported being subjected to prolonged isolation, sleep deprivation, environmental manipu lation, hooding, and so-called “stress and duress positions” - all techniques the U.S. has admitted using. See, e.g., Don Van Natta, Jr. and Ray Bonner, Questioning Terror Suspects in a Dark and Surreal World, N.Y. Times at Al (Mar. 9, 2003); Tim Golden, In U.S. Report, Brutal Details of 2 Afghan In mates'Deaths, N.Y. Times at Al (May 20,2005); Abu Ghraib Report 63; Human Rights Watch, Enduring Freedom: Abuses by U.S. Forces in Afghanistan at 37-40 (Mar. 2004), availableat <http://hrw.org/reports/2004/afghanistan0304>.

14 See Annual Review Board Transcript for Detainee ISN #659 at 1, available at <http://www.dod.mil/pubs/foi/detainees/csrt/ARB_Transcript_Set_8_20751-21016.>. (indicating en emy combatant status).

15 See also Transcript of Obaidullah at 5, A360 (CSRT asked detainee whether he had “told a consistent story since” arriving in Cuba, but did not inquire into alleged torture in Afghani stan leading to false confession).

16 Dep't of Def., News Release (June 12, 2005), available at <http://www.defenselink.mil/releases/2005/nr20050612-3661.>.

17 Dep't of Def., Interrogation Log, Detainee 063 (Nov. 23, 2002 to Jan. 11, 2003), available at <http://www.time.com/time/2006/log/log.>

18 Id. at 27 (At one point al Qahtani's heart rate slowed to 35 beats per minute).

19 See, e.g., FBI email from (name redacted) to (name redacted) (Aug. 2,2004), available at <http://www.aclu.org/torturefoia/released/FBI.121504.5053.> (describing detainees chained 27 to floor for 18-24 hours, subjected to extreme temperatures, sleep deprivation, and threatened with dogs); FBI email from (name redacted) to Gary Bald, Frankie Battle, and Arthur Cummings (Dec. 5,2003), available at <http://www.aclu.org/torturefoia/released/FBI.121504.3977.> Dep't of Def., Army Regulation 15-6: Investigation Into FBI Allegations of Detainee Abuse at Guantdnamo Bay, Cuba, Detention Facil ity, Executive Summary (June 9 2005), available at <http://www.defenselink.mil/news/Jul2005/d20050714 report.> 28 Neil A. Lewis, Red Cross Finds Detainee Abuse in Guantd namo, N.Y. Times (Nov. 30, 2004), available at <http://www.nytimes.com/2004/11/30/politics/30gitmo.html?ex=1259470800&en=825flaa04c65241f&ei=5088&partner=rssnyt.>

20 The State Department has reported on confessions obtained by torture in Jordanian prisons. Dep't of State, Country Re ports on Human Rights Practices-2005-Jordan (Mar 8, 2006), available at <http://www.state.gOv/g/drl/rls/hrrpt/2005/6169l.htmx

21 3 Jonathan Elliot, The Debates in the Several State Conven-tions on the Adoption of the Federal Constitution 447 (1836).

22 See, e.g., Jackson v. Denno, 378 U.S. 368, 385-86 (1964).

23 Leonard A. Parry, The History of Torture in England 1 (1933).

24 4 William Blackstone, Commentaries on the Laws of England at 320-21 (1st ed. 1803).

25 Edward Coke, The Third Part of the Institutes of the Laws of England 35 (W. Clarke & Sons 1817) (1644); see also David Hope, Torture, 53 Int'l & Comp. L.Q. 807, 811 (2004) (“the use of torture was not permitted in any of the common law courts in England as part of the ordinary course of the administration of justice.”).

26 Proceedings Against John Felton, 3 Howell's St. Tr. 367, 371 (1628); John H. Langbein, Torture and the Law of Proof-Europe and England in the Ancient Regime 134 (1977).

27 Lawrence Herman, The Unexpected Relationship between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part I), 53 Ohio St. L.J. 101, 134 (1992) (citing Proceedings Against John Felton, 3 Howell's St. Tr. 367,371 (1628)); see also Hope, supra, at 812; Seth F. Kreimer, Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror, 6 U. Pa. J. Const. L. 278, 311 n.17 (2003).

28 See, e.g., Chambers v. Florida, 309 U.S. 227, 236-37 (1940); 3 Jonathan Elliot, The Debates in the Several State Conven-tions on the Adoption of the Federal Constitution AX1 (1836).

29 Resp'ts’ Resp. in Opp'n to Mot. to Compel at 19, Bismullah v. Rumsfeld, No. 06-1197 (D.C. Cir., Aug. 21, 2006).

30 Id.; see also id. at 14 (“In sum, the DTA does not provide for evaluating evidence outside of the record reviewing [sic] a CSRT's factual conclusion of evidentiary sufficiency.”).

31 Authorities upon which we chiefly rely are marked with asterisks.