Courts Reject Bush Policies on "Enemy Combatants"
by Paul Wolf, 19 December 2003
Date: Fri, 19 Dec 2003 09:45:44 -0500 From: Paul Wolf
From: Paul Wolf <paulwolf@icdc.com>
Subject: Courts Reject Bush Policies on "Enemy Combatants"
Introduction
1. Courts affirm rights of terror suspects
Judges reject Bush policies on prisoners in Cuba and US
2. Appellate rulings: Bush administration terror suspects belong
in U.S. courts
3. US court delivers blow to Guantanamo policy
4. Excerpt: Gherebi v. Bush Decision
5. Guantanamo hearing delayed - Defense lawyers object to search
6. Lower court ruling of Gherebi v. Bush that was remanded
Introduction
Yesterday's two stunning decisions are online:
* Gherebi v. Bush (Guantanamo prisoners) in pdf format
* Padilla v. Rumsfeld (in PDF format; found at
http://www.ca2.uscourts.gov/searchtest.htm by entering Docket
number "03-2235")
The 9th Circuit in Gherebi seems to have done an end run around
the US Supreme Court, which is scheduled to hear oral arguments in
another Guantanamo detainee case, Al Odah et al v US, next month.
However, in Al Odah the petitioners deny being members of the
Taliban or "Al Qaida", while the 9th Circuit decision would apply
to all Guantanamo detainees.
The question presented before the SC is whether the detainees may
challenge their status as enemy combatants. The 9th Circuit held
that all of the detainees, even Taliban and "Al Qaida" members,
have the right to lawyers and to have their habeas corpus
petitions heard in a federal court.
That's not to say the Supreme Court can't issue a broader ruling
reaching all the detainees - maybe the 9th Circuit will have
pushed them to do it.
The Gherebi opinion focusses on the terms of the lease agreement
with Cuba, and tries to define "sovereignty" and "ultimate
sovereignty" using various dictionary definitions. The dissent
(and governement) argue that the situation is comparable to the
treatment of German POW's after WWII (the Eisentrager case).
Unfortunately, those POW's weren't released until 1951. By that
time, much of Germany had already been rebuilt. Unfortunately for
the Afghans, there is no end in sight to a war that is already 25
years old.
- Paul
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Courts affirm rights of terror suspects
Judges reject Bush policies on prisoners in Cuba and U.S.
by Reynolds Holding, The San Francisco Chronicle, 19 December 2003
Two federal appeals courts ruled Thursday that the Bush
administration overstepped its bounds in detaining suspected
terrorists, issuing decisions that favored key civil liberties
over the power of the government in the post-Sept. 11 legal era.
The decisions, issued separately by U.S. courts of appeal in San
Francisco and New York, are significant rebukes to the
administration's hard-line approach in combatting terrorism and
affirm the rights of both foreigners and American citizens
considered suspect by the government.
In one case, judges in New York ruled 2-1 that President Bush does
not have the power to order that a U.S. citizen captured in this
country be held indefinitely as an enemy combatant. The panel
ordered Defense Secretary Donald Rumsfeld to release Jose Padilla
-- the so-called dirty bomb suspect -- from a Navy brig in
Charleston, S.C., within 30 days and then turn him over for
possible prosecution in a federal court with all the legal rights
of a U.S. citizen.
Padilla was detained in Chicago 18 months ago on suspicion of
plotting to detonate a radioactive bomb in the country and
receiving explosives training from the al Qaeda network, but he
has not been charged with a crime.
Hours later in San Francisco, federal judges ruled 2-1 that the
administration's policy of imprisoning about 660 non-citizens on a
naval base in Guantanamo Bay, Cuba, without access to U.S. legal
protections "raises the gravest concerns under both American and
international law."
Overshadowing that ruling is the U.S. Supreme Court's decision
last month to review a case that upheld the Bush policy, which
denies court access to the prisoners at the base. Whatever the
high court rules will be the final word, though that did not stop
human-rights advocates from praising Thursday's opinion.
"It reaffirms the courts' critical role in providing a check on
unilateral presidential power," said Lucas Guttentag, head of the
national American Civil Liberties Union's immigrants' rights
project in Oakland. "That role is especially important in times of
national crisis."
But a U.S. Justice Department spokesman sounded unfazed.
"Our position that U.S. courts have no jurisdiction over non-U.S.
citizens being held in military control abroad is based on
long-standing Supreme Court precedent,'' said Mark Corallo,
director of public affairs for the department.
Corallo did not say what the department will do next, but legal
experts see two options. One would be to ask the San Francisco
court to rehear the case. The other, more likely course would be
to ask the Supreme Court to put the decision on hold and either
review it or dispose of it consistent with the outcome of the
cases now before the justices. If the Justice Department does
nothing, the case would go back to U.S. District Court in Los
Angeles for a hearing on the merits.
The decision by the San Francisco judges came down to the issue of
whether the naval base at Guantanamo is U.S. territory. If it is,
American courts have jurisdiction to hear the prisoners'
complaints that they are being held in violation of the U.S.
Constitution and the Geneva conventions. If the base is not U.S.
territory, as the Justice Department argued, then the prisoners
essentially have no right to complain, a position that the federal
appeals court in San Francisco found untenable.
"We simply cannot accept the government's position,'' wrote Judge
Stephen Reinhardt for the court's majority, "that the executive
branch possesses the unchecked authority to imprison indefinitely
any persons, foreign citizens included, on territory under the
sole jurisdiction and control of the United States, without
permitting such prisoners recourse of any kind to any judicial
forum, or even access to counsel, regardless of the length or
manner of their confinement."
The case came before the appellate court on a petition filed in
U.S. District Court in Los Angeles by the brother of Faren
Gherebi, who was captured by American forces in Afghanistan and,
along with hundreds of citizens of Afghanistan, Iraq, Pakistan,
Canada, Britain and other countries, transferred to Guantanamo Bay
naval base. They were declared enemy combatants by the U.S.
government and denied attorneys or any means to challenge their
incarceration.
The district court decided that the base was not within "sovereign
U.S. territory" and, in a "reluctant" conclusion, denied Gherebi's
petition for lack of jurisdiction.
The court of appeal reversed that decision Thursday, ruling that
under any standard U.S. control over the base, which it leased
from Cuba in 1903, was near absolute, perhaps even abusive.
"Contrary to the relevant provisions of the agreements (with
Cuba), the United States has used the base for whatever purposes
it deemed necessary or desirable," Reinhardt wrote. "Cuba has
protested these actions in public and for years has refused to
cash the United States' rent checks."
In a dissenting opinion, Judge Susan Graber said Supreme Court
precedent made clear that the United States did not exercise the
degree of control over Guantanamo Bay that would be necessary to
give courts jurisdiction over prisoners held there.
She wrote that the majority's description of the issues in the
case as "new, important and difficult" was incorrect in one
important respect.
"Although the issues that we confront are important and difficult,
they are not new," she said. "Because the issues are not new, we
are bound by existing Supreme Court precedent, which the majority
misreads."
As in the San Francisco ruling, the majority in the New York
decision regarding Padilla saw the executive branch's action as an
encroachment on individual rights. While Congress may have the
power to authorize the detention of an American, the judges ruled
that the president, acting on his own, did not.
"The president, acting alone, possesses no inherent constitutional
authority to detain American citizens seized within the United
States, away from the zone of combat, as enemy combatants," said
the majority, composed of Judges Rosemay S. Pooler and Barrington
D. Parker Jr.
The detention of U.S. citizens arrested on American soil as enemy
combatants, consequently keeping them from the usual legal
protections that Americans enjoy, has been seen as especially
alarming by civil liberties advocates.
"This is by far the biggest legal setback the administration has
faced in conducting its war on terrorism," said David Cole, a law
professor at Georgetown University and the author of a recent book
on the subject. "That's because this is the furthest they've gone
out on a limb. They had essentially asserted that the president
had unchecked authority to label U.S. citizens as enemy combatants
anywhere in the United States and lock them up."
Padilla has been held incommunicado for 18 months. The court
majority said he is entitled to full constitutional protections,
including access to his lawyers. Padillo's lawyers have not been
permitted to see him since Bush declared him an enemy combatant in
June 2002.
"As this court sits only a short distance from where the World
Trade Center once stood, we are as keenly aware as anyone of the
threat al Qaeda poses to our country and of the responsibilities
the president and law enforcement officials bear for protecting
the nation," Parker and Pooler wrote.
"But presidential authority does not exist in a vacuum," they
said, "and this case involves not whether those responsibilities
should be aggressively pursued but whether the president is
obligated" to share them with Congress.
The majority said that a law known as the Non-Detention Act
provides that "no citizen shall be imprisoned or otherwise
detained by the United States except pursuant to an act of
Congress." The court said the joint congressional resolution
authorizing operations against terrorism after Sept. 11 "contains
no language authorizing detention."
In dissent, Judge Richard C. Wesley said he believes the president
had the power to "thwart acts of belligerency on U.S. soil" and
said it was startling that the majority would find that the
president lacked authority to detain a citizen terrorist who was
"dangerously close" to executing a plan.
Copyright © 2003 San Francisco Chronicle
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Appellate rulings:
Bush administration terror suspects belong in U.S. courts
by David Kravets, Associated Press, 18 December 2003
In twin setbacks for the Bush administration's war on terror,
federal appeals courts on opposite coasts ruled Thursday that the
U.S. military cannot indefinitely hold prisoners without access to
lawyers or the American courts.
One ruling favored the 660 "enemy combatants" held at the U.S.
naval base at Guantanamo Bay, Cuba. The other involved American
citizen Jose Padilla, who was seized in Chicago in an alleged plot
to detonate a radioactive "dirty bomb" and declared as an enemy
combatant.
In Padilla's case, the New York-based 2nd U.S. Circuit Court of
Appeals ordered the former gang member released from military
custody within 30 days and if the government chooses, tried in
civilian courts. The White House said the government would appeal
and seek a stay of the decision.
In the other case, a three-judge panel of the San Francisco-based
9th U.S. Circuit Court of Appeals ruled that prisoners held at
Guantanamo Bay Naval Base should have access to lawyers and the
American court system.
An order by President Bush in November 2001 allows captives to be
detained as "enemy combatants" if they are members of al-Qaida,
engaged in or aided terrorism, or harbored terrorists. The
designation may also be applied if it is "the interest of the
United States" to hold an individual during hostilities.
The Justice Department this week said such a classification allows
detainees to be held without access to lawyers until U.S.
authorities believe they have disclosed everything they know about
terrorist operations.
But Padilla's detention as an enemy combatant, the New York court
ruled 2-1, was not authorized by Congress and Bush could not
designate him as an enemy combatant without such approval.
Padilla, a convert to Islam, was arrested in May 2002 at Chicago's
O'Hare airport as he returned from Pakistan. Within days, he was
moved to a naval brig in Charleston, S.C. The government said he
had proposed the bomb plot to Abu Zubaydah, then al-Qaida's top
terrorism coordinator.
In ordering his release from military custody, the court said the
government was free to transfer Padilla to civilian authorities
who can bring criminal charges. If appropriate, Padilla also can
be held as a material witness in connection with grand jury
proceedings, the court said.
"As this court sits only a short distance from where the World
Trade Center stood, we are as keenly aware as anyone of the threat
al-Qaida poses to our country and of the responsibilities the
president and law enforcement officials bear for protecting the
nation," Judge Rosemary S. Pooler wrote.
"But presidential authority does not exist in a vacuum, and this
case involves not whether those responsibilities should be
aggressively pursued, but whether the president is obligated, in
the circumstances presented here, to share them with Congress,"
Pooler added.
In a dissenting opinion, Judge Richard C. Wesley said that as
commander in chief the president "has the inherent authority to
thwart acts of belligerency at home or abroad that would do harm
to United States citizens."
The White House said the ruling was inconsistent with the
president's constitutional authority as well as with other court
rulings.
"The president's most solemn obligation is protecting the American
people," White House press secretary Scott McClellan said
Thursday. "We believe the 2nd Circuit ruling is troubling and
flawed."
Padilla's lawyer, Donna Newman, did not immediately return a
telephone message for comment. Newman has battled in court to be
able to meet with Padilla; she has not done so since he was
designated an enemy combatant the month after he was arrested.
Chris Dunn, a staff attorney with the New York Civil Liberties
Union, called the ruling "historic."
"It's a repudiation of the Bush administration's attempt to close
the federal courts to those accused of terrorism," he said.
Thursday's 2-1 decision out of San Francisco was the first federal
appellate ruling to rebuke the Bush administration's position on
the Guantanamo detainees who have been without charges, some for
nearly two years. The administration maintains that because the
660 men confined there were picked up overseas on suspicion of
terrorism and are being held on foreign land, they may be detained
indefinitely without charges or trial.
The Supreme Court last month agreed to decide whether the
detainees, who were nabbed in Afghanistan and Pakistan, should
have access to the courts. The justices agreed to hear that case
after the U.S. Court of Appeals for the District of Columbia ruled
that the prisoners had no rights to the American legal system.
"Even in times of national emergency - indeed, particularly in
such times - it is the obligation of the Judicial Branch to ensure
the preservation of our constitutional values and to prevent the
Executive Branch from running roughshod over the rights of
citizens and aliens alike," Judge Stephen Reinhardt wrote for the
majority on behalf of a Libyan captured in Afghanistan and held in
Cuba.
"We cannot simply accept the government's position," Reinhardt
continued, "that the Executive Branch possesses the unchecked
authority to imprison indefinitely any persons, foreign citizens
included, on territory under the sole jurisdiction and control of
the United States, without permitting such prisoners recourse of
any kind to any judicial forum, or even access to counsel,
regardless of the length or manner of their confinement."
Reinhardt, who signed the 9th Circuit opinion last year that
declared the Pledge of Allegiance unconstitutional when recited in
public schools, stayed enforcement of the Guantanamo decision
pending the outcome of the detainees' case already pending in the
Supreme Court.
The Defense Department announced Thursday that the Pentagon had
appointed a military defense lawyer for a terrorism suspect held
at Guantanamo. Salim Ahmed Hamdan of Yemen becomes the second
Guantanamo prisoner to be given a lawyer. Australian David Hicks
got a lawyer earlier this month and recently met with an
Australian legal adviser.
Both Hamdan and Hicks are among six Guantanamo Bay prisoners
designated by President Bush as candidates for trials by special
military tribunals. Neither Hamdan, Hicks nor the others detained
in Cuba have been charged.
Padilla is accused of plotting to detonate a "dirty bomb," which
uses conventional explosives to disperse radioactive materials.
The government said he had proposed the bomb plot to Abu Zubaydah,
then al-Qaida's top terrorism coordinator. Zubaydah was arrested
in Pakistan in March 2002.
Besides Padilla, only two other known people who are being
detained in the United States have been designated as enemy
combatants since the 2001 terrorist attacks: Ali Saleh Kahlah
Al-Marri, a citizen of Qatar accused of being an al-Qaida sleeper
agent, and Esam Hamdi, a Louisiana native captured during the
fighting in Afghanistan.
The New York case is Padilla v. Rumsfeld, 03-2235. The San
Francisco case is Gherebi v. Bush, 03-55785.
Copyright © 2003 Associated Press
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US court delivers blow to Guantanamo policy
Australian Broadcasting Corporation, 19 December 2003
In a stinging rebuke of the Bush Government, a United States
appeals court has ruled the US cannot imprison "enemy combatants"
captured in Afghanistan indefinitely at Guantanamo Bay and deny
them access to lawyers.
In a strongly worded 2-1 decision, the 9th Circuit Court of
Appeals said the indefinite imprisonment at the US naval base in
Cuba was inconsistent with US law and raised serious concerns
under international law.
"The Government's position is inconsistent with fundamental tenets
of American jurisprudence and raises most serious concerns under
international law," judge Stephen Reinhardt wrote in the decision.
"We simply cannot accept the Government's position that the
Executive Branch possesses the unchecked authority to imprison
indefinitely any persons, foreign citizens included, on territory
under the sole jurisdiction and control of the United States,
without permitting such prisoners recourse of any kind to any
judicial forum, or even access [to] counsel."
The ruling is seen as a blow to the Bush Government's policy
towards detainees in the campaign against terrorism.
One of the San Francisco judges writes that it is the duty of
courts to prevent the Executive branch from "running roughshod
over the rights of citizens and aliens alike, especially in times
of national emergency".
A lower court is now obliged to hear arguments on behalf of
detainees and to make a ruling as to whether they should all be
granted legal counsel.
Only two of the 600 prisoners at Guantanamo have so far been
granted access to a lawyer. The first was Australian David Hicks.
The Pentagon overnight assigned a military defence lawyer to a
second detainee, Yemeni national Salim Ahmed Hamdan.
Like Mr Hicks, he has not yet been charged with anything.
On the Hicks matter, the Pentagon has pointed out today that it is
giving Australian lawyer Stephen Kenny permission to speak on
almost everything he is formally requesting.
At a press conference yesterday, Mr Kenny said he was limited in
what he could say. Today, the Pentagon says it only withheld
approval for two items relating to security.
Copyright © 2003 Australian Broadcasting Corporation
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Excerpt: Gherebi v. Bush Decision
December 18, 2003
Coming on the heels of today's decision by the Second Circuit
Court of Appeals in Padilla v. Rumsfeld, the Ninth Circuit has
ruled that the executive branch may not indefinitely imprison
foreign nationals at Guantanamo without charge and without
providing them with the effective means to challenge their
detention. The case is Gherebi v. Bush.
An excerpt from the majority opinion follows:
"We recognize that the process due `enemy combatant'
habeas petitioners may vary with the circumstances and
are fully aware of the unprecedented challenges that
affect the United States' national security interests
today, and we share the desire of all Americans to
ensure that the Executive enjoys the necessary power and
flexibility to prevent future terrorist attacks.
"However, even in times of national emergency -- indeed,
particularly in such times -- it is the obligation of
the Judicial Branch to ensure the preservation of our
constitutional values and to prevent the Executive
Branch from running roughshod over the rights of
citizens and aliens alike. Here, we simply cannot accept
the government's position that the Executive Branch
possesses the unchecked authority to imprison
indefinitely any persons, foreign citizens included, on
territory under the sole jurisdiction and control of the
United States, without permitting such prisoners
recourse of any kind to any judicial forum, or even
access to counsel, regardless of the length or manner of
their confinement.
"We hold that no lawful policy or precedent supports
such a counter-intuitive and undemocratic procedure, and
that, contrary to the government's contention, Johnson
[Johnson v. Eisentrager, a 1950 Supreme Court decision
relied upon by the government] neither requires nor
authorizes it. In our view, the government's position is
inconsistent with fundamental tenets of American
jurisprudence and raises most serious concerns under
international law." [7]
7. Gherebi argues that the government's policy of
"indefinite detention" is violative of
international law. While we recognize the gravity
of Gherebi's argument, we need not resolve that
question in this proceeding. We note, however, that
the government's position here is at odds with the
United States' longtime role as a leader in
international efforts to codify and safeguard the
rights of prisoners in wartime. It is also at odds
with one of the most important achievements of
these efforts -- the 1949 Geneva Conventions, which
require that a competent tribunal determine the
status of captured prisoners. Article 5 of the
Third Geneva Convention provides:
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
[defining POWs], such persons shall enjoy the
protection of the present Convention until
such time as their status has been determined
by a competent tribunal.
Geneva Convention Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, art. 5, 6 U.S.T.
3316, 75 U.N.T.S. 135. In Johnson v. Eisentrager,
itself, the Court discussed the United States'
international obligations under the predecessor
Convention, which did not even contain the due
process rights afforded prisoners of war in the
1949 Treaty. The Court explained:
We are not holding that these prisoners have
no right which the military authorities are
bound to respect. The United States, by the
Geneva Convention of July 27, 1927 . . .
concluded with forty-six other countries,
including the German Reich, an agreement upon
the treatment to be accorded captives. These
prisoners claim to be and are entitled to its
protection.
339 U.S. at 789 n.14. The government's own
regulations have adopted this same requirement. See
Enemy Prisoners of War, Retained Personnel,
Civilian Internees and Other Detainees, U.S. Army
Regulation 190-8, ch. 1-5, ¶ a, Applicable to the
Departments of the Army, the Navy, the Air Force,
and the Marine Corps, Washington D.C. (Oct. 1,
1997) ("All persons taken into custody by U.S.
forces will be provided with the protections of the
1949 Geneva Convention Relative to the Treatment of
Prisoners of War ("GPW") until some legal status is
determined by competent authority."). The
requirement of judicial review of executive
detention is also reflected in the International
Covenant on Civil and Political Rights, to which
the United States is a party. See International
Covenant on Civil and Political Rights, Dec. 16,
1966, 999 U.N.T.S. 171, art. 9, ¶ 4 ("Anyone who is
deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a
court, in order that a court may decide without
delay on the lawfulness of his detention....").
Here, however, the government has maintained that
the Guantanamo detainees do not enjoy any
substantive protections as a matter of right
pursuant to our international obligations; instead,
it has asserted only that it will apply "the
principles" of the Third Geneva Convention "to the
extent appropriate and consistent with military
necessity." Office of the Press Secretary, Fact
Sheet, Status of Detainees at Guantanamo, Feb. 7,
2002, at 1, at
http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html.
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Guantanamo hearing delayed
Defense lawyers object to search
ABC12/The Associated Press, 17 December 2003
Defense lawyers' objections over the search of their offices by
military investigators have forced a delay in a Guantanamo
security breach hearing.
Senior Airman Ahmad al-Halabi worked as an interpreter at the US
prison camp in Cuba. The military has accused him of espionage and
aiding the enemy for allegedly e-mailing secrets from the prison
camp to an unidentified person. And it says he planned to carry
notes from some of the prisoners to his native Syria.
Al-Halabi's civilian lawyer says Air Force investigators searched
the offices of his military lawyers last week, acting on a
military warrant, and copied a computer hard drive. He says that
interfered with preparations for his defense.
In response, the Air Force has postponed al-Halabi's hearing until
January 13th.
Copyright © 2003 ABC12/Associated Press
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[this is the lower court decision that was remanded]
Gherebi v. Bush, 262 F.Supp.2d, 1064 (C.D.Cal.,2003)
United States District Court,
C.D. California.
Belaid GHEREBI, Petitioner,
v. George Walker BUSH, et al., Respondents.
No. CV 03-1267-AHM.
May 13, 2003.
*1065 Stephen Yagman, Kathryn S. Bloomfield, Marion R. Yagman,
Joseph Reichmann, Yagman & Yagman & Reichmann & Bloomfield, Venice
Beach, CA, for petitioner.
Becky Walker, Asst. U.S. Attorney, Debra Yang, U.S. Attorney, Los
Angeles, CA, for respondents.
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION
MATZ, District Judge.
INTRODUCTION
The petition for a writ of habeas corpus filed in this case
alleges that Respondents President Bush, Secretary of Defense
Rumsfeld and unnamed "military personnel" captured Falen Gherebi
in Afghanistan and, since January 2002, have detained him at the
Guantanamo Bay Naval Base ("Guantanamo") in Cuba. The Petitioner,
Belaid Gherebi, is Falen Gherebi's brother.
Belaid Gherebi alleges that his brother is being held
incommunicado, without aid of counsel, and in violation of the
United States Constitution and the Third Geneva Convention. Among
other forms of relief, Petitioner asks that his brother be granted
access to legal counsel and "be brought physically before the
Court for a determination of his conditions of detention,
confinement, and status ...." Mem. of Law in Support of Amended
Verified Petition for Writ of Habeas Corpus, at 3.
Petitioner and Respondents seek a prompt ruling on the matter of
this Court's jurisdiction because they intend to proceed
expeditiously to the Ninth Circuit Court of Appeals. [FN1] The
Court is willing to accommodate their request, because the
jurisdictional question addressed here is one of great importance:
Do the hundreds of persons detained at Guantanamo have the right
to challenge their confinement in a United States federal court?
FN1. Counsel proposed that this Court issue its ruling based on
briefs submitted to the Ninth Circuit more than one year ago in a
different, although related, case. The Court has carefully
considered those briefs but has also considered subsequent
developments, including the decision in Al Odah v. United States,
321 F.3d 1134 (D.C.Cir.2003).
The Court concludes that *1066 Johnson v. Eisentrager, 339 U.S.
763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), and later decisions
construing Johnson, compel the answer "no."
The Court reaches this conclusion reluctantly, however, because
the prospect of the Guantanamo captives' being detained
indefinitely without access to counsel, without formal notice of
charges, and without trial is deeply troubling. And that is why a
prompt ruling to speed appellate review is appropriate.
BACKGROUND
The events leading to this case are well known. Following the
terrorist attacks of September 11, 2001, Congress authorized the
President "to use all necessary and appropriate force" against
those responsible. Authorization for Use of Military Force, Pub.L.
No. 107-40, 115 Stat. 224 (2001). Pursuant to that authorization,
the President sent American forces to Afghanistan to wage what has
been commonly referred to (but not formally declared) as a "war"
against the Taliban government and the terrorist network known as
Al Qaeda. Beginning in early January 2002, the Armed Forces
transferred to Guantanamo scores of individuals, including Falen
Gherebi, who were captured by the American military during its
operations in Afghanistan.
On January 20, 2002, a group of journalists, lawyers, professors,
and members of the clergy filed a petition for habeas relief on
behalf of unidentified individuals detained involuntarily at
Guantanamo. That petition also named as Respondents President
Bush, Secretary Rumsfeld and other military personnel. The matter
was assigned to this Court. After ordering the parties to brief
the threshold question of jurisdiction, the Court heard oral
argument and dismissed the petition. Coalition of Clergy v. Bush,
189 F.Supp.2d 1036 (C.D.Cal.2002) ("Coalition I ").
The first basis for this Court's dismissal of the Coalition I
petition was that the named petitioners lacked standing. The Ninth
Circuit affirmed that ruling on appeal but vacated this Court's
additional rulings as to the applicability of Johnson. Coalition
of Clergy v. Bush, 310 F.3d 1153 (9th Cir.2002). [FN2] Respondents
do not challenge Petitioner's "next friend" standing in this case,
however, and the issue of Johnson's effect can no longer be
avoided.
FN2. This Court had gone on to address those issues because it
anticipated that the defects in the Coalition's claim of standing
could be cured relatively easily. Not surprisingly, the Coalition
has filed a second, near-identical petition purporting to cure the
standing defect. Coalition of Clergy v. Bush, No. 02-9516 AHM
(JTL) (C.D. Cal. Dec. 16, 2002) ("Coalition II "). Respondents
have moved to dismiss that petition, and their motion currently is
under submission before the Magistrate Judge.
ANALYSIS
Because the Supreme Court's Johnson opinion compels dismissal of
this petition, the Court will begin with an examination of that
decision.
A. Johnson
The following description of Johnson is taken from this Court's
ruling in Coalition I.
In Johnson, Mr. Justice Jackson described "the ultimate question"
as "one of jurisdiction of civil courts of the United States
vis-a-vis military authorities in dealing with enemy aliens
overseas." The case arose out of World War II. The habeas
petitioners were twentyone German nationals who claimed to have
been working in Japan for "civilian agencies of the German
government" before Germany surrendered on May 8, 1945. They were
taken into custody by the United States Army and convicted by a
United States Military Commission of violating laws of war by
engaging in *1067 continued military activity in Japan after
Germany's surrender, but before Japan surrendered. The Military
Commission sat in China with the consent of the Chinese
government. After trial and conviction there, the prisoners were
repatriated to Germany to serve their sentences in a prison whose
custodian was an American Army officer. While in Germany, the
petitioners filed a writ of habeas corpus claiming that their
right under the Fifth Amendment to due process, other unspecified
rights under the Constitution and laws of the United States and
provisions of the Geneva Convention governing prisoners of war all
had been violated. They sought the same relief as petitioners
here: that they be produced before the federal district court to
have their custody justified and then be released. They named as
respondents the prison commandant, the Secretary of Defense and
others in the civilian and military chain of command.
Reversing the Court of Appeals, the Supreme Court in Johnson
upheld the district court's dismissal of the petition on the
ground that petitioners had no basis for invoking federal judicial
power in any district. In reaching that conclusion, the Supreme
Court stated the following:
"[T]he privilege of litigation has been extended to aliens,
whether friendly or enemy, only because permitting their presence
in the country implied protection. No such basis can be invoked
here, for these prisoners at no relevant time were within any
territory over which the United States is sovereign and the
circumstances of their offense [and] their capture ... were all
beyond the territorial jurisdiction of any court of the United
States."
. . . . .
"A basic consideration in habeas corpus practice is that the
prisoner will be produced before the court.... To grant the writ
to these prisoners might mean that our army must transport them
across the seas for hearing.... The writ, since it is ... [argued]
to be a matter of right, would be equally available to enemies
during active hostilities .... Such trials would hamper the war
effort .... It would be difficult to devise more effective
fettering of a field commander than to allow the very enemies he
is ordered to reduce to submission to call him to account in his
own civil courts and divert his efforts and attention from the
military offensive abroad to the legal defensive at home." 189
F.Supp.2d at 1046-47 (citations and footnotes omitted).
[1] The effect of Johnson is that the Guantanamo detainees'
ability to invoke jurisdiction in any district court "depends not
on the nature of their claims but on whether the Naval Base at
Guantanamo Bay is under the sovereignty of the United States." Id.
at 1048-49. In Coalition I, this Court determined that the Naval
Base is not within sovereign United States territory and that, as
a result, no federal court would have jurisdiction to hear the
petitioners' claims. Id. at 1049-50. [FN3] The Court reaches the
same conclusion here.
FN3. This Court described the similarities between the petitioners
in Johnson and the Guantanamo captives as follows: "In all key
respects, the Guantanamo detainees are like the petitioners in
Johnson. They are aliens; ... they were captured in combat; they
were abroad when captured; they are abroad now; since their
capture, they have been under the control of only the military;
they have not stepped foot on American soil; and there are no
legal or judicial precedents entitling them to pursue a writ of
habeas corpus in an American civilian court. Moreover, there are
sound practical reasons, such as legitimate security concerns,
that make it unwise for this or any court to take the
unprecedented step of conferring such a right on these detainees."
Id. at 1048.
This Court does not assume, and makes no finding, that Falen
Gherebi is an "enemy combatant" or "enemy alien."
*1068 B. Post-Coalition I Decisions
1. The Ninth Circuit Decision in Coalition I
Although the Court of Appeals vacated this Court's rulings about
Johnson and the sovereign status of Guantanamo, in its opinion the
Ninth Circuit stated:
There is no question that the holding in Johnson represents a
formidable obstacle to the rights of the detainees at Camp X-Ray
to the writ of habeas corpus; it is impossible to ignore, as the
case well matches the extraordinary circumstances here.
Coalition of Clergy v. Bush, 310 F.3d at 1164 n. 4.
2. Rasul v. Bush
In Rasul v. Bush, 215 F.Supp.2d 55 (D.D.C.2002), the district
court dismissed two cases brought by Guantanamo detainees. The
court ruled that it did not have jurisdiction because Guantanamo
"is outside the sovereign territory of the United States" and
because, under Johnson, "writs of habeas corpus are not available
to aliens held outside the sovereign territory of the United
States." 215 F.Supp.2d at 72-73.
3. Al Odah v. United States
In Al Odah v. United States, 321 F.3d 1134 (D.C.Cir.2003), the
Court of Appeals for the District of Columbia Circuit relied
heavily on Johnson to affirm the district court's decision in
Rasul and also to dismiss a third petition brought by the wife of
an Australian citizen detained at Guantanamo. Al Odah rejects many
of the arguments Petitioner makes here and describes the parallels
between these cases and Johnson much as this Court did in
Coalition I:
[T]he Guantanamo detainees have much in common with the German
prisoners in [Johnson ]. They too are aliens, they too were
captured during military operations, they were in a foreign
country when captured, they are now abroad, they are in the
custody of the American military and they have never had any
presence in the United States.... [W]e believe that under [Johnson
] these factors preclude the detainees from seeking habeas relief
in the courts of the United States. 321 F.3d at 1140.
4. Additional Post-Coalition I Decisions
Perhaps because Johnson so well matches the "extraordinary
circumstances" of recent events, Coalition of Clergy, 310 F.3d at
1164 n. 4, several courts have cited it in ruling on challenges to
government action in the wake of September 11. In Padilla v. Bush,
233 F.Supp.2d 564, 608 (S.D.N.Y.2002), the district court ruled
that the President could detain even an American citizen taken
into custody on American soil if he had "some evidence" that the
detainee was an "enemy combatant." The Padilla court quoted
Johnson, 339 U.S. at 789, 70 S.Ct. 936, for the proposition that
"it is not the function of the Judiciary to entertain private
litigation ... which challenges the legality, [the] wisdom, or the
propriety of the Commander-in-Chief in sending our armed forces
abroad or to any particular region." 223 F.Supp.2d at 589.
The Fourth Circuit cited Johnson several times in its wide-ranging
opinion in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir.2003),
including for the proposition *1069 that responsibility for
enforcing the predecessor to the current Geneva Convention rested
with "political and military authorities," not the judiciary. 316
F.3d at 469 (quoting Johnson, 339 U.S. at 789 n. 14, 70 S.Ct.
936). Hamdi rejected a challenge to the continued detention of an
American citizen captured in Afghanistan and transferred to a
Virginia Naval Brig because it was not disputed that the detainee
had been seized in a zone of active combat abroad and because the
evidence proffered by the President was sufficient to establish
that the detainee had been allied with enemy forces. 316 F.3d at
465, 474.
The Supreme Court also recently cited Johnson, although in a
decision unrelated to the events of September 11. The Court quoted
Johnson to emphasize that presence within this country's borders
has traditionally afforded aliens certain constitutional
protections not extended to noncitizens abroad:
"The alien ... has been accorded a generous and ascending scale of
rights as he increases his identity with our society.... [A]t
least since 1886, we have extended to ... resident aliens
important constitutional guarantees-such as the due process of law
of the Fourteenth Amendment."
Demore v. Kim, --- U.S. ----, 123 S.Ct. 1708, 1730, 155 L.Ed.2d
724 (2003) (quoting Johnson, 339 U.S. at 763, 70 S.Ct. 936).
C. Petitioner's Challenges to the Applicability of Johnson
Although Petitioner has not chosen to address these post-Coalition
I cases in a new brief, he has argued that Johnson does not apply
to the facts of this case.
1. Guantanamo Is Not Sovereign United States Territory
Petitioner first contends that Johnson cannot be applied to bar
his claims because Falen Gherebi, unlike the Johnson prisoners, is
being held within United States territory.
The question of Guantanamo's status is one of key importance
because, as Justice Black noted in dissent, the Johnson majority
relied entirely on the fact that the petitioners in that case had
never been present in the United States to distinguish Ex parte
Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3 (1942) and In re
Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499 (1946). Johnson,
339 U.S. at 780-81, 70 S.Ct. 936; id. at 795, 70 S.Ct. 936 (Black,
J., dissenting). First, the Court stated that the Johnson
prisoners had no right to habeas relief because they were "at no
relevant time ... within any territory over which the United
States is sovereign." 339 U.S. at 778, 70 S.Ct. 936. The Court
again referred to sovereignty in explaining Yamashita's
inapplicability, nothing that the petitioner in that case had been
able to invoke the Court's jurisdiction because he had been held
within sovereign United States territory. Id. at 780, 70 S.Ct.
936. See also United States v. Verdugo-Urquidez, 494 U.S. 259,
269, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (citing Johnson for
the proposition that aliens are not entitled "to Fifth Amendment
rights outside the sovereign territory of the United States")
(emphasis added); Coalition of Clergy, 310 F.3d at 1164 n. 4
(Johnson "held that the privilege of the writ of habeas corpus
could not be extended to aliens held outside the sovereign
territory of the United States.") (emphasis added).
It is this emphasis on sovereignty, taken together with the lease
agreements governing Guantanamo, that is fatal to Petitioner's
argument. See Lease of Lands for Coaling and Naval Stations, Feb.
23, 1903, U.S.-Cuba, T.S. No. 418 (6 Bevans 113) ("the 1903
Lease"); Relations with Cuba, May 9, 1934, U.S.-Cuba, T.S. No. 866
(6 Bevans 1161). Petitioner emphasizes that *1070 for all
practical purposes the United States controls Guantanamo, but such
control does not establish sovereignty. See Vermilya-Brown Co. v.
Connell, 335 U.S. 377, 390, 69 S.Ct. 140, 93 L.Ed. 76 (1948)
(recognizing distinction between "sole power" and "sovereignty");
Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1425 (11th
Cir.1995). And this Court has already concluded that under the
1903 Lease, Cuba, not the United States, is sovereign in
Guantanamo Bay. See Coalition I, 189 F.Supp.2d at 1049-50. See
also Vermilya-Brown, 335 U.S. at 380-83, 69 S.Ct. 140 (United
States not sovereign over American military base in Bermuda, even
though lease from Great Britain granted United States
"substantially the same rights" as over Guantanamo Bay).
This dispositive distinction between "sovereign territory" and
"complete jurisdiction and control" may appear technical (or at
least elusive), but Petitioner's arguments provide no principled
basis for this Court to disregard Johnson.
2. A Formal Declaration of War is Not Required
Petitioner next contends that Johnson is inapplicable because
Falen Gherebi, unlike the Johnson prisoners, was not captured
during a declared war. [FN4]
FN4. The war with Germany was not declared over until October 19,
1951. Pub.L. No. 82-181, 65 Stat. 451. See also United States ex
rel. Jaegeler v. Carusi, 342 U.S. 347, 348, 72 S.Ct. 326, 96 L.Ed.
390 (1952) (per curiam).
[2] Johnson certainly did acknowledge the war-related
circumstances of the German prisoners' capture. 339 U.S. at
771-72, 70 S.Ct. 936 ("It is war that exposes the relative
vulnerability of the alien's status.... [D]isabilities this
country lays upon the alien who becomes also an enemy are imposed
temporarily as an incident of war and not as an incident of
alienage."). See also United States v. Bin Laden, 132 F.Supp.2d
168, 182 n. 10 (S.D.N.Y.2001) (explaining that the Johnson
prisoners were a "specific kind of non-resident alien--'the
subject of a foreign state at war with the United States' ")
(quoting Johnson, 339 U.S. at 769 n. 2, 70 S.Ct. 936); David Cole,
Enemy Aliens, 54 Stan.L.Rev. 953, 984 (2002) ("[The] principles
[of Johnson ] apply only in a time of declared war to citizens of
the country with which we are at war."). And Justice Jackson's
opinion made it clear that the Court was unwilling to extend the
"privilege of litigation" to the Johnson petitioners at least in
part because that same privilege was not available to resident
aliens subject to the Alien Enemy Act, 50 U.S.C. 21. 339 U.S. at
775-76, 778, 70 S.Ct. 936. As Petitioner points out, the Alien
Enemy Act is of no consequence here because that Act applies only
during declared wars. 50 U.S.C. 21. See also Jaegeler, 342 U.S. at
348, 72 S.Ct. 326.
Ultimately, however, Petitioner's argument is unpersuasive because
Johnson focused on the practical realities, not legal formalities,
of armed conflict. In denying the Johnson prisoners the "privilege
of litigation," the Supreme Court emphasized that a contrary
result would unreasonably hamper military efforts. See 399 U.S. at
779, 90 S.Ct. 2230. Even though "active hostilities" already had
faded into a "twilight between war and peace," the Court worried
that allowing access to the courts would "divert [the] efforts and
attention [of field commanders] from the military offensive abroad
to the legal defensive at home." Id. To limit the application of
Johnson to those captured during formally declared wars would
ignore this aspect of the Court's opinion and would deprive the
decision of much of its rationale. Cf. Verdugo-Urquidez, 494 U.S.
at 273-274, 110 S.Ct. 1056. ("The United States frequently *1071
employs Armed Forces outside this county ... for the protection of
American citizens or national security.... Application of the
Fourth Amendment to those circumstances could significantly
disrupt the ability of the political branches to respond to
foreign situations involving our national interest.") (citation
omitted).
[3] As the D.C. Circuit recently held in Al Odah, Johnson cannot
be so limited. It applies to Falen Gherebi, just as it did to Al
Odah, regardless of whether they are "within the category of
`enemy aliens,' at least as [Johnson ] used the term." Al Odah,
321 F.3d at 1139-41. [FN5]
FN5. "[A]n enemy alien is the subject of a foreign state at war
with the United States." Johnson, 339 U.S. at 769 n. 2, 70 S.Ct.
936.
3. Johnson Applies Even Though Petitioner Has Not Been Charged or
Convicted
Petitioner also argues that this case is distinguishable from
Johnson because, unlike the Johnson prisoners, Falen Gherebi has
not been charged or brought before a military commission. [FN6]
Gherebi's detention presents more compelling due process
violations, Petitioner contends, because it is preventive, not
punitive, in nature. See Zadvydas v. Davis, 533 U.S. 678, 690-91,
121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing the very limited
instances when preventive, potentially indefinite detention has
been upheld). To deprive Falen Gherebi of all judicial review
would, according to Petitioner, raise "a serious constitutional
problem." Id., 533 U.S. at 690, 121 S.Ct. 2491. Cf. also INS v.
St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 to repeal habeas
jurisdiction").
FN6. In Johnson, the Supreme Court took care to note that the
petitioners in that case had been "formally accused of violation
of the laws of war and fully informed" of the charges against
them. 339 U.S. at 786, 70 S.Ct. 936. That language is found in
Part IV of the Johnson opinion, however, where the Court went on
to consider the merits of the petitioners' claims. As noted by
Justice Black in dissent, and by the D.C. Circuit in Al Odah, Part
IV is "irrelevant" and "extraneous" to the Johnson Court's
jurisdictional holding. Johnson, 339 U.S. at 792, 70 S.Ct. 936
(Black, J., dissenting); Al Odah, 321 F.3d at 1142.
Moreover, the Supreme Court referred to the charges leveled
against the petitioners simply to explain why the military
commission in China had not exceeded the scope of its authority;
nothing about the Court's explanation suggests that the Johnson
petitioners would have been granted access to civilian courts if
(like Falen Gherebi) the petitioners had sought relief during the
period between their capture and formal accusation or conviction.
See Johnson, 339 U.S. at 786-87, 70 S.Ct. 936 (explaining that
military commissions have jurisdiction to adjudicate charges that
a captured detainee violated the laws of war).
Petitioner claims to find support for his position in this
quotation from Johnson: "[T]he doors of our courts have not been
summarily closed upon these prisoners. Three courts have
considered their application and have provided their counsel
opportunity to advance every argument in their support ...." 339
U.S. at 780-781, 70 S.Ct. 936. But the quoted language refers to
the three Article III courts that addressed the German prisoners'
habeas petition, not to the military commission that had tried
them. And while it is true no Guantanamo captive has yet been
tried by any tribunal, it is also true that here, as in Johnson,
Petitioner's jurisdictional arguments have been, and on appeal
will be, given careful consideration.
As the D.C. Circuit recently explained in Al Odah, everything in
Johnson "turned on the circumstances of those seeking relief,
*1072 on the authority under which they were held, and on the
consequences of opening the courts to them." 321 F.3d at 1145. To
this Court it again appears, as it did in Coalition I, that with
respect to Falen Gherebi "those circumstances, that authority, and
those consequences differ in no material respect from" Johnson.
Id.
4. International Law
Finally, Petitioner contends that his detention violates
provisions of the International Covenant on Civil and Political
Rights ("ICCPR"). Petitioner has not sought relief or stated a
claim under that treaty, although he is correct to point out that
a "clear international prohibition exists against prolonged and
arbitrary detention." Ma v. Ashcroft, 257 F.3d 1095, 1114 (9th
Cir.2001) (relying on the ICCPR) (internal quotation marks and
citation omitted).
Because the application of international law to this case has not
yet been carefully briefed, this Court will not rule on the
parties' contentions except to note that several courts, including
Ma, 257 F.3d at 1108, have cited Johnson as valid precedent in the
years since ratification of the ICCPR. See, e.g., Zadvydas, 533
U.S. at 693, 121 S.Ct. 2491; Verdugo-Urquidez, 494 U.S. at 269,
110 S.Ct. 1056.
D. If Petitioner Is Not Permitted Access To Federal Court, Does He
Have Any Legal Rights?
In Coalition I, this Court observed that it was not holding that
these prisoners have no right which the military authorities are
bound to respect. The United States, by the [1949] Geneva
Convention ... concluded an agreement upon the treatment to be
accorded captives. These prisoners claim to be and are entitled to
its protection. It is, however, the obvious scheme of the
Agreement that responsibility for observance and enforcement of
these rights is upon political and military authorities. Rights of
alien enemies are vindicated under it only through protests and
intervention of protecting powers as the rights of our citizens
against foreign governments are vindicated only by Presidential
intervention.
189 F.Supp.2d at 1050 (quoting Johnson, 339 U.S. at 789 n. 14, 70
S.Ct. 936). The Court went on to note that the President had
"recently declared that the United States [would] apply the rules
of the Geneva Convention to at least some of the detainees." Id.
at 1050 n. 15.
On November 13, 2001, the President issued a Military Order titled
"Detention, Treatment and Trial of Certain Non-Citizens in the War
Against Terrorism." 66 Fed.Reg. 57833-57836 (Nov. 16, 2001). In
that Order, the President stated that ad hoc military commissions
might be convened to try the Guantanamo detainees.
A few months after the first detainees were brought to Guantanamo,
the Department of Defense promulgated Military Commission Order
No. 1: Procedures for Trials by Military Commissions of Certain
Non-United States Citizens in the War Against Terrorism (March 21,
2002.). Order No. 1 guarantees "inter alia, the presumption of
innocence, the right against self- incrimination, burden of proof
on the Government, the choice of civilian defense counsel to serve
alongside military defense counsel, the right of cross-examination
and presentation of proof by the defense and proof beyond a
reasonable doubt." Ruth Wedgwood, "Al Qaeda, Terrorism, and
Miliary Commissions," 96 Am. J. Int'l L. 328, 337 n. 35 (2002).
On April 30, 2003, more than 13 months after Military Commission
Order No. 1 *1073 was promulgated, the Department of Defense
published an eight part series of "Military Commission
Instructions," which (among other things) specify the crimes (and
the elements of those crimes) that the commissions will have
jurisdiction to try, as well as the responsibilities of both
military and civilian defense counsel. See Military Commission
Instructions Nos. 1-8.
More than 15 months have gone by since the United States placed
Falen Gherebi and hundreds of other captured individuals into
detention in Guantanamo. Not one military tribunal has actually
been convened. Not one Guantanamo detainee has been given the
opportunity to consult an attorney, has had formal charges filed
against him or has been able contest the basis for his detention.
It is unclear why it has taken so long for the Executive Branch to
implement its stated intention to try these detainees. Putting
aside whether these captives have a right to be heard in a federal
civilian court--indeed, especially because it appears they have no
such right--this lengthy delay is not consistent with some of the
most basic values our legal system has long embodied.
To compound the problem, recently reports have appeared in the
press that several of the detainees are only juveniles. See, e.g.,
Richard A. Serrano, "Juveniles Are Among Cuba War Detainees," L.A.
Times, April 23, 2003, at A13. This development has led some to
resort to extreme hyperbole in calling for immediate remedies.
See, e.g., Jonathan Turley, "Appetite for Authoritarianism Spawns
an American Gulag," L.A. Times, May 2, 2003, at B19.
Unfortunately, unless Johnson and the other authorities cited
above are either disregarded or rejected, this Court lacks the
power and the right to provide such a remedy. Perhaps a higher
court will find a principled way to do so.
CONCLUSION
For the foregoing reasons, the petition is DISMISSED.
IT IS SO ORDERED.
C.D.Cal.,2003. Gherebi v. Bush 262 F.Supp.2d 1064
Copyright © 2003 Paul Wolf
Copyright © 2003 San Francisco Chronicle
Copyright © 2003 Associated Press
Copyright © 2003 Australian Broadcasting Corporation
Copyright © 2003 ABC12/Associated Press
Reprinted for Fair Use Only.
* Geneva Conventions of 1949:
Convention (I) for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, August 12, 1949
http://www.yale.edu/lawweb/avalon/lawofwar/geneva05.htm
Convention (II) for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea, August 12, 1949
http://www.yale.edu/lawweb/avalon/lawofwar/geneva06.htm
Convention (III) Relative to the Treatment of Prisoners of War; August
12, 1949
http://www.yale.edu/lawweb/avalon/lawofwar/geneva03.htm
Convention (IV) Relative to the Protection of Civilian Persons in Time
of War, August 12, 1949
http://www.yale.edu/lawweb/avalon/lawofwar/geneva07.htm
http://www.ratical.org/ratville/CAH/CRBPoEC.html (hypertext)
http://www.ratical.org/ratville/CAH/CRBPoEC.txt (text only)
http://www.ratical.org/ratville/CAH/CRBPoEC.pdf (print ready)