No. 16-8966
IN THE

Supreme Court of the United States
————
ABD AL-RAHIM AL-NASHIRI,
Petitioner,
v.
DONALD J. TRUMP, et al.,
Respondents.
————
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
————
BRIEF OF AMICI CURIAE
RETIRED MILITARY ADMIRALS
AND GENERALS, ET AL.
IN SUPPORT OF PETITIONER
————
Of Counsel
HUMAN RIGHTS FIRST

DAVID B. TOSCANO
Counsel of Record
SHARON KATZ
TYSON D. KENNEDY
ELIZABETH A. TIPPETT
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
David.Toscano@DavisPolk.com
Counsel for Amici Curiae

May 31, 2017
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................

ii

INTEREST OF AMICI CURIAE ........................

1

INTRODUCTION ................................................

6

SUMMARY OF ARGUMENT .............................

7

ARGUMENT ........................................................

8

I. The existence of an armed conflict at the
time of the charged conduct is critical to
the legitimacy and legality of subjecting
Petitioner to trial by military commission. ...........................................................

8

II. Subjecting petitioner to a military commission trial of doubtful legality undermines U.S. national security interests by
putting U.S. servicemembers at greater
risk and undermining U.S. counterterrorism efforts. .......................................

13

A. Subjecting detainees to military commission trials of doubtful legality puts
U.S. servicemembers and other U.S.
nationals abroad at greater risk. ........

14

B. Subjecting detainees to military commission trials of doubtful legality
undermines the legitimacy and effectiveness of U.S. counterterrorism
efforts. ..................................................

18

CONCLUSION ....................................................

22

(i)

 ii
TABLE OF AUTHORITIES
CASES

Page(s)

Prosecutor v. Haradinaj,
Case No. IT-04-84-T, Judgement (Int’l
Crim. Trib. for the Former Yugoslavia
Apr. 3, 2008) ..............................................

12

Prosecutor v. Limaj,
Case No. IT-03-66-T, Judgement (Int’l
Crim. Trib. for the Former Yugoslavia
Nov. 30, 2005) ........................................... 11, 12
Prosecutor v. Rutaganda,
Case No. ICTR-96-3-T, Judgement and
Sentence (Int’l Crim. Trib. for Rwanda
Dec. 6, 1999) ..............................................

11

Prosecutor v. Tadić,
Case No. IT-94-1, Decision on Defence
Motion for Interlocutory Appeal on
Jurisdiction (Int’l Crim. Trib. for the
Former Yugoslavia Oct. 2, 1995) .............. 10, 11
STATUTES
10 U.S.C. § 948a(9) .......................................

8

10 U.S.C. § 948b(a) .......................................

8

10 U.S.C. § 948d ...........................................

8

10 U.S.C. § 950p(c) .......................................

8

TREATIES
Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in
Armed Forces in the Field, Aug. 12, 1949,
6 U.S.T. 3114, 75 U.N.T.S. 31 .......... 8, 9, 10, 11

 iii
TABLE OF AUTHORITIES—Continued
Page(s)
Geneva Convention for the Amelioration of
the Condition of the Wounded, Sick, and
Shipwrecked Members of Armed Forces
at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75
U.N.T.S. 85 ........................................ 8, 9, 10, 11
Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S.
287 ..................................................... 8, 9, 10, 11
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949,
6 U.S.T. 3316, 75 U.N.T.S. 135 ........ 8, 9, 10, 11
BOOKS
Dwight D. Eisenhower, Crusade in Europe
(1948) .........................................................

14

OTHER AUTHORITIES
Lionel Beehner, The United States and the
Geneva Conventions, Council on Foreign
Relations (Sept. 20, 2006) .........................

17

Gen. J.V. Dillon, The Genesis of the 1949
Convention Relative to the Treatment
of Prisoners of War, 5 Miami L.Q. 40
(1950) .........................................................

14

Sheri Fink & Helene Cooper, Inside Trump
Defense Secretary Pick’s Efforts to Halt
Torture, N.Y. Times, Jan. 2, 2017 ............

17

 iv
TABLE OF AUTHORITIES—Continued
Page(s)
William Finnegan, Taking Down Terrorists
in Court, New Yorker, May 15, 2017 .......

21

Geneva Conventions for the Protection of
War Victims: Hearing Before the Senate
Comm. on Foreign Relations, 84th Cong.
(1955) .........................................................

15

Hearing to Receive Testimony on Global
Challenges and U.S. National Security
Strategy before Senate Comm. on Armed
Services, 114th Cong. (2015) ....................

17

Sandra L. Hodgkinson, Detention Operations: A Strategic View, in U.S. Military
Operations: Law, Policy, and Practice
275 (Geoffrey S. Coren, Rachel E.
VanLandingham & Shane R. Reeves eds.,
2015) ..........................................................

15

Int’l Comm. of the Red Cross, How is
the Term “Armed Conflict” Defined in
International Humanitarian Law?, ICRC
Opinion Paper (Mar. 2008) ............. 9, 10, 11, 12
Int’l L. Ass’n, Int’l Law Ass’n Use of Force
Comm., Final Report on the Meaning
of Armed Conflict in International Law
(2010) .........................................................

11

Michael Isikoff, Q&A: Lindsey Graham on
Torture, Newsweek (Sept. 17, 2006, 8:00
PM) ............................................................

17

Joint Publication 3-0, Joint Operations
(2011) .........................................................

20

 v
TABLE OF AUTHORITIES—Continued
Page(s)
Harold Hongju Koh, Legal Adviser to U.S.
Department of State, The Obama
Administration and International Law
(Mar. 25, 2010) .......................................... 19, 20
Letter from Former National Security Officials to James N. Mattis, Secretary of
Defense (Mar. 10, 2017) ............................

20

Letter from General Colin L. Powell, USA
(Ret.) to Senator John McCain (Sept. 13,
2006) .......................................................... 17, 19
Letter from Retired Generals and Admirals
to Donald J. Trump, President-elect of
the United States of America (Jan. 6,
2017) ..........................................................

18

Paul Lewis, The Somalia Mission: Prisoners; U.N., Urged by U.S., Refuses to
Exchange Somalis, N.Y. Times, Oct. 8,
1993 ...........................................................

16

Peter Margulies, Networks in NonInternational Armed Conflicts: Crossing
Borders and Defining “Organized Armed
Group,” 89 Int’l L. Stud. 54 (2013) ...........

11

Neil McDonald & Scott Sullivan, Rational
Interpretation in Irrational Times: The
Third Geneva Convention and the “War
on Terror,” 44 Harv. Int’l L.J. 301 (2003) ...

16

Jelena Pejic, The Protective Scope of
Common Article 3: More Than Meets the
Eye, 93 Int’l Rev. of the Red Cross 189
(2011) ............................................... 9, 10, 11, 12

 vi
TABLE OF AUTHORITIES—Continued
Page(s)
Jean Pictet, Commentary, I Geneva
Convention for the Amelioration of the
Condition of the Wounded and Sick in
Armed Forces in the Field (Jean S. Pictet
ed., 1952) ...................................................

10

Jean Pictet, Commentary, IV Geneva
Convention Relative to the Protection of
Civilian Persons in Time of War (Oscar
M. Uhler et al. eds., 1958) ........................

12

Secretary Condoleezza Rice, Remarks at
Annual Meeting of the American Society
of International Law (Apr. 1, 2005) .........

19

Dietrich Schindler, The Different Types of
Armed Conflicts According to the Geneva
Conventions and Protocols, 163 Recueil
de Cours 121 (1979) ..................................

12

Senate Comm. on Foreign Relations,
Geneva Conventions for the Protection of
War Victims, S. Rep. No. 84-9 (1955),
reprinted in 84 Cong. Rec. 9958 (1955) ....

15

Sylvain Vité, Typology of Armed Conflicts
in International Humanitarian Law:
Legal Concepts and Actual Situations, 91
Int’l Rev. of the Red Cross 69 (2009) ........

10

Transcript: Joint Chiefs of Staff Chairman
Adm. Mike Mullen, ABC News (May 24,
2009) ..........................................................

21

 INTEREST OF AMICI CURIAE1
Amici Curiae are retired Admirals and Generals of
the United States Armed Forces. They include officers
who have served in senior commanding positions during war and as senior judge advocates. Amici Curiae
know matters of war and national security. Collectively, they have served for over 310 years in locations
all around the world.
Since the terrorist attacks of 9/11, they have advocated that the detention, interrogation, and trial of
suspected terrorists must comply with applicable
international and domestic law so as to uphold
American values, preserve the legitimacy of counterterrorism operations, and ensure that American service
members are afforded the protections to which they
are entitled in current and future conflicts.
Amici Curiae have an interest in ensuring that
counterterrorism policies pursued by the military
conform to the rule of law, in maintaining the integrity
of the judicial system, and in protecting the safety of
American soldiers and citizens. They also have an
interest in ensuring that military justice is held in
high regard, that military commissions and the laws
of war are appropriately limited to situations of armed
conflict, and that the scope of armed conflict and the
laws of war are not expanded beyond what is legally
permitted. These interests are directly implicated in
this case, which involves serious questions regarding
1

No counsel for any party has authored this brief in whole or
in part, and no person other than the amici curiae and their
counsel made any monetary contribution intended to fund the
preparation or submission of this brief. All counsel of record for
all parties received notice of the intent to file this brief ten or
more days before its filing, and all parties have consented to its
filing.

 2
the scope and application of the laws of war and
military commissions.
This amicus brief is filed in support of the petition
for writ of certiorari filed by Abd al-Rahim al-Nashiri
to stress for the Court how allowing the executive
branch to subject detainees to military trials of
questionable legality will endanger U.S. servicemembers and hinder the effectiveness and legitimacy
of U.S. counterterrorism.
Amici Curiae are:
Lieutenant General Robert G. Gard, Jr., USA (Ret.):
Lieutenant General Gard currently serves as a consultant on international security and education and
serves on the national advisory board at the Center for
Arm Control and Non-Proliferation. He was President
of the Monterey Institute of International Studies
and director of the Johns Hopkins University Bologna
(Italy) Center. He retired from the U.S. Army as a
lieutenant general in 1981. His assignments during
his 31-year military career included Assistant to the
Secretary of Defense and President of the National
Defense University. He earned a Ph.D. in Political
Economy and Government from Harvard University.
Rear Admiral Don Guter, JAGC, USN (Ret.): Rear
Admiral Guter served in the U.S. Navy for 32 years,
concluding his career as the Navy’s Judge Advocate
General from 2000 to 2002. Rear Admiral Guter
currently serves as President and Dean of the South
Texas College of Law Houston, in Houston, Texas.
Rear Admiral John D. Hutson, JAGC, USN (Ret.):
Rear Admiral John D. Hutson served in the U.S. Navy
from 1973 to 2000. He was the Navy’s Judge Advocate
General from 1997 to 2000. From 2000 to 2011 Rear
Admiral Hutson served as Dean and President of the

 3
University of New Hampshire School of Law in
Concord, New Hampshire.
Major General Michael R. Lehnert, USMC (Ret.):
Major General Lehnert served as Commanding General,
Marine Corps Installations West and graduated from
Central Michigan University with an undergraduate
degree in History, the U.S. Army Advanced Engineer
School at Fort Belvoir, Virginia, the Armed Forces
Staff College, and the Naval War College. He has
served as Commander of Joint Task Group Bulkeley
(JTF 160) at Guantanamo Bay, Marine Wing Support
Group 27 at Cherry Point, North Carolina, and Joint
Task Force 160 at Guantanamo Bay, which constructed and operated the detention facilities for
Taliban and Al Qaeda detainees. Major General
Lehnert also served as Commander, Marine Logistics
Command for Operation Iraqi Freedom, and was
assigned as Chief of Staff, U.S. Southern Command.
Major General Margaret H. Woodward, USAF
(Ret.): Major General Woodward served in the U.S.
Air Force for 32 years, having flown in nineteen named
operations. She commanded the 17th Air Force, serving
as the Combined Forces Air Component Commander,
the first female to do so in Air Force history, during
the U.N.-sanctioned 2011 military intervention in
Libya. She holds a B.S. in aerospace engineering
from Arizona State University, a Master’s degree in
aviation science from Embry-Riddle Aeronautical
University, and a Master’s degree in national security
strategy from the National War College.
Brigadier General David M. Brahms, USMC (Ret.):
Brigadier General Brahms served in the Marine Corps
from 1963 to 1988. He served as the Marine Corps’
Senior Legal Adviser from 1983 until his retirement in
1988. Brigadier General Brahms currently practices

 4
law in Carlsbad, California, and sits on the board of
directors of the Judge Advocates Association.
Brigadier General Stephen A. Cheney, USMC (Ret.):
Brigadier General Steve Cheney is the Chief Executive Officer of the American Security Project and a
member of the Department of State’s International
Security Advisory Board. He is a graduate of the U.S.
Naval Academy and has over 30 years of experience
as a Marine. His career included a wide variety of
command and staff positions with the operating
forces and the supporting establishment. His primary
specialty was artillery, but he focused extensively on
entry-level training, commanding at every echelon
at both Marine Corps Recruit Depots, to include being
the Commanding General at Parris Island. He served
several years in Japan and has traveled extensively
throughout the Middle East and Asia. Following retirement from the Marines, he became the Chief Operating
Officer for Business Executives for National Security
(“BENS”), in Washington, D.C., and most recently was
President/CEO of the Marine Military Academy in
Harlingen, Texas.
Brigadier General James P. Cullen, USA (Ret.):
Brigadier General Cullen is a retired from the United
States Army Reserve Judge Advocate General’s Corps
and last served as the Chief Judge (IMA) of the U.S.
Army Court of Criminal Appeals. He currently
practices law in New York City.
Brigadier General Leif H. Hendrickson, USMC
(Ret.): Brigadier General Hendrickson served as the
Commanding General, Marine Corps Base, Quantico,
as President of the Marine Corps University and as
Commanding General, Education Command. He
graduated from the U.S. Naval Academy in 1973 and

 5
served thirty years in the Marine Corps, amassing
over 5,000 hours.
Brigadier General David R. Irvine, USA (Ret.):
Brigadier General Irvine enlisted in the 96th Infantry
Division, United States Army Reserve, in 1962. He
received a direct commission in 1967 as a strategic intelligence officer. He maintained a faculty assignment
for 18 years with the Sixth U.S. Army Intelligence
School, and taught prisoner of war interrogation and
military law for several hundred soldiers, Marines,
and airmen. He retired in 2002, and his last assignment was Deputy Commander for the 96th Regional
Readiness Command. Brigadier General Irvine is an
attorney and practices law in Salt Lake City, Utah. He
served four terms as a Republican legislator in the
Utah House of Representatives, has served as a congressional chief of staff, and served as a commissioner
on the Utah Public Utilities Commission.
Brigadier General O’Meara, USA (Ret.): Brigadier
General O’Meara served in the United States Army
and is a combat veteran of the war in Vietnam. After
his service in Vietnam, he joined the Judge Advocate
General’s Corps. He retired from the United States
Army in 2002, after 35 years of service. He is the
Director of the Division of Global Affairs at Rutgers
University. He serves as Adjunct Faculty with the
Defense Institute of International Legal Studies
where he has taught rule of law, governance, and
peacekeeping subjects in such diverse locations as El
Salvador, Peru, Cambodia, Rwanda, the Philippines,
Chad, Sierra Leone, Guinea, Ukraine, Moldova, and
Iraq. He is a qualified Emergency Medical Technician
and served at the World Trade Center Site in the
months after 9/11.

 6
Brigadier General Stephen N. Xenakis, USA (Ret.):
Dr. Xenakis served 28 years in the United States Army
as a medical corps officer. He held a wide variety of
assignments as a clinical psychiatrist, staff officer, and
senior commander including Commanding General of
the Southeast Army Regional Medical Command. Dr.
Xenakis has published widely on medical ethics,
military medicine, and the treatment of detainees. Dr.
Xenakis has an active clinical and consulting practice
and currently is working on the clinical applications
of quantitative electroencephalography to brain injury
and other neurobehavioral conditions. He has conducted extensive research on the effects of abusive
interrogation practices.
INTRODUCTION
This case is about ensuring the legality and legitimacy of the U.S. military’s counterterrorism mission,
including proceedings before military commissions.
The jurisdiction of military commissions is circumscribed, and the exclusive jurisdiction of civilian
courts of non-wartime offenses is preserved, by the
U.S. Constitution, the Military Commissions Act, and
international law. Limiting military commissions to
their lawfully authorized jurisdiction protects the reputation of our country and its military for adherence to
the rule of law.
Conversely, closing Article III courts to threshold
challenges to a military commission’s jurisdiction, and
allowing a military prosecution of dubious legality to
proceed, detracts from that reputation. It also increases the risk to our men and women in uniform and
hinders the ability of this country to effectively combat
terrorism. Those harms cannot later be undone by
post-conviction federal court review. It is critical to
address the legality of this military prosecution now.

 7
SUMMARY OF ARGUMENT
The executive branch is attempting to use a military
commission, rather than the readily available federal
courts, to try Petitioner for involvement in the
bombing of the USS Cole in 2000 and attempted
bombing in 2002 of a French oil tanker off the coast of
Yemen.
For conduct related to these bombings to be triable
by military commission, it must have occurred in the
context of an armed conflict governed by the laws of
war. An “international armed conflict” is triggered by
any use of armed force between two or more nation
states. A “non-international armed conflict” between
non-state armed groups, or between such groups and
a state, must meet more stringent requirements. As
war crimes tribunals have held in case after case,
fighting involving such groups triggers the laws of war
only when the groups are sufficiently organized to
function as parties to an armed conflict and the armed
clashes between them are prolonged and intense.
At the time of bombing and attempted bombing at
issue here, the United States was not in an armed
conflict in Yemen, raising serious questions about the
legality of the military commission convened to prosecute Petitioner for law of war violations. Allowing a
military commission of such questionable legality to
proceed without first resolving this critical question
will cause irreversible harm by putting U.S. servicemembers at greater risk and undermining the legitimacy
and effectiveness of U.S. counterterrorism efforts.

 8
ARGUMENT
I. The existence of an armed conflict at the
time of the charged conduct is critical to
the legitimacy and legality of subjecting
Petitioner to trial by military commission.
The Military Commissions Act of 2009 (the “Act”)
defines the jurisdiction of military commissions. Under
the Act, military commissions have jurisdiction to try
persons for offenses under certain provisions of the
Uniform Code of Military Justice, which apply only
to U.S. servicemembers, or under the law of war.2
Similarly, the Act provides that an offense may be
tried by military commission “only if the offense is
committed in the context of and associated with hostilities,” where “hostilities” is defined as “any conflict
subject to the laws of war.”3 It is well established that
the law of war applies only when an armed conflict
exists.4
2

See 10 U.S.C. § 948d.

3

10 U.S.C. §§ 948a(9), 948b(a), 950p(c).

4

See Geneva Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field art. 2,
Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter First
Convention]; Geneva Convention for the Amelioration of the
Condition of the Wounded, Sick, and Shipwrecked Members of
Armed Forces at Sea art. 2, Aug. 12, 1949, 6 U.S.T. 3217, 75
U.N.T.S. 85 [hereinafter Second Convention]; Geneva Convention Relative to the Treatment of Prisoners of War art. 2, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Convention]; Geneva Convention Relative to the Protection of Civilian
Persons in Time of War art. 2, Aug. 12, 1949, 6 U.S.T. 3516, 75
U.N.T.S. 287 [hereinafter Fourth Convention]. These articles are
collectively referred to as “Common Article 2.” See also First
Convention, art 3; Second Convention, art. 3; Third Convention,
art. 3; Fourth Convention, art. 3. These articles are collectively
referred to as “Common Article 3.”

 9
As a result, the existence of an armed conflict at the
time of the charged conduct is critical to the legitimacy
and legality of subjecting Petitioner to trial by military
commission.
Under the laws of war, there are two types of conflict
that can occur: international armed conflicts described
in Common Article 2 of the Geneva Conventions
and non-international armed conflicts described in
Common Article 3. International armed conflicts are
those in which two or more states oppose one another.5
Non-international armed conflicts, on the other hand,
occur between non-governmental armed groups and
either state forces or other non-governmental armed
groups.6
The requirements for triggering these two categories of conflict are different. Any resort to armed
force between states triggers a Common Article 2
international armed conflict subject to the entire
corpus of the law of armed conflict,7 regardless of the
5

Int’l Comm. of the Red Cross, How is the Term “Armed
Conflict” Defined in International Humanitarian Law?, ICRC
Opinion Paper at 1 (Mar. 2008) [hereinafter ICRC Opinion
Paper].
6

ICRC Opinion Paper, supra note 5, at 1; Jelena Pejic, The
Protective Scope of Common Article 3: More Than Meets the Eye,
93 Int’l Rev. of the Red Cross 189, 191 (2011) (“Despite the lack
of a legal definition, it is widely accepted that non-international
armed conflicts governed by Common Article 3 are those waged
between state armed forces and non-state armed groups or
between such groups themselves.”).
7

See, e.g., ICRC Opinion Paper, supra note 5, at 2 (“The International Criminal Tribunal for the former Yugoslavia (ICTY)
proposed a general definition of international armed conflict. In
the Tadic case, the Tribunal stated that ‘an armed conflict exists
whenever there is a resort to armed force between States.’ This
definition has been adopted by other international bodies since

 10
intensity or duration of the fighting or the number of
casualties with minor exceptions for border skirmishes
and the like.8 By contrast, non-international armed
conflicts occur when fighting between states and nonstate armed groups or between such groups crosses the
line from civil disturbance or criminal activity to
armed conflict.9 Two criteria are widely considered to
be required under Common Article 3 for distinguishing non-international armed conflict from internal
disturbances, tensions, or criminal activity that remains
below the threshold: groups that are sufficiently
organized to function as parties to an armed conflict

then.” (footnote omitted) (quoting Prosecutor v. Tadić, Case No.
IT-94-1, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction, ¶ 70 (Int’l Crim. Trib. for the Former Yugoslavia
Oct. 2, 1995))).
8

Jean Pictet, Commentary, I Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field 32 (Jean S. Pictet ed., 1952); see also ICRC
Opinion Paper, supra note 5, at 1–2; Sylvain Vité, Typology of
Armed Conflicts in International Humanitarian Law: Legal
Concepts and Actual Situations, 91 Int’l Rev. of the Red Cross 69,
72 (2009) (“[T]he level of intensity required for a conflict to be
subject to the law of international armed conflict is very low. . . .
It is, however, not necessary for the conflict to extend over time
or for it to create a certain number of victims. In other words, an
international armed conflict exists, as recalled by the ICTY,
‘whenever there is a resort to armed force between States.’”)
(internal footnotes omitted).
9

ICRC Opinion Paper, supra note 5, at 1; Pejic, supra note 6,
at 191 (“Despite the lack of a legal definition, it is widely accepted
that non-international armed conflicts governed by Common
Article 3 are those waged between state armed forces and nonstate armed groups or between such groups themselves.”).

 11
and armed clashes between these groups that are
prolonged and intense.10
Aside from being rooted in the text of Common
Article 3 itself, the organization and intensity elements were found to be essential characteristics of
non-international armed conflict by the International
Law Association after an extensive review of relevant treaty law, state practice, opinio juris, judicial
decisions, scholarly writing, and the opinions of
experts.11
Several indicative factors have emerged in international jurisprudence that are relevant when evaluating
whether an armed group is sufficiently organized to be
considered a “party” to an armed conflict.12 These
factors include the ability to comply with the law of
armed conflict (even if the group chooses not to
comply), a common command structure, disciplinary
rules, adequate communications, a headquarters, the
ability to acquire and distribute arms, joint mission

10

See, e.g., Tadić, Case No. IT-94-1, ¶ 70; Pejic, supra note 6,
at 191–93; see also Prosecutor v. Limaj, Case No. IT-03-66-T,
Judgement, ¶ 84 (Int’l Crim. Trib. for the Former Yugoslavia Nov.
30, 2005); Prosecutor v. Rutaganda, Case No. ICTR-96-3-T,
Judgement and Sentence, ¶ 93 (Int’l Crim. Trib. for Rwanda Dec.
6, 1999); Int’l L. Ass’n, Int’l Law Ass’n Use of Force Comm., Final
Report on the Meaning of Armed Conflict in International Law 21,
30 (2010) [hereinafter ILA Report]; ICRC Opinion Paper, supra
note 5, at 3.
11
12

ILA Report, supra note 10, at 3.

For a detailed analysis regarding the task of defining the
organization requirement, see Peter Margulies, Networks in NonInternational Armed Conflicts: Crossing Borders and Defining
“Organized Armed Group,” 89 Int’l L. Stud. 54 (2013).

 12
planning and execution, ability to coordinate troop
movements, and the ability to negotiate agreements.13
International tribunals have considered a number of
factors when assessing whether a situation of violence
meets the intensity threshold for non-armed conflict:
These indicative factors include the number,
duration and intensity of individual confrontations; the type of weapons and other
military equipment used; the number and
calibre of munitions fired; the number of
persons and type of forces partaking in the
fighting; the number of casualties; the extent
of material destruction; and the number of
civilians fleeing combat zones. The involvement of the UN Security Council may also be
a reflection of the intensity of the conflict.14
Crossing this legal threshold for non-international
armed conflict triggers wartime rules, with significant
legal consequences. Virtually no one thought, and the
United States never claimed, that at the time of the
charged offenses the United States was in an armed
conflict in Yemen governed by the extraordinary rules
13

See, e.g., Jean Pictet, Commentary, IV Geneva Convention
Relative to the Protection of Civilian Persons in Time of War 35–
36 (Oscar M. Uhler et al. eds., 1958); Pejic, supra note 6, at 192
(citing Limaj, Case No. IT-03-66-T, ¶ 90; Prosecutor v. Haradinaj,
Case No. IT-04-84-T, Judgement, ¶ 60 (Int’l Crim. Trib. for the
Former Yugoslavia Apr. 3, 2008)); ICRC Opinion Paper, supra
note 5, at 3 (“[T]hese forces have to be under a certain command
structure and have the capacity to sustain military operations.”)
(citing Limaj, Case No. IT-03-66-T, ¶¶ 94–134; Dietrich Schindler,
The Different Types of Armed Conflicts According to the Geneva
Conventions and Protocols, 163 Recueil de Cours 121, 147 (1979)).
14

Haradinaj, Case No. IT-04-84-T, ¶ 49; see also Pejic, supra
note 6, at 192–93.

 13
of war. It was only in the context of the executive
branch’s later attempts to try Petitioner via military
tribunal that it began to retroactively claim that there
had been an armed conflict.
These circumstances raise serious questions about
the legitimacy and legality of the military commission
convened to prosecute Petitioner for law of war
violations. Allowing a military commission of such
questionable legality to proceed without first resolving
this critical question will cause irreversible harm by
putting U.S. servicemembers at greater risk and
undermining the legitimacy and effectiveness of U.S.
counterterrorism efforts.
II. Subjecting petitioner to a military commission trial of doubtful legality undermines
U.S. national security interests by putting
U.S. servicemembers at greater risk and
undermining U.S. counterterrorism efforts.
Trying the Petitioner before a military commission
instead of a federal court without a clear ruling on
whether the commission has legal authority to try
Petitioner would undermine the United States’
national security interests in two critical ways. First,
subjecting a detainee to a military tribunal whose
legality is in question would put U.S. servicemembers
at greater risk of mistreatment at the hands of others.
Second, proceeding with a trial whose legitimacy and
legality is in question would hinder counterterrorism
efforts by jeopardizing cooperation and intelligence
sharing from allies and local populations and by
fueling terrorist recruitment and propaganda efforts.

 14
A. Subjecting detainees to military commission trials of doubtful legality puts
U.S. servicemembers and other U.S.
nationals abroad at greater risk.
When America is perceived to be violating domestic
or international law—such as the Geneva Conventions—
it can make other states and non-state actors more
likely to mistreat U.S. servicemembers and other
Americans in any number of ways: worse treatment
of American prisoners-of-war, the increased use
of aggressive interrogation tactics against captured
Americans, decreased support for and increased
opposition to American military operations, or even—
as here—the trial of Americans in improper or
illegitimate forums with reduced procedural
protections.
Concern for the treatment of American servicemembers has been a key reason the United States
has historically “been a leader in . . . bettering the
humanitarian principles invoked” for the treatment of
captive enemies,15 and it has been a guiding principle
in U.S. foreign policy regarding treatment of prisoners
of war. Then-General Dwight D. Eisenhower was keenly
aware of this in World War II, when he explained that
German prisoners of war were provided the same
rations as U.S. soldiers not only because of the 1929
Geneva Convention, but also because “the German[s]
had some thousands of American and British prisoners and I did not want to give Hitler the excuse or
justification for treating our prisoners more harshly
than he was already doing.”16
15

Gen. J.V. Dillon, The Genesis of the 1949 Convention Relative
to the Treatment of Prisoners of War, 5 Miami L.Q. 40, 41 (1950).
16

Dwight D. Eisenhower, Crusade in Europe 469 (1948).

 15
Treatment of our own servicemembers and nationals was again a key concern when the United States
considered ratifying the 1949 Geneva Conventions.
President Eisenhower’s Secretary of State, John Foster
Dulles, argued forcefully that “participation [in the
Geneva Conventions] is needed to . . . enable us to
invoke them for the protection of our nationals.”17 The
Senate agreed that “[i]f the end result [of ratification]
is only to obtain for Americans caught in the maelstrom of war a treatment which is 10 percent less
vicious than what they would receive without these
conventions, if only a few score of lives are preserved
because of the efforts at Geneva, then the patience and
laborious work of all who contributed to that goal will
not have been in vain.”18
These concerns subsequently led the United States
to accord additional protections to our enemies, even
when we were not legally required to do so. During the
Vietnam War, for example, the United States accorded
captured members of the Viet Cong more protections
under the Geneva Conventions than they were legally
entitled to. The United States did so in part based on
the belief that it would result in better treatment for
captured Americans.19

17

Geneva Conventions for the Protection of War Victims:
Hearing Before the Senate Comm. on Foreign Relations, 84th
Cong. 61 (1955).
18

Senate Comm. on Foreign Relations, Geneva Conventions for
the Protection of War Victims, S. Rep. No. 84-9 (1955), reprinted
in 84 Cong. Rec. 9958, 9971 (1955).
19

Sandra L. Hodgkinson, Detention Operations: A Strategic
View, in U.S. Military Operations: Law, Policy, and Practice 275,
299-300 (Geoffrey S. Coren, Rachel E. VanLandingham & Shane
R. Reeves eds., 2015).

 16
The same considerations also informed the U.S.
government’s decision to grant captured Somali fighters the protections of the Geneva Conventions—such
as regular visits by the International Committee of the
Red Cross—after the 1993 capture of U.S. Warrant
Officer Michael Durant by Somali warlord Mohammed
Farah Aidid, even though Somalia was not considered
a state under the Conventions at the time.20 The action
was taken to ensure that Durant received similar
treatment, and the strategy worked—“heavy-handed
interrogations of Durant appeared to cease, the Red
Cross was allowed to visit him and observe his
treatment, and he was subsequently released” 11 days
later.21
More recently, concern for how our own servicemembers will be treated was a key consideration in the
dialogue surrounding the use of torture. For example,
in 2006, Senators John McCain, John Warner, and
Lindsey Graham opposed a push to re-interpret certain portions of the Geneva Conventions to permit
aggressive interrogation tactics, not only because they
believed those actions amounted to torture and are
thus wrong per se, but also because utilizing them
could lead to the mistreatment of Americans abroad.
Indeed, Senator Graham suggested that American
actions perceived to be illegitimate could lead foreign

20

See Paul Lewis, The Somalia Mission: Prisoners; U.N.,
Urged by U.S., Refuses to Exchange Somalis, N.Y. Times, Oct. 8,
1993, available at http://www.nytimes.com/1993/10/08/world/thesomalia-mission-prisoners-un-urged-by-us-refuses-to-exchange-s
omalis.html.
21

Neil McDonald & Scott Sullivan, Rational Interpretation in
Irrational Times: The Third Geneva Convention and the “War on
Terror,” 44 Harv. Int’l L.J. 301, 310 (2003).

 17
countries to try Americans improperly when he questioned in Newsweek: “What if a CIA paramilitary guy
is caught in Iran . . . ? What would our response be if
the Iranian government put them on trial as a war
criminal? . . . We would scream bloody murder.”22 He
added that “[e]very military lawyer I’ve ever met
believes that [adhering to international standards] is
vital for the safety of our troops.”23
Former Secretary of State Colin Powell reiterated
this critical point when he cautioned in a supportive
letter to McCain that failure to uphold international
standards “would put our own troops at risk.”24
Secretary of Defense James Mattis, a former
general, has also spoken of “America needing to hold
the moral high ground.”25 In testimony before the
Senate in 2015, Secretary Mattis stated that detainees
should be treated in accordance with the standards set
by domestic and international law.26 One hundred and

22

See Lionel Beehner, The United States and the Geneva
Conventions, Council on Foreign Relations (Sept. 20, 2006),
www.cfr.org/international-law/united-states-genevaconventions/p11485; Michael Isikoff, Q&A: Lindsey Graham on
Torture, Newsweek (Sept. 17, 2006, 8:00 PM), http://www.news
week.com/qa-lindsey-graham-torture-109769.
23

Isikoff, supra note 22.

24

Letter from General Colin L. Powell, USA (Ret.) to Senator
John McCain (Sept. 13, 2006).
25

Sheri Fink & Helene Cooper, Inside Trump Defense
Secretary Pick’s Efforts to Halt Torture, N.Y. Times, Jan 2, 2017,
available at https://www.nytimes.com/2017/01/02/us/politics/ja
mes-mattis-defense-secretary-trump.html.
26

Hearing to Receive Testimony on Global Challenges and U.S.
National Security Strategy before Senate Comm. on Armed
Services, 114th Cong. 108:24–109:4 (2015) (testimony of General

 18
seventy-six other retired generals and admirals also
wrote to then-President-elect Trump earlier this year
to urge compliance with domestic and international
law in handling detainees held in U.S. custody.
The retired generals and admirals wrote: “We have
over six thousand years of combined experience in
commanding and leading American men and women
in war and in peace, and believe strongly in the values
and ideals that our country holds dear. We know from
experience that U.S. national security policies are
most effective when they uphold those ideals.”27
These same principles apply here. Demonstrating
a clear commitment to fair, humane, and lawful
treatment of those we detain is critical to protecting
our own servicemembers from potential abuse.
B. Subjecting detainees to military commission trials of doubtful legality undermines the legitimacy and effectiveness
of U.S. counterterrorism efforts.
When the legitimacy of military commission trials
at Guantanamo Bay is called into question, there is a
direct impact on the U.S. counterterrorism mission.
Doubts about the legality of U.S. actions impair relationships with allies and partners who may then
withhold crucial assistance, fuel anti-American sentiment about the legitimacy of the overall mission, and
provide propaganda victories to extremist groups who
exploit U.S. actions to bolster their recruitment.

James N. Mattis, USMC (Ret.), Former Commander, U.S.
Central Command).
27

Letter from Retired Generals and Admirals to Donald J.
Trump, President-elect of the United States of America (Jan. 6,
2017).

 19
National security leaders have long recognized the
importance of observing international legal norms
and maintaining legitimacy to U.S. national security
interests. Colin Powell warned in 2006 that “[t]he
world is beginning to doubt the moral basis of our fight
against terrorism,” and argued that failure to uphold
international standards “would add to those doubts.”28
And former Secretary of State Condoleezza Rice
stated shortly after completing her term as National
Security Adviser that “[w]hen we observe our treaty
and other international commitments . . . other
countries are more willing to cooperate with us and
we have a better chance of persuading them to live up
to their own commitments. And so when we respect
our international legal obligations and support an
international system based on the rule of law, we do
the work of making the world a better place, but also
a safer and more secure place for America.”29
Similarly, in a 2010 speech, then-Legal Adviser to
the Department of State Harold Hongju Koh emphasized the importance of “following universal standards,
not double standards.”30 Koh noted that “by imposing
constraints on government action, law legitimates and
gives credibility to governmental action,” affirming
President Barack Obama’s observation that “‘[a]dhering

28

Letter from Colin Powell, supra note 24.

29

Secretary Condoleezza Rice, Remarks at Annual Meeting of
the American Society of International Law (Apr. 1, 2005), available at https://2001-2009.state.gov/secretary/rm/2005/44159.htm.
30

Harold Hongju Koh, Legal Adviser to U.S. Department of
State, The Obama Administration and International Law (Mar.
25, 2010), available at https://geneva.usmission.gov/2010/04/01/
obama-administration-international-law/.

 20
to standards, international standards, strengthens
those who do, and isolates those who don’t.’”31
More recently, over three dozen former national
security officials wrote to Secretary of Defense James
Mattis in March 2017: “In any counterterrorism or
counterinsurgency campaign, public confidence and
legitimacy are critical to strategic success.”32 This is
precisely why the Joint Chiefs of Staff have recognized
that legitimacy “can be a decisive factor in operations”33 and that “[t]he purpose of legitimacy is to
maintain legal and moral authority in the conduct of
operations.” Such legitimacy “is based on the actual
and perceived legality, morality, and rightness of the
actions from the various perspectives of interested
audiences,” which include not only domestic audiences, but also “nations and organizations around the
world.”34
A perception that U.S. military commissions are
unlawful or illegitimate has effects that extend far
beyond the courtroom. It erodes public confidence in
the counterterrorism mission itself, generating suspicion and distrust among local populations, which
become less inclined to cooperate with U.S. efforts.
Perceptions of illegitimacy further complicate the
already delicate process of working with foreign partners on counterterrorism operations, leading allies
and partner forces to refrain from providing crucial

31

Id.

32

Letter from Former National Security Officials to James N.
Mattis, Secretary of Defense (Mar. 10, 2017).
33

Joint Publication 3-0, Joint Operations at A–4 (2011).

34

Id.

 21
intelligence and other forms of counterterrorism assistance that are essential to the mission.35
U.S. counterterrorism efforts have already suffered
these negative consequences from the perceived illegitimacy of the Guantanamo Bay military commissions.
Several allied countries refuse to consider extradition
requests from the U.S. military based on concerns about terrorism suspects being transferred to
Guantanamo for trial by military commission.36
Indeed, key U.S. “counterterrorism partners, including the United Kingdom, Canada, Germany, and
the Netherlands, refuse to provide evidence or to
cooperate with extradition requests unless a suspect is
to be tried in a criminal court.”37
Subjecting detainees to military commission trials
without clear legal authority undermines counterterrorism objectives by providing a powerful propaganda
tool for extremist groups. Admiral Mike Mullen,
former Chairman of the Joint Chiefs of Staff, has
stated that Guantanamo “has been a symbol, and
one which has been a recruiting symbol for those
extremists and jihadists who would fight us.”38 Such
groups seize on unlawful or questionable U.S. actions
and the anti-American sentiment they generate to
bolster the narrative that the counterterrorism mission itself is illegitimate. An unlawful military trial
35

See William Finnegan, Taking Down Terrorists in Court,
New Yorker, May 15, 2017, available at http://www.newyorker.
com/magazine/2017/05/15/taking-down-terrorists-in-court.
36

Id.

37

Id.

38

Transcript: Joint Chiefs of Staff Chairman Adm. Mike
Mullen, ABC News (May 24, 2009), http://abcnews.go.com/
ThisWeek/story?id=7664072.

 22
is a powerful weapon for extremist groups, further
reinforcing their narrative of a hypocritical and
amoral United States at war with Islam.
Clearly demonstrating the legality of military
commission trials is crucial to maintaining the legitimacy of the counterterrorism mission and protection
of U. S. national security. Allowing a trial of questionable legality to proceed would come at a significant
strategic cost.
CONCLUSION
For the foregoing reasons, the petition for writ of
certiorari should be granted.
Respectfully submitted,
Of Counsel
HUMAN RIGHTS FIRST

DAVID B. TOSCANO
Counsel of Record
SHARON KATZ
TYSON D. KENNEDY
ELIZABETH A. TIPPETT
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
David.Toscano@DavisPolk.com
Counsel for Amici Curiae

May 31, 2017