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Rasul v. Bush. 124 S.Ct. 2686

Published online by Cambridge University Press:  27 February 2017

David L. Sloss
David L. Sloss*
Affiliation:
St. Louis University School of Law
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Type
International Decisions
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American Journal of International Law , Volume 98 , Issue 4 , October 2004 , pp. 788 - 798
Copyright
Copyright © American Society of International Law 2004

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References

1 124 S.Ct. 2686 (2004) [hereinafter Rasul (Supreme Court)].

2 Id. at 2698.

3 Id. at 2698–99.

4 A1 Odah v. United States, 321 F.3d 1134, 1136 (D.C. Cir. 2003) [hereinafter Al Odah (circuit court)].

5 Rasul v. Bush, 215 F.Supp.2d 55, 62 (D.D.C. 2002) [hereinafter Rasul (district court)].

6 The original petitioners in Rasulwere Shafiq Rasul and Asif Iqbal, both citizens of the United Kingdom, and David Hicks, an Australian citizen. See Rasul (district court), supra note 5, at 57. Later, Mamdouh Habib, an Australian citizen, filed a separate habeas petition. See Petition for a Writ of Certiorari at 2 n.2, Rasul (Supreme Court), supra note 1. Before the Supreme Court issued its opinion, Rasul and Iqbal, the two UK citizens, were released from U.S. custody. Rasul (Supreme Court), at 2690 n.l. The day after the Supreme Court issued its opinion, the government approved charges against Hicks (and two others) for trial by military commission. See Dep’t of Defense News Release, Military Commission Charges Referred (June 29, 2004). Thus, of the four petitioners, Habib is the only one who is still being held without charge. Department of Defense news releases for 2004 are available at <http://www.defenselink.mil/releases/2004> .

7 Rasul (district court), supra note 5, at 57.

8 See id. (noting that the Rasul petitioners asked the court, inter alia, to “order respondents to cease all interrogations of the detained petitioners, direct or indirect, while this litigation is pending”).

9 Id. at 64.

10 Id. at 62.

11 Id.

12 339 U.S. 763(1950).

13 Id. at 766.

14 Id.

15 Rasul (district court), supra note 5, at 72–73.

16 Id. at 69.

17 Id.

18 Al Odah (circuit court), supra note 4, at 1144.

19 Id.

20 Rasul (Supreme Court), supra note 1, at 2693.

21 Eisentrager, 339 U.S. at 769 n.2.

22 See id. at 769–77.

23 See id. at 771–72 (“It is war that exposes the relative vulnerability of the alien’s status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us . . . . But disabilities 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.”).

24 Eisentrager, 339 U.S. at 766.

25 Rasul (Supreme Court), supra note 1, at 2693.

26 Id.

27 Justice Kennedy emphasized this point in his concurring opinion in Rasul. See id. at 2700 (Kennedy, J., concurring).

28 Eisentrager, 339 U.S. at 778.

29 See id. at 775–77 (stating that a resident enemy alien has a right of access to U.S. courts because a “lawful residence implies protection, and a capacity to sue and be sued,” but that a nonresident enemy alien “does not have even this qualified access to our courts”).

30 Feb. 23, 1903, U.S.–Cuba, Art. Ill, T.S. No. 418, quoted in Rasul (Supreme Court), supra note 1, at 2690–91.

31 Treaty Defining Relations with Cuba, May 29, 1934 Google Scholar, U.S.–Cuba, Art. III, 48 Stat. 1683, T.S. No. 866, quoted in Rasul (Supreme Court), supra note 1, at 2691.

32 Rasul (Supreme Court), supra note 1, at 2696–98; see also id. at 2700 (Kennedy, J., concurring) (“Guantanamo Bay is in every practical respect a United States territory.”). In his dissenting opinion, Justice Scalia criticized the Court’s analysis in this regard. See id. at 2707–08 (Scalia, J., dissenting). He emphasized that the original 1903 Lease Agreement between the United States and Cuba recognized “the ultimate sovereignty of the Republic of Cuba over the leased areas.” Id. at 2708. But Justice Scalia’s analysis fails to account for the effect of the 1934 Treaty Defining Relations with Cuba. By granting the United States the unilateral right to continue the lease in perpetuity, the Treaty stripped Cuba of all rights other than nominal sovereignty over the leased territory. In contrast, immediately after World War II, the Landsberg prison in Germany, where the Eisentrager petitioners were detained, was subject to the “supreme authority” of the Allied Powers. See Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany, U.S.–USSR–UK–Fr., June 5, 1945 Google Scholar, 60 Stat. 1649, TIAS 1520. By the time that the Supreme Court decided Eisentrager, though, the Allied Powers had trans ferred substantial authority to Germany and promised that “the exercise of direct powers by the Allies should be regarded as temporary and self–liquidating in nature.” Agreed Memorandum Regarding the Principles Governing Exercise of Powers and Responsibilities of US–UK–French Governments Following Establishment of German Federal Republic, April 8, 1949, Art. 3, 63 Stat. 2817, TIAS 2066. Thus, a key distinction between Guantanamo Bay and the Landsberg prison is that Cuba has granted the U.S. jurisdiction over Guantanamo Bay in perpetuity.

33 Rasul (Supreme Court), supra note 1, at 2695.

34 28 U.S.C. §2241(a) (2000).

35 The district court opinion in Eisentrager is unpublished. According to the D.C. Circuit, the district court dismissed the petition “upon the authority of Ahrens v. Clark.” Eisentrager v. Forrestal, 174 F.2d 961, 962 (D.C. Cir. 1949). Ahrens held, as a matter of statutory interpretation, that “the presence within the territorial jurisdiction of the District Court of the person detained is prerequisite to filing a petition for a writ of habeas corpus.” Ahrens v. Clark, 335 U.S. 188, 189 (1948).

36 See Eisentrager v. Forrestal, 174 F.2d at 963–65.

37 See Johnson v. Eisentrager, 339 U.S. at 777 (“We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus”) (first emphasis added).

38 Justice Scalia, in his dissenting opinion in Rasul, contested tfiis interpretation of Eisentrager. See Rasul (Supreme Court), supra note 1, at 2701–03 (Scalia, J., dissenting). He contended that the court of appeals decided Eisentrager on statutory grounds, not constitutional grounds. Id. at 2702. In fact, the court of appeals in Eisentrager focused primarily on petitioners’ constitutional right to habeas corpus. See 17’4 F.2d at 963–65. Justice Scalia claimed, however, that the court employed constitutional analysis in support of its statutory holding, invoking the canon of constitutional avoidance to support a statutory interpretation that would avoid constitutional difficulties. See Rasul (Supreme Court), supra note 1, at 2702 (Scalia, J., dissenting). Admittedly, there is some language in the court of appeals’ decision in Eisentrager that supports Justice Scalia’s interpretation. Regardless, the Supreme Court in Eisentrager construed the lower court’s decision as a constitutional decision, not a statutory decision. See 339 U.S. at 767 (stating that the court of appeals concluded that “although no statutory jurisdiction of such cases is given, courts must be held to possess it as part of the judicial power of the United States”), 781 (stating that the court of appeals “gave our Constitution an extraterritorial application”), 784 (“The decision below would extend coverage of our Constitution to nonresident alien enemies”). Accordingly, the Supreme Court in Eisentrager based its own decision on constitutional grounds, not statutory grounds. See id. at 770–76 (explaining how the constitutional rights accorded to aliens hinge on distinctions between residents and nonresidents, and between friends and enemies), 777–81 (rejecting the claim that an enemy alien outside the United States is constitutionally entitled to the writ of habeas corpus).

39 410 U.S. 484, 495(1973).

40 Rasul (Supreme Court), supra note 1, at 2695 (quoting Braden, 410 U.S. at 494–95). Justice Scalia criticized the majority opinion as follows: “From this point forward, federal courts will entertain petitions from . . . prisoners ... around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war.” Id. at 2707 (Scalia, J., dissenting). Since the time that the Supreme Court decided Rasul, the parents of Ahmed Abu Ali—an individual with alleged ties to Al Qaeda who is currently detained in Saudi Arabia—have filed a habeas corpus petition in a U.S. federal court. See Murphy, Carlyle, Saudis Plan Terror Case Against Virginia Man, Family Says, WASH. POST., July 30, 2004 Google Scholar, at A9. If the court asserts jurisdiction in that case, Justice Scalia’s prediction may prove to be right. But courts might also reasonably conclude that Guantanamo Bay is a special case and that the holding in Rasul does not extend to prisoners detained in other parts of the world. If that is the correct interpretation of Rasul, then the ultimate lesson for the executive branch may be that it can evade the jurisdiction of U.S. courts by holding prisoners in Iraq or Afghanistan, instead of transferring them to Guantanamo Bay.

41 Rasul (Supreme Court), supra note 1, at 2698–99.

42 28 U.S.C. § 1331 (2000) (granting federal district courts jurisdiction over cases “arising under the Constitution, laws, or treaties of the United States”).

43 28 U.S.C. § 1350 (2000) (granting federal district courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”).

44 Rasul (Supreme Court), supra note 1, 2698–99.

45 Several lower courts have held that die Alien Tort Statute creates a federal cause of action for claims like the non–habeas claims at issue in Rasul. The Supreme Court held explicitly in Sosa v. Alvarez–Machain, 124 S.Ct. 2739 (2004), see Brad Roth, Case Report: Sosav. Alvarez–Machain; United States v. Alvarez–Machain, 98 AJIL 798 (2004), decided one day after Rasul, that the Alien Tort Statute does not create a private cause of action. Id. at 2761. The Court also held, though, that federal courts have the power to create a federal common law cause of action for certain violations of international law. Id. at 2764–65. Thus, Sosa might reasonably be construed to authorize judicial creation of a federal common law cause of action for some of the international law claims advanced by petitioners in Rasul.

46 See, e.g., Erwin Chemerinsky, Federal Jurisdiction 279–80 (3rd ed. 1999)Google Scholar (federal question statute confers jurisdiction on federal district courts to entertain claims in which federal statute creates private right of action).

47 See Jinks, Derek & Sloss, David, Is the President Bound by the Geneva Conventions’? 90 Cornell L. Rev. (forthcoming 2004)Google Scholar (contending that the Administrative Procedure Act creates a private right of action that authorizes suit by the detainees to enjoin the continued use of interrogation methods that violate the Geneva Conventions).

48 See Memorandum from Paul Wolfowitz, Deputy Secretary of Defense, to the Secretary of the Navy (July 7, 2004) (“Order Establishing Combatant Status Review Tribunal”), at <http://www.defenselink.mil/news/Jul2004/d20040707review.pdf>>Google Scholar [hereinafter CSRT Order].

49 See id; see also Memorandum of Gordon England, Secretary of the Navy (July 29, 2004) (“Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base, Cuba”), at <http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf>>Google Scholar .

50 CSRT Order, supra note 48, para. a. The order adds that the term “includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” Id. The broader language quoted above seems purposefully designed, however, to allow an individual to be designated an “enemy combatant” simply by virtue of association with Al Qaeda, even if that individual did not directly support hostilities.

51 Liptak, Adam, In First Rulings, Military Tribunals Uphold Detentions of 4, N.Y. Times, Aug. 14, 2004 Google Scholar, at A11. As of October 1, the CSRTs had completed hearings for 115 detainees. See T, Kadileen. Rhem, Annual Reviews of Detainee Cases to Begin at Guantanamo, American Forces Press Service, at <http://www.defenselink.mil/news/Oct2004>>Google Scholar . In one of those cases, the tribunal ruled that die detainee was not properly classified as an enemy combatant. See id.

52 CSRT Order, supra note 48, para. i.

53 Geneva Convention [No. I] for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949,6 UST 3114, 75UNTS31 [hereinafter First Geneva Convention]; Geneva Convention [No. II] for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949,6 UST 3217,75 UNTS 85 [hereinafter Second Geneva Convention]; Geneva Convention [No. Ill] Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 [hereinafter Third Geneva Convention]; Geneva Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 Google Scholar, 6 UST 3516, 75 UNTS 287 [hereinafter Fourth Geneva Convention].

54 Clearly, the courts owe deference to the factual findings that support the CSRTs’ designation of an individual as an “enemy combatant.” Nevertheless, the conclusion that a particular individual is an “enemy combatant” is a legal one. Therefore, since the CSRTs are made up primarily of military officers who are not lawyers, the courts should not defer to the tribunals’ legal conclusions. See CSRT Order, supra note 48, para, (e) (“A Tribunal shall be composed of three neutral commissioned officers of the U.S. Armed Forces.... One of the members shall be a judge advocate.”)

55 84 Cong. Rec. 9958, 9972–73 (1955).

36 U.S. CONST. Art. VI, cl. 2.

37 See Restatement (Third) of the Foreign Relations Law of the United States §115(2) (1987)Google Scholar (“A provision of a treaty of the United States that becomes effective as law of the United States supersedes as domestic law any inconsistent preexisting provision of a law or treaty of the United States.”).

58 See, e.g., Chae Chan Ping v. United States, 130 U.S. 581,600–02 (1889); Whitney v. Robertson, 124 U.S. 190, 193–95 (1888); Edye v. Robertson, 112 U.S. 580, 597–99 (1884).

59 See, e.g., Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529U.S. 120(2000) (invalidating FDA regulations that conflicted with Food, Drug and Cosmetic Act); MCI Telecomm. v. Am. Tel. & Tel. Co., 512 U.S. 218 (1994) (invalidating FCC rule that conflicted with Federal Communications Act); City of Chicago v. Envtl. Def. Fund, 511 U.S. 328 (1994) (invalidating EPA rule that conflicted with Resource Conservation and Recovery Act).

60 For fuller development of this argument, see Jinks & Sloss, supra note 47. If a later regulation is promulgated on the basis of an express grant of statutory authority, and if the statute authorizes regulations inconsistent with a prior treaty, then the regulation would arguably trump the treaty. None of the administration regulations concerning the Guantànamo Bay detainees is supported, however, by a statute authorizing regulations inconsistent with the Geneva Conventions. See id.

61 The government’s classification scheme is based primarily on an executive order adopted by President Bush. See Detention, Treatment, and Trial of Certain Non–citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (2001)Google Scholar [hereinafter November 2001 Military Order]. That executive order, in turn, invokes the following sources of statutory authority: Pub. L. No. 107–40, 115 Stat. 224 (Sept. 18, 2001) (authorizing the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”); 10 U.S.C. §821 (2000) (addressing the jurisdiction of military commissions); and 10 U.S.C. §836 (2000) (authorizing the president to prescribe rules for trials by military commissions). None of those statutes authorize the president, explicitly or implicitly, to promulgate rules inconsistent with the Geneva Conventions. See Jinks & Sloss, supra note 47. Therefore, regulations enacted pursuant to the November 2001 Military Order lack statutory authorization insofar as those regulations conflict with the Geneva Conventions.

62 See, e.g., Memorandum of Law in Support of Cross–motion to Dismiss at 29–33 (Aug. 6, 2004), Swift v. Rumsfeld (W.D. Wash.) (No. CV04–0777), at <http://www.nimj.com> .

63 See id. (citing, inter alia, Hamdi v. Rumsfeld, 316 F.3d 450, 468–69 (4th Cir. 2003), A1 Odah v. United States, 321 F.3d 1134, 1147 (D.C. Cir. 2003) (Randolph, J., concurring), Tel–Oren v. Libyan Arab Republic, 726 F.2d 774, 808–10 (D.C. Cir. 1984) (Bork, J., concurring)). The Supreme Court handed down its decision in Hamdi, 124 S.Ct. 2633, the same day as Rasul. Hamdi is discussed in a case report by Martinez, Jenny S.. at 98 AJIL 782 (2004)Google Scholar.

64 28 U.S.C. §2241(c)(3) (2000) (emphasis added).

65 Only three published judicial decisions have explicitly addressed the status of the Geneva Conventions under the Supremacy Clause; all three agree that the Conventions are the law of the land. See Padilla ex rel. Newman v. Bush, 233 F.Supp.2d 564, 590 (S.D.N.Y. 2002); United States v. Lindh, 212 F.Supp.2d 541, 553–54 (E.D. Va. 2002); United States v. Noriega, 808 F.Supp. 791, 794 (S.D. Fla. 1992).

66 This statement requires two caveats. First, the Conventions differ from some treaties in that they are manifestly intended to create primary rights for individuals. Treaties that create only horizontal duties between states, rather than vertical duties owed by states to individuals, do not create primary rights for individuals and are therefore not judicially enforceable at the behest of private individuals. See, e.g., Edye v. Robertson (Head Money Cases), 112 U.S. 580, 598(1884) (distinguishing between treaties that are “primarily . . . compact[s] between independent nations” and treaties that “confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other”).

Second, in consenting to ratification of a particular treaty, the Senate could presumably adopt a condition to exempt that treaty from the general application of the federal habeas corpus statute. One could argue that recent non–self–executing declarations attached to human rights treaties have that effect. The Senate did not adopt any such condition, however, when it consented to ratification of the Geneva Conventions. There is also no evidence in the Senate record associated with ratification of the Conventions that the Senate intended to exempt the Conventions from the general application of the habeas statute.

67 November 2001 Military Order, supra note 61. Among other things, the military order authorized the Secretary of Defense to issue regulations for trials before military commissions. As of July 2004, the president had determined that fifteen detainees were eligible for trial by military commission pursuant to the military order. See Dep’t of Defense News Release, Presidential Military Order Applied to Nine More Combatants (July 7,2004). As of this writing, charges have been filed against only four detainees. See Dept’ of Defense News Release, Military Commission Charges Referred (June 29, 2004)Google Scholar (naming three individuals who have been charged); Dep’t of Defense News Release, Additional Military Commission Charges Referred (July 14, 2004)Google Scholar (naming one additional defendant). The Navy officer assigned to represent Salim Ahmad Hamdan, one of the detainees who has been charged, has filed a petition in federal court challenging the validity of the military commissions. See Petition for Writ of Mandamus Pursuant to 28 U.S.C. §1361 or, in the Alternative, Writ of Habeas Corpus (Apr. 6, 2004), Swift v. Rumsfeld (W.D. Wash.) (CV04–0777), at <http://www.nimj.com> .

There is already a sizable literature analyzing the validity of die military commissions. See, e.g., Dickinson, Laura, Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law, 75 S. Cal. L. Rev. 1407 (2002)Google Scholar; Neal Kumar, Katyal & Tribe, Laurence, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 Yale L.J. 1259 (2002)Google Scholar; Mundis, Daryl A.. The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts, 96 AJIL 320 (2002)Google Scholar; Paust, Jordan, Antiterrorism Military Commissions: Courting Illegality, 23 Mich. J. Int’l L. 1 (2001)Google Scholar. For a thorough analysis of conflicts between the military commission regulations and U.S. obligations under the Geneva Conventions, see Cassel, Douglass & Arimond, Bridget, Violations of International Human . Rights and Humanitarian Law Arising from Proposed Trials Before United States Military Commissions (2004)Google Scholar (on file with author).

68 See Jinks & Sloss, supra note 47 (contending that the interrogation methods employed by the government at Guantánamo Bay violate detainees’ rights under the Geneva Conventions).

69 See Memorandum from George W. Bush, President, to the Vice President, the Secretaries of State and Defense, the Attorney General, and Other Officials (Feb. 7,2002) (“Humane Treatment of al Qaeda and Taliban Detainees”) [hereinafter, Bush memorandum]. Many of the U.S. government memoranda concerning the treatment of detainees can be found on the Web site of Georgetown University’s online National Security Archive, <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/index.htm> [hereinafter Georgetown University archive].

70 Id., para. 2(a).

71 Id., para. 2(d). For Third Geneva Convention, see supra note 53.

72 Bush memorandum, supra note 69, para. 2(c).

73 See Geneva Conventions, supra note 53, common Article 2 (stating that the Conventions “apply to all cases of. . . armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”). Currently, there are 191 states parties to the Conventions. See Int’l Comm. of the Cross, Red, Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977: Ratifications, Accessions and Successions, at <http://www.icrc.org/eng/party_gc>>Google Scholar (documenting 191 ratifications as of October 2004). Thus, under common Article 2, the Conventions apply to almost every armed conflict between states.

74 Geneva Conventions, supra note 53, common Article 3.

75 See Jinks, Derek, September Hand the Laws of War, 28 Yale J. Int’l L. 1, 38–41 (2003)Google Scholar.

76 See Third Geneva Convention, supra note 53, Art. 4(A)(2) (granting POW protections to members of militias and volunteer corps who are not members of the armed forces of a party); see also Jean De, Preux, Geneva Convention Relative to the Treatment of Prisoners of War: Commentary 57 (Jean S. Pictet gen. ed., A. P. de Heney trans., 1960)Google Scholar (noting that militias other than the armed forces of a party “must be fighting on behalf of a Party to the conflict in the sense of Article 2, otherwise the provisions of Article 3 relating to non–international conflicts are applicable”).

77 The merits of the government’s position turn on the interpretation of Article 4(A) of the Third Geneva Convention, supra note 53. Article 4(A)(1) states that” [m]embers of the armed forces of a party to the conflict” qualify as POWs. Hence, the Taliban detainees arguably qualify as POWs under this provision. Article 4(A)(2) states, however, that “[m]embers of other militias and members of other volunteer corps” must satisfy four criteria in order to qualify as POWs: “(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.” The administration claims that the Taliban detainees do not qualify as POWs because they fail to satisfy the conditions in Article 4(A)(2). See, e.g., Memorandum from Bybee, Jay S.. Assistant Attorney General, to Alberto R. Gonzales, Counsel to the President (Feb. 7, 2002)Google Scholar (“Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949”), at Georgetown University archive, supra note 69 . However, individuals who are “members of the armed forces of a Party” under Article 4(A)(1) arguably qualify as POWs regardless of whether they satisfy the four criteria in Article 4(A)(2). See, e.g., Aldrich, George H.. New Life for the Laws of War, 75 AJIL 764, 768–69 (1981)Google Scholar. Since many of the Taliban detainees were apparently members of the armed forces of Afghanistan, they can make a strong case that they are entitled to POW status.

78 Fourth Geneva Convention, supra note 53, Art. 4.

79 On June 22, 2004, the administration declassified a large volume of documents that shed light on the internal deliberations resulting in the president’s decision regarding the application of the Geneva Conventions to the Guantánamo Bay detainees. See Press Briefing by White House Counsel Judge Alberto Gonzales (June 22, 2004) (discussing the declassified documents), at <http://www.whitehouse.gov/news/releases/2004>>Google Scholar . Some of the key documents are discussed in Murphy, Sean A. Contemporary Practice of the United States, 98 AJIL 820 (2004)Google Scholar. Remarkably, in all of these documents, there is not even a single sentence discussing the application of Article 4 of the Fourth Geneva Convention to the Taliban detainees. As noted previously, many of these documents can be found online at the Georgetown University archive, supra note 69.

80 See White House Fact Sheet: Status of Detainees at Guantanamo (Feb. 7, 2002) (stating that the Fourth Geneva Convention applies to “civilian non–combatants who are interned or otherwise found in the hands of a party”), at <http://www.whitehouse.gov/news/releases/2002/02/20020207–13.html> . The White House issued the fact sheet on the same day that President Bush rendered his decision about the status of the detainees under the Geneva Conventions. As suggested in the preceding footnote, the declassified documents do not contain any legal analysis supporting the claim that the Fourth Geneva Convention applies only to noncombatants.

81 For a more detailed explanation of the application of the Fourth Geneva Convention to unlawful combatants, see Jinks, Derek, The Declining Significance of POW Status, 45 Harv. Int’l L.J. 367, 381–97 (2004)Google Scholar.

82 The three exceptions are set forth in Article 4 of the Fourth Geneva Convention, supra note 53. First, persons protected by one of the other three Geneva Conventions are not protected by the Fourth Geneva Convention. Under die administration’s position, the Taliban detainees do not fit within this exception since they are ostensibly not protected under the Third Geneva Convention. Second, “Nationals of a State which is not bound by the Convention are not protected by it.” Assuming that the Taliban detainees are nationals of Afghanistan, they do not fit within this exception because Afghanistan is a party to the Convention. Third, “Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co–belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.” Again assuming that the Taliban detainees are Afghan nationals, this exception does not apply since they are not nationals of either a neutral state or a co–belligerent state. To the contrary, in the context of the international armed conflict between the United States and Afghanistan, they are nationals of an enemy state.

83 Fourth Geneva Convention, supra note 53, Art. 5.

84 Id.

85 This statement assumes that the A1 Qaeda detainees do not qualify as POWs since they do not satisfy the four criteria set forth in Article 4(A)(2) of the Third Geneva Convention. See supra note 77.

86 Third Geneva Convention, supra note 53, Art. 118.

87 Fourth Geneva Convention, supra note 53, Art. 42.

88 Id., Art. 132.

89 Id., Art. 133; see also id., Art. 5 (“Where in the territory of a Party to the conflict, . . . an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.”).

90 There may be some A1 Qaeda detainees protected only by common Article 3 who satisfy the administration’s definition of “enemy combatant” but who did not engage in belligerent activities against die United States. See supra note 50. In such cases, courts should directly address the question whether continued detention is consistent with the customary laws of war.

91 See, e.g., R, Alberto. Gonzales, , Counsel to die President, Remarks Before die American Bar Association Standing Committee on Law and National Security (Feb. 24, 2004)Google Scholar, reprinted in 150 Cong. Rec. S2701–05 (Mar. 11, 2004).

92 317 U.S. 1 (1942).

93 See supra notes 55–61 and accompanying text.

94 Justice Souter made a similar point in his separate opinion in the Hamdi case. See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2657–59 (2004) (Souter, J., concurring in part, dissenting in part).