In the United States Court of Appeals for the District of Columbia Circuit

Transcription

1 USCA Case # Document # Filed: 11/22/2011 Page 1 of 38 Oral Argument Not Yet Scheduled No In the United States Court of Appeals for the District of Columbia Circuit SALIM AHMED HAMDAN, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT. APPEAL FROM THE COURT OF MILITARY COMMISSION REVIEW (CASE NO. CMCR ) BRIEF OF CONSTITUTIONAL LAW SCHOLARS AS AMICI CURIAE SUPPORTING THE PETITIONER S CONSTITUTIONAL ARGUMENTS KIMBALL R. ANDERSON GENE C. SCHAERR Winston & Strawn LLP ADÈLE AUXIER KEIM 35 W. Wacker Drive Winston & Strawn LLP Chicago, Illinois K Street N.W. (312) Washington, D.C kanderson@winston.com (202) gschaerr@winston.com Counsel for Amici Curiae Constitutional Law Scholars

2 USCA Case # Document # Filed: 11/22/2011 Page 2 of 38 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici All parties and amici appearing before the Court of Military Commission Review are listed in the Brief for Petitioner. B. Rulings Under Review References to the rulings at issue appear in the Brief for Petitioner. C. Related Cases Counsel is not aware at this time of any other related case within the meaning of D.C. Cir. Rule 28(a)(1)(C). DATED: November 22, 2011 By: /s/ Gene C. Schaerr Counsel for Amici Curiae Constitutional Law Scholars C-1

3 USCA Case # Document # Filed: 11/22/2011 Page 3 of 38 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii GLOSSARY OF ABBREVIATIONS... vi INTEREST OF AMICI CURIAE... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 I. AT THE TIME OF THE FRAMING OF THE CONSTITUTION, THE LAW OF NATIONS REFERRED TO A COMMON SET OF INTERNATIONALLY RECOGNIZED NORMS THAT NO STATE COULD UNILATERALLY CREATE OR MODIFY II. III. IN KEEPING WITH THE LATE EIGHTEENTH CENTURY UNDERSTANDING OF THE LAW OF NATIONS, THE FRAMERS INTENTIONALLY AND EXPLICITLY LIMITED THE OFFENSES CLAUSE TO EXISTING INTERNATIONAL LAW NORMS THE SUPREME COURT HAS CONSISTENTLY APPLIED THE OFFENSES CLAUSE ONLY TO EXISTING INTERNATIONAL LAW NORMS CONCLUSION ADDENDUM... 1a APPENDIX... A-1 i

4 USCA Case # Document # Filed: 11/22/2011 Page 4 of 38 TABLE OF AUTHORITIES CASES Page(s) * Application of Yamashita, 327 U.S. 1 (1946) *Boos v. Barry, 485 U.S. 312 (1988)... 18, 19 Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)... 6 *Ex Parte Quirin, 317 U.S. 1 (1942)... 17, 18 Madsen v. Kinsella, 343 U.S. 341 (1952) Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (1784)... 5 Ross v. Rittenhouse, 2 Dall. 160 (Pa. 1792)... 4 Schick v. United States, 195 U.S. 65 (1904)... 3 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) Talbot v. Jansen, 3 U.S. (3 Dall.) 133 (1795) *The Paquete Habana, 175 U.S. 677 (1900)... 19, 20 * Authorities upon which we chiefly rely are marked with asterisks. ii

5 USCA Case # Document # Filed: 11/22/2011 Page 5 of 38 *United States v. Arjona, 120 U.S. 479 (1887)... 16, 17 *United States v. Furlong, 18 U.S. (5 Wheat.) 184 (1820)... 12, 13, 14 United States v. Smith, 18 U.S. 153 (1820) Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796)... 6 Wilson v. McNamee, 102 U.S. (12 Otto) 572 (1880) STATUTES, CONSTITUTIONAL PROVISIONS, TREATIES, AND RULES Alien Tort Statute ( ATS ), 28 U.S.C Military Commissions Act of 2006, Pub. L. No , 120 Stat , 2 U.S. Const. art. I, 8, cl , 2, 3, 8, 10, 12, 14 15, 16, 17, 18, 19, 20, 21 U.S. Const. amend. I Vienna Convention on Diplomatic Relations, April 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S D.C. Circuit Rule 29(c)(5)... 1 D.C. Circuit Rule 29(d)... 1 OTHER AUTHORITIES John Quincy Adams, The Jubilee of the Constitution (New York, Samuel Colman 1839)... 15, 16 Albert W. Alschuler, Rediscovering Blackstone, 145 U. Pa. L. Rev. 1 (1996)... 3 iii

6 USCA Case # Document # Filed: 11/22/2011 Page 6 of 38 Bernard Bailyn, The Ideological Origins of the American Revolution (enl. ed. 1992)... 5 *William Blackstone, Commentaries on the Laws of England... 3, 4, 5, 12, 13 *Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law, 48 Harv. Int l L.J. 121 (2007)... 11, 12 *The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 1836) Edwin D. Dickinson, The Law of Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26 (1952)... 4 *Documentary History of the Supreme Court of the United States, (Maeva Marcus ed., 1988)... 6, 7 *Stewart Jay, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819 (1989)... 5, 13 *Eugene Kontorovich, Beyond the Article I Horizon: Congress s Enumerated Powers and Universal Jurisdiction Over Drug Crimes, 93 Minn. L. Rev (2009)... 15, 16 *Eugene Kontorovich, The Define and Punish Clause and the Limits of Universal Jurisdiction, 103 Nw. U. L. Rev. 149 (2009) Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev (1985)... 4 *Military Commissions, 11 U.S. Op. Att y Gen. 297 (1865) W. Paterson, Paterson Papers (n.p. circa 1795) iv

7 USCA Case # Document # Filed: 11/22/2011 Page 7 of 38 Charles Pergler, Constitutional Recognition of International Law, 30 Va. L. Rev. 318 (1944) *Records of the Federal Convention of 1787 (Max Farrand ed., 1937)... 8, 9, 10 Charles D. Siegal, Deference and Its Dangers: Congress Power to Define... Offenses Against the Law of Nations, 21 Vand. J. Transnat l L. 865 (1988) *Beth Stephens, Federalism and Foreign Affairs: Congress s Power to Define and Punish... Offenses Against the Law of Nations, 42 Wm. & Mary L. Rev. 447 (2000) Territorial Rights Florida, 1 U.S. Op. Att y Gen. 68 (1797)... 7 Emerich de Vattel, The Law of Nations... 16, 19 George W. Wickersham, Presentation of Blackstone Memorial (July 20, 1924), in 10 A.B.A. J. 571 (1924)... 3 Quincy Wright, War Criminals, 39 Am. J. Int l L. 257 (1945)... 7 Who Privileged from Arrest, 1 U.S. Op. Att y Gen. 26 (1792)... 7, 15 v

8 USCA Case # Document # Filed: 11/22/2011 Page 8 of 38 GLOSSARY OF ABBREVIATIONS ATS... Alien Tort Statute vi

9 USCA Case # Document # Filed: 11/22/2011 Page 9 of 38 INTEREST OF AMICI CURIAE Amici curiae are scholars of legal history who have written extensively about the meaning of the law of nations in the Constitution and the significance of the law of nations to the framers of the Constitution. 1 Their relevant qualifications are summarized in the Appendix. Amici submit this brief to address one narrow but significant issue underlying the prosecution of Salim Ahmed Hamdan pursuant to the Military Commissions Act of 2006, Pub. L. No , 120 Stat. 2600: the proper interpretation of Congress constitutional power to define and punish... offenses against the law of nations, U.S. Const. art. I, 8, cl. 10 (the Offenses Clause ). Amici respectfully conclude that the Offenses Clause authorizes Congress to impose sanctions for violations of existing international law norms, but not to create new norms. They base their conclusions on their study of the meaning of the law of nations at the time of the framing of the Constitution; the discussion of the Offenses Clause at the Constitutional Convention and immediately thereafter; and the application of the Clause by the Supreme Court over the past two centuries. Amici take no position in this brief about whether the 1 Counsel certifies that all parties to this appeal have consented to the filing of this brief. Under D.C. Circuit Rule 29(c)(5), counsel further certifies that no party s counsel has authored this brief in whole or in part and that no one has contributed money that was intended to fund preparing or submitting this brief. Under D.C. Circuit Rule 29(d), counsel also certifies that a separate amicus brief is required for the Constitutional Scholars because their views are distinct from the other amici filing in support of the petitioner and they take no position on the ultimate issue in the case.

10 USCA Case # Document # Filed: 11/22/2011 Page 10 of 38 particular offense for which Hamdan was convicted constituted a violation of existing international law norms. SUMMARY OF ARGUMENT The framers of the Constitution 2 shared a common understanding of the law of nations as a body of law that reflected the combined practices of many nations, and, therefore, could not be created by any single State. This background assumption was explicitly discussed at the Constitutional Convention and incorporated into the precise language chosen for the Offenses Clause. The framers adopted the Clause with the express intent to permit Congress to impose sanctions for violations of internationally recognized norms of the law of nations, not to create new norms. The Supreme Court has consistently applied the Clause in this limited manner, looking to international law to determine whether the Clause authorized a congressional enactment. As a result, the Offenses Clause served as a constitutional basis for Congress decision to criminalize certain acts in the Military Commissions Act only if those acts violated existing international law norms. 2 For the purposes of this brief, the term framers refers broadly to those who participated in the process of drafting, debating, and ratifying the Constitution, a group often referred to as the founders or the founding generation. 2

11 USCA Case # Document # Filed: 11/22/2011 Page 11 of 38 ARGUMENT The understanding of international law at the time of the framing, the debate about the Offenses Clause at the Constitutional Convention, and the Supreme Court s evaluation of the constitutionality of statutes enacted pursuant to the Clause all confirm that the Offenses Clause only authorizes Congress to sanction violations of existing international law norms, but not to create new norms. I. AT THE TIME OF THE FRAMING OF THE CONSTITUTION, THE LAW OF NATIONS REFERRED TO A COMMON SET OF INTERNATIONALLY RECOGNIZED NORMS THAT NO STATE COULD UNILATERALLY CREATE OR MODIFY. The framers of the Constitution recognized the law of nations as a body of law established by all civilized States that could not be unilaterally created by any of them. As defined by William Blackstone, the commentator most often relied upon by jurists of the framers generation, 3 [t]he law of nations is a system of rules... established by universal consent among the civilized inhabitants of the world William Blackstone, Commentaries on the Laws of England, at *66. The law of nations, the universal law of society, governed all disputes arising 3 See, e.g., Schick v. United States, 195 U.S. 65, 69 (1904) (discussing the value of turning to Blackstone s Commentaries to understand the legal concepts used by the framers); Albert W. Alschuler, Rediscovering Blackstone, U. Pa. L. Rev. 1, 4-19 (1996) (highlighting the importance of Blackstone s Commentaries in the early years of the nation). The framers relied on Blackstone s definitions of many of the terms they incorporated into the Constitution. George W. Wickersham, Presentation of Blackstone Memorial (July 20, 1924), in 10 A.B.A. J. 571, 578 (1924). 3

12 USCA Case # Document # Filed: 11/22/2011 Page 12 of 38 from the intercourse which must frequently occur between two or more independent states, and the individuals belonging to each. Id. This universal law applied equally to all mankind. Edwin D. Dickinson, The Law of Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, (1952) (citing views of Hugo Grotius and other treatise writers); see also Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071, , (1985) (describing the eighteenth-century understanding of the law of nations as universal). Given that the law of nations was common to all sovereign States, no one State could alter or amend its content. As Blackstone explained, no single nation can dictate or prescribe the rules of this law to the rest; but such rules must necessarily result from those principles of natural justice in which all the learned of every nation agree Blackstone, supra, at * In mercantile questions and in disputes over claims relating to disputes at sea, there is no other rule of decision but this great universal law.... Id. at *67. In a 1792 decision, the Chief Justice of the Pennsylvania Supreme Court emphasized that domestic or municipal law could facilitate or improve the execution of the law of nations by any means they shall think best, provided the great universal law remains unaltered. Ross v. Rittenhouse, 2 Dall. 160, 162 (Pa. 1792) (M Kean, C.J.). 4

13 USCA Case # Document # Filed: 11/22/2011 Page 13 of 38 The content of the law of nations was distilled from reason and justice. Bernard Bailyn, The Ideological Origins of the American Revolution 77 (enl. ed. 1992). Although unwritten, jurists in the late eighteenth century understood it as a body of rules that could be understood and applied in a uniform fashion. Courts and others seeking to apply the law of nations assumed without hesitation that they were referring to an objectively identifiable body of law, and they made use of the standard treatises and other authorities for explicating the doctrine. Stewart Jay, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819, 833 (1989). As Blackstone instructed, the rules of the law of nations were collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of. 4 Blackstone, supra, at *67; see also Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 116 (1784) (Court of Oyer and Terminer, at Philadelphia) (in a prosecution for a violation of the law of nations, holding that the substance of that law is to be collected from the practice of different Nations, and the authority of writers. ). The framers of the Constitution and the early leaders of the United States repeatedly referred to the law of nations as a body of laws common to many nations. Chief Justice John Jay, for example, wrote in 1790 that the law of nations was [p]art of the Laws of this, and of every other civilized Nation. Charge to the Grand Jury of the Circuit Court for the District of New York (Apr. 12, 1790), 5

14 USCA Case # Document # Filed: 11/22/2011 Page 14 of 38 reprinted in 2 Documentary History of the Supreme Court of the United States, , at 25, 29 (Maeva Marcus ed., 1988) (hereinafter, Documentary History of the Supreme Court ). We had become a Nation, Jay said, and, as such we were responsible to others for the observance of the Laws of Nations. Id. at 27. A few years later, he emphasized that the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed.... Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793) (Jay, C.J.). The framers were clear about the universal content of the law of nations, which precluded any one State from modifying its norms. Before a grand jury in 1791, for instance, Justice James Wilson stated that no state or states can... alter or abrogate the law of nations.... Charge to the Grand Jury of the Circuit Court for the District of Virginia (May 23, 1791), reprinted in 2 Documentary History of the Supreme Court, supra, at 166, 179. A few years later, Wilson declared that [w]hen the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement. Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796) (Wilson, J.). Justice Iredell instructed a grand jury in 1794 that [e]ven the Legislature cannot rightfully control [the law of nations]. Charge to the Grand Jury of the Circuit Court for the District of South Carolina 6

15 USCA Case # Document # Filed: 11/22/2011 Page 15 of 38 (May 12, 1794), reprinted in 2 Documentary History of the Supreme Court, supra, at 454, 467. In similar terms, George Nicholas observed at the Virginia ratifying convention in 1788 that the law of nations was permanent and general. 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 502 (Jonathan Elliot ed. 1836). Attorney General Edmund Randolph declared soon after the ratification of the Constitution that the law of nations could not be altered by any one State, except on points of indifference : The law of nations, although not specially adopted by the constitution or any municipal act, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation, subject to modifications on some points of indifference. Indeed a people may regulate it so as to be binding upon the departments of their own government, in any form whatever; but with regard to foreigners, every change is at the peril of the nation which makes it. Who Privileged from Arrest, 1 U.S. Op. Att y Gen. 26, 27 (1792); accord Territorial Rights Florida, 1 U.S. Op. Att y Gen. 68, 69 (1797) (Att y Gen. Charles Lee) ( The common law has adopted the law of nations in its fullest extent, and made it a part of the law of the land. ). 4 In these statements, leading jurists from the generation that framed the Constitution reiterated the common understanding of their time about the law of 4 See also Quincy Wright, War Criminals, 39 Am. J. Int l L. 257, 280 n.113 (1945) (describing eighteenth-century jurists as holding the view that a state may have jurisdiction, in certain circumstances, to apply and enforce the law [of nations] but not to make it. ). 7

16 USCA Case # Document # Filed: 11/22/2011 Page 16 of 38 nations: as a product of the combined efforts of many nations, the law of nations could not be created by the United States or by any one nation. This assumption established the framework for the inclusion of the power to define and punish... offenses against the law of nations in the U.S. Constitution, and, therefore, it helps explain the framers intent when they chose the precise language of the Offenses Clause. Moreover, as explained in the following section, the discussion of the Clause at the Constitutional Convention confirmed that it granted Congress the power to clarify, but not to create, international law norms. II. IN KEEPING WITH THE LATE EIGHTEENTH CENTURY UNDERSTANDING OF THE LAW OF NATIONS, THE FRAMERS INTENTIONALLY AND EXPLICITLY LIMITED THE OFFENSES CLAUSE TO EXISTING INTERNATIONAL LAW NORMS. The drafting history of the Offenses Clause clearly demonstrates that the framers intended to grant Congress the power to clarify existing international law norms, but not to create new norms. This legislative power was consistent with the framers understanding of the role of domestic legislatures in implementing international law. A concern with preventing and punishing violations of international law was one of the moving forces behind the drive to replace the Articles of Confederation with a new Constitution. Randolph listed as one of the chief defects of the Confederation its inability to cause infractions of treaties or of the law of nations, 8

17 USCA Case # Document # Filed: 11/22/2011 Page 17 of 38 to be punished. 1 Records of the Federal Convention of 1787 at 19 (Max Farrand ed., 1937) [hereinafter Farrand] (Madison s notes, May 29, 1787). Randolph noted that the Confederation had no power to compel the states to comply with international law, id. at (McHenry s notes, May 29, 1787), and complained that [i]f the rights of an ambassador be invaded by any citizen it is only in a few States that any laws exist to punish the offender, id. at 25. Randolph included in his recommendations to the Constitutional Convention a proposal to grant Congress the legislative power [t]o provide tribunals and punishment for mere offences against the law of nations. Id. at 137, 143 (Committee of Detail, Outline in Randolph s handwriting). A similar power was included in the Committee of Detail s report, framed as the power to declare the law and punishment... of offences against the law of nations... and included in a clause that also addressed piracy, felonies committed on the high seas, and counterfeiting. Id. at (Madison s notes, Aug. 6, 1787). At the Convention, Oliver Ellsworth suggested slight modifications to the clause that granted the legislature the power to define and punish rather than to declare the law and punishment of the listed abuses. Id. at 316. Farrand s records contain no mention of offenses against the law of nations when these changes were inserted. The Committee on Style then pulled the provision on counterfeiting into its own clause and proposed a slightly different version of the Offenses Clause: 9

18 USCA Case # Document # Filed: 11/22/2011 Page 18 of 38 The Congress... shall have power... to define and punish piracies and felonies committed on the high seas, and punish offences against the law of nations. Id. at With the distinction between the power to define and punish piracy and felonies on the high seas, but only to punish offenses against the law of nations, this language produced the only reported substantive debate on the Offenses Clause: Mr. Govr. Morris moved to strike out punish before the words offences agst. the law of nations[,] so as to let these be definable as well as punishable, by virtue of the preceding member of the sentence. Mr. Wilson hoped the alteration would by no means be made. To pretend to define the law of nations which depended on the authority of all the Civilized Nations of the World, would have a look of arrogance[] that would make us ridiculous. Mr. Govr[:] The word define is proper when applied to offences in this case; the law of (nations) being often too vague and deficient to be a rule. On the question to strike out the word punish (it passed in the affirmative)[.] Id. at The change was accepted by a vote of six to five, and the Clause was adopted as it now stands, id. at 615, granting Congress the power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. This discussion made clear that the framers intended to limit the power to define the law of nations to providing the detail missing from many vague and deficient rules of international law. However, they explicitly rejected granting 10

19 USCA Case # Document # Filed: 11/22/2011 Page 19 of 38 Congress the power to unilaterally adopt new rules. In other words, the Clause grants the power to clarify, but not to create, international law norms. Any other interpretation, as explained by James Wilson in the exchange quoted above, would be ridiculous because the law of nations... depended on the authority of all the Civilized Nations of the World. Modern commentators writing about the Offenses Clause have interpreted the drafting history of the Clause as supporting the view that the framers intended the Clause to grant the power to clarify, but not create, international law norms. One scholar concluded that the drafting history of the Clause made clear that Congress would have the power to punish only actual violations of the law of nations, not to create new offenses. Beth Stephens, Federalism and Foreign Affairs: Congress s Power to Define and Punish... Offenses Against the Law of Nations, 42 Wm. & Mary L. Rev. 447, 474 (2000). Similarly, Professor Colangelo emphasized the restricted scope of the power to define offenses: [T]he founders [did not] intend[] to give Congress free rein to determine offenses against the law of nations; rather, the word define was carefully chosen. It is clear from the drafting history of the Clause that only offenses established by the consent of nations, to use Marshall s phrase, would qualify. Congress could not create offenses, but retained only the second-order authority to assign more definitional certainty to those offenses already existing under the law of nations at the time it legislated. 11

20 USCA Case # Document # Filed: 11/22/2011 Page 20 of 38 Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law, 48 Harv. Int l L.J. 121, 141 (2007). 5 Two additional sources provide support for this understanding of the power granted to Congress by the Offenses Clause. First, this was exactly the role played by the English Parliament when it incorporated international law norms into domestic law. Shortly before the framing of the Constitution, Blackstone explained that Parliament had the power to incorporate existing international norms into English law, but not to alter their substance: [T]he law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the 5 See also Charles D. Siegal, Deference and Its Dangers: Congress Power to Define... Offenses Against the Law of Nations, 21 Vand. J. Transnat l L. 865, 874 (1988) (when exercising the power granted by the Clause, Congress may not create offenses where none exist. ). Charles Pergler, writing in 1944, stated emphatically that the Offenses Clause: gives the Congress no more than the power of definition and punishment, obviously the only possible course, since international law is not, and cannot be, the creation of any one state. Indeed, there is an obiter dictum to the effect that this provision does not permit the Congress to bring within the shelter of this provision any offense not recognized by the international community by arbitrarily declaring it to be one. Charles Pergler, Constitutional Recognition of International Law, 30 Va. L. Rev. 318, 324 (1944) (citing United States v. Furlong, 18 U.S. (5 Wheat.) 184, 198 (1820)); see also id. at 329 ( States cannot declare international law unilaterally. For a rule to become one of international law it must be generally agreed upon or accepted. That is why the Constitution of the United States gives Congress the power to define offenses against the law of nations. ). 12

21 USCA Case # Document # Filed: 11/22/2011 Page 21 of 38 common law, and is held to be a part of the law of the land. And those acts of parliament which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom, without which it must cease to be a part of the civilized world. 4 Blackstone, supra, at *67. As Professor Stewart Jay has explained, the Constitution followed that approach: Consistent with the English tradition, American legislation in an area subject to the law of nations was said to be declaratory of the law of nations, or to have provided a particular manner of enforcing it. Jay, supra, at 828 (quoting Grand Jury Charge, in W. Paterson, Paterson Papers (n.p. circa 1795) and Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 161 (1795) (Iredell, J.)). Any one State could declare its understanding of the law of nations and clarify its terms, but none could unilaterally create new norms or otherwise legislate changes in this common body of law. Second, in an interpretation of Congress power to define and punish piracy, the Supreme Court in 1820 recognized the same limitation on the piracy clause. United States v. Furlong, 18 U.S. (5 Wheat.) 184, (1820). The decision in that case turned on the fact that robbery on the high seas constituted piracy under then-existing international law, but murder on the high seas did not. Id. at 197. Since the statute must be applied by a reference to the punishing 13

22 USCA Case # Document # Filed: 11/22/2011 Page 22 of 38 powers of the body that enacted it, id. at 196, Congress could not criminalize conduct that did not constitute piracy under international law: Nor is it any objection to this opinion, that the law declares murder to be piracy. These are things so essentially different in their nature, that not even the omnipotence of legislative power can confound or identify them.... If by calling murder piracy, it might assert a jurisdiction over that offence committed by a foreigner in a foreign vessel, what offence might not be brought within their power by the same device? The most offensive interference with the governments of other nations might be defended on the precedent. Id. at 198; see also Eugene Kontorovich, The Define and Punish Clause and the Limits of Universal Jurisdiction, 103 Nw. U. L. Rev. 149, (2009) (discussing Furlong). The discussion of the Offenses Clause at the Constitutional Convention, supported by these authorities, confirm the framers explicit intent to grant Congress the power to impose sanctions on existing violations of international law. The power to clarify, but not create, international law was consistent with the framers understanding that international law was the product of the community of nations and could not be unilaterally created by any State. III. THE SUPREME COURT HAS CONSISTENTLY APPLIED THE OFFENSES CLAUSE ONLY TO EXISTING INTERNATIONAL LAW NORMS. Supreme Court decisions discussing violations of international law and the Offenses Clause have consistently recognized that the clause empowers Congress 14

23 USCA Case # Document # Filed: 11/22/2011 Page 23 of 38 to impose sanctions on existing violations of international law, but not to create new norms. In each of these cases, the Supreme Court determined the content of international law by looking at learned treatises, international treaties, and the practices of States 6 : that is, the Court referred to the existing rules of international law to decide whether a statute was properly within the power granted to Congress by the Offenses Clause. 7 As Professor Kontorovich noted, the Court has, from the 6 The Court recognized the proper sources of international law in its 1820 decision in United States v. Smith, 18 U.S. 153, (1820), in which it stated: What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law. 7 Nineteenth-century jurists concurred in the interpretation of the constitutional power to define the law of nations as limited to clarification, not creation, of international law norms. In 1865, for example, the U.S. Attorney General stated expressly that the Constitution granted Congress the power to define, not to make, the law of nations : The laws of nations are expressly made laws of the land by the Constitution, when it says that Congress shall have power to define and punish piracies and felonies committed on the high seas, and offences against the laws of nations. To define is to give the limits or precise meaning of a word or thing in being; to make is to call into being. Congress has power to define, not to make, the laws of nations.... Military Commissions, 11 U.S. Op. Att y Gen. 297, 299 (1865). The Attorney General then quoted Edmund Randolph s statement that the law of nations is essentially a part of the law of the land and subject to modification [only] on some points of indifference, and concluded that Congress may define those laws, but cannot abrogate them, or, as Mr. Randolph says, may modify on some points of indifference. Id. (quoting Who Privileged from Arrest, 1 U.S. Op. Att y Gen. 26 (1792)). In an essay written to celebrate the fiftieth anniversary of the Constitution, John Quincy Adams made the same point, stating that the laws of nations are not 15

24 USCA Case # Document # Filed: 11/22/2011 Page 24 of 38 time of the early Republic, acted as if it can review Congress s definition against the external standard of the Law of Nations. Eugene Kontorovich, Beyond the Article I Horizon: Congress s Enumerated Powers and Universal Jurisdiction Over Drug Crimes, 93 Minn. L. Rev. 1191, 1220 (2009). United States v. Arjona, 120 U.S. 479 (1887), the Court s only extensive discussion of the scope of the Offenses Clause, addressed the constitutionality of a criminal statute that penalized counterfeiting of any bank note or bill issued by a bank or other corporation of any foreign country. Id. at 481. To determine whether the statute fell within the reach of the Offenses Clause, the Court engaged in a lengthy analysis of the international norm prohibiting counterfeiting and found that the obligation of one nation to punish those who, within its own jurisdiction, counterfeit the money of another nation has long been recognized. Id. at 484. The opinion quoted at length from Emerich de Vattel s treatise, The Law of Nations, to show that international law requires that States punish false coiners. Id. The Court concluded that the ancient requirement that States punish the counterfeiting of coins had evolved to include counterfeiting paper securities such as bonds, notes, and bills, including those issued by banks. Id. at In this late nineteenth-century decision, the Court based its constitutional decision on the subject to the legislative authority of any one nation.... [O]ver that law itself, thus expressly recognized, and all-comprehensive as it is, Congress has no alterative power. John Quincy Adams, The Jubilee of the Constitution 71 (New York, Samuel Colman 1839). 16

25 USCA Case # Document # Filed: 11/22/2011 Page 25 of 38 understanding that the conduct at issue violated then-existing international law norms. The Court also emphasized that the law of nations applied equally to all States, noting that, under the law of nations, what is law for one is, under the same circumstances, law for the other. Id. at In a series of decisions as to the constitutionality of military commissions established by Congress pursuant to the power granted by the Offenses Clause, the Supreme Court also emphasized that the power extends only to existing violations of international law. In Ex Parte Quirin, the Supreme Court concluded that Congress had: exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. Ex Parte Quirin, 317 U.S. 1, 28 (1942); accord Madsen v. Kinsella, 343 U.S. 341, 355 n.22 (1952) (quoting Quirin s holding that a military commission s jurisdiction is limited to offenses established by the law of nations). The Quirin 8 In a case decided a few years before Arjona, the Supreme Court quoted Marcus Tullius Cicero in support of the recognition that the law of nations applies uniformly to all States: Speaking of the universal law of reason, justice, and conscience, of which the law of nations is necessarily a part, Cicero said: Nor is it one thing at Rome and another at Athens, one now and another in future, but among all nations it is, and in all time will be, eternally and immutably the same. Lactantius Ins. Div., bk. 7, c.8. Wilson v. McNamee, 102 U.S. (12 Otto) 572, 574 (1880). 17

26 USCA Case # Document # Filed: 11/22/2011 Page 26 of 38 Court then carefully reviewed the charges for which the defendants were prosecuted to determine whether they fell within the internationally recognized law of war, a subset of the law of nations. 9 Similarly, in Application of Yamashita, 327 U.S. 1, 7 (1946), the Court recognized that, pursuant to the power granted by the Offenses Clause, Congress had created a military commission for the trial and punishment of violations of the law of war, which is a part of the law of nations. Congress, in the exercise of the power conferred upon it by Article I, 8, cl. 10 of the Constitution to define and punish * * * Offenses against the Law of Nations * * *, of which the law of war is a part, had * * * recognized the military commission appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war. Id. at 7. The Court examined in detail the relevant international law norms and concluded that charges against General Yamashita adequately allege[d] a violation of the law of war and that the commission therefore had authority to try him. Id. at More recently, the Supreme Court considered the constitutionality of a statute, enacted under the authority of the Offenses Clause, that barred displays of certain critical comments within 500 feet of a foreign government embassy. Boos v. Barry, 485 U.S. 312, (1988). Once again, the Court turned first to an 9 The Court defined the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. Quirin, 317 U.S. at

27 USCA Case # Document # Filed: 11/22/2011 Page 27 of 38 examination of international law, noting that the Vienna Convention on Diplomatic Relations, April 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, which all parties agree represents the current state of international law, required host States to take all appropriate steps... to prevent any disturbance of the peace of the [foreign government] mission or impairment of its dignity. Boos, 485 U.S. at 322 (quoting Vienna Convention art. 22). The Court recognized Congress power under the Offenses Clause to implement the obligations imposed by international law, including the Convention s obligation to protect foreign missions. Id. at 323 (noting that the United States has a vital national interest in complying with international law, and citing Vattel s The Law of Nations as evidence of the longstanding protection afforded to foreign diplomats). The Court found parts of the statute unconstitutional under the First Amendment, however, because the impairment of free speech was broader than necessary to meet the U.S. government s international obligations. Id. at 329. In other cases applying the law of nations, the Supreme Court has also recognized that the evolving law of nations is created and modified by the international community, not by the unilateral actions of the United States or any other nation. In The Paquete Habana, 175 U.S. 677 (1900), for instance, the Court engaged in a lengthy analysis of international law precedents before finding that, 19

28 USCA Case # Document # Filed: 11/22/2011 Page 28 of 38 by the general assent of civilized nations, a rule had grown into a settled rule of international law. Id. at 694. More recently, in Sosa v. Alvarez-Machain, 542 U.S. 692, 733 (2004), the Court evaluated the current state of international law in order to determine whether a brief detention violated the law of nations. Sosa addressed a claim filed under the Alien Tort Statute ( ATS ), 28 U.S.C. 1350, a statute originally enacted in 1789 that grants federal courts jurisdiction over a claim by an alien for a tort... in violation of the law of nations. The Court carefully reviewed the assumptions of the legislators who had enacted the ATS, a group that included many of the men who had also participated in drafting, debating, and ratifying the Constitution. Sosa, 542 U.S. at Sosa held that courts should recognize violations of the law of nations pursuant to the ATS only if the claims rest on a norm of international character accepted by the civilized world.... Id. at 725; see also id. at 737 (rejecting claim because it did not violate a rule that the civilized world accepts as binding... ). The Supreme Court thus recognized that the law of nations is created by the civilized world, not by the United States acting alone. The Supreme Court has analyzed only a handful of times the constitutional reach of Congress power to define and punish... offenses against the law of nations. The cases are remarkably consistent: In each decision, the Court looked 20

29 USCA Case # Document # Filed: 11/22/2011 Page 29 of 38 to existing norms of international law to determine whether Congress actions fell within its powers under the Offenses Clause. These cases indicate that the Clause today means exactly what the framers intended when they drafted the Constitution: that is, the Offenses Clause grants Congress the power to impose sanctions on existing violations of international law, but not to create new norms. CONCLUSION Based on their study of the understanding of the law of nations at the time of the framing of the Constitution, the debates about the Offenses Clause at the Constitutional Convention, and the Supreme Court s application of the Clause since that time, Amici respectfully submit that Congress power under the Offenses Clause is limited to imposing sanctions on existing violations of international law, and does not include the power to create new international law norms. As a result, Congress had no power under the Offenses Clause to create a military commission to prosecute Salim Ahmed Hamdan for offenses that were not violations of existing norms of international law. 21

30 USCA Case # Document # Filed: 11/22/2011 Page 30 of 38 Respectfully submitted, DATED: November 22, 2011 By: /s/ Gene C. Schaerr Counsel for Amici Curiae Constitutional Law Scholars Kimball R. Anderson Gene C. Schaerr Winston & Strawn LLP Adèle Auxier Keim 35 W. Wacker Drive Winston & Strawn LLP Chicago, Illinois K Street N.W. (312) Washington, D.C (202)

31 USCA Case # Document # Filed: 11/22/2011 Page 31 of 38 CERTIFICATION OF COMPLIANCE WITH RULE 32(a) Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: this brief contains 5,631 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); or this brief uses a monospaced typeface and contains lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 14 point font size and Roman type style; or this brief has been prepared in a monospaced typeface using with. DATED: November 22, 2011 By: /s/ Gene C. Schaerr Counsel for Amici Curiae Constitutional Law Scholars

32 USCA Case # Document # Filed: 11/22/2011 Page 32 of 38 CERTIFICATE OF SERVICE U.S. Court of Appeals Docket Number: I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the appellate CM/ECF system on November 22, I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED: November 22, 2011 By: /s/ Gene C. Schaerr Counsel for Amici Curiae Constitutional Law Scholars

33 USCA Case # Document # Filed: 11/22/2011 Page 33 of 38 ADDENDUM

34 USCA Case # Document # Filed: 11/22/2011 Page 34 of 38 TABLE OF CONTENTS Except for the following, all applicable constitutional provisions and statutes are contained in the Addendum to the Brief for Petitioner. U.S. Const. amend. I... 1b Alien Tort Statute, 28 U.S.C (2006)... 1b 1a

35 USCA Case # Document # Filed: 11/22/2011 Page 35 of 38 United States Constitution U.S. Const. amend. I ADDENDUM Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Alien Tort Statute, 1 Stat. 73, 77 (Sept. 24, 1789), codified at 28 U.S.C (2006) 28 U.S.C (2006) Alien s action for tort The district courts shall have original jurisdiction of 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. 1b

36 USCA Case # Document # Filed: 11/22/2011 Page 36 of 38 APPENDIX A-1

37 USCA Case # Document # Filed: 11/22/2011 Page 37 of 38 William R. Casto Professor Casto is a Paul Whitfield Horn University Professor at Texas Tech University. He has written many books and articles on law and politics in the Founding Era. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court relied extensively on his scholarship on the relationship between federal law and the law of nations in the Founding Era. Roger S. Clark Professor Clark is a Board of Governors Professor at Rutgers University School of Law Camden. He has authored or co-authored a dozen books and over 120 articles, focusing on international law and international criminal law, including analysis of the relationship between U.S. constitutional law and international law. Martin Flaherty Professor Flaherty is Leitner Family Professor of International Human Rights Law and Co-Founding Director of the Leitner Center for International Law and Justice at Fordham Law School in New York City. He is also a Visiting Professor at the Woodrow Wilson School of Public and International Affairs at Princeton University. Professor Flaherty has written extensively on constitutional law and history in such publications as the Yale Law Journal, Columbia Law Review, University of Chicago Law Review and the Cato Supreme Court Review. He clerked for Justice White on the U.S. Supreme Court. Elizabeth L. Hillman Professor Hillman is Professor of Law at the University of California Hastings College of the Law in San Francisco, CA. A veteran of the U.S. Air Force, she taught history at the Air Force Academy and at Yale University and constitutional and military law at Rutgers University School of Law Camden. She now teaches military and constitutional law and legal history. Professor Hillman is the author or co-author of two books and numerous articles and book chapters. John V. Orth Professor Orth is William Rand Kenan, Jr. Professor of Law at the University of North Carolina. He has written on a variety of topics in constitutional law, including The Judicial Power of the United States: The Eleventh Amendment in American History (OUP 1987), Due Process of Law: A Brief History (Kansas 2003), and How Many Judges Does It Take to Make a Supreme Court? And Other Essays on Law and the Constitution (Kansas 2006). The Supreme Court has repeatedly cited his scholarship. A-2

38 USCA Case # Document # Filed: 11/22/2011 Page 38 of 38 Michael D. Ramsey Professor Ramsey is a Professor of Law at the University of San Diego School of Law, where he teaches and writes in the areas of constitutional law, foreign relations law and international law. He is the author of The Constitution's Text in Foreign Affairs (Harvard University Press 2007) and of numerous articles on foreign relations law in publications such as the Yale Law Journal, the University of Chicago Law Review, the Georgetown Law Journal and the American Journal of International Law. He co-edited a book on the history of international law in the U.S. Supreme Court (Cambridge University Press 2011). Prior to teaching, he served as a judicial clerk for Justice Antonin Scalia of the United States Supreme Court. Richard D. Rosen Professor Rosen is a Professor of Law at Texas Tech University School of Law. He is also Director of Texas Tech s Center for Military Law & Policy and teaches constitutional law and international human rights and international humanitarian law. Professor Rosen retired in 2003 as a colonel from the U.S. Army Judge Advocate General s Corps, where his assignments included Staff Judge Advocate of the 1st Cavalry Division, Staff Judge Advocate of III Armored Corps and Fort Hood, Deputy Legal Counsel to the Chairman of the Joint Chiefs of Staff, and Commandant of the Army's Judge Advocate General's School. David Sloss Professor Sloss is Professor of Law and Director of the Center for Global Law and Policy at Santa Clara University School of Law. He co-edited a book on the history of international law in the U.S. Supreme Court (Cambridge University Press 2011). He has published numerous law review articles on the history of U.S. foreign affairs law. Beth Stephens Professor Stephens is a Professor of Law at Rutgers University School of Law Camden. She has written extensively on the relationship between international law and U.S. domestic law and on the meaning of the "law of nations" at the time of the drafting and ratification of the Constitution. Her publications include an analysis of the reach of the Offenses Clause: Federalism and Foreign Affairs: Congress' Power to "Define and Punish... Offenses Against the Law of Nations", 42 Wm. & Mary L. Rev. 447 (2000). A-3