alter and pro tanto abrogate the treaty is not to be lightly attributed to

Alter and pro tanto abrogate the treaty is not to be

This preview shows page 34 - 36 out of 45 pages.

alter, and, pro tanto, abrogate, the treaty, is not to be lightly attributed to Congress”); Chew Heong v. United States , 112 U.S. 536, 549 (1884). 20 20 Before the military commission, the government argued that the MCA applies to juveniles because, by its terms, it applies to “ a person who has engaged in hostilities,” 10 U.S.C. § 948a(1)(A)(i) (emphasis added), and because the Dictionary Act defines “person” to include “individuals” without reference to age. 1 U.S.C. § 1. But that definition does not apply where— as here—“the context indicates otherwise.” Rowland v. California Men’s Colony , 506 U.S. 194, 34
Image of page 34
* * * * * In sum, in light of the domestic and military-law background against which the MCA was enacted, the presumption against repeals by implication, the presumption in favor of reading statutes as consistent with treaty obligations, and the MCA’s total silence regarding juveniles, the MCA cannot be read to confer jurisdiction over juveniles. This Court should therefore enjoin any further MCA military commission proceedings against Petitioner, and order Petitioner released from pre-trial detention. III. PETITIONER CANNOT BE DETAINED AS A “MEMBER” OF AL-QAIDA BECAUSE JUVENILES CANNOT BE “MEMBERS” OF ARMED GROUPS Petitioner’s detention as a putative “enemy combatant” is also contrary to U.S. law. Under U.S. law, an individual can be “properly detained” at Guantánamo Bay only if a CSRT concludes that he is properly classified as an “enemy combatant.” DTA, § 1005(e)(2)(A). As noted above, the CSRT in Petitioner’s case found that Petitioner was an “enemy combatant” subject to continuing detention at Guanatanmo Bay solely because he was a “member of, or affiliated with al-Qaeda.” CSRT Cover Sheet at ¶ 3 (Kuebler Affidavit, Exhibit 7). But under U.S. law, Petitioner cannot be a “member” or “affiliate[]” of al-Qaeda, because he was a juvenile when he allegedly committed the offenses for which he is being detained. At least two sources of law compel this result. The first is the Authorization for Use of Military Force (“AUMF”), Pub. L. No. 107-40 (codified at 50 U.S.C. § 1541 note). The AUMF gives the President authority to detain persons connected with the nations or organizations involved in the September 11, 2001 terrorist attacks. But that authority is limited to detention 200 (1993). Indeed, a Dictionary Act definition is displaced not only where a statute provides an explicit, alternative definition, but where an “indication” exists to suggest the Dictionary Act definition would be a “poor fit” and a different reading of the statute would be appropriate. Rowland , 506 U.S. at 200. That rule should be applied generously to prevent “the court from forcing a square peg into a round hole.” Id. In light of the numerous “indication[s]” discussed in the text, the Dictionary Act definition is plainly not controlling.
Image of page 35
Image of page 36

You've reached the end of your free preview.

Want to read all 45 pages?

  • Summer '16
  • Ramon Wawire
  • Supreme Court of the United States, Habeas corpus, Hamdan v. Rumsfeld, Boumediene v. Bush, military commission

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern

Stuck? We have tutors online 24/7 who can help you get unstuck.
A+ icon
Ask Expert Tutors You can ask You can ask You can ask (will expire )
Answers in as fast as 15 minutes
A+ icon
Ask Expert Tutors