24 Some courts have held that in order to form the basis for a habeas claim a

24 some courts have held that in order to form the

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24 Some courts have held that, in order to form the basis for a habeas claim, a treaty must be self-executing. See Wang v. Ashcroft , 320 F.3d 130, 140 (2d Cir. 2003). Initially, it is not clear that this is always true. See Atuar v. United States , 156 Fed. Appx. 555, 564 n.12 (4th Cir. 2005) (unpublished) (“[W]e recognize the possibility that a habeas corpus petition may require a court to review a particular detention in light of a non-self-executing but constitutionally ratified treaty.”). But in any event, the Child Soldier Protocol is self-executing. Its relevant language is mandatory, not aspirational, providing that States Parties “ shall cooperate in . . . the rehabilitation and social reintegration of persons who are victims of acts contrary” to the Protocol. Child Soldier Protocol, art. 7(1) (emphasis added); cf. Medellin v. Texas , 128 S. Ct. 1346, 1358 (2008) (concluding that Article 94 of the U.N. Charter was not self-executing because it did “not provide that the United States ‘shall’ or ‘must’ comply” with its terms). Furthermore, unlike the other treaty ratified the same day, and unlike in the case of all other human rights treaties the United States has ratified over the past 20 years, the United States filed no reservation stating that any part of the Protocol was not self-executing. Cf . 148 Cong. Rec. S.5717, 5719 (daily ed. June 18, 2002) (Sec. 4 Declaration: “the provisions of the [Sale of Children Optional Protocol] … are non-self-executing”); 136 Cong. Rec. S.17486-01 (daily ed., Oct. 27, 1990) (declaring certain provisions of the Convention against Torture non-self- 39
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well. * * * * * In sum, Petitioner cannot be detained as an “enemy combatant” on the Government’s asserted basis. Under the Secretary of Defense’s CSRT Order, if a CSRT “determines that the detainee shall no longer be classified as an enemy combatant . . . . [t]he Secretary or his designee shall so advise the Secretary of State, in order to permit the Secretary of State to coordinate the transfer of the detainee for release to the detainee’s country of citizenship or other disposition consistent with domestic and international obligations and the foreign policy of the United States.” July 7 Order ¶ i (Kuebler Affidavit, Exhibit 6). Accordingly, consistent with the Secretary’s Order, this Court should direct that Petitioner be transferred to his country of citizenship, Canada. In Canada, Petitioner can be placed into a mandatory rehabilitation and reintegration program consistent with the requirements of the Child Soldier Protocol. See Affidavit of Professor Anthony N. Doob (attached to Kuebler Affidavit as Exhibit 9). IV. PETITIONER CANNOT CONTINUE TO BE DETAINED AS AN ADULT Even if the Court holds that Petitioner can be properly considered a “member” or “affiliate[]” of al-Qaeda despite his juvenile status—or even if Petitioner could be detained on some other basis—he cannot continue to be detained, as he has been to date, as an adult. As discussed, the President’s authority to detain prisoners under the AUMF is limited by the laws of war. And, beyond holding that juveniles cannot be “members” or “affiliates” of armed groups, the law of war
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  • Summer '16
  • Ramon Wawire
  • Supreme Court of the United States, Habeas corpus, Hamdan v. Rumsfeld, Boumediene v. Bush, military commission

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