[Oral Argument Not Yet Scheduled] No. 11-1257 IN THE ......(CASE NO. CMCR-09-0002) _____ BRIEF OF AMICUS CURIAE PROFESSOR DAVID GLAZIER IN SUPPORT OF PETITIONER AND REVERSAL John S

[Oral Argument Not Yet Scheduled] No. 11-1257

_____________________________________________________ IN THE

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

_____________________________________________________

Salim Ahmed Hamdan, Petitioner,

v. United States of America,

Respondent. ________________________________________________

ON APPEAL FROM THE COURT OF MILITARY COMMISSION REVIEW

(CASE NO. CMCR-09-0002) ____________________________________________________

BRIEF OF AMICUS CURIAE PROFESSOR DAVID GLAZIER

IN SUPPORT OF PETITIONER AND REVERSAL

John S. Summers Michael J. Newman HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER One Logan Square, 27th Fl. Philadelphia, PA 19103 (215) 496-7055 Attorneys for Amicus Curiae David Glazier

USCA Case #11-1257 Document #1343482 Filed: 11/22/2011 Page 1 of 40

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TABLE OF CONTENTS Page

TABLE OF AUTHORITIES ................................................................................................... ii

GLOSSARY OF TERMS ....................................................................................................... vii

I. INTERESTS OF THE AMICUS CURIAE .............................................................1

II. SUMMARY OF ARGUMENT ...............................................................................2

III. ARGUMENT ...........................................................................................................3

A. THE JURISDICTION OF MILITARY COMMISSIONS TURNS ON AN ANALYSIS OF CUSTOMARY INTERNATIONAL LAW. .......................................................................................................................3

B. THE LAW OF WAR HAS EVOLVED SUBSTANTIALLY OVER THE LAST 150 YEARS, REQUIRING CAREFUL TREATMENT OF HISTORICAL MATERIALS ............................................................................4

1. The Law of War Has Consistently Evolved Since the Mid-Nineteenth Century. .................................................................................................5

2. Historical “Precedents” for Violations of The Law of War Must Be Approached With Caution. ......................................................................................7

C. THE HISTORICAL RECORD DOES NOT SUPPORT THE PROPOSITION THAT PROVIDING MATERIAL SUPPORT FOR TERRORISM IS A VIOLATION OF THE LAW OF WAR .......................10

1. “Aiding the Enemy” Is Distinct From MST. .........................................................11

2. The Execution of Two British Citizens During the First Seminole War Provides No Support For MST ......................................................................14

3. Military Commissions Used During the Mexican War Did Not Try Any Offenses Resembling MST. ...........................................................................16

4. The American Civil War Does Not Provide Precedent For Classifying MST as a Violation of the Law of War ..............................................17

5. Offenses Tried By Military Commission During the Philippines Insurrection Provide No Precedent for MST .........................................................19

6. There Were No MST-Like Offenses During WWII ..............................................22

7. There Is No Equivalent to MST in the Current Law of War. ................................27

D. UNITED STATES MILITARY COMMISSIONS HAVE NEVER DISTINGUISHED DEFENDANTS ON THE BASIS OF NATIONALITY ....................................................................................................28

IV. CONCLUSION ......................................................................................................30


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TABLE OF AUTHORITIES

Page(s) FEDERAL CASES

Ex Parte Milligan,

71 U.S. 2 (1866) .................................................................................................. 18

Ex parte Quirin, 317 U.S. 1 (1942) .................................................................................... 21-23, 29

In re Yamashita, 327 U.S. 1 (1946) ............................................................................................ 3, 23

Madsen v. Kinsella, 343 U.S. 341 (1952) ............................................................................................ 29

Marbury v. Madison, 5 U.S. 137 (1803) .................................................................................................. 4

United States v. Hamdan, CMCR Opinion, 09-0002 (June 24, 2011) .............. 2, 9, 10-12, 18, 21, 22, 24-26

CONSTITUTION, STATUTES & RULES

10 U.S.C. § 948b(a) (2006) ...................................................................................... 28

10 U.S.C. § 948c ...................................................................................................... 14

10 U.S.C. § 950p(d) (2009) ....................................................................................... 4

10 U.S.C. § 950t (2006) ............................................................................................. 3

10 U.S.C. § 950t(25) (2009) .............................................................................. 10, 14

18 U.S.C. § 2339A (2006) ....................................................................................... 28

U.S. Const. art. I, § 8, cl. 10 ................................................................................... 2, 3


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TREATIES

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (Geneva IV) ............................................................................... 6

Hague Convention between the United States and Certain Powers (II) with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803 ................................................................................. 6

OTHER AUTHORITIES

33 Annals of Congress (1819) ................................................................................. 16

Army Field Manual, FM 27-10, The Law of Land Warfare (1956) ....................... 15

Charter of the International Military Tribunal (1945) ............................................. 23

Christoph Burchar, Göring and Others, in The Oxford Companion to International Criminal Justice ............................................................................ 24

Col. William Winthrop, Military Law and Precedents (2nd ed. 1920) .............. 12, 17

*David Glazier, Ignorance is Not Bliss: The Law of Belligerent Occupation and the U.S. Invasion of Iraq, 58 Rutgers L. Rev. 121 (2005) ......................................................... 1, 5, 6, 12, 15

*David Glazier, Kangaroo Court or Competent Tribunal? Judging the 21st Century Military Commission, 89 Va. L. R. 8 (2003) ............... 1, 8, 9, 16, 17

David Glazier, Playing by the Rules: Combating al Qaeda within the Law of War, 51 Wm. & Mary L. Rev. 957 (2009) ............................................... 1

*David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int’l L. 5 (2005) ...................1, 15, 17, 19, 28, 29

David Glazier, Still A Bad Idea: Military Commissions Under the Obama Administration (Loyola Law School, Legal Studies Paper No. 2010-32) ............................................................................................. 1, 18, 29

*Authorities on which we chiefly rely are marked with astericks.


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Flick Trial, 9 L. Rep. of Trials of War Criminals 1 (1947) ..................................... 25

Gary Solis, The Law of Armed Conflict (2010) ....................................................... 10

*General Order 100, Instructions for the Government of Armies of the United States in the Field (Apr. 24, 1863) ...................................... 5, 9, 12, 13, 15

Headquarters, Department of Mississippi, General Order No. 9 (1862) ................. 13

Headquarters, Department of the Pacific and Eighth Army Corps., General Order No. 8 (Aug. 23, 1898) ................................................................. 19

Headquarters, Department of the Pacific and Eighth Army Corps., General Order No. 18 (September 24, 1898) ...................................................... 19

Headquarters, Division of the Philippines, General Order No. 23 (February 1, 1901) .............................................................................................. 14

Headquarters, Division of the Philippines, General Order No. 18 (January 25, 1901) ........................................................................................ 13, 14

Headquarters, Division of the Philippines, General Order No. 129 (Manila., P. I., November 26, 1900), ................................................................. 13

Headquarters, Division of the Philippines, General Order No. 147 (1900) .................................................................................................................. 21

Headquarters, Division of the Philippines, General Order No. 171 (July 13, 1901) .................................................................................................... 20



Headquarters, Division of the Philippines, General Order No. 204 (Aug. 2, 1901) ............................................................................................... 14, 20

Headquarters of the Army, General Order No. 20 (1847) ................................. 16, 17


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Hilary Earl, The Nuremberg SS-Eisnstazgruppen Trial, 1945-1958 (2009) ......................................................................................... 24, 25

Human Rights Watch, Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda (2010) ............................................................................... 26

International Committee of the Red Cross, Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald eds., 2005) ...................................... 8

*Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 .................................................................................................. 7

Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (1991) .......................................................................................... 17

Military Commissions History at http://www.mc.mil/ABOUTUS/MilitaryCommissionHistory.aspx (last visited Nov. 18, 2011) ................................................................................. 14

Military Execution, N.Y. Times, Feb. 25, 1865, available at www.nytimes.com/1865/02/25/news/military-execution-execution-john-y-beall-lake-erie-pirate-rebel-spy-details.htnl (last viewed Nov. 18, 2011) ................................................................................ 18

Robert Cryer, International Criminal Law vs. State Sovereignty: Another Round?, 1 Eur. J. Int’l L. 990 (2005) ...................................................... 7

Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Rep. on Promotion and Protection of All Human Rights, Civil, Political, Economic, Social, and Cultural Rights, Including Economic Development, Human Rights Council, 12 U.N. Doc. A/HRC/6/17/Add.3 (Nov. 22, 2007) ............................................................ 27, 28

Trial of John Y Beal as a Spy and Guerrillero, By Military Commission (1865) .......................................................................... 19

U.K. Ministry of Defence, The Manual of the Law of Armed Conflict ..................... 4


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War Department, G.C.M.O. No. 93 (1864) ............................................................. 13

Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict (2004) .................................................................. 10


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GLOSSARY OF TERMS CMCR………………………………………Court of Military Commission Review ICC…………………………………………………….International Criminal Court ICRC…………………………………....International Committee for the Red Cross ICTR …………………………….……International Criminal Tribunal for Rwanda ICTY………………………International Criminal Tribunal for Former Yugoslavia IMT………………………………………………….International Military Tribunal MCA…………………………………………………….Military Commissions Act MST………………………………………………...Material Support for Terrorism


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I. INTERESTS OF THE AMICUS CURIAE1

David W. Glazier, who respectfully submits this brief as amicus curiae, is a

scholar of military law and the law of war. Glazier served twenty-one years as a

Navy surface warfare officer, culminating with command of the guided missile

frigate U.S.S. George Philip. He is a Professor of Law at Loyola Law School

whose academic work focuses on the law of war and military commissions. See,

e.g., David Glazier, Still A Bad Idea: Military Commissions Under the Obama

Administration (Loyola Law School, Legal Studies Paper No. 2010-32); David

Glazier, Playing by the Rules: Combating al Qaeda within the Law of War, 51

Wm. & Mary L. Rev. 957 (2009); David Glazier, Precedents Lost: The Neglected

History of the Military Commission, 46 Va. J. Int’l L. 5 (2005); David Glazier,

Ignorance is Not Bliss: The Law of Belligerent Occupation and the U.S. Invasion

of Iraq, 58 Rutgers L. Rev. 121 (2005); David Glazier, Kangaroo Court or

Competent Tribunal? Judging the 21st Century Military Commission, 89 Va. L. R.

8 (2003).

With this background, Glazier is uniquely placed to provide insight for the

historical and legal issues underlying this case. Glazier’s scholarship was cited

1 Counsel for amicus represents that it authored this brief and that no person

or entity other than amicus or his counsel made a monetary contribution to the preparation or submission of the brief. Counsel for amicus represents that counsel for all parties have consented to the filing of this brief.


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numerous times in the CMCR opinion that is the subject of this appeal (see CMCR

09-0002 (June 24, 2011) (“CMCR Op.”) at 50-54),2 giving him a particular

professional interest in this matter.

Glazier urges the Court to review closely the historical precedents of

military law and the law of war in analyzing the appropriate legal scope of military

commissions’ jurisdiction.

II. SUMMARY OF ARGUMENT

Military commissions are Article I courts drawing authority from Congress’s

constitutional power to “define and punish … Offences against the Law of

Nations.” U.S. Const. art. I, § 8, cl. 10. Their jurisdiction thus arises from both the

Constitution and the “law of nations” (specifically, the law of war). An

understanding of relevant customary international law rules is thus necessary to

analyze properly military commission jurisdiction.

The substantial evolution of the law of war over the last 150 years requires

caution when relying on historical “precedents,” particularly those from a single

nation’s legal history. Careful assessment of the historical record and current law

demonstrate that military commission trying Salim Ahmed Hamdan under the

Military Commissions Act lacked jurisdiction in trying him for an offense,

2 The CMCR opinion is included in Petitioner’s Appendix. All applicable

statutes, etc., are contained in the Brief for Petitioner.


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providing material support for terrorism (“MST”), which is not a violation of the

law of war. There are no valid historical precedents or legal support in

international law for this charge.

Congress’s mandate that the commissions try only foreign nationals is also

unprecedented. U.S. military commissions have never distinguished on the basis

of nationality so this approach lacks legal or historical support.

III. ARGUMENT

A. THE JURISDICTION OF MILITARY COMMISSIONS TURNS ON AN ANALYSIS OF CUSTOMARY INTERNATIONAL LAW.

In 2006, Congress enacted the Military Commissions Act of 2006, Pub. L.

No. 109-366 (2006), updated three years later by the Military Commissions Act of

2009, Pub. L. No. 111-84, 10 U.S.C.A.N. § 948 (2009) (collectively, “MCA”).

The MCA authorizes military commissions to try persons accused of committing

certain specified offenses, including providing material support for terrorism. See

10 U.S.C. § 950t (2006).

The MCA draws authority from the Constitution’s grant to Congress of the

power to “define and punish … Offences against the Law of Nations.” U.S. Const.

art. I, § 8, cl. 10. Military commission jurisdiction is therefore inextricably linked

to customary international law. The Supreme Court made this clear in In re

Yamashita, 327 U.S. 1, 13 (1946), holding that the prosecution of General


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Tomoyuki Yamashita would be invalid “unless the charge preferred against him is

of a violation of the law of war.” (emphasis added). Congress itself recognized

that newly created offenses would be impermissible ex post facto enactments with

respect to detainees like Hamdan who were already in U.S. custody. The MCA

thus declares that it “does not establish new crimes that did not exist before the

date of the enactment of this subchapter . . . .” 10 U.S.C.A. § 950p(d) (2009).

Since it is the “duty of the judicial department to say what the law is,”

Marbury v. Madison, 5 U.S. 137, 177 (1803), and in keeping with the Supreme

Court’s commission jurisprudence, de novo assessment is required of whether

MST was a recognized law of war violation at the time of Hamdan’s conduct.

B. THE LAW OF WAR HAS EVOLVED SUBSTANTIALLY OVER THE LAST 150 YEARS, REQUIRING CAREFUL TREATMENT OF HISTORICAL MATERIALS.

International law is not fixed, but evolves over time, primarily through

agreement to treaties and the development of customary international law. The

latter requires “widespread state practice coupled with . . . opinio juris, namely, a

belief on the part of the state concerned that international law obliges it, or gives it

a right, to act in a particular way.” U.K. Ministry of Defence, The Manual of the

Law of Armed Conflict, ¶ 1(12)(1). Customary international law formation “is

dependent on widespread, but not necessarily unanimous, state practice.” Id. ¶


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1(12)(2). This ongoing evolution requires careful scrutiny of historical

“precedents” before use as evidence of current law.

1. The Law of War Has Consistently Evolved Since the Mid-Nineteenth Century.

Modern law of war codification dates only to the mid-nineteenth century. In

1863, President Lincoln approved the “Instructions for the Government of Armies

of the United States in the Field,” commonly called the “Lieber Code” after

primary author Professor Francis Lieber, and issued it to Union forces under cover

of General Order No. 100. The Lieber Code set forth customary law of war rules

to guide the conduct of Union troops. They dealt with issues ranging from the

treatment of prisoners of war to the punishment for spying. The Lieber Code is

widely considered the first modern articulation of conflict norms and profoundly

influenced subsequent law of war codification. See Glazier, Ignorance is Not

Bliss, supra, at 129.

Concurrent developments saw the creation of what became the International

Committee of the Red Cross (ICRC) and the initial Geneva Convention. This

treaty codified several important humanitarian protections, including mandating

equal treatment of incapacitated soldiers regardless of nationality, and established

the red cross as a protective emblem.


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Later diplomatic conferences at The Hague in 1899 and 1907 produced a

range of agreements, including, most importantly, regulations for the conduct of

war on land.3 These treaties created legal standards regulating the conduct of

warfare and detailing protections for non-combatants and those hors de combat.

Glazier, Ignorance Is Not Bliss, supra, at 131-33.

This legal development accelerated throughout the twentieth century. In

1929 the Swiss government hosted conferences to update the existing Geneva

Convention and approve an agreement covering prisoners of war. Following

World War II international humanitarian law was substantially expanded via the

four 1949 Geneva Conventions. The most significant new development was the

Fourth Convention protecting civilians. See Geneva Convention Relative to the

Protection of Civilian Persons in Time of War, opened for signature Aug. 12,

1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (Geneva IV). This marked an important

shift in international law from protecting the interests of States to recognizing

human rights considerations. 4 See Glazier, Ignorance Is Not Bliss, supra, at 134.

Each of the four Geneva Conventions identifies “grave breaches,” war crimes

3 See Hague Convention between the United States and Certain Powers (II)

with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803.

4 Two additional Geneva Protocols were established in 1977 and a third in 2005.


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which States are called upon to criminalize subject to universal jurisdiction. See,

e.g., Geneva IV, art. 146-47.

This trend continued through the late-twentieth century as the international

community codified additional international crimes and created both ad hoc

tribunals, such as the ICTY, and a permanent forum, the ICC, to try them. See,

e.g., Rome Statute of the International Criminal Court, July 17, 1998, 2187

U.N.T.S. 90. The Rome Statute establishes potential jurisdiction over (i) genocide;

(ii) crimes against humanity; (iii) war crimes; and (iv) aggression. Id. at art. 5.

Included in crimes against humanity are offenses such as enslavement, (art. 6.1.c),

torture (art. 6.1.f), and rape (art. 6.1.g). War crimes include such violations as

willful killing and taking of hostages. Id. at art. 7. This treaty has been called “the

most comprehensive, definitive and authoritative list of war crimes”. Robert

Cryer, International Criminal Law vs. State Sovereignty: Another Round?, 16 Eur.

J. Int’l L. 979, 990 (2005). Efforts by individual states to define war crimes

unsupported by the Rome Statute should thus be viewed very skeptically.

2. Historical “Precedents” for Violations of The Law of War Must Be Approached With Caution.

The CMCR largely based its conclusion that MST is a war crime on a

superficial analysis of purported “precedents” from previous American military


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commissions. It erred in several fundamental ways, however, undermining its

conclusions.

First, it relied entirely on American examples. Customary international law

formation requires broad international consensus; State practice of a rule or

principle must be both “extensive and representative.” 1 Int’l Com. of the Red

Cross, Customary International Humanitarian Law, xlii (Jean-Marie Henckaerts &

Louise Doswald eds., 2005). The fact that a particular State acted a certain way in

a certain circumstance at a certain time fails to fulfill the necessary “extensive” and

the “representative” elements, nor does it necessarily demonstrate the requisite

opinio juris. Reliance on unilateral American “precedents” is insufficient to

establish that a given offense violates the international law of war.5

Second, rapid law of war development renders historical “precedents”

potentially unreliable. As Section II.A illustrates, supra, the law has evolved

dramatically since codification efforts began in the mid-nineteenth century. For

example, a number of individuals (including an American citizen) were tried for

the “war crime” of encouraging U.S. troops to desert during the Mexican War. A

century and a half later, the United States engaged in massive psychological

operations to encourage Iraqi soldiers to do just that. Clearly, the U.S. view that

5 For this reason alone, the CMCR’s discussion of MST is fundamentally

unsound.


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this constituted a war crime was reversed during this interval. See Glazier,

Kangaroo Court, supra, at 2033.

The law of war’s treatment of unprivileged belligerents provides another

cautionary example. The Lieber Code declared unprivileged belligerents --

“[a]rmed prowlers . . . or persons of the enemy’s territory” -- to be “not entitled to

the privileges of the prisoner of war” for committing crimes behind enemy lines,

see art. 84, yet Lieber is unclear whether he thought them war criminals. Article

82 says those “who commit hostilities . . . without commission, without being part

and portion of the organized hostile army . . . shall be treated summarily as

highway robbers or pirates.” Despite the term “summarily,” robbers and pirates

are prosecuted under ordinary criminal laws, not the law of war. U.S. military

commissions sitting in both Border States (under martial law) and occupied

Confederate territory had authority to enforce these “domestic” laws.6 A simplistic

showing of past military commission use is thus insufficient to establish

jurisdiction over similar conduct by today’s law of war commissions. Modern law

of war experts agree that unprivileged belligerents -- those failing to meet the

Hague Land Warfare Regulation’s mandates for responsible command, distinctive

6 In suggesting that offenses by unprivileged belligerents have always been a

war crime, CMCR Op. at 57, the CMCR misunderstood the evolution of this area of the law of war.


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emblems, open carriage of arms, and law of war adherence -- do not commit a war

crime by participating in hostilities, but merely lose their belligerent immunity

from domestic law. As a result, they may be prosecuted for ordinary criminal

offenses, by ordinary criminal courts, for any violence they commit. Yoram

Dinstein, The Conduct of Hostilities Under the Law of International Armed

Conflict, 31 (2004); Gary Solis, The Law of Armed Conflict, 206-08 (2010).

Finally, even if unilateral U.S. precedents could establish law of war

violations, the CMCR’s cursory analysis failed to appreciate key differences

between the conduct previously prosecuted, primarily “aiding the enemy,” and that

alleged to constitute MST. The CMCR requested the parties address whether

“aiding the enemy” was “limited to those who have betrayed an allegiance or duty

to a sovereign nation?” but then ignored the answer in upholding the MST charge.

See CMCR Op. at 10, fn.7.

C. THE HISTORICAL RECORD DOES NOT SUPPORT THE PROPOSITION THAT PROVIDING MATERIAL SUPPORT FOR TERRORISM IS A VIOLATION OF THE LAW OF WAR.

Hamdan was found guilty of the single offense of providing material support

for terrorism established by the MCA. See 10 U.S.C.A. § 950t(25) (2009). The

CMCR concluded that MST is a war crime by looking to history: “Comparison of

the contents of 19th century military commission law of war charges and

specifications with appellant’s charges and specifications is one way of


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determining whether offenses similar to appellant’s were already punishable.”

CMCR Op. at 50. The court considered selected examples related to aiding the

enemy in past conflicts. But the CMCR did not cite analogous examples. Close

scrutiny reveals that MST is not comparable to the CMCR opinion’s examples; it is

sui generis -- and certainly was as of the time of Hamdan’s alleged offense. It does

not constitute a violation of the law of war, which explains its total absence from

any current treaties or treatises on the subject.

1. “Aiding the Enemy” Is Distinct From MST.

The crime of “aiding the enemy” has a long history, but one limited to

individuals owing a duty of loyalty to the charging sovereign. The very term --

“aiding the enemy” -- is linguistically precise, connoting opposed political entities

(i.e., an “enemy”) and a duty to give no support to the adversary. Individuals

lacking any duty of loyalty cannot “aid the enemy,” particularly when they are a

member of the enemy State. If it were otherwise, every German soldier or citizen

would have been guilty of “aiding the enemy” during WWII; an irrational result

that would fly in the face of the law of war. The historical record bears this out.

Failing to distinguish offenses related to breaches of the duty of loyalty is

thus a crucial error. The CMCR correctly noted that “[t]he offense of aiding the

enemy ‘is almost as old as warfare itself, and . . . may be found in the earliest of

recorded military codes.’” CMCR Op. at 50 (internal citations omitted). The


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opinion further acknowledged that offenses “relating to a breach of loyalty or

allegiance are not pertinent here because [Hamdan] and al Qaeda have no duty to

the United States.” Id. at 56. Nevertheless, the CMCR then inexplicably

proceeded to rely on offenses requiring a duty of loyalty in justifying Hamdan’s

conviction, despite its acknowledgement that they are inapplicable. Id. at 57-64.

The CMCR, for example, overlooked the fact that the “[v]iolations of the

laws and usages of war” tried by Civil war military commissions largely resulted

from breaches of a duty of loyalty. See Col. William Winthrop, Military Law and

Precedents 839-41 (2nd ed. 1920). Even enemy inhabitants of occupied territory

owe a temporary duty of allegiance to the occupiers in exchange for the latter’s

responsibility to protect them from further harms of the conflict. Glazier,

Ignorance is Not Bliss, supra, at 151 (citing Henry Halleck’s 1861 International

Law treatise). Lieber explicitly noted that in occupied territory, both “the people

and their civil officers owe strict obedience to [the occupier] as long as they hold

sway over the district or country. . . .” Lieber Code, art. 26. He went to note that a

“traitor under the law of war, or a war-traitor, is a person in a place or district

under martial law who, unauthorized by the military commander, gives

information of any kind to the enemy, or holds intercourse with him.” Id., art. 90.

This duty of loyalty extended to third-party nationals: “Foreign residents in an

invaded or occupied territory, or foreign visitors in the same, can claim no


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immunity from this law. They may communicate with foreign parts, or with the

inhabitants of the hostile country, so far as the military authority permits, but no

further.” Id., art. 98. Civil War military commissions sat in loyal border state

regions under martial law and occupied Confederate territory. In either setting,

anyone within their jurisdiction (other than an actual Confederate combatant),

would owe a duty of loyalty to the United States. This is explicitly reflected in

many charge sheets. See, e.g., Headquarters Dep’t. of the Mississippi, Gen. Order

No. 9 (1862) (charging John W. Montgomery with “commit[ting] treasonable acts

toward the Government of the United States”); War Dep’t., G.C.M.O. No. 93

(1864) (charging “James A. Powell, a citizen of the State of Missouri, and owing

allegiance to the Constitution and the government of the United States”).

This was equally applicable during the Philippine Insurrection; Filipino

residents in areas under U.S. control owed allegiance to the United States. Any

such Filipinos who engaged in hostilities against U.S. forces or who provided

assistance to insurgents were legitimately prosecuted as “war-traitors” or “rebels.”

Both charges involved breaching the duty of loyalty to the United States, whether

assumed freely or imposed by operation of law.7

7 See, e.g., Gen. Order No. 129 (Manila., P. I., November 26, 1900), S. Doc.

331, at 1068 (Filipino accused tried for a “Violation of the laws of war” after taking an oath of allegiance to the United States and then rejoining the guerillas); Gen. Order No. 18 (January 25, 1901) (“Being war rebels”: based, inter alia, on


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In stark contrast, MST is unrelated to a duty of allegiance to the United

States. The MCA applies only to “alien unprivileged enemy belligerent[s]” and

excludes American citizens. See 10 U.S.C.A §§ 948c, 950t(25). So unlike “aiding

the enemy,” MST applies primarily to those without a duty of allegiance to the

United States.8 Jurisprudence involving “aiding the enemy” is thus inapplicable to

MST prosecutions.

2. The Execution of Two British Citizens During the First Seminole War Provides No Support For MST.

During the First Seminole War, forces under Andrew Jackson “tried” and

executed two British citizens for supporting the enemy. This discredited episode is

conveniently omitted from the Office of Military Commission’s website’s history

page, which leaps from the Revolution to the Mexican War. See Military

Commissions History at

http://www.mc.mil/ABOUTUS/MilitaryCommissionHistory.aspx (last visited Nov.

encouraging others to join rebels while “living and remaining in territory occupied by the United States Army”); Gen. Order No. 204 (August 2, 1901), S. Doc. 331, at 1234 (accused characterized as “war-traitor”; charged with “Aiding guerillas” based on providing supplies to insurgents; specifying that conduct occurred at “a place under the military jurisdiction of the United States”); Gen. Order No. 23 (February 1, 1901), S. Doc. 331, at 1108 (accused charged with “[v]iolation of the laws of war” for distributing rifles to insurgents; alleging that he had taken an oath of allegiance to the United States).

8 With the possible exception of “unprivileged enemy belligerents” living under United States military occupation.


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18, 2011). Nevertheless, the CMCR used this example in its justification of MST.

CMCR Op. at 53. But close analysis shows that the British nationals, Alexander

Arbuthnot and Robert Ambrister, were ultimately charged on the basis of having

been “subjects of Great Britain,” a country then at peace with the United States.

Glazier, Precedents Lost, supra, at 27-29.

A key legal flaw was Jackson’s erroneous assumption that neutral nationals

commit a crime by participating in other nations’ conflicts. Taking sides has

consequences for a “neutral”, but it is not unlawful. See Dep’t of the Army Field

Manual, FM 27-10, The Law of Land Warfare ¶ 550 (1956) (explaining that a

neutral national “shall not be more severely treated by the belligerent as against

whom he has abandoned his neutrality than a national of the other belligerent State

could be for the same act.”).9 Just as the Marquis de Lafayette, who served in the

Continental Army before the French intervention, was never considered a war

criminal, so Arbuthnot and Ambrister did not violate the law of war. This was

recognized at the time. Both houses of Congress voiced concern about Jackson’s

9 Lieber (a Prussian national) had tried to fight in the 1821 Greek War of Independence. Glazier, Ignorance is Not Bliss at 151. Not surprisingly, his Code declared “So soon as a man is armed by a sovereign government and takes the soldier’s oath of fidelity, he is a belligerent . . . .” with no nationality qualification. Lieber Code, art. 57.


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actions, with one member of Congress noting, “These offenses can only apply . . .

to our own citizens or others within the limits or the territories of the United States

. . . . The law provides for offences of this sort, but it cannot apply to persons out

of the limits of the United States, owing no obligations or allegiance to the United

States.” 33 Annals of Congress 1069 (1819).

3. Military Commissions Used During the Mexican War Did Not Try Any Offenses Resembling MST.

Scholars agree that military commissions were first used during the Mexican

War of 1846-1848. See Glazier, Kangaroo Court, supra, at 2027 (citing Winthrop

at 832). But the tribunals employed during that conflict do not provide any

precedent for MST.

The Articles of War in effect in 1846 lacked provisions to punish American

servicemen for offenses against civilians, forcing the Secretary of War to conclude

that the only sanction available against a soldier for murdering a Mexican was to

discharge him and send him home. Id. To remedy this shortcoming, the U.S.

Army commander, General Winfield Scott, imposed martial law in Mexico and

convened “military commissions” to try offenses not covered by the Articles. Id.

The legal basis for these trials was General Orders defining common law crimes

committed by or upon U.S. soldiers. See General Winfield Scott, Gen. Order No.

20, in Orders and Special Orders, Headquarters of the Army, War with Mexico,


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1847-1848, Vol. 41, at 140, Records Group 94, National Archives and Records

Administration, Washington D.C. Scott also instituted tribunals called “councils of

war” to try actual law of war violations. Glazier, Precedents Lost, supra, at 36-37.

But neither of these tribunals tried offenses analogous to MST.

Military commissions tried “grave offenses” common to ordinary criminal

law, such as murder, rape, and robbery. See Gen. Order No. 20. Only few

“councils of war” have been documented, almost all for encouraging the desertion

of American troops. Glazier, Precedents Lost, supra, at 36-37; 37 n. 200. There is

nothing about either type of offense that provides logical precedent for MST.

4. The American Civil War Does Not Provide Precedent For Classifying MST as a Violation of the Law of War.

The Union Army employed military commissions even more extensively

during the Civil War than it had in Mexico, in three contexts: (1) as martial law

courts in U.S. territory (usually border states); (2) as occupation law courts in the

South; and (3) as law of war courts. 10 See Glazier, Kangaroo Court, supra, at

2036; see also Winthrop at 823-27 (listing various impositions of martial law in

border states and captured southern territory). Most fell under the first two

10 During the Civil War, there were 4,271 documented trials by military

commission. Another 1,435 trials by military commission were held during Reconstruction. See Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties 168-73, 176-77 (1991).


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categories, in which roles commissions were able to apply forms of domestic law

to those not actually entitled to belligerent immunity and to hold anyone within

their territorial jurisdiction to a legal duty of loyalty. They fail to provide any

“precedent” for MST, despite the CMCR’s contrary conclusion. CMCR Op. at 53-

63.

Theoretically, the federal government could have tried all Confederates,

particularly those actually taking up arms against the Union, for treason. Electing

not to do so, Southern combatants were only tried when their conduct violated the

law of war. See Glazier, Still a Bad Idea, supra, at 12. For example, Confederate

naval officer John Y. Beall infiltrated the North in “civilian dress” and hijacked a

commercial Great Lakes steamboat. He then attempted to derail a civil passenger

train before being captured.11 While Beall was tried by military commission (as

opposed to a civilian court) due to his Confederate affiliation,12 the crimes he was

charged with related to his conduct, (i.e., hijacking a steamboat and trying to derail

a train) which constituted “violations of the law of war,” not his status as an

11 See Military Execution, N.Y. Times, Feb. 25, 1865, available at

www.nytimes.com/1865/02/25/news/military-execution-execution-john-y-beall-lake-erie-pirate-rebel-spy-details.htnl (last viewed Nov. 18, 2011).

12 The Supreme Court noted the required belligerent connection for military jurisdiction the following year in Ex Parte Milligan, 71 U.S. 2 (1866), overturning the conviction of “a citizen in civil life [not] connected with the military service” when regular courts were available. Id. at 120-22.


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unprivileged belligerent. See Trial of John Y. Beall as a Spy and Guerrillero, By

Military Commission 89-91(1865).

5. Offenses Tried By Military Commission During the Philippines Insurrection Provide No Precedent for MST.

During the Philippines Insurrection of 1899 to 1902, military commissions

tried both violations of domestic law, enforced by the U.S. Army as an occupying

force, and the law of war. An 1898 general order defined the jurisdiction of these

commissions in terms similar to those used in the Mexican War. See Glazier,

Precedents Lost, supra, at 48. A follow-on directive went further, suspending the

criminal jurisdiction of the local courts entirely, leaving all such enforcement in the

hands of the Army. See Headquarters, Department of the Pacific and Eighth Army

Corps, Gen. Order No. 8 (Aug. 23, 1898); Gen. Order No. 18 (Sep. 24, 1898).

Between 1899 and 1902, there were 828 documented military commission trials

for serious offenses. See Glazier, Precedents Lost, supra, at 49. Of 769 trials

conducted in 1900 and 1901, 721 involved Filipino victims13 and 48 concerned

Americans. Id.

13 Many of these crimes were acts of violence committed by insurgents

against countrymen who cooperated with the American occupation forces. But since the Army exercised all domestic criminal law enforcement authority in the Philippines, there is no basis for concluding that these were prosecuted under the law of war. See Gen. Order No. 18, supra; Glazier, Precedents Lost at 50-51.


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Commissions also tried individuals, both Filipino and American, charged

with law of war violations. These trials considered many legal issues, such as

distinguishing between killings in violation of the law of war and killings that were

privileged because the perpetrator was a lawful belligerent.14

Although the Philippine military commissions contributed to law of war

development, they do not support categorizing MST as a war crime. As explained

in Section II.A, supra, much of the Philippines was under American military

occupation and its inhabitants owed a legal duty of allegiance to the United States.

Filipinos charged with aiding insurgents breached this duty. See, e.g.,

Headquarters, Division of the Philippines, Gen. Order No. 174 (July 19, 1901), in

S. Doc. 57-1 No. 205 pt. 2 at 213 (1902) (Filipino residing in territory “under the

military government of the United States” convicted for, inter alia, collecting and

providing food, money and other items to insurgents); Headquarters, Division of

the Philippines, Gen. Order No. 204 (Aug. 2, 1901), in S. Doc. 57-1 No. 205 pt. 2

at 229 (1902) (same). Because these prosecutions depend upon the breach of a

14 Compare Headquarters, Division of the Philippines, Gen. Order No. 187

(July 22, 1901), S. Doc. 57-1 No. 205 pt. 2 (1902) at 358 (rejecting immunity for insurgent “within the American lines ununiformed and disguised as a pacifico”), with Headquarters, Division of the Philippines, Gen. Order No. 171 (July 13, 1901), in S. Doc. 57-1 No. 205 pt. 2 (1902) at 357 (overturning conviction for killing a soldier “in an engagement with a regular detachment of the public enemy”).


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legal duty of loyalty, they are not comparable to MST, which is being used to

prosecute alien adversaries with no such obligation.

The CMCR specifically, but erroneously, cites the case of “D. Noul and 13

others” accused of sabotaging rail and telegraph lines as justification for charging

MST. CMCR Op. at 64. It is critical to note (although the CMCR does not) that

these men were clearly identified in the charge as being natives not “part or portion

of any organized hostile army, and without sharing continuously in the insurrection

soldiers” and that they “lived within territory fully occupied and protected by the

American army.” Headquarters, Division of the Philippines, Gen. Order 147

(1900), in S. Doc. No. 205, pt. 1 (1902). The CMCR accurately quotes the

reviewing authority’s comment that armed prowlers who steal behind the lines are

liable to punishment whether they reside there or not. This is undisputed; it formed

the basis of the Supreme Court upholding the 1942 military commission

prosecution of the eight Nazi saboteurs in Ex parte Quirin, 317 U.S. 1 (1942),

discussed below. But the subsequent Noul dicta that “all those who secretly aid or

assist” such insurgents also can be punished does not establish that indirect support

not breaching any duty of loyalty, such as Hamdan’s roles as driver and bodyguard

uninvolved with actual planning or preparation for terrorist acts, is subject to

military trial. Indeed, it is unlikely that support would be provided “secretly”

except under circumstances (such as in occupied territory) posing a real risk of


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prosecution. Glazier is aware of no cases, from any period of history, in which

individuals have been prosecuted for tangential roles absent a duty of loyalty.

6. There Were No MST-Like Offenses During WWII.

World War II and its aftermath saw further development of the law of war.

Once again there were no known prosecutions for conduct approximating MST,

and the CMCR opinion misapplied the historical record in finding support for

MST. See CMCR Op. 64-70.

The 1942 military commission trial of eight Nazi saboteurs who landed on

the American coast let the Supreme Court weigh in on the constitutionality of

military commissions and their relationship to the law of war. See Ex parte Quirin,

317 U.S. 1. The Court framed the key issue as “whether any of the acts charged is

an offense against the law of war cognizable before a military tribunal,” id. at 29,

finding it dispositive that the saboteurs were enemy belligerents15 who could be

tried by military commission “for acts which render their belligerency unlawful”.

Id. at 31. Although their enemy belligerent status provided the basis for

commission jurisdiction, they could only be tried for personal conduct violating the

law of war. The Court held that they could be convicted because they discarded

their uniforms upon landing -- a recognized violation of the law of war. Id. (“The

15 The Court concluded that one saboteur’s American nationality was

irrelevant.


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spy who secretly and without uniform passes the military lines of a belligerent in

time of war, seeking to gather military information and communicate it to the

enemy, or an enemy combatant who without uniform comes secretly through the

lines for the purpose of waging war by destruction of life or property, are familiar

examples of belligerents who are generally deemed not to be entitled to the status

of prisoners of war, but to be offenders against the law of war subject to trial and

punishment by military tribunals.”). This decision, though important to military

commission jurisprudence, provides no precedent for MST.16

The end of WWII saw the creation of international tribunals at Nuremberg

and Tokyo to prosecute Axis war criminals. Those prosecuted were charged with a

variety of war crimes, including “murder, ill-treatment or deportation to slave

labour or for any other purpose of civilian population of or in occupied territory,

murder or ill-treatment of prisoners of war or persons on the seas, killing of

hostages, plunder of public or private property, wanton destruction of cities, towns

or villages, or devastation not justified by military necessity.” See Charter of the

International Military Tribunal, art. 6 (1945). None of these, however, are similar

to MST.

16 Neither does the other key Supreme Court decision regarding military

commissions and the law of war from that time. See In re Yamashita, 327 U.S. 1 (holding that, inter alia, charging a commander for failing to prevent atrocities he had not ordered was “a violation of the law of war”).


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The CMCR nevertheless concluded that “the concept of organizational guilt

employed at Nuremberg is similar to providing [MST].” CMCR Op. at 66. This is

problematic, however, because that practice, which was questioned even at the

time by many Allied trial participants, has never been subsequently accepted as

valid international law. See, e.g., Christoph Burchar, Göring and Others, in The

Oxford Companion to International Criminal Justice 696, 701 (Antonio Cassese,

ed.) (2009) (declaring that International Criminal Law “does not follow the

Nuremberg precedent . . . to indict organizations and to declare them criminal”).

Membership offenses are conspicuously absent from the United Nations

International Law Commission’s 1950 statement of the Nuremberg Principles, as

well as all subsequent international agreements codifying law of war offenses.

The CMCR nevertheless relies on several “membership” convictions from

the twelve U.S. Nuremberg follow-on trials. Unlike lowly al Qaeda functionary

Hamdan, these trials involved prosecution of those who chief prosecutor Telford

Taylor considered to be most responsible for serious atrocities. See Hilary Earl,

The Nuremberg SS-Eisnstazgruppen Trial, 1945-1958 at 41 (2009). Although the

CMCR portrays one of those convicted, Mathias Graf, as “a noncommissioned

officer who never commanded a unit,” CMCR Op. at 67, Earl states that those

prosecuted represented the senior twenty-four individuals out of a set of more than

2,000 identified Einsatzgruppen members collectively responsible for


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approximately 1,000,000 murders in Eastern Europe. See Earl, at 81-82.

Moreover, no one was tried at Nuremberg solely on the basis of membership; all of

the defendants faced primary charges of direct involvement in serious crimes. Id.

at 40.

The CMCR stated that the Allies prosecuted a MST-like offense by creating

“a legal structure to prosecute not only those who personally committed atrocities

but also those who supported such large scale war crimes.” CMCR Op. at 64. As

evidence of this purported parallel, the CMCR points to the Flick Trial, 9 L. Rep.

of Trials of War Criminals 1 (1947), in which German industrialists were charged

with, inter alia, financing and supporting the Nazi S.S., a criminal organization.

The CMCR misconstrued this historical record because, unlike MST, these charges

were explicitly grounded in aiding and abetting crimes committed by the Nazi

party and the S.S.; crimes which the defendants knew of and “took a consenting

part in.” Id. at 5. As such, aiding and abetting is distinct from MST, which covers

a much broader range of conduct.

International war crime prosecutions based on aiding and abetting liability

(in contrast to the U.S. prosecutions for the substantive offense of aiding the

enemy) generally focus on higher level officials -- those too senior to have actually

dirtied their hands by personally pulling a trigger, such as the Einsatzgruppen

leaders and high-level facilitators like the Flick industrialists. Aiding and abetting


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liability under international criminal law thus requires that the assistance be

“substantial” and that the individual have knowledge that their support will

contribute to a specific offense. The ICTY and ICTR have wrestled with such

issues as whether a senior official can be prosecuted for mere presence at the scene

of an atrocity, on the basis that this constituted tacit encouragement to commit the

crime. See, e.g., Human Rights Watch, Genocide, War Crimes and Crimes Against

Humanity: A Digest of the Case Law of the International Criminal Tribunal for

Rwanda at 208 (2010).

Neither of these requirements, substantial impact or specific knowledge, is

present in MST cases like Hamdan. In apparent recognition of the disparity

between the high-level officials prosecuted at Nurmeberg and Hamdan, the CMCR

took the trouble to quote Einsatzgruppen decision language alluding to pirate ship

cooks and bank robbery lookout prosecutions. CMCR Op. at 69. Looking beyond

the symbolic appeal, these comparisons lack substantive relevance given that both

pirates and bank robbers are actually prosecuted under domestic and not

international law.17 Furthermore, both of these offenders are voluntary direct

17 While the crime of piracy is defined by international law, unlike war

crimes, it is not prosecuted under international law per se. This is one reason why Somali piracy poses such significant legal challenges today. Although international law authorizes universal jurisdiction over pirates, few nations have actually enacted domestic statutes on this basis – some nations, like France, lack


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participants (and stake-holders) in for-profit criminal endeavors, whereas the law

of war regulates activity undertaken for political reasons.

7. There Is No Equivalent to MST in the Current Law of War.

MST has no support in the current treaties or customary law comprising the

effective law of war. That is, treaties do not create or define any war crimes that

are similar to MST, nor does customary international law. The 1907 Hague

Convention Respecting the Laws and Customs of War on Land, held by the

Nuremberg IMT to be customary international law, does not incorporate any

similar concept, nor do the Geneva Conventions. Even more on point, there is no

similar offense defined in the statutes establishing subject matter jurisdiction of

modern ad hoc tribunals, such as the ICTY, ICTR and the Special Court for Sierra

Leone. Most importantly, the 1998 Rome Statute of the ICC -- which incorporates

a detailed listing of war crimes -- makes no mention of any offense coming close to

MST. Likewise, there is no similar offense described in modern scholarly treatises

on International Criminal Law. Moreover, a U.N. Special Rapporteur concluded

that MST “go[es] beyond offenses under the law of war.” Special Rapporteur on

the Promotion and Protection of Human Rights and Fundamental Freedoms While

Countering Terrorism, Rep. on Promotion and Protection of All Human Rights,

piracy statutes altogether – and thus many navies which have captured Somali pirates lack any authority to bring them to trial.


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Civil, Political, Economic, Social, and Cultural Rights, Including Economic

Development, Human Rights Council, 12 U.N. Doc. A/HRC/6/17/Add.3 (Nov. 22,

2007) (by Martin Schienin).

Finally, Congress itself did not consider MST to be a war crime prior to the

MSA. It is wholly absent from the War Crimes Act of 1996, which was enacted

two years after Congress first defined MST in domestic law and several months

after it had updated the definition. See 18 U.S.C.A. § 2339A (2006). Since

Congress was clearly familiar with the offense at the time of the War Crimes Act

enactment, the fact that it is not included is logically significant.

D. UNITED STATES MILITARY COMMISSIONS HAVE NEVER DISTINGUISHED DEFENDANTS ON THE BASIS OF NATIONALITY.

The MCA explicitly limits the personal jurisdiction of military commission

to aliens. 10 U.S.C.A. § 948b(a) (2006). In doing so, it creates a jurisdictional

limitation unique in the history of United States’ use of military commissions.

Never before has such a limitation been placed over military commissions.

American citizens, and particularly American military personnel, have been subject

to military commission jurisdiction since their inception.

Military commissions were actually created to try Americans, not foreign

nationals. The first iteration of General Order 20 only called for it to be read to

U.S. soldiers entering Mexico. Later repromulgations also directed dissemination


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to the local populace as a prerequisite to their enforcement. Glazier, Precedents

Lost, supra, at 33. A substantial majority of those tried during the Mexican War

were actually Americans. Id. at 37. Even the “councils of war” tried at least one

American and a Belgian along with Mexicans. Id. Americans continued to be

subject to military commission prosecution in later conflicts. Military

commissions convicted at least five Americans in the Philippines. Glazier, Still a

Bad Idea, supra, at 16. In Ex parte Quirin, one of the WWII Nazi saboteurs had a

claim to American nationality, but the Supreme Court held that enemy status, not

nationality, was dispositive. 317 U.S. at 45.18 See also Madsen v. Kinsella, 343

U.S. 341 (1952) (holding that a U.S. military government court had jurisdiction

over an American civilian citizen accused of murdering her husband).

Besides not distinguishing between citizens and aliens as to jurisdiction,

military commissions also did not distinguish between citizens and aliens as to

rights and procedural protections. In Quirin, the Court’s legal conclusion “that the

Fifth and Sixth Amendments did not restrict whatever authority was conferred by

the Constitution to try offenses against the law of war by military commission”

18 “Petitioners, and especially petitioner Haupt, stress the pronouncement of

this Court in the Milligan case . . . that the law of war ‘can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed’. . . . We construe the Court’s statement as to the inapplicability of the law of war to Milligan’s case as having particular reference to the facts before it.” Quirin, 317 U.S. at 45.


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was entirely unaffected by the inclusion of an American among the saboteurs. 317

U.S. at 44-45.

IV. CONCLUSION

An analysis of the jurisdictional scope of the military commissions created

by the MCA requires a careful review of historical development and current status

of the law of war. When placing MST in the proper historical context, it is clear

that it does not violate the law of war. The CMCR erred in misreading historical

“precedents” to conclude otherwise.

Respectfully Submitted, DATED: November 22, 2011 By: /s/ John S. Summers Attorney for Amicus Curiae David Glazier

John S. Summers Michael J. Newman HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER One Logan Square, 27th Fl. Philadelphia, PA 19103 (215) 496-7055 Attorneys for Amicus Curiae David Glazier


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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance with Type-Volume Limitations, 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 6966 words, 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 2007 in 14 point font size and Times New Roman type style.

DATED: November 22, 2011 By: /s/ John S. Summers Attorney for Amicus Curiae David Glazier


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CERTIFICATE OF SERVICE

When All Case Participants are Registered for the Appellate CM/ECF System

U.S. Court of Appeals Docket Number(s): 11-1257 I hereby certify that I electronically filed the foregoing with the Clerk of the Court of the United States Court of Appeals for the D.C. Circuit by using the appellate CM/ECF system on November 22, 2011. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED: November 22, 2011 By: /s/ John S. Summers Attorney for Amicus Curiae David Glazier


Documents

[Oral Argument Not Yet Scheduled] No. 11-1257 IN THE ......(CASE NO. CMCR-09-0002) _____ BRIEF OF AMICUS CURIAE PROFESSOR DAVID GLAZIER IN SUPPORT OF PETITIONER AND REVERSAL John S