The amicus brief demonstrates that "The detention and military commission systems created by the Executive to hold and try persons seized in the "war on terror" and implemented at the United States Naval Station in Guantánamo Bay, Cuba violate the well-established norms of international humanitarian law embodied in binding treaties and customary international law."
In a military order issued on November 3, 2001, President Bush authorized special tribunals (the military commissions) to be held to prosecute suspected authors of violations of the laws of war by conspiring to commit acts of terrorism against the United States. These commissions ignore some of the most fundamental rights to a fair trial such as the right for the defense to have access to evidence provided by the prosecution.
Most importantly the military commissions disregard the principle according to which all people captured in the context of an international armed conflict are covered by the Geneva Conventions. The Court of Appeals for the District of Columbia Circuit’s conclusion that Mr. Hamdan was not covered by the Conventions was therefore erroneous. In addition, in reaching its conclusion, the Court also ignores the intention of drafters of the 1949 Conventions who deliberately sought to ensure that protected persons could use their domestic courts to protect their rights. What’s more, the Conventions’ ratification history shows that the U.S. Senate understood and intended for the Conventions to be enforceable in domestic courts without implementing legislation.
The brief states: "The 1949 Geneva Conventions afford persons held in military custody individual primary rights that are enforceable under the Supremacy Clause and by means of a writ of habeas corpus. These well-established protections are also independently enforceable in federal court as binding rules of customary international humanitarian law. The United States has misguidedly departed from these fundamental guarantees."