Amicus Brief: Padilla’s Detention Violates International “Laws of War”

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The brief argues that the Executive cannot justify its treatment of Mr. Padilla (and circumvent domestic protections) by invoking international humanitarian law (IHL), also known as the “laws of war.” The government has repeatedly asserted that it relied on the precedents and standards of IHL in classifying Mr. Padilla as an “enemy combatant.” But Mr. Padilla is not a “combatant" in an "armed conflict” as those terms are used in IHL. This highly specialized branch of international law simply does not control his case.

Under IHL, “combatants” are defined principally as “members of the armed forces of a Party to a conflict.” Persons who do not meet this definition are not treated as combatants, lawful or unlawful. Instead, to the extent they have conspired to engage in violent acts, they have been treated as criminals under the domestic law of the captor. In this case, the government does not allege that Mr. Padilla is a member of any regular armed force or that he participated directly in any battle. The Executive’s attempt to justify the detention under IHL stretches the laws of war in unprecedented and illegal directions.

The brief was written by Professor Allison Danner of Vanderbilt Law School. It was signed by recognized experts on IHL:

Hon. Patricia McGowan Wald
Payam Akhavan
Mary Cheh
Stephen Saltzburg
Marco Sassòli
Minna Schrag