Briefs are written arguments filed with a court by the parties in a case, usually with the help of a lawyer. In the U.S. Supreme Court, the parties must first file briefs explaining why the Court should or should not review a lower court's judgment in the case. If the Court decides to grant review, the parties then file a second round of briefs, called "merit briefs." These briefs argue over the merits of the case itself. The merit briefs focus on the proper resolution of the questions of law that the Court has agreed to consider and fashion legal arguments based on precedent and logic.
Merit briefs follow a specific format. For one, they include a section describing a particular party's argument ("Summary of Argument").
For this activity, students will need the following pages from the merit briefs of Hamdan v. Rumsfeld, which are available from the ABA's Supreme Court Preview website [www.abanet.org/supremecourtpreview]:
* Petitioner's Brief (Salim Hamdan), "Summary of Argument," pp. 5-8.
* Respondent's Brief (Donald H. Rumsfeld, Secretary of Defense), "Summary of Argument," pp. 7-12.
Give students background about the case. Explain habeas corpus or a habeas appeal. Discuss how resolution of the questions presented by the case will clarify separation of powers between the president, Congress, and the courts. (See the accompanying article by Charles F. Williams for this background information.) Summarize the questions presented by the case:
1. Is the military commission established by the president to try the "petitioner" [Hamdan], and others similarly situated, for alleged war crimes in the War on Terror duly authorized under Congress's Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224; the Uniform Code of Military Justice; or the inherent powers of the president?
2. Can the petitioner, and others similarly situated, obtain judicial enforcement from a United States federal court of rights protected under the 1949 Geneva Convention Relative to the Treatment of Prisoners of War?
Separate students into small groups. Ask half of the groups to analyze and prepare reports about the arguments in the "Summary of Argument" from the petitioner's merit brief [Hamdan], and the other half to analyze and prepare reports on the arguments from the respondent's [Rumsfeld]. Give each group its respective analysis questions to help guide the inquiries. Make sure that students have time to complete additional research on the terms in each brief that they will need to explain when reporting on the arguments.
Petitioner's Brief [Hamdan]: Questions for Analysis
* When in the past has the Supreme Court recognized military commissions? Under what circumstances?
* How has their jurisdiction been limited?
* When military commissions have been authorized, what kind of offenders have they tried, and what offenses have been considered?
* How are the military commissions in question unlawful, according to the petitioner?
* What does the petitioner argue about the applicability of the Geneva Convention to the situation presented by this case?
* In this case, in what areas does the petitioner challenge presidential assertion of power, and in what areas does the petitioner argue it has been exercised legitimately?
* What are the appropriate roles for the legislative branch in this situation, according to the petitioner?
(Note: Terms for further research are italicized. "GPW" in the petitioner's brief refers to the Third Geneva Convention Relative to the Treatment of Prisoners of War.)
Respondent's Brief [Rumsfeld]: Questions for Analysis
* What effect does the Detainee Treatment Act of 2005 have on the jurisdiction of the Supreme Court in this case, according to the respondent?
* Where does the president get his authority to convene military commissions as argued in this brief? …