Reno Strikes Back: Files Amicus Brief against Use of “Enemy Combatant” Designation

by Julian Ku

Former U.S. Attorney General Janet Reno and a number of other former U.S. Department of Justice officials filed an amicus brief yesterday in Al-Marri v. Wright, a case currently before the U.S. Court of Appeals for the Fourth Circuit (see the WPost article here).

As a legal argument, the amicus brief offers little that is new or surprising. It argues that the “enemy combatant” designation cannot be used against civilians capture outside the battlefield – this is quite likely to be the next front in the legal war over “enemy combatants” but the brief doesn’t add much.

More interestingly, the brief essentially declares the Military Commissions Act of 2006, which seemed to broadly authorize the detention of enemy combatants, to be largely meaningless. The brief spends a lot of time arguing that such an individual should have recourse to habeas relief. This may be so, but even if the individual does have recourse to habeas, I think the Military Commissions Act still authorizes the detention as an enemy combatant. The detainee could have habeas but this doesn’t mean he will “win” on habeas. The power to detain an individual as an enemy combatant might still be reviewable under the limited due process rights outlined in Hamdi.

But this is not the main thrust of Reno’s argument, which basically points to all the neat anti-terrorism laws that folks can be prosecuted under. She is right, but she is also missing the point. The theory behind enemy combatants is not so much that these individuals are criminals, but that they are enemies who should and can be detained. They might also be criminals, but the detention is not aimed at prosecution or punishment. It is aimed at preventing another attack in the war.

This is not to say that the “war” school is necessarily right. This is plainly not the same kind of war. But Reno et. al’s brief also reveals the pre-9/11 pure law-enforcement mindset that has its own serious problems and deserves a fair amount of criticism as well.

http://opiniojuris.org/2006/11/22/reno-strikes-back-files-amicus-brief-against-use-of-enemy-combatant-designation/

24 Responses

  1. Where to begin?

    1. “The amicus brief . . . argues that the ‘enemy combatant’ designation cannot be used against civilians capture[d] outside the battlefield.”

    No, it doesn’t.

    What it does suggest is that in this one particular case of a person detained here in the United States, the use of the “enemy combatant” process should be viewed with a skeptical eye, because the government at the last minute shifted al-Marri out of the criminal-justice system (where trial was about to commence) to indefinite “enemy combatant” status, based on essentially the same set of allegations.

    2. “The Military Commissions Act authorizes the detention as an enemy combatant.”

    I don’t think there is any detention authority in the MCA for those who are not to be charged in military commissions — but that’s a topic for another day. More to the point, the Reno brief does not address this issue. What it does argue, not over “a lot of time” but in a single sentence (bottom of page 8), is that a person *detained in the United States* should have recourse to petition for habeas, which the MCA appears to foreclose. Do you disagree with this, Julian? Do you think that Congress can strip aliens detained in the United States of the right to petition for habeas, absent a valid suspension? I could be wrong, but I don’t think even DOJ is making such an argument (not yet, anyway). My understanding is that the government now contends that al-Marri will (finally) be offered a CSRT hearing, with a subsequent right to appeal to the D.C. Circuit under the DTA. This may or may not be constitutionally sufficient, but it would only serve to bolster Reno’s claim that indefinite detention in the U.S. without recourse to independent court review is constitutionally suspect.

    3. “The detainee could have habeas but this doesn’t mean he will ‘win’ on habeas.”

    True enough. And the Reno brief doesn’t suggest otherwise.

    4. “The main thrust of Reno’s argument . . . basically points to all the neat anti-terrorism laws that folks can be prosecuted under. She is right, but she is also missing the point. The theory behind enemy combatants is not so much that these individuals are criminals, but that they are enemies who should and can be detained. They might also be criminals, but the detention is not aimed at prosecution or punishment. It is aimed at preventing another attack in the war.”

    I agree — detention of actual combatants for purposes of preventing them from engaging in an attack is permissible, and probably authorized, as a general matter.

    But the Reno brief does not argue otherwise. What it does suggest is that a court should look skeptically at such a military detention when it is done here in the United States. But hey, five Justices (Stevens, Scalia, Souter, Ginsburg, Breyer) expressed the view in Hamdi/Padilla that at least as to citizens, domestic military detention is likely unauthorized and/or prohibited by statute. And of course Milligan held that there are certain limits on military detention of citizens in the U.S. where their actions were a crime and the civilian courts are open. (Al-Marri is a U.S. resident but not a citizen, if I understand it correctly. Perhaps that should make a constitutional difference, but the argument is not obvious.)

    More to the point, the principal thrust of the Reno brief is that in this case, there is good reason to think that the detention was not effected in order to prevent al-Marri from engaging in an attack. The allegations, as sumarized by Reno, are in essence that al-Marri was engaged in credit-card fraud, and that there’s some reason to suspect it was on behalf of Al Qaeda because he made attampts to telephone a purported al Qaeda financier and his computer contained jihad and martyrdom lectures by Osama bin Laden and his cohorts.

    This sort of non-combatancy conduct would, of course, be prosecutable under our criminal laws, and that’s exactly what the government was doing until the judge scheduled a hearing on al-Marri’s motion to suppress evidence that he alleges was unlawfully obtained. At that point — years into his detention — al-Marri was suddenly declared an enemy combatant. Of course, this conveniently cirumvented any need to actually prove guilt at trial, or to defend against a suppression motion. As Reno, et al. argue in their brief:

    For nearly a yearand-a-half, the government handled al-Marri’s case within the criminal justice

    system before deciding, virtually on the eve of trial, to abandon the criminal prosecution and attempt to place al-Marri beyond the reach of the law. The implications of the government’s about-face are considerable: the government is essentially asserting the right to hold putative enemy combatants arrested in the United States indefinitely whenever it decides not to prosecute those people

    criminally—perhaps because it would be too difficult to obtain a conviction, perhaps because a motion to suppress evidence would raise embarrassing facts about the government’s conduct, or perhaps for other reasons [ML: such as the desire to engage in coercive interrogation of the suspect].

    Those facts ought to give anyone pause.

    Which is exactly the point of the Reno brief.

  2. Marty,

    We look forward to your response to Julian’s recent paper co-authored with John Yoo: ‘Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch’ (at SSRN and posted yesterday at Larry Solum’s Legal Theory Blog): http://lsolum.typepad.com/legaltheory/

    Indeed, perhaps you and Julian can have a dialogue on the argument(s) in this paper. I think readers would enjoy and benefit from such a discussion.

  3. Come on Julian, this isn’t complicated…

    1) The term “enemy combatant” is a tautology meaning “anyone the Bush administration calls an enemy combatant.”

    2) Being called names by George W. Bush is nothing like a fair trial or a conviction.

    3) The CSRTs are nothing but an empty sham.

    *

    The serious problems here are all yours — the question remians:

    What protects a two year old child from from being designated an “enemy combatant” and tortured by the Bush administration?

  4. On the question of who, exactly, may be detained as an “enemy combatant” under the laws of war (and thus under domestic law), I highly recommend this additional amicus brief in Al Marri filed on behalf of law-of-war scholars by, inter alia, Jenny Martinez and Allison Danner:

    http://makeashorterlink.com/?Z3C521E3E

    It’s the best and clearest treatment I’ve yet seen. (Obviously, the Bradley/Goldsmith article in Harvard on the AUMF is also very important and thorough on this question.) The only thing I wish the brief would have elaborated further is whether and how the rules for preventive detention differ from the rules relating to the right to use lethal force. I am troubled, for instance, by the fact that the Quirin defendants and Hamdi were not engaged in active combatancy when they were arrested. I can see how it would have violated the laws of war to shoot them on sight. But why aren’t the rules for detention different?

    Example: In World War II, would it have been lawful for the U.S. to detain indefinitely the German financiers and planners of the war, or the scientists helping to develop nuclear weapons? Obviously, we couldn’t kill them on sight. But take them out of service? Is the answer simply that we could do so, but that they’d be entitled to the protections for civilians in Geneva IV? (See note 23 of the Martinez/Danner brief.)

  5. Patrick: I quickly perused that paper yesterday, as a matter of fact. It’s part of a cottage industry on the issue now, including various pieces by Cass Sunstein (one with Eric Posner), and a recent draft of a very fine article by Derek Jinks and Neal Katyal (available on SSRN).

    Three very, very brief reactions to the Ku/Yoo article:

    1. The principal thrust of the paper is incredulity that the Court in Hamdan did not defer to the Bush Administration’s interpretations of the UCMJ and Common Article 3. There’s an elephant sitting in the middle of the room, however, which the authors nowhere acknowledge:

    Most of those Executive interpretations were hatched by one of the paper’s own authors, who for many years has demonstrated extreme hostility to human-rights treaty obligations and to any statutory constraints on the Executive.

    John’s work at OLC understandably reflects those predilections, which appear to be shared by the President and Vice President. In my humble opinion — and, more importantly, in the eyes of the Court — those interpretations were hardly attempts to come up with the best, or proper, constructions of the governing laws and treaties; they were, instead, interpretations that quite unapologetically adopted the most aggressive pro-Executive slant imaginable, often in conflict with the “expert” views of those elsewhere in the Administration to whom deference is typically paid, such as in the State Department and the Criminal Division of DOJ. What’s more, the Administration had frequently and provocatively asserted that the President has the power to ignore treaties and statutes to the extent they constrain him from fighting the war in the manner he deems most effective.

    The Court knew all this, of course. Is it any wonder, then, that it would not pay any deference to those interpretations? The Court had no reason to think that the those interpretations reflected a sincere effort to faithfully execute the law, as Article II requires. There may be much to be said for the merits of some of those interpretations, and even for their aggressively pro-Executive presumptions, although obviously many of us would beg to differ. But I can’t see why Justices Stevens, Kennedy, et al., would think that John’s — and the Administration’s — very unorthodox views about, e.g., the coverage of Common Article 3 should be entitled to any deference — not, anyway, if the Court sees its role as trying to discern the actual intent of those who drafted and ratified the treaty.

    So, for example, I think the most revealing passage in the paper is on page 124, where Julian and John argue that in order to determine whether the conflict with Al Qaeda is “not of an international character,” it is not sufficient to construe the phrase “international character,” i.e., not sufficient to actually interpret the Geneva Conventions: “It [also] requires an analysis of the nature of the military conflict . . . against Al Qaeda and the likely effect of [U.S.] compliance with Common Article 3 on its ability to wage that conflict.”

    This exactly describes what happened in the Bush Administration. Common Article 3 prohibits the use of cruel treatment and torture — but the Administration thought that it was important to be able to use cruel treatment and torture. Compliance with Common Article 3 thus would get in the way of how it wanted to prosecute the war — and for that reason, the Administration was heavily predisposed to “construe” Common Article 3 not to apply to this armed conflict.

    The Court understood this — that it was the Administration’s desire to engage in cruel treatment that was driving its “interpretation” of CA3. If that’s so, why on earth should the Court defer to that interpretation?

    3. The paper, like many, appears to assume that the Court has always (until recently) deferred to the Executive’s interpretations of statutes, treaties and the laws of war in cases bearing on the conduct of war (and foreign relations generally). Obviously, it’s not hard to find cases where the Court has deferred. But it’s also not difficult to find cases where the Court has rejected the Executive’s interpretations, without paying any deference. Indeed, that describes virtually every war-powers or national-security case that the Executive has ever lost in the SCOTUS, including but certainly not limited to: Little v. Barreme, U.S. v. Brown, Milligan, Endo, Duncan, Youngstown, Pentagon Papers (esp. the White/Stewart and Marshall opinions), Rasul, and Hamdan/Padilla (with respect to the indications that the detention authority was limited in certain non-constitutional respects).

    Understanding of the nature and history of Supreme Court deference can’t be complete without careful attention to these and other cases — they’re not obscure precedents, after all.

    4. For my purposes, perhaps the most intriguing parargraph is the one on page 127, in which Julian and John appear to argue that Congress is constitutionally empowered to “check” any Executive foreign affairs initiatives with which it does not agree. To the extent this reasoning were applied to the President’s war powers, it would, of course, be directly contrary to the memos John wrote while at OLC, asserting a broad Commander-in-Chief prerogative to ignore statutory limits. Interesting. On the other hand, see note 116, in which Julian and John assert (incorrectly, in my view) that whether Congress could prohibit the President from convening military commissions is a “hard[] question.”

  6. Oops — that should, of course, be points 1, 2 and 3. Innumeracy. ;-)

  7. I would suggest that blurring the distinction between combatant and civilian has the effect of permitting the indefinite detention of any persons designated by the state as enemies of the state. The hurdles inherent in being able to establish that someone is missing (see Jack Lemmon in the movie Missing) are tremendous. Who is considered an enemy of the state would be treated as a state secret of course.

    Julian appears comfortable with allowing persons to run the risk of falling into that space under the broad language of the Military Commissions Act. I suspect those who feel that way are also certain that they themselves personally would never be identified in that manner and indefinitely detained. This assumption is the fundamental error of those who are asserting the need for these types of laws with broad authority to protect us.

    The most anodyne activity can be recharacterized as a threat to the state and a person characterized as an enemy of the state. For example, whole municipalities were sundown towns where no blacks were allowed to be in town after sundown as a measure of assuring security for the white population.

    It would seem that the conservatives would recognize the danger of giving the state such broad authority to make persons disappear. Or maybe, the conservatives have spent so much time deriding human rights activists that they have forgotten that the state is not always benevolent and not always supportive of one’s point of view.

    That’s why we protect the space of liberty for all of us.

    It seems that Julian and John and others of that part of this discussion just do not really understand what freedom is about, what human rights are about, what self-defense is about, and what limited government should be about.

    I do not want to live in a place where sweeps by government agents can go on to make persons be held indefinitely. I know, people think that could never happen in America. If you think that, then you are naive.

    Best,

    Ben

  8. Thanks so much Marty: even your ‘very, very brief reactions’ are informative if not rather illuminating.

    And Happy Thanksgiving to all!

  9. Marty,

    Re your question on preventive detention: the answer you yourself provide is quite correct. Any person not qualifying for protection under the Third Geneva Convention (e.g. an unlawful combatant) is entitled to protection under the Fourth Geneva Convention. There is no gap between the two.

    So, if the US wished to detain German financiers during World War II, it could do so if it were absolutely necessary for US security under Article 42 of GC IV. However, the internment could not be indefinite, but could last only while the same security reasons exist according to Article 132 of GC IV, and, even so, the internees must be released upon the close of hostilities under Article 133 of GC IV. There is therefore no possibility for indefinite detention under the law of international armed conflict.

    But, there is an unfortunate problem with the Hamdan decision, in that it could be interpreted as ruling that the Global War on Terror ™ is a non-international armed conflict, as the Court seemed to have ruled that Common Article 3 applies as a matter of treaty law to the putative armed conflict between the US and al Qaeda. This reading of Hamdan, which to me seems to be the textually most plausible, is extremely dangerous for Hamdan and other detainees in Guantanamo. Unlike the law applicable in international conflicts, the law of non-international armed conflict provides neither the authority nor the limits on the authority to detain anyone. In internal conflicts it is solely the domestic law of the relevant state (if human rights law is out of the picture) which governs detention, and if it says that indefinite detention is fine, then there is nothing in IHL to contradict that.

  10. I think that’s right, Marko — that according to the Court’s view in Hamdan, the conflict against Al Qaeda (at least outside Afghanistan) is covered by CA3 and not by GCIII and GCIV. And I actually think that’s probably right — or, in any event, that the Court was never going to hold that Al Qaeda agents are protected by GCs III and IV, and so CA3 is the most possible protection anyone could reasonably expect. (The Protocols appear to have been drafted on the same assumption that GCIII and GCIV don’t apply to this sort of conflict.)

    And I think Danner and Martinez realize that, too, which is why they have focused on the customary laws of war — as incorporated in domestic law — as much or more than on the Geneva Conventions as such.

  11. Marty,

    I agree completely. The problem is that CA3 offers no solutions to the problem of indefinite detention, unless you successfully argue that indefinite detention amounts to inhuman treatment, which I would certainly agree with.

    Where Hamdan is inconsistent with IHL is in its basic assumption that the ‘war’ between the US and al Qaeda can be a non-international armed conflict. There has never been such a conflict, nor is there any support in state practice for a change in the scope of CA3. CA3, as all of IHL, is simply inapplicable to someone accused of credit card fraud in order to finance terrorist operations within the US.

  12. Marko: This is where I get confused with IHL folks.

    This is an armed conflict with Al Qaeda, in fact (wholly apart from int’l law). And it’s one that Congress authorized 518-1.

    OK, so are there any international law constraints on the prosecution of that conflict? The Administration says no.

    But why isn’t it a non-international conflict described by CA3? Seems to me that it is. The Court got it right, in other words. (It surely doesn’t fit in GCIII or GCIV generally.)

    If you were right that CA3 doesn’t apply, then I don’t see why there’d be any international law protections at all (or are you holding out the possibility of customary law protections?).

    I agree that CA3 doesn’t speak to military detention as such (as opposed to the conditions of detention). Therefore, the real action here is not in Geneva, but in the laws of war, which delimit the authorization that Congress gave to the President for this conflict. And so the question I have — which Danner and Martinez begin to answer — is what sorts of detentions are permitted, and of whom, under the customary laws of war.

  13. Marty, but that is precisely the problem: the customary (and conventional) law of war does not contain any generic definition of what an armed conflict is. It only regulates international armed conflicts, i.e. wars, and non-international armed conflicts, i.e. internal conflicts.

    Despite the phrase, non-international armed conflicts are not the product of some sort of residual definition, a catch-all type which would cover all ‘armed conflicts’ which are not international, i.e. inter-state conflicts. On the contrary, non-international armed conflicts are conceptually autonomous from international conflicts – they are those instances of protracted armed violence within a state which are by intensity greater then mere disturbances, and which do not have to have the intensity of full-fledged civil wars, such as the American or the Spanish ones.

    It is therefore not possible, as customary law stands now and as it has stood for decades, to claim that the United States is engaged in an armed conflict with al Qaeda as such all over the world. There is simply no precedent for such a situation, and it is disingenous to claim that this situation as a whole is covered by the law of war. It just is not, and this has absolutely nothing to do with whether one opts for the ‘war’ paradigm or the ‘crime’ paradigm of fighting terrorism. The law of war will apply to some components of this global conflict, such as Iraq and Afghanistan, and it will not apply at all to others.

    Now, it is possible that customary law is changing, but I’ve seen no evidence of that. I also see no purpose, as a policy matter, in applying the law of war to this global situation. What’s the point in saying that Al-Marri is a combatant or a civilian? The only reason why we are discussing the issue is because the US administration is completely distorting the applicable rules in order to detain people without any sort of independent supervision.

  14. The commentary on common article 3 of the ICRC does not take as restrictive a view (i.e. internal conflicts not rising to civil war like the American or Spanish) of non-international conflicts.

    From the commentary on the ICRC website.

    “We think, on the contrary, that the scope of application of the Article must be as wide as possible. There can be no drawbacks in this, since the Article in its reduced form, contrary to what might be thought, does not in any way limit the right of a State to put down rebellion, nor does it increase in the slightest the authority of the rebel party. It merely demands respect for certain rules, which were already recognized as essential in all civilized countries, and embodied in the national legislation of the States in question, long before the Convention was signed. What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture and mutilate prisoners and take hostages? No Government can

    object to observing, in its dealings [p.37] with enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact observes daily, under its own laws, when dealing with common criminals.

    Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with ‘ armed forces ‘ on either side engaged in ‘ hostilities ‘ — conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.”

    I recognize that the commentary vacillates to some extent trying to capture what is in or not in, but I would hesitate to be so categoric about its application not being a catch-all. Maybe we might consider CA3 a “catch a very extensive amount if not all” in the spirit of that commentary.

    Done that way, I would think that outrages on personal dignitiy or inhuman are perfectly valid bases for asserting indefinite detention without charge tied to a vague unending war (in short some type of disappearance) would be a CA3 violation without further resort to the domestic law for criminal detention.

    Best,

    Ben

  15. “The only reason why we are discussing the issue is because the US administration is completely distorting the applicable rules in order to detain people without any sort of independent supervision.”

    I think Marko is exactly right — and they’re doing so in violation of 18 USC 2441(c)(2) as it refers to Hague IV 1907 art. 23[h], speaking of customary law. As Lieber put it, “Military oppression is not Martial Law: it is the abuse of the power which that law confers.”

  16. “At that point — years into his detention — al-Marri was suddenly declared an enemy combatant. Of course, this conveniently cirumvented any need to actually prove guilt at trial.”

    The core of the government claim in this case is “In the summer of 2001 al-Marri was introduced by Khalid Shaykh Muhammed, September 11th mastermind, to Usamu Bin Laden, and al-Marri offered to be an al Qaeda martyr or do anything else al Qaeda requested. He was directed to enter the United States as a “sleeper agent”.”

    It seems reasonable to assume that they determined this from the interrogation of KSM, who was capture in Pakistan on March 1, 2003. Allowing time to transfer KSM, interrogate him, and filter the data through the system, it is not surprising that al-Marri was declared an enemy combatant on June 23, 2003.

    There was a mountain of evidence for credit card fraud and no reason to believe that the case would be hard to prosecute. Once they discovered that he was an enemy combatant, he had been in the criminal justice system for a year and a half. They decided to act on the new evidence and reclassify him. Why is this so hard to understand?

  17. It’s not hard to understand at all Howard:such tyrany is commonplace in the historical record, from lynchings here in the US to the Soviet Gulag to the Nazi death camps all the way back to the psychotic whims of Caligula and beyond.

    What’s hard to understand is how any US citizen could ever imagine for one second that any US official has the authority to imprison or torture someone without due process of law. And it even harder to understand how such an individual could be a lwayer or a law professor and openly advocate such criminal conduct.

  18. Ben,

    The ICRC Commentary does indeed adopt a ‘restrictive’ definition of what non-international armed conflicts. By restrictive, I mean that it explicitly says that non-international armed conflict are “conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.”

    That’s what they are, and any idea of a global non-international armed conflict is a total contradiction in terms.

    Furthermore, when the ICRC says that the scope of application of CA3 must be as wide as possible (as cited by the Supreme Court in Hamdan, btw), they are not saying that CA3 applies to ‘transnational’ conflicts (whatever these may be), but are saying that CA3 applies not only to full-fledged civil wars, but also to internal conflicts which are much lower in intensity.

    So, I have no problem in principle in applying CA3 to Hamdan, but the reasoning the Supreme Court gives is completely incoherent.

  19. “What’s hard to understand is how any US citizen could ever imagine for one second that any US official has the authority to imprison or torture someone without due process of law.”

    It is harder to imagine torture with due process of law. However, as to holding prisoners, the US held 435,000 Axis POWs in camps throughout the US. None were given “due process of law” if by that you mean criminal charges and trials. This is the first war in US history where POWs have been granted wide access to civilian courts.

    If al-Marri is an enemy combatant, then he is being held properly. If he is not, then his rights are being violated. The amicus briefs in this appeal assert that you can decide status based on law without inquiring into the facts. I would simply argue that the question of whether al-Marri is or is not an enemy combatant is a fact to be decided in a hearing (such as the one he was given in US District Court currently under appeal) and not something you can determine by reading different sections of the Geneva Conventions.

  20. “It is harder to imagine torture with due process of law.”

    Well maybe you should expand your horizons. Like maybe do a little reserch on conditions in US “Super Max” prisons, the proposals of Alan Dershowitz and others for “torture warrants”, or the views of Julian’s colleauge Prof. Yoo as to the authority of the President to crush the testicles of children.

    “This is the first war in US history where POWs have been granted wide access to civilian courts.”

    False: the government in fact DENIES that these detainees are POWs. The only authority for such detentions is Geneva III 1949 — anyone else is a civilian (see Geneve IV, art. 4).

    “If al-Marri is an enemy combatant, then he is being held properly. If he is not, then his rights are being violated. The amicus briefs in this appeal assert that you can decide status based on law without inquiring into the facts.”

    But that’s just the point: you are assuming that the expression “enemy combatant” is meaningful but it’s just a phony tautology that means “someone George Bush calls an enemy combatant”. The only fact in evidence is an unsupported claim that the administration is going to absure lengths to prevent being subjected to anything that would remotely resemble impartial hearing as to the facts.

    The only thing that’s going on here is guilt by association and guilt on suspicion.

    Are Laura Bush and US tax payers combatants because they are complicit in the war crimes of George W. Bush?

    By the administration’s reasoning, that is exactly what they are.

    I have no evidence that Al Marri has ever used a weapon in his life. What the facts say is that he’s been imprisoned under false pretences in violation of the US Constitution.

  21. “So, I have no problem in principle in applying CA3 to Hamdan, but the reasoning the Supreme Court gives is completely incoherent.”

    Marko, that’s becasue the court was assuming the government’s position arguendo. The government’s contention is that the war with Al Qaeda is a separate conflict from the war in Afghanistan, which affects whether CA2 or CA3 applies. The court basically was saying “we don’t have to resolve whether CA2 or CA3 applies because CA3 is the minimum, and it’s enough to conclude the military commissions are unlawful”.

    The district court in fact held that CA2 applied, and that Hamdan was therefore entitled to the presumption of POW status under Geneva III art. 5. That ruling stands, but now the court is briefing a motion to dismiss for lack of jurisdiciton under the MCA.

  22. Comment above: “I have no evidence that Al Marri has ever used a weapon in his life. What the facts say is that he’s been imprisoned under false pretences in violation of the US Constitution.”

    According to the Rapp Declaration, “Al-Marri trained at Bin Laden’s Afghanistan terrorist training camp for 15-19 months between approximately 1996 and 1998.” So the government claims to have evidence that he joined the military arm of Al Qaeda and had military training. However, you are correct if you mean to say that he did not use a weapon in combat against the US because he entered the US on his mission the day before 9/11 and was not part of the subsequent fighting.

    In ex parte Quirin, the Supreme Court noted that weapons are not necessary to the charge that a spy is an unlawful belligerent/combatant: “As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States”

    Al-Marri had his evidentiary hearing and refused to present any evidence to dispute the claims. Judge Floyd found:


    Given Petitioner’s refusal to participate in the initial evidentiary process and his failure to offer any evidence on his behalf, it is beyond question that he has failed to present “more persuasive evidence” to rebut Respondent’s classification and detention of him as an enemy combatant. Further, given the imbalance between the evidence presented by the parties, the Government clearly meets any burden of persuasion which could reasonably be imposed on it at this initial stage. Proceeding incrementally, as Hamdi directs, the Court need go no further today. Accordingly, under Hamdi’s outline of the procedures applicable in enemy combatant proceedings, the Court finds that Petitioner has received notice of the factual basis supporting his detention and has been afforded a meaningful opportunity to rebut that evidence. As a review of that evidence does not indicate that an “erroneous deprivation” has occurred, Hamdi, 542 U.S. at 534, this petition should be dismissed.

    Comment above: “you are assuming that the expression ‘enemy combatant’ is meaningful”

    Quirin: “Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The 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.”

    The decision to subject a spy to military trial is up to the government, and in this case the government has so far simply decided to detain.

  23. Marko,

    It is the sentence before in the commentary that strikes me –

    “No Government can object to observing, in its dealings [p.37] with enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact observes daily, under its own laws, when dealing with common criminals.”

    Rather than choose between the war or crime paradigm, we should maybe use simultaneously the war and crime paradigms depending on which appropriately describes the situation in each of several given places.

    It would seem unremarkable to look around the world and say some places are places of armed conflict that trigger some type of Geneva protections and others are places of criminal law.

    With further information I can imagine a person being reclassified from criminal to enemy combatant subject to detention or back the other way or freed.

    Also, a recognition that a new front has opened in an armed conflict may change the view of a given place as place of armed conflict or not.

    But within all of that whether as CA3, GCIII or GCIV, diplomatic protection, or internal law in a civilized country – torture and cruel inhuman or degrading treatment are out of bounds. No matter how you wind through the treaties, the customary international law or the domestic law and no matter whether the vision is a risk vision or harm vision (borrowing from Lawrence in another place here) – from the point of view of the individual, torture cruel inhuman or degrading treatment being out of bounds has to be and is the ultimate bottom line of all these legal regimes.

    And when people are treated less well than that bottom, then that government action falls below the minimum and has to be brought into compliance by persons of good will and states of goodwill that seek to require compliance with the minimum.

    Without that then you seem in my opinion to get to the situation of the Nazi or Soviet states where the individual is a mere thing.

    I do not find it impossible to hold in my head a transnational non-international armed conflict and to see CA3 operating across borders. Once one defines international as “between states” one has the space for such an idea to emerge. A single state conflict that crosses its local borders is not knew – see the South African setting with the ANC in Botswana.

    But, whichever regime you want to use you have to ask if there is some minimum in international and domestic law that is operating.

    I read Hamdan as saying there is such a minimum – maybe inelegantly but saying that and that is to the credit of Justice Stevens.

    The error in my opinion is in fighting about the boxes and not focusing on the common theme that runs through all the boxes.

    Best,

    Ben

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