What Now?

I also would like to begin by expressing my thanks to the Opinio Juris team for giving me the opportunity to share some thoughts on the Boumediene decision. My post is a bit tardy due to the fact that I have been in Israel staying in some places with limited internet access. More on some perspective judicial review of military issues inspired from this place towards the end.

As I read through the Boumediene decision, I kept asking myself the same question: what happens now? How will the government respond to the ruling and the inevitable deluge of habeas petitions challenging enemy combatant designations? With full judicial review of these determinations now a certainty, it is natural to assume that the key concern for the government will be to ensure subsequent process is more “protective” of detainee rights. But as I read through the opinion, it struck me that the real battles of the future will not be about process, but about the substantive definition of the term “enemy combatant.”

When the CSRT’s were established, there was clearly an effort to model them after the Geneva Prisoner of War Convention (GPW) article 5 tribunal. Article 5 of the GPW requires that any doubt related to a detainees qualification for POW status must be resolved by a review tribunal. But the value of this model was limited by a simple reality: unlike an article 5 tribunal which applies the definition of prisoner of war (POW) found in article 4 of the GPW, the CSRT’s could not rely on a well established international definition of “enemy combatant.” Instead, the Bush administration created the definition to be applied by the CSRT’s. As the majority reminded us (as if we needed reminding), the scope of this definition was broad enough to include not only individuals captured on the battlefield, but also individuals apprehended in locations far removed from any combat activities.

Although the definition of enemy combatant was not the focus of this opinion, it seems to me that it is remains the critical issue lying just below the surface. Why do I believe this? Professor Kent already noted the sentence in Justice Kennedy’s opinion that hints at the possibility the use of more robust procedure might obviate the need for habeas access (Boumediene suggests that constitutional habeas may be unavailable for some foreigners held abroad if “there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power” (slip op. 65)). But I have my doubts that Justice Kennedy’s use of the term “process” is limited to procedure. This is because of the simple fact that the CSRT is in essence an article 5 tribunal. There is nothing magic about characterization of the review tribunal. Instead, the critical distinction between the CSRT’s and an article 5 tribunal is the standard applied to justify indefinite detention as a necessary incident of war. As a result, it seems to me that because the procedures for an article 5 tribunal are essentially analogous to those of the CSRT’s, the Court was not indicating that merely re-designating the CSRT’s to an article 5 tribunal would cure the defects. Nor that in the future prisoners of war would also be entitled to challenge their detention through the Great Writ. This is because of this fundamental distinction between an article 5 tribunal and the CSRT’s, a distinction that is more about substance than process.

Nor do I believe the distinction is merely definitional. Once an individual is designated a POW, a framework carefully developed to limit the arbitrary exercise of authority by the detaining power comes into force (see here). By removing these detainees from the protections of the GPW, it was the Bush administration that deprived them of the substantive and procedural checks to such arbitrary power, vesting the government with a degree of discretion that the Court was unwilling to permit. Thus, it is this full spectrum of protections for POWs – including a more limited definition of that term – that in my opinion would provide the “process” that Justice Kennedy suggested could obviate the need for judicial review.

So it seems that because the designation of enemy combatant has been used for individuals far removed from the “core” meaning of that term (captured on the battlefield after engaging in hostilities against U.S. or coalition forces), the definition of that term will now become central in the inevitable habeas litigation that will follow this decision. Tinkering with the CSRT procedures will do nothing to resolve the fundamental dilemma lying at the core of this process: the legitimacy of the expanded definition of enemy combatant resulting from treating the struggle against international terrorism as a “global war.” Relying on the current definition of enemy combatant used by the CSRT (an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners) will still require the reviewing court to decide how far “part of or supporting” extends.

So for me, the real “what now” is how the courts will react to the expansive definition of enemy combatant that has resulted in “generational” detention not only for individuals captured in a zone of active military operations, but also those captured in places far removed. I wonder if the government will move to codify that definition or perhaps adopt one more narrowly tailored to the traditional notion of a battlefield belligerent. I certainly believe that such a move is now far more likely than before this decision.

What seems certain is that until the scope of this definition is legally sanctioned, detainees will continue to argue that their attenuation from the military component of the war on terror makes their designation as enemy combatants illegitimate. And until that issue is addressed, the government will continue to struggle to defend depriving individuals of their liberty indefinitely based solely on the “necessities of war.” If there is one certain outcome – and in my opinion benefit of this opinion – it is that after a six year saga of legal opinions, policy decisions, and ongoing detentions the government will finally be forced to clearly articulate and defend the rationale for the expansive application of the term “enemy combatant” that is at the heart of the concept of a Global War on Terror.

A final thought inspired by my current locale. Last week I participated in a conference on the law of armed conflict at Hebrew University, and since then I have been staying with a close friend who recently retired as a Colonel from the legal department of the Israeli Defense Force (his last few years spent as the legal advisor to the commander of the West Bank command), and another close friend from the IDF legal department who studied with me at the Army JAG School. This has given me the opportunity to share perspectives on the role of the judiciary in wartime decisions. What I have found fascinating is routine intervention by Israeli courts in ongoing military operational decisions. But what I have found even more fascinating is how unremarkable this role seems to my friends and other Israeli legal experts at the conference. For them, a judicial opinion prohibiting certain interrogation techniques, or establishing the law applicable to targeted killings, or responding to a request to halt the destruction of a home in the West Bank is a normal part of the legal process. Perhaps more importantly, there seems to be a strong consensus that such a judicial role strengthens the legitimacy of military operations.

Don’t get me wrong, I have not become an advocate of routine judicial intervention in operational military decisions, and I have expressed to my friends here my doubts related to the competence of judges to rule on such matters. But it does strike me that perhaps judicial oversight of certain aspects of military affairs, especially those involving mature theaters of operation and the application of newly conceived concepts to justify government actions, might not be so outrageous. As several other bloggers have noted, this opinion will likely have a substantial positive impact on the international credibility of the U.S. But perhaps it will also make the job of the armed forces a bit easier by finally forcing greater clarity in the standards to be applied during military operations, which seems precisely the benefit that makes my Israeli friends feel so comfortable with their process.