Does the U.S. Need a Declaration of War on Al-Qaida?

The somewhat surprising answer from U.S. Attorney General Michael Mukasey is “Yes!”, or at least an acknowledgement that  “the Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans–soldiers and civilians alike.”  This is one takeaway from an address he made today at the American Enterprise Institute. In essence, this is the official Executive Branch response to this summer’s blockbuster (and my view dangerously wrongheaded) Boumediene opinion by the U.S. Supreme Court.  There is a lot more to the address as described by the WPost here, but for international lawyers, it is interesting that the U.S. A-G thinks it is important to clarify the existence of an armed conflict with Al-Qaida.  As a political move, this is an interesting move, since it would force members of Congress to go on record about whether or not this is really a “war” and it will no doubt eliminate a lot of political posturing.  On the other hand, acknowledging the existence of an armed conflict seems a bit redundant for U.S. law purposes under the September 11 Resolution, and it is unlikely to persuade international lawyers much either way.  So we’ll see if this goes anywhere.  Here are the key excerpts from the address:

So, today, I am urging Congress to act to resolve the difficult questions left open by the Supreme Court. I am urging Congress to pass legislation to ensure that the proceedings mandated by the Supreme Court are conducted in a responsible and prompt way; and, as the Court itself urged, in a practical way. I believe their are several principles that should guide such legislation. First and foremost, Congress should make clear that our federal court may not order the government to bring enemy combatants into the United States.

There are more than 200 detainees remaining at Guantanamo Bay and many of them pose an extraordinary threat to Americans. Many have already demonstrated their ability and their desire to kill Americans. As a federal judge I presided over a prominent terrorism-related trial and the expense and effort required to provide security before, during and after that trial were staggering. Simply bringing a detainee into the United States for the limited purpose of participating in this habeas proceeding would require extraordinary efforts to maintain the security of the site.

To the extent detainees need to participate personally, technology should enable them to do so by video link from Guantanamo, which is both remote and safe. Far more critically, although the constitution may require generally that a habeas court have authority to order release, no court should be able to order that an alien captured or detained during wartime be admitted and released into the United States.

Second, it is imperative that the proceedings for these enemy combatants be conducted in a way that protects how our nation gathers intelligence and what that intelligence is. In a terrorism case I mentioned a minute ago, the government was required to turn over to the defense a list of unindicted co-conspirators, a list that included Osama bin Laden. This was in 1995, long before most Americans had ever heard of Osama bin Laden. As we learned later, that list found its way into bin Laden’s hands in Khartoum tipping him off that the United States government was aware not only of him, but also of the identity of many of his co-conspirators.

We simply cannot afford to reveal to terrorists all that we know about them and how we acquired that information. We need to protect our national security secrets and we can do so in a way that is fair to both the government and the detainees alike.

Third, Congress should make clear that habeas proceedings should not delay the Military Commission trials of detainees charged with war crimes. Twenty individuals have already been charged, and many more may be charged in the upcoming months. Last Thursday, we received a favorable decision from a federal court rejecting the effort of a detainee to block his military commission trial from going forward, but detainees will inevitably file further court challenges in an effort to delay these proceedings.

Americans charged with crimes in our courts must wait until after their trials and appeals are finished before they can seek habeas relief. So should alien enemy combatants. Congress can and should reaffirm that habeas review for those combatants must await the outcome of their trials. The victims of the September 11 terrorist attacks should not have to wait any longer to see those who stand accused face trial.

Fourth, any legislation should acknowledge again and explicitly that this nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans, soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

Fifth, Congress should establish sensible procedures for habeas challenges going forward. In order to eliminate the risk of duplicative efforts and inconsistent rulings, Congress should ensure that one district court takes exclusive jurisdiction over these habeas cases and should direct the common legal issues be decided by one judge in a coordinative fashion. And Congress should adopt rules that strike a reasonable balance between the detainees’ rights to a fair hearing on the one hand, and our national security needs and the realities of wartime detention on the other hand.

In other words, Congress should accept the Supreme Court’s explicit invitation to make these proceedings in a word repeated often in the Boumediene Decision — practical — that is, proceedings adapted to the real world we live in, not the world we wish we lived in. Such rules should not provide greater protection than we would provide to American citizens held as enemy combatants in this conflict; and they must assure that court proceedings are not permitted to interfere with the mission of our armed forces.

In other words, soldiers fighting the war on terror, for example, should not be required to leave the front lines to testify as witnesses in habeas hearings. Affidavits prepared after battlefield activities have ceased should be enough. And, military personnel should not be required to risk their lives to create the sort of arrest reports and chain of custody reports that are used under very different circumstances by ordinary law enforcement officers in the United States.

As one editorialist put it, this is not CSI Kandahar. Federal courts have never traded habeas corpus as demanding full-dress trials, even in ordinary criminal cases. And it would be unwise to do so here, given the grave national security concerns that I have discussed.

Sixth and finally, because of the significant resource constraints on the government’s ability to defend the hundreds of habeas cases proceeding in the District courts, Congress should make clear that the detainees cannot pursue other forms of litigation to challenge their detention. One unintended consequence of the Supreme Court’s decision in Boumediene is that detainees now have two separate and redundant procedures to challenge their detention: One under the Detainee Treatment Act, and the other under the Constitution.

Congress should eliminate statutory judicial review under the Detainee Treatment Act, and it should reaffirm its previous decision to eliminate other burdensome litigation not required by the Constitution, such as challenges to conditions of confinement or transfers out of United States custody.

Here I must make explicit and perhaps risk reiterating a point that I would hope was obvious from the discussion so far. We’re talking here about habeas corpus proceedings, not about criminal trials of the sort that some, but not all of the detainees at Guantanamo Bay may face. Some people have argued that we should charge the detainees we are holding at Guantanamo with crimes or release them. We can and we have charged some detainees with war crimes. These proceedings are exceptionally important, and I referred to them earlier.

But to suggest that the government must charge detainees with crimes or release them is to seriously misunderstand the principle of reasons why we detain enemy combatants in the first place. It has to do with self-protection, because these are dangerous people who pose threats to our citizens and to our soldiers. The Department of Defense and the Department of State have worked together to release those whom we believe can be transferred to a third country, consistent with the safety of our citizens and our military personnel abroad, and with our humanitarian commitments.

Of the 775 people who have been detained at Guantanamo, only about one-third remain. The fact that we have not charged all of those remaining at Guantanamo with war crimes should not be regarded as a fair criticism of our detention policies. Rather, it reflects the fundamental reality that these individuals were captured abroad in an armed conflict, not in a police raid.

These are the central principles that should govern Congress’s effort to legislate in this area. I think they are principles that should have bipartisan support, because they would provide unprecedented access for enemy combatants to challenge their detention in federal courts, while at the same time protecting the security of our citizens.