David Cole on Detention in the Boston Review, and Joanne Mariner, Robert Chesney and Eric Posner Respond

by Kenneth Anderson

Treat this as the latest round in the Guantanamo discussion …  David Cole writes in the Boston Review on detention.  Joanne Mariner of Human Rights Watch, Bobby Chesney and Eric Posner all respond online there.  But if it’s sensible and legal now, why wasn’t it sensible and legal during the Bush years?  Is this the same David Cole who appeared on panels with me over the last few years and who didn’t seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release?  And certainly no sympathetic words for the views of the several co-panelists who said, well, you know, some of these people you really might not want to release no matter what, and by the way there are doctrines under the laws of war that allow detention … Eric says he hasn’t been through David’s stuff closely enough to be able to say whether this is a change of mind.  Well, I’m through a re-read of three of David Cole’s last four books, the ones that just happen to be sitting on my shelves.  I suppose it’s possible that after wading my way backwards through all this stuff, I’ll decide differently and conclude that all along these books held a theory of administrative detention in wartime applicable to various Bad Non-Innocent Shepherds at Guantanamo, etc., etc. and I was just not bright enough to see it.  Maybe, and this is not definitive, it’s just a blog post, that’s all (and if I conclude I’m wrong about this, I’ll come back and post a note here to that effect, to avoid the ‘memory hole of the public intellectuals’).  But at this point it is hard for me to see how this isn’t walking back the dog now that the Obama folks are about to take the reins and with no other reason or justification.  And it is equally hard for me to see that this isn’t what a law partner once long ago told me we were going to do after having given some spectacularly bad advice: “Look ’em in the eye and say, consistent with our earlier advice to x, not x.”


23 Responses

  1. I posted this over at Volokh and repeat it here.

    Eric! Eric! Eric!
    In your rush to think yourself vindicated you miss what he said.

    If the United States could lock up German soldiers during World War II without trying them criminally, why should it not have the same option for al Qaeda fighters? The fact that the armed conflict with al Qaeda is not a war between nations ought not disable the government from holding its enemies preventively while the conflict goes on.

    GCIII Article 4 definitions encompass many of these prisoners with them having POW status which would mean they could have been held to end of the hostilities.

    GCIV Article 5 detention of security detainees is also permitted.

    This is not – by a stretch – the kind of preventive detention regimes that have been suggested. There is no national security court. There is no separate track for Muslim extremists. There is no movement away from the war model or the criminal model. What there is is a meaningful review quickly as to whether a person should be held (as was done over and over in the First Gulf War) and their status, rather than the kind of blanket fiat approach of the Presidential terribly erroneous February 7, 2002 order.

    For persons captured away from the battlefield or in countries in which we are not in conflict, it is possible that Cole is seeing a possibility of them being detained and held upon some basis that can stand up for review by a court. Those persons are being assimilated to security detainees in an occupied area. I think that in practice this will be unworkable because the security risk of such persons will be difficult to prove. On the other hand, Judge Leon seemed to have enough information on one of the Bosnian six to be able to make that distinction in a manner that looked reasonable.

    And now, for all you crusaders for torture out there, with the Senate report (http://www.washingtonpost.com/wp-dyn/content/article/2008/12/11/AR2008121101969.html?hpid=moreheadlines) is out and we can see in the Unclassified Executive Summary of the report (http://media.washingtonpost.com/wp-srv/nation/pdf/12112008_detaineeabuse.pdf?sid=ST2008121101970&s_pos=list) is devastating in taking us back to December 1, 2001 in the conspiracy to torture. If that is the way the detention is going to operate, then it will be illegal and a crime under any new administration also.

    Cole seems to be telling us to go back to the POW model of World War II which worked provided we have meaningful review to make sure we most likely have the right persons in detention. To herald that as some enthusiasm for preventive detention is simply disingenuous Eric and shame on you.


  2. Well I have a simple suggestion: obey the law and quit thinking there’s any reason not to. The law isn’t the problem here — it’s all the incompetent lawyers who are either lying criminals and / or deluded fools. The Bush gang are WAR CRIMINALS, that is all that they are, their legal arguments were fraudulent from day one, and it’s time for folks to get over the notion that their policies ever had the least credibility or legality. They never did, and it’s damned disgrace that so many lawyers went along with them one way or another.

    Cole’s suggestion is silly. The idiotic neo-fascist gangsterism of the Bush administration should be repudiated as what it is, not coddled, accommodated, or condoned.

  3. When someone starts name-calling, I know even they don’t think their argument is very strong.

  4. This issue appears to break down along ethnic lines. And that disturbs me. In other words, identity politics creep into it. 

  5. For me, all political discussion is captured in the passage from 1984 where Winston Smith muses on the bad old days under capitalism:  “Pregnant women had to work in the coal mines.  (Pregnant women still did work in the coal mines.)”

    Or maybe it was Pete Townsend, and David Cole work for the new boss.

  6. To liberals, all conservatives are war criminals and no terrorists are. I think it’s a religious doctrine. 
    Obama must be held to the same standards as Bush. Anything else is pure hypocrisy. But like corruption and hate, hypocrisy is something I expect Obama supporters to ignore.

  7. Darren,

    Accurate descriptions are NOT “name calling”. It’s been seven years now — and all you’re telling me is that you’re dishonest.


    A criminal is a criminal, and I’m not confused about it in the least. As for “conservatives”, facts are not religious doctrines and fascist criminals aren’t conservative.

    What you mostly are is bunch of demented fools and lying hypocrites.

  8. Look folks – just read the Senate Armed Service Committee Executive Summary and decide for yourself if it was just Charles Graner and Lynndie Englund on a lark at Abu Ghraib.  Remember those folks were convicted and went to jail.  Why not the REMF’s too?

  9. Charles,

    You really need to do something about that foaming @ the mouth that the mention of the name Bush causes you.

  10. Liberals, as intellectually honest as the day is long, at Nome, next week.

  11. No Will, you folks just desperately need to find a faint clue — and after seven years of following this nonsense day in and day out, I’m not confused about the ignorance and malicious dishonesty of the Republican Party in general, or Republican lawyers in particular.

    As for you Fat Man, talk to me when you’re honest enough to post under your own name. It never ceases to amaze me how utterly corrupt and dishonest you people are.

  12. Blather.  Ramble.  Diss.  Slam.  Insult.
    [insert slightly topical sentence here.]
    Blather.  Put Down.  Name call.  Diss. Slam.  Insult.
    (Save for Benjamin Davis’s first comment, this comment thread has been so sad)

  13. Michael, FACTS ARE FACTS. You do understand that, correct?

    We’ve been through seven years of this outrageous crime spree now. I don’t how old you are, but I grew up listening to people wonder how a civilized culture like Germany could produce the Nazis. It didn’t dawn on me how ironic it was to be wondering such rhings in a country that could produce the KKK until later.

    Did you have some constructive comment of your own??

    OH NO — you’re just having a fainting spell over some one else’s indelicate opinion.

    Well I’m sorry to intrude on your sheltered existence, but these
    people are liars, they are hypocrites, they are sociopaths, and they are MURDERERS. If you don’t understand that after the last seven years, it’s only because YOU aren’t paying attention.

  14. There are two long established detention mechanisms. One is the civilian domestic criminal justice system that operates under domestic law, the other is the wartime detention of Enemy Prisoners of War (EPWs) and enemy alien Civilian Internees (CIs) who pose a security threat.

    I argue that most detainees are EPWs, but almost everyone seems to argue that they are something else. This leaves CI or ordinary criminal. But everyone agrees that none of the traditional categories seem to fit exactly and, therefore, none of the traditional processes seem to work.

    Since a lot of lawyers are comfortable with the criminal justice system, we have seen a lot of discussion about some form of Criminal Justice Minus (CJ-) prominently associated with Robert Chesney. A trial, but one before a National Security Court that protects intelligence secrets and therefore provides somewhat looser rules of evidence and (for non-citizens) bypasses the Confrontation clause.

    In this article, Cole seems to recognize the value of preventive detention that is provided by the EPW and CI model, so he proposes some version of EPW Plus (EPW+). Enemy aliens regarded as enemy soldiers or civilian agents of the enemy will be held in military custody under the authority of International Law, but they will be given some sort of civilian pro-active judicial process (as to be distinguished from the currently evolving Habeas post-detention challenge system).

    “But if it’s sensible and legal now, why wasn’t it sensible and legal during the Bush years?” It was always sensible, but Bush didn’t offer it. The first decision was to declare without any process or basis that captured enemy solders were not entitled to EPW status. That more or less precludes any sensible refinements. Cole may have been slow to come around to the EPW side of the fence, but ultimately no rational solution to our current problem can exclude an EPW (or EPW+) component.

    If you want to close Guantanamo, then you have to on a case by case basis decide who is allegedly an EPW, who is a CI, and who is a civilian criminal. Then you should decide on a process to test the evidence in each case to make sure that the classification is correct. If you take seriously the proposal that those accused as civilian criminals should be processed by some CJ- system, then you should also accept that those captured out of uniform without military ID cards and who contest their combatant status should be given some EPW+ processing.

    The example of this week’s KSM hearing points out the difficultly that lawyers will have understanding how this has to work. KSM was an enemy commander, but he also committed a illegal act of mass murder that makes him a war criminal. In this week’s proceedings, we see how the conventions of criminal law become tangled in an EPW context. The defense lawyers assigned to some detainees asserted that allowing them to meet with each other provided an opportunity for KSM to improperly influence the other defendants. They argued that once legal counsel had been assigned the detainees should not be allowed to make choices to which their lawyers objected.

    A criminal is treated as an individual. A real EPW camp has an internal enemy military hierarchy, where lower ranked enemy soldiers take orders from those of higher rank. EPWs have a right to meet with each other and KSM can not only influence them, he can issue valid military orders that have to be obeyed. In past wars it was simply assumed that no officer would order his subordinates to plead guilty to war crimes charges, but under international law they have always had that authority and there is nothing lawyers can do about it.

    When a soldier admits to his combatant status, he is an honorable person doing what is required under international law. He is not “confessing” to anything. Given an EPW+ option and the chance to live in a real POW camp and not in some kind of Supermax Prison, a large number of detainees may follow the example of KSM, fire their lawyers, and assert their combatant status. You have to give them the option that the Bush policy denied them, and then a lot of this litigation may simply fade away.

  15. David,

    Given the size of the population we’re talking about,  I’d say it’s both in varying degrees.  If someone intends to murder someone thinking that it’s to their advantage when it’s in fact self-destructive, what’s you diagnosis?

    Why did the Nazis do what they did?

    And why were they so very popular?

    Looking back on it with hindsight, it’s safe to say that the greatest danger to Germany in 1937 was precisely the Nazi Party. It’s equally clear that they thought what they were doing was best both  for Germany and themselves. They promoted strong social values, yet were nevertheless the worst sort of sociopaths.

    Do you find any of that confusing?

  16. Howard,

    Could you please point us to any actual authority for the proposition that a military commander might legitimately order a subordinate to enter a particular plea to a criminal charge?

    The notion is absurd.

    “Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.” GPW art. 7.

  17. Charles:

    Ordering soldiers “over the top” in WWI trenches, Japanese suicide attacks in WWII, Picket’s charge. A military commander can order his soldiers to acts of certain death. The highest ranking commander in a POW camp runs the internal affairs of the captured soldiers. He can adopt any policy that furthers the war effort of his side, and he may sacrifice any of his soldiers in that cause.

    Under US law, nobody can interfere with the free will of a criminal defendant. For a US commander to issue such an order to his soldiers would be illegal and they would not be obligated to follow it.

    That is only one side of the dynamic. There is another army and therefore a second independent law operating inside the camp. The detaining power (the US) can issue superior orders that supercede the authority of the enemy commander on some issues, but the power to issue orders does not extend to a power to block chain of command orders that are legal within the laws of the enemy army.

    Hence, to find an authority for either side of the question whether KSM can order subordinates to plead guilty, you have to find that authority within the law that the enemy accepts as binding on their own soldiers. You have to find in within an interpretation of Shari’a accepted by Bin Laden and the jihadists. I suspect you would have trouble finding support for the proposition that a leader cannot order his subordinates to tell the truth, which is all that is really going on here when you strip away the US criminal justice bias.

    KSM is proud of what he did and he thinks that the effect of his actions will be diminished by a bunch of US defense lawyers claiming to speak in his behalf. Put another way, we would not remember Nathan Hale if he last words were “Hey, you got the wrong guy. I am just an unemployed school teacher. I just came to Long Island to meet girls.”

    As I said, there is an inherent conflict of principles here that has always existed in theory but never been tested. Now we may see it play out.

    The Geneva Convention places constraints on the behavior of the Detaining Power with regard to the EPWs. It does not and cannot interfere with the internal chain of command and power of the enemy over its own soldiers or the US over American soldiers. If an EPW could renounce his GCIII protections then an enemy could torture the prisoner until he signed a document nominally surrendering those rights. Through the clause you cite, any such waiver is invalid.

    Note that an enemy commander could order his soldiers to sign a document surrendering their rights under GCIII. Nothing in the convention prevents such an order. The convention simply makes the signed documents invalid. Nothing in GCIII prevents a soldier from confessing to a war crime.

  18. <i>”The Geneva Convention places constraints on the behavior of the Detaining Power with regard to the EPWs. It does not and cannot interfere with the internal chain of command and power of the enemy over its own soldiers or the US over American soldiers.”</i>

    What absolute nonsense.

    “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”
    GPW art 1.

    “A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed.”
    GPW art 102.

    “The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial.

    “Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel, and shall have at least one week at its disposal for the purpose. The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to present the defence. Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the Detaining Power shall appoint a competent advocate or counsel to conduct the defence. * * *”
    GPW art 105.

    “Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.”
    GPW art 106.

    See also Hague IV (1907) Annex of Regulations (“HR”), art. 23[h]:

    “In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”

    18 USC 2441(c)(2) makes it a federal offense punishable by fine, life imprisonment, or death to commit any violation of HR arts. 23, 25, 27, or 28.

  19. “The prisoner of war shall be entitled to assistance by one of his prisoner comrades”. The four other defendants would obviously choose their old commanding officer. They are entitled to meet with him. If he tells them to plead guilty, and if they regard his authority as binding on them, then they will do as they are told. Not only does the GC permit KSM to issue the order, it requires us to allow him to meet with the others to plan strategy if they request it. The rest (what he says and whether they feel obligated to follow it) are an internal matter with which the US is not allowed to interfere. This GC obligation is binding on a military commission, Court Martial, or civilian court, since it applies to the captured enemy combatant and not to the particular choice of judicial process made by the detaining power.

  20. Howard, that is absolute nonsense. What someone chooses to do is their business, but such an “order” has no legal force whatever.

    Note especially the language “the same procedure as in the case of members of the armed forces of the Detaining Power”. Under US military law, such an order would represent either UCI (Unlawful Command Influence) or obstruction of justice depending on the source.

    The bottom line is that any criminal defendant has a fundamental right to a competent defense, and any court is well within it’s authority to appoint counsel if it decides justice so requires. That’s true under both US law and Geneva.

    You need to get it out of your head that the law will ever go along with railroading people in kangaroo courts, or with arbitrarily dividing the human race between “people who deserve fail trials” and “people who are too dangerous to have fair trials”. All your BS is ever going to prove is that you yourself are an enemy of humanity and reason — a congenital fascist.

  21. Much as we may love our system of justice and our principles of individual freedom, we cannot force these principles down the throat of others who have an entirely different point of view. Among jihadists, there is only God’s law. All laws of man are blasphemy. We cannot take a gun and force them to agree to our principles of woman’s rights, or freedom of speech and religion. If KSM under their law can order 19 men to hijack airplanes and crash them into buildings, then under their law he can order 4 men to plead guilty and sacrifice themselves with him for political or military gain. We cannot force these men to accept our principles any more than they could force our soldiers to convert to Islam and accept Shari’a. We can refuse to accept their plea and try to assign counsel, but last time I looked even under our law a defendant has the right to represent himself and plead guilty.

    Now here is the key part. Under our law it would be improper command influence for a superior officer to order a soldier to plead guilty to any criminal charge we make against him. However, in Vietnam it would not have been improper command influence (although there might be other charges) if a superior officer took pity on men and “ordered” them (so it would be his responsibility) to sign the “confession” that they were being tortured to sign. Although technically such a confession would be pleading guilty to a “war crime”, the purpose of those “confessions” was propaganda rather than a real prosecution.

    We cannot, however, impose our view of command influence or any other principle of American law on the internal communication, chain of command, or military discipline of the captured members of another army. If you think we are enlightened and they are savages and we should not allow them to behave in ways you disapprove of, I am not the one being a fascist.

    Which brings us back to the reason I raised the question in the first place. When the US charges a US soldier, then that trial can be conducted according to US law. When the US charges an alien civilian, then that can also be conducted under US civilian law. However, when we charge an enemy soldier with a crime, it must be a crime under international law and we do not get to interfere with the internal decisions made by the defendants about how they will collectively chose to conduct their defense. The GC at best requires us to provide them with the opportunity to enjoy all the protections provided by our legal system, but if they choose not to accept these freedoms, we cannot inquire into the cause of their decision. If that causes us to be unhappy because the legal process doesn’t agree with our way of doing things, that is our tough luck. We don’t control their part of the process.

    A military court realizes that enemy soldiers are an entirely different type of defendant, and the UCMJ and rules for Court Martial adapt. A civilian court, however, is not used to the idea that there are aspects of the trial that the judge cannot control and that will not conform to US law and normal court procedures. Start with the idea that we are obligated to allow the defendant to not only represent himself, but also to choose as counsel someone who not only is not a lawyer, but who knows nothing of our law and doesn’t even speak our language. I do not believe that our Article III courts can simply invent an entirely new way of proceeding and the result will be inherently more fair than letting a Military Court do what it already has hundreds of years of established procedures for handling.

  22. Oh really Howard…

    So we’re to understand that you are both an official representative of Al Qaeda AND the world’s foremost authority on Islamic religion and law?


    You’re just a damned ignorant BIGOT spinning sophistry to rationalize executing people without a fair trial on the theory that you know more about what’s going on inside their heads than they do, ETC.

    I don’t care what you think about Islam any more than I do what KSM does. If you want to plead guilty to a capital charge on his orders, that is your privilege. It’s my privilege to consider that conclusive evidence of your mental incompetence. I would never accept such a plea, and would never agree that KSM could have any valid authority to issue such an order.

  23. Charles, please leave out the personal invective – it is not appropriate on this blog.  I  – we – welcome vigorous commentary, but “mental incompetence” and “congenital fascist” and “damned ignorant bigot” are not okay.  Thanks.  

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