Detention in the News

by Deborah Pearlstein

Hard to know what to respond to first given all the news this past week on the Guantanamo/detention front. My own week began with participating in the fascinating and useful meeting President Obama held with some human rights advocates and academics. Since then, I have been tempted to explore the politics of a debate that now find Jack Goldsmith and the Guantanamo lawyers on the same side (in both wrongly caricaturing Obama’s policies as a continuation of Bush). And I still hope to get back to that soon. For now I’d like to pick up on one topic in law on its own terms, the one that seems to me to have generated some of the most troubling post-speech reporting: What did the President have to say about the prospects of a “preventive” detention regime, and what did it mean?

Having made the unfortunate mistake one night of watching cable news coverage of the goings on, I learned that Rachel Maddow and the Center for Constitutional Rights (the NGO managing the representation of the Guantanamo detainees) think Obama’s preparing to launch a Minority Report-like pre-crime division of the FBI. (Striking contrast between Rachel’s railing against the Republican scary music political ad of the dangers of closing Gitmo, followed by her own scary music movie shot depicting an authoritarian sci-fi detention regime. Irony is evidently among cable news’ many victims.) For a reality check, I went back to look at the key part of Obama’s speech.

We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States…. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees – not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Some parts of the President’s speech were beautifully clear. (On closing Guantanamo, see, e.g., “There are no neat or easy answers here. But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo. As President, I refuse to allow this problem to fester. Our security interests won’t permit it. Our courts won’t allow it. And neither should our conscience.”) Other parts, like this passage on detention, were vague enough to make clear the policy hadn’t yet been fully developed. (“If and when we determine that the United States must hold individuals to keep them from carrying out an act of war….”) I’d say this makes the Maddow-CCR account (and good grief, Glenn Greenwald), at a minimum, premature.

So what we can glean at this stage? For example, was the President just talking about a detention regime for managing some subset of the people currently at Guantanamo, or was he talking about a new “preventive” detention regime for anyone here in the United States or anywhere else in the world going forward? One read is he was talking in this setting about only the former. (“[O]ur goal is to construct a legitimate legal framework for Guantanamo detainees…”) On the other hand, parts of this passage sounded rather more forward looking: “Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again.” We’ll have to wait and see. For present purposes, I’ll limit the analysis to detainees at Guantanamo Bay.

Is it clear from the speech who might fit into this category of Guantanamo detainees eligible for continued detention? Not entirely, but we heard some examples. For instance, some were people who have “commanded Taliban troops in battle.” That sounds like a pretty traditional POW to me. And given the ongoing conflict in Afghanistan, the Geneva regime, the AUMF, and the Supreme Court’s decision in Hamdi, seems to me as though there’s adequate existing authority under both U.S. and international law for his continued detention. If the President wants to work with Congress to make sure these people get more and clearer procedural protections than they’re currently entitled to under Geneva (which after all only requires Art. 5 hearings) and Hamdi (which, after all, left the procedural details pretty vague), then I’m not sure I have any categorical objections (though the devil will be in the details). In all events, the CCR view that somehow this kind of detention is not already authorized by law, and is in some way historically novel – that view is, I believe, wrong. And if litigated, I believe it will lose.

The other examples are more complicated. What about the guy who “received extensive explosives training at al Qaeda training camps”? Receiving training at a terrorist camp is now a crime (with extraterritorial scope) under the U.S. federal criminal code. But it hasn’t always been (18 U.S.C. s2339D was enacted in 2004). And it may not have been on the books when this guy received his training. So it might not be possible to prosecute him today for that now-criminal offense without running into a big ex post facto/legality problem. It’s conceivable the government could come up with a more creative criminal charge, and I’ll trust that smart prosecutors are combing the criminal code for what was on the books at the time the training was received. But if that fails, any authority for his detention it will have to be found under existing U.S. (AUMF) and international law. Why? Because it’s not at all clear one could amend the AUMF now or enact new affirmative detention authority 7+ years after this guy’s initial arrest and, just by calling the authority “preventive” detention, avoid the ex post facto problem one would encounter if one added the same authority as a criminal offense. Indeed, the more punitive the circumstances of detention appear (and hard to imagine anything more punitive than Supermax), the harder it will be for the government to survive an ex post facto challenge.

So what authority currently exists for this guy? Let’s assume he also falls in to the same group identified by the President’s final example – those who have “expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.” Well, that’s the hot topic being litigated in the district courts as we speak. So far, three federal district court judges (see, e.g., Judge Bates) have sided at least in substantial part with Obama’s iteration of what the AUMF means: “[U]nder the AUMF the President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who are or were part of Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces.” While Judge Bates rejected the notion that merely providing “support” for Al Qaeda was enough to justify detention, all three judges agree: “The AUMF and the law of war do authorize the government to detain those who are part of the Taliban or al Qaida forces. Because the AUMF permits the President ‘to use all necessary and appropriate force’ against ‘organizations’ involved in the September 11 attacks, it naturally follows that force is also authorized against the members of those organizations. In light of Hamdi and subsequent cases, such force includes the power to detain.”

Based on this, my guess is the guy who received weapons training from Al Qaeda, and the guy who asserts his allegiance to Al Qaeda, are detainable under the current AUMF. The guy who “otherwise made it clear” he wants to kill Americans? Impossible from that characterization of the example to tell.

Is the Obama Administration’s position in the courts on the scope of the AUMF reasonable? Yes. Is it right? Here’s my thinking. On the Administration’s side: The Supreme Court already held (in Hamdi) that the AUMF authorizes some kind of detention – at a minimum, the Court held, that detention traditionally authorized under the law of international armed conflict. The relevant international law here – i.e. the law of non-international armed conflict – does not of itself authorize detention, but neither does it prohibit it. It leaves the question to domestic law. So do we think, as a matter of statutory interpretation, that Congress intended to authorize the President to detain members of Al Qaeda when it passed the AUMF? It is entirely plausible that it did.

Would such a detention statute – assuming that’s what the AUMF is – be constitutional? Here is where the Administration runs into trouble. It is one thing for the Court to conclude that the AUMF could be read to authorize Hamdi’s detention, when the statute is specifically informed by a well developed area of international law (the law of international armed conflict). It is another thing – a problem of due process and legality – for a court to hold that the AUMF detention authority extends into a realm undefined by text, and not clearly informed (or only informed by analogy) by another body of relevant law. Put differently, applying the AUMF to Al Qaeda members in a non-international conflict would allow long-term detention without a detailed (or adequate) set of protections, and without a prescribed end condition (in contrast to international armed conflict detainees, who must be released at the effective conclusion of a conflict between two states). While the Detainee Treatment Act, etc. arguably addressed to a limited extent the AUMF gap in procedural protections, it did not specify the conditions that would necessitate release. It is of constitutional significance that civil commitment laws, for example, make explicit what achievable conditions exist for the end of detention. (See, e.g., Kansas v. Hendricks, noting that under the Kansas commitment statute, if at any time the confined person is adjudged “safe to be at large,” he is statutorily entitled to immediate release.) Our allies’ preventive detention laws provide analogously definite end-points – most, simply an arbitrary (and brief) length of time.

Until the Administration can identify – and Congress enacts – a provision detailing the circumstances under which any avowed Al Qaeda member would be released, it is difficult to see the current AUMF detention regime surviving constitutional scrutiny. Amending the AUMF now to specify these conditions wouldn’t necessarily run into ex post facto problems – defining conditions of release need not constitute adding pains and penalties not previously there. But it will require a leap of political leadership broader than any (of the many) already attempted. And it might start to make those post-Gitmo foreign rehabilitation programs (which themselves need some work) look pretty good.

22 Responses

  1. Excellent post Deborah, however I must point out that what you are desdcribing is mosdtly unlawful, and indeed, criminal. To wit:

    1) The only lawful authority for indefinite detntention as a POW is arts. 4-5 of Geneva III POWs, and all of these detyainees have been denied POW status for seven and halk years now, which is both a grave breech of Geneva 1949 and federal offense pursuant to 18 USC 2441(c)(1).

    2) Tnhe assertion that “there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States” is, in the absebce of a concrete case demonstrating the contrary, presumtively and absolutely false.

    The BGush administration h has repeatedsly claimed that they needed the PATRIOT ACT, and various other new laws becasue they lacked sufficient legal authority to pursue the 911 conspirartors before 911. That claim is an outright lie: in point of fact, 18 USC 2441 (war crimes), 18 USC 371 (conspiracy), and a number of other federal statutes applicable to the special maritime and territorial jurisdiction provide all the authgiority to pursue such a conspiracy anywhere in the world.

    3) The AUMF is stricvtly unconstitutional on multiple grounds, but I’ll have to explain why later because I have to go right now.

    Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States….

  2. And a further question is what happens when the person fitting the category is a US citizen or resident?  Are they going to be pulled into this regime?  Or is this going to be only for foreigners (resident and non-resident or non-resident)?  How do we address fairness of said process?

  3. Nicely stated Deborah.  I noted this morning that George Will relied on Goldsmith’s mischaracterization of current policies.  Of course, I guess one can always redefine “repackaging” to include the exclusion of things that were formerly in the package, like water-boarding.  This is the way I always “repackage” my suitcase for long trips (but substitute “another pair of shoes” for “water-boarding”).

    I also note – and this addresses Ben’s point as well – that Hamdi, as I understand it, decided only that a U.S. citizen had a Fifth Amendment Due Process right to adequately challenge his status as an enemy subject to detention, not to his continued preventive detention simpliciter.  As I see it, this is essentially what the Boumediene Court decided was the extent of habeas available to non-citizens.  

    Once enemy status is adequately determined, however, Quirin and other cases support application of the laws of war to the exclusion of rights preserved in the Bill of Rights, even for U.S. citizens.  (Remember, a U.S. citizen saboteur was also found subject to trial by military commission.)  There is also ample Civil War precedent for this approach in a non-international armed conflict.  Thus, as we have discussed before, I am not sure that the Constitution requires anything more if the Court is willing to continue to accept the existence of war powers under the AUMF – and also the traditional U.S. understanding of the scope of those war powers in both international and non-international armed conflict.

    You do raise an interesting point regarding an end to the conflict.  It will be interesting to see where the Court comes out on this.  What if Al Qaeda calls off the war but there is no recognizable form of peace agreement?  There are many interesting angles to be examined here.
    For the record, this is what I believe an objective legal analysis would bear, not necessarily my own policy preferences.  Additionally, I think Judge Bates might have been a bit too narrow in his determination of who might be detained under the AUMF…though it may be the result of inadequate government argument if I read his opinion correctly.  I need more time to think about and examine it…time not available to me right now.

    It will be interesting to see if the administration adopts a GPW/GC III POW-camp form of preventive detention.  That option seems to be lurking in some of the language of the speech.

    Best to all…

  4. John,

    Quirin is a dead letter under Geneva 1949 even setting aside the facts that it was also incorrect at the time under Hague IV 1907, and that the Rooselvelt admninistration unlawfully tampered with the court’s deliberations. Yamashita and Eisentrager are equally worthless aside from the great dessents of Justices Murphy and Rutledge in Yamashita — those are the only opinions that matter in the here and now. The majority opinion in Quirin is an abomination that ranks with Dred Scott and Plessey v. Fergeson as a judicial atrocity, and deserve no credit at all.

  5. So returning to my first comment, the AUMF, DTA, and MCA are all facially unconstitutional, becasue all of them pretend to delegate powers to the President whi are either specifically prohibited by the Constitution or specifically delegated to the Congress. 

    The key to understanding that is the plain text of the AUMF, which states:

    “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons[.]”

    And the problem is the same as with every other over-reaching legal claim of the Bush administration – it’s based on the fraudulent Addington-Yoo version of the “Unitary Executive Theory.” [edited by OJ] It was pure subversion amounting to a paper coup d’etat in favotr of an absolute dictatorship, and the fact that they never quite dared to go there doesn’t change the fact that they tried to set themselves up do do it if they wanted to.

    And the AUMF literally authorizes nothing but Presidential “determiniations” which are obviously ultra vires:

    1) The Congress has the authority to declare war (or authorize armed conflicts) by grant of Article I. The AUMF pretends to hand the President a book of fill-in-the-blank 
    decalarations of war that he could literally apply to any person, organization, or nation in the world, including the United States, the City of  Chicago, or a two-year-old infant. It is clearly an unconstitutional delegation of authority, and an examination of virtually all prior (haven’t had time to do a conprensive analysis yet) declarations or authgoriation will show they related to specific, nations, organizations, or individuals.

    I assert that this is a Constitutional prerequisite for any such authorization which requires the full deliberation of Congress, abnd that anyone who claim otherwise is effectively claqiming that the President has the powers of a Stalin, Hitler, Charles I of England, or a Roman emperor. [Edited by OJ] Yes, I get that Congress had intentions, but they FAILED to express them adquetely and the AUMF is properly null and void for vagueness.

    2) To whatever extent the AUMF pretends to affect the Constitutional or legal rights of individuals, it also amounts in effect to a book of fill-in-the-blank bills of attainder where by the President is able to declare any individual a non-person without the rights of any other human being purely by fiat (his “determiniation”). He is literally authorized to devclare new born babies “terrorists etc” without any process at all, and indeed, that was once again the claim of Addington and Yoo when asked about little old ladies in Switzerland. [Edited by OJ]

    3) Both the DTA and MCA are equally unconstituional for the reasons stated above in (2): they represent attainder. They are also grave breaches of Geneva 1949, violations of the IMT Charter (London 1945) and the Hague IV 1907 Annex, as well as criminal offenses pursuant to 18 USC 2441(c)(2).

    [Edited by OJ]

  6. PS:

    There is third Constitutional defect in the AUMF, DTA, MCA: all three pretend to either unconstitutionally strip the Courts of the equity jurisdiction granted to them by Article III, or in the alternative, unconstitutionally reassign or redelegate said jurisdiction from the courts to the executive branch. Congress has no authority to do either.

    See also my PEGC blog articles…

  7. Just because you cannot clearly define the enemy state doesn’t mean that you cannot define the end of the conflict. The Korean War ended with a negotiated cease fire even though the UN and US did not recognize the DPRK as a state. The Vietnam War ended with the US withdrawal and fall of Saigon, even though the Viet Cong was not a state. Sometimes a war ends by recognizing as a state the previously non-state actor, as happened from the British point of view at the end of the Revolutionary War. Sometimes the non-state actor is defeated, as happened during the Civil War. For better or worse, it appears that the hostilities in Sri Lanka have pretty much come to an end.

    We may not be able to predict how this conflict will end, but that was also true of all the other conflicts while they were going on. The indeterminacy of outcome has nothing to do with the state-non state nature of the enemy since we have won, lost, and come to a draw against non-state actors and one our first conflict when we were a non-state actor ourselves.

    The Bush administration had one classification, “unlawful combatant”, for everyone. Since the new administration has rejected that classification, it is logical nonsense to assume there is one different classification that will apply to everyone. The rational thing to do is to enumerate all the possible classifications and then on a case by case basis try to assign each detainee to the right category.

    Start with the obvious category of POW. Hamdi seemed to be a pretty good candidate for this classification, along with other less well known soldiers captured on the battlefield. POWs may divide into those covered by the Geneva Convention and common law Prisoners of War who fail to meet the criteria established by Article IV of Geneva III and are then protected by Geneva IV but are nevertheless afforded some or all of the protections applied to POWs traditionally (as the US did for captured enemy soldiers in Korea who were treated as POWs even though they were not protected under Geneva III).

    Then there is the category of “enemy alien civilian internee” as provided in Geneva IV and the US Army regulations. This appears to be the category and rules applied by the Bush Administration although they didn’t explicitly admit it. The key question here is to define and prove the required level of allegance that the civilian detainee must hold to the enemy in the conflict when the enemy lives in countries that have entirely different cultures of tribal and religious identity instead of Western definitions of citizenship.

    Then there are civilians who are subject to trial by military commission for crimes comitted in areas of military jurisdiction. That might apply to those not granted POW status who attacked and sometimes killed US soldiers in Afghanistan. They may not be prosecuted in civilian courts because the murder occurred outside the jurisdiction of US civilian courts.

    Then there are civilains who might be subject to civilian criminal trial for those specific crimes for which the US courts claim extraterritorial jurisdiction. Those not held as CIs would have to be held in civilian prisons or be released on bail.

    It seems that the Obama administration recognizes these and maybe more alternatives and it is not precluding any possibility. The hard part is assigning each detainee to one or more of the categories (a POW or CI can still be tried by military commission, and a CI can still be tried by a civilian court).

    Then every decision will be challenged, but each classification will have to be evaluated on its on legal merits. In some cases there may be constitutional rights, while for other classifications the Supreme Court has held that no constiutional rights apply. If after seven years the courts failed to answer any of the important questions about a much simpler set of Bush claims, there is no reason to expect that we will have any quick answers about what is potentially a vastly more complicated legal situation.

  8. Enlighten me. How does this differ from pre-conviction punishment for thought crimes. It is a lovely careful rendering of a brutal regime of incarcerating one’s opponents. Nothing more, nothing less. Prettified Stalinism.

  9. Howard,

    It isn’t a matter of definining a particular state, but of defining a particular theater of operations. I’d suggest you dig up the actual authorizatrions and read them.

    Steve has it exactly right: the AUMF is just an unlawful grant of absolute authority which is utterly contrary to the basic principles of the US Constitution. The only real function of the President is to execute the law, not to operate as a law unto himself.

    [Edited by OJ]

  10. Howard,

    To me there is a clear difference between the better organized armed groups and conflicts that you discuss and the loose association of individuals that comprise Al Qaeda.  I am not saying that an end to the conflict isn’t definable or discoverable.  It is merely more difficult and may require the Court to look at things a bit differently or demand more clarity from the political branches, as Deborah suggests.

    As for the bulk of the comments here, I wonder if their author might take into account that no court or person with formal legal training agrees with this reasoning.  That might be a good enough reason for someone without formal legal training to reconsider it and be open to learning more about it.

    My earlier comment indicates that there is a host of precedent (exemplified by Quirin but much more than that) supporting the proposition that the constitutional standards of the Bill of Rights do not govern the treatment of an identified enemy (more than this really but for present purposes let’s stick with the narrower scope) during an armed conflict.  I am not yet prepared to offer my opinion as to the full view of the proper conflict of laws framework. 

    Nevertheless, I do believe Quirin is consistent with the then-existing view of the effect of armed conflict on the law applicable to belligerents.  There is a very rich history here that I have only begun to attempt to put into a more complete theoretical framework.  Neither the past nor the present can be understood only by reference only to the law from 1949 forward.

    This is not to say that the current military commissions are a valid extension of that law into the context of today’s laws governing armed conflict.  I think there is a very strong argument that they are not.  The detention regime is a much different question, and requires reference to many more sources of law, as Howard suggests.

    May we all take this day remember those no longer with us who have served the U.S. honorably…and put aside the recriminations that distract from the deep honor and respect that they deserve.

  11. John,

    “Better organized” is a Western perspective. The poorly organized Afghan militia subdivided into an estimated 4000 local commands under local tribal commanders defeated the modern, highly structured mechanized divisions of the Soviet army in the 1980’s. The Afghan army under the Taliban was perfectly (dis)organized for traditional Afghan fighting, and units of that army are still in the field in Afghanistan fighting NATO troops today. We need one system to deal with enemy soldiers captured in this kind of conflict however they may choose to dress or organize themselves.

    Then there are other Al Qaeda adherents elsewhere in the world. The Boumediene Bosnians are a good example. They never went to Afghanistan, never enlisted, never went through basic training. They are clearly not soldiers. If you want to hold people like them, you need a different system in which criminal charges, national security courts, or preventive detention may be introduced into the discussion.

    When you consider each case individually (Hamdi, Padilla, Lindh, and others who have told their stories), you discover that the Taliban-al Qaeda distinction breaks down in every case. They responded to al Qaeda recruitment and typically went to Afghanistan to be trained and fight Russians in Chechnya. They were trained at the al Farouq camp, but then they spent a considerable  time in ordinary Afghan units under Taliban commanders. It is part of the less “well organized” nature of the enemy that in no individual case is there a clear distinction between army, militia, and civilian or Taliban and al Qaeda. You can make clear pronouncements about the differences that would apply to these groups in international law if they behaved the way you imagine they were supposed to behave, but you may have trouble finding a single detainee to which these clear distinctions cleanly apply.

    Which just extends my point that there are many layers to the conflict, and therefore many different types of detention. We might win and could easily lose the battle with Taliban forces in Afghanistan and the tribal areas of Pakistan. Even if that conflict ended, al Qaeda would probably continue to launch terrorist attacks on us whenever the opportunity presented itself. We lost the Vietnam War, but won the larger strategic conflict it was part of when the Berlin Wall came down decades later. Different types of detention based on different types of conflict each end when that type of conflict ends, even though other types of conflict (and detention) continue. Once you realize that the Bush oversimplified one-size-fits-all policy was nonsense, then things get a lot more complicated when you start to do the real analysis.

  12. Howard, I am not sure why you are disputing me as I am not disputing most of what you say.  My comments immediately above spoke only to the “end of the conflict” determination.  Your recent comments support my point.  Given that these groups are loosely organized, which or how many must agree to peace in order to find an end of the conflict for purposes of the release of those under POW-type preventive detention?  My much earlier point was that this complexity might cause the Court to search for a different standard, or require one from the political branches.

    I agree that the situation is complex and that there are many different types of detention possible.  This constitutes the basis of my earlier-expressed partial disagreement with Judge Bates.  I am not ready to offer a more complete list of the various types of possible detention at this time, though you have articulated at least some that are possible.   From reading Judge Bates’ opinion, it seems as though the government may not have argued other possible forms and/or bases of detention very thoroughly.  Of course, any potential category requires a parsing of facts potentially not available in a given case.

  13. John,

    The proof is in the puding, and I dont;’ actually beliefe that I am as alone on these issues as you seem to think.

    !8 USC 2441 is not unclear, yet it has been scrupulously ignored for seven and a half years by all these folks you thin khave some reasonalble basis for idsagreement with me.

    Arguments friom authgority carry no wuiehgt whatever, andc as for my training, I dare says that I have more training and experience with formal logic, linguistics, history, and miltary strategy than 99% of all lawyers.

    [Edited by OJ]

  14. PS: Sorry for all the typos, but I am in the middle of a tightly scheduled road trip and time / internet access is catch as catch can.

  15. John, I am not disputing what you say but extending it. In the West we have very rigidly structured military units and we get to apply sharply defined international law. Nobody is confused by the difference between the Army, the Marines, or the CIA. However, these clear distinctions break down in a culture that is antagonistic to our thinking and has a spectacular victory against the USSR to seemingly justify their intentionally non-Western arrangements. You point to the problem, and I simply expand to note that the fuzzy boundaries are not due to inattention or poor organization but are the result of careful planning and local optimization.

    Dragging members of an Afghan militia into US court to be judged by US laws is like asking a group of NFL referees to use US football rules to judge a rugby penalty kick in a Manchester United game. We have the power and we can do it, but it is nonsense to imagine that the “poor ignorant natives” will suddenly become overwhelmed by how much fairer our justice system is compared to Guantanamo. We captured enemy soldiers and put them in prison. Every Afghan understands how this works. They do it too. However, take someone in front of a judge and charge him with violating a law that is not an Afghan law or Shari’a, and that seems unfair. Arranging our affairs according to our law may make us feel better, but nobody should imagine that it will win us friends overseas. It may instead be a vastly more dangerous recruiting tool for al Qaeda than Guantanamo ever was.

  16. Howard:

    A criminal offense is the same no mastter who commits it. You are literally arguing that elements of certain crimes should vary based on the identity of the perpetrator, and for statutes that apply to anyone committing a specific act, such a claim is absurd.

    A murder is a murder.

    A rape is a rape.

    A war crime is war crime — see 18 USC 2441, which applkies to any such offense committed by or against a US national “inside or outside” the United States.

    [Edited by OJ]

    We are in far worse danger now than we were in 2000, precisely becasue of the utterly irresponsible and foolish plicies of the Bush administration. If this was a real war we’d have lost it a long time ago. Thgey squander vast resources prusuin needless warfare that accomplished nothing that was actually worth doing. We would have been better off doing nothing at all.

  17. Charles,

    If we decide to prosecute someone in the civilian criminal justice system then you have to prosecute them under US law. If we prosecute an enemy soldier in a military court, then we should have to charge them with a crime defined in international law.

    Unfortunately, in the current mess a murder is not a murder. Simple murder is not a crime that can be charged under the MCA. There is an offense called “murder in violation of the laws of war” that several detainees were charged with, but the military judge in the Hamdan case ruled that “murder in violation of the laws of war” must mean the murder of a civilian by a lawful combatant, and since no detained enemy is regarded by the US as a lawful combatant (and no lawful combatant could be brought before a comission under the text of the MCA) it is impossible to charge anyone with that crime under the MCA. The Geneva conventions allow an occupying power to try a charge of murder using local domestic law as the basis, but it is not clear that that option is still available. While some laws claim extraterritorial jurisdiction (providing material support to a terrorist organization), I have not seen this applied to simple murder. Soldiers engaged in combat may kill each other, but combatant immunity prevents any soldier on either side from being charged with murder.

    So if a detainee threw a grenade and killed a US soldier:
    Combatant immunity may preclude any criminal charge. However, in any case where combatant immunity applies the lawful combatant is a POW who can be held in military custody for the duration of the hostilities.
    It may be murder under Afghan Islamic Shari’a law which can be charged and tried only in Afghan courts.
    It is the sort of crime typically tried by military commissions during occupation, but the MCA appears to have been written defectively and not allow the charge. However, someone who has killed Americans is clearly a security risk, and may be held as a Civilian Internee (CI) during the term of hostilities provided that his status is reviewed every six months to determine if he is still a security risk. If challenged, the courts could certainly take the killing into consideration when considering the legality of the detention.
    If you think it can be tried in an Article III court, make the case for jurisdiction.

    Contrary to the current administrations naieve pronouncement, detention of prisoners without trial may not be regarded as injustice in Taliban areas, but trial of Afghans in US court for things they did in Afghanistan would be regarded as outrageous and insulting. If we capture mujihadeen and put them in prison, that is the way of war. We are asserting only that we won that particular battle. However, to then try a solider and claim that he is a criminal, that is an outrage against the individual and against Islam.  We may have our system of justice for crimes committed in our country that we have created over our 230 year history. Islam has its own law and its own courts that have existed over a 1500 year history. Just as you will never, ever, ever accept the validity of a Military Commission no matter how clear the crime, no matter how convincing the evidence, and no matter how fair the proceeding, simply because it is a Military Commission and not an Article III court, so will Islamists reject the validity of any US court claiming to try any Muslim under US law for any crime supposedly committed in a Muslim country.

    However, you are right that rape is rape pretty much uniformly in all jurisdictions and legal systems. Of course, in Shari’a law, a woman’s testimonly is only worth half as much as a man’s, and we have seen under the Taliban that a woman’s accusation of rape is simply dismissed and then the woman is stoned to death because her rape is considered adultery. Just because the crime is the same doesn’t mean that the process is the same and jurisdiction doesn’t matter.

  18. Howard,

    1) The MCA is both unconstitutional and criminal under the laws of war. It represents attainder, which is prohibited by Art. I, and is also a war crime pursuant to Hague IV 1907 Annex art. 23[h] and Geneva 1949, as well as an offense pursuant to 18 USC 2441(c)(2).

    2) There isn’t any murder related to 911 that can’t be charged as a federal offense pursuant to 18 USC 371 (conspiracy), 18 USC 2441 (war crimes), and 18 USC 1111 (murder).

    3) There isn’t any significant gap between US and international law here — the only real problem here is that the previous administration wanted to detain and convict detainees without anyactual evidence or lawful process. The intent of their various decrees and legislative acts on these subjects from the start was purely to providea fasle color of legal authority in order to facilitate commintting war crimes against prioners commit war crimes against prisoners in violation of both US and International Law — starting with the PMO, and continuing thorough the long series of fraudulent OLC memos, DTA , and MCA.

    4) I could not care less what the laws of Islam are in this context:  every US official and service member is sworn to faithfully execute and obey OUR LAWS, not spend their time inventing fraudulent excuses to violate or nullify them.

    [Edited by OJ]

  19. Gee, I have to say that the editing of my comments is getting pretty damned tedious — It’s damned shame when someone who claims to be an agent of law can’t stand to hear someone tell the truth.

    And the truth of the matter is that the rationales /excuses of the apoloogists / Republicans / neo-fascists for these war crimes are virtually identical to those used by the Nazis and the Soviets — and the people who take offense at me stating that FACT are merely displaying their ignorance of the history.

    And I dare whoever’s been “editing” (i.e. CENSORING) my comments to debate me publically on each and every comment they “edit” — because I’m not doing anything but telling the truth.

    It’s time to get real about this stuff folks. I just listened to Obama’s speech for the first time last night, and it’s really an amazing set of contradictions and misunderstandings. I’ll be doing a full analysis next week sometime, but I’ll tell you this much right now — it’s very clear that hodovers from the Bush administration in DoD and CIA are subverting the Obama administration into tactily approving the unlawful policies he claims to reject in this speech. But I gues maybe it takes a programmer to understand that because most lawyers just don’t seem to be very good at doing the math. . . .

  20. But I gues maybe it takes a programmer to understand that because most lawyers just don’t seem to be very good at doing the math. . . .
    lucky, then, that they are ‘doing’ law and not math…

    To start with, things are probably quite often black or white in programming. Certainly from my memory when I programmed sth correctly it worked and if I didn’t it usually didn’t. In law things are very rarely black or white, and just about never when the question is of the interaction between international treaties and norms and domestic legislation and politics.

    If you think they are, you probably need to take another look!

  21. Patrick,

    You may rest assured that some things are black, some are white, and inbetween there’s a spectrum of grays — and a good systems analyst strives to consider every relevant detail, inlcuding human intagibles, peculiarities of users, organizatiions, etc.

    [Edited by OJ]

  22. …I.E. Censonred by OJ because whichever of the OJ folks is doing it can’t handle the truth and doesn’t have the guts to engage me on the merits.

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