13 Nov Holder Speaks
Cross-posted at Balkinization
Nothing like Friday afternoon with the President overseas for a little news: The men accused of conspiring to commit the 9/11 attacks will be tried in federal court in New York City. Five other men, including a man accused of involvement in the USS Cole bombing in 2000, will face trial before new and improved (if not perfect) military commissions. White House Counsel Greg Craig resigns, over many, rightly disputed accusations that he should have resolved the 8-years-in-the-making Gitmo mess in his first 365 days.
In case those stories don’t give you enough to digest, you might have also done well to catch a series of administration officials (among others) talking about military commissions and the like on panels yesterday and today at the ABA’s Annual Review of the Field of National Security Law in Washington, D.C. (Full disclosure: I did a military commissions panel with Robin Jacobsohn, Deputy General Counsel at DOD; Col. Mary Perry, Director of the Operations and Int’l Law Division at the Air Force TJAG’s office; Scott Silliman of Duke and Jonathan Hafetz of the ACLU. ) You should also probably read yesterday’s white paper from the Center for American Progress think tank (CAP) in D.C. arguing, inter alia, that the remaining Gitmo detainees who may lawfully continue to be held under the AUMF and laws of war should be transferred for continued detention to Bagram Air Base in Afghanistan. And that if you want to know how the Afghans are doing in preparation for taking over detention and trial operations themselves one of these days, two new Human Rights First reports on U.S. detention operations in Afghanistan are certainly worth reading, available here and here. Hint: Not so well.
For the moment, I’ll stick with today’s blockbuster prosecutions announcement. The decision to pursue the highest profile prosecutions of the 9/11 co-conspirators like Khalid Sheik Mohammed in federal criminal court in New York is wise, welcome and long overdue. We have prosecuted the likes of KSM in federal court before, we can do it again. The decision to use military commissions – improved though they may be – is, as I’ve written here before, a greater gamble.
As the Supreme Court has consistently recognized, our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited. As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)? And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998. See, e.g., here (scroll down). Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.
There may be an available legal theory that explains the decision making here. But I didn’t quite get an answer to any of this from my thoughtful co-panelists from the Administration today. In all events, for these, among many other reasons, the Administration will have a long road ahead of it as it pursues commissions.
Al Qaeda declared war on the US twice, in August 1996 and then again in Feb 1998. The attack on a US warship was the quintessential act of war. Al Qaeda was part of the Afghan government and trained soldiers for the Afghan army, but it would require a detailed knowledge of the internal discussion and agreements to determine if those declarations were approved by the Taliban and can be attributed to the country as a whole. Article 2 of the Third Geneva Convention declares: “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” If you accept that a formal state of war or armed conflict existed or was created by the attack on the Cole, then it is logically impossible to avoid the consequence that al Nashiri was a combatant entitled to the status of POW and combatant immunity. There are some military offenses that can be charged during war (false flag, perfidy), and since they involve soldiers, they can only be presented to a military… Read more »
Howard Gilbert: While I agree with most of your analysis, I disagree with the conclusion. “then it is logically impossible to avoid the consequence that al Nashiri was a combatant entitled to the status of POW and combatant immunity.” Not really, particularly if you look outside the box: the fact remains that “declarations of war” or similar statements have been released by non state actors such as the Branch-Davidians, the Symbionese Liberation Army, and a host of other organizations, most of them either criminal, cultic, or terroristic in nature. Does that mean we were supposed to grant, say, David Koresh- had he been captured alive- the rights of a POW rather than as a criminal? You cannot really square the circle on this one. ” There are some military offenses that can be charged during war (false flag, perfidy)” The key problem is that virtually everything Al-Qaeda and its subsidiaries/allies has done DOES constitute a “military offense.” They are an international organization that obeys no laws of war save their own. The historical record (even after Geneva IV) has seen organizations and people such as this being treated as partisans fighting outside of the rules of war and has typically… Read more »
Al Qaeda recruited and trained foreign soldiers for the “055 Brigade” that fought on the front lines for the Afghan army. They trained 18,000 soldiers and at any time there were one or two thousand soldiers engaged in combat operations. Are there any private organizations in the US that recruit, train, and finance a Brigade of US Army soldiers? If they did, wouldn’t that make them part of the government or army? Afghanistan under the Taliban was not ruled by a government that followed any Western model. It had no executive or legislature. It was a decentralized tribal system where leaders claiming the allegiance of different forces met to trade favors and make decisions. The war against the Soviets was fought by an estimated 4,000 independent local military units each led by their own local commander. Religiously motivated Arab volunteers were recruited, trained, and equipped by groups like al Qaeda and then were integrated into existing native tribal militia. Years later, when the Taliban took control, a new generation of foreign fighters volunteered to help in the new fighting, and in consideration of the aid they provided, al Qaeda was given status equivalent to an Afghan tribe. The Taliban were… Read more »
Mr. Gilbert: “Al Qaeda recruited and trained foreign soldiers for the “055 Brigade” that fought on the front lines for the Afghan army. They trained 18,000 soldiers and at any time there were one or two thousand soldiers engaged in combat operations.” True, but the point you do not mention is that the Afghan army you are referring to was that of the Taliban, which (as you note) was not what we would regard as a national government in the West, and which indeed relatively few actually would: it was less of the Afghan government than it was the regional faction that controlled a good chunk of Central Asia that happened to predominately include Afghanistan and was based out of Kabul (much like whichever government of Somalia tends to depend on which side the foreign aid flows to and who controls Mogadishu). There were areas inside of Afghanistan- namely the North- that were out of its control and a few areas outside of it that were under it (a good chunk of the Northwest frontier and a few border towns inside of the Iranian, Tajikstani, and Turkmenistani borders did), and it is well worth noting that even during its heyday… Read more »
I think trying Mohammad in federal district court is a great move and will likely appear more legitimate than Article I, military tribunals. By using the Article III system, I think that there will be less international criticism – especially as it relates to due process concerns.
Anna Howard: “I think trying Mohammad in federal district court is a great move and will likely appear more legitimate than Article I, military tribunals.” Perhaps, but is it really more legitimate than the military tribunals? And how are we supposed to house them in preparation for the trial? And finally, what law gives the Federal courts jurisdiction on what happens in Afghanistan, Iraq, Yemen, etc. al? “By using the Article III system, I think that there will be less international criticism – especially as it relates to due process concerns.” Perhaps, but it opens up an entirely different can of worms, and it must ask us precisely where “gentlemen” such as this belong on the scales of international law. And bluntly, criticism is one of the least justifiable measures by which to plan a move: the true issue is whether that criticism has a valid point, some of which indeed does, but the point remains that everyone is going to be criticized regardless. Making that as your entire template for whether or not to make decisions that shall permanently shape the face of international law speaks more of a lack of judgement on the part of the decidee than… Read more »
KSM has admitted that he conceived, planned, and commanded the 9/11 attack. He wanted to represent himself and plead guilty before the Military Commission, and I see no reason why he would not carry that intention into Federal Court. While ideological lawyers may want to raise questions about his treatment, he appears to believe that his legacy is best secured by openly admitting the truth. Nathan Hale would not be remembered today if his last words were, “Hey guys, you are making a mistake. I just came to Long Island to meet girls.” KSM wants to be remembered in certain parts of the world as a hero, not to live out his life as OJ 2.0. 9/11 may be a crime, but it is also an important historical event. Based on objective evidence, there is no plausible doubt that KSM and the other members of his unit were responsible for the operation. This statement of objective truth is not incompatible with the rule of “innocent until proven guilty” simply by distinguishing the special word “guilty” in its criminal context from separate statements of historical fact that express no criminal judgment. However, that is a fine distinction that the American people… Read more »
Errata to Deborah’s post, only a plurality of the Court in Hamdan found the requirements of military necessity were not met. Hopefully I will finish my current article before that issue comes up to the Court again, as the analysis was slightly flawed.
I should note that I agree with Deborah that the use of military commissions for pre-9/11 conduct is extremely problematic. While Howard raises valid points, I do not think this is enough for the Court to conclude an armed conflict existed prior to 9/11. Our own government did not appear to recognize one at the time. Its responses to the Cole attack and embassy bombings were schizophrenic at best. At the very least, I think the political branches must recognize the existence of an armed conflict (or delegate the determination to the courts) before the Court could find that it did. There is much case law to directly and indirectly support this view. With that said, I ask Deborah to cite some source for her assertion of a constitutional presumption in favor of Art. III courts. Unless one dismisses the opinions in Quirin and Yamashita (as many are inclined to do – better to dismiss as error or contrived what you don’t like or wish to understand), no such presumption exists so long as armed conflict is on-going and a public enemy is the subject of the prosecution. The “necessity” required is not one of “public” or “imperative” necessity (as… Read more »
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