Holder Speaks

by Deborah Pearlstein

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.

http://opiniojuris.org/2009/11/13/holder-speaks/

10 Responses

  1. 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 court. Any attempt to charge him with other (civilian) offenses undermines the claim that there was a formal armed conflict and then, as a consequence, strips military courts of jurisdiction of civilian crimes occurring before 9/11.

    This is not a problem for KSM and his crew. They planned the hijacking of commercial jet aircraft leading to the deaths of the crew and passengers. There are specific agreements in international law dealing with air piracy that remove their cases from the laws of armed conflict and combatant immunity. These crimes can be tried in civilian court even if every other detainee was afforded formal POW status.

  2. 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 subjected them to a quick military trial and imprisonment.

    What makes Al-Qaeda different from the Nazi Werwolves or FARC? And why do they deserve recourse to the American legal system, particularly given the fact that the jurisdiction of their crimes often fall outside of the American justice system? And perhaps most importantly, where for the love of god are we supposed to house them (and before anybody says that, amongst the LAST thing we need would be to put them in the General population, where Islamist ideologies have had rather good success rates)?

    These points hamstring any attempt to try them in the criminal courts, and particularly to place them as POWs. And even if we do agree to trying to move them to the rear until it is a timely time to try them (like we did the SS), how does this work in an era of asymmetric warfare?

    Currently, Al-Qaeda and other organizations like it (Hizuballah, Hamas, whatever is left of the LTTE, FARC, etc) blur the line between criminal and military, and this is a legal conflict that must be resolved, but does that mean that every single Islamist off the bus from Riyadh or Damascus that is nabbed in Afghanistan and Iraq is to be given over to a district court that has no authorization to be there?

    My personal proposal: treat those captured in the combat zone or who are high enough on the food chain (ie. Osama or Zawahiri, even if they are found walking the streets of New York in togas) are to be treated as unlawful combatants as per Geneva I-III and handed over the a military tribunal, while those captured in at home are handed over to a special civilian court.

    It may not be perfect, but it seems to be the only logical way to break out of this complication from trying people who straddle the lines between illegal foreign combatants and domestic criminals.

  3. 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 mostly ethnic Pashtuns, but 10,000 soldiers from the force of 45,000 were militia from the Pashtun tribes of the Pakistan side of the border. Did that make them an international orgainzation? Al Qaeda was in the business of recruiting Arabs from throughout the middle east, but it contributed a thousand fighters to the fight against the northern alliance and only 19 hijackers on 9/11. It had some existence internationally, but the numbers make it clear it was 95-98% in Afghanistan (until it was forced out and relocated in Pakistan).

    This is why it is impossible to characterize what was going on in Afghanistan firmly according to Western legal standards. It was not a department of a government without an executive, nor a formal corps of an army without ranks or a clear chain of command, but it also wasn’t private. It was part of the government and military, but in a system of tribal leadership instead of election or formal appointment.

    So when 1000 al Qaeda solders are fighting in Afghanistan, and a handful of special soldiers plan and carry out an attack on a US warship in Aden, how official is this attack? Is it more or less a real military operation than the famous attack by the Calcutta Light Horse against the German ship Ehrenfels in the port of Goa in 1943? More or less official than the force the CIA trained for the Bay of Pigs? Does anyone really believe that the Chinese Volunteers in Korea were not units of the PLA but just some guys who decided to cross the border and fight? For that matter, does anyone deny that units of the North Vietnamese army infiltrating the South formed the bulk of the enemy forces in much of the Vietnam war?

    Did deGaulle really represent anything French in WWII or, having spent most of the war in Britain, was he really operating under British authority? The Free French certainly weren’t authorized by any government in control of any part of France, but that didn’t make them civilians or criminals or private citizens.

    So was Al Nashiri a soldier representing Afghanistan, a member of a non-state party to a non-international armed conflict, or a civilian? Almost a decade later, we not only have no definitive answer to this specific question, but there has been no litigation and final decision of the status of any of the detainees (ignoring negotiated settlements that avoided deciding the same question). Complete uncertainty about this question complicates decisions about where and how to try detainees or how to close Guantanamo. Anyone who claims certainty probably really doesn’t know anything. Answers may only come on an individual basis after evaluating the specific facts in each case. That is why leaving open all the options, and dividing different cases up among different types of legal systems seems like a good plan.

  4. 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 in Afghanistan, one of its largest “bases” was in its Pakistani birthplace, and even before the Northwest frontier started to go steadily into the pits after 2006, it was by far the dominant power in the area.

    And in any case, the Taliban’s open refusal to follow international law, particularly on the battlefield, makes the legitimacy of both its rule in Afghanistan and its armed formations dubious to say the least, and coupled with its less-than-legit activities across the frontiers (largely in Pakistan), and it is relatively safe to say that it bears more of a resemblance to Al-Qaeda than it does even to the Iranian or Saudi governments in organization (the latter were national governments carrying the banner of the Sunni or Shiite theocracy, while the Taliban was a semi-transnational Pakistani-founded Islamist organization that briefly resembled a national government), which makes the comparison rather inadequate.

    ” Are there any private organizations in the US that recruit, train, and finance a Brigade of US Army soldiers?”

    I am sure there are a few PMCs out there that do so.

    ” If they did, wouldn’t that make them part of the government or army?”

    Depends where the loyalty lies (to the government, or to the trainers), and in any event, that distinction is relatively pointless given the nature of the Taliban, its refusal to follow international law, and its very close affiliation with Islamist terror groups. At the most generous, it is a rogue national government, and at worst, it was simply a transnational Islamist organization that was based out of Kabul and controlled most of Afghanistan.

    And in either case, its refusal to adhere to international law and its open activities across the border in Pakistan would be easily make it deserving of the “illegitimate combatant” label.

    “Afghanistan under the Taliban was not ruled by a government that followed any Western model.”
    Afghanistan in general hasn’t. It is just that even back in ye olde days of the Raj and the “Great Game”, the government in Kabul usually represented whichever Afghani power was the strongest, rather than a transnational organization with an open constituency that stretched out beyond national lines (at most, you had a few border tribes, not the- at least- dozens of thousands of self-declared Taliban outside of Afghanistan). The closest real example I can think of is early-modern Arabia, where international boundaries wouldn’t be worth the paper they would be written on until British pressure forced a final settlement after WWI, and power was determined on how much allegiance one controlled.
    “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.”
    Which is all well and good, but for the purposes of international law, the fact that many of those leaders were in fact not from Afghanistan (and indeed, the areas they-dare I say- “represented” often stretched well beyond the Afghani border), and in fact identified themselves primarily by an ideological/religious creed and by organization rather than by a national identity places them far closer to the infamous Saudi-allied Ikhwan at the turn of the past century and transnational Islamists such as Al-Qaeda than to a national government (where- even in the Victorian era- the tribes and other factions were tied more to Afghanistan than to a group across the state lines, as shown by the ability of the Afghan government to recruit these frontier tribes against the British, the Persians, the Russians, and the Chinese throughout its pre-Civil War history), which naturally points to the international issue of whether these fighters represented a nation or an armed transnational group. And this is without taking into account the question of how much of a difference this makes when they refuse to adhere to international law.

    “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.”
    True, but it is not surprising that when the Kabul government fell, these different, ostensibly integrated groups often wound up shooting each other in the chaos that followed (as the Northern Alliance in particularly experienced, when the Taliban-sympathetic recruits turned their weapons on their NA units).
    “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.”
    More like an external ally with strong interests in-country. For one, the Afghan tribes usually were far less heterogenous and far more native than Al Qaeda ever was. And there was a very good reason why Al Qaeda was largely viewed by all parties involved- tribes, governments, and certainly the Taliban itself- as being an ally rather than an appendage of  the Taliban/ Taliban run Afghanistan, and vice-versa.

    “The Taliban were mostly ethnic Pashtuns, but 10,000 soldiers from the force of 45,000 were militia from the Pashtun tribes of the Pakistan side of the border. Did that make them an international orgainzation?”
    That, its similar but far lesser activities just on the other side of the Turkmenistani, Iranian, and Tajikstani borders, the fact that it enjoys some support even outside of the Pashtun ethnic group, and (and this is the main point) the fact that it has always viewed itself more as an ideological group rather than a national or even an ethnical one.
    Again, the Ikwahn wre a usful comparison.
    “Al Qaeda was in the business of recruiting Arabs from throughout the middle east, but it contributed a thousand fighters to the fight against the northern alliance and only 19 hijackers on 9/11. It had some existence internationally, but the numbers make it clear it was 95-98% in Afghanistan (until it was forced out and relocated in Pakistan).”
    The percentage points  appear a little high, but I will accept them for the sake of the argument. However, it is again worth noting that Al-Qaeda was far less tied to Afghanistan than even the Taliban was, drawing much-if not most- of its members from the Gulf States (particularly Bin Laden’s native Saudi Arabia), and it had been involved in low-level skirmishes with Saudi authorities for a few years. It identified more strongly with the Gulf States, and its objectives were far more centralized in Arabia and then spreading out from there than it was in Afghanistan before spreading out to other goals. The best comparison I can think of would be the Fenians post-American CIvil War: Irish nationalists operating with American consent that launched a few abortive raids against British Canada. That, or the Free French.
    In that case, location is reduced to little more than the latest staging area. The truly important issue becomes who makes up said units and what their stated goals are. And Al-Qaeda’s were far closer to the Persian Gulf and the Middle East proper.
    “This is why it is impossible to characterize what was going on in Afghanistan firmly according to Western legal standards.”
    True, but the fact that the Taliban, during its tenure in office, explicitly rejected international law and made no efforts to follow it even when it would have been relatively beneficial and the fact that it often operated outside of Afghani borders and had respectable constituencies even in the Pakistani heartland (South, South East Pakistan) can clean up the matter a little bit (albeit not completely). In short, whatever the Taliban is, it cannot truly be said to have been an Afghan government, even by the standards set by Afghani history.
    “It was not a department of a government without an executive, nor a formal corps of an army without ranks or a clear chain of command, but it also wasn’t private. It was part of the government and military, but in a system of tribal leadership instead of election or formal appointment.”
    Which is far more of a strategic issue than it is a legal one. After all, many of the partisan groups of WWII (most notably the Italian and Greek partisans, many of whome would turn upon the Western Allies postwar) operated on a somewhat similar basis. The ultimate question however, because what was the scope and intent of their actions, and how did they adhere to international law? And did the government or the chain of command (however ad-hoc or informal) do anything to try and bring them into line?
    In that case, the Taliban can easily be seen to be operating as unlawful combatants, even by the extremely low standards set by the region.

    “So when 1000 al Qaeda solders are fighting in Afghanistan, and a handful of special soldiers plan and carry out an attack on a US warship in Aden, how official is this attack?”
    By whom? Al Qaeda? As “official” as the nature of the group will permit. The Taliban? Far less so. The issue was less the fact that Al-Qaeda coexisted with the Taliban or that they were inseparable institutions (they really weren’t), but that- like Vichy France in WWII- they gave support to those that did, even after the fact.
    “Is it more or less a real military operation than the famous attack by the Calcutta Light Horse against the German ship Ehrenfels in the port of Goa in 1943?”
    I would not use the term “real,” because unless the Cole was all a massive ruse concocted by the Trilluminati Priory of Blood-drinking Lizards using CGI effects by Michael Bay with no real casualties, it was real enough. The question you are asking is how officially-sanctioned or open this issue was, which is an interesting question, given your previous statement discouraging us from using Western legal standards to evaluate Afghanistan. But in any event, I would have to say that if by “real” you mean officially-sanctioned, and if by officially-sanctioned  you mean “by the Taliban”, I would have to say the raid on Goa was far less official. The Indian cavalry did not wake up one fine night and decide to randomly attack a German ship stationed in a neutral Portuguese port: they were ordered to do it by their direct superiors, who almost certainly got it from theirs, all the way up to the British High Command. And since we can safely say that Al Qaeda and the Taliban were far more independent from each other than the Raj’s Indian units were from the Empire, I would have to say less. The Taliban didn’t order it, they just weren’t that troubled by this attack by their allies.
    “More or less official than the force the CIA trained for the Bay of Pigs?”
    Less, but this is an interesting inverse. The US was the driving force behind the Bay of Pigs by recruiting Cuban emigres (and a mixed batch of Latin American volunteers) and by planning to land them on Cuba with support from the regular American Navy and Air Force. It was officially sanctioned and ordered by the President (a couple, in fact), as proven by the overt military support that was planned or at least made ready. It is just that after the invasion landed that JFK withdrew the military support, and the landing force was eventually overrun. In contrast, while the Taliban did not order the sinking of the USS Cole (indeed, they almost certainly could not have), they continued to harbor Al Qaeda.
    “Does anyone really believe that the Chinese Volunteers in Korea were not units of the PLA but just some guys who decided to cross the border and fight?”
    Bad comparison: while the Chinese “volunteers” (even those who were actually gung-ho enough to voluntarily cross the border and fight) were nothing more than an officially run section of the PLA save in name, Al Qaeda was an entirely separate organization from the Taliban, with the only overlay being some mixing of the command structures in Afghanistan. One would help the other out with issues abroad and vice versa, the Taliban would harbor Al-Qaeda and allow them to operate out of their territory, but otherwise they were two independent organizations that operated separately.
    “For that matter, does anyone deny that units of the North Vietnamese army infiltrating the South formed the bulk of the enemy forces in much of the Vietnam war?”
    Nope. The issue is that when the North Vietnamese Army went down, they usually were not shy about labeling themselves as such. And even before, the VC were more of Hanoi’s Southern subordinates rather than an independent faction aligned behind North Vietnam.

    “Did deGaulle really represent anything French in WWII or, having spent most of the war in Britain, was he really operating under British authority?”
    Long story short: yes and yes. But the answer you are looking for would be that he was a local (or not so local) ally of the British who kept fighting after 1940 by fleeing to the colonies and rallying some to his banner. Naturally, his forces operated predominantly in the shadows of Washington and London, but he was fiercely independent, and he did more than a few things that his beneficiaries were not happy with. And after 1944, while he remained the junior of the Western Allied “Big Three”, he truly became almost entirely independent.
    In short, the FF are perhaps offer the best parallel to the Taliban and Al Qaeda of the examples you have cited, with one crucial difference: Al Qaeda was far more independent of the Taliban than the Free French were of the Western Allies (at least before 1944).
    “The Free French certainly weren’t authorized by any government in control of any part of France,”
    Well, they were the government in charge of some parts of France (namely the wooded areas where the Germans and Milice had trouble getting to). But the fact remains that you are once again drawing a false- if not entirely inaccurate- analogy: while the Free French were explicitly tied to a national identity and drew their legitimacy from their claim to be the continuation/legitimate successors of the French Republic, Al Qaeda and the Taliban draw their legitimacy less from a national/secular ideological cause like the Free French did than from a religious ideology, an ideology that is not confined like the French nationalism and Democratic-Republicanism the Free French espoused, but a pan-Islamic and theocratic one. And (and this is important) just because Al Qaeda only had solid infrastructure in Afghanistan did not make it an Afghan organization nor entirely dependent on the whims of those in control of Kabul (as we have seen by the activities of Al Qaeda in Iraq and the Levant years after the fall of Kabul eliminated its largest camps): this is the digital era, and on an asymmetric global battlefield, one can have units, infrastructure, and support even within enemy territory and without any large scale “concrete” presence (as the sorry experiences the West has had with Splinter Cells- and I am not talking about the video games- has shown). Al Qaeda was not begging the Taliban for bread crumbs in Afghanistan, or at least not nearly to the extent the Free French were to the Western Allies from 1940 to mid 1944. They had their independent infrastructure and bases, and if Afghanistan fell through (as it did), they moved their nerve centers elsewhere while staying in the fight.
    “but that didn’t make them civilians or criminals or private citizens.”
    A. For the “criminal” charge, they certainly were in the eyes of Berlin and Vichy, as shown by the extremely brutal reprisals against even units that adhered quite strictly to international law.
    B. And THIS is where your comparison runs smack into a wall, for the simple fact that there were several concrete factors that separated the Free French from Al Qaeda, and separated both of them from civilians. Firstly, the Free French were primarily a military organization that obeyed the rules of war quite stringently, and mainly consisted of a government in exile and its regular military with the addition of some irregulars (and remarkably upright irregulars at that) in France itself. It was not transnational, and it made no pretense to be, even when operating out of the territory of its foreign allies. It was not an irregular network around the world united by religious fundamentalism, and even its irregulars (the FFI, or the Marquis) were far closer in behavior vis-a-vis International law than the militias of Al Qaeda and the Taliban were, and it explicitly declared its continuity by stating that agreements with the prior French government (the Third Republic) would be honored by a future FF administration. In contrast, Al-Qaeda and the Taliban were transnational by their nature, with the only national identities either developing more or less developing accidentally or as a result of their founding (with AQ’s Arabic emphasis probably dating from its founding and Osama Bin Laden’s initial activity close to home, and the Taliban’s Central Asian/Pakistani one dating from its founding during the Soviet intervention). In addition, their main drive was not nationalistic, but religious and than ethnic, particularly given the fact that the Taliban tried to largely avoid being labeled as the successor state of the Afghan governments in the past (while it did sign a few agreements stemming from that basis, it generally tried to refute it both rhetorically and in practice).
    The FF were a textbook case of a government in exile and its armed forces, and if not combatants belonging to a recognized nation at least lawful combatants that went to great lengths to adhere to international law. The Taliban and particularly Al Qaeda are something else entirely: more pan-Islamic than anything, though each with their own base of operations, but with those bases capable of shifting with far less change than you would think. They are truly non state actors that operate outside of international law, a force I do not believe modern law as it exists is can readily cope with, particularly domestically.
    “So was Al Nashiri a soldier representing Afghanistan, a member of a non-state party to a non-international armed conflict, or a civilian?”
    The second. His belligerent status clearly excludes him from the last definition, and the bottom line is that for whatever work he did for the Taliban regime in Afghanistan or for any other government, his allegiance, above all, rests with Al Qaeda, and his work with the Taliban was conducted as an extention of that allegiance.
    “Anyone who claims certainty probably really doesn’t know anything.”
    Perhaps, but not necessarily. The main issue is where do non state actors that operate in violation of international laws fall under the modern code? In the past their exemption from the Geneva accords mean that they would usually be treated as unprotected persons and generally dispatched in a quiet corner, but the more recent codes seem to have weeded that out. So, while I feel confident enough to refute your previous contention that such individuals do not qualify for POW status, or at least POW status as we would understand it, I do not know where to go from there.
    “Answers may only come on an individual basis after evaluating the specific facts in each case.”
    Perhaps, but again, where do you find the time, the resources, and the court to hear that out? Particularly given the global nature of the conflict and the gross out-of-jurisdiction issues that would emerge from trying these unlawful combatants in civic courts.
    “That is why leaving open all the options, and dividing different cases up among different types of legal systems seems like a good plan.”
    Perhaps. The question becomes how they are divided, how we deal with them in the meantime, and how we try and get something less than a kangaroo court without running the risks that would come from trying them in a normal civic court.
    All I can say with any certainty is that: A. As we would understand it, individuals such as Mr. Al-Nashiri would not be eligible for POW status, given their refusal to follow international law and their nature as non-state actors, B. The current situation might be a decent impasse, but it needs reform to actually solve the issue at hand, and C: Somehow, my cats are to blame for this.
    I would hate to have to be whoever is going to have to split the baby on this legally.
     

  5. 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.

  6. 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 it does anything else.

    The bottom line: whatever anyone is going to do, it should be done for better reasons than because it merely looks good. And while my faith in politicians (and particularly the current administration) is strained at best, I do think they will give it a good go. But they are still going to have to justify themselves on legal grounds rather than because it will look good.

  7. 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 will not make when they vote in the next election.

    Some would like to blame the Bush administration’s use of waterboarding for tainting evidence and blocking a successful prosecution. That stopped being a viable claim as soon as KSM tried as hard as possible to plead guilty. You don’t need admissible evidence to accept a guilty plea, and his statements before the Military Commission are certainly admissible and establish his guilt by themselves.

    The simplest question that may be posed is whether the Federal Courts will allow a guilty man will to represent himself and admit what he did in a capital case. This doesn’t happen with ordinary crimes, but ordinary criminals don’t have a rational political and religious agenda. The next unusual problem is reconciling the influence that KSM legitimately has as a commanding officer over his subordinates, a problem that the civilian courts normally do not deal with because they do not normally try members of an enemy military unit.

    Some lawyers will try to get him to change his mind. Some will want to challenge his treatment by the previous administration. Some will imagine that if they can screw up the works, the blame will fall on Bush and Cheney. It won’t. The public knows what these guys did. They know, or will be reminded, that they would have plead guilty had they been allowed to do so before a Military Commission. So if someone can screw up the Federal trial, the blame will fall on Obama and on the civilian legal system.

  8. 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.

  9. 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 was required in Milligan due to its unique circumstances), but is one of “military necessity” meaning a lawful (with regard only to IHL) measure against a public enemy.

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