KSM Heading Back to a Military Commission?

by Julian Ku

Wow! It’s not a done deal, but it sure looks like Khalid Sheikh Mohammed is going back to a trial before a U.S. military commission, the Washington Post reports.

President Obama‘s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some alleged terrorists in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

I get the New York City thing, but I am not quite sure that other parts of New York wouldn’t have welcomed the trial. Sure, there are logistical problems, but I wonder if there isn’t also a reversal of principle here. Obama and Holder are going to have to swallow a lot of high-falutin language about the supposed irresponsibility of the Bush Administration on this stuff, if they do reverse themselves here.

http://opiniojuris.org/2010/03/05/ksm-heading-back-to-a-military-commission/

14 Responses

  1. Military commissions have been limited in this conflict to unlawful enemy combatants. The original MCA defined al Qaeda to be unlawful enemy combatants, but that definiton was dropped in the current revision of the statute. The judge in the previous commissions relied on that definition and therefore did not inquire further about whether defendants would be regarded as unlawful combatants under normal military law. So the first business of a new commission would be to revisit the question of whether, under the new legislative language, these particular defendants are unlawful enemy combatants over whom it has jurisdiction.

    Note that this distinction has nothing to do with the charges, or the nature of the crime, or whether they are terrorists. It is simply a determination of their military status at the time they committed the crime.

    The previous commission cases have been individuals captured in Afghanistan. Hamdan, for example, was a civilian (unprivileged) who participated in combat by transporting anti-aircraft missile on the battlefield.

    KSM, however, commanded the 9/11 attack. He clearly is a criminal and engaged in air piracy, and is subject to military trial as well as civilian jurisdiction. To call him an enemy combatant rather than a criminal you have to admit that he was a military commander, and at that point there is no basis in military law to claim he was an unprivileged combatant. It is clearly established military law that the commander of a spy or saboteur is not himself an unprivileged combatant just because he commands men who, as spies, are unprivileged.

    After WWII, enemy generals who were clearly privileged belligerents were tried for war crimes before military commissions. There is no requirement, except for the text of the law authorizing military commissions, for the defendant of a military commission to have to be an unlawful enemy combatant. However, once the law was written this way, you have to make your decisions about which type of court to use based on this restriction.

    Holder can avoid this problem by choosing the third option that nobody talks about. If you want a military trial, KSM could be tried before a regular Court Martial. There is no special status to Courts Martial. Some of our most depraved murderers, rapists, drug dealers, and child molesters get them. You just have to have enlisted before committing the crime.

    A Court Martial can try both lawful and unlawful enemy combatants and civilian enemy aliens who commit crimes against international law during wartime. This is a regular established court system, so there is no claim of substandard justice. The MCA and its subsequent amendments envisioned this option. Unlawful enemy combatants could be tried by commission; privileged combatants must be tried by Court Martial (although it can also optionally try unlawful combatants as well).

    The Bush critics get something, because Holder would be using a different “better” system than Bush was prepared to use. The Republicans get something because, as every movie goer knows, you can hold a Court Martial at Guantanamo. If you have the evidence to convict in a civilian trial, you can convict in a Court Martial.

    Once Holder agreed in early November to try a half dozen detainees in military commissions, any question of principle or continued dispute about that mechanism was off the table. At that point the decision to try KSM in civilian or military court was tactical. However, the military commissions now operate under different rules that they did during the Bush administration, so Holder can point to the new, improved nature of the commissions to explain the difference.

  2. I cannot remember Timothy McVeigh being described as unlawful combatant, nor anybody stressing the need to subject him to a military tribunal. Point is, ever since 9-11 anybody alleged to possibly, eventually hinder US interest is called a terrorist. No judicial review of that determination needed. On the sole say-so of the Supreme Leader.

    Second, it already has been shown that those “normal” trials secured more convictions the past decades than the rogue military commissions. Merely following the statitistics would suggest a criminal trial is the preferred route.

    Third, what exactly is the problem with putting alleged terrorists on trial? The US, and the entire planet, did it before 9-11, all other coubtries are doing it today. Why the brouhaha?Sorry, of course, giving KSM due legal proces will result in the end of the world as we know it. My bad.

  3. When planning 9/11, KSM was in Kandahar and arguably was a high ranking officer in the Afghan army. When a civilian kills his wife he is a criminal and is charged in civilian court. When a soldier kills his wife he is still a murderer, but is typically charged in a Court Martial. KSM can be a terrorist, mass murderer, and air pirate. He is probably also a war criminal. He can be charged in civilian court or he can be charged in military court, but probably not both for the same crime. However, the air piracy charge (and the deaths of the crew and passengers of the planes) could be charged in civilian court as a violation of international treaties, while the death of civilians in the World Trade Center could be treated as a war crime (murder in violation of the laws of war) and charged in a military court.

    The problem with this discussion is that everyone seems to have a personal opinion about the way they would prefer to see KSM tried. The legal discussion should instead be about which system has the best jurisdiction over the charges, not which system is your favorite type of court. If someone robs banks in Texas, Oklahoma, and Kansas you are certainly entitled to a personal preference about which state he should be tried in first, or whether he should face Federal bank robbery charges. Nobody would, however, be as silly (as they are in these cases) to claim that they think Oklahoma is better than all the other states and the Federal government, so the Sooners should be the only jurisdiction allowed to try the case. However, turn this question over to Congress and that is exactly the type of analysis you will get.

  4. “which system has the best jurisdiction over the charges”  however is problematic isn’t it?  The prosecutor has to evalutate what the evidence is for each of the potential charges and which is the proper jurisdiction. 

    As the judge in the Padilla criminal case said here a couple of weeks ago, the government prosecutors kept taking evidence off of the table because it was unusable (tainted) and managed to come down to some minimum though serious charges.  That way the Padilla arguments on treatment became irrelevant.

    With the Military Commissions I understand your “as applied” as opposed to “as written” view.  But my sense of the whole development over three iterations (PMO, MC 2006, and MC 2009) is that a persistent undercurrent was to reduce the level of confrontation for intellgence reasons.  And those intelligence reasons seem to be a dual use argument – true protection of sources and methods and true protection of those who tortured from having their process be addressed in a meaningful manner in a court.    I see no “regularly constituted” here nor the kind of necessity of courts closed or in occupied lands.

    In fact, if you look back over the wide range of court process we have had over the past 8 years a constant theme seems to be to put the actual conditions of confinement and interrrogation techniques outside the sight of court review and certainly away from the eyes of the American people.  

    At the same time, when you read the memos that are leaked or come out, over and over the concern of the Administration is with the conditions of confinement and interrogation techniques to permit torture.

    Maybe others do not seek to vindicate the torture prohibition that way, but based on our long history as a country  I think we need to move toward more light and transparency about these things because that protects me from state overreaching.  Vindicate the torture prohibition in the cold light of day in court.

    Focusing on the charges and jurisdiction is the kind of narrow lens focus that obscures at least to me the enormous complexity that these cases bring in terms of the US saying who we are to ourselves and the world.  I think the people at the top of the Administration are aware of this and for them it is politically untenable to risk that any of these persons will not be convicted.  But, if any were not convicted, having an American jury decide that would be a powerful statement about the rule of law – for America and the world.  And that is a risk that – after the past several years – I would submit is precisely what the leadership should take.

    And, if acquitted, that does not mean that the evidence is not sufficient to detain them for the length of the hostilities – I have no doubt we are in armed conflict – just not to convict them of a crime.

    But, of course, that kind of thinking is no doubt so naive.

    Best,
    Ben

  5. A followup on the interrogation meme that is underneath this game (including congressional complicity in torture) on where to try them.  I just was at Barnes and Noble and read Shoshana Johnson’s chapter on Interrogation about her ordeal when she was captured by the Iraqi army early in the War in Iraq.  Interrogation, yes.  Fear of torture or beating?  Absolutely, she had been trained for that (SERE techniques).  Actual torture or beating, no.  She was given POW clothes, here medical conditions were dealt with, she was logged in a book (no ghost detainees) and held in a prison with no bugs and a bedroll.  In other words, done by the book and civilized by the Iraqi Army.  Not barbaric like civilians who took up arms or terrorists.  Or YOO can guess who else.
    Best,
    Ben

  6. Howard Gilbert said:

    “A Court Martial can try both lawful and unlawful enemy combatants and civilian enemy aliens who commit crimes against international law during wartime.”

    -and-

    “The MCA and its subsequent amendments envisioned this option. Unlawful enemy combatants could be tried by commission; privileged combatants must be tried by Court Martial (although it can also optionally try unlawful combatants as well).”

    But according to David Frakt, former military defense counsel for some Guantanamo detainees:

    “Article 31 of the UCMJ applies only to ‘persons subject to this chapter’ that is, [American] military personnel (or POWs being treated as POWs). Congress was very clear in the MCA that Article 31 did not apply to Guantanamo detainees (who have never been treated as POWs).”

    How would AG Holder get around that fact for current detainees if he switched from Judicial Branch trials to Executive Branch courts-martial, without first finding that all such Guantanamo detainees, who have long been held without the protections and rights of POWs, have been abused by their American captors in flagrant violation of law and treaty?

    Other than that, it does seem evident – though carefully never mentioned by the media or Congress – that regular, UCMJ-governed law-of-war courts-martial would have been a viable and just alternative, for the 9/11 suspects when they were first captured, to trials in the standard system of justice of our Judicial Branch. Although I would absolutely not have wanted such courts-martial, or at least would certainly not now want them, located anywhere near Guantanamo Bay itself, to avoid cross-contamination from that military base’s fraudulent knock-off version of military law and its general environment of lawlessly-concocted battlefield drumhead “justice” that’s imposed (from time to time, as the jailers see fit) on suspects imprisoned for years at a secure and isolated American-controlled site located thousands of miles of ocean and land away from any actual battlefield.

  7. UCMJ applies, among others, to:

    “(9) Prisoners of war in custody of the armed forces.

    (10) In time of war, persons serving with or accompanying an armed force in the field.”

    It is important to distinguish between “prisoners of war” and the subset of them who are persons protected by the Third Geneva Convention. For example, in its text the GC did not cover prisoners of war belonging to non signatory nations, nor does it cover spies and saboteurs, nor does it protect persons who belong to eligible forces but who refuse to abide by its provisions by not wearing a uniform, not carrying the required military ID card, and by not providing name, rank, and serial number when they are captured.

    Although the US maintains the position that persons detained in the current conflict may not be eligible for protection under the GC, the more direct point is that none of these detainees were captured in uniform, or carrying a military ID, nor did any give name, rank, and serial number. Even so, they might qualify if they demand protection under the GC, thus triggering an “Article 5″ tribunal, but even when invited to do so, not one detainee has claimed Geneva protected status.

    Any detainee who has contested his combatant status before a CSRT or in a Boumediene Habeas petition has forfeit his right to claim the protections of the Third Geneva Convention (because Geneva protection requires that you admit your combatant status openly). I happen to believe, however, that the remaining detainees have a strong case should they ask for an Article 5 tribunal. That is, I believe that the Yoo opinion that they are not eligible for Geneva status is wrong and would be found to be wrong if challenged. I cannot assert that the US violated any international obligation by refusing to regard them as having Geneva protection up to this point, given their circumstances at capture and the way they have handled their detention.

    It is incorrect to say that someone held as an enemy combatant or even an unlawful enemy combatant is not a “prisoner of war” simply because he was captured under circumstances where the Geneva protections did not apply automatically and he has not requested such protections. All those held as enemy combatants in the current conflict are prisoners of war subject to Court Martial under the UCMJ. That is what “enemy combatant” means as, for example, it was used by the Supreme Court in the Hamdi decision to apply to detainees in the current conflict.

    Even the ICRC guidance points out that there are intermediate categories of soldiers, such as members of armed units of non-state parties to an armed conflict engaged in continuous combat function who are subject to targeting (lethal military force without warning) as enemy combatants but who are not privileged and are not entitled to protected status once captured. Anyone subject to targeting is also subject to detention when captured (because the only logical alternative to detention as an enemy combatant is to shoot them down in cold blood).

    Congress was very clear that unlawful alien enemy combatants were subject to Military Commissions. It is an obvious consequence of this specific restriction, that lawful alien enemy combatants (if such a category is found to exist in this conflict) and unlawful enemy combatants who are citizens (Jose Padilla for example) are not subject to Military Commissions and therefore must be tried by a full Court Martial. However, nothing in the MCA prohibits those subject to a Military Commission from being presented to a Court Martial if that is the decision of the Executive. Given the recent amendments to the MCA removing the presumption that al Qaeda and the Taliban are all unlawful enemy combatants, I cannot find anything in the current law to support the proposition that Courts Martial of Guantanamo detainees is in any way blocked by statute.

  8. With regard to this, Howard:

    “Even so, they might qualify if they demand protection under the GC, thus triggering an ‘Article 5′ tribunal, but even when invited to do so, not one detainee has claimed Geneva protected status.”

    Please note the following, from Salim Hamdan’s defense counsel in a proceeding in the Military Commissions at Guantanamo on December 5, 2007:

    “”MJ [Military Judge]: Okay. Well this is a very interesting question and I appreciate your argument. I am not sure what the answer is. Does the defense want to respond to that last question about section 948b subsection (g) [of the 2006 MCA]?

    CDC [Mr. Joe McMillan, civilian defense counsel]: Yes, Your Honor, if I may very quickly. Colonel Britt did indeed correctly anticipate the defense’s response to the question from the court concerning subpart (g) of 948b. The language of that subpart says, “No alien unlawful enemy combatant subject to trial by military commissions under this chapter may invoke the Geneva Convention as a source of rights.” It is indicated here–it is predicated that there be a finding of alien unlawful enemy combatant status, and indeed that is what the Article 5 status determination we asked for is designed to achieve.

    To the extent that this statute is valid and enforceable, it only applies after a finding of enemy unlawful combatant status has been made. Until the Article 5 inquiry is conducted, there has been no finding of enemy unlawful combatant status. May I respond to one or two other points?

    MJ: Yes, please.

    CDC [Mr. McMillan]: The prosecution raised the question as to whether or not Mr. Hamdan has properly invoked the right to an Article 5 hearing. The prosecution in its papers has claimed that Mr. Hamdan did not properly specify the subparts of Article 4 under which he may be protected. And yet they concede in footnote 4 of their brief that in the federal court proceedings that predated the proceedings in this commission, Mr. Hamdan has invoked his POW status at various times. In the U.S. District Court, for example, in his opposition to the government’s motions to dismiss, Mr. Hamdan asserted entitlement to POW status under the subpart that I call the court’s attention to part (a)(4) involving civilians that accompany the armed services.

    Mr.–the prosecution also made a comment or two concerning what the court was referring to when it referred to doubt, to doubt in the June 4th order. And I would just direct the court’s attention to the relevant passage from the June 4th order in which this commission indicated its concurrence with the District Court’s view of the matter. And the reference there is the U.S. District Court in the District of Columbia holding that there was sufficient doubt under Article 5 to require an Article 5 inquiry before Mr. Hamdan could be subject to jurisdiction of the military commissions.

    So the courts order made it very clear that in a sense it was adopting the reasoning of the District Court in that regard. There is no doubt about what the court meant when it said there is sufficient doubt concerning Mr. Hamdan’s status under the law of war.”

    Source:

    http://www.defenselink.mil/news/02Hamdan-5-6%20Dec%2007-final-after%20MJ%20errata-61-448-Redacted.pdf

    And from proceedings the next day (starting on Transcript Page 439):

    “CDC [Mr. McMillan]: … If that’s not a description of a militia or volunteer corps formed in part of the armed forces, I don’ know what is. And indeed the designation of the 055 Brigade is itself a numeric designation of an Afghan regimental unit. So, in sum, Your Honor, the evidence that has been put before the court in no way creates a preponderance of evidence as showing that the four requirements of the M.C.A. have been satisfied. In fact at best Mr. Hamdan has been linked to the activity of the Ansars. Whether he’s supplying them or whether he is himself on a member of them, it doesn’t matter. What the evidence shows is that the Ansars were a lawful combat unit and accordingly as a member of that unit under the best case of what the prosecution showed, Mr. Hamdan would be entitled to POW status.

    And it was dealt with in the last brief submitted to the court prior to our hearing here this week that was the briefing on the Article 5 motion. And what I have on the projector here is a highlighted section of the CMCR’s decision in United States v. Khadr from September. And there is a statement here indicating that the burden of raising the special defense that one is entitled to lawful combatant immunity rests upon the individual asserting the claim, in this case Mr. Hamdan, who has asserted that claim. Once raised the burden shifts to the prosecution to prove beyond a reasonable doubt that the defense does not exist. … The defense posits, Your Honor, that this is in fact a threshold determination. …

    MJ: What exactly do you claim your client’s status is?

    CDC [Mr. McMillan]: We believe our client is a prisoner of war.

    MJ: Based on what section?

    CDC [Mr. McMillan]: Protected at least under A4, possibly under A2 and A1. Bear in mind Your Honor—-

    MJ: I didn’t bring my copy of the Geneva Conventions. A4 is what?

    CDC [Mr. McMillan]: Let me put those in front of you. Okay, A4 at the very bottom of the screen are the civilian support personnel. Members of Labor Unions—-

    MJ: You don’t need to read it. I’ll read A4 later; I just
    wanted to ask what your claim is.

    CDC [Mr. McMillan]: That is one claim. Now bear in mind we haven’t put on evidence of this yet in the form of testimony from our client.

    MJ: Sure.

    CDC [Mr. McMillan]: … And we would also posit that based on Professor Williams’ testimony the integrated nature of the Ansar and the 055 Brigade into the Taliban forces would offer–would afford Mr. Hamdan protection under A1.”

    See also, FYI, this, from the new “Enemy Belligerent” legislation just created by certain Senate Republicans apparently working with the White House:

    “An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners…”

    http://assets.theatlantic.com/static/mt/assets/politics/ARM10090.pdf

  9. I posted some information (in response to part of Howard’s last comment) which seems to have been trapped in moderation for more than 12 hours, so I wanted to get at least the following part of the comment – which is of more general interest with respect to the topic of Julian’s post – through separately.

    John McCain filed a bill, apparently last week, called the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.”   Its text is available here:

    http://assets.theatlantic.com/static/mt/assets/politics/ARM10090.pdf

    Among its provisions is Section 5:

    “An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.”

  10. There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U.S., at 20. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id., at 37—38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. [Supreme Court, Hamdi v Rumsfield]

    The ability to hold enemy combatants as prisoners of war even when they happen to also be US citizens already exists under current Supreme Court decisions. The quoted section 5 simply provides the explicit Congressional authorization (long overdue) to a practice that the Supreme Court found in the Hamdi decision was implicitly authorized through the AUMF.

    Nothing new here.

  11. Anon: Now that your post has appeared, you are right. Hamdan did claim to be protected by the Third Geneva Convention as a POW, but not as an enemy combatant. He raised the claim that he was one of the two categories of “civilian accompanying the army” that are described in Article 4 of the Convention. The Military Commission under instructions from the appellate court entertained this claim, constituted its own Article 5 tribunal as a pre-trial phase, and found that Hamdan did not meet either criteria under Article 4 for civilian POW status and Geneva protection.

    When I was talking about “name, rank, and serial number” I misspoke when I said that nobody had claimed Geneva protection. I should have said instead that “nobody has claimed protection under Article 4 of the Third Geneva Convention as a lawful combatant“, which is the usual meaning of POW. There are a number of members the 055 Brigade, front line soldiers in the conflict with the Northern Alliance, who were captured and sent to Guantanamo who should have qualified had they requested status. Hamdan himself had nothing meaningful to do with the Brigade.

    The problem is religion. Under a Taliban interpretation, Shari’a is the law of God and is both perfect and complete. There is no need for any law of man, including international law. So they do not recognize the authority of the Geneva Convention and will not invoke it.

  12. Hamdan did claim to be protected by the Third Geneva Convention as a POW, but not as an enemy combatant.

    -and-

    I should have said instead that “nobody has claimed protection under Article 4 of the Third Geneva Convention as a lawful combatant“, which is the usual meaning of POW.

    Huh?!

    What does this mean then, Howard, from the 2007 military commission transcript I posted, as spoken by Hamdan’s defense counsel McMillan:

    What the evidence shows [as elicited in that very proceeding and transcript] is that the Ansars were a lawful combat unit and accordingly as a member of that unit under the best case of what the prosecution showed, Mr. Hamdan would be entitled to POW status.



    And what I have on the projector here is a highlighted section of the CMCR’s decision in United States v. Khadr from September. And there is a statement here indicating that the burden of raising the special defense that one is entitled to lawful combatant immunity rests upon the individual asserting the claim, in this case Mr. Hamdan, who has asserted that claim.

    Which is thereafter further detailed as follows:

    MJ: What exactly do you claim your client’s status is?

    CDC [Mr. McMillan]: We believe our client is a prisoner of war.

    MJ: Based on what section?

    CDC [Mr. McMillan]: Protected at least under A4, possibly under A2 and A1.

    CDC [Mr. McMillan]: … And we would also posit that based on Professor Williams’ testimony the integrated nature of the Ansar and the 055 Brigade into the Taliban forces would offer–would afford Mr. Hamdan protection under A1.

    Article 4, Sections A1, A2, A3, & A4 of the Third Geneva Convention relative to the Treatment of Prisoners of War:

    Art 4.

    A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

    (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

    (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

    (a) that of being commanded by a person responsible for his subordinates;
    (b) that of having a fixed distinctive sign recognizable at a distance;
    (c) that of carrying arms openly;
    (d) that of conducting their operations in accordance with the laws and customs of war.

    (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

    (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

    Furthermore:

    Art 1. The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.



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


    It’s plain as day from the above information that Salim Hamdan “claimed protection under Article 4 of the Third Geneva Convention as a lawful combatant” Prisoner of War, as a threshold issue in front of a 2006 MCA commission proceeding in December, 2007, if not long before.  The military judge, acting as an Article 5 tribunal (with the concurrence of Hamdan’s defense counsel), nevertheless proceeded to deny Hamdan that POW status, later in December, 2007, and thus the military commission proceeding continued, ending in a guilty verdict for Hamdan.

    As for all the other hundreds of detainees now or once held in Guantanamo, obviously if they were wholly uninvolved with the armed conflict they could in no way admit or invoke a “lawful combatant” right to protection as a POW, with or without an Article 5 hearing. 

    But how do you know – that is, on what do you base your assertion when you state that no (other) Guantanamo detainee (presumably) involved in the armed conflict in some way (particularly if never charged or tried by military commission or yet able to present a habeas corpus appeal in federal court) ever asserted the rights and protections of Geneva protected status, “lawful combatant” or otherwise, even when “invited” to do so?  [Even so, they might qualify if they demand protection under the GC, thus triggering an “Article 5″ tribunal, but even when invited to do so, not one detainee has claimed Geneva protected status.]

  13. Anon:
    In the quoted sections, Hamdan claims to be a lawful combatant (A1, A2, A3) and also to be a civilian accompanying the army (A4). In sections not quoted here, he also made claims under A5 (merchant marine or aircraft crew) and A6 (levee-en-masse). The problem with this kind of shotgun claim is that it throws logic out the window. You cannot simultaneously be an enlisted soldier (A1) and a civilian accompanying the army (A4).

    There is also the rather long non-sequitur about the 055 Brigade (Ansars). Although I would agree that they clearly qualify as lawful combatants, Hamdan never claimed to be a member of the unit.

    “The Commission has searched carefully through the evidence presented by the Defense, and finds nothing that would support a claim of entitlement to lawful combatant or Prisoner of War Status under options (1) or (2) above. While the Defense showed, through the testimony of Professor Williams that the Ansars were “members of the armed foreces of a Party” or members of a militia or volunteer corps “forming part of any such armed forces” there is no evidence that the accused was a member of the Ansars or any other militia or volunteer corps.” (Ruling of the Military Commission, Dec 20, 2007)

    However, by invoking (1) and (2) even without actually presenting either evidence or argument or even allegation to support it, I suppose you can say that he did claim to be a lawful combatant. He also appears to have claimed to be a merchant marine, aircraft crew, and inhabitant of a non-occupied territory who formed himself into a regular armed unit, …

    Hamdan was the only detainee to request an Article 5 tribunal. As the sections you cite point out, others like Hamdi who were members of the Ansars and were captured had a reasonable chance of obtaining POW status if they asked for it, but none did. The Secretary of the Navy testified to Congress that a CSRT would become an Article 5 tribunal if any detainee made such a request, but it never happened. The only Article 5 happened in Hamdan’s Commission.

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