A Word on Maqaleh

by Deborah Pearlstein

Cross-posted at Balkinization

Following my co-blogger Ken Anderson’s lead, I wanted to add a few additional notes on the D.C. Circuit’s holding today that a group of detainees held at the U.S. military base at Bagram, Afghanistan, do not have a constitutional right to seek a writ of habeas corpus in U.S. federal court. While acknowledging that at least two of the detainee-petitioners had been picked up far outside the Afghan borders (one, most notably, in Thailand) and only came to be in the Afghan theater because the U.S. government brought them there, the court concluded that the “practical obstacles inherent in resolving the prisoner’s entitlement to the writ” while petitioners were detained in an active theater of war weighed against recognizing an extraterritorial constitutional right to habeas.

Many things to say on the decision’s import and meaning, but here I’ll just start with two unrelated points. First, on the import. Whatever one thinks of the opinion on the merits, it may be easy to overstate its practical significance. The Obama Administration’s litigation strategy in all of its highest profile detention cases has been to moot key cases on their facts before they can be finally resolved by the Supreme Court. Such was the case with, for example, the weighty claim by a group of Gitmo detainees that winning their habeas cases entitled them to release in the United States. So too here, all indications are the Administration is scurrying not only to hand over its detention operations in Afghanistan to the Afghans generally (a move key human rights organizations endorse as a matter of international law), but also reportedly to transfer remaining non-Afghan detainees to their home countries for continued detention and/or trial. It’s possible the Administration may not succeed in its mooting strategy this time. But given the months they now have between petitions for rehearing en banc in the D.C. Circuit and (failing that) for cert sure to follow, I wouldn’t necessarily bet against them. If the U.S. cedes control of Bagram before the case reaches the Supreme Court, what will remain on the books is the ruling of an appeals court, in a decision, as Ken also seems to see it, highly and self-consciously limited to its particular facts.

Second, on the content. It seems fair to say the reasoning in the opinion was slight. And not just because out of the 26 pages of published writing, one doesn’t reach the meet of the analysis until the bottom of page 19 (after which follows about a page’s worth of block quotes, and another nearly full page of conclusion restating the decision in summary). What reasoning there is doesn’t especially engage the particular facts of the case. Consider, for example, how heavily today’s decision rested on the analysis in the Supreme Court’s 1950 decision in Johnson v. Eisentrager, in which the Court declined to allow U.S. military detainees held in Germany (following their war crimes convictions in China) to seek habeas in U.S. courts. In particular, the Maqaleh court quoted in block the following passage from Eisentrager in support of its conclusion that habeas for the 3 Bagram detainees here would be unwise to pursue:

“Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.”

To be clear, in suggesting that habeas for Bagram would “bring aid and comfort to the enemy” and “diminish the prestige of our commanders” in Afghanistan, the appeals court here did not expressly (or even impliedly) cite to some particular claim in the record before it. Neither was it discernably deferring to some perceived superiority of the Executive’s assessment of the strategic or practical import of allowing the Bagram detainees captured outside Afghanistan to seek a writ of habeas corpus. Rather, the D.C. Circuit seemed to be doing exactly what the Eisentrager Court did – asserting, based on the court’s own impression, that greater legal process would only hamper the strategic cause for which the United States is fighting in (on this occasion) Afghanistan.

Yet particularly in the counterinsurgency context in which the U.S. is now fighting, it seems an odd – and overstated – position for the court to take. Indeed, as the Commander of NATO forces in Afghanistan, U.S. General McChrystal, explained in his pivotal strategy report last year, “the Afghan people see U.S. detention operations as secretive and lacking in due process.” Because detention operations could thus become “a strategic liability,” the United States faces a “critical” need “to conduct all detention operations in this country in accordance with international and national law.” McChrystal went on to recommend the turnover of detention operations to the Afghans, once they developed the capacity to sustain such operations lawfully and effectively. There is nothing in his report that would support the conclusion the Maqaleh court reached about the impact of judicial review on “the enemy,” and much in it that might support the view that habeas in the limited context presented here – where detainees have been shipped from a country at peace with the United States into a country where the United States is at war – might be of some strategic benefit with “wavering neutrals” pending handover to the Afghan government.

I don’t mean to overstate the point. The government here, after all, opposed extending habeas to Bagram. Nonetheless, especially given the stakes, it seems insufficient for the court to rely centrally on an assertion that seems at least somewhat in tension with positions the government has itself elsewhere taken on this particular issue. In Hamdan, the government had argued that it was impracticable to pursue war crimes trials under existing court martial rules on the bare grounds that the demands of counterterrorism were great. Writing for a majority of the Supreme Court, Justice Stevens rejected this claim as, among other things, lacking basis in the record. Hard to demonstrate the D.C. Circuit crossed that threshhold here.

http://opiniojuris.org/2010/05/22/a-word-on-maqaleh/

5 Responses

  1. My reading of the US Constitution is that the US Government was created without the power to conduct proceedings that violate the human right to habeas corpus, a right that predates the US Constitution.

  2. On what planet are convicted war criminals filing habeas corpus petitions, or genuine Prisoners of  War treated as such, equivalent to captor-alleged enemy fighters (assigned non-POW status by default, rather than the other way around, as Article 5 of the Geneva Conventions requires) who have NEVER BEEN AFFORDED a Geneva Convention-mandated, Army Regulation-implemented Article 5 hearing designed for battlefield-collected captives to contest their status as enemy combatants, lawful or otherwise??  [The CSRTs were knock-off frauds of such hearings, as even military judges have had to concede when finally forced to it in a case or two, as will likely happen again with another captive next month in Guantanamo.]

    Captives denied POW protection and lawful Article 5 tribunals can hardly appeal to their MILITARY CAPTORS for a fair opportunity to be heard in an Article 5 hearing – which that same military has already denied them, by Executive fiat, in violation of their own regulations – and thus they have had to resort to the foundational plea for a habeas corpus hearing in the actual courts of the detaining power, to even have a chance of being heard by an objective audience.  Only to then be treated by those courts as though their pleas were from captives NOT CONTESTING their status, as-assigned, without competence or fairness, by the American military – a status that, under the law of armed conflict, determines EVERYTHING ELSE that follows as to the lawfulness of their actions pre-capture and of their detention, and the standards of their treatment in detention, and yet, in these post-9/11 cases, that status has been assigned by a one-sided, unilateral process that gave the captives no legitimate opportunity to dispute their assigned/accused status, even YEARS into their detention.

    THAT is the genesis of, and the quicksand foundation beneath, almost all of the slow-winding, half-baked legal rulings that have followed 9/11 about these detainees in our courts: Rulings addressing pleas from WRONGLY-ACCUSED (and often-abused) prisoners, who have NEVER been afforded the protections or rights of Enemy Prisoners of  War under the law of armed conflict, OR the right to contest their U.S. military-assigned status, who are being treated by the American judiciary as LEGITIMATELY-defined POWs or non-POW detainees with a lawfully-assigned status, despite their never having been able to dispute it in front of a “competent tribunal,” as clearly required by international law.   Even the belatedly-ongoing habeas hearings in the D.C. District are ignoring the violations of the law represented by the absence of Article 5 hearings, and the resultant mistreatment of detainees that absence brings, whether judges concur with or dispute the government’s right to hold each plaintiff for the duration as an actual enemy fighter.

    Translation: These are effectively POLITICAL PRISONERS of the American Executive Branch, many held since 2001 or 2002 without cause, and our Judicial Branch has simply turned away from that cold, hard reality to try to apply the standards of their predecessors during World War II, who were mostly dealing with cases where POW/non-POW status WAS legitimately assigned to our captives by an honorable military chain of command, in order to pretend that these political prisoners, never similarly assessed or treated, are somehow one and the same as the hundreds of thousands of ACTUAL German POWS in our custody – who were likely THANKFUL to be out of the fighting and detained in American prison camps for the duration…

    Here’s the openly-violated, still-on-the-books, Army Regulation 190-8 that our military chain of command has been ordered to ignore, and has ignored, for almost a decade now in Afghanistan, TO ZERO consequence from our courts or our Congress:

    1–5. General protection policy

    a. U.S. policy, relative to the treatment of EPW [Enemy POWs], CI [Civilian Internees] and RP [Retained Pesonnel] in the custody of the U.S. Armed Forces, is as follows:

    (1) All persons captured, detained, interned, or otherwise held in U.S. Armed Forces custody during the course of conflict will be given humanitarian care and treatment from the moment they fall into the hands of U.S. forces until final release or repatriation.

    (2) All persons taken into custody by U.S. forces will be provided with the protections of the GPW [Third Geneva Convention relative to POWs] until some other legal status is determined by competent authority.

    [Soon followed by:]

    1–6. Tribunals

    a. In accordance with Article 5, GPW [Geneva Convention relative to POWs], if any doubt arises as to whether a person, having committed a belligerent act and been taken into custody by the US Armed Forces, belongs to any of the categories enumerated in Article 4, GPW [that is, actual POW status], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

    b. A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatment as a prisoner of war, or concerning whom any doubt of a like nature exists.”

    http://www.army.mil/usapa/epubs/pdf/r190_8.pdf

    Any American federal judge, like the three appellate judges at issue here (whose superficial opinion took more than a year to issue while the plaintiffs remained locked up on an American military base), who – at this late stage of the process, after even MILITARY JUDGES have made it clear in the few military commission proceedings to get far enough to expose the fact, that this process of fair status determination has NOT taken place for prisoners at Guantanamo, never mind for prisoners at Bagram – still deliberately chooses to blithely overlook the import of this failure, thereby enabling both Congress and the President to continue to do so without reproach or consequence, should hang their head in shame.

  3. Anon,

    Habeas is a challenge to the legality of detention.

    If someone is being held illegally, then granting them POW status is irrelevant. If someone is being held legally, then the question of formal POW status is a completely separate and independent matter from habeas, unless you use habeas to challenge the conditions of detention instead of the detention itself.

    The Eisentrager defendants were all former German army officers who had lost their lawful combatant status when Germany surrendered. When they continued to aid the Japanese, they were unlawful enemy combatants, exactly the same status that the US now attributes to the detainees at Bagram and Gitmo. They were tried before a Military Commission on the charge of being unprivileged belligerents, because the government had a charge and evidence enough to achieve a conviction.

    I agree that the US government was wrong to declare that all soldiers in the Afghan Army (under the Taliban) were by definition unlawful enemy combatants not entitled to POW status. However, although the US policy was wrong, that error does not extend to anyone bringing one of these challenges. In order to qualify for POW status you cannot hide your combatant status. You must give your name, rank, and serial number or some equivalent. You must at all times admit your combatant status and demand your Geneva rights. Anyone who contests the legality of his detention by claiming that he is not an enemy combatant is, by that act, not entitled to the protection of the Third Geneva Convention. He is then either an unlawful enemy combatant not entitled to POW status, or an improperly detained civilian who is also not entitled to POW status.

    The Eisentrager defendants were not “War Criminals”. It is a mistake to use that phrase for everyone who is convicted of anything in a military court. Traditionally a “war criminal” is someone who is a lawful combatant (a regular soldier) who violates the laws of war by murdering civilians or abusing prisoners. The Eisentrager defendants were civilians (former German soldiers) who supported combat operations by the Japanese army.

    To my knowledge, no soldier in the Afghan Army has ever demanded an Article 5 Tribunal. Since the Article 5 Tribunal is only required when there is doubt about the combatant status of a prisoner, it is not required until the prisoner claims status as a lawful combatant thus raising the doubt. In his Military Commission, Hamdan claimed protection under the Third Geneva Convention, but not as a lawful combatant. He claimed instead to be one of the categories of “civilian accompanying the army” protected by Article 4 of the Third Geneva Convention. His Military Commission performed the Article 5 function and rejected his claim. This was the only formal Article 5 process reported in the current conflict (though reporting from Bagram is not as extensive as from Gitmo).

    In addition to Prisoners of War, international law (the Fourth Geneva Convention for example) and US Army regulations provide for the detention of civilian enemy aliens who pose a security threat. In military regulations they are called Civilian Internees (CIs) and the rules for their detention are entirely separate from those for POWs. They even have to be kept in separate camps from POWs.

    Neither administration has been particularly clear about who in Bagram or Gitmo is being held as an unlawful enemy combatant and who is being held as a CI, or if there is a difference. There is no difference in the Eisentrager case, however, because the court explictly included civilian enemy aliens in its decision (since the former German soldiers were civilians when they committed the unlawful acts for which they were convicted).

    More generally:

    Having now read the decision and reviewed Boumediene in light of the decision, and relying on memory for Eisentrager, I tend to agree with the DC Circuit that there is no consistent clear line principle that one can extract from the various decisions. I am not, however, convinced that the DC Circuit is reading Boumediene correctly and finding the criteria that the Supreme Court found to be important when drawing the distinction between situations where habeas is or is not appropriate.

    Eisentrager seems to stand for the principle that habeas should not be available for post-conviction appellate review by civilian courts of a military conviction of an enemy alien. The Eisentrager dicta also indicate that no court challenge should be entertained from enemy aliens (combatants or civilians) held in an area of armed conflict. However, “enemy aliens” in Eisentrager means persons of German citizenship in cases where nationality is not rationally subject to dispute. In the current cases, the detainees are nationals of many countries and none are Afghan citizens. This does not preclude the legality of their detention, but it introduces a level of legal uncertainty that the Eisentrager court clearly did not consider.

    In the midst of all this uncertainty, the only opinion with which I agree is Deborah. The US will certainly transfer formal custody of the Bagram detainees to Afghanistan before the Supreme Court has a chance to overturn the DC Circuit, and that will preclude us from getting a clear answer to any of these questions.

  4. In order to qualify for POW status you cannot hide your combatant status. You must give your name, rank, and serial number or some equivalent. You must at all times admit your combatant status and demand your Geneva rights. Anyone who contests the legality of his detention by claiming that he is not an enemy combatant is, by that act, not entitled to the protection of the Third Geneva Convention. He is then either an unlawful enemy combatant not entitled to POW status, or an improperly detained civilian who is also not entitled to POW status.”

    You’re speaking of what is supposed to occur AFTER a captive is detained and assigned the default privileges and rights of a POW, Howard, when a prisoner will try not to LOSE those privileges through a legitimate “competent tribunal” Article 5-compliant hearing (which, again, NONE of our Afghanistan or Guantanamo detainees received before they were immediately classified and treated as much less than NON-POWs for the duration).   Losing POW privileges, after a lawful Article 5 tribunal has heard the evidence and rendered its decision, reduces the captive to the status of the minimum due process and humane treatment standards of Common Article 3 – yet even those obligatory minimum standards proved too challenging for this nation’s military – or civilian leadership – to meet during our current conflicts abroad (while responsible authorities looked the other way).

    Thus your last two sentences there (He is then either an unlawful enemy combatant not entitled to POW status, or an improperly detained civilian who is also not entitled to POW status) and these later (In military regulations they are called Civilian Internees (CIs) and the rules for their detention are entirely separate from those for POWs. They even have to be kept in separate camps from POWs) describe nobody detained by our military in Guantanamo or Afghanistan, because no lawful Article 5 tribunals to identify members of those classes of lawful detainees, and to strip their default POW classifications, have ever been held. Which this statement of yours only underlines: Neither administration has been particularly clear about who in Bagram or Gitmo is being held as an unlawful enemy combatant and who is being held as a CI, or if there is a difference.

    “When [the Eisentrager defendants] continued to aid the Japanese, they were unlawful enemy combatants, exactly the same status that the US now attributes to the detainees at Bagram and Gitmo.”

    Wait a minute – you jumped RIGHT OVER the point there.  HOW DID WE DETERMINE THEIR STATUS to be that of “unlawful enemy combatants” before the Eisentrager captives were tried by military commission?  The same way we “know” someone from Thailand is an “enemy combatant” – unlawful or not – WITHOUT BENEFIT of an Article 5 “competent tribunal” to make that determination?

    This is the scam that Lindsey Graham and Company have been running from day one in this affair, and we should have caught on to it by now.  Graham wants us all to spend our time focusing on the facts – like how a privileged combatant must behave, what their uniform needs to be, etc. – that an Article 5 hearing ALONE is empowered to lawfully review and judge before a captive’s default POW status is revoked, RATHER THAN on the fact that NO SUCH Article 5 hearings have been, or apparently ever will be (given judges like these three), held nor POW protections granted to our AUMF-justified detainees (except belatedly in rare cases like Hamdan’s, where the detainee’s legal counsel – as Mr. Katyal knows full well – managed to stick to their guns long enough, even with one hand tied behind their back).

    I realize that a habeas petition is distinct from an Article 5 status hearing.  But the way in which these detainees have been handled from the beginning has CORRUPTED these habeas proceedings in a way that the judiciary cannot and should not be casually disregarding.  It goes to the core of the detention itself, and addressing that core – by requiring the military to reinstate and honor Regulation 190-8, and thus Article 5, for example – would have mooted much of the need for the ongoing habeas process in the court system.  Because it would have led to the early RELEASE of many or most of these political prisoners (so of course the military won’t be moving to do that voluntarily, nor will a politicized presidency or Congress). 

    “If someone is being held illegally, then granting them POW status is irrelevant.”

    “Irrelevant” to whom?  If those prisoners at Guantanamo and Bagram had been treated as POWs for the last 8 years, while otherwise being held illegally, their lives would have been MUCH less miserable, and in all likelihood they would have been released years ago, being off-limit targets for coerced interrogation or any other kind of special experimentation that their captors could secretly dream up and implement.  Unlawful detention and lack of POW status are intertwined issues, but the lack of POW status comes first in the long chain of abuses.

    “I agree that the US government was wrong to declare that all soldiers in the Afghan Army (under the Taliban) were by definition unlawful enemy combatants not entitled to POW status. However, although the US policy was wrong, that error does not extend to anyone bringing one of these challenges.”

    The U.S. government and its policy weren’t just “wrong” when it decided to “declare” the Geneva Conventions optional, whenever it found them to be inconvenient. IT VIOLATED THE LAW OF ARMED CONFLICT when it did that, to yawns all around from authorities in a position to do something about it.  The ripple effects from that violation are all around us today, including in this facially-absurd Circuit Court decision.  And it’s an “error” and violation that VERY MUCH extends to everyone detained in like manner who’s unable to get a fair hearing EXCEPT by filing a habeas petition in the one designated federal court district in this nation open to such appeals, overseen by one designated set of appeals court panels, and, only if it so chooses, the Supreme Court.

    “The Eisentrager defendants were not “War Criminals”.

    Anyone convicted of violating the law of war is a “war criminal.”  Being an  unprivileged combatant, standing alone, does not represent a violation of the law of armed conflict (much as Lindsey Graham and his ilk want to pretend it does), and wouldn’t qualify for this description, without more: “since the former German soldiers were civilians when they committed the unlawful acts for which they were convicted.”

    In Afghanistan, properly-classified unprivileged combatants are subject only to the domestic laws of Afghanistan for their actions in the armed conflict there unless their actions consist of a specific prohibited activity under the law of war, in which case the U.S. can exercise jurisdiction – logically, through our military court-martial system under the UCMJ, considering that our court system is open and fully functional.

    “To my knowledge, no soldier in the Afghan Army has ever demanded an Article 5 Tribunal. Since the Article 5 Tribunal is only required when there is doubt about the combatant status of a prisoner, it is not required until the prisoner claims status as a lawful combatant thus raising the doubt.

    You have this backward.  You’re conflating the threshold jurisdictional question for the military commissions (required by the Court of Military Commission Review, per the MCA, to be resolved by an Article 5 tribunal only if first raised by the defendant) when a defendant (like Hamdan) is confronted with a military commission prosecution, with the basic Geneva Convention right of any captured person [see AR 190-8 above] to be assumed a POW unless and until a lawful Article 5 tribunal determines otherwise, regardless of whether they’re privileged or unprivileged or ever a candidate for prosecution for violating the law of war.

    If Afghan Army soldiers, or any other detainees, had received the default status due them under the law of armed conflict upon capture, there would be no need for them to request an Article 5 hearing for POW protection, unless they disputed our right to hold them.  They would have maximum rights already.  It would be up to the detaining authority, as it should be, to demonstrate why those maximum rights deserve to be reduced (because of no uniform, etc., etc., and even though there’s no requirement that we treat any prisoner as less than a POW) by establishing a lawful Article 5 tribunal to make that determination.  [And, obviously, we have absolutely no way of knowing what our captives in Afghanistan or Guantanamo or elsewhere have asked or pleaded for to their military captors during their long years of imprisonment, except when things occasionally surface publicly, as they did in the Hamdan case, and thus making assertions about such activities that have no independent oversight, and are classified at the highest levels, seems the height of folly.]

    The US will certainly transfer formal custody of the Bagram detainees to Afghanistan before the Supreme Court has a chance to overturn the DC Circuit, and that will preclude us from getting a clear answer to any of these questions.

    I’m sure that you and Deborah are both right that the U.S. will pretend to do just that (in fact, they have already made moves in that direction).  The reality of the transfer, however, will be far less than advertised, as any meaningful oversight or reporting of the ground truths over there would doubtless demonstrate.  Judging by the revelations that the BBC and others have been unearthing of late about officially-denied “dark prisons,” and who knows what else, at Bagram and elsewhere, no matter the cover story such detention facilities will almost certainly remain under the careful control and direction of U.S. Forces so long as we remain in that country.

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