Author Archive for
Geoffrey Corn

Syria Insta-Symposium: Geoff Corn–The President, Congress, Syria: What If?

by Geoffrey Corn

[Geoffrey Corn is the Presidential Research Professor of Law at South Texas College of Law in Houston. His prior articles addressing war powers include: 123.]

It seems almost abundantly clear that President Obama has resolved the question of “what if” the United Nations Security Council is unwilling to authorize military action against Syria for use of chemical weapons. The U.S. will act without such authorization, unilaterally if necessary. Why? Well, we know there are numerous overt and sub rosa motives being discussed, but ultimately because of a U.S. conclusion that the UNSC has proven ineffective. To bolster the credibility of this assertion, which is obviously dubious to certain other permanent members of the Security Council and countless other states, international law experts, and observers, the President has asked Congress to endorse his planned punitive strike with express statutory authorization.

Many have hailed this decision to submit the matter to Congress as a positive manifestation of the President’s respect for the Constitution’s allocation of war powers. But in reality, while Congress may be developing what it views as an authorization to use military force, this is not exactly how the President views their effort. Instead, he, like predecessors who have also sought express statutory authority for military actions, views it much more as support for the use of military force. Just as President George H.W. Bush emphasized when he, in 1991, requested congressional authorization to use military force to implement UNSC Resolution 678 and oust Iraqi forces from Kuwait, President Obama insists that while he wants this authorization, he does not need it. Of course, President Obama assertions of ‘desire’ versus ‘necessity’ follow the pattern of all modern presidents. However, by seeking authorization, the President does seem to be assuming a greater degree of risk than had he acted on his own asserted Article II authority. Thus, ironically, while the request for authorization will enhance strategic and constitutional legitimacy should Congress support the President, the risks associated with a down vote invokes the parable that, “it is easier to seek forgiveness than ask for permission.”

So, “what if” a majority of at least one house votes against his request, preventing enactment of an AUMF?  (more…)

A Response to Sean Watts by Geoffrey Corn

by Geoffrey Corn

[Geoffrey Corn is an Associate Professor at South Texas College of Law]

Let me begin by extending my compliments to Prof. Watts for his exceptionally well-written article, and my thanks for his suggestion that I provide comment. I am also grateful to my friends at Opinio Juris for extending this opportunity to me—it is nice to be back!

CNA obviously represents one of the most complicated intersections between the evolution of military operations in the efficacy of the law of war regulatory norms. Prof. Watts carefully and comprehensively explains in his Article why the evolution of CNA infrastructure and architecture increasingly calls into question the underlying logic that animates the existing law of war framework for determining who may lawfully participate in hostilities associated with an armed conflict. In response to this evolution, Prof. Watts proposes a reassessment of this framework that would abandon the existing rules that limit participation in hostilities to members of the armed forces. Instead, he asserts that for purposes of CNA operations, the relationship between the operator and state authority should be the focal point of legitimate participation.

Prof. Watts makes a compelling case in support of his assertion that the traditional four element test for determining lawful combatant status (carry arms openly; wear a fixed distinctive emblem recognizable at a distance; operate under responsible command; and comply with the law of war) is functionally inapposite to CNA operations. This provides the foundation for what he suggests is a more logical focus to determine the permissibility of employing civilians as CNA operatives: relationship to state authority. According to Professor Watts, this revised focus would produce a more logical and credible criteria for the regulation of CNA operations. Ultimately, he concludes that because the traditional “combatant” qualification criteria—developed in large measure to enhance the ability of combatants to distinguish participants in hostilities from the civilian population—provides no meaningful regulatory benefit for CNA operations conducted “over the horizon” where the initiation of effect will almost inevitably be geographically attenuated from the impact of the effect, restricting participation in CNA operations is nothing more than empty formalism.

In essence what Prof. Watts has done is to expose an area of over-breath inherent in the regulatory regime of the law of war. The regime is premised on a system of group affiliations, with accordant consequences flowing from these affiliations. Combatants have a right to participate in hostilities, and as a consequence are presumed to be hostile and therefore subject to attack based solely on a status determination. That presumption is rebutted only when they are no longer capable of acting pursuant to the will of their group. Civilians are not permitted to participate in hostilities, and as a consequence benefit from a presumptive immunity from attack. That presumption is also rebuttable, but the burden is placed on the combatant to determine whether the individual conduct of a civilian justifies the loss of that immunity.

It is, of course, difficult to dispute that in the interest of providing operational certainty or clarity the law subjects members of the Armed Forces to an overbroad risk of harm and in the view of many provides civilians with an equally overbroad scope of immunity. This over-breath is clearly intended to mitigate the risk to civilians while at the same time to facilitate the ability of Armed Forces to bring their opponents to submission. Nonetheless, the reality that many members of the Armed Forces pose an insignificant or even nonexistent actual threat to their enemies, while many civilians engage in activities that could easily be regarded as even more threatening to the armed forces, reveals that the interest in establishing bright line categorizations based on the general assumption that members of the Armed Forces pose a threat while civilians do not, has led states to accept the consequences of this over-breath.

Presumptions, however, serve an important purpose: clarity and predictability. They also create an almost inevitable consequence of factual over-breath and under-inclusiveness. The classic illustration of this reality is the Miranda warnings requirement that has become perhaps the most widely known legal presumption in our society. It was clear when the Supreme Court created the presumption that a statement made during custodial interrogation was involuntary, the Court recognized the risk of over-breath. Nonetheless, the Court accepted that risk when it held that whether a suspect in fact understood her rights without a warning, or whether a suspect in fact did not fully understand them after a warning and waiver, would be irrelevant in future assessment of whether an individual’s response to custodial interrogation was voluntary. The reason for this seemed clear: the Court was willing to tolerate this inevitable over-breath and under-inclusiveness on the factual fringe in exchange for the far more important benefit the presumption would produce in the vast majority of cases.

I certainly appreciate the logical rationale of the proposal Professor Watts offers. However, I am not convinced that modifying the bright lines produced by the presumptions of the law of war in order to address the factual over-breath at the fringe is worth the cost of opening the door to altering the group based presumptions that define who may participate in hostilities. In my view, his argument is analogous to an argument that a police officer or a district attorney need not be advised of Miranda rights prior to custodial interrogation because doing so is really just adherence to empty formalism. Factually, this is undoubtedly true—such suspects probably know their rights better than most defendants who are advised of them. Nonetheless, I believe that in situations where the over-breath of such presumptions produces factual dissonance, the critical question is whether the value of complying with the presumption is more than mere formalism, but instead is a means of protecting the regulatory presumption to dilution.

I question whether Prof. Watts has provided an answer to that question. It strikes me that the many academic and military proponents of applying the traditional combatant/civilian dichotomy to CNA operatives—a position Prof. Watts discusses and challenges in his Article—are likely motivated by an analogous willingness to accept the risk of over-breath in order to achieve the advantage of clarity. The ultimate question that I believe must be asked before states discard what Prof. Watts characterizes as empty formalism in favor of his newly proposed state association test is how a simultaneous acknowledgment that the functions performed by civilian CNA operatives are indeed combatant functions is how deviation from the traditional presumptions will impact the evolution of the law in other areas.

To his credit, Prof. Watts points out that it is the attenuation from the traditional battlefield that in large measure justifies deviation from the traditional combatant civilian dichotomy and that his proposal should not be viewed as a general condemnation of that tradition. Nonetheless, I believe his proposal will beg the question: if state association should be the singular focus for determining who can engage in CNA operations when the operative is unlikely to be observed by the enemy and therefore will not implicate the principle of distinction, why shouldn’t that be the focus for determining who should engage in other activities associated with the infliction of kinetic and non-kinetic harm on an opponent so long as the operative is not in immediate proximity to the enemy? For example, how likely is it that an enemy will observe who is flying a bomber? So long as the bomber itself is distinguished from civilian aircraft, the logic applied to CNA operatives should extend to the bomber pilot? This is the door I think it might be wise to keep closed.

Ultimately however, I do believe Prof. Watts has added tremendous value to the discourse on the issue of CNA operations, and that his emphasis on the link between these operatives and state authority will bolster the view of many experts in the field that the potential consequences of CNA operations renders it imperative that states ensure a regulatory and disciplinary framework is applicable to individuals who engage in those operations. I, for one, am not ready to concede that it is a mere act of formalism to require that these operatives be members of the Armed Forces. However, by challenging convention—both literally and figuratively—Prof. Watts will force proponents of this position to consider not only the potential flaws in their positions, but also whether the benefit that might derive from adopting this proposal could ultimately outweigh the accordant risk.

Push a Square Peg into a Round Hole, or Build Another Hole?

by Geoffrey Corn

First, sincere thanks to the OpinioJuris team for inviting me to share my thoughts on Ben Wittes exceptional book; and thanks to Ben for such a well researched, well written, and provocative work.

My initial reaction to the book was that Ben has hit the proverbial nail on the head in terms of defining the policy challenge surrounding how the United States should or must frame the response to the threat of transnational terrorism.  More specifically, Ben clearly exposes how efforts to squeeze the response to this threat into existing legal frameworks has stressed the legitimacy of this response in legal, policy, and public perception terms.  My take is that Ben concludes, as the previous posts highlight, that the combined impact of this effort exposes the necessity of crafting a “hybrid” legal framework to deal with the “hybrid” threat we do and will undoubtedly continue to face.

This proposition raises so many potential points of controversy, ranging from separation of powers to the question of whether the threat is genuinely characterized as “hybrid” or “different” from what the U.S. and other states have faced in past decades.  Others have already begun discussion on these issues.  What I would like to focus on is the basic premise that an effective response to the threat of transnational terrorist threat requires a new – or hybrid legal framework.

I have my doubts. While I agree that if we try to fit the nature of this threat neatly into either a traditional law enforcement framework or an armed conflict framework, the result certainly does seem like trying to fit a square peg into a round hole.  As an interesting coincidence, I experienced this first hand on the day this online symposium began.  Yesterday I testified (out of order) as the first defense witness in the Hamdan military commission trial…

What Now?

by Geoffrey Corn

I also would like to begin by expressing my thanks to the Opinio Juris team for giving me the opportunity to share some thoughts on the Boumediene decision. My post is a bit tardy due to the fact that I have been in Israel staying in some places with limited internet access. More on some perspective judicial review of military issues inspired from this place towards the end.

As I read through the Boumediene decision, I kept asking myself the same question: what happens now? How will the government respond to the ruling and the inevitable deluge of habeas petitions challenging enemy combatant designations? With full judicial review of these determinations now a certainty, it is natural to assume that the key concern for the government will be to ensure subsequent process is more “protective” of detainee rights. But as I read through the opinion, it struck me that the real battles of the future will not be about process, but about the substantive definition of the term “enemy combatant.”

When the CSRT’s were established, there was clearly an effort to model them after the Geneva Prisoner of War Convention (GPW) article 5 tribunal. Article 5 of the GPW requires that any doubt related to a detainees qualification for POW status must be resolved by a review tribunal. But the value of this model was limited by a simple reality: unlike an article 5 tribunal which applies the definition of prisoner of war (POW) found in article 4 of the GPW, the CSRT’s could not rely on a well established international definition of “enemy combatant.” Instead, the Bush administration created the definition to be applied by the CSRT’s. As the majority reminded us (as if we needed reminding), the scope of this definition was broad enough to include not only individuals captured on the battlefield, but also individuals apprehended in locations far removed from any combat activities.

Although the definition of enemy combatant was not the focus of this opinion, it seems to me that it is remains the critical issue lying just below the surface. Why do I believe this? Professor Kent already noted the sentence in Justice Kennedy’s opinion that hints at the possibility the use of more robust procedure might obviate the need for habeas access (Boumediene suggests that constitutional habeas may be unavailable for some foreigners held abroad if “there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power” (slip op. 65)). But I have my doubts that Justice Kennedy’s use of the term “process” is limited to procedure. This is because of the simple fact that the CSRT is in essence an article 5 tribunal. There is nothing magic about characterization of the review tribunal. Instead, the critical distinction between the CSRT’s and an article 5 tribunal is the standard applied to justify indefinite detention as a necessary incident of war. As a result, it seems to me that because the procedures for an article 5 tribunal are essentially analogous to those of the CSRT’s, the Court was not indicating that merely re-designating the CSRT’s to an article 5 tribunal would cure the defects. Nor that in the future prisoners of war would also be entitled to challenge their detention through the Great Writ. This is because of this fundamental distinction between an article 5 tribunal and the CSRT’s, a distinction that is more about substance than process.

Nor do I believe the distinction is merely definitional. Once an individual is designated a POW, a framework carefully developed to limit the arbitrary exercise of authority by the detaining power comes into force (see here). By removing these detainees from the protections of the GPW, it was the Bush administration that deprived them of the substantive and procedural checks to such arbitrary power, vesting the government with a degree of discretion that the Court was unwilling to permit. Thus, it is this full spectrum of protections for POWs – including a more limited definition of that term – that in my opinion would provide the “process” that Justice Kennedy suggested could obviate the need for judicial review.

So it seems that because the designation of enemy combatant has been used for individuals far removed from the “core” meaning of that term (captured on the battlefield after engaging in hostilities against U.S. or coalition forces), the definition of that term will now become central in the inevitable habeas litigation that will follow this decision. Tinkering with the CSRT procedures will do nothing to resolve the fundamental dilemma lying at the core of this process: the legitimacy of the expanded definition of enemy combatant resulting from treating the struggle against international terrorism as a “global war.” Relying on the current definition of enemy combatant used by the CSRT (an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners) will still require the reviewing court to decide how far “part of or supporting” extends.

So for me, the real “what now” is how the courts will react to the expansive definition of enemy combatant that has resulted in “generational” detention not only for individuals captured in a zone of active military operations, but also those captured in places far removed. I wonder if the government will move to codify that definition or perhaps adopt one more narrowly tailored to the traditional notion of a battlefield belligerent. I certainly believe that such a move is now far more likely than before this decision.

What seems certain is that until the scope of this definition is legally sanctioned, detainees will continue to argue that their attenuation from the military component of the war on terror makes their designation as enemy combatants illegitimate. And until that issue is addressed, the government will continue to struggle to defend depriving individuals of their liberty indefinitely based solely on the “necessities of war.” If there is one certain outcome – and in my opinion benefit of this opinion – it is that after a six year saga of legal opinions, policy decisions, and ongoing detentions the government will finally be forced to clearly articulate and defend the rationale for the expansive application of the term “enemy combatant” that is at the heart of the concept of a Global War on Terror.

A final thought inspired by my current locale. Last week I participated in a conference on the law of armed conflict at Hebrew University, and since then I have been staying with a close friend who recently retired as a Colonel from the legal department of the Israeli Defense Force (his last few years spent as the legal advisor to the commander of the West Bank command), and another close friend from the IDF legal department who studied with me at the Army JAG School. This has given me the opportunity to share perspectives on the role of the judiciary in wartime decisions. What I have found fascinating is routine intervention by Israeli courts in ongoing military operational decisions. But what I have found even more fascinating is how unremarkable this role seems to my friends and other Israeli legal experts at the conference. For them, a judicial opinion prohibiting certain interrogation techniques, or establishing the law applicable to targeted killings, or responding to a request to halt the destruction of a home in the West Bank is a normal part of the legal process. Perhaps more importantly, there seems to be a strong consensus that such a judicial role strengthens the legitimacy of military operations.

Don’t get me wrong, I have not become an advocate of routine judicial intervention in operational military decisions, and I have expressed to my friends here my doubts related to the competence of judges to rule on such matters. But it does strike me that perhaps judicial oversight of certain aspects of military affairs, especially those involving mature theaters of operation and the application of newly conceived concepts to justify government actions, might not be so outrageous. As several other bloggers have noted, this opinion will likely have a substantial positive impact on the international credibility of the U.S. But perhaps it will also make the job of the armed forces a bit easier by finally forcing greater clarity in the standards to be applied during military operations, which seems precisely the benefit that makes my Israeli friends feel so comfortable with their process.

Is There a Limit to the Crimes Subject to the Jurisdiction of the Military Commission?

by Geoffrey Corn

[Opinio Juris note: Geoffrey Corn, a former Opinio Juris guest blogger who is a military law expert teaching at South Texas Law School, has sent along the following thoughts on the Military Commission Act.]

It is by now apparent to most interested observers (and probably quite a few not so interested observers) that the Military Commission Act of 2006 has triggered a barrage of commentary and criticism. The initial focus on the amendments to the War Crimes Act has now shifted to expressions of dismay over the broad definition of “unlawful enemy combatant.”

In response to a request by the Asser Institute of International Humanitarian Law in the Netherlands, I provided some initial thoughts on the originally released “compromise” Bill (available here). In this commentary, I provided my assessment of the amendment to the War Crimes Act, to include my thoughts on how the amendment apparently transformed offenses in violation of common article 3 into specific intent crimes, which I consider a subtle but potentially profound modification. I then attempted to highlight what I considered the improvements to the Commission process resulting from analogy to the courts-martial system, and also what I considered unresolved deficiencies in that process.

One aspect of the MCA that I have been thinking of recently is the scope of the jurisdiction granted to the Military Commissions. According to the statute:

“A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.”

This jurisdiction obviously expressly expands the jurisdiction of the Military Commission beyond offenses in violation of the laws of war. This is probably a response to the pre-Hamdan defense assertions that many of the prosecution allegations failed to allege violations of the laws of war applicable to their clients. It seems that Congress has answered this challenge by simply granting the Commission statutory jurisdiction over theses offenses. But I think this raises two very significant questions.

First, can Congress validly grant jurisdiction to the Military Commission for any non-law of war violation? Article 21 of the UCMJ certainly suggests that a Military Commission may exercise jurisdiction over offenses defined by either the laws of war or by statute when it says “The provisions of this chapter conferring jurisdiction upon courts- martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions . . .” However, it seems to me that this “by statute” clause of Article 21 must be narrowly construed to refer to non-law of war violations historically subject to such military jurisdiction. I am specifically referring to espionage and related wartime crimes associated with armed conflict that are not considered violations of the laws of war but nonetheless historically subject to prosecution by military courts.

This limited extension of military commission jurisdiction is actually reflected in the punitive articles of the UCMJ. Most of the offenses defined by the Code are not subject to trial by military commission, but only by courts-martial (which means only individuals subject to the Code at the time of violation may be charged with such offenses, a category that does not include pre-capture enemy personnel). The only two offenses that are expressly made subject to trial by military commission in addition to courts-martial are “spying” and “aiding the enemy”, both of which are historically subject to military jurisdiction even though they are not considered violations of the laws of war.

Article 18 of the UCMJ also bolsters this limited extension of military commission jurisdiction. Article 18 establishes the jurisdiction of the general courts-martial. This grant of jurisdiction includes two categories. First, only individuals subject to the UCMJ may be tried by general courts-martial for violating the prohibitions of the code established by the punitive articles. Second, any “person who by the law of war is subject to trial by a military tribunal” may be tried by general courts-martial. This seems to reflect the principle that although the jurisdiction of this military court does extend beyond individuals subjected the punitive articles of the UCMJ, the extension is limited to offenses in violation of the laws of war.

Congress does not seem to have perceived any limit to the range of non-law of war offenses that may be subjected to trial by military commission. Considering the military commissions are creatures of the laws and customs of war, or as some commentators have labeled them, “war courts”, I have a hard time reconciling this view of jurisdiction. I do not dispute that some offenses may be subjected to trial by military commission by statute, but I think this is a limited category of customarily accepted “battlefield” crimes that are not prohibited by the law of war for the simple reason that every nation authorizes them – like espionage. Crimes such as terrorism, hijacking, providing material support to terrorism, perjury, and conspiracy don’t seem to me to fall into this category. Nonetheless, they are now by statute subject to trial by the Military Commission. If these offenses are not derived from the laws of war, what special competence does a Military Commission have to adjudicate such crimes? In my mind, none, which leads me to conclude that granting the Commission jurisdiction over such offenses is just easier than trying them in an Article III court.

The other aspect of this expansion in jurisdiction that I find troubling is that it seems to violate the nulle crimen principle. Even if Congress can subject such offenses to trial by military commission, they were not subject to this jurisdiction before now. Nonetheless, the statute indicates that any person who violated these provisions “before, on, or after September 11, 2001” is subject to trial by Military Commission. Again, I have no problem with the government alleging an individual committed a violation of the laws of war and subjecting such an offender to the jurisdiction of a military commission. So long as the government alleges and proves the requisite jurisdictional predicate – that the law of war applied to the individual and proscribed the alleged misconduct at that time – there is no ex post application of law. However, this is far different from Congress defining a list of offenses not derived from the laws of war, and then establishing retroactive jurisdiction over these offenses by simply placing them under the umbrella of the jurisdiction of a “war court.”

The Military Commission: An Inauspicious beginning for a"Full and Fair " Process

by Geoffrey Corn

This past week, Military Commission proceedings were “fired up” again in Guantanamo. In two cases, one against Canadian detainee Omar Khadr, the other against Yemeni detainee Ali Hamza Ahmad Sulayman al Bahlul, military defense lawyers confronted the challenge of dealing with a process long ago repudiated by the Uniform Code of Military Justice, and by all accounts distinguished themselves (see here). This move signaled the Bush administration’s determination to move forward with the Commission process. It also, however, highlighted why this tribunal has been the subject of widespread criticism.

In what must be considered an inauspicious beginning to a process the government continues to assert is “full and fair”, one detainee was initially denied his choice of detailed military defense counsel (see here), while the other detainee was forced to accept representation he did not want (see here). In the case against Khadr, the detailed military defense counsel was forced to essentially state he could not effectively represent his client in order to convince the Presiding Officer to grant his client’s request that a much more experienced Marine Corps attorney be detailed to the case. Only after relentless assertions of this position did the Presiding Officer finally relent, but only after subjecting the defense counsel to extensive criticism. In the case of al Bahlul, the Commission rejected his request to represent himself and ordered his detailed military defense counsel to continue to perform in that capacity (which itself raises significant ethical concerns).

This ironically inverse application of the customary standards related to selection of counsel raises serious questions about just how “full and fair” this process can be. It also exposes one of the most significant concerns members of the defense team have noted from the inception of this process – the power of the Commission Presiding Officer. These officers need not be detailed from the military trial judiciary (although to date the officers selected for these duties have been current or retired military judges). In both these cases, unlike courts-martial, it was not a military judge who was vested with the authority to rule on these requests, but the senior member of the Commission, the Presiding Officer (see here). While the duties of the Presiding Officer are similar to that of a military judge, their appointment by the same authority responsible for prosecuting detainees reflects a fundamental difference with the independent military trial judiciary.

Observers familiar with the pre-1951 revision of the U.S. military justice system (see here) might recognize similarities in this procedure. Prior to this date (when the Uniform Code of Military Justice was adopted by Congress), the senior member of a military court ruled on all legal and evidentiary issues. Instead of serving as a military judge, the legal officer was designated as a “law officer”, with the limited role of providing advice to the presiding lay members. With the procedural construct of the Military Commission reflecting what might best be described as a “hybrid” version of the old and modern military justice stystems, it seems worth recalling that one of the most significant changes in the military justice system made by Congress more than fifty years ago was the creation of a truly independent trial judiciary, providing an independent military judge vested with authority to make all legal rulings in a court-martial, none of which are subject to voting member “override” as is the case with the Commission.

While confronting a tribunal that lacks the legal and procedural guarantees traditionally associated with the modern military justice system is no doubt challenging enough, a basic inequity in resources is apparently compounding this challenge. The obvious imbalance between government and defense resources was exposed by the officer in charge of the Military Commission defense team (see here), who noted the nearly four to one ratio of prosecutors to defense counsel. While the government defended these numbers, it would certainly seem that a genuine commitment to a “full and fair” process would compel providing for a more robust defense capability. The mere fact that a senior military officer charged with supervising this function would take the unusual step of making his “request” through the media suggests that behind the scenes efforts to reinforce his team have been ineffective. This again reflects a fundamental divergence between the Commission process and our normal military justice practice, where equity between prosecution and defense resources is a cornerstone of legitimacy.

None of this is intended to suggest that the members of the Military Commission are not attempting to perform their duties properly. There should be little doubt that they realize the gravity of their responsibilities, and are attempting to execute those responsibilities to the best of their abilities. The more profound question is whether the procedural construct of this tribunal will disable their ability to provide the “full and fair” adjudication promised by the government. If this past week is an indicator, their challenge is significant.

MG Miller Invokes – What’s Next?

by Geoffrey Corn

As Peggy’s earlier post indicated, MG Geoffrey Miller today asserted his privilege against self-incrimination in order to avoid being questioned by the defense attorney representing a soldier pending trial for using military working dogs to abuse prisoners. Is this significant?

First, as we know from press reports, MG Miller made this decision on advice of his military defense counsel, Major Michelle Crawford. According to her statement, MG Miller’s made this decision because he has been repeatedly questioned on this subject. However, he has never been questioned by the defense counsel who believes he is a necessary witness. This attorney is attempting to determine whether MG Miller can offer relevant exculpatory evidence on behalf of a soldier facing a federal felony conviction. As a career officer, MG Miller is without question aware of that the military justice system provides an accused soldier the right to call relevant witnesses and present relevant evidence. It is also reasonable to assume that he is also aware that unless made under oath and subject to cross examination, none of those prior statements will be admissible during this soldier’s trial. Thus, it seems reasonable to infer that MG Miller did not make this decision without full knowledge the impact on the pending court-martial.

Second, MG Miller has no doubt been advised that the only remedy now available for the defense in this pending court-martial is to request that he be granted immunity and ordered to testify (which would include a requirement to submit to defense pre-trial questioning). Contrary to the report related to COL Pappas, there is no “acceptance” of immunity in military practice. Instead, when a potential witness invokes his or her privilege against self-incrimination, a request is made to the General Court-Martial Convening Authority, who is the general or admiral in command who convened (ordered) the court-martial. If this officer believes that the witness is necessary, he or she will issue a grant of immunity (almost always testimonial immunity) and an order the witness to testify truthfully. It will therefore be very interesting to see if the defense makes such a request, and even more interesting to see if it is granted.

If the request is granted, MG Miller will be required to testify truthfully to all relevant matters. If, however, the request is denied, the defense must then make a motion for appropriate relief to the Military Judge presiding in the case, who will review the basis for the denial of the immunity. If the Military Judge then determines that MG Miller’s testimony is necessary to ensure the soldier is able to present a defense and receives a fair trial, he or she will order the General Court-Martial Convening Authority to grant immunity. If that order is not complied with, the Military Judge will almost certainly abate all proceedings against the soldier.

MG Miller is no doubt well aware of this process, and that his invocation will probably result in either a grant of immunity or an abatement of the proceedings. Whether these factors support or undermine the purported justification for his decision is for each observer to decide. It is certainly possible that he believes that counsel for the accused soldier is making a frivolous request, and that neither the Convening Authority nor the Military Judge will consider him a relevant witness. However, it does seem that this could just as easily be established by submitting to a defense interview and allowing the prosecution to object to his production. The only outcome of his decision which is not speculative is that if he does testify, it will only be under a grant of immunity; and that if granted immunity, he will have no choice but to testify.

Thus, whether MG Miller ends up on a witness stand depends on two primary considerations. First, will the defense be able to make the case that he is a necessary witness. Second, will the Convening Authority be willing to order a fellow general officer to testify under a grant of immunity, or will the pending court-martial be sacrificed in order to avoid such an outcome. If he is ordered to testify, will that testimony lead to new prosecutorial efforts? Only time will tell. But, there should be no doubt that this is indeed a significant development that should lead to some interesting decisions.

Humane Treatment and the Protection of U.S. Forces

by Geoffrey Corn

During this last week, while enjoying participating in the dialogue on this website, I have made several references to the humane treatment obligation imposed by the law of war (or, as known to many, international humanitarian law). I believe it is essential that the United States express uncompromising commitment to this norm, and ensure that it is understood and implemented by our armed forces (and other government agencies conducting operations related to the War on Terror).

In this final post, I would like to address why I believe so strongly that this norm is truly a “first principle” of the law of war. The answer, quite simply, is that any compromise to this principldestabilizees the careful balance between military necessity and humanity, a balance that I believe guides interpretation of all other provisions of the law of war. Preserving this balance is essential for the protection of our forces.

Many may assume that by protection I am referring to the encouragement of reciprocity. Not necessarily. Reciprocity is no doubt an essential benefit of compliance with the law of war, and therefore is considered a primary rationale for compliance with this law. However, in the context of the modern battlefield, this rationale may no longer be as persuasive as in the past. In fact, for at least a decade, U.S. military strategists have studied the concept of “asymmetrical warfare”, which is characterized by an enemy seeking to exploit U.S. commitment to compliance with the law of war to gain a tactical advantage. This is exactly the dynamic our forces confront in Afghanistan and Iraq. Asserting encouragement of reciprocity as the primary rationale for compliance with the constraints of the law of war is a hard sell to soldiers confronting such an enemy.

The protection I refer to is the protection of the moral and psychological well-being of the men and women called upon to fight our wars. In such a brutal endeavor, these men and women need a legal framework to facilitate distinctions between right and wrong. The law of war through the necessity/humanity balance – provides this framework. When the balance between this first principles is distorted to fit the needs of mission accomplishment, the accordant loss of clarity for the force compromises their ability to maintain these distinctions. History provides compelling evidence that the consequence of such distortion is a breakdown of military discipline. Military leaders have historically understood this truism, which explains why it is possible to trace the roots of the contemporary law of war to influences and decisions of great military minds. It is also why so many highly respected veterans from our armed forces strongly object to Bush administration interpretations of this law.

During the last four years, this purpose of the law of war has been significantly stressed, particularly in relation to the humane treatment obligation. Much of the debate over the Bush administration approach to the War on Terror has focused on decisions that appear to violate this obligation (which the administration does not even acknowledge as an obligation). Necessity has been the primary justification for these decisions. This aggressive interpretation of what is and what is not humane has surprised not only outside observers of our government, but many career military and civilian lawyers serving our armed forces. Most of these professionals believe humane treatment is in fact an fundamental obligation, and that compliance can best be achieved by applying traditionally endorsed standards. This requires no list of what is and what is not humane. Instead, a simple but highly effective test is applied to any decision guided by this obligation: if an opponent were about to do this to one of my troops, would I consider it wrong.

While this might appear overly simplistic, the key to why it is effective is the protective instinct military leaders feel towards subordinates. Note that this is not a pure “do unto others” test. Such a test would be ineffective, for most military personnel, if asked to consider what they could endure, will accept great hardship. However, military leaders are taught from the outset of their careers that “taking care of your people” is second only to mission accomplishment as a priority. This protective instinct was perhaps best expressed by General Robert E. Lee, who is noted to have said that the hardest thing about being a General is that you must order the destruction of the thing you love most, referring obviously to his soldiers.

A military leader who projects a detainee treatment decision to his or her own force will be guided by this protective instinct. This in turn will result in decisions with the greatest probability of complying with the humane treatment obligation. Consider just a few examples. No matter what type of conflict, or what type of opponent, U.S. leaders would expect their subordinates, if captured, to receive adequate food, water, shelter, and medical care; to be removed (when feasible) from the area of immediate conflict; to have the opportunity to communicate with an impartial relief organization so that the world knows of the detention; not to be physically harmed; not to be publicly humiliated. They would, however, fully expect their soldier to be interrogated, and that the interrogation would involve the use of manipulation, rewards and incentives, and trickery. As for the most difficult questions related to the line between permissible and impermissible interrogation techniques, this standard should help to maintain a perspective consistent with the “spirit” of this obligation.

Does such an approach eliminate all uncertainty? No. However, it does create a decisional framework based on good faith adherence to the underlying spirit of the law of war. That spirit is clear: participants in conflict are all potential “victims of war”, and therefore when captured, they should be treated no better, but certainly no worse, than the capturing commander would expect his forces to be treated. In short, detained enemy personnel do not cease to be human beings. In the end, this spirit protects not only enemy detainees under U.S. control, but provides U.S. forces with the ability to reconcile the brutality of war with their own sense of right and wrong, which is essential for their own protection.

The Afghanistan Detainee Transfer Challenge

by Geoffrey Corn

Recent news reports indicate that the U.S. is pressing ahead with plans to build a high security prison in Afghanistan (see here and here). According to these reports, this is in preparation for transferring hundreds of “enemy combatants” from U.S. to Afghan custody. These detainees are currently held in U.S. operated detention facilities in both Afghanistan and Guantanamo Bay.

While the construction of a high security prison and the training of an Afghan guard force may remove the primary practical impediments for such transfer, this concept raises significant legal questions. Virtually all of the detainees that will in theory be transferred to Afghan control were captured by the U.S. armed forces during combat operations in Afghanistan. Because the President determined that captured Taliban fighters were conclusively not qualified for Prisoner of War status under the Third Geneva Convention, and this treaty did not apply to the conflict between U.S. forces and Al Qaeda operatives, none of these individuals are classified as Prisoners of War. Instead, they are generally regarded as “enemy combatants”, a term of convenience created by the Department of Defense to refer to members of armed organizations opposing U.S. forces who do not qualify for Prisoner of War status.

Since the inception of Operation Enduring Freedom in Afghanistan, the U.S. has been criticized for failing to articulate a legal basis for these detentions. The primary response has been a general military necessity theory – that the U.S. has authority to deprive these “enemy combatants” of the ability to rejoin the ongoing conflict. Presumably, the U.S. will attempt to convince the Afghan government to adopt the same theory for the continued detention of this population. Or, perhaps the Afghan government will establish an alternate legal basis for their continued detention.

Even assuming the establishment of an acceptable legal basis for continued detention after transfer, many other issues will need to be addressed. Will the Afghan government simply accept the “continued threat” determination of the U.S.? Or, will an independent mechanism be established to review such determinations. If so, will it be a military or civilian review entity, and what procedures will it utilize?

If such a review process is established, what criteria will it create to justify continued detention? Will a potential threat of rejoining dissident Taliban forces justify detention without charge? Or, will these detainees be subject to a criminal process for their combatant activities prior to capture? If so, will the desire to “prosecute or release” lead to charging war crimes before an Afghan version of the Military Commission? Finally, and perhaps most significantly, what will be established as the “termination point” for these detentions.

While the prospect of a large scale transfer of detainees from U.S. to Afghan control may seem troubling, the commitment of the U.S. to build this detention facility is clear evidence that such a policy is almost certainly going to be implemented. It is almost just as certain that the U.S. will provide substantial legal support to the Afghan’s in order to help “set the conditions” for this process. Based on the lessons of the last few years, look for the U.S. military and civilian lawyers tasked with providing this support to seek out inter-agency, academic, and NGO expertise to answer these questions and set these conditions as effectively as possible.

Courts-Martial v. Military Commissions

by Geoffrey Corn

Thanks Professor Ku for raising some great questions in response to my Courts-Martial v. Military Commission post. I will try and clarify some of my views.

First, my discussion of this alternate tribunal was directed more towards Chancellor Merkel’s comment that some alternate means must be developed to deal with the detainees at GTMO. I agree with you that use of courts-martial would probably not eliminate the need for a detention/confinement facility like the one at GTMO. I am not sure if original use of courts-martial would have impacted the need for a detention facility at GTMO. What I do know is that the President has made a determined effort to prohibit judicial review of cases brought before the Military Commission. This was explicit in the Military Order that created the Commission. However, it might have also motivated the choice of GTMO as the detention center because of the administration belief that federal court jurisdiction did not extend to that location.

I do, however, believe that the detention operation at GTMO and the Military Commission concept are linked in the minds of many observers and critics of U.S. policy. I believe the creation of a “special” tribunal for the sole purpose of dealing with the type of individuals detained at GTMO, under plenary executive branch authority, contributed to the perception that the entire GTMO operation was of dubious legality. While it is pure speculation, I also believe that if the U.S. had originally decided to use the courts-martial process to hold detainees accountable for alleged war crimes, it would have enhanced the perception that the U.S. was making a good faith effort to address the challenges associated with these detainees within the limits of the law. Even at this late stage, I think it would have a positive effect.

I also agree with you that most critics are looking for a civilian process. However, it would have been much easier for the U.S. to make the case that use of courts-martial reflected a reasonable balance between the desire to treat offenders as “war criminals” by allowing them to be judged by members of the military profession and the need to uphold basic principles of justice. Would I support civilian process? If the prosecution can properly allege a war crime, I believe any tribunal that satisfies basic principles of justice vested with jurisdiction to try such offenses is appropriate. My personal preference would be for a military court, because I believe the use of such courts to hold individuals accountable for violations of the law of war contributes to the validity of that law. But I also recognize that prosecution in an Article III court for violation of the War Crimes Act would be equally appropriate.

Finally, contrary to what my original post may have suggested, I do not believe the current Military Commission is a valid tribunal. Even assuming the acts of detainees at GTMO can be properly characterized as violations of the law of war, I do not believe the current Commission structure satisfies minimum standards of justice necessary to qualify as “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” (see here for Common Article 3). The most obvious deficiencies, as I mentioned in my original post, include the plenary authority of the President and Secretary of Defense over the process, and the lack of any meaningful judicial review. In short, I believe the U.S. must accept the “bitter with the sweet.” It cannot legitimately invoke the authority of the law of war to create a Military Commission and charge violations of that law without affording the judicial guarantees required by that same source of law. I believe a General Court-Martial satisfies these requirements.

Would it make a difference to the Germans or other critics? Maybe not, but I believe it would be an alternative that would, over time, earn far more respect than our current approach.

Mr. President, Tear Down that Prison

by Geoffrey Corn

In a recent Der Spiegel interview, on the eve of her first visit to the United States, newly elected German Chancellor Angela Merkel stated that the U.S. detention center at Guantanamo must be shut down. According to Merkel, although she had no plans to demand such an action during her visit to Washington, she would not hesitate to express her opinion on this subject in the future.

Opposition to the Guantanamo facility is a policy Merkel shares with her predecessor Gerhard Schroeder. Unfortunately for the Bush administration, the change in government in Germany will obviously not eliminate the policy disputes that have significantly strained this historically strong relationship. While Bush administration supporters might dismiss these comments as another example of the inability of “old Europe” to comprehend the challenges of the Global War on Terror, Merkel’s comments remind us once again that the “Guantanamo paradigm” is considered by most allies and observers as fundamentally inconsistent with the core values of our nation.

In the interview, Merkel indicated her belief that alternate methods must be used to deal with the individuals detained at Guantanamo. Is this really such an outrageous suggestion? The answer to this question is no. In fact, the most appropriate alternate method for prosecuting captured personnel for violations of international law is one that the Germans are quite familiar with: the General Court-Martial. To this day, criminal trials are routinely conducted by such courts in Germany. Obviously, and for good cause, this type of U.S. military tribunal is considered by the Germans consistent with basic principles of justice.

Pursuant to the Uniform Code of Military Justice, the General Court-Martial is vested with jurisdiction to try any person for a violation of the law of war resulting in individual criminal responsibility. Ostensibly, this is the identical jurisdictional predicate that must be established to properly bring a charge before the Military Commission. Accordingly, there is no unique legal impediment for convening a General Court-Martial with jurisdiction over captured personnel and transferring those cases pending before the Military Commission to that jurisdiction. While characterizing the conduct of such individuals as “war crimes” is certainly controversial, it remains the sine quo non for the exercise of military jurisdiction by either tribunal. Why, then, has this option not been utilized?

While resort to a certain degree of speculation is necessary to answer this question, it is interesting to note that two of the primary justifications for the use of the Military Commission no longer seem meaningful. The first of these was speed of process. Contrary to the purpose of resurrecting this type of tribunal, in the approximate four years since that decision not one trial has been completed. While much of this delay is attributable to defense challenges, it does seem appropriate to consider whether a General Court-Martial would have in fact been more efficient. The second justification that no longer seems meaningful was the purported need for a “quasi-secret” process to protect evidence and participants. Considering the Department of Defense has willingly provided information about the legal and lay participants in the process, there seems little difference on this point between the Military Commission and the Court-Martial. As for the protection of evidence, the concern was essentially hollow from the outset, as effective procedures exist for the protection of both witnesses and evidence in a court-martial.

If timeliness and protection of participants and evidence are not meaningful justifications for clinging to the Military Commission process, what other factors might inhibit the government from adopting that alternate method called for by Merkel? Three significant differences between procedures for General Courts-Martial and the Military Commission may very well provide the answer. First, unlike the Military Commission, the Secretary of Defense would not be vested with plenary authority over the court-martial process. Instead, longstanding procedures would operate to insulate that process from any improper command or political influence. Second, unlike the Military Commission, a conviction by a General-Court Martial would be subject to mandatory judicial review by a service court of criminal appeals, and potentially by the Court of Appeals for the Armed Forces, and even the Supreme Court of the United States. Finally, the applicable procedural and evidentiary rules for the court would not be “created” by the Department of Defense, but would be the well-established rules of procedure and evidence that have earned modern courts-martial the respect of most serious observers.

Perhaps it is the absence of these important aspects of the General Court-Martial that compelled Chancellor Merkel – who has clearly expressed her determination to improve relations with the Bush administration – to so openly criticize the Guantanamo paradigm. The most feasible remedy to such criticism would be to designate an appropriate senior commander, such as the Commander of the United States Southern Command, as a General Court-Martial Convening Authority for individuals captured by U.S. forces. The current commission prosecutors could be transferred to that command. The commission defense team could be transferred to the one of the service trial defense organizations in order to maintain appropriate insulation from command influence. Finally, a pool of serving military judges from the service trial judiciary organizations could be detailed by their respective services to serve on the cases selected for trial by the commander designated as the General Court-Martial Convening Authority. Individuals could then be charged with violations of the law of war, and tried in accordance with legally established procedures. Perhaps even the Bush administration would be impressed by the outcome of such a shift in policy.

Lessons from America’s Longest Held Prisoner of War

by Geoffrey Corn

In an isolated prison cell in the middle of the compound of the Federal Correctional Institute in Miami sits America’s longest held prisoner of war: General Manuel Noriega. The former head of the Panamanian Defense Force and de facto leader of that nation is no longer the defiant machete wielding strongman, but instead an aging relic of a very different national security era.

While the continued incarceration of General Noriega might not come as a complete surprise to many, his status as a prisoner of war protected by the Third Geneva Convention very well might. It indeed seems ironic that in the current era of intense debate over the applicability of this treaty to captured and detained “enemy combatants”, this notorious former “thorn in the side” of the first Bush administration continues to enjoy the benefits of this treaty as he serves his sentence for violation of U.S. domestic law.

Noriega’s status as a prisoner of war, trial, conviction, and continued incarceration offer several potential lessons related to the application of Geneva Conventions. First, how the government classifies a conflict significantly impact subsequent application of the law of war, and the relationship between law and policy in the execution of operations. Second, the conflict classification decision should not be based on political or policy expediency, but instead on the criteria provided by treaty, precedent, and highly respected commentaries. Finally, the liberal grant of prisoner of war status in no way constrains the power of our government to try and punish prisoners for pre-capture offenses.

Operation Just Cause, launched on December 19, 1989 to oust General Noriega and destroy the Panamanian Defense Force that sustained him, was the largest and most intense combat operation conducted by the United States since the Vietnam conflict. Although the combat phase of the operation was relatively brief, it involved fighting between U.S. and Panamanian forces, costing the lives of more than 20 U.S. servicemen and countless Panamanians. While this operation appeared to be a classic example of an international armed conflict, the U.S. government did not provide any conflict classification guidance for our forces until the operation was largely complete. As a result, U.S. forces began their operations without a formal determination of the legal status of the conflict, but instead resorted to the Department of Defense policy of applying the law of war to any armed conflict no matter how characterized.

For the hundreds of Panamanian Defense Force personnel captured by U.S. forces, this resulted in treatment “consistent with” the Third Geneva Convention. The U.S. never formally classified these captured personnel as prisoners of war, because subsequent to initiation of combat operations, the government determined that the conflict in Panama was not an international armed conflict. The rationale for this decision was that Guillermo Endara, the Noriega opposition presidential candidate who had by all accounts won a landslide victory in an election subsequently nullified by the General, had “requested” U.S. assistance. As a result, the U.S. government concluded that there was no dispute between Panama and the United States that led to the intervention of armed forces, and therefore the conflict in Panama was, at most, an non-international armed conflict with the U.S. assisting the legitimate government.

For most of the captured personnel, this decision had little consequence, as they were rapidly released at the termination of hostilities. General Noriega, however, was not so fortunate. As seen by the world on live television, he was ultimately captured by U.S. forces, and transported to the U.S, in his uniform, to stand trial for his alleged involvement in drug trafficking.

Once in the U.S., Noriega was brought to trial in the Southern District of Florida on the indictments that pre-dated the conflict and his capture. Noriega made a number of challenges to this prosecution based on international law, none of which proved successful. However, after his conviction, Noriega asserted his right to the protections and benefits of the Third Geneva Convention. In response, the government asserted the “invitational presence” theory originally relied upon to conclude the operation in Panama was not an international armed conflict. The District Court rejected this theory.

In an unequivocal opinion, Judge Hoeveler held that General Noriega was, as a matter of law, a prisoner of war. In what today seems like a prescient response to the government theory, the court emphasized the requirement to interpret and apply the Geneva Conventions broadly and in good faith. Consistent with this requirement, the Judge noted that conflict classification must be based on the de facto situation, and that the de jure status of the authority opposing U.S. forces is not the controlling consideration. So long as that authority possesses de facto control over the armed forces of the state engaged in conflict with U.S. forces, the international armed conflict test of the Geneva Conventions is satisfied. For the court, the situation in Panama fell so clearly into this category that it seemed to almost summarily dismiss the government theory:

The Convention applies to an incredibly broad spectrum of events. The government has characterized the deployment of U.S. Armed Forces to Panama on December 20, 1989 as the “hostilities” in Panama . . . However the government wishes to label it, what occurred in late 1989-early 1990 was clearly an “armed conflict” within the meaning of Article 2.

In reaching this conclusion, the court relied explicitly and extensively on the International Committee of the Red Cross (ICRC) Commentary to the Third Geneva Convention. This reliance reflected recognition of the value and the authority of this interpretive aid, so well understood by international law experts and practitioners.

Judge Hoeveler also addressed the government argument that it was not necessary to decide whether General Noriega was a prisoner of war because he would, as a matter of policy, be treated consistent with that status. The court rejected this argument, and noted the invalidity of attempting to substitute legal determinations with policy application:

The government’s position provides no assurances that the government will not at some point in the future decide that Noriega is not a POW, and therefore not entitled to the protections of Geneva III. This would seem to be just the type of situation Geneva III was designed to protect against.

The limit of policy to resolve issues related to the law of war seems particularly significant today. Even in the most complex operational environment, it is critical for the government to make a timely conflict classification decision in order to establish the legal foundation to control operational execution. Policy then becomes a useful tool to address issues not covered by the applicable law. But when U.S. forces engage in missions involving the application of combat power, the foundation provided by the law of war applicable to either international or non-international armed conflict must be acknowledged at the outset of the operation. Policy may supplement this foundation, but should not be used as a substitute.

The court’s holding that General Noriega was entitled to prisoner of war status did not, however, prevent his criminal punishment for pre-capture violations of U.S. law. As noted above, Noriega remains both an inmate and a prisoner of war. This “dual status” is consistent with the provisions of the Third Geneva Convention, which in no way bars the prosecution and criminal sanction of prisoners of war for offenses committed prior to capture. The power of the detaining state bring such individuals to justice extends to violations of both the domestic law of the detaining state, as was the case with General Noriega; and international law, such as pre-capture violations of the law of war. Prisoner of war status does result in the requirement to comply with certain minimal procedural standards during such prosecutions, and respect for a number of very basic privileges while sentence is being served. But the example of General Noriega clearly demonstrates that these obligations are not particularly burdensome, nor did they in any way meaningfully interfere with the General’s trial and punishment.

The example of America’s longest held prisoner of war suggests that perhaps everything old is new again. This case seems to provide insight into a number of the significant issues related to the detention and punishment of individuals captured during the war on terror: the applicability of the Geneva Conventions; the relationship of law and policy; the value of the ICRC commentaries; the need to interpret this law in good faith; and the feasibility of reconciling prisoner of war status with criminal sanction. Perhaps because this case was decided in a national security atmosphere far less charged than today’s enhances the credibility to the reasoned approach reflected in the opinion. While there are undoubtedly distinctions between the nature of our current enemies and the enemy we confronted in Panama, the final sentiment expressed by Judge Hoeveler seems to provide an excellent perspective on the complex issues related to future application of the law of war:

In the turbulent course of international events — the violence, deceit, and tragedies which capture the news, the relatively obscure issues in this case may seem unimportant. They are not. The implications of a less-than-strict adherence to Geneva III are serious and must temper any consideration of the questions presented.