22 Nov Reno Strikes Back: Files Amicus Brief against Use of “Enemy Combatant” Designation
Former U.S. Attorney General Janet Reno and a number of other former U.S. Department of Justice officials filed an amicus brief yesterday in Al-Marri v. Wright, a case currently before the U.S. Court of Appeals for the Fourth Circuit (see the WPost article here).
As a legal argument, the amicus brief offers little that is new or surprising. It argues that the “enemy combatant” designation cannot be used against civilians capture outside the battlefield – this is quite likely to be the next front in the legal war over “enemy combatants” but the brief doesn’t add much.
More interestingly, the brief essentially declares the Military Commissions Act of 2006, which seemed to broadly authorize the detention of enemy combatants, to be largely meaningless. The brief spends a lot of time arguing that such an individual should have recourse to habeas relief. This may be so, but even if the individual does have recourse to habeas, I think the Military Commissions Act still authorizes the detention as an enemy combatant. The detainee could have habeas but this doesn’t mean he will “win” on habeas. The power to detain an individual as an enemy combatant might still be reviewable under the limited due process rights outlined in Hamdi.
But this is not the main thrust of Reno’s argument, which basically points to all the neat anti-terrorism laws that folks can be prosecuted under. She is right, but she is also missing the point. The theory behind enemy combatants is not so much that these individuals are criminals, but that they are enemies who should and can be detained. They might also be criminals, but the detention is not aimed at prosecution or punishment. It is aimed at preventing another attack in the war.
This is not to say that the “war” school is necessarily right. This is plainly not the same kind of war. But Reno et. al’s brief also reveals the pre-9/11 pure law-enforcement mindset that has its own serious problems and deserves a fair amount of criticism as well.
Where to begin? 1. “The amicus brief . . . argues that the ‘enemy combatant’ designation cannot be used against civilians capture[d] outside the battlefield.” No, it doesn’t. What it does suggest is that in this one particular case of a person detained here in the United States, the use of the “enemy combatant” process should be viewed with a skeptical eye, because the government at the last minute shifted al-Marri out of the criminal-justice system (where trial was about to commence) to indefinite “enemy combatant” status, based on essentially the same set of allegations. 2. “The Military Commissions Act authorizes the detention as an enemy combatant.” I don’t think there is any detention authority in the MCA for those who are not to be charged in military commissions — but that’s a topic for another day. More to the point, the Reno brief does not address this issue. What it does argue, not over “a lot of time” but in a single sentence (bottom of page 8), is that a person *detained in the United States* should have recourse to petition for habeas, which the MCA appears to foreclose. Do you disagree with this, Julian? Do you think that… Read more »
Marty,
We look forward to your response to Julian’s recent paper co-authored with John Yoo: ‘Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch’ (at SSRN and posted yesterday at Larry Solum’s Legal Theory Blog): http://lsolum.typepad.com/legaltheory/
Indeed, perhaps you and Julian can have a dialogue on the argument(s) in this paper. I think readers would enjoy and benefit from such a discussion.
Come on Julian, this isn’t complicated…
1) The term “enemy combatant” is a tautology meaning “anyone the Bush administration calls an enemy combatant.”
2) Being called names by George W. Bush is nothing like a fair trial or a conviction.
3) The CSRTs are nothing but an empty sham.
*
The serious problems here are all yours — the question remians:
What protects a two year old child from from being designated an “enemy combatant” and tortured by the Bush administration?
On the question of who, exactly, may be detained as an “enemy combatant” under the laws of war (and thus under domestic law), I highly recommend this additional amicus brief in Al Marri filed on behalf of law-of-war scholars by, inter alia, Jenny Martinez and Allison Danner: http://makeashorterlink.com/?Z3C521E3E It’s the best and clearest treatment I’ve yet seen. (Obviously, the Bradley/Goldsmith article in Harvard on the AUMF is also very important and thorough on this question.) The only thing I wish the brief would have elaborated further is whether and how the rules for preventive detention differ from the rules relating to the right to use lethal force. I am troubled, for instance, by the fact that the Quirin defendants and Hamdi were not engaged in active combatancy when they were arrested. I can see how it would have violated the laws of war to shoot them on sight. But why aren’t the rules for detention different? Example: In World War II, would it have been lawful for the U.S. to detain indefinitely the German financiers and planners of the war, or the scientists helping to develop nuclear weapons? Obviously, we couldn’t kill them on sight. But take them out of… Read more »
Patrick: I quickly perused that paper yesterday, as a matter of fact. It’s part of a cottage industry on the issue now, including various pieces by Cass Sunstein (one with Eric Posner), and a recent draft of a very fine article by Derek Jinks and Neal Katyal (available on SSRN). Three very, very brief reactions to the Ku/Yoo article: 1. The principal thrust of the paper is incredulity that the Court in Hamdan did not defer to the Bush Administration’s interpretations of the UCMJ and Common Article 3. There’s an elephant sitting in the middle of the room, however, which the authors nowhere acknowledge: Most of those Executive interpretations were hatched by one of the paper’s own authors, who for many years has demonstrated extreme hostility to human-rights treaty obligations and to any statutory constraints on the Executive. John’s work at OLC understandably reflects those predilections, which appear to be shared by the President and Vice President. In my humble opinion — and, more importantly, in the eyes of the Court — those interpretations were hardly attempts to come up with the best, or proper, constructions of the governing laws and treaties; they were, instead, interpretations that quite unapologetically adopted… Read more »
Oops — that should, of course, be points 1, 2 and 3. Innumeracy. 😉
I would suggest that blurring the distinction between combatant and civilian has the effect of permitting the indefinite detention of any persons designated by the state as enemies of the state. The hurdles inherent in being able to establish that someone is missing (see Jack Lemmon in the movie Missing) are tremendous. Who is considered an enemy of the state would be treated as a state secret of course. Julian appears comfortable with allowing persons to run the risk of falling into that space under the broad language of the Military Commissions Act. I suspect those who feel that way are also certain that they themselves personally would never be identified in that manner and indefinitely detained. This assumption is the fundamental error of those who are asserting the need for these types of laws with broad authority to protect us. The most anodyne activity can be recharacterized as a threat to the state and a person characterized as an enemy of the state. For example, whole municipalities were sundown towns where no blacks were allowed to be in town after sundown as a measure of assuring security for the white population. It would seem that the conservatives would recognize… Read more »
Thanks so much Marty: even your ‘very, very brief reactions’ are informative if not rather illuminating.
And Happy Thanksgiving to all!
Marty, Re your question on preventive detention: the answer you yourself provide is quite correct. Any person not qualifying for protection under the Third Geneva Convention (e.g. an unlawful combatant) is entitled to protection under the Fourth Geneva Convention. There is no gap between the two. So, if the US wished to detain German financiers during World War II, it could do so if it were absolutely necessary for US security under Article 42 of GC IV. However, the internment could not be indefinite, but could last only while the same security reasons exist according to Article 132 of GC IV, and, even so, the internees must be released upon the close of hostilities under Article 133 of GC IV. There is therefore no possibility for indefinite detention under the law of international armed conflict. But, there is an unfortunate problem with the Hamdan decision, in that it could be interpreted as ruling that the Global War on Terror ™ is a non-international armed conflict, as the Court seemed to have ruled that Common Article 3 applies as a matter of treaty law to the putative armed conflict between the US and al Qaeda. This reading of Hamdan, which to… Read more »
I think that’s right, Marko — that according to the Court’s view in Hamdan, the conflict against Al Qaeda (at least outside Afghanistan) is covered by CA3 and not by GCIII and GCIV. And I actually think that’s probably right — or, in any event, that the Court was never going to hold that Al Qaeda agents are protected by GCs III and IV, and so CA3 is the most possible protection anyone could reasonably expect. (The Protocols appear to have been drafted on the same assumption that GCIII and GCIV don’t apply to this sort of conflict.)
And I think Danner and Martinez realize that, too, which is why they have focused on the customary laws of war — as incorporated in domestic law — as much or more than on the Geneva Conventions as such.
Marty,
I agree completely. The problem is that CA3 offers no solutions to the problem of indefinite detention, unless you successfully argue that indefinite detention amounts to inhuman treatment, which I would certainly agree with.
Where Hamdan is inconsistent with IHL is in its basic assumption that the ‘war’ between the US and al Qaeda can be a non-international armed conflict. There has never been such a conflict, nor is there any support in state practice for a change in the scope of CA3. CA3, as all of IHL, is simply inapplicable to someone accused of credit card fraud in order to finance terrorist operations within the US.
Marko: This is where I get confused with IHL folks.
This is an armed conflict with Al Qaeda, in fact (wholly apart from int’l law). And it’s one that Congress authorized 518-1.
OK, so are there any international law constraints on the prosecution of that conflict? The Administration says no.
But why isn’t it a non-international conflict described by CA3? Seems to me that it is. The Court got it right, in other words. (It surely doesn’t fit in GCIII or GCIV generally.)
If you were right that CA3 doesn’t apply, then I don’t see why there’d be any international law protections at all (or are you holding out the possibility of customary law protections?).
I agree that CA3 doesn’t speak to military detention as such (as opposed to the conditions of detention). Therefore, the real action here is not in Geneva, but in the laws of war, which delimit the authorization that Congress gave to the President for this conflict. And so the question I have — which Danner and Martinez begin to answer — is what sorts of detentions are permitted, and of whom, under the customary laws of war.
Marty, but that is precisely the problem: the customary (and conventional) law of war does not contain any generic definition of what an armed conflict is. It only regulates international armed conflicts, i.e. wars, and non-international armed conflicts, i.e. internal conflicts. Despite the phrase, non-international armed conflicts are not the product of some sort of residual definition, a catch-all type which would cover all ‘armed conflicts’ which are not international, i.e. inter-state conflicts. On the contrary, non-international armed conflicts are conceptually autonomous from international conflicts – they are those instances of protracted armed violence within a state which are by intensity greater then mere disturbances, and which do not have to have the intensity of full-fledged civil wars, such as the American or the Spanish ones. It is therefore not possible, as customary law stands now and as it has stood for decades, to claim that the United States is engaged in an armed conflict with al Qaeda as such all over the world. There is simply no precedent for such a situation, and it is disingenous to claim that this situation as a whole is covered by the law of war. It just is not, and this has absolutely… Read more »
The commentary on common article 3 of the ICRC does not take as restrictive a view (i.e. internal conflicts not rising to civil war like the American or Spanish) of non-international conflicts. From the commentary on the ICRC website. “We think, on the contrary, that the scope of application of the Article must be as wide as possible. There can be no drawbacks in this, since the Article in its reduced form, contrary to what might be thought, does not in any way limit the right of a State to put down rebellion, nor does it increase in the slightest the authority of the rebel party. It merely demands respect for certain rules, which were already recognized as essential in all civilized countries, and embodied in the national legislation of the States in question, long before the Convention was signed. What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture and mutilate prisoners and take hostages? No Government can object to observing, in its dealings [p.37] with enemies,… Read more »
“The only reason why we are discussing the issue is because the US administration is completely distorting the applicable rules in order to detain people without any sort of independent supervision.”
I think Marko is exactly right — and they’re doing so in violation of 18 USC 2441(c)(2) as it refers to Hague IV 1907 art. 23[h], speaking of customary law. As Lieber put it, “Military oppression is not Martial Law: it is the abuse of the power which that law confers.”
“At that point — years into his detention — al-Marri was suddenly declared an enemy combatant. Of course, this conveniently cirumvented any need to actually prove guilt at trial.”
The core of the government claim in this case is “In the summer of 2001 al-Marri was introduced by Khalid Shaykh Muhammed, September 11th mastermind, to Usamu Bin Laden, and al-Marri offered to be an al Qaeda martyr or do anything else al Qaeda requested. He was directed to enter the United States as a “sleeper agent”.”
It seems reasonable to assume that they determined this from the interrogation of KSM, who was capture in Pakistan on March 1, 2003. Allowing time to transfer KSM, interrogate him, and filter the data through the system, it is not surprising that al-Marri was declared an enemy combatant on June 23, 2003.
There was a mountain of evidence for credit card fraud and no reason to believe that the case would be hard to prosecute. Once they discovered that he was an enemy combatant, he had been in the criminal justice system for a year and a half. They decided to act on the new evidence and reclassify him. Why is this so hard to understand?
It’s not hard to understand at all Howard:such tyrany is commonplace in the historical record, from lynchings here in the US to the Soviet Gulag to the Nazi death camps all the way back to the psychotic whims of Caligula and beyond.
What’s hard to understand is how any US citizen could ever imagine for one second that any US official has the authority to imprison or torture someone without due process of law. And it even harder to understand how such an individual could be a lwayer or a law professor and openly advocate such criminal conduct.
Ben,
The ICRC Commentary does indeed adopt a ‘restrictive’ definition of what non-international armed conflicts. By restrictive, I mean that it explicitly says that non-international armed conflict are “conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.”
That’s what they are, and any idea of a global non-international armed conflict is a total contradiction in terms.
Furthermore, when the ICRC says that the scope of application of CA3 must be as wide as possible (as cited by the Supreme Court in Hamdan, btw), they are not saying that CA3 applies to ‘transnational’ conflicts (whatever these may be), but are saying that CA3 applies not only to full-fledged civil wars, but also to internal conflicts which are much lower in intensity.
So, I have no problem in principle in applying CA3 to Hamdan, but the reasoning the Supreme Court gives is completely incoherent.
“What’s hard to understand is how any US citizen could ever imagine for one second that any US official has the authority to imprison or torture someone without due process of law.”
It is harder to imagine torture with due process of law. However, as to holding prisoners, the US held 435,000 Axis POWs in camps throughout the US. None were given “due process of law” if by that you mean criminal charges and trials. This is the first war in US history where POWs have been granted wide access to civilian courts.
If al-Marri is an enemy combatant, then he is being held properly. If he is not, then his rights are being violated. The amicus briefs in this appeal assert that you can decide status based on law without inquiring into the facts. I would simply argue that the question of whether al-Marri is or is not an enemy combatant is a fact to be decided in a hearing (such as the one he was given in US District Court currently under appeal) and not something you can determine by reading different sections of the Geneva Conventions.
“It is harder to imagine torture with due process of law.” Well maybe you should expand your horizons. Like maybe do a little reserch on conditions in US “Super Max” prisons, the proposals of Alan Dershowitz and others for “torture warrants”, or the views of Julian’s colleauge Prof. Yoo as to the authority of the President to crush the testicles of children. “This is the first war in US history where POWs have been granted wide access to civilian courts.” False: the government in fact DENIES that these detainees are POWs. The only authority for such detentions is Geneva III 1949 — anyone else is a civilian (see Geneve IV, art. 4). “If al-Marri is an enemy combatant, then he is being held properly. If he is not, then his rights are being violated. The amicus briefs in this appeal assert that you can decide status based on law without inquiring into the facts.” But that’s just the point: you are assuming that the expression “enemy combatant” is meaningful but it’s just a phony tautology that means “someone George Bush calls an enemy combatant”. The only fact in evidence is an unsupported claim that the administration is going to absure… Read more »
“So, I have no problem in principle in applying CA3 to Hamdan, but the reasoning the Supreme Court gives is completely incoherent.”
Marko, that’s becasue the court was assuming the government’s position arguendo. The government’s contention is that the war with Al Qaeda is a separate conflict from the war in Afghanistan, which affects whether CA2 or CA3 applies. The court basically was saying “we don’t have to resolve whether CA2 or CA3 applies because CA3 is the minimum, and it’s enough to conclude the military commissions are unlawful”.
The district court in fact held that CA2 applied, and that Hamdan was therefore entitled to the presumption of POW status under Geneva III art. 5. That ruling stands, but now the court is briefing a motion to dismiss for lack of jurisdiciton under the MCA.
Comment above: “I have no evidence that Al Marri has ever used a weapon in his life. What the facts say is that he’s been imprisoned under false pretences in violation of the US Constitution.” According to the Rapp Declaration, “Al-Marri trained at Bin Laden’s Afghanistan terrorist training camp for 15-19 months between approximately 1996 and 1998.” So the government claims to have evidence that he joined the military arm of Al Qaeda and had military training. However, you are correct if you mean to say that he did not use a weapon in combat against the US because he entered the US on his mission the day before 9/11 and was not part of the subsequent fighting. In ex parte Quirin, the Supreme Court noted that weapons are not necessary to the charge that a spy is an unlawful belligerent/combatant: “As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment… Read more »
Marko, It is the sentence before in the commentary that strikes me – “No Government can object to observing, in its dealings [p.37] with enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact observes daily, under its own laws, when dealing with common criminals.” Rather than choose between the war or crime paradigm, we should maybe use simultaneously the war and crime paradigms depending on which appropriately describes the situation in each of several given places. It would seem unremarkable to look around the world and say some places are places of armed conflict that trigger some type of Geneva protections and others are places of criminal law. With further information I can imagine a person being reclassified from criminal to enemy combatant subject to detention or back the other way or freed. Also, a recognition that a new front has opened in an armed conflict may change the view of a given place as place of armed conflict or not. But within all of that whether as CA3, GCIII or GCIV, diplomatic protection, or internal law in a civilized country – torture and cruel inhuman or degrading treatment are… Read more »
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