11 Jun Does Affiliation with Al Qaeda Make One an “Enemy Combatant”? No, Says U.S. Court of Appeals
The U.S. Court of Appeals for the Fourth Circuit ruled today that an alien resident of the U.S. alleged to be affiliated with Al Qaeda cannot be detained as an “enemy combatant.” (al-Marri v. Wright).
Al-Marri is a citizen of Qatar who is alleged to have trained at Al Qaeda training camps prior to September 11 and who was detained while studying computer science at Bradley University in Illinois. The U.S. military has held al-Marri in a brig in South Carolina for the past four years as an enemy combatant.
I’m sure others have already digested this opinion elsewhere.* Let me add my first two cents here.
At first glance, it seems to me the crucial analytical move by the Court here is to reject the government’s claim that allegations of membership in Al Qaeda is enough to sustain an “enemy combatant” designation. The Court seems to read prior Supreme Court precedent to require detention on the battlefield, or evidence of affiliation with the military of a government with which the U.S. is a war, in order to sustain an enemy combatant designation.
This seems like a pretty defensible approach, although I think it is hard to read Congress’ September 11 Resolution to be so limited. As a practical matter, this opinion really does require a “law enforcement” approach to combatting terrorism. It means that the “war on terrorism” is becoming more and more a metaphor, at least within the U.S., because under this approach, the U.S. military has essentially no role to play in detaining alleged terrorists who are within the United States (outside is another matter, but that may be eventually shot down as well).
I am beginning to think that the law enforcement approach is more practical and attractive. I don’t think, however, that Congress or the President agree with this approach and I doubt that the law enforcement approach is constitutionally required.
*UPDATE: For a more detailed and thoughtful analysis along the same lines as this post, see Orin Kerr’s analysis here.
On Balkinization, they also emphasize that al-Marri was already in civilian custody when he was removed to military custody, and that this has a great deal to do with the 4th Circuit Court of Appeal’s decision that there was no justifiable reason to put him in military custody, as he was not presenting a danger to the United States at the time.
Article II clearly gives the Executive exclusive control of foreign policy and military command. Part of foreign policy is to decide what is and is not a country (should Kosovo be separated from Serbia) and what government should be recognized. These questions form the context in which to determine “the military of a government with which the U.S. is a war”. Was al Qaeda separate from or an agency of the Taliban government of Afghanistan? You can argue the case either way, just as you can argue about the relative independence of Kurdistan, Waziristan, or Kosovo. Although for thirty years there was overwhelming evidence should the matter fall within the jursidiction of any court that the government in Taiwan didn’t really rule China, the courts were smart enough to defer to the Executive’s exclusive authority over foreign policy.
However, today a court claims the right to decide which foreign fighting force is entitled to the status of “enemy combatant”. Noting that it would have been the exclusive right of the administration on 9/11 to declare that al Qaeda was the de facto government of Afghanistan (Walker in Nicaragua established the principle that the recognized government of a country doesn’t have to actually be citizens of the country they rule), on what basis do the courts have any right to decide this specific question. If the President declares that al Qaeda are combatants, then they are combatants. The court may require the government to be fair and consistent and apply the law in handling the consequences of this decision, but in the end this one specific decision about the legal military status of a foreign force at war with the US appears to fall exclusively in Article II. After that, the al Marri case can be decided on the real legal issues
After Milligan, a civilian in the US may not be imprisoned by the military. The question that is presented is whether al Marri is an enemy combatant or a civilian.
The administration argues that he is a enemy combatant because the President declared that he is, and that courts are deprived by the MCA of any authority to review the decision. I do not defend this position.
The Fourth Circuit decision claims that he is a civilian because under Articles 2,3,and 4 of the Geneva Conventions, anyone not determined to be a POW under the Third Convention is a “civilian” by definition.
This may be a perfectly servicable definition when used to determine which GC applies to a group of detainees. That is all this definition is good for. Unfortunately, many types of people who are clearly not “civilians” in any normal use of the word, or by any prior legal decision, are defined as civilians for the purpose of the GC. The eight German saboteurs in Quirin did not qualify as POWs, but the Supreme Court made it clear that they could be held and executed by the military because they were not civilians. Uniformed officers of a neutral country are not authorized to involve themselves in hostilities and, if captured, would not qualify as POWs,. Yet a general or admiral certainly is not a “civilian” by any normal definition of the word.
When the Supreme Court decided Milligan it probably assumed that “civilian” had its normal obvious meaning. They probably did not intend that it apply to members of a foreign army at war with the US because the army is not regarded as affiliated with a recognized government. They certainly would not expect that a Supreme Court decision would be redefined a hundred years later based on a word used in the English language translation of a commentary on a treaty written by people in Switzerland.
The law is not just a bunch of words that can be taken out of context, mixed and matched, and then arranged on a Scrabble board to spell out any theory you happen to like. Or if it is, then an alternative to amending the Constitution is just to get some Frenchmen in Geneva redefine the meaning of troublesome terms like “reasonable doubt” or “probable cause”.
An alternative to the exremist positions of both the administration and the current Circuit decision is to accept that the question of whether al Marri is an enemy combatant or a civilian or something else is a question of fact. Since there has been no trial and no determination of facts so far, the orders from the Fourth Circut to charge or release al Marri are premature. If a court review is appropriate, then the court must first determine the facts in despute before deciding how to apply the law.
In a perfect world law enforcement would be the preferred way of handling terrorists — especially those of a nationalist bent. Islamists are not, however, seeking freedom, but wanton death and destruction. The 4th Circuit notwithstanding, the definition of “battlefield” as a legal matter will have to be expanded. While many (at least some of our Courts and the ICC and others in the field of Int’l law) hold onto traditional notions of what constitutes a battlefield — al-Qaeda (and this is well documented by Lawrence Wright in The Looming Tower and dozens of other sources) and other related Islamist groups see everywhere as the battlefield. The killing zone is deep and wide and infinite. The frontlines are everywhere. I wish it were not so — however wishes don’t keep people alive — or capture or kill terrorists.
With all due respect Prof. Ku — we do not have the civilian resources to process all of the terrorists we will eventually capture AND all of the other federal matters — especially as federal jurisdiction in other areas continually expands. The law enforcement option, in addition to being bad policy, is too expensive and cumbersome to be feasible, much less effective.
Howard Gilbert, what you say may be true of US national law. But to my knowledge, a state’s executive doesn’t also have such rights under international law (determining what is a state etc.).
I wonder how exactly the fact that the US national law gives the executive exclusive control of foreign policy and military command comes into play when interpreting the Geneva Conventions. Don’t treaties and their wording, including questions of what state the US is in an armed conflict with, have to be interpreted autonomously by US courts? (I don’t know very much about how US national law deals with treaties.)
Howard Gilbert,
You seem to be saying that the Geneva Conventions leave us with but two categories: civilian or POW. (You also seem to believe that Judge Motz shares your claim, but I didn’t get that impression from his opinion in this case nor is such a claim necessary to reach his conclusion.)
In fact, the Geneva Conventions provide distinctions between several different groups, but most importantly between civilians and combatants, not just civilians and POWs. (For example, see Article 5 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War.) Combatants which fullfil certain criteria, namely those listed in Article 4 of the Geneva Convention (III) relative to the Treatment of Prisoners of War, are given protected status as Prisoners of War.
This is an essential part of the law of international armed conflict: not all combatants are entitled to prisoner of war status. Article 4 lists those groups who are protected. Other combatants are excluded (at least as far as the U.S. is concerned. Signatories to the Additional Protocol 1 have different obligations.)
I don’t know that this is an essential determination to make in Al-Marri’s case because “enemy combatant” status does not turn on the Geneva Conventions. I’m responding to you only because you present a false dichotomy when you say that Al Marri must either be treated as a civilian or a POW. That false dichotomy was fairly commonly repeated by some folks during the early years of the War on Terror, but after six years you’d think people would have started to notice the actual state of international law.
Gabriel, I clearly do not believe that the GC defines only two categories, but this is a common view created by ICRC documents. It is also a central point in the chain of reasoning of the opinion. To quote (and note the citations), ‘distinguishing between “combatants” (members of a nation’s military, militia, or other armed forces, and those who fight alongside them) and “civilians” (all other persons) See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) arts. 2, 4, 5, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.’
Despite this quote and the comment, it is difficult to argue that the GC distinguishes “combatants” from others since it does not contain the word “combatant” anywhere in its text (search it yourself). The problem arises, however, from the very high level of overlap between the criteria in Article 4 that define who is entitled to POW status and the nearly identical criteria in the laws of war that define who is a lawful combatant entitled to combatant immunity.
The problem, however, is the classifiation of people like the Quirin saboteurs and (per the government’s allegations) al Marri. As spies who do not carry arms openly or wear uniforms, they do not meet the criteria of Article 4. They are not lawful combatants (see the Quirin decision) and they are not entitled to POW status. However, they are also not “civilians” and Quirin points out that they are not covered by Milligan or entitled to access to civilian courts.
The ICRC insists that the Geneva regime covers every single person, and accomplishes this by an interpretation (meaningful only as it applies to Geneva) that turns the saboteurs into “civilians” protected by Common Article 3. I do not question that saboteurs and al Marri are covered by CA3.
To create a chain of “reasoning”, this decision cites the ICRC criteria to conclude that al Marri is a “civilian” supposedly under “the laws of war” but actually under the ICRC commentary on the GC. Then the decision ignores the contradictory finding in Quirin that saboteurs like al Marri are not civilians under US law and are specifically not covered by Milligan.
So how do you ignore a key Supreme Court decision. Well there is some slight of hand. Noting that Hamdi and Padilla were physically present carrying weapons in Afghanistan, the claim is made that it was presence on the battlefield fighting US soldiers that made them combatants. Then Quirin gets thrown in as though the German saboteurs also met the same criteria. However, there is no record that Haupt or any of the other seven Germans were ever present on a battlefield or even held a gun within 500 miles of a US or allied soldier. They were pulled out the ranks, trained specifically for sabotage, and then sent on the mission with even less combat experience than al Marri who appears to have fought in Afganistan in ’90s, though not against Americans.
The Quirin saboteurs were enlisted soldiers in the army of a recognized state. Padilla was a soldier in an army not clearly associated with a recognized state, but he was present on a battlefield even if not in direct contact with US forces. Al Marri met neither criteria. These judges could come to the conclusion that the Quirin decision only applies to saboteurs who come from a recognized state-related army, but not without conflicting with the Padilla decision from the same Circuit: “Like Haupt, Padilla associated with the military arm of the enemy, and with its aid, guidance, and direction entered this country bent on committing hostile acts on American soil. J.A. 22-23. Padilla thus falls within Quirin’s definition of enemy belligerent, as well as within the definition of the equivalent term accepted by the plurality in Hamdi.”
If Padilla falls within Quirin, then so does al Marri. Unwilling to admit that they were reaching a conclusion that contradicted a previous ruling of the same Circuit, but unable to make the case any other way, this decision simply applies some flim-flam to obscure the conflict and the breakdown in logical reasoning. They declare that they are in agreement with the Padilla case by asserting that the Padilla decision agrees with their finding, while at the same time reaching the exact opposite conclusions about questions like the applicability of Quirin to al Qaeda.
It is a very big decision, and it is hard to reduce it to its essential sequence of logical reasoning as one might find in a mathematical proof. It is even harder when the authors are intentionally misquoting and misrepresenting other decisions to avoid admitting conflicts. It may not be possible to reduce it entirely to a sequence of propositions, and then expose the logical problems, but I think we may have gotten pretty close to that objective.