26 Mar It’s Official – and a Word on GCIV Art. 42
As usual, I’m likely last online to note the now-official news of Harold Koh’s nomination to be Legal Adviser at the U.S. Department of State. For what it’s worth, we’d seen it coming. If the Senate has any sense, the nomination will sail through. I can’t imagine a candidate more qualified. Congratulations Dean Koh!
And now back to the detention front, which this past week saw the filing of a brief on behalf of a group of detainees responding to the Obama position on the scope of its Gitmo detention authority under the Authorization for the Use of Military Force statute (AUMF). Scotusblog has a fine summary and the brief here. In essence, the detainees agree that the scope of detention authority under the AUMF should turn on “that authorized by the traditional law of war.” What exactly does that law authorize? Well, the brief doesn’t particularly spell that out other than to be clear that whatever it means “substantially support” (Taliban or Al Qaeda forces engaged in hostilities against the United States), it’s almost certainly broader than what IHL allows.
So the litigating lines, such as they are, are drawn. And the question remains, what detention power does IHL contemplate? More specifically, what detention power does the IHL of non-international armed conflict contemplate – for if there is any armed conflict within the meaning of international law between the United States and Al Qaeda, it is perforce a non-international one. As I wrote here last week, I believe the IHL of NIAC is effectively silent on the question of detention authority, leaving the question of detention authority to applicable domestic law to determine. Since that domestic law is the AUMF here, I advised the court to look to traditional principles of statutory construction to flesh out who Congress intended to be militarily detained.
Professor Goodman, whose important piece I noted here last week, seems to suggest a different view of NIAC. In it, he writes:
The Fourth [Geneva] Convention, under Articles 5, 27, 41-43, and 78, plainly permits the detention, or internment, of civilians not according to status-based categories, but according to whether an individual poses a security threat. In noninternational armed conflicts, international authorities have applied the same principle. Thus, states may detain a civilian without finding that the individual directly participated in hostilities.
He is certainly right about what GCIV authorizes with respect to civilians detained in an international armed conflict – a state-v.-state war with an endpoint the law fairly clearly defines. And he is also right to note that many critics of Bush Administration detention policies tended to overlook that reality. But what about the critical, if indeterminate, proposition that “international authorities have applied” the same principle to NIAC? As soon as I’m back from this week’s ASIL meeting in D.C., I’ll have a look at the authorities he cites at footnote 12 in support: an article by Joanna Dingwall on ICTY jurisprudence; a discussion of UN Human Rights Commission examples from Zegveld’s “The Accountability of Armed Opposition Groups in International Law”; and a 1999 report to the Inter-American Comm’n on Human Rights regarding Colombian civil war.
In the meantime, it seems as though a host of cautions are in order (in no particular order). First, just because some “authorities” have applied the same “principle” (presumably a principle in which security detention of civilians is permitted) in NIAC, doesn’t make that principle a statement of binding international law – either treaty-based (GCIV by its terms is about IAC) or customary.
Second, even if NIAC did contemplate security detention as a matter of international law, this doesn’t resolve the question of what the AUMF authorizes the President to do under U.S. law. Among other things, constitutional protections of due process and separation of powers principles almost certainly require that if Congress were going to authorize detention on the scale this view implies, it would have had to say something a great deal more clearly than it did in the AUMF. It’s one thing for the AUMF to incorporate by reference a detention authority in IAC that is not only made explicit in the terms of several treaties, but entirely consistent with historical practice, and (unlike in NIAC) has a duration/endpoint that is defined in law. (In any case, the Supreme Court said as much in Hamdi.) It is quite another thing to bootstrap a deeply vague NIAC detention authority into an already vague federal statute and assume that too passes constitutional muster. Call it the principle of legality in international law – it all amounts to the same thing.
Third, even if one could legitimately – under both constitutional and international law – lift a provision like GCIV Article 42 whole hog into the context of NIAC, Article 42 detention authority even in the more constrained context of IAC is dramatically limited, permitting only that detention as is “absolutely necessary” for the security of the detaining power. Is it “absolutely necessary” for the security of the United States that it be able to detain terrorist suspects picked up anywhere in the world under a legal authority that goes beyond its own sweepingly extraterritorial and often preventively focused criminal law? Guess we’ll find out if the administration advances the Art. 42 theory in court.
Deborah,
I have two comments, and would really like to include some links but I’m not going to because I don’t want to get stuck in moderation limbo.
First, I’m a little surprised that you’re so ready to accept the proposition that a conflict with al Qaeda is non-international. In essence, the AUMF is a declaration of a global world war or a global military occupation to whatever extent it isn’t merely a phony excuse for doing whatever the government pleases regardless of what the Constitution or the law says about anything. IF the Obama administration was smart, they would simply repeal it forthwith. In truth, it confers them with no authority that they don’t have without it, because it authorizes nothing that isn’t facially unconstitutional.
And that is REALLY obvious too, because it quite literally authorizes nothing but presidential “determinations” that are clearly contrary to the Constitution. Imagine for example that the president “determined” that “all Jews” or “all Muslims” were subject to “necessary and appropriate” force. Or imagine that he authorized Predator air-strikes against suspected terrorists in Detroit or Omaha they way we are doing in Afghanistan and Pakistan.
Then tell me what in the AUMF prevents him from doing such things. The answer is clearly NOTHING,and it follows that the AUMF cannot pass reasonable scrutiny — it is in fact a product of pure hysteria.
Secondly, the laws of war are not unclear about detention authority in this situation and neither are the laws of the United States. The Hague IV 1907 Annex states the basic rule quite clearly in article 23:
“In addition to the prohibitions provided by special Conventions, it is especially forbidden [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”
And that rule is incorporated by reference in 18 USC 2441(c)(2) which makes any violation HR art. 23 a federal offense.
And five years ago, I field two amicus briefs on that law in the detainee cases. The first was with the Supreme Court in Hamdi, and the second was with the USDC for the District of Columbia. Both briefs are available on my website (see the link for articles by CBG on the left side of the PEGC homepage). I’ve also written an article on the PEGC Blog (also linked on the left side) that looks at DOJ’s arguments concerning 18 USC 2441(c)(2), which are another one of John Yoo’s fraudulent alibis.
There’s nothing unclear about any of this stuff: the Bush administration was committing war crimes against prisoners BY POLICY, and now the Obama administration is in danger of doing exactly the same thing by NEGLECT.
Regards,
Charly
Here are the links for the article and briefs mentioned in my comment…
Supreme Court —
Hamdi v. Rumsfeld, No. 03-6698 (merits)
February 23, 2004
BRIEF OF AMICUS CURIAE CHARLES B. GITTINGS JR. IN SUPPORT OF PETITIONERS
http://www.pegc.us/archive/letters/gittings_amicus_hamdirums_20040223R.pdf
USDC D.D.C. —
In re Guantanamo Detainee Cases (JHG)
October 14, 2004
BRIEF OF AMICUS CURIAE CHARLES B. GITTINGS JR. AND CROSS-MOTION FOR SUMMARY JUDGEMENT IN SUPPORT OF PETITIONERS
http://www.pegc.us/archive/DC_Gitmo_Cases_JHG/CBG_gitmo_amicus_20041012_full.pdf
PEGC Blog —
October 5, 2008
18 USC 2441
by Charles Gittings
http://pegc.blogspot.com/2008/10/18-usc-2441.html
When George Washington accepted the surrender of Lord Cornwallis and his army at Yorktown, he did not take these prisoners under any specific authorization from Congress and certainly not based on a treaty that would not exist until 1949. Rather, when he was made Commander in Chief of an army, and that army was authorized to engage in armed conflict, then the power to accept surrender and take prisoners was implicit in the authorization to use armed force. Today the US Army takes prisoners based on the exact same authority exercised by George Washington (commonly called “the laws of war”). That authority has not changed in centuries.
However, modern IHL places constraints on the behavior of an army after it takes prisoners. The Third Geneva Convention provides very strict protection for Prisoners of War (who meet the criteria in Article 4). Generally, any enemy national who is not protected by the Third Convention is instead protected by the Fourth Convention. In Eisentrager, the Supreme Court noted that enemy soldiers and nationals (those protected by either Convention) do not have rights under the Constitution and are not entitled to access to our courts. Boumediene clarified this and ruled that our courts have the power to, on their own initiative, review the legality of the detention of enemy soldiers and nationals, but it remanded the question of what if any rights they might have to the lower courts.
IHL constrains the conditions of detention but is not the source of the power to detain. This was mentioned in the EJIL Talk blog in an exchange referenced by another commentor in response to a previous OJ post on this same subject. Over in the other blog, John C Dehn pointed out:
“there is no conventional IHL of which I am aware that expressly or affirmatively authorizes the detention of combatants in international armed conflict. Art. 4 of the GPW regulates those “who have fallen into the power of the enemy”, including the status of such individuals, conditions of detention, and ancillary matters. While one might say this strongly implies a detention power, it does not expressly provide for it anywhere in the document.”
The power to detain existed in the days of George Washington and remains today the source of authority. The IHL rules about International and Non-Iternational conflict and the critera about militias in Article 4 may determine which set of IHL rules constrain the behavior of the US as a detaining power. For example, if you believe as I do that the Army of Afghanistan met the criteria of Article 4, then the Third Geneva Convention prohibits all forms of coercive interrogation and the US acted illegally in its treatment of prisoners.
However, an analysis of which set of constraints apply to our behavior cannot determine whether detention was authorized by law in the first place. This means that all the distinctions between IAC and NIAC, between regular armies and militia, none of this has anything to do with the question of whether the detention itself is authorized.
Legal theory must also reach rational conclusions. In Sept 2001, an army of 45,000 soldiers representing the Taliban government faced off against an opposing army of 40,000 soldiers representing what we commonly refer to as the “Northern Alliance” (the Islamic Front for the Salvation of Afghanistan). Both sides were plausibly “tribal militia”. Neither side wore uniforms or obeyed a western style chain of command. They fought according to the traditions of Afghan warfare.
Then because of 9/11, the US became involved in what was previously a civil war. Aircraft operating at high altitude dropped JDAM precision bombs on concentrations of enemy soldiers in the opposing front. The front collapsed, and during the retreat the US continued to bomb clusters of enemy soldiers.
IHL says that enemy combatants can be targeted, but enemy civilians may not be targeted. The US targeted the entire army of 45,000 soldiers, and it killed somewhere between 7,000 and 15,000 of them. These were front line soldiers ready to engage in combat, but they were not in range of any US or allied forces and so they were not shooting at the time and may not have fired their weapons in months.
Now some develop a legal theory that says that because they were an ununiformed tribal militia or because they don’t recognize the legitimacy of the Talban government, that this was a non-international conflict and the enemy army were all “civilians”, or “criminals”, or “terrorists.” While these theories might mean that the US cannot detain 250 captured soldiers today, the necessary logical consequence of that reasoning also means that the original army of “civilians” or “criminals” or whatever could not be legally targeted by the US military unless they were actively shooting at US forces when they died. So by this reasoning, the 15,000 deaths suddenly become a war crime.
Of course, the reality on the ground was that they were an army engaged in war. They did not know or care what Article 2 or 4 of the Geneva Convention said. Nor could a plane flying at 20,000 feet determine if the particular cluster of soldiers being targeted were properly dressed with appropriate insignia as required by Article 4 (which talks about “at a distance” but cannot plausibly be read to require that the distance be four miles up).
If you actually read the text of the Fourth Geneva Convention instead of just reading the title, you will realize that the Convention defines Protected Persons, who are not necessarily limited to or defined as “civilians”. Except for the title, the word “civilian” is used in only a dozen places, mostly in the phrase “civilian hospital”.
In the same sense, Article 4 of GC III clearly determines who is to be protected as a POW by the Convention, but it does not say anywhere that someone who is not protected by the Convention is not some other type of unprotected prisoner of war, nor does it claim that such unprotected persons are not combatants.
Common sense suggests that the army of under-dressed soldiers engaged in war in Northern Afghanistan were combatants. The US attacked an army, not 45,000 individual soldiers. If you accept that the 15,000 dead were not under international law “murdered civilians”, then either you have to agree with me that the soldiers from this army who were captured should have been treated as POWs, or else you decide that IHL protects them under Geneva IV, but in a category of Protected Person who is nevertheless a combatant who can be properly targeted, and therefore can also be properly detained.
The Geneva Conventions are not as clear cut as those who theorize about International Law from a safe distance may imagine they are. They do not say what the theorists claim. I will admit that there is no nice legal theory that supports either administration position, but those who advance dogmatic declarations about imaginary IHL are not right either. Throw away the theories. Go back to October 2001 when two armies face each other across the Panjsher valley. They had been fighting a war long before the US got there. If your legal theory doesn’t make any sense when applied to the actual conditions of the conflict on the battlefield, then fix the theory. When you have something that makes sense in 2001 in Afghanistan, then you can project that theory forward to 2009 and ask if it justifies the detention of 250 captured members of the enemy army now held in Guantanamo.
Howard,
What absolute nonsense.
1) George Washington was commissionede by Congress and operated under the Articles of War enacted by Congress a frew days after he was commissioned.
2) There is a very good history of POWs in the Revolution that was published recently:
Edwin Burrows, FORGOTTEN PATRIOTS: THE UNTOLD STORY OF AMERICAN PRISONERS DURING THE REVOLUTIONARY WAR, Basic Books (2008).
3) The first US treaty dealing with civilians and POWs in war time was the Treaty of Amity and Commerce Between His Majesty the King of Prussia, and the United States of America (1785):
http://avalon.law.yale.edu/18th_century/prus1785.asp#art23
See arts. 23 and 24.
4) The texts of the Geneva and Hague conventions are not “theories” but texts — they say what they say. The same is ture of statutes like 18 USC 2441 and the federal statutes dealing with such crimes as assault, kidnapping, and murder.
The fantasies and delusions are entirely on your side Howard.
The earliest law related to civilian prisoners, a law that is still in force today and has never been repealed or overturned by any court, is An Act Respecting Alien Enemies, July 6 1798, http://avalon.law.yale.edu/18th_century/alien.asp
which in its text authorizes the detention of Ali al Marri that occurred over the last 7 years:
“whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies. And the President of the United States shall be, and he is hereby authorized, in any event, as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable, as aforesaid; the manner and degree of the restraint to which they shall be subject, and in what cases, and upon what security their residence shall be permitted”
Nothing in the Articles of War, however, explicitly authorizes the detention of prisoners of war (or cite the article). That authority was and is inherent to the military once armed force has been authorized. However, in 1812 the Congress did pass An Act for the Safe Keeping and Accommodation of Prisoners of War. It authorized the President “to make such regulations and arrangements for the safe keeping, support and exchange of prisoners of war” and appropriated $100 for the purpose. Note that while Congress thought it important to authorize the President to make arrangements for the treatment of prisoners, it did not feel it necessary to actually authorize the detention of the prisoners in the first place. If you do not accept that detention is automatically authorized, then I suppose you might imagine that a more recent Congress could pass the Detainee Treatment Act to regulate the treatment of detainees, yet not pass any law actually authorizing the detention the DTA was supposed to regulate.
Without at this stage wanting to enter the larger discussion, I do want to point out that the submission that conventional IHL does not provide a source for the authority to detain in international armed conflict – simply does not hold true. The text of the Geneva Conventions is, at least on this point, very clear.
The legal basis in conventional IHL for interning prisoners of war lies in article 21 GC III: “The Detaining Power may subject prisoners of war to internment.” It may actually do so until the close of hostilities (art. 118 GC III) unless it decides to release or exchange them before that.
For persons who do not qualify as POW, they fall under the protection of GC IV (as long as they fulfill the nationality criterion in art. 4 of GC IV) and depending on whether they are in the territory of the detaining party to the conflict or in a territory occupied by the latter, the authority to intern and the grounds for internment are laid out in articles 41-43 and article 78 GC IV respectively:
Art. 42 GC IV: “The internment or assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.”
Art. 78 GC IV: If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.”
Oh, and who exactly did we declare war on Howard?
Exactly no one.
Is Al Marri a citizen of Al Qaeda?
What a phony crock of BS that is. These are just more contrived excuses Howard — you can either prove a criminal charge or you can’t, and there is nothing in the Constitution that authorizes kidnapings or assassinations at the whim of the President.
And if you claim otherwise, then you are literally advocating the legal doctrines of Nazi Germany, and should be ashamed of yourself.
Charles
Selecting specific choices from the alternatives separated by “or”
“whenever … any … predatory incursion shall be perpetrated… against the territory of the United States, by any foreign … government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile … government, … who shall be within the United States, and not actually naturalized, shall be liable to be apprehended… And the President of the United States … is hereby authorized … to direct … the manner and degree of the restraint to which they shall be subject”
A declaration of war is not required. The 9/11 attack was a predatory incursion on our territory, the Taliban ruled an enemy government, and al Marri was a soldier in the army of that enemy government and therefore subject to it. That is all that is required.
E.D.
Article 21 allows the Detaining Power to intern, swap (for their own soldiers), or release on Parole. That is the eventual disposition. However, an enemy soldier becomes a POW when he is captured, and has the legal status of POW and the US has the same powers and custody in the first hour after capture, when the POW is sitting on the ground disarmed behind our lines, guarded with his hands on his head. The eventual disposition may be worked out before the surrender and may never involve internment. Looking at the surrender document for General Burgoyne’s army captured at Saratoga, http://avalon.law.yale.edu/18th_century/burgoyne_gates.asp, the entire POW army was marched to Boston and then agreed to leave the US and not return (was released on their Parole). They still had the status of POWs even though none spent even a minute in any kind of detention. Therefore, the power of internment that you quote cannot logically be the defining element of the authority to capture enemy soldiers and subject them to US control.
Oh baloney — what about the language “of the hostile … government” do you not understand?
That’s the biggest defect of the AUMF — it literally specifies no one to whom it applies, it merely purports to give the President the unlawful authority to attack anyone he pleases at will. That’s not a law, it’s a crime.
I mean gee whiz Howard, you do know how to read English, correct??
The hysterical excess of the AUMF just absolutely amazes me. It’s one of the most disgraceful and ridiculous abominations ever enacted by Congress.
I do understand that you trust lying murderous fascists like George Bush and Dick Cheney to only kidnap, imprison, or murder people who actually deserve it, but I don’t — and there’s nothing in the US Constitution that would authorize such absolute powers. If the day ever came when you were arrested under such a preposterously unlawful theory you’d be singing a different tune.
Charles
You are not alone in questioning the validity of the blank check provided to the President by the AUMF. However, the same blank check was present in the Alien act. The State of Virginia resolution of Dec 24, 1798 denounces the Alien act because it “exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution;”
My point is simply that the issues raised in this and the previous two posts by Ms. Pearlstein about the AUMF and how it relates to cases like al Marri are not new issues. They have been around for 210 years. The Alien act, because it is still on the books, provides a separate, independent, and much more explicit basis to detain al Marri than the AUMF.
Al Marri had a hearing on the facts before the District Court, and would have had another but for the Supreme Court appeal. Therefore, the questions in the appeal dealt only with the law and not with evidence or facts. The Supreme Court would begin by assuming the allegations of the government for the purpose of rendering its decision.
On the law, the Alien act has been reviewed and upheld many times over its 200+ year history, though I believe that in every case there was an actual declaration of war by Congress against an explicit country. This may have been the first case in which the Presidential declaration part of the act was the sole basis for detention (along with the corresponding Presidential determination part of the AUMF).
Therefore, the decision to moot the al Marri appeal was a double blow to law professors everywhere. While there might be some contemporary interest in a Supreme Court review of interpretation of the AUMF, it seems unlikely that that resolution will be remembered two centuries from now. Had the Obama administration cited the Alien act along with the AUMF as a basis for the detention, then it would have been much more interesting from an academic point of view to see a modern argument over the one remaining component of the 18th Century “Alien and Sedition Laws” still on the books. The short sighted decision by the Obama administration to turn this into an ordinary criminal case robbed ConLaw students throughout the country of the opportunity to see one of the great old classic constitutional disputes from the early days of the Republic argued afresh before the highest court in the land.
Howard,
It provides no such thing: Al Marri is a citizen of Qatar, which is one of our allies even if we were at war with some “hostile foreign government”, which we are not. Al Qaeda isn’t a government, and our government has never proved that Al Marri is guilty of any crime — all they’ve done is detain him illegally without charge and subject him to torture in criminal violation of our own laws.
The silliest thing about that is that he almost certainly will be convicted of a crime regardless of his actual guilt — Jose Padilla was essentially convicted for thinking bad thoughts after being tortured to the point of severe mental illness. It seems clear to me that the government dropped the Al Marri case for the same reason they dropped the Padilla case: they knew they were going to lose, for the very good reason that their treatment of Padilla and Al Marri was strictly illegal. To hold otherwise would be a repudiation of ALL law.