'Nuff said

(Taking context-optional note of thought-provoking quotes)

The Administration needs – has long needed – two things: (1) A settled policy on these issues, and (2) An affirmative, consistent, aggressive message on counterterrorism security that is understood and embraced by the whole Administration team ...

-- Our colleague Deborah Pearlstein (right), in a must-read post on "The Politics of Gitmo," available at Opinio Juris (here) and Balkinization (here) blogs. To her list should be added a 3d long-needed essential: (3) A consistent messenger, some one voice who's in authority and in the know, and can go toe to toe with the nattering nabobs now naysaying every move the Administration makes in this area.

E.C., We Hardly Knew Ye

Yesterday the Obama Administration tossed overboard the "enemy combatant," a term that had become a definitional albatross many years before.
In their plainest sense, of course, the words "enemy combatant" refer to nothing more than the fighter on the other side of the frontline. To be an "E.C." is not in itself illegal; indeed, applicable law creates a space, called "armed conflict," within which much killing and violence is permitted. But post-9/11, an unfortunate phrase in an unfortunate U.S. Supreme Court decision, Quirin (1942), became the plank on which the Bush Administration had constructed a theory of plenary executive power to detain. Even as courts whittled that plank, they struggled with how to define "enemy combatant," as IntLawGrrl Beth Van Schaack detailed in a recent post.
And so yesterday the new administration abandoned E.C. in Respondents’ Memorandum Regarding the Government's Detention Authority Relative to Detainees Held at Guantanamo Bay, filed in consolidated detainee habeas cases pending in the U.S. District Court for the District of Columbia. It asserted:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks.
The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

This Department of Justice filing centered on the Authorization for the Use of Military Force, a September 18, 2001, joint congressional resolution that Justices in Hamdi v. Rumsfeld (2004) maintained is sufficient authority for detention. Justice Sandra Day O'Connor's opinion for the plurality in Hamdi did reason that the "law of war" supported such a conclusion. So it's scant surprise that yesterday's Memorandum referred to "the AUMF and analogous principles from the law of war," and continued:

Longstanding law-of-war principles recognize that the capture and detention of enemy forces “are ‘important incident[s] of war.’” Hamdi, 542 U.S. at 518 (quoting Ex Parte Quirin, 317 U.S. 1, 28 (1942)).

The filing is fraught with problems, among them the failures to point out in the citation that the quote above occurred in an opinion commanding just 4 votes, and to acknowledge anywhere in the Memorandum that the citation's initial source, Quirin, ought to give pause. (In Hamdi Justice Antonin Scalia, joined by Justice John Paul Stevens, wrote of Quirin: "The case was not this Court's finest hour.")
As I've explained at pages 2128-30 in my article entitled Abu Ghraib, O'Connor (left) claimed too much by linking this kind of detention to the international law of armed conflict. At best, the phrase she quotes constitutes a statement of an idiosyncratic American law of war (if that -- the fact that Quirin came to the Court post-trial has always made it a less than apt precedent for these detention-without-charge cases). The separate opinion of Justices David H. Souter and Ruth Bader Ginsburg in Hamdi accurately observed (citations omitted):

[T]he Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status. This treatment appears to be a violation of the Geneva Convention provision that even in cases of doubt, captives are entitled to be treated as prisoners of war "until such time as their status has been determined by a competent tribunal." The Government answers that the President's determination that Taliban detainees do not qualify as prisoners of war is conclusive as to Hamdi's status and removes any doubt that would trigger application of the Convention's tribunal requirement. But reliance on this categorical pronouncement to settle doubt is apparently at odds with the military regulation adopted to implement the Geneva Convention ... Thus, there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority.

Additionally, to cite just 2 additional concerns (our colleague Deborah Pearlstein cites others in her Opinio Juris post), yesterday's Memorandum:
► omits mention of the 4th Geneva Convention, pertaining to security-based detention of "civilians" (a term that many legal commentators contend encompasses virtually everyone who is not a "prisoner of war" protected by the 3d Geneva Convention); and
► says nothing about when this conflict might end, nor whether it contemplates the eventual postconflict repatriation of detainees on which the authority to detain during conflict depends.
DOJ is to be commended for getting rid of the meaningless "E.C." term. It is to be commended too for noting in this filing that international law both exists and matters. But it is a shame that DOJ's lawyers still haven't figured out how correctly to integrate applicable international law in these inherently transnational cases.

Scholars state detention changes

Seems everyone has notions these days about how to close the detention camp for terrorist suspects that the Bush Administration opened on January 11, 2002. Some are included in a report by a coalition of more than 20 organizations, entitled Liberty and Security: Recommendations for the Next Administration and Congress. IntLawGrrls’ own Fiona de Londras, in an excellent post, recently offered hers. I’ve my own, too, and will post them in due course. They begin with a pre-eminent concern, on which I posted more than a year ago. In closing Guantánamo as he has promised to do, the new President also must close “Guantánamo” – the abusive policies of detention, interrogation, and rendition now given that metaphoric label even if in point of fact they occur far away from the 45 square miles that comprise the U.S. naval base at Guantánamo Bay. (12/08 photo of Camp Justice, Guantánamo Bay, Cuba, by Diane Marie Amann)
Today’s post is intended to point readers to the Scholars’ Statement of Principles for the New President on U.S. Detention Policy: An Agenda for Change. Drafted by our colleague Catherine Powell, also author of a human rights Blueprint on which we’ve posted, and signed by more than 2 dozen other scholars, among them yours truly, IntLawGrrl Jenny Martinez, and our colleagues Fionnuala Ní Aoláin, Sarah H. Cleveland, Deborah Pearlstein, Hope Metcalf, Martha Minow, Judith Resnik, Margaret L. Satterthwaite, and Ruti Teitel. The Statement begins with an explication of how “the existing detention system,” -- “viewed as unprincipled, unreliable, and illegitimate” -- “undermines our national security.” It then sets forth 4 principles on which any new policy ought to be based:
► Observe the rule of law
► Liberty is the norm
► Individualized process
► Transparency
Then follows a host of recommendations for the new administration. As one would expect, it calls on the President to “Close Guantánamo” – to close it in the broader sense. Detainees who can be released are to be released; those should be prosecuted are to be transferred to the United States for prosecution before “established U.S. courts,” and not the military commissions. The Statement urges the Administration to attend to U.S. detention at other sites, “primarily in Iraq and Afghanistan.” It calls for an end to extraordinary rendition, and it admits no tolerance for abuse during detention or interrogation.
In short, the Statement's a document essential to thorough consideration of what to do to undo post-9/11 detention policies.

Closing Guantánamo 'Responsibly'

Unsurprisingly enough, Barack Obama has been named the Time Person of the Year for 2008. Interestingly, in the piece, President-elect Obama’s pledge to close Guantánamo Bay “in a responsible way” is cited (BBC Report). This raises the obvious, although interesting, question of what we mean by closing the detention centre responsibly.

It seems to me that there would be a number of elements to this:
(a) The charge and trial of those who can be subjected to criminal process;
(b) The release of those in relation to whom no charges are being brought and who are found not to pose a threat to the United States;
(c) The continued detention of those in relation to whom no charges are being brought but who are found to pose a plausible and serious threat to the United States.

None of these propositions is particularly uncontroversial and all require some reflection. Those who can be subjected to criminal process ought, of course, to be charged and tried. Whether they are tried in the Military Commissions or in the federal courts is one question that should, it seems to me, be determined on a case-by-case basis depending on the sensitivity of evidence and so on. This will require the invigoration of the military commission process in order to ensure equality of arms, due process and the institutionalisation in practice and in principle of the presumption of innocence. As Diane noted earlier this week, her trip to Guantánamo Bay to observe the trial of a number of accused there certainly suggests that substantial work remains to be done on this front.

As regards the release of those in relation to whom no charges are to be brought and who are deemed not to pose a threat to the United States the question of where these individuals are to be sent to is germane. There is a lot of chatter about the implications of the principle of non refoulement for these individuals and, indeed, for the US in deciding on where to send these individuals. This has resulted in approaches to various other governments to accept Guantánamo Bay detainees but, it seems to me, is characterised by a singular failure on the part of the US to contemplate bringing those individuals to the United States itself, with their families, and providing them with housing, compensation and opportunity. Why there is such aversion to this proposition is really quite beyond me, although I’d be interested to hear some views. I have argued previously, in an op-ed in the Irish Times, that providing for those who were unjustifiably detained in this way is a moral obligation on the part of the US and I have yet to be convinced that I am wrong.

The third proposition—the continued detention of those in relation to whom no charges are being brought but who are found to pose a plausible and serious threat to the United States—is perhaps the most controversial. As noted by Deborah Pearlstein over on Opinio Juris earlier this week, there is a growing consensus that this course of action may need to be taken. Some of us (myself and Claire Macken, for example) have previously made out the case that this is in fact compatible with international law which provides for ‘preventive detention’ provided it is accompanied by rigorous review processes. This position is somewhat unpopular, of course, but nevertheless faced with the prospect of individuals deemed through due process before a court to pose a serious threat to the United States, there does not appear to be any other responsible alternative available to the Obama administration, although I would be interested to hear any views that readers have on this matter.

Somalia airstrikes and the bounds of law

(Over at Slate's Convictions blog there's been a discussion in recent days about the propriety of U.S. airstrikes in Somalia. Phillip Carter started the conversation. Deborah Pearlstein responded and invited me to weigh in; my contribution is cross-posted here.)

Deborah, you're on to something here when you ask whether the words "necessary" and "appropriate" -- which qualify "use of force" in Congress' Authorization to Use Military Force of September 18, 2001 -- ought not to be examined more fully.

In Hamdan v. Rumsfeld (2006), a majority of the Supreme Court reaffirmed that in making reference to terms that are part and parcel of the international laws respecting the conduct of war -- to cite the Latin phrase still current, jus in bello -- Congress intended courts to look to that body of law in interpreting the statutory terms.

In considering whether the AUMF allows strikes against Somalia (map at left), the pertinent international laws concern not the conduct of war but the act of going to war; that is, jus ad bellum. Since the adoption of the U.N. Charter in 1945, that law renders a nation-state's use of force illegal, as a matter of international law, unless it is undertaken with the approval of the U.N. Security Council. The Charter permits only one exception, set forth in Article 51:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Presumably, the United States would argue that the Somalia strikes are permissible as exercises of "the inherent right of individual or collective self-defence." But that claim would not end the story. Do the words that follow -- "if an armed attack occurs" -- mean that the attack already must have occurred, and if so, do the attacks of September 11, 2001, attributed to an al Qaeda leader then in Afghanistan, not Somalia, so satisfy this requirement that the United States may go after a different leader in a different country, nearly 7 years after that other attack?

Let's assume, in the alternative, that the United States may attack before it is attacked, in order to defend itself before it is so disabled that it cannot engage in self-defense. This seems reasonable; after all, the law generally allows a person who has a gun pointed at her to shoot 1st, and not to wait for the assailant to shoot her before she may act to defend herself. Indeed, this reasoning is enshrined in international law as "anticipatory self-defense," a concept established more than 170 years ago during the Caroline incident between the United States and Britain.

Accepting "anticipatory self-defense" as law does not end the inquiry, however. The exchange of letters that ended the Caroline dispute indicate conditions upon this right -- conditions of "necessity" and "proportionality" that may be found in other doctrines relating to the use of force, such as the old doctrine of reprisal, as our colleague, Notre Dame Law Professor Mary Ellen O'Connell, explains here. Within those 2 terms may be found a rule that use of force in self-defense must be genuinely necessary, that the threat must be imminent, that there must be no opportunity for deliberation or negotiation, and further that the use of force must be proportionate to the threat, so that any permissible strike goes after only the person(s) or camp(s) that are a menace, and avoids as much as possible any damage to any innocent person or any uninvolved item of property.

The U.S. Congress ought to be presumed to understand these well-settled principles -- principles that derive from a dispute involving the United States itself. Thus its decision explicitly to require in the AUMF use of force be both "necessary" and "appropriate" -- words nearly identical to the international law doctrine's "necessity" and "proportionate" -- ought to be understood as limiting post-9/11 use of force to that which meets these requirements.

What's been published respecting the United States' sporadic strikes in Somalia raises questions whether the uses of force there exceed the narrow requirements of jus ad bellum and, therefore, of the AUMF.

Courage in our Convictions

Eagle-eyed blogreaders will notice that a couple of my recent posts (here, and today, here) have been cross-posted at Convictions, the just-launched legal blog at Slate, the online magazine owned by Washington Post.Newsweek Interactive Co. Convictions is self-described as

Slate's blogging destination for smart legal conversation and commentary. Law plays an increasingly important role in American public and private life, defining the myriad ways we interact, transact, relate and dispute with each other. We hope that, by sharing their own convictions on this blog, our contributors will help inform and shape the American conversation about law.

My co-contributors, I'm pleased to announce, include a number of women featured here in the course of this past year:

► IntLawGrrl guest/alumna Dawn Johnsen, Professor of Law and Ira C. Batman Faculty Fellow, Indiana University School of Law, Bloomington. Formerly Acting Assistant Attorney General for the Office of Legal Counsel at the U.S. Department of Justice, Dawn guest-posted last month on the question of investigating CIA waterboarding.

► Rosa Brooks, Professor of Law, Georgetown University Law Center, Washington, D.C., a number of whose Los Angeles Times columns we've featured.

► Dahlia Lithwick, Slate senior editor and legal writer, on whose work we've also posted.

Other women (we make up a third of the Convictions roster; not bad for the outside-the-pink-zone):

► Emily Bazelon, Slate senior editor, with a focus on health, law, and family.

► Judge Nancy Gertner, U.S. District Court, Boston, Massachusetts, who teaches at Yale Law School and practiced in Boston before joining the bench in 1993.

► Deborah Pearlstein, Visiting Scholar, Princeton University's Law and Public Affairs Program. She was the founding director of Human Rights First's Law and Security Program and a speechwriter in the White House of former U.S. President Bill Clinton.

For details on blog organizer Phillip Carter and our other distinguished male colleagues at Convictions, click here.