Which GTMO trial plan best serves U.S. legal tradition? U.S. legal tradition.

U.S. Senator Dianne Feinstein (D-Cal.) (right), Chairman of the Select Committee on Intelligence, has voiced her strong support for trying suspected terrorists in federal courts, before civilian judges sitting in courthouses located in the country's 50 states.
Feinstein's op-ed in yesterday's Los Angeles Times adopted an almost mocking tone, concluding its listing of "the flurry of guilty pleas this year by high-profile terror suspects," who "now face maximum terms of life in federal prison -- where there is no possibility of parole," with this:

So much for the claim that our federal courts aren't up to the job.

The op-ed went on to cite statistics demonstrating the efficiency of these courts, which have concluded cases involving more than 400 terrorism suspects in the last 8 years. That's quite in contrast with the military commissions at Guantánamo:

Since 9/11, only four Guantanamo detainees have been prosecuted in military commissions. Two of them received light sentences and are now free.

In the view of Feinstein, who 3 years ago advocated transferring all detainees stateside and trying them before "a regularly-constituted court," the "lopsided statistics" mean that, almost always, civilian federal courts are to be favored.
This new avowal of support for the decades-old American tradition with regard to terror cases is much needed.
Feinstein's op-ed alluded to an absence of current debate. Curious, given the publication of 2 Washington Post op-eds on the issue in the last 5 days. Both advocated positions to the right of Feinstein:
► On the same day Feinstein published in the Times, the man whom she helped to confirm as Attorney General in 2007, Michael B. Mukasey (left) (prior IntLawGrrls posts), came out hard against another proposal to try all GTMO suspects before Article III judges. (He himself once was a life-tenured judge in accordance with Article III of the U.S. Constitution, serving on the U.S. District Court for the Southern District of New York from 1987 to 2006). Mukasey contended that such trials would: not jibe with the constitutional requisite of a jury trial; violate "'the rule of law'" as codified in the Military Commissions Act of 2006; and impose on prosecutors undesirable evidentiary burdens.
Mukasey's op-ed seemed to accept that the GTMO commissions have had "mixed results," attributing this

to military courts' unfamiliarity with the conventions of conspiracy law, which appears to account, for example, for the finding that Osama bin Laden's driver was not substantially blameworthy even though he bore principal responsibility for bin Laden's physical safety and, like those who serve similiar functions for organized crime bosses, had to have been among his most trusted aides.

Not only does this assessment run counter to evidence at the GTMO trial of that driver, Salim Ahmed Hamdan, but it also fails to note that in view of 4 Justices of the U.S. Supreme Court in Hamdan v. Rumsfeld (2006), conspiracy is not a lawful charge. An equal number of Justices disagreed. Justice Anthony M. Kennedy reserved decision, leaving the question wide open as a matter of U.S. law (far less so as a matter of the international law of war, whose tradition does not recognize the charge).
Mukasey concluded by extolling military commissions proceedings at Guantánamo as "remote, secure, and humane," with security "unparalleled anywhere on the mainland," and an "elaborate press gallery." (My own December 2008 observations on same were rather different; see here and p. 9 here.)
► What provoked Mukasey's ire was not a call to close GTMO, but rather a bid to bestow on that Cuba-based naval base its own federal court.
The title of last Friday's Post op-ed said it all: Try Sept. 11 suspects in the U.S. District Court for Guantanamo. Each of its 2 authors is a former judge: Eugene R. Sullivan (near right), Chief Judge of the U.S. Court of Appeals for the Armed Forces, an Article I court (from 1990 to 1995), and Louis J. Freeh (far right), like Mukasey once an Article III judge in Manhattan and, more recently, Director of the Federal Bureau of Investigation (1993-2001).
The authors of this op-ed applauded the Obama Administration decision to seek a federal district court trial for Khalid Sheikh Mohammed and 4 other Guantánamo detainees charged in connection with the attacks of September 11, 2001. But they contended that holding the trials Stateside "is no longer an option for a host of political and practical reasons," adding that the GTMO commissions "are fatally flawed." Hence, their idea: cast a statutory net to include the base within a jurisdictional map of Manhattan, traditional home of S.D.N.Y., just as farflung sites like Wake Island are deemed part of the District of Hawaii. Or create a new D.GTMO. Sullivan and Freeh foresaw "immense benefit" from this hybrid.
The best choice?
None of the above.
► Mukasey simply seeks More Of The Same. More confusion about critical issues like availability vel non of the death penalty, still, as Attorney General Eric Holder recognized, a question mark in any military commission proceeding against KSM et al. More escalation in cost, more inconvenience to counsel, more keeping of the public from full access to the proceedings. More boycotts like that just announced by Omar Khadr. More litigation of every aspect of every proceeding.
Mukasey's mind-boggling idea for yet another newfangled court, "perhaps presided over by Article III judges but with juries drawn from the military," surely would set off even More.
► Sullivan and Freeh would supplant one practical/political challenge with another that has little to commend it.
Put to one side the oddity of Congress sending appeals from GTMO trials to the federal appellate court in New York even though appeals from GTMO habeas now go to its counterpart in Washington. Put aside too that D.GTMO would be no less costly nor inconvenient than the current system. (The authors envisioned "impaneling an anonymous jury in Manhattan and transporting the jurors to Guantanamo Bay for service.")
Consider only the import of such an innovation.
For the 1st time in U.S. history, an Article III court would have its permanent seat in an armed camp. Public oversight would be subject to Defense Department edict -- as, controversially, it is now. Not just jurors but all participants -- even judges -- would effectively be sequestered. The risk is evident that such circumstances would so tip the balance as to preclude fully fair trials. And given the ostensible justification -- stated fears of trying these particular defendants on American soil -- the changes would undermine the authority and legitimacy of all federal courts in the United States.
► Feinstein's op-ed demonstrated that those courts well deserve the authority and legitimacy they have earned over the course of 2 American centuries. Yet it also falls short, for it allows that some detainees yet might be tried before military commissions. Leaving the GTMO courtroom door even a bit ajar creates a foothold for proposals like those in the other op-eds.
Meanwhile, persons captured as many as 8 years ago remain in an offshore site of U.S. military power, uncharged and untried, the crimes attributed to them unresolved.
That result is not fair. Not fair to detainees, not fair to victims and their loved ones, not fair to the public at large.
The time is well passed to treat the terrorism suspects of today by the same processes that the likes of Ramzi Yousef, Omar Abdel Rahman, and Manuel Noriega have faced.
It is time to return without exception to American legal tradition.

News from Guantánamo, more on detention

This has been a busy period for news related to Guantánamo and other detention sites.
► Yesterday Army Col. Stephen Henley, a military judge, granted a delay of the trial by military commission of 5 detainees charged in the terrorist attacks of September 11, 2001. His decision came after the passing on Thursday of the deadline of the second 120-day postponement of the military commissions, requested by the Obama administration in May of this year. The administration had made its first request for a 120-day delay in January (along with announcing the closure of Guantánamo, on which we posted here and here), when President Obama took office. Rather than resume operations in full, however, the administration announced this past Wednesday that it would request a third delay -- this time for 60 days -- in the 10 pending military commissions cases, which include the so-called "high-value" 9/11 detainees.
The administration continues to maintain the position that it will prosecute detainees for war crimes under the military commissions originally put in place by President George W. Bush and then passed by Congress in the Military Commissions Act of 2006. The Obama administration says, however, that it intends to revamp the commissions, a task for which it plans to enlist the help of Congress.
► In one of dozens of habeas cases before the D.C. district courts, Judge Colleen Kollar-Kotelly (left) recently ordered the release of Fouad al-Rabiah. This brought the tally in the habeas cases to 30 habeas petitions granted versus 7 petitions denied. Though the full opinion is sealed (the unclassified version to be released soon), this IntLawGrrl learned from an inside source that the government's case relied almost entirely on coerced confessions of al-Rabiah, which apparently drew ire from the judge: She questioned why the new administration was relying on statements obtained through torture and abuse.
Good question.
► In the habeas case involving Bagram detainees, Maqaleh v. Obama, the government filed its brief with the D.C. Circuit Court. Recall that on April 2, 2009, D.C. District Court Judge John D. Bates (right, a Bush nominee) ruled that the three individuals who had been "captured" outside of Afghanistan and brought to the U.S. detention center at Bagram were entitled to file habeas petitions based on the Supreme Court's guidelines in Boumediene v. Bush (2008) (prior posts).
The government appealed that ruling, raising the spectre of Johnson v. Eisentrager (1950) for the hundredth time since 2002, and arguing that there was already a military administrative-type process in place to review whether an individual should be detained. (The Department of Defense review process is in the addendum at the end of the brief). These procedures look a lot like the Combat Status Review Tribunals and the Administrative Review Boards used at Guantánamo, which the Boumediene court concluded were not an adequate substitute for habeas.
► Last but not least in detention-related news, the United States closed Camp Bucca, the largest U.S.-run detention center in Iraq, moving the detainees to other camps and back to the custody of Iraq, all in anticipation of its plan under the new U.S.-Iraq Agreement (prior post) to withdraw from Iraq.

On liberty & security, at Gitmo & beyond

Two days after his inauguration, President Barack Obama issued four executive orders directly relating to Guantánamo, the individuals detained there, and the use of interrogation of individuals in the custody of U.S. officials. As I've posted, Obama’s orders:
► Promised to close Guantánamo within a year, signaling the end of an infamous prison that had become an international symbol for lawlessness and for which the Bush Administration had received much criticism; and
► Established a special interagency task force to "identify lawful options for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations."
The recommendations of the Task Force were due yesterday. But Obama officials announced that they would not meet the deadline and issued a preliminary report instead.
The preliminary report indicates that Obama may not be as inclined to reverse Bush’s "war on terror" policies as completely as he'd indicated during his campaign. The report calls military commissions an appropriate forum for trying some of the Guantánamo detainees -- as well as others who may at some future time be picked up “on the battlefield” on suspicion that they'd violated the laws of war. The report also indicates that the current commissions, established under the Military Commissions Act of 2006, would need some serious revamping, so that, for instance
► The use of statements obtained through torture, cruel, inhuman and degrading treatment would be prohibited;
► The use of hearsay would be subject to further regulation;
► The rules regarding the use of classified evidence would be changed to resemble federal law more closely; and
► All charges levied by the military commissions charges would be cognizable under the laws of war.
The preliminary report does indicate a preference for trying on federal criminal law charges, in federal criminal courts, "where feasible." But the continued use of military commissions, coupled with the possibility of preventive detention for some individuals, as set out in another one of Obama’s executive orders for the disposition of Guantánamo detainees, imply that the Obama Administration may have some difficulty establishing a national security policy that keeps intact cherished ideals of civil liberties and rights for all.

(photo above of Camp Justice, Guantánamo (c) 2008 Diane Marie Amann)

The Curious Case of Mohammed Jawad

Mohammed Jawad (right) apparently travelled from his native Pakistan to Afghanistan to take a job clearing mines. On or about December 17, 2002, when he was somewhere between 12 and 16 years old (prior post), Jawad was captured fleeing the scene of a grenade attack. He was accused of tossing a grenade into the window of a jeep carrying two U.S. soldiers, Sergeants First Class Michael Lyons and Christopher Martin, and their interpreter, Assadullah Khan Omerk; the three were wounded in the attack.

Upon capture, Jawad was first taken to Bagram Air Base in Afghanistan and then to the Naval Base at Guantánamo. A victim of the so-called frequent flier program, which involved waking detainees up every couple of hours to change cells, Jawad has apparently tried to kill himself while in detention by slamming his head repeatedly against a wall. His Combatant Status Review Tribunal and Annual Review Board proceedings, which confirm his status as an enemy combatant, are available here.

Jawad apparently confessed to the crime at one point, but later recanted, arguing that his confession was the result of torture. The military commission set to prosecute him has ruled it will not look at evidence produced during particular interrogations; the U.S. government recently indicated it would not seek to invoke such evidence in the habeas corpus action proceeding in federal court. (See here for the latest development in this admissibility-of-evidence issue.)

On October 11, 2007, Jawad was charged before a military commission with three counts of attempted “murder in violation of the law of war” (in violation of 10 U.S.C. §§ 950t (defining attempts) and 950v(b)(15)) and three counts of “intentionally causing serious bodily harm” (in violation of 10 U.S.C. §950v(b)(13)). “Murder in violation of the law of war” is defined by the Military Commission Act of 2006 as

(15) MURDER IN VIOLATION OF THE LAW OF WAR.—Any person subject to this chapter who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct.

The crime of intentionally causing serious bodily injury is formulated as follows:

(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—

(A) OFFENSE.— Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(B) SERIOUS BODILY INJURY DEFINED.—In this paragraph, the term
‘serious bodily injury’ means bodily injury which involves—

(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

His charge sheet is available here (and see prior post).

Most military commission proceedings have been suspended pending a final decision from the Obama Administration about whether to try to salvage the Bush Administration’s military commissions or transfer all prosecutable detainees to federal criminal custody. Even if the Obama Administration does fully revive the military commission scheme in some form or another, a question remains as to the legality of the charges against Jawad. Hamdan v. Rumsfeld (2006) made clear that military commissions may only assert jurisdiction over violations of the law of war. This leads to the inescapable question of whether the particular charges leveled against Jawad are in fact violations of the law of war.

The 1949 Geneva Conventions and their 1977 Protocols, the latter of which the U.S. has not ratified, set forth a number of war crimes that are prosecutable when they are committed against so-called “protected persons.” Persons protected by the Conventions are civilians and combatants who are hors de combat [outside of combat] by virtue of illness, injury, capture, or surrender. These “grave breaches” of the treaties include:
► wilful killing,
► torture or inhuman treatment, including biological experiments,
► wilfully causing great suffering or serious injury to body or health,
► unlawful deportation or transfer or unlawful confinement of a civilian,
► compelling a protected person to serve in the forces of a hostile Power,
► wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention,
► taking of civilian hostages, and
► extensive destruction and appropriation of civilian property, not justified by military necessity and carried out unlawfully and wantonly.

Combatants who are active and thus not hors de combat do not constitute protected persons; accordingly, they cannot be the victims of grave breaches. Additional war crimes exist in customary international law and trace their provenance to the Hague tradition of international humanitarian law concerned with regulating means and methods of warfare. Certain violations of the regulations appended to the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land — including killing or wounding treacherously, employing weapons that cause unnecessary suffering, bombarding undefended towns, and pillage — are, for example, prosecutable as war crimes before federal courts pursuant to the War Crimes Act. By now, most Geneva and Hague crimes have been the subject of war crimes trials before the ad hoc criminal tribunals.

Attacking a privileged combatant (or “lawful combatant” in the lexicon of the Military Commissions Act) is not, in and of itself, a war crime so long as proportionate force and permissible weapons are used (i.e., weapons not intended to cause unnecessary suffering such as asphyxiating gases). Indeed, attacks between privileged combatants are the very essence of warfare. An attack on a privileged combatant is not a war crime even if perpetrated by an unprivileged combatant, such as Jawad is alleged to be. To be sure, there are consequences within the law of war when unprivileged combatants directly participate in hostilities. (See Article 51(3) of Protocol I and Article 13(3) of Protocol II — protecting civilians from attack unless and for such time as they take a direct part in hostilities). In particular, when unprivileged combatants directly participate in hostilities without the privilege of doing so, they no longer benefit from civilian immunity and are subject to attack. Such individuals can also be captured and prosecuted for violations of the operative domestic law (such as murder, assault, battery, reckless endangerment, and mayhem). Or, they can be prosecuted under international law for using unlawful weaponry. They may also be guilty of terrorism, although even this is contested.

But unprivileged combatants commit no known war crime by directly participating in hostilities without the privilege of doing so simpliciter. In other words, Sergeants Lyons and Martin would have been entitled to use deadly force against Jawad had they seen him prior to his alleged attack. The attack itself, however, does not constitute a war crime. That said, it is, undoubtedly, a violation of Afghani law and could be prosecuted as such. (It would be a violation of U.S. law only if that law applied extraterritorially).

The only crime enumerated in the Military Commissions Act that might be applicable here, although it was not charged, is perfidy (which is akin to the Hague Convention crime of killing or wounding treacherously). The MCA defines the crime of perfidy as follows:

(17) USING TREACHERY OR PERFIDY.—Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled
to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

The essence of perfidy is giving the impression of being a protected person (i.e., a civilian in Jawad’s case) in order to take advantage of civilian immunity while behaving like a combatant. It is not clear why the military commission prosecutors have not been charging perfidy in more unprivileged combatant cases other than because it does not carry the moral stigma, rhetorical punch, or basic name recognition of an attempted murder charge. They would do well to do so: such a charge stands on firmer legal ground than the dubious war crimes of the murder of or injury to a lawful combatant.
For more on the Jawad case, see here.

Amending the Amendments: The War Crimes Act of 1996

The Obama administration is receiving no end of advice about how to undo the more problematic policies of the Bush Administration’s Global War on Terror. One item in need of attention is the War Crimes Act of 1996 (“WCA”), 18 U.S.C. § 2441, which was passed with overwhelming congressional support during the Clinton Administration. In subsequently enacting the Military Commission Act of 2006 (“MCA”) during the Bush Administration, however, Congress amended the WCA in significant yet subtle ways that brought the United States out of compliance with its treaty commitments under the 1949 Geneva Conventions and radically reduced the United States’ ability to prosecute war criminals. The Obama Administration should sponsor legislation that would undo many of the changes wrought by the MCA. In addition, the Obama Administration should more fully implement the principle of universal jurisdiction over war crimes as called for by the now universal Geneva Conventions.
The WCA originally read as follows:

(a) Offense. Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances. The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition. As used in this section the term “war crime” means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

This original legislation was notable in several respects. Of most relevance here:
First: It incorporated by reference the ”grave breaches” penal regimes of the 1949 Geneva Conventions (see Articles 130 of GC III and 147 of GC IV). Grave breaches of the Conventions are those violations that give rise to individual criminal responsibility when committed against a protected person (i.e., a civilian or a prisoner of war) within the context of an international armed conflict. These include:

• wilful killing,
• torture or inhuman treatment, including biological experiments,
• wilfully causing great suffering or serious injury to body or health,
• unlawful deportation or transfer or unlawful confinement of a civilian,
• compelling a protected person to serve in the forces of a hostile Power, or
• wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention,
• taking of civilian hostages and extensive destruction and appropriation of civilian property, not justified by military necessity and carried out unlawfully and wantonly.

Second: The WCA criminalized certain violations—including killing or wounding treacherously, employing weapons that cause unnecessary suffering, bombarding undefended towns, and pillage—of the Fourth Hague Convention of 1907, which applies to international armed conflicts and does not by its own terms contain a penal regime.
Third: It also criminalized violations of common Article 3 (“CA 3”), which is applicable in non-international armed conflicts. CA 3 provides a set of basic prohibitions for such conflicts:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Like the 1907 Hague Convention, common Article 3 does not contain a penal regime; however, the international tribunals have confirmed that violations of these provisions give rise to individual criminal responsibility as a matter of customary international law. These rulings were ratified by states in the form of Article 8 of the ICC Statute, which identifies these violations as within the subject matter jurisdiction of the ICC.
Fourth: While the WCA went farther than existing treaty obligations by penalizing violations of the 1907 Hague Convention and CA3, it did not fully implement the grave breaches regimes as set forth in Articles 129 of GC III and 146 of CH IV. Those provisions oblige all signatories to enact legislation enabling them to prosecute persons accused of committing grave breaches regardless of the perpetrator's nationality, the nationality of the victim, or the place of commission:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

By contrast, the WCA applies only to U.S. citizens as perpetrators or victims. To be sure, the Geneva Conventions also allow state parties to extradite offenders found in their midst:

It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Read together, however, these provisions suggest that state parties must have the ability to prosecute pursuant to universal jurisdiction in the event that there is no extradition option.
Fifth: The WCA contained placeholders at (c)(1) and (c)(3) for the Protocols to the Geneva Conventions: Protocol I—which elaborates upon the category of international armed conflicts and the rules governing the means and methods of warfare, relaxes some of the requirements for privileged combatant status, and contains an expanded list of grave breaches, and Protocol II—which develops and supplements CA3 in non-international armed conflicts, but does not contain a penal regime. To date, the U.S. has ratified neither of these protocols.
So, in some respects, the original WCA was consistent with U.S. treaty obligations; in other ways, it went farther than those obligations; and—with respect to the bases for exercising jurisdiction—in still other ways it did not fully implement those obligations.
Congress drafted the MCA in the wake of the Supreme Court’s decision in Hamdan v. Rumsfeld, which held that common Article 3 at a minimum applied to the “Global War on Terrorism” being waged against the Taliban and Al Qaeda. The MCA left intact sub-sections (1), (2), and (4) penalizing the grave breaches of the Conventions, and certain provisions of the Hague and Mines Conventions. It significantly altered, however, the ability of the United States to prosecute violations of CA3—the only provision applicable during non-international armed conflicts, such as the Supreme Court determined existed in our conflict against the Taliban and Al Qaeda.
First: The MCA bifurcated CA3's prohibitions into two-tiers and rendered only a subset prosecutable under the WCA:

(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character…

The concept of “grave breaches” of CA3 has no currency in international humanitarian law or the treaty; all violations of CA3 are equally prohibited.
Second: In designating only certain violations of CA3 as “grave breaches” in sub-section (d), the MCA eliminated the ability of the United States to prosecute two violations of CA3:

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by civilized peoples.

Thus, conduct that does not rise to the level of cruel treatment or torture but is nonetheless degrading, humiliating, or an outrage upon dignity no longer constitutes a war crime, even though such conduct is equally prohibited by CA3. Likewise, violations of core due process rights are no longer criminal.
The following violation of CA3 remained prosecutable under the WCA: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation, maiming, intentionally causing serious bodily injury, and hostage taking. In addition, and on a positive note, the new legislation specifically identifies rape and other forms of sexual assault or abuse as “grave breaches” of CA3 so that they can be prosecuted directly rather than under the rubrics of torture, cruel treatment, or degrading treatment.
Third: Besides the specific intent elements applicable to the intent to inflict the pain or suffering and the intent to obtain a confession or information, the MCA defined the conduct that constitutes “cruel treatment” virtually identically to that which constitutes “torture,” thus shortening the spectrum of mistreatment that may be prosecuted in U.S. courts even further.

(A) Torture. The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

(B) Cruel or inhuman treatment. The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.

Sub-section (B) does add the modifier "or severe," perhaps suggesting that conduct that does not rise to the level of torture might be prosecutable as cruel treatment. The term “severe mental pain or suffering,” however, is later defined at sub-sections (2)(A) and (2)(E) with reference to 18 U.S.C. § 2340, the U.S. torture statute, confirming that only psychological abuse that rises to the level of torture constitutes a war crime when committed in a non-international armed conflict. Likewise, "serious physical pain or suffering" is defined at sub-section (2)(D) with reference to conduct that would normally be considered to rise to the level of torture:

(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions,
or bruises); or
(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty...

Both torture and cruel treatment require that the victim be in the perpetrator's custody at the time of the abuse, thus seeming to eliminate the possibility of prosecuting someone for rendering, or conspiring to render, an individual somewhere else where the person will be tortured.
Fifth: The MCA removed the placeholder reference to Protocol II in (c) and also added language that crimes under that provision could only be prosecuted if they were committed not only "in the context of" a non-international armed conflict, but also "in association with" such a conflict. This language—which seems to come from the ICC's Elements of Crimes—presumably tightens the nexus that must be shown between the acts in question and the prevailing armed conflict.
In considering amendments to the WCA, the Obama Administration should focus on the following, at a minimum:

1. Render all violations of CA3 equally prosecutable;
2. Include clarificatory language that rape and other acts of sexual assault or violence can constitute torture or cruel treatment and thus may be prosecutable under the provision incorporating CA3 into the WCA;
3. Re-define “cruel treatment” so that it reaches more conduct that does not rise to the level of torture to lengthen the spectrum of prosecutable conduct as appropriate.
4. Ensure that all definitions of constitutive war crimes are consistent with international criminal law definitions.

Enemy Combatant: A Genealogy

As we’ve discussed, the term “enemy combatant”—whether lawful or unlawful—is not a term of art in international humanitarian law (IHL). Until it was recently retired by the Obama Administration, however, the term had been a key feature of the “War on Terror" lexicon. With the expert assistance of my ace research assistant, Rockford Hearn (right), I have been constructing a genealogy of the term in light of its linguistic demise. Since its inception, the definition of "enemy combatant" has seen significant evolution with respect to its two constitutive parts:

1. enemy &
2. combatant.

1. Ex Parte Quirin

Although of modern relevance, the term traces its roots to the U.S. Supreme Court’s opinion in the infamous WWII German saboteurs case. Ex Parte Quirin, 317 U.S. 1 (1942). This case concerned eight individuals, one a citizen of the U.S., who exited German subs and came ashore in civilian clothes intent on engaging in acts of sabotage. (The case's namesake is at left). On their petition for a writ of habeas corpus, the Supreme Court identified a category of belligerent who was not entitled to prisoner of war (POW) treatment:

[t]he spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeing to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property [would exemplify] belligerents who are generally deemed not to be entitled to the status of prisoner of war, but to be offenders against the law of war subject to trial and punishment by military tribunals (p. 31).

After the FBI caught the saboteurs, the president issued a proclamation stating:

All persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals (pp. 22-23).

The men were charged and transferred into military custody for prosecution before a military commission. In denying their petition for a writ of habeas corpus, the Supreme Court distinguished between lawful and unlawful combatants, noting that while lawful combatants are to be classified as POWs, and are subject to capture and detention, unlawful combatants are additionally “subject to trial and punishment by military tribunals for acts which render their belligerency unlawful” (p. 31). The Court used several monikers in referring to the petitioners (including “unlawful combatants,” “enemy belligerents,” and “enemy combatants”), implying that it was not employing these terms in any technical sense. Indeed, the Court cautioned that

[w]e have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war (pp. 45-46).

The petitioners were executed after the decision was announced but before the Court released its opinion.

2. 2001 Military Order

Fast forward to the immediate aftermath of the attacks of September 11th and President Bush’s Military Order of November 13, 2001. This Order authorized the detention of any non-citizen whom the President determined there was reason to believe:

1. is or was a member of the organization known as al Qaeda;
2. has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
3. has knowingly harbored one or more individuals described [elsewhere in] this order.

This definition focuses on three categories of person:

• members of al Qaida,
• those who committed acts of international terrorism aimed at, or adversely effecting, the United States (including by aiding, abetting, conspiring, or preparing), and
• those who harbored individuals so engaged.

This definition is notable in that it does not presume the existence of any armed conflict or act of belligerency; rather, it is premised on the commission of acts of international terrorism or al Qaida (as opposed to Taliban) membership. The definition reveals two alternative criteria: membership and participation in acts of terrorism (including harboring).

3. Hamdi v. Rumsfeld

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court again had occasion to consider this concept. In a June 28, 2004 decision, a plurality of the Court adopted for the purpose of the case the definition suggested by the Bush Administration:

An enemy combatant is an individual who was
1. Part of or supporting forces hostile to the U.S. or coalition partners in Afghanistan and

2. Who engaged in an armed conflict against the U.S. there (p. 516).

Recognizing, however, that the proper scope of the term “enemy combatant” was unsettled, the Court left the task of delineating its “permissible bounds” to the lower courts (p. 522).

The working definition in Hamdi first introduced the idea that individuals who were not part of a fighting force or organization may be considered enemy combatants if they nonetheless “supported” the group. It also suggested that the individual must “engage[] in armed conflict” against the United States in Afghanistan. This would imply that someone who was a part of the Taliban but left that group prior to the United States invasion in October 2001 would not qualify as an enemy combatant, because that person was never opposed to the U.S. or its coalition partners. This definition also is in the conjunctive: both membership and participation (this time in armed conflict rather than terrorism) are required.

4. Combatant Status Review Tribunal Definition

A mere two weeks later, the U.S. Navy promulgated a new enemy combatant definition in a July 7, 2004 memorandum to then Deputy Secretary of Defense Paul Wolfowitz (Memorandum from Deputy Sec’y of Defense Paul Wolfowitz to the Sec’y of the Navy, Order Establishing Combatant Status Review Tribunal (July 7, 2004)). The Memorandum provided that the term "enemy combatant" would henceforth mean:

1. an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the U.S. or its coalition partners.
2. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

This definition was subsequently incorporated into the rules utilized by the Combatant Status Review Tribunals (CSRTs) to determine whether individuals on Guantánamo were properly designated and detainable. The Navy/CSRT definition introduced the idea of “associated forces” beyond the Taliban or al Qaida. It also maintained the support element. The definition hinges more directly on mere membership and implies that even individuals who have not committed a belligerent act or directly supported hostilities would qualify for detention.

5. Military Commission Act (defining "Lawful" and "Unlawful" Enemy Combatants)

The Military Commission Act of 2006 (promulgated October 17, 2006) adapted this definition somewhat to identify a category of unlawful enemy combatants who would fall within military commission jurisdiction. By contrast, the Act provided that individuals who were deemed to be lawful enemy combatants could not be tried by military commission.

1. UNLAWFUL ENEMY COMBATANT
A. The term ‘unlawful enemy combatant’ means:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. ...

2. LAWFUL ENEMY COMBATANT
A. The term ‘lawful enemy combatant’ means a person who is
(i) a member of the regular forces of a State party engaged in hostilities against the United States;
(ii) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms
openly, and abide by the law of war; or
(iii) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States (§ 948a).

A lawful enemy combatant is defined by way of membership criteria in accordance with the provisions set forth for prisoner-of-war classification scheme in Article 4 of the Third Geneva Convention. An unlawful enemy combatant, by contrast, is defined in terms of conduct—the participation in hostilities or the support of hostilities against the U.S.

In Boumediene v. Bush, 128 S.Ct. 2229 (decided June 12, 2008), the Court declined to address “[t]he extent of the showing required of the Government in these cases” (p. 2271). It noted: “[i]t bears repeating that our opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined” (p. 2277).

6. Al Marri v. Pucciarelli

The 4th Circuit in Al Marri v. Pucciarelli, 534 F. 3d 213 (decided July 15, 2008) also took a stab at defining the concept. Al Marri (petitioner at right), however, produced a fractured opinion that did little to clarify the definition. Judge Motz (left) joined by three colleagues relied on Hamdi and law of armed conflict principles to focus on the affiliation factor:

Enemy combatant status rests on an individual’s affiliation during wartime with the ‘military arm of the enemy government’ (p. 230).


According to this definition, al-Marri did not qualify as an enemy combatant because he did not affiliate ‘”with the armed forces of an enemy nation” (p. 230). Motz concluded that an individual may not be classified as an enemy combatant merely for engaging in criminal conduct.

By contrast, Judge Wilkinson (right), concurring in part and dissenting in part, adopted a different definition and reasoned that an enemy combatant is:

1. A member of
2. An organization or nation against whom Congress has declared war or authorized the use of military force, who
3. Knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of an enemy nation or organization (p. 322).

In support of this definition, Wilkinson argued that the conception of “enemy” is no longer based on an individual’s nationality, because stateless actors (e.g., terrorist organizations) now pose the most compelling military threat to the U.S. In his estimation, membership in such an organization is functionally equivalent to traditional criteria of enemy status—an individual’s residency in, or citizenship of, an enemy nation. Indicia of membership may include:

• self-identification with the organization through verbal or written statements;
• participation in the group's hierarchy or command structure; or
• knowingly taking overt steps to aid or participate in the organization's activities.

In Wilkinson's view, these indicia distinguish those who are the enemy from those who merely sympathize with the enemy (p. 323).

The third criterion addresses who constitutes a “combatant,” distinguishing those with military aims from those who do not present a threat to opposing forces. Those who use military-like force against American soldiers or civilians obviously qualify as combatants under this formulation. Similarly, members of an “enemy sleeper terrorist cell” who have taken steps, even if preliminary in nature, toward a destructive act may also be considered combatants. Conversely, members of the enemy organization who do not intend hostile acts (such as an al Qaida physician) are non-combatants and are not subject to military jurisdiction. (More material on al-Marri is available here, the Brennan Center for Justice at NYU Law School.)

7. District Courts

Many district courts hearing habeas petitions in the wake of the Supreme Court’s decision in Boumediene adopted the Wolfowitz definition. On remand in that case, Boumediene v. Bush, 583 F.Supp.2d 133, 135 (D.D.C. Oct. 27, 2008), Judge Leon adopted the CSRT definition. Other courts called for additional briefing on this question. For a discussion of these cases, see here.

Eventually, as IntLawGrrls founder Diane Marie Amann has posted, the Obama administration abandoned the term "enemy combatant," but not the idea that certain individuals may be detained absent proof of the commission of any prosecutable crime. The new operative standard for detention contains a minor change to the standard employed in the CSRTs by raising the threshold of support to “substantial.”

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.

The brief made clear that this standard will be subject to further refinement:

the contours of the ‘substantial support’ and ‘associated forces’ bases of detention will need to be further developed in their application to concrete facts in individual cases.

Using basic principles of statutory interpretation, the definition at present seems to encompass several distinct categories of individual who did certain things, were members of certain groups, or substantially supported these groups. These are:

1. persons who were involved in (along a spectrum of planning, authorizing, committing, or aiding) the attacks of 9/11;
2. persons who harbored individuals “responsible” for the 9/11 attacks;
3. persons who were part of Taliban or al Qaida forces;
4. persons who were part of associated forces that are engaged in hostilities against the U.S. or its coalition partners;
5. persons who substantially supported Taliban or al Qaida forces;
6. persons who substantially supported associated forces that are engaged in hostilities against the U.S. or its coalition partners;
7. persons who committed a belligerent act in aid of “such enemy forces” (presumably the Taliban, al Qaida or “associated forces”);
8. persons who “directly supported” hostilities in aid of “such enemy forces” (presumably the Taliban, al Qaida or “associated forces”).

It is not entirely clear to what extent the addition of the “substantial” modifier might have generated different outcomes in the habeas cases already decided had the new Obama standard been operative. Certainly cases premised on guest house stays or the provision of non-combat support (such as cooking) might have come out differently. It remains to be seen to what extent the courts are willing to accept this new standard or even whether the Obama administration will continue to advance it in the face of significant criticism that it does not go far enough toward bringing the U.S. detention practice into line with international law.

Long Live Habeas

Just a quick overview of the Supreme Court’s recent and remarkable ruling in Boumediene v. Bush (consolidated with Al-Odah v. United States). No doubt others on this list will have thoughts about the case's implications going forward.
In both cases, petitioners are detained on Guantánamo (left and below right--photo credit). None is a citizen of a nation at war with the United States. Some were detained on the battlefield in Afghanistan (the Al Odah petitioners), whereas others were detained far from the battlefield (the Boumediene petitioners). Each petitioner received a hearing before a Combatant Status Review Tribunal (CSRT). (The Department of Defense established the CSRTs in response to Hamdi v. Rumsfeld to determine whether the detained individuals were indeed “enemy combatants.”) In each case, the CSRT determined that the petitioners were enemy combatants. Each petitioner then sought a writ of habeas corpus before the District Court for the District of Columbia.
On appeal, the Circuit Court denied them the right to seek the writ, citing the 2005 Detainee Treatment Act (§1005) and the 2006 Military Commission Act (§7). These twin statutes provide the legislative backdrop for the present challenges. Both statutes sought to strip federal courts of habeas jurisdiction over cases brought by Guantánamo detainees. (In Hamdan v. Rumsfeld, the Supreme Court ruled that the DTA applied only to cases that had not yet been filed, so Congress made the MCA expressly retroactive to cover then-pending cases).
In light of this background, the cases presented two over-arching questions:
► 1) Are petitioners detained on Guantánamo entitled to seek the Constitutionally-grounded writ of habeas corpus (and, derivatively, to invoke the protections of the Suspension Clause)?
That clause (Art. I, §9, cl. 2) states:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

► 2) If so, is the limited review of the Combatant Status Review Tribunal proceedings before the D.C. Circuit an adequate substitute to habeas review?
In order to answer the first question, the Court undertook a detailed historical review of the history of habeas corpus that demonstrates that the Founders embraced the writ—and made it exceedingly difficult to suspend—as a tool to protect citizens from arbitrary detention. This exegesis revealed no clear answer to the precise question presented in these cases—“whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection” (p. 15). The Court thus conceded that a strictly originalist approach yields a situation of non liquet (“it is not clear”).
Drawing on its extraterritoriality jurisprudence, the Court ruled that three factors governed the question of the extraterritorial reach of the Suspension Clause:

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

Applying this tripartite framework, the Court determined that:
► 1) Petitioners are enemy aliens who have received only “limited” process through the CSRT hearings that “fall[s] well short” of the procedural protections and adversarial mechanisms that would eliminate the need for habeas corpus review (p. 37). The Court focused here primarily on the detainees’ lack of a true advocate during the CSRT process, the inability to fully rebut the government’s evidence, the presumption of validity given to the government’s evidence, and the lack of a complete appellate review.
► 2) Petitioners were apprehended and are detained outside of the United States, but they are now on territory over which the U.S. exercises plenary control, even though de jure sovereignty still vests in Cuba. In this regard, the Court significantly distinguished Johnson v. Eisentrager, the case the government cited most frequently in support of its denial of habeas rights to petitioners.
► 3) While the Court acknowledged that there would be costs associated with providing habeas to petitioners and their brethren, including the diversion of military personnel from other pressing tasks, these concerns were not “dispositive” (p. 39). This was especially true given that the base is not situated within an active theatre of war, which might introduce the sort of practical difficulties presented in Eisentrager that justified withholding the writ.
Thus, with respect to the first question presented, the Court determined that the petitioners are entitled to seek the writ of habeas corpus. This finding actuated the second inquiry facing the Court: was the limited review made available before the D.C. Circuit an adequate substitute for habeas?
On this question, the Court also sided with petitioners. The Court noted that the very purpose of the DTA/MCA was to eliminate the option of habeas and substitute a more summary procedure. Although the Court declined to undertake a full comparative analysis of what would be required as an adequate surrogate, it did highlight several grounds on which the DTA process fell well short of what habeas would offer—“a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law” (p. 50 quoting Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 302 (2001)).
Most importantly, the Court highlighted that the judicial officer must have adequate authority to make his or her determination in light of the relevant law and facts and must have the power to order the release of the individual. In addition, the Court noted that the need is more pressing for a vigorous habeas process in situations in which the individual is detained by the executive, and not pursuant to prior adversarial proceedings before an independent and disinterested tribunal (p. 54). Given the procedural limitations discussed above, the Court concluded that the existing procedures were no substitute for habeas and in fact gave rise to a considerable risk of error. It concluded:

And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.

With these interlinked holdings, the Court ruled that Congress in passing the MCA unconstitutionally suspended the writ of habeas corpus in violation of the Suspension Clause.
The immediate effect of the ruling is obvious: existing habeas petitions will be revived and new petitions will be filed. It also seems clear that the government will redouble its efforts to release those detainees who are no longer deemed a security threat, against whom little probative, admissible, or legitimate evidence exists, and who may have credible charges of severe mistreatment and torture. (This is assuming, of course, the government can find a state that will take these men and not mistreat them further).
Other impacts are less clear. For example, the Court provides little guidance on whether existing military commission proceedings must be stayed. Moreover, there is language in the opinion that could be read to cover other detention sites around the world where leases similar to the Cuban all-but-de-jure-sovereignty lease are at issue.
The Court also quite self-consciously dodged two issues that had been at least partially briefed, but were not essential to the present holding:
► The first concerns the conditions of treatment and confinement and whether claims of this nature can be raised in the subsequent habeas proceedings (p. 64).
► The second concerns what law will govern the determination of whether the detention is justified (p. 69). The instant opinion was entirely silent as to international law given that the questions presented turned on the availability of habeas review under the circumstances. International law is likely to be quite relevant to the question of whether the U.S. has the authority to detain these individuals.
And so the litigation continues....

News from Guantánamo

A roundup of what's up with cases arising out of Gitmo:
Gates v Bismullah
In an attempt to limit the information it must provide the D.C. Circuit Court when the court reviews an enemy combatant determination of a Guantanamo detainee under The Detainee Treatment Act, the government filed a petition for certiorari with the U.S. Supreme Court appealing the Circuit Court’s decision to deny rehearing en banc of its initial decision that the court must review all of the evidence regarding a detainee’s enemy combatant status and not just the evidence presented to the Combatant Status Review Tribunal as proposed by the government. After the denial, the government requested a stay of the court’s decision and filed the cert. petition, requesting SCOTUS to either accept the case with expedited review or defer action until the Court ruled on the Al Odah/Boumediene case, which has been pending since the Court heard oral arguments on December 5, 2007.

The Military Commissions
In the case of USA v Omar Khadr, the defense recently had several pre-trial motions denied by military judge Peter Brownback. Most significant was a motion to dismiss the charges and specifications on the grounds that the Military Commissions Act of 2006 is a Bill of Attainder -- prohibited by Art. I, § 9(3) of the U.S. Constitution -- for the reason that the Act essentially legislates punishment without trial. Judge Brownback disagreed, notwithstanding the fact the military commissions trials have been called a sham, rigged and unjust by defense JAG attorneys, and more recently characterized as ‘politicized’ by former military commissions prosecutor Colonel Morris "Moe" Davis. Davis, who quit the prosecutor's post a few months ago, has just announced that he will testify on behalf of a Gitmo detainee. Explaining his departure, Colonel Davis stated, “I concluded that full, fair and open trials were not possible under the current system.” And as posted, the Colonel reminded a couple weeks ago that Brigadier General Thomas Hartmann, legal adviser for the military commissions, refuses to rule out using evidence obtained by waterboarding.
In light of these circumstances, even the most hardened tough-on-crime conservative should be concerned about the recent swearing of charges against the ‘high-value six’ detainees, which includes Khalid Sheik Mohammed and Mohamed al Kahtani. The six are being charged with numerous crimes the government alleges are war crimes based in part on conduct that occurred well before 9/11. The government seeks the death penalty. Apparently, the government has already forgotten the decision of the Supreme Court in Hamdan, which holds that a precondition for a military tribunal’s exercise of jurisdiction is that ‘it is limited to trying offenses committed within the convening commanders field of command, within the theater of war and that the offense charged must have been committed during, not before or after the war.’

Now, I have no sympathy for terrorists and I am not opposed to military tribunals when imbued with due process. But how can anything good come of trying an individual in a ‘politicized’ ‘sham trial,’ for faux war crimes, on the basis of evidence procured by torture, in front of a tribunal that is all but ordered to obtain convictions, and then executing him?

Oh, and did I mention that such trials would be a gross violation of international law?

(photo from Camp Delta, Guantánamo Bay, courtesy of Center for Constitutional Rights)