Understanding the enemy combatant cases

I've been reading through the habeas corpus case results in Guantánamo litigation in an effort to construct a framework for how the courts (as compared, where possible, to the Combatant Status Review Tribunals or the Administrative Review Boards) are defining enemy combatancy.
By way of background:
In the aftermath of the U.S. Supreme Court’s decision in Rasul v. Bush (2004) (holding that Guantánamo detainees had statutory rights to habeas corpus), lawyers representing Guantánamo detainees filed habeas petitions in the U.S. district courts of the District of Columbia. Ultimately, no action was taken on these petitions, because the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA) purported to strip the federal courts of habeas jurisdiction. (The Supreme Court in Hamdan v. Rumsfeld (2006) declined to apply the DTA retroactively to suspend jurisdiction only over pending habeas petitions; the MCA more explicitly denied habeas jurisdiction in all present and future cases). Once the Supreme Court decided Boumediene v. Bush (2008) (holding that Guantánamo detainees had constitutional rights to habeas corpus that could not be suspended by statute), brought by Lakhdar Boumediene (right) and other detainees, lawyers revived these petitions. So far, the district courts have adjudicated a dozen or so cases. Most decisions, but not all, have resulted in continued detention.

In these proceedings, the courts must determine — by a preponderance of the evidence — whether the continued detention of the individual is lawful. By the time the court decides the issue, it will have seen:
► the detainee's petition;
► the government's factual return (usually in two parts to accommodate classified information); and
► the petitioner's traverse (often in two parts as well).
Discovery is conducted throughout the process, but is often most intense following the revelation of factual return.

The government has generally argued that these individuals are lawfully detained because they constitute “enemy combatants” who can be held pursuant to:
► the Authorization to Use Military Force, a joint resolution that Congress adopted a week to the day after the terrorist attacks of September 11, 2001; and
► the Commander-in-Chief provisions of Article II of the Constitution.
The definition of “enemy combatant” remains the subject of litigation. U.S. District Judge Richard Leon (left), for one, adopted the definition of “enemy combatant” set forth in the order establishing the Combatant Status Review Tribunals. See Boumediene v. Bush, 2008 U.S. Dist. Lexis 87133, at *6 (Oct. 27, 2008). This definition provides:

An “enemy combatant” is an individual who was part of or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

The elements of this definition are:
► The individual was part of or supporting:
► Either:
► ► the Taliban,
► ► Al Qaeda or
► ► "associated forces" engaged in hostilities against the United States or its coalition partners.
Other judges (e.g., Judges John D. Bates, Thomas Hogan, and Gladys Kessler) have requested briefing on the issue from the parties.

The Obama administration has to date declined to “refine” the definition of enemy combatant, but has urged the courts to not address the question in the abstract before reaching the merits of individual petitions. See Hamlily v. Obama, Civil Action No. 05-763, Government’s Response to the Court’s Order of January 22, 2009 Regarding the Definition of Enemy Combatant at 2. This is a bizarre and untenable position, as any litigator will attest: How does one address the merits without knowing the operative standard? Not surprisingly, the courts have rejected this approach, but have solicitously given the government additional time to review the cases or to file their factual returns. See Hamlily v. Obama, Order (Feb. 11, 2009). Because Judge Leon has an operative definition of “enemy combatant,” his cases have progressed farther than the others. As a result, this survey is not yet representative.

The following factors have been gleaned from the existing case law. It is inherently incomplete in that much of the relevant evidence has been deemed classified and, as such, is only obliquely discussed in the rulings. In these opinions, the courts have considered a number of factors to be relevant to whether the individual constitutes an enemy combatant. At the same time, the courts are looking at the totality of the circumstances, so it is difficult to glean which factors — standing alone — would be sufficient and which are mere makeweight arguments. The key factors are as follows:

► 1. Engaging in combat, or providing support for fighting forces engaged in combat, against the United States after October 2001, when the United States initiated the post-9/11 counter-assault it named Operation Enduring Freedom. Several detainees were with their units at the battle of Tora Bora in December 2001, and so were engaged in combat directly against the United States. Others, however, were billeted elsewhere, but were engaged in combat during this international armed conflict period on behalf of the Taliban or other fighting forces and against the Northern Alliance.

► 2. So far, no cases have been adjudicated involving individuals exclusively engaged in combat prior to either 9/11 or 10/7. Courts have cited as relevant to determining enemy combatancy the fact that an individual "remained with his unit" post 9/11-10/7.

► 3. Unsurprisingly, individuals need not engage in combat per se to be qualified as an enemy combatant. Providing support (such as by being a kitchen aide) for a fighting force during this period has been deemed sufficient.

► 4. Indeed, noncombat “support” in the definition of enemy combatant has been broadly defined. Individuals who have assisted Al Qaeda outside of any situation of armed conflict (e.g., by being a courier outside of Afghanistan) have also been denied habeas relief. Even individuals who appear to have been given support (financial or logistical) by the Taliban or Al Qaeda (e.g., a stay at a guest house) have qualified as enemy combatants, even though there is no public evidence of them having provided support or undertaken any overt act in support of either group.

► 5. Attending a training camp run by either the Taliban or Al Qaeda is enough to establish enemy combatancy. This is true even where individuals never saw combat and, by their testimony, sought training with the intention of doing battle elsewhere.

► 6. The courts also cite mere affiliations with known Al Qaeda members as evidence of enemy combatancy. The government often presents evidence that the individual stayed at an al Qaeda- or Taliban-affiliated guest house where known enemy combatants stayed, for example. There is no case, however, based on such evidence alone.

Several of the cases that have proceeded early are somewhat easier cases, such as the Tora Bora cases. There are other cases in the pipeline whose facts are less clear-cut.
Stay tuned.

Boumediene & extraterritoriality

(Many thanks to IntLawGrrl Beth Van Schaack for her thoughtful posts here and here on Thursday's decision in Boumediene. My initial cut, below , was cross-posted at Slate's Convictions blog, where at the moment it's all Boumediene all the time, with a dash of Munaf for good measure.)

In holding that the reach of the Constitution is to be measured functionally, not formally, a majority in Boumediene resolves a question previously muddled by plurality opinions.
Whether U.S. agents must adhere to the U.S. Constitution when acting outside U.S. territory is a question various Courts have answered in different ways. As I'd outlined here when Rasul was pending (pp. 295-99), a line of splintered decisions that I've called "maximalist" indicated that the Constitution always constrained agents abroad. A "minimalist" line indicated the opposite, and neither expressly overruled the other.
A close reader of Justice Anthony M. Kennedy's concurrence in one of the latter cases, United States v. Verdugo-Urquidez (1990), might have expected that when give the chance he would reconcile the 2 lines with a midway approach; that is, by taking the lead of Justice John Marshall Harlan in Reid v. Covert (1956) (concurrence), and hold that whether the Constitution applied in a particular extraterritorial instance required careful reviews of all the circumstances.
And today, that is exactly what Kennedy did as he wrote for the Court that "practical considerations" compelled extension of the constitutional privilege of habeas corpus to noncitizens detainees held at Guantánamo.

World War II déjà vu, all over again

The 2d of the transnational cases the U.S. Supreme Court's just agreed to review promises a revisit, yet again, to World War II-era precedents.
Litigation post-9/11 has prompted the Court more than once to plumb those precedents in determining whether and to what extent the Constitution protects persons the United States detains in time of conflict. In the citizen-enemy-combatant case Hamdi (2004), for example, the plurality relied heavily on its interpretation of Quirin (1942); in contrast, 2 other Justices dwelt on statutory reform in light of Korematsu (1944). Noteworthy has been the reliance on cases in which Justice Wiley B. Rutledge, Jr., for whom Justice John Paul Stevens clerked in 1947-48, took part: Stevens' opinion for the Court in Rasul (2004) drew on Ahrens (1948); in Hamdan (2006), on Yamashita (1946). (See analyses here, here, and here, here.) The just-granted Munaf likewise portends a new look at Hirota (1948).
Mohammad Munaf (left) and Shawqi Ahmad Omar (below left), both U.S. citizens who also hold citizenship in a 2d country, are in U.S. custody in Iraq, where a multinational military force is in place. An Iraqi court convicted Munaf of involvement in a kidnapping and sentenced him to death; Omar has not been charged. Both petitioned U.S. courts for habeas relief. The U.S. Court of Appeals for the D.C. Circuit ruled against Munaf 2-1. Yet a couple months earlier, a somewhat different panel of the same circuit had ruled in favor of Omar. Last week the Supreme Court consolidated and agreed to hear both matters. The importance of the 1948 precedent is evident not only in the circuit's reasoning, but also in Munaf's petition for certiorari, which includes this Question Presented:

Does the decision of the Court of Appeals, holding that Hirota v. MacArthur deprives the federal courts of jurisdction under these circumstances, extend the 1948 per curiam opinion in Hirota into conflict with this Court's post-1948 jurisprudence culminating in Rasul v. Bush and Hamdi v. Rumsfeld, and should that conflict be resolved either by restricting Hirota to its proper sphere or by overruling it?

As detailed here by our colleague Steve Vladeck, Kōki Hirota (below right) was a civilian diplomat and erstwhile prime minister who never held military rank; however, most petitioners in Hirota were, like Yamashita, Japanese military officers. Whereas

Yamashita had been convicted by a U.S. military commission sitting in the Philippines, petitioners in Hirota challenged their convictions before the multinational International Military Tribunal for the Far East (IMTFE). The Supreme Court had devoted many pages to its refusal to rule in favor of Yamashita; in contrast, it disposed of Hirota in a 3-paragraph per curiam, the crux of which are these sentences:

We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.
Under the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.

The opinion was shorter either than Justice Robert H. Jackson's December 6, 1948, statement that his colleagues were divided 4-4 on whether "the Japanese convicted of war crimes should have some form of relief, at least tentative, from this Court," 335 U.S. 876, or than Justice William O. Douglas' detailed concurrence with the denial of relief that the Court issued 2 weeks later.

Perhaps of particular contemporary interest is the identity of the 2 Justices who did not go along with that ultimate disposition of Hirota: One was Frank Murphy, who served as Attorney General before President Franklin D. Roosevelt appointed him to the bench in 1940. Murphy's dissenting vote in Hirota followed prior dissents in Korematsu, Ahrens, and Yamashita. The other was Rutledge, who'd gone with the majority in Korematsu, but wrote dissents in Ahrens and Yamashita that post-9/11 precedents have cited with favor.

So what did Rutledge do in Hirota? Good question.

The decision itself states:

Mr. Justice RUTLEDGE reserves decision and the announcement of his vote until a later time.

According to his biographer, Rutledge had drafted a dissent before argument was set, in which he set forth reasons the IMTFE might not qualify as a "'validly constituted international'" tribunal, such that exercise of federal jurisdiction would be proper. After argument, though, Rutledge "'passed'" on voting, reportedly remarking to his colleagues in conference, "'This is an international tribunal but if I get over that hump I would act.'" (John M. Ferren, Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge 411-14 (2004)).

Rutledge never did come to rest in Hirota. He never wrote in the case -- never even cast his vote.

Check back in a few months for the role the circumstances of Hirota might play today: As with the other transnational case just granted, Munaf is due to be argued before the Court in spring 2008.

On November 13, ...

... 1950, the Government of Tibet complained to U.N. Secretary-General Trgve Lie that it was the victim of Chinese aggression. The complaint by Tibet (flag at left) stated that even as international troops resisted aggression in Korea, "[s]imilar happenings in remote Tibet are passing without notice."

... 2001, President George W. Bush issued a Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. Announcing a plan to detain captives in the "war on terror" that Bush'd declared in the wake of the terrorist attacks on September 11 of that year, the Order asserted the power "to ... detai[n], and, when tried, to ... tr[y] for violations of the laws of war and other applicable laws by military tribunals" any person whom "there is reason to believe":

(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, 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
(iii) has knowingly harbored one or more [such] individuals ....

Executive detention at home and abroad of persons who came to be called "enemy combatants" -- among them 2 U.S. citizens, José Padilla and Yaser Esam Hamdi, as well as many noncitizens -- soon followed. The Supreme Court invalidated aspects of that policy in its 2004 decisions in Rasul v. Bush and Hamdi v. Rumsfeld, and in its 2006 decision in Hamdan v. Rumsfeld. It is due again to consider detention, in Boumediene v. Bush, on December 5, 2007.

Al-Odah & Boumediene Petitioners

After a flurry of filing on Friday, briefing by Petitioners in the Al-Odah and Boumediene cases (consolidated on certiorari) closed. The merits briefs and a sizable number of amicus curiae briefs are available on the Mayer, Brown, Rowe & Maw website. An impressive array of amici filed briefs in support of Petitioners, including the U.N. High Commissioner for Human Rights; European and Canadian parliamentarians; constitutional, federal jurisdiction, human rights, and humanitarian law experts and scholars, including former ICRC principals; Amnesty International; retired and former federal judges, diplomats, and military officers; the ABA; and the National Institute of Military Justice.
As discussed in prior posts (here, here, here, and here), the case presents the question, among others, of whether the Military Commission Act of 2006 (MCA) unconstitutionally suspended the writ of habeas corpus in violation of the Suspension Clause, which 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.

The MCA purportedly barred the writ for pending cases wherein it states:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the U.S. who has been determined by the U.S. to have been properly detained as an enemy combatant or is awaiting such determination.

In prior proceedings, the government argued that the historic writ of habeas corpus would not have extended to alien enemy combatants held extraterritorially, so the MCA works no “suspension” within the meaning of the Constitution. This is notwithstanding that the Court in Rasul v. Bush, 542 U.S. 466, 480 (2004), clearly ruled that Guantánamo was within the territorial jurisdiction of the United States and that the writ did extend to Petitioners. Id. at 481-82. In the alternative, the Government has argued that Petitioners—as aliens outside sovereign U.S. territory—have no constitutional rights. Petitioners have responded that the Suspension Clause—situated in Article 1 of the Constitution—creates no individual rights, bur rather is a structural constraint on Congress providing

constitutional protection to a preexisting right founded in the common law: the right to obtain independent judicial review of a detention to ensure that no person is deprived of liberty by the Executive without a satisfactory basis in law and fact.

Al-Odah v. United States, Brief For Petitioners El-Banna et al.
Following the Supreme Court’s holding in Rasul v. Bush, the Department of Defense convened Combatant Status Review Tribunals (CSRTs) to determine whether an individual could be detained as an “enemy combatant.” The Department also established Administrative Review Boards (ARBs) to meet annually to determine whether this designation still holds. The Al-Odah & Boumediene cases also present the question of whether the CSRTs and ARBs provide an adequate substitute for habeas corpus where they provide only limited rights of participation and confrontation, deny the right to counsel, admit evidence procured by torture and coercion, admit hearsay and other evidence that would otherwise be inadmissible, are apparently subject to command influence, and are not subject to plenary review on appeal. Testimony from former CSRT participants about these procedural flaws in the process, including Lt. Col. Stephen Abraham (upper left, photo by Chris Carlson/NPR), probably led to the Supreme Court reversing its original denial of certiorari in the cases.
Stay tuned for the government's briefs....

[by IntLawGrrl Beth Van Schaack, under her pen name Eleanor Roosevelt]

Padilla case to the jury

Today a federal jury's expected to begin deliberating the fate of José Padilla, a Brooklyn-born, Chicago-raised American citizen. Padilla was arrested at O'Hare Airport in 2002 and detained in a South Carolina brig for years based on the U.S. executive's assertion that he was an "enemy combatant" bent on helping al Qaeda by exploding a radiological device -- known as a "dirty bomb" -- inside the United States. At the Supreme Court in 2004, along with Rasul v. Bush and Hamdi v. Rumsfeld, Padilla's case was sent back to the trial court on jurisdictional grounds. Only when a 2d round of Supreme Court litigation loomed did the executive transfer Padilla to the custody of the federal criminal court in Miami, where he and 2 others've been on trial on charges unrelated to any "dirty bomb" plot.

Reporters, commentators -- even, at times, the judge -- have called the prosecution case thin. And as long ago as oral argument in 2004, questions have been raised about the harsh conditions of detention and interrogation that Padilla endured. (The photo, from a government video, depicts Padilla, shackled, blindered, and deafened, on his way to the dentist.) Those conditions haven't been before the jury, though, and the brand of "terrorist" might be hard to shake even in a thin case. My views on the case've just been published in the conclusion to Punish or Surveil, my contribution to a national security symposium edition of Iowa's international law journal, Transnational Law & Contemporary Problems. A sample:

Even an acquittal would not, by that fact alone, mean failure. Built into the American system of criminal justice is a tolerance for acquittal. A “fundamental value determination of our society,” to repeat Justice John M. Harlan’s oft-repeated maxim, is “that it is far worse to convict an innocent man than to let a guilty man go free.” This is scarcely less the case when acquittal results because governmental misconduct has placed certain evidence outside the bounds of a properly constituted court. Judicial exclusion of such evidence -- indeed, a prosecutorial decision not even to adduce such evidence -- serves the liberty interests both of the defendant on trial and of the society at large.

For a full understanding of the case and its potential consequences, you can do no better than to read Warren Richey's 3-part series just concluded in the Christian Science Monitor. The article titles tell the story:

► "US terror interrogation went too far, experts say; Reports find that Jose Padilla's solitary confinement led to mental problems."

► "US Gov't broke Padilla through intense isolation, say experts; Despite warnings, officials used 43 months of severe isolation to force Jose Padilla to tell all he knew about Al Qaeda."

► "Beyond Padilla terror case, huge legal issues; His detention and interrogation in the US raises basic constitutional questions."

Today's Monitor editorial commenting on the series states:

[T]he US military used terror -- Padilla had little or no human contact for more than three years -- to fight terror. ...
The jury well may find Padilla guilty, but it may also see the injustice done in his case, and decide otherwise.
Victory in war is sometimes a victory simply for the rule of law.