North African People Power: Saturday in Algiers

(Part 2 of IntLawGrrl Karima Bennoune's series on developments in North Africa; Part 1 appeared 1st at IntLawGrrls, here, and, we're proud to say, was reprinted at The Nation, here.)

Today the Algerian government tried to hold back the winds of change blowing westward from neighboring Tunisia by besieging its own capital city.

A peaceful protest called by the Algerian opposition party, the Rassemblement pour la culture et la démocratie (RCD), on the Place du 1er Mai was forcefully disrupted by large numbers of heavily armed riot police. One report claimed that 10,000 police had been deployed. Meanwhile, as many as 42 people were injured, several seriously, and others arrested, including a photojournalist. (photo credit)

Security forces encircled the RCD headquarters on the Didouche Mourad, the main thoroughfare of Algiers, and set up checkpoints to prevent protestors from arriving in the capital from other parts of the county, or from reaching the Place du 1er Mai from other parts of the city. As depicted in this YouTube video, the trapped protestors – and those on balconies above – waved Algerian and Tunisian flags and chanted “Djazaïr, horra, dimocratia.” (“A free and democratic Algeria!”)
Today’s protest had been organized around very specific demands, set forth in the poster below right:

► the lifting of the state of emergency in place since 1992,

► the opening of political space,

► the restoration of individual liberties and constitutional rights, and

► the liberation of those demonstrators arrested during the riots and protests that erupted across Algeria earlier this month who remain detained.

In fact, today’s events but illustrate the importance of those very demands.

The RCD had applied for a permit for this demonstration – and the government summarily denied permission. Hence, the gathering was technically unlawful, putting protestors at risk of arrest. The wilaya, or province, of Algiers put out a widely broadcast statement Thursday calling on the population to show “wisdom and vigilance,” and not to respond to the call to protest. According to these authorities’ Orwellian message, “protests in Algiers are not authorized and any public gathering is to be considered a breach of the peace.” They acted on those pronouncements today.

Many Algerians remember all too well the émeutes of October 1988 when a previous generation of protestors were shot – perhaps as many as 500 in a week’s time – arrested in large numbers, and tortured. And this week the United Nations said that 100 people have died in recent events in neighboring Tunisia. So, there is reason to be concerned about the safety of those who will be involved in what are likely now to be ongoing demonstrations.

In the beginning, the U.S. media and government paid little attention to the protests in neighboring Tunisia. That mistake should not be repeated. The international media should closely follow developments in Algeria so as to let the Algerian government – and democracy activists – know that the world is watching.

Today’s events come amid escalating political tensions in the country.

In recent days Ahmed Badaoui, a trade unionist, was arrested and accused of fomenting rebellion in relation to a text message he sent regarding events in Tunisia. Subsequently, a coalition of political parties, human rights groups, unemployed youth and trade unionists met and agreed to hold a joint protest on February 9, which will mark the nineteenth anniversary of the declaration of a state of emergency in Algeria.
Peaceful protests like these are crucial because real change is needed and demanded by so many Algerians:

► One is the man with desperate eyes whom I interviewed in Algeria in October, a victim of the fundamentalist terrorism of the 1990s, unable to obtain a job, traveling from government office to office unsuccessfully seeking assistance for himself and his children with his collection of ripped documents.

► Or the Algerian artists who last week braved the police in the Rue Hassiba Ben Bouali – an Algiers street named for the nationalist heroine killed by the French Army - to express their opposition to the stifling of freedom of expression.

► Then there are those who live ten to a room in the quartiers populaires with few prospects of getting a job or getting ahead, and without avenues to peacefully express their anguish.

► Or those countless harragas who as a result attempt to flee illegally by boat across the Mediterranean to Europe every year in search of a better life, and too often find an anonymous death on the sea.

► And finally, those Algerian men and women who have expressed the ultimate frustration in recent days setting their own bodies on fire as if to try and recreate Mohamed Bouaziz’s catalytic Tunisian moment.

In fact, according to the Algerian newspaper El Watan, this week these various manifestations of despair intersected when a group of young harragas set their own boat on fire after being caught by the authorities. Remember Fanon’s “the wretched of the earth”? These are the wretched of the sea. How desperate must a young person be when he would rather burn himself to death than return home?

On the subject of the rash of self-immolations, see the excellent article in the January 21 issue of El Watan by Chawki Amari, Melanie Matarese, Ramdane Koubabi and Ghellab Smail, entitled “Immolation: I burn therefore I am.” It features the testimonies of some of those who have recently tried to incinerate themselves in protest, including a 40-year-old divorced woman struggling to make ends meet, whose mother was humiliated by local officials when she went to request that their dwelling be included in a public works program, and a 34-year-old unemployed man wrapped in bandages who explained that burning himself “was the only way to denounce la hogra (the arrogance with which officials sometimes treat ordinary people), contempt and …misery...”

Algeria fought a bloody, decade-long battle to defeat armed fundamentalism in the 1990s, and many thousands of ordinary Algerians were killed by fundamentalist terrorism. (In fact, the authors of “I burn therefore I am” make a link between that experience of largely unredressed violence and the current waves of self-immolation.) The government often uses the threat of terrorism to justify the continuation of the state of emergency and the prohibition of gatherings in the capital city like the one scheduled for today. Of course, there is a considerable irony to this, as it is the same government which has amnestied all of the perpetrators of the 1990s, to the horror of many advocates for victims. Moreover, it is profoundly heartening that attempts by fundamentalists to rally early January’s demonstrators to their banner failed entirely.

In light of all this, the government of the United States would be mistaken in thinking that the best way to assure its security interests in the ongoing fight against Al Qaeda in the Islamic Maghreb (AQIM) in Algeria and elsewhere is to simply overlook legitimate popular frustration in the region.

Unquestionably, the Algerian military has played a significant role in the fight against AQIM. However, it must also be noted that as of now in Algeria there is little to no popular support for AQIM, an organization descended from the remains of the armed groups that brutalized the population in the 1990s. It is especially loathed of late because of its reported involvement in kidnappings, which have also sparked large protests in parts of the country.

Although security is used to justify the stifling of peaceful expression like today’s demonstration, it is actually vital, both for human rights and for real security, that legitimate popular grievances are heard and redressed democratically. This can help to maintain the consensus against AQIM and against fundamentalism as a political alternative, while improving the quality of life for millions. And figures like Saïd Sadi, head of the RCD, have warned that if peaceful protest proves impossible and democratic changes are not made, serious violence could erupt. He argues that there is even more anger in Algeria than in Tunisia.
What happens next depends in part on how many Algerians defy the ban on peaceful protests in Algiers and attend the February 9 demonstration, and on how the authorities respond. The best ways to honor the memory of so many who sacrificed for the country, whether during the 1950s/1960s battle against colonialism, or the 1990s battle against fundamentalism, would be to allow the next “unauthorized” peaceful march to proceed without the repression witnessed today, and to permit such gatherings to be the start of a new social democratic opening in Algeria that creates a better future for all its people.

Imagine a North Africa where a truly democratic Algeria adjoins a free Tunisia…

'Nuff said

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

I found it odd that Welner felt the need to emphasize repeatedly alleged crimes for which family members hadn’t been convicted and ones totally unrelated to terrorism. When you have a family with an al Qaeda connection, is it really necessary to list every black mark?

-- One of many trenchant queries by our colleague Michelle McCluer (prior IntLawGrrls posts), Executive Director of the National Institute of Military Justice, in her eyewitness posts on the plea hearing and subsequent sentencing proceedings against Omar Khadr, which she's been attending at a courthouse at Guantánamo (above right).

Well worth a read.

Where is the Zone of Combat?

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Battlefield.
Combat area.
Theater of operations.
These traditional terms in military discourse and the modern English language have described wartime areas for decades – indeed centuries. In today’s conflicts, states fight against nonstate actors and terrorist groups that are unbounded by sovereign territorial boundaries and that prefer tactics aimed at civilians often far from any traditionally understood battlefield. Those facts can easily confound attempts to use these existing terms effectively.
In particular, the present conflict between the United States and al Qaeda and affiliated terrorist groups poses significant yet seemingly fundamental questions, not only about the law applicable to operations against terrorists, but also about where the conflict is taking place and where that law applies. Beyond the obvious areas of Afghanistan, Iraq, and the border areas of Pakistan, there is, at present, little agreement on where the battlefield is – i.e., where this conflict is taking place – and an equal measure of uncertainty regarding when it started and when and how it might end. (credit for photo of memorial following 2008 attack in Mumbai, India)
Many practitioners and scholars now suggest that the traditional battlefield – once populated by tank battles and infantry – has been replaced by a more complex environment, sometimes called the zone of combat. Blending armed conflict and operational counterterrorism, the zone of combat has been characterized as anywhere terrorist attacks are taking place, or perhaps even being planned and financed. Even when not conceived of as broadly, the zone of combat encompasses areas beyond the traditional battlefield and could likely include any area where military responses to terrorists and terrorist attacks take place.
The “zone of combat” may simply seem to be yet another modern descriptive term that offers a clearer representation of real life than its antecedent. But it raises important and interesting legal questions. The fact that the zone of combat is movable and changeable only complicates the nature of these questions.
When many argue – and the United States consistently asserts – that the United States in engaged in a global war against Al Qaeda and other terrorist groups, one natural question is where is the battlefield, or zone of combat, in this global struggle against terrorist groups? And how do we identify it?
I explore these questions in an article in the forthcoming volume of the Georgia Journal of International and Comparative Law, entitled “Defining the Battlefield in Contemporary Conflict and Counterterrorism: Understanding the Parameters of the Zone of Combat.”
These questions of where and when are critical for understanding how to apply the law to questions of targeting, detention, interrogation, direct participation in hostilities, and trials, among others. Just as relevant legal frameworks help us understand the substantive scope of the applicable law within the zone of combat, those frameworks can help illuminate its temporal and geographic scope.
Traditional conceptions of belligerency and neutrality do not effectively address the complex spatial and temporal nature of terrorist attacks and states' responses. Nor can human rights law or domestic criminal law, which are both legal regimes of general applicability, offer a useful means for defining where a state can conduct military operations against terrorist groups.
In contrast, the law of armed conflict – naturally limited and triggered by the existence of an armed conflict – provides a framework not only for when it applies, but where and for how long. By using this framework and analogizing relevant factors and considerations to the conflict with al Qaeda, we can identify factors that can help define the zone of combat.
► First, some terrorist attacks and activities fall closer to the traditional conception of hostilities as understood within the law of armed conflict. Areas where these types of attacks occur naturally have a stronger link to a battlefield. In addition, when such attacks or activities occur regularly or over a defined time period, we can more clearly define the temporal parameters of the zone of combat as well.
► Second, in declaring that it is “at war with terrorists,” a state may envision the whole world as a battlefield. But the state’s actual conduct in response to the threat posed offers a more accurate lens through which to view the battlefield. Areas where the state uses military force, particularly multiple facets of military power, on a regular or recurring basis, should fall within the zone of combat while those where the state chooses diplomatic or law enforcement measures, or relies such efforts by another state, do not demonstrate the characteristics of the battlefield. This same analysis holds true for the temporal parameters as well.
Applying this type of analysis in a simplistic manner does indeed leave room for abuse by states, which might overuse military power merely to try to squeeze otherwise non-battlefield areas within the zone of combat. While this is certainly a consideration, government response is only one factor to take into account in assessing the parameters of the zone of combat and both the nature of the international community and the great expense, both human and material, of applying military might where not necessary will likely weigh against any such abuse.
►The third factor – territory – requires the most creative application. Terrorist groups do not use or connect to territory in the same manner as either states or non-state actors seeking to gain power or independence. Conflicts against terrorist groups, as a result, do not follow the boundaries on a map or the dictates of state sovereignty or international legal niceties. But territory can be a contributing factor to a paradigm defining the zone of combat nonetheless.
Looking at territory from a new angle, we can see that terrorists use certain areas for safe havens and training camps and identify certain areas as prime targets for repeated attacks. Those territorial areas must therefore have a stronger connection to the zone of combat than others, both geographically and temporally, because the way terrorists use particular areas will naturally change over time.
Taken as a whole and considered in light of existing jurisprudence and policy considerations, these analytical tools form a first step in the critical task of identifying where and when a state can conduct operations within an armed conflict framework. Such identification is a necessary companion to the ongoing debate about whether and how a state can conduct operations within such a framework.

On 9/11, Remembering the Other’s Others: International Law & Muslim Fundamentalism

The ninth anniversary of September 11, 2001, finds the international community still grappling with the consequences of that terrible day.
Armed conflicts which began in the wake of 9/11 continue in Afghanistan and Iraq, spilling over now into Pakistan and Yemen with often devastating consequences for civilians. Human rights abuses in the “war on terror” remain largely unpunished, but will never be forgotten around the world. Xenophobia directed against Muslims serves as a useful tool for right-wing politicians in the West. And you may have heard that an idiot in Florida has been trying to decide whether or not he will burn hundreds of Qur’ans today.
At the same time, Muslim fundamentalist armed movements akin to those that perpetrated 9/11, like the various permutations of Al Qaeda and the Taliban, or Al Shabab in Somalia or Boko Haram in Nigeria, just to name a few, continue to pose major challenges to human rights in Muslim majority societies and around the world. For a terrifying insight into the worldview of defenders of such movements, see here.
Muslim fundamentalist armed movements often kill civilians indiscriminately, as they did on 9/11, a day to which Al Qaeda chillingly refers as “Holy Tuesday.” They also target artists, writers and freethinkers for assassination, and purvey systematic discrimination against women and religious minorities and LGBT individuals. They seek to impose their version of the Sharia on all Muslims everywhere – this often means advocating practices like stoning women for adultery. (credit for logo at right of the Global Campaign to Stop Stoning) Hence, such movements pose particular threats to international law in the areas of human rights, humanitarian law and conflict prevention, inter alia.
My article “Remembering the Other’s Others: Theorizing the Approach of International Law to Muslim Fundamentalism,” published this summer in the Columbia Human Rights Law Review, challenges international lawyers to develop a critical analysis of Muslim fundamentalist movements and to support the many Muslim human rights defenders battling fundamentalism.
Faced with the current polarized environment, this enterprise is unquestionably a daunting task, and I see the already constricted space for my argument narrowing further. Muslim fundamentalists – and those confused with them – have also themselves been the targets of a range of grave violations of international law by states in recent years, like torture. Racialized discourses and policies directed against people of Muslim heritage have proliferated since September 11, 2001, and are currently experiencing a particularly disturbing revival – what might be called hatredofmuslims version 20.10.
All of this fuels more fundamentalism.
Despite these real difficulties, offering a critical perspective on the contemporary problem of Muslim fundamentalism remains an essential project for international lawyers. As a discipline we in international law have mostly engaged critically with the (admittedly problematic) responses to Muslim fundamentalism, rather than with the phenomenon itself.
► Can we offer an accurate or useful commentary on the responses to Muslim fundamentalist movements if we overlook their existence and impact in the first place?
► Of what use is our critique of the “war on terror” if we are largely silent about one side of that “war”?
In fact, the failure of learned discourse in the United States – including in the field of international law – to name and thoughtfully explain the problem of Muslim fundamentalism actually risks facilitating discrimination against Muslims in general. This omission obscures the fact that contemporary terrorism and the “war on terror” actually revolve around a very specific set of politics and political actors, not around broader religious denominations or religious claims.
Ordinary Muslims or the Muslim religion as a whole must not be confused with specific fundamentalist movements and their adherents, just as most American Christians would not want to be identified with Christian fundamentalist Terry Jones. Yet, the mere critique of Muslim fundamentalist movements themselves is not per se an expression of anti-Muslim bias, just as criticism of the pyromaniacally inclined Pastor Jones is not an attack on Christianity. This, I fear, is a fact that is likely to get lost in the current cacophony.
Actually, Muslim fundamentalist armed groups’ primary victims, as the 2006 U.S. National Strategy for Combating Terrorism acknowledged, are often other people of Muslim heritage. Hence, defending the human rights of Muslims means successfully defeating fundamentalism (and vice versa).
In the contemporary period, Western discourse, including in the field of international law, has sometimes seemed to offer only two choices: the openly discriminatory or flawed characterization (Islam is inherently fundamentalist, all Muslims are fundamentalists and so on), or the one that is too politically correct to even broach the topic of fundamentalism. Neither one is helpful or accurate. What we need is a principled, human rights based critique of Muslim fundamentalism, alongside a principled, human rights based critique of discrimination against Muslims. To paraphrase a brilliant Pakistani colleague, I reject the idea that my choices are limited to accepting either Glenn Beck or the Sharia, and I reserve my right to criticize both. I utterly reject both the would be suicide bombers and the would be Qur’an burners, and neither one can ever justify the actions of the other.
Returning to today’s sad anniversary, I honor the memory of all the 2,976 victims of September 11. They were women, men and children who came from more than 90 countries, from many religious, racial and ethnic backgrounds, and from all walks of life. All are mourned by family and friends. In the current moment, I think about Amenia Rasool (left), a Guyanan-American Muslim woman who worked on the 95th floor of the World Trade Center. (photo credit) I first read about her in The New York Times remembrance section.
I am humbled by the thought of such a terrible death at the hands of Muslim fundamentalists, and compelled by the beautiful complexity of Amenia Rasool’s existence, a life which challenged all simple narratives about what it means to be a Muslim woman in America. Though she had an arranged marriage, she and her husband reportedly shared domestic tasks. She worked as an accountant by day, but in the evening when her chores were done, she was said to enjoy watching taped soap operas and painting her fingernails. All of these things – women working outside the home, dramatic entertainment and use of cosmetics are often prohibited by fundamentalists – sometimes on penalty of death. Meanwhile, many American right-wing racists cannot conceive of a Muslim woman with such a life, nor do those who wave hateful signs in protest against the proposed Muslim community center in Lower Manhattan (“No Islamic Settlements in America”) remember her, even in death. She would have been “the other” to some of these Americans, but was also “the other” for Muslim fundamentalists. It is this complex, multidirectional dynamic that I am trying to name with the title of my article, “Remembering the Other’s Others.”
I am hoping that human rights advocates will remember Amenia Rasool when they conceive of what human rights means in relation to September 11th and its aftermath. This means taking violence by nonstate actors – as well as by states – seriously, as I underscored in my September 11, 2008, post,"Terror/Torture." This means being relentless in demanding accountability for those surviving persons involved in such terrorist atrocities and for the atrocities of response that have followed. This means that we must face up to the menace of Muslim fundamentalism, while (and as one means of) staunchly defending the human rights of Muslims in the United States and beyond. (credit for 2009 photo of protest against Sudanese prosecution of Lubna Hussein for wearing pants)
The task of human rights, it seems to me, must be to create an international community that recognizes the complexity of a life story like Rasool’s, and that protects the Amenia Rasools of the world from all of the kinds of discrimination and coercion and horror and violence they can face – as women, as Muslims, as immigrants, as Americans, as civilians, as people who live these categories as overlapping and intersecting rather than opposing. Rasool left behind four children when she was murdered by Al Qaeda. Let us hope we can make that better world in their lifetime.
A few nights ago, I walked along the Hudson River, transfixed by the beams of the Tribute in Light, streaming upward where the Twin Towers used to stand, in commemoration of the approaching anniversary. (credit for 2009 photo, top left) The powerful illumination filled the sky where the most extreme Muslim fundamentalists had blown a terrible empty hole nine years ago. Despite that grave international crime, and all that has followed, for me these beams of light still reflect the simple promise that we human beings can do better in how we treat one another.

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.

Closing Guantánamo: Legal and Policy Issues

It was a pleasure to see so many Int’l L Grrls (and their readers) at the American Society of International Law Annual Meeting this weekend. A couple of us will be offering "reports" from the conference. Here, I’ll present a summary of one of the more eagerly awaited panels on “Closing Guantánamo: Legal and Policy Issues" chaired by Bobby Chesney (Wake Forest). The panelists were David Glazier (Loyola of L.A.), Deborah Pearlstein (Princeton), Joanne Mariner (Human Rights Watch), and Glenn Sulmasy (U.S. Coast Guard Academy). A discussion of the crux of the problem of detention in non-international armed conflicts going forward will appear in a subsequent post. (Apologies if I jhave mischaracterized anyone’s position; clarifications welcome).

Chesney introduced the panel by describing the two executive-order task forces currently at work on detainee issues.

• One is reviewing detainee files case-by-case with an eye toward reaching individualized dispositions.
  
• The other will take a longer perspective and attempt to devise a detainee policy for the future.
  

In the meantime, the administration has been forced to take positions (see post here) in habeas cases pending in federal courts (see post here).

Prof. Glazier (right) emphasized that the decision to close GTMO was the easy part; the “how” is where the challenge lies. Glazier identified three potential outcomes:

1. release,
2. prosecute (or transfer for prosecution), or
3. continue to detain.

Of the 240 or so detainees, about 60 men have already been cleared for release. In his estimation, about 80 individuals might still qualify as “high value,” but it is likely that most are minor functionaries along the lines of Salim Hamdan. Federal courts represent the only place to credibly prosecute individuals for whom there is sufficient evidence. Anything short of an Article III process will be perceived as a shortcut. Glazier raised concerns about the transfer paradigm: if the United States can’t fairly prosecute them here (for lack of admissible evidence or viable substantive charges), then it is unlikely other states could either. To transfer detainees for prosecution would put the detainees at risk of further detention without trial or of sham proceedings that might violate international human rights protections.

He acknowledged that some subset of detainees cannot be tried (because any evidence against them was obtained by torture or mistreatment, any crime for which they might be tried was enacted after they acted, or because there is simply no or inadequate evidence available against them) but remain dangerous. For this group, the U.S. should establish a preventive detention regime that is based on the law of war (to which GTMO doesn’t come close to complying). This paradigm must reflect the model of a communal camp setting with access to the outside world, etc.

Deborah Pearlstein (right) emphasized that the problem of what to do with GTMO is to a certain degree sui generis, because our options are informed and limited by what we’ve already done (which includes the commission of acts of torture, incommunicado detention, removal from battlefield, the failure to hold GC III Art. 5 hearings, etc.). For these individuals, there may be no good options available, so we’re left to sort through the “less bad” options. In so doing, we should attempt to do as little violence to international law as possible. This process of resolving GTMO should be cabined off from the larger problem of defining a detention process going forward; we can’t let the hard case of GTMO make permanent bad law or policy for the future.

Taking off on Glazier’s three categories of detainee, Pearlstein noted that the individuals slated for release represent a diplomatic, rather than a legal, problem. Many of these individuals may not be able to be sent home because of widely-shared treaty obligations under the Refugee or Torture Conventions. For those individuals who might have been prosecutable, there were more options available upon capture (courts martial, legitimate and lawful military commissions). Now, we’re left with federal courts as the only legitimate option.

For those who present security risks and might need to be further detained, the law of war may not provide any affirmative authority to detain individuals (either combatants or civilians who directly participated in hostilities) who were captured either in the context of a non-international armed conflict (NIAC) or outside of a conflict situation entirely (such as in Zambia). In addition, the Authorization to Use Military Force (AUMF) may not constitute sufficient domestic authority to detain these individuals. Thus, we would need express domestic authority in the form of new legislation to continue to detain them.

One positive outcome of the recent Obama administration filing beyond the welcome demise of the "enemy combatant" nomenclature is the good faith statement that the Administration intends to be in compliance with IHL. IHL quite clear and detailed on what detention authority exists in IACs. This, however, brings into sharp focus the need to look closely at the nature of the authority to continue to detain GTMO and other detainees given that the law governing NIAC provides no treaty-based authority to detain, on the presumption that domestic claw would provide the necessary authority outside of a state-to-state conflict where international law would be necessary.

Anticipating arguments by Commander Sulmasy, Pearlstein opposed the establishment of any separate national security court on the grounds that such a system won’t solve the GTMO problem and could never be established in time, given the legal challenges that would inevitably follow. She referenced a Human Rights First study demonstrating that the federal courts are sufficiently flexible to handle terrorism cases.

Commander Sulmasy (left) emphasized that even when we resolve the GTMO cases, there are hundreds of detainees at Bagram Air Base whose lawyers are also attempting to get into the U.S. court system. We still have not yet fully resolved the question of whether the situation with Al Qaeda is an armed conflict or a law enforcement problem or some hybrid of the two. The typical Al Qaeda member is part-international criminal, part-warrior.

Although he was thin on details, Commander Sulmasy advocated a hybrid national security court that would combine aspects of the military commission scheme as it was originally conceived (to dispense rapid justice) and Article III courts. (Sulmasy conceded that the military commissions, which should have begun trials in 2003, never achieved their intended purposes and that his support for the existing system eroded over time). This might involve proceedings that would be closed to the public (but not the detainee). This would not constitute preventative detention, as the process would be an adjudicative one rather than an adaptation of the Combatant Status Review tribunal system. Sulmasy questioned the ability of Article III courts to deal with terrorists and unprivileged combatants, noting that many of the terrorism cases reported on to date preceded 9-11.

Joanne Mariner (left) agreed that the immediate decision to close GTMO represented a meaningful break with the most reviled of the many unsavory Bush Administration policies. She was concerned, however, that some of the solutions being put forward are—and will be perceived to be—mere tinkering with the existing machinery. (She specifically noted the Obama Administration’s deliberate use of the term “refining” in its pronouncements). This, she emphasized, will not fool our European allies or the Muslim world for that matter, which may actually be the most important audience to convince that we’re genuinely changing our approach to fighting terrorism. In her estimation, we need the Muslim world’s support to fight terrorism effectively. In this regard, Mariner was disappointed in the most recent filing in the detainee litigation which, while it rejected the rhetoric of the Bush administration and laid to rest the controversial and unsupported term “enemy combatant”, resulted in only a slight modification to the Bush approach to preventative detention in practical effect.

With respect to the detainee categories, those who have been implicated in crimes should be prosecuted. The federal courts have already demonstrated that they are capable of this and may, indeed, have been overly harsh in certain terror cases (e.g., Padilla). The indictment of al Marri was an encouraging sign that President Obama has put some faith in the federal court system to deal with these cases.

Of the persons who cannot be tried and should be released, there is the concern that many of the GTMO conditions will be replicated overseas. Human Rights Watch researchers, for example, interviewed high government officials in Yemen, who implied that the Bush Administration had sought to create a proxy detention regime there with only a thin veneer of rehabilitation. In order to convince our allies in Europe to help us resettle these individuals, we’re going to have to set good faith example and accept some of these individuals into the United States. Immediately resettling the Uighurs, for example, would have jump started resettlement negotiations with Europe.

In terms of the problem of characterizing the current situation, Mariner noted that the Bush Administration capitalized on ambiguity between the formal war in Afghanistan and the so-called “global war on terror.” She noted that although NATO passed a resolution endorsing a military response to 9/11 (one that was focused on Afghanistan just as the AUMF), the UN Resolutions subsequent to the attacks all have Al Qaeda in mind and call for traditional law enforcement responses with no reference to war rhetoric. Indeed, Mariner noted that many of our closest allies have argued that applying a war paradigm to the global terrorism challenge is counter-productive and feeds into perception of the Muslim world that this is a war on Islam.

The rest of the panelists opposed Commander Sulmasy’s proposal for any sort of a national security court. Glazier acknowledged that terrorists have dual characteristics (criminal/warrior), but queried whether we need new law and institutions to bridge this gap. Depending on the circumstances, we can freely choose between existing bodies of law to respond to dangerous individuals, as long as we faithfully adhere to domestic and international legal standards. He is concerned that national security courts will inevitably involve departures from core due process protections that we hold dear out of mere expediency. Otherwise, why would we need them? He is also concerned that if we make arguments about why we need such courts based on the difficulty of invoking standard criminal law processes, it will be too easy to expand this “special” process to other “tough cases,” such as drug smugglers and organized crime members.

On the question of whether we need a more formal preventative detention regime, Pearlstein noted that many human rights organizations do not categorically oppose security detention. (Indeed, it is affirmatively authorized in the 4th Geneva Convention for non-combatants who post security risks). The question remains: is such a system sensible as a matter of US policy and counter-terrorism strategy? This requires a consideration of whom we are talking about preventively detaining. Where people are apprehended engaging in violent acts, they can be prosecuted for such crimes as providing material support for terrorism, even if the acts in question were committed extraterritorially. So, any preventative detention regime would likely be used for mere members of dangerous groups for whom there is insufficient evidence that they actually did anything. Detaining and thus incapacitating a marginally low-level and expendable Al Qaeda member will serve some minor specific deterrent effect. If we detain too many of his brethren, however, it might also risk radicalizing his inevitable replacements. The long-term strategic rationale for such a system is questionable.

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.

Since the nation's founding, persons lawfully residing in this country have correctly understood that they can be imprisoned for suspected wrongdoing only if the government charges them with a crime and tries them before a jury.

So ends the IHT's report that the Supreme Court decided on Friday to hear the case of Ali al-Marri (at left, credit), the only person still held in military detention within the US. After the Court of Appeals for the 4th Circuit ruled in June 2007 that Al-Marri must be charged or released, the case was reheard en banc. In a decision split into 2 separate 5-4 majorities on 2 different issues, the court held that the president has the necessary authority to detain Al-Marri, but that Al-Marri has not had a sufficient opportunity to challenge his detention.
Al-Marri came to the United States to study computer science and was living with his family in Peoria, Illinois when he was arrested in December 2001 amidst the nationwide roundup of men of Middle Eastern origin that followed the September 11th terrorist attacks. Eventually charged with credit card fraud, Al-Marri was about to stand trial 18 months later when President Bush designated him an enemy combatant. Just like José Padilla, (right, credit) Al-Marri was transferred to the U.S. Navy Brig in Charleston, South Carolina. But unlike Padilla, who was eventually transferred back into the criminal justice system where he received a trial, Al-Marri has remained in isolation at the brig since mid-2002. By the time the Supreme Court rules on his case later this term, he will have been there for 7 years, and the question he will put before the court will have been waiting almost 8 years to have been answered:

Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize — and if so does the Constitution allow — the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?

Let's hope the Court tackles - and answers - this question head on.

... and counting ... the surge

(Occasional sobering thoughts.) Initially uttered a year ago by proponents of the Iraq war, these last months "The Surge Is Working" refrain has seemed the received wisdom about Iraq. Not even Democrats -- who, as we posted, had pushed back during primary debates -- bothered any more to argue otherwise.
Thus the news out of Mosul, that 2 U.S. troops are dead and 6 wounded, at the hands of an Iraqi soldier who was supposed to be part of their coalition, is a bit jarring.
More jarring still, news that there were at least 21 other casualties yesterday, and that a dozen of them occurred in a "single attack," when "a booby-trapped car exploded, followed by another bomb blast at a bus station in a working class district of Baghdad."
Most jarring, perhaps, is consideration of what must be meant by the "it's working" refrain even on days without so many casualties. If available numbers are correct, in this period when the refrain went largely unquestioned, somewhere between 180 and 200 Iraqi civilians were killed every week: Iraq Body Count's current estimate, that between 88,947 and 97,086 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003, represents an increase of between 1,304 and 1,422 deaths in the last 7 weeks in the country whose emigrants are seeking asylum in numbers greater than any other group.
Nor was yesterday's incident in Mosul the only 1 during this period that involved troops. According to the U.S. Defense Department, 4,195 American servicemembers have been killed in Iraq. Total coalition fatalities: 4,509 persons. That's 23 servicemember deaths in the last 7 weeks, all of them Americans.
Put aside whether "the surge" will work as troops draw down. Even as things now stand, to say "the surge is working" seems to say that the current numbers are acceptable.
As for the conflict in Afghanistan, "it's working" is seldom heard.
There military casualties in Afghanistan stand at 626 Americans and 381 other coalition servicemembers. That's an increase of 21 and 5, respectively, in the last 7 weeks, and a total servicemember casualty count 1,007.
As for civilians and nonmilitary personnel, numbers are harder to come by. Today's news tells of a suicide bombing that killed 18 civilians and 1 soldier. Earlier headlines give no moree comfort:
► Afghan woman police director gunned down
► Taliban gunmen kill Western aid worker on Afghan street
► Afghanistan says 17 civilians killed in fighting
► Afghan Civilian Deaths Acknowledged By Pentagon, Officials Say 30 Killed In Strike
And Pakistan, the new front on which we've posted, remains an issue. A U.S. aid worker was killed there yesterday, a French aid worker kidnapped last week. Moreover, The New York Times reported on Sunday:

The United States military since 2004 has used broad, secret authority to carry out nearly a dozen previously undisclosed attacks against Al Qaeda and other militants in Syria, Pakistan and elsewhere, according to senior American officials.