International Law & WikiLeaks

(Delighted to welcome back alumna Mary Ellen O’Connell (below right), who contributes this guest post on release of classified documents by WikiLeaks, an issue on which alumna Patricia M. Wald posted yesterday)

I generally share Judge Wald’s critical view of WikiLeaks’ action.
In thinking about the matter from the perspective of international law, so far I see three areas of special interest:

1. Prosecution
State Department Legal Adviser Harold Koh, Attorney General Eric Holder, Secretary of State Hillary Clinton, and others have all discussed prosecuting “those responsible” for the document dump. The main figure associated with WikiLeaks is the Australian, Julian Assange. He is thought to be in hiding somewhere in Europe. Interpol has issued an international arrest warrant for Assange, to send him to Sweden to face questioning. I have seen no reports of a U.S. request for an international arrest warrant. (credit for logo of Interpol Red Notice)
My first thoughts in this episode have concerned on what basis Assange could be brought to the U.S. for prosecution. If he comes into Swedish custody, for example, and the United States then requests his extradition, NPR is reporting that the basis of criminal prosecution would likely be the Espionage Act. (See, e.g., 18 U.S.C. sec. 798 “Disclosure of Classified Information”.)
The Espionage Act seems to be narrowly drafted and to contain details that might well make it difficult to meet the requirements of U.S. extradition treaties.

2. Terrorism
Perhaps for the issues raised in Point 1, U.S. Rep. Peter King (R-N.Y.) is calling for WikiLeaks to be declared a terrorist organization? I wonder if Rep. King believes that declaring WikiLeaks a terrorist organization means that the U.S. will treat Assange as an “enemy combatant?” International law has no authority to support such assertions. We can hope that the administration will definitive reject them, and even reconsider other cases where criminal suspects are currently being treated as “enemy combatants.” (See my soon-to-be forthcoming article, “The Choice of Law Against Terrorism.”)

3. Diplomacy
We can further hope that this case will wake up governments around the world to greater vigilance on behalf of international law.
We should all be very concerned that certain Middle Eastern governments want to see military force used against Iran. There is no right to use military force against a state for the possession of even unlawful weapons. (See my “The Ban on the Bomb and Bombing, Iran, the U.S., and the International Law of Self-Defense”.) This is only one example. The documents are full of issues we in international law should be bringing to public awareness.
Ironically, in some cases involving the United States and non-compliance with international law, I wonder if governments are going to read the unflattering documents and either end cooperation or pressure the United States into ending non-compliant conduct? I have written about U.S. uses of military force in Yemen that conflict with international law. Is Yemeni President Ali Abdullah Saleh going to continue to cooperate in this after what has been said about him?
And, of course, all of us in international law need to be concerned about the attempt to steal private information concerning the Secretary-General of the United Nations.
The gratuitous gossip in some of the communications is also striking — it made me think of the Rolling Stone interview with General Stanley McChrystal. (prior IntLawGrrls post)
The WikiLeaks decision to release this material was reprehensible. Hopefully the right lessons will be learned from it with respect to the conduct of diplomacy and the goals of U.S. foreign policy.

An unfortunate detention incentive

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

In a surprising ruling with remarkably broad implications, the U.S. military has been told that it can seize suspected terrorists anywhere outside the United States, send them to the U.S.-run Bagram detention facility in Afghanistan, and thereby deprive them of the right to challenge their detention in a federal court.

Although the court didn’t address the issue, treating terrorism suspects this way is not supported by the laws of war as interpreted by the U.S. Supreme Court -- that Court has not authorized indefinite detention of individuals seized far from the battlefield.
The unanimous decision in Al Maqaleh v. Gates was issued last week by Judges David B. Sentelle, David S. Tatel, and Harry T. Edwards of the U.S. Court of Appeals for the District of Columbia Circuit. The case involves two Yemenis and a Tunisian, one of whom was arrested in Thailand and another in Pakistan, and all of whom were transported to Bagram by U.S. authorities and imprisoned there. Deemed “enemy combatants” when they were seized, they've been at Bagram, without charge or trial, for the past seven years. (Prior IntLawGrrls posts here and here.) (credit for U.S. Army photos made at BTIF, the Bagram Internment Theater Facility)
On its face, the situation of detainees brought to Bagram from outside of Afghanistan would seem to be similar to that of the detainees at Guantánamo Bay, who the Supreme Court in Boumediene v. Bush (2008) ruled do have the right to challenge their detention in a U.S. court.

► Both cases involve imprisoning foreign suspected militants captured abroad and brought to a U.S. military base for indefinite confinement. In Boumediene, the Supreme Court ruled that detainees do have habeas corpus rights because the U.S. has de facto sovereignty over its naval base in Cuba pursuant to a century-old lease. In Maqaleh, the appellate judges acknowledged that the United States appears to have similarly complete control over its Bagram facility in Afghanistan.
► As in Boumediene, the Court of Appeals also acknowledged in Maqaleh that the hearings the U.S. military was giving detainees at Bagram did not constitute due process; in fact, they were even worse than those provided at Guantánamo Bay. Although the hearings have improved over the past year under the Obama administration, the new Detainee Review Board system still doesn’t give Bagram prisoners the right to be represented by a lawyer or even to see the evidence against them. (Now detainees are appointed a “personal representative” who is not a lawyer, and may call witnesses who are “reasonably available” to testify. They still can’t see classified evidence, which may constitute the bulk of the government’s case against them.)
Still, although all this weighed in favor of the detainees’ demand for judicial review, the D.C. appeals court ultimately ruled last Friday that the “practical obstacles” of granting Bagram detainees habeas rights were just too great (p. 16), given that the prisoners are located in an active theater of war halfway across the world.
But should that determine whether the detainees are entitled to due process? Consider these responses:

► As American University Law Professor Steven Vladeck has pointed out, the only reason these detainees were in that theater of war is because the U.S. government had abducted them from other countries and sent them there. The ruling in Maqaleh thus creates a perverse incentive for the U.S. government to move every terror suspect seized anywhere outside the United States to a U.S.-run offshore detention facility, in order to imprison the suspect indefinitely and to evade judicial review.
► As Salon commentator Glenn Greenwald has put it, as a result of Maqaleh,

'the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged.'

If the detainees had been lucky enough to get sent to Gitmo, they might have had a federal court hearing by now.
Meanwhile, it’s not clear that the United States even has the legal authority to continue to detain anyone at Bagram.
The United States argues that its indefinite detention authority stems from the ongoing conflict in Afghanistan. But the war against the Taliban and al Qaeda is not an international armed conflict between nation-states. And there’s no legal authority for detention in a non-international armed conflict such as this one, where Afghanistan has its own domestic laws and criminal justice system. That may be why President Hamid Karzai during his most recent visit to the United States pressed President Obama to turn over the detention facilities to Afghan control as soon as possible.
The Obama administration says it eventually wants to do that.

But it says it doesn’t have enough confidence yet in the integrity and independence of the Afghan justice system to trust that the guilty will actually be imprisoned and the innocent will be allowed to go free. The United States has plans to train judges and lawyers at Bagram and to try to root corruption out of the justice system, at least in national security cases. But that effort has barely begun, and could take years to really have an impact. In the meantime, the U.S. is significantly expanding the prison facility.
Even if the Obama administration eventually does turn over Afghans arrested in Afghanistan to the local authorities, this question remains:

What to do with the rest of the prisoners – the ones who were the subject of the ruling in Maqaleh?

Some military officials want to keep the Bagram prison available for insurgents captured outside Afghan borders. U.S. military leaders in Afghanistan, meanwhile, fear that would inflame local tensions and make Bagram, like Gitmo, another recruiting tool for insurgents. Recent reports of prisoner abuse at Bagram only fuel that concern. But the prison expansion – which is reportedly adding three new detention housing units – suggest that plan has significant support.
International law is apparently not figuring much into these plans. If the laws of war had any say here, captured insurgents would be detained in the countries where they’ve been arrested or allegedly committed crimes. After all, the United States is not supposed to have detention facilities around the world – a point implicitly acknowledged when, upon taking office, President Obama publicly pledged to close most of them – from Guantánamo Bay to the CIA’s secret detention facilities around the world.
Bagram is the one prison he’s wavered on. Unfortunately, by its decision in Maqaleh the U.S. Court of Appeals in Washington has just handed Obama a big incentive to keep it open.

Military Commissions Act of 2009: New AND Improved?

Congress passed several amendments to the Military Commissions Act last Thursday, as part of the National Defense Authorization Act for Fiscal Year 2010. President Barack Obama signed the legislation yesterday.

An earlier version of this post stated that "There is much of importance — some good, some less good — in this legislation." That post went on to focus on the war crimes provisions of the MCA in light of our prior posts on this topic (see, e.g., here and here) (Others have discussed some of the procedural aspects governing the use of coerced confessions and the applicability of Miranda warnings or the collateral review aspects). Unfortunately, the earlier post was based on a prior version of the legislation that did not ultimately get passed. As a result, there is less good in the new legislation as I detail below.

►First (good), the legislation comes closer to standard international humanitarian law lexicon in addressing itself to “alien unprivileged enemy belligerents” rather than “alien unlawful combatants.” Thus, the basic concept statutory provision has been changed from:

§ 948b. Military commissions generally

(a) Purpose. This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

to:

(a) Purpose. This chapter establishes procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission.

An “alien unprivileged enemy belligerent” is defined at Sec. 948a(7) as:

an individual (other than a privileged belligerent) who—
(A) has engaged in hostilities against the United States or its coalition partners;

(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or

(C) is a member of al Qaeda.

This definition adds to our genealogy of efforts to define who may be detained and prosecuted in the post-9/11 era.

►Second (good), Congress has deleted reference to the status of military commissions as “regularly constituted courts” affording the necessary “judicial guarantees” for the purpose of common Article 3. The original legislation — passed in the wake of Hamdan v. Rumsfeld (2006), which classified the armed conflict with Al Qaeda and the deposed Taliban as a Common-Article-3 non-international armed conflict, at a minimum — boldly asserted that the military commissions satisfied common Article 3, as if the courts would simply accept such a claim:

(f) Status of commissions under common Article 3. A military commission established under this chapter is a regularly constituted court, affording all the necessary "judicial guarantees which are recognized as indispensable by civilized peoples" for purposes of common Article 3 of the Geneva Conventions.

In deleting this language, Congress acknowledged that it is the courts that will decide whether such commissions meet U.S. constitutional and international law obligations and that simply saying something is so does not make it so.

► Third (bad), the legislation still asserts that it does not create any new crimes. The 2006 MCA stated that all of its enumerated crimes pre-existed its enactment and thus could be invoked in a criminal prosecution arising out of pre-2006 events, such as the attacks of 9/11 or even the U.S.S. Cole and Khobar Towers attacks. The original language stated:

§ 950p. Statement of substantive offenses

(a) PURPOSE.—The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.

(b) EFFECT.—Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter.

A draft version of the legislation that did not get passed had more appropriately hedged this a bit when it stated:

§ 950p. Definitions; construction of certain offenses; common circumstances

(d) Offenses Encompassed Under Law of War—To the extent that the provisions of this subchapter codify offenses that have traditionally been triable under the law of war or otherwise triable by military commission, this subchapter does not preclude trial for offenses that occurred before the date of the enactment of the National Defense Authorization Act for Fiscal Year 2010.

This language, which acknowledges that just because Congress says something was already penalized by the law of war does not make it so, unfortunately did not make it into the final legislation. New Section 950p(d) has the same effect as the language in the 2006 MCA.

► Fourth (good), the status of the Geneva Conventions as a source of law has been elevated considerably. Originally, the legislation purported to prevent the treaties' invocation in any setting and for any purpose. This language stated:

(g) Geneva Conventions not establishing source of rights. No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.

The 2009 legislation states at Sec. 948b:

(e) Geneva Conventions Not Establishing Private Right of Action—No alien unprivileged enemy belligerent subject to trial by military commission under this chapter may invoke the Geneva Conventions as a basis for a private right of action.

Thus, while the original provision purported to bar any invocation of the Geneva Conventions, the new language accepts that the Conventions may be applicable offensively in habeas proceedings or defensively in penal proceedings by providing only that they may not give rise to an independent cause of action.

►Fifth (bad), conspiracy (the charge of choice before military commissions) is still listed as a substantive crime. In the rejected draft version of the legislation, conspiracy appeared only as a form of responsibility applicable to all the enumerated offenses along with attempt, solicitation, superior responsibility, accessoryship, etc. This change was not adopted, and so the new MCA still allows for the prosecution of an inchoate crime of conspiracy, notwithstanding that a plurality of the Supreme Court in Hamdan determined that no such crime exists under the law of war. Had the draft language been adopted, conspiracies would have been prosecutable only as a form of responsibility when some substantive war crime that was the object of the conspiracy was committed.

► Sixth (good), the legislation includes at §950p(c) a more explicit war nexus, thus limiting the ability of the government to use military commissions to prosecute crimes that occurred prior to the initiation of an armed conflict involving the U.S. The starting date for any conflict involving the U.S. has never been definitively established, but any such armed conflict likely commenced on September 11th at the earliest and October 7, 2001 (when the U.S. invaded Afghanistan) at the latest. (Although Justice Thomas in Hamdan and others have argued that any armed conflict was initiated earlier, either when Al Qaida "declared war" on the U.S. (Justice Thomas's theory) or attacked our embassies in Kenya & Tanzania). The new war nexus states:

(c) Common Circumstances—An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with armed conflict.

Incidentally, the formulation of the war nexus is identical to that in the ICC's Elements of Crimes.

► Seventh (good, I guess), the crime of spying has been slightly redefined to more clearly reference the law of war (added text in bold):

Any person subject to this chapter who, in violation of the law of war and with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct.

There is much to digest in this massive piece of legislation. The amendments described above are welcome, albeit too modest. Congress would have done better to cut more deeply into the list of purported war crimes to cull out all the novel offenses, including

• inchoate conspiracy,
• material support for terrorism
• and murder of a privileged combatant

rather the leaving the task of determining their cognizability to the commissions (and the courts if they're allowed to get their hands on these cases). Had the crime of conspiracy actually been deleted as was obviously contemplated, many of the existing military commission cases would have had to be re-worked in light of the heavy reliance on that charge.

'Nuff said

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

'Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.'

-- U.S. District Judge Jeffrey S. White (N.D. Cal.) (above right), explaining why he denied a motion to dismiss a challenge to Bush-era detention and interrogation techniques. (photo credit)

In the lawsuit captioned Padilla v. Yoo, Case No. 08-00035, on which IntLawGrrls posted when it was filed, onetime "enemy combatant" detainee José Padilla (bottom left) seeks damages against John Yoo (top left), former Bush Administration lawyer and current California-Berkeley law professor. White had taught civil trial advocacy at Berkeley Law, as an adjunct, for more than 20 years before assuming the federal bench on nomination of President George W. Bush.

Al-Marri pleads guilty

Ali Saleh Kahlah al-Marri, the Qatar-born U.S. permanent resident whom the Bush Administration held in "enemy combatant" detention, pleaded guilty yesterday at the U.S. District Court in Peoria, Illinois (right). The offense: material support for terrorism, punishable by up to 15 years in prison. His plea agreement is here; his sentencing is scheduled for July 30.

The Obama Administration transferred al-Marri early this year once it secured U.S. Supreme Court dismissal of his legal challenge to detention-without-charge. (Prior posts here.) That challenge that had not reached final judicial determination notwithstanding that litigation had dragged on for well over 5 years.

Al-Marri's conviction by guilty plea came just 9 weeks after his indictment in the ordinary federal criminal justice system.

'Nuff said.

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.

E.C., We Hardly Knew Ye

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

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

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

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

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

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

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

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.

Guantánamo Update

On January 22, 2009 -- exactly 7 years and 11 days after the first detainee was brought to Guantánamo -- President Barack Obama signed an Executive Order which requires the closure of the Guantánamo Detention Center within one year. The Order also:
► Calls for the participation of the heads of several agencies to cooperate in reviewing every detainee's case on an individual basis to determine whether the detainee can be released, transferred, or prosecuted pursuant to an Article III court.
► Allows for the determination of an "other disposition"; that is:

With respect to any individuals currently detained at Guantánamo whose
disposition is not achieved [by release, transfer or prosecution], the Review shall select lawful means, consistent with the national security and foreign policy intersts of the United States and the interests of justice, for the disposition of such individuals.

► Specifically calls for "humane standards of confinement" under applicable law, including Common Article 3 of the Geneva Conventions, for the individuals detained at Guantánamo.
In anticipation of the Executive Order, on January 21, Judge Reggie B. Walton of the U.S. District Court for the District of Columbia stayed the habeas proceedings in the case of three Guantánamo detainees who are before him. Walton did so at the request of the Government, which had stated that it needed time to figure out how to proceed.
Other district court judges with detainee habeas proceedings, however, are moving forward.
On the same day the Executive Order was issued, Judge John D. Bates invited the new administration to revise the government's position regarding the appropriate defintion of "enemy combatant" to be used in the habeas proceedings and, in another case, ordered the government to state whether it had audio or video recordings, or transcripts of statements made by the detainee, or contemporaneous notes taken during interrogations. (At left, images from the interrogation of Omar Khadr.)
Similarly, Judge Gladys Kessler gave both petitioner and the government a January 29th deadline for their submissions on the definition of "enemy combatant." In another habeas case, Kessler ordered discovery to proceed with certain disclosures from the government due on February 6.

(More on effects of the President's order below.)

1st court-released Gitmo detainees go home

This week has seen the end of a long and painful journey for three of Guantánamo Bay’s most well-known detainees.
This Tuesday Mustafa Ait Idir (right), Hadj Boudella, and Mohamed Nechla returned to their adopted homeland of Bosnia and Herzegovina after spending six years in U.S. custody as “enemy combatants.” The men, together with their compatriots Saber Lahmar, Lakhdar Boumediene and Belkacem Bensayah, were at the center of the U.S. Supreme Court’s latest rejection of the Bush administration’s executive detention policies. In that case, Boumediene v. Bush (discussed earlier here), the Court upheld the petitioners’ right to challenge their detention under the constitutional privilege of habeas corpus and ruled that the government’s Combatant Status Review Tribunals were inadequate substitutes for habeas review. In remand proceedings last month, Judge Richard Leon, of the U.S. District Court for the District of Columbia, ordered the government to release all but Bensayah, on the ground that there was insufficient evidence to justify their continued detention.
The U.S. Department of Defense announced the transfer of Idir, Boudella and Nechla in a terse statement this Tuesday, after which the men were flown to the Sarajevo airport. There they were debriefed by local authorities and reunited with their families, with whom they have had no contact for at least six years.
Upon his return to Bosnia, Idir had this to say about his detention in Guantánamo:

For almost seven years, I was at the end of the world, at the worst place in the world. It would have been hard even if I had done something wrong (but) it is much harder if one is totally innocent.

All six men had been transferred to U.S. custody in 2002, under suspicion of plotting to attack the U.S. embassy in Sarajevo -- despite the fact they they had been acquitted of those very same charges just months earlier by the Supreme Court of Bosnia and Herzegovina. Unhappy with that outcome, in 2002 U.S. officials pressured Bosnian authorities to surrender the men or risk losing American presence in their country. Three of the six men had remained in continued executive detention until Tuesday.

Boumediene (right) and Lahmar are still at Guantánamo, awaiting release.

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.