Balkinization  

Friday, August 04, 2006

Why Bother with Military Commissions?

Marty Lederman

In today's Washington Post, professors Jack Goldsmith and Eric Posner propose ditching the whole idea of military trials for Al Qaeda detainees. They note that the government has been very slow to charge many of the detainees -- only ten up to this point. And there's good reasons for that, as Goldsmith and Posner correctly note: First, trials are inappropriate, because the vast majority of the detainees have not committed anything that has traditionally been thought of as war crimes: The government "can prosecute these detainees only for the vague and problematic crime of conspiracy to commit a terrorist act based on membership in and training with al-Qaeda or the Taliban." Second, trials would be infeasible, because "witnesses are scattered around the globe, and much of the evidence is in a foreign language, or classified, or hearsay -- in many cases all of these things."

So what should be done instead? Goldsmith and Posner propose that the military simply continue to detain the prisoners until the end of hostilities with Al Qaeda (a day that we may never see), just as we have traditionally detained opposing warriors in battle until the end of the war. They note that traditionally "the purpose of wartime detention is not to punish but to prevent soldiers from returning to the battlefield." This is essentially the theme sounded by Justice O'Connor in her plurality opinion in Hamdi. And thus these are the key sentences in the editorial: "A legitimate wartime detainee is dangerous, like a violent mental patient subject to civil confinement, and that is reason enough to hold him. This has been the legal justification for terrorist detentions to date, and it will almost certainly be the basis for future detentions."

This reasoning would be fairly compelling except for one thing: Under the terms announced by Goldsmith & Posner, many (perhaps even most) of the detainees at GTMO and Bagram are not "legitimate," because they were never proven to have engaged in any hostile acts against the U.S. and its coalition, let alone to have come from any "battlefield." (See the studies of Corine Hegland and Mark Denbeaux.) As Goldsmith and Posner undoubtedly know, many of the detainees were captured and sent to one of those detention centers not in order to incapacitate them from battle, but in order to interrogate them for intelligence. The Administration's vague and capacious definition of "enemy combatant" in this conflict has extended far beyond the group of people who have committed or planned terrorist acts, or fought against us on a "battlefield": It includes persons vaguely suspected of being associated with Al Qaeda in some way, no matter how tenuously -- and we detain these people in the hopes that a small number of them, we know not which, might have valuable information for us, and not because of a fear that they will return to fight against us.

To their credit, Goldmsith and Posner (like O'Connor) recognize that the wartime-incapacitation detention model is under strain here, because this conflict may be indefinite, and not have an obvious end. Thus, they propose that "Congress should require a rigorous process for determining the status of enemy combatants," with "periodic review, perhaps yearly, to determine whether the detainee remains dangerous and thus warrants continued detention."

This is a good idea as far as it goes. But what about those hundreds of detainees who were never dangerous in the first instance?

[UPDATE: In the comments section, Scott Horton asks whether the entire conflict shouldn't simply be treated within the ordinary criminal process -- as the first bombing of the World Trade Center was (not to mention Tim McVeigh). (Correction: See Scott's clarification in the comments section -- he's simply referring to the need for some trial, perhaps military, of those actually responsible for terrorist attacks. I agree with this, and I think G&P do, too. The hard question is what to do with the hundreds of other detainees.) My response was basically this: Even if Scott is right that the major terrorist acts are crimes -- and surely he is -- G&P are also correct that Congress has overwhelmingly chosen to treat this also, or primarily, as a military conflict -- a concerted set of attacks on the U.S. as such. The vote was 518-1 on this question, and that's not going to change any time soon -- it's really a non-issue, as a practical matter.

What's most interesting about the G&P editorial is that it virtually concedes that most of the detainees have not committed crimes -- not even war crimes -- but are instead more closely analogous to traditional battlefield detainees. They're certainly right as to at least some of the GTMO and Bagram detainees -- those that fought in Afghanistan, for instance. But what about the others, those that are much more peripherally connected to AQ? And what about a group in the middle -- those who have not engaged in battle or terrorism, but who might have trained at AQ training camps? The editorial does not address this middle-ground question, but I think it will become increasingly important. Which reminds me of a question I've been meaning to ask: Historically, under the laws of war, can a belligerent state detain soldiers, such as reserves, who have trained to fight for the enemy but who have not engaged in battle and who have not been captured on the battlefield? I think this question is analogous to that raised in the case of many GTMO and Bagram detainees.] [UPDATE: Professor Dave Glazier has some very valuable answers to such questions, and comments on the broader problem, down in the Comments and at Intel Dump (see the comments there, too).]

Comments:

The proposal is troubling for another reason: the terroristic methods used by al Qaeda and its affiliated groups are essentially criminal in nature, and the United States has a strong interest in demonstrating the criminal conspiracy and the criminal deeds in a fashion which is both public and convincing. Such a step is essential to America's retention of the moral high ground in this conflict, to demonstrate that America abides by the principles it espouses (with respect to the criminal justice system), and to further the interests of the public at large (and particularly the victims and those affected by these crimes) in seeing that justice be done. What lurks behind the Goldsmith and Posner proposal? Is it not a lack of confidence in a minimally fair criminal justice process? We are not talking about full-blown constitutional protections found in a domestic setting here, of course. Under the Military Commissions system a rougher kind of justice will prevail, but it should be one that never the less meets basic notions of fairness.
 

Well, Scott, even if you are right that the major terrorist acts are crimes -- and surely you are -- I think G&P are correct that Congress has overwhelmingly chosen to treat this also, or primarily, as a *military* conflict -- a concerted set of attacks on the U.S. as such. The vote was 518-1 on this question, and that's not going to change any time soon.

What's most interesting about the G&P editorial is that it virtually concedes that most of the detainees have *not* committed crimes -- not even war crimes -- but are instead more closely analogous to traditional battlefield detainees. They're certainly right as to at least some of the GTMO and Bagram detainees -- those that fought in Afghanistan, or that participated in terrorist acts. But what about the others, those that are much more peripherally connected to AQ? And what about a group in the middle -- those who have not engaged in battle or terrorism, but who might have trained at AQ training camps? The editorial does not address this middle-ground question, but I think it will become increasingly important.
 

That reminds me of a question I've been meaning to ask: Historically, under the laws of war, can a belligerent state detain soldiers, such as reserves, who have trained to fight for the enemy but who have not engaged in battle and who have not been captured on the battlefield? I think this question is analogous to that raised in the case of many GTMO and Bagram detainees.
 

Marty, I am afraid you misunderstood my post, or I was too vague in setting it out. I do not think that the crimes here need to be handled "within the ordinary criminal process," though that is an option. The United States is within its rights treating the crimes within the war paradigm and prosecuting them accordingly. In my mind the choice of forum (whether civilian courts or military tribunals) is less important than that there be trials, in which the charges are aired and proven. It is also clear that not all of those detained have committed crimes in this sense, nor are they proper subjects for prosecution. But if we have captured individuals who can be connected clearly and directly to terrorist activities, such as the 9/11 attacks, they should be charged and brought to justice. Churchill and Roosevelt faced this issue in the closing year of the war in Europe, and they came to a correct solution, driven by correct considerations. We could benefit from revisiting their thinking today. The other problem that G&P raise is the notion of detaining combatants to the end of a conflict. There are serious problems with this when you have a conflict that is as ambiguously defined as this one is, but that's a question for another blog.
 

Is there any plan ever to try the handful of prisoners reported to be in CIA custody somewhere, such as Khalid Shaik Mohammed, who are actually believed to be significant Al Qaeda figures? Or has our treatment of them already rendered these cases ineligible for trial in any court or commission?
 

Well I've been pondering what I want to say about the larger issues here, but let me start with this question...

"Which reminds me of a question I've been meaning to ask: Historically, under the laws of war, can a belligerent state detain soldiers, such as reserves, who have trained to fight for the enemy but who have not engaged in battle and who have not been captured on the battlefield? I think this question is analogous to that raised in the case of many GTMO and Bagram detainees."

Like so many others questions about these matters, this one is just a figment of the administration's rhetoric that disappears when you simply read the actual law:


* Geneva III POWs art. 4 states:

"Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy... [list]."


* Geneva IV Civilians art. 4 states:

"Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." (With the caveat that GCIV only protects persons who are NOT protected by GCI & GCII (wounded etc), or GCIII (POWs).)


* Cf. Hague IV (1907) Annex art. 3 (which together with Hague IV Annex arts. 1-2 was superceded by the precedeing provisions of Geneva 1949):

"The armed forces of the belligerent parties may consist of combatants and non- combatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war."


* For added historical perspective, see the Lieber Code (US Army General Orders No. 100, 1863), arts. 49-57.

The folder with that file also has texts of Geneva, Hague, IMT, etc:

http://www.justicescholars.org/pegc/_LAW_/
 

"Historically, under the laws of war, can a belligerent state detain soldiers, such as reserves, who have trained to fight for the enemy but who have not engaged in battle". A state can detain any member of the armed forces of the enemy, or any civilian who engages in combat. This means that a soldier can be detained five minutes after he enlists and takes the oath. The question, then, is what consititutes "enlistment" within the more informal environment of Jihad. In Islam, Jihad is the duty of every person. Traditionally someone decides to join, fights the infidel, and then goes home without any formal ceremony. Since we are dealing with religous fanatics who would regard a conventional army as a violation of God's Law, making a clear distinction is difficult. However, it has to be made and you have to take their religion into consideration when defining the difference, because we cannot assert that only American or Western standards of military organization are legitimate.
 

"A state can detain any member of the armed forces of the enemy, or any civilian who engages in combat. This means that a soldier can be detained five minutes after he enlists and takes the oath."

Howard -- I'm not suggesting that this is wrong; but could you please provide some authority for it? Soldiers, even reserves, can be picked up in a civilian setting and detained until the end of war?

Thanks
 

I'm coming to Marty's follow up question a little late. The rule has been stated in the following terms: "all members of the armed forces of a party to a conflict are combatants, except medical and religious personnel." This means that whether the personnel are actually engaged in combat is not relevant - what controls is their service position. A more generous view would be to exclude all personnel, even if uniformed, if their service position is essentially non-combat (that might, for instance exclude lawyers, judges, engineers, etc., but the practice of most uniformed services is dual-functionality, i.e., a person might serve as a JAG, but he would still be trained and capable of functioning as a combatant, with combat-oriented functions). Civil defense personnel, police, home guards and others are a difficult borderline case, they could be viewed as combatants, but the US official position has been to say they're not. (See the Naval Handbook at sec. 605). A solid collection of authorities on this in the Red Cross CIHL book connected with r. 6. Note that this is a different question from EPW treatment - the uniformed service personnel get that whether their function is combatant or not.
 

I don't think POW status is a separate issue: the only lawful authority for indefinite detention without criminal charges is POW status under GCIII.

When Marty says...

"I think G&P are correct that Congress has overwhelmingly chosen to treat this also, or primarily, as a *military* conflict -- a concerted set of attacks on the U.S. as such."

... I agree that's an accurate description of what Congress and the administration have done.

The problem is that it doesn't matter -- as Scott says, a fair trial is required in any case. The alternative is to buy into the administration's idiotic notion that the Constitution permits the President to function as a Roman Emperor.

And I also think that it's now very clear that the administration and Congress were simply WRONG.

We've heard for five years now how this, that, and the other was "necessary" in order to fight their silly war on everything and nothing -- but where is there any evidence that anything they've done was either effective or necessary? In Iraq or Afghanistan? In the trivial accident that Al Qaeda hasn't made another attack on the US proper? In Gaza and Lebanon?

What the evidence says is that this administration it the most corrupt and incompetent in the history of this country, and surely that is nowhere more obvious than in their "legal" policies.

I don't get why we are even considering the question of how to change the law to permit these fraudulent kangaroo courts to proceeed. The one thing that is surely obvious beyond all doubt is that the entire operation at Guantanamo was designed to do one thing and one thing alone: to circumvent the law entirely.

Marty's original post asked: "So what should be done instead?"

Add it all up and I think the answer is just as simple and clear as the question.

They should do the one thing that has never ONCE entered their corrupt little minds: obey the law.

The only real problem we have here is that the Bush administration is a gang of criminals.
 

This comment has been removed by a blog administrator.
 

Going back to the earliest U.S. legal treatment of prisoners of war (the 1785 Treaty of Amity and Commerce between Prussia and the United States) I can find nothing which makes POW status contingent upon how or where an individual was captured, but rather just upon their organizational affiliation. It certainly seems likely, for example, that enemy officers found taking passage on a neutral vessel would have been considered fair capture in past conflicts unless they enjoyed some sort of diplomatic immunity. And would anyone have objected if the WWII Nazi saboteurs, captured in such non-battlefield locales as the streets and hotel rooms of New York and Chicago, had been detained as POWS instead of rushed before a military commission and electrocuted?

As Marty notes, whether we think it is wise or not, the U.S. is legally engaged in a congressionally authorized conflict -- not the Global War on Terror the Administration wishes to proclaim -- but at least a war against al Qaeda (as the group responsible for 9/11) and the Taliban (as a group that sheltered them). It thus seems incontrovertable that the U.S. can detain members of those organizations for the lesser of the duration of hostilities or until an individual no longer poses a credible threat due to mental or physical incapacity, acceptance of a parole, etc. While it seems to make a big difference to many commentators that this war is open-ended, no one has ever known for sure how long any war would last while it was in progress. Remember the 30-Year's War? The 100-Years' War? (Both named ex-post, of course). What does matter in this unique conflict, however, and needs to be intelligently debated and decided is:

(1) What criteria determine membership in al Qaeda or the Taliban? Is attending a training camp sufficient, given that they seemed to be open to almost anyone with jihadist interest such as Chechens, Uighurs, etc. with no necessary interest in affiliating with one of the groups falling within the scope of the congressional Authorization for the Use of Military Force? Or must there be more specific evidence of affiliation with one of the AUMF criteria? (I would personally argue for the latter).

(2) What process will be used to determine whether detained individuals who contest their classification are in fact validly subject to detention? Even if Geneva III Article 5 specifically applied to this conflict, it provides no specific guidelines as to "competent tribunal" composition or procedure. The CSRT process seems woefully inadequate, not because I (or anyone else) can point to specific procedural standards they violate, but rather because there is now plentiful evidence in the public arena that the majority of those detained to date have been innocents caught in the wrong place at the wrong time yet the CSRTs have misclassified the majority of those they have reviewed.

(3) Under what conditions will the detainees be kept? To my thinking one of the most egregious aspects of Guantanamo is that it is modeled entirely on prisons, whereas 200+ years of both treaty and customary law of war development clearly restricts detention of those held because of miliary danger (rather than law violation) to the minimum degree of rigor necessary for security with a clear requirement for adequate facilities for mental and physical recreation, etc. I'm a true believer in the law of war, but about the only issue I've ever found myself agreeing with Alberto Gonzales on are that there are actually a few "quaint" provisions in Geneva III. Aside from some of the financial provisions found in Section IV of Part III, article 25's mandate that "prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area" seems problematic given the significant emphasis the U.S. military has placed on quality of life in the modern all-volunteer era. The base at Guantanamo, for exampe, has some very nice modern enlisted quarters meeting current U.S. standards for single servicemembers assigned there for a full tour. Although less palatial, many of the rotational deployers are housed in shared multi-bedroom former-family housing units made surplus by the removal of the base's primary fleet training mission a decade and a half ago. It's a bit much to expect a camp for detainees (many from poorer third world countries) to meet those standards, but surely we should do much better than the current detention facilities, as even Goldsmith and Posner acknowledge.

While I think it has some serious flaws, one of the specific advantages Sen. Spector's draft military commission bill has over the Administratio's is its specific addressal of significant improvement to the CSRT process. But the other key issues as to what tangible criteria should be used to define an enemy liable to detention in this conflict and under what conditions may they be held seem largely overlooked to date by all participants in the debate.
 

Howard Gilbert wrote:
"In Islam, Jihad is the duty of every person. Traditionally someone decides to join, fights the infidel, and then goes home without any formal ceremony. Since we are dealing with religous fanatics who would regard a conventional army as a violation of God's Law, making a clear distinction is difficult. However, it has to be made and you have to take their religion into consideration when defining the difference, because we cannot assert that only American or Western standards of military organization are legitimate."

This misrepresents Islam. The greater jihad, in the Quran and in Shar'ia, is the struggle of each Muslim to follow the teachings of Islam. The lesser jihad is resistance against attack on the faithful. The fact that some Muslims have morphed the two into an obligation to engage in offensive warfare against non-Muslims in general and the US in particular does not make this sound Islamic law or theology.
 

I do not comment on what is or is not valid Jihad. The enemy believes they are fighting Jihad, which then effects their organizational formalities. In the West joining the military is a vocational decision, has a ceremony, and changes your legal status from civilian to soldier. In Islamic law, however, Jihad is something a person decides to do one morning, and does not change your status. If you can decide to do it, you can decide to stop. There are no "deserters" from Al Qaeda. So how then does one determine if someone fulfils the first Geneva Convention qualification for being a POW: "Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces." In the West, membership is clear, formal, and legal, or we would not have a basis for charging deserters with an offense.

Padilla made a big deal of the fact that while he had signed up and been trained, he had not taken the oath of obediance to Bin Laden. On the other hand, it appears that this oath was only given to a handful of top officers. The enemy distinguishes between a small core leadership cadre that they call Al Qaeda and the large mass of fighters who they do not regard as part of the Al Qaeda organization, but rather as volunteers trained and led by the real Al Qaeda.
 

I realize this may be a big mistake on a law-blog, but I would like to ask what amounts to a question of morality.

If you're Joe Random Crazy Nutcase, and you bomb a building, you get fed to the criminal justice system. Your trial must respect a whole raft of safeguards that ensure that the government's allegations against you are rigorously validated by an independent judiciary and a disinterested jury. At the end, if the prosecutor got everything right, maybe, just maybe, you get sent to prison.

On the other hand, if you are Joe Only Slightly Different Nutcase and hang out with Very Bad Terrorist Folks before carrying out your (identical) bombing, you get handed over to the military. Now, it is proposed, the situation is vastly different. The government gets to imprison you (normally the last step, viewed as the imposition of a punishment) for as long as it determines that you remain dangerous. We're debating what process should be involved here, but it sure as heck isn't going to be a jury trial.

My question is: how can we understand this to be right, in the sense of moral? Our two imagined example nutjobs are different only in their chosen ideologies and acquaintances. Stepping back from the machinery we discuss in such fine detail, how can we defend their vastly different treatment?

Bonus points for actually answering the question, as opposed to explaining how this is, in fact, the current state of the law.
 

Posner and Goldsmith - who gave us the limits of international law while skipping the entire post-War European creation in their analysis - are now saying we should not do prosecutions and just hold these guys at Gitmo for the duration of hostilities Weren't these persons at Gitmo supposed to be the worst of the worst - and that was one of the principal arguments for creating Gitmo? If the conclusion is that we should not prosecute because "it is hard" and might be "unwise", it seems that the evidence used to determine they are the worst of the worst is not sufficiently probative - it will not stand up to the light of scrutiny by an independent and impartial tribunal. Very fatiguing having to parse the hype instead of focusing on protecting us from real threats.
Best,
Ben
 

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