Balkinization  

Monday, June 04, 2007

Why The Dismissal of the Khadr Trial is Important

JB

Col. Peter E. Brownback III, a military judge, has thrown out the war crimes charges against Omar Khadr, a Guantanamo detainee. He did so on the ground that the new military tribunals set up by the Military Commissions Act of 2006 (MCA) lack jurisdiction to try Khadr.

According to Brownback, the MCA gives his court jurisdiction to try "unlawful enemy combatants." (See 948b(a) of the MCA, which states the jurisdiction of the commissions.). However, Khadr, who was tried before a Combatant Status Review Tribunal (CSRT) under the Detainee Treatment Act, was adjudged merely to be an "enemy combatant."

Khadr's situation is hardly unique. Other detainees that the Administration wants to try under the new courts created by the MCA also had similar CSRT hearings, and were also held to be "enemy combatants."

If Brownback's decision holds up (the NY Times reports that the appeals court that could hear an appeal has not yet been set up!), it would mean that all of the detainees that the Administration wants to try will have to be brought in front of new CSRT hearings to determine whether or not they are "unlawful enemy combatants."

The NYT Times article quotes a military official who remarked that "it had always been “implied” that Mr. Khadr was an unlawful combatant." and that "This is just a semantic decision."

In fact, it is not. There are two types of enemy combatants. Lawful enemy combatants are entitled to all of the protections of the Geneva Conventions, in particular the protections of the Third Geneva Convention, which lays out the treatment of prisoners of war. Unlawful enemy combatants are entitled only to the protections of Common Article III. If the CSRT hearings only determined that the detainees were enemy combatants but not that they were unlawful enemy combatants, then, as I read Article 5 of the Third Geneva Convention, the detainees are entitled to all of the protections of the Third Geneva Convention until such time as they are determined not to be prisoners of war.

Given the treatment the detainees have received at Guantanamo up to this point, the U.S. would be in clear breach of the Geneva Conventions with respect to all of these detainees. (Indeed, even if the detainees were adjudged unlawful enemy combatants, the U.S. is probably in breach of Common Article III. But let's not go there.).

The United States can, of course, hold new CSRT hearings for each of the detainees and declare them unlawful enemy combatants. And, as Marty pointed out when the MCA was first passed, the language of the MCA does not even require that CSRT's make this determination; they can be made by any "competent tribunal established under the authority of the President or the Secretary of Defense." Presumably, then, the Secretary of Defense could create courts under any rules he liked to hold that the detainees were unlawful enemy combatants.

What this episode reveals is not that the Administration won't ultimately be able to try these detainees as unlawful enemy combatants. What it shows is the Administration's continuing incompetence in dealing with the Guantanamo situation. After the Supreme Court's Hamdan decision held that the Administration's first attempt at creating military commissions was illegal, the President went to Congress and asked for vast new powers and enormous discretion. The Republican majority in Congress, eager to run on the War on Terror in the 2006 elections, gave all this to him, and more. And yet, even with all these new powers and all this discretion, the Administration has screwed up the second group of tribunals it designed. I would say this is a disgrace, except that the Military Commissions Act which sets up the new tribunals is the true disgrace. This latest episode is a carbuncle on a wart on a disgrace.

Comments:

All that you say is true, but I find a silver lining: this continues to prove that the majority of military judges and lawyers are honorable people who will not be yes-men for the Administration's desires. No doubt that Col. Brownback is getting vilified by some higher-powered people right now for sticking to the letter of the law. If we have to have military tribunals, I'm thankful that at least we have ones staffed by people like him who will make them at least a little better than mere show trials.
 

Professor Balkin:

Exactly how did the Administration "screw up" the tribunals?

The tribunals and the rules under which they were held occurred before the MCA was a glimmer in the eye of the congressional aides who drafted it. Unless the military can foretell the future, there is no way they could have guessed what the new rules would be.

This is like claiming that the police screwed up interrogations of criminal suspects prior to the Miranda decision because they did not have the foresight to know that the Court would in the future require them to read certain instructions to their suspects.

I am going to assume that Col. Brownback simply wants all the Ts crossed and the Is dotted so the military commission cases are air tight before going into the court system on appeal. Otherwise, this ruling makes little real world sense.

The purpose for the tribunals were to decide whether the capture fell under one of three categories - lawful enemy combatant, unlawful enemy combatant and civilian. Because these captures were found in civilian clothing without any insignia, the tribunal only had to decide whether they were combatants or civilians because a lawful enemy combatant cannot be so attired. Therefore, it is unsurprising that the military simply called them enemy combatants or civilians rather than adding on the further descriptor lawful or unlawful to the term enemy combatant.

Moreover, the military obviously considered those found the be enemy combatants to be unlawful enemy combatants. They were extended none of the Geneva Convention rights of POWs and in every public announcement the military informed the world that these prisoners were not legally entitled to POW status.

Exactly where is the confusion here outside the hyper technical world of semantics?
 

You seem to be saying that when the determination hearings were conducted, the result was that the detainees were put in the 'enemy combatant' category. If this language tracks the Geneva Conventions, then I guess that the determination was that they deserve every right that a prisoner of war would get.

Why didn't anyone notice this before? This is either bad lawyering on the government's part to not know the significance of the determination, or on the defense side to not immediately use this information to get their clients all of their rights.

Maybe better late than never.
 

I don't think it was bad lawyering. The administration sets its own rules, it has it both ways constantly; every time the civilian lawyers for prisoners try to pin Bush & Co., the administration or the Pentagon change the terms, or the interpretation of terms, or move the goal posts.

The CSRT was not competent to determine whether the prisoners were POWs. As the CSRT legal advisor, James Crisfield, pronounced: the CSRT "do not have the discretion to determine that a detainee should be classified as a prisoner of war -- only whether the detainee satisfies the definition of 'enemy combatant'."

Thus all prisoners were found to be "enemy", not "unlawful enemy", combatants.

It wasn't an accident this happened. Bush/Cheney did not want any tribunals to meet that were competent to determine whether a prisoner was a lawful or unlawful combatant. It didn't want to attach either label. "enemy combatant" is neither the one nor the other, but the Pentagon planned to treat it (as and when it wished) as if it meant unlawful...without, however, permitting it to fall under even Common Article Three.

They were playing fast and loose, and they got blocked today, at least temporarily.

One of my main concerns is that Bush & Co. will use this ruling to run down the clock, first by appealing, then by constituting the appeals court, then by reviewing their options, then by reconstituting CSRT vel sim. to declare prisoners are "unlawful", then (a year or two from now) starting from square one again. Bush/Cheney don't have an answer, how to get out of the legal black hole they created. Run out the clock, and somebody else gets to pick up after them.

The rulings today remind me of a comment made several months back on one of my own posts about the new rules for the Gitmo commissions. The commenter stated that one of the truly remarkable things about the new commissions is that, unlike any other regularly constituted court, they are not competent to decide whether they have jurisdiction.

I think today we saw the judges struggling with that problem, and finding a way to establish some veneer of legitimacy by nullifying their jurisdiction under the MCA wording.
 

Prof. Balkin, you are mistaken when you state:

"There are two types of enemy combatants. Lawful enemy combatants are entitled to all of the protections of the Geneva Conventions, in particular the protections of the Third Geneva Convention, which lays out the treatment of prisoners of war. Unlawful enemy combatants are entitled only to the protections of Common Article III."

Geneva 3 protects POWs under common article two -- and anyone who doesn't qualify as a POW under Geneva 3, art. 4, is protected by Geneva 4 as a CIVILIAN.

Common Article 3 applies to armed conflicts which are not covered by CA2, whether or not they are combatants, or lawful, or otherwise.

The key point here is that if Geneva 3 POW protections (and the conditions for denying such protection) are releventm then CA3 doesn't enter into the picture atr all -- the default protection is Geneva 4 Civilians.
 

Bart,

There is no confusion and there aren't any semantics in play either. This is a very simple situation:

You and the administration are nothing but disgraceful liars and hypocrites.

And that is putting it kindly.
 

All the Germans and Japanese tried for war crimes before military commissions after WWII were lawful combatants. Lawful combatants can also shoot prisoners or murder under a flag of truce, and there is no reason why they should have to be tried by court martial instead of the traditional military comission. So in part this is congressional Republican incompetence in adding an unnecessary restriction to the law.

When a detainee comes before the CSRT one of two things happen. If the detainee gives name and some form of rank and demands treatment as a POW under the Geneva Convention, then he would be entitled to an Article 5 tribunal under the GC. His claim precludes any possibility that he is not a combatant. The decision now is whether he is a POW, or an unlawful combatant. However, when this question was raised, somewhat indirectly, in the CSRT for Moazzam Begg, the presiding officer ruled that the Combatant Status Review Tribunals do not have the discretion to determine that a detainee should be classified as a prisoner of war -- only whether the detainee satisfies the definition of "enemy combatant".

At the same time, if the detainee challenges the claim that he is an enemy combatant, he can never claim to have been a "lawful" combatant. To be a lawful combatant and POW you may not deny your combatant status. The only possible outcome of such a CSRT would be either to find the person to be "not a combatant" or else to find him to be an "unlawful combatant".

So although Navy Secretary England noted that CSRTs had been designed with Article 5 tribunals in mind, and pointed to a reference to Article 5 tribunals in the Hamdi decision, the failure of the military to provide for a real Article 5 process within the CSRT created today's embarrasing screw up.

If Khadr claimed he was not a combatant, that would be tantamount to admitting guilt to a murder for which there was a dozen witnesses. If he claimed combatant status and was found to be a POW, then this trial would not have been held because he could not be charged with any crimes. The only other alternative would have been that he came to the trial classified explicitly as an "unlawful combatant" or more accurately as an "unprivileged belligerent".

Today's mistake was entirely self inflicted and the fault lies both with the Administration and old Republican Congress. You can take either side on the merits of the MCA, but whichever side you choose you still find the administration to be a bunch of bumbling incompetents.
 

Professor Balkin: (Indeed, even if the detainees were adjudged unlawful enemy combatants, the U.S. is probably in breach of Common Article III. But let's not go there.).

Respectfully, Sir, why not? I am probably not the only reader who would benefit from reading your summary of when Common Article 3 applies and when it doesn't. Why let the miscreant's off the hook? Or is it a truly arguable point?
 

"Bart" DePalma sleeps with his boots on:

The purpose for the tribunals were to decide whether the capture fell under one of three categories - lawful enemy combatant, unlawful enemy combatant and civilian. Because these captures were found in civilian clothing without any insignia, the tribunal only had to decide whether they were combatants or civilians because a lawful enemy combatant cannot be so attired.

... and his wife is getting sick of the smell....

Cheers,
 

Because these captures were found in civilian clothing without any insignia, the tribunal only had to decide whether they were combatants or civilians because a lawful enemy combatant cannot be so attired.

Not strictly true, I think; if he was a member of the nation's principal armed force (i.e., the Taliban), then I don't think the bit about uniforms, etc. applies.

Mr. Gittings can doubtless speak to this better than I can.
 

The military judges, apparently, view the 'war on terror' as no more than a 'law enforcement matter'.
 

BDP:This is like claiming that the police screwed up interrogations of criminal suspects prior to the Miranda decision because they did not have the foresight to know that the Court would in the future require them to read certain instructions to their suspects.

Ah, but go one more step. The police didn't screw up because they didn't know what would be required prior to putting the case into the courts.

However, the ex post facto nature of the MCA made its specific requirements pertain to all detainees, so it was obvious that its preconditions would have to be met prior to trial by military commission, regardless of when the detainees were captured or faced a CSRT.

Since the administration knew what was required nine months prior (arguably more, as they were familiar with the text being pushed through Congress) to the beginning of the military trial, it does indeed seem like a "screw up."

The Miranda analogy would work better if it went like this:

The police wrote the text of the Miranda warning, clamored for its adoption, got it made into binding law, and then, after all that, introduced into evidence the confessions of prisoners who had not been given fair Miranda warnings.

They were extended none of the Geneva Convention rights of POWs and in every public announcement the military informed the world that these prisoners were not legally entitled to POW status.

Saying it doesn't make it so! You've told us that a hundred times in these threads; what someone says in a speech or public announcement does not substitute for actual legal findings.
 

Anderson said:

I think; if he was a member of the nation's principal armed force (i.e., the Taliban), then I don't think the bit about uniforms, etc. applies.

You are mistaken. The fact that an individual is a member of a nation's principal armed forces does not absolve him of his responsibility to "have a fixed and distinctive emblem" (uniform), etc. A good example is in Ex parte Quirin et al., 317 U.S. 1, 35-6 (1942), in which the Court stated:

"By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War."
 

PMS_Chicago said...

Since the administration knew what was required nine months prior (arguably more, as they were familiar with the text being pushed through Congress) to the beginning of the military trial, it does indeed seem like a "screw up."

You may want to go up to the new thread on the more detailed Hamdan decision. These status determinations were performed months before the MCA was first drafted. The problem is arising from a slight change in the 2004 definition of unlawful combatants for the purposes of wartime detention and the later 2006 MCS definition as it applies to the nature of support a capture needs to have provided to al Qaeda.
 

According to Bart:

The purpose for the tribunals were to decide whether the capture fell under one of three categories - lawful enemy combatant, unlawful enemy combatant and civilian. Because these captures were found in civilian clothing without any insignia, the tribunal only had to decide whether they were combatants or civilians because a lawful enemy combatant cannot be so attired.

It seems to me that levee in masse may applicable to Khadr - thus negating several of the laws of international armed conflict (i.e. fixed distinctive emblem).

I haven't looked into it much - but how much of an argument can be made that Khadr was consequently a lawful enemy combatant?
 

Bart, addressing PMS_Chicago: You may want to go up to the new thread...

...because our favorite vandal will be practicing his famous disappearing act rather than stay for another spanking. Indeed, let's all do meet him there, and bring along whatever cut-and-pastes we need to keep him honest, if such is possible.
 

Robert, et al:

The professors have been good enough to invite us here and only ask that we stay on topic. If you want to discuss another topic with me, show some consideration and go over to this open thread I have set up for that purpose over on my blog.
 

You may want to go up to the new thread on the more detailed Hamdan decision. These status determinations were performed months before the MCA was first drafted.

I appreciate the offer, and of course, I've seen the new thread. I'll join you there presently.

However, it doesn't change my point: it is not a question of when the status determinations were made vis-a-vis the MCA's adoption; it is, rather, a question of when the trial itself was begun vis-a-vis the MCA's adoption. In the current cases, trial began several months after the MCA was adopted, meaning that the Government had plenty of lead time to consider the fact that the designation of the detainees did not match the requirements of the MCA. Nevertheless, they went to court expecting either to get deference from the judges of the military commissions or to be able to prove the designation on demand. That they didn't prepare by requesting a new CSRT or by implementing a systematic method (like the one you suggested)of reframing the status in terms of the intent of the MCA (e.g. all "enemy combatants" are necessarily "unlawful enemy combatants"), suggests that they flubbed it.
 

PMS_Chicago said...

In the current cases, trial began several months after the MCA was adopted, meaning that the Government had plenty of lead time to consider the fact that the designation of the detainees did not match the requirements of the MCA. Nevertheless, they went to court expecting either to get deference from the judges of the military commissions or to be able to prove the designation on demand. That they didn't prepare by requesting a new CSRT or by implementing a systematic method (like the one you suggested)of reframing the status in terms of the intent of the MCA (e.g. all "enemy combatants" are necessarily "unlawful enemy combatants"), suggests that they flubbed it.

Actually, based on the Hamdan order, it appears the military did go into the hearing prepared with an argument that there is no substantial difference between the MCA definition of an "alien unlawful enemy combatant" and the earlier tribunal standard for "enemy combatant." The Court disagreed. The prosecution had nothing to lose by testing the argument to see if it succeeded before redoing dozens of tribunal hearings.
 

"The prosecution had nothing to lose by testing the argument to see if it succeeded before redoing dozens of tribunal hearings."

The defendants, however, had everything to lose. Isn't this like saying that it's ok for a prosecutor to try for a conviction without presenting evidence (oh, wait, this is Gitmo...)?

And by the way, nice head fake to the new post, then dodging back to here. I hope you don't conduct your legal arguments with such obvious skill.
 

Bart De Palma writes:
Because these captures were found in civilian clothing without any insignia, the tribunal only had to decide whether they were combatants or civilians because a lawful enemy combatant cannot be so attired."
By this reasoning, the partisans and fighters in the Warsaw ghettos fighting Nazi Germany would have been considered "Unlawful Enemy Combatants".
If an Military force invades our country Mr Depalma I hope you will take up arms to repel it Regardless of what the hell your wearing, I know I will. Also did all the Revolutionary war fighters wear uniforms? Under your analysis would they have been "Unlawful Enemy Combatants"?
 

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