Balkinization  

Thursday, June 12, 2008

Tea Leaves Part II -- Who May the President Detain Indefinitely?

Marty Lederman

The Second Question Presented by the Boumediene petitioners was the substantive question -- one that the trial judges will now consider on habeas -- of who, exactly, the President is authorized to indefinitely detain in the conflict against al Qaeda. (I have much more to say about the merits of this question, and its application to the Bosnian Boumediene petitioners, in my posts in this Federalist Society debate.)

Not surprisingly, the Court emphasized that it was not resolving that question now. Two sentences in the Court's opinion, however, are relevant and (potentially) quite important on this question.

First is this one, on page 59: "Whether the President has such authority [to detain petitioners indefinitely] turns on whether the AUMF authorizes—and the Constitution permits—the indefinite detention of 'enemy combatants' as the Department of Defense defines that term."

Two things interesting about this. The first is that the Court appears to agree with the petitioners that the scope of detention authority is a matter of congressional intent as reflected in the AUMF (which the Court in Hamdi properly construed to incorporate the laws of war) -- with no mention of any additional constitutional detention authority, as argued by the SG.

Second, and more important, the Court very conspicuously indicates that there might be constitutional limits on the power of even the Congress to authorize indefinite detention. That's a very fascinating, and important, suggestion that is sure to be much-discussed now that the Court has held that the detainees are entitled to at least some constitutional protections.

The second sentence is this one, on page 68:

"The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security." I am reluctant to read too much into this sentence, which was not included in a discussion about the scope of detention authority. But it does at least hint at the same point that Justice O'Connor made in her plurality opinion in Hamdi, namely, that dangerousness -- i.e., actual combatancy or threat of terrorist activity -- is the touchstone for indefinite detention, and that perhaps the military lacks the authority, which the Bush Administration has asserted and exercised, to indefinitely detain persons either because they have "aided" al Qaeda or affiliated terrorist groups, and/or because of their intelligence value (see discussion here).

Comments:

In short, the Court is suggesting that:

(1) It is assuming the CiC power from the President and the military to determine who can and cannot be detained as a POW, and

(2) it is further reversing Quirin and Eisenrager to grant civilian constitutional criminal due process rights to foreign POWs. Can a requirement that our troops Mirandize the enemy on the battlefield be far behind?
 

(1) Didn't Hamdi hold that already (although Scalia and Stevens presumably still disagree with that as it relates to US citizens)?

(2) No, for the same reason that Verdugo-Urquidez is not going to be reversed as to searches. Under authority dating back at least as far as Balzac v. Porto Rico, some, but not all, constitutional rights have extraterritorial effect. Presumably Miranda will not.
 

For what it's worth, Bart is copying the "Miranda on the battlefield" joke from a thread over at Volokh. I was wondering how long it was going to take him to invoke it here. Hilarious.

That must be why his posting is so light here today; he's busy reading other people to figure out what he thinks of this whole thing. Once he reads enough blogs he'll be back here to resume his normal duties with a fervor. The Miranda thing is a good start. I can't wait to see what further blog postings he adopts as his own thoughts.
 

Eric:

The Miranda jibe is mine. However, it is such an obvious shot, I am probably about the 500th wag on the web to use it.
 

[I]t is further reversing Quirin and Eisenrager to grant civilian constitutional criminal due process rights to foreign POWs

I think that this is close to the heart of the question, although it gets it wrong.

The Court, in my view, is entirely willing to let the government treat the detainees as POWs if it chooses to do so.

But I think that the Court might very well take a "you can't have your cake and eat it too" position. It might, in other words, say, you may either

(1) treat someone as a POW, in which case you can indefinitely detain them in decent conditions until the end of the hostilities, OR

(2) treat someone as a civilian criminal who is entitled to due process similar to that of a criminal defendant (including some sort of fair trial within a reasonable time for alleged war crimes), but more lenient than the criminal process as necessary to accomodate the extingencies of the situation.

BUT, you can't indefinitely detain someone like a POW, and also deprive them of both POW conditions and quasi-criminal justice provisions.

In short, I think that the Court has a certain amount of skepticism of the "enemy combatant" category that the administration has tried to establish and its consequences.

The Court might even reach the point of stating that unless you engage in a prompt and fair quasi-criminal process to accuse a detainee of war crimes that you must treat them as a POW even if they don't formally qualify for that status under Geneva, if you want to detain them indefinitely.
 

"An Originalism for Foreign Affairs?" by Ingrid Wuerth available at

http://ssrn.com/abstract=1134887

a 5/19/08 draft, may be helpful in tying in originalism with this and related posts on this Blog. Articles by several posters on the subject of originalism are cited. The article is only 19 pages in length with extensive footnotes.
 

The impact of the decision has different implications depending on the status of the detainees, which I believe fall into three categories. One category consists of the roughly 75 we intended to prosecute. Having reviewed the evidence, it seems clear none of them are being detained arbitrarily. Hamdan, for example, was captured with two surface-to-air missiles in his car and the only thing flying in Afghanistan at the time was us and a few geese, so it is hard to argue he is being arbitrarily detained. The second category consists of the roughly 70 that have been approved for transfer or release, if we can find a country willing to take them that will not kill them, subject them to torture, or just set them loose. Since they have already been approved for release or transfer they do not really gain anything by virtue of the decision. The third category is the 125 or so that I would call general detainees. If there really are any goat herders who were scooped up, sold to the Americans, and ended up at Gitmo they would be in this third group. The decision has the greatest impact on them. This will afford them their day in court to show their detention is arbitrary.

That said, there are two competing interest at play with respect to the 75 we intended to prosecute. Some on the government side are intent on pressing ahead at full speed to move as far as possible before a new administration takes over in hopes of legitimizing the process and gaining enough momentum to prevent a new administration from shutting it down. If they can get KSM into court, as they have now done, and make some headway, it will be difficult for a new commander-in-chief to look the surviving family members in the eye and say he is going to halt the process. On the other side, the defense believes that whoever wins the White House will be more favorably disposed to their clients and institute a process with greater rights and protections, so they want to delay until the new administration takes office. The decision may give them an additional arrow to use habeas to delay the trials long enough for that to happen.

Secretary of Defense Robert Gates said this week that people need to have the courage to throw a flag when they see things that are wrong so those with the power to do something about it take notice and address the problems. I thought I threw a flag with my resignation (and I have been jumping up and down on it for seven months trying to get someone in authority to take notice). The Supreme Court has thrown the flag three times now. Judge Keith Allred, in his decision on unlawful command influence in the Hamdan case, threw a flag saying the legal advisor to the convening authority was breaking the law by become the de facto chief prosecutor. The flags are flying and I hope Congress finally takes notice. In the end, it is the difference between Olympic wrestling and professional wrestling: one is fair contest where the best man wins and the other is a show with a pre-determined outcome made to look like a contest. There are a lot of smart people with some good ideas to contribute on a way ahead that honors our notion of justice and commitment to the rule of law. I hope we will take a deep breath and take the time to give this thoughtful consideration before crafting a solution. We have shot ourselves in the foot over and over for long enough. We have got to get it right this time.
 

The US may be willing to grant me POW treatment, but if I insist that I am not an enemy combatant then treatment does not address my due process rights. When an enemy soldier "carries arms openly" by wearing a uniform, carrying a military ID card, or giving name, rank, and serial number when captured, then he may demand POW status. If there is any question, Army regulations require the US version of the tribunal described in Article V of GC 3. No such tribunal has used during the war because no detainee has asked for one.

When someone demands POW status he admits to his combatant status. He then has no Habeas rights because he has nothing more to contest. When someone denies his combatant status, he surrenders any right to POW status (he is not carrying arms openly). However, he may be entitled under this ruling to a Habeas hearing on the question of his combatant status classification.

The process is then driven by the claims of the detainee and not how we treat him. It is because the detainee demands POW status that he surrenders Habeas rights. By demanding Habeas rights, he surrenders any POW status.

While I believe that some detainees are entitled to POW status, the US cannot be procedurally faulted since none have demanded this status and it is not self evident (no uniform, no ID card, no name rank, and serial number) that they are entitled to it.
 

The second category consists of the roughly 70 that have been approved for transfer or release, if we can find a country willing to take them that will not kill them, subject them to torture, or just set them loose. Since they have already been approved for release or transfer they do not really gain anything by virtue of the decision.

It seems to me that the courts might well say to the government "fish or cut bait" as to this category. They could actually benefit the most.

Hamdan, for example, was captured with two surface-to-air missiles in his car and the only thing flying in Afghanistan at the time was us and a few geese, so it is hard to argue he is being arbitrarily detained.

Agreed. The issue, in that case, would seem to be whether he gets treated as a POW or whether his actions constitute some crime.

BTW, I assume from your post that you are Col. Davis. In that case, I'm thrilled to see you posting here and hope you'll continue to do so.
 

Yes, welcome indeed.
 

(1) It is assuming the CiC power from the President and the military to determine who can and cannot be detained ....

Wow. Yes, that's what habeas has done to no lesser mortals than kings for nigh on a millenium.

Cheers,
 

The Miranda jibe is mine. However, it is such an obvious shot, I am probably about the 500th wag on the web to use it....

So many eedjits, so little time. :-(

Cheers,
 

And my warm welcome to Morris Davis too, who I've admired for his principled stance, and who I have quoted a number of times on my blog.

I hope you can take the time to contribute substantially to the discussions here.

Make yourself at home!

Cheers,
 

Howard Gilbert:

When someone denies his combatant status, he surrenders any right to POW status (he is not carrying arms openly).

Say, I'm
"not carrying arms openly". Where does that put me? Guantánamo?

But FWIW, under GC3, until a status determinationas been made, if there's any question, a person should be treated consistently with GC3. And GC3 doesn't require that anyone "demand" or "claim" their status either.

But that's neither here nor there: Many of these people aren't claiming to be POWs. They're claiming to be unlawfully detained.

Cheers,
 

"Article 17

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner's surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth."

Standing silent is not an option. If you want to be a POW then you have to follow the rules or at least make the claim. If you make the claim and it is denied, then

"Article 5

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

However, the Article 5 tribunal is only triggered "should any doubt arise" and there is no doubt if someone is not in uniform, does not carry the ID card, does not respond with name, rank, and serial number, and does not claim POW status. If all those things are true, there is no doubt and no requirement for a tribunal.

Admittedly no detainee has demanded POW status, so this is not an issue in the cases at hand. Rather, it explains the error of the Scalia, Thomas, Alito dissent which claimed:

"The category of prisoner comparable to these detainees are not the Eisentrager criminal defendants, but the more than 400,000 prisoners of war detained in the United States alone during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court—and that despite the fact that they were present on U. S. soil." The reason why these POWs would not be entitled to Habeas under this ruling is not that they were classified and treated as POWs (where they are passive and the deciding factor is our action), but rather that each and every one of them gave his name, rank, and serial number and presented his ID card to claim combatant status (and thereby waived a Habeas claim).
 

I think you will find, HowardGilbert, that if a person does not qualify for POW status due to not wearing insignia and carrying arms openly, the intent of Geneva is that he is a saboteur or a spy (it was written in 1949). That qualifies him to all POW rights save communication with the outside world.

Furthermore, if that person does not qualify due to not being a citizen or soldier of a high party, then they qualify for Common Article 3 rights, among which is the right to challenge his status before a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Presumably, that would be a court such that if it ruled a person was not lawfully detained, it could set them free. That was what the Court today said was wrong with the CSRTs among other things.

There are plenty of opinions written, and available on the ICRC web site indicating the intent of the articles, and clear to the signers when they signed and ratified it. The clear intent was that there is no one without rights, and no place with no laws.

By the way, someone who does not carry arms openly because they are not a combatant, is a civilian. They are under GC4, not GC3, and the occupying power may not remove them from their country. Not only that, such civilians are eligible for status hearings with a predisposition towards releasing them, every 6 months.

Any way you look at it, you can't use Geneva to argue that someone has no right to challenge detention.
 

Bellinger notes that whenever he discusses treaties with the Europeans they all insist that the treaties must mean what they wish the treaty said instead of what it actually says. The US State Department points out at every opportunity that we do not accept this, that the Conventions mean exactly and only what they say, and that the European view is not and can never be regarded as generally accepted international law.

Being a spy or saboteur is an capital offense, a violation of the laws of war. There is (and you see this a lot if you look at the formal charge sheets in the military commissions) a lot of confusion between formal military spies under orders from an enemy military commander (who are subject to court martial) and civilians who spontaneously commit sabotage during occupation (who are subject to GC 4 justice). Neither type of spy is entitled to actual POW protection. Rather there are other rules in other parts of international law (the GC is not the only source of international law). For example, if a military spy while pretending to a civilian commits an ordinary civilian crime and is captured, then he can be tried in civilian court for the crime (which GC 3 prohibits for any POW), and he can be tried in a military court for violations of the laws or war.

Consider Hamdan who consistently and even before the military commission claimed that he was a civilian instead of a soldier. Since he was captured carrying weapons in the vicinity of active combat, the military judge ruled that he was an unlawful enemy combatant (which in this case means a civilian who without combatant privilege engages in combat and is captured). Specifically, he was ruled to not fall in any category of GC 3 Article 4 and therefore to not be entitled to POW status. Although a civilian, he is subject to trial for his unlawful combatant activity (just as the Eisentrager defendants were tried and convicted for the same charge).

Since GC 4 only covers enemy nationals (Afghan citizens), and Hamdan is a Yemeni and therefore not covered (under the US insistence on the actual language of the convention and not the Eurotrash revisionist "but we intended it to mean something else even if it doesn't say that" view). So GC 4 does not prevent the US from removing him from Afghanistan as it would had he been an Afghan national.

The whole principle of GC 3 and POW status would prevent a challenge to the precise detention that GC 3 describes. If someone falls under GC 3 then he belongs in a POW camp as described in GC 3 and it would be illegal to hold him in any other type of facility. More importantly, a POW remains a soldier in the enemy army subject to the chain of command. Capturing an enemy soldier does not change that status. Thus the POW has no individual rights, but is rather a member of the unit of enemy soldiers in the camp. Collectively they have rights as a captured unit of the enemy army. Individually they do not have rights because they are subject to the lawful commands of the highest ranking military commander.

Earlier this week we saw formal military charges presented against the commanders of the 9/11 attack. A bunch of lawyers jumped up and down because KSM was allowed to talk to the others and appeared to be giving orders. Well, in a real POW camp run according to the GC 3 rules, KSM is the highest ranking detainee at Gitmo, so he is the enemy camp commander. He is supposed to give orders. That would be his right, and we would not be allowed to interfere. Which poses an interesting problem not addressed by the MCA or other forms of military law. What happens when the enemy chain of command in a POW camp issues orders that interfere with the individual rights of defendants charged with military crimes. This has not happened before, and there are no rules that cover it. It will be interesting to see how the military judge handles the problem.
 

It's not correct to say that POWs give up their individual rights because they are part of an enemy "unit."

While POWs do have some collective rights, they also have the right to humane treatment as individuals, the right to be accounted for to the IRC as individuals, etc.

The basic problem is this eat-the-cake-and-have-it-too attitude that wants to strip a class of people of any rights at all. There cannot ever be a rightless class of people under U.S. law or international law.

Allowing the existence of ANY rightless class of people would be fatal to liberty for everyone.

The profound foolishness of allowing the government a loophole to declare people to be without rights -- no matter how good the reason seems to be -- will cause no end of trouble in the future. Such a power WILL be abused. The Jihadists will fade away sooner or later, as all such causes do. The precedents for government abuse will remain, available for misuse by some future authority.
 

There is a class of people with few or no individual rights subordinate to the authority of others. We call them children. They have to do what their parents tell them to do and have little right on their own to challenge their parents authority (although the state can challenge that authority on their behalf in cases of abuse). Well soldiers similarly give up most of their individual freedoms when they join an army. They can no longer go where they want and do what they want, but must follow the lawful orders of superiors. This does not change after capture.

Captured enemy soldiers do not have rights as individuals from the source that US citizens, resident aliens, and visitors have. Rather they have rights through the protections provided by GC 3 and international law, rights secured for them by their government and army. While the US may not treat them inhumanely, no such rule protects them from corporal punishment by their superior officers in response to an internal court if they breach their own military discipline.

However, when an enemy POW is charged by the US with criminal conduct, then he acquires individual rights as a defendant that he did not have as an ordinary POW. This creates the potential problem if those individual rights come into conflict with the direct orders of his superior officers. There is no evidence that this happened with KSM, but the defense lawyers would like to claim it happened.
 

Howard Gilbert:

"Article 17

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.


That applies to POWs. But even such 'punishment' must conform to GC3.

IOW, that's irrelevant.

Standing silent is not an option. If you want to be a POW then you have to follow the rules or at least make the claim. If you make the claim and it is denied, then...

Ummm, where does it say that?

"Article 5

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."


Bingo. Doesn't say anything about the person needing to assert any claim.

Thanks for quoting that.

Cheers,
 

Howard Gilbert:

However, the Article 5 tribunal is only triggered "should any doubt arise" and there is no doubt if someone is not in uniform, does not carry the ID card, does not respond with name, rank, and serial number, and does not claim POW status.

As i pointed out previously, such as me. I can assure you I'm not carrying arms openly.

I'm not in uniform (well outside of my customary T-shirts).

I don't carry any dog-tags.

I won't respond with name, rank, and serial number.

And I won't claim POW status.

Cheers,
 

Howard Gilbert:

Being a spy or saboteur is an capital offense, a violation of the laws of war.

No. You might be surprised to know that the "laws of war" don't specify what is a "capital offense". Not to mention, sabotage and spying is not an ius cogens "war crime" ... matter of fact, we do spying all the time, and by treaty and international law, we are bound to prosecute all who commit war crimes, whether it be our personnel or those of the enemy.

Cheers,
 

Howard Gilbert:

For example, if a military spy while pretending to a civilian commits an ordinary civilian crime and is captured, then he can be tried in civilian court for the crime (which GC 3 prohibits for any POW),...

False. GC3:

"Article 84

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war."

Cheers,
 

Marty, the question of "real danger" is far broader than you suggest. It doesn't go just to the standards, but to who makes the determination. Coming soon: a 5-4 decision on just this question.

The more pertinent question is, when the judges get it wrong, how do we hold them responsible? When American die because of the errors of the political branches, the American people have a remedy. What is our remedy when the courts err?
 

Thomas,

That's a bogus argument which displays a total misunderstanding. We do not appoint judges to be fortune tellers, we appoint them to make impartial determiniations of fact and law in accordance with the laws WE enact through the democratic process. How exactly are any of us supposed to know that some particular decision of some particular judge was the precise cause of some particular death?

In point of fact, it would be absolutely impossible for you do demonstrate any such thing, and anyone who claims that it is possible is nothing but a damend liar who think they "know" a lot more than such a transparently irrational claim would suggest. Indeed, we have laws against murder, enforce them strongly, and nevertheless murders are committed all the time.

What the hell does that prove about judges? That they are supposed to shoot anyone they see in their court who they suspect might commit a murder regardless of any fact or law?

You and Scalia are talking pure BS here, and on the other side of the question, it's certain George W. Bush has gotten a great many people killed in the process of accomplishing absolutely nothing but one disasterous failure after another.

We do not convict people of crimes on suspicion or assumption: your arguments are identical to those of the Nazis. Suppose that Mr. Bush decided it would be a wise precaution to simply exterminiate the entire population of Iraq so we could be 100% certain that none of them would ever kill an American ever again. Or suppose he decides to torture a three year old girl to make her father talk...

Or becasue some statistician thinks we can predict with reasonable certainty which three year old muslim girls have a greater than average chance of becoming terroists later in life.

What's your objection to any of that exactly?

You people aren't just disgraceful liars and hypocrites, you're demented fools who don't know the difference between reality and a B-movie script.
 

Arne:

Captain Nathan Hale (hung by British 1776)
Major John Andre (hung by George Washington 1780)
Huber Haupt (executed with 5 German saboteurs 1942, ex parte Quirin)
Military spying has traditionally been a capital offense, but it is not a war crime. "My only regret is that I have but one life to give for my country." We have named over 200 elementary schools for Nathan Hale. We would not name a school for a "war criminal". It is an offense, but an honorable one. The soldier pays with his life, but he can become a hero.

Since a US soldier is always given a Court Martial for any crime, the US cannot try enemy captured enemy soldiers in civilian courts, by the Article quoted. However, if the crime is committed by a spy out of uniform, then he can be tried by either an Article III court or a Court Martial because GC 3 does not apply.
 

"The more pertinent question is, when the judges get it wrong, how do we hold them responsible? When American[s] die because of the errors of the political branches, the American people have a remedy. What is our remedy when the courts err?"

The remedy available is to vote out elected officials. But that takes time and often voters fail to provide the remedy, as witness with George W and many members of Congress who support his Administration. Meantime, people die. If federal judges were elected, they could be voted out, but again that would take time and voters might fail to provide the remedy. Scalia is using the slippery slope argument, the sky is falling. Did people die because of Justice Jackson's opinion in the Steel case? If the decision had gone Truman's way, might people have died as a result? And judges getting it wrong can be like beauty: it's in the eye of the beholder. On any given SCOTUS decision there may be quite a few out there (whether on the right or the left) who think the decision is wrong. Impeachment may be available to correct a wrong but history suggests that impeachment, or even the threat thereof, is not very effective. Sometimes we just have to suck it up when things don't go our way. Isn't that part of a democracy? Of course, it doesn't mean we have to like it and can express our views.
 

Is it mere coincidence that the SCROTUS dissenters lined up as follows

R(oberts)
A(lito)
T(homas)
S(calia)

on George W's sinking ship?
 

As I read it, the majority has been very careful. It has clearly expressed the distaste any Court must have for the concept of a legal ‘black hole’ where no law exists but executive fiat. That is good. At common law the writ always issued to the person holding the prisoner and as the writ developed if there was a person who controlled the actual jailer amenable to the process of the Court, then that person was a proper respondent.

Justice Kennedy drew the distinction between the present cases and the case of the Eisentrager Petitioners:

“there are critical differences between Landsberg Prison, circa 1950, and the United States Naval Station at Guantanamo Bay in 2008. Unlike its present control over the naval station, the United States’ control over the prison in Germany was neither absolute nor indefinite. Like all parts of occupied Germany, the prison was under the jurisdiction of the combined Allied Forces.”


Semble, therefore that the writ will now go to question the detention of a prisoner in the exclusive custody of US forces – wherever he may be.

But as many have pointed out, the decision is actually more important for what it has not decided. The decision has merely been to the effect that the status of detainees must be decided and that the CRT process being afforded the detainees to determine that status did not contain the guarantees of due process necessary to warrant the removal of the protection of the Great Writ.

However, some of the observations of the majority may also be taken to be a warning shot across the bows of the Administration in regard to Military Commissions and due process.

Your poster, Morris Davis can, I infer, be none other than the former Chief Prosecutor who had the exemplary courage to resign rather than compromise his duty to present the Government case to the Military Commissions based on proper evidence (excluding that obtained by torture). Putting the failed Bush nominee for the 4th Circuit Court of Appeals and torture advocate, William Haynes, into the chain of command was plainly yet another egregious error on the part of the Administration, because it interfered with the need to observe due process.

I do not think a single detainee at Guantanamo was a member of the regular armed forces of either Afghanistan or Iraq in uniform and captured on the field of battle. However, there is another category of prisoners of war recognised by Geneva (III) Article 4 (6):

“Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.”

I suspect that the majority of Afghan citizens captured by US forces in Afghanistan would probably come into that category.

Geneva (III) Article 4 (6): refers to “inhabitants”. It can safely be assumed that this includes resident nationals. But does it necessarily exclude “resident aliens”?

There are some points to ponder. We have to remember that Afghanistan did have a Government (the Taliban government). It matters not that it was not recognised by the United States. During the Carter and Reagan administrations, the US Government armed and financed the “mujahiddin” and encouraged the recruitment of third country nationals. They came from many countries – but many were from Algeria, Morocco and Egypt in North Africa and Saudi Arabia and Yemen in the Gulf (it being appropriate to remember that a sizeable part of the population of the part of Saudi Arabia where Al-Quaida developed is actually Yemeni – the Bin Laden family being a good example). I recollect that the majority of the detainees in Guantanamo were at one time from the countries listed above. Others came from Pakistan and in this context it is appropriate to remember the artificial nature of the “Durand line” of the Victorian cartographer separating the Federally Administered Tribal Areas of Pakistan from Afghanistan. The Pushtun tribes do not pay much attention to the existence of the border.

It is at least arguable that non-nationals taken in Afghanistan can also be regarded as Geneva (III) Article 4(6) category detainees.

Both they and the rare case of an Afghan soldier in uniform may be detained for the duration of hostilities and there is an interesting problem because the USA is not now at war with Afghanistan so they would have to be released and returned to their homelands, with the exception of those who are awaiting trial for an offence against the laws of war

Note however what the Conventions say about the kind of trial such persons would be entitled to: Geneva (III) Article 3(1)(d) prohibits

the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised peoples.”

Undoubtedly, a regular trial in a US District Court or by Court Martial complying with the provisions of the UCMJ would meet that standard. I think that Military Commissions could have met that standard with the equivalent procedural rules. Trial by jury is not “recognised as indispensable by civilised peoples. Courts in civil law countries regularly use courts composed of a panel of judges who try both issues of fact and law.

I do not wish to speculate on cases which have not yet been determined. There are undoubtedly a fair number of “high value” detainees in Guantanamo. Whether the circumstances of their apprehension, interrogation and pre-trial detention have been such as to enable a fair trial is a matter on which the issues remain to be joined. But one thing is in my view certain: the use of evidence obtained by torture (even by another state) is incompatible with due process and I am pleased that the UK Courts have determined that issue against the government in the UK.

But as Col Morris indicates there are quite a number of detainees the US does not wish to prosecute and the issue arises as to what their fate should be.

I thought this passage in the majority judgment in Boumediene was significant:

“Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.”

Those who follow the anti-terrorism saga in the UK will be aware of the contortions our system has been through and is still struggling with. Here we face a terrorist threat from both nationals and aliens. In the old days before human rights concerns were what they are today aliens were simply arrested and deported or, if not, held in administrative detention until they could be. That is no longer possible. Now if we cannot deport (eg to a country which practices torture), then the alien cannot be detained indefinitely. But what about the alien or citizen who presents a real risk to national security but who cannot be arrested because there is no admissible evidence on which to try him. Do we have to wait until the bomb goes off in the Underground?

We now have a civil procedure for “Control Orders” which restrict liberty but which do not amount to imprisonment or internment. Available against both citizen and non citizen, the government may proceed to the civil standard of proof and with some evidence being disclosed only to a “special advocate” who may not disclose it to the respondent to the application. There are a few persons now subject to quite draconian restrictions of liberty on this basis – generally because they are aliens who cannot be deported but who would have been if that were possible.

Was the SCOTUS majority was inviting the Congress and the Administration to think forward to how best to deal with the real threats now faced? It is entirely possible that the USA will end up with some detainees it cannot prosecute, cannot deport, cannot detain indefinitely and does not wish to leave entirely free to do what they may well wish to do.

Incidentally, I do not think the US Court would be averse to the reasoning of our Court of Appeal, that where troops are in a foreign jurisdiction, not in exercise of the power to make war but by agreement with a friendly sovereign government and a UN Security Council Mandate, then if the person is detained in accordance with the emergency powers under that Mandate, although the Court will enquire, once the basis for detention is determined to be pursuant to that Mandate, relief should be denied. See in relation to Iraq: Al-Jedda, R (on the application of) v Secretary of State for Defence [2006] EWCA Civ 327 (29 March 2006)

“If the Security Council, acting under Chapter VII, consider that the exigencies posed by a threat to the peace must override, for the duration of the emergency, the requirements of a human rights convention (seemingly other than ius cogens, from which no derogation is possible), the UN Charter has given it power to so provide. The Security Council has primary responsibility for the maintenance of international peace and security, and one of the purposes of the United Nations, by which it is bound to act, is to take effective collective measures for the prevention and removal of threats to the peace (see para 56 above). There is no need for a member state to derogate from the obligations contained in a human rights convention by which it is bound in so far as a binding Security Council resolution overrides those obligations. If the Security Council is acting under Chapter VI, the principles of justice and international law (see para 55 above) are likely to weigh heavily with it in its search for the settlement of an international dispute by peaceful means, but we are not concerned with Chapter VI on this appeal.

It follows that Mr Greenwood was in my judgment correct when he argued that UNSCR 1546 (2004) qualified any obligations contained in human rights conventions in so far as it was in conflict with them. I use the word “qualified” deliberately. In so far as that resolution sanctioned the continued use of internment beyond the period contemplated by Geneva IV as a means of restoring peace to Iraq, the very essence of internment is inconsistent with the “due process” requirements of ECHR Article 5(1) or Article 9 of the ICCPR. But all the remaining requirements of those human rights conventions retained their vitality (in so far as they were not qualified by the Security Council resolution), and with the greater vigour because an internee’s important right to liberty was being removed without the due process that is obligatory in less exceptional times. There was nothing in the resolution, for instance, to qualify the obligation resting on the members of the MNF not to torture any internees or otherwise subject them to inhumane or degrading treatment, or to deprive them of any other Convention right (or any other international law right) relevant to the regime and conditions of internment that was not qualified by the terms of the Security Council resolution.

Moreover the Security Council has not sanctioned indefinite internment. At present it has extended the MNF’s mandate until 31st December 2006 (see para 34 above), but it would be open to it to terminate the mandate before that time, or to alter its terms, if it thought it appropriate to do so. In the meantime, if an internee continues to be detained, his case must be subjected to a review at least once every six months, and there is no power to continue his detention unless this is necessary for imperative reasons of security, which is a very demanding test. It would always of course be open to the British government to introduce an independent element into the reviewing process if it considered it appropriate to do so.”


This would cover the cases of internment of persons detained in both Afghanistan and Iraq who are considered “a threat to security” in that country, but against whom there is not the evidence to try them for crime.

Likewise the opinion also released yesterday in Munaf –v- Geren disposes of the situation of detainees in Iraq whom it is proposed to transfer to the now friendly sovereign government for trial. The Court will enquire but refuse relief in a proper case even in the case of a US citizen. That is also consistent with the approach of the English Court in the Al Jedda case where the applicant was both a British and an Iraqi citizen.

Terrorism does raise difficult problems – as the people of New York, Madrid and London well know, but it does seem very much as if the Administration has brought its problems upon itself. It could have gone into Afghanistan equipped with UN Chapter VII authority making provision for internment there. It could have waited to go into Iraq. In my view the “global war on terror” was always a legal nonsense just as was the thesis that the President has unlimited power to detain and torture as he sees fit. As I see it, the President was badly advised by Neocon lawyers far too willing to assume that their view of the President’s authority would pass muster before the Supreme Court.

But it was a close-run thing, a 5-4 majority only. But at least for the time being the belief of our Court of Appeal has been vindicated:

”We have made clear our deep concern that, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. However, there are a number of reasons why we consider that the applicants' claim to relief must be rejected… The position of detainees at Guantanamo Bay is to be considered further by the appellate courts in the United States. It may be that the anxiety that we have expressed will be drawn to their attention. We wish to make it clear that we are only expressing an anxiety that we believe was felt by the court in Rasul. As is clear from our judgment, we believe that the United States courts have the same respect for human rights as our own.” from The Queen on the Application of Abbassi & Another -v- The Secretary of State for Foreign Affairs [2002] EWCA Civ. 1598

But with a 5-4 majority only it was a close-run thing, it has taken a very long time for a remedy which is supposed to be “swift” and remand to the District Courts may well mean lengthy further proceeding. A very great injustice will have already been done to anyone held to have been wrongfully detained.
 

Article 4 of GC 3 mentions a uniform in some cases, but not all. The regular army of a Geneva signatory is always covered, and given the Western bias of the document it was assumed that that would be a uniformed national army. However, after three centuries or more of unbroken Western victory, in the 1980's an uniformed transnational army of religiously motivated soldiers defeated the uniformed mechanized army of a Western superpower in Afghanistan. It is not surprising then that ten years later the government of Afghanistan would model its national army on its previous victorious force and not on the uniformed infidel defeated enemy.

On 9/10 Jane's estimated that the front line army of the Taliban government had 45,000 troops. 10,000 were Pakistanis, 1,000 were al Qaeda trained Arabs, and the rest were a mixture of Taliban foreigners, Taliban Afghans, and tribal militia. That is the army we went to war with. None of its soldiers wore uniforms, but then the soldiers of the Prophet 1400 years ago didn't wear uniforms either.

So you have to decide if international law is flexible and regards an army as an army even though they don't behave like the British or Americans. If you are not a racist or cultural bigot, then they meet several Article 4 categories and are entitled to POW status. But then they can be detained for the duration once captured.

The more interesting problem occurs when this army crosses the border into Pakistan, particularly when individuals like KSM then proceed out of uniform and pretending to be civilians to Pakistani cities. Does he then lose his combatant status? Are enemy soldiers captured by Pakistanis and turned over to the US entitled to the same protections as soldiers captured in Afghanistan?
 

Howard Gilbert:

Arne:

Captain Nathan Hale (hung by British 1776)
Major John Andre (hung by George Washington 1780)
Huber Haupt (executed with 5 German saboteurs 1942, ex parte Quirin)


I'm not saying that spies and saboteurs aren't being (and haven't been) executed. But then again, that wasn't the claim of yours that I was disputing:

[Howard Gilbert, from earlier]: Being a spy or saboteur is an capital offense, a violation of the laws of war.

Military spying has traditionally been a capital offense, but it is not a war crime.

Why, thank you. But it's a capital crime when the trier makes it so, not because of the "law of war".

"My only regret is that I have but one life to give for my country." We have named over 200 elementary schools for Nathan Hale. We would not name a school for a "war criminal". It is an offense, but an honorable one. The soldier pays with his life, but he can become a hero.

If you look at the Revolutionary War, the whole lot of them were insurrectionists, brigands, criminals of the highest order. They even pledged their very lives to the cause, knowing they'd be hanged if defeated. That hardly makes them violators of the "laws of war".

Since a US soldier is always given a Court Martial for any crime...

I'm not sure this is always true. I believe there are some cases where servicemen have claimed such a right [for tactical reasons; generally not a winning defence strategy, though], but because their crime was comitted while not in service, they found themselves subject to civilian courts for their specific crime.

.. the US cannot try enemy captured enemy soldiers in civilian courts, by the Article quoted.

Even if true, your original statement is false. You made a blanket statement that all POWs were entitled to courts martial in all cases. This is false.

... However, if the crime is committed by a spy out of uniform, then he can be tried by either an Article III court or a Court Martial because GC 3 does not apply.

Huh?!?!? Where do you get this?

Cheers,
 

Shag from Brookline:

Did people die because of Justice Jackson's opinion in the Steel case?

There's plenty on the foaming RW who are claiming a "holocaust" of millions because the justices "got it wrong" in Roe v. Wade.

Obviously this means that the judiciary shouldn't be entrusted with the ability to make any such decisions that go against the views of the foaming RW....

Cheers,
 

Howard Gilbert wrote:-

"The more interesting problem occurs when this army crosses the border into Pakistan, particularly when individuals like KSM then proceed out of uniform and pretending to be civilians to Pakistani cities. Does he then lose his combatant status? Are enemy soldiers captured by Pakistanis and turned over to the US entitled to the same protections as soldiers captured in Afghanistan?"

With respect, I think you are conflating two distinct issues:-

I understand that KSM is suspected of being a conspirator alternatively an accessory before or after the fact to the atrocious killings on 9-11. In his case (and there may be others) the USA has good, old fashioned grounds to indict him and try him like any other criminal.

If, knowing that he was a suspect, the Pakistani authorities handed him over to the US in order that he should stand trial, I see no problem with that.

However, where there may be a problem is that the prosecution may not have sufficient admissible evidence (assuming that evidence obtained by torture or extracted from others by duress my be inadmissible in proceedings which meet due process standards).

So far as those who simply fled Afghanistan into Pakistan - since the "war" in Afghanistan is over what is left ?

For Afghans -

(i) internment under the UNSC Resolution powers so long as they pose a threat to the security of Afghanistan - in civilised conditions - and with 6 monthly review of threat status.

(ii) handover to the civil authorities in Afghanistan.

For other nationals, it looks as if the only option for persons against whom there is no evidence to a criminal standard of having committed a crime is deportation to their country of origin or to another country willing to take them (but not to a country where they may be tortured).

Assuming that indefinite immigration detention is not an option then the USA may have to consider new legislation to deal with such "involuntary guests" - something short of imprisonment or internment but reflecting the security risk they may pose to the
USA - and with the possibility of release from restrictions when they are no longer a "severe threat".
 

Mourad:

Note however what the Conventions say about the kind of trial such persons would be entitled to: Geneva (III) Article 3(1)(d) prohibits

“the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised peoples.”

Undoubtedly, a regular trial in a US District Court or by Court Martial complying with the provisions of the UCMJ would meet that standard. I think that Military Commissions could have met that standard with the equivalent procedural rules. Trial by jury is not “recognised as indispensable by civilised peoples. Courts in civil law countries regularly use courts composed of a panel of judges who try both issues of fact and law.


It is true that some countries do not use jury trials. But I wouldn't be surprised if any competent legal tribunal to address the issue of what constitutes "affording all the judicial guarantees which are recognised as indispensable by civilised peoples" would take note of what the country in question affords its own citizens, in answering that question. Should there be a disparity, that might be looked on highly askance.

Cheers,
 

Perhaps the most disturbing part of the Boumediene majority opinion is where the Court not only extends standard habeas corpus review over whether the military followed the rules set forth by Congress and the Executive to determine the status of captures, but also assumes the substantive power to set those rules.

The problem here is that the Constitution expressly allocated the powers to set rules for Captures to Congress and generally to the President as CiC.

Article I, Sec 8, Clause 11 states: "Congress shall have Power to...Make Rules for Captures on Land and Water."

Article II, Sec 2, Clause 1 states: "The President shall be Commander in Chief of the Army and Navy of the United States.

Article III makes no reference to Court wartime powers.

The Constitution obviously did not consider setting rules of captures to be a matter of judicial due process for the Courts.

Thus, even if habeas corpus can be rationally thought to extend to foreign POWs for the first time in history, that review under the Constitution must be limited to determining the procedural issue of whether the military is following the rules set forth by the elected branches. Boumediene's extension of habeas review to setting rule for captures is in facial violation of Articles I and II.
 

Arne:

I think that for the general run of cases tried under the jurisdiction sanctioned by Geneva III 3(1)(d), I think a Court Martial or Military Commission is the norm on the footing that these are trials for people who would in theory be subject to military discipline if they were in the hands of their own government.

There is another issue: the perverse jury verdict.

Were I conducting the defence of someone accused of being an accessory to 9-11, faced with an arguable prosecution case, I might just be happier with a panel of professional judges than with a jury.

What I do question is whether is now a problem with what we call the "ex parte Bennett" issue.

In Bennett's case Lord Griffiths said that in the field of criminal law the judiciary ought to be willing to "refuse to countenance behaviour that threatened either basic human rights or the rule of law."

In that case the assumed facts were that a citizen of New Zealand was brought forcibly to England from South Africa in order to stand trial for certain criminal offences, in disregard of the ordinary procedures for securing his lawful extradition, and in breach of international law. Our Houseof Lords held that the High Court has a wide responsibility for upholding the rule of law where, on the assumed facts, there had been a deliberate abuse of extradition procedures.

Take the Boumediene case, as I understand the circumstances, from Marty's post on the Federalshit Society - oops! "Federalist" the circumstances were these:

These detainees "are Algerians who immigrated to Bosnia and Herzegovina during the 1990’s. Five of them are Bosnian citizens. On 9/11/01, each was living with his family in Bosnia. None is alleged to have waged war or committed belligerent acts against the United States or its allies. According to the Boumediene brief, they were arrested by Bosnian police in October 2001, purportedly on suspicion of plotting to attack the U.S. Embassy in Sarajevo. But the Bosnian authorities had no evidence for this charge; instead, they acted under pressure from U.S. officials, who threatened to cease diplomatic relations with Bosnia if Petitioners were not arrested. On January 17, 2002, the Supreme Court of the Federation of Bosnia and Herzegovina, acting with the concurrence of the Bosnian prosecutor, ordered Petitioners released because a three-month international investigation (with collaboration from the U.S. Embassy and Interpol) had failed to support the charges on which Petitioners had been arrested. On the same day, the Human Rights Chamber for Bosnia and Herzegovina, established under the U.S.-brokered Dayton Peace Agreement and staffed by judges from several European countries, issued an order forbidding the prisoners’ removal from Bosnia. Later that day, however, as the Boumediene Petitioners were being released from a prison in Sarajevo, Bosnian police acting at the behest of U.S. officials (and in defiance of the Human Rights Chamber’s order), re-seized them and delivered them to U.S. military personnel, who transported them to Guantanamo, where they have been held for the past six years, without contact with their families."

That would seem to be the paridigm example of "deliberate abuse of extradition procedures and laws", not to mention the probable commission of criminal offences in Bosnia by both the US and Bonsnian personnel involved in defying the orders of the Bosnian Courts.

These Defendants seem just the people who ought have been afforded speedy habeas relief at the outset.

What compensation should be given to people subjected to such abuse ?
 

If a dissenter in Bush v. Gore had made a statement similar to Scalia's, one can imagine the RW reaction. But can't it be said today that as a result of the decision in Bush v. Gore a lot of American deaths resulted?
 

KSM was a high ranking military commander in charge of special operations units on 9/11. He reported to Mohammed Atef, the highest ranking al Qaeda commander, who in turn reported to Bin Laden. After 9/11 Mohammed Atef was killed in a US air strike and KSM replaced him.

Things get muddy because the Afghan army does not have a clean chain of command like a Western army. There are a few well documented biographies. Jose Padilla was recruited and trained by al Qaeda, but then served for six months under the Taliban, then he was selected by Mohammed Atef for "the apartments operation" which was separate from KSM's "planes operation". In Pakistan, he finally fell under the command of KSM. The three judge panel of the Fourth Circuit in the al Marri case found (in a judgement now superseded by the pending en Banc review) that this made him a Taliban soldier, at least for part of the time, and therefore an enemy combatant [a previous panel that passed on the Padilla case directly also found him to be a spy for his entry into the US and therefore an enemy combatant like Huber Haupt per the previous discussion].

The point is that just as the Afghan army did not wear uniforms, they were rather casual about what unit you are in and who commands you.

KSM was the commander of the 19 hijackers who broke international law by committing an act of piracy. Then then killed 3000 people. When a soldier kills 3000 people he doesn't normally become a criminal. Bomber pilots do it all the time (Dresden, Tokyo, ...). So KSM was a military commander who committed murder as part of an unlawful military operation, just just a simple murderer. If you accept his military rank, then he has to be tried in a military court. You could only try him in a civilian court if you can argue that he was not a lawful military commander of a proper army. Just calling him names like "terrorist" doesn't let you buypass the core jurisdicational questions, including all the parts of the GC 3 that were quoted in previous posts.

If you accept that KSM was a high ranking military commander in the Army of Afghanistan on 9/11, then then thing that makes him a criminal is the hijacking. The charge of murder then follows because the operation was not a lawful military action. If the same 19 guys stole four Fedex cargo planes on the ground and crashed them into the buildings, it would not have violated international law and might have been lawful combat. Then the question of whether KSM could claim combatant privilege or not would become crucial.

The alternative case is Fawzi al-Odah, who was in Afghanistan but captured by the Pakistanis after crossing the border. He clearly was not involved in 9/11 and therefore had nothing to do with the piracy, but unlike KSM he disputes his combatant status and claims to have just be a tourist who carried an AK-47 for protection.

The legal questions remain even when no individual case raises the one single question unencumbered by other issues.
 

Article III makes no reference to Court wartime powers.

And the obvious conclusion is that the Constitution didn't contemplate or permit the meddling or even the mere existence of courts in time of war. Don't you know, such are parlous, nay, Serious Times?!?!? Q.E.D.

</WingNuttia>

Cheers,
 

The Constitution obviously did not consider setting rules of captures to be a matter of judicial due process for the Courts.

I guess the court just didn't listen to "Bart"'s wonderful exegesis of the law, and decided incorrectly.

Now ... can we just move along to talking about what the state of the law actually is?

Cheers,
 

Boumediene's extension of habeas review to setting rule for captures is in facial violation of Articles I and II.

No. It is clearly in line with Article I:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

This clause tempers the other powers of Congress, including the "rules concerning captures" bit.

I think the majority opinion does an excellent job of examining the ambiguity and ambivalence surrounding your pet statement (first time in history, yadda); there's no obvious and clear cut answer--until now, of course.

However, the importance and primacy of the writ is not in question, and why the statutory power to make rules about captures should supersede the sanctity of the cornerstone of liberty is an argument you should make more explicitly. Should habeas be unavailable in cases of counterfeiting or, indeed, in the case of the violation of any law that executes one of Congress' article 1 powers?

I want to see your reasoning, now that the specific status issue has been settled, for why habeas corpus should take a backseat to "rules concerning capture."
 

pms_chicago said...

BD: Boumediene's extension of habeas review to setting rule for captures is in facial violation of Articles I and II.

No. It is clearly in line with Article I:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

This clause tempers the other powers of Congress, including the "rules concerning captures" bit.


Under what theory of constitutional interpretation does the Suspension Clause take precedence over any other provision of Article I (or Article II for that matter)?

Generally, the Constitution, like statutes, is read so that its provisions are in harmony with one another and no provision is read to render another provision meaningless.

I suggested that the newly created habeas review of POW status can only be rendered harmonious with the Article I and II powers to set rules for captures if the habeas review was limited to a procedural review of whether the military was following the rules created by Congress and the President.

When the Court reverses and replaces the rules created by Congress and the President, it has rendered the Article I and II powers to set rules for captures meaningless and essentially written those provisions out of the Constitution.
 

When the Court reverses and replaces the rules created by Congress and the President,

the congress ..nor the president have the legal power to enforce any legislative act which is not in conformance with the constitution.

imo.. you're behaving as if any act of the legislature is binding ..whether or not it is constitutionally permitted or not ..

tha's really never been our system of governance ..at least not since Marbury v. Madison ..
 

MouradL

Arne:

I think that for the general run of cases tried under the jurisdiction sanctioned by Geneva III 3(1)(d), I think a Court Martial or Military Commission is the norm on the footing that these are trials for people who would in theory be subject to military discipline if they were in the hands of their own government.


I think you are right. In general (and in the past), such prosecutions would be of bona fide members of the enemy's military, and as such, there's a good rationale for giving them the same treatment as one's own soldiers would get (and as they'd get at the hand of their own government). But in the case of non-state actors (or even brigands), and with alleged crimes that are not breaches of military discipline but rather common (or ius cogens) crimes that would be crimes if commited by anyone, and tried in regular civil courts if committed by a civilian elsewhere, the rationale for using military justice becomes less compelling, and the question would be, "Why are you trying such a person in a military court when a civil court would be appropriate for your own citizens? If the answer is: "Well, we get to pick the 'jury' (and even the defence lawyers), and we get to rig the rules -- outside the reach and the protections of our own court system -- when we do so, so as to maximise the likelihood of getting convictions", then the appropriateness of such treatment is called into question.

Cheers,
 

Howard Gilbert wrote:

“When a soldier kills 3000 people he doesn't normally become a criminal. Bomber pilots do it all the time (Dresden, Tokyo, ...). So KSM was a military commander who committed murder as part of an unlawful military operation, just just a simple murderer. If you accept his military rank, then he has to be tried in a military court. You could only try him in a civilian court if you can argue that he was not a lawful military commander of a proper army. Just calling him names like "terrorist" doesn't let you buypass the core jurisdictional questions, including all the parts of the GC 3 that were quoted in previous posts.”

Since I am doubtless part of the revisionist Eurotrash to which you referred earlier on this thread, I start from the point of view that terrorists are criminals and there are ample provisions on the statute book in the USA and the UK to deal with whatever they may do.

Therefore my preference in relation to KSM (or indeed anyone else against whom the USA has credible evidence of criminal acts justiciable in the USA) would be that the individual be lawfully brought within the jurisdiction of the criminal court, afforded all due process pre-trial rights, tried, and if convicted by due process, sentenced to whatever punishment the Court thought appropriate.

I have to supplement that remark by pointing out that in the case of any person surrendered, extradited or deported from the European judicial area, that process could only have been on terms that the person would not suffer the death penalty.

There is an old principle of international law that a state which harbours criminals can be called upon either to surrender them or punish them itself – the principle is known as “aut dedere aut punire”. In default of the then government of Afghanistan so doing, there was a cast iron case for seeking UN authority to authorise action in Afghanistan under Chap VII of the UN Charter. That offer was actually made by the UN to the USA post 9-11 and spurned.

The problem I have with Afghanistan is for me, and I suspect many others, the US invasion of Afghanistan was unlawful as a matter of international law. Now I have to accept that before a national jurisdiction, the Courts are not going to enquire whether the hostilities are lawful or unlawful as a matter of international law: that is a matter for the executive and if a nation is answerable at all it is only before an international jurisdiction.

Thus, until the creation of ISAF, the passing of the necessary UN resolutions and the installation of a government there was a state of war in Afghanistan. The USA invaded and was a belligerent. Therefore it is bound by the Geneva Conventions. People apprehended in Afghanistan have to be afforded the appropriate status mandated by the Conventions and dealt with accordingly.

I am well aware that John Bellinger, whom you have referred to earlier, has a view which I can state in his own words from a talk he gave at the London School of Economics on 31st October 2006:-

“It should be clear that U.S. and allied operations in Afghanistan during this period constituted a use of military force as part of an action in legitimate self-defense, as opposed to a massive law enforcement operation. We were in a legal state of armed conflict with al Qaida and the Taliban, which was governed by the law of war. Why did we have a right to use military force? We were justified in using military force in self-defense against the Taliban because it had allowed al-Qaida to use Afghanistan as an area from which to plot attacks and train in the use of weapons and it was unwilling to prevent al Qaida from continuing to do so. We knew from intelligence that Osama Bin Laden, his senior lieutenants, and numerous other members of al Qaida were in various al Qaida camps in Afghanistan. We gave the Taliban an opportunity to surrender those it was harboring, and when it refused, we took military action against its members.

We were also clearly justified in using military force in self-defense against al Qaida. Al Qaida is not a nation state, but it planned and executed violent attacks with an international reach, magnitude, and
sophistication that could previously be achieved only by nation states. Its leaders explicitly declared war against the United States, and al Qaida members attacked our embassies, our military vessels, our financial center, our military headquarters, and our capital city, killing more than 3000 people in the process. Al Qaida also had a military command structure and world-wide affiliates. In our view, these facts fully supported our determination that we were justified in responding in self-defense, just as we would have been if a nation had committed these acts against us.

We are not alone in our view that our actions against al Qaida and the Taliban were justified under international law as an act of self-defense. The UN Security Council recognized the right of the United States to act in self-defense in response to the September 11th attacks, as NATO did by invoking, for the first time in its history, the provisions of collective self-defense. in the North Atlantic Treaty.”


Mr Bellinger is entitled to his views – they are not widely shared. As a Government lawyer, he has to toe the party line. His passages in relation to Afghanistan omit the fact that legality required UNSC authority under Chap VII which the US neglected to obtain fearing the constraints which would be a consequence of international legality (such as humane treatment of detainees, perhaps).

His passages in relation to A-Quaida are purely and simply contrary to all relevant principles of international law. They are pure candy floss.

Therefore the designation of individuals taken from states outside Afghanistan as “unlawful combatants” is a legal nonsense. Either the persons concerned have been lawfully deported, surrendered or extradited (in which case they should be in the criminal justice system, or, very possibly their detention has been unlawful “ab initio”. They have, in effect, been kidnapped.

What effect that ought to have on a US criminal trial is not a matter for me. Had they been brought to the UK in some of the circumstances set out in the petitioners’ briefs, prosecutions would have been stayed as an abuse of the process. We have to get our prisoners lawfully - if not, we may forfeit the right to prosecute.

What effect that is going to have on the US persons involved in some of the operations in third countries is going to depend on their identification and willingness to travel. Some warrants have already been issued and doubtless others are in the pipeline.

How the executive copes with the the domestic and international consequences of its faulty Neocon view of the law remains to be seen.
 

Howard Gilbert:

KSM was the commander of the 19 hijackers who broke international law by committing an act of piracy. Then then killed 3000 people. When a soldier kills 3000 people he doesn't normally become a criminal. Bomber pilots do it all the time (Dresden, Tokyo, ...). So KSM was a military commander who committed murder as part of an unlawful military operation, just just a simple murderer. If you accept his military rank, then he has to be tried in a military court. You could only try him in a civilian court if you can argue that he was not a lawful military commander of a proper army. Just calling him names like "terrorist" doesn't let you buypass the core jurisdicational questions, including all the parts of the GC 3 that were quoted in previous posts.

We don't try Mafia dons in courts martial. Yet they command underlings, and have been known to order murders. We don't try CEOs in military court, even though they simply ordered their subordinates to engage in the actual fraud.

The fact of "command" is hardly dispositive.

Cheers,
 

jkat said...

BD: When the Court reverses and replaces the rules created by Congress and the President,

the congress ..nor the president have the legal power to enforce any legislative act which is not in conformance with the constitution.


Which provision of the Constitution do you claim applies to foreign POWs and how do the current rules for captures violate that provision?
 

"Bart" DeDicta:

[PMS_Chicago]: The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

This clause tempers the other powers of Congress, including the "rules concerning captures" bit.

["Bart"]: Under what theory of constitutional interpretation does the Suspension Clause take precedence over any other provision of Article I (or Article II for that matter)?


Under the well known maxim that when you can interpret two purportedly conflicting provisions in such a way as to resolve the conflict and satisfy both provision, you should do so. The provision of habeas review is not a fatal blow to the ability to set "rules for capture", and the
rules for capture" need only respect the other provisions of teh Constitution (including the Suspension Clause), but are not fatally crippled. I'd note that the "rules for capture" must also respect the treason provision and the Bill of Rights as appropriate.

Cheers,


Cheers,
 

arne:

Under what authority do the Bill of Rights granted to the People apply to foreign POWs who are neither part of our citizenry or country?
 

"Bart" DeDicta:

I suggested that the newly created habeas review of POW status can only be rendered harmonious with the Article I and II powers to set rules for captures if the habeas review was limited to a procedural review of whether the military was following the rules created by Congress and the President.

Actually, the rules for capture are hardly fatally afflicted by the requirement that they respect the Suspension clause. OTOH, if the Suspension clause is not immune to nullification through purported powers under the Captures clause, then in fact it is fatally wounded.

Cheers,
 

"Bart" DeDicta:

Under what authority do the Bill of Rights granted to the People apply to foreign POWs who are neither part of our citizenry or country?

Well, "Bart" we have a whole list of actual, on-point questions just waiting for your answers on threads you ran away from. Perhaps after you answer them, I might be persuaded to answer your typical "straw man"/"reframe the issues" question here. Other already have, to be sure, but I can put in my two cents worth too .... after you uphold your part of the bargain of reasoned discourse.

But thankfully, I don't have to answer that question ... it was answered (in a fashion) -- as much as it was brought up -- by the Supreme Court yesterday.

A preview for "Bart" though: If there are circustances under which the Bill of Rights would apply to a person, no "rules for capture" could abrogate them.

Cheers,
 

we already had "rules for capture" under GCIII and GCIV .. which as ratified treaties and protocols were incorportated under our laws .. the mistake the administration made was trying to carve out a new category .. now legal testing of this category has found it falling short of the required standards ..

the problem is of the administrations' own making .. i don't give purple hearts for self-inflicted injuries ..
 

HowardGilbert:

My apologies, the citation I mentioned yesterday about spies and saboteurs is in GC4, not GC3.

The case of KSM is not a good one for testing the limits of Geneva, it would require a real court with real proceedings to figure it out, there are so many complications, but his real status would probably be international criminal, not military. Among other things, he was apprehended by Pakistani ISI in civilian circumstances, in Pakistan, and he is Pakistani by birth (both parents from Balochistan). And it is not at all clear that in planning September 11th, he was acting as a soldier in the Afghan army. Actually, he didn't originally start planning as a member of al Qaeda, he planned hijackings, and went to al Qaeda for help, and then finished up his plans and execution there. Furthermore, at the time of his crime, the U.S. was not at war with Afghanistan.

All of which means that a real court would probably say he was an international criminal captured by the Pakistanis and turned over to the Americans in some kind of extradition. That would make him eligible for normal vanilla trial and civil rights under U.S. law, wouldn't it?

One of the things Chief Justice Iftikhar Chaudry was looking at before his court got sacked was whether or not turning prisoners over to the Americans, with the knowledge that they would be tortured, constituted a breach of international law on the part of Pakistani authorities.

The treatment of KSM has been, in general, justified by what he is alleged to have done, not by any known laws, American, Afghani, Pakistani, or IHL. Personally, I find it appalling that a case that should have been so easy to build, is now permanently botched.
 

pms_chicago said...

BD: Boumediene's extension of habeas review to setting rule for captures is in facial violation of Articles I and II.

No. It is clearly in line with Article I:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

This clause tempers the other powers of Congress, including the "rules concerning captures" bit.

Under what theory of constitutional interpretation does the Suspension Clause take precedence over any other provision of Article I (or Article II for that matter)?

Generally, the Constitution, like statutes, is read so that its provisions are in harmony with one another and no provision is read to render another provision meaningless.

I suggested that the newly created habeas review of POW status can only be rendered harmonious with the Article I and II powers to set rules for captures if the habeas review was limited to a procedural review of whether the military was following the rules created by Congress and the President.

When the Court reverses and replaces the rules created by Congress and the President, it has rendered the Article I and II powers to set rules for captures meaningless and essentially written those provisions out of the Constitution..


Mr. DePalma,

Under what theory can Congress pass a law pursuant to one of its express powers repugnant to another provision (specifically a limitation) of the Constitution? Assuming Congress has the power to pass laws regulating captures, can Congress violate every other provision so long as it is acting under this power? Can Congress pass laws regulating interstate commerce that violate the Fifth Amendment, or the Contract Clause, or to lay a duty on an article exported from a State? The Court is defining the scope of the writ of Habeas Corpus. It has held that the right to petition for the writ extends to non citizens held by federal jailers on de facto sovereign territory of the United States. Congress attempted to create rules that do not comply with the limitation that it may not suspend Habeas except in certain cases. Congress has the power to pass capture rules, but it cannot violate the Constitution in pursuit of that legitimate power. That’s 1L Con Law.

Here is a hypothetical:

the Congress also has the power: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States

So, Congress makes a law that says anyone the President suspects of counterfeiting the coin of the US can be taken away to Gitmo, and held there without charges and without trial. I am so suspected (and I wish I knew how, I could use the money:) Do I have a right to petition for Habeas, or would a court's granting of a writ infringe on the Congress' power to punish the counterfeiting?

if you answer honestly (I’m not holding my breath), you will then concede that there is no limit to the right of Habeas based on some express power of Congress. Argue that the extension to these people was based on an incorrect interpretation of the extent of common law Habeas as much as you want, but stop acting like it is a usurping of power from another branch. It is either an unwarranted application of the right of Habeas, or it is not. The Court has not taken power from the Congress; it has said Congress and the President exceeded the powers granted to them under the Constitution. The idea that a Court analyze laws that violate Constitutional rights based on whether the unconstitutional law's procedural terms were actually followed is absurd. You talk about the Court reversing Quirin and Eisentrager while arguing for a wholesale abandonment of Marbury. As Wolfgang Pauli, would say: “That's not right. It's not even wrong."

Furthermore, when did these people become POW's? let me remind you of this:

Monday, February 19, 2007

A Tale of Two Georges …
Enlightened Layperson said...

I've been wanting to ask that for some time. You have been continually reiterating that our policy before Vietnam was to summarily execute unlawful enemy combatants, I have wanted to ask if you favor returning to that policy. Your answer, as I understand it, is that you do not advocate returning to it, but would consider it morally justified with respect to "al Qaeda."

If I were king, I would interrogate and then execute unlawful enemy combatants. POW privileges should be reserved for combatants who follow the basic laws of war and a modicum of civilization, not for terrorists. Extending POW rights to unlawful enemy combatants simply rewards barbaric behavior. However, modern society does not have the stomach for summary battlefield executions anymore.

Still, that leaves a lot of unanswered questions. If you consider summary execution of unlawful enemy combatants moral (even if you stop short of advocating it), does that apply to al-Qaeda only, or to all Iraqi insurgents? And what about sectarian militias? Or the Taliban?

Any combatant which meets the definition set forth in the Geneva Conventions should be extended POW rights. Everyone else is an unlawful combatant who should be treated as such. I would make an exception for enemy groups which enter into and follow agreements with us to treat our captured soldiers under the rules of the Geneva conventions.

And, for suspected unlawful combatants not captured in actual combat,what quantum of proof would you require before considering summary execution justifiable?

Interesting question. I am not sure what if any standard of proof has been previously applied in military status hearings. Under wartime conditions, I would probably settle for a preponderance of evidence.

For example, if the capture is a foreign Arab who claims he went to Afghanistan or Iraq to study the Quran or for work and was captured with terrorists and/or with bomb making materials on his person or in his apartment like Omar, he can be reasonably be considered an unlawful enemy combatant.
# posted by Blogger Bart DePalma : 5:59 PM


Friday, May 11, 2007

General Petraeus on Torture and "Other Expedient Methods"

Robin/Arne:

Once again, we are at war and not dealing in a civilian criminal justice situation. The comparison of the two are absurd.

In war, combatants have no right to life and may be killed on sight. Under a civilian criminal justice system, a criminal has a right to life until removed by due process.

Given that combatants have no right to life in a war, the privilege to life and other privileges of a enemy wartime capture are earned under the law of war by a reciprocal extension of the same privileges by the enemy to your captures.

This principle of reciprocity is written into the terms of the Geneva Conventions. Try reading them. They are crystal clear on this subject

Justice for a captured al Qaeda unlawful enemy combatant under the law of war is an interrogation, a status hearing and then a swift execution. All other benefits are privileges which we have extended to the enemy captures out of our sense of mercy.

Stop claiming that unlawful enemy combatants have the rights of a civilian criminal suspect. The Supreme Court in Ex Parte Quirin categorically rejected this nonsense. The Quirin Court spends several pages describing the difference between lawful combatants who earned POW status and unlawful enemy combatants who have forfeited those rights under the law of war.

Do not presume to tell me or the families of the thousands whom these animals have murdered that al Qaeda terrorists have somehow earned special rights which no other unlawful enemy combatants have received in our history. Such an argument is obscene when al Qaeda is now probably now beating, dismembering, burning and/or dragging to death our captured soldiers.

Finally, do not presume to argue that declining to extend civilian criminal rights to unlawful enemy combatants as we have done for our entire history somehow reduces us to al Qaeda's level. The United States is not beating, dismembering, burning or dragging to death captured al Qaeda terrorists. There is no comparison between the United States and al Qaeda and to make such a comparison is a gross slander.
# posted by Blogger Bart DePalma : 11:52 PM


although i have been absent for a while, for years you stated these guys were not entitled to any GC protections, because they were "unlawful enemy combatants." but now, you keep accusing the Court of giving Habeas to POWs. who are the POWs? Or do you just use the term "POW" now since it strengthens your claim that Habeas should not extend to them, whereas the reality-based term "alleged unlawful enemy combatants" is almost begging for judicial review? After all, the real question in the detention hearing is, and always has been, whether these guys were truly fighting the US. Calling them POWs puts the cart before the horse, and is simply an attempt to win an argument rhetorically. These guys claim they did not take up arms against the US. They therefore cannot be considered POWs. They’re either lying or are innocent, and someone needs to determine which.
 

Ondolette:

The treatment of KSM has been, in general, justified by what he is alleged to have done, not by any known laws, American, Afghani, Pakistani, or IHL. Personally, I find it appalling that a case that should have been so easy to build, is now permanently botched.

I think this is true. Even if they try and retry with a "Chinese firewall" prosecution, it would be hard to maintain any fairness under normal criminal trial procedure. And much of the evidence against him is irreversibly tainted by teh evidence obtained under torture, which is properly excluded in any Article III ocurt trial. About the only way to "convict" him now, guilty as he may be, is the "Kangaroo courts" of the Dubya maladministration, which overlook these procedural deficiencies.

In many respects it's like the O.J. Simpson trial was fatally handicapped by Furhman's excesses and the sloppy handling of the physical evidence. Bu all accounts, he ought to have been convicted dead-to-rights, but the zeal to "get" him and simple incompetence screwed it up.

Which means, if we want to convict KSM, we're going to have to corrupt our judicial system irretrievably. Is the price worth it? I don't know, but I have my doubts. The saddest part was that it wasn't necessary had competent people been in charge.

Cheers,

Cheers,
 

nerpzillicus:

In order to argue that the rules for captures set by Congress and the President are unlawful under the Constitution, you have to either cite to a provision of the Constitution which limits the scope of the rules (which there is none)

OR

the Boumediene Five in their next case have to redefine the term People to include foreign POWs who were never part of the citizenry or in this country, extend the Bill of Rights to them, and then rewrite the Bill of Rights to add things like maximum terms for POWs.

After Boumediene, I cannot say that Kennedy's arrogance does not extend that far.
 

Hey Bart, why don't you respond his real point which is that you have pulled a bait and switch by now referring to these individuals as POWs when that was never part of your argument in the past...that rhetorical shift is very convenient for you.
 

And as someone else pointed out, the habeas provision provides a limit on the ability to set rules for capture...
 

Given some of the remarks here, I am curious about the context of this quote in an article posted over at the Findlaw site:

Air Force Col. Morris Davis, the former chief military prosecutor at Guantanamo who resigned in October amid disagreements with his Pentagon superiors, said, "I believe the drafters of the Constitution would be turning over in their graves to find out that people intent on destroying our society have constitutional rights."
 

Given some of the remarks here, I am curious about the context of this quote

Speaking solely for myself, I wouldn't expect to agree with Col. Davis on all issues (and the quote you found is an example, certainly). What I find valuable in his participation here is the inside perspective I think he could give.

I'm also inclined to give people credit for their good actions as well as blame for their bad ones. Justice Kennedy has a lot to answer for in his career (Bush v. Gore?), but he certainly deserves praise for his stand against his totalitarian colleagues in Boumedienne. So I have no problem crediting Col. Morris for refusing to go along with a sham trial, even if I disagree with him on other points.
 

I don't think the quote means the man is not worthy of our respect. His actions clearly led some I respect to honor him.

OTOH, I find the sentiment expressed extreme, and do wonder how much it accurately expresses his views. I also wonder if it was taken somewhat out of context.
 

Re the Col Davis quotation.

I am not sure that Colonel Davis is not factually correct.

But one this is certain, the framers of your Constitution were on the whole remarkably well-educated, largely English, colonial gentlemen steeped in the principles of the European enlightenment. The Constitution was carefully crafted to put in place what one might in today's terminology refer to as "best practice" among all the then existing nations.

I have very little doubt that were they alive today, they would wish their constitution to be interpreted in accordance with contemporary standards of decency and the "best practice" of nations.
 

I spoke with Ben Fox from the Associated Press for 10 or 15 minutes about the Supreme Court decision and its potential impact. I was a bit surprised the next day to see the one sentence he chose from all that I said, and I suspected I would need to do some explaining at some point.

Ben asked for my reaction to the decision. I said my reaction was mixed. On one hand, I do not believe (with all due deference to Justice Kennedy and the others in the majority) that foreign terrorists detained by the military during a period of armed conflict, and whose only connection to the Constitution is a fervent desire to destroy it, have constitutional rights. I believe that when the drafters said in the preamble “We the people of the United States” enter into this covenant to secure its blessing “to ourselves and our Posterity” they defined the limits of it coverage. I do not believe they intended for the Constitution to have universal application with benefits extending to foreign terrorist trying to destroy our country and captured outside our borders during a period of armed conflict. In that respect, I suspect the drafters may very well being rolling over in their graves (hence, the one sentence that got printed in Ben’s article). On the other hand, I believe the detainees we intend to prosecute are entitled to fair trials (based on Common Article 3) and that the ones we intend to detain without trial are entitled to meaningful review, and that the current processes are deficient. In articles, lectures and testimony I’ve explained in detail the shortcomings that caused me to resign as chief prosecutor and that I still think need attention. If it takes the Supreme Court stepping in for the third time (fourth if you count Hamdi) to force the President, Congress or the Secretary of Defense to do the right thing then I am pleased with the result even if I don’t necessarily agree with the underlying rationale.

In my view, the decision reflects a lack of confidence in the Executive Branch (and perhaps Congress, too) to do the right thing. As you know, the Supreme Court at first denied the Boumediene and al Odah writs. It wasn’t until after LTC Abraham came forward and spoke about his experiences serving on the CSRTs, where often there was scant evidence and if it didn’t lead to the desired result they held a do-over until they got what they wanted, that the Court took the extraordinary step of reconsidering and granting review. At that point I think a lot us suspected the end result was going to be a 5-4 decision pretty much like the one we got. Had the CSRTs been more robust and meaningful I doubt the cases would have been heard. Time and time again what I have described as the excessive arrogance and excessive ignorance of a few who fancy themselves as the “big brains” have eroded whatever trust may have existed and over time negated the deference you would normally expected in matters of national defense and the military. What a shame.
 

mourad said...

But one this is certain, the framers of your Constitution were on the whole remarkably well-educated, largely English, colonial gentlemen steeped in the principles of the European enlightenment. The Constitution was carefully crafted to put in place what one might in today's terminology refer to as "best practice" among all the then existing nations. I have very little doubt that were they alive today, they would wish their constitution to be interpreted in accordance with contemporary standards of decency and the "best practice" of nations.

You have very much to learn about our nation.

Do not mistake our founders as Tory gentlemen. The drafters of the Constitution were literal revolutionaries. They rejected the "best practice of nations" in effect at that time and created the first constitutional republic in the western world based on republican theory which was justifiably considered to be subversive by the monarchs of the day.

As for the view of the drafters on the role of the courts, I would refer you to Alexander Hamilton in Federalist 78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever...

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.


Mr. Hamilton plainly could not conceive of a judiciary like the Boumediene Five who so boldly seize the powers of the President and Congress for themselves or that the President and Congress would allow an outlaw judiciary to do so.
 

As to Mourad's response to my question, I disagree. For instance, Jefferson supported the free speech rights of those who in his view were out to destroy our country. I note "people" includes citizens.

As to Col. Morris, I appreciate the clarification. I also find it misguided in part. It, humbly, seems to miss the point in part. The opinion in large part concerns separation of powers and limited government.

This includes the power of the executive to act against aliens. One lower court judge (in dissent) in one of these cases focused on the point. Since the Art. I issue at hand is in part a measure of power, not rights of "the people" involved as such.

Anyway, the Due Process Clause specifically applies to "persons." Not "we the people" akin to some amendments. Can we enslave aliens? No, the 13A is a limit on power as much as an expression of right. Habeas and other judicial authority applied to aliens at the time of the founding too. Art. III is express on the point.

Finally, in various cases, the habeas rights at issue are to determine IF terrorists are involved. I respect your concern for justice, but adequate court review has long been felt to be required to guarantee it.

So said "we the people."
 

[To clarify a point, the 13A says we can enslave even citizens, but only if "duly" convicted of a crime. The loophole all the same is not limited to convicted citizens.]
 

Congratulations, once again, to Colonel Davis. These are the words of honest and principled Counsel.

Obviously, we differ on what the US terms “constitutional rights” and English law terms “human rights” and the reach of the common law remedy of the Great Writ.

But we ought to remember that the purpose of all the “prerogative writs”, certiorarai, mandamus, prohibition and habeas corpus, was to serve as a judicial backstop to the regular course of public administration. The law presumes that public officials, and particularly those concerned with the administration of justice will conduct affairs, regularly and in accordance with the law.

In an ideal world, the supervisory jurisdiction of the Court of review should not be needed at any stage of the process from detention, through interrogation, through investigation, through disclosure and through trial to verdict and sentence.

Common Article 3(d) is in these words: “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”

In both the civil law and common law systems, the duties on the prosecutor are far more onerous that those which rest on the defence. It is plain that Colonel Davis well understood those duties and I have noted previously that as a body the JAG Corps of all branches of the US military have earned international respect for the way they have sought to carry out their duties.

What troubles me are the statements Colonel Morris has made in public as to the pressures he was put under by those placed over him. In our jurisdiction there are some ugly words for what he describes: obstruction of justice, perversion of the course of public justice and misfeasance in public office.

It seems to me that if Colonel Davis’s allegations are true, and many will find them utterly credible, those whose conduct has come into question must be suspended from their functions while matters are investigated with a view to prosecution. The officers commanding the various JAG Corps have a special interest in seeing that process begin forthwith.
 

Neocon Bart wrote of a post of mine:

You have very much to learn about our nation.

Do not mistake our founders as Tory gentlemen. The drafters of the Constitution were literal revolutionaries. They rejected the "best practice of nations" in effect at that time and created the first constitutional republic in the western world based on republican theory which was justifiably considered to be subversive by the monarchs of the day.”


Well, at least you are engaging in debate. Let’s see what I know and how far you agree.

Shall we start with the philosopher-statesman, Thomas Jefferson, writing just before secession? You will doubtless have in mind his work: “A Summary View of the Rights of British North America”, written as a loyal subject of the Crown and not in the language of a revolutionary.

"I took the ground which, from the beginning I had thought the only one orthodox or tenable, which was that the relation between Great Britain and these colonies was exactly the same as that of England & Scotland after the accession of James and until the Union, and the same as her present relations with Hanover, having the same Executive chief but no other necessary political connection; and that our emigration from England to this country gave her no more rights over us, than the emigrations of the Danes and Saxons gave to the present authorities of the mother country over England."

This is, of course, the modern constitutional view of the role of the British Crown in the several countries of the Commonwealth where the Queen remains Head of State. Her Majesty is quite separately Queen of the United Kingdom and Queen of Canada. In each realm she acts only on the advice of Her elected Prime Minister. The Crown has separate legal personalities: both for states and political sub-divisions - eg: The Queen in right of Canada, The Queen in right of the United Kingdom, The Queen in right of Nova Scotia, the Queen in right of Gibraltar. In fact Jefferson anticipated by 160 years the British Constitutional Settlement of the Dominions by the Statute of Westminster 1936. What a pity that the incompetent Ministers of poor King George III did not heed his words.

As Edmund Burke said in Parliament during the debate on Conciliation with the Colonists referring to Jefferson’s work which Burke had had printed:-

” In this character of the Americans, a love of freedom is the predominating feature which marks and distinguishes the whole; and as an ardent is always a jealous affection, your Colonies become suspicious, restive, and untractable whenever they see the least attempt to wrest from them by force, or shuffle from them by chicane, what they think the only advantage worth living for.

This fierce spirit of liberty is stronger in the English Colonies probably than in any other people of the earth, and this from a great variety of powerful causes; which, to understand the true temper of their minds and the direction which this spirit takes, it will not be amiss to lay open somewhat more largely.

First, the people of the Colonies are descendants of Englishmen. England, Sir, is a nation which still, I hope, respects, and formerly adored, her freedom. The Colonists emigrated from you when this part of your character was most predominant; and they took this bias and direction the moment they parted from your hands.

They are therefore not only devoted to liberty, but to liberty according to English ideas, and on English principles. Abstract liberty, like other mere abstractions, is not to be found.


Now let us turn to the Declaration of Independence shall we? Of the 56 signatories to the Declaration of Independence, an absolute majority (29) were lawyers, the remaining delegates being from Commerce and Industry (11), Farmers (6), Physicians (4) and 6 others including 1 genius (Benjamin Franklin) and 1 clergyman (Dr Witherspoon, the President of the College of New Jersey, now Princeton). Like its predecessor, the English Glorious Revolution of 1688, the American Revolution was a revolution of the gentry and the professions, not the mob. And they would by a majority have been Whigs rather than Tories.

Very many of the signatories had been educated in England, Scotland or Ireland and were products of the European Age of Enlightenment and influenced in particular by the works of European philosophers such as John Locke, Montesquieu, Rousseau and Voltaire as well by the Anglo-American, Tom Paine and, for the lawyers who formed the majority of the delegates, by the work of William Blackstone. These statesmen and philosophers held to the "Social Contract" theory expounded by Locke - that government comes from below, not from above - the people and the monarch being in a social contract so that the monarch derived his powers from the consent of the governed and was obliged to rule in accordance with his obligations to the people.

If you have time, Bart, pause here to refresh your memory of Locke Treatises on Civil Government which you must surely have to hand.

Then go to the text of the Declaration of Independence. Start from the words - The history of the present King…let these facts be submitted to a candid world.

What follows that preamble are a series of 28 clauses of factual recitals. These are the “whereas" clauses to a modern deed. They set out the King’s breaches of the social contract said to justify recission.

The next two paragraphs recite that repeated notice has been given of these repudiations of the breaches of the social contract. And the final sentence of the second of those paragraphs is the acceptance of the King’s repudiation of the social contract by his conduct.

Conclusion: These "reluctant revolutionaries" were mostly gentlemen. They undoubtedly regarded their Oaths of Allegiance, taken when assuming commissions as Judges, justices and officers in the militia as solemn engagements of the utmost importance. They needed to be able to rely on the breaches of the social contract to absolve them from their sworn allegiance to the British Crown.

King George had broken his social contract with his American subjects who have been pushed beyond endurance by bad laws and bad government. So the philosopher-statesmen reluctantly rejected the despotic government of Lord North and King George and resolved to take back to themselves the authority which as subjects they had conferred on the King.

Hence the importance of the lawyers' recitals of the instances of breach of contract justifying rescission which form the preamble to the dispositive part of the Declaration.

With me, so far? If so, please have the grace to say so, and we’ll go on to examine the framing of the constitution.

However, for your background preparation you may care to note that not all forms of government known to the founding fathers were monarchies – there were several important republics – one of which for your reference was well known to Voltaire, since he was wont to slip over the border whenever he needed to put himself beyond the reach of the French King. If you have recently been to Geneva you will find that the runway is partly in France and partly in Switzerland and the Geneva trams go across the border through to Fernet-Voltaire.
 

for the lawyers who formed the majority of the delegates, by the work of William Blackstone.

Because Blackstone was relatively recent, most of the lawyers actually learned their profession from Coke. This was particularly true of Jefferson, who despised Blackstone for his Tory political views. To the end of his life, Jefferson recommended that lawyers learn their law from Coke rather than the "honeyed Mansfieldism" (a phrase I know you'll appreciate) of Blackstone.

As for the rest of your post, I find it rather a conservative interpretation, but then I guess that's only to be expected from the losing side. :)
 

Mark,

Coke –v- Blackstone

Thanks for your comments. I agree that Jefferson disapproved of Blackstone – far too Tory.

I also agree that Coke was far more influential in England. Coke, however, was hard going. Even Jefferson complained. Blackstone was more superficial but an easier read and it was Blackstone who won out in the USA at the time of the drafting of the constitution.

See this Appreciation by Greg Bailey:

Blackstone

Sorry if you think I’m a bit ‘conservative’ – actually I think of myself as a ‘liberal’.

But I think the breach of social contract analysis holds up - what say you?
 

Sorry if you think I’m a bit ‘conservative’ – actually I think of myself as a ‘liberal’.

That's because we're the intellectual descendants of the Levellers and you lot are, well, not. ;)

it was Blackstone who won out in the USA at the time of the drafting of the constitution.

Certainly Blackstone won out in the long run. I'm not sure his voice was predominant as early as 1787, but it's certainly possible. Most of those at the Convention were just old enough to have learned their law before 1770, but Blackstone's influence was felt fairly quickly and might well have overtaken Coke by 1787.

But I think the breach of social contract analysis holds up - what say you?

The reason I called your analysis "conservative" is that it presupposes a form of social contract in which the people make a contract with the government. This was Blackstone's view -- that we surrender some of our natural rights in return for certain promises by the government. It was also the standard Whig view of 1688.

It wasn't the view, though, of the more radical Americans in 1776. In their view, the only social contract was the contract between the people. In this more radical view, the government had no rights at all; power was delegated as thought necessary and could be recalled at whim. Thus "whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

Since the radicals didn't have a majority at the time of the Declaration, the issue got fudged by including both the more radical philosophy and the "bill of particulars" against George III. Your post perfectly expressed this latter sense, and isn't in any way "wrong".

But if you really don't want to be labeled "conservative", then the secret is to not quote Edmund Burke. :)
 

Mark:

Thanks for your clarifications. I do not think that Blackstone led the way on "social contract" - rather the influence of Locke.

I'll come back to the other issues, perhaps when Bart comes back and we get to the early state constitutions

Ad interim I'd like to try to stay a bit on the official thread topic
 

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Mourad:

Thanks for the history review, but let us not change the subject from your claim above:

The Constitution was carefully crafted to put in place what one might in today's terminology refer to as "best practice" among all the then existing nations.

My response was that America rejected the "best practice among all the then existing nations" and formed a novel constitutional republic.

Your discussion of the affinity of the former colonies for the freedoms of Englishmen does not change my point.

1) The colonies were populated with refugees from an England where the freedoms of Englishmen were denied them by the Crown and Parliament

2) The colonies enjoyed more liberty than Englishmen and rebelled when they perceived that the Crown and Parliament were threatening that liberty.

3) After the Revolution was won, the Constitution was sold to the People through the Federalist Papers by discussing how the powers wielded by the English Monarch would be divided between the two elected branches so no similar tyranny could arise.

4) My point was that America was the first constitutional republic, not the only generic republic. This is a vital distinction because the Constitution was enacted to write into permanent law limits on the power of government and guarantees of the freedoms of the People rather than relying upon the good faith of government, republican though it may be, to honor those limits on its own accord.
 

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Dear Neocon Bart,

Thank you for your reply. Since you do not address any of the points I made in my 1st post, I take it you accept my principal propositions thus far.

In further support I invite you to review part of the Resolution of the 1st Continental Congress of 14 October 1774:

”1. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.
2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.
3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.
4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed: But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bonfide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation internal or external, for raising a revenue on the subjects, in America, without their consent.
5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
6. That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.


“English” entitled to ”the rights, liberties and immunities of natural-born subjects” of the Crown “entitled to the common law of England”.

The colonists are Englishmen who know their rights and liberties and want them respected.

This is a process led by gentlemen and the professional and bourgeois citizenry. They are “reluctant revolutionaries”.

In the Declaration of Independence 1776, they particularise the breaches of the social contract between monarch and people, state they have given notice of the breaches and asked for remedy but had none and go on to declare the social contract at an end so as to entitle them to settle another form of government. The justifications are important because they entitle the office holders to consider themselves absolved of their Oaths of allegiance to the Crown.

After we look at what happened in the immediate aftermath of the Declaration of Independence, we may well have to take a look at the Federalist Papers.

Unfortunately (or fortunately for my bank manager) I have some papers to prepare for a 10.30 kick-off on a pre-trial review tomorrow so, I won’t be able to keyboard too much tonight.

But in between your posts on Europe and other matters (when were last on this side of the pond?) you may care to refresh your memory of the constitutions adopted by the states in response to the Continental Congress recommendation of 15th May 1776.
 

The original theme of this thread, was entitled: “who may the President detain inefinitely ?” Actually, the problem is more complex.

The 1st question is just how many persons have been detained in effective US custody outside the USA since 9-11, by whom, where and in what conditions.

The 2nd question is how many of the persons detained died while in custody and how.

The 3rd question is how many have been released, how long were they detained and how were they treated.

The 4th question is just how many persons detained initially by or surrendered to the USA have been shipped by CIA contractors to 3rd countries and what has happened to them.

Anyone who knew the first thing about Afghanistan would have realised the folly of offering bounty payments for the fingering of Al Quaida supporters. The sums of money on offer were more than most Afghans see in a lifetime.

Bounties were also on offer in the Federally Administered Tribal Area in Pakistan – with the same dubious results.

Today, McClatchy Newspapers reported on the consequence in a report concluding that Gitmo often held the wrong men. See:

http://www.mcclatchydc.com/detainees/story/38773.html

One fears that the remaining detainees in Quantanamo Bay are only the tip of the iceberg of human rights abuse resulting from the Administration’s “cowboy” approach to the serious crime of 9-11.
 

"Bart" DeDicta:

the Boumediene Five in their next case have to redefine the term People to include foreign POWs who were never part of the citizenry or in this country, extend the Bill of Rights to them....

Much as you may think otherwise, "Bart", the Bill of Rights extends to all people within the jurisdiction of the United States. Not just "citizens"; not anyone here "legally" (i.e., resident aliens, etc).

It is a restriction on the government's power, and those entitled to bring their cases in U.S. courts are entitled to see that the government obeys the Constitution.

Cheers,
 

"Bart" DeDicta quotes Federalist #78....

Yes, we have nothing to fear from the "least dangerous branch". That's what he was telling the people opposed to a strong, tripartite federal government.

And what Hamilton said is true: the nation has nothing to fear from an independent judiciary; it has no guns, no purse. What it must do, it must do from its power to persuade and to compel through the rule of law.

But if we take "Bart"'s skewed perspective, the courts do not have any power other that advisory, and the other branches (as well as the very citizenry itself) can ignore the judiciary as is their wont.

This hardly fits with the construct of the Constitution as being a tripartite division of power, with the judiciary being a check on the excesses of the other branches when they should exceed the limits of the Constitution, a concept long accepted by pretty much all for over two centuries, and one that we teach children even as early as in grade school.

The strangest part is that "Bart" would change his tune in a microsecond should the situation be reversed; he's a big fan of "by whatever means...." When, if as expected, Heller comes down for an individual right to KABA not associated with the militia, res assured that he will sing high praises to the courts in their check on the excesses of those legislatures and executives....

Cheers,
 

"Bart" DeDicta, like most RW "nationalists", thinks that the effin' Yoo Ess of Aye has the patent on constitutions and invented democracy:

4) My point was that America was the first constitutional republic, not the only generic republic.

False.

Cheers,
 

"Bart" DeDicta:

[T]he Constitution was enacted to write into permanent law limits on the power of government and guarantees of the freedoms of the People rather than relying upon the good faith of government, republican though it may be, to honor those limits on its own accord.

So says someone that thinks that the preznit can ignore the courts and Constitution when he "needs" to, and has been indefatigably defending the maladministration's right to detain people without notice, without hearings, without due process, and without check.

Cheers,
 

Mourad:

After we look at what happened in the immediate aftermath of the Declaration of Independence, we may well have to take a look at the Federalist Papers.

It should be noted that the Federalist Papers were of a different purpose and bent from the writings of the COntinental Congress and the DoI.

The Federalist Papers were polemics in support of a strong federal government to supplant that ineffective Articles of Confederation, not to make a break from English rule and law. As such, they had to minimize the "threat" of a resurrection of the perceived evils of monarchial rule, so as to defend the incipient federal government from objections by those that creating a strong government would be a return to the evils of British rule.

In effect, the Constitution was a bit of a correction of the 'excesses' of the independent colonies under the Articles of Confederation. Anarchy does have its drawbacks..... ;-)

Cheers,
 

As a public service, Mourad's link blue-clickified.

Cheers,
 

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