Balkinization  

Friday, August 04, 2006

Why Bother with Military Commissions?

Marty Lederman

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

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

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

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

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

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

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

Comments:

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

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

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

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

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

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

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

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


* Geneva III POWs art. 4 states:

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


* Geneva IV Civilians art. 4 states:

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


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

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


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

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

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

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

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

Thanks
 

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

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

When Marty says...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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