Detainees And the Law

UPDATE below and here

Democratic Senators, the MSM and "progressives" in general insist America transgresses settled international human rights, and U.S. Constitutional protections, applicable to Islamic terrorist enemies on the battlefield and detainees in Guantanamo Bay. As addressed previously lefties don't know the law. And the root of their error couldn't be more critical, but often is unstated: the assumption that terrorism should, or must, be punished via the criminal law. Sparked by the debate over at Lifelike Pundits, I'll try again.

Background: Let's review the bidding. In the 2004 campaign, Senator Kerry made the criminalization of terrorism a centerpiece of the policy he would adopt as President. Conservatives and conservative bloggers went nuts--but at least Kerry's proposal was explicit. More common is the claim that the legal defect in America's treatment of terrorists is our failure to pre-suppose innocence or provide Bill of Rights protections as we do for criminal defendants. Such circular reasoning assumes the conclusion--that terrorists must be treated, and tried, as criminals.

From the start, President Bush disagreed. He faulted President Clinton's treating the first WTC bombing solely as a crime, shifted the focus away from law enforcement and towards attack prevention arguing for an altered paradigm:

This new threat required us to think and act differently. And as the 9/11 Commission pointed out, to prevent this from happening again, we need to connect the dots before the enemy attacks, not after. And we need to recognize that dealing with al Qaeda is not simply a matter of law enforcement; it requires defending the country against an enemy that declared war against the United States of America.

So, for example, the Administration consistently tied warrantless wiretapping of foreign national security intel to national defense, not law enforcement:

[R]ight after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That's what the American people want. We looked at the possible scenarios. And the people responsible for helping us protect and defend came forth with the current program, because it enables us to move faster and quicker. And that's important. We've got to be fast on our feet, quick to detect and prevent.

Question: So the issue is: does international law or the Constitution somehow prevent a President from taking such a decision?

Answer: No, for several reasons.

1. Firstly, U.S. obligations under international law are subordinate to, and cannot override, the Constitution. So even were the United States party to a treaty that somehow obliges terrorists to be treated as criminals, President Bush's determination that safeguarding the nation requires that terrorists be detained and questioned is a legitimate exercise of Article II Commander in Chief authority.



2. Second, there is no such treaty; no such obligation exists under international law. The most relevant rules are contained in the Geneva Conventions. And under those treaties, the relevant categories are POWs, civilians or unlawful combatants. Let's apply those provisions to Gitmo detainees:
   
   
   • To be a POW under Geneva III, Article 4, the detainee must have been captured in uniform, with insignia of rank and under a command structure, carrying arms openly and following the laws of war. Few of Saddam's Republican guard are detainees. And stealthy terrorists who violate laws of war by attacking (and hiding among) civilians flunk the test.
   
   
   
   • Should there be any doubt about qualifying as a POW, Geneva III, Article 5 grants detainees only the right to have "their status" be "determined by a competent tribunal." Current law complies--the status of detainees is reviewed by a Combatant Status Review Tribunal under section 2 of the Military Commissions Act of 2006, Pub. L 109-366, to be codified at 10 U.S.C. § 948d, and that determination may be appealed to the United States Court of Appeals for the D.C. Circuit under the provision to be codified at 10 U.S.C. § 950g (see 6/16 comment here). So though the left demands full trial rights, we provide the hearing mandated by treaty--what's the basis for anything more?
   
   
   
   • The media often claims that continuing to hold detainees without charging them with with crimes is itself unlawful, most recently to Press Secretary Tony Snow at a June 12th session:

     Q Why haven't they been charged?
     
     MR. SNOW: Nevertheless, what we have tried to do is to repatriate as many as possible. Their home countries think that these guys are so dangerous that they don't want them back.
     
     So what I would suggest is, rather than trying to lump in criticisms that come in, take a look at the factual record, and also take a look at what members of Congress have seen and said and reported, or journalists. I don't know if anybody in this room has been there, but a number of -- certainly more than a hundred journalists have been down to Guantanamo to see it.
     
     Having said that, the President doesn't want Guantanamo open any longer than it has to be. He's said many times that he'd like to have it closed. But on the other hand, you have extraordinarily dangerous killers that he does not feel -- that it's not appropriate to put on American shores. There is a legal process for dealing with them that is being pursued, and it is pursued in a way that respects their rights, and at the same time, respects the President's obligations of keeping this country safe.
     
     Q But doesn't the indefinite holding of this many prisoners under these circumstances really undercut the President's arguments in favor of democracy worldwide, as he just spoke about in his speech --
     
     MR. SNOW: How does it do that?
     
     Q That's what I'm asking you.
     
     MR. SNOW: No, the question doesn't make sense to me. How does that happen?
     
     Q By not having due process for every --
     
     MR. SNOW: Are you saying that detaining people who are plucked off the battlefields is an assault on democracy? Are you kidding me? You're talking about the people who were responsible for supporting the Taliban, somehow detaining them is an assault on democracy?

     Again, this is circular, in that it assumes criminal procedures apply. But the focus of the laws of warfare is different--even POWs (which Gitmo detainees are not) aren't charged, but instead held for the duration of the war. The point isn't punishment, it's keeping captives from fighting against us again. Or perhaps I missed the Hogan's Heroes episode where Hogan got a Jewish defense lawyer to appeal his confinement to the Nazi high court. . .
   
   
   
   • Lefties sometimes say "wouldn't you fight if a foreign nation invaded your country?" Of course I would--but under no illusion of protection by international law. The Geneva treaties discourage perpetual conflict. Once a war is over, attacking has consequences. In particular, non-belligerents, including soldiers who abandon arms (instead of being captured in battle) are protected if they qualify as civilians under Article 3 of Geneva IV. Not so those who continue to fight an occupying power after surrender or without uniforms via surreptitious weapons, etc. -- i.e., unlawful combatants -- they fall under Article 5 of Geneva IV. And that provision labels such a person "a spy or saboteur" who "shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State." Importantly, the standard reclassifying an otherwise protected person who continues or resumes hostile action is low: "Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention." (emphasis added). Thus, especially where our priorities are stopping or discovering plans for future attacks, "definite suspicion," not proof, allows the sequestration and interrogation of detainees.
   
   
   
   • Nor does Geneva IV, Article 5 require unlawful combatant terrorists be tried, though an occupying power may so choose: "In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be." (emphasis added). Simply put, a trial isn't always required.


3. In several decisions, the United States Supreme Court held that unlawful combatants--even if citizens--need not be afforded the complete Constitutional protections applicable to criminal trials. Ex Parte Quirin, 317 U.S. 1, 40 (1942) ("All these are instances of offenses committed against the United States, for which a penalty is imposed, but they are not deemed to be within Article III, 2 or the provisions of the Fifth and Sixth Amendments relating to 'crimes' and 'criminal prosecutions'. In the light of this long-continued and consistent interpretation we must concluded that 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts."); Johnson v. Eisentrager, 339 U.S. 763, 768 (1950) ("We are cited to no instance where a court, in this or any other country where the [Habeas] writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."). Though some say Rasul v. Bush, 542 U.S. 466 (2004), altered Quirin and Johnson, that case considered only statutory Habeas and was mooted by the Military Commissions Act of 2006, cited above, which changed the law.



4. Last week's 4th Circuit al-Marri opinion is not to the contrary. Some (such as National Review and the same magazine's Andrew McCarthy and Judge Henry Hudson, who dissented, slip op. at 53) say al-Marri is wrong. According to McCarthy, the fact that al-Marri was in the United States is irrelevant:

   [T]he most dangerous operatives of al Qaeda -- which continues to attempt a reprise of 9/11 -- are patently those planted inside the United States. Without them, a 9/11 can’t happen. And it is worth noting that, under the reasoning of this decision, Mohamed Atta would have to have been given a full-blown trial in the civilian justice system, or released, if he had been apprehended before boarding a plane on 9/11.
   
   Terrorists like Atta and al-Marri are walking "battlefields." They can create a "battlefield" by acting.

   This seems right. Though the 4th Circuit majority's opinion is well-reasoned and not without merit, the decision impermissibly subordinates Executive authority to the judicial system,¹ and so I predict will be reversed either en banc or at the Supreme Court. But, in any event, the scope of the decision is narrow--it applies only to resident aliens who are taken into custody in the United States and were not in Iraq or Afghanistan during the hostilities. That's al-Marri alone, not anyone in Gitmo.



5. Setting aside law for a moment, let's examine policy. Crime and intel/detection are different, as Orin Kerr of the Volokh Conspiracy observes:

   Our traditions know two basic ways of dealing with hostile actors: through war and through the criminal justice system. Within each system, there is a balance of factors at play in creating the rules. As a general matter, however, war is about self-protection: we try to disable the enemy from attacking us, and we take whatever measures are necessary to do that. There are limits, of course, conventions as to the laws of war and rules that each side adopts. But by and large the goal of self-protection by disabling future attacks takes priority.
   
   The modern criminal justice system is different. Incapacitation is only a small goal of that system. Rather, we are primarily interested in punishing to discourage future harmful acts and to further the ends of justice. We create law enforcement offices to investigate and prosecute the acts to make this possible, but we intentionally give them only limited powers because we don't want them to be the problem rather than the solution. We make the police jump through a lot of hoops and face punishment for breaking the rules: they have to prove their cases in particular ways, subject to strict evidentiary rules, confrontation rights, the exclusionary rule for search and seizure violations, and the like. The intuition is that limited police powers can prevent abuses while giving the police enough authority to investigate a reasonable amount of crime.

   As I've argued:

   [W]e're not tapping Al Qaeda so Alan Dershowitz can persuade Robert Blake's jury that Osama's glove is too small. Rather, we want to kill Bin Laden and destroy his organization. We're not questioning underlings at Git'mo about unlicensed firearms--we seek intel about fellow terrorists both to prevent further attacks and to roll-up the existing organizations.

   So what would be the advantage of terrorism-as-crime? Here, the left mostly stays silent or abstract as to why criminal law is the better remedy, especially for terrorists aiming to end individual rights. And full application of the Bill of Rights could endanger our system, as Neo-Neocon argues:

   The civilian courts have always been recognized as inadequate to deal with war conditions, but this doesn’t mean that courts and trials of some sort are innappropriate, or that people should be indiscriminately deprived of their most basic rights by whatever courts are deemed appropriate. A person’s entry point into the military commission system, with lesser rights than are guaranteed in the civilian courts, is an especially delicate moment when those accused as terrorists could be vulnerable to governmental abuses of power.
   
   That is why the courts are correct in emphasizing the importance of establishing a proper procedure for the determination of unlawful enemy combatant status. But in establishing this procedure, the full and complete panoply of rights (including generous discovery) that we afford under the civilian justice system no longer seems appropriate (especially in the case of foreign nationals) under the strange circumstances in which we find ourselves: an exceedingly dangerous war against a vicious enemy that does not play by any of the rules and is trained in covering its tracks and using the guarantees of our civilian system against us.

Conclusion: Contrary to the overwrought claims, America isn't a fascist state, says Neo-Neocon: "The paucity of citizens in custody under the post-9/11 powers indicates that no Reign of Terror has been perpetrated on citizens by the Bush administration." And if we're going to safeguard civil liberties next year and decade, the United States and its Constitution must endure despite terror attacks. So the appropriate answer in Gitmo shouldn't undermine the continuation of a government that includes the Bill of Rights; as (liberal) Justice Goldberg observed, "while the Constitution protects against invasions of individual rights, it is not a suicide pact." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963).

That's almost impossible in the current accusatory din. Why the poisonous atmosphere? Debra Burlingame -- sister of the pilot of the aircraft that was crashed into the Pentagon on September 11th, faults post-Watergate cynicism:

We now have the ability to put remote control cameras on the surface of Mars. Why should we allow enemies to annihilate us simply because we lack the clarity or resolve to strike a reasonable balance between a healthy skepticism of government power and the need to take proactive measures to protect ourselves from such threats? The mantra of civil-liberties hard-liners is to "question authority"--even when it is coming to our rescue--then blame that same authority when, hamstrung by civil liberties laws, it fails to save us. The old laws that would prevent FBI agents from stopping the next al-Mihdhar and al-Hazmi were built on the bedrock of a 35-year history of dark, defeating mistrust. More Americans should not die because the peace-at-any-cost fringe and antigovernment paranoids still fighting the ghost of Nixon hate George Bush more than they fear al Qaeda. Ask the American people what they want. They will say that they want the commander in chief to use all reasonable means to catch the people who are trying to rain terror on our cities. Those who cite the soaring principle of individual liberty do not appear to appreciate that our enemies are not seeking to destroy individuals, but whole populations.

Agreed. America is at war--albeit a new kind of war. Wars must be fought to win--and we can do so without infringing the rights of citizens or residents not plotting our deaths.

MORE:

Paul at Lifelike Pundits implies that the Combatant Status Review Tribunals are flawed because they "are run by the military." Nope:

Similarly constituted tribunals (but not the same body) adjudicate charges against U.S. soldiers, such as the guards at Abu Ghraib. If it’s good enough for our boys, why isn’t it good enough for Al Qaeda?

Follow-up here.

___________________

¹ The central flaw in al-Marri is the court's refusal to accept the declaration of President Bush, supported by an un-challenged affidavit from an Executive Branch official, that al-Marri was part of an al Qaeda sleeper cell conspiring to disrupt U.S. financial computer networks. Still, I might buy Neo-Neocon's suggestion for resolving cases like al-Marri:

But since the danger an al Qaeda member freely residing in this country represents is greater than that afforded by any ordinary criminal and the dangers of his being privy to our generous discovery procedures during a civil trial is likewise very great, the standards of protection afforded to such a person should not reach the levels of our civilian criminal justice system, especially if he is not a citizen nor a long-term legal resident (al-Marri is neither). In deciding whether a person thus accused is an illegal enemy combatant there might be a sort of middle-of-the-road procedure, perhaps something resembling traditional military courtmartial rules to determine this question only, and there should also be some time limit during which the accused must be granted this hearing.