Crimes, War Crimes and the War on Terror

[jmm99]

but if some public stuff has surfaced; perhaps (repeat: perhaps), we are looking at the tip of the iceberg.

If so, let us hope that the current watches on the Titanic and Californian are more knowledgable than the originals - that not being a good example of maritime co-operation.

[Watcher In The Middle]

Originally posted by JMM99:

....but if some public stuff has surfaced; perhaps (repeat: perhaps), we are looking at the tip of the iceberg.

That looks to be an understatement. From a political standpoint, this entire area has the potential to spill over and contaminate policy areas that are totally divorced from these specific areas. And it's not just going to be a straight Democrat-Republican battleground, but it's going to both create and disrupt all sorts of different political alliances (and by definition, both policies and programs).

One of the most basic rules in this business is that you never want to make politics personal (and "NEVER" is the operative term). The entire debate over Guantanamo and torture have the very real possibility to get us right there. There's very good political agenda reasons the current Administration initially did not want to go there.

Oh well.

[jmm99]

Judge Kessler's opinion is here.

In effect, she went along with the Obama DoJ on the law and held against them on the facts:

IV. CONCLUSION

For all the foregoing reasons, and for the reasons stated during the Hearing held on April 16-17, 2009, the Court grants the petition for a writ of habeas corpus. The Government has failed to prove, for all the reasons stated above, by a preponderance of the evidence, that AlIa Ali Bin Ali Ahmed was "part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners."

As to the claim of participating in fighting, the Government produced virtually no credible evidence as to the claim of receiving military training, the conclusory nine-word hearsay statement by [redacted] does not show that it is more likely than not that he received such training; as to the claim that he traveled around Afghanistan in 2001 and 2002 in the company of terrorist fighters fleeing the battlefield, even if the Government had proven this charge, which it did not, such a fact would not constitute substantial support; as to the evidence that he stayed at [redacted], the Government has certainly proven that he stayed there, but has utterly failed to present evidence that he was a sUbstantial supporter of al-Qaida and/or the Taliban while he did stay there; as to the Government's position about the significance of locating Petitioner's alleged kunya on a list, the Court finds this argument without any merit whatsoever.

When taken all together as facts which comprise a mosaic theory, the evidence does not satisfy the Government's burden of proof: i.e., the Government's picture does not establish that it is more likely than not that Petitioner fought for the Taliban, that he received military training, that he traveled in Afghanistan with terrorists fleeing from the scene of war, that his stay at [redacted] demonstrated he was a supporter of al-Qaida, [rest of paragraph redacted]

The heavily redacted portion of Judge Kessler's discussion of the USG evidence (pp.13-43) makes it difficult to critique her dismissal of that evidence. I will agree with her that there was a lack of direct evidence against him and that some, but not all, of the USG's case was based on multiple level hearsay. On the other hand, I get the impression that Judge Kessler was slanting more to a beyond a reasonable doubt standard than to the preponderence of the evidence standard which she held to apply.

Two other things came to mind as I read the fact findings. One is that she was very much influenced by a general perception of torture as being the basis for the many of the statements made vs the detainee - that is, the detainee was not tortured and gave no statements except for exculpatory ones, but the judge appeared to assume that many of the statements by others vs him were made under duress, even though no evidence of that appears in the non-redacted portions of the opinion. The syllogism seemed to be (1) torture or duress goes on at Bagram (as a generalization); (2) these statements were made at Bagram; (3) therefore, they are subject to doubt as to whether they were made under duress, etc.

Another aspect (my perception) is that Judge Kessler seemed a bit naive about how AQ-Taliban worked in Astan and Pstan. I found no indication that she has been on the FISA court (as contrasted with some of the other DC judges, mentioned in preceding posts). In short, her life experience as a judge has been in different areas of the law:

From her official bio:

Following graduation, Judge Kessler was employed by the National Labor Relations Board, served as Legislative Assistant to a U.S. Senator and a U.S. Congressman, worked for the New York City Board of Education, and then opened a public interest law firm. In June 1977, she was appointed Associate Judge of the Superior Court of the District of Columbia. From 1981 to 1985, Judge Kessler served as Presiding Judge of the Family Division and was a major architect of one of the nation’s first Multi-Door Courthouses. She served as President of the National Association of Women Judges from 1983 to 1984, served on the Executive Committee and as vice president of the ABA’s Conference of Federal Trial Judges, and on the U.S. Judicial Conference’s Committee on Court Administration and Management for six years. Judge Kessler currently co-chairs the Committee of the National Academy of Sciences on the Development of the Third Edition of the Reference Manual on Scientific Evidence of the Federal Judicial Center. She is vice-chairperson of the District of Columbia Commission on Judicial Disabilities and Tenure.

Well, you can't win them all. Hopefully, the detainee will be a good boy (i.e., a student innocent merely caught up in the fogs and frictions of war, as the judge found); and he will not turn up later on a battlefield.

[jmm99]

terrorism-related arrests, prosecutions, convictions and sentences, was first posted in another thread. For quicker access, the link is here.

The bottom line is found here:

Sentencing (Tables 8a and b)

19. Currently sentencing information is only available for the more recent terrorist trials based upon data collected by the Home Office since January 2007 (see Notes). This data will exclude a small number of less serious offences and it is intended to update this information in future reports using data collected by the Crown Prosecution Service.

20. In 2007/8, based upon year of conviction and principal offence, there were 31 convictions under terrorism legislation and 25 convictions under non-terrorism legislation which were considered significant. Shorter sentences were given under terrorism legislation with the majority (76%) under 10 years. The more serious nature of offences dealt with under non-terrorism legislation has meant that only 1 custodial sentence was under 4 years with 19 (84%) over 10 years, including 9 life sentences and a single Indeterminate sentence for Public Protection (IPP). Fifty-four per cent of all suspects in these cases pleaded guilty.

The distinction between convictions under terrorism legislation and those under non-terrorism legislation (but involving terrorists) is illustrated here:

17. For convictions since 11 September 2001 under terrorism legislation:

• 22% were for possession of an article for terrorist purposes;
• 15% were for membership of a proscribed organisation;
• 11% were for collection of information useful for a terrorist act.

18. For convictions considered terrorism related but under non-terrorism legislation:

• 16% were under Forgery & Counterfeiting Act 1981;
• 15% were under the Explosive Substances Act 1883;
• 13% were for conspiracy to murder;
• 9% were under the Firearms Act 1868;
• two murder convictions.

The percentage of terrorists charged was slightly higher than for ordinary criminals:

Persons charged (Table 2)

4. Of the 1,471 terrorism arrests since 11 September 2001, 521 (35%) resulted in a charge, 131 (9%) had alternative action taken and 819 (56%) were released without charge. Sixty-five per cent of all charges were considered terrorism related, of which 222 (65%) were under terrorism legislation and 118 (35%) under other legislation (e.g. conspiracy to murder). In addition there were 19 charges for port stops under Schedule 7 Terrorism Act 2000 which were excluded from later analysis.

5. A comparison was carried out between terrorism related offences and all criminal offences for which a suspect can be arrested and charged (see Notes).
....
This comparison showed 31% of those aged 18 and over arrested for indictable offences were prosecuted, compared with 35% of terrorism arrests resulting in a charge.

The primary vehicle used against AQ members and supporters resident within the US has also been the criminal justice system.

[jmm99]

Andy Worthington (no surprise) gives a very favorable view of Judge Kessler's opiinion. Read it here. We report - you decide.

While the following is factually accurate (or at least is close to my last count),

This was not the first time that a judge had ordered a prisoner freed from Guantánamo because of the weakness of the government’s evidence. Since the Supreme Court reinstated the prisoners’ habeas corpus rights last June, judges have ordered the release of 25 prisoners in the 29 cases that have so far been heard.

most of 25 ordered released have been Uighurs, which involve a unique and uncontested set of facts - many posts above explain that.

[jmm99]

Judiciary Committee, Subcommittee on Administrative Oversight and the Courts - "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration", are online for the following:

Philip Zelikow

Ali Soufan

David Luban

Jeffrey F. Addicott

[jmm99]

Lyle Denniston has posted his analysis of Judge Kessler's opinion.

Analysis: Dismantling a detention case, point by point
Thursday, May 14th, 2009 10:08 pm | Lyle Denniston

Analysis

Applying a set of legal rules or theories that appear outwardly to give the government an easier time of proving that a Guantanamo Bay detainee must remain confined, a federal judge nevertheless has found that none of them can support continuing captivity for a Yemeni national in the face of serious weaknesses found in the government’s evidence, especially its reliance on information from four other detainees.

In one of the widest ranging rulings by any trial judge in the wake of the Supreme Court’s decision finding that Guantanamo detainees have a constitutional right to contest their captivity, U.S. District Judge Gladys Kessler has ordered the release of 25-year-old Alla Ali Bin Ali Ahmed of Yemen after nearly seven years of detention. The ruling, if followed by other District judges, has strong negative portents for government efforts to justify further detention in other cases. [much more in article]

I have no complaints about Lyle's analysis, which leaves out editorial comments about Judge Kessler. Whether her opinion will be followed by other judges depends in large measure upon their life experiences (my personal opinion).

He and I agree that Judge Kessler's ruling's most important feature is her acceptance of the Obama DoJ's legal rules (legal points in []s added by JMM):

What is very likely the most significant parts of the ruling, with implications for other cases, is that Judge Kessler applied without qualification [1] the legal standard of government authority to detain that the Obama Administration has laid out, [2] allowed the government to try to prove its case on the lowest standard of proof, [3] conceded that the government was entitled to a presumption that its evidence was authentic, and [4] allowed the government to offer hearsay — what others said that Ahmed had said. Each of those legal principles is, as written, more favorable to the government than to detainees, but Kessler still rejected the cumulative effect as well as the individual strength of each piece of government evidence.

What and why did she do so ? Here is Lyle's take (with which I agree):

Kessler allowed the government to proceed on what is called “the mosaic theory” rather than requiring it to prove directly that Ahmed has been a terrorist — a much harder task. The “mosaic theory,” often used by the intelligence community to build a case, provides that single pieces of evidence that may not be strong when looked at singly can be examined together to form a convincing pattern — here, a pattern of terrorist activity.

In the end, however, Kessler said, “when taken all together as facts which comprise a mosaic theory, the evidence [against Ahmed] does not satisfy the government’s burden of proof.” The picture it assembled, she wrote, did not convince her that Ahmed “fought for the Taliban,” received military training, traveled in Afghanistan “with terrorists fleeing from the scene of war,” or demonstrated by a stay at a specific location (deleted) that he “was a supporter of al-Qaida.” (There was a further argument against him that she rejected, but all references to the details of that are redacted).

My perception (not expressed by Lyle) is that Judge Kessler seemed to evince a certain naivity as to intelligence matters (not apparently within her life experience). I also suggested that she, in effect, held the DoJ to a higher proof standard ("clear and convincing evidence", if not "beyond a reasonable doubt") than the 50 yards + a nose standard that she officially adopted.

As to the other legal rules, Judge Kessler accepted the rebuttable presumption of USG evidentiary accuracy, but held that in this case it was rebutted by the facts:

The only legal principle that the government asked her to apply that she rejected was a presumption that its evidence was accurate. ‘It is clear that the accuracy of much of the factual matter contained in those exhibits is hotly contested,” she wrote. There are, she noted, no statements that are verbatim accounts of what was said.

So, now you have three different analyses of this case to compare and reflect upon.

[jmm99]

is no surprise since at least one military judge began this week to schedule hearings later this month - and unnamed WH officials have said as much over the past two weeks.

Anyway, Pres. Obama made it official:

Obama revives tribunals for Gitmo detainees
By LARA JAKES – 6 hours ago

WASHINGTON (AP) — President Barack Obama says he is restarting military tribunals for a small number of terrorist suspects at Guantanamo though with several new legal protections for defendants.

Obama said in a statement Friday that his approach is "the best way to protect our country, while upholding our deeply held values."

The decision puts Obama in the position of reviving a Bush-era trial system he once assailed as deeply flawed — and opposed as a senator. But he is immediately changing the rules that govern the trials in ways consistent with his past criticism of the Bush system. Obama also is asking Congress to change the law. ....

Two other topics are being floated:

1. Detention for the duration of the AUMF-designated armed conflict:

Obama mulls 'indefinite detention' of terror suspects
Thu May 14, 6:54 am ET

WASHINGTON (AFP) – As part of its plans to close Guantanamo Bay, the Obama administration is considering holding some of the detainees indefinitely and without trial on US soil, US media reported Thursday.

President Barack Obama's "administration is weighing plans to detain some terror suspects on US soil -- indefinitely and without trial -- as part of a plan to retool military commission trials that were conducted for prisoners held in Guantanamo Bay," The Wall Street Journal said.

The proposal, which is part of the administration's internal deliberations on how to deal with the prisoners ahead of a planned closure of the controversial US military prison next year, is being shared with some lawmakers, it added.

White House officials contacted by AFP had no immediate comment on the detainee deliberations.

Republican Senator Lindsey Graham, who met with White House Counsel Greg Craig this week about the Guantanamo plans, told the Journal that the administration was namely seeking authority for indefinite detentions granted by a national security court.

"This is a difficult question. How do you hold someone in prison without a trial indefinitely?" asked Graham, who, along with former Republican presidential nominee Senator John McCain, has pressed for reinstating the military commissions to try Guantanamo detainees.

This is consistent with a Common Article 3 approach to Transnational Violent Non-State Actor detention.

2. An independent National Security Court (an idea floated in Andy McCarthy's letter that I posted above) - from last year:

April 9, 2008, 1:16 PM ET
What to Do With Gitmo Detainees? Profs Propose National Security Court
.....
One response to that quandary, according to the article, is a proposal by law professors Neal Katyal (Georgetown), well-known for his win in Hamdan v. Rumsfeld, and Jack Goldsmith (Harvard), a former assistant AG. According to their proposal, a so-called national security court — in which sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained — would be a superior alternative to both military commissions and ordinary criminal prosecutions, which they believe are impractical for detainees captured on distant battlefields.

In their proposal, detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible—so government agents could testify about what informants told them—and there would be no requirement for Miranda warnings before interrogations. Some proceedings would be closed to the public. (Goldsmith and Katyal wrote about their proposal last year in an NYT op-ed.)

It may be of more than passing interest that Prof. Katyal is part of the Obama DoJ, as Principal Deputy Solicitor General.

[jmm99]

by Judge John Bates in an advisory opinion (setting the legal framework for upcoming merits hearings in several cases), as reported by SCOTUSblog.

Another judge defines detention power
Tuesday, May 19th, 2009 11:25 pm | Lyle Denniston

As the pace quickens among federal judges to carry out the task assigned by the Supreme Court to spell out when the President may detain terrorism suspects at Guantanamo Bay, a fourth judge on Tuesday offered a definition. This time, the Obama Administration lost a bit more of the detention authority that other judges have embraced.

U.S. District Judge John D. Bates (in a ruling found here) became the first trial judge to significantly limit the power to detain individuals based on their “support” of a terrorist network (as opposed to being an active member). Both the Bush Administration and the Obama Administration had claimed power to hold those who supported terrorist groups, though President Obama’s claim was more limited.

But Judge Bates, in a 22-page opinion in Hamlily v. Obama, 05-763, concluded that detaining an individual who “substantially supports” Al Qaeda or Taliban forces, but is not a part of such a group, “is simply not authorized” by Congress’s post-9/11 resolution (the Authorization for Use of Military Force) “or by the law of war. Hence, the government’s reliance on ’substantial support’ as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected.”
.....
Bates did not rule out totally any reliance upon a concept of support, however. “Substantial support,” while not “an independent basis for detention,” will be taken into account, he said, in helping to determine who is a “part of” a terrorist organization.

llustrating the point, Bates wrote that “if the evidence demonstraes that an individual did not identify himself as a member, but undertook certain tasks within the command structure or rendered frequent substantive assistance to al Qaeda, whether operational, financial or otherwise, then a court might conclude that he was a ‘part of’ the organization.”

The judge's opinion was very much based on the 2001 AUMF, Common Article 3 to the 1949 GCs and 1977 Additional Protocal II to the GCs (not accepted by the US; but believed to contain some accepted "customary" principles of the Laws of War) - the latter two dealing with non-international armed conflicts (e.g., those involving Violent Non-State Actors). The judge rejected the detainees' arguments based on the Laws of War applicable to international armed conflicts (e.g., those involving Violent State Actors).

The AUMF is laconic in defining who we are fighting:

Authorization for Use of Military Force
September 18, 2001

Public Law 107-40 [S. J. RES. 23]

107th CONGRESS

JOINT RESOLUTION
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Approved September 18, 2001.

Logically, the Legislative and Executive branches would take this bull by the horns, define our enemies and provide a framework on which more specific ROEs as to kill or capture, detain or prosecute, etc., could be built.

Given the ring around the rosey debate concerning what to do with Gitmo, logic is not part of this process. So, the district courts will continue to decide cases using somewhat different standards for detention (this is the fourth), to be eventually settled first by the DC Circuit and then by SCOTUS.

[jmm99]

Mohammed Warsame, a Canadian-Somali, pleaded guilty in Federal District Court, as reported by the Minneapolis Star Tribune:

Minneapolis man pleads guilty to supporting Al-Qaida
Mohammed Warsame, suspected of ties to Al-Qaida and held since 2003, agreed to a plea bargain deal that dropped four of five charges.
By PAM LOUWAGIE, Star Tribune
Last update: May 21, 2009 - 6:36 AM

More than five years after FBI agents first knocked on the door of his Minneapolis apartment, terrorism suspect Mohammed Abdullah Warsame brought an abrupt end to his legal battles Wednesday by pleading guilty to a single charge of conspiring to provide material support and resources to Al-Qaida.
....
Prosecutors described the plea agreement in a news release, saying that Warsame attended two training camps in Afghanistan in 2000, met Osama bin Laden at one camp, and later worked at an Al-Qaida guesthouse and clinic. In 2001, he traveled from Pakistan to Canada, establishing e-mail contacts with several Al-Qaida associates he had met in Afghanistan, the news release said. He sent money to one of his former training camp commanders, it said. After moving to Minneapolis, he maintained e-mail contact in 2002 and 2003 with several people associated with Al-Qaida, the release said.

"This case serves as a reminder of the continuing threats we face as a nation and our resolve to meet those threats," David Kris, assistant attorney general for national security, said in the release.

A spokesman for the U.S. attorney for Minnesota said the office would not comment beyond the news release.

Warsame, a Canadian citizen of Somali descent, is scheduled to be sentenced July 9. He has agreed to be sent back to Canada after his sentence is complete.

This case is an example of the two-pathed trail followed by the USG in AQ-Taliban cases: (1) detention (e.g., at Gitmo or Bagram) for non-resident aliens; and (2) criminal prosecutions for resident aliens and US citizens.

[Boondoggle]

I think this belongs here. The text of the two speeches today, the first by the President, and the second by former Vice-President Cheney. It's too bad the steps weren't taken in 2002 to create the legal framework that the President proposes. His four categories of detainees was well done IMO, and broke down the issue so that it should be understandable by the public.


http://www.nytimes.com/2009/05/21/us...bama.text.html

http://www.foxnews.com/politics/2009...ty-speech-aei/

[jmm99]

Pres. Obama has given us a rare opportunity to critique a legal argument made by the President himself, as opposed to his subordinates at DoJ. Lyle Denniston discusses the speech at SCOTUSblog - mostly in the context of the release of prisoners. He focuses on the long-held (and long-ago-cleared) Uighurs.

Analysis: Some hope for Uighurs?
Thursday, May 21st, 2009 8:09 pm | Lyle Denniston
....
Analysis
President Obama has indicated, for the first time, that he feels bound by federal judges’ rulings that 21 of the Guantanamo Bay detainees have a legal right to be released. Seventeen of those detainees, members of a Chinese Muslim minority (Uighurs), now have a case pending in the Supreme Court, to which the Administration is due to reply by May 29 (Kiyemba, et al., v. Obama, 08-1234).

Those 17, plus the other four whose detention is now technically unauthorized, remain at the U.S. Navy prison camp in Cuba.

In a highly significant speech delivered Thursday at the National Archives in Washington, the President did not indicate how he would carry out his pledge. .... [much more by Lyle]

The full text of the address can be found here.

I have commented on the Uighurs enough for at least one lifetime. What I will address are the five major points of the President's speech defining the various categories of detainees. Presumably, what he said represents the well-considered position of his administration. My perception of this speech is that it is not a model of clarity; and that it will engender some confusion about the administration's primary focus in what is still a developing area of the law.

Following the President's lead, I will not burden my comments with extensive citations of legal authorities. Fear not, they are available if the propositions are challenged.

I will start with the one-sentence lead by the President into his 5 points:

Now, going forward, these cases will fall into five distinct categories.

I suggest there are only two categories of detainees to begin with, both defined under Common Article 3 of the GCs (1977 AP II may or may not be informative in a particular case): (1) persons who were irregular combatants under CA 3 and were captured or surrendered; and (2) persons who were not irregular combatants under CA 3, but otherwise fall within its terms ("Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause ...").

The evidence, at least initially, may be uncertain as to whether a detainee belongs in category 1 or 2.

Those in category 1 may be detained for the duration of the armed conflict - there is no requirement under CA 3 (quoted in full at end of this part) that these detainees be charged criminally, either under domestic law or the laws of war (or LOAC = laws of armed conflict, or IHL = international humanitarian law).

There is a requirement under CA 3 that, if any of the persons in either categories 1 & 2 are charged criminally, they must be tried "by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples".

The same international "due process" requirement (a lesser form of due process than that required under US constitutional law) applies if a detainee claims (1) PW/POW status under GC III (art. 4 et seq); or (2) civilian status under GC IV (art. 4 et seq).

Presumably, many of those in category 2 would claim civilian status - thus, requiring a hearing on that issue if the USG contests that claim. The detainee could also claim (as in the habeas cases) that the minimum standards for detention under CA 3 have not been met (e.g., the Uighurs and a few others who have had success with that argument).

Theoretically, an irregular combatant could claim PW/POW status; but, in the case of AQ-Taliban combatants, that would seem an impossible task because of the interplay between Common Articles 2 & 3 - and the detainee would have to concede that he was a combatant.

The USG has the option to charge a detainee (whether in category 1 or 2) criminally under either domestic law or under the laws of war, or both. That option is not mutually exclusive to continued detention (e.g., if the criminal charge fails and if minimum CA 3 detention proof exists). That option also does not disappear even if minimum CA 3 detention proof does not exist. For example, someone who provided financial support to AQ might escape detention (e.g., under Judge Bates' recent detention standard); but still could be charged under domestic anti-terrorist laws.

--------------------------------------
GC III linked at ICRC (full text):

Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) 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.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

[jmm99]

Without the discussion of Common Article 3 set forth above in part 1, the President's five legal points lose clarity.

My primary objection is not to what he said about each individual category; but that his speech leaves the impression (to this observer) that the five categories are mutually exclusive as to any particular detainee.

The speech also gives primacy to the option of charging criminally - in essence, a law enforcement focus (e,g., the Clinton administration approach, which is only part of the solution), which leaves detention as a remedy for leftovers.

We see this in the President's first two points:

First, whenever feasible, we will try those who have violated American criminal laws in federal courts -- courts provided for by the United States Constitution. Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists. The record makes that clear. Ramzi Yousef tried to blow up the World Trade Center. He was convicted in our courts and is serving a life sentence in U.S. prisons. Zacarias Moussaoui has been identified as the 20th 9/11 hijacker. He was convicted in our courts, and he too is serving a life sentence in prison. If we can try those terrorists in our courts and hold them in our prisons, then we can do the same with detainees from Guantanamo.

Recently, we prosecuted and received a guilty plea from a detainee, al-Marri, in federal court after years of legal confusion. We're preparing to transfer another detainee to the Southern District Court of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania -- bombings that killed over 200 people. Preventing this detainee from coming to our shores would prevent his trial and conviction. And after over a decade, it is time to finally see that justice is served, and that is what we intend to do. (Applause.)

This simply states a truism - prosecutions under US criminal laws must be brought in the federal courts. Whether this approach will turn out to be wise, efficient or effective will be seen. It will be most useful to take plea bargains. But, whether cases are pled or tried to conclusion, a problem that may well come up is where a defendant is sentenced to a short term; but still is considered dangerous. After serving that term, can he be re-detained under the President's logic ?

The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.

Now, some have suggested that this represents a reversal on my part. They should look at the record. In 2006, I did strongly oppose legislation proposed by the Bush administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process rights for the accused that could stand up on appeal.

I said at that time, however, that I supported the use of military commissions to try detainees, provided there were several reforms, and in fact there were some bipartisan efforts to achieve those reforms. Those are the reforms that we are now making. Instead of using the flawed commissions of the last seven years, my administration is bringing our commissions in line with the rule of law. We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify. These reforms, among others, will make our military commissions a more credible and effective means of administering justice, and I will work with Congress and members of both parties, as well as legal authorities across the political spectrum, on legislation to ensure that these commissions are fair, legitimate, and effective.

Again, the use of military commissions to try war crimes is unexceptional - we shall see if the Obama administration's military commissions will try more cases than the three concluded during Bush II.

The third category of detainees includes those who have been ordered released by the courts. Now, let me repeat what I said earlier: This has nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have spoken. They have found that there's no legitimate reason to hold 21 of the people currently held at Guantanamo. Nineteen of these findings took place before I was sworn into office. I cannot ignore these rulings because as President, I too am bound by the law. The United States is a nation of laws and so we must abide by these rulings.

Currently, this category consists of 21 detainees (most of them Uighurs; 4 others have been released to new homes, e.g., Boumedienne to France). So far, this is not a significant issue in terms of numbers.

The fourth category of cases involves detainees who we have determined can be transferred safely to another country. So far, our review team has approved 50 detainees for transfer. And my administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

According to the President, about 2/3 of the detainees initially detained at Gitmo were released by the Bush II administration. They have had roughly a 14% rate of return to combat. Again, 50 detainees is not a significant issue in terms of numbers - unless you happen to be the one who is zapped by one of the 7 (probable) recidivists.

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Thus, we will be left with an undetermined number where detention is the last resort - rather than being the default status, as it is under Common Article 3.

One might ask the President who decided to detain the 100s of 1000s of prisoners of war that were detained in WWII and the Korean War. Detention of violent non-state actors under Common Article 3 is simply a cognate, but in the context of a non-international armed conflict.

[Boondoggle]

JMM,

I'm going to have to spend a weekend reading your earlier posts and links to catch up. I do think the President's speech and his 5 categories (yes 5 not 4 oops) has a different audience, mainly selling it to the public and Congress. Your thoughtfull observations are the wheels grinding behind the public face which I don't think would be understood by most people, even in the legal community. To make it easier to understand, and to reflect the political calculus, he has gone with 5. I think these categories reflect the political reality he faces rather than the legal IMO.

I agree with your premise that the President's default position is to focus toward trying and convicting in the courts, however, I think he may be amenable to shifting any individual into path that empasizes tactical, intelligence and national security concerns. In other words long term detentions that are established through the power of the executive and with the approval of the legislative, not the judicial. I don't necessarily think that the fifth category is only a residual one, and in fact, based on national security, intel and tactical considerations, people might be shifted into that category very early after their capture, or with proper planning and coordination, before capture. The first hint will be in what proposed legislation they provide Congress when they ask for the authority to detain people under this category. Then we will know.

After reflecting last night, it seems that the President is intent on eventually moving all but those in categories 3 and 4, into Federal detention facilities. Short of Congress specifically denying the use of any funds to move people from GITMO, I don't see how they can stop him. At that point, Congress will be paying to run an empty facility. He is the head executive, and his branch "owns" those prisons. I think he will call their bluff.

The tricky one in the long run, even if it's smaller in numbers, will be those ordered released by the courts, category 3. We can't continue to hold them forever in prison, yet no country (as of yet) will take them and put them into category 4. At this point its a political question, unless the admin would seek to indefinitely detain them, then it will swing back into the courts.

[jmm99]

from Boon...
I'm going to have to spend a weekend reading your earlier posts and links to catch up.

it's a long weekend - hopefully, the time spent will not be a boondoggle - I didn't know that was a New Deal term. I don't know but I've been told - that Ken White delivered the 1935 newspaper that coined that term.

OK, enough nonsense. I'd like to believe that what you say:

Your thoughtfull observations are the wheels grinding behind the public face ...

is close to reality - that is, that the Obama administration has, "behind the public face", a clear policy of how and why it will handle violent non-state actors now and in the future. My perception is that it does not. It may well have one within the year (a prediction by Schmedlap, post #4).

I believe that the speech reflects an internal difference of opinion within the administration on whether it should emphasize a detention approach or a law enforcement approach. The first is more "laws of war" based; the second is more "rule of law" based. While this might be something of a center-right vs center-left conflict within the administration, I doubt life within the present White House is that simple.

My suggestion is that the two approaches are not mutually exclusive; and that both may be implemented without doing violence to our Constitution and domestic laws - and to those precepts of international law that have been accepted by the US. Which approach will be taken in a particular case depends on the detainee's status (non-resident alien, resident legal alien or US citizen) and where the detainee is initially nabbed.

In general, for operational and legal considerations, there are two paths:

1. Arrests in US (usually by FBI) will be followed by Federal court prosecutions. Distinctions could be made based on status, but have not been. The Gitmo and Bagram detainees do not fit into this box.

2. Restraint outside of US (usually by military) will usually be followed by detainment (e.g., the Gitmo and Bagram detainees). US citizens and possibly resident legal aliens are an exception (for US constitutional reasons - 2008 unanimous Manuf decision by SCOTUS).

Since the President's speech dealt with the Gitmo detainees (the issues concerning the Bagram detainees are just starting to be addressed), we must of necessity begin with their detentions - and the legal basis for holding them. For that, we have to look at some ancient history (the Bush II approach).

--------------------------------
The Bush II administration was faced with a novel problem when it had to deal with violent non-state actors in the context of an armed conflict (OEF). The Clinton administration had employed only a law enforcement approach in regard to AQ (a few cruise missiles aside). So, Bush II had to break a new trail. Some false starts were made (because of legal novelty, some pre-conceived policy notions and some unexpected court decisions).

Until 2006 Hamdan set the present legal construct, Bush II regarded AQ detainees as being totally outside of the GCs. Their theory was that our conflict with AQ was not one within Common Article 3, nor within any of the other GCs either. As such, the only rules were those made by the Executive branch (together with some Congressional action that generally followed the Bush II construct). Thus, the Bush II lawyers felt there was room for considerable leeway in such things as interrogations, extraditions, conditions of confinement, etc.

The 2006 SCOTUS Hamdan opinion took another approach by looking to Common Article 3's first clause:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties ...

OEF was certainly an armed conflict in the territory of a HCP (Astan was a signatory to the GCs). The question came down to what does "international" mean. The Hamdan plurality (and subsequent court decisions) took it to mean "between nations" - as in "international law" (the law between nations).

The Bush II lawyers took a different meaning, reading "international" in CA 3 to mean "transnational" (that is across national borders). Since AQ certainly operates across borders (a transnational violent non-state actor), the armed conflict with it could not be "not of an international character". In justice to John Yoo, there was before Hamdan considerable support for the argument that CA 3 was limited to domestic (non-transnational) violent non-state actors - domestic insurgents.

SCOTUS said "Nope. AQ is not a nation-state. So, an armed conflict with it is an armed conflict not of an international character." QED, in a nutshell.

The same result applies to Taliban detainees, but for different and more complex reasons. They are laid out in this Hamdan thread - which can be added to weekend reading.

The net result is that detainment of AQ-Taliban types is governed at its base by CA 3, which clearly includes detainees among its subject classes:

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause ...

Common Article 3 has been called a mini-GC, which provides only basic rights to detainees:

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) 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.

The long and short of it is that CA 3 (and probably some principles informed by 1977 AP II) constitute the legal basis for detentions at Gitmo and Bagram. Since the Obama DoJ has said that in the current habeas cases, no legal reason exists for the President not saying it - in so many short words.

Why he didn't has to be political (agreed there), simply because CA 3 places no limit on the length of detention; except for the length of the armed conflict. The left (e.g., KO and Rachel on MSNBC) savaged the President last nite for "his adoption" of a policy of unlimited detention - sorry, gentle pundits; that happens to be the binding rule of law.

------------------------------------
That the President's speech will engender confusion amongst the populace (and most lawyers) is demonstrated by:

from Boon...
I don't necessarily think that the fifth category [JMM: long-term detainees] is only a residual one, and in fact, based on national security, intel and tactical considerations, people might be shifted into that category very early after their capture, or with proper planning and coordination, before capture.

Those folks won't be shifted into that category because that has been their category from the gitgo - and a very "legal" one as determined so far by a number of judicial decisions.

There are other collateral points well worth discussing, but this screed is long enough for the present.

Thanks to you all for the interest in this thread (getting near 16000 views); and to the brave souls like Boondoggle who come in to pay visits.

PS: Boondoggle - give us some background to the extent you can - this thread, here or somewhere. Helps to evaluate context.

[jmm99]

who indeed feel savaged by the President's recent detainee speech.

So, his head, inscribed "Obama", is apparently destined to repose in GG's (and others') rogues gallery - next to the head inscribed "Bush".

Glenn Greenwald
Friday May 22, 2009 09:23 EDT
Facts and myths about Obama's preventive detention proposal
[Updated below - Update II (Interview with ACLU) - Update III - Update IV - Update V - Update VI]

In the wake of Obama's speech yesterday, there are vast numbers of new converts who now support indefinite "preventive detention." It thus seems constructive to have as dispassionate and fact-based discussion as possible of the implications of "preventive detention" and Obama's related detention proposals (military commissions). I'll have a podcast discussion on this topic a little bit later today with the ACLU's Ben Wizner, which I'll add below, but until then, here are some facts and other points worth noting: .....
[long series of points and videos]

I'm not going to address any of GG's "legal" points. He and I live in different worlds - in fact, different universes would be more accurate. I'll leave it up to the readers to analyze this far different take on the issue of detaining irregular combatants under Common Article 3 - instead of simply shooting them, as was once the norm before that convention was adopted.

Some of the comments (not far south of 1000) to GG's article also illustrate the "anthropology" of this alternative universe - interesting reading.

Since this post is intended to point readers to the other side of the debate, you might as well read Andy Worthington's views on the President's speech.

[Ken White]

about life before October, 1950 that I liked...

[jmm99]

from Ken
I KNEW there was something about life before October, 1950 that I liked...

but, as I often have to say to my wife (who is more clever than I by more than half), I don't get it - please explain the significance of October 1950.

I do remember that timeframe - it was between the surgery fusing my left hip and the surgery fusing my right wrist. It also was the timeframe when we got to cheer you guys heading North to the Yalu in a "police action" that was to be over by Xmas.

[Ken White]

please explain the significance of October 1950.

The missing LINK.

It also was the timeframe when we got to cheer you guys heading North to the Yalu in a "police action" that was to be over by Xmas.

Yes. I seem to recall that and I also dimly recall my Platoon Sergeant spewing a number of expletives when asked if that were true...

Not long before that, we had captured some prisoners; said young Staff Sergeant had served in China and said "Nee hao ma" and they responded "Ta ja hao." "They're Chinese," said he. We sent them to Eighth Army. Shortly thereafter, G2 FECOM said no Chinese in Korea. Did I ever tell you how much I despised Adolf Tscheppe-Weidenbach, aka Charles Willoughby...

[jmm99]

Actually, the 1949 GCs ("entry into force 21 October 1950" from your link) aren't that bad - and are quite simple if one doesn't complicate them.

Take Common Article 2, in three simple paragraphs:

Article 2

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

1. The 1st para applied to OIF I - armed conflict between 2 or more HCPs.

2. The 2nd para applied to OEF I - Astan (a HCP, but with no government recognized by the US at that time) was partly (majority) occupied by the Taliban, the rest by the Northern Alliance. Does that mean that Article 2 included the Taliban, making the rest of the GCs apply to them ? No, cuz you have to look to the 3rd para.

3. The 3rd para makes it clear that, where a "Power in the conflict" is not a HCP (the Taliban), the Powers who are HCPs are bound only "in their mutual relations" (e.g., if Pstan had entered the fray on behalf of the Taliban, then 2 HCPs would have been in conflict). But, a Power not a HCP can become in effect a "Party to the GCs" by simply accepting and applying the GCs.

Of course, neither the Taliban nor AQ accepted or applied the GCs; and hence could not come under Art. 4 et seq of any of the 4 GCs. They are covered in the 1949 GCs only by Common Article 3, the non-international (not between nation-states) mini-convention.

I can't understand why such as GG and Worthington cannot see that simple logical argument. Perhaps, they are descendants of Big Mac's worthy intel chief, who mistook perception for reality.