Crimes, War Crimes and the War on Terror

[jmm99]

I call on my mascot to deliver the message:

Mascot Lawfare-Warfare.jpg

otherwise, he/she will eat you.

Since one of my Marine ancestors carried the handle "dit Sansrémission", I'm more genetically tuned with Ken's caption "Remiss, never!".

OK, definitely two more who have interest in the topic. Others ? - hopefully many, since it affects all of our lives.

Regards

Mike

[Bill Moore]

Posted by jmm99

Another ancient publication of value to "small war" devotees is A Treatise on the Juridical Basis of the Distinction between Lawful Combatant and Unprivileged Belligerent (Army JAG School 1959). That treatise was authored by a team which linked it to the then-developing doctrine enshrined in FM 31-21, Guerrilla Warfare and Special Forces Operations (my hard copy is the 1961 rev., signed off by George Decker before Pres. Kennedy determined his early retirement).

Highly recommended read. It addresses the, IMO, the false assumption that the West can define who may and may not be a combatant. The reasons irregulars are called unlawful are all Western ideas. If irregulars followed the rules we posited then they would be easy to defeat, so obviously it is a desired state, but the reality is it a state of fantasy.

From the text,

The Conventions criteria requires then, by four seemingly innocuous phrases that the irregular use the strategy and tactics of the conventional army as the price for protected status upon capture.

The 2001 AUMF declares a state of armed conflict to exist with respect to the organizations and persons responsible for 9/11.

From what I read the AUMF addresses AQ, the Taliban, and associates (though I believe it specifies Afghanistan), and is largely focused on the 9/11 attackers and facilitators; however, I didn't see where or if it addressed the morphing nature of the threat, or the ability to conduct pre-emptive attacks against emerging home grown terrorist groups (not just in the U.S.) who have the intention to attack U.S. interests. The 13 pagers you sent the link to said there is a multi-agency underway that is looking to the address future threats and establish their legal status. We needed that a few years ago, so the sooner that comes out the better (of course, only if it is a practical document that addresses the real world we live in, versus the world we want to live in).

I posited the hypo (let's play WWII) where I am a German captain, unarmed and sitting at my desk well behind the front lines and writing a report. Can you drop a 105 in my lap ? His answer was no, you're not a hostile threat. Good answer based on current ROE policy, but very restrictive in terms of the Laws of War.

Complete BS IMO, if he is a bad actor and we know it I should be able to walk into his bedroom while he sleeping and ensure he doesn't wake up. The intent in war is to kill the enemy, not read him his rights and bring him back home so he can be put on trial.

Admittedly, transitioning between the Laws of War (military) and the Rule of Law (law enforcement) can get hairy in a "small war" context.

We're putting our Soldiers and Marines in a situation where the law overrides common sense, which is as wrong as wrong can get. Our civilian leadership should address this as a crisis that needs to be resolved with a sense of urgency.

Appreciate all the posts Mike, we have to understand lawfare since it is a reality we have to live with. The intent is to understand it first, then fight the stupidity.

President Bush was very much correct when he said this will be a different kind of war.

[Steve the Planner]

I spent a lot of time crossing the Ashaki Canal around Balad where the captives were shot, and used to delude myself that I was wondering "What would I have done?"

The truth is so thoroughly captured in Bill Moore's comment:

"We're putting our Soldiers and Marines in a situation where the law overrides common sense, which is as wrong as wrong can get. Our civilian leadership should address this as a crisis that needs to be resolved with a sense of urgency."

Steve

[jmm99]

I'd amend Bill's quote as follows:

We're putting our Soldiers and Marines in a situation where politics, not the law, overrides common sense, which is as wrong as wrong can get. Our civilian leadership should address this as a crisis that needs to be resolved with a sense of urgency.

since the law (like the military) is an instrument of policy.

Based on the recent CNN documentary (and what I've read from CLAMO sudies), the conscious political choice was made by the USG to turn over Iraqi detainees to the Iraqi criminal justice system for prosecution under law enforcement rules. Those Iraqi rules placed a high bar re: prosecutions pursuant to US detentions (even higher today under the SOFA). As understood by the NCOs (and the PFC who was interviewed) the Iraqi system was a "revolving door". I dunno whether that was true or not, but that is what they believed.

The other political option would have been to retain jurisdiction over US detainees and process them accordingly - based on whether or not they were security risks. I'm not talking about "war crimes" prosecutions for them; and I am not talking reasonable doubt, but rather a preponderence of the evidence - as in the DC habeas cases. Under that standard, as I applied the evidence in the case as I watched the documentary, the four detainees were "bad guys" and ought to have been detained for the duration (until our withdrawal from Iraq).

So, the law provided two paths that could have been followed: the Iraqi path or the US path. The USG (whether fully aware of secondary and tertiary effects is another question) decided to go with the Iraqi path. So, four non-innocents are dead and three NCOs are spending time at Leavenworth.

I would say that our civilian leadership should address itself as a crisis that needs to be resolved with a sense of urgency. Note that the decision to follow the Iraqi path was made by the Bush II administration, although from all appearances the Obama administration would probably reach the same decision.

Regards

Mike

[davidbfpo]

Tim Stevens comments on an English remand in custody pending deportation case:http://icsr.info/blog/High-Court-Sec...-Without-Trial

...it does mean that the 'secret evidence' on which the case hinges is insufficient grounds for holding someone without legal hearing, even if national security reasons are cited for doing so....'if the government is going to lock you up, it needs to tell you why' – as it is required to do with other types of case. 'Terrorism' is a crime, not an excuse to suspend legal process.

The defendant is a Pakistani national arrested in Operation Pathway, where no-one was charged and HMG seeks to deport him as a risk to national security. See this blog for some details of the case: http://raffaellopantucci.wordpress.c...what/#more-178

[jmm99]

about UK deportation procedures, and what procedures (if any) exist to allow discovery and protection of classified evidence. My reading of the Guardian article, Judges rule against government over secret evidence in terror cases, suggested to the uninformed US lawyer that the cases involved a legal resident alien and (perhaps) an illegal resident alien.

As to US law, the right to petition for habeas corpus is quite broad (e.g., the Gitmo cases); but getting a free pass to stay in CONUS is another story (e.g., again the Gitmo cases). Aside from those peculiar cases, see these more general references:

AILF - Introduction to Habeas Corpus.

BCLR - Detention Decisions and Access to Habeas Corpus.

CRS - Immigration-Related Detention (2004).

CRS - Immigration: Terrorist Grounds for Exclusion and Removal of Aliens (2006).

As in any Federal court case, classified evidence is not generally a problem.

Regards

Mike

[davidbfpo]

The UK law on phone tapping AKA intercept evidence has been subject to another review and once again rejected as a useful option. Here are some links:

Official Report http://security.homeoffice.gov.uk/ri...ce?view=Binary

A critical commenatary http://www.spyblog.org.uk/ and by a respected BBC reporter: http://news.bbc.co.uk/1/hi/uk/8406478.stm

IIRC this means the UK is the only common law juristdiction that does not allow intercept into evidence.

[davidbfpo]

The controversy over the release of a US-provided intellgeince document in the case of Binyam Mohammed has now reached the Court of Appeal:
http://www.telegraph.co.uk/news/ukne...Secretary.html

Amazing sub-title:

The High Court has been accused of “unnecessary and profoundly damaging” behaviour

suggests the government is being petulant at the minimum.

[davidbfpo]

The case of David Headley, a Pakistan-born American national arrested in Chicago in October, gets strange, although not surprising to some. First this:http://www.philly.com/philly/news/ho...html?viewAll=y
with the headline: 'Terror suspect was drug dealer, then informant'. Makes interesting reading and poses questions how he became so involved with LeT in the plot.

Across the water, The Daily Telegraph, clearly using Indian sources, under the headline: 'Mumbai suspect is US double agent, India claims' and the link: http://www.telegraph.co.uk/news/worl...ia-claims.html

Then there is the (odd) evidence that Headley and co-accussed Rana were recorded in a car:

Prosecutors write: "On September 7, 2009, Headley and Rana took a long car ride and discussed several topics. This conversation was recorded. During their conversation, Headley and Rana discussed the attacks that occurred in late November 2008 in Mumbai, India, in which approximately 170 people were killed. It is clear from the conversation and extrinsic corroboration that Rana was told just days before the Mumbai attacks that the attacks were about to happen. Elsewhere in the conversation, Rana asked Headley to pass Rana's compliments directly to the specific Lashkar e Tayyiba member they both knew who had coordinated the attacks."

See:http://abclocal.go.com/wls/story?sec...eam&id=7170127

[jmm99]

The DC habeas cases involving Gitmo detainees continue; but the status of these cases - and their importance - are in a sort of limbo because of pending decisions, which could involve all three branches of government:

1. Appeals of DC habeas cases (and military commission issues) pending before the DC Circuit Court of Appeals and SCOTUS itself.

2. Executive orders dealing with transfer of Gitmo detainees to the US for either Article III Federal court criminal trials, or for military commission trials, or for continued detention without trial.

3. Possible legislative action "clarifying" or "refining" all of the above.

Thus, while the DC habeas cases present all kinds of inside baseball issues (mostly procedural) to devotees, they are presently not of that much interest to the general reader (IMO).

However, one case is of general interest - and will be of particular interest to David because it involves Binyam Mohamed - 12/16/2009 2005cv1347-253 Civil Action No. 2005-1347 (MOHAMMED et al v. BUSH et al) Doc No. 253 (order) by Judge Gladys Kessler (81 page opinion).

The bottom line is that Judge Kessler ordered the release of Farhi Saeed Bin Mohammed. I do not recall a case in which Judge Kessler has not ordered release, but I have not checked through all of her opinions. I do believe it is fair to say that Judge Kessler requires definitive proof that the detainee was a combatant (in essence, AK in hand).

The government's major evidence on that point was Mohammed's presence at an AQ training camp, established by statements from Binyam Mohamed. The opinion devotes many pages to those statements (pp. 40-70), which are probably the longest judicial findings of facts re: Binyam Mohamed so far filed.

The Binyam Mohamed evidence was excluded based on the Fruit of the Poisonous Tree doctrine. Read the opinion and draw your own conclusions.

Once that evidence was excluded, Judge Kessler concluded that Mohammed was well on the path to becoming an AQ combatant, but had not reached that status when he was captured (pp. 75-81).

Certainly the result in this case was affected by the "Exclusionary Rule Complex". I'm left with the belief that Mohammed was guilty in fact, but not in law because of that procedural device.

[jmm99]

Thomas F. Hogan is the senior (and very respected) DC District Court judge, who more than a year ago agreed to act as coordinator for more than 200 detainee habeas cases. He has only occasionally decided those cases on the merits.

Last week, he decided the case of Musa’ab Al Madhwani, adversely to the detainee. In deciding that case, he took a broader view of detention than many of his colleagues have; and also considered evidence against the detainee that some of his colleagues have rejected. In effect, he approached that particular case in much the same way as I would have (for whatever that is worth). A written opinion will follow, but the essence of his thoughts are contained in his 14 Dec bench opinion.

The importance of Judge Hogan's statements on the record go beyond the particular case itself because he took both the Executive and Legislative branches to task for not enacting clearer guidelines in both the substantive and procedural areas of detention. Those statements gave rise to commentaries at SCOTUS blog and at the Wash Post.

SCOTUS Blog - Lyle Deniston

Commentary: Did Boumediene leave too much undone?
A key judge's lament over detention
Lyle Denniston | Tuesday, December 22nd, 2009 5:20 pm

Commentary

Eighteen months ago, the Supreme Court decided Boumediene v. Bush, assigning federal trial judges in Washington, D.C., a major new role in crafting the rules that would govern the government’s power to detain individuals suspected of terrorism. In recent months, those judges have been making considerable progress in filling the gaps that the Justices left. But the judge who has had the key leadership role is clearly frustrated. The unanswered question is whether his colleagues on the District bench feel the same way.
....
He and his colleagues, he said, have “tried very hard to move these cases, but we are operating…with the procedures, new rules of evidence that will need clarification. It is unfortunate, in my view, that the Legislative Branch of the government, and the Executive Branch, have not moved more strongly to provide uniform, clear rules and laws for handling these cases.”
....
Hogan noted that he and his colleagues have adopted different “substantive law” standards on when further detention was justified. “That needs to be somehow resolved,” he went on, “and I think that would have been best for the Legislature to have passed new rules and procedures and rules of evidence to handle these cases.”

There is, he argued, “a need for a national legislative solution. It wold be appropriate “at another time and place,” he said, “to talk about a new court to handle these [cases],” perhaps modeled on the secret Foreign Intelligence Surveillance Court that approves government requests for secret intelligence-gathering wiretapping.

The existing system, Hogan said, is rather “an unfair process for the detainees in this sense that the law moves at a glacier pace, and since this is all new law in many areas, it has to be litigated through the circuit [D.C. Circuit Court], which the circuit moves in very due deliberate speed.”
......
The judge’s plea for help from the other branches of government echoes what some scholars, skeptical of the judicial process in this context, have been recommending for months. Indeed, Hogan’s comments were cited specifically in a newspaper opinion column Tuesday by two of those private advocates — law professor Jack Goldsmith and think-tank analyst Benjamin Wittes.

and the Wash Post - Goldsmith & Wittes

No place to write detention policy
By Jack Goldsmith and Benjamin Wittes
Tuesday, December 22, 2009

Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. These judges, not experts in terrorism or national security and not politically accountable to the electorate, inherited this responsibility because of the Supreme Court's intervention in detention policy. Over time they maintained it because legislative and executive officials of both political parties refused to craft a comprehensive legislative approach to this novel set of problems that cries out for decisive lawmaking.
....
Now a more important voice has joined the call for legislative reform.

Judge Thomas F. Hogan of the U.S. District Court in Washington is one of the most respected federal district judges on the bench. And he has a particularly informed view of the disarray of modern detention policy. Not only is he one of the judges hearing detainee habeas appeals, but he was asked by most of his judicial colleagues to consolidate and manage common issues in their cases. He is, in short, one of the people to whom Congress has effectively delegated the task of writing these rules -- a person with as holistic and in-the-weeds an understanding of the issues as is possible.

Last week, in ruling on the merits of a detainee's case, he issued a scathing indictment of the current litigation and an urgent plea for congressional participation in cases that "go to the heart of our judicial system."

"It is unfortunate," he said in an oral opinion from the bench, "that the Legislative Branch of our government and the Executive Branch have not moved more strongly to provide uniform, clear rules and laws for handling these cases." While allowing that the various judges were "working very hard and in good faith," he lamented that "we have different rules and procedures being used by the judges," as well as "different rules of evidence" and "a difference in substantive law." For Judge Hogan, it all "highlights the need for a national legislative solution with the assistance of the Executive so that these matters are handled promptly and uniformly and fairly for all concerned."
.....
The Guantanamo closure process and the appropriations process for the new terrorist detention facility in Illinois offer a perfect opportunity to correct this long-festering problem. The administration will have to work with Congress, if only to permit Obama to move detainees to the new site. Yet if legislation stops there, the political branches can congratulate themselves only on moving the location of terrorist detention and not on strengthening and clarifying detention policy.

By contrast, if Congress and the administration were inclined to perform their constitutional duties, they could draw on eight years of judicial decisions, legal briefs and scholarship to craft clear, stable rules. There are myriad issues for a responsible Congress to address, but at a minimum it should offer a clear definition of who can be detained, a coherent set of evidentiary and procedural rules to determine who fits the definition of an enemy, and guidance concerning the scope of the government's obligation to disclose evidence to detainees' lawyers.

The goal, simply put, should be to replace what Judge Hogan called "procedures drawn up by the court, and principally [by] myself . . . in a new venue that has been untested" with one that carries the legislature's stamp and the president's signature, and that answers some of the hard policy questions our political institutions have punted to the courts. The courts' job, in such a world, would be to adjudicate detainee cases, rather than to write conflicting rules that they then have to apply.

The need for a comprehensive legislative solution (and a separate Federal court to handle detention cases) have been mentioned in this thread several times (Andrew McCarthy, for example, has been a consistent proponent).

Judge Hogan is on the right track. Getting the Executive and Legislative branches on that same track is another story. If only they "were inclined to perform their constitutional duties" .......

Merry Christmas to all

Mike

[jmm99]

The Complaint and Affidavit is a short 6 pages. I expect the indictment will allege more serious charges.

[davidbfpo]

The BBC report:http://news.bbc.co.uk/2/hi/south_asia/8436747.stm that the five US citizens from Virginia, who left for Pakistan are to be charged in Pakistan.

Pakistan police are seeking to charge five Americans arrested in the country in early December with terrorism. Investigator Tahir Gujar said the men, who are suspected of having links to Islamic militants, will appear in court in Sargodha on 4 January. Police also want the young Muslims to face life sentences for allegedly plotting to carry out attacks. US officials have also been looking at charging the same men, the Associated Press reported.
The are reported to be from the Washington DC area in the US.

I'm sure this story has appeared before on SWC, on another thread.

[davidbfpo]

A possible rift in Anglo-US relations is reported over what intelligence the UK provided on Abdulmutallab; the article is sub-titled:

Barack Obama is under pressure to disclose what information MI5 passed to the American authorities about the Detroit bomber after Downing Street disclosed that a file had been "shared" with the CIA in 2008....The information is understood to have detailed Abdulmutallab's contacts with radical preachers but did not give warning that he might be a terrorist threat.

Link:http://www.telegraph.co.uk/news/worl...it-bomber.html

Now if the US insisted on their intelligence on Binyam Mohammed being kept out of the public domain, which is still subject of civil court proceedings here; how will the UK government react to a public disclosure of UK-provided intelligence?

[jmm99]

The Al-Bihani case, when before Judge Richard J. Leon, was reported in Judge Leon decides again ...

Judge Leon's denial of the detainee's release was appealed to the DC Circuit. As noted here before, the temperment of judges (as also jurors) is all important. On this appeal, the luck of the draw favored the DoJ. The 3-judge panel was of a generally conservative cast (see Wiki bios for Janice Rogers Brown, Brett M. Kavanaugh and Stephen F. Williams). The panel affirmed Judge Leon.

From SCOTUSBlog:

Wide detention power upheld
Circuit's first ruling post-Boumediene
Lyle Denniston | Tuesday, January 5th, 2010 12:13 pm

The D.C. Circuit Court, filling in some of the legal blanks left by the Supreme Court on the president’s power to detain terrorist suspects, on Tuesday upheld the broadest view the government has taken of that authority, and ruled that the power is not limited in any way by international law, including the law of war. Only domestic law controls whom the president may detain, and those home-grown legal concepts sweep widely, the appeals court ruled.
.....
The ruling in Al-Bihani v. Obama (Circuit docket 09-5051) was the first by the Circuit Court to directly apply the Supreme Court’s 2008 decision in Boumediene v. Bush creating a constitutional right for Guantanamo Bay detainees to challenge their captivity. Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington.

The Circuit Court panel embraced the definition of detention power first spelled out by the Bush Administration (somewhat wider than the Obama Administration has advocated) and adopted by U.S. District Judge Richard J. Leon. Leon has been prepared to allow a wider scope for detention than most of his District Court colleagues; their views on the issue must now yield. Conceivably, the practical result may be that fewer detainees can now win court orders for their release. While the government has not appealed to the Circuit Court all of the prior release orders, it presumably has a free hand now to contest almost any such order.

Moreover, the government’s chances of defending detentions in court appeared to be enhanced by the new ruling, since the panel concluded that detainees captured on overseas battlefields do not have the full array of procedural rights that, say, a domestic criminal would have in a habeas case. “Requiring highly protective procedures at the tail end of the detention process for detainees like Al-Bihani would have systemic effects on the military’s entire approach to war,” the panel said.

The decision was supported in full by two of the most conservative members of the Circuit Court: Judges Janice Rogers Brown (who wrote the main opinion as well as a separate concurrence for herself alone) and Brett M. Kavanaugh. The third member of the panel, Senior Circuit Judge Stephen F. Williams, supported only the result — denial of habeas for Al-Bihani — and expressly questioned the majority’s view that presidential detention power was not limited by international law, including the law of war.

Although the opinion for the majority represented the views of only two members of the Circuit Court, it is a decision that is binding on any other Circuit panel that hears a Guantanano detainee case raising issues of detention power and courtroom rights. It could be overturned at the Circuit Court level only by a majority of the en banc Court. Al-Bihani’s lawyers have the option of seeking such review, or taking the case on to the Supreme Court. ......

For the moment, this case is binding precedent in the Gitmo habeas cases. The next step for detainees is en banc hearing by the DC Circuit or appeal to SCOTUS.

Here are the key facts (pp. 2-3):

Al-Bihani, a Yemeni citizen, has been held at the U.S. naval base detention facility in Guantanamo Bay, Cuba since 2002. He came to Guantanamo by a circuitous route. It began in Saudi Arabia in the first half of 2001 when a local sheikh issued a religious challenge to Al-Bihani. In response, Al-Bihani traveled through Pakistan to Afghanistan eager to defend the Taliban’s Islamic state against the Northern Alliance. Along the way, he stayed at what the government alleges were Al Qaeda–affiliated guesthouses; Al-Bihani only concedes they were affiliated with the Taliban. During this transit period, he may also have received instruction at two Al Qaeda terrorist training camps, though Al-Bihani disputes this. What he does not dispute is that he eventually accompanied and served a paramilitary group allied with the Taliban, known as the 55th Arab Brigade, which included Al Qaeda members within its command structure and which fought on the front lines against the Northern Alliance. He worked as the brigade’s cook and carried a brigade-issued weapon, but never fired it in combat. Combat, however - in the form of bombing by the U.S.-led Coalition that invaded Afghanistan in response to the attacks of September 11, 2001 - forced the 55th to retreat from the front lines in October 2001. At the end of this protracted retreat, Al-Bihani and the rest of the brigade surrendered, under orders, to Northern Alliance forces, and they kept him in custody until his handover to U.S. Coalition forces in early 2002. The U.S. military sent Al-Bihani to Guantanamo for detention and interrogation.

Based on the detainee's admissions, Judge Stephen F. Williams (pp. 28-34) saw no reason to complicate this case, since al-Bihani was lawfully detained under the AUMF and various of his arguments were immaterial once that issue was settled. Judge Williams (correctly, IMO) thought the majority two judges did not exactly portray the role played by interenational law and the Laws of War.

The key law on which the majority focused were the statutes applicable to determining the detainee's status (pp. 8-9):

The statutes authorizing the use of force and detention not only grant the government the power to craft a workable legal standard to identify individuals it can detain, but also cabin the application of these definitions. The AUMF authorizes the President 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.” AUMF § 2(a). The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. 542 U.S. at 519. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. 2006 MCA sec. 3, § 948a(1). The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” Id. § 948a(1)(A)(i). In 2009, Congress enacted a new version of the MCA with a new definition that authorized the trial of “unprivileged enemy belligerents,” a class of persons that includes those who “purposefully and materially supported hostilities against the United States or its coalition partners.” Military Commissions Act of 2009 (2009 MCA) sec. 1802, §§ 948a(7), 948b(a), 948c, Pub. L. No. 111-84, ###. XVIII, 123 Stat. 2190, 2575–76. The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority. Detention authority in fact sweeps wider, also extending at least to traditional P.O.W.s, see id. § 948a(6), and arguably to other categories of persons. But for this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.

In short, the authorization to kill includes an authorization to capture and detain. IMO, the power to detain (as security risks) goes beyond the power to kill (limited to "combatants") and includes cadres and infrastructure who might be considered "non-combatants" (civilians).

end part 1

[jmm99]

The majority also considered and rejected a number of claims based on international law (pp. 6-7):

Al-Bihani challenges the statutory legitimacy of his detention by advancing a number of arguments based upon the international laws of war. He first argues that relying on “support,” or even “substantial support” of Al Qaeda or the Taliban as an independent basis for detention violates international law. As a result, such a standard should not be read into the ambiguous provisions of the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001) (reprinted at 50 U.S.C. § 1541 note), the Act empowering the President to respond to the attacks of September 11, 2001. Al-Bihani interprets international law to mean anyone not belonging to an official state military is a civilian, and civilians, he says, must commit a direct hostile act, such as firing a weapon in combat, before they can be lawfully detained. Because Al-Bihani did not commit such an act, he reasons his detention is unlawful. Next, he argues the members of the 55th Arab Brigade were not subject to attack or detention by U.S. Coalition forces under the laws of co-belligerency because the 55th, although allied with the Taliban against the Northern Alliance, did not have the required opportunity to declare its neutrality in the fight against the United States. His third argument is that the conflict in which he was detained, an international war between the United States and Taliban-controlled Afghanistan, officially ended when the Taliban lost control of the Afghan government. Thus, absent a determination of future dangerousness, he must be released. See Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) art. 118, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. Lastly, Al-Bihani posits a type of “clean hands” theory by which any authority the government has to detain him is undermined by its failure to accord him the prisoner-of-war status to which he believes he is entitled by international law.

The majority the generally dismissed these arguments via the portion of its opinion with which Judge Williams partially disagreed (p. 7):

Before considering these arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, ###. X, 119 Stat. 2739, 2741–43, or the MCA of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 111(3)–(4) (1987). Even assuming Congress had at some earlier point implemented the laws of war as domestic law through appropriate legislation, Congress had the power to authorize the President in the AUMF and other later statutes to exceed those bounds. See id. § 115(1)(a). Further weakening their relevance to this case, the international laws of war are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid. See id. § 102 cmts. b & c (stating there is “no precise formula” to identify a practice as custom and that “[i]t is often difficult to determine when [a custom’s] transformation into law has taken place”). Therefore, while the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, see Hamdi, 542 U.S. at 520, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.

Much of this is correct, but it may give the wrong impression as to the definitive rules of international law accepted by the US (e.g., Hague and 1949 Geneva), as well as the peculiar US Laws of War which have developed since the Lieber Code of 1863.

What the majority was really addressing (and which it was rejecting) seems to lie in this paragraph (p.8):

Therefore, putting aside that we find Al-Bihani’s reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles. The sources we look to for resolution of Al-Bihani’s case are the sources courts always look to: the text of relevant statutes and controlling domestic caselaw.

That is, "the intricate application of vague treaty provisions and amorphous customary principles."

In that I concur. The flow of I Law into US positive law is illustrated by this chart (note the Hague and Geneva flows):

I Law Flow 01.jpg

Incorporation of other treaties, and especially of "customary international law", is a murky area. The majority was well advised in not going there where clear statutory authority existed for its decision.

That having been said, there were arguments against the detainee that could have been advanced by the court, based on US traditional Laws of War and the Hague and Geneva Conventions accepted by the US. Perhaps, the DoJ did not make those arguments.

[Boondoggle]

And as I'm reading through it this morning, I thought to check here before I finished to see if you had weighed in and I am rewarded.

As to "International Law" I've told people I think its more apt to call it "International Customs and Courtesies" being more descriptive of their actual weight. Important, and moral guideposts, and deviation from them too long can create far reaching reprecussions, but dispositive they are not unless as you point out they are codified within our own law.

Now having said that, they should have made that distinction instead of the language they used that without reading further makes it sound like we don't care at all about the laws of war. Wish they'd been more careful, but I'm only on page 11.

[stanleywinthrop]

JMM,

As you referred to it, customary international law is indeed an amourphous concept. Basically defined it is rule of international behavior that the vast majority or even all nations follow out of a sense of legal obligation. Out of a sense of legal obligation is a critical determination. There is no central storehouse of customary international law other than in various treatise and case decisions. For a great discussion of how to find and use customary international law look at Paquette Habana and The Lola, 175 U.S. 667 (1900). Basically this case arose out of the Spanish-American war. The U.S. Navy had captured a small cuban fishing vessel as war prize, and the owners sued in U.S. court to get the boat back after the war. They claimed, and ultimatly proved to the Supreme Court that it was customary international law for nations not to capture small fishing vessels during war.

Customary international law is incorporated into U.S. law trough various Congressional acts, one of which that comes to mind is the Alien Tort Claims Act, under which someone can sue an alien (of the earthly variety) for torts committed in violation of international law, to include customary international law. The ATCA does not in and of itself define customary international law, but leaves it to the courts to determine. There are number of Circuit Court of Appeals decisions out there that develop this concept.

[slapout9]

And as I'm reading through it this morning, I thought to check here before I finished to see if you had weighed in and I am rewarded.

As to "International Law" I've told people I think its more apt to call it "International Customs and Courtesies" being more descriptive of their actual weight. Important, and moral guideposts, and deviation from them too long can create far reaching reprecussions, but dispositive they are not unless as you point out they are codified within our own law.

Now having said that, they should have made that distinction instead of the language they used that without reading further makes it sound like we don't care at all about the laws of war. Wish they'd been more careful, but I'm only on page 11.

Ditto, really nice chart jmm

[jmm99]

Thanks for the kind words.

It looks like Judge Williams, you and me have the same problem with the majority opinion - i.e., it "makes it sound like we don't care at all about the laws of war." Obviously we do and so also the US - from the Lieber Code of 1863 (which was the first true codification of the modern laws of war) through acceptance of Hague and 1949 Geneva.

I expect part of the problem is that the two judges in the majority do not run into either international law or military law cases that often (and also Judge Williams for that matter, whose bio shows an emphasis on economic law, primarily oil and gas issues).

I notice that I did not link the opinion directly in my post last nite. It is here.

The real problem that the majority saw in international law relates to that the legal theories that have been developed into what is usually called "International Humanitarian Law" as applied to armed conflicts. Its proponents are adverse to calling it either the Laws of War or the Laws of Armed Conflict. Part of it is based on expanded concepts found in Additional Protocol I to the 1949 GCs (AP I has been rejected by the Senate), as well as a number of other international conventions dealing with human rights.

That part of "International Humanitarian Law", which has not been adopted as positive law in the US Laws of War (Laws of Armed Conflict), is argued by its proponents to be a part of US law (often, a supreceding part) via "customary international law". The purpose of the chart is to illustrate the difference between international law positively adopted (Hague and 1949 Geneva), and "customary international law".

As to "customary international law", it can be adopted by any of the three constitutional branches - in areas where they are given constitutional power. For example, SCOTUS has adopted some provisions of "customary international law" in the admiralty field (akin to a "common law of admiralty"), but the Federal courts clearly have jurisdiction over admiralty cases. As far as I know, SCOTUS has not claimed a general power to adopt "customary international law". It has left those decisions to the executive and legislative branches, who together have the final say in international matters and matter involving armed conflicts.

My major quibble with the majority opinion is that it did not discuss Common Articles 2 and 3 to the 1949 GCs. Those articles, when interpreted correctly, establish the limited rights afforded violent non-state actors such as AQ and the Taliban.

I very much agree with Judge Brown's separate concurrence, which was a letter to the executive and legislative branches to adopt some clear and definitive rules concerning violent non-state actors and their irregular combatants. She echoed Judge Hogan's statements to the same effect, which are reported here in Judge Hogan & the Future.

Regards

Mike