Crimes, War Crimes and the War on Terror

[Rex Brynen]

Activists defy law to buy plane ticket for exiled Canadian


LES PERREAUX AND BILL CURRY
From Friday's Globe and Mail
March 12, 2009 at 9:59 PM EDT

MONTREAL and OTTAWA — More than 100 Canadians have chipped in airfare and exposed themselves to criminal prosecution in an effort to force Ottawa to allow a Canadian citizen to fly home from Sudan, where he's been stranded since being labelled an al-Qaeda operative by the United Nations.

The donors, including teachers, students and a couple of dozen university professors from across Canada, bought a $997 airline ticket for Abousfian Abdelrazik.

Now, they say, it's up to the Harper government to live up to a promise to give him travel documents for his April 3 flight from Khartoum to Toronto via Abu Dhabi.

Mr. Abdelrazik, 47, is lost in a legal no-man's land. Canadian and Sudanese authorities have cleared him of being a terrorist suspect after years of questioning, imprisonment and torture.

But he remains on the UN terror list at the behest of the United States, according to his lawyer.

The Canadian government gave Mr. Abdelrazik “temporary safe haven” at the Khartoum embassy nearly a year ago.

Foreign Affairs spokeswoman Emma Welford would not say whether emergency travel documents will be issued, as promised, saying only that Canada is obliged to enforce a United Nations travel ban on Mr. Abdelrazik.

But that travel ban specifically permits citizens to return to their home countries.

[jmm99]

I found the Telegraph article cited by David to be excellent. Having said that, it is up to the people of the UK (and of Canada, since the same issues are present in the case cited by Rex) to decide how they are going to address those issues. Our experiences with similar cases (the good, the bad and the ugly) may be instructive, but the decisions in the end are theirs and not ours.

As to the Rasoul case, we must be aware that the very simple issue was whether he was an unlawful enemy combatant subject to detention - not whether he was guilty of war crimes, or subject to "anti-terrorist" laws. The facts (despite his statement, which was simply not truthful) compelled the first three reviewing panels to conclude that his detention was justified.

The final reviewing panel, and Gordon England, determined (for reasons which were totally redacted) that he should be released. Perhaps, that decision was solely political, perhaps not - the record does not allow us to make that determination. As events have turned out, that decision was a cock up.

As to Rasoul himself, it is easy to call him a lying terrorist. My own take on Rasoul (which to me is more scary) is that he was simply a good soldier in his army, who was aware that he had to survive, evade, resist and escape - and managed to do so.

That was all in accord with his Laws of War - which to him and other AQ and Taliban members are a matter not only of law, but of religion. As KSM stated in his "Islamic Response" (link):

(p.3 .pdf file)
Also, as the prophet has stated: "War is to deceive."

Taking this KSM view into account, the Telegraph article is still correct in this conclusion:

The worldwide campaign against Islamist-inspired militancy is highly complex. But if the West to wants to prevent further terror attacks, we must first distinguish between those who are on our side, and those who are not.

But, as the Rasoul case illustrates, that distinguishment is subject to error - especially if everything said by detainees is taken at face value. And, discernment is also impeded by having to take everything our government says at face value - the redacted decision to release Rasoul is simply one example of too many we have so far seen on this thread.

Common Article 3 of the GCs (along with several other articles in GC III and IV) require that detention status be determined by an impartial tribunal (not necessarily a full-fledged domestic judicial court) - based on evidence. That requirement is making more and more sense to me, where these cases are being "tried and decided" based on statements by government (and "shadow government") officials, the detainees and their lawyers.

Binyam Mohamed (link in David's last post) is a good example - the propaganda circus continues. I have stated before and reiterate that I would have liked to see the BM case tried before a tough impartial judge (military or civilian) to determine (1) whether he should be detained as an unlawful enemy combatant; and (2) whether he was guilty of war crimes, "terrorist" crimes, etc. If that trial reached issues of unlawful rendition and torture, so be it.

It is perfectly conceivable that a judge could have found against BM on issues (1) and (2) - and also could have found that both unlawful rendition and torture occured. If the latter finding was made, the judge's duty would then have been to refer the case for Federal prosecution against the persons responsible for the renditions and torture. That is how our (US) system is supposed to work.

Obviously, political decisions were at work in the BM case (by both the Bush II and Obama administrations). So, here also, we are left with a media "trial".

[jmm99]

I start this off by saying that this is a Canadian issue to be decided by Canadians - not by a USian whose last Canadian resident was his maternal grandfather.

So, my comment is limited. I read the Globe article and all of the Globe's archived articles. As in the BM case, we have a lot of statements and very little evidence (much of the evidence seems to be classified - or at least has not been disclosed).

Therefore, I have no opinion as to whether AA was what we (US) would consider an "unlawful enemy combatant", or whether he went afoul of some "terrorist" law. Judging from the relatively few habeas cases decided after merits hearings, that is a logical position to take (Judge Leon's cases, admittedly dealing with lower level people, have broken roughly 50-50).

If this were a US case (if AA were a US citizen sitting in a US embassy), it would indeed be a lulu. I imagine it would commence as a habeas proceeding in DC District Court - and would also include a count seeking his removal from the "no-fly" list. That aspect of the "War on Terror" is about due for some judicial review.

AA is an interesting case. I would love to know the complete evidence (or lack thereof). Keep us abreast, Rex. Thank you for the link.

[jmm99]

I'll start this with Lyle's analysis of the new standard, which goes into far more detail than in the excerpt below:

U.S. defines its claim to detention power
Friday, March 13th, 2009 3:04 pm | Lyle Denniston
....
The Obama Administration disclosed on Friday that it will no longer claim the power to detain terrorism suspects under the label “enemy combatant,” even while claiming broad authority to detain those who are a part of terrorist networks or who supplied “substantial support” to such forces. The authority, it said, extends to places other than battlefields if [in] Afghanistan, but did not say where else detainees might be seized.

The document cast[s] aside a claim by the former Bush Administration that the President has detention power solely because of his role as Commander-in-Chief.

It told a federal judge that it is “refining” its claim of detention authority, relying on Congress’ resolution passed after the 9/11 terrorist attacks and on “principles of the laws of war.” It proposed a new definition of that authority, for use as Guantanamo Bay prisoners’ habeas challenges moved forward in federal civilian courts. But it said it may alter its detention policies after a wide-ranging, inter-agency review is completed in about six months.

From the congressional resolution, as “informed by” laws-of-war principles, the Justice Department defined detention authority as aimed at individuals who “substantially supported” terrorist groups or other armed groups, as well as those it directly linked to Al Qaeda and Taliban networks. ....

While everyone (hopefully) is reading Lyle's analysis (and the cited links), I will go about slogging through the links.

Three thoughts came to mind when Fox briefly flashed the definition (confirmed by Lyle's article):

“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were 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, including any peson who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”

1. The term "person" has a much broader meaning than the term "combatant" (as that term is normally defined under the Laws of War as we know them).

2. The word "substantial" ("material" would be a virtual cognate legally) is what we call a "litigation word" - that is, its limits are a mixed question of fact and law in the particular case.

3. The definition is population-centric (persons, which would to me include infrastructure and auxilliary persons, as well as including, but not limited to, "any peson who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces") - as opposed to threat-centric (enemy combatants).[*]

More later.

--------------
[*] See, BW, I do read your screeds.

[jmm99]

AG Holder filed a personal declaration along with the DoJ filing (to be discussed later), which outlined the Obama administration's process re: detention.

The most informative comment to me was on page 1, para 4 (sorry, the .pdf file doesn't allow cut and paste) regarding the general treatment of "individuals" in connection with "armed conflicts" and "counter-terrorism operations". It is no stretch to suggest that this generalized concept could be easily extended to the term VNSA (Violent Non-State Actor), as discussed in another thread.

------------------------------
The DoJ press release has as its bottom line:

In its filing today, the government bases its authority to hold detainees at Guantanamo on the Authorization for the Use of Military Force, which Congress passed in September 2001, and which authorized the use of force against nations, organizations, or persons the president determines planned, authorized, committed, or aided the September 11 attacks, or harbored such organizations or persons. The government’s new standard relies on the international laws of war to inform the scope of the president’s authority under this statute, and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban.

In short, if I happen to give ten bucks to a front charity, where the money ends up in AQ's hands, I am not subject to detention. If I hand a $10 grenade to an AQ soldier, that should be a different story - the context will turn out to be the deciding factor.

----------------------------
The press release by the Center for Constitutional Rights, an advocacy group that represents a number of detainees, has a negative view of the new standard:

Obama Administration Offers Essentially Same Definition of Enemy Combatant Without Using the Term

CCR Says New Filings Misinterpret Laws of War and Only Serve to Continue to Hold People Indefinitely

March 13, 2009, New York - In response to this afternoon’s government filing in multiple Guantánamo cases, the Center for Constitutional Rights issued the following statement:

While the new government has abandoned the term “Enemy Combatant,” it appears on first reading that whatever they call those they claim the right to detain, they have adopted almost the same standard the Bush administration used to detain people without charge - with one change, the addition of the word “substantially” before the word “supported.” This is really a case of old wine in new bottles.

Whether in interpreting the laws of war or the AUMF, the government continues to confuse the right to use military force with the right to detain terror suspects indefinitely. It is still unlawful to hold people indefinitely without charge. The men who have been held for more than seven years by our government must be charged or released.

I would non-respectfully suggest that the CCR is confusing what arises under the Laws of War (detention, specifically under Common Article 3 of the GCs) with the Rule of Law (criminal charges under domestic law). That will be the issue - and I believe the lines of engagement are now quite clear.

-----------------------------
The ACLU press release is equally negative:

Justice Department Adheres To Key Elements Of Bush Administration Detention Policy

FOR IMMEDIATE RELEASE
March 13, 2009

CONTACT: James Freedland, (646) 785-1894 or (212) 549-2666; media@aclu.org

NEW YORK – In a court filing today, the Obama administration argued that detention of prisoners held at Guantánamo is justified even if the individual is captured far from any battlefield and has not directly participated in hostilities. According to the definition offered in the government's brief, individuals who provide "substantial" support to al-Qaeda or the Taliban can be detained.

The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:

"It is deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States. Once again, the Obama administration has taken a half-step in the right direction. The Justice Department's filing leaves the door open to modifying the government's position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years."

Same comment for this as for CCR. When the new standard sinks into the consciousness of the far-left Obama base, they will go ballistic. The regular left of that base, and its center-right, will say "OK". (we'll see how good my crystal ball is).

Caveat: An unresolved SCOTUS issue (most clearly defined by Justice Scalia) is whether a US citizen (or lawful resident alien) can be detained under the Laws of War (assuming that person is a person meeting the new standard); or must be released unless criminal charges are filed. That issue has been avoided by the Bush II and Obama administrations - and by SCOTUS, most recently in the al-Marri case.

[George L. Singleton]

...was doing during his two term administrations in dealing with the war on terrorism and terrorists.

Be interested in how you see what we do now with released Gitmo terrorist Taliban who is now commander of all Taliban terrorist operations for Kandahar Province in Afghanistan.

When I was a little boy, long ago, pre-TV days, we went on our bikes to Saturday afternoon, often double feature, Western black and white movies. A key statement often heard was "the only good 'Injun is a dead Injun..."

Today's politically correct folk are upset already at my use of historic fact wording, but it's sentiments exist among many who want to win in today's loose as a goose guerilla warfare in Afghanistan.

[jmm99]

In my not so humble opinion, this is one good brief (13 pages). While, in the future, I reserve the right to savage the Obama DoJ writings, I do love these 13 pages.

Here are some excerpts (pagination in .pdf):

p.2

Through this submission, the Government is refining its position with respect to its authority to detain those persons who are now being held at Guantanamo Bay. The United States bases its detention authority as to such persons on the Authorization for the Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily informed by principles of the laws of war. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality). The laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006).

The laws of war have evolved primarily in the context of international armed conflicts between the armed forces of nation states. This body of law, however, is less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict. Accordingly, under the AUMF, the President has authority to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks. The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.

Besides its legal citations being accurate, two things are to be noted: (1) I Law is less developed in the VNSA context, but law exists; and (2) the focus is on persons (more fully developed below into groups of persons) - not on nation-states or formally-recognized armed forces.

After stating the definition (quoted in my first post tonite), the brief goes on to suggest a case by case evaluation - context and evidence:

(p.3)

There are cases where application of the terms of the AUMF and analogous principles from the law of war will be straightforward. It is neither possible nor advisable, however, to attempt to identify, in the abstract, the precise nature and degree of “substantial support,” or the precise characteristics of “associated forces,” that are or would be sufficient to bring persons and organizations within the foregoing framework. Although the concept of “substantial support,” for example, does not justify the detention at Guantanamo Bay of those who provide unwitting or insignificant support to the organizations identified in the AUMF, and the Government is not asserting that it can detain anyone at Guantanamo on such grounds, the particular facts and circumstances justifying detention will vary from case to case, and may require the identification and analysis of various analogues from traditional international armed conflicts. Accordingly, the contours of the “substantial support” and “associated forces” bases of detention will need to be further developed in their application to concrete facts in individual cases.

These general points established, the brief goes on to "persons" who are part of AQ, Taliban or associated groups, with its key points (after I Law justification for use of armed force):

(pp.6-8)

The United States has not historically limited the use of military force to conflicts with nation-states:

[A] number of prior authorizations of force have been directed at non-state actors, such as slave traders, pirates, and Indian tribes. In addition, during the Mexican-American War, the Civil War, and the Spanish-American War, U.S. military forces engaged military opponents who had no formal connection to the state enemy. Presidents also have used force against non-state actors outside of authorized conflicts.

Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2066-67 (2005) (citing U.S. use of military force in the Chinese Boxer Rebellion, against the Mexican rebel leader Pancho Villa, and in the 1998 cruise missile attacks against al-Qaida targets in Sudan and Afghanistan).

Thus, consistent with U.S. historical practice, and international law, the AUMF authorizes the use of necessary and appropriate military force against members of an opposing armed force, whether that armed force is the force of a state or the irregular forces of an armed group like al-Qaida. Because the use of force includes the power of detention, Hamdi, 542 U.S. at 518, the United States has the authority to detain those who were part of al-Qaida and Taliban forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognize that members of enemy forces can be detained even if “they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations.” Ex parte Quirin, 317 U.S. at 38; Khalid v. Bush, 355 F. Supp. 2d 311, 320 (D.D.C. 2005), rev’d on other grounds sub nom., Boumediene v. Bush, 128 S. Ct. 2229 (2008); see also Geneva Convention (III) Relative to the Treatment of Prisoners of War of Aug. 12, 1949, art. 4, 6 U.S.T.S. 3316 (contemplating detention of members of state armed forces and militias without making a distinction as to whether they have engaged in combat). Accordingly, under the AUMF as informed by law-of-war principles, it is enough that an individual was part of al-Qaida or Taliban forces, the principal organizations that fall within the AUMF’s authorization of force.

Moreover, because the armed groups that the President is authorized to detain under the AUMF neither abide by the laws of war nor issue membership cards or uniforms, any determination of whether an individual is part of these forces may depend on a formal or functional analysis of the individual’s role. Evidence relevant to a determination that an individual joined with or became part of al-Qaida or Taliban forces might range from formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaida (as reflected in some cases by staying at al-Qaida or Taliban safehouses that are regularly used to house militant recruits) or taking positions with enemy forces. In each case, given the nature of the irregular forces, and the practice of their participants or members to try to conceal their affiliations, judgments about the detainability of a particular individual will necessarily turn on the totality of the circumstances.

The brief goes on here to include associated groups, and infrastructure supporters, whether in a "battleground nation" or not - again relying on I Law and Laws of War principles (pp. 8-9). I also like "totality of circumstances" standards.

- continued in next post .....

[jmm99]

The brief then turns to my beloved Common Article 3 - and takes on the 1977 Protocols and turns them in favor of detention:

(pp.10-11)

For example, Common Article 3 of the Geneva Conventions provides standards for the treatment of, among others, those persons who are part of armed forces in non-international armed conflict and have been rendered hors de combat by detention. Third Geneva Convention, art. 3. Those provisions pre-suppose that states engaged in such conflicts can detain those who are part of armed groups. Likewise, Additional Protocol II to the Geneva Conventions expressly applies to “dissident armed forces” and “other organized armed groups” participating in certain non-international armed conflicts, distinguishing those forces from the civilian population. Additional Protocol II, art. 1(1), 13.

Moreover, the Commentary to Additional Protocol II draws a clear distinction between individuals who belong to armed forces or armed groups (who may be attacked and, a fortiori, captured at any time) and civilians (who are immune from direct attack except when directly participating in hostilities). That Commentary provides that “[t]hose who belong to armed forces or armed groups may be attacked at any time.” See ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug. 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), ¶ 4789 ... Accordingly, neither the Geneva Conventions nor the Additional Protocols suggest that the “necessary and appropriate” force authorized under the AUMF is limited to al-Qaida leadership or individuals captured directly participating in hostilities, as some petitioners have suggested.

Finally, for these reasons, it is of no moment that someone who was part of an enemy armed group when war commenced may have tried to flee the battle or conceal himself as a civilian in places like Pakistan. Attempting to hide amongst civilians endangers the civilians and violates the law of war. Cf. ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), ¶ 1944, (Link) (“Further it may be noted that members of armed forces feigning civilian non-combatant status are guilty of perfidy.”). Such conduct cannot be used as a weapon to avoid detention. A different rule would ignore the United States’ experience in this conflict, in which Taliban and al-Qaida forces have melted into the civilian population and then regrouped to relaunch vicious attacks against U.S. forces, the Afghan government, and the civilian population.

Good job, guys and gals: I will castigate when you move off the "Straight Path".

In justice to the arguments made by the Bush DoJ (of which I have been critical at times), they were limited by the administation's fixation on Unilateral Executive Power (e.g., John Yoo) and on State-Supported Terrorism (which resulted in some concessions that nearly amounted to recognition of the Taliban as a nation-state). Added to what seemed to be a fear of the GCs and I Law, the resulting arguments often did not hold together.

The use of "unlawful enemy combatant" was not necessarily fatal (as Judge Leon illustrated in several cases - applying his view of the law, however). The movement to a population-centric concept (persons, groups of persons) allows a much broader detention scope than under the Bush definition.

In fact, the excessive emphasis on "enemy combatant" allowed the defense to bring in a number of GC III, Article 4 arguments in the Hamdan trial. That may have led to a lesser verdict (did, according to the expert witness for Hamdan) - see this thread.