Defending Hamdan

[jmm99]

Defending Hamdan - Comments - part 1

The Complex Terrain Laboratory completed last week a five-part article by Brian Glyn Williams, "Defending Hamdan". Williams was an expert witness for Hamdan's defense team. The article has some controversial points (IMO).

The links to the five-part article are here:

HAMDAN SYMPOSIUM
DEFENDING BIN LADEN'S DRIVER
Brian Glyn Williams' account of his experience as an expert witness in the Guantanamo Bay trial of Salim Hamdan, "bin Laden's driver", in five instalments.
Part I: Bin Laden's Driver
Part II: On Ruffling Establishment Feathers
Part III: Letter and Spirit of the Law
Part: IV: Digging Deeper for the Defense
Part V: Trial and Verdict
Full Text (Parts I-V)

http://www.terraplexic.org/review/

I owe this one to Selil, who advised me of it last week.

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As I started writing this part yesterday (12:00 29 Sep), five comments were up at terraplexic review (url above). Here are snips from their leads, which suggest some topics for discussion here:

Combatant Status of the Ansars
.....
For my part, I want to focus on the distinction between lawful and unlawful combatancy, which was at the core of Hamdan’s defence strategy.

The Flexibility of the Military Commissions
....
The military commissions now operating at Guantanamo Bay are more flexible than the federal civilian courts established pursuant to Article III of the Constitution.

A Minute Focus on Uniforms
........
It has been fascinating reading Brian William's brief account of this trial. I am writing from Cairo where I'm in the middle of a quick stint of anthropological fieldwork, and as I hoof about this hot and smoggy but cheerful city chatting with people, I'm reminded daily of the truth of what Brian writes about when he says that one of the major issues at stake in trials that test the legality of Guantanamo is the international image of the U.S.

Lipstick on a Pig?
.......
I also agree that it provides some indication that at least the US officer corps can maintain a level of impartiality despite the interest of the civilians in the Defense Department for manipulating the process. The verdict has caused me to wonder even more about the views of the officer corps regarding Iraq, the War on Terror, and the longer term implications these views will have for military morale.

Out Here On The Perimeter
.....
The outgoing U.S. administration has not had a smooth ride in 2008. In June, the Boumediene v. Bush decision restored the constitutional right of habeas corpus to detainees at Guantanamo Bay . It also challenged the constitutionality of the Military Commissions Act (2006), the first example of which – the trial of Salim Ahmed Hamdan – ended with only partial victory for the administration. It also called into question both the status of the commissions and of 'unlawful combatants'.

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There are many more points in the article (and the above links) that can be addressed pro & con.

Any takers ?

[jmm99]

The "Out Here On The Perimeter" comment (url in part 1) points to some more links, which are worth reading for their own opinions:

The thrust of the Corn article (below) is the need to articulate a clear standard for what is a "war" - since, without a "war", how can we speak of "war crimes" ?

The Hamdan Trial: Can Three 'Rights' Correct a 'Wrong'?
JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.), a former Special Assistant to the Judge Advocate General for Law of War Matters and currently a professor at South Texas College of Law, says that Salim Hamdan's recent military commission trial - in which he was called as an expert witness for the defense - should remind us that true legitimacy for the US military commissions has never been and will never be defined by the role of the military in the commission process, but instead by the process that civilian leaders create for that role...

http://www.terraplexic.org/review/20...perimeter.html

The thrust of Marty Lederman's comment (below) (I think I referenced it somewhere in "War Crimes") is similar to Corn's - "what is a war"; as well as whether the Ex Post Facto Law Clause applies. He raises this point, which should be of interest to all serving military officers - especially those in special ops - and to those in the CIA who are responsible for paramilitary activities:

.... But what's the theory under which it [delivery of weapons in a war zone] is a war crime? The government's argument is that any attempt, like this one, to aid in the killing of U.S. forces on a battlefield is a violation of the laws of armed conflict if it is committed by an unprivileged combatant, i.e., a nonuniformed person.

This is a fairly radical theory -- that any belligerency by nonprivileged persons is itself a war crime. If I'm not mistaken, it would mean that CIA officials and many U.S. Special Forces are not only regularly violating the domestic laws of the nations where they operate, but are committing war crimes. Can that be right? .....

http://balkin.blogspot.com/2008/08/w...ch-hamdan.html

Marty Lederman's post (like "Out There") also refers to this post by Heller, which is a good example of "special pleading" (IMO). It generated 27 comments - some worth reading.

Why Hamdan’s Material Support Convictions Violate the Ex Post Facto Clause
by Kevin Jon Heller
As Marty points out in his post, whether convicting Hamdan of “material support for terrorism” (MST) violates the Ex Post Facto Clause will be a major issue in Hamdan’s appeal. Having now read Judge Allred’s decision carefully, I strongly disagree with his conclusion that it does not. ....

http://opiniojuris.org/2008/08/07/wh...-facto-clause/

This is a very short (non-legal comment) by Patrick Lang, with this little message to all you colonels and prospective colonels out there:

Hamdan will be released before the end of the year [JMM: we shall see]. The six officers have all had soldier or sailor drivers. They decided that they knew what the role of a driver is, and that this role did not justify further confinement for Hamdan. ...
....
The prosecution sought to use this military commission to communicate a message to the world. This message was to be that any association with any group the United States chooses to call "terrorist" will lead, at the least, to a long, long prison sentence.

The prosecution's, and presumably the Bush Administration's, desire to send that message was thwarted by six officers who preferred justice. Colonels can be unpredictable people.

http://turcopolier.typepad.com/sic_s...n-will-go.html

Andy Worthington has written many, many articles on GWOT, OEF and OIF - all of a very critical bias - so, there were no surprises here - it does provide a decent picture of what happened at the trial (AW's opinions aside, IMO):

A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict ....

http://www.andyworthington.co.uk/200...bious-verdict/

Also in the critical catagory is this from Dave Glazier at National Security Advisors ("A national security law blog"), which sets out the issues and does not "brief" them:

The Hamdan Verdict - A Government Stroke of Fortune?

The verdict returned by the trial panel (no one should ever mistake a group hand selected by the authority responsible for the decision to prosecute as a "jury') in Guantanamo today reflects extremely well on the six officers given the unenviable task of participating in a badly flawed system. The government is already proclaiming the outcome as vindication of the commission process. The ironic reality is that the partial verdict - conviction on five specifications of providing material support to terrorism but acquittal on the charge of conspiracy and three other specifications of providing material support - is actually a much better outcome for the prosecution than a more complete conviction would have been. By limiting the grounds on which the defense can appeal, the verdict as returned largely saves the government from its own egregious overreaching.

http://natseclaw.typepad.com/natsecl...mdan-verd.html

Glazer also (as does Marty Lederman above) comments on this:

The judge's instructions to the trial panel, which failed to state that delivering missiles to be used against military forces constitutes a war crime also ultimately works to government advantage in my view. If the government had prevailed on this point, it means that everyone from Ronald Reagan to Charlie Wilson, to my colleagues at the Pentagon during my service in the South East Asia branch of the Joint Chiefs of Staff in 1984-85, to the CIA folks involved in supporting the Mujahidin in Afghanistan during the Soviet Afghan war are war criminals. While U.S. prosecutions for such conduct are obviously unlikely, such an outcome could have consequences from emboldening nations like Russia to press charges to the more mundane but perhaps real possibility that they might persuade some U.S. judges to overturn the conviction to avoid attaching this stigma to fellow Americans.

Of course, saying that something is so doesn't make it so, since one can find exceptions to every rule.

The question is what are the rules ? We all can probably agree that modern warfare - especially in its paramilitary aspects - has raced far ahead of the neat, little boxes contemplated by the GC, etc. They have about as much direct relevance today to unconventional warfare, as the neat, little boxes at Waterloo have today to conventional warfare.

[selil]

I think the perspective Williams brings is very interesting. Less vitriol and more analysis than the press has provided. Of course, he was there and was a witness. I think the near lack of prosecutorial vigor in the case towards Williams is interesting. With cases like Frye, Daubert, Kumho hanging out there simplistic challenges to his assertions as an expert could have been made but weren't. I'm no attorney or an expert in military affairs but I have sat through hundreds of court cases and I did not even perceive some of the normal courtroom wrangling yet the prosecution puts up a host of counters. I guess that puts me in the position of being much of what I sound like. Confused. That is not a good situation when looking at any court proceeding.

[jmm99]

Two more comments have been posted at terraplexic. One is very succinct, by Tony Waters,

Trials as Ritual Mechanisms
Tony Waters
Trials themselves are ritual mechanisms through which governments demonstrate the legitimacy of their power (what Max Weber called the “monopoly of the legitimate use of physical force in a given territory”). The advantage of jury trials, including that of Hamdan, is - as de Tocqueville wrote - that they tell everyone who's in charge, since "He who punishes the criminal is therefore the real master of society." In a slow but imperfect fashion, the Hamdan trial may be signaling that the executive branch of government is no longer the unquestionable master of society, at least when it comes to the War on Terror. Independent judicial review may be returning.

I don't think it (independent judicial review) ever really disappeared, but it certainly is now rearing its head (which, IMO, seems a good thing). Of the three branches, the Federal judiciary is the weakest branch. It is dependent on Congress for financing and organization of its courts. It is dependent on the Executive for enforcement of its decisions ("John Marshall has made his decision. Now, let him enforce it."). Its primary power is the credibility of its decisions.

The second comment is by one Marc Tyrell (Le Canada ...),

....As I read it, I found myself having several reactions which made me want to examine some of the presuppositions behind the entire military tribunal system and, especially, as it applies to those being held in Guantanamo Bay. ...
....
My first question, then, would be “when does a non-state actor become a state”? Or, to phrase it subtly differently, when does world opinion hold that the use of violence by a specific, identifiable group, shift to the point that the rules applied to its use of violence are those of “international relations” (e.g. “lawful combatants”) rather than those of a single, sovereign, legal system (e.g. “unlawful combatants”)? ...
...
.... my second question: why should any group accept the state-based conceptualization of international relations?

This question is especially important when one considers that the post-Westphalian concept of a “society of states” is based on a radically different religious, historical and cultural view of “reality” from that of much of the world today. And, possibly more importantly, when the force a transnational non-state actor can now apply is much greater than at any other time in our species history thanks to the growth of global integration in economics and communications and the increased development of diaspora communities? ...
....
My question is this: what possible interpretation of international law allows the military of one sovereign nation to detain the citizens of another sovereign nation and charge them under a national, as opposed to an international, legal system?

Both posted at

http://www.terraplexic.org/review/

[jmm99]

from Marc Tyrell in his comment at terraplexic

My question is this: what possible interpretation of international law allows the military of one sovereign nation to detain the citizens of another sovereign nation and charge them under a national, as opposed to an international, legal system?

First of all, this is two questions in one, which can be separated as follows:

1. What possible interpretation of international law allows one sovereign nation to charge the citizens of another sovereign nation under a national, as opposed to an international, legal system?

2. What possible interpretation of international law allows one sovereign nation to detain the citizens of another sovereign nation under a national, as opposed to an international, legal system?

Many "interpretations" allow the results. Here is a brief explanation.

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The first question hunges on jurisdiction to prescribe (legislate). The simplest case is territorial jurisdiction. I go to Canada and murder someone. Canada can legislate that anyone who murders someone while both parties are within its territory can be charged and tried in a Canadian court. Assuming I haven't fled Canada, Canada can also detain me under its territorial jurisdiction.

Marc's question goes beyond this simple case to the more complex issue of extraterritorial jurisdiction; that is where the crime involves acts or omissions outside of the nation's territory, and the criminal is located outside the nation's territory. BTW: a nation's territory is geographic; but may extend outside of its geographic territory to such things as ships, planes, space craft, diplomatic enclaves ("constructive territorial jurisdiction", "extended territorial jurisdiction", "quasi territorial jurisdiction", etc.). Assume that is not involved (let us not get into Gitmo and US foreign bases, right now).

Four bases in international law exist as justifications for exercise of extraterritorial jurisdiction to prescribe (legislate).

1. Effects-based jurisdiction. I stand in Michigan and shoot someone in Canada. Canada can legislate that as a Canadian domestic crime.

2. Protective jurisdiction. Similar to effects-based jurisdiction, this basis allows a state to criminalize conduct directed at the state from outside of the state. I sit in Michigan at my computer and direct a conspiracy to overthrow Canada's government. Canada can legislate that as a Canadian domestic crime.

3. Passive-personality jurisdiction. "Passive personality is also known as passive nationality because it refers to the nationality of the victim, while active nationality refers to the nationality of the perpetrator." I murder a Canadian national anywhere in the world because I don't like Canadians. Canada can legislate that as a Canadian domestic crime - Mexico, in fact, has done just that.

4. Universal jurisdiction. I commit a crime regarded as heinous by Canada anywhere in the world - e.g., piracy on the high seas. Canada can legislate that as a Canadian domestic crime. The German Code and others have expanded that concept into war crimes, etc.

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The second question hinges on jurisdiction to detain. That is obvious where the criminal is within the territorial jurisdiction of the detaining nation. If not, then the practical problem is how to get the criminal before the domestic court - physical control over that person.

So, we have extradition (formal), rendition (informal) and extraordinary rendition (kidnapping, in effect). The situation where a nation's military invades another nation, or occupies it (different legally from a simple invasion), provides a fourth means of obtaining custody of the criminal - if he falls into the hands of the invading army.

Now, the two questions and their answers lead to quite different results when the criminal appears before the domestic court, since question 1 goes to the subject matter jurisdiction of the court, while question 2 goes to the court's personal jurisdiction over the person charged.

If there is no subject matter jurisdiction, the case must be dismissed. So, the issues are

(1) Can Canada legislate the charge as a Canadian domestic crime (most likely, especially if under jurisdictions 1 & 2); and

(2) Has Canada legislated the charge as a Canadian domestic crime (depends on interpretation of the statute, or common law).

As to personal jurisdiction, a court may or may not dismiss even if the means of obtaining custody of the person were "extreme". Yes, persons kidnapped from foreign countries have been successfully tried. That is a messier area of the law.

The international law of jurisdiction to prescribe (legislate) is nicely summarized in this survey article:

FindArticles > Washington and Lee Law Review > Fall 2002 > Article > Print friendly
Script kiddies beware: The long arm of U.S. jurisdiction to prescribe
Eisinger, John
.....
This Note concludes that the effects principle allows the United States to prescribe laws against releasing viruses that substantially affect U.S. computers. [42] Furthermore, the protective principle is applicable in cases in which a computer virus specifically targets the U.S. government. [43] However, because passive personality is not as well recognized, it may provide additional justification for jurisdiction, but rarely would justify jurisdiction by itself. [44] Although universal jurisdiction enjoys wide acceptance, it does not cover computer viruses and therefore is not applicable. [45] In addition to having jurisdiction, it is reasonable for the United States to exert its jurisdiction in cases in which a virus substantially affects the United States or targets the United States government, and in which the country of the virus's origin is unable to prosecute. [46] Finally, this Note concludes that Congress intended the 1994 Act to apply extraterritorially. [47]

42. See infra notes 141-49 and accompanying text (explaining how effects principle applies to computer viruses).
43. See infra text accompanying notes 184-94 (noting how computer viruses can invoke protective principle).
44. See infra notes 220-34 and accompanying text (maintaining that passive personality is not well suited for computer viruses).
45. See infra notes 257-60 and accompanying text (concluding that computer viruses do not implicate peremptory norms and thus do not justify universal jurisdiction).
46. See infra notes 307-09 and accompanying text (determining that extraterritorial jurisdiction does not offend international comity in computer virus cases).
47. See infra notes 330-31 and accompanying text (arguing that Congress intended 18 U.S.C. [sec] 1030 (1994) to apply extraterritorially).

http://findarticles.com/p/articles/m...g=artBody;col1

What is nice about this article is that it is without the excess baggage and political spin that tend to obscure articles specifically written about detention and trial in GWOT matters.

[marct]

Thanks for the answer, JMM - I appreciate it .

Let me toss out an hypothetical situation. Let us suppose that we have a crime judged as heinous by one nation (your point 4 Universal Jurisdiction"- say "blasphemy" - that is either not regarded as "heinous" (or is defined radically differently) by either your country of citizenship or by your country of current residence. In our opinion, could a valid argument be made to support the extraordinary rendition of the person so named? In a slightly different situation, could a military or para-military unit operating in your place of residence during an "undeclared war" (i.e. state vs. non-state actor) validly seize you and both detain and charge you?

[jmm99]

Your question combines a multiplicity of questions. Lawyers like neat, little boxes to start with (no matter how much we bitch about them), since we can then test for possible solutions - and exceptions. Anyway, here is a hypothetical, which covers your facts and a bit more.

Flatland - legislature enacts - blasphemy (defined as X, but NOT Y, in statute) is a crime committed by any person anywhere in the world, and subject to the "universal jurisdiction" of Flatland's courts.

Curvedland - legislature enacts - blasphemy (defined as Y, but NOT X, in statute) is a crime committed by any person anywhere in the world, and subject to the "universal jurisdiction" of Curvedland's courts.

Topsyland - constitution (which supercedes all other laws, national and international) provides - blasphemy (whether defined as X or Y) is NOT a crime; no Topsyland national shall be detained, charged, tried or convicted for blasphemy anywhere in the world; and any such action by any other nation shall be considered an act of war against Topsyland.

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Now, recalling that jurisdiction to prescribe (legislate) is separate from jurisdiction to detain, we have to start with jurisdiction to prescribe (legislate). From a domestic law standpoint, each nation will consider its law to be correct. Thus, a stalemate between Flatland and Curvedland; and Topsyland's ICBMs will be aimed at both of the other nations. Can I Law provide an answer ? Maybe.

First we look to substance and then to procedure. As to substance, the basic rule is that Universal Jurisdiction applies to crimes made "heinous" by a vast majority of nations (no set number or percentage, since there is no International Constitution). Assuming the three nations are representative of the world, blasphemy cannot be a crime of universal jurisdiction because there is nothing approaching a common rule. Hence, only Topsyland has it right on that point.

Note that this scenaero could turn on its head if, in fact, most nations regarded X as blasphemy, Y as NOT, and that Topsyland should be regarded as an atheistic pariah nation.

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The procedural devil is in the details - and the detail here is how does one enforce our hypothetical I Law principle (blasphemy is not a crime of universal jurisdiction). Unless the nations have in one way or another agreed to submit the issue to an international body with enforcement powers, that principle will not be enforced except by nations, individually or collectively.

Extraterritorial enforcement by nations, individually or collectively, of what it or they believe to be the correct I Law principle is problematic because it clashes with the general I Law principle that "Thou shall not infringe on the domestic sovereignty of any nation" - and there are also a zillion limitations on the use of armed force, etc. So, in a world where there are shifting alliances, etc., I Law is an ideal and not a reality.

Now, let us take Flatland which wants to enforce its law extraterritorially against a national of Plateauland, who has blasphemed by saying X. Now, there are few imaginary situations we can posit for Plateauland:

1. Plateauland has the same law as Flattland. In that case, Plateauland probably will prosecute anyway; and everyone in Flatland and Plateauland will be happy - except the blasphemers.

2. Plateauland has no law on blasphemy, but believes X is blasphemy because of its religious beliefs. Now, we have a split again depending on the facts. If the blasphemer is a Plateauland national, Plateauland would probably not be willing to hand him over to Flatland by extradition (formal). It is possible that a segment in Plateauland (say, its security police) would be willing to do that - so, we might have rendition (informal). If the blasphemer were a national of Curvedland or Topsyland, extradition might well occur.

3. Plateauland has no law or religious position on blasphemy (assume it is multi-cultural), but has not gone as far as Topsyland. Plateauland is not likely to either extradite or render what it considers an alleged blasphemer to Flatland. Which brings us to your question about extraordinary rendition.

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Extraordinary rendition, since it does not have the formal (extradition) or informal (rendition) consent of the nation in which it occurs, is an intrusion into the territorial sovereignty of that nation. Whether it is an act of war or not depends on the extent of the intrusion. For example, the British detention of seaman on US registered ships was regarded as an act of war in 1812 - whether the detentions or the declaration of war would be valid under present I Law is another question.

Note that traditionally the remedy for the intrusion is left to the nation whose territory has been violated - it may not care. Also, extraordinary rendition may or may not be a defense for the person rendered, since a domestic court may not care about the means used to bring the criminal before it.

Finally, we might have some nation decide that extraordinary rendition is a "heinous" crime subject to universal jurisdiction - in which case, around and around we go again.

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In a slightly different situation, could a military or para-military unit operating in your place of residence during an "undeclared war" (i.e. state vs. non-state actor) validly seize you and both detain and charge you?

Yes, depending on the facts, of course. BTW: throw out the term "undeclared war" - it is not material to I Law which deals with "armed conflict". It may or may not have relevance in domestic law.

PS: General hypothetical questions are not particularly useful here. It would be better to set out the facts of an actual case and deal with them.