Defending Hamdan

[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.

[marct]

Thanks again JMM.

BTW, I'm explaining why I phrased the questions the way I did in my next post at the symposium.

[jmm99]

Legitimacy as a Battlespace
.....
As a note, I should point towards an absolutely excellent answer to my final question was recently posted at the Small Wars Council (thread; post) by JMM99, who is following the CT Lab symposium (and enjoying "educating" me).

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

and now, I'm going to have to live with being judged by a standard of "absolute excellence" - a standard that will not be met. In any event, thank you for the kind words - I think.

Your factual point in your post above, which is ..

For most people, I suspect that the idea that a person can be taken from their home in one country and charged by another nation under its domestic laws (and without their same protection) is terrifying. Not only is it terrifying, it will, inevitably, undermine the perception of a rule of law, especially if the "law" can be changed and those changes applied retroactively. This strikes at the heart of the perception of a legal system as "legitimate", by attacking people's perceptions regardless of the actual legality of the action.

certainly has perceptive reality - especially with the caveats you list:

1. "without their same protection" - not necessarily fatal in legal logic: that is, to say, US citizens will receive greater rights when prosecuted for the same crime than aliens (JW Lindh vs. Hamdan) - after all, JWL received a longer sentence (and that, after a plea bargain !). Where it becomes more than a capillary cut is where the perception previously created is just the opposite. For years, the US admins (joined often times by the courts) have pushed the concept that we treat everybody in the world the same - you're all just as good as US citizens - one fuzzy, cuddily little world. We are all citizens of the world ! When reality crashes against that perception, we are getting into arterial cuts - from an agitprop, not legal, standpoint.

2. "especially if the "law" can be changed" - again not necessarily fatal from either a legal or agitprop standpoint. In fact, it could be a plus - admission of a screw-up should be regarded as a strength, not a weakness. In our current culture, admission of error seems not the norm - unless an abject apology keeps you out of the Big House, or mitigates the punishment. Admittedly, the sad legislative and administrative history of DTA and MCA is not a good example of how to admit error and to correct them. In fact, the changes seem to have created an even bigger sinkhole, which ended up being tossed in the laps of the DC District and Circuit judges.

3. "and those changes applied retroactively": - I haven't talked about that much in "War Crimes". No definitive decision has held the Ex Post Facto Law Clause applicable. SCOTUS may have to decide that issue. I have a bias there, to the extent that I (like Robert Taft, Sr) questioned the validity of Nuremberg and Tokyo - because of the ex post facto doctrine, despite the very real crimes charged. Having said that, I also have to recognize the WWII War Crimes Trials as precedents, which seem controlling here - since their judgments gave fair warning to future man-eaters.

My bottom line feeling (just that) is that the DTA-MCA system can be salvaged - but it will take people like M.J. Keith Aldred and the working DC judges to do it. While some at terraplexic look at what happened after 9-11 as "seige mentality", I look at the legal aspects largely as a matter of incompetence; and a refusal to admit reality when that reality did not fit the perception that was desired.

[jmm99]

Can you be partly pregnant ?

Absurdities, Ironies, and Other Observations
Brian Glyn Williams
Oct 1, 2008 at 4:50

As to Marc Tyrell's question of "when does a non-state actor become a state," in the case of Al Qaeda in Afghanistan, it had become a state-within-a-state by about 1998. Bin Laden and his commanders sat in on Taliban shuras (councils), helped formulate foreign and domestic policies, and may have made up as much as 20% of the Taliban fighting force in many campaigns. The Taliban were not a state sponsor of terrorism, but a state sponsored by terrorism in this sense (although I would argue that the vast majority of Arabs in Afghanistan were not involved in terrorist operations, they were involved in military operations. It was these same non-state actors who were defined as unlawful combatants or terrorists after 9/11).

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

He makes the same points in his main article.

Some legal comments (fairly brief) here.

1. The Taliban was not a state; AQ was not a state, within or without Taliban. Afghanistan was and is the state (nation). Williams (who should know better) is confusing a government (recognized or not) with a state (nation). Once a nation is recognized by the international community, that nation continues until it is absorbed in another nation (and becomes part of that state), or partitions itself into two or more nations (e.g., Russias's claim as to S. Ossetia and Abkhazia). That basic I Law 101 rule applies even if the nation has no government - a case which Afghanistan approached on 9-10-2001.

2. The Taliban was not generally recognized as the government of Afghanistan. True, it controlled a large amount of its territory (85% ?), but hostilities were still in process. Lest we get into the different concepts that supposedly control recognition (it is ultimately a political question) - de jure vs. de facto; legitimate existence vs. effective existence, etc., I have a few factual questions about the Taliban (and AQ's Ansar "brigade"), which avoid the recognition issue:

Did the Taliban state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did the Taliban abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it

Did AQ-Ansar state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did AQ-Ansar abide by the provisions of the GCs in their armed conflicts with the Northern Alliance,
US and allied forces ? If so, make your case - prove it

If you wonder why I am asking these questions, consult the Reporter's Notes to common Article III and preceding Articles I & II of the 1948 GCs.

3. Agree factually on the AQ influence within Taliban. Happened to be re-reading vol 1 of the Pentagon Papers the other night - a cure for insomnia - about the VM and VC organizational structure and control of their Popular Fronts. Now, if AQ happened to be an international war criminal organization, would not that make Taliban part of that conspiracy - because, as Williams says: "The Taliban were not a state sponsor of terrorism, but a state sponsored by terrorism in this sense [of AQ participation in Taliban]. Cite: Numerberg judgments on international criminal organizations.

4. Agree factually that "... the vast majority of Arabs in Afghanistan were not involved in terrorist operations, they were involved in military operations. It was these same non-state actors who were defined as unlawful combatants or terrorists after 9/11." Yes, they all were run through basic training and the foot-soldiers were separated from those who were suited to special operations. The same argument was made at Nuremberg - that the Waffen SS should be distinguished from the Gestapo and the executioners. That argument didn't work then - why now ?

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Comment (very much IMO)

The first principle of trial work is primacy - the attack is aimed at the arteries (head and heart shots are rare) as soon as you find a seam (open door), taking your best shot (or shots, if you can MIRV your attack). Never go after the capillaries, except to probe for a seam.

Applying that principle, the prosecution in the "War Crimes" cases should have been directed to go after the senior man-eaters (KSM, etc.), with everything that the Nuremberg and Tokyo precedents would allow - AQ as an international criminal organization, aggressive war, crimes against humanity and run of the mill war crimes where applicable. You either win that or you don't - nothing ventured, nothing gained.

Instead, the initial attack was aimed at such as Hamdan (partly cleared) and Parhat (wholly cleared) - the most sympathetic cases (for the defense) that could have been selected.

Consider that for a moment.

[selil]

What about the Indian Tribes of the United States? They are an association of nations within the United States and have limited sovereign powers. I don't believe they've ever been recognized by anybody yet they are given that status.

[jmm99]

Hey Selil,

Actually know a bit about that topic, but it will move us off-topic here. They do have a special status - similar to that of ASSRs in the old Soviet Union.

I'll send you a PM on that.