Defending Hamdan

[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.

[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.