High Value Target HVT / Political Assassination

[jmm99]

This question follows from this:

from OR
Interestingly, it's likely that some percentage of those individuals at Gitmo could have been outright killed (armed combatant, etc) under the LOW without any type of trial (suitable for capital punishment), but now have the privilege of a habeas hearing in the DC District Court under the ROL. Recently, the predominant conflict has revolved around the CSRT enemy combatant standard vs. the domestic habeas standard, but it is often forgotten that for many of the individuals, no standard whatsoever was required for immediate death (never mind imprisonment) in the initial confrontation.

Factually, the Hamdan case is an example - two bad guys KIA; two captured (one being Hamdan, the driver of the second vehicle).

Prior to the Hamdan trial, Keith Allred (CAPT, USN) filed two opinions which bear on the ultimate question posed - why are habeas proceedings required at all ? Judge Allred's opinions of 17 & 19 Dec 2007 are reported and linked at Hamdan, UBL's driver. In July 2008, the detainee's attorney appeared before Judge Robertson of the DC Circuit to stay Hamdan's MCA trial. Judge Robertson denied the stay; and no appeal was taken (Hamdan & al-Marri Updates).

Here are key facts found by Judge Allred in his 19 Dec 2007 opinion:

Hamdan capture.jpg

To this, add the findings that Hamdan was a sworn member of AQ, and UBL's driver and bodyguard.

Based primarily on the roadblock incident, Judge Allred found that, by a preponderence of the evidence, Hamdan was an "alien unlawful enemy combatant" under the MCA and was not a "lawful combatant" under either the MCA or GC III (GPW). One might ask why Judge Allred found it necessary to hold a merits hearing in Dec 2007 well before trial; to take proofs essentially the same as have been taken in Gitmo habeas cases; and decide the "combatant" issues using essentially the same standard of proof used in the Gitmo habeas cases. The answer lies in Judge Allred's 17 Dec 2007 opinion, allowing an "Article 5 (GPW) Status Hearing".

The GCs (accepted by the US) provide for hearings before "competent tribunals" in several instances:

1. GC III (Prisoners of War):

Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

2a. GC IV (Civilians - Internment)

Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.
.....
Art. 43. Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.
.....
Art. 78. If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.

2b. GC IV (Civilians - Sentences)

Art. 71. No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial.

Accused persons who are prosecuted by the Occupying Power shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them, and shall be brought to trial as rapidly as possible. ....

3. Common Article 3 (all GCs)

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
...
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

In Hamdan, the detainee claimed EPW status under GC III - and hence was entitled to an Article 5 hearing.

In all of the Gitmo habeas cases so far decided, the detainees have claimed civilian status (not a combatant) with rights to hearings under GC IV, 41, 42 & 78 (some other GC IV provisions also may play) to determine that status and whether they are security risks.

The USG, on the other hand, has claimed that the Gitmo detainees are held under Common Article 3, which SCOTUS has held applicable to combatants of non-state actors not meeting the requirements of EPWs under GC III. CA 3 does not itself require a detainment hearing (it only requires a hearing before a sentencing or execution). But, a detainee can obtain a GC III, Art. 5 hearing, or a GC IV, Art. 41-78 hearing, by claiming EPW or civilian status.

In Hamdan, the USG claimed that the CSRT determinations met the GC III, Art. 5 standard. Judge Allred disagreed (pp. 1-4 of 17 Dec 2007 opinion), finding that Congress intended that the CSRT make an Article 5 determination; but that the DoD instructions did not task the CSRTs to make that determination. The bottom line was:

Hamdan capture 02.jpg

The CSRT instructions also did not task the CSRTs with making GC IV, Art. 41-78 determinations either. So, the CSRTs were deficient for those detainees claiming civilian status as well.

In short, because the CSRTs did not apply the applicable Laws of War, the detainees could claim that their status had not been properly determined. So, the DC judges had to do what the CSRTs were not tasked to do. That is the short of the story of why the Rule of Law (habeas) was used to apply the Laws of War (GC III and IV required determinations).

Regards

Mike