Reporting from Guantanamo Bay: Municipal law United States – the Geneva Conventions,

Municipal law

United States

Two separate issues to be determined in evaluating the category “unlawful combatant” as applied by the government of the United States One issue is whether such a category could exist without violating the Geneva Conventions, and if such a category does exist, what steps the United States executive branch needs to take to comply with municipal laws as interpreted by the judicial branch of the United States government

1942 Quirin case

The term unlawful combatant has been used for the past century in legal literature, military manuals and case law The term “unlawful combatants” was first used in US municipal law in a 1942 United States Supreme Court decision in the case Ex parte Quirin In this case, the Supreme Court upheld the jurisdiction of a US military tribunal over the trial of eight German saboteurs in the US during World War II This decision states:

By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals

The validity of this case, as basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions, has been disputed A report by the American Bar Association commenting on this case, states:

The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel In Quirin, “The question for decision is whether the detention of petitioners for trial by Military Commission is in conformity with the laws and Constitution of the United States “ Quirin, 317 US at 18 Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin, that right could hardly be denied to US citizens and other persons lawfully present in the United States, especially when held without any charges at all

— American Bar Association

Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of US federal law, in accordance with the Supremacy Clause in the Constitution of the United States In addition the US Supreme Court invalidated this premise, in Hamdan v Rumsfeld, by ruling that Common Article Three of the Geneva Conventions applies to detainees in the War on Terror, and that the Military Tribunals used to try these suspects were in violation of US and international law

Congress addressed these issues in the Military Commissions Act of 2006, so that enemy combatants and unlawful enemy combatants might be tried under military commissions; however, on 12 June 2008, the Supreme Court ruled, in Boumediene v Bush, that Guantanamo Bay captives were entitled to access the US justice system, and that the military commissions as constituted under the Military Commissions Act of 2006 fell short of what was required of a court under the United States constitution see the section below for more details

2001 Presidential military order

In the wake of the September 11, 2001 attacks, the United States Congress passed a resolution known as the Authorization for Use of Military Force AUMF on 18 September 2001 In this, Congress invoked the War Powers Resolution and stated:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons

Using the authorization granted to him by Congress, on 13 November 2001, President Bush issued a Presidential Military Order: “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” which allowed “individuals to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals”, where such individuals are members of the organization known as al Qa’ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy The order also specifies that the detainees are to be treated humanely

The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order The military order uses the term “detainees” to describe the individuals detained under the military order The US administration chooses to describe the detainees held under the military order as “illegal enemy combatants”

With the US invasion of Afghanistan, some lawyers in the Justice Department’s Office of Legal Counsel and in the office of White House counsel Alberto Gonzales advised President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the War on Terrorism This applied not only to members of al Qa’ida but the entire Taliban, because, they argued, Afghanistan was a “failed state”

Despite opposition from the US State Department, which warned against ignoring the Geneva Conventions, the Bush administration thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War For those US citizens detained under the military order, US officials, such as Vice President Dick Cheney, argue that the urgency of the post-9/11 environment called for such tactics in administration’s war against terrorism

Most of the individuals detained by the US military on the orders of the US administration were initially captured in Afghanistan The foreign detainees are held in the Guantanamo Bay detention camp established for the purpose at the Guantanamo Bay Naval Base, Cuba Guantanamo was chosen because, although it is under the de facto control of the United States administration, it is not a sovereign territory of the United States, and a previous Supreme Court ruling Johnson v Eisentrager in 1950 had ruled that US courts had no jurisdiction over enemy aliens held outside the USA

In Rasul v Bush, the Supreme Court ruled that “the US Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba’s ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas”, and that as the United States had complete jurisdiction, the federal courts have the authority under the federal habeas corpus statute to decide whether foreign nationals non-US citizens held in Guantanamo Bay were rightfully imprisoned This ruling largely overturned the judicial advantage for the US administration of using the Naval Base that Johnson v Eisentrager seemed to have conferred

Legal challenges

There have been a number of legal challenges made on behalf of the detainees held in Guantanamo Bay detention camp and in other places These include:

  • On 30 July 2002, the US District Court for the District of Columbia ruled in Rasul v Bush, that it did not have jurisdiction because Guantanamo Bay Naval Base is not a sovereign territory of the United States This decision was appealed to the DC Circuit Court of Appeals, which upheld the decision, along with a related case in March 2003 — see Al-Odah v United States Rasul v Bush was appealed to the United States Supreme Court on 2 September 2003
  • On 10 November 2003, the United States Supreme Court announced that it would decide on appeals by Afghan war detainees who challenge their continued incarceration at Guantanamo Bay Naval Base as being unlawful, See Rasul v Bush
  • On 10 January 2004, 175 members of both houses of Parliament in the UK filed an amici curiae brief to support the detainees’ access to US jurisdiction
  • On 28 June 2004, the Supreme Court ruled in Rasul v Bush that detainees in Guantanamo Bay Naval Base could turn to US courts to challenge their confinement, but can also be held without charges or trial
  • On 7 July 2004, In response to the Supreme Court ruling, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention
  • On 8 November 2004, a federal court halted the proceeding of Salim Ahmed Hamdan, 34, of Yemen Hamdan was to be the first Guantanamo detainee tried before a military commission Judge James Robertson of the US District Court for the District of Columbia ruled in Hamdan v Rumsfeld that no competent tribunal had found that Hamdan was not a prisoner of war under the Geneva Conventions
  • By 29 March 2005, all detainees at the Guantanamo Bay Naval Base had received hearings before Combatant Status Review Tribunals The hearings resulted in the release of 38 detainees, and confirmed the enemy combatant status of 520 detainees Reuters reported on 15 June 2005 only four detainees had been charged and that Joseph Margulies, one of the lawyers for the detainees said “The reviews are a sham They mock this nation’s commitment to due process, and it is past time for this mockery to end”

Yaser Hamdi was captured in Afghanistan in November 2001 He was taken to Guantanamo Bay Naval Base, but was transferred to jails in Virginia and South Carolina after it became known that he was a US citizen On 23 September 2004, the United States Justice Department agreed to release Hamdi to Saudi Arabia, where he is also a citizen, on the condition that he gave up his US citizenship The deal also bars Hamdi from visiting certain countries and to inform Saudi officials if he plans to leave the kingdom He was a party to a Supreme Court decision Hamdi v Rumsfeld which issued a decision on 28 June 2004, repudiating the US government’s unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a US citizen The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a US citizen without basic due process protections enforceable through judicial review

On 8 May 2002, José Padilla, also known as Abdullah al-Muhajir, was arrested by FBI agents at Chicago’s O’Hare International Airport and held as material witness on the warrant issued in New York State about the 2001 9/11 attacks On 9 June 2002 President Bush issued an order to Secretary Rumsfeld to detain Padilla as an “enemy combatant” The order justified the detention by leaning on the AUMF which authorized the President to “use all necessary force against those nations, organizations, or persons” and in the opinion of the administration a US citizen can be an enemy combatant this was decided by the United States Supreme Court in the case of Ex parte Quirin Padilla is being detained in Miami and is accused of providing material support for terrorism

  • The 13 November 2001, Military Order, mentioned above, exempts US citizens from trial by military tribunals to determine if they are “unlawful combatants”, which indicates that Padilla and Yaser Hamdi would end up in the civilian criminal justice system, as happened with John Walker Lindh
  • On 18 December 2003, the Second Circuit Court of Appeals declared that the Bush Administration lacked the authority to detain a US citizen arrested on US soil as an “illegal enemy combatant” without clear congressional authorization per 18 USC § 4001a; it consequently ordered the government to release Padilla from military custody within thirty days But agreed that he could be held until an appeal was heard
  • On 20 February 2004, the Supreme Court agreed to hear the government’s appeal
  • The Supreme Court heard the case, Rumsfeld v Padilla, in April 2004, but on 28 June it was thrown out on a technicality The court declared that New York State, where the case was originally filed, was an improper venue and that the case should have been filed in South Carolina, where Padilla was being held
  • On 28 February 2005, in Spartanburg, South Carolina, US District Judge Henry Floyd ordered the Bush administration to either charge Padilla or release him He relied on the Supreme Court’s ruling in the parallel enemy combatant case of Yaser Hamdi Hamdi v Rumsfeld, in which the majority decision declared a “state of war is not a blank check for the president when it comes to the rights of the nation’s citizens”
  • On 19 July 2005, in Richmond, Virginia, the Fourth Circuit Court of Appeals began hearing the government’s appeal of the lower court the District of South Carolina, at Charleston ruling by Henry F Floyd, District Judge, CA-04-2221-26AJ Their ruling, decided 9 September 2005, was that “the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001 Accordingly, the judgment of the district court is reversed”
  • In Hamdan v Rumsfeld 29 June 2006 the US Supreme Court did not rule on the subject of unlawful combatant status but did reaffirm that the US is bound by the Geneva Conventions Most notably it said that Common Article 3 of the Geneva Convention, regarding the treatment of detainees, applies to all prisoners in the War on Terror

Combatant Status Review Tribunal

Following the Hamdan v Rumsfeld-ruling November 2004 the Bush administration has begun using Combatant Status Review Tribunals to determine the status of detainees By doing so the obligation under Article 5 of the GCIII was to be addressed

However, critics maintain these CSRTs are inadequate to warrant acceptance as “competent tribunal” Their principal arguments are:

  • The CSRT conducted rudimentary proceedings
  • The CSRT afforded detainees few basic protections
  • Many detainees lacked counsel
  • The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified
  • Detainees had no right to present witnesses or to cross-examine government witnesses

Notable cases pointed to by critics as demonstrating the flawed nature of the procedure include: Mustafa Ait Idir, Moazzam Begg, Murat Kurnaz, Feroz Abbasi, and Martin Mubanga A comment by legal experts states:

It appears that the procedures of the Combatant Status Review Tribunals do not qualify as status determination under the Third Geneva Convention <> The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission Judge Robertson in Hamdan v Rumsfeld held that the Third Geneva Convention, which he considered selfexecuting, had not been complied with since a Combatant Status Review Tribunal could not be considered a ‘competent tribunal’ pursuant to article 5 of the Third Geneva Convention

James Crisfield, the legal advisor to the Tribunals, offered his legal opinion, that CSRT “do not have the discretion to determine that a detainee should be classified as a prisoner of war — only whether the detainee satisfies the definition of ‘enemy combatant'” Determining whether a captive should be classified as a prisoner of war is the sole purpose of a competent tribunal

Analysis of these Tribunals by two lawyers for Guananamo detainees, Professor Mark P Denbeaux of the Seton Hall University School of Law, his son Joshua Denbeaux, and some of his law students resulted in a report called No-hearing hearings In essence it supports the criticism voiced above

 

Military commissions

Main article: Military Commissions Act of 2006

As of 17 October 2006, when President Bush signed the Military Commissions Act of 2006 into law, Title 10 of the United States Code was amended to include a definition of an “unlawful enemy combatant” as

a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant including a person who is part of the Taliban, al-Qaida, or associated forces; or a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense

The definition of a lawful enemy combatant is also given, and much of the rest of the law sets out the specific procedures for determining whether a given detainee of the US armed forces is an unlawful enemy combatant and how such combatants may or may not be treated in general and tried for their crimes in particular Among its more controversial provisions, the law stipulates that a non United States citizen held as an enemy combatant or is awaiting such determination may not seek habeas corpus relief Such detainees must simply wait until the military convene a detainee status review tribunal under the procedures described in the Detainee Treatment Act of 2005

Immediately after Bush signed the Act into law, the US Justice Department notified the US Court of Appeals for the District of Columbia that the Court no longer had jurisdiction over a combined habeas case that it had been considering since 2004 A notice dated the following day listed 196 other pending habeas cases for which it made the same claim

Of the first three war crimes cases brought against Guantanamo Bay detainees under the Military Commissions Act, one resulted in a plea bargain and the two others were dismissed on jurisdictional grounds

On 4 June 2007, in two separate cases, military tribunals dismissed charges against detainees who had been designated as “enemy combatants” but not as “unlawful enemy combatants” The first case was that of Omar Khadr, a Canadian who had been designated as an “enemy combatant” in 2004 Khadr was accused of throwing a grenade during a firefight in Afghanistan in 2002 Colonel Peter Brownback ruled that the military tribunals, created to deal with “unlawful enemy combatants”, had no jurisdiction over detainees who had been designated only as “enemy combatants” He dismissed without prejudice all charges against Khadr Also on 4 June, Captain Keith J Allred reached the same conclusion in the case of Salim Ahmed Hamdan

The United States Department of Defense responded by stating: “We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr Khadr, who are being held as enemy combatants under existing CSRT procedures” That position was called “dead wrong” by Specter

 

Supreme Court ruling on Military Commissions Act of 2006

Main article: Boumediene v Bush

On 12 June 2008, the Supreme Court ruled, in Boumediene v Bush, 5-4 that Guantanamo captives were entitled to access the US justice system Justice Anthony Kennedy wrote in the majority opinion:

The laws and Constitution are designed to survive, and remain in force, in extraordinary times

The Court also ruled that the Combatant Status Review Tribunals were “inadequate” Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens joined Kennedy in the majority

Chief Justice John Roberts, in the minority opinion, called the CSR Tribunals

the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants

Samuel Alito, Clarence Thomas and Antonin Scalia joined Roberts in the dissent

Vincent Warren, the executive director of the Center for Constitutional Rights, the organization that initiated the action that triggered the Supreme Court ruling responded:

The Supreme Court has finally brought an end to one of our nation’s most egregious injustices It has finally given the men held at Guantanamo the justice that they have long deserved By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding This six-year-long nightmare is a lesson in how fragile our constitutional protections truly are in the hands of an overzealous executive

 

2009

 

In January and February 2009, President Barack Obama’s nominees for Attorney General and Solicitor General, Eric Holder and Elena Kagan, both testified they agreed the US government may detain combatants in accordance with the laws of war until the end of the war, this sidesteps the issue of deciding whether the combatant is a lawful or unlawful combatant and the need to try them When asked by Senator Lindsey Graham “If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield” Both Holder and Kagan said that they would

On October 28, 2009, President Obama signed the Military Commissions Act of 2009 into law, which was included in the National Defense Authorization Act for Fiscal Year 2010 PubL 111–84, HR 2647, 123 Stat 2190, enacted October 28, 2009 While critics said it is an improvement over prior versions of military-commissions passed during the Bush administration, it still fails to provide many of the fundamental elements of a fair trial

Other countries

Israel, since the 2002 “Imprisonment of Illegal Combatants Law”, makes theoretical distinctions between lawful and unlawful combatants and the legal status thereof

The United Kingdom Crown Prosecution Service CPS makes the distinction The CPS conducted a “through review of the evidence concerning the deaths of Sergeant Steven Roberts of the 2nd Royal Tank Regiment and Mr Zaher Zaher, an Iraqi national, at Az Zubayr, Iraq on 24 March 2003”:

In reviewing the case, the CPS lawyer considered the possible view that, because of his behaviour, Mr Zaher had become an unlawful combatant and therefore under the Rules of Engagement, under which the soldiers were required to operate, they would have been entitled to take offensive action against him Under the Rules of Engagement and the Geneva Convention, unless a person is positively identified as being a combatant, they should be considered a civilian and treated accordingly

As the alternative view would be that Mr Zaher was not an unlawful combatant but a civilian, the reviewing lawyer also considered whether the soldiers could rely on self defence

— Crown Prosecution Service

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