“Rules of Law” in the U.S. Global War on Terrorism?

 

Norman K. Swazo[*]

 

 

Detention without trial offends the first principle of the rule of law.

--Dato’ Param Cumaraswamy

 

 

With the prosecution of war in Afghanistan, the United States military has captured and detained individuals alleged to be enemy combatants or terrorists.  Both the fact of capture and the fact of detention of such individuals raise the legal question of whether those detained possess what has been called “the privilege of litigation” in US courts.  On 11 March 2003, the United States Court of Appeals for the District of Columbia Circuit (hereafter, referred to as “the Court”) issued its decision in Al Odah et.al v. United States:[†] The Court upheld the district court’s judgment[‡] to dismiss the complaints and the petitions for writs of habeas corpus[§] “for lack of jurisdiction.” Indeed, the Court opined, “no court in this country has jurisdiction to grant habeas relief…to the Guantanamo detainees, even if they have not been adjudicated enemies of the United States.”

 

The Court’s ruling illustrates the difficulty in American jurisprudence of sorting through what has become a veritable legal quagmire after the 9/11 terrorist attacks in New York and Washington D.C.  One issue is whether those captured in Afghanistan and detained on Guantanamo Bay in Cuba are to be treated as criminals according to Title 18 of the United States code of statutes or, alternatively, as prisoners of war according to rules of international law stipulated in treaty, such as the Geneva Convention. This question was not a matter of decision for the Court, since the antecedent legal question for the Court was that of jurisdiction. The Court’s ruling in Al Odah is problematic not only because of the denial of the plaintiffs’ petitions for writs of habeas corpus, but also—and, I submit, more importantly—because of the decision that no US court has jurisdiction. That is precisely why criticism from official sources in the international community has been immediate. Dato’ Param Cumaraswamy, Special Rapporteur for the United Nations Commission on Human Rights, remarked that the Court’s ruling not only “can set a dangerous precedent.” Moreover, “By such conduct, the Government of the United States, in this case, will be seen as systematically evading application of domestic and international law so as to deny these suspects their legal rights.”[**] Cumaraswamy’s remarks speak to the claim that those detained on Guantanamo have “legal rights” to which the US government must be responsive under established procedures of domestic and international law. The Court’s decision entails that a claim of legal rights under US law is without warrant.

 

Yet, if the Court’s decision stands on further appeal, it is difficult to determine what judicial system does have jurisdiction such that legal rights are protected according to due process.  Surely one must reasonably ask whether terrorists or enemy combatants are to be afforded the right of juridical procedure. One may reasonably argue that they are to be afforded this right, whether the applicable law be domestic or international, the latter that of treaty law or customary law. Thus, Cumaraswamy is entirely correct to be concerned about what the Court’s ruling may permit: The decision “appears to imply that a government of a sovereign State could lease a piece of land from a neighboring State, set up a detention camp, fully operate and control it, arrest suspects of terrorism from other jurisdictions, send them to this camp, deny them their legal rights—including principles of due process generally granted to its own citizens—on grounds that the camp is physically outside its jurisdiction.”[††] Surely this is an alarming prospect for anyone concerned to insist that the US government uphold constitutionally guaranteed civil liberties and due process in all actions undertaken by officials of the Executive branch. That goes for due process normally expected to apply to terrorists and enemy combatants.

 

The “common rhetorical definition” of terrorism concerns “the killing, disruption, or destruction of something of value for political purposes by someone other than a government or its agents acting overtly.”[‡‡] Title 18, Part I, Chapter 113B, of the US Code presents US law concerning crimes and criminal procedures specific to terrorists, §2332b speaking to acts of terrorism transcending national boundaries. Under this section, prohibited acts include offenses and threats, attempts, and conspiracies. Thus a terrorist is stipulated to be “whoever, involving conduct transcending national boundaries…kills, kidnaps, maims, commits an assault resulting in serious bodily injury, or assaults with a dangerous weapon any person within the United States; or creates a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States.” Individuals charged with terrorist acts are subject to prosecution expected normally to occur “in any Federal judicial district…as provided by law.” On the definition of terrorism provided under Title 22 [§2656f(d)(2)] of the US Code of statutes, this definition understood to be applicable for “foreign relations purposes, terrorism is defined as ‘premeditated, politically motivated violence against noncombatant targets by subnational groups or clandestine agents.’”[§§] A terrorist is, in short, a criminal, subject to the judicial processes set forth by federal law in the United States, normally distinguished from enemy combatant per se given the latter’s status as a functionary of a government party to armed conflict. However, §2332b(b)(1)(C) speaks to “jurisdictional bases,” the relevant circumstances in this case being such that “the victim, or intended victim, is the United States Government, a member of the uniformed services, or any official, officer, employee, or agent of the legislative, executive, or judicial branches, or any department or agency, of the United States.” 

 

If the individuals detained on Guantanamo Bay are considered prisoners of war, then the Geneva Convention that concerns treatment of prisoners of war (entered into force in October 1950) provides the applicable law. It is therefore worthwhile citing the criteria according to which an individual is considered a prisoner of war.  These criteria are stipulated in Article 4 of the Convention, prisoners of war categorized as:[***]

(1)         “Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces;” or

(2)         “Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a)         That of being commanded by a person responsible for his subordinates;

(b)         That of having a fixed distinctive sign recognizable at a distance;

(c)         That of carrying arms openly;

(d)         That of conducting their operations in accordance with the laws and customs of war.

(3)         Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4)         Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contactors, members of labour units or of services responsible for the welfare of armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5)         Members of crews, including masters, pilots, apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6)         Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” 

 

What is important in light of the present case of the detainees at Guantanamo Bay is the US government’s claim that those detained are “enemy combatants” even though this allegation is not expressed by way of formal charges; and, according to Article 5 of the Geneva Convention, obligations incurred under the Convention “apply to persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.” More important, “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.” Given the latter stipulation, Article 14 lends weight prima facie to the claims of the detainees for due process: “Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires. (italics added).

 

In the Court’s opinion, filed by Judge Randolph for the three-judge panel, the judges recognized that the “aliens”[†††] whose interests are at issue in this case were “captured abroad during hostilities in Afghanistan” and then “held abroad in United States military custody at the [Camp X-Ray] Guantanamo Bay Naval Base in Cuba.” Appellants contest the legality of both the confinement and the conditions under which the individuals are being detained, hence the petitions for writs of habeas corpus. It is important to note here two undisputed facts in what has just been said: (1) The individuals detained are in US military custody, notably without being officially and expressly charged; (2) they are detained at a US naval base in Cuba. These facts are pertinent to the question before the Court on appeal: whether the district court had jurisdiction to adjudicate the claims of those filing on behalf of the detainees.

 

    The Court cites both the Constitution’s assignment of authority to the President as commander-in-chief and Congress’s authority to declare war. Supplementing the latter’s authority in the case of the war the U.S. prosecutes in Afghanistan is the post-September 11 resolution [P.L. No. 107-40, 115 Stat. 224, 224 (2001)] Congress passed, authorizing the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the terrorists attacks of 9/11. The language of the resolution is such as to authorize “force”, understood to be both military and police actions, as a national security response to “terrorist” attacks upon the United States. Thus, the Taliban government of Afghanistan was determined to be aiding the Al-Qaeda terrorist network and held accountable by the US government to arrest and extradite terrorists operating in the territory of Afghanistan. Having not done so, the Taliban government itself became subject to US military hostilities ordered by President Bush.  As the Court noted, acting as commander in chief the President “dispatched armed forces to Afghanistan to seek out and subdue the Al Qaeda terrorist network and the Taliban government that had supported and protected it.”

 

One consequence of the US’s pursuit of armed conflict in Afghanistan was an inevitable confusion of the legal status of individuals who would be apprehended—individuals denominated “terrorists” insofar as they act transnationally and independent of overt or covert military or paramilitary action authorized by a sovereign nation-state; individuals denominated “enemy combatants” insofar as their actions are determined to satisfy the criteria stipulated in the applicable international conventions. It is the position of those filing on behalf of the detained Kuwaiti nationals that the latter are neither terrorists nor enemy combatants but were in Afghanistan “as volunteers providing humanitarian aid.” Plaintiffs for one Australian detainee assert this individual “was living in Afghanistan;” another that he “traveled to Pakistan to look for employment and a school for his children.” Plaintiffs for one British national assert this individual “traveled to Pakistan for an arranged marriage,” the other British detainee said to have been in Pakistan “to visit relatives and continue his computer education.”

 

What matters of law are at issue here? They are multiple: (1) “denial of due process under the Fifth Amendment;” (2) “tortious conduct in violation of the law of nations and a treaty of the United States;” (3) “arbitrary and unlawful governmental conduct;” (4) violation of due process under the Fourteenth Amendment; (5) “a violation of the War Powers Clause;” (6) “a violation of Article I of the Constitution because of the President’s alleged suspension of the writ of habeas corpus;” (7) violations of “the Alien Tort Act;” (8) violations of “the Administrative Procedure Act;” (8) violation of “due process under international law;” and (9) violation of “United States military regulations.”  In short, plaintiffs allege violations of both domestic and international law by officials of the United States, evident in the illegal actions carried out under the authority of the President as commander in chief of US military forces.

 

In the case of Rasul v. Bush [215 Supp. 2d 55, 56 (D.D.C. 2002)] the district court held “that it lacked jurisdiction” and, “Believing no [U.S.] court would have jurisdiction, it dismissed the complaint and the two habeas corpus petitions with prejudice.” The district court held concerning the cases before it that at issue is “the lawfulness” of these foreign nationals being held in custody, such that the legal question would be engaged on the matter of habeas corpus.  Citing the precedent of Johnson v. Eisentrager [339 U.S. 763 (1950)], “the [district] court ruled that it did not have jurisdiction to issue writs of habeas corpus for aliens detained outside the sovereign territory of the United States.”

 

The Court treated the cases before it “as if the detainees themselves were prosecuting the actions,” and acknowledged that in all cases the detainees “deny that they are enemy combatants or enemy aliens.” In the case of Rasul there is the further assertion of “no involvement, direct or indirect, in either the terrorist attacks on the United States September 11, 2001, or any act of international terrorism attributed by the United States to Al Qaeda or any terrorist group.” Noteworthy in the case of the Australian detainee is the fact of “an affidavit from the father” in which he admits “his son had joined the Taliban forces”. The US government alleges the detainees are “enemy combatants.”

 

The legal distinction between ‘enemy combatants’ and ‘enemy aliens’ is pertinent even though the US government considers the individuals detained to be enemy combatants. It is pertinent because the district court cited the Supreme Court’s decision in Johnson v. Eisentrager as “dispositive” for its ruling in Al Odah.  Johnson v. Eisentrager is a case in which twenty-one “German enemy aliens” sought habeas relief from US military confinement abroad, i.e., at Landsberg prison in Germany, a facility “under the control of the United States Army.” In this case, as Judge Randolph observed in the March 11 opinion of the Court, “The Supreme Court, agreeing with the district court, held that ‘the privilege of litigation’ had not been extended to the German prisoners.” The argument is set forth thus: “The prisoners therefore had no right to petition for a writ of habeas corpus: ‘these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.’” Judge Randolph remarked further that the German nationals were described as enemy aliens because of “their status as nationals of a country at war with the United States,” the operative term ‘enemy alien’ appropriate inasmuch as “Every individual of the one nation must acknowledge every individual of the other nation as his own enemy—because the enemy of his country.” Accordingly, Judge Randolph concluded, “none of the Guantanamo detainees are within the category of ‘enemy aliens,’ at least as Eisentrager used the term.”

 

We must remember that the US government holds the detainees to be enemy combatants. But, if the detainees are not enemy aliens, then how is the decision in Eisentrager dispositive for the case of Al Odah et.al.? The Court clearly acknowledged that even in the case of Eisentrager the court of appeals “ruled that ‘any person who is deprived of his liberty by officials of the United States, acting under the purported authority of that Government,’ and who can establish a violation of the Constitution, ‘has a right to the writ.’” Here it is legally salient that the appeals court’s ruling is consistent with the language of the Fifth Amendment to the Constitution in speaking of “any person” and not merely “any citizen.” Thereby the appeals court had accounted for the fact that such a writ would normally be issued “unconstrained by the petitioner’s citizenship or residence.” The Supreme Court rejected this “statement of law” insofar as it was part of the appeals court’s opinion. Given the Supreme Court’s judgment on the constitutional question, Judge Randolph opines, “The passage of the opinion…may be read to mean that the constitutional rights mentioned are not held by aliens outside the sovereign territory of the United States, regardless of whether they are enemy aliens. That is how later Supreme Court cases have viewed Eisentrager.” Hence, the Court concludes, “We cannot see why, or how, the writ may be made available to aliens abroad when basic constitutional protections are not. If the Constitution does not entitle the detainees to due process, and it does not, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty.”

 

It would seem, from the Court’s ruling insofar as it rests on the Supreme Court’s decision in Eisentrager, that any legal rights the Guantanamo detainees do have are to be engaged via military courts or some other ad hoc tribunal set up according to international standards of judicial review. However, this alternative still raises the question whether the fact of US military custody of the detainees entails US jurisdiction. The Court acknowledges that “The United States has occupied the Guantanamo Bay Naval Base under a lease with Cuba since 1903, as modified in 1934;” and notes that “In the 1903 Lease, ‘the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba’ over the naval base.’” Referring to the Supreme Court’s decision in Vermilya-Brown v. Connell [335 U.S. 377, 381 (1948)] Judge Randolph rejects the argument advanced by the detainees that “with respect to Guantanamo Bay ‘control and jurisdiction’ is equivalent to sovereignty.’” What does the Court understand ‘sovereignty’ to mean in this case? It means “supreme dominion exercised by a nation,” e.g., “over the geographic area of the States…and over similar possessions.”  Since Guantanamo Bay is neither a “State” nor a “territory” proper to the United States, Judge Randolph argues, the Court is not justified “to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States.”

 

With this last statement the Court effectively excludes any opportunity for the detainees at Guantanamo to seek redress consistent with Constitutional protections of civil liberties. The Alien Tort Act [28 U.S.C. §1350] stipulates that a district court “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” That seemingly leaves the detainees the legal option of seeking protections under international law to the extent that their detention is a violation of applicable treaty to which the United States is a party. Yet, even on this claim the Court rules neither it nor any US court has jurisdiction. In his concurring opinion, Judge Randolph writes, “Treaties do not generally create rights privately enforceable in the courts. Without authorizing legislation, individuals may sue for treaty violations, only if the treaty is self-executing” (i.e., has municipal effect in the same way a federal statute does). It is in this context that the Geneva Convention is relevant, given that the detainees claim the US government violates the provisions of the Convention.  Judge Randolph dismisses this claim by opining that the Geneva Convention is not a self-executing treaty.  In the event a detainee were to appeal to the authority of the International Covenant on Civil and Political Rights, Judge Randolph observes that “this multilateral agreement creates no judicially enforceable rights,” given that “the Senate ratified the treaty on the basis that it ‘will not create a private cause of action in U.S. courts.’”

 

Both the Geneva Convention and the International Covenant are contemporary expressions of “the law of nations.” Article I, Section 8, Clause 10 of the Constitution assigns to Congress the authority to define and punish offences against the law of nations. The fact that Congress has this authority makes it clear that Congress is that branch of government in the United States that is the primary trustee of the law of nations. We can therefore reasonably concur with Judge Randolph in his assertion that “Congress—not the judiciary—is to determine, through legislation, what international law is and what violations of it ought to be cognizable in the courts.” One implication of this claim is that Congress may hold even the Executive branch accountable for violations of international law, be it law expressed in treaty or custom. If the Court’s ruling in Al Odah holds, specifically on the claim that (a) the Geneva Convention is not self-executing, and the statement of fact that (b) explicit legislation from Congress is lacking such as to give the provisions of the Convention municipal effect—despite the United States being a party to the Convention—then the United States government is not legally bound by its provisions with respect to “alien” claims for judicial remedy for violations such as are grieved by the persons detained at Guantanamo Bay Naval Base.

 

The Court’s judgment clearly is a cause for concern insofar as it leaves the detainees in a legal limbo, neither US constitutional protections nor provisions of treaty (not to mention customary international law) providing grounds for actionable relief in US courts.  The Court’s decision raises the specter of the Executive branch—the US military specifically—in no way subject to “the rule of law” in the prosecution of war or any armed conflict authorized but not officially declared by Congress to be a state of war. It is troublesome as a matter of American jurisprudence to find Judge Randolph asserting, in these consolidated cases, that judicial review is not permitted “because the military decisions challenged here are ‘committed to agency discretion by law,’” the Court not having a “meaningful standard against which to judge the agency’s exercise of discretion.”

 

This assertion cannot but be evaluated properly by consulting Article 12 of the Geneva Convention. Here it is stipulated that “Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them.” The “enemy Power” in this case is the United States government, not the military that is the “agency” of the Executive branch in the prosecution of armed conflict in Afghanistan. It is the United States government that is obligated under treaty to afford the detainees the rights specified in the Geneva Convention. Article 5, cited above but worth repeating again, is explicit: “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” (italics added).

 

Article 4 is controlling precisely because the United States alleges before the district court and the Appeals Court for the District of Columbia that the detainees are “enemy combatants,” though their status is in fact not adjudicated even as the detainees are not officially charged under the rules of armed conflict. Despite any allegation from the United States that the detainees are also “terrorists,” the circumstances surrounding their capture and detention are clear: they are captured and detained by the US military as “prisoners of war.” In light of the denials by the various individuals seeking relief under Al Odah et. al., there is reasonable doubt that these persons fall under one of the categories enumerated in Article 4 according to which they may be shown to be enemy combatants and, so, lawfully detained as prisoners of war.  Either way, whether the US government position is controlling or the appellants’ position is controlling, Article 5 of the Geneva Convention obligates the United States government, as the “enemy Power,” to abide by all the provisions of the Convention. The Geneva Convention in fact provides the “meaningful standard” for the Court, despite appeals to domestic law (i.e., the Administrative Procedure Act) to the contrary. The US military does not have discretion to derogate from or abrogate the terms of the Geneva Convention as it applies to the detention and treatment of those held at Guantanamo Bay Naval Base.

 

Furthermore, as Special Rapporteur Cumaraswamy asserts in his criticism of the Court’s decision, “The war on terrorism cannot possibly be won by denial of legal rights, including fundamental principles of due process of those merely suspected of terrorism.” It was with a view to this potential problem that the United Nations General Assembly, at its 25^th Session, issued Resolution 219 on 16 December 2002 on “Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.” Officials of the Bush Administration such as Secretary of Defense Donald Rumsfeld have asserted that the global war against terrorism is unlike all other wars in which the US has been involved. It is unlike them because this “war” targets members of a transnational network and not a State as recognized under the rules of armed conflict. We have here an equivocal use of ‘war’ that is different from the use given the word by the Court consequent to Congressional authorization and the President’s order. Unavoidably, this difference in use elicits an inference different from that drawn by the Court, in the following sense.

 

Given the ways in which Title 18 of the US Code defines terrorism, individuals captured by the US military in Afghanistan on the assumption that they are terrorists or individuals supporting the terrorist network of Al Qaeda, are detained because they are suspected of criminal acts against the United States. However, a fair application of §2332b(b)(1)(C), cited above, cannot but be cognizant of a valid jurisdictional basis according to which these individuals are detained. Hence, there is jurisdictional basis for the detainees to pursue habeas relief in US courts. The detainees are alleged to have engaged the US military in Afghanistan, i.e., members of the uniformed services being their “intended victim.” On this line of argument, the Court’s decision on Al Odah fails to engage the question of jurisdiction as required by Title 18, precisely inasmuch as §2332b(b)(1)(C) is applicable to the Guantanamo detainees despite their capture in circumstances of armed conflict such as obtains in Afghanistan. Title 18 being enacted in the pursuance of the Constitution, it follows that the detainees do have constitutional protections.  Accordingly, they have the privilege of litigation in US courts to test the legality of their detention.

 

If (a) neither the United States government nor the US military (i.e., the Executive Branch) conforms to the requirements of international law expressed in treaty such as the Geneva Convention, and (b) the US judiciary refuses to recognize its jurisdiction in the case of the detainees on Guantanamo Bay, then it falls to Congress—as trustee of the law of nations in the United States—to take the requisite legal action to assure Executive branch compliance with its obligations under international law.  The US military unlawfully denies to the detainees on Guantanamo their “full civil capacity.” Cumaraswamy speaks appositely in his reminder to the United States that “Detention without trial offends the first principle of the rule of law.” The UN Office of the High Commissioner for Human Rights, as Cumaraswamy knows, rightly holds that “Democracy and human rights are interdependent and inseparable,” even as “The effective application of the rule of law and the fair administration of justice are vital to the good functioning of democracy.”[‡‡‡] The decision in Al Odah v. United States rendered by the United States Court of Appeals for the District of Columbia ominously undermines the fair administration of justice, diminishing as it does due regard for civil liberties of persons.  If the United States is to retain its authority at the bar of the community of nations as a democracy subject to the rule of law, this decision must not stand. As Alexander Hamilton said, “The sacred rights of mankind…can never be erased or obscured by mortal power;” and so it is with the rights of those persons unlawfully detained by the United States government at Guantanamo Bay Naval Base. The United States government fails to abide by its obligations under laws enacted pursuant to the Constitution and international law expressed in treaty.  Thereby, it serves notice to the world of nations that, contrary to the spirit of its declaration of independence in 1776, the United States no longer pays “a decent Respect to the Opinions of Mankind.”