3. Chibli Mallat, “September 11 and the Middle East: Footnote or Watershed in World History?” Crimes of War Project, September 2002 (http://www.crimesofwar.org/sept-mag/sept-home.html): “The problem is that terrorism as a concept remains so ill-defined that the idea of attacking it systematically transforms the use of violence – in international and domestic law the prerogative of States – into an open-ended project of endless war. And that, surely, is inconceivable, unless the American government now means to prosecute a series of wars to end all violence in the world.”
4. AP I, Art. 1(4).
5. Stahn, op. cit., pp. 192–194.
1. Ibid., p. 189. See also M. Cherif Bassiouni, “Legal Control of International Terrorism: A Policy-Oriented Assessment,” Harvard International Law Journal, Vol. 43, 2002, p. 83.
2. Jordan J. Paust, “There is No Need to Revise the Laws of War in Light of September 11,” American Society of International Law Task Force on Terrorism, November, 2002), citing Pan American Airways, Inc. v. Aetna Casualty & Surety Co., 505 F2d 989, 1013—1015 (2d Cir 1974): “The United States could not have been at war with the Popular Front for the Liberation of Palestine [PFLP], which had engaged in terrorist acts as a nonstate, nonbelligerent, noninsurgent actor.” Cf., however, Yoram Dinstein, “IHL on the Conflict in Afghanistan,” American Society of International Law Proceedings, Vol. 96, 2002, p.: “… a terrorist attack from the outside constitutes an 'armed attack' under Art. 51 of the (UN) Charter.”
3. Eyal Benvenisti, “Terrorism and the Laws of War: September 11 and its Aftermath,” Crimes of War Project, September 21, 2001 (http://crimesofwar.org/expert/attack-apv.html). See also The Prosecutor v. Dusko Tadic, Decision on the defence motion for interlocutory appeal on jurisdiction, IT-94—1-AR72; and Dinstein, op. cit., p. 24, citing Nicaragua v. United States, 1986 ICJ 14, and the General Assembly's Consensus Definition of Aggression, General Assembly Resolution 3314 (XXIX), Art. 3(g) (1974).
1. Moir, op. cit., p. 31.
2. For analysis of the legal consequences of the killings in Yemen, see Anthony Dworkin, “The Yemen Strike: The War on Terrorism Goes Global,” Crimes of War Project, November 14, 2002 (http://crimesofwar.org/onnews/news-yemen.html).
3. The Prosecutor v. Dusko Tadic, para. 70, p. 37 (1995).
4. The Prosecutor v. Jean Paul Akayesu, ICTR-96–4-T, para. 619 (1998).
5. The Rome Statute of the International Criminal Court (ICC), UN Doc. A/CONF.183/9 dated 17 July 1998, 37 I.L.M. §999–1019 (1998), Art. 8.2(f), contains this requirement, which may be seen as an expression of the drafter's belief that “protracted” is a defining element of non-international armed conflict, or merely that ICC jurisdiction is triggered only in case a non-international armed conflict is protracted.
1. The Prosecutor v. Zejnil Delalic (Celebici Camp case), Judgment, IT-96—21, para. 184, (1998).
2. See, Abella Case, Inter-American Commission on Human Rights, Report No. 55/97, Case No. 11.137, November 18, 1997, paras. 155—156.
3. Stahn, op. cit., p. 188.
4. See Jean S. Pictet, Commentary: First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva: ICRC, 1952), p. 32. The “difference arising between two States” language suggests the requirement of a casus belli. This interpretation is not universally shared.
5. AP II, Part I (Scope of this Protocol), Art. 1 (Material field of application), para. 2: “This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”
1. Stahn, op. cit., p. 192, citing Elizabeth Chadwick, Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict (Boston: M. Nijhoff, 1996), p. 128, and noting the United Kingdom's denial of existence of armed conflict in Northern Ireland. In fact, the UK's ratification of AP I was accompanied by a statement that the term “armed conflict” is distinguishable from the commission of ordinary crimes including acts of terrorism whether concerted or in isolation.
2. See, Robert Goldman, “Terrorism and the Laws of War: September 11 and its Aftermath,” Crimes of War Project, September 21, 2001 (http://crimesofwar.org/expert/attack-apv.html), noting the 1805 U.S. military action in Tripoli against the Barbary Pirates and that of 1916 in Mexico against Pancho Villa and his band.
3. Jean S. Pictet, Commentary: Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva: ICRC, 1958), p. 51: “Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law” (emphasis in original).
4. Schlesinger, op. cit., pp. 81–82.
1. GC III, Art. 4. Thus, and despite repeated assertions to the contrary made by some commentators, the ICRC has never claimed that Guantánamo detainees are axiomati-cally entitled to POW status.
2. Pictet, Commentary: Fourth Geneva Convention, p. 51.
3. See AP I, Art. 43 (granting a lawful combatant's privilege and, by necessary implication, excluding civilians from this privilege).
4. GC I, Arts. 49—50; GC II, Arts. 50—51; GC III, Arts. 129—130; GC IV, Arts. 146—147.
5. The exception to the “between States” requirement for international armed conflict is armed conflicts “in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination … “These are deemed international armed conflict by AP I, Art. 1.4.
1. AP I, Art. 51, paras. 2–3.
2. “CIA Drones' Attack on Car in Yemen Was Justified,” Dallas Morning News, November 13, 2002, p. 16A.
3. Gina Holland, “Supreme Court to Rule on Terrorism Case Involving U.S.-born 'Dirty Bomb' Suspect,” Associated Press, February 20, 2004.
4. Charles Allen made it clear that the U.S. military saw the same rules governing the global war with al-Qaeda as traditional, “battlefield” wars: “When we have a lawful military target that the commander determines needs to be taken out, there is by no means a requirement under the law of armed conflict that we must send a warning to these people, and say, 'You may surrender rather than be targeted.'” Anthony Dworkin, “Law and the Campaign Against Terrorism: The View from the Pentagon,” December 16, 2002 (http://www.crimesofwar.org/onnews/news-pentagon.html).
1. Sweden's Foreign Minister, Anna Lindh, used the term “summary execution” and further stated: “Even terrorists must be treated according to international law. Otherwise, any country can start executing those whom they consider terrorists.” Quoted in Walter Pincus, “Missile Strike Carried Out With Yemeni Cooperation; Official Says Operation Authorized Under Bush Finding,” Washington Times, November 6, 2002, p. A10.
2. See, AP I, Art. 51.3. The U.S. position on this point is difficult to discern. The Yemen attack notwithstanding, the U.S. State Department remains critical of Israeli targeted killings of Palestinian militants. See Press Briefing by State Department Spokesman Richard Boucher, November 5, 2002.
3. The criteria of GC III, Art. 4, that the United States invokes to deny POW status to detainees it deems “unlawful combatants” would also appear to apply to the CIA. The CIA is not part of the armed forces of the United States. Only members of the armed forces of a party to the conflict (other than medical personnel and chaplains) are combatants, entitled to participate directly in hostilities. AP I, Art. 43.2.
4. Pictet, Commentary: Fourth Geneva Convention, loc. cit.
5. This view is probably correct as to al-Qaeda members detained in relation to the Afghan conflict. It is certainly correct as to others detained outside the context of armed conflict.
1. Section 1–6(b) Army Regulation 190–8, “Enemy Pris
oners of War, Retained Personnel, Civilian Internees and Other Detainees, Headquarters Departments of the Army, the Navy, the Air Force, and the Marine Corps” (Washington, D.C., October 1, 1997).
2. See, for example, Schlesinger, op. cit., pp. 86–87.
3. “International Humanitarian Law and Terrorism: Questions and Answers,” ICRC press release, May 5, 2001 (http://www.icrc.org/Web/Eng/siteengO.nsf/iwpList74/OF32B7E3BB38DD26C1256E8A0055F83E).
4. ICCPR, Arts. 4.2 and 16.
5. Pictet, Commentary: IV Geneva Convention, p. 51. Note, however, that nationals of the detaining authority and of neutral and co-belligerent states are not “protected persons.” See GC IV, Art. 4. Nevertheless, even they must have some legal status. See ICCPR, ibid.
1. GC III, Art. 5.
2. GC IV, Arts. 42, 78.
3. GC IV, Arts. 64—68.
4. GC IV, Art. 68.
1. Hans-Peter Gasser, “International Humanitarian Law,” in Hans Haug, ed, Humanity for All: The International Red Cross and Red Crescent Movement (Bern: Paul Haupt Publishers, 1993), p. 504: “Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare the civilian population and property. Neither the civilian population nor civilian persons shall be the object of attack. Attack shall be directed solely against military objectives.” See also Jean S. Pictet, The Principles of International Humanitarian Law (Geneva: ICRC, 1967), pp. 27—34, discussing the fundamental principles of IHL.
1. See, Gasser, ibid., p. 524: “Being a prisoner of war is in no way a form of punishment.”
2. CA 3 of GC I; GC II; GC III; GC IV. See also GC I, Arts. 12, 50; GC II, Arts. 12, 51; GC III, Arts. 13, 14, 17, 52, 130; GC IV, Arts. 27, 32, 147.
3. Military and Paramilitary Activities (Nicaragua v. United States), 1986 ICJ 113–14, 4218 (June 27, 1986). See also Prosecutor v. Auto Furundzija, 38 I.L.M. §317, 44153–57 (ICTY 1998). The International Criminal Tribunal for the Former Yugoslavia also considered the prohibition of torture as belonging to jus cogens.
4. ICCPR, Art. 5; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Arts. 2, 4, 23 I.L.M. §§1027, 1028 (1984).
5. See, ICRC, “ICRC Reactions to the Schlesinger Panel Report,” August 9, 2004 (http://www.icrc.org/Web/Eng/siteengO.nsf/html/64MHS7).
6. See, GC IV, Art. 27, AP I, Art. 75 and CA 3. See also “Request by the Center for Constitutional Rights and the International Human Rights Law Group for Precautionary Measures under Art. 25 of the Commission's Regulations on Behalf of Unnamed Persons Detained and Interrogated by the United States Government,” filed with the Inter-American Commission on Human Rights, February 13, 2003.
7. Schlesinger, op. cit., p. 82.
1. CA 1 of GC I; GC II; GC III; GC IV: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”
2. See, Dino Kritsiosis, “On the Jus ad Bellum and Jus in Bello of Operation ENDURING FREEDOM,” American Society of International Law Proceedings, Vol. 96, 2002, p. 35, referring to the distinct spheres, histories, methodological traditions, stages of development, and circumstances of application of these two legal regimes: “As represented in the UN Charter, the laws of the jus ad bellum proceed from the general prohibition of the threat or use of force by member States of the United Nations 'in their international relations' (Art. 2(4)),” while the jus in bello of the (GCs and APs) applies to such use of force. Thus, the Preamble to AP I declares that “the provisions of the Geneva Conventions and of this protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.”
1. See, for example, Memorandum from John Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, United States Department of Justice, to William J. Haynes II, General Counsel, Department of Defense, January 9, 2002.
THE EDITORS' GLOSS: Pentagon spokesman Larry DiRita recently bragged of the DoD having detained and interrogated 70,000 people as part of the “war on terror.” He didn't mention how those detainees were treated, or how their detentions were viewed in light of the law. President Bush's perspective is typically unpersuasive: “the only thing I know for certain is that these are bad people.” An English saint and lawyer once commented on the same charge: “there's no law against that!” This is Joseph Margulies's perspective, too.
U.S. detention policy and practice remain abominable. One example is Murat Kurnaz, a German national seized in Pakistan in 2001, and assessed “a member of al Qaeda and an enemy combatant” by a military panel (Washington Post, March 27, 2005). The now-declassified evidence for his detention (originally “too sensitive to release to the public”) indicates that “U.S. military intelligence and German law enforcement … concluded there was no information that linked Kurnaz to al-Qaeda, any other terrorist organization, or terrorist activities.” D. C. District Court Judge Joyce Hens-Green said it was “one of the most troubling military abuses of due process” among Gitmo cases she has reviewed. The detention was based on a single document that, she said, “fails to provide significant details to support its conclusory allegations, does not reveal the sources for its information, and is contradicted by other evidence in the record.”
Another example is Maher Arar, a Canadian seized by the U.S. at JFK airport NYC while in transit to Damascus. He was sent to Syria and detained for 10 months. The government is seeking dismissal of his lawsuit against it because it would “force the government to reveal classified information” (AP, August 11, 2005). It further argued that “foreign citizens who change planes at airports in the United States can legally be seized, detained without charge, deprived of access to a lawyer or the courts, and even denied basic necessities like food” (New York Times, August 10, 2005). No wonder even “conservative” lawyers are lining up for Gitmo detainee cases from the Center for Constitutional Rights (CCR). “The most satisfying part of my life [recently],” says Tina Foster, who connects lawyers and detainees for the CCR, “is hearing from super-right-wing Republican lawyers who want to find a client to represent.”
When Margulies's piece was first published (Virginia Quarterly Review, Fall 2004), there were 600 detainees at Gitmo; today there are about 520. Two of his clients – Shafiq Rasul (of Rasul v. Bush fame) and Asif Iqbal – were released during the litigation it describes.
CHAPTER
29
A Prison Beyond the Law
………
Joseph Margulies, Esq.
NOT LONG AFTER September 11, 2001, the administration began to develop plans for a prison at the Guantánamo Bay Naval Station, in Cuba. Though modeled physically on maximum-security prisons in the United States, this facility – with a maximum capacity of 1100 inmates – would not hold convicted criminals. In fact, most of the inmates at this prison would never be charged with a crime, let alone convicted. The prison would house the people seized in ostensible connection with the war on terrorism, most of whom would never be brought before a tribunal of any kind, and would never be given an opportunity to secure their release by establishing their innocence. Designated “enemy combatants” by the President, they would be held without legal process, consigned to live out their days in isolation until the administration saw fit to release them.
This was the prison my colleagues and I challenged in Rasul v. Bush. On behalf of four prisoners – two from Britain and two from Australia – lawyers with the Center for Constitutional Rights and I filed an application in federal court seeking a writ of habeas corpus. Habeas acts as a check on Executive detention by forcing the sovereign to justify a prisoner's detention in open court. Sometimes called the Great Writ, habeas has been part of our law for more than 200 years and is one of the only protections of individual liberty enshrined in the Constitution (as opposed to the protections sub
sequently added in the Bill of Rights). Consistent with this historic purpose, we argued that the United States had to establish the lawfulness of our clients' detention by a fair process.
No small amount of confusion has attended the litigation in Rasul, and it is perhaps important to note what is not at stake. We did not argue-and have never argued – that the administration could not detain people seized in connection with the war on terrorism. We argued only that they could not detain them without some process to determine whether the detention was lawful. Nor did we argue that this process must include all the trappings of a federal criminal trial. We sought only a lawful and fair process that comported with the core understanding of habeas: notice and an opportunity to be heard before an impartial court that made timely decisions based on fixed and transparent standards. Finally, we did not ask that our clients be brought to the federal courthouse while this process unfolded. Instead, we asked that the federal court provide us access to our clients at Guantánamo, so they could be heard through us.
The litigation in Rasul has generated a host of intriguing issues, any one of which is worth considerable attention. There is, for example, the matter of the prisoners themselves. So far, the United States has successfully kept most of the Guantánamo inmates in the dark about the litigation. The argument in favor of complete secrecy runs something like this: the Administration believes that September 11 represents a failure of the intelligence community. While we may never know whether, with better intelligence, the United States could have prevented the attacks that morning, the administration believes that better intelligence is essential to preventing more attacks in the future. Since we lack reliable informants on the ground, we must get this intelligence by any means available to us, including interrogations of the people seized during the war.
According to the administration, effective interrogations require that the prisoner be separated from all outside influence. Terrorists, they argue, have been trained to resist the conventional blandishments to cooperate, and will withhold all useful information so long as they believe help is on the way. A successful interrogation, therefore, requires that prisoners become convinced that their welfare depends entirely on their interrogators. The only link to the outside world is the contact permitted by the captors. No family member, no member of the press, and certainly no attorney, can visit with the inmates, who under all circumstances must not learn of any litigation filed on their behalf, for fear that the knowledge will fortify them in what the administration takes to be their unbending determination to resist interrogation. To implement this vision, the administration needed a place where it could conduct interrogations free from any interference by the outside world – and in particular, by a court and its dreaded accoutrement: lawyers.
Neo-Conned! Again Page 61
