Hamdan Case, number 3, the need for a new category of combatants

In our prior articles about Hamdan, we have already noted that the Supreme Court didn’t really decide anything like as much as the press is hinting. A majority of the Court as a whole decided only that the president’s commissions for trying prisoners at the Guantanimo Bay facility are not properly authorized by existing legislation or Article 3 of the Geneva Convention. The Court indicated that Article 3 requires that courts be “regularly constituted” and that they did not believe that the current situation accomplished this. Jeremy Rabkin, international law expert from Cornell University, has pointed out that the holding is limited only to procedures for passing sentences and not procedures for determining whether a suspect could be detained. He also says in an article in the July 17, 2006, Weekly Standard: “The Court also left open the possibility the detainees could be tried under somewhat distinctive procedures.” We also indicated in a prior article that even though I do not believe Article 3 of the Geneva Convention properly applies to the Guantanimo Bay detainees, it doesn’t really make any difference between we don’t violate Article 3 and no human being should be subjected to treatment contrary to general Article 3 of the Geneva Convention which largely requires only that you not torture, murder, mutilate prisoners or do other things to sentence them without “previous judgment pronounced by a regularly constituted court.”

Exactly what constitutes a regularly constituted court? The Geneva Convention which does apply to international conflicts and not to terrorists, does provide that prisoners of war who commit crimes while incarcerated are to be disciplined under the legal system that applies to the armed forces of the detaining power. (See the Handbook of Humanitarian Law in Armed Conflicts by Dieter Fleck.) Minimum standards related to this, according to international law expert Dieter Fleck, are quite minimal: “No prisoner of war may be punished or disciplined more than once for the same act (Article 86 GC III). Prisoners of war may not be sentenced to any penalties except those provided for in respect of members of the armed forces of the detaining power for the same acts (Article 87, paragraph 1 GC III). Prisoners of war shall be given an opportunity to present their defense (Article 96, paragraph 4 & 99, paragraph 3 GC III). Collective punishment for individual acts and cruel punishment are forbidden (Article 87, paragraph 3 GC III).” (Fleck, The Handbook of Humanitarian Law in Armed Conflicts, section 725, page 359.) Even though the court set up by the president to try the Guantanimo Bay detainees was not exactly like the courts used by our armed services, they would have met these basic minimal due process guarantees. This gives a good idea of exactly what due process guarantees would actually be required by international law. But as Rabkin has pointed out correctly concerning the court’s opinion in Hamdan, “No justice claims that Congress was bound to authorize procedures consistent with the court’s interpretation of Geneva’s standards. No justice claims Congress was even bound to accommodate anyone else’s understanding of Geneva’s standards.” As Rabkin also points out, it is well established precedent that such standards can be set by an act of legislation even if the legislation is contrary to a treaty it will control. Standards about what is actually involved here, people who have committed war crimes, are much more fuzzy. For example, Dieter Fleck says, “Thus it remains unanswered, for example, whether a prisoner of war may be convicted for a war crime if the sentence for the act had not been set out at the time the act was committed.” (Dieter Fleck, The Handbook of Humanitarian Law in Armed Conflicts, section 724, page 258.)

The court admits both that military tribunals have been convened in the past by military officers, (Hamdan, page 26) and that Chief Justice Chase of the Supreme Court suggested that “the president may constitutionally convene military commissions without the sanction of Congress in cases of controlling necessity” (Hamdan, page 28). In light of historical practices, it is quite likely that the phrase “regularly constituted” in general Article 3 of the Geneva Convention simply means constituted according to normal procedures due process or appropriate government power. The contrast would be to forms which do not have official authority. For example, if a group of soldiers in the field decided that they would hold an impromptu tribunal and do in certain of their prisoners for war crimes without any authority to do so, that would be a violation of the provision requiring regularly constituted tribunals. By contrast, a tribunal constituted within the president’s power as commander in chief under the normal laws of war or a tribunal constituted by congressional action could be “regularly constituted.” Nevertheless, the Supreme Court’s majority rejected this argument. Despite its oft common insistence today on viewing the laws of other nations or the international actions of other nations in interpreting our own Constitution, the Supreme Court does not look at the actions of other countries with respect to military tribunals or commissions.

The Court argues sighting a well-known treatise on military law by Winthrop that the current military tribunals do not fall under the major categories for which military tribunals are used: Marshall Law, occupation and trial of war crimes. They claim that “none of the overt acts that Hamdan is alleged of committing violates the law of war.” It also argues that an offense against the laws of war must have been committed both in the particular theater of war and during the relevant conflict. The High Court infers that Hamdan might have engaged in his conspiracy prior to the U.S. invasion of Afghanistan.

This does bring up a problem which is created by the nature of Islamic extremism. The Islamist extremists as a rule violate the laws of war all the time. That is how they conduct warfare. They attack and kill civilians, they do not wear uniforms, they do not identify themselves, they do not work under a centralized identifiable command structure associated with the authority of a nation state, their attacks are not proportional, they do not protect those who are captured or rendered hors de combat (instead they torture them and cut their heads off), they do not have rational and achievable war goals (world conquest is not exactly achievable), they utilize neutral locations such as hospitals and mosques for the storage of weapons and the planning of attacks, they deliberately place military targets in private homes, hospitals and other locations where civilians will be killed if the targets are attacked, and while they may have certain semi-legitimate historical grievances, their essential cause is fundamentally unjust from an objective perspective. In other words, Islamic extremism is an organized movement dedicated to violating the laws of war. Participating in an organization which supports this kind of activity ought to be characterizable as a violation of the law of war in itself. This is exactly what the indictment says: that Hamdan conspired to participate in an organization that was doing things that are in fact actually violations of the law of war even though the indictment does not specifically lay that out.

If it is the case that current international law is not adequate to create a separate category for radical Islamic fighters working for Al Qaeda and other similar organizations, then a new category needs to be explicitly created. The difficulty with doing so is that undoubtedly many Islamic countries will not agree to international treaties creating a new category. In addition, countries like the Soviet Union and China will find it in their interest to harry the United States and the West by denying the existence of a new category. They have the power to simply act extrajudicially and do whatever they want. They know that the United States is hampered by law and that by refusing the existence of a category that explicitly deals with Islamic terrorists, they will effectively hurt the United States politically and weaken it internationally. Somehow the United States needs to act to ensure that such a category in international law is created. Just as in the past it was recognized that piracy was in a special category and that pirates could be hung on the spot because they were per se in violation of the laws of nations and civilized conduct, it needs to be recognized that organizations like Al Qaeda and their followers deserve a special categorization different from that of soldiers, spies or civilians. It must also be recognized that the exigencies of dealing with organizations like Al Qaeda are completely different from those of dealing with the army of a nation state. Al Qaeda’s methodologies involve the violation of all laws of war and civilized conduct. As a result, any communication by detained Al Qaeda personnel with their companions is likely to result in severe damage to the cause of fighting them.

With a normal army, the letters a prisoner of war writes home to his family are not going to help the enemy’s war effort. But with an illegal underground organization like Al Qaeda, code words can be passed in letters, through attorneys or even through the Red Cross. These codes could easily result in severe harm to civilians. By the same token, because of their common violation of the laws of war, it is often difficult to identify an Al Qaeda combatant. They are not honest about their participation in Al Qaeda’s efforts. Instead, they frequently claim to be something other than what they are. This has already been seen with many of the people who were captured, sent to Guantanimo and subsequently released because they claimed to be innocent farmers who had been framed by jealous relatives or rival tribes. Once returned to Afghanistan, many of them immediately returned to combatant status and were later found bearing arms against the United States and the Afghan government. Originally, I think most commentators in favor of fighting the war on terror have through that the exigencies involved would justify merely bending the normal rules of war or recognizing that no rules applied since the normal rules of war did not, and proceeding with what needed to be done. As the war has already lasted five years and is likely to go on for many years to come, regularization and the creation of special categories and rules that deal with the exigencies of this kind of conflict is of paramount importance. While politically problematic, it needs to be done sooner or later. Obviously the current Senate of the United States is probably not well suited to dealing with this problem. But someone must.

Commentators and experts on international law need to stop dividing into categories of those who seek to hamper the war effort through international law and those who seek to argue away international law in order to facilitate the conflict. Instead, we need to come to an understanding that the conflict must be dealt with in appropriate ways that facilitate the war while making it clear what the legal basis for combating terrorists is. It may be politically unrealistic to think that the government of the United States is currently capable of handling this task. So many members of the opposition will do anything to help our enemies and nothing to compromise with those at the other end of the political spectrum. The backlash of anger and suspicion that results from those who legitimately seek to protect our country makes political discourse even more difficult. At the same token, international venues are even less likely to be fruitful for the reasons already discussed above. Perhaps legal scholars who favor combating terrorism could take the lead by developing a proposed system of categories and rules that both recognize the exigencies of this type of situation and clearly apply the rule of law in a way that prevents the current use of international law to circumvent the war against terror. Perhaps as things continue to deteriorate in the nations of Europe, the Europeans will eventually be willing to sign on to these new rules. Normally when confronted with exigencies they simply ignore the rules they are so eager to apply to others. (For example, French actions in the last few years in the Ivory Coast and their actions a few decades ago in Algeria.) Anyway, the Hamdan decision clearly opens the door for Congress to deal with at least the bare minimum issue of how Al Qaeda members can be legitimately tried. One hopes that they can do it without making it impossible to convict and punish people who are conscious violators of the laws of war and the rights of human beings, while still creating a process that will in some way enable someone to actually sort out innocent farmers from ruthless Islamo-fascists.

Undoubtedly Congress already thought they had already dealt with this problem. As the Hamdan court notes at page 38 of its opinion, the Uniform Code of Military Justice had incorporated by reference the common law of war. That ought to be enough. But under current usages of international law that seek to prevent the application of objective standards of justice and reason and instead focus on preventing rule of law abiding combatants from having combat, this provision is no longer working. The Supreme Court is using international law against our own country in a sense. Undoubtedly it hopes to protect innocents and to protect the liberties of human beings. But it did not have to make the decision it made.

Indeed, this is one of the most frustrating things about the Hamdan decision. As Justices Thomas, Scalia and Alito point out in their dissents, there are many ways in which the Court could have avoided making a decision in this case. At the very least, the Court could have exercised political question abstention and said that because this dealt with a highly political issue, the Court would abstain and instead leave it to Congress to enact new rules if it thought the president was violating its existing intentions. If Hamdan was not intended as a political decision, it certainly has been used that way by the media. You constantly hear news articles claiming that the court applied the Geneva Convention to the prisoners at Guantanimo. As we have seen, while there is a tiny portion of the Geneva Convention that the Court applied, that requiring basic humanitarian conduct, the vast bulk of the conventions, over 90% of their provisions, have no applicability to the Guantanimo detainees even under the broadest understanding of the Hamdan decision. The detainees are not people who work for a nation state. They were not in uniform. They were not under a systematic identifiable command. They did not abide by the laws of war themselves. As a result, they clearly do not come under the normal provisions of the Geneva Convention governing treatment of combatants. The Hamdan court never said they did. Nevertheless, in order to create political leverage against the Bush administration, the news media is happy to make statements that make people think the Court has said the Geneva Convention applies to the Guantanimo detainees.