Chapter 4: continued


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Chapter 4: continued

GUANTANAMO: PRISONERS OF WAR OR DETAINEES?

The first U.S. aircraft bearing prisoners from Afghanistan left that country on January 11, taking twenty Taliban and al Qaeda suspects to the United States’ naval base at Guantanamo Bay, Cuba, to be joined within days by scores more. By mid-August, some 598 suspected Taliban and al Qaeda prisoners from at least 43 countries had been transferred to the U.S. base at Guantanamo, where they were held in the prisoner compound.[132] Most had been captured in or near the battlefield theater, in Afghanistan or Pakistan. Some, however, came from further afield, such as the six Algerian detainees arrested and transported to Guantanamo from Bosnia, after a local court had ordered their release for lack of evidence – reportedly sought in connection with an al Qaeda plot to blow up the American Embassy in Sarajevo.[133] At least one detainee has been sent home due to mental illness, and an unknown number have been secretly transferred to other countries. Officials are preparing accommodations for up to 2,000 inmates.[134] The Defense Department has indicated that many of the detainees can expect to be kept in Guantanamo until the end of the war against terrorism, a war that shows no sign of ending any time soon.[135]


THE GENEVA CONVENTIONS AND THE GUANTANAMO DETAINEES

The Geneva Conventions apply to the actions in war of the United States and every other state, whatever the circumstances. What is at issue is to determine, based on objective criteria, which particular provisions of the Geneva Conventions apply to which particular individuals. The fundamental distinction made in the laws of war is between civilians (and certain other non-belligerents) and combatants. Combatants are authorized to employ violence in combat and are, in turn, themselves lawful targets for enemy forces. Conversely, the law prohibits combatants from targeting civilians, but civilians may not lawfully participate in combat.

The International Committee of the Red Cross has said that the “general principle” of the Geneva Conventions is that:

Every person in enemy hands must have some status under international law; he is either a prisoner of war…covered by the Third Convention, a civilian covered by the Fourth Convention, or...a member of the medical personnel of the armed forces covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.[136]

Because the application of specific provisions of the Geneva Conventions turns on an individual’s status as civilian or combatant, the Conventions set out clear guidelines for making that determination. The Third Geneva Convention requires that there be an individualized hearing by a “competent tribunal” should there be “any doubt” whether a detained individual is a civilian or a combatant, and sets out the standards upon which the determination is to be made. The United States has long complied with these procedures,[137] and thousands of such hearings were held in the Vietnam[138] and Gulf wars.

Under article 4 of the Third Geneva Convention, generally, those entitled to prisoner of war status are “members of the armed forces of a conflict, as well as members of militias or volunteer corps forming part of such armed forces”; in addition, “members of other militias and members of other volunteer corps…belonging to a Party to the conflict” are recognized as prisoners of war if their organization satisfies four conditions: organized with a responsible chain of command; use of a distinctive sign (or uniform) distinguishing them from civilians; carrying arms openly; and generally complying with the laws of war. Until the competent tribunal has reached its determination, detainees must be presumed to be prisoners of war.

In a status hearing under the Geneva Conventions, a detainee may also seek to demonstrate that the factual circumstances of his arrest may have been misleading and that he is not a member of a hostile fighting force at all. For example, a prisoner may have been captured on a tip from an Afghan source with an ulterior motive to harm him.

A prisoner of war cannot be tried for his use of violence in the conduct of the war - what is known as the combatant’s privilege. But the combatant’s privilege does not include the right to violate the law of war or commit other international crimes, and, if the facts warrant, a prisoner of war can be tried for war crimes or crimes against humanity. When tried for such a crime, a prisoner of war is entitled to the same procedural rights as a member of the detaining state’s military would receive in the same circumstances.[139] For prisoners held by the United States, this would be a court martial. Even if convicted and sentenced for such crimes, a prisoner of war does not lose his prisoner of war status. “Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain…the benefits of the present Convention.”[140] A prisoner of war may be detained until the end of the hostilities even if he is charged with no crime.[141]

By contrast, a civilian who participates in hostilities does “not enjoy immunity under the law of war for his violent conduct and can be tried and punished under civil law for his belligerent acts.” Thus, if the battlefield “competent tribunal” determines an individual has participated in hostilities but does not qualify as a “privileged combatant” (and so as a prisoner of war), he may be prosecuted for his mere participation in the hostilities. However, such individuals “do not lose their protection as civilians under the [1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (the Fourth Geneva Convention)] if they are captured.”[142]

Moreover, in appropriate circumstances, if the tribunal determines there is probable cause to believe the civilian may have committed a war crime or other serious violation of international law, the civilian may be detained for further investigation and/or prosecution for those acts. Even in such circumstances, however, the suspect continues to retain his rights as a civilian under the Fourth Convention, and, in addition, in the event of trial, he is entitled to specified minimum rights, including: the right to confidential communications with counsel of his or her choice; prompt notice of the charges, including receipt of any documents that would be given in a trial of a U.S. soldier for the same crime; the right to present evidence and call witnesses; the right to a public trial (subject to reasonable security measures); and the same appeal rights a U.S. soldier would receive in the same situation, which would require an independent appellate court with civilian judges, such as the Court of Appeals for the Armed Forces that hears appeals from U.S. courts martial.[143]

PRISONERS OF WAR OR DETAINEES

Rejecting these well-established procedures, the administration quickly declared that the Guantanamo detainees would not be considered as normal battlefield prisoners, and announced that, whether al Qaeda or Taliban, the men in custody were, as a group, “unlawful combatants,”[144] and, as such, were not entitled to the rights and protections afforded prisoners of war under the Third Geneva Convention. From then on, denied the status of “prisoner,” the captives would be referred to with the legally neutral term “detainees.” The International Committee of the Red Cross, despite its general policy of preserving confidentiality about its findings, responded that in an international armed conflict, anyone captured on a battlefield was legally presumed to be a combatant entitled to prisoner of war status: “They were captured in combat…we consider them prisoners of war.”[145]

Yet the administration has persisted in a two-edged argument. When appropriate treatment for alleged “enemy combatants” captured in or near Afghanistan is under discussion, authorities tell us, in effect, ‘yes, they are combatants, but the law of war doesn’t apply to them, because they are criminals.’ Conversely, when the issue is proper treatment of individuals arrested in the United States as suspected terrorists, the response is that, ‘yes, they are criminals, but criminal law (including its constitutional protections) doesn’t apply because they are “enemy combatants.”’

Deceptively simple as a concept, the term “unlawful combatant” appears at first glance as an analytical tool fashioned to resolve the continuing debate as to whether the perpetrators of the September 11 attacks were criminals or belligerent combatants, and to guide authorities in determining the proper legal treatment of those suspected or accused of involvement. But the administration has in fact been using the term “unlawful enemy combatant” – a term not found in international law – as a kind of magic wand, waving it to avoid well-established standards of U.S. and international law.

In press statements in early January, 2002, Defense Secretary Donald Rumsfeld stated that as a matter of policy, but not of perceived legal obligation, the United States intended to treat the detainees in a manner “reasonably consistent with the Geneva Conventions,” and would “generally” follow the Geneva Conventions, though only to “the extent that they are appropriate,” since “technically unlawful combatants do not have any rights under the Geneva Convention.”[146]

One problem with this approach from the perspective of the U.S. military was that the Geneva Conventions act as a fundamental safeguard protecting U.S. service members who might be captured overseas. If the U.S. wants to be able to rely on the protections in the Geneva Conventions for its own troops, the U.S. must comply with them as well – not just in word, but in deed. In large part this turns upon prisoner of war status, and the required procedure by which a U.S. military tribunal must conduct individual determination hearings to establish whether a detainee is a prisoner of war or a civilian, and, in either case, whether the individual should be tried for war crimes or crimes against humanity.

Concerned about this potential rebound effect against American servicemen, Secretary of State Colin Powell asked in mid-January for a review of the administration’s policy on the Geneva Conventions.[147] According to a leaked memorandum, White House counsel Alberto Gonzales indicated that Powell:

had contended that the Geneva rules “apply to both Al Qaeda and the Taliban,” and added, “I understand, however, that he would agree that Al Qaeda and Taliban fighters could be determined not to be prisoners of war (P.O.W.s) but only on a case-by-case basis following individual hearings before a military board.”[148]

The promise of review, however, was quickly drowned out by a rash of statements from other top officials suggesting that any review would be limited in scope, and that, whatever the findings, the United States would not consider acknowledging P.O.W. status for any of the detainees.[149]

The administration’s review led to only a minor change in its stated position. On February 7, 2002, White House spokesman Ari Fleischer announced President Bush’s decision “that the Geneva Convention applies to members of the Taliban militia, but not to members of the international al-Qaida terrorist network.” Even so, though, the Taliban would not be considered eligible for prisoner of war status. The analysis appeared to be that, on the one hand, as members of a non-state terrorist organization, al Qaeda forces could never under any circumstances be eligible for prisoner of war status; on the other hand, the administration was now willing to accept that the Taliban was in principle potentially eligible for Geneva Convention protections, as the armed force of a state (Afghanistan) that was party to the Conventions, but that when it came to actually “applying” the test set forth in the Conventions, the Taliban, as an organization, was found, in effect, to have forfeited its potential right to Geneva Convention protections because of its violations of humanitarian law. Fleischer added that, notwithstanding these conclusions, the United States would “treat all Taliban and al-Qaida detainees in Guantanamo Bay humanely and consistent with the principles of the Geneva Convention.”[150] The administration’s profession of “stron[g support for] the Geneva Convention,”[151] however, belied an interpretation of the United States’ obligations in this regard that undermines the most elementary doctrines of international humanitarian law.[152]

DOUBLE STANDARDS

Not everyone in Afghanistan was being judged by the same standards. Lack of uniforms – or, for that matter, a history of atrocities against civilians or disarmed battlefield prisoners – did not lead the Administration to characterize Northern Alliance warlords – or foot soldiers – as “unlawful combatants.”[153] When it came to crimes against humanity, the President’s challenge to the world to be “with us or against us”[154] began to look less like an ironclad pledge of moral consistency than a promise to spare the United States’ new-found friends in the region the kind of scrutiny reserved for its enemies.

Nor did the United States consider operations by its own special forces executed out of uniform to have been unlawful. In recent months U.S military and other coalition forces have been increasingly engaging in both military and humanitarian initiatives, obscuring the bright line between military forces and civilians. This trend has caused growing concern among NGOs operating in Afghanistan, who are “alarmed about the potential confusion created in the minds of Afghans by armed coalition soldiers taking part in civil affairs operations while dressing and operating similarly to NGO staff,” according to a respected authority on humanitarian operations. “There is a real fear that humanitarian action may be seen as a front for intelligence gathering by coalition forces.”[155]

Initially, the administration was unambiguous about who it had transported to Guantanamo: not just enemies, but “among the most dangerous, best trained vicious killers on the face of the earth”;[156] “people that would gnaw hydraulic lines in the back of a C-17 to bring it down.”[157] We were given to understand there could be no doubt as to the kind of men being held since, as Defense Department General Counsel William J. Haynes put it, the Guantanamo detainees “are enemy combatants that we captured on the battlefield seeking to harm U.S. soldiers or allies….”

Secretary Rumsfeld himself opened the door to doubt about many of the Guantanamo detainees, when discussing with the press the importance of the interrogation process there in establishing some basic facts bearing directly on their status:

Were their actions not really egregious? Were they picked up inaccurately or improperly or—not improperly or inaccurately—unintentionally? Sometimes when you capture a big, large group there will be someone who just happened to be in there that didn’t belong in there.[158]

As the interrogations in Guantanamo continued, it emerged that in many cases the interrogators did not really know who their prisoners were. As Secretary Rumsfeld suggested, some were “victims of circumstance,” caught in the wrong place at the wrong time.[159] Though some important information was almost certainly being harvested from the intensive interrogations, by August, officials were forced to acknowledge that “U.S. authorities have yet to identify any senior Al Qaeda leaders among the nearly 600 terrorism suspects…in U.S. military custody at Guantanamo Bay.” Most were low-level or middle-level fighters and supporters - “no big fish.” According to one official,“[s]ome of these guys literally don’t know the world is round.” Some of the detainees were being treated medically for psychological disorders, and at least one had to be repatriated because of his mental illness.[160]


ACCESS TO THE COURTS AND RIGHT TO COUNSEL

Lawyers representing some of the detainees held at Guantanamo have filed habeas corpus petitions, asking U.S. federal courts to assert jurisdiction over their cases. At least two courts have ruled that they lacked such jurisdiction. In these cases, in addition to asserting its plenary power over military affairs, the administration has successfully argued that U.S. courts have no jurisdiction over non-U.S. detainees in Guantanamo because the military base is not under U.S. sovereignty. The U.S. formally recognizes Cuban “sovereignty” over the base even while occupying and controlling it under a perpetual lease imposed on Cuba long before the present regime there. Although the U.S. Navy has described Guantanamo as a “Naval reservation which for all practical purposes, is American territory….[over which] the United States has for approximately [ninety] years exercised the essential elements of sovereignty,”[161] the administration’s strategy is to reconfigure the territory’s anachronistic colonial status into what one official characterized as the “legal equivalent of outer space” – a place where literally no law applies.[162]

Addressing the question whether, under international and/or U.S. law, including the Due Process Clause of the Fifth Amendment of the U.S. Constitution, “aliens held outside the sovereign territory of the United States can use the courts of the United States to pursue claims brought under the United States Constitution,” the Federal District Court for the District of Columbia gave a resounding ‘no.’ Moreover, the court added, “no court would have jurisdiction to hear these actions,”[163] even while there is no question that U.S. forces in Guantanamo fall under the umbrella of U.S. law. Though Judge Colleen Kollar-Kotelly concluded that “diplomatic channels remain ongoing and viable means to address the claims raised by these aliens,”[164] she did not elaborate on what these are, or how they can be utilized in practice.

At the same time, there have been troubling reports that “[t]he U.S. government …has secretly transported some suspects to Middle Eastern countries that use interrogation tactics, including torture and threats, that are illegal under U.S. law.”[165] If these reports are true, such a practice would be in clear violation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the United States is party, and which forbids any State Party to “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”[166]

THE MILITARY COMMISSIONS

The administration’s plans for trials of “unlawful combatants” in military commissions have provided an instructive backdrop to the conflict in Afghanistan, the transfer of detainees to Guantanamo, and the identification of a few U.S. citizens among those accused of association with the Taliban or al Qaeda. In a November 13, 2001 Military Order,[167] President Bush authorized the trial of suspected terrorists for “violations of the laws of war and other applicable laws” in military commissions that sidestepped due process guarantees provided in civilian courts as well as those of the United States military court system.[168] The Military Order allows the trial by military commission of any non-citizen suspected of terrorism (or other crimes “under applicable laws”), inside or outside the United States, whether in connection with Osama bin Laden and his al Qaeda network or not. The Order has no termination date. Any non-citizen – even legal permanent residents – could be tried by the new military panels.

The Order creates a parallel criminal justice system in which defendants would have only those rights that the President or Secretary of Defense decided they would have. The President would designate those individuals to be tried by the new courts, and would authorize withholding from them evidence the prosecution deemed sensitive and confidential. This would prevent effective challenge in court of part or all of the information on which the President’s designation is based as well as the evidence used in the trial itself. (A military defense lawyer with security clearance, provided to the defendant by the commission, would have access to secret evidence, but would not be able to share that information either with the defendant or with any civilian co-counsel chosen by the defendant). The Order does not require that an individual detained under it be brought to trial at all, and so authorizes indefinite detention without trial. The commissions would be able to convict based on hearsay and other evidence that would not be admissible in a regular court. The accused would have no recourse to the ordinary courts, and could appeal a conviction – which may carry the death penalty – only to the President who named him as a suspected terrorist in the first place.

In support of the military commission proposal, the administration invoked historical precedent for such streamlined military courts, going back to George Washington. In particular, they pointed to the World War II Supreme Court case, Ex parte Quirin.[169] This was a case concerning eight Nazi soldiers who disembarked in mid-June 1942 from submarines in New York and Florida with a plan to commit sabotage. One of the men, George Dasch, turned himself in, betraying the others to the FBI. Less than nine weeks after they had landed, the Supreme Court had upheld a military commission’s jurisdiction to try them, the trial was completed, and six of the men were executed. Dasch received a 30-year sentence, and the eighth man was sentenced to life imprisonment.

History has not dealt kindly with the Quirin case. “Particularly in recent decades, the Supreme Court has been criticized….The compressed schedule…gave the appearance of a rush to judgment.”[170] Moreover, Quirin was decided before the 1949 Geneva Conventions, which substantially changed the rules regarding military trials of captured enemy forces. The administration’s use of Quirin to defend the detentions of American citizens Hamdi and Padilla as “enemy combatants” (in virtually all of the government’s court filings) has been particularly awkward since three rights the Quirin defendants did receive were right to counsel, right to speedy trial and right to civilian review (by the Supreme Court).

The November Order aroused considerable protest from across the political spectrum. Robert A. Levy, a senior constitutional law fellow at the Cato Institute, exclaimed that “[w]e all want to fight terrorism, but shredding the Constitution – which applies to all ‘persons,’ not just citizens – isn’t the way to do it.” He also noted pointedly that the President’s authority as commander in chief “at best, is shared with the legislative branch. Congress, not the president, is empowered by Article I, section 8 [of the Constitution] ‘To make Rules for the Government and Regulation of the land and naval forces.’[171]

Columnist William Safire protested the President’s “suspending, with a stroke of his pen, habeas corpus for 20 million people,” and opined that “[t]he sudden seizure of power by the executive branch, bypassing all constitutional checks and balances…was more than a bit excessive.” Safire further reported that military lawyers were “also determined to resist the subversion of the Uniform Code of Military Justice by Bush’s diktat.”[172]

Law enforcement officials also saw the Military Order as both improper and counterproductive. James Orenstein, former federal prosecutor and Associate Deputy Attorney General, argued that the fight against terrorism was fundamentally global, and that international cooperation would be “imperiled when foreign governments don’t trust us to respect the basic rights of the people we ask them to send us.” He also asserted that that use of military commissions would “threate[n] a basic tactic in fighting complex criminal organizations: prosecuting a low-level member to help develop more evidence for another case against someone higher in the organization’s chain of command. Indeed,” he stressed, “much of what law enforcement now knows about Al Qaeda was developed as a result of civilian trials and investigations.”[173]

Former FBI and CIA Director William Webster also expressed dissent:

To me, this [secret military tribunal] was a battlefield tribunal…I did not believe it would be a substitute for our system of justice for people being apprehended in the United States….I don’t think we solve our problems by avoiding the process that has made us what we are….[174]

Responding to such criticism, White House Counsel Alberto Gonzalez assured critics that habeas corpus review would be available to defendants in military commissions in the United States, without providing the same assurances for commissions held outside the U.S.[175] With Guantanamo as the principal venue for the detention of non-citizen “unlawful combatants,” a place that for now is outside the jurisdiction of any court authorized to hear a habeas corpus petition, this assurance turned out to be entirely cosmetic.

In March 2002, the Administration issued more detailed procedures to supplement the November Military Order. While some of the most outrageous features of the November Order were moderated, the regulations continue to permit secret evidence, hearsay, hearings closed to the public, limitations on defendants’ choice of counsel, and denial of review of commission determinations by the U.S. federal courts.

To date, as a response, at least in part, to the public criticism of the proposal, no one has been brought before a military commission. In any event, Defense officials have indicated that even if suspected terrorists are eventually tried and then acquitted by these military commissions, the administration reserves the right to continue to detain them indefinitely.[176]

ARRESTS OF NON-CITIZENS WITHIN THE UNITED STATES

In contrast with the civil detentions, mostly for alleged immigration law violations, of non-citizens within the United States, discussed in chapter 3 of this report, the arrests and prosecutions of those expressly accused of being directly linked to the violent foreign-based groups have presented a peculiar picture: several non-citizens appear to have been accorded more rights than U.S. citizens, even when both have been characterized as “enemy combatants.”

In December 2001 and January 2002, the U.S. government opted to prosecute two non-citizens in U.S. civilian courts. The determination to use the criminal justice system came as the debate still raged over the November Military Order. Zacarias Moussaoui, a Frenchman of Moroccan extraction, the so-called “twentieth hijacker,” was apprehended a month before the September 11 attacks, after arousing suspicion at a Minnesota flying school. Richard Reid, the British-born “shoe bomber” was arrested after a botched attempt to set off an explosive hidden in his shoe during a trans-Atlantic flight. The prosecution of Moussaoui, who was alleged to have been directly involved in the September 11 conspiracy, in particular, spawned the hope that the administration had backed off from its widely criticized military commission proposal.

With the subsequent detentions without trial of U.S. citizens Yaser Hamdi and Josť Padilla, the administration’s plans for alleged militants of al Qaeda became murkier and less encouraging. Then, last month, new indictments against non-citizen detainees were issued, auguring, perhaps, a renewed willingness to bring the full force of the criminal justice system into the fight against actions threatening the United States. At the same time, the fate of the U.S. citizens held without charge or trial on identical grounds was under review in the courts.

Zacarias Moussaoui

Zacarias Moussaoui was arrested in Minnesota on August 16, 2001, just weeks before the September 11 attacks. Apparently, instructors at a flying school he attended found it suspicious that he paid for his $8,000 flight classes in cash, expressed “unusual interest” in the fact that a plane’s doors could not be opened during flight, and insisted on learning to fly large aircraft despite what they saw to be minimal aptitude for flying.[177] He was held on immigration charges and was still in INS custody on September 11. The refusal by the FBI’s Washington headquarters to approve a request from local FBI agents to search his home computer, despite apparently incriminating information received from French intelligence services, precipitated a major controversy regarding the effectiveness of the FBI when evidence allegedly tying him to some of the September 11 hijackers was later found in the computer.[178]

On December 11, 2001, Moussaoui was indicted in Virginia on charges of conspiracy relating to the September 11 attacks. The Lawyers Committee for Human Rights welcomed the indictment as a “signal that the Administration will not forsake the U.S. criminal justice system even for those suspected of the closest involvement in the September 11 attacks.”[179] Moussaoui has rejected court-appointed lawyers and insisted on defending himself. His erratic behavior led to a court-ordered psychological examination, which determined that he was competent to defend himself. Some observers have complained that the pre-trial proceedings so far have resulted in a “circus-like” atmosphere that demeans the judicial system and provides a platform for Moussaoui to spout hatred. But the more important lesson of the case, so far, is for the world to see that even with all of these difficulties, the civilian court is fully competent to assure Moussaoui all the procedural rights and protections that are his due under the Constitution, and still proceed with a meaningful and reliable determination of the truth. The case, before Judge Leonie M. Brinkema, is now scheduled to come to trial in January 2003.

Richard Reid

Richard Reid was arrested on December 22, 2001, after failing to ignite an explosive hidden in his shoe, on a Paris to Miami flight. Reid was taken into custody in Boston, to where the flight had been diverted, and where he is being tried in Federal District Court. He is represented by two public defenders. A British citizen who converted to Islam, Reid may have met Moussaoui at the Brixton Mosque, in London.[180] His case seems to be proceeding uneventfully, with trial before Judge William G. Young scheduled to begin November 4, 2002.

Karim Koubriti, Ahmed Hannan, Farouk Ali-Haimoud, and “Abdella”

On August 28, 2002, indictments were issued against four men allegedly working in a terrorist cell in the Detroit area that was planning attacks in the United States, Jordan and Turkey. All of the men are foreign nationals: Koubriti and Hannan are Moroccan, Ali-Haimoud is Algerian; and authorities do not know the full identity of the fourth man, Abdella, who was not taken into custody. The three men in custody were originally arrested in a raid on the apartment of a fourth man, a Kuwaiti named Nabil Al-Marabh, who remains in custody but has not apparently himself been indicted; federal officials believe that Al-Marabh is linked to al Qaeda. Ali-Haimoud had been released shortly after his September arrest, for insufficient evidence, and was arrested again in April. Koubriti and Hannan have been in detention since their original arrests.[181]

DETENTIONS OF U.S. CITIZENS

The Constitution of the United States sets forth the bedrock rights that effectively define the American values of liberty and justice and apply to citizens and non-citizens alike. These rights have not always been fully respected in past periods of emergency. During World War II the government ordered the mass internment of tens of thousands of citizens and non-citizens of Japanese extraction, and at the height of the Cold War an extraordinary internal security act authorized the imprisonment of suspected “subversives” without charge or trial. But the nation has almost always, sooner or later, repudiated such acts, acknowledged that human rights were violated, and generally pledged never to repeat them.[182]

In the most recent action of this kind, Congress in 1971 repealed the Emergency Detention Act of 1950, which was passed during the Korean War to deal with espionage and sabotage activities within the U.S. by a supposed Communist “fifth column.” Title II of this Act authorized the relocation of “alleged subversives” into six national detention centers during wartime. The Act authorized detention without charge or trial on the mere say-so of federal officials, although it did not suspend the right of habeas corpus.[183] Detentions were not, in fact, ever carried out under the Act.

In repealing the Emergency Detention Act, Congress legislated that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”[184] This measure, passed amid mounting public pressure during the Vietnam War, sought to proscribe the power to create “emergency detention camps” for U.S. citizens and to “restrict the imprisonment or other detention of citizens of the United States to situations in which statutory authority for their incarceration exists.”[185]

Notwithstanding the clear constitutional and statutory injunction, two U.S. citizens have been detained without firm basis in law since September 2001. Other similar cases are possible in the future.[186]

U.S. CITIZENS WITH ALLEGED LINKS TO AL QAEDA

The administration has been particularly aggressive in its use of the label “enemy combatant” to justify indefinite detention of two citizens, Yaser Hamdi and Jose Padilla. The government has not disclosed the criteria for this designation, even to the courts, but by naming detainees as “enemy combatants,”[187] federal authorities have declared that prisoners may be held without access to courts – civilian or military – and without access to counsel. According to the administration’s court filings, if a court insists on making some sort of review of the decision to detain a U.S. citizen, it “may at most look to see whether the military has supplied a factual basis to support its own determination that [the citizen] is an enemy combatant.” In other words, the citizen’s indefinite detention is to be permitted as long as the government puts forward in good faith some apparently incriminating fact, a standard substantially lower than “probable cause.” Indeed, under the government’s rules, detention could be permitted even where there is a preponderance of the evidence indicating innocence of wrongdoing.

The courts are still sorting out how far they are willing to go along with the administration’s assertion of virtually unfettered discretion in the treatment of “enemy combatants,” and the record is mixed.

Yaser Hamdi

Yaser Hamdi, a Louisiana-born U.S. citizen of Saudi extraction, was captured by Northern Alliance forces in Afghanistan. He was transferred to Guantanamo, where U.S. officials realized that he was a U.S. citizen. As a result, he was subsequently transferred to a U.S. military base in Virginia, where he is now being held, without charge or trial, as an enemy combatant. In May 2002 a public defender – who had never been allowed even to see Hamdi – filed a habeas corpus petition in a Federal District Court in Virginia, Judge Robert G. Doumar presiding. The petition was denied on the ground that the lawyer was not sufficiently related to Hamdi to act on his behalf as a petitioner. A second filing followed on June 11, this time on behalf of Hamdi’s father, and the court promptly ordered the government to allow the public defender to meet with the detainee in private, without military personnel present. The government successfully appealed the Order and the case was sent back to the District Court for reconsideration as to whether the court had jurisdiction to order a writ of habeas corpus over an “enemy combatant.” On July 25, the government filed a motion to dismiss the habeas petition. The government reiterated its position that the court had very limited, if any, authority to review core military decisions, such as those involved in the apprehension and detention of “enemy combatants,” at least if the government showed some evidence that the individual was apprehended in some circumstance related to an armed conflict, the existence of which circumstance was to be accepted by the court on the President’s say-so:

In particular, in the context in which this case arises, there is no basis for a court to conduct evidentiary proceedings with respect to any of the particular facts or circumstances surrounding an individual’s capture as an enemy combatant, effectively opening the door for “alleged enemy combatants to call American commanders to account in federal court rooms.” The Court’s proper role does not permit it to call members of the United States military back from the front, or to somehow attempt to bring into the courtroom the Northern Alliance forces who accepted Hamdi’s surrender. Nor would it be proper to call Hamdi himself to court and, thus, seriously jeopardize important national security interests related to intelligence gathering….The relevant issue is whether the United States military had a factual basis for treating Hamdi as an enemy combatant. This return and the accompanying declaration readily demonstrate that the military had such a basis, and that is the end of the inquiry.[188]

Judge Doumar was unconvinced, and on August 16, 2002, he ordered the government to turn over for the court’s in camera review the underlying factual evidence supporting the government’s determination that Hamdi is an “unlawful enemy combatant,” together with the “screening criteria utilized to determine the status of Hamdi with the name(s) and address(es) of the persons who made the determination.”[189] Judge Doumar vowed that he would not be a “rubber stamp” for the government, and would not simply accept uncritically the conclusions of a skimpy two-page declaration – the “Mobbs declaration” - submitted to him to justify Hamdi’s continued incarceration as an “enemy combatant.”

With refreshing bluntness, Judge Doumar put the prosecutor on notice: “‘I’m challenging everything in the Mobbs declaration,’ he said. ‘If you think I don’t understand the utilization of words, you are sadly mistaken.’[190] The Judge expressed his concern that while the government asserted that Hamdi was:

“affiliated with a Taliban military unit and received weapons training” ….[t]he declaration makes no effort to explain what “affiliated” means nor under what criteria this “affiliation” justified Hamdi’s classification as an enemy combatant. The declaration is silent as to what level of “affiliation” is necessary to warrant enemy combatant status….It does not say where or by whom he received weapons training or the nature and extent thereof. Indeed, a close inspection of the declaration reveals that [it] never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban. Without access to the screening criteria actually used by the government in its classification decision, this Court is unable to determine whether the government has paid adequate consideration to due process rights to which Hamdi is entitled under his present detention.[191]

The Government has filed an appeal of Judge Doumar’s ruling.

Josť Padilla

Josť Padilla (Abdullah Al Mujahir) is a Brooklyn-born U.S. citizen who converted to Islam. He was arrested on May 8, 2002 in Chicago, when disembarking from an air flight from Pakistan. The information leading to his arrest was, according to administration spokesmen, obtained from interrogating Abu Zubaydah, who has been described as the senior al Qaeda leader in U.S. custody.[192] Padilla was originally held as a material witness, in connection with an alleged conspiracy to create and use a radioactive “dirty bomb” against an American urban target. After one month in unpublicized detention, he was transferred to military custody in South Carolina, when Judge Michael B. Mukasey of the Southern Distict of New York, impatient with the government’s apparent intention to hold Padilla indefinitely without charge, threatened to release him. As with Hamdi, the government is detaining him as an “enemy combatant.” Though he was represented by public defenders when he was being held as a material witness in New York, since the transfer to military custody, he has been denied further access to his attorneys. The government is resisting his counsel’s petition for habeas corpus, arguing (among other things) that the District Court should defer to the President’s determination that Padilla is an enemy combatant.

The inconsistency in treatment between Moussaoui and Reid, on the one hand, and Hamdi on the other, already troubling, came to a head with Padilla’s transfer to military jurisdiction, entailing detention in a Navy brig, and cutoff from his previously acting court-appointed lawyers. The St. Louis Post-Dispatch criticized Padilla’s status of legal “limbo” –– ineligible for a military tribunal because of his U.S. citizenship, and, once transferred to military custody, ineligible for a civilian criminal trial – a state of “legal purgatory….[where] he has fewer rights than Zacarias Moussaoui…and Richard Reid – neither of whom are citizens.”[193] Similarly, in a June 11 editorial, the Washington Times, even while praising the apprehension of Padilla, raised concern about his legal status. “The administration will need to explain why Al Mujahir should be treated any differently from suspected terrorist John Walker Lindh, an American citizen who will be tried in U.S. District Court, or Zacarias Moussaoui, a non-citizen who will be tried in civilian court as well. The proper course of action would be to try Al Mujahir, like the other accused terrorists, in civilian U.S. courts.”[194]

Other conservative voices also expressed discomfort at the appropriation of powers by the administration. With regard to domestic detentions, the Cato Institute protested the administration’s undermining of constitutional protections, such as excluding the judiciary from the process of issuing arrest warrants, diluting the “probable cause” standard for arrest, for citizens and non-citizens alike, and overturning the sanctity of trial by jury.

President Bush and his lawyers maintain that terrorists are ”unlawful combatants,” and that unlawful combatants are not entitled to the protections of the Bill of Rights. The defect in the president’s claim is circularity. A primary function of the trial process is to sort through conflicting evidence in order to find the truth. Anyone who assumes that a person who has merely been accused of being an unlawful combatant is, in fact, an unlawful combatant, can understandably maintain that such a person is not entitled to the protection of our constitutional safeguards. The flaw, however, is that the argument begs the very question under consideration.[195]

John Walker Lindh

John Walker Lindh, the first of the “American Talibans,” was apprehended by Northern Alliance forces in Afghanistan. When he was handed over to U.S. intelligence officers, it was discovered that he was American. According to the Lindh’s court filings, he was intensively interrogated for weeks during which time he was physically mistreated and denied access to legal counsel despite repeated requests.

Lindh was captured by Northern Alliance forces in late November 2001 and was handed over to U.S. custody on December 1. At that time, the defense alleged, he was malnourished, dehydrated and in need of medical attention to remove shrapnel in his thigh (which “would remain there for over three weeks, during which time Mr. Lindh was incarcerated and interrogated by U.S. forces”). The defense asserted that he was provided minimal food and medical assistance, despite repeated requests. Later, the defense alleged, he was threatened with death, stripped naked, blindfolded and, “shaking violently from the cold nighttime air,” bound to a stretcher “with heavy duct tape wrapped tightly around his chest, upper arms, ankles and the stretcher itself,” and in this condition placed in a windowless metal shipping container. with no light, no heat source and no insulation. The defense states that he was kept in this container for two days, during and after which the U.S. agents continued to question him. On December 14, Lindh was diagnosed by Navy doctors as suffering from dehydration, mild hypothermia and frostbite. Finally, on approximately December 15, Lindh received surgery for his wounds, and the bullet in his leg was removed.[196]

He was brought back to the United States after being held over a month in U.S. custody in Afghanistan, and in January 2002, he was indicted in a civilian federal district court in Virginia on charges of conspiring with al Qaeda forces to kill U.S. nationals, and related charges, facing possible life imprisonment. Despite the ubiquitous publicity and the obvious importance the government ascribed to the case,[197] the prosecution lost confidence in its ability to prove its case, which apparently depended largely on early self-incriminating statements made by Lindh before his lawyers could meet with him. Faced with the possibility that the statements would be excluded from the proceedings, the government ultimately settled the case in July, without going to trial.

James Ujaama

James Ujaama, a native born U.S. citizen convert to Islam, taken into custody in July as a material witness in connection with alleged plans to set up an al Qaeda training camp in Oregon.[198] Ujaama was indicted at the end of August on charges that he conspired to provide facilities and support for al Qaeda operatives. As with the earlier Moussaoui indictment the Government’s decision to prosecute Ujaama in civilian court again set human rights and civil liberties advocates to wondering whether the criticism of the military detentions of citizens and non-citizens arrested on U.S. territory might have persuaded the Administration to desist from its Constitutional overreaching, and end its practice of indefinite detention without charge. While that decision is to be welcomed, there remains plenty of reason for unease, as the Administration continues its aggressive campaign, with the Hamdi and Padilla cases, t [snip - maximum size exceeded]

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