Guantanamo III*
[*I wrote three 11/29/07 essays on the eve of the Supreme Court's latest (and last) handling of the Guantanamo issue. These essays bring the issue up to date--and are perhaps a better place to begin in your reading.]
Bill Long 11/9/05
Linking Commissions with the Geneva Convention
The previous essay laid out the statutes and joint resolution that will be at issue before the Court when it decides whether the President has exceeded his authority in establishing military commissions to hear the cases of Guantanamo detainees. An interesting sidelight is that the new Chief Justice, John Roberts, was one of the concurring Judges in the July 2005 decision upholding the validity of the commissions. Roberts will recuse himself from the case, of course, but the whole world knows where he stands on it. This essay evaluates the arguments presented previously with the help of a case that will no doubt bulk large in the Court's consideration, Ex Parte Quirin (1942). As I review relevant aspects of that case, I hope we see how the Military Commission issue shades imperceptibly into the "status of detainee" issue which will also be considered by the Court.
Ex Parte Quirin
This was really a consolidated series of cases concerning alleged German spies who were captured after coming into the USA in June 1942 with the intent of attacking US military or war facilities. On July 2, in response to their capture, President Roosevelt appointed a Military Commission and directed it "to try petitioners for offenses against the law of war and the Articles of War" (the predecessor document to the Uniform Code of Military Justice). In this order the President also prescribed regulations for the procedure at trial and review of the record of the trial and of any judgment or sentence of the Commission.
In reviewing the propriety of the Commission, the Court made a few interesting statements. It said, "It is urged (by the Government) that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case." That is, the captured men had contended that the Courts rather than a military venue was the place to hear their case. The US Supmre Court concluded that the Military Commission was a proper place for the case. But the quoted sentence still rings in my ears. Does it imply that a person captured/detained has some kind of right to a neutral adjudication of the question of which category (detainee or prisoner) he fits into before he is judged by a Military Commission?
The decision goes on to cite many instances where Military Commissions were used in US History to try violations of the "law of war." But central to these commissions was a prior distinction between whether the person was a lawful or unlawful combatant. "Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." The spy is the classic case of one who would not merit prisoner of war status but would be tried by the (potentially harsher) process of a military tribunal.
The Status of Hamdan
Now we are moving to the way that the questions of the legality of the Military Commissions and the status of the detainee are related. If a person is found to be a "prisoner of war" he has an entire Geneva Convention to support him (Convention III--Geneva Convention Relative to the Treatment of Prisoners of War, adopted August 12, 1949). This Convention details how he should be treated and what kinds of information he is required to divulge. What isn't clear to me is whether an actual trial of prisoners of war necessarily provides more protection than a trial of one not determined to be a prisoner of war. That woud depend, I suppose, on the scope of the Order given by the President and the regulations adopted by the Secretary of Defense to specify the nature of these Military Commissions. But the concern of the Bush Administration appears to lie elsewhere. Let's return in our minds to the difficult days of December 2001 and January 2002 in order to understand what is at stake in Hamdan's status determination.
Reliving 2001/2002
One of the biggest concerns of the Adminstration in those days was to get good information so that we could identify and capture the terrorists who not only were responsible for 9/11 but who might be part of a network of terrorism of which we knew little at the time (or, better said, little of what we knew was communicated to the American people). How do you get good information? Well, either you inflitrate the groups, which might be pretty difficult, or you get people to "squeal" when they are in detention. How do you do the latter? Not, probably, by feeding them five course dinners in palatial surroundings. Thus, the pressure was on the Office of Legal Counsel, I believe, in these months to develop a rationale of why we couldn't recognize Hamdan and other detainees as prisoners of war and why we also could use more aggressive interrogation techniques to try to extract information from them.
If we recognized the detainees as prisoners of war, they would need not state anything more than their "name, rank and serial number" under the Convention. Of course, we could still interrogate them, but their stautus as prisoner of war would protect them from torture and other inhumane means of trying to extract information from them. Now we understand why legal memos wanted to redefine torture, why they talked about "failure of major organs" as a potentially new standard for deciding when questioning had gone too far.
Conclusion
Thus, the questions swirling around the Bush Adminstration early in 2002 were the following: (1) How do we characterize the Taliban fighters in Afghanistan? (2) How do we characterize the al-Qaida fighters? (3) If one or both of them are protected under the Geneva Conventions (Convention III--on Prisoners), does that mean that they have to be be regarded as prisoners of war under that convention or is there another category of detainees? (4) If we conclude that the detainees are not protected by the Convention, what kind of treatment is legal and or appropriate to administer to them? (5) Finally, how long may they be detained or held without trial?
We were entering a new world, whether or not it was a brave one, and these questions had to be answered. So they were. The next essay, not yet written, goes into those answers and their legal effect on the Hamdan case.
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