Terrorism and Political Violence The Geneva Conventions International Treaties Human Rights Accords

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Terrorism and Political ViolenceThe Geneva
ConventionsInternational TreatiesHuman Rights
Accords

• Obligations by the US and the West
• Restrictions on how the US can Fight Terror

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The Geneva Convention

• The Geneva Convention Relative to the Treatment
  of Prisoners of War
• Adopted on 12 August 1949
• By the Diplomatic Conference for the
  Establishment of
• International Conventions for the Protection of
  Victims of War
• Held in Geneva from 21 April to 12, 1949

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The Geneva ConventionWho is Covered?

• Article 4
• Members of the Armed Forces of a party to a
  conflict members of militias or volunteers
  forming part of such armed forces.
• Others not part of regular armed forces that
  fulfill following requirements
• A. Members of a group commanded by a person
  responsible for subordinates.
• B. Must have a fixed distinctive sign
  recognizable at a distance.
• C. Must carry weapons openly.
• D. Must Conduct their operations in accordance
  with the laws and customs of war.

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Geneva Convention III (1949)

• Article 4. Persons protected by the Convention
  are those who, at a given moment and in any
  manner whatsoever, find themselves, in case of a
  conflict or occupation, in the hands of a Party
  to the conflict or Occupying Power of which they
  are not nationals.Nationals of a State which is
  not bound by the Convention are not protected by
  it.
• Nationals of a neutral State who find themselves
  in the territory of a belligerent State, and
  nationals of a co-belligerent State, shall not be
  regarded as protected persons while the State of
  which they are nationals has normal diplomatic
  representation in the State in whose custody they
  are.

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Guatanamo Bay (Cuba) Prisoners
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Prisoners at Abu Ghraib in Iraq
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Allegations Against the US for Violating the
Geneva Conventions
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Abuse is Investigated
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Other Captives

• Others, like war correspondents, civilians, and
  others who fall under the power of a warring
  power must also be treated as POWs and given all
  rights and privileges of the Geneva Convention.
• Article 4 also includes other categories that are
  not as relevant to our course.

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The Point

• Unlawful Enemy combatants under US control are
  not covered by the Geneva convention.
• Most do not wear recognizable uniforms.
• The insurgents do not carry arms openly.
• They do not conduct operations in accord with
  conventions of war (they deliberately attack
  civilians--terrorism).
• They hide among civilians for protection.
• They execute prisoners and humiliate them
  publicly.
• This makes them unlawful combatants, not
  prisoners of war. However, the US still treats
  them as if they were POWs even though they are
  not obligated to do so.
• The US Supreme Court, however, has ruled that the
  US Constitution provides right to a hearing to
  determine whether their status as captive is
  constitutional. Military tribunals satisfy the
  requirement in most cases.

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What is US Legal and Moral Obligation Toward
Terrorists?

• Many Europeans and Americans want captured
  terrorists classified as criminals or as
  prisoners of war (i.e., as if they were lawful
  combatants).
• The US, in fact, treats detainees in accord with
  the Geneva Convention and gives them rights
  because it is wise to do so. But we are under no
  obligation to do so under the Geneva Convention.
• Still, the US does not want to give up the moral
  high ground by treating our detainees the way our
  enemies treat captured Americans.

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Geneva Convention Protocol I (1977)

• Protocol I was an amendment to the Geneva
  Conventions adopted in 1977 by the Diplomatic
  Conference on the Reaffirmation and Development
  of International Humanitarian Law applicable in
  Armed Conflicts. It went into effect in 1979.
• As of January 14, 2007, it had been ratified by
  167 countries, with the US, Israel, Iran,
  Pakistan, Afghanistan, and Iraq being notable
  exceptions. However, the United States, Iran and
  Pakistan signed it on December 12, 1977, with the
  intention of ratifying it.
• The international community outside of the U.S.,
  generally accepts that the additional Geneva
  Conventions protocols are obligatory on all
  parties worldwide, as they have become part of
  the customary rules of war.
• The U.S. main objection is that the protocol
  extends Geneva Conventions protection to those it
  regards being unlawful combatants and terrorists.
  The U.S. has to date not ratified Protocol I
  although much of its central precepts have been
  incorporated into the U.S. Army's Field Manual
  (The Law of Land Warfare).

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Why the US opposes Protocol I

• In order to promote the protection of the
  civilian population from the effects of
  hostilities, combatants are obliged to
  distinguish themselves from the civilian
  population while they are engaged in an attack or
  in a military operation preparatory to an attack.
  Recognizing, however, that there are situations
  in armed conflicts where, owing to the nature of
  the hostilities an armed combatant cannot so
  distinguish himself, he shall retain his status
  as a combatant, provided that, in such
  situations, he carries his arms openly

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The U.S. Position

• Successive administrations have objected to
  certain revisions of the laws of war on the
  grounds that they might favor guerrilla fighters
  and terrorists.
• Giving terrorists protections despite them hiding
  among civilians, etc., will encourage this
  behavior and endanger civilians. It also grants
  legitimacy to the goals and especially the
  methods of terrorists.

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Misuse of the Laws of War

• The primary US concern since 1987 (when terrorism
  against the US spiked) is that the laws of war
  might be misused by some people to give an
  unwarranted degree of recognition and legitimacy
  to guerilla terrorists and eliminate effective
  means for defeating terrorism.
• In other words, unlawful combatants now have
  little to fear if captured (as consequences for
  their unlawful terrorism) while US troops AND
  civilians have much to fear from capture by
  terror groups.

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Protocol IArticle 5

• Parties to the conflict must make sure that there
  is supervision by a "Protecting Power". This
  article asserts that in a conflict there are to
  be people, not part of the conflict, to monitor
  the implementation of the Geneva Conventions by
  the parties to the conflict.
• Before this article was introduced, the Geneva
  Conventions implied that this should be done, but
  there was no explicit treaty obligation for the
  parties to allow monitoring.
• This provision is generally ignored by Terrorist
  states and terror groups.

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Protection of Environment

• Protocol I prohibits methods or means of warfare
  which are intended, or may be expected, to cause
  widespread, long-term and severe damage to the
  natural environment.
• In the case of threatening to retaliate to the
  use of WMDs with WMDs, this would seem to limit
  the use of atomic weapons to neutron bombs.

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Geneva Protocol II

• Part II. Humane Treatment Article 4 Fundamental
  guarantees, June 8, 19771. All persons who do
  not take a direct part or who have ceased to take
  part in hostilities, whether or not their liberty
  has been restricted, are entitled to respect for
  their person, honour and convictions and
  religious practices. They shall in all
  circumstances be treated humanely, without any
  adverse distinction. It is prohibited to order
  that there shall be no survivors.2. Without
  prejudice to the generality of the foregoing, the
  following acts against the persons referred to in
  paragraph I are and shall remain prohibited at
  any time and in any place whatsoever(a)
  violence to the life, health and physical or
  mental well-being of persons, in particular
  murder as well as cruel treatment such as
  torture, mutilation or any form of corporal
  punishment(b) collective punishments(c)
  taking of hostages(d) acts of terrorism(e)
  outrages upon personal dignity, in particular
  humiliating and degrading treatment, rape,
  enforced prostitution and any form or indecent
  assault(f) slavery and the slave trade in all
  their forms(g) pillage(h) threats to commit
  any or the foregoing acts.
• There are additional provisions for treatment of
  the sick, treatment of children captives (right
  to education, etc.).

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Ex Parte Milligan (1866)

• Lambdin P. Milligan, a US citizen, had lived for
  20 years in Indiana, and he was not, and never
  had been, in the military or naval service of the
  United States.
• On Oct. 5th, 1864, while at home, he was arrested
  by order of General Alvin Hovey, commander of the
  military district of Indiana, and had since been
  kept in close confinement.
• On Oct. 21st, 1864, Milligan was brought before a
  military commission (tribunal), convened at
  Indianapolis by order of General Hovey, tried on
  certain charges and specifications, found guilty,
  and sentenced to be hanged.
• A civilian Grand Jury did NOT indict him for any
  violations of laws.

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Was Milligan entitled to a civil Trial by Jury?

• Milligan insisted, in his case to the US Supreme
  Court, that the military commission had no
  jurisdiction to try him on the charges the
  military lodged, or upon any charges whatever,
  because he was a citizen of the United States and
  of the State of Indiana, and since the
  commencement of the civil war, had not been a
  resident of any of the States in rebellion
  against the US government, nor was he a member of
  the US or enemy (Confederate) military.
• Accordingly, he asserted, he had the right of
  indictment by Grand Jury (5th Amendment) and
  civil trial by jury (6th Amendment) which was
  guaranteed to him by the constitution of the
  United States.

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The 5th Amendment

• No person shall be held to answer for a capital,
  or otherwise infamous crime, unless on a
  presentment or indictment of a Grand Jury, except
  in cases arising in the land or naval forces, or
  in the Militia, when in actual service in time of
  War or public danger nor shall any person be
  subject for the same offence to be twice put in
  jeopardy of life or limb nor shall be compelled
  in any criminal case to be a witness against
  himself, nor be deprived of life, liberty, or
  property, without due process of law nor shall
  private property be taken for public use, without
  just compensation.
• Italics added

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The 6th Amendment

• In all criminal prosecutions, the accused shall
  enjoy the right to a speedy and public trial, by
  an impartial jury of the State and district
  wherein the crime shall have been committed,
  which district shall have been previously
  ascertained by law, and to be informed of the
  nature and cause of the accusation to be
  confronted with the witnesses against him to
  have compulsory process for obtaining Witnesses
  in his favor, and to have the Assistance of
  counsel for his defence. sic

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3 Questions Related to Milligan

• 1st On the facts stated in Milligans petition
  and exhibits, ought a writ of habeas corpus to be
  issued?
• 2nd Whether, upon the facts stated in his court
  petition and exhibits, the military commission
  had jurisdiction to legally try and sentence
  Milligan in the form of a military tribunal
  rather than a civilian trial after indictment by
  a Grand Jury?
• 3rd On the facts stated in said petition and
  exhibits, ought Milligan be discharged from
  custody?

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3 Answers Related to Milligan

• Question 1 Yes, a writ of Habeas Corpus was
  issued, because its suspension in a peaceful
  state (like Indiana at the time) is unreasonable,
  even if other parts of country were in rebellion.
  
• Question 2 No, the military did NOT have the
  right to use a military tribunal against
  Milligan. When peace prevails, and the authority
  of the government is undisputed, and there is no
  difficulty of preserving the safeguards of
  liberty (as in Indiana at the time), then the
  right to Grand Jury and to Trial by Jury shall be
  preserved. The Courts of Indiana were open
  operating, so must be used for a person not in
  the military.
• Question 3 Yes, if the military trial of
  Milligan was contrary to law, then he was
  entitled, on the facts stated in his petition, to
  be discharged from custody by the terms of the
  act of Congress of March 3d, 1863 (that placed
  limits on the suspension of Habeas Corpus and
  extended Habeas Corpus rights). The Grand Jury in
  Indiana did not indict him, and the Military
  Tribunal was illegal, so Milligan was entitled to
  his freedom.

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Martial Law in the US

• The Court in Milligan stated It is difficult to
  see how the safety for the country required
  martial law in Indiana. If any of her citizens
  were plotting treason, the power of arrest could
  secure them until the government was prepared for
  their trial, when the courts were open and ready
  to try them. It was as easy to protect witnesses
  before a civil as a military tribunal, and as
  there could be no wish to convict except on
  sufficient legal evidence, surely an ordained and
  establish court was better able to judge of this
  than a military tribunal composed of gentlemen
  not trained to the profession of the law.
• In fact, the Court system (Grand Jury) of
  Indiana did have proceedings and refused to
  indict Milligan.
• However, the court implied that under certain
  conditions the military can prosecute and
  sentence civilians in the US, and even treat them
  as prisoners of war, which in such cases the
  military or US government may not be required
  to hold a hearing where the prisoner can
  challenge his incarceration. By 1866, the rules
  on this were not clear.

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The Court asserts a meaning of prisoner of war

• The Court ruled in Milligan It is not easy to
  see how Milligan can be treated as a prisoner
  of war when he lived in Indiana for the past
  twenty years, was arrested there, and had not
  been, during the late troubles, a resident of any
  of the states in rebellion. If in Indiana he
  conspired with bad men to assist the enemy, he is
  punishable for it in the courts of Indiana but,
  when tried for the offence, he cannot plead the
  rights of war, for he was not engaged in legal
  acts of hostility against the government, and
  only such persons, when captured, are prisoners
  of war. If he cannot enjoy the immunities
  attaching to the character of a prisoner of war,
  how can he be subject to their pains and
  penalties?

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Ex Parte Quirin (1942)

• All the petitioners were born in Germany all
  have lived in the United States. All returned to
  Germany between 1933 and 1941.
• All except petitioner Haupt are admittedly
  citizens of the German Reich, with which the
  United States is at war. Haupt came to this
  country with his parents when he was five years
  old it is contended that he became a citizen of
  the United States by virtue of the naturalization
  of his parents during his minority and that he
  has not since lost his citizenship. The
  Government, however, takes the position that on
  attaining his majority he elected to maintain
  German allegiance and citizenship or, in any
  case, that he has by his conduct renounced or
  abandoned his United States citizenship. For
  reasons presently to be stated we do not find it
  necessary to resolve these contentions.
• After the declaration of war between the United
  States and the German Reich, petitioners received
  training at a sabotage school near Berlin,
  Germany, where they were instructed in the use of
  explosives and in methods of secret writing.
  Thereafter petitioners, with a German citizen,
  Dasch, proceeded from Germany to a seaport in
  Occupied France, where petitioners Burger, Heinck
  and Quirin, together with Dasch, boarded a German
  submarine which proceeded across the Atlantic to
  Amagansett Beach on Long Island, New York.
• The four were there landed from the submarine in
  the hours of darkness, on or about June 13, 1942,
  carrying with them a supply of explosives, fuses
  and incendiary and timing devices.
• While landing they wore German Marine Infantry
  uniforms or parts of uniforms. Immediately after
  landing they buried their uniforms and the other
  articles mentioned and proceeded in civilian
  dress to New York City.

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Crimes or Acts of War?

• The remaining four petitioners at the same French
  port boarded another German submarine, which
  carried them across the Atlantic to Ponte Vedra
  Beach, Florida. On or about June 17, 1942, they
  came ashore during the hours of darkness wearing
  caps of the German Marine Infantry and carrying
  with them a supply of explosives, fuses, and
  incendiary and timing devices. They immediately
  buried their caps and the other articles
  mentioned and proceeded in civilian dress to
  Jacksonville, Florida, and thence to various
  points in the United States.
• All were taken into custody in New York or
  Chicago by agents of the Federal Bureau of
  Investigation. All had received instructions in
  Germany from an officer of the German High
  Command to destroy war industries and war
  facilities in the United States, for which they
  or their relatives in Germany were to receive
  salary payments from the German Government. They
  also had been paid by the German Government
  during their course of training at the sabotage
  school and had received substantial sums in
  United States currency, which were in their
  possession when arrested. The currency had been
  handed to them by an officer of the German High
  Command, who had instructed them to wear their
  German uniforms while landing in the United
  States.

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President FDR Takes Action

• The President, as President and Commander in
  Chief of the Army and Navy, by Order of July 2,
  1942, appointed a Military Commission and
  directed it to try petitioners for offenses
  against the law of war and the Articles of War,
  and prescribed regulations for the procedure on
  the trial and for review of the record of the
  trial and of any judgment or sentence of the
  Commission.
• On the same day, by Proclamation, the President
  declared that 'all persons who are subjects,
  citizens or residents of any nation at war with
  the United States or who give obedience to or act
  under the direction of any such nation, and who
  during time of war enter or attempt to enter the
  United States ... through coastal or boundary
  defenses, and are charged with committing or
  attempting or preparing to commit sabotage,
  espionage, hostile or warlike acts, or violations
  of the law of war, shall be subject to the law of
  war and to the jurisdiction of military
  tribunals'.
• The Proclamation also stated that all such
  persons were to be denied access to the US
  courts.

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Petitioners Handed over to US Military

• Pursuant to direction of the Attorney General,
  the Federal Bureau of Investigation surrendered
  custody of petitioners to the Provost Marshal of
  the Military District of Washington, who was
  directed by the Secretary of War to receive and
  keep them in custody, and who thereafter held
  petitioners for trial before the Military
  Commission.
• On July 3, 1942, the Judge Advocate General's
  Department of the Army prepared and lodged with
  the Commission the following charges against
  petitioners, supported by specifications
• 1. Violation of the law of war.
• 2. Violation of Article 81 of the Articles of
  War, defining the offense of relieving or
  attempting to relieve, or corresponding with or
  giving intelligence to, the enemy.
• 3. Violation of Article 82, defining the offense
  of spying.
• 4. Conspiracy to commit the offenses alleged in
  charges 1, 2 and 3.

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The Petitioners Challenge

• Petitioners' main contention is that the
  President is without any statutory or
  constitutional authority to order the petitioners
  to be tried by military tribunal for offenses
  with which they are charged that in consequence
  they are entitled to be tried in the civil courts
  with the safeguards, including trial by jury,
  which the Fifth and Sixth Amendments guarantee to
  all persons charged in such courts with criminal
  offenses.
• It was also argued that the President's Order, in
  prescribing the procedure of the Commission and
  the method for a review of its findings and
  sentence, and the proceedings of the Commission
  under the Order, conflict with the Articles of
  War adopted by Congress-particularly Articles 38,
  43, 46, 50 1/2 and 70-and are, accordingly,
  illegal and void.

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The Relevant Courts Were Open

• It was conceded by the US government that ever
  since petitioners' arrest, the state and federal
  courts in Florida, New York, and the District of
  Columbia, and in the states in which each of the
  petitioners was arrested or detained, had been
  open and functioning normally.
• But the US government challenged each of the
  petitioners propositions to being entitled to
  access to US civil courts. But regardless of
  their merits, the US also insisted that
  petitioners must be denied access to the courts,
  both because they are enemy aliens or have
  entered our territory as enemy belligerents, and
  because the President's Proclamation undertakes
  in terms to deny such access to the class of
  persons defined by the Proclamation, which aptly
  describes the character and conduct of
  petitioners. It is urged that if they are enemy
  aliens or if the Proclamation has force no court
  may afford the petitioners a hearing.

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The Courts Quirin Decision

• (1) The charges preferred against petitioners on
  which they are being tried by military commission
  appointed by the order of the President of July
  2, 1942, allege an offense or offenses which the
  President is authorized to order tried before a
  military commission.
• (2) The military commission in this case was
  lawfully constituted.
• (3) That petitioners are held in lawful custody,
  for trial before the military commission, and
  have not shown cause for being discharged by writ
  of habeas corpus. The motions for leave to file
  petitions for writs of habeas corpus were denied.

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The Quirin Petitioners Lose Their Case

• The Court did rule that neither the Presidents
  Proclamation nor the fact that the petitioners
  are enemy aliens forecloses consideration by the
  courts of petitioners' contentions that the
  Constitution and laws of the United States
  constitutionally enacted forbid their trial by
  military commission.
• The court simply ruled that the military
  commissions were lawful, given the facts of the
  case.
• The Constitution invests the President as
  Commander in Chief with the power to wage war
  which Congress has declared, and to carry into
  effect all laws passed by Congress for the
  conduct of war and for the government and
  regulation of the Armed Forces, and all laws
  defining and punishing offences against the law
  of nations, including those which pertain to the
  conduct of war.
• In essence, enemy combatants are not entitled to
  defendants rights or protections of the US
  constitution (especially if they are foreign
  non-US citizens, enemy military members, and
  actively engaged in warfare activities, even if
  on US soil.

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Even US Citizens might be denied Rights as
Suspects

• The Court asserted in Quirin
• Citizenship in the United States of an enemy
  belligerent does not relieve him from the
  consequences of a belligerency which is unlawful
  because in violation of the law of war.
• Citizens who associate themselves with the
  military arm of the enemy government, and with
  its aid, guidance and direction enter this
  country bent on hostile acts are enemy
  belligerents within the meaning of the Hague
  Convention and the law of war.
• It is as an enemy belligerent that petitioner
  Haupt is charged with entering the United States,
  and unlawful belligerency is the gravamen of the
  offense of which he is accused.
• Unlawful warfare against the US, even when
  committed by a citizen, is distinct from the
  crime of treason defined in Article III of the
  Constitution, since the absence of uniform so
  essential to one (unlawful warfare) is irrelevant
  to the other (treason).

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The Quirin Court Explains Milligan and Quirin
Differences

• The Court concluded that the Fifth and Sixth
  Amendments did not restrict whatever authority
  was conferred by the Constitution to try offenses
  against the law of war by military commission,
  and that petitioners, charged with such an
  offense not required to be tried by jury at
  common law, were lawfully placed on trial by the
  Commission without a jury.
• Petitioners, and especially petitioner Haupt,
  stress the pronouncement of this Court in the
  Milligan case that the law of war 'can never be
  applied to citizens in states which have upheld
  the authority of the government, and where the
  courts are open and their process unobstructed'.
  Elsewhere in its opinion, the Court was at pains
  to point out that Milligan, a citizen twenty
  years resident in Indiana, who had never been a
  resident of any of the states in rebellion, was
  not an enemy belligerent either entitled to the
  status of a prisoner of war or subject to the
  penalties imposed upon unlawful belligerents.
• The Court construed the Court's statement as to
  the inapplicability of the law of war to
  Milligan's case as having particular reference to
  the facts before it. From them the Court
  concluded that Milligan, not being a part of or
  associated with the armed forces of the enemy,
  was a non-belligerent, not subject to the law of
  war save as, in circumstances found not there to
  be present and not involved here, martial law
  might be constitutionally established.

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Hamdi v. Rumsfeld (2004)

• After Congress passed a resolutionthe
  Authorization for Use of Military Force
  (AUMF)empowering the President to use all
  necessary and appropriate force against
  nations, organizations, or persons that he
  determines planned, authorized, committed, or
  aided in the September 11, 2001, al Qaeda
  terrorist attacks, the President ordered the
  Armed Forces to Afghanistan to subdue al Qaeda
  and quell the supporting Taliban regime.
• Petitioner Yaser Esam Hamdi, an American citizen
  (born in Louisiana in 1980) whom the Government
  has classified as an enemy combatant for
  allegedly taking up arms with the Taliban during
  the conflict, was captured in Afghanistan and
  presently is detained at a naval brig in
  Charleston, South Carolina.
• Hamdis father filed a habeas petition on his
  behalf under 28 U. S. C. 2241, alleging, among
  other things, that the Government holds his son
  in violation of the Fifth and Fourteenth
  Amendments.
• Although the petition did not elaborate on the
  factual circumstances of Hamdis capture and
  detention, his father has asserted in other
  documents in the record that Hamdi went to
  Afghanistan to do relief work less than two
  months before September 11 and could not have
  received military training.

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The District Court Appeals Court Rulings

• The Government attached to its response to the
  petition a declaration from Michael Mobbs (Mobbs
  Declaration), a Defense Department official. The
  Mobbs Declaration alleges various details
  regarding Hamdis trip to Afghanistan, his
  affiliation there with a Taliban unit during a
  time when the Taliban was battling U. S allies,
  and his subsequent surrender of an assault rifle.
  
• The District Court found that the Mobbs
  Declaration, standing alone, did not support
  Hamdis detention and ordered the Government to
  turn over numerous materials for review. The
  Fourth Circuit Court of Appeals reversed,
  stressing that, because it was undisputed that
  Hamdi was captured in an active combat zone, no
  factual inquiry or evidentiary hearing allowing
  Hamdi to be heard or to rebut the Governments
  assertions was necessary or proper.
• Concluding that the factual averments in the
  Mobbs Declaration, if accurate, provided a
  sufficient basis upon which to conclude that the
  President had constitutionally detained Hamdi,
  the circuit court ordered the habeas petition
  dismissed.
• The Fourth Circuit Court of Appeals held that,
  assuming that express congressional authorization
  of the detention was required by 18 U. S. C.
  4001(a)which provides that no citizen shall
  be imprisoned or otherwise detained by the United
  States except pursuant to an Act of Congress
  the AUMFs necessary and appropriate force
  language provided the sufficient authorization
  for Hamdis detention.
• It also concluded that Hamdi is entitled only to
  a limited judicial inquiry into his detentions
  legality under the war powers of the political
  branches, and not to a searching review of the
  factual determinations underlying his seizure.

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The US Supreme Court Weighs In

• The US Supreme Court overturned the Circuit Court
  of Appeals.
• JUSTICE OCONNOR, joined by CHIEF JUSTICE
  Rehnquist, JUSTICE KENNEDY, and JUSTICE BREYER,
  concluded that, although Congress authorized the
  detention of combatants in the narrow
  circumstances alleged in this case, due process
  demands that a US citizen held in the United
  States as an enemy combatant be given a
  meaningful opportunity to contest the factual
  basis for that detention before a neutral
  decision maker. Italics added
• However, the Supreme Court did not indicate what
  type of hearing would be required in such cases
  (i.e., civil trial or military tribunal).

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Justices Souter and Ginsburg Opposed Even the
Detention

• JUSTICE SOUTER, joined by JUSTICE GINSBURG,
  concluded that Hamdis detention is unauthorized,
  therefore illegal, but they joined with the
  plurality to conclude that Hamdi should have a
  meaningful opportunity to offer evidence that he
  is not an enemy combatant.

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How is Hamdi different from Milligan?

• Neither were members of a military fighting for a
  government (but Hamdi was fighting with Taliban
  forces).
• Hamdi was a combatant (and an unlawful combatant
  under the Geneva Convention), but neither
  Milligan nor Hamdi wore uniforms of an official
  state or militia.
• Milligan was captured on US soil, while Hamdi
  was captured overseas and brought to US soil.

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The ruling was a very limited victory for Hamdi

• Hamdis habeas petition asked that the court,
  among other things, (1) appoint counsel for
  Hamdi (2) order respondents to cease
  interrogating him (3) declare that he is being
  held in violation of the Fifth and Fourteenth
  Amendments (4) to the extent Respondents
  contest any material factual allegations in this
  Petition, schedule an evidentiary hearing, at
  which Petitioners may adduce proof in support of
  their allegations and that Hamdi be released.
• The Court did not order his release, order that
  interrogation cease, nor appoint counsel, nor
  assert that other rights in the constitution be
  afforded (an adversarial jury trial, counsel,
  Miranda, or that he be charged as a criminal
  defendant, rather than held as an enemy
  combatant).

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The Jose Padilla Case

• Jose Padilla is a U.S. citizen who (allegedly)
  plotted to detonate a "dirty bomb" and use
  natural gas to blow up apartment buildings in
  Washington D.C., New York and Florida.
• Since his capture - not on the battlefields of
  Afghanistan or Iraq, but at Chicago's O'Hare
  Airport - he had not been charged with any crime
  before the Supreme Court decision in 2004.
• Since June 2002, Padilla has been held
  incommunicado in a South Carolina military brig -
  indefinite detention, without access to a lawyer,
  until the government acceded to outside pressure
  in March 2004.
• The government still argues, however, that it is
  not required to charge him with crimes, to
  provide him with attorneys, or to grant Geneva
  Convention protections, because he is an unlawful
  combatant despite actually granting him some
  rights as a criminal defendant.

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Jose Padilla
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Rumsfeld v. Padilla (2004)

• Respondent Padilla, a United States citizen, was
  brought to New York for detention in federal
  criminal custody after federal agents apprehended
  him while executing a material witness warrant
  issued by a New York District Court (for the
  Southern District of New York) in connection with
  its grand jury investigation into the September
  11, 2001, al Qaeda terrorist attacks.
• While his motion to vacate the warrant was
  pending, the President issued an order to
  Secretary of Defense Rumsfeld designating Padilla
  an enemy combatant and directing that he be
  detained in military custody.
• Padilla was later moved to a Navy brig in
  Charleston, S. C., where he has been held ever
  since. His counsel then filed in the Southern
  District of New York court a habeas petition
  under 28 U. S. C. 2241, which, as amended,
  alleged that Padillas military detention
  violates the Constitution, and named as
  respondents the President, Secretary Rumsfeld,
  and Melanie Marr, the brigs commander.
• The Government moved to dismiss, arguing, inter
  alia, that Commander Marr, as Padillas immediate
  custodian, was the only proper respondent, and
  that the District Court lacked jurisdiction over
  her (Marr) because she is located outside the
  Southern District (of New York).

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The District Courts Ruling

• The Southern District of New York court held that
  Secretary Rumsfelds personal involvement in
  Padillas military custody rendered him a proper
  respondent, and that the New York District Court
  could assert jurisdiction over the Secretary
  under New Yorks long-arm statute,
  notwithstanding his absence from that District.
• On the merits, the court accepted the
  Governments contention that the President has
  authority as Commander in Chief to detain as
  enemy combatants citizens captured on American
  soil during a time of war.

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The Circuit Court of Appeals Ruling

• The US Circuit Court for the Second Circuit
  agreed with the lower district court that
  Secretary Rumsfeld was a proper respondent and
  that the Southern District had jurisdiction over
  the Secretary under New Yorks long-arm statute.
• The appeals court reversed on the merits,
  however, holding that the President lacks
  authority to detain Padilla militarily as an
  enemy combatant.

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The Supreme Court Weighs In

• The Supreme Court Held
• 1. Because this Supreme Court answers the
  jurisdictional question in the negative (i.e.,
  the New York district court lacks jurisdiction),
  it does not reach the question whether the
  President has authority to detain Padilla
  militarily.
• 2. The Southern District lacks jurisdiction over
  Padillas habeas petition.
• 3. Commander Marr is the only proper respondent
  to Padillas petition because she, not Secretary
  Rumsfeld, is Padillas custodian. The federal
  habeas statute straightforwardly provides that
  the proper respondent is the person having
  custody over the petitioner. Its consistent use
  of the definite article (the) indicates that
  there is generally only one proper respondent,
  and the custodian is the person with the
  ability to produce the prisoners body before the
  habeas reviewing court. The petitioner cannot
  name someone else just because Padillas physical
  confinement stems from a military order by the
  President.
• Padilla should name his warden as respondent and
  file the petition in the district of his
  confinement. This rule serves the important
  purpose of preventing forum shopping by habeas
  petitioners.
• Whether the president can name a US citizen
  captured on US soil as an enemy combatant was
  left as an unanswered question.

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The Detainee Treatment Act (2005)Section 1002

• (a) In General- No person in the custody or under
  the effective control of the Department of
  Defense or under detention in a Department of
  Defense facility shall be subject to any
  treatment or technique of interrogation not
  authorized by and listed in the United States
  Army Field Manual on Intelligence Interrogation.
• (b) Applicability- Subsection (a) shall not apply
  with respect to any person in the custody or
  under the effective control of the Department of
  Defense pursuant to a criminal law or immigration
  law of the United States.
• (c) Construction- Nothing in this section shall
  be construed to affect the rights under the
  United States Constitution of any person in the
  custody or under the physical jurisdiction of the
  United States.

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Detainee Treatment ActSection 1003

• (a) In General- No individual in the custody or
  under the physical control of the United States
  Government, regardless of nationality or physical
  location, shall be subject to cruel, inhuman, or
  degrading treatment or punishment.
• (b) Construction- Nothing in this section shall
  be construed to impose any geographical
  limitation on the applicability of the
  prohibition against cruel, inhuman, or degrading
  treatment or punishment under this section.
• (d) Cruel, Inhuman, or Degrading Treatment or
  Punishment Defined- In this section, the term
  'cruel, inhuman, or degrading treatment or
  punishment' means the cruel, unusual, and
  inhumane treatment or punishment prohibited by
  the Fifth, Eighth, and Fourteenth Amendments to
  the Constitution of the United States, as defined
  in the United States Reservations, Declarations
  and Understandings to the United Nations
  Convention Against Torture and Other Forms of
  Cruel, Inhuman or Degrading Treatment or
  Punishment done at New York, December 10, 1984.

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DTA Section 1004

• Protection of United States Government Personnel-
  In any civil action or criminal prosecution
  against an officer, employee, member of the Armed
  Forces, or other agent of the United States
  Government who is a United States person, arising
  out of the officer, employee, member of the Armed
  Forces, or other agent's engaging in specific
  operational practices, that involve detention and
  interrogation of aliens who the President or his
  designees have determined are believed to be
  engaged in or associated with international
  terrorist activity that poses a serious,
  continuing threat to the United States, its
  interests, or its allies, and that were
  officially authorized and determined to be lawful
  at the time that they were conducted,
• it shall be a defense that such officer,
  employee, member of the Armed Forces, or other
  agent did not know that the practices were
  unlawful and a person of ordinary sense and
  understanding would not know the practices were
  unlawful.
• Good faith reliance on advice of counsel should
  be an important factor, among others, to consider
  in assessing whether a person of ordinary sense
  and understanding would have known the practices
  to be unlawful. Nothing in this section shall be
  construed to limit or extinguish any defense or
  protection otherwise available to any person or
  entity from suit, civil or criminal liability, or
  damages, or to provide immunity from prosecution
  for any criminal offense by the proper
  authorities.

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Theoretical Questions

• Is the Geneva Conventions, and other similar
  conventions, obsolete in a world of WMDs and a
  world of numerous terror organizations, not only
  willing, but actually desiring to use them?
• Would the Geneva Conventions be sufficient if
  only they were enforced against the enemies of
  the west? How do you get our enemies to wear
  uniforms, not attack civilians, use civilians as
  human shields, etc., especially when they have no
  fear that the West will torture, attack
  civilians, etc.?

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