"Enemy Combatants" and "Military Commissions"

 I am puzzled.

If "enemy combatant" is a term that denotes a captured person as someone to be held indefinitely pending the end of hostilities does that not make this person subject to the international law of war, the law covering prisoners of war?  

Prisoners of war are not criminals.  Acts of war do not make them criminals   Prisoners of war are not tried for anything unless they have violated the law of war or have broken a law after capture, for example, murder of a guard in an attempt to escape.  If they are tried for something like that then they have to be tried under the military law of the detaining power and if convicted punished as a member of that country's armed forces would be punished.  Such persons could not be tried before anything other than a court-martial.

I hear the mob crying out for the trial of captured terrorists before military commissions.  Why not courts-martial or civilian courts?  Is it because the mob imagines that military commissions will function as "kangaroo courts" ignoring due process and the rules of evidence?  Is that why?

Is it because the mob thinks that the officers who would serve on military commissions would ignore the evidence of coercion of confessions and torture?  If the mob thinks that, then they are fools who hope for national disgrace.

Better to treat our enemies as "common criminals" and try them in Article Three courts or to hold them indefinitely without trial as detainees under the law of war.  pl 

Comments

[confusedponderer]

The label 'enemy combatant' was about obfuscation right from the start. In that the use of the phrase was very successful and the intended confusion lingers on.

International humanitarian law hadn't heard of the 'enemy combatant' until a US administration lawyer, presented this new category to which, conveniently, traditional rules can't apply. Conveniently, because they then went on to claim they wouldn't need to heed Common Article 3 of Geneva III and IV prohibiting abuse torture and the like.

That argument is of course bullsh*t. There is no third category 'enemy combatant' outside Geneva rules. The Geneva rules are all encompassing. Either a person is a civilian or a soldier. If a civilian commits acts of terror the person is a criminal. Very simple.

The Bushies just made up the 'enemy combatant' for expediency, because they had tortured and wanted to continue to torture and needed legal cover for that. Cheney practically admitted that when he said that the desired result drove the conclusion of the legal advice.

[Bobo]

Fully agree. Our politicians are making a mockery of our basic beliefs in their one-upmanship games.

Our Justice Department and Judge Advocate Corp are well behind the cutrve in sorting out who is a criminal and who is an enemy combatant in Guantanamo and getting on with the proper course of action for these individuals.

The next generation will be looking back on our actions as a very dark moment in our history.

[Ronald]

Pat,

It seems these terrorists would like nothing better than to be seen as 'soldiers' for some larger cause. For the reasons you cite, we should treat them as criminals.

I trace this enthusiasm for militarizing the prosecutions to a failure of leadership in the days after 9/11 when the Vice President advocated a move to the "dark side." At the very moment when our traditional commitment to the law should have been seen as a source of strength, it was seen by Bush/Cheney as weak and as no longer convenient. Now, the GOP in this country has a near-disdain for the rule of law. How else, for instance, can you explain the former Vice President proudly claiming to be a war criminal (specifically, a "big supporter of waterboarding")?

We have always had a mob, but usually the mob mentality was not well represented in the White House.

[walrus]

Col. Lang,

If you are referring to "The Mob" as Neocons calling for trials before Military Commissions. I thought they were banking on:

(1) Arranging the rules of the Commission to avoid having to consider issues of coercion and hearsay in weighing the evidence.

(2) Finding sufficient "Kool Aid" drinkers to staff it. There is some evidence that such persons exist in the Military Justice system, witness at least one resignation of a military defence Lawyer, whose name I forget, who apparently proved too vigorous in defending his clients for his senior officers tastes.

I would however like to think that President Obama would not stoop to such tactics these days.

My own opinion is that treating jihadists, as opposed to taliban caught on the field of battle, as common criminals to be brought in front of the ordinary courts of the land is a far better strategy because it demonstrates our strength of purpose and our forbearance.

Five Lebanese "Australians" yesterday received from Seventeen to Twenty Seven years for forming a jihadist cell and planning and preparing a major attack. Call it a little domestic "Nation Building". Let's see if they are still Jihadists in Ten years time.

http://www.abc.net.au/news/stories/2010/02/15/2819965.htm?section=justin

[Ken Roberts]

Yes, of course. The entire "terrorism" narrative of the past 8.5 years should have been, and still should be, treated as the aprehension of criminals and prevention of potential crimes. Which there is an existing legal context. If the magnitude of a law enforcement task needed / needs a military scale of operations from time to time, then the military should be acting under within the context of secondment to civilian law enforcement. A gang of 100 some criminals in Afghanistan does not need an army of 100k+ to deal with. But little of the past decade has been based on law, written or common.

[Patrick Lang]

oh, toothed one.

No. I mean "la foule." Greywolf challenged me in an unpublished comment as to what I meant by "elitist" as a refereance to me. I meant the contempt of people like me for people like him and the Tea Bagger proto-fascists. pl

[ServingPatriot]

COL,

As CP notes above, "enemy combatant" is/was designed by poor lawyers (not JAGs) to hide the truth of what the capturing power was really doing, to wit, willfully violating the Geneva Conventions.

I seem to recall a certain lawyer, later the US Attorney General, describing the GC as "quaint" or some such.

As to your question: s it because the mob imagines that military commissions will function as "kangaroo courts" ignoring due process and the rules of evidence?

Yes.

Sadly.

SP

[The Twisted Genius]

Amen to that!

Judge William Young stated this sentiment most eloquently when he sentenced Richard Reid in 2003. In my opinion, Judge Young's statement is one of the finest statements of American values and ideals I have heard in my lifetime.

I think the whole "war on terror" meme and everything that goes with it is the product of self-serving thugs seeking to cow the American people into submission and reallocate resources to suit their own agenda.

As Americans, we have to stand for what's right. That's why many of us feel we are exceptional. Of course this is not a universally held sentiment, but it's one by which I abide. My SF team often discussed the situation in which we could be faced with either killing an innocent child and preserving our own lives and mission or letting the child live and probably losing our lives and compromising the mission. We decided we would rather die and compromise the mission rather than willingly take innocent life. Innocents die in wars and that's an inescapable fact. We never actually had to face this dilemma, so what we would actually do will forever remain unknown. But, as the song goes I would like to think that we were "men who mean just what we say."

Hallelujah! Holy shit! Where's the tylenol?

[shortwall]

Colonel Lang,

You have every right to be puzzled. The rest of the world certainly hasn’t been able to figure out what the US is trying to do in this area.

The term "enemy combatant" refers to an individual who may or may not be protected by the Geneva Convention. (A better characterization would be to use "privileged" or "unprivileged belligerent” to denote whether or not the combatant is entitled to the protections/privileges of the GC.) Using such a poorly understood and little recognized term as enemy combatant allows the user maximum flexibility in its application. It can mean whatever the user claims it means. Nonetheless, individuals who participate in armed conflict and operate outside the laws of war can be both tried for their violation of international law and classified as belligerents who can be held until the conflict is over. As they are not entitled to POW status, the only protection they are due under the GC is Common Article 3, the prohibition against cruel, degrading, and inhumane treatment.

Prosecuting someone for violations of the laws of war is not a common occurrence in American civilian courts. In contrast, the US has a long history of using military commissions for violations of the law of war. The use of military commissions and their associated processes seeks to build upon this history in a way that would presumably allow enemy combatants to be judged by those more familiar with the laws of war and the exigencies of the battlefield, especially as concerns the less pristine nature of evidence collected in such an environment, to include highly classified intelligence.

But in my opinion the use of military commissions to try terrorists is strategically flawed. Besides the idea that terrorists do not deserve to be elevated to practically the same level as professional soldiers, the Military Commissions Act does not appear to apply to US citizens: “Sec. 948c. Persons subject to military commissions - Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.” (The issue here is the word “alien.”) While there is some debate over the Constitutionality of some parts of the MCA as it might be applied to US citizens, it appears clear that the practical aspects would almost certainly mean that any American al Qaeda member caught and brought to justice would land in an Article III court.

So imagine this not far-fetched scenario: in Operation Underwear II, terrorists who have learned the lessons of the first such attempt ensure they have redundancy. But the radicalized British would-be suicide bomber in coach is subdued at the same time his Somali-American compatriot in first class is overwhelmed by alert passengers. So now we try the Brit in a military commission but prosecute the US citizen in an Article III court. We are saying to our closest counter-terrorism partner (and the rest of the world) that the justice mechanism we apply to their citizens is not good enough for Americans. What kind of a message will that send? Who thinks such an approach is the best way to encourage intelligence sharing or that it will promote the development of a broadly shared strategic approach to a global menace? It is disgraceful that partisan political objectives seem to be driving the train on the issue of prosecuting terrorists.

[ISL]

Dear Colonel, you nailed it on the head.

The jihadists never were/are not a real threat to the US, our economy is extremely robust to that kind of damage. Self inflicted damage is a whole other story. One would hope that politicians calling for mob justice will regret the day, but IMHO that describes a different world from the one we live in.

[Rider]

confusedponderer is dead right; not confused at all. Gitmo was located offshore in order to escape the Constitution and Bill of Rights, and the term "enemy combatant" was concocted to escape Article 3 and the UCMJ. In other words, Gitmo was to be a Constitution-free zone as well as an Article 3-free zone. The goal was to set up an interrogation camp such as the Nazis operated and which were outlawed after WW II when the Geneva Conventions were drafted in 1949.

Col. Lang your instincts are right about what "the mob" is after and the term is apt as well. Their fantasy is something like the executions of the German saboteurs who were captured in 1942. Those were legal at the time, but they happened before the Conventions were written and before the Supreme Court's rulings on the Gitmo tribunals in 2006 and 2008. Sorry to say, it looks like Lindsay Graham and Dick Cheney are rolling Obama on this one. Inexplicable.

[JP]

Ah, it's all clear now, if that is what elitist is, please sign me up. If this interpretation catches on as me move farther along in this pas de deux with the teabaggers and other nutjobs I fear there will be lots of "elitists." Will that pervert the meaning of the term?

[ked]

It astounds me that conservative Americans are being taken in by the neocon narrative on civil vs military routes to justice.

The last thing we need is to burden the DoD with further expansion of civil justice functions. And we will surely see cases where natural-born US citizens will be tried in military courts whenever the government asserts "they're terrorists" (eventually including cases that aren't terrorism, but shifted there for the usual expediency, grandstanding & turf competition reasons). Just great for maintaining the ingenious balance we've achieved between civil politics & our military.

And what does it imply about our citizens & civil institutions? It's obvious - the polity can't be trusted, are incompetent, not capable of administering justice.

No traditional Conservative would tolerate it - but there aren't many left, evidently.

Underneath it all, the neocons, radical right & Christianists believe they "own" the military & can operate an effective shadow state within it. It is insideous at best, treasonous at worst.

[confusedponderer]

Rider,
I can't recall it seems, was it Keitel or Gonzales who called Geneva 'quaint and obsolete'?

I remember my anger at the brazenness of the Bush approach when some administration figure on tv flatly claimed that they couldn't do anything about alleged abuses in Gitmo because it wasn't under US jurisdiction, as it was part of Cuba. I wonder, what kept them from blaming Fidel Castro then?

So we have a military base loaned to the US, a base that is under authority of the 'Commander in Chief' no less, commanded by a US general, probably with a Burger King and Wendy's and all the other blessings of American civilisation, but sadly - no jurisdiction. Someone must have forgotten to put that into the package it seems.

It has always puzzled my why nobody bothered to try reconcile that claim with the relevant provisions in §§ 2340A, 2441 US code. Scariest thing of all is that nobody in the media called them out on that. The Bushies got away with it through sheer impertinence.

In the end what the Bush lawyers did was to build a frivolous 'onion defence':

We don't have jurisdiction.
Well, you do.
Ok, I disagree with that, but Geneva doesn't apply to enemy combatants.
Well, there is no enemy combatant, and Geneva does apply.
Ok, I disagree with that, but we didn't torture them.
Well, you did.
Ok, I disagree with that; maybe we slapped them around a bit, but water boarding is more like frat hazing, not like real torture, so it isn't a grave breach.
Well, it is torture, and it thus is a grave breach.
Ok, I disagree with that, but torture yielded important information that saved American lives, isn't it then justified?
... etc. pp.

The 'I disagree with that' part is crucial, as it allows to claim that there are two sides of this story, and portray it falsely as a difference of opinion, with the avid help of the goons at FOX and their apologists elsewhere, and to reduce the debate to a partisan he-said, she-said.

All the layers of argument are nonsense of course. The Bush lawyer claims fly in the face of 50 years state practice. There is no reasonable basis for a difference of opinion.

[William R. Cumming]

ConfusedPonderer and ServingPatriot have correctly hit the nail on the head already pounded in by PL. But hey for good measure let US review the Oath of Office for POTUS, and there is some indication that recent President's and VP took a variation of tis oath. Why is this important because "Protecting the American People" is implied but not in the oath. The Oath in Article II, Section 1, last paragraph reads: "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States". IN many meetings in my time with high-level DOJ officialdom I had to remind all that the Constitution was not waivable in any circumstance. Sometimes did draw glares but more often drew heads shaking in agreement.

[DaveGood]

The term "Enemy Combatant" has no legal force whatsoever, it was invented by neo-con lawyers who dared the rest of us to challenge it.

Sadly almost no-one in the USA did.

DaveGood

[robt willmann]

Since law deals only with words and is mostly vocabulary, if we do not keep our eye on that ball, it will be used to destroy freedom, not help ensure it, as all governments -- federal, state, and local -- claim a monopoly on force and violence to get people to comply with their demands.

To play the game, you create a new concept or label, and definition, or try to redefine one in an existing law. And so it has been in the propaganda and perception management operation against the American people after September 2001. A new product was rolled out called "terrorism", a concept designed to get people to think it was bad conduct separate from the only other concept permitting a government's use of force or "police power" against individual persons or non-governmental organizations, the concept known throughout history as "crime".

Although neither Afghanistan nor Iraq were imminent, clear and present dangers to the United States, full-blown military invasions were launched against both to topple their governments, an activity usually described as "war". This created some big fat problems for the countries doing the invading, regarding long-time rules about handling prisoners and something the U.S. signed called the Geneva Conventions.

But since law deals only with words, anything is possible. So the perpetrators of the invasions sat around and created a new label out of thin air called "enemy combatant", as accurately described in previous comments by confusedponderer and Rider. Knowing that this phony label would draw lawsuits, the Bush jr. and now Obama administrations were and are not worried because they also know how the U.S. federal court system is structured and operates, and there is always a chance that one or more federal courts, and the U.S. Supreme Court, may validate the concept of "enemy combatant" rather than completely repudiating it, and then the perpetrators of this legal fraud are home free, the prisoners are not, and some "new law" has been made. And besides, all the litigation takes years, during which time the illegal detention and torture can continue merrily on, and has.

Just ask Jose Padilla, the U.S. citizen taken into custody in the continental U.S., placed in a military jail without charges for years, and who received "no touch" torture while detained. When finally the U.S. Supreme Court said it would agree to hear his case, the executive branch immediately transferred him to the federal court system and charged him with a crime, and the Supreme Court disgracefully declared his appeal moot and declined to hear it. Did the federal trial court then dismiss Padilla's criminal case because of the prior governmental misconduct, which it could have done? Of course not.

The bizarre trial of Dr. Aafia Siddiqui in federal court in New York concluded about a week and a half ago. Educated at MIT with a PhD from Brandeis University, Dr. Siddiqui was described as an al-Qaeda operative and facilitator by the FBI director in 2004. However, she was not charged with any so-called "terrorism" offenses. Rather, she was charged with trying to kill U.S. soldiers and FBI agents in a 300 square foot room in a police station in Ghazni, Afghanistan, where she was taken into custody under disputed circumstances. The government's story was that she picked up an M4 rifle a soldier left lying in the police station room, and fired two shots, hitting no one. She was then shot twice in the abdomen, but lived. No bullets or shell casings were collected from the room, and no residue was found on the rifle, nor were her fingerprints, indicating that the rifle had not been fired by her. A video taken at an earlier date showed that two holes in the wall alleged to have been caused by the rifle firing had already been there before the date of the incident. Nevertheless, she was found guilty. Would a jury of military officers have found her guilty on that evidence? An intriguing question.

So the federal criminal "justice" system is not necessarily a favorable place to be for a defendant, although it is better than the structure of the military commissions, which were designed to make rules of procedure and evidence even weaker than they are in federal court.

Of interest, though, is that the Uniform Code of Military Justice (UCMJ) contains protections not found in the federal court system in criminal cases. The Article 32 investigation allows the accused and a representative to participate in the required investigation before a charge is referred to a court-martial for trial, whereas in a civilian criminal case, the grand jury issuing the charge is the exclusive province of the prosecutor, and, as the old saying goes, you can get a federal grand jury to indict a ham sandwich, and you find yourself facing a trial with little knowledge of the facts underlying the accusation. Article 49 permits the parties in a UCMJ proceeding to take depositions after the charge has been signed, unless prohibited after a showing of good cause, something not provided for in the federal rules of criminal procedure.

Although I know very little about the application of the UCMJ, having never watched or been involved in a proceeding, there is a curious section in it, if the version I saw is current, as Article 18 (Title 10, United States Code, section 818), that says, in part, "General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war."

Unfortunately, the UCMJ appears to allow decisions by a less than unanimous verdict, except in death penalty cases, but provides for the vote to be by secret ballot, a notable difference from civilian courts.

Since none of the "detainees" is a physicist like Richard Feynman, who worked on the atomic bomb, or has demonstrated leadership of armies like General George Patton (Gen. Petraeus sure is no Patton!), all the hoopla and propaganda and legal fakery about them has no basis in reality except to try further to advance an autocratic central government in the U.S.A.

For those swept up and detained under who knows what circumstances, their most constructive status might be as actual prisoners of war if they were treated as such, and they could just wait it out until a sane president declared that the "hostilities", which never truly existed, no longer existed. Or maybe they might take their chances with a trial under the UCMJ, if they could get one, since Usama bin Laden's alleged driver, bodyguard, and weapons courier was found not guilty of conspiracy, usually the easiest thing to convict someone of, by a military commission jury, and then sentenced by that jury to 66 months in jail on the other charges, knowing he had credit for 61 months already. The conspiracy charges of which he was acquitted included being responsible for September 11 and other al-Qaeda acts.

In the State of Texas, an accused can still, before trial, decide whether, if found guilty, he wants to be sentenced by the judge or by a jury. Under the UCMJ, it seems, the jury also decides the sentence. Not so in federal criminal cases. Only the judge in the black dress gets to do that. And even though the Soviet-style Federal Sentencing Guidelines were finally after many years ruled to be "advisory" by the Supreme Court, they still seem to be followed much or most of the time by federal judges.

So, you see, the Obama administration is not necessarily doing the defendants any favors by putting them into the federal criminal justice system. Vice president Joe Biden let the cat out of the bag in his February 14, 2010 Meet the Press interview when he declared emphatically that Khalid Sheikh Mohammed, the so-called "mastermind" of the September 11 events, would be found guilty.

He knows whereof he speaks.

[DT]

The Gitmo Uighurs were never even considered "enemy combatants".They've been denied habeas corpus and release into the US. Bermuda, Palau, Albania, Sweden accepted some.

[ServingPatriot]

@robt willmann,

Thanks. Quite well put. And I, for one, appreciate your highlighting of the exceptionally curious case of Dr Siddiqui. I believe there is much, much more to that story, but once again, we see (as in the Padilla case) the government publicly decry grave charges yet change course to prosecute on lesser offenses -- almost certainly to limit defense discovery and protect the very "intelligence" that led to the wild exaggerations in the first place! The DoJ must have made quite a parallel case on KSM so as to avoid all the nasty questions of defense discovery. Of course, it helps to have a defendant committed to public marytrdom and determined to spread his faith.

Also, thanks to CP, rider and shortwall. A citizen could learn more here in a short period than they ever could via the corporate-owned, transcription services that has become our once vaunted "fourth estate."

Most of all, thanks to the Colonel for hosting this salon and committee of correspondence.

SP

[Rider]

Dick Cheney has repeatedly gone on national TV and boasted of committing a war crime. He is a confessed war criminal. So, where do we try him, in a civilian criminal court, or a military tribunal?

[Cold War Zoomie]

It took a long time for me to realize that officers in a court-martial are actually much less eager to throw the book at a transgressor than I assumed.

To say it nicely, my assumption was flawed.

The chances of conviction and long prison terms are probably more likely in civilian courts after juries have been fed a steady diet of fearmongering terrorism horseshite for the last 8 years.

[confusedponderer]

To elaborate on precisely why the Bush lawyers chose the category 'enemy combatant' legally:

The reason becomes very clear when one reads Common Article 3 of Geneva III and IV. It explicitly prohibits maltreatment and torture of civilians and POW's alike.

It is very implausible to argue in face of that that torture is allowed anyway - thus the guys they wanted to torture had to be something else that they called 'enemy combatants'.

That to me has always very strongly suggested that the desired result drove the legal analysis.

That has now been confirmed by Dick Cheney's admission that he has always been a strong supporter of torture, that he from his position at the National Security Council advocated for the use of water boarding and other torture techniques, and that he and his staff were instrumental in steering the legal opinions to be written they way they were.

And to add insult to injury - Cheney has the gall to openly brag about his involvement.

Scott Horton on Harper's yesterday asked: Does Dick Cheney Want to Be Prosecuted?

[ked]

To paraphrase Churchill, the US civil courts deliver the worst form of justice... except for all the rest.

It doesn't matter which approach (civil courts vs military tribunals) gives a "better" outcome, it matters only which system is the appropriately Constitutional one.

As to the consumption of horseshit & outcomes, I'll risk justice via a random selection of avg Americans (& all that it implies) over any star chamber. The process almost works, most of the time... & after all, competition is an American tradition.

Not to mention, it would be nice for the soul of the Nation for the People to get back into the loop (I mean, aside from brewing tea).

[N. M. Salamon]

All:

While within the USA the problem posed by the Colonel is of great significance;' those of us outside of the USA will judge the process as it ends - whether in Criminal Court or in Military run affair.
There is, of course, the small matter of Crimes under the Geneva Convention and the USA War Crimes Act which has many USA citizens involved as possible chargees, such as the last [and perhaps the present] President, the last Vice Presiodent, numereous White House hangers on, Cabinet Officials, some members of the Armed Forces, members of Contracting Parties to Various USA Offices, etc.

So the issue of the "terrorists" and issue of "War Crimes" is all tied together. Constitutional handling of one set without acting on the other set would be indicative of a corrupted Constoitution under the present regime.

Your reply, if any would be wellcome.

For further issues on War Crimes in USA law please peruse:

http://www.nakedcapitalism.com/2010/02/guest-post-cheney-admits-to-being-war-criminal.html

[Redhand]

Sorry to say, it looks like Lindsay Graham and Dick Cheney are rolling Obama on this one. Inexplicable.

Obama has proved to be a moral coward on this issue. He knows better, but finds it politically expedient to equivocate and play games.

"Kingpin terrorists get tried in NYC and small fry get military commissions, no wait, maybe kingpins get tried outside NYC, ah, before, er, military commissions? Say Rahm, what do you think will play in Peoria?"

So much for restoring the rule of law.