Volume 43 | Number 1 Fall 2007
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III. Unlawful Enemy Combatants as a Question of War, Crime, and Source of Law
A. The Law of War
The U.S. government’s decision to cast its fight against terrorism as a war rather than a prosecution of transnational crime represented a break from the traditional approach to terrorism. War has long been seen as the province of sovereign states, and governments have sought to deny terrorists the status of warriors by describing them as criminals. Indeed, most assumed that the law of war simply did not apply to terrorist activities. The United Kingdom, for example, stated when ratifying Additional Protocol I that “it is the understanding of the United Kingdom that the term ‘armed conflict’ of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation.”34 The vehemence with which Kalid Shaikh Mohammed described himself as a military commander at his CSRT represents precisely the kind of claim the traditional treatment of terrorism was designed to forestall.35
Nevertheless, the U.S. administration has responded to the events of 2001 by using military force, and this approach has been endorsed—at least in part—by all three branches of the U.S. government,36 as well as by the United Nations Security Council.37 other international organizations38 and nation-states.39 In the debate over the MCA, Senator McConnell declared that “[w]e are a Nation at war . . . We are not conducting a law enforcement operation against a check-writing scam or trying to foil a bank heist.”40 The President has consistently claimed authority under the commander-in-chief powers of the U.S. Constitution and justified his actions with respect to the laws of war. The Supreme Court’s endorsement of the treatment of unlawful enemy combatants hinges directly on the Authorization to Use Military Force and the traditional practices of the law of war.41
In many ways, however, the Bush Administration’s legal strategy with respect to the war on terrorism moves freely between the law of war and criminal paradigms, seeming to choose whichever imposes the fewest legal restrictions. This phenomenon is most obvious when considering the classification of detainees exemplified by the definition of unlawful enemy combatant.
A fundamental principle of the laws of war lies in the distinction between combatants and civilians. The traditional law of international armed conflict assumes that individuals are either combatants entitled to prisoner-of-war status or that they are civilians. As the Commentary to the Fourth Geneva Convention notes,
[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, [or] a civilian covered by the Fourth Convention . . . . There is no intermediate status; nobody in enemy hands can be outside the law.42
The Law of War Handbook issued by the U.S. Army’s Judge Advocate General’s School similarly states, “[a]nyone not qualifying as a combatant, in the sense that they are entitled to PW [prisoner of war] status upon capture, should be regarded as a civilian.”43 Additionally, civilians lose their protected civilian status only “for such time as they take a direct part in hostilities.”44 This statement is widely viewed to constitute customary international law.45
As described above, none of the definitions for unlawful enemy combatant (with the exception of that used in Hamdi) employs this law of war standard. Instead, as described further below, they rely much more heavily on concepts imported from domestic criminal law, particularly conspiracy and aiding and abetting. The process for determining unlawful enemy combatant status also departs from the law of war. The CSRTs, for example, do not have the legal authority to declare that any of the combatants are prisoners of war. The detainees must be judged either illegal combatants who may be detained indefinitely or innocent civilians who must be released immediately.46 While the officers at the CSRTs inform the detainees before the proceeding that “this is not a criminal trial and the Tribunal will not punish you, but will determine whether you are properly held,”47 the definition used to determine the propriety of that detention has little resemblance to that of the law of war.
In addition, it is noteworthy that the Administration has made little attempt in litigation to fit its understanding of unlawful enemy combatant within contemporary international law of war. Some recent judicial decisions affirming the government’s treatment of unlawful enemy combatants do not even directly examine whether or not the individual is properly classified as a combatant.48
A final area in which the treatment of unlawful enemy combatants seems to depart from the law of war lies in the stated purpose of detention. As the plurality noted in Hamdi, the purpose of detention under the law of war is to prevent combatants from rejoining the battlefield.49 The Hamdi opinion pointedly stated that “we agree that indefinite detention for the purpose of interrogation is not authorized.” 50 Indeed, the Geneva Conventions provide that prisoners of war51 and civilians52 may not be subject to coercive interrogation. Nevertheless, the importance of securing vital information has served as a principal justification by the Bush Administration for the decision to classify terrorists as unlawful enemy combatants. For example, immediately after it was announced that Jose Padilla had been detained as an unlawful enemy combatant, Secretary Rumsfeld stated:
we are not interested in trying him at the moment; we are not interested in punishing him at the moment. We are interested in finding out what he knows. Here is a person who unambiguously was interested in radiation weapons and terrorist activity, and was in league with al Qaeda. Now our job, as responsible government officials, is to do everything possible to find out what that person knows . . . .53
The Geneva Conventions bar coercive questioning of prisoners of war and civilians. Rumsfeld’s promise “to do everything possible” suggests a willingness to go beyond merely posing questions to Padilla. Such sentiments seem much more appropriate to a criminal investigation than to the law-of-war justifications for detention of combatants, although there are significant constitutional restraints on the government’s ability to use coercion in criminal cases as well.
B. The Law of Crime
In contrast to the somewhat tenuous connection between the law of war and the classification and treatment of unlawful enemy combatants, there are strong parallels to the criminal law concepts of conspiracy and aiding and abetting. The CSRT definition of unlawful enemy combatant includes any individual “who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.”54 The extension of the definition to “associated forces” suggests that it may apply to any individual that directly aids a group that itself assists al Qaeda in some fashion.55 The organizational structure of terrorist groups makes this definition of enemy combatants particularly expansive. Most experts agree that terrorist organizations exhibit a network-like structure.56 The indictment of Zacarias Moussaoui, for example, asserts that
[a]l Qaeda functioned both on its own and through some of the terrorist organizations that operated under its umbrella, including Egyptian Islamic Jihad . . . the Islamic Group . . . and a number of jihad groups in other countries, including the Sudan, Egypt, Saudi Arabia, Yemen, Somalia, Eritrea, Djibouti, Afghanistan, Pakistan, Bosnia, Croatia, Albania, Algeria, Tunisia, Lebanon, the Philippines, Tajikistan, Azerbaijan, and the Kashmiri region of India . . . .57
This description could easily be characterized, in American-law terms, as a far-flung conspiracy.58 The gravamen of the liability is associational, and it is legally permissible (if somewhat controversial) to allege conspiracies of wide scope.59 Indeed, most indictments in U.S. criminal courts for international terrorism include at least one conspiracy charge,60 and many of the charge sheets in the military commissions (before they were struck down in Hamdan) also contained a conspiracy count.
The more recent formulations of unlawful enemy combatant demonstrate even more clearly the links between criminal law principles and the concept of unlawful enemy combatant. The definition of unlawful enemy combatant in the MCA borrows the concept of “material support” directly from a provision in the federal criminal code, 18 U.S.C. § 2339A. The legislative history of the MCA demonstrates that, with the broader definition of unlawful enemy combatant, supporters of the bill sought to ensure that those who provided logistical or financial support to combatants should be able to be prosecuted.61 While such an extension of the definition of combatantcy has little support in the international law of war, it has a solid foundation in the domestic law of complicity, which targets those who aid and abet the principal perpetrators of crimes.
Indeed, much of the criticism of the evolving definition of unlawful enemy combatant extends precisely to those individuals who would not be considered combatants under the law of war but could be considered complicit in terrorist activities under criminal law principles.62 Much of the support voiced in favor of the MCA was described in terms appropriate to those directly involved in military operations against the United States. Representative Gingrey, for example, said, “I want to remind my colleagues that these detainees . . . are not there because they were caught chewing bubble gum in class, or throwing spitballs. These are very, very bad guys that were caught on the battlefield in Afghanistan. . . .”63 Yet the principal thrust of the changes to the definition of the category in the MCA was to encompass individuals only peripherally involved (if at all) in military actions. Indeed, under the definition of unlawful enemy combatant used in the CSRTS and the MCA, there is no need to demonstrate presence or proximity to any particular battlefield at all.
Finally, the MCA makes both providing material support for terrorism and conspiracy punishable as crimes in the military commissions.64 While Congress’s legal authority to take these steps is uncertain, it highlights the fusion of criminal law principles (exemplified by the criminalization of material support) onto the status-based system of the international law of war, which divides those caught up in war between a relatively narrow category of combatants and a broad residual category of civilians.
C. International or Domestic Law?
From its first use by the Supreme Court in Quirin, the concept of unlawful enemy combatant in the U.S. has been an uneasy mix of international and domestic law. The Quirin court relied on international law to confirm the President’s authority to establish military commissions to try unlawful enemy combatants, even if those combatants were U.S. citizens. Similarly, the plurality in Hamdi relied directly on international law in stating that detention may only last for the duration of active hostilities. In addition, the definition of unlawful enemy combatant the plurality adopted was entirely consistent with the standard set by the Geneva Conventions for when civilians lose their protected status because of direct participation in hostilities.
Nevertheless, it is more accurate to describe Hamdi as a decision rendered “in the shadow of international law.”65 While the decision in many ways paralleled the Geneva Conventions requirements, it did not mandate that the President abide by them. For example, it did not explicitly state that the President could not enlarge the parameters of the concept of unlawful enemy combatant to include individuals that would be considered civilians under international legal principles. The mixed signals sent by the Court with regard to the applicability of limits imposed by international law have provided legal cover for the expansion of the concept of unlawful enemy combatant seen in the CSRTs and MCA.
Other aspects of the Court’s terrorism jurisprudence also make the link to international law difficult to interpret. For example, the Court has never answered the important question of whether it views the war on terrorism as an international or non-international armed conflict, which makes a significant difference in the law of war.66 The status-based scheme for classifying individuals caught up in war set out by the 1949 treaties and Additional Protocol I is less clearly defined in the provisions applicable only to non-international armed conflict. Whether the Court will confront this question in future cases depends, in part, on whether it will hew to the international legal principles that informed the Hamdi and Hamdan decisions.
The definition of unlawful enemy combatant propounded by the President has strayed further and further from its roots in international law. Whether the gulf between the use of unlawful enemy combatant in U.S. law and its international law analogues will widen depends, in part, on the source of authority for its use by the President and the Congress. If the source derives from “longstanding law of war principles” or Congress’s authority to “define and punish . . . offenses against the law of nations,”67 then the term’s increasing idiosyncrasy may matter. If, instead, the Court decides that the President and the Congress are simply exercising the wide latitude afforded to countries under the law applicable to non-international conflicts or some power not derived from international law at all, then the differences may prove less consequential.