Volume 43 | Number 1 Fall 2007
Standards and Procedures for Classifying “Enemy Combatants”: Congress, What Have You Done?
Response: Standards and Procedures for Classifying “Enemy Combatants”: Judiciary, What Have You Done? by Elizabeth A. Hardy
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I. Introduction
As an alumna of The University of Texas School of Law, it is quite an honor to be here—in the month of my ten-year class reunion—addressing an issue that is as contemporary as it is controversial, and which has consumed half of my legal career already. Indeed, it was roughly five years ago (March 2002) that I began representing Kuwaiti citizens detained at Guantánamo. In those early post-9/11 years, our government kept everything about Guantánamo a secret, from who was detained there to how they were treated. Not even the small handful of lawyers representing detainees were allowed to visit or communicate with their clients, who, according to the Administration, had no legal rights under domestic or international law. When I began down this road five years ago, Guantánamo was literally a “legal black hole.”1 The Supreme Court changed much of that in June of 2004 when it ruled in my case, Al Odah v. United States, joined with Rasul v. Bush,2 that the detainees were entitled to bring habeas corpus petitions in federal court to challenge their detention. But after two years of fighting with the government over the meaning of Rasul, Congress abruptly passed the Military Commissions Act of 2006 (“MCA”),3 which ostensibly strips the Guantánamo detainees of the right to challenge any aspect of their detention, including the right to habeas corpus. Remarkably, we are almost exactly where we were five years ago, except that now, Congress has weighed in and approved of Guantánamo as a virtual law-free zone.
What do I mean by “law-free zone”? “Law-free” implies the absence of law. Despite the availability of our great criminal justice system, courts martial, the Constitution, the Geneva Conventions, and other international law treaties under which the U.S. has legal obligations, both the Administration and Congress have declined to apply those legal paradigms at Guantánamo. Yet Congress has approved some type of framework for the continued detention of hundreds of individuals and the potential detention of hundreds more of non-U.S. citizens, including legal U.S. residents, in the “global war on terror.” The fact that some manufactured framework exists, however, does not change Guantánamo’s status as a legal black hole; indeed, the manufactured framework exacerbates the situation by giving the Guantánamo detentions a veneer of legality.
What is the framework Congress has conceived? What are its consequences? And is it the appropriate mechanism for containing and preventing “terror”? To answer these questions and think critically about the concepts that make up that framework—enemy combatant, combatant status review tribunals, military commissions, etc.—let us first consider the larger setting in which they occur, that is, the “global war on terror.” Zbigniew Brzezinski, National Security Advisor to President Jimmy Carter, wrote recently that the “war on terror” has created a “culture of fear in America.” The Bush administration’s elevation of these three words into a national mantra since the horrific events of 9/11 has had a pernicious impact on American democracy, on America’s psyche, and on U.S. standing in the world.”4 Mr. Brzezinski pointed out that the phrase itself is meaningless, defining neither a geographic context nor our presumed enemies, and he went on to state, in the most critical terms, that the “vagueness of the phrase was deliberately (or instinctively) calculated by its sponsors.”5 Mr. Brezinski further noted that the very vagueness of the phrase accomplished one major objective: “[i]t stimulated the emergence of a culture of fear.”6 This, he wrote, was a self-inflicted wound greater than anything imagined by the perpetrators of the 9/11 attacks.7
It is hard to disagree with Mr. Brzezinski. The Guantánamo detentions and other “war on terror” policies, such as extraordinary rendition and “extreme interrogation,” have done little to help stem terrorism—rather, they have fueled it. But, perhaps more significant to our discussion today is his use of the term “vague” to characterize the “war on terror.” For example, exactly who is the “enemy” in this war? Is it al Qaeda, terrorists, unlawful combatants, or all Muslims? Where is the war? Afghanistan, Iraq, the world? How are we fighting it? With weapons, detention, torture? And lastly, when will it end? Secretary of Defense Donald Rumsfeld recognized when he testified before Congress in 2002 that “[t]he war on terrorism began in Afghanistan, to be sure, but it will not end there. It will not end until terrorist networks have been rooted out, wherever they exist. . . . It will not end until our people—and the people of the world’s free nations—can once again live in peace and free from fear.”8
The “war on terror” has been intentionally saturated with language that connotes war, such as “enemy combatant” and “detention,” the meanings and boundaries of which have been left intentionally vague and blurry. Such imprecision has allowed us to largely accept the Administration’s conduct and policies that are associated with these concepts. And so now it seems we use “enemy combatant” and other such phrases in our daily lexicon in the same casual way we use the phrase “global war on terror.” Yet none of these phrases define anything concrete.
The very vagueness of this “war” and its components has led to the effective sanctioning of unchecked arrest and detention. Armed with these meaningless terms, the United States can pick up almost anybody, anywhere in the world, detain them in harsh conditions, and subject them to extreme interrogation for as long as necessary. Thus, the Administration has successfully conceived a “new kind of war” in which it can assert all of the powers associated with the laws of war, but abide by none of its constraints.
To be sure, terrorism is a real threat, and we are in a war of some kind. But as we go forward and analyze these “wartime” concepts and the legislative framework that has been implemented, we ought to think hard about the context in which they occur and how we are defining these concepts. It is easy to suggest that all “enemy combatants” should be “detained” until the end of the “war on terror,” but somewhat more difficult to determine what that suggestion really means. Such a determination is needed before deciding what approach or framework is appropriate.