the Gitmo Archipelago
Portions of this were posted in a blog I once had in time immemorial. They are still relevant. Also, a certain amount of legal knowledge on the part of the reader is assumed.
Recently more hoopla and mudslinging have arisen over the detainees held at Guantanamo Bay (Gitmo). Most of this surrounds a recent Amnesty International report outlining alleged unjust treatment of the prisoners there. The nature of these alleged injustices are mostly of a legal nature, though allegations of physical and psychological torment have been insinuated as well. From Amnesty International:
The detention camp at the US Naval Base in Guantánamo Bay in Cuba has become a symbol of the US administration’s refusal to put human rights and the rule of law at the heart of its response to the atrocities of 11 September 2001. Hundreds of people of around 35 different nationalities remain held in effect in a legal black hole, many without access to any court, legal counsel or family visits.
As evidence of torture and widespread cruel, inhuman and degrading treatment mounts, it is more urgent than ever that the US Government bring the Guantánamo Bay detention camp and any other facilities it is operating outside the USA into full compliance with international law and standards.
The only issue I am concerned with is whether the continued detention of suspected terrorists in this manner is legal, or whether it constitutes a violation of either US or international law. My first question is a matter of jurisdiction. Should US law apply to all detainees, only those detainees who are US citizens, or none of the above? Also, what are the international and US legal provisions which come into play, and which have precedent? Logically, the latter questions must be addressed first.
The document most prevelant in the determination of a detainees status as either a prisoner of war, an unlawful combatant or simply a prisoner is the Geneva Convention. This is how the Geneva Convention (III) defines a Prisoner of War:
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
Al-Queda by its very nature is outside the scope of this definition because they have no fixed distinctive sign recognizable at a distance; they do not carrying arms openly; and, most importantly, they do not conduct their operations in accordance with the laws and customs of war. They are, by definition, Unlawful Combatants and therefore outside the scope of the treaty. By failing to protect unlawful combatants, the signatories to the treaty consciously sought to discourage this activity.
Unlawful Combatants have traditionally been subject to summary execution or trial before military tribunal. Moreover, the fact that an unlawful combatants has not successfully carried out either their intended strikes or entered an active theatre of operations, such as the continental United States, does not exempt them from prosecution as unlawful combatants. The judicial precedent for this is Ex parte Quirin, 317 U.S. 1, 38, in which Nazi saboteurs were apprehended on US soil during WW2. Here is a portion from the opinion of the Court:
"The offense was complete when with that purpose they entered -- or, having so entered, they remained upon -- our territory in time of war without uniform or other appropriate means of identification."
In that case, the judicial precedent most cited was Ex Parte Milligan, which many may remember from studies of the Civil War. The Justices in Quirin found Milligan to be less than applicable, because that case involved an Indiana man whose US citizenship was unquestioned. However, despite the unsuccessful citation of Milligan, I believe significant legal points exist in that century old decision, namely the determination of the point at which the Laws of war (laws which, like war, are meant to be temporary) cease to apply. During the US Civil War, Lincoln suspended the writ of Habeus Corpus, the only president to ever do so. This suspension was widespread, and was not limited to specific cases as it seems to be today. In 1864, cases still pending and prisoners still held without trial or charges were then determined to be under civilian law, now that the war was over. Ex parte Milligan was the linchpin in this legal determination.
From Milligan:
We submit that a person not in the military or naval service cannot be punished at all until he has had a fair, open, public trial before an impartial jury, in an ordained and established court, to which the jurisdiction has been given by law to try him for that specific offence.
The writ of Habeas Corpus, and its suspension are outlined in Article 1, section 9, of the Constitution
"The privilege of the Writ of Habeas Corpus may not be suspended, unless in cases of rebellion or invasion the public safety may require it"
The flaw I see in Quirin (and in the writings of those who defend Quirin) is circularity. We are told that a prisoner is not entitled to trial by jury because he is an unlawful combatant. The prisoner denies the charge and demands his constitutional rights so that he can establish his innocence. The government responds by diverting the case to a military tribunal. And, we are told, the subsequent conviction confirms the fact that the prisoner is ineligible to appeal his sentence to the civilian court system. That is like saying that a convicted rapist should not be given a DNA test because he is a convicted criminal.*
In so far as US citizens are concerned, the law seems quite clear to me. So long as we recognize that such citizens are not declared citizens of any other nation (the nation of Islam withstanding), then it appears to me Article 6, section 2 of the Constitution supersedes the Geneva Convention when dealing with US citizens on US soil (especially if their crimes were committed on said soil).
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding
If a treaty is signed which contains provisions which are unconstitutional, then except for acts not committed on US soil, or US citizens not in the custody of the US government, the Constitution should and does have supremacy. Therefore, such as in the case of Jose Padilla, the fifth amendment would then apply.
If the question of jurisdictional authority over US citizens is answered, then the only issue left to determine is whether non-citizens are entitled to US constitutional protections. I believe, in the case of the detainees at Gitmo they are. I have two reasons for this; jursidiction and civil liberty. In the case of the latter, I do not believe any one nation should have the right to indefinitely imprison anyone without a public trial of any sort. Temporary imprisonment without a Writ of Habeas Corpus I believe is necessary in war to protect the war effort, but eventually there must be some judicial review, or the worst case scenario of random imprisonment of the innocent might well become reality. The only reason I can see for a reluctance to publicly prosecute during a time of relative peace (the "war" on terror not withstanding) is because there is a lack of evidence to convict. While I am sympathetic with this plight, I believe a legal compromise can be made that both protects the rights of non-US citizens, and protects us from the premature and inadvisable release of criminals simply due to insufficient evidence or a technicality. This solution is to create an international military review board, so that more than one nation can determine the fate of these individuals in a legal manner befitting the nature of their imprisonment. Amazingly, such an idea already exists, and is in fact a part of the Geneva Convention (III) Article 5:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
Ultimately I would like to believe that cooler heads will prevail, but when we are dealing with terrorism and mass murder, that (understandably) does not often seem to be the case.
*paraphrased from Thomas Lynch
Recently more hoopla and mudslinging have arisen over the detainees held at Guantanamo Bay (Gitmo). Most of this surrounds a recent Amnesty International report outlining alleged unjust treatment of the prisoners there. The nature of these alleged injustices are mostly of a legal nature, though allegations of physical and psychological torment have been insinuated as well. From Amnesty International:
The detention camp at the US Naval Base in Guantánamo Bay in Cuba has become a symbol of the US administration’s refusal to put human rights and the rule of law at the heart of its response to the atrocities of 11 September 2001. Hundreds of people of around 35 different nationalities remain held in effect in a legal black hole, many without access to any court, legal counsel or family visits.
As evidence of torture and widespread cruel, inhuman and degrading treatment mounts, it is more urgent than ever that the US Government bring the Guantánamo Bay detention camp and any other facilities it is operating outside the USA into full compliance with international law and standards.
The only issue I am concerned with is whether the continued detention of suspected terrorists in this manner is legal, or whether it constitutes a violation of either US or international law. My first question is a matter of jurisdiction. Should US law apply to all detainees, only those detainees who are US citizens, or none of the above? Also, what are the international and US legal provisions which come into play, and which have precedent? Logically, the latter questions must be addressed first.
The document most prevelant in the determination of a detainees status as either a prisoner of war, an unlawful combatant or simply a prisoner is the Geneva Convention. This is how the Geneva Convention (III) defines a Prisoner of War:
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
Al-Queda by its very nature is outside the scope of this definition because they have no fixed distinctive sign recognizable at a distance; they do not carrying arms openly; and, most importantly, they do not conduct their operations in accordance with the laws and customs of war. They are, by definition, Unlawful Combatants and therefore outside the scope of the treaty. By failing to protect unlawful combatants, the signatories to the treaty consciously sought to discourage this activity.
Unlawful Combatants have traditionally been subject to summary execution or trial before military tribunal. Moreover, the fact that an unlawful combatants has not successfully carried out either their intended strikes or entered an active theatre of operations, such as the continental United States, does not exempt them from prosecution as unlawful combatants. The judicial precedent for this is Ex parte Quirin, 317 U.S. 1, 38, in which Nazi saboteurs were apprehended on US soil during WW2. Here is a portion from the opinion of the Court:
"The offense was complete when with that purpose they entered -- or, having so entered, they remained upon -- our territory in time of war without uniform or other appropriate means of identification."
In that case, the judicial precedent most cited was Ex Parte Milligan, which many may remember from studies of the Civil War. The Justices in Quirin found Milligan to be less than applicable, because that case involved an Indiana man whose US citizenship was unquestioned. However, despite the unsuccessful citation of Milligan, I believe significant legal points exist in that century old decision, namely the determination of the point at which the Laws of war (laws which, like war, are meant to be temporary) cease to apply. During the US Civil War, Lincoln suspended the writ of Habeus Corpus, the only president to ever do so. This suspension was widespread, and was not limited to specific cases as it seems to be today. In 1864, cases still pending and prisoners still held without trial or charges were then determined to be under civilian law, now that the war was over. Ex parte Milligan was the linchpin in this legal determination.
From Milligan:
We submit that a person not in the military or naval service cannot be punished at all until he has had a fair, open, public trial before an impartial jury, in an ordained and established court, to which the jurisdiction has been given by law to try him for that specific offence.
The writ of Habeas Corpus, and its suspension are outlined in Article 1, section 9, of the Constitution
"The privilege of the Writ of Habeas Corpus may not be suspended, unless in cases of rebellion or invasion the public safety may require it"
The flaw I see in Quirin (and in the writings of those who defend Quirin) is circularity. We are told that a prisoner is not entitled to trial by jury because he is an unlawful combatant. The prisoner denies the charge and demands his constitutional rights so that he can establish his innocence. The government responds by diverting the case to a military tribunal. And, we are told, the subsequent conviction confirms the fact that the prisoner is ineligible to appeal his sentence to the civilian court system. That is like saying that a convicted rapist should not be given a DNA test because he is a convicted criminal.*
In so far as US citizens are concerned, the law seems quite clear to me. So long as we recognize that such citizens are not declared citizens of any other nation (the nation of Islam withstanding), then it appears to me Article 6, section 2 of the Constitution supersedes the Geneva Convention when dealing with US citizens on US soil (especially if their crimes were committed on said soil).
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding
If a treaty is signed which contains provisions which are unconstitutional, then except for acts not committed on US soil, or US citizens not in the custody of the US government, the Constitution should and does have supremacy. Therefore, such as in the case of Jose Padilla, the fifth amendment would then apply.
If the question of jurisdictional authority over US citizens is answered, then the only issue left to determine is whether non-citizens are entitled to US constitutional protections. I believe, in the case of the detainees at Gitmo they are. I have two reasons for this; jursidiction and civil liberty. In the case of the latter, I do not believe any one nation should have the right to indefinitely imprison anyone without a public trial of any sort. Temporary imprisonment without a Writ of Habeas Corpus I believe is necessary in war to protect the war effort, but eventually there must be some judicial review, or the worst case scenario of random imprisonment of the innocent might well become reality. The only reason I can see for a reluctance to publicly prosecute during a time of relative peace (the "war" on terror not withstanding) is because there is a lack of evidence to convict. While I am sympathetic with this plight, I believe a legal compromise can be made that both protects the rights of non-US citizens, and protects us from the premature and inadvisable release of criminals simply due to insufficient evidence or a technicality. This solution is to create an international military review board, so that more than one nation can determine the fate of these individuals in a legal manner befitting the nature of their imprisonment. Amazingly, such an idea already exists, and is in fact a part of the Geneva Convention (III) Article 5:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
Ultimately I would like to believe that cooler heads will prevail, but when we are dealing with terrorism and mass murder, that (understandably) does not often seem to be the case.
*paraphrased from Thomas Lynch