Terrorism and Political Violence
The Geneva Conventions
International Treaties
Human Rights Accords
Obligations by the US and the West
[Restrictions on how the US can Fight Terror]
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
The Geneva Convention
Who is Covered?
Article 4
1.
Members of the Armed Forces of a party to a conflict & members of
militias or volunteers forming part of such armed forces.
2.
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.
3
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 cobelligerent 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.
Guatanamo Bay (Cuba) Prisoners
5
Prisoners at Abu Ghraib in Iraq
Allegations Against the US for
Violating the Geneva Conventions
Abuse is Investigated
8
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.
9
The Point
“Unlawful Enemy combatants” under US control are not covered
by the Geneva convention.
1.
2.
3.
4.
5.
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.
10
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.
11
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).
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:
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.
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.
Protocol I
Article 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.
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.
Geneva Protocol II
Part II. Humane Treatment [Article 4; Fundamental guarantees], June 8, 1977:
1. 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.).
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.
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.
20
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]
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]
3 Questions Related to Milligan
• 1st: On the facts stated in Milligan’s 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?
23
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.
24
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.
25
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?”
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.
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.
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.
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.
30
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.
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 petitioner’s
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.
32
The Court’s [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].
33
The Quirin Petitioners Lose Their Case
The Court did rule that neither the President’s Proclamation nor the fact
that the petitioner’s 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 defendant’s rights or
protections of the US constitution (especially if they are foreign nonUS citizens, enemy military members, and actively engaged in
warfare activities, even if on US soil.
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).
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.
Hamdi v. Rumsfeld (2004)
After Congress passed a resolution—the 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.
Hamdi’s 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
Hamdi’s 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.
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 Hamdi’s 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
Hamdi’s 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 Government’s
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 “[n]o citizen shall be imprisoned or otherwise detained by the United States
except pursuant to an Act of Congress”— the AUMF’s “necessary and appropriate
force” language provided the sufficient authorization for Hamdi’s detention.
It also concluded that Hamdi is entitled only to a limited judicial inquiry into his
detention’s legality under the war powers of the political branches, and not to a
searching review of the factual determinations underlying his seizure.
38
The US Supreme Court Weighs In
The US Supreme Court overturned the Circuit Court of
Appeals.
JUSTICE O’CONNOR, 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).
39
Justices Souter and Ginsburg Opposed Even the Detention
JUSTICE SOUTER, joined by JUSTICE
GINSBURG, concluded that Hamdi’s
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.
40
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.
41
The ruling was a very limited victory for Hamdi
Hamdi’s 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) “[t]o 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).
42
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”.
43
Jose Padilla
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 Padilla’s military detention violates the Constitution, and named as
respondents the President, Secretary Rumsfeld, and Melanie Marr, the
brig’s commander.
The Government moved to dismiss, arguing, inter alia, that Commander Marr,
as Padilla’s 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).
45
The District Court’s Ruling
The Southern District of New York court held that
Secretary Rumsfeld’s personal involvement in
Padilla’s military custody rendered him a proper
respondent, and that the New York District
Court could assert jurisdiction over the
Secretary under New York’s long-arm statute,
notwithstanding his absence from that District.
On the merits, the court accepted the
Government’s 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.
46
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
York’s 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.
47
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 Padilla’s habeas petition.
3. Commander Marr is the only proper respondent to Padilla’s petition because she, not
Secretary Rumsfeld, is Padilla’s 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 prisoner’s body before the habeas reviewing
court. The petitioner cannot name someone else just because Padilla’s 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.
48
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.
Detainee Treatment Act
Section 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.
DTA: Section 1004
(a) 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.
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.?
52