David Frakt on Material Support Charges and Military Commissions

In both my post wondering whether a trial in NYC makes a material support for terrorism charge more viable for the alleged 9/11 financiers, and in my post linking to Jonathan Hafetz’ post criticizing the “lawless” system of justice imposed for Gitmo detainees, pow wow has linked to Lt. Col. and Associate Professor David Frakt’s testimony to the House earlier this year, arguing that almost none of the charges filed under military commissions are actually war crimes.

You’ll recall that Frakt represented Mohammed Jawad; in the course of representing Jawad through his release, he made some of the most powerful statements that have been made against the military commissions system. Given the fascinating discussion in these threads, I decided to email Frakt and put some of these questions to him directly.

I asked Frakt his general thoughts about Friday’s announcements.

I reject the government’s claim that the nature of the crime determines the forum (federal court or military commission). I believe it is largely political considerations that are the basis for these determinations. Basically, if there is a U.S. Attorney who wants to try the case and they think they can prove it, they get priority and it goes to federal court. Clearly, there weren’t any federal prosecutors who wanted to touch the Khadr case with a ten-foot pole. Who wants to be the first person to try a 15 year old child soldier as a war criminal in history? (Answer – the prosecutors at OMC) It is absolutely appalling that AG Holder has approved this case to continue in the military commissions. This is truly one of the great disappointments of the Obama Administration to date. The claim that the nature of the crime determines the forum is similarly false. The Administration claims that “law of war offenses” will be tried in commissions, but there are precious few, if any, legitimate law of war violations to try. The attack on the U.S.S. Cole looks like a war crime (because it was perpetrated by suicide bombers pretending to be harmless civilian fishermen) but the law of war only applies during an armed conflict. The military commission prosecutors are relying on an incredibly dubious claim that the U.S. was engaged in an armed conflict with al Qaeda since 1996 based on declarations of jihad by Osama bin Laden, even though everyone knows that the armed conflict really didn’t start until 9/11. I was on active duty with the Air Force from 1995 to 2005. There was absolutely no armed conflict taking place between the U.S. and al Qaeda prior to 9/11.

I asked Frakt specifically about Noor Uthman Mohammed–who was captured with Abu Zubaydah–because I think it presents interesting questions about the way the government is tying people to Al Qaeda.

The Noor Uthman Mohammed charges illustrate the wholesale deficiency of most of the military commission charges. He is charged with conspiracy and material support. Basically, he is alleged to have been a member of al Qaeda and to have been involved in training. All of the overt acts which support the conspiracy and material support charges occurred prior to 9/11, except for this last one: “On or about March 28, 2002, Muhammed, along with several others, attempted to escape from a terrorist safe house in Faisalabad, Pakistan, after a raid by local authorities, but was captured during his attempt.” Despite the bald assertion that he was staying at a “terrorist safe house,” attempting not to be caught by “local authorities” is not a law of war offense. This is an obvious and pathetic effort to expand his “terrorist” acts to activities that occurred after 9/11.

He went on to compare Mohammed’s case to that of other detainees.

Most of the military commission charges so far are of a similar kind.  As far as I can tell, none of the detainees are actually charged with violating the law of war during the actual armed conflict that started on 9/11 (such as by using illegal weapons, targeting civilians, torturing or abusing captured personnel, etc..  The best war crimes charge that the government has is against the 9/11 defendants and that case has now been moved to federal court. Arguably, the 9/11 attacks themselves were war crimes because they targeted civilians and because they utilized unlawful weapons (hijacked civilian airliners), but this requires accepting the dubious claim that these acts of terrorism and mass murder were tantamount to armed conflict, rather than simply large-scale crimes.

I asked Frakt whether he thought the military commissions would retain the material support charge–which is legal under the recent military commissions statute but which AAG David Kris has said should not be used.

As you have pointed out, the Justice Department this summer repeatedly expressed doubt about whether material support to terrorism was a legitimate law of war violation.  I, and other law of war scholars have concluded that it is not and I testified as much to Congress in July, at one of several hearings where David Kris raised doubts.  Salim Hamdan’s lawyers challenged the use of this charge against their client in the summer of 2008, but lost. Captain Keith Allred concluded that material support to terrorism was a traditional war crime.  He said it was a close question and that the name “material support to terrorism” was clearly new, but that the conduct encompassed by the statute was within the range of conduct over which military commissions had traditionally had jurisdiction.   Ultimately, material support was the only charge of which Mr. Hamdan was convicted.  The conviction was approved by the Convening Authority in July.

His lawyers will be appealing this ruling to the Court of Military Commission Review.  Their brief was due October 16 and the government’s reply is due in December. It will be very interesting to see if the government continues to assert that material support is a legitimate law of war charge after Kris’ testimony to the contrary.

This issue is also squarely presented in U.S. v. al Bahlul. You will recall that I was the defense counsel in this case at trial (he was denied the right to represent himself and I was foisted upon him by the court, but I honored his wishes and put on no defense), Mr. al Bahlul was also charged and convicted of material support, among other things, and the conviction was approved by the Convening Authority in April (during the period when all military commission actions were ordered suspended by the President).  His assigned appellate counsel were ordered to file an appeal on his behalf, even though Mr. al Bahlul refused to meet with them.  In their appellate brief, they argue that the application of a material support to terrorism charge violates the ex post facto clause of the Constitution and general principles of illegal retroactive application of laws.

Any decision of the CMCR will be binding on the military commissions, unless and until overruled by the D.C. Circuit or the Supreme Court, so the outcome of these appeals will determine whether subsequent defendants can be charged with material support in the military commission. Of course, the chief military prosecutor could decline, as a matter of prosecutorial discretion, to charge such a questionable crime, but given the track record of OMC-P, it seems unlikely that he would decline to use any tool in his toolbox. Since Congress has included the offense in the list of offenses which can be charged under the MCA and the Chief Prosecutor has complete discretion, I am sure he will continue to charge it unless there is an unfavorable ruling. Of course, the Convening Authority could decline to refer such charges to trial, but as long as the Convening Authority remains Susan Crawford, you can guarantee that she will not hesitate to refer additional material support charges. Having already confirmed three convictions for material support (David Hicks was the first), she has already made her view clear that it is a legitimate charge.

I asked about how the legal case for the five 9/11 detainees will transition from Gitmo’s military commissions to NY’s civilian Courts.

… any pending legal issues in the 9/11 case in the military commissions are now moot. The federal case will start completely from scratch. Of course, the lawyers are free to bring the same motions if relevant, even those they may have previously lost in front of Judge Henley. Obviously, the issue of the mental competency of some of the defendants is an important issue that will have to be resolved. There may also be motions to sever the trial (try the defendants separately), although thus far the 9-11 5 have stuck together. Another issue that will have to be relitigated is whether any or all of the defendants will be authorized by the judge to represent themselves and what role, if any, the lawyers will get to have. More than once, the 9/11 defendants expressed their desire to plead guilty and be executed. If the defendants win the right to defend themselves, there may not be any legal motions filed at all.

Update: Frakt added one more set of thoughts which are–by far–the most interesting to this discussion.

I had another couple of thoughts about why the 9/11 case was transferred to federal court, aside from purely political considerations. The Judge in the case, Colonel Stephen Henley, had made a couple of rulings in the Jawad case (my case) which made the government very nervous. First, he ruled in response to a motion to dismiss that I filed on the basis of torture that he “beyond peradventure” had the power to dismiss all charges on the basis of pretrial abuse of the detainee. Although he declined to dismiss the charges against Jawad, the fact that he would even entertain such a thought was very frightening for the prosecution, since they knew that other detainees had been tortured and abused far worse that Jawad, especially the high value detainees. Judge Henley also indicated that he was declining to dismiss because there were other remedies available, such as giving extra sentencing credit against any ultimately adjudged sentence. Assuming that KSM and his brethren were to get the death penalty, the only remedy for their prior abuse would be to commute the death penalty, the government’s worse nightmare. Also, in response to multiple motions to suppress statements that I filed, he had ruled not only that Jawad’s initial confession was obtained by torture, but that all subsequent confessions were presumptively tainted by the earlier tortured confession. He held that the burden was on the prosecution to prove that subsequently obtained statements were no longer tainted by the earlier torture or coercion. Judge Henley applied the law correctly in each of these rulings, applying well-settled principles of due process from U.S. Supreme Court cases. These rulings provide an opportunity for the defense to put the U.S.’ treatment of these detainees on trial, potentially for months, before ever getting to the merits of the case. And in order for the defense to make comprehensive motions, they would have to be made privy to the full scope of the abuses that had been meted out by the U.S. on their clients and should be given the opportunity to develop such evidence in pre=trial evidentiary hearings, as I did in Mohammed Jawad’s case, including allowing the defendants to testify about the abuses they experienced. Those who claim that this type of sideshow can be avoided in federal court simply don’t understand criminal procedure. The real question will be whether the 9/11 defendants authorize their counsel to make such motions or whether they will continue to seek martyrdom and forgo the opportunity to fully litigate the torture issues. [my emphasis]

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95 replies
  1. bmaz says:

    Since Congress has included the offense in the list of offenses which can be charged under the MCA and the Chief Prosecutor has complete discretion, I am sure he will continue to charge it unless there is an unfavorable ruling. Of course, the Convening Authority could decline to refer such charges to trial, but as long as the Convening Authority remains Susan Crawford, you can guarantee that she will not hesitate to refer additional material support charges. Having already confirmed three convictions for material support (David Hicks was the first), she has already made her view clear that it is a legitimate charge.

    Count on it.

    More than once, the 9/11 defendants expressed their desire to plead guilty and be executed. If the defendants win the right to defend themselves, there may not be any legal motions filed at all.

    I don’t think a Federal court is going to allow this on death penalty cases with alien defendants unversed and inexperienced in American law and procedure.

  2. MadDog says:

    Related from SCOTUSblog:

    Brief: Pare down Patriot Act

    Posing a major test of the sweeping scope of the government’s most-used legal weapon against “terrorism,” six groups and two individuals urged the Supreme Court on Monday to pare down key provisions of the USA Patriot Act. The government interprets those provisions so broadly, the new merits brief (96 page PDF) argued, that it would be a crime for anyone linked to a group labeled “terrorist” to teach English, lobby in Congress or the United Nations, or advocate benign help for such a group “on television or in the print press” — all presumably legal activities.

    The Court on Sept. 30 agreed to hear two separate cases on the validity of the Patriot Act’s ban of “material support” to a group designated by the government as “terrorist.”

  3. bmaz says:

    Here is a special treat for Mary when she comes along. From MSNBC:

    Paul McNulty, U.S. attorney here when Moussaoui was prosecuted, said there is a crucial difference in the two cases: Moussaoui pleaded guilty, so the sentencing trial focused only on his punishment and there was no chance he’d go free. No one knows whether any New York defendants will contest their guilt.

    McNulty wondered whether the public is willing to accept the chance of an acquittal.

    McNulty expects New York judges to be as tough as Brinkema on issues like ensuring defendants access to witnesses. “It could get complicated very quickly,” he said.

    • Mary says:

      As tough as Brinkema? Um, so when, exactly, did Moussaoui and his lawyers get that access?

      Hey Paul – we’d even take the “risk” that the torturers would be acquitted, so maybe you want to explain again why your shop didn’t go forward with those charges?

      I can’t think of a more perfect occupation for someone who believes in torture and black sites and kidnapping children to use in abusive interrogations – all to support a domestic propaganda program to jumpstart a war of aggression and occupation under depraved “rules” of conduct – no more perfect occupation than lawyer.

      Unless maybe it’s MSNBC interviewee.

  4. Petrocelli says:

    Those Activist Judges will be the death of America !

    EDIT: Reply to bmaz @ 5.

    Also to bmaz from down thread … well, we invited you up here to enjoy our delicacies & great Beers, but you obviously prefer to enjoy warm, sunny weather every day ! *g*

  5. powwow says:

    Awesome work, emptywheel, and now-Lt. Col. Frakt.

    Once more, with feeling:

    Who wants to be the first person [in history] to try a 15 year old child soldier as a war criminal? (Answer – the prosecutors at [DOD’s Office of Military Commissions].) It is absolutely appalling that AG Holder has approved this case to continue in the military commissions.

    [One tiny quibble: Major Frakt testified in front of Rep. Nadler’s House Judiciary Subcommittee, never in front of the Senate, as far as I know (Carl Levin didn’t want to know…). This, despite the fact that only Levin’s Senate Armed Services Committee considered and adopted a 2009 Military Commissions Act, as part of the FY 2010 Defense Authorization Bill – after which it was inserted into the House/Senate conference report and passed by both the House and Senate as a whole, with almost no meaningful debate. Furthermore, the one hearing the Senate Armed Services Committee held on its new Military Commissions Act took place after the committee had already adopted and sent to the Senate floor the defense authorization bill with the new MCAct included.]

    • greenharper says:

      Great work, EW! I just sent Holder an email asking why he sought this distinction. Won’t hold breath for a reply.

    • Jeff Kaye says:

      Thank you for reminding us of how the current version of the MCs were slammed through Congress, facilitated by Sen. Levin (and without a peep from Pelosi or the House, who must have approved… after all, great cover for her).

      Absolutely stunning reporting by EW, and fantastic analysis by Lt. Col. Frakt. I wonder if he would comment on how the torture issue played out in the Padilla case (the issue of “material support to terrorism” also served a significant role in that trial, where Padilla was convicted, if memory serves, for conspiracy to provide such support), and how that might augur for the 9/11 Five trial. I hope he is right about the door being open to examine the abuse of the prisoners, but I’m fairly gloomy about that happening.

        • Jeff Kaye says:

          I went back and looked up the Padilla ruling.

          US District Court Judge Marcia Cooke, of the U.S. District Court, Southern District, Miami, in an ruling in April 2007 (made without a hearing) rejected Padilla’s attorneys’ motion for dismissal of Padilla’s case due to “outrageous government conduct”. That conduct included torture through isolation, profound sensory deprivation, sleep deprivation, use of stress positions, use of drugs, and other indignities. Padilla had been held since June 2002 at the Naval Consoldidated Brig in Charleston, South Carolina as an “enemy combatant”. Original charges of constructing a “dirty bomb” had been dropped.

          In Judge Cooke’s ruling (April 2007), she accepted “for the sake of this Order” Padilla’s claims of mistreatment to be true, but then the abuse rose to sufficient outrageous conduct to throw the case out of court. Why? Because the government claimed it would not use any evidence obtained from interrogations while Padilla was in the brig, i.e., from the time when he was tortured. Therefore, legally, Padilla supposedly has no “remedy” against the government.

          As for doors… I get it. We’ve had so many slammed in our faces on this issue, I was beginning to wonder if there was even a latch to get in. (Reminds me of Kafka’a parable “Before the Law”.)

          • Jeff Kaye says:

            Two typos on my part:

            …but then the abuse rose to sufficient outrageous conduct to throw the case out of court.

            Should have read: “… but then the abuse supposedly did not amount to sufficient outrageous conduct to throw the case out of court.”

            Also “Kafka’a” should have been “Kafka’s” (obviously). Maybe with Net 3.0 we’ll be allowed to correct comments ;-)

      • dfrakt says:

        I’m not an expert on the Padilla case. I believe the lawyers did raise the outrageous government conduct theory in a pretrial motion, but to no avail. I know in the recent al-Marri case, the federal judge gave a sentence well below what the prosecutors were asking for because of the horrific treatment al Marri received.

        • bmaz says:

          Yes, the defense did, it was heard on the merits and a rather bizarre and contrived ruling handed down by the judge in Florida – cannot remember her name right this second.

          And your point about the duality of charges/forums for Ghailani is very well taken. Pretty sad comment on what was going on at that time (not that it is a hell of a lot better now).

  6. emptywheel says:

    Frakt added this bit later (it’s in the post but interesting enough I wanted folks to see it):

    I had another couple of thoughts about why the 9/11 case was transferred to federal court, aside from purely political considerations. The Judge in the case, Colonel Stephen Henley, had made a couple of rulings in the Jawad case (my case) which made the government very nervous. First, he ruled in response to a motion to dismiss that I filed on the basis of torture that he “beyond peradventure” had the power to dismiss all charges on the basis of pretrial abuse of the detainee. Although he declined to dismiss the charges against Jawad, the fact that he would even entertain such a thought was very frightening for the prosecution, since they knew that other detainees had been tortured and abused far worse that Jawad, especially the high value detainees. Judge Henley also indicated that he was declining to dismiss because there were other remedies available, such as giving extra sentencing credit against any ultimately adjudged sentence. Assuming that KSM and his brethren were to get the death penalty, the only remedy for their prior abuse would be to commute the death penalty, the government’s worse nightmare. Also, in response to multiple motions to suppress statements that I filed, he had ruled not only that Jawad’s initial confession was obtained by torture, but that all subsequent confessions were presumptively tainted by the earlier tortured confession. He held that the burden was on the prosecution to prove that subsequently obtained statements were no longer tainted by the earlier torture or coercion. Judge Henley applied the law correctly in each of these rulings, applying well-settled principles of due process from U.S. Supreme Court cases. These rulings provide an opportunity for the defense to put the U.S.’ treatment of these detainees on trial, potentially for months, before ever getting to the merits of the case. And in order for the defense to make comprehensive motions, they would have to be made privy to the full scope of the abuses that had been meted out by the U.S. on their clients and should be given the opportunity to develop such evidence in pre=trial evidentiary hearings, as I did in Mohammed Jawad’s case, including allowing the defendants to testify about the abuses they experienced. Those who claim that this type of sideshow can be avoided in federal court simply don’t understand criminal procedure. The real question will be whether the 9/11 defendants authorize their counsel to make such motions or whether they will continue to seek martyrdom and forgo the opportunity to fully litigate the torture issues.

    • earlofhuntingdon says:

      Thanks for adding this. Great quote that raises a host of legitimate problems the prosecution should fear and have to contend with. A criminal trial is about determining the facts and guilt. Punishment is supposed to come only after the government successfully proves its case, and only within the bounds allowed by law: incarceration and, in limited circumstances, death. Torture is not within permitted bounds, either in questioning or in the carrying out of a sentence, even one of death.

      • emptywheel says:

        Right–but the govt got away without introducign any of this with Padilla.

        See, I’m beginning to wonder whether all the screechers aren’t misplaying this–whether they’re not ignoring a bunch of reasons why the govt may have an easier time of it in civilian courts.

        I’m sure there are a bunch of reasons why they’re charging al-Nashiri in MC (though I know his legal team is going to fight that). But I sort of wonder whether thy’re doing test cases with two of the worst abuse recipients to see what they can get away with where.

        Most everyone has forgotten that Abu Zubaydah, formerly the “top AQ official,” exists anymore. But if people ever remember, I have no idea what the govt is going to do with him.

          • emptywheel says:

            well, it’s sort of where I’ve been going since Friday.

            Sure, they want a show trial.

            But there are likely to be a whole bunch of other reasons to want to do the trial in civilian court, even starting from the greater likelihood they’ll be forced to use lawyers.

            They wanna kill KSM (though Josh Gerstein raised a point I had been wondering about–how are you going to kill KSM when NY doesn’t have the death penalty?), but they want it to be a pseudo-thorough trial.

            • MadDog says:

              …though Josh Gerstein raised a point I had been wondering about–how are you going to kill KSM when NY doesn’t have the death penalty?…

              Remember, tis Federal court, not a NY state court.

            • bmaz says:

              It is not being done under New York law, it is under Federal. The absence of a death penalty under NY state law is irrelevant. Don’t see any reason why counsel cannot be forced on them in either forum. Frankly, I think they do want to walk the direct on US stuff (as opposed to guys picked up overseas not directly involved in US attacks) back to a criminal status, and this would be a very important step in that. That is in additional to whatever tactical reasons (as you note) they have of course, but it works for me.

            • Mary says:

              Federal Death Penalty Act.

              One thing that I wonder about a bit in a nebulous kind of way is to what extent the fact that so many aspects of “terrorism” are being pursued and have ben pursued in civilian courts is establishing precedent that al-Qaeda is an ongoing criminal enterprise in a fashion that might be argued to establish that terrorism is a crime, not an armed conflict – maybe that with Moussaoui and Padilla gov had their option to opt in or out – crimes or armed conflict – and they should be held to that option except with respect to battlefield crimes resulting from the use of a military response to the criminal enterprise.

              We use the military to help with other criminal enterprises all the time (and there was that Noriega precedent as well) and that doesn’t mean we hand off drug cartel members to be tried in miltiary court. The problem is 8 years of propaganda. Most people think that the argument has been that we are in a war and so we need military “courts” to handle these cases – they don’t realize that the argument has been that military courts are also not able to handle these cases and so we have to make up “commissions” that will insure a result.

              • alan1tx says:

                But you have to be careful there too. It’s been argued that if it’s a war, prisoners can be held without trial until the war is over. No chance of putting them back on the streets to shoot at us again.

                • Mary says:

                  I don’t know what you mean about being careful “there”?

                  What you would (should) have is a format where people who are affiliated with the criminal enterprise and are detained in places where courts are open and operating or able to be transported to such places recieve civilian trials. Because you are invading a nation under your AUMF, you will have battlefield confrontations/conditions where you end up engaged with people who were not a part of the criminal enterprise we sent the military in over (and so are not going to be eligible to be tried under civilian law, since they were merely operating in response to invasion vs. as a member of the criminal enterprise) Those persons can be detained until you are pulling your troops out, as privileged combatants who took up arms in response to invasion.

                  You might also have situations where there are roundups of persons who might or might not have been participants in the battlefield confrontations taking place due to invasion/occupation (as opposed to being members of the criminal enterprise our military was sent in to get). For those, you have Article 147 hearings under the GCs and they have to be full and fair herings before tribunals that meet due process standards. If you have combatants who are acting in response to invasion vs. members of the criminal terrorist enterprise then you have a) miltiary trials for things they have done which violate the laws of war, or b) detention as pows until troops are withdraw (which would ordinarily have been tied to the authorization in the aumf, which was to find the criminals vs to nation build).

                  I’m not sure I follow which thing you are cautioning about?

                  • Phoenix Woman says:

                    Mary, I wish I could put you in a room with the (Jerusalem-Post-worshipping, dual-US/Israel-citizenshipping, Likud/Kadima-are-wussies-for-not-nuking-Gaza) boss of a friend of mine. Said boss is an Administrative Law Judge and parrots the whole David Brooks “putting them on trial is a propaganda coup for them!” garbage.

                    Though I’d probably have to make sure there was a plexiglass wall between him and you. Too much truth won’t sit well with his system.

        • Mary says:

          whether they’re not ignoring a bunch of reasons why the govt may have an easier time of it in civilian courts

          That’s where I’ve been coming from – you have a hugely propagandized jury pool if anyone goes the jury route (the Padilla presser is a drop in the bucket next to the foundations laid by DOJ et al re: KSM); you have judges who now (post Padilla, Saleh, etc.) have several sets of ready-to-wear lower level precedents on torture evidence, masked witnesses not subject to perjury and open and valid investigation and cross, preventing access to necessary witnesses due to ‘states secrets,’ etc.; and you have a huge open bag of possible charges that are unavailable under military law.

        • Jeff Kaye says:

          Any idea how the trial of Ahmed Khalfan Ghailani in NY federal court plays into this? He is being tried for the African embassy bombings, I believe. He was certainly tortured, as one of the CIA’s high-profile prisoners. I’m hoping there will be an article out soon tying false confessions by Ghailani to the possible reasons for the death of a Guantanamo prisoner (al-Hanashi). But irregardless of that, again, is there any precedent or way we should also be looking at proceedings in the Ghailani case as a harbinger of what to expect with KSM and the others?

          • dfrakt says:

            One interesting thing about the Ghailani case. Ghailani was already indicted in the SD of NY when he was captured abroad, but instead of handing him over to the U.S. Marshals, he was taken to Gitmo and he was charged before the military commissions with the exact same offenses that he was already indicted for. Several other individuals involved in the Embassy bombings in Kenya and Tanzania had already been tried and convicted. This showed that the claim that we had to utilize military commissions because of battlefield evidentiary limitations was nonsense. The US Attorney that indicted Ghailani obviously thought that he could prove the case when he indicted him, so it was very hard to argue that the case needed to be in a military commission.

            • emptywheel says:

              Remember that he was rounded up in the pre-2004 election year “scare” about attacks led from Pakistan. He was also captured at the same time as they were lobbying to waterboard Hassan Ghul, and something very weird happened with him (and he seems to have been disappeared into Pakistani prisons). So I think there’s something particularly weird abotu Ghailani. Yes, they can try him on the earlier charges (and they’ve got Fitz formally listed as one of the prosecutors on that case). But I suspect there’s an additional backstory to Ghailani relating to the pre-election scaremongering.

    • bmaz says:

      Yeah, I pretty much agree with this. Not because the rules are better necessarily per the earlier discussion of the Kouril post, but on many other factors, but the judge, whomever it may wind up being, may not be anywhere near as good on insuring production of the evidence of torture and argument that torture has poisoned fruit down the line. This is one place that sequestered military commissions may provide an environment where it is easier for the tribunal to entertain this type of evidence and argument. I fear that socio-political pressure may militate against this in open Federal court.

  7. earlofhuntingdon says:

    Execution by the forces of evil one has risked one’s life to oppose is an honor in extremist circles. Allowing the accused here to represent themselves, with the consequence that they will all plead guilty and ask for the death sentence, will be a difficult question for the district court judge.

    Mr. Frakt raises another basic question. Arguably, 9/11 was not an act of war, but the commission of crime on a massive scale: the killing of more than three thousand people and the destruction of billions of dollars worth of property, not to mention the harm caused to clean-up workers, though an unknown portion of that could be attributed to governments, desperate to claim “all is normal again” declaring the grounds and air safe and breathable. Arguably “material support” charges are a law of war crime only in limited circumstances, such as the knowing, material support for the perpetration of specific crimes, including acts of terror to be perpetrated against civilians.

    Mr. Bush chose to consider 9/11 an act of war so as to arrogate to himself great unchecked power. Congress went along, in part, continually authorizing – through the serial abuse of the supplemental appropriations (no questions asked) process. But the courts need not agree with that characterization when it comes to charges against specific defendants.

  8. orionATL says:

    Ew,

    What utterly superb reporting.

    And

    Wonderful story, reporter ew.

    How remarkable that a military man and attorney would trust you enough to comment extensively and very openly.

    But of course emptywheel the weblog is one of the few media spaces where
    Articulate, thorough, and intellectually honest discussion of these issues occurs.

    Accept please this high compliment from a reader:

    I found this reporting and the ensuing commentary compelling and fascinating.

    Great story; great reporting.

  9. orionATL says:

    [email protected]

    There’s the micro (what happens to ksm and what happens inside his trial)

    And there’s the macro – is it not better to have all terrorist suspects tried in american federal (civilian) courts?

    Better for our constitutional government, I mean.

    Is it not the case that those who line up on the side of our tattered constitution would rather see a federal court trial than a military commisions trial –
    prosecutors tricks or no

    Defense attorneys tricks or no?
    Mean.

    Military commisions are yet another agent of totalitarianism

  10. freepatriot says:

    ((((((((((ew)))))))))))

    I don’t care f ya got a law degree or not, you could represent me any time

    are you busy next Tuesday ???

    (wink)

  11. skdadl says:

    Great reporting, EW and Lt-Col Frakt.

    So it is correct to say that military commissions are meant to address violations of the laws of war, those and nothing else? That basic distinction just never occurred to me all this time (but then I’m slow). So apart from the many detainees we suspect are entirely innocent, those apprehended on the battlefield are basically POWs and really shouldn’t be appearing before commissions? Or how do we think of their situation?

    • powwow says:

      So is it correct to say that military commissions are meant to address violations of the laws of war, those and nothing else? That basic distinction just never occurred to me all this time (but then I’m slow). So apart from the many detainees we suspect are entirely innocent, those apprehended on the battlefield are basically POWs and really shouldn’t be appearing before commissions? Or how do we think of their situation?

      The answer to your first question is yes, skdadl. With the caveat, as the recent threads on this have hopefully made clear, that the “military commissions” forum (that first Bush and then Congress created for non-citizens alone) is a poor and unjust substitute concocted to replace our regular military justice system and its special law-of-war courts-martial that were already designed, tested, and ready and waiting to prosecute violations of the law of war committed by both citizens and non-citizens. [Part of the injustice of the military commissions is their charging of non-war crimes (crimes not recognized as violations of the law of war) as war crimes (such as, arguably, “material support to terrorism”), as Lt. Col. Frakt pointed out in his Congressional testimony.]

      As for your other questions, the U.S. military has basically written “POW” status out of the law of armed conflict for its captured (Muslim) opponents in Afghanistan, both before and after the Taliban government fell (meaning regardless of whether this conflict qualifes as an “international” armed conflict or as a “non-international” armed conflict). Some of the methods the military used to effect that denial of POW status were “Administrative Review Boards” and “Combatant Status Review Tribunals” (CSRTs) – since discredited by the Supreme Court – which were claimed to be (but were not) Geneva Convention Article 5-compliant “competent tribunals” (designed to ascertain the proper armed conflict law status of captured foreign fighters).

      The beginning of their detention – obviously as close to the battlefield as possible for freshest evidence – is when the “competent tribunal” is supposed to fairly assess the enemy prisoner’s role and status in the conflict. Yet practically every single detainee still in Guantanamo was denied such a fair assessment of his (alleged) role in our armed conflict in Afghanistan. And none of them were granted formal POW status or privileges. [Instead the U.S. concocted an “unlawful enemy combatant” category that we claimed didn’t even require Common Article 3 minimum standards of humane treatment – another decision since, if belatedly, overruled by the Supreme Court.] As a result, we see, thanks to last year’s Boumediene decision, the habeas corpus appeals by those detainees finally reaching federal district court merits hearings, so that they at long last get a fair hearing about why they were detained (as either alleged war criminals, or simply captured foreign fighters), and why they claim they shouldn’t have been.

      German NAZI prisoners held in POW camps in the U.S. didn’t need to flood our courts with habeas corpus appeals because they – as our military correctly and fairly determined when they were captured – really were POWs, and were humanely treated in accordance with that status, and thus were – as they knew – legal (not to mention relieved) detainees until the end of the war. And, of course, those enemy prisoners from the German Armed Forces could not be prosecuted for “war crimes” – in either courts-martial, or battlefield-exigent military tribunals – unless their individual conduct explicitly violated the law of war. And, yes, the same standard should apply to anyone at Guantanamo who was fighting against us abroad in observance of the law of armed conflict.

      • skdadl says:

        Thanks, powwow. I do know much of the intervening history that you’ve written out there, but I just haven’t known how to organize the categories — I guess because the games Bushco played made it impossible to see the classic categories clearly any more.

        That is a very helpful summary.

    • dfrakt says:

      Hi. Lt Col Frakt here (I should note that my views don’t represent the views of the Air Force or Department of Defense – I’m actually responding in my capacity as a law professor, not as a Reserve JAG).

      Violations of the laws of war by enemy prisoners of war must be tried in military courts-martial, under the identical rules and procedures we use for our servicemembers. The idea of a military commission was to try persons that President Bush determined were not entitled to POW status whom he termed “unlawful enemy combatants.” Military commissions have traditionally been used to prosecute violations of the laws of war. However, President Bush asked for, and Congress provided, the authority to try “unlawful enemy combatants” for additional offenses not previously known as war crimes, namely terrorism, material support and conspiracy. Congress simply declared in the 2006 MCA that all of the crimes listed in the MCA were crimes traditionally triable by military commissions, even though this was untrue.

      President Obama has repeatedly made the distinction that violations of the laws of war may be appropriatedly tried in military commissions. This is a true statement, although military commissions have traditionally been utilized when civilian courts are unavailable, a situation that we do not currently face. That being said, I would not object to military commissions using fair rules and procedures being used for actual war crimes. The reality is that few, if any, of the detainees have actually violated the law of war. The Bush Administration had a theory that any act of fighting by a “unlawful enemy combatant” violated the laws of war, but this theory was repeatedly rejected by the judges in the military commissions themselves.

  12. BayStateLibrul says:

    Stumped by a powerful word

    “…he (Judge Colonel Stephen Henley)ruled in response to a motion to dismiss that I filed on the basis of torture that he “beyond peradventure” had the power to dismiss all charges on the basis of pretrial abuse of the detainee.

    At first, I thought “beyond peradventure” was a legal term.
    Funny that Daniel Schorr uses it with weapons of mass destruction to diss
    Bush/Cheney, et.al

    peradventurepuhr-uhd-VEN-chuhr; pehr- , adverb;
    1.[Archaic] Possibly; perhaps.noun: 1.Chance, uncertainty, or doubt.
    Read the full entry|See synonyms|Comment on today’s word
    Quotes:
    It establishes beyond any peradventure of doubt that they were all wet and all wrong in their reports about the weapons of mass destruction, the chemical weapons, the biological weapons and the coming nuclear weapons as well.
    — Daniel Schorr, “interview Weekend Edition – Saturday, with Susan Stamberg”, National Public Radio, July 10, 2004
    The problem with Steve is that he looks like a liar. He is what a liar ought to look like. When he’s telling God’s own truth, hallelujah, you are certain beyond peradventure that he is lying.
    — “The journal of Lynton Charles”, New Statesman, March 4, 2002
    And he was, beyond peradventure, the greatest reforming Labour prime minister of the last century.
    — Peter Oborne, “Mr Blair has virtually unlimited power”, Spectator, June 30, 2001
    Origin:
    Peradventure derives from Old French per aventure, “by chance,” from per, “through” (from Latin) + aventure, “chance,” ultimately from the past participle of Latin advenire, “to arrive,” from ad-, “to; toward” + venire, “to come.”

    • skdadl says:

      I learn new words here all the time. Just this week I learned irrefragable and kludging. The per- words I seem to have already known, but it’s all good for the little grey cells.

    • emptywheel says:

      Check out this post from McClatchy’s Nancy Yousef?

      But last week, Secretary of Defense Robert Gates announced that if he found out who in his building was leaking, it would be a “career ender.” He made the declaration while sitting in his plane en route to Osh Kosh, Wisc. At one point, he declared: “Everyone ought to just shut up.” He had little faith that we reporters traveling with him would report his comments. But we did. And the message had made its way into every hall of the maze that is the Pentagon.

      Sources that eagerly talked to you now won’t. Sometimes sources volunteer they have nothing to say before you ask the question. Others are canceling appointments with reporters all together out of fear of being called a leaker by the secretary.

      But I can already feel the dam cracking as some officials are desperate to get their views out.

      • Jim White says:

        Ooh, thanks for that (there’s an extra “m” that needs to be removed from your link). That post points to this story which traces a lot of the leaks. Here’s my favorite part:

        The policy battle has been simmering since administration officials led by Vice President Joe Biden and White House Chief of Staff Rahm Emanuel began leaking to journalists this summer their opposition to McChrystal’s call for a major troop increase to support intensified efforts to expand Afghan security forces and civilian aid programs.

  13. skdadl says:

    Leahy is welcoming Holder, complimenting the architect of the Capitol (they’re in a newly renovated chamber), commending Holder on the decision to bring the 9/11 5 to NYC, says they committed murder there (not big on presumption of innocence I guess).

  14. Mary says:

    I can’t thank you and Lt. Col. Frakt enough for this EW (and a similar thanks to powwow for the links in prior threads). I’ll be coming back over the weekend to read through the links, but everything you and powwow have put up from Frakt has the kind of clarity, integrity and confidence in the scope of civil and military law and their supporting institutions that, in my naivete, I expected to see from multiple sources over the years.

  15. alan1tx says:

    No biggie, I guess I didn’t know what was meant by this:

    maybe that with Moussaoui and Padilla gov had their option to opt in or out – crimes or armed conflict –

    I also wonder about – engaged with people who were not a part of the criminal enterprise, but merely took up arms in response to invasion.

    The population that doesn’t take up arms is not our enemy. Those that do are. Not to over simplify, but if your kid is cooking meth in the garage and the police show up, I suggest you don’t try to defend your property rights.

    • Mary says:

      The population that doesn’t take up arms is not our enemy. Those that do are.

      I agree on that and think that is pretty much what I laid out with:

      You might also have situations where there are roundups of persons who might or might not have been participants in the battlefield confrontations taking place due to invasion/occupation (as opposed to being members of the criminal enterprise our military was sent in to get). For those, you have Article 147 hearings under the GCs and they have to be full and fair herings before tribunals that meet due process standards. If you have combatants who are acting in response to invasion vs. members of the criminal terrorist enterprise then you have a) miltiary trials for things they have done which violate the laws of war, or b) detention as pows until troops are withdraw

      Sometimes, esp with city street fighting, you might round up people where it is unclear which category they are in (took up arms against us or not) and the drafters of the Geneva Conventions were aware of that likelihood – that’s where Article 147 and real status review tribunals under the GCs (as opposed to what we threw together in the GITMO CSRTs) would come into play for those who are rounded up and claim they didn’t take up arms against us.

      For those that did or who “lose” their status tribunals, you can detain until your troops depart or convert to an non-invasion, non-occupation category such that the nation-state’s institutions (police, military, detention, judiciary) take over. So I think we’re on the same page?

  16. alank says:

    The mere fact that the U.S. has never made a formal declaration of formal hostility towards any party or group since 1941 is not a mere oversight on the part of each president (or Congress — tho, that body has been pushed aside by said succeeding presidents, by various end-arounds that have resulted in the increase of executive authority). The fact that this has never been challenged seriously, ever, is also noteworthy in a discussion of this type. War powers are too much concentrated in one branch of the government. Congress has been shirking its responsibility in this realm for far too long.

    • Sara says:

      “The mere fact that the U.S. has never made a formal declaration of formal hostility towards any party or group since 1941 is not a mere oversight on the part of each president (or Congress — tho, that body has been pushed aside by said succeeding presidents, by various end-arounds that have resulted in the increase of executive authority). The fact that this has never been challenged seriously, ever, is also noteworthy in a discussion of this type. War powers are too much concentrated in one branch of the government. Congress has been shirking its responsibility in this realm for far too long.”

      As I understand this, the reluctance to formally declare war is really more of a function of issues with “Civil or Business Law” than anything else. For instance, virtually all insurance policies, (Homeowner through coverage of a major Corporation) have exclusions that void the contract in case of war, formally declared. Virtually all business contracts, employment contracts and much else — have a “state of war” exclusion, and given this, and the lack of desire to interrupt normal business activity, financial activity, financial markets and all — Congress has just learned to never formally declare war. Instead, we have “police actions” and pacifications, and all the rest — which are not understood in as raising the same state of war exclusions.

      I have to disagree with one construction by David Frakt — he says….

      “The attack on the U.S.S. Cole looks like a war crime (because it was perpetrated by suicide bombers pretending to be harmless civilian fishermen) but the law of war only applies during an armed conflict. The military commission prosecutors are relying on an incredibly dubious claim that the U.S. was engaged in an armed conflict with al Qaeda since 1996 based on declarations of jihad by Osama bin Laden, even though everyone knows that the armed conflict really didn’t start until 9/11. I was on active duty with the Air Force from 1995 to 2005. There was absolutely no armed conflict taking place between the U.S. and al Qaeda prior to 9/11.”

      He has missed one important element in this argument. In 1998 Bin Laden and his Al-Quada associates called a press conference a few weeks before the bombing of the US East African Embassies. In that venue, he declared war on the US. As I noted yesterday, I don’t think all is clear whether a non-state actor can actually declare war officially, but that is not really my point here. He did, and then he committed the embassy bombings, which may be criminal only, or in fact might be viewed as an act of war.

      Anyhow, Bill Clinton answered this act by shooting off a mass of cruise missiles at Al-Quada’s training camp in Afghanistan in the belief that the leadership of Bin Laden’s outfit was there at the time. In essence the commander in chief returned fire, by ordering the US Navy to attack. I suggest a fairly strong argument can be made for “the state of something — just don’t call it war” beginning in August, 1998, with the interlacing of these three events, Bin Laden’s declaration, Embassy Bombings, and Clinton’s return fire. But we still have the problem of “non-state actor” here.

      • bmaz says:

        Agreed. And in relation to the formal declaration of war bit, despite all the howling over that there are indeed some very salient reasons for not going that route. Quite frankly, in addition to the civil implications you mention, it also gives far more martial powers domestically to the executive than even Bush and Cheney could dream of. A formal declaration of war would actually have placed much of their domestic power grab on much sounder footing, especially the surveillance (this is not to say that they ever could have actually gotten a formal declaration of war from the Congress, but folks should be aware that it is not necessarily something that was preferable to what we got).

      • powwow says:

        That’s an important point you make (about the reasons for the reluctance to formally declare war, as opposed to issuing an “Authorization to Use Military Force”), that builds on alank’s important point about the rarity of meaningful challenges to, for example, the dangerous, and almost-certainly Constitutionally-illegitimate delegation of Congressional authority to initiate war to the Executive represented by the Iraq AUMF, or to many other war power abuses, including some long-ago egregious examples of misused military tribunals. Of course, the lack of such an all-hands-on-deck declaration of war is also evidence of the absence of a truly “exigent threat” to this nation from “Islamic terrorism,” I think we can all agree.

        I suggest a fairly strong argument can be made for “the state of something — just don’t call it war” beginning in August, 1998, with the interlacing of these three events, Bin Laden’s declaration, Embassy Bombings, and Clinton’s return fire. But we still have the problem of “non-state actor” here.

        But again, Sara: To what end? Is that an argument for why we should have been using our regular military court-martial system to prosecute alleged war criminals since 1998 (though according to a commenter responding to Deborah Pearlstein’s post, the first ‘declaration of war’ by Al Qaeda against the U.S. was actually in 1996)? And that we should have been holding and treating implicated Al Qaeda detainees ever since as POWs, or if legitimately determined not to qualify as POWs, as eligible for the minimum humane treatment and due process standards of Common Article 3, even if they couldn’t be accused of any official “war crime”?

        If so, and assuming a genuine armed conflict existed from 1996/1998 until 2001 because of Al Qaeda’s one-sided declaration(s) of war against the U.S., I don’t necessarily disagree that regular law-of-war courts-martial should have been used. Except for the fact that, in general, the distributed (among separate branches) power of judge, jury and executioner designed into our regular federal court system seems presumptively preferable to the Executive Branch-operated UCMJ military court-martial system [not to mention the segregated, irregular, (supposedly) “practical necessity”-driven Military Commissions], where there is no need (as in upholding military discipline in the ranks) to use a military court.

        The commenter I cited, (Howard Gilbert), went on to say:

        Article 2 of the Third Geneva Convention declares: “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties [which, obviously, Al Qaeda was not], even if the state of war is not recognized by one of them.”

        In another thread, Howard Gilbert adds (addressing a topic that came up and was badly handled in the Senate Judiciary Committee’s dog-and-pony show with Attorney General Holder today):

        One may believe that civilian courts would be more likely than military courts to make the mistake of attributing Constitutional rights to someone who is not entitled to them. This is a valid criticism of some judges, but it is not a problem with the court system. On the other hand, military judges know they are dealing with enemy soldiers captured outside the US and are unlikely to make certain mistakes.

        KSM is entitled to all the protections of due process, but he is not a citizen or legal resident and is not entitled to constitutional protections. For example, when papers and computer disks were seized by the Pakistani police during his arrest there was no US search warrant because no US court had jurisdiction over Pakistan. Those papers and files cannot be excluded, because the Fourth Amendment did not apply to his capture.

        Although statements made due to torture can be excluded, there is no requirement to read Miranda rights to someone who, at the time of capture, is not protected by the Fifth and Sixth Amendments. Judges should be smart enough to not exclude, for example, un-coerced statements made by enemy soldiers after capture, even though the same statements might be excluded if made by un-Mirandized citizens after a criminal arrest.

        There are judges who are smart enough to apply the law correctly, and some who are not. Unfortunately, the system does not have a procedure to guarantee that a trial like this is assigned to the most able judge.

        To which another commenter, Alan Kaufman, added:

        Query: Assuming the 5th Amendment applied in a foreign combat environment, why would a POW be entitled to Miranda at all? If the reason for Miranda is the inherently coercive environment associated with a custodial interrogation, would such an inherently coercive environment exist in the case of a [formally-classified] POW who knows that Geneva conventions require only that he give his name, rank, [birth date] and serial number, and need not answer any other questions? Perhaps the grant of Geneva POW rights to captives (until otherwise established as not entitled by appropriate [Article V-compliant] review) vitiates the need for Miranda warnings because the reason for the rule does not exist: POW status is inherently NON-coercive. …Perhaps they could be advised of their Geneva rights and then questioned, or the knowledge thereof could be lawfully presumed just as is combatant status until shown otherwise.

        Moreover, if no crime is suspected and the initial interrogation is for intelligence purposes, then perhaps no warning would be required (it wouldn’t be under UCMJ Article 31 jurisprudence, I think), and then only if the interrogation for intel produces information in response leading the interrogator to begin to suspect a crime would a Miranda warning be needed (if it is at all under the Geneva [POW] inherently non-coercive argument I posit).

        • MikeD says:

          Sara had said:

          I suggest a fairly strong argument can be made for “the state of something — just don’t call it war” beginning in August, 1998, with the interlacing of these three events, Bin Laden’s declaration, Embassy Bombings, and Clinton’s return fire. But we still have the problem of “non-state actor” here.

          To which you respond, pow wow:

          But again, Sara: To what end? Is that an argument for why we should have been using our regular military court-martial system to prosecute alleged war criminals since 1998 (though according to a commenter responding to Deborah Pearlstein’s post, the first ‘declaration of war’ by Al Qaeda against the U.S. was actually in 1996)? And that we should have been holding and treating implicated Al Qaeda detainees ever since as POWs, or if legitimately determined not to qualify as POWs, as eligible for the minimum humane treatment and due process standards of Common Article 3, even if they couldn’t be accused of any official “war crime”?

          Yes and yes!

          If so, and assuming a genuine armed conflict existed from 1996/1998 until 2001 because of Al Qaeda’s one-sided declaration(s) of war against the U.S., I don’t necessarily disagree that regular law-of-war courts-martial should have been used.

          Excellent!

          Except

          Oh.

          for the fact that, in general, the distributed (among separate branches) power of judge, jury and executioner designed into our regular federal court system seems presumptively preferable to the Executive Branch-operated UCMJ military court-martial system [not to mention the segregated, irregular, (supposedly) “practical necessity”-driven Military Commissions], where there is no need (as in upholding military discipline in the ranks) to use a military court.

          Preferable to whom, and why? Legally and exclusively preferable, meaning in a way that prevents legitimate use of UCMJ courts-martial? Why then do you say you don’t disagree that UCMJ courts-martial “should have been used” (under the interpretation of 1998 we’re assuming)? If not preferable in that exclusive way, than have you not just blessed the administration’s claim of prerogative to choose fora (again, if we accept that assumption)?

          • powwow says:

            Preferable to whom, and why? Legally and exclusively preferable, meaning in a way that prevents legitimate use of UCMJ courts-martial? Why then do you say you don’t disagree that UCMJ courts-martial “should have been used” (under the interpretation of 1998 we’re assuming)? If not preferable in that exclusive way, than have you not just blessed the administration’s claim of prerogative to choose fora (again, if we accept that assumption)?

            Preferable to those who understand the need for, and the track record of, the built-in safeguards of an independent judiciary’s checks and balances in ensuring just outcomes. As well-described by the EJP in Chapter Six of their report.

            Beginning on Page 136 (Page 150 of 213):

            At the heart of the concept of the rule of law is the principle of an independent and impartial judiciary. Nothing less will ensure the proper separation of powers (as between the executive, legislature and judiciary) and ensure that everyone (victim, perpetrator, or member of the public) can be confident that his/her case will be dealt with in accordance with the law. An independent judiciary enforces the law without fear or favour.

            Many witnesses to the Panel reported on their serious concerns about the creation of military or special courts to deal with terrorism. Military or special courts do not necessarily violate the principle of independence and impartiality, but they pose – both in principle and in practice – a grave risk. Accordingly, international law has been moving towards strict restrictions and even prohibitions on the use of either military or special courts to try civilians.357 Since concerns about their operation were brought to the attention of the Panel in several Hearings, there is a brief discussion of the dangers they can pose.

            Military courts, including Courts Martial, are a recognised form of military justice, and there are a number of good reasons to have military courts deliver justice to members of the military for military offences. Many military courts [like our own UCMJ-governed courts-martial] merit a reputation for excellence. The situation is, however, very different when such military courts are called upon to try civilians for non-military offences. The military is a closed, hierarchical institution and it stresses loyalty to the institution. For the most part, judges in military courts are military officers, appointed by the executive, and subordinate to their superiors in the military hierarchy, even though they may be independent in exercising their judicial functions. Still, the manner in which such judges conduct trials may play a role (or be perceived as playing a role) in subsequent decisions about promotions, assignments and professional rewards. Accordingly, there has been a growing consensus at the international level that military courts should be used only for trying members of armed forces for offences of a military nature.358

            […]

            The Panel notes, on the basis of its findings, that military and special court systems easily lead to abuse: the tribunals often fail to meet the requisite standard of independence and impartiality and do not offer due process guarantees. The temptation appears to be great to extend the system to try non-terrorist offences, because of the lower safeguards which make convictions easier. If the rationale for their use is that the ordinary criminal justice system is considered slow, inefficient or corrupt – the rationale most often proffered – it would surely be better to tackle these problems directly rather than create a parallel justice system with its own problems.

            That is not to say that I am opposed to the legitimate use of our regular military courts for the prosecution of accused war criminals (among a properly-classified group of enemy POWs), who might also be prosecuted under domestic law in our federal courts. There is sometimes a legitimate choice between the two forums (as there was with the Hasan/Fort Hood prosecution), that has nothing to do with lower standards of evidence or attempting to obtain less due process. Creating and choosing between unequal forums (such as between federal courts and the irregular, Constitutionally-suspect Guantanamo Military Commissions for non-citizens), however, clearly is not legitimate forum shopping.

            With the caveat, of course, that my reply at 89 pretty well forecloses the earlier assumption in this thread that pre-9/11 Al Qaeda attacks might somehow be considered to constitute an armed conflict under the law of war. As a result of clarifying that issue, I can’t now say that in fact our regular UCMJ-governed military courts would have been a legally-appropriate forum for prosecuting pre-9/11 terrorist suspects.

            Which I hope answers your questions.

            I’ll close with a final plug for the use of law enforcement and regular criminal courts in the fight against terrorism. Their successful track record is echoed in domestic criminal justice systems worldwide, as noted by the EJP report, beginning on Page 123 [PDF Page 137 of 213]:

            The Panel starts from the premise that all acts of terrorism are crimes (see Chapter One). Take away the terrorist label and these acts – murder, hostage-taking, hijacking, and violence against civilians – are all very serious criminal offences under any legal system. If the criminal justice system is inadequate to the new challenges posed, it must be made adequate.

            In fact, it is a misconception that the law enforcement and criminal justice system is only or largely reactive. Conventional law enforcement work has a long history of tackling terrorist and other organised criminal networks and of conducting proactive investigations and prosecutions (including the use of informants) to prevent terrorist attacks before they are committed. At various Hearings, current and former prosecutors confirmed the preventive capacity of the criminal justice system, and practical examples abound of law enforcement interventions successfully preventing terrorist attacks. Of course, like all other crimes, a law enforcement model cannot tackle terrorism on its own; it must however be a key component within any counterterrorist programme.

            The criminal justice system has evolved over the generations to ensure that innocent people are allowed to go free, guilty people are properly punished for their crimes, and society can rely confidently on the rule of law to protect it against wrongdoing. The system needs to be resourced to perform its functions effectively; it must not be undermined, as is often the case in connection with terrorism.

            • MikeD says:

              powwow, thanks.

              As you’ll notice, I didn’t ask why, under the assumptions being discussed, you hadn’t in effect endorsed the use of military commissions to try those the government believes guilty of violations of the laws of war, or the practice of choosing between them (MCs) and federal courts based on differential evidentiary or procedural requirements. Instead I merely asked how it was you hadn’t implicitly endorsed their claim to have the right to choose between a civilian and a military prosecution in general, the only regularly constituted version of which is standard UCMJ courts-martial, (or pursue both) in cases when they believe both USC violations and law of war violations had occurred. And I take your point that in addition to the assumptions being made about the context of international armed conflict, the accused would have to be a “properly-classified […] enemy POW.” But I take it under those conditions you do confirm that that choice legitimately exists at least in some cases, though I take you say that the exercise of that choice by the government cannot contemplate “lower standards of evidence or attempting to obtain less due process [in one of the fora].” I wonder, would prohibition in these circumstances also extend to expectations about a higher likelihood of conviction or more appropriate sentence based on factors other than those you mention? What are the legitimate considerations the government should use to select a forum in those circumstance where they have a choice under the law of where to file charges?

              With respect to whether the assumptions we have been laboring under (acceptance of an interpretation in which a state of war that satisfied GC conditions for law of establishing that law of armed conflict procedures governed the treatment of POWs taken in that war involving the United States commenced with, for example, the retaliatory missile strikes in Afghanistan and Sudan in 1998) do or did apply in fact, I thank you for your analysis and conclusion. I certainly had my doubts.

                • powwow says:

                  It only appears that way, MikeD. When you refresh the page, you see that the paragraph breaks remain (it’s a software flaw in the editing save screen).

      • Mary says:

        I don’t know that he missed that part. Instead, I think you have to look at the actual Presidential and Congressional responses were, since unilateral declaration of war, even coupled with an act of aggression, doesn’t make a war until the other party decides it is also at war.

        If you look at the post 9/11 AUMF:
        http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html
        It ties everything to 9/11, not to prior acts.

        To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

        Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

        Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

        (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

        (b) War Powers Resolution Requirements-

        (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

        Clinton did fire off missiles – but he didn’t do much more, including getting a war powers authorization, bc Bush was coming into office and, absent exigency, should have been (and was) allowed to determine how he wanted to proceed (which also didn’t involve any Congressional resolutons and war powers resolutions).

        If PETA declared war on the US and followed up with bombing a US vessel, even if they US directs a response of some kind, we aren’t necessarily in a state of armed conflict with PETA bc of their declaration and acts.

        • Sara says:

          “Clinton did fire off missiles – but he didn’t do much more, including getting a war powers authorization, bc Bush was coming into office and, absent exigency, should have been (and was) allowed to determine how he wanted to proceed (which also didn’t involve any Congressional resolutons and war powers resolutions).”

          Actually the Historical Record does not suggest that Clinton did little or nothing after firing off the cruise missiles — but he was constrained in what he could do by the politics of the period. Let’s just list a few things that pre-date 9/11.

          Clinton’s DoJ arrested a number of participants in the Embassy Bombings, brought them to New York, Indicted them, tried them, convicted them. In the trial process much of what was known about Al-Quada’s planning and execution of the bombings went on the record.

          George Tenet issued both orders and memo to both CIA and the rest of the Intelligence Community to the effect we were at war with Al-Quada. Congress provided some added resources, but Tenet did not actually reorganize existant resources to a “war footing”. CIA developed the Predator, and used it to observe various bin Laden camps during 2000, and then set in motion the tests to see if Predator could be armed and successfully flown. Testing began during the last months of Clinton’s terms, successfully completed in May, 2001 in Bush’s term. Big fight between CIA and Airforce over who would “own” and fly the Predator covers both Clinton and Bush Administrations. Airforce doesn’t want the days of the human flown fighter jet to be over, thus doesn’t want Predator in inventory — CIA is allergic to doing Covert Wars which get them into political trouble with Congress, so it wants the Airforce to own and operate the Predator on targets CIA selects. Argument about this goes on through 9/11. Richard Clarke serves as program officer for development of Predator, and is held over from Clinton to Bush Administrations.

          Millennium Plots are disrupted in US and Jordan, fail in Yemen. Captured plotters are tried and convicted.

          At the time of the E. African Bombings and the Cruise Missile strikes, Clinton asks DoD to prepare a military plan for attacking Al-Quada in Afghanistan. At the time, DoD had no such plan. Clinton’s request assumed it would be a special forces operation, but DoD came back with something like the invasion of Omaha Beach, two divisions, etc. Those who have commented on this suggest the plan offered by DoD was “We Really Don’t want to do this”!!! Clinton orders revisions, but DoD dithers.

          Cole Bombing, October 2000. FBI and CIA claim they cannot place responsibility for the Bombing till after Clinton leaves office. When confirmation of Al-Quada responsibility comes to the Bush WH, decision is not to respond.

          There are at least two efforts to support proxy military in the last two years of the Clinton Administration. CIA developed contacts with Masood, (Northern Alliance), and plans were put in place for CIA to help train an ISI special militia in Pakistan to capture bin-Laden. This is ended by Musharraf when he takes office after the Military Coup.

          Anyhow, I would suggest all these points are indicia of Clinton’s continued effort against al-Quada after the cruise missile attack. Clinton’s barriers were political — particularly congressional. I think it illustrates his judgment that answering al-Quida was in the national interest, but those who frustrated his efforts (even if they were inadequate) had other interests in mind. While after 9/11 Bush was able to get an AUMF through Congress, I doubt if Clinton under any circumstances could have done so. But the history of what he attempted to do in diminished political circumstances hardly is a story of doing nothing.

          • Mary says:

            He did not do much militarily, which seemed to be where you were going on arguing that there was a military armed conflict because he fired missiles after al-Qaeda “declared” war.

            Your noting his constraints is basically an acknowledgement that we were not in a military armed conflict where he could act all out as CIC. I would not and did not argue that he did not do anything vis a vis al Qaeda. Obviously he and his crew were much more focused and effective than Bushco (the handling of the millenium bomber is an example)

            But because of how war powers are divvied up, engaging in an armed conflict is a political issue and particularly a Congressional. I can tell from your response that it irritated you that I said he did nothing much, but I was saying it in the military front since you were arguing that perhaps there was a military armed conflict – for purposes of the imposition of military law – based on his firing the missiles.

            When you point to the intelligence and criminal law efforts yourself as what he was doing, and then couple them with the fact that he would not have been able to get an AUMF through Congress, you answer your own question on existence of a military armed conflict. Answering that question doesn’t denigrate the non-military efforts he did undertake.

            But if you want to focus on the embassy bombings, focus on what Clinton did before them as well with respect to Qassim and the Albanian “Tirana cell” “rendered” to Egypt to be tortured and disappeared after “interrogation” sessions on a vessel at sea. The subsequent torture and executions of the men rendered was used as a propaganda point for al-Qaeda on the embaassy bombings.

            We’ll never know how much the US decision to dip its toe directly into the torture waters helped Bin Laden and Zawahiri motivate followers to take on a mission like the embassy bombings, but it certainly gave them a propaganda point

      • dfrakt says:

        My point is three isolated instances of violence, years and continents apart, don’t make an armed conflict. It is true that President Clinton ordered missile attacks on al Qaeda training camps in retaliation for the Embassy bombings, but it was a one-time event.

  17. klynn says:

    EW and all commentors, thank you again.

    Marcy, one more time, will you do a version of this for the Guardian to publish? I think it has a place in terms of what is going on in the UK regarding torture/terror trials over there.

    Thanks for the birthday present of such a fantastic post.

  18. bwedin says:

    I hope and pray that a compassionate reporter like Emptywheel will try and ascertain what has happened to KSM’s two kids. We know for a fact that the CIA took the two kids (then 6 and 8) into custody in 2002. And there are disturbing reports that after a psychologist learned that both kids were severely insectophobic, they were tortured with ants being placed on their bodies to force them to disclose their father’s whereabouts on the off-chance they knew. So where are they now? Are the kids (now 13 and 15) still in custody? I do not believe that the CIA would just let the kids go free when they could still be used to threaten KSM with respect to his testimony at trial. But would he report any threats to his lawyers? Not if he thought it would put his kids in greater danger. And who’s to say they wouldn’t be? The CIA is very good at disappearing people. That’s why someone with EW’s unsurpassed investigative skills needs to shine a light on what the CIA has done with these kids. If they’re still in CIA custody after all these years, the American people need to know it. And we need to do something about it. We need to come together as a nation and say: “This will not stand.” No matter what the father has done, these were innocent young kids when the CIA seized them. And nothing justifies what has already been done or may yet be done to them in your name and mine.

  19. gamd521 says:

    I find completely offensive several notions that are so piously touted regarding the justice system here in the US.

    Firstly the justice system is not based on the presumption of innocence. Not in case where the accused’s guilt is actually in question such as in some arcane tax infraction nor in the case of KSM who apparently confessed to be guilty of the charges against him.

    To maintain a presumption of innocence across these extremes is simply absurd and just a contrivance to give the system some patina of gloriousness it doesn’t have nor could ever have. It is little more than jingoism.

    To state the obvious: a person charged with committing a crime is presumed guilty of having commited the crime, that is why he is being charged.

    In the case of KSM he is presumed guilty of his charges and moreover when they speak of him, Holder, Obama and Rep. Weiner tonight have all said that when forund guilty by the courts he will be put to death. So much for presumption of innocence.

    The other particularly offensive aspect of the trial of erstwhile terrorists is the characterization of them as cowards. This by people who defend the cowardice of this country’s wanton killing of innocents. All nineteen high jackers on 9/11 died in the commision of their attack knowingly and willingly. Deluded maybe but not cowards. KSM a warped mind maybe but willing to die for his beliefs and not a coward.

    Contrast this with Holder’s statement of today characterizing KSM as a coward who will be put to death by the justuce system. It is the same Holder and the rest who support the unleashing of un manned drones and long rage bombs as a means of warfare against vastly out matched opponents. That is unbridled cowardliness. When was the last time these people faced danger willingly and met it head on.

    It is easy to wail away with bravado about other people’s lack of courage from the safety of your home but not so easy when you have to prove your courage when death stares you in the face.

    • bmaz says:

      With all due respect, you are totally full of shit. I have practiced in the bowels of the criminal court system for over twenty years and, irrespective of whether the case is notorious and/or the prosecution has the upper hand (they always do), there is absolutely a presumption of innocence and that plays out procedurally from the initial plea through the closing instructions given the jury immediately prior to deliberation. When you say “To state the obvious: a person charged with committing a crime is presumed guilty of having commited the crime, that is why he is being charged” you show your bias and complete ignorance of the due process system as it actually works. I have bent over backwards to be kind here, I had to edit several times to not be more harsh in the face of your ridiculous, asinine and uninformed blather.

      • gamd521 says:

        Two can play at your game chump.

        Answer the question in plain terms since I could give a flying fuck how much experience you claim and regardless of how many people go from being charged with a crime to jail without barely a stop along the way. Do post hoc denominated enemy combatants ring a bell.

        Why are people charged in the first place with having committed a crime if it is not presumed that they committed that crime. Maybe your head is so far up your ass you can’t see your way out.

        The fact that prosecutors try to convince a jury that their charge is convincing means that these prosecutors themselves operate under the belief that the accused is guilty of of the crime. If not then under what delusion do they operate, that the accused is innocent?

        have

        • bmaz says:

          Naw, I think I will deescalate this and let it go. Sorry, but I am a bit protective of a system that, while far from perfect, is actually very good in practice and is not at all what you are insinuating. There really is a procedural presumption of innocence, and when you see it in action it is really quite a remarkable thing on the whole.

          • earlofhuntingdon says:

            I think there’s a disconnect in your conversation. Presidents Cheney and Bush assumed that anyone they detained was guilty. More precisely, I think they dispensed with the notion of guilt as a prerequisite to detention and criminal punishment. They acted as if they believe they had the unrestricted right to hold the targets of their ire indefinitely without reason, at least any reason they had to prove to others in an open, fairly constituted and disinterested tribunal, using evidence considered reasonably admissible.

            In the real legal community, the standard is innocent until proven guilty. Sure, that standard is sometimes violated by politicians, ambitious prosecutors and the media. But it’s the standard. Does the system work better for the moneyed who are well-lawyered? That’s true, too.

            As you know, a lawyer is not required to believe his or her client innocent or guilty. On defense, s/he is required and often does provide a zealous defense, asserting all rights his or her client may have. The prosecutor hasn’t the luxury of believing in whether the defendant is guilty. If the state has a case, if there’s adequate evidence to prosecute a case, s/he has an obligation to prosecute without passion or prejudice, with some room for discretion in picking and choosing cases based on a variety of circumstances, including limits on resources. I’m sure they often do believe in the righteousness of their case.

            As usual, reality is more complex, good and evil are more interwoven, than we would like to believe.

            • bmaz says:

              As to the Bush actions in relation to detainees yes, but gamd521 very much also extended the proposition to regular everyday criminal court proceedings of all kinds. Basically he is saying that if a person is charged there is a presumption of guilt. That is not the case, there is an accusation determined to be sufficient for trial based upon probable cause in front of a detached neutral authority, whether it be magistrate or grand jury, But the root procedural presumption of innocence maintains all the way through verdict. It is far from perfect, but it does exist, does work and, overall, works surprisingly well.

              • gamd521 says:

                OK I can’t resist. If you are to be convincing you will have to do better, you are only dragging the procedure out a bit.

                An accusation is a presumption of guilt in this every day parlance, you are accused by the autorities by incriminating evidence of having been guilty of breaking a law. If that accusation passes some threshold, that accustion/presumption atays with you throughout the proceedings.

                In the abscence of someone believing or presuming that you broke some law, the proceedings just doesn’t proceed.

              • earlofhuntingdon says:

                I agree; the commentator conflated the extremes with the normal, the very process Bush and Cheney used to present their miscarriages of justice as if they were normal. Hence, my comment. The idea that who has the burden of proof has no practical effect on the outcome of a criminal trial carries constructive cynicism to Orwellian heights. It is a good way to hijack a thread.

                • gamd521 says:

                  I conflated nothing.

                  As if that method even has any value in contradicting an argument. A reductio ad absurdum is exactly where you show the conclusion to be false because you carry premises to their logical conclusion, which conclusion is absurd. Or when you discredit a general conclusion by citing a single exception as a counter argument showing the general claim to be false.

                  My claim with out the need of citing any example, is that the presumption of innocence is inconsistent with the way you proceed in the adjudication of a crime.

                  If you accuse someone of breaking the law that means that you claim or presume that he is guilty of breaking that law, because there is incriminating evidence to support that presumption or accusation. That is what “accusing” means in this context.

                  If you did not entertain that well founded presumption of guilt you would not have accused that person of being guilty of committing that crime. At this point to maintain that you are accusing someone of breaking a law and at the same time to presume his innocence is contradictory.

                  If your grounds for making that accusation, or presuming that the person is guilty of having broken that law, passes mustard then the trial process begins. But the accusation against the accused doesn’t ever vanish into thin air as the proceedings go forward.

                  What happens next is that the state which is the aggrieved party prodeeds as if the accusation of guilt has been misapplied (presumption of innocence) unless a jury decides to side with the state’s accusation of guilt. But to act in this way is a contrivance and to pretend that a preumption of guilt never enters the proceedings is patently absurd.

                  No one is arguing that this method of trying the accused is wrong or apt to lead to false convictions,only that the presumption of innocence does not suffuse the proceedings nor could it.

          • gamd521 says:

            Fine, one parting non harsh thought.

            In what material way does the following description of the justice sytem vary from one that is suffused with a presumption of innocence.

            When an accused is presumed to have committed a crime (ie charged) because of evidence, he is allowed to a trial with a defense and judge, in order to show that the presumption of his guilt by the authorities is not convincing.

            My point is that the presumption of innocence is a contrivance, it neither adds nor subtracts anything from the proceedings, from the outset to the end.

            • bmaz says:

              Ah, it is the charge placed on the trier of fact, whether it be a judge or jury, to give the benefit of the doubt – indeed beyond any reasonable doubt (which certainly does not mean beyond any doubt). And, believe it or not, I have found that judges and juries take this instruction and burden of proof quite seriously and actually try to apply it appropriately. And, again, believe it or not, overall, they do a surprisingly decent job. Additionally, for tangential purposes, whether it is right to bail (except in capital cases) and other procedural rights, it does place you in a different posture than in systems where there is a presumption of guilt (and there are some foreign countries where there is a presumption of guilt). All I can say is I have spent a long time working as a criminal defense attorney, and the presumption is there and does mean something. Sure, it is impinged on here and there, and having a good private lawyer helps and all that, but it is there.

          • freepatriot says:

            can I eat him ???

            been a while, but I’m sure I remember how

            if he don’t wanna believe a lawyer, let a criminal defendant give it a try …

  20. dfrakt says:

    As a former prosecutor and defense counsel, I’d like to step into the fray on the presumption of innocence. Obviously, prosecutors generally have a strong belief in the validity of the charges they present, although there are certainly times when prosecutions are done for other reasons, such as harassment, or to score political points. At a minimum, prosecutors are required to have probable cause/reasonable grounds for their charges, a much lower standard than being able to prove charges in court beyond a reasonable doubt. In practice, the presumption of innocence is quite powerful, requiring the government to prove each and every element of the offense charged beyond a reasonable doubt, and the defense to have no burden to prove anything, or even put on a defense. As an illustration of the power of presumptions, all you need to do is look at the Combatant Status Review Tribunals afforded the detainees at Guantanamo. In these tribunals, detainees were not afforded a lawyer, and there was a presumption of guilt, a presumption that the evidence offered by the government to justify detention as an unlawful combatant was accurate and reliable. When detainees were allowed to challenge the basis for their detention in a real court by way of habeas corpus petition, and the government was forced to prove by a simple preponderance of the evidence standard (more likely than not) that there was a lawful basis for detention, in the vast majority of cases, the government could not do it. The current tally is 30 to 8 (see http://www.miamiherald.com/1339/story/322461.html)

    I do agree that it will be hard for KSM and the 9/11 co-defendants to get a fair trial because it will be hard to find a jury that doesn’t know about the case or have an opinion about their guilt. Attorney General Holder has not helped matters by basically guaranteeing a death sentence. How many times did he say at the press conference that he was confident in a “successful outcome.” He also made it clear that successful outcome equated to death penalty. This was a clear violation of prosecutorial ethical guidelines on pretrial publicity.

  21. freepatriot says:

    it s the responsibility of a prosecutor to assume SOMEBODY is guilty

    I think the problem here is based in confusing the prosecutor’s presumption of guilt with a presumption of guilt by the government and people as a whole

    a prosecutor’s presumption of guilt is a separate issue, not to be assigned to anyone outside the prosecutor’s office

    jes sayin, is all

    • powwow says:

      I think the problem here is based in confusing the prosecutor’s presumption of guilt with a presumption of guilt by the government and people as a whole.

      A prosecutor’s presumption of guilt is a separate issue, not to be assigned to anyone outside the prosecutor’s office.

      Good point, freepatriot. That actually points directly to, and underlines, the great advantage that our federal criminal courts have over even a regularly-constituted military court-martial: The jury and the judge (and private defense counsel) hold independent power that is unaffiliated with and unbeholden to the Executive Branch investigators and prosecutors. The real-world operation of that crucial independence is well-described by bmaz @ 73. Whereas even in the fairest court-martial proceeding, unless and until appeals finally leave the Executive Branch military courts and reach the independent Judicial Branch, the judge(s), the jury members, the prosecutors, and the defense counsel are all part of the Executive Branch military chain of command, with the inevitable built-in biases, “presumptions,” pressures and conflicts that brings to the process.

      skdadl @ 60, exactly right. You are not “slow” – you are a victim of the deception and lies promulgated by our government. And rather than energetically cleaning house to get back to those “classic categories,” Congress is instead engaged in trying to fix the law around the existing facts of Guantanamo, as opposed to working to bring Guantanamo’s military prison back under the rule of law.

      Professor Frakt, either here, or elsewhere if and when you get a chance, with regard to the ‘reading Miranda rights’ issue I touched on in Comment 54 (an issue that was harped on by members of the Senate Judiciary Committee today), something that could very much use clarification from you or others, is how Article 31, Paragraph (b) of the UCMJ…:

      (b) No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

      …applies (or not) to non-citizen subjects of an American court-martial. I note, for example, this clear statement you made at Salon in the comment thread of your article there:

      If the military commissions law is actually rewritten to make the commissions “regularly constituted courts,” as required by the Geneva Conventions, then most of the same rules that apply for “you or me” would apply to detainees. This does not mean that Miranda would apply or that Fourth Amendment search and seizure rules would apply. No one has seriously argued that Miranda or the Fourth Amendment applies to non-citizens captured on a foreign battlefield, or that a warrant would be required for a search of a person or place overseas. Simply moving the detainee into federal court would not suddenly make these constitutional requirements apply retroactively to acts which occurred overseas years ago.

      Did commenters Howard Gilbert and Alan Kaufman (quoted @ 54) capture the nuance correctly, as to the applicability (or lack thereof) of Miranda and UCMJ Article 31 rights to non-citizens our military captures abroad? Anything you can add to that discussion would be very helpful.

      Thank you for all your input here and for your impassioned advocacy on behalf of the bedrock principles of American justice.

      • ondelette says:

        Prisoners being tried by a regularly constituted court under the Geneva Conventions have a right not to testify against themselves and to counsel, which is the basis for the Miranda rights. While it may not be true that they must be “Mirandized” (the FBI Mirandizes when they arrive on U.S. soil after already having interrogated suspects), one could very surely ask how having these rights does not invalidate information gathered without the defendant knowing what rights (s)he had under the laws of war
        (cf. Article 75, 1st Additional Protocol of 1977).

  22. dfrakt says:

    Article 31 of the UCMJ applies only to “persons subject to this chapter” that is, military personnel (or POWs being treated as POWs). Congress was very clear in the MCA that Article 31 did not apply to Guantanamo detainees (who have never been treated as POWs). It is lawful to interrogate persons detained during war (although the Geneva Conventions do not require them to answer), and one need not give them any particular set of warnings. The Supreme Court has required that Miranda warning be given in custodial interrogation settings before a statement will be admitted against an individual, but the Court has never held that an interrogation conducted primariy for intelligence purposes by military or intelligence services requires a warning. What the Court has held is that the Fifth Amendment and Due Process generally requires that any statements used against an individual be acquired voluntarily. While in the police law enforcement interrogation context, an unwarned statement in presumptively involuntary, this is not so in the detainee interrogation context. Before Miranda, there was a voluntariness standard that the Supreme Court applied. Basically, statements that were not “coerced” were deemed to be voluntary. So the key question in considering the admissibility of detainee statements is whether they were coerced. The administration of some kind of warning to a suspect is a factor in whether a statement is voluntary, but is not dispositive.

    • powwow says:

      What the [Supreme] Court has held is that the Fifth Amendment and Due Process generally requires that any statements used against an individual be acquired voluntarily. While in the police/law enforcement interrogation context, an unwarned statement is presumptively involuntary, this is not so in the detainee interrogation context. Before Miranda, there was a voluntariness standard that the Supreme Court applied. Basically, statements that were not “coerced” were deemed to be voluntary. So the key question in considering the admissibility of detainee statements is whether they were coerced. The administration of some kind of warning to a suspect is a factor in whether a statement is voluntary, but is not dispositive.

      Excellent clarification, thank you. Which I think basically squares with ondelette’s answer at 83.

      In thinking about Article 31’s applicability, I’m thinking of what could have been with (any legitimate war criminal suspects among) the Guantanamo-detained prisoners, rather than what is. That is, if, instead of resorting to the Bush/Guantanamo Military Commmissions, we had decided to prosecute in our regular military courts any suspected war criminals among the number of our legitimate armed conflict detainees, I wanted to clarify how UCMJ Article 31 rights would apply and complicate (or not) prosecutions of non-citizen suspects. Partly in an attempt to knock down the misleading talking points of people who ought to know better, like self-appointed JAG spokesman Senator Lindsey Graham, who imply or flatly state that honoring the right not to have coerced statements used against one in court somehow precludes effective prosecution in a law-of-war court-martial (or federal court), or impedes in some way battlefield operations.

      As it is, it seems obvious that any statement that we obtained post-capture from the 9/11 Five (among others in Guantanamo) can not possibly qualify as uncoerced, regardless of whether any warning, or no warning, of the right to remain silent was ever given. Thus, no doubt, the careful caveats about “voluntariness” that leave room for the admission of coerced statements in 2009’s revised Military Commissions Act [starting on PDF Page 385 of 655].

      To wit:

      -‘Sec. 948r [of the revised USCode Title 10, Chapter 47A, Subchapter III]. Exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment; prohibition of self-incrimination; admission of other statements of the accused

      ‘(a) Exclusion of Statements Obtain[ed] by Torture or Cruel, Inhuman, or Degrading Treatment– No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made. [This flat exclusion is an improvement over earlier versions of the bill.]

      ‘(b) Self-incrimination Prohibited– No person shall be required to testify against himself or herself at a proceeding of a military commission under this chapter.

      (c)Other Statements of the Accused– A statement of the accused may be admitted in evidence in a military commission under this chapter only if the military judge finds

      ‘(1) that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and

      (2) that–

      ‘(A) the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence; or

      (B) the statement was voluntarily given.

      ‘(d) Determination of Voluntariness– In determining for purposes of subsection (c)(2)(B) whether a statement was voluntarily given, the military judge shall consider the totality of the circumstances, including, as appropriate, the following:

      ‘(1) The details of the taking of the statement, accounting for the circumstances of the conduct of military and intelligence operations during hostilities.

      ‘(2) The characteristics of the accused, such as military training, age, and education level.

      ‘(3) The lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused.

  23. MikeD says:

    We did attempt to decapitate the Al Qaeda terrorist network by using sea-borne cruise missiles to strike targets inside Afghanistan and Sudan in 1998.

    I don’t know that that constitutes the start of an armed conflict under Geneva Convention definitions, but I don’t know that it doesn’t.

    • powwow says:

      I don’t know that that constitutes the start of an armed conflict under Geneva Convention definitions…

      Getting down to brass tacks, MikeD, I don’t think it does.

      To quote from this report…:

      16th February 2009

      In one of the most extensive studies of counter-terrorism and human rights yet undertaken, an independent panel of eminent judges and lawyers today presents alarming findings about the impact of counter-terrorism policies worldwide and calls for remedial action. The Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, established by the International Commission of Jurists (ICJ), has based its report “Assessing Damage, Urging Action” on sixteen hearings covering more than forty countries in all regions of the world.

      …Beginning on Page 51, in Chapter 3 [PDF Page 65 of 213]:

      The [Eminent Jurist] Panel considers that the US has conflated two distinct legal regimes by treating “acts of terrorism” as “acts of war.” The conflation has had profoundly negative consequences: In the short term for human rights violations, and in the long term for core principles of international humanitarian and human rights law.

      In proclaiming its “war on terror”, the US failed to make the crucial distinction between terrorist acts which take place within a setting of armed conflict, and terrorist acts falling outside of armed conflict. Acts such as attacks against civilians or civilian objects and the taking of hostages may take place during or in the absence of armed conflict.85 When such conduct occurs in peacetime (even during a national emergency or during internal disturbances not amounting to armed conflict) the legal framework that applies is not international humanitarian law, but that of international human rights law and domestic criminal law. However, if similar acts trigger or occur during an armed conflict, they may well constitute war crimes, and the applicable legal framework is that of international humanitarian law [the law of war], coupled with international human rights law.

      One serious consequence of the US’s conflation of terrorism with warfare has been to label as “enemy combatants” the perpetrators of terrorist acts and members of, or persons allegedly associated with, terrorist groups outside of situations of armed conflict.85 As noted, international humanitarian law [the law of war] only applies to recognised situations of armed conflict, and the term “combatant” can have legal meaning only in the context of such conflicts. Thus, when terrorist suspects are detained in the absence of warfare, they cannot under IHL be properly classified as combatants and/or tried for war crimes. Yet, this is precisely what President Bush’s November 13, 2001 Military Order provides for.86 This measure, inter alia, authorised the detention and military trial of “enemy combatants” for “violation of the laws of war and other applicable laws”. “Enemy combatants” were defined to include any alien whom the President (in his sole discretion) determined had “engaged in, aided or abetted or conspired to commit” acts of international terrorism regardless of whether the proscribed acts were committed, or such persons were captured, in a situation of armed conflict as understood by IHL.87 Acts of terrorism committed outside of armed conflict are criminal acts. However, they are not war crimes under international law,88 and neither the US President nor the US Congress can unilaterally make them so. Designating terrorist suspects as combatants in situations not entailing armed conflict not only has potentially draconian consequences for the persons concerned, but also utterly distorts humanitarian law’s customary and treaty-based field of application.

      […]

      The conduct of armed conflict is governed by international humanitarian law (IHL), including the four Geneva Conventions of 1949, and their two Additional Protocols of 1977, and rules of customary international law.89 Many violations of international humanitarian law are codified as substantive offences covered by international criminal law and are contained, inter alia, in the Rome Statute of the International Criminal Court.90

      International humanitarian law [the law of war] has clear boundaries delimiting the conduct that can be considered an armed conflict; the widely accepted test is that articulated by the International Criminal Tribunal for the Former Yugoslavia,91 and endorsed by the International Committee of the Red Cross.92 This assessment looks to (a) the identity and level of organisation of the putative parties to the conflict, and (b) the scale and intensity of the conflict. These criteria allow for “distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.”93 The current situation (aside from the conflicts in Afghanistan and Iraq) clearly do not meet either of these criteria.

      With respect to the first criterion, an armed conflict can only exist between clearly identifiable armed groups and/or State forces which are cohesively organised with a responsible and recognisable command structure, and have the capacity to sustain military operations. As noted, while the US no longer considers itself at war with all terrorist groups, it has identified its adversary as “al-Qaeda and associated groups”. The dominant view seems to be that al-Qaeda is a loosely connected network rather than a single transnational organisation.94 However, even if al-Qaeda were considered to be a cohesive and well-ordered collective that shared common strategies and tactics, it is still difficult to conceive of it as a unitary armedforce and, as such, a party to the conflict. The inclusion of indeterminate “associated groups” makes it even more difficult to identify the parties to the conflict and impossible to characterise them. […] Both practically and legally, there is no identifiable party to the conflict with which negotiation, defeat or surrender can occur.

      The second criterion requires a certain scale and intensity of armed conflict which would go beyond sporadic acts with long interstices: this criterion is also not met. Apart from the armed conflicts in Afghanistan and Iraq (which the outgoing US administration claims are part of the wider “war on terror”), there has been very little “fighting” in this putative “war on terror”. The idea that there is a global conflict can only possibly be sustained, at best, by assimilating various US allies as parties to the conflict i.e. the UK, Spain, Indonesia and others who have been the target of attacks by al-Qaeda and “associated groups”. The Panel, however, received no information indicating that any of these States consider themselves to be engaged in an armed conflict with these groups. On the contrary, the post September 11 terrorist bombings in London, Madrid and Bali were not treated as acts of war, but as criminal acts, and the authorities applied law enforcement, not military, means to address them.

      Strictly speaking, international law does not necessarily place clear temporal limitations on armed conflict. Nonetheless, war without a foreseeable end would not sit comfortably with the purposes and objectives of the United Nations Charter.

      […]

      Insofar as the US denies any reciprocal rights to its adversaries in the “war on terror”, its war paradigm is inconsistent with a bedrock principle of humanitarian law – equality of the parties.

      […]

      The fact that there is no credible legal basis for a “war” on terror, as defined under the laws of war, outside of situations involving actual armed conflict, does not however imply that there is no legal framework within which to confront al-Qaeda and associated groups. On the contrary, criminal and human rights law remain fully applicable and, in the view of the Panel, these legal regimes are amply equipped to address the challenges of terrorism.

      http://icj.org/IMG/EJP-report.pdf

      See also a brief summary of the law of armed conflict I wrote here, which quotes this definition of (non-international) armed conflict:

      2. Non-international armed conflicts [NIAC] are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation.

  24. MikeD says:

    powwow, thanks.

    As you’ll notice, I didn’t ask why, under the assumptions being discussed, you hadn’t in effect endorsed the use of military commissions to try those the government believes guilty of violations of the laws of war, or the practice of choosing between them (MCs) and federal courts based on differential evidentiary or procedural requirements. Instead I merely asked how it was you hadn’t implicitly endorsed their claim to have the right to choose between a civilian and a military prosecution in general, the only regularly constituted version of which is standard UCMJ courts-martial, (or pursue both) in cases when they believe both USC violations and law of war violations had occurred. And I take your point that in addition to the assumptions being made about the context of international armed conflict, the accused would have to be a “properly-classified […] enemy POW.” But I take it under those conditions you do confirm that that choice legitimately exists at least in some cases, though I take you say that the exercise of that choice by the government cannot contemplate “lower standards of evidence or attempting to obtain less due process [in one of the fora].” I wonder, would prohibition in these circumstances also extend to expectations about a higher likelihood of conviction or more appropriate sentence based on factors other than those you mention? What are the legitimate considerations the government should use to select a forum in those circumstance where they have a choice under the law of where to file charges?

    With respect to whether the assumptions we have been laboring under (acceptance of an interpretation in which a state of war that satisfied GC conditions for law of establishing that law of armed conflict procedures governed the treatment of POWs taken in that war involving the United States commenced with, for example, the retaliatory missile strikes in Afghanistan and Sudan in 1998) do or did apply in fact, I thank you for your analysis and conclusion. I certainly had my doubts.

    • powwow says:

      I wonder, would prohibition in these circumstances also extend to expectations about a higher likelihood of conviction or more appropriate sentence based on factors other than those you mention?

      I don’t think so, although other considerations are probably paramount (nature of the offense, and applicable penalties under domestic law vs. armed conflict law – which I guess actually encompasses your “more appropriate sentence” circumstance). As for the rest, I think it can be chalked up to normal “prosecutorial discretion” as it’s generally understood.

      But, first, the overriding consideration during an actual armed conflict, when we want to try an enemy POW as a war criminal, is that we use the same courts and the same procedures that we use to try US servicemembers, as the EJP report (in Chapter 3) explains clearly here:

      Had the US accorded prisoner of war status to fighters captured in Afghanistan in 2002 and charged them with pre-capture offences, they would (in accordance with Article 102 of the Third Geneva Convention) have been tried before the same courts, and according to the same procedures, as US military personnel.123 Thus, detainees would have been tried by civilian courts or courts martial operating under the United States Uniform Code of Military Justice. Moreover, the US authorities could not have subjected detainees to punishments, or to more severe sentences, than those applicable to their own military personnel.124

      Since most US servicemembers committing offenses in the line of duty (or at least, like Hasan, while on active duty) are likely to be charged under the UCMJ, including, potentially, by court-martial, it seems that the default forum for trying enemy POWs is probably the same UCMJ military justice system, even if, as with the 9/11 attacks, there could be an argument made that using the regularly-constituted federal civilian courts is an unprejudiced, available option.

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