Koh v. Johnson: Material Support in Far Away “Battlefields”

I don’t know about you. But I’m sort of bored with the Holder v. Rahm fight over torture and Gitmo. My hope is they’ll start a military commission trial, it’ll get delayed and challenged, and Holder will be able to demonstrate in terms even Rahm understands that civilian trials are not just a question of politics–they are also clearly more efficacious.

Ah well.

Lucky for us, there’s a new debate to watch, this one between State Department Legal Advisor Harold Koh and DOD General Counsel Jeh Johnson, over whether Presidential wartime powers are limited to those actually in al Qaeda, or include those more loosely affiliated with the organization. As Charlie Savage describes, both have written secret memos advocating a position on the issue.

But behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia — far from the active combat zone — and was being held without trial by the United States at Guantánamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.

The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration’s detainee policies, became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.

Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

Part of me actually wonders whether the debate stems at least partly from Johnson’s greater familiarity with whom we’re already keeping–which includes a bunch of people whose “material support for terrorism” is really quite tenuous. That doesn’t justify holding them, but this may be a question about whom we have already held for 9 years.

Still, the ramifications of holding those who materially supported al Qaeda are pretty ominous, given the fairly expansive notion this country has used to claim material support.

And meanwhile, David Barron–Dawn Johnsen’s stand-in–basically punted on this question, seemingly hoping that some judge who is not a radical Bush appointee will make the decision for him.

27 replies
  1. bobschacht says:

    This is just sick. Corruption must be contagious.

    And how can it be that we’re discussing “wartime” powers, when Congress hasn’t declared war? Yes, I’m aware that Lindsey Graham and the War Party are running around declaring we’re at war, but the AUMF is not a declaration of war.

    Bob in AZ

  2. earlofhuntingdon says:

    Imagine the 1930’s German government enforcing on a global scale a comparable “material support” law against opponents of its proxy wars. Take the Spanish Civil War, for which Germany provided money, men, machines and intelligence. Germany would have imprisoned how many Hemingwayesque ambulance drivers and freedom fighters and even war correspondents like Eric Blair?

    Imagine if the UK had enforced comparable laws against those aiding the IRA in Ireland during the Troubles. Pubs up and down the East Coast and in every steel town in America would be a tad less busy, with some of their most regular customers – and their uptown pals – rotting in some jail on an island off the Scottish coast that’s on no map.

    The global jurisdiction and the tenuousness of the acts needed to constitute “material” support are US claims the international community should not take lightly, nor support or help us enforce without bloody good evidence that such aid lead directly to attacks against the United States.

    As for the US, it will be busy for a while trying to try once upon a time children on claims that they threw a hand grenade at soldiers invading their Iraqi towns and villages. Last I looked, that was called self-defense and regardless, it does not justify torture or abusive treatment by jailers while in US prisons.

  3. earlofhuntingdon says:

    If David Barron punted, he was instructed or allowed to do it by Eric Holder. Otherwise, Holder would have taken him behind the woodshed for failing to advise the executive on a vital question of law that affects US security and its standing in the international community. If Mr. Holder is the most prominent lawyer who still understands the difference between law and politics, we’re in a heap of trouble.

  4. earlofhuntingdon says:

    As for the views of Brett Kavanaugh and Janice Rogers Brown, as reported by Charlie Savage, “that the laws of armed conflict did not limit the president’s war powers”, I expect no less from two of George Bush’s most radical and contentious appointments to the federal bench. (Since all of Bush’s picks were all radical and contentious, these two set quite a mark for radical conservatism, a complete lack of credible experience (Kavanaugh) and judicial activism that would make a legislature blush (Rogers Brown).) I hope that real lawyers weigh in on such issues.

    • bmaz says:

      In California, lawyers I know referred to two classes of appellate decisions, regular decisions and Brownies. Literally would distinguish them in court by noting that she authored them.

      I liked this passage from Savage’s article, I am sure everybody here will be shocked, shocked:

      “I think the change in tone has been important and has helped internationally,” said John B. Bellinger III, a top Bush era National Security Council and State Department lawyer. “But the change in law has been largely cosmetic. And of course there has been no change in outcome.”

      • Mary says:

        And that from a guy who clearly knows a thing or two about cosmetics.

        Karma would be an afterlie where al-Rabiah was the rule of divine law advocate who decides whether Bellinger and Koh and Haynes and Johnsen etc. continue to be held in purgatory forever.

        I actually thought the most revealing part of the whole article was the determination by all Obama’s boys to follow in his footsteps and just hope to avoid the hard questions.

        Sept 2002 – torture field trip to GITMO. Sept 2009, torture field trip to OLC office on 5th floor of DOJ, the new “virtual” GITMO, where conceptualizations stand in for actualizations and a “debate” is something that involves both “sides” of an administration and no one advocating against the administration. What better way to reach the consensus that:
        ” For as long as possible they would try to avoid that hard question. ”

        Wow – that sure doesn’t sound like Obama, avoiding the hard questions.

        And the hard question, btw, with decent men and women, would be the continued detention that they just flowingly opt into *by default.*

        If you chain the sick dog up in the yard with no food and water while you “debate” whether to put them down or not, as the “hard question” and you leave them there day after day, with no food, no water, no care, while you “avoid” the hard question, that’s all just words on a page. You have decided the hard question by your actions – you choose to to torture by passive neglect. It’s a choice. You can’t escape culpabity for it, here or somewhere. As detainees age, their children grow, their families-religious groups-tribes-countries etc. watch, all with the US just claiming a “we dither” defense as its rationale, the choice is made.

  5. earlofhuntingdon says:

    It would be hilarious, were it not so tragic, to compare the effort the US applies to finding tangential cases of “material support” and the effort it strenuously avoids applying to the obvious cases of rape and fraud among US mercenaries and contractors in Iraq and, presumably, now also in Afghanistan.

    The latter are things the US DoJ has or had exclusive jurisdiction to deal with and it has avoided dealing with nearly all of them, even the most egregious. The former are pursued through the efforts of thousands of agents across the globe. What’s wrong with that picture, I wonder.

  6. bobschacht says:

    The Charlie Savage article purports to depict a fight between the expansive power argument of the Bushies, and the narrower power argument of Obama’s folk (mainly Clintonistas?)

    The problem is that the argument is over how many kinds of people can be imprisoned without trial as wartime detainees?

    I thought our Constitution had a different idea in mind.

    Shouldn’t the argument be over *whether anyone* should be imprisoned without trial as wartime detainees?

    Bob in AZ

    • Jeff Kaye says:

      Yes, the Satanic version of how many angels can dance on the head of a pin scholasticism.

      Note that “at a recent American Bar Association event, Mr. Koh argued that the administration’s changes — including requiring strict adherence to anti-torture rules and ensuring that all detainees are being held pursuant to recognizable legal authorities — have been meaningful.”

      Of course, this is true if you ignore Obama’s own secret black sites, and little things like Appendix M, or the rendition policy.

      It’s worth reading Koh’s take on Iran-Contra in his book on “National Security Constitution”. In the end, what we see is the abstracted academic’s approach — so well-tuned for government policy making — which asks us not to look at individual responsibilities, but at structural inquiries… endless structural inquiries, while academics like Koh can write more books with their fairy tale, bloodless account of history as a sequence of written proclamations. It never occurs to Koh that leaving the actors in place, or failing to get to the bottom or hold to accountability the individuals who staff and run and make policy for the institutions of this country has any effect on the subsequent laws and orders that issue from the various governmental departments, or on the actions of later holders of office.

      Is there no one in our government that actually understands history? It certainly isn’t Barack Obama and his staff.

    • tjbs says:

      That first person would be EW.
      Look at the salt pit story coming out this weekend.

      EW has built, brick by brick, a airtight case that can’t be denied.
      Think back a year to what, thanks to EW and cohorts have documented, we have learned and the rest of the country is back a year or 7, as in salt pit, and will not support what has been done in our country’s name in the end.
      Before you hang someone you must build the gallows and create a noose.
      Then comes the hanging, so to speak. The lie has come and is going but the truth will stand the light of day.

  7. harpie says:

    Here is a link to the text of a speech Koh recently gave:

    The Obama Administration and International Law; Harold Hongju Koh, Legal Adviser, U.S. Department of State at the Annual Meeting of the American Society of International Law; Washington, DC; March 25, 2010

    I haven’t finished reading, yet, but thought some might be interested.

    • harpie says:

      Scott Horton on this:

      […] I asked Human Rights First’s international law director Gabor Rona, a former lawyer with the Red Cross in Geneva, what he made of the article and the battle lines drawn in it. He responded:

      The basic point is that the Obama Administration has moved from an incorrect interpretation of presidential powers under the Bush Administration to an incorrect interpretation of the laws of war, with the same result.


      • Mary says:

        Hard to get a better summation than that.

        Obama has pretty much foregone any attempt to work with people like Mora or Taguba who could give him insight and credibility, though.

      • earlofhuntingdon says:

        Horton makes another point in that article, a correction that shouldn’t be necessary for Charlie Savage. Savage puts into a quote by Harvard law professor Noah Feldman the notion that in wartime, the government has power to detain as well as the power to kill:

        But Mr. Feldman, the Harvard professor, said the detention debate also had “serious consequences” for the targeted killings policy because, “If we’re at war with you, then we can detain you — but we can also try to kill you.”

        Both are consequences of being at war, but the two are not related as simplistically as the quote implies. A combatant, whether “legal” or “illegal”, can legally be killed in certain circumstances, but not, for example, after s/he credibly surrenders and gives up their arms.

        Once detained, the government, like any jailer, has obligations to keep those it detains safe, fed and healthy. It cannot legally kill or mistreat its prisoners. It has no lawful power to torture them. Arguably, it has no lawful power to detain them indefinitely in a war that the government admits has no limitation in space or time, nor to transfer them across the globe for enhanced interrogation or other purpose.

        • harpie says:

          Thanks for illucidating that important point, earlofhuntingdon.
          You’re right, that correction shouldn’t have been necessary.

  8. skdadl says:

    We read earlier this week that Koh had figured out a way for the U.S. to come in out of the cold and join the ICC — ensure that the U.S. can never be prosecuted itself, and then everything will be fine. Ahem.

  9. wavpeac says:

    As long as the “delusion” continues that Muslims are not people, or that “possible terrorists” have no rights, this behavior will continue. As usual Obama has not corrected loudly this identification error in thinking. Our constitution says that all men are created equal. It is only through a court process that these rights are stripped. (or an act of war which determines that even children are not valid people but collateral damage).

    I prefer to change the paradigm somewhat and suggest that this type of “murder” begins the minute we invalidate another human being. When we blame the “type” of human who does this, we lose touch with the part of the process that humanity is accountable for. My thesis is that violence against another human being cannot occur without the mechanism of “invalidation”. I do think it’s true that some human beings are more vulnerable to this mechanism than others. But it’s like not seeing the forest for the trees.

    Once we begin down the slippery slope that another human being is “not really human” or “not valid”…”not deserving of protection under laws” we are basically beginning the path toward violence. Whether we are hitting a child who has done “wrong”, a spouse that “pushed my buttons”, or a “terrorist” or just someone “guilty”. I wish that we could see the structure of this mechanism and how it runs through all forms of violence.If we understood this mechanism we could be more careful about how it is used.

    The “invalidation” of “other” is rampant right now. It’s even being applied to the president, to liberals, and to Muslims. The scope of this mechanism is broadening.

    So…back when “all humans were created equal” (valid) we made a law that said the crime of murder has no statute of limitations…does that apply here?

    To me, this is the best explanation for genocide, for torture, for child abuse, and for sexual abuse. It creates the delusion, by thought, that a human is not a human. It seems like we all need to be very aware of this mechanism…so we will not be surprised by the violence that follows this thought, or that we may have some chance of changing this. It is literally a delusional thought. The map is not the territory. This violence began the minute the Bush administration stopped seeing humans as humans. This is the very first step in an episode of violence.

  10. bobschacht says:

    wavpeac @ 18,
    You are quite right. Almost every instance that I can think of is preceded by a phase in which the “Other” is viewed as less than human. President George W. Bush’s version of this was to label the terrorists as “bloodthirsty killers,” spoken despisingly, with dripping condescension. He wanted us to share in despising and hating the terrorists, so that he could justify all manner of illegal methods against them.

    But in the process, he turned some of our own troops into bloodthirsty killers. All one has to do is read some of the transcripts of actions our troops took in Fallujah and a few other places where it turns out that our troops killed innocent citizens, at close range. It is ever thus with war. But it becomes worse when our army of “volunteers” gets so desperate for recruits that it accepts convicted felons into its ranks.

    As Walt Kelly once wrote in “Pogo,” We have met the enemy, and he is us.

    Bob in AZ

  11. Mary says:

    BTW – who is going to be arguing for military commissions for the Hutarees, for shipping them to GITMO, for torturing confessions from them, for chargeless forever detentions, for disappearing their children …


    @18 & 20 – that’s another place where the war construct is so important. Murder has no SOL, but in a “war” so few things done by the “winners” are murder. At least as much as the desire for lawless commissions, the desire to be able to kill without consequence underlies the war on terror – whether killing civilians as a wedding by bombing them or assisting a Latin American assault on a plane with a US missionary and his family that kills a mother and her clutched infant, an Administration sells killing to its killers by promising them a construct where there is no prohibition on killing.

    OTOH, they then face the problem that this means the other “side” of the “war” is also often allowed to claim war’s absolutions for its killings and plots to kill and assistance in killing. Which is why you need commissions, where you make up the rules so that you can use a very different set of rules for “their” killers and your own “good soldiers” whose toddler and infant deaths, from Haditha to missionary planes, are a completely different matter than the “lawless” killers you are fighting.

  12. ondelette says:

    I like that. Punted. I can’t think of a better term, but there has to be something a little more forceful for somebody who was so scared to make a decision that he adopted a policy of ‘continuing the discussion’ when people’s lives and the human dignity of prisoners were being sacrificed during the continuation. This guy David Barron appears to have been a totally inappropriate appointee for an interim OLC head, not able to comprehend that the whole thing wasn’t an academic discussion, and needed to have feet put down and decisions made.

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