The Law and the War

In an important Guantanamo Bay habeas corpus case last week, the D.C. Circuit Court of Appeals delivered a stunning blow to the federal government, ordering it to release, transfer or hold a new hearing for a detainee whose case had been percolating through the courts for years. Huzaifa Parhat, a Chinese Uighur detainee, had been held by the Pentagon as an enemy combatant, and his detention had been reviewed by the Pentagon's administrative tribunals.

But after reviewing the evidence, three judges on the D.C. Circuit (including David Sentelle, one of its most conservative) decided otherwise, sternly rebuking the government for its flimsy case in a just-declassified opinion.

According to today's Post:

At issue was whether a military tribunal fairly weighed evidence that the government alleged linked Parhat to a group with purported ties to al-Qaeda and the Taliban.

Parhat, a member of the Muslim Uighur movement that is seeking a separate homeland in western China, left his country in May 2001 to avoid persecution, then lived in a camp in Afghanistan. After a U.S. airstrike, he and other Uighurs fled to Pakistan, where they eventually were handed over to U.S. authorities.

Parhat's tribunal determined that he had not engaged in hostilities against the United States or its allies. But it concluded that he was an enemy combatant because he lived at the Afghan camp, which was allegedly run by the leader of a group tied to al-Qaeda and the Taliban, according to the appellate opinion.

The tribunal reached that conclusion based on evidence in classified documents that "do not state (or, in most instances, even describe) the sources or rationales for those statements," the judges found.

The judges were particularly concerned with government assertions that the evidence was reliable because it was repeated in separate documents and that officials would not have included the information if it were not dependable.

"Lewis Carroll notwithstanding, the fact the government has 'said it thrice' does not make an allegation true," wrote Judge Merrick B. Garland, quoting from Carroll's poem "The Hunting of the Snark."

Quite right. Repeating assertions, hiding behind the veil of classified information, citing unnamed (and unmentionable) sources and methods, making vague assertions of fact -- none adds up to a solid case. The court was right to lift the shroud of secrecy on this case to show that the case against Parhat was a sham.

There have already been cries from critics (and I expect more on the Wall Street Journal editorial page shortly) that this case illustrates the folly of applying law to war. And that if we hold battlefield detentions to peacetime standards of proof, we will handcuff our troops and prevent them from achieving victory. These criticisms represent a particularly virulent strain of the "lawfare" argument, as well as an institutional argument against the involvement of any judicial body in the war on terrorism.

What these arguments miss is the important role that law plays in war. It confers legitimacy, creates transparency and provides procedural mechanisms for the redress of grievances, among other things. To the extent that policies adopted by the executive branch veer off course, or in this case, lack any factual underpinning, judicial oversight in individual cases can right the wrong. I wouldn't want to see judges riding in tanks, as my colleague Eric Posner suggests. But I think there's a very important role for law and legal institutions to play in this war, and that the D.C. Circuit did it well here.

By Phillip Carter |  July 1, 2008; 6:20 AM ET  | Category:  Law
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'O frabjous day! Callooh! Callay!'

The Hunting of the Snark, Lewis Carroll

How nice to be able to use Lewis Carroll to applaud a very appropriate court ruling which cites the same author. I have quoted from Alice and Through the Looking Glass for years, only to have my audience look at me with blank faces - how very nice to know that some federal judges share my quoting tastes, and use Lewis Carroll's words so aptly.


Posted by: vklip | July 1, 2008 9:36 AM

The administration has put itself, and the country, behind an eight-ball the size of a boulder in this area.

The civilian legal process is not, in fact, the proper venue for a case like this. The man in question is not a citizen, was detained overseas and accused of having engaged in hostile acts against United States personnel overseas. Holding him, if the accusations against him are false and he is not dangerous, is inexpedient as well as unjust. The administration has had almost seven years to devise an administrative process for sorting out the combatants we need to hold because they would resume terrorist activities if released from the substantial number of other people who got picked up in haste in the early months and years of this decade.

What part other considerations -- such as our relationship with China and the likelihood that this individual might face the standard Chinese punishment for insurgents if returned to his own country -- might have played in the government's thinking on this specific case I cannot judge. The point is, though, that the correctness of the abstract legal argument against allowing enemy combatants access to civilian courts begs the practical question. What else are we supposed to do with detainees who we might not need to keep detained?

We should have a system with some accountability in place by now for processing these people. Any such system would make mistakes, for which relevant personnel could be held responsible (the ad hoc releases of detainees that have happened from time to time during the last few years have also made mistakes, as far as one can tell without anyone being held responsible), but it would get the government out of the trap created by bureaucratic inertia, in which a feared risk however small ends up being avoided by doing nothing if this is the path of least resistance. The administration hasn't set up such a system, and it isn't going to. What else besides the civilian courts do we have left?

Posted by: Zathras | July 1, 2008 10:28 AM

vklip didn't read the original WP article - "Parhat's tribunal determined that he had not engaged in hostilities against the United States or its allies. But it concluded that he was an enemy combatant because he lived at the Afghan camp, which was allegedly run by the leader of a group tied to al-Qaeda and the Taliban, according to the appellate opinion."
This is not a guy accused of "having engaged in hostile acts against the United States" - only acused of living among people who might be tied to people who were engaged in hostile acts.
But the point is correct - George Bush has screwed this and everything else up so bad that the courts actualy have to refer to Lewis Carroll - or Kafka - to describe the situation.

Posted by: John Warner | July 1, 2008 10:42 AM

Tempted to rewrite "the Hunting of the Snark" as "The Hunting ofthe WMDs" 'for it was a Bajoom,after all......'

Posted by: RMarigny | July 1, 2008 11:32 AM

It's one thing if a person is picked up on a battlefield after a firefight where it is clear that he was involved in the fight. Such a situation is how enemy combatants are traditionally captured and is what is envisioned in the Geneva Conventions as the way those suspected of being enemy combatants would be detained.

But when a suspect is handed over to the US by another country or is picked up by US forced based on a tip or some other piece of intelligence, that sounds a lot more like an arrest than merely the capture of a combatant on a battlefield. Should there not be a higher standard of proof for detaining such a person?

The answer to this question might be considered in light of the goals of the conflict in which we are involved, both in Afghanistan and Iraq locally, and more importantly, globally. We are involved in COIN operations in those two countries and are involved in a global COIN campaign in fighting GWOT. To be successful in such a campaign, we need to be seen as supporting some legitimate authority--either the government of the host country or for GWOT, the international community loosely. In either case, the perceived legitmacy of our actions is critical. The perception of the legitimacy of an action, especially the arrest (arrest is used as a term of art here, as opposed to the mere detention of a person on the battlefield) of a person--depriving him of liberty--is created by transparency. In other words, the audience for such an action--the population of the host nation or the international community--must buy into the rationale for the arrest. There must be some form of due process, open to public inspection in some way, for the detainees before we indefinitely deprive them of their liberty. Otherwise, we are just another oppressive regime that makes people disappear.

The use of legal standards in warfare confers legitimacy on actions. We are, in essence, fighting for the rule of law in this campaign. We can't fight for this concept with one hand while undermining it with the other.

Posted by: DM Inf | July 1, 2008 12:05 PM

Can somebody explain what is meant by "The Global War on Terrorism"? Are we really waging war against a means of conflict? On a method of war that is deemed illegal? If so, then terrorists are criminals, i.e. lawbreakers, and should be dealt with through a legal framework.

I thought Bush's response to 9/11 was founded on a fallacious perception of reality: a paradigm that was very wrong and has lead us to the current mess. In my view, terrorists are criminals. Those committing or conspiring to commit crimes against Americans should be proscuted, imprisoned, and perhaps even executed.

Treating them as warriors -- illegal or otherwise -- grants them a status they do not deserve, and only serves to strengthen their recruiting among disaffected Muslim youth. Militarizing the law enforcement effort against terror has twisted our policy, our armed forces, and our position in the world into something un-American.

Posted by: DanPatrick | July 1, 2008 12:41 PM

Google--"the 14 points of Fascism, Eternal Fascism, American Fascism", read "The 12 Year Reich" by Richard Grunberger, and "Totalitarianism" by Paul T. Mason. Then compare to the mis-administration of cheney and bush that has been whole heartedly endorsed by the entire Republican/Fascist party. Goose-steppers and rubber-stampers all.

Posted by: ghostcommander | July 1, 2008 1:01 PM

DanPatrick,

I find the following comments of yours most curious:

"Treating them as warriors -- illegal or otherwise -- grants them a status they do not deserve, and only serves to strengthen their recruiting among disaffected Muslim youth."

Uh, hello, these guys pretty much meet the accepted definition of the word "warrior."

I think you meant the term "soldier" in what you are trying to convey.

Just because one very corpulent Army Chief of Staff, decided to call soldiers "warriors", doesn't mean it is a correct term to describe a disciplined fighting force answerable to civilan authority and beholden to the Constitution (e.g. the US Army).

Speaking of "un-American" things, I would submit that calling US soldiers "warriors" is profoundly Un-American.

Posted by: IRR Soldier ... | July 1, 2008 1:03 PM

IRR Soldier - "Warrior" - in the context of the Geneva Convention means soldiers and others involved in a conflict - civilians, for instance, who spontaneously take up arms to repel an invasion. It's not a derogatory term.

Posted by: John Warner | July 1, 2008 1:19 PM

John Warner,

"warrior" in the manner used by DanPatrick is post-2003 "newspeak" that is rapidly gaining traction within the Armed Forces and policy circles. It is from this vantage that I take issue with his terminology.

He asserts that the term "warrior" is one that assorted terrorists and ne'er-do-wells don't desreve. I argue that it is precisely a term that describes them. They are "warriors" as opposed to "soldiers" beholden to civilian authority and a Constitution.

Since the unfortunate day has come where US Army officers wish to claim the honorific "warrior" as their own, we all should take notice and cool our rhetoric.

Posted by: IRR Soldier ... | July 1, 2008 1:32 PM

I take issue with the above statement "Such a situation is how enemy combatants are traditionally captured and is what is envisioned in the Geneva Conventions as the way those suspected of being enemy combatants would be detained."

No, the Geneva Conventions do not envision any 'Enemy Combatants'. They just consider the detention of four different types of people, of which we are concerned with two, POW's and Civilians. There is a convention document for each class of person, and a method for determining who is whom.

This use of the words 'enemy combatant' as if it had any legal standing is just confusing matters. The term was dreamed up by the current administration to attempt to create a new class of person who exists in a gray legal zone that is beoyond the normal laws of man or war.

Hitler tried the same reclassification of people he did not like, to strip them of their legal rights, but in the end it did not work for him either.

Instead of developing new courts and new laws in a blatant attempt to evade the existing laws an Geneva Conventions, we should use the laws and courts that exists now.

We should not be trying to draft 'Ex Post Facto' laws in attempts to justify our prior kidnap and torture. It is possible that the men we detained committed crimes, but we in turn have committed much worse crimes against them.

Two wrongs don't make it fair, or right. We should just let them go, for in truth be told, we don't want anything more to do with them, and they don't want anything more to do with us.

The augment that you can't let them go becuase they may be real pissed of at us for torturing them and may try to get revenge is the same argument that most rapists use for why they had to kill their victims. It's not one that holds up in any real court.

Posted by: James M | July 1, 2008 1:39 PM

Mr. Warner is incorrect; I do wonder on what he bases his remark. I did read the original article and have read as much as I can readily find from reliable sources about Guantanamo, the detainees, the "legal system" that operates at Gitmo, legal arguments for and against, and the various court rulings. I understand the nature of Parhat's detention and the "charges" against him and his compatriots - they are charged with being a friend of a friend of a friend who might possibly be a friend of our enemy. I agree wholeheartedly with the DC Appellate Court's ruling and celebrate their thoroughly correct decision using words from the Lewis Carroll poem cited in the Court's opinion.

Posted by: vklip | July 1, 2008 3:02 PM

James M - someone recently pointed out to me in another blog that SCOTUS used the term "enemy combatant" in a (circa) 1942 ruling on the case of the Germans who sneaked into the US with plans to commit sabotage, and were caught. They were held by the military and filed an unsuccessful habeas corpus motion, which was heard in and ruled upon in open court. I don't remember the cite, but I did read the case and the term "enemy combatant" is indeed used in that opinion.

While I'd much rather that the term was "made up", as so much was made up from whole cloth by this administration, in this instance that happens to not be the case.

Posted by: vklip | July 1, 2008 3:08 PM

The judge has used his court to define a plague upon our house which permits the passage of a lie to believed myth through its repeated pronouncement. It has become both chronic and endemic to our political process and the announcements of our government. Diogenes would have to complete an extreme marathon in his tube and with the lantern to find a few without its taint in Washington, on Wall Street, in minister pulpits.

By the way, a French general today had to gaul to accept responsibility and resign. Avoid embarrashment for his prime minister. Wow, could you see that happenning, here, among our well financed martinets. Guess not, oh so French. Viva La France!

Have we had some with courage this passage of Abu Ghraib, GITMO and other misbehaviour would not have occurred.

Posted by: Bill Keller | July 1, 2008 3:25 PM

Phil,

This wasn't a habeas case. The court had jurisdiction under the DTA.

Vklip,

It's not so much that the term "enemy combatant" was "made up out of whole cloth." It's that its meaning has been expanded beyond recognition, attributing new legal consequences to a phrase that has been used to describe a variety of persons. If the meaning of "enemy combatant" were restricted to people like the German defendants in Ex parte Quirin, that would be one thing...But it is being used much more broadly than that.

Posted by: Jen | July 1, 2008 5:36 PM

Vklip, even if the SCOTUS used the term "enemy combatant" in an opinion it does not create such a classification, just as referring to a UFO does not magic them into existence.

There is no 'enemy combatant' status either defined in, or alluded to, in the Geneva Conventions. Nor is their a reference to creating any worm hole through which they could drop. The blanketing nature of the overlapping conventions was to ensure that all classes of person are covered by either one, or more than one of them.

There is also no prior use of the term 'enemy combatant' in the US legislation.
While it may be useful as an adjective it is a phrase used to class a POW as something other than a POW, or when the person is obviously not a POW to try to remove the civilian from the normal rules of law by casting them as some sort of civilian with bad thoughts or associations and therefore sub human and not entitled to a normal legal defense.

Just because I refer to someone as a space cadet does not get them a set of wings and a space ship.
Just calling the Jews a lesser class of mortal did not get Hitler off the hook. Our inventing a new status of people we label 'enemy combatant' does not get us of the hook when it comes to evading the Geneva Conventions.

The conventions we signed were not designed to be convenient. They were designed to protect people in custody, not the jailers.

Posted by: James M | July 1, 2008 8:33 PM

I have 2 comments:

1. I love to hear the opinions from Judges hearing Bush Admin cases -- it is such refreshing objective perspective. The un-Holy Trinity of Bush/Congress/Media have so thoroughly screwed up our national dialogue that it takes an outsider to add insightful observations. The Government is fond of saying, "just trust us on this one guys" but the problem is: we can't and shouldn't. There is no credibility left. The landscape is littered ripe scandals dangling, bloated with corruption and deceit. Imagine how flimsy the supporting evidence was when Bush wiretapped millions of U.S. citizens! This "trust us" policy and refusal to divulge information because of "state secrets" is exponentially overused.

2. Is it any wonder the WSJ has turned into this rabid dog barking and yapping for MORE WAR UNFETTERED WAR -- you can just imagine Rupert rubbing his greasy fingers imagining new terror alerts and everyone being glued to FOX and reading the WSJ for tips on how to deal with all-time highs in equity & stock market losses.

Posted by: Stu Wilde | July 2, 2008 5:37 AM

JamesM - I agree with you entirely. I only intended to note that the use of the term "enemy combatant" did not arise in the Bush administration. I thoroughly concur with your assessment of this administration's cavalier expansion of the term. Indeed, laws protecting the rights of the unpopular are never convenient, but must always be upheld.

Posted by: vklip | July 2, 2008 9:44 AM

Our system seems to hang by the slender threat of judicial response to the depredations of Bush & Co on our laws and our Constitution. The legislative branch is paralyzed -- partly, of course, by the executive's unwillingness to provide the necessary information/witnesses. And the candidates offer no relief. Obama has reneged on accountability for the telecom companies that knowingly broke the law at Bush's behest. And McCain refused to extend the Army's Manual on interrogation to the CIA. Only the courts are "left" -- and many of them are infested with Bush appointees, so it's a slender hope at best for the protection of a country that, as of the mid-1960s, was really becoming what we hoped it would be.

Posted by: H R Coursen | July 2, 2008 10:04 AM

Pentagon's Top Investigator Resigning - AP

It is about time.

Posted by: Bill Keller | July 2, 2008 1:20 PM

This case clearly violated the concept of not accepting "circular reporting" in intel collection. It further does not meet legal standards of proof as evidenced by the court ruling. There will be some serious upcoming violation of rights and false imprisonment lawsuits from these Gitmo detainees once they are released.

This was is about to get even costlier. It's incredible to consider the amount of compensation that will be paid. And it will happen! This case will not be the exception; it is the tip of the iceberg.

Incidentally the courts should reexamine John Walker Lindh. It is very probable that his rights were violated and his conviction the result of DoJ malfeasance.

As for IRR Soldier's comment on warriors vs. soldiers, he is spot on. None of us with combat experience are warriors, but simply soldiers. Democracies do not produce warriors. I just saw "Mongols"--they were warriors b/c they fought for a warlord.

The biggest victim of this phony war on terror (PWOT) is the meanings of words and concepts.


Posted by: rangeragainstwar | July 2, 2008 2:34 PM

Jeeze guys, I had no idea there were other people who thought that "warriors" were a stupid appellation for our soldiers, sailors, airmen and marines. As IRR Soldier and Ranger state, the big difference between a warrior and a soldier is discipline.

I stand corrected.

I stand by my other point: terrorists, such as the 9/11 hijackers, are criminals. They're not engaging in a war, they're committing a crime, and the appropriate response is to use legal means to prosecute them. They're akin to pirates.

If Afghanistan won't turn them over, then very few people would object to us going in there and getting them, and if necessary rebuilding the Afghan government into something that won't harbor terrorists. Similarly, when the Bey of Tunis harbors pirates, the Marines land in Tripoli and kick ass.

The idea that a state MIGHT, SOMEDAY consort with terrorists would not, from a law enforcement perspective, justify an invasion.

A related irony: the NY Times reveals that CIA is using techniques to obtain "confessions" that were exactly the same techniques used to obtain "confessions" from our soldiers during the Korean War.

RangerAgainstWar, I assume you're familiar with the quote:
"In war, truth is the first casualty"?

Attributed to a Greek dead more than 2500 years. How little we've changed.

Posted by: DanPatrick | July 2, 2008 3:24 PM

Dan,

Your comments are valid and well-stated. As for Tripoli and kicking a-- on the Barbary pirates I'd like to point out that we didn't stay around and nation build; we had a country called the USA to build.

The same is true today. The welfare of the U.S. will not be secured in Baghdad or Kabul.

As for truth being a casualty of war, the meanings of words and phrases, with which we construct the truth, are the victims of the Phony War on Terror (PWOT), as well.

Posted by: rangeragainstwar | July 3, 2008 2:09 PM

What seems to be missing in much of this discussion is that the Geneva Convention prohibits the use of civilian courts to try members of the military, except in cases of war crimes. What is also missing in the discussion is the vast over reaching extension of the jurisdiction of US courts far beyond our borders. Does this mean that French courts could reach into Kansas to find they have jurisdiction?

Posted by: Anonymous | July 5, 2008 8:24 AM

"What is also missing in the discussion is the vast over reaching extension of the jurisdiction of US courts far beyond our borders. Does this mean that French courts could reach into Kansas to find they have jurisdiction?"

Spot on. The US has decided that its legal juridictions are international, so I can not see why France shouldnt declare the same. We actually had a US snatch team in Oslo, Norway, to grab mullah Krekar, former leader of Ansar al-Islam wich the norwegian police foiled by snatching him away in front of their noses. That constitutes an act of War against an ally if we want to go all judicial. Similarly in Italy and elsewhere. Quite simply, the US under Bush has declared international loaw nill and void, including the Geneva conventions.

(I have a dream... Of french commandoes snatching Donald Rumsfeld at night and carrying him away in a minsub for trial at the Hague... mmm... nice dream...)

Posted by: fnord | July 5, 2008 11:56 AM

War needs Laws, but the line is blurred to how much law is needed and what the laws should be. The Geneva Convention does not clearly cover this situation and the legal system is not capable of filling the gap. The above responses of calling these individuals "warriors" or not seem irrelevant, but it is the problem itself. Terminology and definition of what these individuals are is the root of the problem with the individuals detained in Guantanamo Bay. These individuals do not fall into any category under the Geneva Convention and there is debate if they can be classified as criminals. To define what they are would solve the problem of how to treat them, but their definition of the two current choices is not sufficient it's only beneficial to those detained, and neither definition fits the process or solves the long term problem detainees can created. To use the Geneva Convention as Enemy Prisoners of War (EPWs) would inadvertently sanction individual wars and to claim they are criminals would cause problems of legitimacy to the detention by the United States. It's a no win situation for the U.S. and to claim it's the fault of President Bush and his administration is a gross misunderstanding of the situation itself. This problem is bigger than one person or an administration, it will define the future of law in war and what is acceptable tactics internationally in future conflicts. I suggest for more understanding one should read the article "Rescuing the Law of War: a Way Forward in an Era of Global Terrorism" by Michael H. Hoffman (2005) to grasp the magnitude of the consequences created by deciding to define the individuals as EPW's or criminals. The decision of their definition should not be made in hast to solve the situation quickly we are at WAR and rushing the solution could have long term penalties for the U.S. A new term and definition maybe the solution, but then a new process of dealing with this new class of hostels must also be created, which is no easy task. Respectly CPT Liz Ryser, US Army

Posted by: CPT Liz Ryser | July 11, 2008 7:35 AM

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