The Obama Administration’s Total Misinterpretation of IHL Regarding the Authority to Detain Suspected Terrorists

21 Responses for "The Obama Administration’s Total Misinterpretation of IHL Regarding the Authority to Detain Suspected Terrorists"

1. Obama administration ‘refines’ its detention authority to hold prisoners in Guantanamo « The Lift - Legal Issues in the Fight against Terrorism March 14th, 2009 at 14:33

   [...] More on Scotus, Opinio Juris, and The Washington Post. Excellent analysis at EJIL talk. [...]

2. John C. Dehn March 14th, 2009 at 17:30

   Though I have substantially posted this at Opinio Juris, I want to post it here as well with slight modification to address Marko and our colleagues in Europe.

   I, for one, am profoundly impressed and pleased with the general approach being taken by the Obama administration. First, the administration is actually paying attention to the scope of authority provided by Congress. That the President recognizes he is limited by law is an important development. While one might fault Congress for authorizing the use of military force against “organizations” or “persons”, of for doing so with such broad language, it is an important step (and historically accurate one) to recognize the limits of presidential power as including law enacted by Congress.

   Further, while the choice of the term “laws of war” is outdated from an IHL standpoint, it is an important harkening back to U.S. roots in this area. As I have very recently explained (in the Journal of International Criminal Justice), the regulation of the means and methods of war in the U.S. began with a domestic/municipal incorporation and adaptation of the law of war branch of the law of nations (in the English common law tradition) to the U.S. Civil War, an internal armed conflict, by the Lieber Code of 1863. This was, of course, before modern, convention-based IHL purported to minimally regulate in this area. This is an important precedent for the conduct of war against non-state actors. Simply because IHL’s treaty law doesn’t cover everything, it doesn’t mean that international law is irrelevant. Recognizing this historical law of nations-based “law of war” will both empower the President and delimit his power. Marko’s comments misunderstand the relationship between the historical implementation of the law of war branch of the law of nations in the U.S. and conventional IHL. One must thoroughly read, at a minimum, William Winthrop’s “Military Law and Precedents”.

   The call for the administration to find “domestic authority” to detain also misunderstands the nature of the U.S. constitutional powers at issue here. Under the U.S. Constitution, the President as Commander in Chief has always had the implied powers to do anything permitted by the law of nations or other applicable law. (For those highly familiar with the law in this area, the Brown v. U.S. implication to the contrary is a truly unique set of facts that I explain in detail in a different paper that will appear later this year if all goes well.)

   The problem in talking with our friends across the ocean here is that those raised in the civil law tradition do not understand our common law traditions in this area, and vice versa. (Indeed, many if not most U.S. lawyers also misunderstand them.) Additionally, implied powers are very important in many contexts in U.S. constitutional law. The ability to adapt customary international law to similar but different circumstances is also a highly relevant feature of the English common law tradition and the sources of implied powers. Failing to understand that leads to unfortunate and erroneous legal analysis of U.S. law, as appears here.

   In short, the administration appears to be headed in the right direction when one fully understands the history and relationship of U.S. and international law in this area. Whether his lawyers will heed to the limits of law in all circumstances, or succumb to the temptations of earlier administrations in certain areas, remains to be seen.

3. Marko Milanovic March 14th, 2009 at 18:30

   John,

   Many thanks for you comments, and let me address some of them.

   First, I have no problem with the term ‘law of war’, so long as we understand what we are referring to. On one side is the customary and conventional international law of armed conflict; on the other side is any US domestic law on the matter, which some call the common law of war. My analysis was confined solely to the former.

   Second, the US Civil War example is actually inapposite, for several reasons. The twin thresholds of armed conflict, which we deal with today, did not exist at the time as legal conditions. They were invented when the 1949 Geneva Conventions were drafted, and the pre-1949 practice cannot inform their modern content.

   At the time, the only legal condition that international law operated on was ‘war.’ For its part, war was an exclusively inter-state legal relationship. At the time there was also no strict separation between the jus ad bellum and jus in bello, as it exists today. Internal conflicts were simply not regulated, with one important exception, to which the US Civil War belongs.

   That exception was called the recognition of belligerency. A state faced with a strong insurgency could decide to extend to that insurgency a measure of recognition, which would impose obligations on both sides as if the parties were two states. In other words, the legal condition of ‘war’ would apply to what was beforehand a purely internal, unregulated situation; the law of neutrality would apply in relation to third states, so on and so forth. The law of war, as it then was, would apply in full.

   But it was precisely the rather arbitrary nature of this doctrine, and its failure to regulate situations of civil war that states thought should have been regulated, most of all the Spanish Civil War, that lead to the abandonment of the doctrine (though perhaps not its total desuetude) and the drafting of Common Article 3 in 1949. (There is an excellent article on the impact of the Spanish Civil War on the regulation of internal conflicts by Antonio Cassese; as for recognition of belligerency, see more Lindsay Moir’s book on internal conflicts, or Dinstein’s work on LOIAC; I will supply the exact references if you need them).

   In short, that the law of nations gave the parties to the US Civil War the right to detain has no bearing on whether today’s IHL gives such a right to parties to non-international armed conflicts. It quite plainly does not. (see also here).

   Third, it is you who seem to misunderstand the US domestic law on the matter. In its brief, the Obama administration has explicitly disavowed any constitutional authority of the President to detain as an implied power of the commander in chief. Its sole source of the authority is now the AUMF, as informed by international law. My only point was that international law CANNOT inform the interpretation of the AUMF in the way that the administration wants it to. In its own argument, there is a non-international armed conflict between the US and Al-Qaeda, and IHL has nothing to say on detention in these types of conflict, nor can the law of international conflict be imported to that, for reasons I have given.

   Finally, I strongly object to your view that there is a misunderstanding here based on the differences between the civil v. common law tradition. I see no such material difference here, and I am pretty positive that in the UK – where I actually live and work – our colleagues would see no such difference either. Developing the common law is perfectly fine, but that is not the Obama administration’s argument. It is interpreting a statute, and it is trying to write into the statute things that simply aren’t there by some sort of reference to international law, on a matter on which international law (or at least IHL) is actually silent. Call me unimpressed.

4. John C. Dehn March 14th, 2009 at 20:40

   Marko,

   Wonderful comments. Many points worth discussing. I would encourage you to keep an open mind and not take anything I say personally.

   First, the Civil War is not inapposite. The U.S. has historically viewed the matter somewhat differently than civil law countries. In 1866, Gen. Henry Halleck’s treatise had the view that the laws of war were indeed applicable in civil wars, to include wars of revolution, independence, and some rebellions and insurrections. I have read Lindsey Moir and footnote her in a current draft article on which I am discussing this very point, as I think it supports it.

   Halleck stated that some conflicts were mixed (public on one side and private on the other – a true reflection of Grotian influence), and that some would “assume the character” of a public war. When they did so, both sides were bound to follow applicable laws of war. The distinction between belligerency and insurgency was not so neat as you imply, at least not in the view of the U.S. Indeed, some U.S. decisions applied the laws of war to internal, rather irregular U.S. conflicts with Native American tribes and non-tribal groups. (Trust me when I tell you that I have spent a lot of time looking into some very obscure U.S. decisions on this point.)

   In terms of the law of war branch of the law of nations and its applicability to civil war, it would by its nature regulate between or among nations, but not the conduct of hostilities. That is why I was careful to point out that the municipal common law-style implementation of that law regulating the MEANS and METHODS of war was the focus of U.S. common law in this area…and the one that is relevant to this conversation. This could only have occurred through a municipal incorporation consistent with (not a perfect example of) the English common law tradition. Again, one must read Winthrop to see the full scope of this. The U.S. Supreme Court has referred to Winthrop as “the Blackstone of military law” for a reason.

   Second, I did not intend to argue that the power to detain was implied from the Commander in Chief power, but from the AUMF (vesting implied powers of war in the C-in-C, who is conducting the war). I admit my earlier comment was not clear on this point. Nevertheless, the limits to these implied powers still come from international or other applicable law, including applicable conventional law, customary law, or the domestic implementation of these. Again, this view is firmly supported in U.S. Supreme Court cases from 1800 to 2008. (I have an extensive article on the point still in draft.) It is paradoxical to suggest that the AUMF authorizes military force to kill and not to capture and detain. Either it implies war powers as a matter of domestic law or it does not. If it does, it implies them all.

   Whether the U.S. and U.K. have the same current view on the matter is irrelevant to me. The U.K. did not develop a substantial body of municipal common law regulating both international and non-international armed conflict prior to modern conventional law. The U.S. did, and it went well beyond the Civil War. Whether you fully agree with it or not, it is what happened and still influences our law in this area. It is this municipal/domestic common law implementation of the law of nations that informs the Quirin decision – and was actually preserved in the Uniform Code of Military Justice regarding punishment of law of war violations at both military commissions and courts-martial. Again, one must spend a substantial amount of time reading Winthrop to glean this point, or read my recent article in the JICJ (and a hopefully an upcoming one to expand the points further regarding their extraterritorial application of this law).

   Another point I did not make earlier, there is no conventional IHL of which I am aware that expressly or affirmatively authorizes the detention of combatants in international armed conflict. Art. 4 of the GPW regulates those “who have fallen into the power of the enemy”, including the status of such individuals, conditions of detention, and ancillary matters. While one might say this strongly implies a detention power, it does not expressly provide for it anywhere in the document. One might also (and perhaps more accurately) say that it recognizes a custom of capturing and detaining an enemy or other suspected security threats, and therefore regulates that detention when it involves those with a certain status. AP I likewise recognizes detention as a fact and regulates it when it occurs. It does not expressly authorize detention. The power of detention comes from the core concept of military necessity, allowing one to adopt means to defeat the enemy in any way not prohibited by the laws of war. (I leave the issue of whether any customary or conventional IHL should apply at all, and if so, where, to another day.)

   Fundamentally, then, my argument is that the U.S. does not imply powers from IHL, it recognizes the implied powers of military necessity in both international and non-international armed conflict. The statutory authorization impliedly authorizes virtually unlimited powers to defeat an enemy, except those prohibited by applicable customary or coventional IHL, or other applicable municipal law. In fact, military commissions developed in the context of these implied powers…though I intend to argue in the future that they are now prohibited because they are – in all cases of which I am aware – prohibited by customary IHL.

   I would love to chat further with you on this point if you would like, either here or less publicly.

5. Andreas Paulus March 14th, 2009 at 20:58

   Dear Marko and John,
   I have answered John at opinio juris, and am in complete accord with Marko. I am writing separately to underline a point I made on opinio juris: The most dangerous part of the brief is the one which argues military necessity. With all due respect, but special emphasis, military necessity is only part of contemporary ihl when ihl explicity makes it so. Otherwise, the doctrine of military necessity should rest in the pre-WW II era, and in infamy at that. It serves as the one excuse not to apply the rules of ihl. If the Obama administration would follow a general military necessity doctrine, we are directly back at the infamous Bush memo of February 7, 2002. I am happy to report, however, that the orders of 22 January 2009 speak a very different language, and sincerely hope that its use in the memo was an inadvertent aberration.
   Best regards, Andreas

6. John C. Dehn March 14th, 2009 at 21:34

   Andreas,

   As I stated at Opinio Juris, military necessity is recognized in U.S. law on this point. I disagree that it creates a legal vacuum. Following the traditions I have outlined only creates a concern if one focuses on the current body of conventional IHL regulating non-international armed conflict, as the OLC memos did. The traditions I have mentioned, however, belie the notion that this law is is the only relevant law. Customary IHL must also be followed and functions to limit these implied powers in both international and non-international armed conflict.

   The OLC memos did three primary things. First, through a legal slight of hand, they ignored the GPC, a highly relevant document to suspected terrorists. Second, through formalistic focus on treaty law and an ahistorical analysis of the domestic status of CIL, they COMPLETELY ignored customary IHL, saying it was not U.S. law. Finally, by a selective analysis of Supreme Court precedent regarding the Commander in Chief power, they concluded that the President was unbounded by domestic law. The facts of the matter is that before the Military Commissions Act, customary IHL was the more prominent body of law relied upon in U.S. statutes implementing IHL, as well as the prominent body of law affecting Supreme Court decisions regarding CONSTRAINTS on the Commander in Chief powers.

   In due course, I will provide the scholarship that supports these claims. Rest assured, I do not argue for unbounded power. Quite the opposite is true. Regardless of exactly how the current administration has articulated this, they appear to be on the correct course in theory, so long as they observe the constraints of customary IHL.

7. Marko Milanovic March 14th, 2009 at 22:02

   John,

   First of all, perish the thought that I take anything you say personally – and my mind is always open. It would take far more than claiming that I’m wrong on something to get my blood boiling. But I do take great pleasure and intellectual enjoyment, however, in disagreeing with your argument.

   Second, as to the US Civil War, that the US – or rather, some US scholars – have historically thought that international law applied to internal conflicts is to an extent true. But this is a very idiosyncratic US view, and the US alone cannot make international law – not now, and certainly not in the 19th century, when it was a second-rate power. I btw never meant to imply that the distinction between insurgency and belligerency was clear-cut, but it was nonetheless this distinction that explains the application of the then-law of war to some internal conflicts.

   By way of authority, let me now quote Lindsay Moir (who is btw a he, not a she):

   The prevailing view was still that the laws of war were inapplicable to internal armed conflict in the absence of recognition of belligerency, although this opinion was by no means unanimous. Indeed, some legal scholars from the turn of the century seemed to give the impression that the laws of war were, or at least ought to have been (morally as much as legally), applicable during all armed conflicts irrespective of whether they were internal or international, at least once the struggle had reached a certain stage. These writers tended to be American, however, and hugely influenced by the Civil War of 1861-1865.

   (at 11)

   and

   The laws of war were not automatically applicable to internal armed conflicts in the nineteenth and early twentieth centuries. States may have observed them in some cases through the doctrine of recognition of belligerency (either tacit or express), but this was done out of self-interest and for practical purposes, rather than through the belief that they were so bound by international law. Even on the occasions when recognition was afforded, it was a concession to the insurgents, certainly not a legal entitlement. Had State practice been uniform, it might have demonstrated an emerging customary law trend to apply humanitarian law automatically to internal conflicts, but States clearly did not feel any legal obligation to recognise belligerency. Without the discretionary recognition of belligerency by foreign States or, more rarely, by the parent government, the laws of war were of no application to internal conflicts. When they did apply, it was on a purely reciprocal basis, resulting more from convenience and a fear of reprisals than from any overriding concern for humanity.

   (at 17-18)

   Third, as to the scope of the AUMF, that of course is the issue, but your argument that the power to kill implies the power to detain is, with respect, incredibly simplistic. It is precisely because it is simplistic that both the Bush and Obama administration need this whole reference to international law of armed conflict stuff, in addition to inventing standards for detention wholesale. Just take a look at the detention standard proposed by the administration. Only the first half of it follows the language of the AUMF. The second half is just some mish-mash of IHL sounding words, without any clear idea as to how these standards came to be.

   Let now me give you a counter-factual example. The AUMF authorizes the use of force inter alia against ‘persons.’ What if the Bush administration just engaged in a policy of targeted killings against a small number of persons, say Osama & Co, or randomly detained someone in mainland US. Would IHL in your opinion matter? Would there have been an armed conflict, and which one? How could you then inject IHL criteria into the AUMF? (There is of course to my mind very little difference from this counter-factual and the current problem, because there is no such thing as a global non-international armed conflict with Al-Qaeda as a matter of IHL).

   Fourth, it is true that GC III and other IHL treaties do not frame the power to detain POWs in the same affirmative way as they frame the power to intern civilians. But this is so for purely historical reasons, since POWs could initially be dealt with as the adversary power wished. The entire Third Convention is thus phrased in terms of protections to which these persons are entitled – but it presupposes the power to detain. This same power does NOT exist in non-international conflicts, because as I’ve said that would mean that the Taliban would have the authority to detain Afghan soldiers, not just vice versa.

   Finally, let me reiterate my basic point: if applicable IHL does not say anything on when certain persons may be detained (and you have not convinced me otherwise), I fail to see how it can be used to further the interpretation of any other applicable legal rule. In particular, the regime of internment in international conflicts is entirely irrelevant for detention in (what the administration claims is) a non-international conflict.

8. John C. Dehn March 15th, 2009 at 1:24

   Excellent news. I do not mind responding in an intellectual exchange. I think perhaps we are talking on different points or planes. And I will not make reference to who is now or was a second rate power as that is irrelevant to purely legal questions. My view is based in U.S. decisional law and is therefore divorced from the recent arguments of the current administration, as they are theoretically consistent with but, in my view, slightly inaccurate in terms of U.S law. Your argument is pervaded by it.

   The issue is on the table – as I understand it – is whether detention is authorized as a matter of U.S. law, as it is neither provided for nor prohibited by current customary or conventional IHL on the subject (just as it is not in the IHL of international armed conflict – which was my earlier point). I did not convice you that IHL addresses it because it was not my argument. On that point, my earlier argument was that U.S. law has fully recognized the implied powers of military necessity as a matter of U.S. law in BOTH international and non-international armed conflict. This is not an idiosyncratic view of some U.S. scholars, it is entrenched in Supreme Court case law… Mr. (my apologies – another cultural difference) Moir’s reference to the prevailing view notwithstanding. That he did not account for U.S. Supreme Court precedent or practice is not relevant to the question of what U.S. law is or authorizes. The implied powers of military necessity became part of U.S. law and are still there. It was originally adopted from the law of nations and ALSO interpretations of implied powers under the Constitution, and it is now fully established in U.S. law – and I would submit, a type of municipal common law preserved, in part, in the UCMJ.

   Modern IHL is not relevant to the issue of what U.S. law impliedly AUTHORIZES as a matter of precedent. It does, however, place implied limits on those powers and also limits on what the U.S. may do extraterritorially and, to the extent it has been expressly adopted within U.S. law, domestically.

   I do not argue that this U.S. municipal common law is now or was ever representative of customary IHL. In fact, my recent article emphasizes the point that it is solely municipal law. The two are obviously not the same thing. U.S. law may be unique, but that could be said of any state’s municipal law. It is one state’s practice on the point but no more.

   It is, however, municipal law and it may be relied upon both territorially and extraterritorially to the extent IHL does not contravene it or municipal/domestic legislation does not supersede it. In other words, as I think you must agree, U.S. law of any stripe, common or statutory, may permit anything not prohibited by IHL, or other international law where it applies (see Lotus).

   Of course, one could argue all day about the extent to which (when, where) the customary IHL of non-international armed conflict applies to the conflict with Al Qaeda. I do not argue that point here. My point is simply that the powers of military necessity are neither permitted nor prohibited by IHL related to non-international armed conflict. They are therefore permitted and already exist in U.S. law, and not by reference to modern IHL. It is much a question of a municipal implementation of the law of nations as it is of U.S. consitutional interpreatation.

   Your question regarding the scope of military necessity in armed conflict internal to the U.S. (as well as the rest of this exchange) is the subject of my current work. Supreme Court precedent on the point is less than clear, particularly on the extent of actual or imminent conflict required to invoke war powers consistent with individual rights preserved in the Constitution. It is a similar question, I would say, to the question of the extent to which IHL permits detention or other war powers in non-international armed conflict versus when international human rights law prohibits detention or other war powers under the circumstances then prevailing. I do not believe the question is clearly answered in either body of law. I hope to make a contribution in that area as well.

   That any administration attempts to rely on current international law as somehow empowering in U.S. law is unfortunate, because the precedent already very clearly exists in controlling U.S. decisional law and is also one of U.S. constitutional law. This is why I said that regardless of its specifics, the current administration’s view is at least theoretically consistent with actual U.S. law. However, and this is important, the limits of IHL and other internaitonal law are highly relevant, particularly to the extent they are expressly adopted in U.S. law by statute. They are also relevant to the scope of powers that may be implied from a statute. They do not ADD TO those implied powers, they only LIMIT them.

   I hope this clarifies my earlier points. The administraiton may be wrong in its articulation, but it is correct as a matter of U.S. law, both its common law of war and constitutional law. If you want to continue to engage on that question, I would be happy to provide you with several Supreme Court cases on the point.

9. John C. Dehn March 15th, 2009 at 1:33

   I should add that municipal “common law” in this context speaks to the English common law tradition, not the civil law tradition’s view of the common law. As I understand it, the two are very different – which is why I think the confusion on this issue is partially based in these very different understandings.

10. Charles Gittings March 15th, 2009 at 3:29

    An interesting discussion. Let me offer some comments…

    * Hamdan did NOT decide whether Common Article 2 or Common Article 3 was applicable — it said it wasn’t necessary to decide that question because CA3 would apply at the minimum, and that was sufficient to decide the issues in the case.

    * The doctrine of military necessity has no relevance to prisoners per se. Prisoners are “hors de combat,” while the doctrine only applies to lawful military operations and in no way immunizes anyone who commits a war crime or crime against humanity.

    * For example, art. 23[h] of the Hague IV (1907) annex of regulations states: “In addition to the prohibitions provided by special Conventions, it is especially forbidden [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”

    That provision is incorporated by reference in 18 USC 2441(c)(2) as a federal offense whenever either the perpetrator or victim is a US national. Note also that the IMT Charter and Geneva prohibit “murder or ill-treatment” generally.

    * As for the AUMF, let me propose a somewhat startling conclusion:

    It authorized absolutely nothing. The US Constitution forbids bills of attainder, and the AUMF describes no act which is anything other than a crime subject to prosecution under the the laws of the United States at the time of the 911 attack, notably 18 USC 371 and 18 USC 2441 among others.

    It purports to authorize the President of the United States to wage war on any nation at all, including the United States itself, at his sole discretion. It purports to authorize the President to murder anyone whatsoever, again, at his sole discretion. The Congress has no authority to authorize any such thing and the President has no authority to do any such thing.

    The AUMF was and is a preposterous perversion of law that had only one purpose: to subvert the government ands laws of the United States for the purpose of committing crimes with absolute impunity. Neither Hitler, Stalin, Charles I of England, nor the Emperor Caligula claimed any more authority.

    And I wish people would starting getting real about it.

11. Marko Milanovic March 15th, 2009 at 10:25

    John,

    It does seem that we are talking on two different points. My point was about what the Obama administration’s brief says about the power to detain in the (purported) armed conflict with Al-Qaeda. Your point was about what the broader, domestic common law of war says on the matter. But whether your argument is correct as a matter of US law or not, it has not been adopted by the administration in its brief. It is not saying – as a matter of domestic common law, we may detain anyone if there is a military necessity to do so, as determined by the President.

    Rather, the administration is constructing elaborate standards of detention, and is basing these standards on a statute which doesn’t say anything about them, the AUMF, as informed by applicable international humanitarian law. My critique of the Brief was that IHL COULDN’T perform this role, and I don’t think you have showed otherwise. Contrary to what you say, they used applicable IHL precisely to add to this domestic detention authority, rather than to limit it. Indeed, for these purposes they relied even on INAPPLICABLE IHL, viz. the law of international armed conflicts – inapplicable because even under the administration’s argument the conflict is a non-international one.

    As for limiting the detention authority through IHL, it again cannot perform this function. The law of non-international conflicts does not limit detention in any way except for basic humanitarian guarantees in CA3, because detention was meant to be regulated by domestic law. This goes for customary, as well as for conventional IHL – just take a look at the difference in the standards applicable for the two kinds of conflicts in Rule 128 of the ICRC Study, even in the very broad, human rights-friendly view of the ICRC. You will see that the rule applicable to non-international armed conflict does not actually depend on the continued existence of the hostilities, and is really not much of a rule at all.

    Let me reiterate by broader normative point: perhaps the preventative detention standard proposed by the administration is fine as a matter of policy. Perhaps it is precisely these people who should be detained. But this a matter for the legislator, who should, after a proper democratic debate, pass these standards into law. We can then say whether these standards are consistent with US constitutional law and international human rights law. But the Obama administration is just manufacturing these standards out of whole cloth, by reference to international legal rules which do not contain them.

12. John C. Dehn March 15th, 2009 at 17:05

    Dear Marko,

    Let me thank you for the exchange. This has been interesting to say the least. I must say that I never did challenge your critique of the brief. I only expressed that the view that it was more consistent with actual U.S. law.

    I must reiterate that implying powers of war from very general statutes is fully consistent with U.S. law on the subject. Were Congress to “declare war” on any state, the President would impliedly have all the powers of war at his disposal to prosecute it, meaning any that to not transgress the limits of international or applicable domestic law. I believe this is probably the case in many states, as it is impossible to articulate in legislation every act of war to which an armed force may resort.

    So long as the AUMF remains, detention is within the discretion of the President. I understand that CA3 is very limited, as is the customary IHL study. If he chooses to apply aspects of IHL by analogy to fill the normative gap, that is fine (and may in fact be required – though my research and theoretical work on that issue is not yet complete). Congress may always pass further legislation on the issue and delimit his authority in the area. It may also revoke the AUMF and remove it. This condition is the nature of the U.S. system and the constitutionally shared powers of Congress and the President over war and the government and regulation of the armed forces. Your normative assertion that it is necessarily a matter for the legislator in the first instance is simply not accurate as a matter of U.S. constitutional law, though it is certainly the most desirable. The Constitution empowers Congress to enact relevant legislation. Failing that, it grants the President broad discretion to implement general legislative grants of authority, except as limited by law.

    Regarding the administration’s brief, it is unfortunate that those writing it do not have a fuller view of U.S. law on this subject. I am certain that the time constraints of litigation forced a premature position. I suppose that is in part why we academics have a job. Time is on our side. The prior administration’s views were even more unfortunate. I hope to publish my research very soon, and that they will look at it. It is quite comprehensive and should help to prevent the sins of the past if followed. There is a normative vacuum in IHL for transnational armed conflict (assuming the armed conflict paradigm is proper at all). But perhaps it is not that large if we in the U.S. understand and return to our common law roots in this area.

    I personally have several concerns along the lines that you mention that I hope the administration will address in due course. I suppose that this brief is in part designed to buy time for a more comprehensive policy review. The real problem was the failure to properly determine WHO should be detained in the first instance.

    An alarming op-ed appeared in a U.S. newspaper after the Hamdan decision. I believe it was entitled something like “Just Kill All the Terrorists”. It advocated killing all terrorists on the battlefield, as that course of action was easier than all of the legal issues (termed “obstructions” I believe) to prosecuting them. It is indeed an oddity of modern IHL that the standard for engaging a target on the battlefield is more lenient than the standards necessary to prosecute and imprison an enemy, and possibly also to preventively detain them. Such incentives are perverse and unfortunate, but are clearly there – particularly in regard to irregular fighters and in non-international armed conflict.

    When it comes to pirates, insurgents and terrorists, I think we all have a lot more normative work to do if we are to fully implement modern human rights standards.

13. John C. Dehn March 15th, 2009 at 17:07

    P.S. I should clarify, I did criticize your view of the brief as a matter of U.S. law, but not on the matter of your IHL analysis.

14. Charles Gittings March 15th, 2009 at 18:59

    “The power of detention comes from the core concept of military necessity, allowing one to adopt means to defeat the enemy in any way not prohibited by the laws of war.”

    John,

    This seems like a circular argument to me, especially since the laws of war forbid the abuse of prisoners.

    Suppose George Bush decides it’s a ‘military necessity’ to indefinitely detain a two-year-old girl who lives in Omaha as an ‘enemy’. How would that work under your view of the law?

    Charly

15. John C. Dehn March 15th, 2009 at 19:11

    Charly,

    I think the answer to this qquestion is self-evident from my answers above.

    Best,

    John

16. Charles Gittings March 15th, 2009 at 19:35

    Self-evident??

    I only asked because I’m not clear on what your answer would be.

    You say Obama is constrained by law.

    Then you say that the “power of detention comes from the core concept of military necessity, allowing one to adopt means to defeat the enemy in any way not prohibited by the laws of war.”

    The impression I’m getting is that Obama is constrained by law that says he is utterly unconstrained.

    My question was intended to get a handle on the actual constraints.

    What makes someone an enemy?

    I understand due process; ‘the power of detention’ doesn’t compute.

17. Charles Gittings March 16th, 2009 at 5:49

    Gee, ask a simple question…

    I’m sorry if I discomfited you John, but it’s actually a very serious question.

    You say you’ve been doing some research into precedents involving hostilities with Indian tribes. I can’t help wondering if that research includes the forced removal of tribes from the East, or the forced assimilation of Native American children at the Carlisle Indian School, etc.

    And just suppose a President got it into his head there was a “military necessity” to round up all the Jews in the United States and ship them off to a death camp for extermination — not exactly a science fiction scenario. I imagine that there were a number of Japanese American two-year-olds who were interned during WW2, but I don’t suppose there is anything in the laws of war or the doctrine of military necessity that made that anything but a crime against humanity.

    Facts are facts, law are laws, and analogs are neither. So what constrains such abuses?

    Are we just supposed to trust you to only lynch people who deserve it?

    That’s all I’m hearing — a lot of mumbo jumbo about powers and constraints that don’t actually exist masking the naked facts of unlawful detentions in violation of the laws of war. My understanding of it simple:

    1) It is a breach of military duty to either issue or obey an unlawful order.

    2) It is a breach of military discipline to act on an order which you do not understand.

    3) The only purpose of JTF-GTMO is to commit war crimes against prisoners in violation of the Geneva, Hague, and 18 USC 2441 — by official policy.

18. John C. Dehn March 16th, 2009 at 18:39

    Charly,

    I rarely swing at pitches in the dirt – so to speak. But in an attempt to raise the level of conversation back to one of civility (lynching? me? really…) and careful analysis of legal issues as opposed to what I see as irrelevant accusations, I will attempt to respond and focus this back on the nature of the issue.

    The Supreme Court has consistently found that the President has implied powers to do anything PERMITTED BY LAW in pursuit of a general authorization to conduct war or use military force. In the context of armed conflict (perfect or imperfect war), the relevant law is both domestic and international. He cannot rely on one to avoid the other, though the statutory authorization to conduct hostilities may supersede certain generally applicable statutes (as happened in Hamdi with the Non-Detention Act) when dealing with traditional acts of war, such as detention. For reasons that would take too long to explain, the President has a fair amount of latitude in determining the applicable international law, such as customary international law, but cannot make baseless claims that permit conduct, such as torture or cruel, inhuman or degrading treatment, that is clearly prohibited. One must separate the simpliciter POWER to detain from the CONDITIONS of detention, as IHL has always done. You clearly do not, which is why I state that your accusations in that area are – even if true – irrelevant.

    What I said above was that the prior administration avoided applicable bodies of law through inaccurate and opportunistic legal arguments. What has happened is shameful and highly unfortunate. However, our revulsion at it must not cause us to lose objectivity in our own legal analysis.

    I note here – because I know the case is important to you – that the Hamdan decision is more justifiable on the view that CA3 is a minimum standard applicable in any armed conflict (no matter where located) as a matter of customary IHL. We would do well to recognize this to avoid the problematic treaty interpretation implicit in that decision. It also provides at least some additional law applicable to any detained putative enemy combatant.

    The area of concern raised by your question and that requires a more careful analysis than this forum admits is the component of military necessity that relates to the common law doctrine of public necessity. For example, say that U.S. is invaded. In fighting back, the government may launch attacks that are not disproportionate under IHL but do deprive U.S. citizens of their rights to life, liberty and property under the Constitution without due process. The question becomes: when is this permitted by the Constitution?

    In the Civil War, the Supreme Court expressly recognized and adopted the doctrine of military necessity, even in “friendly territory”. However, I believe it limited it to that which the government could show was absolutely essential under the circumstances then prevailing (what I call in a draft article “situational strict scrutiny”). In one case, it indicated that the government could commandeer private property but was still bound to provide just compensation as required by the Bill of Rights. This all pertained to matters collateral to the conduct of hostilities between combatant adversaries.

    According to Winthrop and Lieber, the laws of war suspended the civil law between belligerent forces in the field and was the only governing body of law. Reading them very carefully, I surmise that they adopt the law of nations in English common law fashion and made it a form of municipal law (later recognized as such by Congress in the Articles of War – later in the UCMJ, and by the Supreme Court in Quirin, Yamashita and other cases). This is the only way they could use it to impose individual punishment, as the IHL of that era did not provide for but rather (in their understanding) permitted it. (As an aside, the Articles of War would, before their express adoption of this law, govern only internal disciplinary problems, which is why the law war violations were initially dealt with in special military tribunals rather than courts-martial.) This is the subject of an article I just published, and another pending submission. It all forms the basis of potential CONSTRAINTS on the conduct of our forces in war.

    The key to the applicability of this body of law was identifying the belligerent force. I would say that modern conventional IHL has adopted a fairly strict belligerency/insurgency distinction, while maintaining a less clear distinction in customary IHL. We are signatories to those conventions but not parties. Our municipal common law, probably for reasons to do with settlement of the Wild West, has not adhered to a strict belligerency/insurgency distinction. (By the way, one case acquitted a Native American on a murder charge because the killing was justified by the laws of war. Other cases found “wars” to exist between the U.S. and both tribes (sub-national sovereigns) and non-tribal groups (purely non-state actors)).

    What we are seeing in cases like Boumediene is the recognition that one must first properly identify the enemy to justify detention as a war power. Your examples don’t even come close in that department, and I thought that my answer to your rather silly question would be somewhat obvious by my earlier responses. Further, generally applicable and non-derogable standards of U.S. law, like the War Crimes Act, would still apply. The problem with the War Crimes Act is that it is not clear whether it applies if the underlying treaties do not. There are indications both ways in the text. It could consider all of its crimes to apply to all armed conflict – that they somehow represent customary IHL applicable in all armed conflict, or only to conduct violating these treaties when they govern the relevant conflict. Further, particularly as it pertains to the former administration, the War Crimes Act has the general Title 18 U.S. Code five year statute of limitations for non-capital cases. Our common law of war is actually a broader basis for prosecuting law of war violations by both sides – “us” and “them” – including an unlimited statute of limitations when recognized in customary IHL relating to an offense.

    Ex parte Milligan announces a “closed-courts” standard as the circumstances under which martial law might be imposed on a domestic civilian population. It did not announce a standard for when war excluded the civil law between the U.S. and an enemy – if that doctrine continues to exist in our law. Even if it does, Congress may still regulate the conduct of U.S. nationals, including the armed forces, as it did with the Articles of War, the UCMJ, and the Title 18 general torture prohibition. The key to me is that Congress make clear that it intends the law to apply in times of war (as it did implicitly with FISA). It must also be determined whether the law is territorial only (once again, implicit in FISA), or is intended to govern extraterritorial conduct, as does the UCMJ.

    I also alluded to the fact that true adherence to our common law traditions in this area might REQUIRE the adoption and ADAPTATION of the IHL applicable to international armed conflict in non-international armed conflict, as happened in the civil war. The administration’s brief doesn’t go that far, but it is headed in that direction. I am still researching.

    At the end of the day, there is plenty of law that constrains the President’s conduct in war. I have argued that point consistently here. What is unhelpful to these discussions is an all-too-common haphazard slinging around of legal (or legal sounding) standards that may or may not have substance or apply under the circumstances.

    As someone formerly involved in the investigation and prosecution of detainee abuse, I can assure you that I do not take the matter so lightly. That experience has uniquely motivated me to thoroughly research these issues and to carefully, objectively develop and understand the framework of our law in this area. Our soldiers, the humanity of our enemy, and especially the humanity of those mistakenly believed to be our enemy, deserve at least that.

    My hope is that you will recognize from this response that there are some of us out here trying to get to the right place by doing our homework, rather than by flinging around war crimes accusations or personal attacks at any opportunity. If you want to wage personal attacks against those whose uninformed and politically-motivated opinions are obvious, please be my guest as I ignore all such blather. However, I humbly ask that you please refrain, both here and elsewhere, from attacking those of us engaged in the serious and difficult work of trying to make sense of a difficult body of law (or in my case, two difficult bodies of law) that, in many ways, reflects mans’ lack of reason.

    My best to you regardless of the future course you choose in response to my humble request…

19. Charles Gittings March 17th, 2009 at 8:31

    John,

    I didn’t mean to be uncivil; my intent was to pose a provocative question in the hopes of eliciting an answer to a simple question. If it will make you feel any better, I’ll retract the word “you” and rephrase the question —

    Are we just supposed to trust the government to only lynch people who deserve it?

    — but I still don’t see a concrete answer.

    And I also have some comments in reply to your response….

    1) It happens to be the case that I’ve literally spent the last seven years of my life investigating these issues and the Bush administration’s war crimes, starting on 2001.11.13, the day they issued the PMO. (At my own expense, exhausting my savings, and giving up my career among other things.) Indeed, it’s a virtual certainty that I’ve spent more time investigating these issues over the last seven years than anyone else on the planet. The first four years I was going at it 12-16 hours a day seven days a week most of the time. No kidding. See my web-site even…

    http://www.pegc.us/

    http://www.pegc.us/articles.html

    http://www.pegc.us/cbg.html

    Now I don’t have a bunch of fancy degrees, I’m not a lawyer, have never been in the military, and have no law enforcement experience. My professional background is 30 years as a programmer / systems analyst. Before that I was a tournament Bridge player and Chess player. I’ve also literally been self-educating myself in history, political theory, philosophy, and military strategy ( among other things) since age nine. Now you can make of that what you will, but it happens to be true, and I happen to be damned good at investigating things. I don’t mention any of that to assert my authority — my arguments can stand or fall on their merits — but just to let you know that I’m VERY well-acquainted with this stuff. (And note: it’s a LOT harder to BS a computer than a judge or a jury.)

    2) “One must separate the simpliciter POWER to detain from the CONDITIONS of detention, as IHL has always done. You clearly do not, which is why I state that your accusations in that area are – even if true – irrelevant.”

    I get that distinction just fine, but the problem is that detaining an innocent person without just cause is a crime against humanity, just like willfully murdering someone is — even when committed by a police officer or soldier in the course of some otherwise legitimate operation.

    Regardless of their own guilt or innocence, the detainees at Guantanamo are not being held lawfully. Only a few of them have been charged with crimes, and even those few have only been charged in the Bush administration’s fake military commissions. All of them have been subjected to torture and inhumane treatment. The clearest fact about any of them is that the government is so far unwilling to make a valid showing of evidence against any of them in a court of law.

    3) “In the Civil War, the Supreme Court expressly recognized and adopted the doctrine of military necessity, even in “friendly territory”.”

    I’d like to see an exact citation. I’m familiar with Milligan etc, but my understanding of it is that the modern doctrine of “military necessity” was established by the Lieber Code. You appear to be mixing up “military necessity” with more general legal concepts of necessity, and both are familiar territory to me.

    4) “The problem with the War Crimes Act is that it is not clear whether it applies if the underlying treaties do not. There are indications both ways in the text.”

    I beg to differ — the text is quite clear. See my article here:

    http://pegc.blogspot.com/2008/10/18-usc-2441.html

    There are exactly four categories of war crimes in the statute, sub-sections (c)(1) through (c)(4). Three of those subsections make specific reference to the status of particular protocols “when the US is a party”. There is no such reference in regard to the 1949 Geneva Conventions, Geneva has been ratified by every nation on the planet in any case, and the text of Geneva Common Article 3 clearly states that it applies to parties and non-parties alike.

    Then there is sub-section 18 USC 2441(c)(2) which makes no mention of treaty status at all, but simply states that ANY violation of arts. 23, 25, 27, or 28 of the Hague IV 1907 Annex are war crimes. Yoo argued that this provision would only apply to those who satisfy the requirements for POW status, but he overlooked a couple of things — those requirements are stated in art. 1, and the language of article 23 makes it very clear that it expresses customary norms. There is absolutely no reason to suppose that the statute means anything but what it literally says, especially not if one is familiar with the judgement of the Nuremberg Tribunal and bothers to read the legislative history of the statute; see HR 105-204, EXPANDED WAR CRIMES ACT OF 1997 (1997), at 3-4, available here:

    http://www.pegc.us/_LAW_/hr.105-204.pdf

    Note especially…

    “Further, H.R. 2587 should be expanded to cover violations of Articles 23, 25, 27, and 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, of October 18, 1907, applicable to international armed conflict. The 1907 Hague Convention is an important source of international humanitarian law, and it served as an important basis of law for the Nuremberg Tribunal.

    “Article 23 of the Convention lists a series of acts prohibited in war, including, among other things, using poison weapons, killing individuals who have laid down their arms and surrendered, and employing arms calculated to cause unnecessary suffering. Article 25 prohibits the bombardment of undefended towns, villages, dwellings, or buildings. Article 27 requires forces to take steps to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. Article 28 prohibits pillage. Provisions such as these have provided the basis for Article 3 of the Statute of International Criminal Tribunal for the former Yugoslavia, which gives the Tribunal jurisdiction over “persons violating the laws or customs of war.”

    “The Administration believes such violations should also be treated as war crimes in H.R. 2587.”

    And as for the statute of limitations, violations of 18 USC 2441 carry the death penalty whenever an offense results in the death of the victim. There have been three deaths at JTF-GTMO, and many more in Iraq and Afghanistan. As you know very well, the IMT Charter absolutely excludes any form of immunity for war crimes, crimes against humanity, or crimes against peace. I believe that there are probably some limits on the statute o limitations when the government itself is preventing charges from being brought in order to shield itself from prosecution for the crimes, but I’ve never bother to research it because it simply isn’t necessary: the offenses are continuous and on-going. The number of individual counts against the principals could easily reach seven figures.

    Regards,

    Charly

20. John C. Dehn March 17th, 2009 at 15:43

    Charly,

    For what its worth, I commend you for your efforts in this area and for being a concerned citizen. Their should be more like you in that regard in my humble opinion. Thanks also for your response. Civility is always a good thing, even in the blogsphere.

    As for presidential powers in this area and related citations, I will send you my article when it is published.

    All the best,

    John

21. Charles Gittings March 18th, 2009 at 6:43

    John,

    Well thanks for the kind words. FWIW, a few suggestions came to mind reading your arguments….

    Geoffrey Robertson, THE TYRANNICIDE BRIEF: THE STORY OF THE MAN WHO SENT CHARLES I TO THE SCAFFOLD, Pantheon (2006).

    Edwin Burrows, FORGOTTEN PATRIOTS: THE UNTOLD STORY OF AMERICAN PRISONERS DURING THE REVOLUTIONARY WAR, Basic Books (2008).

    Treaty of Amity and Commerce Between His Majesty the King of Prussia, and the United States of America (Hague 1785), Arts. 23-24.

    I’ll be happy to look at your article too, but there’s still something that bothers me:

    I still don’t see an answer to my question, and it’s such a simple question. You may think it’s absurd, but my understanding is that KSM has a wife and two children who were captured at the same time he was, and that the CIA threatened to harm the children has part of the torture they subjected him to. Two of the prisoners at JTF-GTMO were juveniles when they arrived there, and if the Presidnet can torture a 14-year-old for seven years merely by signing a “determination,” why not a two year old? Why not every Jew or Muslim in the World?

    The problem here is fundamental — the AUMF is facially unconstitutional, and it is also criminal under the laws of war in the4 same way that the Nazi “Night and Fog” decree was criminal. The Congress has no authority to issue such an authorization and the President has no authority to act on it. It amounts to a blanket authorization to murder anyone at any time for any reason.

    Thge truth is that there was ample authority under our existing laws to act against the 911 conpiracy without enacting the AUMF, andthe only real purpose of the AUMF was to provide a falsze color of authority for committing war crimes.

    And the question isn’t going to go away.

    Regards,

    Charly