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

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

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

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…

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.

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.

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

Best,

John

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

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.