Dave Hoffman notes that the Justice Department has filed an interesting amicus brief in Padilla v. Yoo arguing against the availabiltiy of a Bivens action in the national security context. Here’s a brief excerpt:
The threshold question presented by this case is whether a court should recognize a federal common-law damage action addressing the decisionmaking process within the Executive Branch about whether the military should detain and how it should treat those deemed to be enemies during an armed conflict. As we explain below, this context, which directly implicates war powers and matters of national security, presents compelling “special factors” that strongly counsel against judicial creation of such a money-damage remedy, in the absence of congressional action. The Supreme Court and the courts of appeals have consistently refused to extend Bivens remedies to new contexts. Where there are special considerations or sensitivities raised by a particular context, the courts recognize that it is appropriate for the courts to defer to Congress and wait for it to enact a private damage action if it so chooses. That course is clearly appropriate here.
For what it’s worth, I think this argument would likely appeal to a majority of justices on the current Supreme Court — should the case get that far. This is not a court eager to expand the scope of existing judicial remedies without an express legislative mandate.
For some of our prior posts on Padilla v. Yoo, see here, here, and here.
Anderson says:
The threshold question presented by this case is whether a court should recognize a federal common-law damage action addressing the decisionmaking process within the Executive Branch about whether the military should detain and how it should treat those deemed to be enemies during an armed conflict.
Sure, that’s the clever way to frame the question.
If the SCOTUS is happy to treat the Torture Act, etc., as simply advisory, then fine.
But y’know, the exact same “framing” above was tried out in McCardle, wasn’t it? And the Supreme Court back then had no trouble getting to the real issue, in a case where there was an infinitely more realistic case of warfare on American soil.
If the United States can torture American citizens with impunity, then the Constitution and the Bill of Rights don’t mean shit. THAT, I beg to offer, is “the threshold question presented by this case.”
December 4, 2009, 8:40 amHoward Gilbert says:
Plausibly this is a point where one might divide the case into the “torture” claim and everything else. Torture, had it occurred, would have been a violation of US and international law, therefore directly applying to even the question of how prisoners of war are detained. This one claim should survive even a policy making exemption. The other crap, that Padilla was unconstitutionally deprived of various rights discovered to be in the First Amendment to visit with his mother and such like, might be discarded based on this argument.
Of course, it is more satisfying if the court reaches the merits and decides that every single one of Padilla’s claims is meaningless nonsense or unproven allegation. However, the DOJ can make the claim that serious judicial consideration, even for a minute, of silly claims would potentially chill future decision makers in our litigious cover your ass society. This case is only a small step up from the thousands of schizophrenics who would love to sue the CIA Director to get him to stop unconstitutionally beaming mind control rays into their brain. The question of just where the courts stop such a claim (immunity, justiciability, summary judgment, …) may be technically interesting, but in the end the claim will eventually be found to be crazy nonsense.
December 4, 2009, 9:38 amJoe T. Guest says:
Gee, I don’t see what could possibly go wrong with making Bivens actions questioning military and policy decision-making available to those captured or (the representatives of those) killed on the battlfield… I’m sure AG Holder and Gen. McChrystal will love answering questions from Joe Random Jihadi about why they supported particular Obama policy decisions…
December 4, 2009, 9:48 amAnderson says:
available to those captured or (the representatives of those) killed on the battlfield
Chicago is a rough town, but I still don’t think O’Hare counts as “the battlefield.”
Torture, had it occurred, would have been a violation of US and international law, therefore directly applying to even the question of how prisoners of war are detained. This one claim should survive even a policy making exemption.
So one would think.
This case is only a small step up from the thousands of schizophrenics who would love to sue the CIA Director to get him to stop unconstitutionally beaming mind control rays into their brain.
Uh, why? Padilla *was* held under cruel conditions. He *was* denied contact with counsel. If he were simply a criminal defendant — which after all is how he ended up being treated — we wouldn’t have the slightest question whether he was entitled to a Bivens action, would we?
Bear in mind of course that the case is at 12(b)(6) level, where the allegations in the complaint are to be taken as true.
December 4, 2009, 9:56 amAnderson says:
Shorter DOJ: if the cops torture you, you have a Bivens action; but if the president tortures you, then no.
December 4, 2009, 10:00 amJoe T. Guest says:
Shorter Anderson: Even though I’d never admit to it, the law is a not a neutral and practical process for deciding questions not addressed by the legislature, but a tool for enacting my own subjective brand of morality as a universal standard.
December 4, 2009, 10:25 amMark Field says:
Shorter Joe T. Guest: Ronald Reagan was a leftist tool when he supported ratification of the Convention Against Torture.
December 4, 2009, 10:33 amgeokstr says:
Shorter Mark Field: Leftism = All Good. Rightism = evil devil.
December 4, 2009, 10:38 amOren says:
Wow, only 8 posts before descending into childishness.
December 4, 2009, 10:55 amAnderson says:
Even though I’d never admit to it, the law is a not a neutral and practical process for deciding questions not addressed by the legislature, but a tool for enacting my own subjective brand of morality as a universal standard.
Ah. So the guarantees of the Constitution are just “my own subjective brand of morality”?
Read the district court’s decision allowing the case to proceed, and then get back to me on who’s applying “subjective morality.”
Because it seems to me that those advocating immunity for conspiracy to commit grossly unconstitutional acts are the relativists, not me.
December 4, 2009, 11:02 amMark Field says:
Close, but since we’re going for shorter, I think the phrase “evil devil” is redundant. I’d go with just “devil” (or maybe “evil”).
December 4, 2009, 11:36 amThe Watcher says:
The Watcher recalls how this mess started. Bush Jr was evil and dumb and bad because he took a few minutes to leave the classroom when the first airliner hit the World Tade Center, correct?
Then Bush got a vote of congress allowing him to wage war against those muslims who swore to harm America, and captured Abdullah al-Muhajir in the middle of preparation for a radioactive bomb attack on America, corrct?
Bush Jr then became evil evil for holding al-Muhajir as an enemy agent in a military brig (notwithstanding the WWII U-584 case where the military could seize an American citizen arrested by the FBI, try him in a military commission, and execute him), correct?
The US Supreme Court then decided that military commissions made them sad, because district court cases give muslim terrorists more information about how their networks have been penetrated, and thus an better chance to hurt America, correct?
Thus, the question is not should Abdullah al-Muhajir get a large amount of money, he should because Bush held him as an enemy combatant and not as a criminal, and not should he be released—of course he should–the question is whether the Court will order the government to give him a large amount of radioactive substances to use in his dirty bomb, given that Bush Jr’s evil acts have placed al-Muhajir’s terrorist attack years behind schedule.
December 4, 2009, 11:42 amAnderson says:
notwithstanding the WWII U-584 case where the military could seize an American citizen arrested by the FBI, try him in a military commission, and execute him
And of course there have been no developments in constitutional law since World War Two, and there is nothing distinguishing Padilla’s case from the one you mention.
… And, once again, the present issue isn’t whether Padilla can recover; it’s whether his complaint even states a claim. Whether Padilla can prove the abuse and conspiracy he alleges are issues the feds are trying to keep from being addressed, on the theory that EVEN IF WHAT PADILLA ALLEGES IS TRUE, he has no case.
December 4, 2009, 11:55 amJoe T. Guest says:
Anderson, for a guy who alleges that John Yoo’s grave sin was showing a disregard for the law, you sure are willing to cut down a lot of laws to get to John Yoo. Bivens actions (and the limits on their reach) exist to try to provide a balance deterring government misconduct on one hand and making whole on the other. They do not exist to grant absolute justice to those who believe they were wronged by the government; it is a pragmatic cause of action that seeks to fill in certain gaps, a judge made expedience. Use Bivens today to nail the past staff of OLC and every other policy advisor you disagreed with from the last administration, and somebody else is going to follow the same path to get to Holder and a pack of your darlings. At that point you’ll be able to argue only that it’s a terrible thing, because the law won’t be on your side and the principles restraining Bivens and keeping it in some semblance of balance will be gone. As Bolt’s More asked Roper in A Man For All Seasons, if you cut down all the laws to get to the devil, what will you hide behind when the devil then turns on you, the laws being all flat? A lot of people I tend to agree with ideologically but not legally seem to agree with your general approach to the law, that we should use it to achieve ends we can’t achieve politically. I think that’s disastrous…
December 4, 2009, 12:08 pmAnderson says:
Use Bivens today to nail the past staff of OLC and every other policy advisor you disagreed with from the last administration, and somebody else is going to follow the same path to get to Holder and a pack of your darlings.
First, your assumption that I have any “darlings” in Obama’s DOJ is ignorant and mistaken.
Second, Padilla’s suit is not against “the past staff of OLC” in toto; it is against one person, John Yoo, who is alleged to have gone beyond any notion of merely doing his job, and to have “abused his position by formulating unlawful practices and
policies for the designation, detention and interrogation of suspected enemy combatants, and by drafting memoranda designed to evade legal restraints and to immunize those who implemented
them.” (Have you read the district court’s order yet?)
I do not find faintly persuasive the argument that, if we allow torturers to be subject to civil suit, then future government employees will be “chilled” from directing or condoning torture in future. Feature, not bug.
December 4, 2009, 12:13 pmAnderson says:
Oh, and while we’re at it, Joe: please direct me to a law you think is being “cut down” to “get to John Yoo.” No link necessary; a mere citation will suffice.
December 4, 2009, 12:14 pmMartinned says:
Well, yes, but isn’t that exactly the question? Is this really an “expansion” of Bivens?
December 4, 2009, 12:21 pmMartinned says:
Well, yes, but isn’t that exactly the question? Is this really an “expansion” of Bivens?
December 4, 2009, 12:21 pmAnderson says:
This from the linked Dave Hoffman post:
Footnote 1 [of the amicus brief] is fun. I translate as: “We’d like to join and expand on Yoo’s arguments about his good faith behavior. But other parts of us are still holding onto a report which may call into question the accuracy of that claim. Coincidentally and luckily, that report continues to be delayed, making it unnecessary for us to commit to a position that would be internally incoherent. Do us a favor and resolve this on constitutional grounds, would ya?”
December 4, 2009, 12:30 pmTweets that mention The Volokh Conspiracy » Blog Archive » DoJ’s Defense of Yoo -- Topsy.com says:
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December 4, 2009, 12:31 pmMartinned says:
@Anderson: I actually got my first chuckle much earlier than that. Page 3: “There can be little question that the claims here directly implicate war powers of the President”. Unless one uses a pretty generous definition of “directly implicate”, I can think of a few ways to question that when the subject is a Brooklyn-born US citizen arrested/captured in Chicago.
December 4, 2009, 12:34 pmAnderson says:
Martinned, I think they had “clearly” in their first draft, and decided that was too obviously lame, so they went with “There can be little question.”
But that does pretty much ask the court to kick them: “On the contrary,” etc.
As Scalia said, if the guy’s a traitor, try him for treason. We have courts for that.
December 4, 2009, 12:39 pmSteve says:
Hard to believe this guy was Time’s Person of the Year as recently as 2006.
December 4, 2009, 2:04 pmgeokstr says:
See, one of the values of visiting this site full of brilliant (again, an actual compliment, no sarc intended) lawyers and law professors, is that I have begun to understand the importance of being precise.
I vehemently disagree that “evil” and “devil” are always redundant. I wanted to not offend the Satanists, who would consider that an attack on their religion, thereby avoiding the federal hate crime I would otherwise have been accused of.
December 4, 2009, 2:17 pmAnderson says:
I wanted to not offend the Satanists, who would consider that an attack on their religion, thereby avoiding the federal hate crime I would otherwise have been accused of
If they’re *really* Satanists, federal prosecution would be the *least* of your worries ….
December 4, 2009, 2:47 pmKazinski says:
Anderson:
That is quite a leap. Just how is Padilla’s case even remotely similar to Bivens? Bivens was a domestic drug dealer with no foreign connections. Padilla was a member of Al Qaeda, which was (and is) in a state of war with the United States. From the AUMF:
Jose Padilla clearly comes under the Congressional authorization for the President to use his “war powers” and of course apply the laws of war, against Jose Padilla. Now Padilla, under ex Parte Quirin is clearly subject not to criminal law and the procedures of criminal law, but to the laws of war:
December 4, 2009, 3:05 pmPLR says:
Kazinski, please furnish your evidence of Mr. Padilla’s membership in Al Qaeda (since the Padilla jury seems not to have been given any). ID card, maybe. Thanks in advance.
Seems to me the real questions are whether there is a private right of action for violation of the anti-torture statute, and how far liability extends for those who aid and abet such violations. But I guess in the 21st century every issue is elevated to some higher level about the limits applicable to dictators who rule based on their own (previously discredited) theories about their own power. So it goes.
December 4, 2009, 3:19 pmBarack Obama says:
Just how is Padilla’s case even remotely similar to Bivens?
Both cases allege a federal officer’s deprivation of constitutional rights. One need not be a drug dealer to file a Bivens action.
Quirin is also a tad subject to doubt, when even Scalia finds it necessary to back off from it. Leaving aside that the laws of war have changed since then, most conspicuously in the 1949 Geneva Conventions.
December 4, 2009, 3:44 pmAnderson says:
Oh shit, didn’t change my name back from my joke comment on Prof. Kerr’s “Google” post. Sorry!
But since I was advocating for constitutional rights, you already knew I couldn’t be the *real* Obama.
December 4, 2009, 3:45 pmMark Field says:
Ah, but then you’d be a cause celebre. We’d publish you in Danish newspapers and Yale scholarly journals. No worries.
Summoned from the vasty deep?
December 4, 2009, 3:52 pmyoonanimous says:
“Appellee Jose Padilla, a United States citizen, associated with forces hostile to the United States in Afghanistan and took up arms against United States forces in that country in our war against al Qaeda. Upon his escape to Pakistan from the battlefield in Afghanistan, Padilla was recruited, trained, funded, and equipped by al Qaeda leaders to continue prosecution of the war in the United States by blowing up apartment buildings in this country.” Padilla v. Hanft (4th Cir. 2005).
December 4, 2009, 3:56 pmAnderson says:
Yoon, that’s from an opinion summarizing the facts as alleged by the government. If you’ll look at page 6 of that opinion, you’ll see that the parties stipulated to the facts alleged by the government for purposes of the motion.
And it’s no fun to cite the 4th Circuit’s opinion without a nod to Luttig’s opinion after the feds, two days before they had to plead in the SCOTUS, announced they were putting Padilla in civilian custody & declaring the appeal moot.
The indictment of Padilla in Florida, unsealed the same day as announcement of that indictment, made no mention of the acts upon which the government purported to base its military detention of Padilla and upon which we had concluded only several weeks before that the President possessed the authority to detain Padilla, namely, that Padilla had taken up arms against United States forces in Afghanistan and had thereafter entered into this country for the purpose of blowing up buildings in American cities, in continued prosecution of al Qaeda’s war of terrorism against the United States. * * *
For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake — an impression we would have thought the government could ill afford to leave extant.
December 4, 2009, 4:13 pmyoonanimous says:
And Padilla was one of the parties.
You can cite Luttig all you want, but SCOTUS ultimately granted the government’s appeal to have Padilla transfered out of military custody without mooting the 4th Circuit case.
The facts stand.
December 4, 2009, 4:50 pmAnderson says:
Okay, Yoon, let’s look at the *text* of page 6, note 1:
For purposes of Padilla’s summary judgment motion, the parties have stipulated to the facts as set forth by the government. J.A. 30-31. It is only on these facts that we consider whether the President has the authority to detain Padilla.
That is to say, the facts are *not* stipulated for any *other* purpose. That is one reason why it was necessary to put Padilla on trial, since if those facts “stood,” they would’ve amounted to a guilty plea.
December 4, 2009, 4:59 pmAnderson says:
Oh, and just for laughs, one of the “amici supporting” Padilla in Hanft was one “ERIC H. HOLDER, JR.” Where did he ever end up? Anyone know?
December 4, 2009, 5:07 pmHoward Gilbert says:
Padilla v Hanft in the Fourth Circuit establishes that Padilla’s detention would be correct as a matter of law if the facts are as the government alleged. The current complaint asserts that Yoo participated in the government’s decision to declare Padilla an enemy combatant (an administrative finding of fact that must be initially made by the executive). Separately, the complaint claims that Padilla was not an enemy combatant. In the current summary judgment we must accept the facts as stated in the complaint, but even if we assume the claim that Yoo made a mistake, errors made in an executive fact finding would not rise to the level of a consitutional violation unless there was some additional level of misbehavior (say an allegation that Yoo knew that Padilla was not an enemy combatant and yet found that he was out of malice) and there is no such claim in the complaint.
It is also notable that after the Supreme Court in Hamdi made it absolutely clear that a US citizen held as an enemy combatant (like Padilla) had a constitutional due process right to challenge his classification as an enemy combatant before an impartial tribunal, Padilla spent an additional two years in custody without challenging his classification, without asserting that he was not an enemy combatant, and without demaining the judicial review of this fact finding to which he was entitled. To now assert that there are Bivens damages in an administrative fact finding that Padilla never bothered to contest makes no sense.
We may continue to debate back and forth what we think the Supreme Court should have said had the case gone to them, but in the action before the courts in the Ninth Circuit, it is hard as a matter of law to find a Bivens complaint about the decision to detain itself.
Which focuses the current case on the conditions of detention and not the question of detention in the first place. There really are no clear claims in the complaint that the detention itself was a cause of action, but rather there are objections to the way he was held in a small cell, without visitors, without access to lawyers (until the courts litigating his case decided to order access to lawyers), etc.
This brings the amicus brief cited in the original post into perspective. The question is whether a US citizen held as a prisoner of war is entitled under the constitution to conditions of detention that Padilla was denied. In this brief, the government warns that the courts should not second guess whether the rules established for detention were good or bad. That is a matter for the executive in time of war. Obviously, however, the courts can rule whether conditions were unconstitutional because it is not within the power of the executive to violate the constitution. That is why allegations of torture should survive, but the complaint that Padilla was not allowed to visit with his mother should be thrown out. One is plausibly a constitutional matter, while the other clearly isn’t.
December 4, 2009, 5:14 pmAnderson says:
Which focuses the current case on the conditions of detention and not the question of detention in the first place.
Well, yes — that is in fact what the case is about, near as I can tell.
is a matter for the executive in time of war. Obviously, however, the courts can rule whether conditions were unconstitutional because it is not within the power of the executive to violate the constitution.
Ah, pre-9/11 thinking!
December 4, 2009, 5:17 pmPeter Bepler says:
I find it very troubling that the VC Comments have, in this instance, been highjacked by fundamentally unserious commenters only interested in scoring cheap, flashy political debating points, and uninterested in the very real constitutional issues raised by the case under discussion. Does any of the ritualistically combative commentators actually believe that attorneys on the OLC staff (regardless of the underlying legal questions) should be subjected to Bivens liability for discharging their duty to advise the AG, the DOJ or the President on an issue? Sad.
December 4, 2009, 5:40 pmtroll_dc2 says:
Can anyone cite me a case in which an attorney has been sued successfully, other than by a client, for giving advice to the client that was followed by the client?
December 4, 2009, 5:48 pmKazinski says:
PLR:
How about an Al Qaeda application form with Padilla’s fingerprints on it?
Thank you for bringing that up.
December 4, 2009, 6:07 pmArthurKirkland says:
It appears conservatives and libertarians object to the accessibility of remedies to injured parties, and to those responsible for harm being held accountable (particularly if the harm involved torture).
Are those conservative principles with libertarians tagging along, or vice versa?
December 4, 2009, 7:40 pmbyomtov says:
Does any of the ritualistically combative commentators actually believe that attorneys on the OLC staff (regardless of the underlying legal questions) should be subjected to Bivens liability for discharging their duty to advise the AG, the DOJ or the President on an issue?
I raise my hand eagerly. Why not? If the advice is plainly bad and causes me significant harm, why shouldn’t I have such recourse?
If OLC staff were to advise the President that Peter Bepler can be arrested and detained indefinitely what would be your reaction?
December 4, 2009, 9:48 pmCornellian says:
The threshold question presented by this case is whether a court should recognize a federal common-law damage action addressing the decisionmaking process within the Executive Branch about whether the military should detain and how it should treat those deemed to be enemies during an armed conflict.
This doesn’t state the issue, it disguises the issue. If the Executive branch can detain any US citizen captured inside the United States, indefinitely, without trial and without charges, based on nothing more than the Executive’s willingness to label that person an “enemy
December 4, 2009, 11:23 pmof the Statecombatant” then we don’t have a President, we have an elected monarchy, and the Bill of Rights is an illusion.Ricardo says:
Lippoldt v. Cole
December 4, 2009, 11:47 pmRicardo says:
If the advice they give is not based on a good faith overview of the state of the law and if the advice leads to violations of constitutional rights that are clearly established, yes. Note that if you are going to criticize others for “cheap, flashy political debating points” that the one-word response “Sad” is not generally accepted as a substantive Constitutional or legal argument.
I’m not a lawyer so maybe the law is not on Padilla’s side concerning a Bivens remedy for the harm he suffered. I don’t see how your comment advances the discussion, though.
December 4, 2009, 11:52 pmCornellian says:
Does any of the ritualistically combative commentators actually believe that attorneys on the OLC staff (regardless of the underlying legal questions) should be subjected to Bivens liability for discharging their duty to advise the AG, the DOJ or the President on an issue?
I’m not sure if I count as “ritualistically combative” but doesn’t framing the issue that way just assume the answer you want? After all, isn’t the issue whether Yoo really was “discharging his duty to advise the AG” or just parroting conclusions dictated to him by Cheney/Addington in the guise of giving legal advice in order to provide cover for breaking the law?
December 5, 2009, 12:08 amCornellian says:
This actually reminds me of those tax shelter cases from a while back where corporations would hire law firms to give them dubious tax shelter advice. The corporations would then claim they couldn’t be held liable for their shady tax arrangements because they were just relying on legal advice, while the lawyers claimed they couldn’t be held liable for doing their duty to give legal advice to their clients. I didn’t buy it in that context, and I don’t buy it here either.
December 5, 2009, 12:16 amHoward Gilbert says:
Start with an enemy soldier captured in the US in uniform (part of a commando raid) who carries his military ID card and gives name, rank, and serial number. He becomes a POW through an administrative process that does not involve any judicial hearing. In the history of the US no court has ever been asked to rule in advance that a captured enemy soldier is an enemy combatant.
Now keep everything the same but add that he was born in the US and therefore has US citizenship. He is still first and foremost an enemy soldier. Furthermore, since he was captured in uniform with combatant immunity, the Third Geneva Convention applies and we are obligated to treat him just like any other captured soldier.
Now, like Huber Haupt in Quirin in 1942 or Padilla in 2002, assume that instead of being part of an invading force in uniform, he volunteered as a soldier overseas to be part of a sabotage mission. Under orders from his commanding officer he comes to the US in civilian clothes pretending to be a civilian, but he is really still an enemy soldier. In Padilla’s case we learned this because he said all this to the FBI during his initial videotaped interrogation in Manhattan.
There still isn’t any judicial process to declare that the enemy soldier is really an enemy combatant. His decision to wear civilian clothes instead of a uniform did not suddenly grant the courts jurisdiction to declare that he is really a solider.
Nor does the fact that he was captured in the US effect the question of whether he is a soldier or not. Take a US soldier, dress him in civilian clothes, and then fly him to any country in the world. When he gets off the plane he is still a US soldier because the only thing that makes him a civilian is when he gets his discharge papers. It works both ways. Put an Afghan soldier like Padilla in civilian clothes, put him on a plane, fly him half way around the world to land in Chicago. When he gets off the plane he is still an Afghan soldier because he too has not been discharged from military service during the flight.
Being a solider isn’t a crime. Even in time of war, there is no law against being an enemy soldiers. During WWII 435,000 German and Italian solders were brought to the US and held in military custody for the duration of the war, but none of them were charged with any crime in any court because it was not against the law to be a German soldier at war with the US.
When a US citizen volunteers for an enemy army at war with the US, then he commits Treason. However, this charge has never been made. The problem is that another law said that when a US citizen serves in an enemy army at war with the US, he immediately loses his US citizenship. Since being a citizen is an essential element of the Treason charge, the second law potentially blocks the charge. Because the evidence required by the Constitution makes Treason almost impossible to prosecute, the theoretical availability but practical impossibility of a Treason charge does not really effect any of these rules.
Wearing civilian clothes doesn’t change this, and while a soldier dressed in civilian clothes is a military offense against the laws of war that can be charged in a military court, it is not a civilian crime that can be charged in a civilian court. This was what the DOJ decided in 1942 in the Haupt case. A saboteur has the intent to commit a crime and if given time will eventually commit the crime, but if you catch him soon enough like Haupt and Padilla then he will only have intent, and intent all by itself is not a criminal charge.
So by definition, when a US Citizen like Haupt and Padilla go overseas, join a foreign army, that army goes to war with the US, they volunteer for a special operations unit planning an attack inside the US, and then as soldiers they dress in civilian clothes and attempt to sneak into the US, and they are captured, then they have committed no crime, cannot be charged in civilian courts, but can be detained by the military as a prisoner of war for the duration of hostilities. That is what the Supreme Court said in Quirin in 1942 and then the Quirin decision was quoted and reaffirmed by the Supreme Court in the Hamdi decision in 2004.
However, the absence of judicial process before taking an enemy soldier into custody does not mean that there is no subsequent judicial process, or that this is under the exclusive arbitrary control of the executive. That is the flip side of the Hamdi decision. If a US citizen is taken into custody by the US military and is held as an enemy combatant, whether he was captured on the battlefield in Afghanistan or trying to sneak into the country at the Chicago airport, the Hamdi decision says he has a constitutional due process right to challenge his classification as an enemy combatant before an impartial tribunal. In the one case this right was exercised, by Ali al Marri, the Federal District Court in the Fourth Circuit formed the tribunal.
When Padilla was captured, he told the FBI that he was an enemy combatant. He described his training, his mission, his commander, his unit, everything. Combined with his military personnel file captured in Afghanistan in Dec. 2001, this provided overwhelming evidence that Padilla was an enemy soldier subject to military detention for the duration of hostilities as a POW. However, there was no way to get a judge to certify this because there is no such judicial process. If there was going to be any judicial hearing and any opportunity to present evidence, Padilla had to contest his classification as an enemy combatant and he (not the government) had to request the hearing. He never did that.
Sometimes there is judicial process at the front end before someone is detained. In this case, there is the opportunity for judicial process immediately after detention. The fact that enemy soldiers can only be detained by an initial executive action, and that the review has to be requested by the detainee does not somehow make the process illegitimate or trample on the Bill of Rights.
What bothers me is the notion that Padilla was held simply beause the Executive labeled him as an enemy combatant. The President declared Padilla to be an enemy combatant because they had his military personnel file captured in Afghanistan and because he told the FBI he was an enemy combatant. If it is raining outside, and the President looks out the window and declares that it is raining, will you object that the Executive has no authority to decide when it rains or not. Will you complain that there was no trial to decide if it is raining? Will you argue that it is a dangerous invasion of our liberties if the President thinks he can decide when it rains?
The reason why there isn’t judicial involvement is that in 1942 if a unit in North Africa found some guy sitting on a burned out German tank and he was wearing a German uniform, carrying a German military ID card, and he gave his name, rank, and serial number, then there was no need for charges and lawyers and a trial to decide that he was probably a German soldier who should be held as a POW. There certainly are some detainees in the current conflict for whom their status is less clear, but Padilla is not one of them. We have his files and we have his statements describing everything he could remember about his two years of unbroken service in the enemy army ending with his capture. Let the President make the initial decision to declare what is obviously true. The Courts are waiting for simply a word from Padilla to get involved and make sure everything was done correctly, but until he gives that word then all the evidence in the world can be sitting around waiting to prove something, yet never be given a chance to be presented to a court.
December 5, 2009, 12:41 amCornellian says:
There still isn’t any judicial process to declare that the enemy soldier is really an enemy combatant. His decision to wear civilian clothes instead of a uniform did not suddenly grant the courts jurisdiction to declare that he is really a solider.
And if the FBI arrests you in the United States, and declares that you’re an enemy soldier in civilian clothing, to be held without charges and without trial until the enemy we’re at war with surrenders (which will be never because the enemy, “terrorism”, is an abstract noun incapable of surrendering), what judicial process, if any, do you think should be available to you to contest your detention?
I’ll concede that will never happen to you if you conceded the Executive branch never makes mistakes, acts in bad faith or tries to cover things up.
December 5, 2009, 1:17 amKazinski says:
Cornellian,
The Supreme Court made clear in Ex Parte Quirin that a hearing to determine the status of the suspected enemy combatant was required, and that Article III courts could have a role in that determination. But once that determination was made, whether as legal or illegal combatant, then the Article III courts no longer had a role.
Howard Gilbert:
I think you are wrong here. First of all when soldier dresses in civilian clothes in order to decieve the enemy, he has broken the laws of war. He may also have broken civilian laws in both sneaking into the US, and any acts of sabotage. It would be perfectly appropriate to deal with the person in civilian court, but the government would be under no obligation to do so. Just as a prosecutor has wide discretion of whether or what crimes to charge, the Government has wide discretion in such a case to decide whether a military of civilian format meets their interests.
December 5, 2009, 1:36 amleo marvin says:
This isn’t nearly as twisted as the Palin thread.
December 5, 2009, 1:36 amRicardo says:
Sure it does, see Hamdi v. Rumsfeld. If a U.S. citizen disputes the contention that he is an enemy combatant, he has some right to a hearing to determine whether he is or not. And no court has ever held that there is any combatant immunity for those who are not in uniform or not part of the armed forces of a sovereign nation. The New Mexico courts, for instance, indicted and I believe ultimately convicted some of Pancho Villa’s soldiers of murdering American civilians during a cross-border raid from Mexico into Columbus, New Mexico. They indicted Pancho Villa for murder as well but General John J. Pershing’s expeditionary force in Mexico was unable to capture and deliver him for trial.
December 5, 2009, 8:32 amHoward Gilbert says:
Kazinski,
As I said elsewhere, “while a soldier dressed in civilian clothes is a military offense against the laws of war that can be charged in a military court, it is not a civilian crime that can be charged in a civilian court”. The offense of “crossing lines without uniform” is a capital offense, but it may not be even a crime in military law. Wearing civilian clothes to attack an enemy force is a war crime, but when an unarmed spy crosses through lines there is a “home free” rule. Should the spy return back to his own lines without getting caught, then he cannot subsequently be prosecuted as a spy even if he is subsequently captured on a regular battlefield. You can only charge the offense if you capture him while he is behind your lines out of uniform.
Espionage is a crime that can be charged in courts, but it applies to civilians who spy. The military offense of crossing lines without uniform, can only be tried in a Court Martial. Although we could argue that if it is not a crime then the Fifth Amendment does not apply, it is unlikely that a judge would agree. Since Padilla’s un-Mirandized statement given without the presence of a lawyer is the only evidence we have of the offense (or of anything else in his case) it is impossible to prosecute the offense.
Of course, any proceeding that simply seeks to determine if there is a factual basis to classify Padilla as an enemy combatant and detain him in military custody is not a criminal proceeding, and then the clear text of the Fifth and Sixth Amendments show that they do not apply. Miranda is out, and Padilla’s statements that cannot be introduced to prosecute him can be introduced to hold him as a military prisoner.
Cornellian,
The opportunity for abuse has always been there. However, in the last 150 years this power has only been used for 12 people by three Presidents. There were the original 8 German saboteurs in 1942 (FDR), the last 2 German saboteurs in 1945 (Truman), and then Padilla and al Marri (Bush). Somehow we made it through the Red Scare of the ’50s, then Vietnam and the Watergate, and despite lots of actual abuse this particular loophole was not exploited. If you are worried about it, write to Pelosi and Reid. Until then, the opportunity for abuse in the future is not a legal argument that somehow the law is different than the way it has been exercised over the last sixty years (and approved by the Supreme Court in Quirin).
December 5, 2009, 8:45 amOren says:
This is very confused. The Torture Act (18USC2340) is a criminal statute, not a civil one, and created no right of action altogether.
You cited that wrong, it should be Padilla v. Hanft (4th Cir. 2005) withdrawn.
You assess it wrong. If I were a Senator and the esteemed Gentlemen from $STATE Anderson proposed a bill expanding the Torture Act to include a civil remedy against violators and their conspirators, I would vote yea.
Despite my support for such a bill (and perhaps because I am not a Senator), there is no such provision. The question of whether Bivens works in the absence of such a provision is about what the law is, not how I think it ought to be.
By the way, no one seems to want to mention Milligan these days… Has it gone out of fashion?
December 5, 2009, 10:47 amAnderson says:
“Ritualistically combative” commenters like Mr. Bepler can only make Padilla’s case seem absurd by deliberately misstating it.
The allegation is that Yoo knew or should have known that the treatment of Padilla violated the laws, but conspired to create “get out of jail free” OLC memos that would immunize those heeding them. The complaint also alleges that Yoo was not simply called in to answer legal questions (or create “legal cover”), but one of those creating the policies that were applied to Padilla.
On those facts — which, as we’ve said, Padilla would have to actually prove in order to recover against Yoo — I do not understand why anyone would imagine for a moment that Padilla has no case against Yoo. Anyone not “ritualisticaly combative,” that is.
Anyone seriously interested in the issue should read the district court opinion linked earlier in the thread, and *then* address its legal merits.
December 5, 2009, 10:51 amAnderson says:
The Torture Act (18USC2340) is a criminal statute, not a civil one, and created no right of action altogether.
Leaving aside that it applies only outside the U.S.; the War Crimes Act would be the better vehicle for prosecuting Yoo et al. for grave breaches of the Geneva Conventions. But as Oren correctly notes, those are criminal statutes.
The lack of other evident legal recourse is what makes Bivens appropriate here.
… Oren, I can see where Milligan would apply if the feds had actually tried Padilla before a commission, but I think the feds would argue they were merely detaining him for national-security purposes.
Which in itself, frankly, I think is fine — Goldsmith and Katyal are probably right that we need some judicial framework for that, perhaps 3-month terms of detention with a rising burden for the feds to prove that renewals are necessary, and something like the FISA courts to evaluate the alleged security issues.
The much larger issue w/ Padilla is the deliberate, and perhaps successful, effort to drive him mad as part of his interrogation.
December 5, 2009, 10:58 amHoward Gilbert says:
Oren,
Padilla v Hanft was never withdrawn. Luttig though about withdrawing it, but finally decided that the decision was sound at the time it was issued, and that it would not be proper for the Fourth Circuit to withdraw a decision because it had issues about how the Supreme Court managed its docket. If the case was going to be voided, it was the job of the Supreme Court to vacate it.
The Fourth Circuit then went on to cite the case as precedent in other cases. For example, Al Marri v Wright contains the reference:
I threw in an extra sentence because you want to talk about Milligan. If the government every tries to detain as an enemy combatant a domestic terrorist, then Milligan will control. However, Padilla enlisted in a foreign army engaged in hostilities with the US, went through Basic Training at the Al Farouq camp, was present on a battlefield in enemy units engaged in combat with US troops, and was captured on a military mission of sabotage. In his case, Quirin applies overrides Milligan.
December 5, 2009, 11:32 amtroll_dc2 says:
Ricardo partially answered the question that I asked.
In Lippoldt v. Cole, the court said:
The lawyer did three things: drafted the denial letter, researched the law, and advised that the letter be signed. It can be argued that the lawyer could be held liable here for effectively having made and carried out the decision.
The only way that I see Yoo as being liable is if he can be shown to have done more than provide incorrect advice.
December 5, 2009, 1:09 pmAnderson says:
The only way that I see Yoo as being liable is if he can be shown to have done more than provide incorrect advice.
That is indeed the allegation, though there’s also the difficult-to-prove issue of deliberately providing incompetent advice.
December 5, 2009, 2:40 pmtroll_dc2 says:
How would that be proved? Would there have to be an admission? Would mere incompetence be enough? Would there have to be evidence of statements and behavior that would be incompatible with a claim of innocent incompetence?
December 5, 2009, 2:47 pmBob from Ohio says:
People are actually defending Padila on the basis that he wasn’t Al Queda? So he is a mere convicted terrorist. That makes him so much more sympathetic!
The deadender defenders of Padila* and other terrorists ought to look at the latest Pew survey on torture. Seems you guys are on the wrong side in more ways than one.
*As Anderson noted, even Eric Holder ain’t on your side anymore.
December 5, 2009, 3:01 pmOren says:
Ah, the magic of Bivens: I have no cause of action therefore I have a cause of action!
So a US citizen is not a domestic terrorist? He’s quite a bit more than merely a domestic terrorist, in fact, he’s a US citizen-terrorist.
He is not sympathetic. He is a convicted terrorist that deserves to be imprisoned indefinitely. If the government hadn’t botched the case, he would probably have been rightly hung for treason by now.
I believe we can find 12 unemployed and illiterate idiots to decide this for us…
December 5, 2009, 7:52 pmHoward Gilbert says:
Oren,
Citizenship has nothing to do with Milligan. A civilian who is either a citizen or a legal resident is protected by Milligan. During the Civil War, when Milligan was decided, everyone was a citizen. The entire Confederate Army were US Citizens, but Milligan did not apply to them. They were enemy solders. Quirin applies to enemy soldiers, both civilian and alien, who are captured on US soil in wartime while engaged in a military mission for their enemy army. Quirin applies to Padilla (a citizen) and al Marri (a legal resident alien) but not to, for example, the other men convicted with Padilla in Miami.
In 1942, Haupt worked for a week with his father to accomplish his mission. Haupt was taken into military custody and the Quirin decision approved of that action. His father, however, had not gone to Germany and joined the German army, so even though they worked side by side his father was protected by Milligan and was tried in civilian court for Treason. Father and son, working side by side to do the same thing in the same place. One ends up in military custody, the other in civilian custody. The only legally relevant question is military status. The son was an enemy soldier, while the father was a civilian.
Any civilian who is influenced by al Qaeda and decides to perform an act of terrorism is protected by Milligan and cannot be detained by the military. However, if this same person goes overseas, enlists in the enemy army, goes through basic training, and then returns on a military mission (like Haupt and Padilla did) or any foreigner who enlists in an enemy army and then enters the US pretending to be a civilian while on a mission of sabotage (like the other 7 Germans in Quirin or al Marri in the current conflict) is covered by Quirin and may be detained by the military as an enemy combatant/prisoner of war.
Padilla was not a “a US citizen-terrorist” any more than Haupt was. Both were soldiers in an enemy army engaged in an armed conflict with the US, who also happened to be US citizens. In war, the citizenship of a captured enemy soldier is irrelevant and has absolutely no legal significance as to treatment or jurisdiction.
The fact that Padilla was a spy and therefore ineligible for POW status confuses things. Consider regular POWs captured on the battlefield.
A US resident born in Afghanistan joins the US Army. He is captured by the Taliban. Do you imagine for a second that we would tolerate the enemy deciding that they could try him under Shari’a (their view of Afghan domestic civilian law) and behead him under that law because he happened to be an Afghan citizen? Well it works both ways. We are obligated under the Third Geneva Convention to respect the status of lawful enemy combatants who, like Yasir Hamdi, happen to have been born in the US. We cannot use their citizenship to strip them of their rights and protections under international law, or to apply our domestic law to them.
Combatant immunity means that a lawful combatant enemy solider cannot be charged with civilian crimes or tried in civilian courts. Under current US law, he must be given a Court Martial (Military Commissions are limited to unlawful enemy combatants). Milligan, however, directs all captured civilians to civilian court. Applying Milligan to someone who is in fact a lawful enemy combatant (even one who also happens to be a US citizen) is a serious violation of the Third Geneva Convention and therefore itself a War Crime. They are entitled to POW status and to have all charges heard by a Court Martial and may not be denied that right.
Of course the Bush administration did not recognize Hamdi as an enemy combatant. That is another example of outrageously bad legal advice provided by John Yoo. Administration critics should not compound this legal error.
December 5, 2009, 8:49 pmHoward Gilbert says:
Clarification: a lawful enemy combatant cannot be charged with civilian crimes or tried in a civilian court for anything he did while he was a soldier. Padilla had committed crimes in Miami before he left for Afghanistan and enlisted. As provided in the Third Geneva Convention, after he was released from military custody and before he was repatriated, Padilla was subject to civilian trial for outstanding crimes committed while he was a civilian.
Also, service in an enemy army engaged in hostilities with the US is an expatriating act that results in immediate loss of citizenship, but this must be confirmed later on by civil court process. Until such civil action, he must be treated as if he was a US citizen, and if no such process ever occurs he will retain those rights. However, technically it is better to say that Padilla is “presumed to be a citizen” or “still entitled to the rights of citizenship” rather than saying outright that he is a citizen, since that last statement is legally subject to challenge.
December 5, 2009, 9:13 pmOren says:
Al Qaeda is not an army, you cannot simply label anything “basic training” or “military mission” because it suits you.
By that standard, Timothy McVeigh was enlisted in an “enemy (insurrectionist) army” during his time in Waco, went on “basic training” (in the sense that he practiced his gunmanship) and returned on a “military mission” to blow up the Murrah building.
The fact that we do not recognize the sovereignty of the Taliban government is key here. That is, we do not recognize that the Taliban is competent to have a system of justice in the first instance, let alone in this particular case.
Afroyim v. Rusk and Vance v. Terrazas seems to suggest this is not the case. Quoting Vance
As I read it, Padilla cannot be stripped of his citizenship unless it was his specific intent to lose it. Simply committing an “expatriating” act is not enough.
December 6, 2009, 1:46 amHoward Gilbert says:
Oren, I think we reach a point of clarity if not agreement:
There are two John Yoo opinions, neither of which has anything to do with torture. One holds that members of the Army of Afghanistan under the Taliban are not able to be lawful, privileged combatants no matter what they do. The other is the claim that Jose Padilla was an enemy combatant when he was captured. They cannot both be correct.
Under the ICRC guidance about Direct Participation in Combat, a civilian can only be regarded as an enemy combatant while he directly participates in combat, and that can only happen in Afghanistan. The other status that might apply, that of member of the regular armed units of a non-state participant in a non-international conflict who is engaged in continuous combat function might have applied to Padilla in Afghanistan and Pakistan, but his trip to the US indicates clearly that he is no longer engaged in continuous combat function having traveled so far from any actual battlefield. So unless Padilla was a member of a regular army in Afghanistan (a lawful combatant), he cannot have held a status that legally survives the plane trip and therefore been an enemy combatant when he got off the plane in Chicago. He is then at most a criminal who should have been charged or released.
We disagree about which of the two Yoo opinions was right and which was wrong. I think Yoo was wrong because Padilla was a lawful combatant in Afghanistan and therefore an unlawful combatant in Chicago and therefore covered by Quirin, which was the opinion in Padilla v Hanft (4th Cir. 2005) not withdrawn. You believe that he was at most an unlawful combatant in Afghanistan, that therefore Yoo was wrong and he was a non-combatant civilian in Chicago, and therefore he was covered by Milligan. The Fourth Circuit never considered this question.
December 6, 2009, 9:03 amOren says:
Yup, I believe that is where we stand.
December 6, 2009, 10:37 amOren says:
I should also add that, while there is no direct precedent for it, I would like to propose that due to the Taliban’s persistent and flagrant violations of the laws of war, the entire army be deemed unlawful.
December 6, 2009, 1:37 pmHoward Gilbert says:
Oren,
After 9/11, the highest priority supplies sent to Afghanistan were not guns or ammunition. The US rushed by air 15,000 uniforms so that our allies could be dressed according to Western views of “the laws of war”. It would be difficult to complain about enemy behavior when it was indistinguishable from the guys who were actually fighting on the ground on our side (who were not the tiny number of actual US forces sent to the region).
There were 45,000 front line enemy troops in Afghanistan who had no knowledge of 9/11 and who, while not dressed and equipped to Western standards, behaved entirely in line with Afghan traditions while fighting a civil war with 40,000 Northern Alliance troops who were (until we rushed some of them new clothes) dressed, equipped, and trained to behave the same way. There were only 19 hijackers and maybe another 10 higher-ups who ran the 9/11 attack, and although there is evidence that Mullah Omar was informed that the attack would occur, the Taliban generally thought it was illegal under Shari’a and were opposed to the idea (but did not forbid it). Certainly there were war criminals. There is no precedent, and certainly no basis here, to declare that the 45,000 front line troops were war criminals because of behavior by 30 people elsewhere about which they had no advance knowledge. The entire US Army did not become illegal because of My Lai or Abu Ghraib. The criminals became criminals. The Japanese responsible for the Bataan Death March were war criminals, but as regular uniformed officers in a regular army, they were not unlawful combatants. They could be charged for violations of the laws of war, but in combat they would still be entitled to combatant immunity. More importantly, there is nothing in the Geneva Conventions or the Hague Agreements that says that violations of the laws of war can be used to strip combatant immunity or lawful combatant status from uninvolved members of the regular army of a Geneva or Hague signatory.
No matter how you feel about today’s enemy, stripping lawful combatant status and therefore Geneva protection from an entire enemy army is essentially the same as flushing the entire body of IHL down the toilet. There has never been a war in which both sides did not claim that the other side were war criminals. Japan regarded strategic bombing as criminal. North Vietnam claimed that US airmen were criminals. North Korea calls the US a criminal country every time the wind blows from the wrong direction. That is why the language of the Geneva Convention makes it clear that you cannot simply declare an enemy to be unlawful because you have some real or imagined complaint. This is more than a slippery slope; it is a step right off the cliff while carrying an anvil, just like Wiley Coyote.
There is an important but delicate logical distinction here. Al Qaeda did not have an army. It is not even clear it had a membership. Al Qaeda was to terrorism what the Ford Foundation is to worthy projects. It was mostly a source of funding, but it also provided support services and some introductions and social networking. KSM came to Bin Laden with the idea for “the planes operation” and Bin Laden gave him a grant to support the project and introduced him to people who could help. Even today it may be incorrect to say that KSM was a “member” of al Qaeda, but his 9/11 attack was an al Qaeda sponsored project. At the same time, 99.9% of all the money gathered by al Qaeda and all the people recruited by al Qaeda went to the support of the Afghan army under the government led by the Taliban. A few al Qaeda special projects, like the assignation of Ahmad Shah Massoud, directly supported the Taliban conflict against the Northern Alliance.
Afghans fought each other according to a set of rules for thousands of years. Then they fought the Russians for a decade and lost a million people to the conflict. Then the Taliban fought the Northern Alliance for a few years. Then something happened half a world away and the US arrived and mostly kicked their ass from Oct to Dec, 2001. During those three months, the Taliban was so busy dodging JDAMs there is very little evidence of actual combat let alone violations of the laws of war. Although the Taliban recognized the traditional rules rather than the Western rules of combat, it basically didn’t matter when groups of light infantry faced off against F-16s. Even if the Taliban did not have insignia that could distinguish them at a distance according to the laws of war, the US had no trouble targeting them from B52s flying 20000 feet up even without the insignia.
So Padilla was recruited by al Qaeda and was trained and equipped at the al Farouq camp supported by al Qaeda funds, but then he became a soldier in the Taliban army and spend three months at a Taliban outpost near Kabul that had no al Qaeda affiliation. Then he was recruited for “the apartments operation” by Mohammed Atef who was a member of al Qaeda but also, as commander of the 055 Brigade, an officer in the Taliban army. Then Atef was killed in a US airstrike and Padilla joined the first Taliban unit passing through the area. Many months later, he was assigned to the command of KSM. In a Western army, everything has to be done with paperwork. Soldiers don’t simply drift off following some important person who tells them he has a project for them. Unfortunately, that is the way things were done in Afghanistan, and it makes rigorously applying Western standards of law and responsibility almost impossible.
December 6, 2009, 3:58 pmAnderson says:
Nice discussion, Oren & Howard.
… How would that be proved? Would there have to be an admission? Would mere incompetence be enough?
I am doubtful whether Padilla could recover for incompetence; rather, the incompetence of Yoo’s analysis would have to be shown to be soooo egregious that a jury could find it was in fact not “incompetent” but insincere. I personally think a jury of lawyers could find that, but I don’t think the argument works in a real court.
So an “admission,” such as incriminating e-mails, would seem to be the stronger path here. Padilla is trying to move his case forward so that he can obtain discovery of Yoo’s communications, drafts etc. which might contain incriminating evidence … assuming any such hasn’t been destroyed by now.
December 6, 2009, 6:10 pmOren says:
I’m sorry, I wasn’t clear about this but 9/11 had nothing to do with my argument.
The Taliban, as constituted after the fall of their government, comported themselves in clear violation of the laws of war. Violence against civilians, kidnapping, perfidy, the list goes on and on. It is these continued, willful and persistent violations that, in my opinion, render the entirety of the Taliban unlawful.
I am aware of this, although I’m going to try a lawyer’s dodge and say that the Taliban, as it currently exists, is no longer a ‘regular army’ but rather more like a band of brigands or pirates. That is, simply because they were at one point a legitimate fighting force does not grant them combatant immunity indefinitely, especially after the vast majority of their operations become illegal in nature.
I mean, what we have here is a group that flaunts their violations of the laws of war, uses perfidy as a standard operating procedure and still we have to respect them as if they were a standing army? At some point, they crossed the line from army to criminals and while it might not be clear exactly when and where, I think it’s safe to say they are well passed that point by now.
So we have to put up with Taliban perfidy in Afghanistan forever?
What?! There have been hundreds of attacks on Afghan civilians and US servicemen in Afghanistan. Roadside bombs, ambushes, homicide-bombers, donkeycide-bombers. Many, even most (but maybe not all), of those attacks were, in some fashion, violations of the laws of war.
A “Taliban Army” that, at the time and forgetting its recent history, was functionally indistinguishable from a criminal gang.
December 6, 2009, 10:32 pmHoward Gilbert says:
When you capture someone, his status is determined by the state of his army at the time of capture and not what it subsequently becomes. This fixes the status of Padilla and the Guantanamo prisoners to the enemy army of 2001 and 2002.
Which means that what I am about to say doesn’t apply to Padilla. I have referred to “the army of Afghanistan under the government led by the Taliban” and shorter forms. It is an awkward phrase, but carefully chosen. First, we are distinguishing the Southern Army (under the Taliban) from the Northern Army (the Islamic Front for the Salvation of Afghanistan, but more commonly referred to in English as the “Northern Alliance”). The Southern Army was mostly Pashtun militia. Most of the 45,000 soldiers were from southern Afghanistan, but Pashtun tribes exist on both sides of the rather porous border and 10,000 of the solders were from Pashtun tribes in Pakistan.
The Afghan war against the Soviets was fought by an estimated 4000 independent local units with local tribal leaders. After that war, the most successful regional wartime leaders became what the Western press describes as “warlords”. The Taliban provided a national (compared to local or tribal) movement and its Islamic clerical makeup gave it credibility. It was successful because it did not threaten any local tribal leadership and authority. Still, while the Taliban were the most prominent members of the Southern army, the bulk of its power was distributed across hundreds of somewhat independent Pashtun tribal forces.
Which made the war mostly a tribal, ethnic, and religous conflict between the Pashtun majority in the South and the Tajik, Hazara, and Uzbek people in the North. It was in part a war of extermination, because the Taliban made it clear that they intended to wipe out at least the heretic Shia. In the future, those who plan genocide should wait until they successfully conquer people before they expose their plans. Nothing firms up opposition like the knowledge that you, your family, and your tribe face extermination should the enemy win.
When the US bombs started to fall, the Afghan tribesmen went home and the Pakistani Pashtun snuck back across the border. This left the al Qaeda trained Arabs and the Taliban more or less exposed on their own. Today, the US faces a Taliban inspired enemy with some Pashtun tribal support, but not on the scale that was operating in 2001.
In Afghanistan, tribal militia do not wear uniforms or distinguish themselves from civilians. You can call this guerrilla warfare, or just a continuation of 2000 years of local tradition. It may be enough to render the enemy today “unlawful combatants who do not follow the laws of war”, but to call it “perfidy” is to try and impose Western morality on a foreign culture that does not regard this as improper behavior.
When the Soviets were defeated, Bin Laden left Afghanistan as fast as he could. He was disgusted with the Afghan people and regarded them as the lowest form of pond scum in Islam. It took him a long time to come back, but he still surrounds himself with Arab supporters and there is no reason to believe that he actually likes Afghans at all. This may be another reason he launched 9/11 to instigate a war between the US and Afghanistan. He assumed that the US would be defeated in the mountains of Afghanistan as the Soviets were, but if such victory caused the death of another million Afghans he would probably have been quite happy to see them die.
The army of “Taliban” that we face today is not the army of 2001. However, it is still more a force of Pashtun local leaders that we label as Taliban rather than an actual force of Taliban fighters, and that applies as much to the tribal areas of Pakistan as it does to Afghanistan. After 2000 years of ethnic fighting, it should be clear to everyone that we cannot win a war against the natural inclinations of an ethnic majority. Not in 18 months like Obama suggests; not in 18 years; maybe not in centuries.
We have no requirement to regard the current quite different enemy force as “lawful combatants” even though they are still associated with Mullah Omar and some of the old leadership. The enemy changes with every shift in their fortunes. At the same time, there is enough of a tenuous link between the original and current force to regard the current conflict as an extension of 2001, at least with regard to the power of the AUMF and the legal nature of the armed conflict itself. This is very lucky. Some day we will have to face a large terrorist group in a location where we cannot automatically invoke the laws of war, and there is no evidence that the US and its current allies are prepared to do whatever would be necessary to defend themselves.
December 7, 2009, 10:19 amHoward Gilbert says:
On a completely different note, while this comment thread was going on, Legal Theory Blog and How Appealing pointed to a paper Yoo submitted to SSRN on Lincoln and Habeas: Of Merryman, Milligan, and McCardle. This is a work of legal history and not advocacy, but you can read between the lines to find the source of his theories of Executive power. He finds them in the Lincoln presidency, particularly as the nation was coming apart before the Civil War really got going. Today we idolize Lincoln, but at the time he was widely denounced (not just in the South) for taking unconstitutional measures like a Presidential suspension of Habeas just because Southern sympathizers were blowing up railway bridges to isolate DC. Once the War began, a Republican Congress supported his actions and history views his emergency measures as necessary. However, modern [liberal??] constitutional legal theory cannot justify what Lincoln did. This leaves three possiblities: the Yoo 2001 theory that the power resides in the Executive to be used when necessary, the critics view that the constitution bars such claims of Execuitve power, and what I regard as the non-legal-theory “realist” view that Presidents such as Lincoln can do what is necessary when the country faces an existential threat, but 9/11 wasn’t such a threat.
December 7, 2009, 12:34 pmOren says:
This is a good point. I think I was (quite incorrectly) projecting the Taliban army of today back on his capture.
I take it you do not believe that the protections of the laws of war are based on reciprocity. Fair enough, I suppose, but I think that’s a fairly large error.
Moreover, I would argue that the laws of war are universally applicable. Perfidy is everywhere and always a crime because it’s inherently wrong to place civilians at risk. If Afghanis didn’t regard forced marriage or wife-beating as “improper behavior”, I would not consider this sufficient to excuse the practice.
This is why the cultural-relativism-branch of “multiculturalism” (a term that is woefully underdefined) seems to me to be nothing more than aculturalism — an absence of the normative values that define a culture. This is, of course, way off topic but I just don’t buy that “hey, they don’t consider it wrong to burn witches so it’s improper for us to say that it is”.
December 7, 2009, 1:01 pmHoward Gilbert says:
If a soldier pretends to be a civilian, then that is a war crime. If he dresses as a civilian, and then joins 45,000 other soldiers similarly dressed in a main line battle miles away from any actual civilians, then I don’t call that “perfidy”. We have not used that term in any other guerrilla wars (the VietCong, the French Resistance, etc.). Only Tito’s Partisan army in Yugoslavia dressed in uniforms.
December 7, 2009, 3:12 pmOren says:
Sure. But if he takes up position inside a civilian building or hides his arms and pretends not to be a combatant when the enemy rolls in only to ambush them later, then he is guilty of perfidy, at least as I understand the term of art.
December 7, 2009, 4:56 pmAnderson says:
Re: Howard’s 73, Emptywheel’s smackdown of the Yoo article is here. You will be shocked to learn that he avoids contrary authority.
December 8, 2009, 6:43 pm