Thoughts on the Continuum Between War and Crime:
My post last night on what to do with Al-Qaeda cell members who can't be charged in criminal court led to a fascinating and long comment thread — about 100 comments in two hours last night, plus another 120+ so far today — and I wanted to follow up and respond to some of the comments. In particular, I want to to talk about the continuum between fighting wars and fighting crime, and where I think the Al-Marri case fits on the spectrum.
First, let's talk about some first principles. Our traditions know two basic ways of dealing with hostile actors: through war and through the criminal justice system. Within each system, there is a balance of factors at play in creating the rules. As a general matter, however, war is about self-protection: we try to disable the enemy from attacking us, and we take whatever measures are necessary to do that. There are limits, of course, conventions as to the laws of war and rules that each side adopts. But by and large the goal of self-protection by disabling future attacks takes priority.
The modern criminal justice system is different. Incapacitation is only a small goal of that system. Rather, we are primarily interested in punishing to discourage future harmful acts and to further the ends of justice. We create law enforcement offices to investigate and prosecute the acts to make this possible, but we intentionally give them only limited powers because we don't want them to be the problem rather than the solution. We make the police jump through a lot of hoops and face punishment for breaking the rules: they have to prove their cases in particular ways, subject to strict evidentiary rules, confrontation rights, the exclusionary rule for search and seizure violations, and the like. The intuition is that limited police powers can prevent abuses while giving the police enough authority to investigate a reasonable amount of crime.
What's interesting about these two different systems is that we can think of many cases that are somewhere along the continuum between the two poles. Consider the following persons detained by the United States in various circumstances:
Plus, we have a range of different criteria to use to determine which set of rules should apply, without any one criteria being the obvious factor that should control as a matter of policy. Some might want to focus on the seriousness of the perceived threat; others on whether there has been a formal declaration of war; others on whether a foreign country is involved; others on the individual's citizenship; others on the location or circumstances of the seizure.
All of these are possible lines to draw, but none are widely agreed to be the most important; as a result, we have a continuum from war to crime with some cases seeming to be somewhere in the middle. (Plus, while court cases help resolve some issues at the far ends, the existing cases are not very consistent; compare Ex Parte Milligan with In re Quirin. There's not a lot of consistent guidance from them, so we have one side making Milligan arguments and the other side making Quirin arguments.)
Now, back to my hypothetical in which we have admitted Al Qaeda terrorists who entered the U.S. to launch an attack but who can't be charged criminally. The Al-Marri case tells us that we have to deport them or set them free, a result that I described in one of my less articulate moments as "bizarre." Many commenters objected, asking, what's so bizarre about that — isn't that how the criminal justice system works? I think that's the wrong box, though; I see the case as much or more a "war" case than a "crime" case.
Why? There are two primary reasons I see it that way. The first and most important is that members of a terrorist cell see themselves at war; they see themselves as soldiers in a holy war against the United States, and are acting accordingly. When a group sees themselves as soldiers at war trying to kill you, it seems fair that you should want to return the favor. Second, the members of the group have no connection to the United States other than as soldiers. The only reason they are here and not on the battlefield abroad is that they have chosen to attack the enemy's civilian population rather than its soldiers. They not only see themselves as soldiers; they are here as soldiers. When you put those two factors together, it seems to me that the case is as much or more a "war" case as a "crime" case. I realize it won't seem that way to everyone, but it does to me.
Now, so far I've mostly ignored the question of how you know if someone is who they are suspected of being. "Sure," you might say, "maybe we detain an Al Qaeda cell member who enters the U.S. just to attack us — but how do we know who that is?" But here I think the Hamdi plurality had a pretty good solution — kinda made up as a matter of constitutional law, perhaps, but not bad as a pragmatic solution to the problem. Under the Due Process approach offered in Hamdi, an individual's procedural rights — what trial they get to test their detentions — is a sliding scale depending on who the person detained is, where they were detained, why, citizenship, etc. As I see it, it's a mushy balancing test that ends up largely replicating the continuum from crime to war; it's a blend of the crime model and the war model. The closer a case gets to a traditional crime category based on known and acknowledged criteria, the more Due Process rights resemble a criminal trial. On the other hand, the closer a case gets to the traditional war category based on known and acknowledged criteria, the more those rights resemble the traditional standards used in war.
What I found odd about Al-Marri is that it seems to treat most cases of Al Qaeda terrorists here to attack us as crime cases. It seems to me like an effort to bypass the Supreme Court's sliding scale war-crime framework in Hamdi and to replace it with a regime in which all the Al-Qaeda bad guys are forced into the crime model. I don't think this is the right box, which is why I see the Al-Marri framework as odd.
Anyway, that's my take. I realize a lot of commenters disagree, but I hope we can approach the disagreements in good faith with the understanding that we are all trying to grapple as best we can with a very difficult set of problems.
First, let's talk about some first principles. Our traditions know two basic ways of dealing with hostile actors: through war and through the criminal justice system. Within each system, there is a balance of factors at play in creating the rules. As a general matter, however, war is about self-protection: we try to disable the enemy from attacking us, and we take whatever measures are necessary to do that. There are limits, of course, conventions as to the laws of war and rules that each side adopts. But by and large the goal of self-protection by disabling future attacks takes priority.
The modern criminal justice system is different. Incapacitation is only a small goal of that system. Rather, we are primarily interested in punishing to discourage future harmful acts and to further the ends of justice. We create law enforcement offices to investigate and prosecute the acts to make this possible, but we intentionally give them only limited powers because we don't want them to be the problem rather than the solution. We make the police jump through a lot of hoops and face punishment for breaking the rules: they have to prove their cases in particular ways, subject to strict evidentiary rules, confrontation rights, the exclusionary rule for search and seizure violations, and the like. The intuition is that limited police powers can prevent abuses while giving the police enough authority to investigate a reasonable amount of crime.
What's interesting about these two different systems is that we can think of many cases that are somewhere along the continuum between the two poles. Consider the following persons detained by the United States in various circumstances:
1. U.S. citizen seized in Afghanistan, suspected of helping the Taliban forces in battle.From the standpoint of policy, which of these cases should be handled under the "war" rules and which under the "crime" rules? And how do you tell the difference? My sense is that most people would say that there are difficult line-drawing issues here. Not everyone on this list should be dealt with under the "war" rules; not everyone on this list should be dealt with under the "crime" rules.
2. U.S. citizen suspected of blowing up a federal building as part of a plot to overthrow the U.S. government.
3. Suspected German soldier seized on the battlefield on D-Day in 1944.
4. Frenchman seized on the battlefield on D-day in 1944 suspected of helping the Germans.
5. Suspected crack cocaine dealer arrested in New Jersey.
6. Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11.
7. Suspected Al Qaeda terrorist seized in Iraq after entering Iraq to join fight against U.S.
8. U.S. citizen who lives in Detroit and suspected to be a supporter of Al Qaeda; evidence suggests he sent $10,000 to a "charity" that is really a fun to help Al Qaeda launch more attacks in United States.
9. Egyptian citizen in the U.S. on a tourist visa seized in the U.S. on suspicion of planning attacks against a U.S. military base.
10. U.S. soldier in World War II suspected of being a double agent for the Germans.
Plus, we have a range of different criteria to use to determine which set of rules should apply, without any one criteria being the obvious factor that should control as a matter of policy. Some might want to focus on the seriousness of the perceived threat; others on whether there has been a formal declaration of war; others on whether a foreign country is involved; others on the individual's citizenship; others on the location or circumstances of the seizure.
All of these are possible lines to draw, but none are widely agreed to be the most important; as a result, we have a continuum from war to crime with some cases seeming to be somewhere in the middle. (Plus, while court cases help resolve some issues at the far ends, the existing cases are not very consistent; compare Ex Parte Milligan with In re Quirin. There's not a lot of consistent guidance from them, so we have one side making Milligan arguments and the other side making Quirin arguments.)
Now, back to my hypothetical in which we have admitted Al Qaeda terrorists who entered the U.S. to launch an attack but who can't be charged criminally. The Al-Marri case tells us that we have to deport them or set them free, a result that I described in one of my less articulate moments as "bizarre." Many commenters objected, asking, what's so bizarre about that — isn't that how the criminal justice system works? I think that's the wrong box, though; I see the case as much or more a "war" case than a "crime" case.
Why? There are two primary reasons I see it that way. The first and most important is that members of a terrorist cell see themselves at war; they see themselves as soldiers in a holy war against the United States, and are acting accordingly. When a group sees themselves as soldiers at war trying to kill you, it seems fair that you should want to return the favor. Second, the members of the group have no connection to the United States other than as soldiers. The only reason they are here and not on the battlefield abroad is that they have chosen to attack the enemy's civilian population rather than its soldiers. They not only see themselves as soldiers; they are here as soldiers. When you put those two factors together, it seems to me that the case is as much or more a "war" case as a "crime" case. I realize it won't seem that way to everyone, but it does to me.
Now, so far I've mostly ignored the question of how you know if someone is who they are suspected of being. "Sure," you might say, "maybe we detain an Al Qaeda cell member who enters the U.S. just to attack us — but how do we know who that is?" But here I think the Hamdi plurality had a pretty good solution — kinda made up as a matter of constitutional law, perhaps, but not bad as a pragmatic solution to the problem. Under the Due Process approach offered in Hamdi, an individual's procedural rights — what trial they get to test their detentions — is a sliding scale depending on who the person detained is, where they were detained, why, citizenship, etc. As I see it, it's a mushy balancing test that ends up largely replicating the continuum from crime to war; it's a blend of the crime model and the war model. The closer a case gets to a traditional crime category based on known and acknowledged criteria, the more Due Process rights resemble a criminal trial. On the other hand, the closer a case gets to the traditional war category based on known and acknowledged criteria, the more those rights resemble the traditional standards used in war.
What I found odd about Al-Marri is that it seems to treat most cases of Al Qaeda terrorists here to attack us as crime cases. It seems to me like an effort to bypass the Supreme Court's sliding scale war-crime framework in Hamdi and to replace it with a regime in which all the Al-Qaeda bad guys are forced into the crime model. I don't think this is the right box, which is why I see the Al-Marri framework as odd.
Anyway, that's my take. I realize a lot of commenters disagree, but I hope we can approach the disagreements in good faith with the understanding that we are all trying to grapple as best we can with a very difficult set of problems.
Related Posts (on one page):
- Fourth Circuit Grants Petition for Rehearing in Al-Marri:
- Federalist Society Online Debate on the Al-Marri Decision:
- Thoughts on the Continuum Between War and Crime:
- What Should Happen to Al Qaeda Cell Members Discovered in the United States?:
- Fourth Circuit Rules That Suspected Terrorist Cannot Be Seized and Detained in U.S. WIthout Being Charged With Crime in Court:
I think any person should definately get a speedy hearing to at least determine status (ie, "war" or "crime" determination).
basically...you think al mari is definitly in the wrong box and other peoples due process' rights "to determine who they really are" (like the others mentioned in your list of people....)..are completely yet to be determined...
but so what...that doesn't stop us from saying that al mari is in the wrong box right now....
so let me officially say that i agree with that....
and yeah..people have been way to nasty to you...im surpised you eve nresponded to some of them
I think you frame the issue in a way very conducive to further discussion, however, I'm not sure I agree that there is a continuum, as this characterization suggests that crime and criminal law are connected to combat.
I would argue that the two are wholly distinct, only tangentially related areas of inquiry. Consider that in Iraq during the invasion we (and I say 'we' because I was there) were informed of the 'hostile declaration'-- that certain forces had been declared hostile, and could presumptively be killed. (Contrasted with the standard 'hostile action/hostile intent' rules of engagement that are in effect otherwise.)
While a lot of police officers and prosecutors would enjoy a similar 'hostile declaration' about known gang members, the law does not, and should not allow for one. And I don't think there is a sliding scale of procedural or substantive protections on which the full protection of the fourth, fifth, sixth, and eight Amendments resides at one end, and presumptive shooting/bombing at the other.
To go back to the McVeigh counter hypo from yesterday, why should the McViegh sympathizers get treated radically different simply because they fail to meet condition 2? Ultimately, they would cause just as much damage and their acts would be just as horrendous.
I also find it odd that the only work you’re doing with your second criterion is to distinguish home grown terrorists from foreign born terrorists. In your hypothetical yesterday, would you have felt better about the result if the terrorists were born here, but decided to otherwise join in with Al Qaeda?
The problem, as another commentator noted yesterday, is that this is a very usual war unlike most wars this country has fought. We’re not fighting an advancing army with guns in the streets, but instead fighting against individual cells, which are only loosely connected -- if in fact connected at all. That makes this “war” much more a crime fighting issue as opposed to a war issue. The front line people are investigators, informants, etc. -- not soldiers with guns.
Thank you for a very thoughtful post.
I largely agree that there is a continuum between the "war" treatment and the "criminal justice" treatment. Noone would seriously argue that an Al Qaeda member captured after a gun battle in Afghanistan is entitled to the criminal justice treatment.
However, in my view at least, Al Marri case fits squarely within the criminal justice system, largely because of the reasons identified by the court majority. All we have is government's allegations that a resident of the US was a part of Al Qaeda and was involved in AQ sleeper cells here in the US. Moreover, he was originally indicted in a federal court and when faced with legal challenges under US criminal system he was classified as an enemy combatant. Allowing the government (especially THIS government which conservative Judge Ludwig from the 4th Circuit had previously accused of acting in bad faith in Padilla case) to get away with this is unjust and subverts the rule of law.
Now, I agree that the distinction b/w AQ abroad and AQ in US is perhaps not the best distinction. However, as you say, we need to draw a line somewhere, and to me, at least, a line drawn by the majority is perfectly acceptable one.
And it's slightly unfair (I believe it's an honest error) to state, as you do that the majority installs a regime in which all the Al-Qaeda bad guys are forced into the crime model. It is simply untrue: the majority clearly articulates that some AQ members (probably most) would not be covered by the decision because they would be either a) seized on or near a battlefield, b) would be in Afghanistan during the conflict b/w US and Taliban, and/or c) would directly participate in any hostilities against the US.
[OK Comments: You're absolutely right on that last point, Markusha; I have amended the post to be more accurate. Thanks.]
Thank you for an excellent post.
There are several continua involved here:
1. war-----police action----peacetime
2. military target--------domestic target
3. citizen-----resident alien------nonresident alien
4. foreign soil------US soil
5. enemy nation-----foreign terrorists---domestic terrorists
Each of these bring up different issues, and rather than having to pick one absolute--crime or war--it would be best to look at the individual rights and responsibilities involved and see which continuum is relevant to each right.
I was surprised to learn that the courts have ruled that non-citizens, even the ones here legally, have the same fourth amendment rights under the constitution as citizens. I guess it makes a kind of sense of you think of the constitution as simply recognizing the unalienable rights all humans inherently possess. But on the other hand, a non-citizen is not "vested" into American society the way we are, and does not seem entitled to the same level of protection.
Before anyone gets too upset at me, let me emphasize that I think it is exceedingly good policy to generally treat non-nationals with dignity, respect and due process. I just don't think they should be entitled to the same fourth amendment protections as citizens. So as far as, for example, police searching their apartments or hotel rooms without a warrant, well, that's part of the bargain.
Finally, I don't think I'm being too parochial about this. If I went to live or work as a legal immigrant in another country, I would not expect to have all the rights granted to citizens of that country. Naturally, if the local authorities in Elbonia had a reputation for flinging foreigners into prison for no reason, I would take that into account when deciding whether to work there.
Like I said I am just a regular guy, not an expert on the law, so please be gentle as you all show me what an ignoramus I am.
- Alaska Jack
Criminals commit crimes to benefit themselves, even if it's a fight over a card game.
Terrorists commit their acts to benefit their cause.
Should be clear enough.
2) Reference to the purpose of civil protections (such as the Fourth Amendment) may shed some light. They aren't intended to protect criminals from being exposed and convicted; they're intended to protect everyone else from being searched (to find evidence and identify criminals) and railroaded (or denied other important rights, as with the Fifth Amendment). If we treat foreign terrorists on US soil under military rules, rather than civilian, to what extent does that compromise the purposes of our criminal-law protections?
I suspect that the erosion of civilian rights could be significant, which is why I'm inclined to favor applying criminal and not military rules to enemies caught on US soil -- but I'm still undecided.
Criminals commit crimes to benefit themselves, even if it's a fight over a card game.
Terrorists commit their acts to benefit their cause.
Should be clear enough.
I don't think a subjective test like that works, Richard. Imagine John believes in the cause of the Republican Party. Are any acts he commits to benefit the cause of the Republican party acts of terrorism?
And I think we can see how this error leads to a lot of confusion and disagreement. On the one hand, it is easy to point out how people who associate with terrorist groups do not necessarily present an ordinary criminal problem. On the other hand, it is also easy to point out how these people do not necessarily present an ordinary POW problem. But people who assume this is a continuum implicitly assume that the farther they are getting from one pole, the closer they must be getting to the other pole. So, as people push out from both poles they are not actually approaching each other, but they think they should be and so are getting upset with each other.
As I suggested elsewhere, I think this situation could be solved with the conceptualization of a third category (rather than trying to find a line to draw on a nonexistent continuum). But even if one does not like that idea and wants to force a choice between the two existing categories, I think it is worth understanding that if this is not a continuum, then you can't show that these cases should be treated under one category simply because they do not fit well into the other category.
Presumably graffitists who want to draw attention to, say, racist oppression would then be classed as terrorists.
Milligan and Quirin illustrate this concept. Milligan was part of an armed organization that fancied itself to be at war with the Union. The fact that it plotted hostile acts against the government did not make it a belligerent power. The Confederacy was another story. Initially Lincoln threatened to treat them all as criminals and 'pirates,' but the Supreme Court in the Prize Cases found that Lincoln had in effect recognized their belligerency by implementing a blockade and treating captures as prisoners of war rather than trying them as criminals (although trying them for treason or war crimes was not foreclosed). The saboteurs in the Quirin case clearly belonged to a belligerent power. The Supreme Court described them as belligerents within the meaning of the law of war, which they contrasted with Milligan. Milligan, remember, could neither be held as a prisoner of war (i.e. detained without charge as a military capture) nor tried by military tribunal for 'violations of the law of war,' despite his plans to carry out hostile acts against the government during a war. The Nazi saboteurs were subject to detention and trial under the law of war because of their affiliation with the German government, and also apparently because of the circumstances of their arrival into the United States by enemy submarine. Most German spies and saboteurs in both world wars, and citizens accused of collaborating with them, were treated as criminals and tried in civilian court.
Maybe they are, of a very very minor type. More accurately, I guess, since "terror" isn't part of their MO, maybe there is a better term to describe both graffiti artists and bombers. "Ideological Perpetrators" or somesuch.
- AJ
I don't find this very persuasive. These guys are a bunch of nutcases. I see no reason why we should accept their view of reality. Acknowledging them as "soldiers" dignifies them. Plus, if we do say they're "soldiers" there's that whole Geneva issue.
Put it in the domestic context. There have been American "revolutionary" groups -- think the SLA or Weather Underground -- which would have considered themselves "soldiers" against America. We didn't treat them that way, nor should we have. We let the SWAT Team handle them.
Again, put this in a domestic context. Someone like Cinque could easily be considered to have no real ties to America other than his birth here. He probably thought of himself as thoroughly alienated from our society. But it wouldn't make sense from our perspective to let his own motivations determine how we treat him.
As others pointed out in the other thread, any guarantee of rights imposes risks. If we don't want to accept those risks, we might as well decide now for Hobbes' Leviathan. That is the state for people whose primary motivation is fear. I'll pass.
I think one clear line, however, is that we’d have to be at war to begin with. And I don’t think we’re at war with various sleeper cells around the country who claim to be part of Al Qaeda. The war on terrorism seems to be substantially closer to the war on drugs than WWII for the reasons I mentioned in my prior post.
If the result of the war rules is that we can detain people until the end of the war, there must be a possibility to the end of the war. There’s never going to be an end to the war on terror. As President Bush has noted, there’s not going to be a signing ceremony on the deck of a carrier. If there were ever a parade to celebrate the end of the war on terrorism, you’d have terrorists plotting to kill people at the parade. And then we'd be at war again.
You noted in your original post the ratioanle behind war rules and criminal rules. Perhaps explaining how your two requirements to invoke the war rules has anything to do with that rationale would shed light on why it makes sense to adopt your proposal.
hypo:
X is an ameican citizen living in MD whos giving money to al queda...the gov swears they saw that guy in afganistan....
in such a case more important than what the rules for whatever box he winds up in...are the rules for determining how he got into that box.
So if the key question is whether we are "at war," in your view, what's your test for knowing whether we are at war? You seem to feel that we are not "at war" with Al Qaeda. But why not? Where we "at war" with Saddam Hussein? Just to be clear, I'm not asking what you think the right distinctions are as a matter of "case law and regulations", but rather, to the extent you are willing to answer, what you think the line should be as a normative matter.
So it is unclear to me why, from a constitutional perspective, it is correct or appropriate to cast the debate in terms of a continuum with corresponding sliding scales. And Ex parte Milligan seems to me to underscore the point when it makes the following observations:
To qualify as POWs, enemy combatants must comply with the prerequisites -- e.g. wearing distinctive uniforms when they engage in combat, attempting to minimize civilian casualties, etc. Captured terrorists (at least in the current conflict) are not, legally, POWs, though they have been accorded some of the privileges that POWs would receive. Legally (under applicable international conventions, as I understand them) we're perfectly entitled to execute them summarily. Though I believe there would sometimes be issues of proving they were terrorists, if not caught red-handed.
I don't mean to endorse such a course as a matter of policy, just to clarify how the laws of war apply here. (And I don't think attacks on armed US soldiers can legally be considered 'terrorism'.)
I actually have a problem with this (revealing again, no doubt, my unsophisticated nature). The cornerstone of the Law of Armed Conflict isn't the inherent dignity of man or any of that blather -- it's reciprocity. We treat their prisoners the way we want them to treat ours. Doesn't game theory suggest that we actually execute one of our prisoners every time they execute one of theirs, until such time as they stop executing their prisoners?
- AJ
It seems like this list leaves out the important question of who is taking the action. Police officers in general should follow the rules of criminal justice, regardless of who they are dealing with. Soldiers in general should follow the rules of war, regardless of who they are dealing with. For that reason we should (and do) have strict limits on how and when the military can be used domestically.
The continuum/sliding scale idea IMO has two main problems: first, it will tend to blur the distinction above, turning police officers partly military and vice versa.
The second issue is that state actors generally push the envelope of what they are allowed to do. The lack of a bright line will lead to continuous pressure by police to have their cases classified as more "war" related (and continuous hypotheticals posted by law professors along the same lines), and perhaps some pressure by the military to be allowed to intrude into civilian cases (e.g. subject a US civilian caught stealing from a base to military courts).
The text of the Bill of Rights does not distinguish between citizens and non-citizens, e.g. the First Amendment prohibiting interference with the free exercise of religion has no clause that exempts non-citizens from its protection. That's not to say that citizens and non-citizens are on identical footing though - a US citizen seized by the US government outside the USA will have constitutional rights, a non-citizen for the most part does not. In other words, although it's an oversimplification, US citizens enjoy the protection of the US Constitution vis a vis the US government wherever they may be, while non-citizens have the protection of the US Constitution vis a vis the US government only while inside the US.
Before anyone gets too upset at me, let me emphasize that I think it is exceedingly good policy to generally treat non-nationals with dignity, respect and due process. I just don't think they should be entitled to the same fourth amendment protections as citizens. So as far as, for example, police searching their apartments or hotel rooms without a warrant, well, that's part of the bargain.
No one's going to get upset with you (or at least I hope not). It's a perfectly reasonable question, especially for a lay person. It's a plausible policy position to state that non-citizens should have no fourth amendment protection, just not a position that's well supported by the text of the fourth amendment. I'd also ask whether you'd distinguish between someone here illegally, a foreign visitor here on vacation and a legal immigrant who has lived here for 20 years, has no plans to return to his country of birth, but is not a US citizen.
Finally, I don't think I'm being too parochial about this. If I went to live or work as a legal immigrant in another country, I would not expect to have all the rights granted to citizens of that country. Naturally, if the local authorities in Elbonia had a reputation for flinging foreigners into prison for no reason, I would take that into account when deciding whether to work there.
Foreigners living here don't have all the rights of US citizens. They can't vote, can't be elected to Congress or the Presidency and can be prohibited from entering the US or deported from the US. Even a foreigner who becomes a citizen can be stripped of his citizenship under certain circumstances whereas it's highly doubtful whether the federal government ever has the power to strip a US born citizen of his citizenship regardless of the circumstances.
We may well grant a much wider range of rights to foreigners than the government of that foreign country will grant to Americans moving there. Maybe that's one of the reasons why they want to come here, whereas hardly any Americans want to go over there.
Like I said I am just a regular guy, not an expert on the law, so please be gentle as you all show me what an ignoramus I am.
- Alaska Jack
When there are a lot of objective indicia of war -- uniform, foreign battlefield, large armies engaged in hostilities, etc. -- I think no one worries too much about denying somebody criminal process. In fact, we are comfortable with a general or president or other "unchecked" decisionmaker essentially wielding life or death power.
When there are a lot of objective indicia of crime -- civilian clothes, domestic city, "criminal" charges, no armies marching around -- most people worry about denying somebody criminal process. And our whole system has been set up to make sure that no unchecked decisionmaker wields life or death power.
When things get gray, the facts will matter, and reasonable minds may differ.
With all that said, I don't consider Al-Marri to be a particularly close case. Despite the objective indicia of war that were present (and certainly there were some), the key factor for me is the lack of exigency involved.
It may be very very important to act very very quickly in a "domestic/civilian/war" scenario (e.g., a Tet-like armed insurgency by groups of people in civilian clothes). It's not a nice picture, and it shocked a lot of people, but I'm really not sure the action depicted was unjustified. At all.
In all but the most extreme cases, however, the default rule for "domestic/civilian/war" has just got to be criminal rather than military. The danger of having unchecked executive power, at the stroke of a pen, able to detain someone indefinitely without trial (or worse) is just too great, and frankly too contrary to the reasons our country was founded.
The majority in Al-Maari wrote:
That just has to be true, except in the most extreme circumstances imaginable (ala the Tet offensive). I just don't see those circumstances existing in Al-Marri, not by a long shot. We've tried a number of domestic alleged terrorists in the criminal process and the Republic hasn't collapsed; there's just no reason we can't do it here.
Under the rubric you advance (terminology in the Constitution) I'd class foreign terrorists on US soil as an "invasion". Technically that might justify suspension of habeas corpus.
It should not be the case that one's rights diminish inversely with the gravity of the accusation, nor that the mere accusation of being a foreign terrorist should bypass the Bill of Rights. That is why we must treat suspects as such and the government must not have carte blanche to hold suspects indefinitely solely on the gravity of the alleged crime.
At the end of the day, my interest in the al-Masri case is not about al-Masri, it's about me (and my family, friends, etc.). I don't want the government to have the power to imprison ME at will. Therefore, I think that an unreviewable accusation by the President should not be enough to justify the indefinite detention of citizens captured in the US.
Remember, we can never really know what the government actually "suspects." All we can know is what the government is willing to say about someone. And because the government has complete discretion regarding what accusations it wishes to make, I don't think it is appropriate to have a detainee's rights depend on those accusations.
So the proper continuum, for me, cannot be based on what the government accuses the person of doing, but rather on who the person is and where he was arrested. For example, a US citizen arrested in the US has the highest protections -- Article III courts, trial by jury, presumption of innocence. A citizen of a country at war with the US, caught on a battlefield, has the lowest level of protections. Everything else is somewhere in between.
There is a fundamental problem with this entire thread, which that the accusation is presumed to be true.
It should not be the case that one's rights diminish inversely with the gravity of the accusation, nor that the mere accusation of being a foreign terrorist should bypass the Bill of Rights. That is why we must treat suspects as such and the government must not have carte blanche to hold suspects indefinitely solely on the gravity of the alleged crime.
hey..not the entire thread thank you...
I think your question about Saddam Hussein is quite helpful. No, we didn't go to war with Hussein. Rather, we went to war with Iraq.
In my view, the idea of being at war with an individual person is absurd (in anything but a metaphorical sense). Again, I think this all points out the fundamental problem with viewing this as a continuum: nations go to war, not individual people. Conversely, people commit crimes, not nations.
admitted Al Qaeda terrorists who entered the U.S. to launch an attack but who can't be charged criminally
How do we know this? If they're "admittedly" here "to launch an attack," aren't they chargeable with conspiracy? Can't we pass a law if there's not one?
And if we *don't* know this ... then maybe they're innocent?
1) I can see how the Hamdi plurality defined part of a continuum, but only by defining a single new point restricted to a relatively narrow set of facts. While I understand your policy preference for such a continuum, I think it would take more top-level court decisions to flesh out such a framework, in addition to process details filled in by lower courts.
2) If we are dealing with a continuum, where are the bright lines to instruct the executive between major court cases that take years to litigate -- even if we assume a president who acts with more good faith and self-restraint than we are used to lately?
3) You and others might be interesting in reading this recent piece by Benjamin Wittes at the Hoover Institution, if only because he is trying to wrestle with the same war-to-crime continuum you are. I don't necessarily vouch for all his conclusions or recommendations -- which include a proposal for Congress to makes some rules defining new roles for the courts -- but the article is thought-provoking.
4) Perhaps it is just your Socratic bent, but I note that you are more disposed to pose questions to others than to answer them yourself :-)
Sorry, I meant Iraq; thus, to make the equivalent, we didn't go to war with UBL. As for your dichotomy, I think you have a "Soylent Green" problem; "Nations Are Made Out of People!!!! People!!!!"
It is becoming clear that part of the problem here is a lack of seriousness about the term "war", and related terms like "invasion" and even "combatant". And if Milligan stands for anything, it stands for the proposition that these terms should be interpreted narrowly.
Strong points, as always. I agree with you that lack of clarity ex ante is the major practical problem with O'Connor's approach in Hamdi. I suspect O'Connor wanted to avoid bright lines and have the courts figure out the rules cautiously step-by-step as needed; she wasn't much one for ex ante clarity, as you know. Oh, and I'd printed out Witee's piece when it came out; I hadn't read it yet, but I will. As for your final comment, why do you say that? ;-)
Orin,
1) I can see how the Hamdi plurality defined part of a continuum, but only by defining a single new point restricted to a relatively narrow set of facts. While I understand your policy preference for such a continuum, I think it would take more top-level court decisions to flesh out such a framework, in addition to process details filled in by lower courts.
2) If we are dealing with a continuum, where are the bright lines to instruct the executive between major court cases that take years to litigate -- even if we assume a president who acts with more good faith and self-restraint than we are used to lately?
3) You and others might be interesting in reading this recent piece by Benjamin Wittes at the Hoover Institution, if only because he is trying to wrestle with the same war-to-crime continuum you are. I don't necessarily vouch for all his conclusions or recommendations -- which include a proposal for Congress to makes some rules defining new roles for the courts -- but the article is thought-provoking.
4) Perhaps it is just your Socratic bent, but I note that you are more disposed to pose questions to others than to answer them yourself :-)
except for 4 i agree completly...(hes really busy you gotta understand...hes preparing senate testismony and hes a low prof..give him a brek.)
also with reagrd to 1...i would just point out again as other have that the continum must be based on place of seizure and person's icitzinship..if the nature of the crime is considerd..only to move DOWN the ladder toward due process....not up..because that would assume the allegations wer ture before decding hat process hes due (ive said this before and so ha ve others)
First, I was being imprecise: I should have said "states" not "nations", go to war.
Anyway, I think it is wrong to imply that a state is just a big association of people (I guess you are going for another continuum here). For an association to be a state requires it to have a number of specific characteristics, most notably effective sovereignty over a geographic area.
At what point does the arrival of attackers on US soil, seeking (however fruitlessly) to damage or destroy the US, become an "invasion"? In the conception of the Constitution's ratifiers, it seems certain that the arrival of a land army or a fleet of ships would suffice; I don't know whether a lone warship or a company of skirmishers would. However, given the vastly increased capacity for destruction that individuals and small groups now have, that conception has become irrelevant.
If Afghanistan had sent the 9/11 hijackers, is there any legal reason that it couldn't have been considered an invasion? What if they sent 100 times as many terrorists? Or the same number, with a nuclear weapon capable of inflicting 100 times the damage?
I'm not certain that such attacks SHOULD be treated as an invasion, but I see know reason why they CAN'T be.
The republican who commits terrorist acts for the cause of the republican party is committing them against whom? The nation or a DNC office?
Graffit is not a terror offense.
But let's refine it a bit. If it's a matter of violence against the US. Graffiti is a crime. Blowing up a bunch of civilians is war. Now, let's presume a democrat decided that blowing up a bunch of civilians and, say, blaming it on republicans, or, if they're gay, trying to raise awareness of homophobia, is caught at it. He's killing promiscuously, or almost so in the second case. That's terror--violence to affect the political process-- and so we call it war, even if the guy is a citizen.
Eric Rudolph, then, would be a war person, whatever the title turns out to be, because he killed to intimidate the general public.
That will bring into the war category certain acts now considered crimes.
Bush created your continuum, by breaking the dichotomy, with the creation of novel categories. He created a category of illegal combatants, outside of both "war" and "crime", with the consequence that are now cases of war, where the law of war is followed and cases where it is not respected with much consistency; and there are cases of crime, where the laws of crime are followed, and cases where the laws of crime are only kind of/sort of followed. And, there are cases of neither crime nor war, where no law at all is followed. That's your continuum.
Your continuum is just a rationalization for an overthrow of the rule of law, by authoritarians, who refuse to face legal liability for their own crimes.
And, you want civility and respect? Good luck with that.
[OK Comments: Bruce, I am puzzled by your comment. The Bush Adminitration has not introduced the continuum; they endorse the dichotomy, just as you do. The continuum is how I see it as a matter of policy, and also the approach of Justice O'Connor's plurality opinion (joined by Breyer, Kennedy, and Rehnquist) as a matter of constitutional law. In any event, I am sorry to learn that I do not deserve to be treated with civility and respect. I hope other readers feel differently.]
Only when US citizens are involved are there any close questions. The non-citizen hypos are all war.
If we have proof beyond a reasonable doubt, then try the citizens in regular courts. No close question.
The tricky problem is when we don't have such proof, but do have lesser proof. Do we let these people go to try to kill again? Or hold them indefinately without trial but with some minimal judicial safeguards like those in the MCA?
Many would say it is not a close question, that the Constitution says try them or let them go. I think it is possible to disagree about a flat rule without favoring tyranny.
At least according to Milligan, the basic idea seems to be that whatever is going on in the relevant part of the United States has to be so serious that the ordinary courts cannot be safely opened, and there is no alternative to the military taking over law enforcement.
But that doesn't mean he is not unintentionally serving their purposes.
ATRGeek, I covered this before back in March:Seriously, though, I'm just calling 'em as I see 'em. I realize that this will be upsetting to some.
Others don't see AQ's actions as criminal in nature -- because AQ's aims are political. Criminals, as a rule, do not carry out their crimes with the goal of influencing national policy. A criminal's primary goal is personal enrichment. AQ wants the West out of the Mid-East. AQ's goal is of a type that is usually carried out through diplomacy or through war. AQ's goals are warlike and so are their actions, so why shouldn't the military deal with them if its not a police matter?
In the end, this has to be a military matter because the police cannot deal with this. We tried the "it's a criminal matter" approach in the decades following the bombing of the Marine's barracks in Beirut. The result, dozens of terrorist attacks, culminating with those on 9/11. Promising to "bring those responsible to justice" just doesn't provide much deterrence when a) it takes years to track down those responsible (assuming you can track them down) and b) those responsible are willing to die for their cause.
AQ is not a nation or a state. The terrorists are multi-national -- bigger than any state's territory. Their goal is to create a Caliphate (a state) that stretches from Europe to Indonesia. They use guerrilla war tactics because they cannot compete in open battle with the West's military. Like guerrillas, they seek to blend into the civilian population to better accomplish their military goals. Like guerrillas, terrorists need to be dealt with by the military because police methods -- designed to catch someone after a crime has been committed -- are woefully inadequate. The military is far better able to prevent attacks from happening.
I think the relevant question is, rather, what resources the hostile person has at his or her disposal. A hostile person with the backing of an enemy government (or maybe even a large, international organization like Al-Qaeda) is more and differently dangerous than one just acting on his own; so we can't have as many restrictions on the tools we use in the former case.
There are probably some problems with this criterion -- I would worry about the government trying to classify as enemy combatants members of the Mafia or the Crips, or petty criminals whose crime is, unknown to them, indirectly profiting or profiting from the activities of an enemy government; on the other hand, Al-Qaeda members who kept their connections remote enough might be able to qualify as ordinary criminals -- but I think it makes a lot more sense than classifying people as criminals and soldiers based on their own (unknowable, irrelevant, and often crazy) beliefs.
My understanding of this statement, Orin, is that you envision a war as taking place between an "us" and a "them", and that "our" obligation to afford "them" the protections the Constitution (as embodied in the current judicial Catechism) affords "us", is thereby greatly reduced. The continuum between "war" and "crime" that you describe can thus be viewed as a continuum of "us-ness", with the "crime" end referring to dealing with wrongdoing by "us", and the "war" end referring to wrongdoing by "them". Apparently, you feel that the majority in the Al-Marri case drew the line between "us" and "them" in a "bizarre" place. Personally, I find this rather dry matter of line-drawing to be difficult to get worked up about, although I grant that law professors can be forgiven for feeling differently.
But most of the discussion here has in fact revolved around a completely different issue that you inadvertently raised with your original hypothetical. You see, had you described a group of members of comedian Chris Langham's fictional "moderate terrorist group", whose plans were to plant a fish soup aboard an airliner and phone in a threat that if it wasn't eaten within twenty-four hours it would go off, then there would have been little reason to complain about the prospect of such relatively harmless people being set free under a Fourth Amendment technicality. Instead, though, you described them as planning to set off a "dirty bomb" in a major city--thereby accidentally highlighting the ultimate absurdity of the consequences mandated by the exclusionary rule.
In short, what's truly "bizarre" about your hypothetical--to anyone who can see the forest for the trees--wasn't anything about the niceties of the "us"-"them" continuum, but rather its implication about the consequences of the exclusionary rule--whether applied in favor of (a mass-murdering member of) "them" or (of) us. And what's really bizarre, to my mind, is the solid majority of commenters here who found those consequences perfectly congenial, even laudable. Apparently, the US Constitution really is a suicide pact.
Again, I am not saying you are a "hack". But like all of us, I think you can be manipulated, and in this case I think you have been.
But in any event, I don't think the antidote is to chastise you, so I will stop here.
2. Some historical perspective might be helpful - what is different from the detainment of Japanese descent folks per Roosevelt's order, which we all look back at as a black mark? Al Marri has been detained say twice as long with no trial of any sort?
3. Further back, how is handling these anarchists much different from handling the anarchists who killed Presidents et al around 1900? Criminal procedures were used then.
4. Back further, how does this differ from alien and sedition acts under Adams?
5. Back further, how does this differ from arbitrary preventative detention of enemies of the state in England in 1400 to 1700?
6. Having done military service as a lawyer and also done work as a civilian lawyer in death penalty cases, I think OK genuflects too much here to supposed war (and law of war) experts. He is too modest. If called upon to use the tools now available to criminal prosecutors, he (and/or his ilk) could lead well in protecting US citizens from harm from terrorists. Leading with flocks of lawyers, supported by the FBI, police forces, the CIA, and the Pentagon as needed makes more sense than having folks like OK acting like shrinking violets.
7. The war model works if there is a party on the other side to sign a treaty with. The US is not going to ever sign a treaty with AQ or the Mafia or the Taliban or Hamas so why pretend a war model is acceptable? If the goal is not a treaty, but detention or deterrence (or killing in self defense, defense of other humans, etc.), that is for prosecutors (like Guiliani in the 80's and 90's) and not so much divisions of troops (except as needed to back up the law enforcers).
It is not apparent to me that our military is much better at dealing with terrorists than our police.
Primarily, our military is extraordinarily good at defeating opposing conventional armed forces. In other words, you do not want to be in a ship, tank, or warplane when the US military is tasked to destroy that ship, tank, or warplane. But as we are unfortunately demonstrating in Iraq, our military is not necessarily all that good at dealing with terrorists.
This, of course, raises the strong possibility that neither our police nor our military can really be looked to for a solution to the problem of terrorism. At most, they can just help deal with terrorism within the limits of what they are capable of doing.
I'll admit, I'm... skeptical... of allowing war to apply to entities besides nation-states. And, more than that, I think there ought to be a significant distinction between "suspected" and "confirmed".
I don't think Iraq is a good example of our military's inability to deal with terrorists. I think it's a good example of what happens when a bunch of well-meaning politicians, diplomats, lawyers, and activists tie the military's hands.
Well, that is basically an untestable proposition. But for what it is worth, General Petraeus, among many others, thinks differently.
Under this test, merely giving money to a front charity is not military action (although it could be treason if done knowingly). Similarly, drug trafficing and other internal crimes typically don't involves any association with enemy agents or acting under the enemy's direction and control.
I think Milligan strongly suggests that to be a combatant, you can't just be associated with the enemy for a military purpose. Rather, you actually have to be part of the armed forces of the enemy.
David Berkowitz saw himself as simply following his dog Sam's orders to kill people. Does that mean we should have shot his dog? ;-)
(Sorry, couldn't resist that.)
Seriously, though, how is it relevant how criminals see themselves? If Al Qaeda people saw themselves as mass-murdering totalitarian scumbags, does that mean that we should treat them accordingly?
How many murdering scumbags see themselves as murdering scumbags? And why should we care what they think?
For example, John Allen Muhammad (the Virginia sniper murderer) apparently saw himself as some sort of military mastermind. From Wikipedia:
Does that mean the U.S. government should have been "fair" and treated him as a military leader?
Is there any pre-Bush example of someone being classified as an illegal combatant who was neither (a) captured in a battlefield or war zone nor (b) an admitted member of enemy armed forces? AFAIK, the Quirin defendants did not deny membership in the German armed forces, so they do not provide an example.
I suggest that there is no such example, and that there is no pre-Bush example of this mix-and-match status where al-Marri is neither a lawful POW, nor even an alleged spy or saboteur (who could be tried by military tribunal and executed), nor a civilian in civilian court.
It is not an accident that lettres de cachet, which is what Bush issues to detain persons like al-Marri, is a French phrase: the idea is completely alien to Anglo-American history.
Military action is clearly alleged under (a)
2. U.S. citizen suspected of blowing up a federal building as part of a plot to overthrow the U.S. government.
No military action. The Consititution gives Congress authority to use military force to suppress "insurrections", so military force could be used at the scene, but this doesn't apply if there isn't an actual ongoing insurrection.
3. Suspected German soldier seized on the battlefield on D-Day in 1944.
Military action
4. Frenchman seized on the battlefield on D-day in 1944 suspected of helping the Germans.
Military action (in association with the enemy, under direction and control, etc.).\
5. Suspected crack cocaine dealer arrested in New Jersey.
No military action (no association with any enemy)
6. Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11.
Military action (Explicit declaration of military force against Al Qaeda makes it an "enemy", not even a borderline case. Any foreign power capable of fielding military force can be an enemy, doesn't have to have a particular organizational structure.)
7. Suspected Al Qaeda terrorist seized in Iraq after entering Iraq to join fight against U.S.
Also military action, also not borderline.
8. U.S. citizen who lives in Detroit and suspected to be a supporter of Al Qaeda; evidence suggests he sent $10,000 to a "charity" that is really a fun to help Al Qaeda launch
more attacks in United States.
No military action unless he acted in association with the enemy and under the enemy's direction and control, and even if he did, action may not be sufficiently military in character. (Under Quirin enemy belligerence requires "war-like acts" or preparation for same.)
9. Egyptian citizen in the U.S. on a tourist visa seized in the U.S. on suspicion of planning attacks against a U.S. military base.
Requires association and acting under direction and control of an identified enemy to be military action.
10. U.S. soldier in World War II suspected of being a double agent for the Germans.
Military action.
But membership in the enemy's armed forces doesn't require specific formalities. Quirin requires only acting under the enemy's direction and control for military purposes
Do you have a reason to believe we are killing them faster than they are adding new members?
This issue wasn't actually litigated in Quirin. But to the extent you are relying on the facts in Quirin, the petitioners travelled to the United States in a German submarine, and landed wearing the insignia of the German Marine Infantry.
Except that a great many crimes are expressly political. I gave some examples above. cfw hinted at others (Leon Czolgosz, John Fries). I could come up with a great many more (Haymarket, McVeigh). That can't be the deciding feature.
The answer to that question determines the rest. If at war, the obvious damage to security from the 4th circuit and the issues of revelation of intelligence in prosecutions... (I've always assumed the hotel clerk saw something was the sanitized version of our intelligence program gave us the answer and we don't want to admit it so we make up a hotel clerk!)
If this is simply an overreaction to a criminal conspiracy like McVeigh, then we get a different answer.
Since the country seems so divided on this answer even if Congress wasn't was few short years ago (they did pass equivalent resolutions of war), then we will not have consensus.
All of your arguments are tremendously weak.
"Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war."
In light of Milligan, I do not think one can drop the need to associate oneself specifically with "the military arm" of the enemy, and to be operating under the direction of that military arm.
Oh my god, you are right. I retract everything I have ever argued.
That has nothing to do with the claim you made. That claim was wrong. Soldiers and Marines in Iraq and Afghanistan kill and capture Al Qaeda and Taliban at very high rates. Anbar and Diyala are turning against Al Qaeda while the Sheiks and the tribes are turning toward US fighters. Those are the facts which refute your claim.
More to the point, the work being done in Iraq and Afghanistan by American fighters denies terrorists a state from which to launch attacks and keeps them safe from being declared combatants if they come to America as legal alien terrorists according to the recent 4th Circuit ruling.
There's a silver lining in every trash can I suppose.
I believe you just made my point for me. Al Qaeda was driven out of Anbar when the Iraqis decided to drive them out, not when the US military finished killing them all.
And that is quite obviously how we will achieve real success in dealing with terrorism: not by trying to use our military to kill them all, but by getting people around the world to turn on them.
Extortion to benefit a third party, as opposed to the perpetrator, is a crime. United States v. Margiotta, 688 Fed.2d 108 (2nd Cir. 1988).
IMO, they did something much worse than Prof. Kerr's hypothetical terrorists. They didn't try to set off a bomb, they gave the knowledge of how to build bombs to a nation with (a) resources far beyond those AQ could ever hope to have, such that it could use the stolen knowledge to make many bombs and use them to threaten us; and (b) a leader even more batshit insane than OBL.
To the best of my knowledge, nobody even suggested that we detain them indefinitely or try them by military commission. We gave them, instead, the same due process protections (mostly, anyway; it wasn't perfect) we gave ordinary criminal defendants at that time. And the world may have become a very dangerous place thanks to the Rosenbergs, but we didn't trash the Constitution just because of them.
But the Fourth Circuit does not have such an intellectual luxury. It has to work with the cases that control it -- Hamdi and, FWIW, Padilla. That explains the majority's emphasis on distinguishing Taliban versus Al Qaeda, and distant battlefields versus domestic venues. (Of the two, I find the latter much more compelling. Whether our society is properly analogous to a "battlefield" in the context of the AUMF is the question that most begs to be answered by the courts.)
As I mentioned above, I think Hamdi did not define even a two-dimensional continuum, but a single rough data point. If the Padilla case had reached the Supreme Court, it likely would have defined another. Perhaps the Al-Marri case eventually will provide one, too.
If a workable legal model emerges from the Supreme Court, it would take some genius to create it. Who would be the latter-day Robert Jackson that did so? Or is it futile to hope? Speaking of Jackson, part of his beautifully crafted lesson in the Youngstown concurrence is that Congress can define the rules, but only if it steps up and asserts itself. A solution generated by both political branches is, theoretically, something that would appeal to justices across the spectrum. If there is a unifying principle that they all agree on, it is the Youngstown framework.
So maybe we don't need a new model defined by the Supreme Court, but one hammered out on the other side of First Street. The legislative status quo is hardly stable: The MCA barely passed a divided Congress before the last election. The current Congress would never pass it as-is today, but lacks 60 or 67 Senate votes to undo it. Meanwhile, it is impossible not to notice that the 2008 campaign is already upon us. A political determination may have to await the outcome of that event.
AFAIK, the concept of unlawful combatants goes back to the Romans.
Thank you for your thoughtful post. Please allow me to suggest a new perspective on how we should be looking at this question and then a methodology to answer the question.
We are losing sight of the purpose of prisoner of war status under the law of war. Prisoner of war status is protective, not punitive. It is meant to simultaneously protect the combatant from being treated like a common criminal while protecting our troops and civilians from the combatant returning to a action. Prisoner of war status is usually something combatants seek, rather than avoid. Therefore, perhaps the question should be whether the subject would normally be thought to qualify as a combatant with the intent to protect him or her from being treated as a common criminal subject to execution.
With this change in perspective, let us return to the question of how to determine whether a prisoner is a military combatant or a civilian criminal. Judge Motz was correct to bifurcate the determinations of whether the prisoner is an enemy combatant and whether he is acting lawfully as a combatant. I would suggest that we are allowing the second determination of lawfulness to confuse the predicate determination of whether the prisoner is a combatant or a civilian criminal. To remove this distractor, I propose we simply assume that the prisoner and the organization to which he belongs are complying with the laws of war and then determine whether the Geneva Conventions would extend POW rights to the prisoner.
Let us use al Marri as an example. Assume that al Qaeda was acting within the limits of international law and al Marri was in uniform. Would al Marri then be considered an enemy combatant eligible for the GC POW protections or would be be considered a common criminal subject to execution? Assuming that al Qaeda and al Marri are acting lawfully, I would suggest that al Qaeda would fall under the category of non governmental militias under Article 4(A)(2) and, as a member or al Qaeda, al Marri would qualify as a combatant with POW protections under this provision of the GC rather than a common criminal.
Once you have made the determination of whether al Marri is a combatant, then and only then should you concern yourself with whether al Marri is acting lawfully or unlawfully as a combatant.
I would welcome any comments as to my suggested approach.
I don't believe I've seen any rational person ever argue that it is possible to "kill them all". There are the Duke Nukem's and the occasional over zealous Marine or Soldier in the throes of combat who might utter those words but I haven't made such a statement.
Soldiers and Marines kill and capture Al Qaeda and Taliban every day for several reasons not the least of which is to deny them a state from which to gather resources and direct them our way. It's a tough job and one of the benefits of that tough work is that some Iraqi and Afghani citizens have come to despise Al Qaeda and the Taliban as much as many of us Americans do. That is a good thing.
Could you tell me when Mohammad Atta and his cohorts crossed the line from legal/illegal alien terrorists worthy of due process to enemy combatants who would become legitimate targets of US Military assets on American soil? Or perhaps they never did? Would the executive have broken laws if US Air Force pilots had been ordered to shoot down the airplanes doubling as guided missiles?
Also, could you tell me why Manhattan was not a battlefield on 9/11? It sure looked and smelled like a battlefield.
In a larger context though, I struggle even ensuing in the conversation of what is war and what is crime cause of the linch pin paradox I find myself getting caught on: the basic confusion of the term "war crime." Here this post seeks to create lines between what is war and what is crime, but yet there is fairly well accepted doctrine that constitutes a crime can be committed while engaged in war. How does one go about parsing out the differences here?
Thus, I don't have any answer and respect the attempt to create one by the author, but must acknowledge that the premise seems limited artificially.
I think bifurcating the issue is appropriate, but your approach becomes problematic when we start imagining different facts in al-Marri's case. When originally detained, al-Marri was a student living in Peoria, Illinois. It is hard to imagine him doing that while wearing an al Qaeda uniform.
Generally, I think the fundamental problem is that al-Marri was in fact a civilian, as the Fourth Circuit held. He might also have been a "sleeper agent" of al Qaeda, but that does not somehow mean he was not a civilian.
And I agree that means he is not entitled to POW status, which could be an unfavorable determination for al-Marri if it turns out that he is subject to criminal liability. But that, of course, remains to be seen.
Did you think Oklahoma City was?
In all seriousness, I have no idea how you are disagreeing with what I originally wrote ("This, of course, raises the strong possibility that neither our police nor our military can really be looked to for a solution to the problem of terrorism. At most, they can just help deal with terrorism within the limits of what they are capable of doing."). If it helps, I agree that denying terrorists state sponsorship and protection is one of the things the military can do.
As for the 9/11 hijackers: our law contains standard rules for the use of deadly force. Certainly once the hijackers took control of the planes, the use of deadly force would have been lawful. That, of course, has nothing to do with their legal status--even if they were "merely" criminals, they would be subject to the same use of deadly force.
Manhattan was not a battlefield on 9/11 because no battle took place there. Of course, an act of terrible violence occurred in Manhattan that day--but it wasn't a battle.
Perhaps, but keep in mind that courts martial are subject to their own procedures and rules of evidence, and they also provide for an adversarial process with discovery.
Waco?
Your idea would make sense only if we actually treated Al Qaeda detainees as POWs, which we refuse to do. Such detainees cannot be expected to pay the price of combatant status (detention without due process) without the benefits of POW protections.
And, obviously, the other problem is that Al-Marri denies being a combatant. (I also deny being an enemy combatant, for the record, and I do not think it is okay for the government unilaterally to declare me to be a POW as if I did wear a uniform and send me to a camp.)
There was less doubt about the facts in the case of Hamdi, for examle, because he was captured under arms on a battlefield. My memory could be wrong, but I do not think he disputed that fact. In any event, the Hamdi court said his combatant status deserved some neutral review.
I agree that association with the "military arm" of the enemy is required. We are clearly both using the same passage from Quirin but interpreting it in different ways. My interpretation is that the Quirin criteria do not require the enemy to observe particular corporate or other organizational formalities: a "military" force is a practical question, not a legal one, and further a practical question to which courts owe substantial deference to Congress and its war powers.
By opting to use a military approach against Al Qaeda, Congress implicitly decided that it represented an enemy in a military sense, and that its forces were military forces. Since the organization ran dozens of combat and sabatoge training camps and fielded thousands of fighters in Afghanistan, in addition to running 9/11 as an essentially paramilitary operation, regarding it as a military power requiring a military response was not an unreasonable call and well within the deference courts owe Congress on such fundamentally political questions. Accordingly, acts such as attending a weapons training camp in Afghanistan are clearly evidence of military association. No doubt there are gray areas, but by running training camps, organizing in cells, having a chain of command, etc., Al Qaeda is sufficiently like a traditional military or paramilitary organization to make "military arm" reasonably applicable to its activities.
Sad to see OK impugned; he is doing what a good law prof does, pushing on the law to see where/if it gives. Those (like me) dubious of the "peace/war/other" continuum are lucky to have someone smart arguing in good faith for it, to test whether we're right.
Concur w/ Apodaca that Milligan provides a strong answer to the problem; Quirin ("not this Court's finest hour" - A. Scalia) by contrast was decided *during* the war, in haste, &is a very weakly-reasoned decision