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July 2, 2008 The Supreme Court’s Guantanamo Ruling and the Future of the War on Terror By Anthony Dworkin
The Court’s ruling struck at the heart of the legal rationale for the Guantanamo regime: the idea that by holding detainees outside U.S. territory the Pentagon could keep them beyond the reach of domestic American law. By undermining the administration’s main reason for holding terrorist suspects at Guantanamo, the ruling could hasten the closure of the detention centre there; at the same time, it also removes the urgency of campaigns for the prisoners to be moved, since Guantanamo is no longer a “law-free zone”. More than six years after the first prisoners arrived at the base, the men held there finally have the opportunity to test before civilian courts whether there is a legal basis for their detention. The judgement came in response to a case filed on behalf of a group of detainees including Lakhdar Boumediene, a Bosnian citizen of Algerian background brought to Guantanamo in early 2002. In recognizing that the prisoners were entitled to have the grounds for their detention reviewed, the Supreme Court overturned part of the 2006 Military Commissions Act, a law passed by Congress at the urging of the Bush administration that denied the right of habeas corpus to Guantanamo detainees. Because the detainees are entitled to this right under the Constitution, the Court found, they cannot be deprived of it unless an adequate substitute is provided, or unless Congress explicitly suspends the entire process of habeas corpus in response to “rebellion or invasion.” The Reach of Habeas Corpus The Court’s judgment marks a decisive rejection of one the Bush administration’s central claims about presidential power in the fight against terrorism. The White House has consistently argued that it is entitled to the same executive license in the campaign against al-Qaeda that it has enjoyed in previous armed conflicts, including the power to hold enemy fighters without oversight by the courts. In a case from the World War II era (Johnson v. Eisentrager) the Supreme Court denied the right of habeas corpus to German POWs held in an American military prison in Germany. But in asserting that this precedent should apply to an alleged global conflict, where prisoners who dispute they were ever engaged in hostilities are held far from any battlefield in territory under de facto U.S. sovereignty, the administration evidently stretched its argument beyond what the Supreme Court was willing to accept. Deciding in favour of the Guantanamo detainees, Justice Anthony Kennedy wrote for the Court that “objective factors and practical concerns” should determine how far the right of habeas corpus extended. In this case, he said, the disputed status of the detainees, the absolute and indefinite nature of American control over Guantanamo, and the fact that hearings would not obviously compromise a current military mission all stood as reasons for granting civilian court review. Having determined that the detainees were entitled to a Constitutional right of habeas corpus, the Court then rejected the argument that Congress had provided an adequate substitute for the right through the procedures set up at Guantanamo to test whether prisoners were enemy combatants. The Court therefore said that the detainees could bring their cases to federal court. The Supreme Court’s decision does not immediately require that any of the detainees be released. It does not even set out the criteria that should be used by the courts when they begin the process of assessing whether detainees are being lawfully held. But the decision makes it certain that there will soon be a series of hearings in which the government has to make the case that it has sufficient legal authority to hold all prisoners, and sufficient evidence to prove that their claims against the prisoners are well-founded. A New Framework for Fighting Terror When the federal courts come to examine the question of who can be detained and for how long, what rules will they look to? Will they uphold the legal model of a “war” against al-Qaeda, or replace it with some other framework? This is certain to be a hotly debated question, and will probably come back to the Supreme Court in its turn to be decided. The ultimate result is likely to turn on the courts’ interpretation of the original Congressional resolution backing the use of force against al-Qaeda, which did not include any explicit provisions regarding the scope and limits of detention, but may have implicitly authorized it in some circumstances. The Bush administration claims that it is involved in a global armed conflict with al-Qaeda, and that it should therefore be able to hold those fighting with al-Qaeda (“enemy combatants”) until the conflict is over. It argues that the use of war powers against al-Qaeda was endorsed by Congress in the Authorization for the Use of Military Force (AUMF), a resolution passed on September 18, 2001 that gave the President authority “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” In one of its earlier decisions on the “war on terror,” delivered in the Hamdi case in 2004, the Supreme Court gave partial backing to the war on terror model. It said that the AUMF allowed the President to detain at least some fighters for at least some time, as long as it provided a minimal degree of due process to test whether they really had been participating in hostilities. Because detention to prevent fighters’ return to the battlefield was “a fundamental incident of waging war,” the Court said, it should be understood as an implicit part of the military force authorized by Congress. The understanding that fighters could be detained for the duration of the conflict in which they were involved, the Court added, was in accordance with “longstanding law-of-war principles.” But the Supreme Court made clear that it was only addressing the particular situation at issue in that case. Yaser Esam Hamdi was an American citizen who was captured while fighting with the Taliban against the U.S and its allies in Afghanistan in November 2001, a month after the U.S. had sent its troops into action to fight against the Taliban regime. The Court based its opinion that Hamdi could be detained on the fact that the fighting between America and the Taliban was recognizably an armed conflict as traditionally understood, and that it was clearly continuing at the time of the Court’s judgment. In reaching this decision, the Court explicitly noted that it was avoiding some of the more difficult issues raised by Bush administration’s claims about the war on terror: in particular, it ducked the question of whether the power to detain until the end of hostilities, which the Court recognized in Afghanistan, would extend to cover anyone linked with al-Qaeda around the world. In addition, the Supreme Court explicitly avoided the question of how wide a range of people could legitimately be classed as enemy combatants, either with reference to the conflict in Afghanistan or the struggle against al-Qaeda more widely. These are the questions that will be at the centre of the habeas cases that will now be filed on behalf of the remaining detainees at Guantanamo. What Kind of Armed Conflict? The Supreme Court’s assumption in Hamdi was that Congress had given the President authority to detain in line with the legitimate and accepted scope for detention in armed conflict. In looking at the war in Afghanistan, the Court was evidently relying on a traditional model of inter-state armed conflict. In such conflicts, it is indeed a settled principle that enemy combatants may be detained until the close of hostilities. The detention of these fighters is based on their status as a member of a defined group, consisting of the enemy’s armed forces and associated militias; anyone in this category can be held without independent oversight, and would be entitled to the rights of a prisoner of war. But even in such conflicts, fighters who are not part of formal armed forces are treated by the laws of war in a different way. They are regarded as civilians, but fall into a special category of civilians who are taking part in hostilities. Because they are not entitled to fight, they do not qualify for prisoner of war status. They may be detained, as indeed may all civilians who pose a threat to military forces, where this is necessary for “imperative reasons of security”. In these cases, though, detention is based on an individual action or threat, rather than group status, and must only last as long as is necessary in each individual case. The situation is different in other forms of armed conflict, not fought between states. In an internal (or “non-international”) armed conflict between a state and an insurgent group, there is no formal group of combatants, and no defined status of prisoner of war for captured fighters. In effect, all insurgents are treated as civilians taking part in hostilities without any entitlement to do so. In such conflicts, the laws of war are silent on the question of who may be detained and for how long. Instead they operate only in a minimal way, to set limits on how fighting must be conducted, and how anyone not taking part in hostilities must be treated. The difference in the operation of the law in these two types of armed conflict reflects very different assumptions about the background situation. International armed conflict, involving the armed forces of two sovereign states, is understood as a formal confrontation between parties with equal rights, who are both expected to comply with the rules and distinguish themselves from civilians. The formal nature of hostilities means there is likely to be a clear beginning and end of the conflict. In non-international conflict, there is no guarantee that members of the armed groups involved will distinguish themselves from civilians. They may take the form of a loose-knit network of fighters rather than a distinct military hierarchy. It may be hard to tell when the armed conflict starts and finishes, and the two sides do not have equal rights as belligerent parties. In such non-international conflicts, it would be misleading to talk of any right based on “longstanding law-of-war principles” to detain fighters until the end of hostilities. Questions about who can be detained and for how long are largely a matter for the state’s powers under domestic law, and it is human rights that set the most meaningful limits on what the state can do. The government’s detention power would be best understood as a matter of balancing its legitimate interest in maintaining public order, against the right of individuals not to be subjected to prolonged arbitrary detention. The justification for detention is again based on an assessment of individual dangerousness rather than any status as a “combatant,” though of course affiliation with an insurgent group would count as strong evidence of presenting a security threat. In putting forward a “war paradigm” for the confrontation with al-Qaeda, the Bush administration was invoking the first of these two kinds of armed conflict, and analogizing terrorists with the enemy’s armed forces. To the extent that this had any plausibility, it derived from the fact that al-Qaeda was based overseas, and also from the initial overlap between military operations against al-Qaeda and the war against the Taliban regime in Afghanistan. Even so, to the extent that they were involved in an international armed conflict, al-Qaeda fighters would best be understood as civilians taking part in hostilities rather than authorized combatants. But in most significant ways, if we assume that there is an armed conflict with al-Qaeda, it is closest to the second model. The United States confronts not a group of regular armed forces with belligerent rights but a loose-knit group of individuals from many states who share the objective of trying to inflict harm on America and its allies. The Supreme Court recognized in the Hamdan case in 2006 when it said that the applicable part of the laws of armed conflict was Common Article 3 of the Geneva Conventions (which governs “non-international” conflicts). An Individual Basis for Detention Because it is essentially meaningless to talk of any implicit right to detain until the end of hostilities in such conflicts, there are no grounds for claiming that Congress authorized such a detention power through the AUMF. Instead, it would more in keeping with the spirit of the relevant laws to say that the AUMF gave the President authority to detain individuals involved in al-Qaeda’s campaign against the United States where that was absolutely necessary for reasons of national security, subject to individual determination in each case and only for so long as the circumstances required. Even with respect to Afghanistan, where the Supreme Court’s opinion in Hamdi suggested that the US government had the authority to detain enemy fighters while fighting continued, the situation may be less clear-cut than the Court claimed. There was certainly an international (in the legal sense of “inter-state”) armed conflict between the United States and Afghanistan under the Taliban regime between 2001 and 2002, when Hamdi was captured. But since then, a US-backed regime has been installed in Kabul, and US forces are now fighting alongside Afghan national forces, against Taliban and al-Qaeda remnants. American forces can conduct military operations in Afghanistan and detain people there only under delegated authority from the Afghan government, as spelled out in a 2005 “Joint Declaration of the United States-Afghanistan Strategic Partnership”. The conflict itself is now an internal one, with no formal group of combatants involved on the insurgents’ side. Again, the Afghan government’s detention authority (and by extension, that of American forces) should be regarded as a loose one based on necessity in each individual case. Of course many people dispute that the U.S. campaign against al-Qaeda should be regarded as an armed conflict at all. There are no regular and continuing hostilities, as conventionally understood, between al-Qaeda and the United States, and many of those held at Guantanamo were not picked up on anything resembling a battlefield. For instance, Lakhdar Boumediene, who gave the recent Supreme Court case its name, was arrested by local authorities in Bosnia and only handed over to the United States after a Bosnian court ordered his release. However, the White House’s claim that it has the authority to detain al-Qaeda fighters may not ultimately depend on whether there is an armed conflict, as international humanitarian law defines it, between the two parties. The AUMF authorized the use of military measures against al-Qaeda members, and that might be taken to authorize detention except where it is forbidden by other relevant U.S. and international laws. In a domestic context, human rights law allows states to detain without trial during a state of emergency, even if the situation does not qualify as an armed conflict for purposes of the laws of war. Perhaps the central question posed by the “war on terror” is whether there is some international equivalent: whether U.S. and international law permits the detention of hostile individuals outside a recognizable armed conflict, and what limits they place on it. The Impact of Human Rights One way to approach this question would be through human rights. Customary international law includes a prohibition against prolonged arbitrary detention, and it might be possible to develop this idea to set standards for when if ever the detention of hostile individuals was legitimate. A parallel approach, opened by the Supreme Court’s ruling in the Boumediene case, would be to look to the American Constitution. Indeed, the Court said explicitly that “whether the President has such authority [to detain the Guantanamo prisoners indefinitely] turns on whether the AUMF authorizes—and the Constitution permits—the indefinite detention of “enemy combatants” as the Department of Defense defines that term.”) There are no precedents for the Supreme Court allowing indefinite detention of anyone not convicted of a crime nor held as an enemy combatant in wartime, apart from the case of mentally ill people who are regarded as a danger to themselves or others. However during the oral argument in the Boumediene case, Justice Breyer suggested that some form of preventive detention for dangerous terrorists might be permitted by the Constitution. Breyer apparently had in mind that Congress might pass a special statute, but his argument suggests that the Court might also uphold some detention power if it was found to be implicit in the AUMF. If so, the scope of detention would almost certainly be much more tightly drawn than the Bush administration’s current definition of enemy combatants. The Pentagon defines an enemy combatant as “an individual who was part of, or supporting, Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” But the AUMF authorizes the use of force only against organizations or people who were involved in the attacks of September 11—suggesting that detention would only be legitimate either against people who are part of al-Qaeda as an organization or who helped carry out the 9/11 assaults. It would not be justified against members of groups loosely affiliated with al-Qaeda, even if they are now thought to pose a threat to the United States, if they did not participate in the events of September 11. Moreover, in line with the legal framework outlined in this article, the courts might only allow detention where it could be shown to be absolutely necessary for imperative reasons of security. This would require a much higher burden of proof than is currently used by the Pentagon’s Combatant Status Review Tribunals. Under current procedures, anyone who meets the very broad definition of combatant is liable for continued detention unless it is established that he no longer presents a threat, and no longer has any intelligence value. Under an alternative procedure, based on establishing the necessity of detention in each individual case, only people who fell within the narrow terms of the AUMF and who continued to pose a significant danger could be held, and the state would be obliged to prove that this security risk existed in each individual case. (A very similar approach was recently adopted by the Israeli Supreme Court in its interpretation of Israel’s Internment of Unlawful Combatants Law; the Court said the law only allowed detention of people who posed an individual threat, and required clear and convincing evidence of that threat for detention to be allowed.) There is a separate question about what degree of due process would be required in the hearings necessary to justify detention. The Combatant Status Review Tribunals have been widely criticized for not allowing suspects to hear the evidence against them. It should go without saying that any substitute forum would have to meet adequate procedural standards to make sure that the government's allegations were well-founded. An Emergency Paradigm? The approach outlined here represents one possible standard for detention that might emerge from the Guantanamo habeas cases as they work their way through the U.S. court system. It could be described as an “emergency paradigm” to contrast with the “war paradigm” that the Bush administration has proclaimed--since it is based on the existence of a threat to national security that requires a military response, rather than the existence of a recognizable armed conflict. This regime would be significantly more restrictive than the Bush administration’s “enemy combatant” regime, and would accord somewhat more closely with international law. In fact, there has been much recent discussion about whether Congress should set up some scheme of preventive detention along these lines, possibly administered by a new national security court. There is little doubt that the Supreme Court would prefer to have such a system defined by Congress than constructed in an ad hoc way by the courts through interpretation of the relevant laws. In any case, to meet human rights standards, it would seem necessary to confine such an exceptional detention power to circumstances of war or an emergency threatening the life of the nation, and it remains unclear how these would be defined in the context of a struggle against a global terrorist movement, or whether the threat posed by al-Qaeda really rises to this level. To many people, however, the notion of detention without trial for terrorist suspects outside battlefield conditions represents an unacceptable and unnecessary infringement of human rights. According to this view, the courts should hold that the President cannot detain people without trial outside the local context of an armed conflict, because the Constitution and human rights law does not allow it. U.S. armed forces could continue to detain fighters in Afghanistan and Iraq, where they are involved in continuing hostilities, based on Security Council resolutions and agreements with local authorities. But the notion of a world-wide detention power, based on the global threat of al-Qaeda, would be dismissed. These two options seem the most well-founded alternative scenarios for the way that the “war on terror” might be redefined by American courts. The choice between them may depend on how the courts balance the risk that some individuals linked to al-Qaeda, who could not otherwise be tried and convicted, might go on to conduct attacks against American targets if released, against the damaging and dangerous precedent that would be established by allowing the open-ended detention of individuals of sound mind arrested outside battlefield conditions.
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