Tag Archives: military commission

Enemy combatants are nothing new

Eight years ago, a former gang member from Chicago named Jose Padilla was arrested at O’Hare International Airport and held at a military prison as an enemy combatant under suspicions that he had had contact with al-Qaida and was plotting to use a “dirty bomb.” The Bush administration maintained that Padilla’s status precluded him from rights including habeas corpus, a trial and due process — despite the fact that he was a U.S. citizen.

But while the term “enemy combatant” may seem to have been begotten by government machismo in reaction to the 9/11 terrorist attacks, the label actually goes all the way back to World War II. In recent years, the government has simply revised it.

Charles E. Tucker Jr., executive director of the International Human Rights Institute at DePaul University, said the term was first attributed to Nazi saboteurs.

In the 1942 case Ex parte Quirin, the U.S. Supreme Court upheld the constitutionality of trying eight German infiltrators in military commissions as “unlawful combatants”:

“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”

In the case of the Nazi saboteurs, they had shed their uniforms to surreptitiously infiltrate and threaten U.S. targets, making them unlawful combatants and thus subject to a military trial.

In 2006, the Military Commissions Act defined unlawful enemy combatants in a similar manner, primarily in relation to the lawful combatant.

“The term ‘lawful enemy combatant’ means a person who is — a member of the regular forces of a State party engaged in hostilities against the United States; a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.”

“The term ‘unlawful enemy combatant’ means — a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).”

For a timeline of the history of the term “enemy combatant” in the United States, click here.

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The recent evolution of the 'enemy combatant'

Since 2001, the term “enemy combatant” has been primarily applied to terror suspects associated with al-Qaida and the Taliban.

Largely on the basis of its own executive orders, the Bush administration applied the term “enemy combatant” to former Chicago gang member Jose Padilla and Yaser Esam Hamdi, who was a U.S. citizen when he was captured in Afghanistan, reportedly fighting American forces with the Taliban.

In its 2003 World Report, advocacy group Human Rights Watch said, “The use of the ‘enemy combatant’ designation appeared to be intended to circumvent the U.S. criminal justice system and its safeguard of basic rights.”

Civil rights groups often cite the cases of Padilla, who was detained for more than three years without a trial for suspected connections with al-Qaida, and Hamdi. After Hamdi was detained without being charged, he became the subject of the 2004 Supreme Court case Hamdi v. Rumsfeld. The court ruled that while the government could detain unlawful combatants, detainees with U.S. citizenship have a right to challenge their detention.

In 2005, Rep. Adam Schiff, a Democrat from California, introduced the Detention of Enemy Combatants Act, which would permit the president to detain U.S. citizens with connections to al-Qaida but would also “guarantee [detainees] timely access to judicial review.” The bill never left committee, but it made the following statement about enemy combatants:

“The term ‘enemy combatant’ has historically referred to all of the citizens of a state with which the Nation is at war, and who are members of the armed force of that enemy state. Enemy combatants in the present conflict, however, come from many nations, wear no uniforms, and use unconventional weapons. Enemy combatants in the war on terrorism are not defined by simple, readily apparent criteria, such as citizenship or military uniform. And the power to name a citizen as an ‘enemy combatant’ is therefore extraordinarily broad.”

In 2006, President George W. Bush signed the Military Commissions Act, which distinguished between lawful and unlawful enemy combatants. According to the law, lawful enemy combatants are those associated with an opposing government or other organized force who identify themselves in appearance and behavior. In short, unlawful enemy combatants are those who aren’t lawful enemy combatants.

Matthew Lippmann, a professor of criminology, law and justice at the University of Illinois in Chicago, said Bush broadly defined enemy combatants as “people who fall outside the Geneva Conventions who are at war with the United States.”

The Military Commissions Act of 2006 also specified that unlawful enemy combatants could be tried in military courts and thus were not subject to rights including habeas corpus.

In 2008, the U.S. Supreme Court ruled that prisoners have a right to habeas corpus, making that provision of the Military Commissions Act of 2006 unconstitutional.

The Obama administration officially abandoned the term “enemy combatant” last year, though it has continued holding some individuals without trial at Guantanamo Bay. It attributed continued detentions to Congressional and international law, including the Geneva Conventions.

“President Obama said no, I’m not really going to buy into the notion that this is a war,” Lippmann said. “We’re going to prosecute [detainees] in a civilian court and treat them as criminals.”

For a timeline of the history of the term “enemy combatant” in the United States, click here.

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One idea: Hold terror trials at Thomson Prison

In November, a poll found that 41 percent of New York City residents thought it was a bad idea to try suspects with alleged ties to 9/11 in New York City.

The Marist College Institute for Public Opinion poll also found that 45 percent of residents thought it was a good idea. But many politicians including former Mayor Rudy Giuliani seized on the sentiment of the 41 percent and pushed the Obama administration to come up with another location.

In December, President Barack Obama authorized taking the Thomson Correctional Center in Thomson, Ill., into federal control and making it a U.S. penitentiary for the purpose of relocating some Guantanamo Bay detainees there. Charles E. Tucker Jr., who is executive director of the International Human Rights Institute at DePaul University, said the facility could solve more than the problem of what to do with detainees.

“If you close Guantanamo Bay and move people out to the Thomson facility in Illinois, I could easily imagine a federal courtroom set up there where you wouldn’t have to reinvent the wheel but could solve the court issue,” Tucker said.

The fact that federal courts are located in populous areas is one concern many have about using civilian courts to try suspected terrorists. According to the Marist poll, 34 percent said they thought holding the trial in New York City would compromise their personal safety. (Fifty-two percent disagreed.)

Tucker cited the example of the federal court building in Chicago, which is located in a densely developed and populated area. Thomson is a rural area of Illinois with a population of about 550 people.

Tucker said he thinks federal law is more than adequate to try suspected terrorists in federal court. But he acknowledged that security is a concern for not only the general population but also those involved in the trial.

“There’s no way to keep a judge’s identity a secret during a trial,” Tucker said. “They could become a lifetime target.”

Matthew Lippmann, a professor of criminology, law and justice at the University of Illinois in Chicago, said it remains to be seen whether suspects will be tried in civilian courts and, if so, where.

“Obama appeared that he would not use these [military courts] at all, would abolish them, but right now it’s unclear where these 9/11 individuals are going to be prosecuted.”

For an interactive map and more information about the sites considered for the relocation of Guantanamo Bay detainees, click here.

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In tension between military and federal justice, the potential for terrorism court

As the debate drags on over whether to try alleged terrorists held in Guantanamo Bay in military commissions or federal courts, the pressure to find a politically palatable option is building. And the government’s solution may be the creation of a terrorism court, experts say.

“I think it’s going to probably happen because they’re going to have to deal with somewhere in the neighborhood of 50 really tough cases where they’re not going to be able to prosecute these cases in the traditional methods,” said Charles E. Tucker Jr., who is executive director of the International Human Rights Institute at DePaul University.

Tucker said current federal law is sufficient to try terror suspects, referencing Attorney General Eric Holder’s testimony that hundreds of terror-related crimes have already been prosecuted in federal court.

“In my opinion, you don’t have a legal necessity for a terrorism court, and we don’t have an evidentiary necessity for a terrorism court,” Tucker said. “So that leaves political necessity.”

And Tucker said that necessity is primarily safety, which is a legitimate concern. He said trying terror suspects in federal court could pose a threat to judges, witnesses and other actors, not to mention the public.

Richard Friedman, president of the National Strategy Forum, said military commissions have looser rules to accommodate the difficulties of trying more sensitive cases, including allowing prosecutors to present evidence without divulging their sources. The Obama administration wants to avoid using them to try the alleged 9/11 plotters, including Khalid Sheikh Mohammed, though many conservatives are pushing back.

“[President Barack Obama] doesn’t use the word ‘war on terror’ deliberately because he does not want to indicate that they should be sent before a military commission, so he’s used every other word imaginable,” said Matthew Lippmann, who is a professor of criminology, law and justice at the University of Illinois in Chicago.

But Tucker said creating a terrorism court would give at least the appearance of false justice, which he said contradicts American values.

“You’re dealing with the perception that you’re meeting with a special judge that’s designed just for you. There’s a perception that you’re not getting the same kind of justice.”

Tucker said the government could look to the British appellate courts in Northern Ireland or the Israeli military tribunals to see what an American terrorism court system might look like. He said he visited the Israeli tribunals last year and described the prosecutors as “pretty demoralized.”

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Four reporters banned from military commission proceeding at Guantanamo Bay

News outlets reported that the Pentagon banned four reporters, one American and three Canadians, from covering pre-trial hearings of Guantánamo detainee Omar Khadr.

The Washington Post blog, SpyTalk, reported that the four reports, Carol Rosenberg of the Miami Herald, Michelle Shephard of the Toronto Star, Paul Koring of the Globe & Mail, and Steven Edwards of Canwest Newspapers, were banned because they “revealed the name of a former U.S. interrogator whose name is under protective order — but is widely known.” The Pentagon said publishing the name violated previously agreed upon rules that prevent identifying protected witnesses.

The American Civil Liberties Union, in a published statement, said the  “identity of the interrogator had already been disclosed in previous news reports, including an on-the-record interview the interrogator gave to Shephard in 2008.” Politico reported that Pentagon spokesman Col. David Lapan, when asked why reporters were being punished for reporting a name already made public, said any previous stories or interviews were irrelevant.

“That doesn’t change the fact that his identity was protected in the courtroom during this hearing,” Lapan said.

Jameel Jaffer, ACLU Deputy Legal Director, said that punishing reporters for disclosing information already publicly available:

is nothing short of absurd – any gag order that covers this kind of information is not just overbroad but nonsensical. Plainly, no legitimate government interest is served by suppressing information that is already well known. We strongly urge the Defense Department to reconsider its rash, draconian and unconstitutional decision to bar these four reporters from future tribunals. If allowed to stand, this decision will discourage legitimate reporting and add yet another entry to the long list of reasons why the military commissions ought to be shut down for good.

Politico reported that Lapan told the news outlets they may appeal to the deputy assistant secretary of defense for media operations, Bryan Whitman. According to the Post, Mindy Marques, managing editor at The Miami Herald, said they would appeal.

Further reading: Washington Post SpyTalk, Politico article, ACLU statement

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Omar Khadr's prosecution pushes the limits of international law

Guantanamo Bay, Cuba– Omar Khadr, a 23-year-old Canadian citizen charged with murder, conspiracy and support of terrorism whose pretrial hearings began this week, was captured by the United States in Afghanistan in 2002. Khadr was 15 at the time.

That’s not the centerpiece of the hearings; Khadr’s attorneys are asking the court to exclude incriminating statements he made because they were allegedly procured using torture. But Khadr’s age at the time of his capture remains a major concern for human rights advocates, and a point of legal contention.

Several non-governmental organization representatives here to observe the hearings believe that, at the time of Khadr’s capture, he was a child soldier. Subsequently, they contend, his rehabilitation, rather than prosecution, should have taken precedence and perhaps even blocked him from being charged in the first place.

“The detention, treatment and prosecution of Omar Khadr violates international law and flies in the face of accepted international practice,” said Jennifer Turner, an attorney with the American Civil Liberties Union, in an interview.

“Under international law, an alleged child soldier like Omar Khadr should be treated first and foremost as a candidate for rehabilitation and reintegration, not subjected to abuse and prosecution before military commission.”

The Department of Defense has acknowledged that at least 12 juveniles have been held in the Guanatanamo Bay detention facility, although human rights advocates speculate that the actual number may be higher.

Navy Capt. David Iglesias, a legal advisor to the office of military commissions and a prosecutor for commission cases other than Khadr’s, disagrees with the contention that the United States is in violation of international law. The government’s position, Iglesias said in an interview, is that the United Nations enacted the child soldier provisions to penalize countries that force children to fight.”

Iglesias, a former U.S. Attorney, also noted that the two Additional Protocols of 1977, amendments to the Geneva Conventions that concern child soldiers, have not been ratified by the United States.

The United States did ratify the Optional Protocol on the involvement of Children in Armed Conflict, but even that does not prohibit Khadr’s prosecution, according to UNICEF’s website.

Stacy Sullivan, a court observer for Human Rights Watch, acknowledged that international law does not ban the prosecution of children for war crimes. But she noted that military tribunals have not been a venue for juvenile prosecution since the Second World War.

“Even the Special Court for Sierra Leone, where a great many of the crimes were committed by children, did not prosecute children,” wrote Sullivan in an email. “Prosecutors will say that that children were prosecuted for war crimes in Germany following World War II — but the claims are ridiculous. A couple of children were prosecuted for theft, and I think maybe one for murder, but none for war crimes.”

Sullivan also noted that there are other international laws regarding children that the U.S. may have violated since it captured Khadr.

“There is a lot in international law about the detention of children,” she wrote in an email.“They must be held separately from adults, given family visits, provided a lawyer, provided education, etc… The US, of course, did not do any of this [during Khadr’s detainment] so there is no question that the US violated its international legal obligations.”

Meanwhile Iglesias contends that there is only aspect of Khadr’s case to which his age is germane.

“Where it becomes relevant is for sentencing purposes,” he said. “ If he is found guilty, the judge can take into consideration the fact that he was only fifteen years old,” when the alleged crimes occurred.

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