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Supreme Ignorance: America’s Highest Court Disregards the Law of Land Warfare

                  I’m neither a lawyer, nor play one on TV.  In fact, I hated law school so much, back during Reagan’s first term, that after one semester I dropped out and joined the Army, winding up in the 101st Airborne.  But while in the Army  I was trained as an Arabic interrogator, and part of that education included being made to learn Army FM 27-10, The Law of Land Warfare, which contains “authoritative guidance to military personnel on the customary and treaty law applicable to the conduct of warfare on land” derived from the  various Geneva Conventions (most notably those of 1929 and 1949), as well as the relevant Hague Conventions.  And then in post-enlisted military service I obtained a doctorate in Islamic history.  So the following commentary is that of a layman learned in matters relating to the war on Islamic terrorism, not a legal scholar. 

                  On June 12, 2008, the Supreme Court decided, 5-4, in Boumediene et al. v. Bush 1  that non-citizen “enemy combatants” held at Guantanamo “have the constitutional privilege of habeas corpus.” 2  This was the latest in a triad of Court rulings expanding the rights of "enemy combatants" captured in the global war on Islamic terrorism and constitutionally whacking the Bush Administration.  In Hamdi v. Rumsfeld (2004) 3, our highest court determined that an American citizen (born in  the U.S. but moved to Saudi Arabia as a child) captured in Afghanistan and held at the naval brig in Charleston, S.C., was entitled to the privilege of habeas corpus. Two years later, in Hamdan v. Rumseld, 4 the Supreme Court ruled 5-3 (Roberts taking no part, having been on the Circuit Court involved) in a case brought by Usama Bin Ladin’s driver and accomplice, a Yemeni citizen, that “the military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ 5 and the four Geneva Conventions signed in 1949.”

                  In Boumediene Justice Kennedy, writing for the others in the majority (Stevens, Souter, Ginsburg and Breyer), admits that “before today the Court has never held that noncitizens detained by our government in territory over which another country maintains de jure sovereignty have any rights under our Constitution,” but since “the cases before us lack any precise historical parallel…We hold that Art I, §9, cl. 2 of the Constitution has full effect at Guantanamo Bay.”  The majority claims that the Detainee Treatment Act (DTA), passed by Congress in 2005, doesn’t provide sufficient guarantees of such rights.  Kennedy goes on, seemingly in an attempt to throw a bone toward the other two branches of government, that “[o]ur holding…should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains the detainee’s habeas corpus petition.” The majority opinion continues extending this olive branch: “Unlike the President ... neither the members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain [emphases added] those who pose a real danger to our security.”  And Kennedy even claims that “our opinion does not undermine the Executive Power as Commander-in-Chief.”

                  Chief Justice Roberts, as well as Justice Scalia, wrote dissenting opinions on behalf of the four-person minority.  Both Roberts and Scalia accused the majority of “a constitutional bait-and-switch,” having in the Hamdi case provided guidelines for the Executive and Legislative branches to follow in crafting new mechanisms for judging enemy combatants—particularly the DTA—only to strike those down, as well.  The Chief Justice points out that detainees have a number of extraordinary rights already under DTA, including the right to a “Personal Representative” who can see, and summarize, CLASSIFIED info for them! Roberts also has the best line in this case: “The dangerous mission assigned to our forces abroad is to fight terrorists, not serve subpoenas.” Scalia is even more scathing: “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander-in-Chief will make the war harder upon us. It will almost certainly cause more Americans to be killed.”  He notes that during World War II some 400,000 POWs were held in the U.S. and not one “was accorded the right to have his detention validated by a habeas corpus action in Federal court—and that despite the fact they were present on U.S. soil” and fumes  that  “petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction.”

                  Let me preface my critique of the Boumediene Gang of Five by confessing that I agree in essence with the Hamdi decision: an American citizen, no matter where captured or under what conditions, is entitled to know the charges being brought against him.  Furthermore, the Bush Administration should be faulted for clinging to the nonsensical (albeit perhaps legally valid) argument in both Hamdan and Boumediene that Guantanamo is not really under American jurisdiction.   That said, following are a number of criticisms of the Supremes’ reasoning in Boumediene  (as well as the other two cases) derived from points in The Law of Land Warfare (henceforth LLW).  I would welcome clarification of them from any of you legal eagles out there.

                  1) The status of captured alleged terrorists really is the crux of the matter. Rather than wasting time with the fiction that Gitmo isn’t really American soil, the better argument—one that should have started when the first C-5A full of bearded gents captured in Afghanistan hit the Gitmo tarmac—would have been that alleged terrorists are neither  prisoners-of-war (POWs) nor  even “enemy combatants” but simply “guerrillas, partisans, spies” or “saboteurs.”   POWs are defined as  being “members of the armed forces of a Party to the conflict,” “having a fixed distinctive sign recognizable at a distance” who are “carrying arms openly and “conducting their operations in accordance with the laws and customs of war.” 6   Al-Qa`idah members, or members of other terrorist groups, do not fit these characteristics.  Furthermore, “members of militias or volunteer corps…lose their right to be treated as prisoners of war whenever they deliberately conceal their status,” and “A person can…be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.” 7  Penalty for spying? “The spy is punishable with death whether or not he succeeds in obtaining information or in conveying it to the enemy.”8   Also subject to the death penalty is “Any person who-- (1) aids or attempts to aid, the enemy with arms, ammunition, supplies, money or other things.” 9  In addition to spies and aiders and abettors, “[P]ersons , such as guerrillas and partisans, who take up arms and commit hostile acts without having complied with the laws of wars for recognition as belligerents…are, when captured by the injured party, not [emphasis added] entitled to be treated as prisoners of war and may be tried and sentenced to imprisonment or execution.” 10  Also, anyone who “commit[s] hostile acts about or behind the lines of the enemy are not to be treated as prisoners of war and may  be tried and sentenced to imprisonment or execution.  Such acts include, but are not limited to, sabotage, destruction of communication facilities, intentional misleading of troops…liberation of prisoners of war, and other acts….” 11    Most, if not all of these points, could apply to members of terrorist groups captured in Afghanistan, Iraq, and elsewhere.  The Bush Administration should perhaps have been finding ways to have the Combatant Status Review Tribunals adjudge the likes of Hamdan as non-POWS/non-enemy combatants, rather than wasting time with the argument that Gitmo resembles Scotland before total union with the British crown. 

                  2) As many have remarked, the Manichaean cleavage regarding the war on Islamic terrorism is this: on one side, those who see it primarily as an actual war (neocons, Bush, McCain, much of the GOP) and those who see it as a police/criminal justice matter (Kerry, Obama, the Democrat Congress).  Five members of the Supreme  Court have demonstrated yet again they fall in the latter camp: “The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security” (Boumediene); “information used to convict a person of a crime must be disclosed to him” (Hamdan); “even assuming that Hamden [sic] is a dangerous individual…the Executive must nevertheless comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment.”

                  3) Speaking of Hamdan, the majority said there that the petitioner could not be tried for conspiracy—even for plotting with, and helping, UBL riding in the backseat—and even if he could, conspiracy was not a crime under international law. Besides being a variation of the Bart Simpson defense (“I didn’t do it, no one saw me do it, you can’t prove anything”), this flies in the face of LLW, which states that “[c]onspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.” 12  Interestingly, “enemy personnel charged with war crimes are tried directly under international law without recourse to the statues of the United States.” 13  (Can someone apprise Justice Kennedy, et al., of this?)   

What constitutes war crimes, you ask? “Grave breaches” of the 1949 Geneva Convention statutes, including “wilful killing, torture of inhuman treatment…wilfully causing great suffering or serious injury to body or health…not justified by military necessity,” specifically “maltreatment of dead bodies”—such as setting aflame dead American contractors—“firing on localities which are undefended and without military significance”—like the World Trade Centers—“use of civilian clothing by  troops to conceal their military character,” etc. 14

Five members of the Supreme Court of the United States of American have adopted the position that non-citizen individuals accused of, in effect, war crimes should have the habeas corpus protections of American citizens in criminal proceedings. Could someone offer a non-politicized, rational defense of that position?

                  4) I see at least three military and intelligence ramifications that might follow from Boumediene:

                  a) al-Qa`idah and its ilk will start ordering their operatives to get captured by American forces in order to wind up at Gitmo (or whatever facility, in whatever location—if any--replaces it in the Obama Administration) and start filing petitions, in order to smoke out American intelligence sources and methods via those Personal Representatives the Supreme Court majority is so fond of.

                  b) American commanders will be more likely to find a way to steer captured alleged terrorists away from detention on American soil, because of what even the Gang of Five admits will be  the growing “burden habeas corpus proceedings will place on the military.” 15  Rendition will be back, and the captured will find it increasingly likely they’ll wind up in Egypt, Jordan or Saudi Arabia, far outside the reach of clueless, benevolent old men (and women) in black robes and well within the reach of malevolent Muslim interrogators in, well, black robes.

                  c) Contra Justice Scalia’s fear that this decision will result in more American soldiers being killed, I think it equally likely that it will result in more Muslim terrorism suspects getting killed—since field commanders and even the Privates humping out in harm’s way as 11Bs (infantrymen) will be more prone to shoot first, handcuff later.  I sure as hell would.

                  5) In their rush to extend the umbrella protection of the American Constitution to its (and our) avowed enemies, five Supreme Court Justices seem blissfully, and dangerously, unaware of some of the most basic beliefs of the jihadist wing of Islam, such as:

                  a) treaties with dhimmis (Jews and Christians) may be broken at will

                  b) methods of fighting that would be deeded war crimes under Western formulations of international law (such as the sainted Geneva Convention) are perfectly acceptable when fighting against non-Muslims

                  c) cease-fires and truces with non-Muslims can be violated at will in jihad.16

                  6) Finally, a Constitutional question: the Suspension clause, to reiterate, states that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  I know that in 1866 the Supreme Court ruled in Ex parte Milligan that only if civilian courts were shut down could habeas corpus be dispensed with.  But cannot a legitimate legal case be made today that we have been invaded—going back at least to 1993, the first World Trade Center bombing-- and that public safety does require  that those accused of working with and supporting the invaders are not entitled to rights under a legal document which they hope to replace with their extremist religious law? 


2 Habeas corpus is, for us non-lawyers, short for habeas corpus ad subjiciendum, “a writ directed to the person detaining another, and commanding him to produce the body of the prisoner, or person detained….the purpose of which is to test the legality of the detention or imprisonment; not whether he is guilty or innocent” (Black’s Law Dictionary, 5th edition, 1979, p. 638).  The topic is covered in Article I, §9, clause 2 of the U.S. Constitution: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  This is also referred to in legal circles as the “Suspension Clause.”


4 http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf

5 Uniform Code of Military Justice.

6LLW, Chapter 3, “Prisoners of War Defined,” p. 25.

7 Ibid., “Persons Not Entitled To Be Treated as Prisoners of War,” p. 31.

8 Ibid., p. 33.

9Ibid., p. 33.

10 Ibid., p. 34.

11 Ibid.

12Ibid., Chapter 8, “Remedies for Violation of International Law; War Crimes,” p. 178.

13 Ibid., 180-81.

14Ibid., pp. 179-80. 

15 Boumediene v. Bush, majority opinion.

16 See E. Kohlberg, “The Development of the Imami Shi`I Doc trine of Jihad,” Zeitschrift der Deutschen Morgenländischen Gesellschaft, 126, 1 (1976), pp. 64-48, as well as http://ianlivingston.com/threatmatrix/handbook/wmd_fatwa.htm