Say Anything Blog

The current war between various NGO's (al Qaeda et al) is an attempt to wage asymmetrical warfare against the West in general, and the United States in particular. The enemies of the West (and of the United States) hope to use our own laws and traditions against us. They intend to commit acts of war (war crimes, in point of fact) against us, while enjoying the benefits of criminal law protections. They particularly enjoy the benefit of a system which abhors prior restraint, since a terrorist willing to kill himself as part of the mission cares little for adverse consequences arising from his acts.

So let's see where the most recent opinion from five of the nine robed sages leaves us.

Criminal Law and Jurisdiction

From the terrorist's perspective, the American Criminal Courts system is an ideal battleground. It is strictly limited to the geographic constraints of the United States. Plans and conspiracies developed overseas are exceedingly difficult to prosecute until and unless some direct action is taken against American citizens or interests within the jurisdiction of the United States. Most nations which harbor or tolerate such terrorist organizations have no extradition treaty with the United States, and may indeed be encouraging or clandestinely supporting such terrorist organizations as a means of deniably waging war against the United States.

Should such a terror cell be detected, bringing them before a criminal court in the United States poses problems. U. S. Courts have for some time declined to take any interest in how a defendant is delivered to the court. Such snatch operations from un-cooperative foreign countries eventually became known as "Extraordinary Rendition" (a term which also encompasses the transportation of subjects to a third country, and which has already become a hot button issue in various international fora). Resistance to such measures is to be expected; even from nations which are putatively friendly towards the United States. Removing such persons by force (whether for trial or burial) is an insult to national sovereignty usually remedied by war.

Should such a terror cell be brought before a criminal court in the United States, they will have ample opportunity to introduce their own propaganda agenda at trial. The same trial will likely expose the means and methods by which the United States discovered the activities of the terrorists, to the detriment of the future effectiveness of said means and methods. Nor is there any guarantee of preventing ongoing communication between defendants (or convicted terrorists) and their co-belligerents at large.

Should they be convicted at such a trial, the most recent example indicates that they are likely to be sentenced to life in prison. Life in an American prison is often more comfortable and safe than a life at "liberty" in the nations from which the terrorist originates.

What then does the United States, or any other nation state, gain by countering international terrorists with domestic criminal law?

Are such activities deterred? Not according to the internal documents of such enemies.

And what of our criminal justice system? Is it improved by the imposition of super jurisdiction over the entire globe? Shall we implement secret trials to protect intelligence sources, or cripple prosecutions based on sensitive intelligence by excluding all such intelligence?



Waging War

War is not the preferred arena of the terrorists. In direct warfare, they fare very poorly against the United States Armed forces. Nor do terrorists fare well against any relatively modern and well-trained cohesive force.

Terrorists prefer soft targets not only for the terror such attacks produce, but also because they are less risky to the terrorists and thus more likely to succeed.

As long as the nation state against which terrorists operate refrains from treating the conflict as a war, the advantage goes to the terrorists.


The Customary Laws of Warfare

War, having been around as long as recorded human history, has developed its own body of law.

The customary laws of warfare initially had precious little to do with "Human Rights" (a much later notion). While they have recently taken notice of the concept, they have far more to do with the more humane customs and traditions of land (and to a lesser extent, naval) warfare as practiced by Western Civilization.

The Hague Treaties and Geneva Conventions were written to codify the most humane practices of the Western Civilizations when it came to the inherently inhumane practice of warfare. They attempt to set bounds and standards for an activity which is (by its very nature) resistant to such restraints.

They are based on an underlying assumption of reciprocity.

By following the customary laws, Treaties and Conventions, one extended the protections to others in the belief that by so doing one had secured the same protections for ones own forces and civilians. The negative reinforcement was that failing to meet these standards of behavior and treatment freed one's enemies to act in the same manner.

As such, the customary laws of warfare demand that combatants be clearly identified as combatants, bear their arms openly, adhere to an accountable chain of command, and make war only upon other combatants in accordance with the customary laws of warfare.

These requirements are spherically enumerated in the GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR OF AUGUST 12, 1949 (GENEVA CONVENTION III)

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil[sic] the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Clearly, by the black letter of the Third Geneva Convention (GENEVA III), the terrorists fail the tests for legitimacy under the Customary Laws of Warfare. They do not observer the Customary Laws of Warfare, and thus have no reasonable expectation of benefiting from the Customary Laws of Warfare themselves.

Equally clearly, by both international and domestic precedents of long standing, persons waging war in violation of the Customary Laws of Warfare are tried by Military Tribunals. Those found guilty of war crimes (violations of the Customary Laws of Warfare) are traditionally punished by death.

Thus equally clearly, the Supreme Court of the United States just stood the black letter law of a treaty ratified by the senate on its head. They also ignored the existing precedent of Ex Parte Quirren, and other precedents regarding military tribunals dating back to the American Civil War.



In addition, the Supreme Court's decision in Hamdam vs Rumsfeld raises constitutional questions about the following:


War and the War Powers Act

Existing precedent (vis Ex Parte Quirren) regarding military tribunals

Impeded the War Powers of the Executive



Whence from Here

What remains are a lot of bad, and worse, options.


Supreme Court as Final Arbiter

The President can simply accept and enforce the Supreme Court's ruling as entered. This will remove the ability of the United States to interrogate illegal combatants by granting them the privileged status and treatment heretofore reserved for legitimate Prisoners of War. This will in turn hamper the intelligence collection efforts in the ongoing war, and encourage the Executive Branch to continue and expand the rumored extraordinary rendition programs.


The Jackson Precedent

The President can simply ignore the Supreme Court's ruling. There is precedent for the edicts of the Supreme Court being so ignored, but this would result in a prompt and contentious Constitutional crises.


Legislation

The Congress can create and pass legislation which specifically exempts from U. S. Criminal Jurisdiction non-US Persons captured in battle who do not pass the tests of GENEVA III, and authorize the Commander in Chief to form tribunals to try such individuals as war criminals. The fact that the five robed dictators already ignored such legislation will likely result in a Constitutional crisis here as well.


Stop Taking Prisoners

Rather than warehouse enemy illegal combatants until the end of hostilities (the stated preference of the gang of five), there may be less effort taken to accept surrenders from terrorists encountered on the field.

None of these solutions is optimal, and I fear that Wretchard may be prophetic:

Hamadan, I think, may come to be regarded by future historians as a blow against the Geneva Conventions. Not because anyone will disobey them; but because their fulfillment -- as fulfilled they now must be -- will have the effect of undermining the very institutions on which they are based; of reinforcing not reciprocity but asymmetry in battlefield etiquette. In a word, of producing exactly the opposite of their reason for existence. If so then in some strange way Hamadan will have performed a necessary function. Making it impossible to win the War on the cheap it will make it necessary to win it -- if that is still possible -- in the old way: in fear, doubt, pain, despair and finally, if victory is granted, in surprised gratitude.