Thursday, June 14, 2007

Enemy Combatant

I'm not satisfied that any of this is definitive, but I've done a little digging (googling, actually) into the issue of 'enemy combatant,' and this is what I've come up with.

The term seems to have originated in Ex Parte Quirin, a habeas case involving German born persons all of whom had lived in the US prior to WWII. (The General Counsel of the Department of Defense rested his argument/definition on Quirin in December, 2002. I can't find anything, or anyone, who cites a use or definition of the term earlier than Quirin.) There was a citizenship question for at least one defendant, but the Court ruled that issue irrelevant in light of its holding. All the defendants were brought to the US in a German U-boat and smuggled into the country with the aim of furthering the German war effort. If I read the opinion correctly, after they were captured, FDR responded:

The President, as President and Commander in Chief of the Army and Navy, by Order of July 2, 1942, appointed a Military Commission and directed it to try petitioners for offenses against the law of war and the Articles of War, and prescribed regulations for the procedure on the trial and for review of the record of the trial and of any judgment or sentence of the Commission. On the same day, by Proclamation, the President declared that 'all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals'.

The Proclamation also stated in terms that all such persons were denied access to the courts.
For "Articles of War" we would, today, read "UCMJ." Part of the issue raised by the defendants was the legality of this Presidential Order. They argued that they must be tried in a civilian court, that the President had no authority to declare their cases could only be heard under the Articles of War in a military court. The Supreme Court disagreed, in part because:

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.
Note the Court uses the term "unlawful belligerent." A whole 'nother post (or two!) rests in the transition we've made since World War II from "War Department" to "Defense Department," from "Articles of War" to "Uniform Code of Military Justice," and from "unlawful belligerent" to "unlawful combatant." Euphemism makes so many foul things so much more palatable.

That's as much of Quirin as is relevant, here. Whether Quirin gives the President the power he claims today, is quite another matter. According to Wikipedia (I told you this was not carefully researched!), pursuant to AUMF, Bush, on November 13, 2001, issued "a Presidential Military Order: 'Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism' ". This order specifically found that:

Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.
And the order basically covers anyone who is not a US citizen:

The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit,
acts of international terrorism, or acts in preparation therefor,
that have caused, threaten to cause, or have as their aim to
cause, injury to or adverse effects on the United States, its
citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order;


(2) it is in the interest of the United States that such individual
be subject to this order.
It also, by the way, gives an extraordinary amount of power to the Secretary of Defense, and is clearly the basis for the "black prisons" in Europe:

Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be --

(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;

(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;

(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;

(d) allowed the free exercise of religion consistent with the requirements of such detention; and

(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.
The Pentagon, 4 years later, issued a broader, much more comprehensive definition of "enemy combatant." Which may explain why the "black prisons" were run by the CIA. As for the application of this order only to US citizens, the 4th Circuit Court of Appeals soon ruled that the President had the power to declare them "enemy combatants," too. That was the Hamdi case, where the Supreme Court reversed and remanded to allow Hamdi "a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." Which puts the recent 4th Circuit ruling in a very interesting light, indeed.

We've been down this road once or twice before; and I don't think the ride is getting any smoother for Gonzales or his boss. But it's pretty clear "enemy combatant" means "Anyone I want it to mean," if you're the President. It's also clear the courts are less and less impressed with that claim of authority, the further away we get from 9/11.


A case in point, if only because it involves the issues of imprisonment, judges, and the 4th Circuit, again:

Walton never appeared to waver from his opinion that a delay was unwarranted. After 12 prominent law professors filed documents supporting Libby's request, the judge waved it off as "not something I would expect from a first-year in law school."

He also said he received several "angry, harassing, mean-spirited" letters and phone calls following his sentencing but said they wouldn't factor into his decision.

Libby is the highest ranking government official ordered to prison since the Iran Contra affair. His monthlong trial offered a rare glimpse into the White House in the early days of the Iraq war.

Trial testimony showed that Cheney was eager to beat back criticism of prewar intelligence. One of the administration's most outspoken critics in mid-2003 was former Ambassador Joseph Wilson.

Amid a flury of news coverage of that criticism, Bush administration officials leaked to reporters that fact that Wilson's wife, Valerie Plame, worked as an undercover analyst for CIA. That disclosure in a syndicated newspaper column touched off a leak investigation that brought senior White House officials, including Bush and Cheney, in for questioning.

Libby argued he had a good chance of persuading an appeals court that, when Attorney General John Ashcroft and other senior Justice Department officials recused themselves from the leak investigation, they gave Fitzgerald unconstitutional and unchecked authority.

Walton was skeptical, saying the alternative was to put someone with White House ties in charge of an investigation into the highest levels of the Bush administration.

"If that's going to be how we have to operate, our system is going to be in serious trouble with the average Joe on the street who thinks the system is unfair already," Walton said.
Federal judges are ferociously independent. Any judge tends to rule his courtroom like a fiefdom, the better to assure you the full weight of the State is behind her/him. But I've seen state judges intimidated by public figure (like former state AG's), although I've seen state judges who don't give a wet snap for any lawyer in their courtroom, because they treat all of them equally.

But Federal judge simply don't intimidate. My first brush with one was in a complex products liability case involving the fairly novel (at the time) question of holding a defense contractor (McDonnell Douglas) liable for the design of an ejector seat on an A-10 "Warthog" that broke the pilot's neck when he had to eject. Both sides figured the trial would go for weeks, with all the experts and evidence they'd need to present on either product design, or how the manufacturer had built what the Pentagon had ordered (it's a complex process, getting a military plane into commission). The Federal judge gave them one week. No more. Two and a half days for the plaintiff (IIRC), and a day apiece, or so, for the two defendants (MCDouglas and Fairchild, the builder of the plane).

Federal judges do things their way. For which we should all be grateful. What makes me say that? The last line of the article:

Walton is a Republican judge whom Bush put on the bench in his first term.
I'm not jumping for joy that Scooter Libby is going to jail. I just want the laws applied to everyone, equally. When a Bush appointee and I can agree on that, there is at least reason to expect signs of hope from our legal system. The support for the legal positions of this Administration just continue to erode.

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