A War Like No Other (4 page)

Al Odah
denied aliens held in Guantánamo the right ever to make their case—that they were not soldiers but humanitarian workers or were in the region for purely personal reasons and thus were being held illegally—in the only court that might have jurisdiction to hear that claim.
Al Odah
created what an English jurist has called a “legal black hole.”
¹⁰
The court’s position, I suspect, was not derived from a proper regard for the notion of
sovereignty but rather sprang from a fear of interfering with the executive in the conduct of the war in Afghanistan or, for that matter, any war. A similar dynamic led the Court of Appeals for the Fourth Circuit in
Hamdi v. Rumsfeld,
decided only two months before, on January 8, 2003, to shield the government from having to explain and justify its detention of another prisoner seized in the course of the war in Afghanistan.
¹¹
This time, however, the prisoner—Yaser Esam Hamdi—was an American citizen who was held not in Guantánamo but in Norfolk, Virginia.

Hamdi was born in Baton Rouge, Louisiana, and was in his twenties at the time of his capture in Afghanistan. He was seized by the Northern Alliance and then turned over to the United States forces. He was initially held by the United States in Kandahar, then transferred to Guantánamo, and finally moved to the United States Naval Brig off the coast of Norfolk. Like the prisoners in Guantánamo, he was held incommunicado, but Hamdi’s father learned of his detention and, acting on his behalf, brought a habeas proceeding to contest the legality of the detention. Hamdi had not been charged with a crime. Although the United States held him as an enemy combatant, the petition filed on his behalf denied that he had fought for the Taliban or al-Qaeda and maintained that it was a denial of due process of law to detain him. Not everyone in Afghanistan, not even every American in Afghanistan, is an enemy combatant. As the petitioners explained in
Al Odah,
some go for personal or humanitarian reasons and may be improperly seized by the United States or its allies.

According to the Bush administration, anyone who fights against the United States stands outside the protection of the Constitution. He can be held incommunicado, denied the assistance of counsel, and interrogated in ways manifestly coercive. He need never be charged with a crime. Some may question
whether the United States can ever treat an American citizen or, for that matter, any human being in such a way. Before even reaching that question, however, some judgment needs to be made as to whether the person being held—citizen or not—is in fact an enemy combatant, for that is the fact upon which the right of the government to detain him hinges. Hamdi’s status as a combatant—contested in the habeas petition—is akin to a jurisdictional fact, and must be decided by a federal court in its role as the ultimate guardian of the Constitution. A federal court must assume responsibility for Hamdi’s status and hear facts sufficient for it to assume responsibility for that judgment.

Initially, the government refused to respond on the merits to Hamdi’s petition. This was deemed unacceptable by both the District Court and the Court of Appeals.
¹²
On remand, the government filed a motion to dismiss the petition and attached an affidavit that addressed the question of Hamdi’s status as a combatant. The affidavit was sworn to and signed by an official in the Department of Defense named Michael Mobbs, who was special advisor to the under secretary of defense for policy. Mobbs did not indicate the sources of his information. He nonetheless declared that the military determined that Hamdi had traveled to Afghanistan in July or August 2001 and that he thereafter affiliated with the Taliban and received weapons training. Mobbs also stated in his affidavit that Hamdi had been engaged in a battle with the Northern Alliance and that he was taken into custody, with an AK-47 in his possession, when his unit surrendered. The affidavit described the transfer of Hamdi from one prison to another, and concluded by saying that interviews with Hamdi confirmed the details of his capture.

A hearing was then held before District Judge Robert G. Doumar on the sufficiency of the Mobbs affidavit. In the course of that hearing, Judge Doumar expressed his view—the basis for that view is not at all clear to me—that Hamdi had a firearm
at the time of his capture and that he had originally gone to Afghanistan in July or August 2001 to join the Taliban. Judge Doumar made no written findings on these issues and, even more significantly, expressed no view as to whether Hamdi had fought against the United States following the invasion in October 2001. Judge Doumar believed that the claim of the government that Hamdi had fought against the United States was still very much in dispute, and ruled that some kind of hearing on that issue was necessary. He also ruled that in preparation for that hearing, the government had to turn over copies of Hamdi’s statements and notes taken from interviews, the names and location of all those who questioned Hamdi, and any statements made by members of the Northern Alliance concerning the capture of Hamdi.

The Court of Appeals would have none of this. In an opinion by Chief Judge J. Harvie Wilkinson, the court held that the Mobbs affidavit was in and of itself sufficient to establish that Hamdi was an enemy combatant and that no further inquiry was necessary. Accordingly, the Court of Appeals refused to allow Hamdi to appear in court to contest Mobbs’s affidavit. It relieved Mobbs of the obligation to take the witness stand, either to repeat his sworn statement in open court or to be questioned by Hamdi’s lawyer or the trial judge. It did not allow Hamdi’s lawyers to engage in any discovery whatsoever or to consult with Hamdi himself. Although the Fourth Circuit in
Hamdi
went a step beyond the D.C. Circuit in
Al Odah
—it at least took jurisdiction and required a response to the habeas petition by the government—it also repudiated the most elementary understanding of the judiciary’s responsibility under the Constitution.

War is a perilous undertaking for all involved, and requires swift and decisive action by those in charge of field operations. Some deference must be given to the executive in the conduct of war, including its judgment as to whom to detain in the course of battle. This deference can be reflected in the kind of hearing
that is held, the scope of discovery, and, perhaps most significantly, the standard of review that is applied to judge the government’s action. The executive might be required to show only, as the government itself proposed, that there is some evidence for detaining the individual as an enemy combatant. However, the Fourth Circuit specifically rejected even this lax standard of review because it presupposes some factual inquiry as to the prisoner’s status. Without such an inquiry, it is impossible to determine whether there is any evidence to detain the prisoner.

Although affidavits are often used in civil litigation, the Mobbs affidavit could not be regarded as supplying the kind of evidence that might justify imprisonment. Commonly, affidavits are used in summary judgment practice, but only to show that there is no genuine issue of material fact, never to resolve a contested issue of fact. Moreover, the party opposing the motion for summary judgment always has an opportunity to respond to whatever affidavit may be filed in support of the motion. The affidavits used in support of a motion for summary judgment are generally confined to statements that would be admissible as testimony at trial—hardly a standard that the Mobbs affidavit, in part based on unknown sources and multiple levels of hearsay, could satisfy.

Similarly, although interlocutory injunctions are often based on affidavits, such a practice is premised on the assumption that there is no opportunity whatsoever to hold an evidentiary hearing. In addition, interlocutory injunctions are strictly limited as to time—as a general matter, temporary restraining orders last for ten days, plus one renewal, and preliminary injunctions are in force only for the pendency of the trial for permanent relief. The Mobbs affidavit—seeking to justify the continued imprisonment of Hamdi and sworn to by an official readily available to testify—cannot reap the benefit of these rules, even by analogy. Oddly, the government proposed that its action be judged
by the “some evidence” rule, but because it stood entirely on the Mobbs affidavit it could not have met that standard.

Admittedly, the line between a highly deferential standard of review—some evidence—and the position of the Fourth Circuit—essentially no review at all—may seem slight. There may be little difference in outcome. Yet I believe that there is a fundamental principle at stake. Under the “some evidence” standard, the executive is held accountable for its action and the judiciary discharges its basic responsibility to hold the government to the Constitution. Ideally, a court should make the determination whether Hamdi is an enemy combatant, for that is the justification the government offers for holding him and denying him the protection of the Bill of Rights. At the very least, the government’s claim should be tested in an evidentiary hearing. Requiring a finding that there is some evidence that Hamdi is an enemy combatant would be a step in the right direction. In contrast, under the no-review standard of the Fourth Circuit, which makes the unexamined affidavit of a government official in and of itself sufficient to deny the habeas writ, there is no basis within the law for responding to Hamdi’s grievance and for justifying his continued detention.

Chief Judge Wilkinson stressed that Hamdi was seized in “a zone of active combat in a foreign theater of conflict.”
¹³
This fact is undisputed, but it does not justify the refusal of the court to require a meaningful inquiry into Hamdi’s status. Not everyone in Afghanistan, even those with guns, fought for the Taliban or al-Qaeda against the United States. Recognizing, however, that Hamdi was captured in an active war zone does require a more precise formulation of the limits of judicial responsibility and an acknowledgment that the jurisdiction of federal courts does not extend to the battlefield. Although a person captured and held in a combat zone can contest the legality of his or her detention before a competent tribunal, in the terms of the Third
Geneva Convention, the tribunal can be a military one governed by military rules. A combat zone is ruled by a military government. Federal judges need not hold court in Afghanistan or any other battlefield.

When, however, an individual is captured in an active combat zone but later brought and held within the United States—which I contend includes Guantánamo—then the determination of his status as a combatant can and must be made by a federal court. This may seem an arbitrary distinction, turning on the happenstance of where the prisoner is detained, but I do not think it is. Rather, it reflects the theory of our Constitution. Although the Bill of Rights does not in any strong sense rule the battlefield, the actions of the United States are governed by the whole of the Constitution, including the Bill of Rights, wherever the government has effective or absolute dominion over the prison. The task of the federal judiciary is to safeguard the Constitution, and to discharge this responsibility it must make judgments about the facts and hold the hearings necessary for this purpose.

The contested issue in
Hamdi
and
Al Odah
is whether the persons detained were soldiers of the Taliban. Put another way, the immediate issue in these cases is whether the prisoners were enemy combatants or, more simply, combatants. The war in Afghanistan also brought into play a distinction between two types of combatants—lawful and unlawful. The distinction between lawful and unlawful combatants has its roots in the early twentieth century and customary international law, and was later codified in two international conventions—the Third and Fourth Geneva Conventions, both adopted in 1949.
¹⁴

A lawful combatant is the ordinary soldier engaged in an international armed conflict, who, once captured, is given prisoner-of-war status. The Third Geneva Convention provides that a lawful combatant has no obligation to give any information to his captors other than his name, rank, date of birth,
and serial number. A lawful combatant can be prosecuted for any war crimes he may commit, but not for the ordinary acts of war—for example, killing soldiers of a hostile army. Lawful combatants can expect to be repatriated at the end of the war. In contrast, the protections for unlawful combatants—for example, members of an irregular militia or volunteer corps—are significantly less extensive. The Fourth Geneva Convention provides that they be treated humanely, that their religious practices be respected, and that they not be tortured or mutilated, but they lack the strict protections of the Third Convention for lawful combatants. Even the minimal protections of the Fourth Convention are not, by the terms of the convention itself, available to prisoners who are nationals of the party holding them.

At the time of the Coral Gables symposium, it was uncertain whether the “unlawful combatant” designation would be used by the administration in the conduct of the Iraq War. After all, the war was only two days old. This uncertainty lingered, especially in the case of Saddam Hussein, captured by United States forces in November 2003. However, the administration did not declare the prisoners of the Iraq War to be unlawful combatants. A different policy was pursued in the war in Afghanistan, where the president determined that all who fought for the Taliban or al-Qaeda were unlawful combatants.
¹⁵
This decision applied to the petitioners in
Al Odah
and
Hamdi,
and, more generally, to all the prisoners—some six hundred—who have been held in Guantánamo. Many have been interrogated relentlessly, some for sixteen hours a day, and plans have been set in motion to try them before military commissions. The judges in these tribunals will be chosen by military authorities; defense counsel will be members of the armed forces (those who can afford to do so may also retain civilian counsel who have the necessary security clearance); and conversations with counsel will be monitored, presumably just for purposes of getting
information about terrorism that the interrogation has not yielded or to prevent communications between the prisoner and terrorist organizations.