A War Like No Other (5 page)

The legal tests of the “unlawful combatant” designation have been fragmentary. One test involved the detention of an American citizen, Jose Padilla, who is accused of planning, on behalf of al-Qaeda, to engage in terrorist acts in the United States, including the detonation of a device that would disperse radioactive material (a so-called dirty bomb). Upon arriving in Chicago from Pakistan on May 8, 2002, Padilla was arrested under a warrant requiring him to appear as a material witness before a grand jury convened in the Southern District of New York. He was transferred from Chicago to New York, and counsel was appointed to represent him. Padilla consulted with counsel soon after, and the day before his court appearance the Department of Defense took custody of him without notifying his counsel and transferred him to a naval brig in Charleston, South Carolina, where he was held incommunicado on the theory that he is an unlawful combatant.

Acting as Padilla’s next friend, the counsel who had previously been appointed to represent him sought a writ of habeas corpus in the Southern District of New York. The government responded with an affidavit once again signed by Michael Mobbs. This time, Mobbs’s affidavit detailed the basis of the claim concerning Padilla’s affiliation with al-Qaeda and his plans to engage in acts of terrorism. As a substantive matter, District Judge Michael B. Mukasey was willing to assume that all operatives of al-Qaeda, even those who are American citizens, are not entitled to the protection afforded to lawful combatants. According to Mukasey, neither the Third Geneva Convention nor general principles of international law confer prisoner-of-war status on members of terrorist organizations such as al-Qaeda. They could be treated as unlawful combatants and could be detained
indefinitely without ever being charged with a crime. But he insisted on the need to hold a hearing to determine whether Padilla was in fact an operative of al-Qaeda. In contrast to the Fourth Circuit in
Hamdi,
Judge Mukasey was not prepared to make the Mobbs affidavit dispositive. The deference that the executive properly deserved was to be reflected in the standard of review—once again, some evidence. Judge Mukasey required that an evidentiary hearing be held on the habeas corpus petition and that counsel be given access to Padilla for purposes of preparing for that hearing.

This order was first entered on December 4, 2002.
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By March 11, 2003, shortly before the symposium, Judge Mukasey found it necessary to reissue that order. The government had not yet allowed counsel to consult with Padilla. Defending its recalcitrance, the government submitted an affidavit by the director of the Defense Intelligence Agency, Vice Admiral Lowell E. Jacoby, claiming that the total isolation of Padilla for this extended period—he had already been held incommunicado for ten months—was necessary to cultivate in Padilla a complete sense of dependency upon his interrogators and to convince him of the utter hopelessness of his situation. The District Court was unwilling to acquiesce to this demand—certainly an affront to the basic American tradition against coerced confessions. Judge Mukasey once again explained why Padilla had a right to present facts at the habeas corpus hearing and why access to counsel was necessary for that purpose. He reissued his previous order.
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The government immediately appealed. On December 18, 2003, the Second Circuit went one step beyond Judge Mukasey.
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It repudiated Judge Mukasey’s substantive theory and held that even if the government’s allegations concerning Padilla were true, he could not be detained as a prisoner without being formally charged with a violation of some federal criminal statute. The Second Circuit relied on 18 U.S.C. § 4001(a), which
provides that no United States citizen can be detained without specific authorization by Congress. Disagreeing with Judge Mukasey, the Second Circuit held that the resolution permitting the use of force to fight the War on Terror—the resolution that had been treated as constituting the declaration of war against Afghanistan—did not provide the authorization required by Section 4001(a). Although this ruling denied the government the prerogatives it sought by classifying Padilla as an unlawful enemy combatant, it should be emphasized that Padilla is an American citizen captured not in the battlefield but at a Chicago airport and held in South Carolina. The Second Circuit’s ruling did not apply to noncitizens, or even to Americans captured in Afghanistan or any other battlefield.

A second test of the government’s position regarding unlawful combatants occurred in the case of another American citizen—John Walker Lindh—who was seized in Afghanistan.
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Unlike Hamdi or the petitioners in
Al Odah,
Lindh acknowledged that he was a soldier of the Taliban. He denied that he had anything to do with al-Qaeda, and the government concluded that little was to be gained by interrogating him in the style of Padilla, Hamdi, or the detainees in Guantánamo. Instead, the government chose to try him for various federal crimes—most notably, conspiracy to kill American nationals—and selected as its venue the United States District Court for the Eastern District of Virginia. Eventually, he was allowed to consult with counsel.

In this case, the government deployed the “unlawful combatant” category to get out from under the principle that “it is no ‘crime’ to be a soldier”
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—lawful combatants cannot be tried for ordinary acts of violence during military operations, but unlawful combatants can. Attorneys for Lindh denied that he was an unlawful combatant, and on that ground moved to dismiss the charge of conspiring to kill American nationals. The motion was denied. Lindh then pleaded guilty to lesser charges—providing
services to the Taliban and carrying explosives during the commission of a felony—and was sentenced to twenty years in prison.
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Like Damocles’ sword, the “unlawful enemy combatant” designation and the judicial endorsement of it will remain over Lindh’s head until the day he dies. The predicate for the criminal charge was that Lindh is an unlawful combatant. So if the plea agreement is challenged and set aside, or if it is determined that Lindh breached his obligations under the agreement and the government is thus freed of its obligations under it, the government can pursue the options it originally had by virtue of Lindh’s status as an unlawful combatant. It can go forward with the criminal prosecution for his combat activities in Afghanistan, try him for those activities before a military tribunal at risk of execution, or hold him incommunicado indefinitely.

Similar dangers are present even if the plea agreement remains in force. In paragraph 21 of the agreement, the government renounced any right it has to treat Lindh as an unlawful combatant, but that provision contains one notable—indeed astonishing—limitation. It permits the government to treat Lindh as an unlawful combatant for his combat activities in Afghanistan if, at any time during the rest of his life, Lindh violates either of two federal criminal statutes. One statute, the scope of which was enlarged by the USA PATRIOT Act, defines the federal crime of terrorism; the other prohibits trade and financial transactions with a nation against whom the president has declared a national emergency and imposed a boycott. The determination that Lindh has violated either of these statutes, and the resultant reinstitution of his unlawful combatant status, is, according to paragraph 21, to be made by the government, not a court. Even after the government makes this determination, presumably Lindh cannot be prosecuted in federal court for his combat activities in Afghanistan; under the plea agreement, all
the charges other than the ones for which he was sentenced were dismissed. But the government can pursue the other strategies it had previously agreed to forgo—trying Lindh before a military tribunal at risk of execution for having fought for the Taliban or, perhaps more plausibly, holding him incommunicado indefinitely.

In denying Lindh’s initial motion to dismiss, District Judge T. S. Ellis III invoked the definition of lawful combatants set forth in Article 4 of the Third Geneva Convention.
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He operated on the premise that a combatant who does not meet this definition would be deprived of the protection of that Convention and treated as an unlawful combatant, thereby receiving only the minimal protection of the Fourth Convention.

Actually, Article 4 of the Third Convention establishes several categories of lawful combatants. According to Section 1 of Article 4, members of the armed forces of a party to a conflict are, without anything more, treated as lawful combatants. In Section 3, the same rule is applied even when the state detaining the prisoners does not formally recognize the government to which the prisoners give their allegiance. Four criteria are, however, set forth in Section 2 of Article 4 for determining whether members of a militia or volunteer corps not part of the armed forces of a party to a conflict are lawful combatants. That section provides that members of a militia or volunteer corps not part of the armed forces shall be treated as lawful combatants if the militia or volunteer corps (1) is commanded by a person responsible for his subordinates; (2) wears uniforms or an insignia recognizable at a distance; (3) carries arms openly; and (4) conducts its operations in accordance with the laws and customs of war.

Offhand, it would seem that Lindh was a lawful combatant simply by virtue of the fact that he was a member of the Taliban army. Under this approach, he would fall within Section 3,
as opposed to Section 1, because the United States never recognized the Taliban. In any event, there would be no need to make the inquiry called for in Section 2. But Judge Ellis rejected this approach. He held that “all armed forces or militias, regular and irregular, must meet the four criteria” of Section 2 if their members are to be treated as lawful combatants, thereby obliterating the distinction between Sections 1 and 3, on the one hand, and Section 2 on the other.
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Not only does this ruling violate the express terms of the Third Convention, it is also at odds with the humanitarian purposes of the convention. The Third Convention seeks to establish a general rule endowing the members of the armed forces of a party to a conflict or militias that are part of the armed forces of that party with lawful combatant status. Granted, a militia that otherwise would fall within Section 2 should not be entitled to the benefit of Sections 1 or 3 simply by calling itself an armed force. But the responsibility is on the court to determine whether, in fact, the combatants fall into those sections. It is precisely this inquiry that Judge Ellis failed to undertake.

When it came time to apply the four criteria of Section 2, Judge Ellis did not make his judgment on the basis of what Lindh or his unit or the militia of which he was a part did. Rather, he made a judgment about what the Taliban army did in its entirety, and then applied that judgment to everyone who fought for the Taliban, including Lindh. This blanket approach compounds Judge Ellis’s initial error—subjecting regular armed forces to the four criteria of Section 2—for it does not permit any distinction among the various units that comprise the fighting force of a nation at war. Once again, such an approach contravenes the humanitarian purposes of the Geneva Convention.

The evidence that Judge Ellis marshaled in support of his conclusion about the Taliban also seems questionable. There was no contention that the Taliban carried concealed weapons.
Based on two secondary sources, one a book published in 1999, the other an article in the
Wall Street Journal
on October 26, 2001, Judge Ellis concluded that Taliban soldiers did not typically wear uniforms or insignia and, further, that the Taliban army had no internal system of military command and control. This last conclusion does not seem entirely plausible, but putting that concern to one side, the case for classifying the entire Taliban army as consisting of unlawful combatants because they lacked uniforms or a command structure still seems strained.

As a purely formal matter, the Section 2 criteria are stated in the conjunctive, which means that by proving that the Taliban failed to satisfy any single criterion—no uniform or no command structure—grounds would be established for classifying the Taliban as unlawful combatants. This wording, however, is derived from the fact that Section 2 seeks to determine whether a militia that is not part of the armed forces should be given the same status that the armed forces receive under either Section 1 or 3. But if, as Judge Ellis holds, the criteria are to be used more globally, to determine whether members of any armed forces are to be treated as lawful combatants, then it would be more appropriate to apply the criteria set forth in Section 2 in a way that reflects the underlying purposes of the Third Convention and a proper understanding of what turns on the classification. As used by the United States, the unlawful-combatant designation gives the nation holding the prisoner vast, almost boundless power over him, and it would seem odd that such power can derive simply from the fact that the Taliban lacked uniforms or an appropriate command and control system. It must also presuppose that the Taliban army failed to conduct their operations in accordance with the laws and customs of war or, put more simply, that they were guilty of war crimes.

Judge Ellis did in fact conclude that “the Taliban regularly targeted civilian populations.” Yet he cited as his only evidence
two books that were not about the conduct of the war or how the Taliban fought but about how the Taliban came to power. Such an approach has broad and sweeping implications—probably every tyrant targets civilians in his drive to seize and maintain power—and is alien to the very purposes of the Geneva Conventions, which were intended, after all, to temper the treatment of prisoners. At the heart of the Geneva Conventions is a concern with the way wars are fought, not how the governments at war obtained their power. Under Section 2, lawful-combatant status requires that the militia conduct its “operations” in accordance with the laws and customs of war, and the word “operations” should have been construed with this purpose in mind.