by John Yoo
6
GUANTANAMO BAY
Before September 11, and without knowing it, we had already captured our first enemy combatant in the war against al Qaeda: Zacarias Moussaoui. Originally held on immigration violations, Moussaoui was soon discovered to be an al Qaeda operative and charged with federal terrorism crimes. After 9/11 and the invasion of Afghanistan, the capture of other al Qaeda and related fighters followed--John Walker Lindh, Yaser Esam Hamdi, Jose Padilla, and several hundred others were soon brought in by U.S. military forces, the intelligence services, and our Northern Alliance allies. After weeks of discussion between the Defense, State, and Justice Departments, the CIA, and the National Security Council, they were sent to the Naval Station at Guantanamo Bay. There, I witnessed the arrival of the first dozen al Qaeda and Taliban in January 2002. At its peak, Gitmo held almost nine hundred detainees. The Defense Department has since released several hundred to the custody of their own governments. As of this writing roughly four hundred remain.
Even as these detainees arrived, critics of the war on terrorism began to demand that the criminal justice system be used to try al Qaeda and Taliban prisoners. In the criminal justice world, detention promotes punishment of a criminal, his removal from society, and deterrence of other criminal conduct. But 9/11 ushered in a war. The rules of war permit the capture and detention of the enemy without trial, because the purpose of detention is to remove combatants from action. Critics say that the United States has simply made up the term "enemy combatant." This is untrue. The rules of war have always recognized enemy combatants as those who fight on behalf of the enemy, and warring nations have always been permitted to imprison them. No trial is required because the detainees are not being held as a punishment for a crime; they are held until the end of hostilities, and then released. In the summer of 2004, the Supreme Court recognized this explicitly, when it found that "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war."1
In no earlier American war has our legal system opened the courtroom doors to enemy prisoners. The only exception was for citizens, and only then for the limited purpose of determining that they were in fact in league with the enemy. Hundreds of thousands of enemy prisoners of war were captured in Vietnam, Korea, and World Wars I or II, and their imprisonment was never reviewed by an American court. Imagine the chaos if lawyers descended en masse, demanding that evidence against enemy detainees be preserved under a rigorous chain of custody and that officers and soldiers be cross-examined about their battlefield decisions.
Human rights lawyers, law professors, and activists who oppose the war on terror nevertheless have filed many lawsuits. They argue variously that the United States is not really at war, that captured terrorists ought to be charged and be given American court hearings, and if not, that the law requires their release. They seek a return to the exclusive use of the criminal justice system to fight terrorism, as was the practice on September 10, 2001. In a sign of the pervasive power of the judiciary in our nation, these contentions have in the past few years been litigated all the way to the Supreme Court.
The very fact that such lawsuits arrived at the Supreme Court's doorstep was read by some as a defeat for the Bush administration's view that the war on terror was actually a war. Administration policies were indeed checked in two Supreme Court cases. In Rasul v. Bush, for the first time in history, the federal courts reviewed the grounds for detaining alien enemy combatants held not only inside but outside the United States.2 In Hamdi v. Rumsfeld, the Court required that American citizens captured abroad must have access to a lawyer and a fair hearing before a neutral judge.3
This was an unprecedented insertion of the federal courts into military affairs, overruling a Supreme Court precedent on the exact point dating from the end of World War II.4 But these rulings also confirmed as a matter of law that the war against the al Qaeda terrorist network and the Taliban militia was indeed a war, that it was authorized by Congress, and that it was not solely a criminal justice matter. These rulings in fact left the executive branch with great flexibility. The pleas of administration opponents were not granted and the justices had not turned back the clock. Rather the Court recognized implicitly that the United States can use all of the tools of war to fight this new kind of enemy.
But the Court did assert its power rather than defer entirely to the military and the President on the question of due process for enemy combatants. It did not declare such wartime military decisions to require deference to the President and Congress, as, quite frankly, I would have preferred.
Can the judiciary make good factual and legal judgments in the middle of war? I believe this assertion of power takes courts far beyond their normal areas of expertise and risks conflict with the President and Congress. And indeed both branches would soon partially reverse the Court for pushing into matters where it didn't belong.
In the war against al Qaeda, the United States has captured enemies that fall into several categories. In previous wars, such as World War II, the enemy was defined by citizenship; the enemy was Germany,
Italy, and Japan. But al Qaeda is stateless. Our enemies don't wear uniforms, and they are not defined by national identity. Al Qaeda's members are citizens of countries with which we are at peace, including citizens of the United States itself and its allies, such as Saudi Arabia and Pakistan. Thus they are harder to detect. Al Qaeda's state-lessness necessarily means that there will be more uncertainty around detentions, as nationality alone cannot determine enemy status. There must be enough information to know that the individual has acted in association with al Qaeda to detain him as an enemy combatant.
Enemy combatants so far have fallen into four types: aliens captured and held outside the United States, such as al Qaeda and Taliban fighters caught in operations abroad; U.S. citizens who are associated with al Qaeda or the Taliban, captured abroad; aliens detained within the United States; and U.S. citizens and permanent resident aliens detained in the United States. The first category includes detainees currently held at the naval base in Guantanamo Bay, Cuba, none of whom are U.S. citizens or resident aliens. John Walker Lindh, an American citizen from the San Francisco Bay Area who was captured in Afghanistan while fighting with the Taliban, and Yaser Esam Hamdi, a Saudi Arabian citizen born in Louisiana and also captured in Afghanistan with the Taliban, fall into the second category. The third category includes Moussaoui, a French citizen convicted of plotting additional 9/11-related terrorist killings. In the fourth category is Jose Padilla, an American citizen who had met with al Qaeda leaders and was captured for attempting to enter Chicago from abroad to explode a radioactive dirty bomb.
Unlike enemies in most previous American wars, al Qaeda is multinational and its reach is global. We fight everywhere. But enemy captures on U.S. soil are hardly unknown. In the Civil War, every enemy combatant was an American citizen. In World War II, some Americans joined the German, Italian, or Japanese armies. When detained, they were not afforded any rights under the American criminal justice system, but instead were treated as enemy combatants. They were never tried for a crime, but were held until World War II had ended.
So why was John Walker Lindh tried? Lindh, a convert to Islam, journeyed in May 2001 to Pakistan to attend a military training camp run by Harakat ul-Mujahideen, an Islamic terrorist group.5 He trained in jihad and the use of weapons, and soon expressed a wish to fight with the Taliban against the Northern Alliance in Afghanistan. In June 2001 he arrived at al Farouq training camp outside Kandahar, Afghanistan, a central al Qaeda hub, the same camp that housed several members of the Buffalo cell as well as David Hicks, an Australian now held at Guantanamo Bay. Lindh recieved advance arms and explosives training, as well as training in orienteering, navigation, and battlefield combat. On one of three visits to the camp, bin Laden personally spoke with Lindh for about five minutes. Lindh was asked to participate in operations in the United States, Europe, or Israel, but he reiterated his desire to fight in Afghan
istan.
Armed with AK-47s, he and 150 compatriots reached the front line with the Northern Alliance shortly before September 11. In November, he retreated with his unit to Kunduz, where he surrendered to the Northern Alliance. On November 24, he was transported to the prison near Mazar-e-Sharif, where he was interviewed by CIA agent Johnny Micheal Spann but refused to say anything. The next day, several prisoners overpowered their guards and killed Spann. Lindh was shot in the melee. After a week, the prisoners surrendered; Lindh was taken into custody and sent to a medical base for treatment. He was interrogated by the military and the FBI in Afghanistan, where he waived his Miranda rights and was flown to the United States for trial.
Lindh's status as an American citizen, and the circumstances of his capture less than three months after the 9/11 attacks, made him the first enemy combatant of the war who received sustained attention at high levels of the government. He was clearly an enemy combatant, detained under the rules of war along with other enemy forces. But there was never any doubt that the Justice Department would take custody of Lindh and conduct a criminal trial. Attorney General Ashcroft believed it important to show that the criminal justice system could still serve an important function in trying terrorists. Neither the Defense Department nor the intelligence agencies protested. They agreed that an American who had joined to fight on the side of the Taliban and al Qaeda, but did not appear to pose an ongoing threat, would be better handled through trial. Deciding to send Lindh to a criminal trial underscored that war and the criminal justice system are not mutually exclusive. Which system to use depends on context and is not prescribed by law.
Lindh's attorneys argued that combatants in the Afghanistan war should be covered by the Geneva Conventions, which would have ruled out criminal sentences such as the death penalty. The trial judge rejected the claim on the grounds that neither al Qaeda nor the Taliban were combatants entitled to POW status.6 This ruling confirmed the legal position the Bush administration adopted in January 2002 that Geneva did not apply to al Qaeda or to its allies, the Taliban, who were at best outlaw warlords in Afghanistan.
Lindh could not be tried in a military commission because President Bush had reserved its use only for enemy aliens. As an American citizen Lindh had clearly violated federal laws prohibiting the provision of "material support and resources" to terrorist groups, the federal prosecutor's central tool in domestic antiterror cases after 9/11. Material support includes providing "any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials."7 Convictions carry sentences up to life. Lindh's service to the Taliban against American forces and his involvement in the prison outbreak that led to the death of Agent Spann also made him subject to the charge of attempting to kill Americans, a violation of federal law that could have justified the death penalty.
The decision to prosecute Lindh was a policy and prosecutorial choice. We might have chosen to detain Lindh and hold him as an enemy combatant, since citizens working for the enemy can be detained. But, as far as I know, every member of the Bush administration in this war assumed that any American captured fighting against the United States would be brought back home either to be tried in federal court or to be held as an enemy combatant in military detention, not kept in detainee camps in Afghanistan or at Guantanamo Bay. Any American al Qaeda would remain a citizen, although some of my Justice Department colleagues professed amazement that our law did not automatically strip Lindh of citizenship for fighting against his country.
The Justice Department chose to try Lindh in Alexandria, Virginia, known as the "rocket docket" for its reputation of moving cases along at a speedy pace. This is the federal district court, after all, that includes the Pentagon. Judge T. S. Ellis, who presided over the case, had a reputation as a smart, no-nonsense judge who would not tolerate any publicity stunts or courtroom delaying tactics. Nonetheless, Lindh's lawyers--led by colorful and capable San Francisco attorney James Brosnahan--filed various motions that threatened to tie the case up in lengthy battles, notably with their demands to interview various al Qaeda leaders who were, by then, in American custody.
Delays can be costly. Prosecution can create leverage to obtain cooperation as part of a plea bargain, but to have any value the agreement must be struck quickly. After Judge Ellis rejected the most difficult Lindh defense motions in July 2002, a deal was finally reached in October in which he agreed to cooperate. Lindh pled guilty to providing services to the Taliban and carrying explosives during the commission of a felony. Taking responsibility for his actions and expressing remorse at sentencing helped him get only twenty years rather than life. "I made a mistake by joining the Taliban," he told the court. "I want the court to know, and I want the American people to know, that had I realized then what I know now about the Taliban, I would never have joined them."8
The second enemy combatant case that demanded high-level attention was that of Yaser Hamdi. Hamdi said he had gone to Afghanistan in the summer of 2000 to fight for the Taliban and, like Lindh, had received weapons training and joined a unit that engaged Northern Alliance forces near Kunduz, Afghanistan, to whom Hamdi surrendered in late 2001. Like Lindh, he was sent at first to the Mazar-e-Sharif prison, then on to another prison in Sheberghan. There he told U.S. intelligence after interrogation that he was a Saudi citizen born in the United States. In January 2002, the military transferred Hamdi to Guantanamo Bay. A birth certificate was found showing that Hamdi was born in Baton Rouge, Louisiana, where his family had lived temporarily when his father worked in the oil industry. He was transferred to the U.S. Naval Brig in Charleston, South Carolina, on April 5, 2002, a beneficiary of the Bush administration policy decision made at the time of Lindh's capture that all Americans captured in the war on terrorism would be brought back to the United States.
It took the federal public defender in the eastern district of Virginia, who was also defending Zacarias Moussaoui, only a few weeks to file a federal case seeking Hamdi's release. Senior District Judge Robert Doumar was assigned the case. From the start, he seemed determined to make life difficult for the government. Doumar allowed the federal public defender to file an initial habeas corpus petition and ordered that Hamdi meet with a lawyer within days. In the Justice Department, we felt that Judge Doumar was trying to turn the case into his own personal crusade. For one thing, he had allowed the federal public defender to walk into court and claim that Hamdi ought to be freed. Then Doumar found that an enemy combatant had a right to a lawyer and unmonitored communications. We took an emergency appeal. The Court of Appeals for the Fourth Circuit, which includes Virginia, dismissed the case under the doctrine known as "standing," that is, on the grounds that the federal public defender could not represent an enemy combatant because he enjoyed no relationship with Hamdi, did not suffer any personal injury from alleged violation of Hamdi's legal rights, and so could not bring a case on his behalf.9
In the meantime, Hamdi's father turned up, perhaps encouraged by lawyers set on challenging the administration's war policies. He filed a habeas petition on behalf of his son, curing the lack of standing. Hamdi's father claimed that his son went to Afghanistan only two months before the 9/11 attacks to perform "relief work," and was trapped in Afghanistan once fighting began.10 Determined to treat Hamdi like a normal civilian rather than as an enemy combatant, the district judge again immediately ordered that Hamdi have unrestricted access to a lawyer. The Justice Department again took an immediate appeal and again the appeals judges reversed, saying that the civilian court inquiry into Hamdi's status was to be "limited and deferential" and noting "that if Hamdi is indeed an 'enemy combatant' who was captured during hostilities in Afghanistan, the government's pr
esent detention of him is a lawful one."11
Michael Mobbs, a special adviser to the undersecretary of defense, submitted a declaration recounting the facts of Hamdi's capture that left Judge Doumar unsatisfied. In an August 2002 hearing, Doumar said he would take the Mobbs Declaration and "pick it apart." Doumar then proceeded to question whether "Hamdi ever fired a weapon" and whether Mobbs was in fact a U.S. government employee. He then ordered the government to produce copies of all Hamdi's statements, the notes taken from any interviews with Hamdi, the names and addresses of all the interrogators who'd questioned Hamdi, statements by members of the Northern Alliance regarding Hamdi, and a list of all dates and locations of Hamdi's detention. War or no war, this judge was clearly bent on nitpicking every aspect of the military's decision-making. When again ordered by the appeals panel to focus on the sufficiency of the Mobbs Declaration, Judge Doumar ruled that it fell "far short" of the standard justifying detention, being "little more than the government's say-so."12
The Justice Department immediately appealed. Judge J. Harvie Wilkinson, former professor at the University of Virginia Law School and a jurist on many Republican short lists for the Supreme Court, presided. Frank Dunham, the very able federal public defender, represented Hamdi. Paul Clement, the deputy solicitor general, argued on behalf of the government. Clement was an old friend from the year we had clerked together for Judge Silberman. A Wisconsin native, he had gone to Georgetown and then Harvard Law School, and following our year with Silberman had clerked for Justice Scalia. He had served as Senator Ashcroft's counsel on the Judiciary Committee, and Ashcroft's confidence in his legal judgment was unlimited.