by Fiss, Owen
This order was first entered on December 4, 2002.16 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.17
The government immediately appealed. On December 18, 2003, the Second Circuit went one step beyond Judge Mukasey.18 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.19 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”20—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.21
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.22 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.23 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.
What moved Judge Ellis was not, I believe, his tortured and strikingly unpersuasive application of the Third Geneva Convention, but the determination of the president that all those who resisted the United States in Afghanistan were unlawful combatants. Judge Ellis acknowledged the president’s decision and said that it was entitled to great deference, though he was meticulous in declaring a limit to this deference. As he put it, “Conclusive deference, which amounts to judicial abstention, is plainly inappropriate.”24 Yet I am left with the unmistakable impression that Judge Ellis did exactly what he said he should not do. He allowed the president’s decision to serve as a substitute for his own independent judgment. He treated the president’s decision, much as the Mobbs affidavit did in Hamdi, as sufficient in itself to determine the legality of the executive’s action. In doing so, Judge Ellis in Lindh, much as the Fourth Circuit did in Hamdi, abdicated his responsibility under the Constitution.
Such abdication has not been confined to the disposition of claims by persons captured on the battlefield. In October 2002, the Court of Appeals for the Third Circuit acquiesced in a new deportation program of the attorney general that was justified in terms of war needs, though this time it was simply the ill-defined War on Terror. The specific issue in this case—North Jersey Media Group, Inc. v. Ashcroft25—was whether newspapers or the public or even family or friends would be given access to deportation proceedings that had been designated by the attorney general as “special interest” cases. The attorney general feared that the access of the press or public might alert terrorists to the investigative tactics of the government or betray the precise knowledge that the government possessed.
The newspapers acknowledged that the right of access they claimed was only a qualified right that can be defeated by a special showing. In this context, acknowledging a right of access as a qualified right would allow the government to make a showing before the presiding judge in the deportation proceeding that special circumstances—including national security concerns—warranted closure. The presiding judge might, of course, agree with the government, but even if he or she did, the judge would be assuming responsibility for the closure. The Third Circuit, however, took that decision away from the individual judge by holding that the very designation by the executive of a national security interest in the proceeding defeated the right of access. The blanket judgment of the Third Circuit endowed the attorney general with the power to close deportation proceedings whenever he saw fit. There could be no particularized inquiry by a judge into the national security justification for closure in a specific case. Much like the Mobbs affidavit in Hamdi or the transfer of prisoners to Guantánamo, the attorney general’s designation brought the reason of the law to an end.
The tide may yet turn—let’s hope so. The Sixth Circuit has reached a different conclusion than the Third Circuit on the question of public access to “special interest” deportation proceedings.26 In the months following the symposium in Coral Gables, the Supreme Court agreed to review the Al Odah, Hamdi, and Padilla decisions.27 On December 2, 2003, the day before filing its memorandum opposing the grant of the writ of certiorari in the Hamdi case, the government announced that it would, as a matter of discretion, allow the prisoner access to counsel subject to appropriate security restrictions.28 It pursued a similar strategy in the Padilla case, though in that instance it made the announcement on February 11, 2004, when it filed its reply brief in support of its application for the writ of certiorari.29 After the grant of the writ of certiorari in the Al Odah case, a panel of the Ninth Circuit found that Guantánamo was, in fact, within the sovereign jurisdiction of the United States.30 Moreover, although it remained to be seen what the capture of Saddam Hussein and the occupation of Iraq would bring, it is noteworthy that the administration had not yet moved the Iraqi prisoners it had captured to Guantánamo or chosen to designate them en masse as unlawful combatants.
Still, the challenge to law in the post–September 11 era is unmistakable. The Iraq War stands as an affront to the international legal system, and as is evident in the lower court cases I discussed, a number of good and able judges have renounced their most basic responsibilities under the Constitution. War always poses a challenge to law. It involves a pursuit of interests through violence rather than reason and often excites base fears and passions. The wars in Afghanistan and Iraq, and the most shapeless of all wars—the War on Terror—are not exceptions. A practice of lawlessness has grown in the shadow of these wars, and it poses a challenge for every law teacher.
The wars of the last two years have provoked protests and petitions, and, like the war in Vietnam, the Iraq War is likely to become the subject of national political contests. As citizens, we need to attend to such contests and make our views known, but never in a way that relieves us of our obligations as teachers of the law. We must stand
within the law and test the government’s actions by the law. Such an endeavor may lack the drama that the events of the day call for—it is detailed, patient work, fully based on reason—yet it may be our most enduring contribution.
Upon retiring from the Supreme Court, Thurgood Marshall was asked by a reporter how he wished to be remembered. Marshall answered with a spontaneity and immediacy that attested to the truth of what he was about to say: “He did what he could with what he had.”31 He understood himself and the magnitude of his achievement, and in so doing provided a lesson for us all.
Prologue to Chapter 2
Trevor Sutton
“It was as profound a day in the court as any in a long time.” So wrote Anthony Lewis, a storied legal reporter and columnist for the New York Times, in a column published on June 29, 2004, the day after the Supreme Court handed down decisions in three cases arising out of the Bush administration’s War on Terror. The most significant of the three cases—and the one to which Lewis devoted most of his column—was the Court’s ruling in Hamdi v. Rumsfeld, which rejected the Bush administration’s claim that it had legal authority to classify and detain an American citizen as an “unlawful enemy combatant” without an evidentiary hearing. Lewis’s euphoric response to Hamdi captured the mood of much of the legal and media communities in the wake of the decision. The Times editorial page itself opined that the Court had “made it clear that even during the war on terror, the government must adhere to the rule of law.” The Washington Post, meanwhile, called Hamdi a “Supreme Rebuke,” and asserted that the case “sends a powerful message that Americans cannot just disappear at the hands of their government.” Many other commenters seized on the language in Justice O’Connor’s plurality opinion that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”