A War Like No Other

by Fiss, Owen

  Al-Qaeda and the Principle of Freedom

  Al-Qaeda cannot possibly claim the protection of the Third Geneva Convention. All of its soldiers are unlawful—or, perhaps more properly, unprivileged—enemy combatants. This, remember, was the same classification President Bush (and, by implication, President Obama) applied to the Taliban. While the argument for placing the Taliban outside the reach of the convention was founded on a strained interpretation of a provision of the treaty concerning irregular militias, there is a much more straightforward argument for reaching the same conclusion for al-Qaeda. For the most part, the convention constrains the United States only when a belligerent is a signatory, and al-Qaeda is not such a signatory, nor could it be, for it is a far-flung international terrorist organization that operates in secret and does not (yet) lay claim to any national territory. The convention provides that a signatory may be bound by the convention in its relationship to a non-signatory, but only if the non-signatory acts in accordance with the requirements of the convention10—a condition al-Qaeda most assuredly does not satisfy.

  Even though executive action toward al-Qaeda is not constrained by the treaty (nor perhaps by customary humanitarian law), it nevertheless remains subject to the Constitution and to the principle of freedom in particular—unless, of course, the action fits within the exception allowed for war. The Bush administration took the position that al-Qaeda was responsible for the 9/11 attacks, and for that reason it launched a war against al-Qaeda. Obama has meticulously avoided using Bush’s mantra of the “War on Terror,” but he has repeatedly declared, “We are at war with al-Qaeda.”11

  Although the campaign against al-Qaeda may be characterized as a war, thereby allowing the United States to target or capture al-Qaeda fighters, it is no ordinary war, and the exceptions to the principle of freedom must be adjusted accordingly. In its fight against al-Qaeda, the Bush administration was prepared to treat the entire world as a battlefield and insisted that the prerogatives of the United States as a belligerent allowed it to seize and perhaps even target members of al-Qaeda anywhere they could be found, be it at O’Hare Airport, in the streets of Milan, or at a university in Peoria, Illinois. However, by acknowledging this prerogative, we undermine and endanger the very nature of civilized life as we know it and defeat the values that underlie the principle of freedom.

  To guard against such a danger, it became necessary to calibrate the concept of the battlefield and to distinguish between active theaters of armed conflict (so-called hot battlefields) and other locations where suspected terrorists might be found. Suspects not residing within an active theater of armed conflict can of course be apprehended outside of it, but only through the ordinary processes of the law, not the kind of action typically undertaken by the military on a battlefield.

  Analogous restrictions must be placed on the authority of the United States to imprison individuals accused of having links to al-Qaeda, even if they were captured on the battlefield and allegedly engaged in armed conflict. In this case, the restrictions must be temporal in nature and reflect the potentially unending character of the war against al-Qaeda. Much of our military action has been aimed at capturing or killing Osama bin Laden. That objective was achieved on May 2, 2011, but it has not brought an end to the war against al-Qaeda. Other leaders have emerged, and once they are captured or targeted, others will emerge. Account must also be taken of the fact that al-Qaeda has units throughout the world that are capable of acting on their own.

  Accordingly, just as it is unthinkable to treat as a battlefield every place on earth where al-Qaeda fighters might be, it is unthinkable to allow the government to hold al-Qaeda suspects until the war between the United States and al-Qaeda has ended—a time that we cannot readily foresee. The justification for continued detention might be the same—preventing alleged fighters from returning to the battlefield—but the consequences would be radically different. To allow persons accused of being al-Qaeda soldiers to be imprisoned for the duration of hostilities would constitute such an enormous expansion of the exception to the principle of freedom as to undermine the principle itself and deny the values it serves.

  The Bush administration was, of course, allowed some leeway when it began its war against al-Qaeda and captured persons it believed were members of al-Qaeda. It soon became clear, however, that the administration was prepared to incarcerate suspects seized far from an active theater of armed conflict and to do so for a prolonged period of time, maybe forever, without ever placing them on trial. Some of these prisoners were held in naval brigs in South Carolina and Virginia. For the most part, however, they were imprisoned at Guantánamo Naval Station in Cuba.

  The prison in Guantánamo was opened in January 2002 and over the years between six hundred and eight hundred prisoners were incarcerated there at one time or another. Some of these prisoners were accused of fighting for the Taliban, but most were accused of having links to al-Qaeda. During this period, some were transferred to other prisons and others were released due either to diplomatic pressure or to decisions by military tribunals established by the Department of Defense in July 2004. (The tribunals are part of the government’s strategy to deprive the Guantánamo prisoners of access to federal courts to advance their claim of freedom through the writ of habeas corpus.) In January 2009, when Obama took office, Guantánamo had 240 prisoners, some of whom had been incarcerated there for as long as seven years.

  Upon taking office, President Obama signed an executive order requiring that the prison at Guantánamo be closed in one year’s time, but it remained unclear what might happen to the prisoners still confined there. Accordingly, in his National Archives speech in May 2009 he announced a tripartite policy—free those who had succeeded in their petitions for habeas corpus, place others on trial before either military commissions or civilian courts, and continue the imprisonment without trial for the group that remained. At the time of the speech approximately fifty individuals fell within this third category.12 Admittedly, it is sometimes difficult to know when a detention will be brief enough to be justified by the necessities of war and thus allowed by the exception to the principle of freedom, but not in this instance.

  To Obama’s credit, he, unlike Bush and his defenders, appears to be using the power to imprison without trial only reluctantly. When he announced the policy in May 2009, Obama called the prospect of prolonged, indefinite incarceration without trial “one of the toughest issues we will face.”13 Yet, rather than honor the principle of freedom, Obama continued Bush’s policy of indefinitely imprisoning some Guantánamo detainees and declared by way of justification that they “cannot be prosecuted.”14 He did not explain why trials were not an option. Certainly it cannot be the case that U.S. law is incapable of dealing with al-Qaeda agents or terrorism in general. Bush tried and convicted a number of al-Qaeda terrorists during his tenure, and Obama has put a number on trial too, as well as attempting to try the alleged mastermind of the 9/11 attack, Khalid Sheikh Mohammed. At first, Mohammed was to be tried before a civilian court in Manhattan, but in the face of congressional opposition and, eventually, legislation prohibiting transfer of any of the Guantánamo prisoners to the United States even for trial, Obama decided in the spring of 2011 to have him tried before a military commission at Guantánamo.

  In announcing his decision to continue Bush’s policy of imprisonment without trial, Obama explained that “in some cases” the evidence is “tainted,” and by that he presumably meant that the evidence against the prisoner was obtained through torture. This kind of evidence has long been subject to an “exclusionary rule,” often affirmed by Obama, that prohibits the use at trial of evidence that has been acquired through torture and is thus in violation of the Constitution and federal statutes. So if the policy of imprisonment without trial stemmed from the tainted quality of the evidence against the prisoner, Obama effectively had bifurcated the exclusionary rule: evidence secured through torture cannot be used at trial, but it can be used as the basis for incarcerati
ng a suspect, even for the rest of his life.

  Such a bifurcated exclusionary rule would create all the wrong incentives. Government interrogators will know that a confession secured through torture may serve as the basis for prolonged incarceration, despite the fact that upon taking office Obama issued an order banning torture.15 The bifurcated rule would also compound the wrong suffered by the Guantánamo prisoners who were tortured and are now being held indefinitely without trial: first they were subject to excruciating pain, and now the fruits of that abuse will keep them in prison with no end in sight. The Constitution should not allow any deprivation of liberty to be based on evidence procured through torture, regardless of whether that deprivation is the result of a trial or a presidential decision.

  Alternatively, the concern animating Obama’s, and before him Bush’s, unwillingness to go to trial may not have been the use of tainted evidence but a fear that the trial would result in the disclosure of secret evidence—for example, the identity of undercover agents. The government is, of course, entitled to a measure of secrecy, but that should not justify—and in fact never has justified—imprisonment without a trial. In a good number of criminal prosecutions touching on national security, defendants have sought information that the government deems top secret. Courts have been more than capable of accommodating these concerns, typically by examining the evidence in private outside the presence of the accused or his lawyer and evaluating its relevance to the case.16 If the judge determines that the evidence is important, the government can make it available to the accused, offer a substitute, or drop the case. The remedy has never been to suspend the trial and incarcerate the prisoner indefinitely.

  Nor can the policy of imprisonment without trial be justified as preventing some extraordinary harm, such as the detonation of a radioactive bomb. One al-Qaeda operative—Jose Padilla—who was taken into custody in 2002 at O’Hare Airport in Chicago as he alighted from a flight that originated in Pakistan, was accused of such a crime. He was accused not in the formal sense of the term, but rather in a press release issued by the Department of Justice.17 After seven years’ imprisonment, the government finally brought Padilla to trial—but for an entirely different crime.18 No other al-Qaeda suspect, not even any of those held at Guantánamo, has been accused of a crime of equivalent potential destructiveness. Even if one were, the burden would remain on the government to prosecute that individual for that crime, even if it carried a risk of acquittal.

  In defending his initial decision to place Khalid Sheikh Mohammed on trial before a civilian court in Manhattan, Eric Holder, Obama’s attorney general, sought to minimize the risk of an acquittal and in so doing produced an even more barbarous offense to the principle of freedom. Testifying before a Senate committee, Holder suggested that even if Mohammed were acquitted at trial, he could be imprisoned indefinitely, even for life, as an unprivileged or unlawful enemy combatant.19 Such a policy would make the trial pointless and defeat the very values the principle of freedom seeks to further. Indeed, imprisonment after acquittal would be far worse than imprisonment without trial. The exceptions to the principle of freedom must be narrowly cabined to protect the values furthered by the principle and, in any event, cannot be adjusted on a case-by-case basis to reflect the president’s assessment of the gravity of the threat posed if the prisoner is acquitted, or much less allow the president to imprison the accused after he has been acquitted.

  Many have criticized President Bush’s conduct of the War on Terror as an exercise of excessive unilateralism. They faulted him for acting on his own without seeking the involvement or concurrence of the other branches of government. Fully aware of this line of criticism, President Obama declared in his National Archives address, in May 2009, that “in our constitutional system prolonged detention should not be the decision of any one man,”20 and then went on to promise to develop a system that involved “judicial and congressional oversight” of his decision to incarcerate someone as an enemy combatant.21

  On September 24, 2009, Obama announced that he would not turn to Congress for establishing the promised oversight system.22 He said that support for his action was already provided by the Authorization for the Use of Military Force (AUMF),23 a statute passed by Congress immediately after September 11. On March 25, 2010, the legal adviser to the Department of State also made reference to this statute in defending the administration’s detention policy before the American Society of International Law.24 Yet these references to the AUMF seem inapposite. The AUMF authorized the president to use whatever force was necessary to apprehend and bring to justice whoever he determined was responsible for the September 11 attacks. As such, the statute gave legislative authorization for the war against al-Qaeda and against Afghanistan for harboring and sheltering al-Qaeda. In technical terms, the AUMF provided the congressional declaration of war required by the Constitution. Yet it in no way functioned as the kind of oversight system Obama initially promised, which of necessity would be concerned with the prolonged detention of particular individuals.

  On March 7, 2011—almost two years after his National Archives speech—Obama issued an executive order establishing an oversight system that sought to address the plight of particular individuals who were imprisoned but never tried. This oversight system is neither judicial nor legislative, as originally promised, but is lodged in the executive branch. It vests power in a board consisting of senior officials from six government departments and offices—the Departments of State, Defense, Justice, and Homeland Security, the Office of the Director of National Intelligence, and the Office of the Chairman of the Joint Chiefs of Staff—to determine whether the continued detention of each prisoner “is necessary to protect against a significant threat to the security of the United States.”25 This board’s determination is subject to a veto by the heads of the various departments and offices. If the board determines that a prisoner no longer remains a threat to the United States, and if that determination is allowed to stand, the secretary of state and secretary of defense are, by the terms of the executive order, required to make “vigorous efforts” to arrange for the prisoner’s transfer to another country. Obama’s new oversight system can thus be seen as a specially designed parole procedure, with a number of drawbacks—it is subject to control by political appointees, and the prisoners have never been tried or adjudged guilty of any crime by a court of law.

  Others who have defended imprisonment without trial, such as David Cole,26 have proposed an oversight system that would be less politically sensitive and would in fact make the judiciary primarily responsible for case-by-case assessments of the basis of the executive’s decision to detain an individual. The federal judiciary sitting in habeas might be utilized for this purpose, where the judge would have to determine whether there was a reason to imprison the individual in the first place (was he an enemy combatant?) and then whether there were still reasons to detain him (is he a threat to the United States?). Such a scheme would be a great improvement over Obama’s administrative parole system, but it still would not satisfy the principle of freedom, which requires not simply oversight by the judiciary but a trial determining the guilt or innocence of the accused.

  The procedures governing a trial seek to protect the innocent by casting the burden of proof on the government and controlling the discovery and admission of evidence. Theoretically, these procedures can be replicated in an oversight system, but as a practical matter they are likely to be watered down. Otherwise, there would be no point to the exercise—avoiding a trial. Moreover, the allocation of power entailed in an oversight system is necessarily—as a theoretical matter—quite different from that in a trial. For one thing, the jury would be supplanted. In addition, when compared to cases tried without a jury, the responsibility of the judiciary would be diluted. In a trial without a jury, the task of the court is not to decide whether the government has good reason to believe that the suspect has committed a crime, as it would under a system of oversight, but to decide whether, in fac
t, the accused is guilty of the crime charged. In such a trial, the responsibility for determining guilt and thus to deprive an individual of his liberty is not shared with the executive but rests entirely on the shoulders of the judiciary, as due process of law requires.

  The Scope of Obama’s Policy

  In analyzing the policy of imprisonment without trial, I have treated Obama’s stance as a continuation of Bush’s. There are, however, two differences between Bush’s and Obama’s respective positions, both of which stem from the circumstances under which Obama announced his policy, though it remains to be seen whether these differences are of any significance.

  One difference arises from the number of persons affected by the policy. Obama announced his policy in the context of deciding the fate of some of the prisoners being held at Guantánamo. At the time there were about fifty such prisoners who would be subject to the policy. There were also indications that the policy would be applied to prisoners being held at Bagram Air Field in Afghanistan.27 Although the vast majority of the prisoners once held there—approximately six hundred—have been turned over to the Afghan government, we still have custody of a good number of them. They should be added to the ones at Guantánamo, in gauging the scope of Obama’s policy. Still, the number of persons to whom Obama’s policy applies is limited. Moreover, Obama’s policy does not have the open-ended quality of the policy Bush announced, which applied to all al-Qaeda and Taliban fighters, regardless of where they are captured or incarcerated.

  The essentially vestigial quality of Obama’s policy is underscored by his treatment of Umar Farouk Abdulmutallab, a Nigerian citizen accused of trying to detonate a bomb on a Northwest flight as it was about to land in Detroit on Christmas Day 2009. Abdulmutallab was accused of being an operative of al-Qaeda, trained by the organization in Yemen, but he was immediately brought within the ambit of the criminal process, not treated as an enemy combatant.28 Similarly, Ahmed Abdulkadir Warsame, a Somali national accused of working with al-Shabaab and al-Qaeda, was captured by the U.S. military in the Gulf region on April 19, 2011. He was questioned for intelligence for over two months and then turned over to civilian law enforcement agents, and was arraigned in the Southern District of New York on July 5, 2011.29