Continuity we have to believe in (part II)

Jason Ralph

It’s pretty much obvious from my two weeks spent talking and listening to people in DC that the continuities between the Obama and Bush administrations outweigh the changes.  This is the second post setting out some initial, general and incomplete notes on why I take this impression back to the UK.  The first post talked about the emerging US policy on the International Criminal Court.  This post will talk about the detention issues in the continuing war.  It argues that while continuities are apparent, liberals might still give the Obama administration the benefit of the doubt because there is evidence that it is trying gradually to change the detention regime set up under Bush.

This first thing to note is that the Obama administration continues to view counter-terrorism through the war paradigm and this has major implications for the detention regime.  This was made clear by State Department Legal Adviser Harold Koh in his speech to the ASIL conference.  The idea that the US is at war is hardly contentious. The continuation, indeed escalation, of the counter-insurgency operations in the Afghanistan and Pakistan (AfPak) region is evidence of that.  What is contentious, and in certain respects surprising, is that the Obama administration continues to insist that the US is at war with the transnational network of jihadists we call al Qaeda.  There was an interesting moment in the Q&A following Koh’s speech when Vice-President of ASIL Mary Ellen O’ Connell suggested Koh’s speech indicated a continuation of the global war on terror.  Koh denied that was what he said.  He had, he noted, made clear that the US was not at war with every terrorist organisation.  It was only at war with al Qaeda and those who harbour them.  Yet this attempt to distinguish the new from the old administration is fairly weak.  No one seriously believed the US was at war with all terrorist organisations even under Bush, so to suggest Obama is different because he has narrowed the scope of the war to al Qaeda is a bit of red herring. The more obvious concern with the Bush administration’s approach was that it had invoked the war rather than law enforcement framework to counter al Qaeda and that because al Qaeda was a transnational organisation of global reach this impacted on the sovereignty and citizens of all states. The Obama administration’s insistence that the US is at war with al Qaeda wherever it may exist and not just al Qaeda in the AfPak region, does little to address this concern. 

I also came across signs that human rights groups were not so concerned about the deterritorialization of war and the application of the LOAC.  If they follow the administration in adopting the war paradigm to counter al Qaeda then it surely is an indication that counter-terrorism norms are shifting.  It is, admittedly, very hard to limit the application of the LOAC to territorially demarcated conflicts.  John Bellinger articulated this when he noted that he had lobbied against the use of the phrase “Global War On Terror” while serving the Bush administration but had accepted the globalised nature of the war against al Qaeda.  After all, he noted, al Qaeda attacks on the US and its allies were not limited to the AfPak region.  I have sympathy with this argument.  Yet it is only convincing to the extent that one sees al Qaeda in homogenous terms and sees all Islamist inspired attacks as somehow directed by the al Qaeda leadership.  This strikes me as unlikely.  It’s an empirical question that probably can only be solved on a case-by-case basis, but we have to be careful not to repeat the mistakes made by the anti-communists after World War II.  Treating all political opponents as part of a communist conspiracy directed by Moscow was wrong and counterproductive.  Treating all terrorist attacks as part of a global conspiracy organised by al Qaeda would it strikes me be equally mistaken.  Sabin Willet made reference to this kind of concern in the Friday morning ASIL panel when he suggested that Obama’s limitation of the war to al Qaeda, as opposed to war on all perpetrators of terrorist attacks, is no limitation at all if the administration reserves the right to decide who exactly is al Qaeda.  It appears this consideration is the subject of much debate across State and DoD.  See for instance Julian Ku’s post over at Opinio Juris and this article in the New York Times.

The US under Obama then continues to claim the right to target and detain individual affiliates of al Qaeda under the law of armed conflict (LOAC).  Like the Bush administration it refuses to recognise al Qaeda as common criminals, it does not acknowledge an individual’s right to arrest as a corollary of the right to life and it continues to oppose the Supreme Court’s insistence that detainees have a right to contest their detention in federal courts.  There’s been some discussion about the new administration’s decision not to use the term ‘unlawful enemy combatant’ to describe members of al Qaeda.  This too is a semantic difference, a point which was made by Marco Sassoli in the Friday panel on the administration counter-terrorist policy.  The key point here is that al Qaeda members are still treated as enemy combatants, regardless of their vicinity to the AfPak battlefield; and, as I will discuss in a later post on terrorist trials, the Obama administration continues to argue that al Qaeda members are unprivileged belligerents that can be prosecuted for engaging US forces in hostilities.  An issue here is that the US continues to have an expansive view of what constitutes a ‘war crime’.  Unlike the prevailing view in international criminal law, which is that war crimes are perpetrated against civilians or individuals hors de combat, the US argues that the killing of a US soldier in a combat situation by an unprivileged belligerent is a war crime.  As I will explore in the post to follow, this potentially challenges the principle that international law is applied equally to combatants on both sides of an armed conflict.  Before that post on terrorist trials, however, I want to say more on the issue of what the Obama administration calls ‘prolonged detention’.

There are 50 or so detainees that Obama’s task force determined were too dangerous to be released from Guantanamo but could not be prosecuted either by a federal court or a military commission because of a lack of admissible evidence.  The claimed legal basis for this detention is exactly the same as that put forward by the Bush administration – the Authorization of Military Force (AUMF) resolution passed by Congress in late September 2001.  This authorized the President to use ‘all necessary and appropriate force … in order to prevent any future acts of international terrorism against the United States’.  Now again, the Obama administration claims to be different to Bush here.  The President’s authority to act is, according to Koh, delegated by Congress through the AUMF.  The AUMF is not simply, as the Bush administration insisted, a political reaffirmation of the legal authority that exists in Article 2 of the Constitution (ie the Commander in Chief clause).  This implies the Obama administration would accept that Congress has the right to take away the President’s authority to use force here.  As a matter of constitutional law this is quite a big difference although, as John Bellinger noted, it is hard to believe Obama administration lawyers would not invoke the Commander-in-Chief prerogative if they were, as he put, ‘pinned to the mast’.  The more significant point here, however, is that as a matter of counter-terrorism policy it makes little difference if one accepts Congress’s right to withdraw the AUMF because right now Congress would not do it as a matter of politics.  It is perhaps an indication of how deeply embedded the war paradigm is in the American political psyche that the Obama administration can rely on Congress to sustain the legislation that authorizes the President to use all necessary and appropriate force.  Unlike the Bush administration, the Obama administration seemingly trusts the American people to be hardline on terrorists.       

The authority to use force invokes the law of armed conflict under which the US continues to claim the right to detain enemy combatants for the duration of the war.  Everyone on the Friday counter-terrorism ASIL panel agreed that some international law applied to this war, a point that was made necessary given a recent DC Circuit ruling in the al Bihani case that international law did not regulate US detention practices.  Given a strong sense that this will be overturned there’s little point lingering on it.  The more contentious point it seems is what kind of international law applies.  The problem for the Obama administration’s preference for prolonged detention is that there’s no way the war against al Qaeda can be interpreted as the kind of armed conflict (i.e. an international armed conflict) that enables states to detain prisoners of war indefinitely and without charge.  Al Qaeda is not a state actor so if the US is at war with al Qaeda then the law of non-international armed conflict applies.  This was recognised by the Supreme Court in the Hamdan judgment of 2006.  Yet the problem here is that the international law on non-international armed conflict is underdeveloped.  Read common article 3 – there’s not much to it.  There is some talk of addressing this gap by “analogizing” across to the international law on international armed conflict and indeed Brad Weigman (National Security Division of the DoJ and the man who headed the Obama task force on detention issues) acknowledged that this was being done in government circles.  But this process of analogizing across to the law of international armed conflict has its limitations.  For instance, al Qaeda would no doubt welcome this analogizing (as the PLO sort of did in the 1970s debate over Additional Protocol I) because they could claim immunity from prosecution if they took on the character of a non-state force as specified in article 4 of the third Geneva Convention.  So the Obama administration’s process of analogizing can only go so far. It still insists (as I mentioned above and will elaborate in a later post) that any act of war by al Qaeda is a crime because by definition al Qaeda operatives are unprivileged belligerants.

The alternative is to accept the non-international character of the armed conflict with al Qaeda and draw on international human rights law to flesh out what is not addressed by common article 3.  This point was made by Sassoli.  This, it seems, is beginning to happen to the extent that the US Courts have not accepted the government’s right to detain individuals without charge.  So, the habeas rights of detainees at Guantanamo were recognised by the Supreme Court in Hamdi (2004), and that judgment was reaffirmed in Boumediene (2008).  Sassoli said that this fact, which is accepted by the administration, shows that the US cannot be in a state of armed conflict.   Indeed in March 2009 the lower courts ruled in the al Maqelah case that these rights have to be extended to aliens detained in the detention facility at Bagram.  Yet the Obama administration has rejected this because it insists Afghanistan is a warzone.  The fact that the Obama administration decided to appeal this ruling is therefore further indication of the continuities with past detention policy.  Indeed, when Koh was questioned on this very issue, he cited the very same precedent – Johnson v. Eisentrager  – as the Bush administration did to justify the practice of prolonged / indefinite detention.   This litigation it seems is set to continue well into Obama’s first administration and we might yet have headlines about the executive constructing ‘legal black holes’ in Bagram.  We’ll also have to consider whether the US constitution follows the flag in Afghanistan or whether the extraterritorial extension of US law is, as Justice Scalia said in the Hamdi case, a case of American imperialism.  (This issue was raise in a European context by UCL Professor Ralph Wilde).

The issue then it seems to me is one of boundaries and types of activities: where does the ‘battlefield’ – the space that is regulated by LOAC – begin and where does it end? What kind of activities constitute participation in hostilities?  And can a civilian be labelled an enemy combatant when he is not engaged in those kind of activities?,  As the New York Times tells us, this first question is contentious across lawyers in the Departments of State, Defense and Justice. 

behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia — far from the active combat zone — and was being held without trial by the United States at Guantánamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such “direct support” was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.  The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters. … Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case.  Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war — now or in the future.

Apparently, a consensus on this question has yet to emerge.  If this report is right, however, there is clearly potential for moving away from the idea that those with tenuous links to the armed conflict in AfPak can be detained under the LOAC.  The flip side of this is that there’s a potential for moving back to a regime where terrorists with no link to  the AfPak battlefield are mere civilians rather than enemy combatants and therefore to be detained under a law enforcement framework consistent with international human rights law.   The Abdulmuttalab case is again significant here.  He was arrested on Christmas Day after his attempt to blow up a plane that was far removed from the AfPak battlefield – it was flying over Detroit.  Consistent with Koh’s position as set out by Times he was Mirandized and held under a criminal justice framework.  If this is representative of the way terrorist suspects acting outside the AfPak battlefield are to be dealt with then liberals might take comfort in the gradual, but nonetheless real, attempts to turn the ship of state away from the law of 9-11.      

The problem with this is that there is little consensus on this.  As noted, DoD legal counsel are apparently opposed to drawing lines around a battlefield where the LOAC applies.  Likewise, there are those on Capitol Hill who are angry at the way Abdulmuttalab was treated.  Taking their cue from former intelligence chiefs, they argue that an intelligence opportunity was missed by putting the guy into the federal criminal justice system and insist that in the future all terrorist suspects should be treated as enemy combatants and held without charge for as long as they are an intelligence asset.  Congressional leaders (Collins, Lieberman, McCain) currently have bills to this effect.  

 Another aspect of the detention issue which I discussed while in DC was the question of what to do with the GTMO detainees not slated for trial either in federal courts or revamped military commissions.  As noted there are 50 or so that fit into this category, many from Yemen.  The administration’s claim to hold these in prolonged detention under the law of armed conflict and the AUMF is contested by the Courts.  As a political issue, however, the administration is desperate to transfer these to another location so that it can meet its campaign promise of closing Guantanamo Bay.  Its problem is that Congress will not, for various reasons, fund this plan and Congress it seems is using that leverage to make sure high value detainees like KSM are relabelled enemy combatant and prosecuted in military commissions, as well as to make sure administration’s do not automatically rule out using the LOAC to detain the like of Abdulmuttalab.   The White House, it seems, is willing to make the deals necessary to close Guantanamo, a fact which makes Attorney General Eric Holder look politically isolated when he insists on a criminal justice pathway for Abdulmuttalab and KSM. So the Wall Street Journal reported recently that the White House is working with Senator Graham on a deal whereby Congress will provide the funds to transfer the GTMO detainees to the Thomson detention facility in Illinois in return for a reversal of the administration’s decision to put KSM on trial in New York.  Again  there’s a sense in which the administration simply did not do the political groundwork necessary to sell Guantanamo closure, but it might just be that liberals can accept this kind of a deal if it finally closes the Guantanamo Bay detention.  Of course, there’d be a price to pay, especially if the Thomson facility became labelled “Guantanamo North”.  But then Obama might argue, as he has in the past, that the perfect should not be an obstacle for delivering the essential; and he may still persuade liberals that this is a temporary measure made necessary by the Bush administration’s policies.  The real test of whether such compromises are part of genuine attempt to turn the ship of state away from the law of 9-11 would be if future Abdulmuttalabs are transferred either to Guantanamo North or to Bagram.  If that happened then Obama is simply reshuffling the deckchairs on the ship of state and following the direction that was set by Bush after 9-11. As Koh stated in his speech, turning the ship of state around takes time, but there’s still doubt whether he and his boss will have the political skill to make sure it does properly turn away from the law of 9-11.


About Jason Ralph

Jason Ralph, Professor of International Relations, University of Leeds
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One Response to Continuity we have to believe in (part II)

  1. Pingback: Continuity we have to believe in (part III) – Trials. « Law, War and the State of the American Exception

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