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Also, our point wasn’t to issue any sort of blanket indictment of military justice, or American justice, as a whole. To the contrary. Same government, yes, but very different rules—and in the traditional court systems, it’s the courts that make those rules, not the executive branch. Not so for the tribunals. That was one of the main bases in the first place for Salim Hamdan's suit challenging the commissions in. In the wake of the Supreme Court's decision in his favor, Congress got into the act, both verifying the Bush administration's call to establish the tribunals and demanding a higher standard of due process for them. We'll find out in June, presumably, how that sits with the justices.
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Well, Phil, after reading the Pentagon's press release on the decision to drop charges (for now) against al-Qahtani, I admit to being overcome by the more cynical angels of my nature. On the one hand, I can see a pretty sensible prosecutorial rationale for separating al-Qahtani from the five other "high value" detainees at Gitmo charged today with involvement in planning and executing the 9/11 attacks. As the Pentagon explained:
The Convening Authority has dismissed without prejudice the sworn charges against Mohamed al Kahtani. Because the charges were dismissed without prejudice, the government has the option of charging Kahtani separately, but he will not be tried with the other accused in this case.
Translation: Al-Qahtani had been part of the big 9/11 conspiracy case we were planning to try jointly. But because the evidence supporting al-Qahtani's prosecution is particularly dicey (given, as Phil notes, what we did to him in custody), we'd rather not jeopardize the prospect of a successful joint prosecution of the five with the particularly ugly facts surrounding al-Qahtani's treatment.
Fair enough, I suppose. We've had some of these accused 9/11 masterminds in custody for years now and have yet to bring a single one to justice, in part because of concerns the evidence is now too tainted by torture to be admissible in any court. A reasonable prosecutor who parachutes into this position could only try to do the best she can with the cards she's now been dealt. (I guess we'll have to see what's to be done about the fact that al-Qahtani's isn't the only case tainted by allegations of evidence gained under torture.)
But this story comes in the midst of what's already been a hell of a past few weeks of nearly soap-operatic news out of the commission trials at Gitmo—news that's included repeated allegations that the Pentagon has pressed for convictions in the interest of partisan political advantage, and the deeply embarrassing statements by the former commission chief prosecutor who resigned in protest and has spent the past several weeks touring the country explaining how the commissions cannot possibly produce fair trials.
For details on these and other allegations, you might take a look at the fascinating opinion released by the commission on Friday, in which sitting commission judge (Navy JAG Capt. Keith Allred) issued an order excluding Brig. Gen. Thomas Hartmann from further involvement in the commission trial of Salim Hamdan on the grounds that Hartmann was exerting undue command influence on the trials (on behalf of the prosecution). Hartmann has held the only-in-Gitmo title of legal adviser to the convening authority for the military commissions—a role that essentially calls on him to provide objective legal advice to the Pentagon office in charge of running the commission proceedings. Apparently, the "objective" advice has included pushing the (since resigned) chief prosecutor to use evidence the prosecutor thought was "tainted and unreliable, or perhaps obtained as a result of torture or coercion." Not that this concern is itself especially news. One can now read some of the e-mail exchanges from the young military prosecutors who resigned from the commission office back in 2004 after alleging, among other things, the disappearance of evidence documenting detainees' allegations of torture. But the court's decision hardly helps the commissions' already battered image.
And then there are the accounts from the recent trial proceedings themselves, in which, despite the countless reasons why this shouldn't be the case, some of the most eloquent statements in the courtroom have come from a detainee. (Attorneys with my former employer Human Rights First are again blogging from Gitmo during the trials, and their recent filings are well-worth a read.) I'll just end with this particular snippet from Mr. Hamdan. Hamdan, recall, won an extraordinary victory in 2006, when the Supreme Court held the initial commission process unlawful under U.S. and international law. For a time after that, Hamdan became (as quoted by his attorneys) a remarkable champion of the U.S. legal system. That view apparently has since changed.
If you ask me the color of this table, I will tell you it's white. You say, "it's black." I say, "no, it's white." You say, "no, it's black." I say fine, "it's black." You say no, it's white." This is the American government.
This process is serving no one's interests, most especially not those of the United States. Despite the best efforts of some of the many well-meaning military lawyers who've been at various stages associated with the commissions, I just don't see any way possible for this process at this point to be taken seriously. Have courts martial Have them in the continental United States. This just has to end.
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In
Hamdan v. Rumsfeld (2006), a majority of the Supreme Court reaffirmed that in making reference to terms that are part and parcel of the international laws respecting the conduct of war
—to cite the Latin phrase still current,
jus in bello—Congress intended courts to look to that body of law in interpreting the statutory terms.
In considering whether the AUMF allows strikes against Somalia, the pertinent international laws concern not the conduct of war but the act of going to war; that is
, jus ad bellum. Since the adoption of the
U.N. Charter in 1945, that law renders a nation-state's use of force illegal, as a matter of international law, unless it is undertaken with the approval of the
U.N. Security Council. The charter permits only one exception, set forth in Article 51:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Presumably, the United States would argue that the Somalia strikes are permissible as exercises of "the inherent right of individual or collective self-defence." But that claim would not end the story. Do the words that follow—"if an armed attack occurs"—mean that the attack already must have occurred, and if so, do the attacks of Sept. 11, 2001, attributed to an al-Qaida leader then in Afghanistan, not Somalia, so satisfy this requirement that the United States may go after a different leader in a different country, nearly seven years after that other attack?
Let's assume, in the alternative, that the United States may attack before it is attacked to defend itself before it is so disabled that it cannot engage in self-defense. This seems reasonable; after all, the law generally allows a person who has a gun pointed at her to shoot first and not to wait for the assailant to shoot her before she may act to defend herself. Indeed, this reasoning is enshrined in international law as "anticipatory self-defense," a concept established more than 170 years ago during the
Caroline incident between the United States and Britain.
Accepting "anticipatory self-defense" as law does not end the inquiry, however. The exchange of letters that ended the
Caroline dispute indicate conditions upon this right
—conditions of "necessity" and "proportionality" that may be found in other doctrines relating to the use of force, such as the old doctrine of
reprisal, as our colleague, Notre Dame Law Professor
Mary Ellen O'Connell, explains
here. Within those two terms may be found a rule that use of force in self-defense must be genuinely necessary, that the threat must be imminent, that there must be no opportunity for deliberation or negotiation, and further that the use of force must be proportionate to the threat, so that any permissible strike goes after only the person(s) or camp(s) that are a menace, and avoids as much as possible any damage to any innocent person or any uninvolved item of property.
The U.S. Congress ought to be presumed to understand these well-settled principles—principles that derive from a dispute involving the United States itself. Thus its decision explicitly to require in the AUMF use of force be both "necessary" and "appropriate"—words nearly identical to the international law doctrine's "necessity" and "proportionate"—ought to be understood as limiting post-9/11 use of force to that which meets these requirements.
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