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Via the Washington Post and the military's press shop in Baghdad, I learned this morning that the first military prosecution of a civilian contractor in Iraq has ended in a guilty plea. According to today's story:
Also Monday, the U.S. military announced that a Canadian man working as an interpreter for the U.S. military in Iraq was sentenced to five months of confinement after pleading guilty in the stabbing of a colleague in February.
The contractor, Alaa "Alex" Mohammad Ali, was the first civilian prosecuted since a 2006 amendment to the Uniform Code of Military Justice allowed the military to court-martial civilian contractors.
According to the military, Ali stabbed another contractor with a knife at a military facility on Feb. 23 near Hit, in western Iraq. A judge dropped the most serious charge filed against him, aggravated assault, after Ali agreed to plead guilty to obtaining a knife without permission, disposing of the weapon after the assault and lying to military investigators.
The prosecution marked the first time that the military's justice system was used to prosecute a civilian contractor on the battlefield since at least 1968. The change came about because of a 2006 amendment to the Uniform Code of Military Justice, inserted at the last minute by Sen. Lindsay Graham, which expanded the UCMJ's jurisdiction to cover civilians during "contingency operations" (like Iraq and Afghanistan) in addition to times of declared war.
The change generated a great deal of legal commentary and raised many thorny legal questions as to whether it was constitutional to apply military law to civilians. The best precedent on the matter is the Supreme Court's decision in Reid vs. Covert, in which the court strongly hinted in a footnote that it would bless such prosecutions in an area of active hostility. Add that to the Supreme Court's favorable view of military justice, as seen in the recent Guantanamo cases, and it's likely that this conviction would have been affirmed.
But, of course, this case ended in a plea bargain, so we likely won't get the chance to see any of those questions resolved on appeal. I predict that the military will continue to use its UCMJ authority to prosecute contractors—but only in those rare cases where both the Justice Department and local authorities refuse to act.
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To follow up my first post on Bruce Ackerman's and Oona Hathaway's op-ed, I'd also note that he and his co-author presume that Section 2(a)(2), authorizing military force to "enforce all relevant United Nations Security Council Resolutions regarding Iraq," referred only to subsequent U.N. authorizations pertaining to Iraq. Of course, Congress referred to several prior U.N. resolutions pertaining to Iraq, too.
Isn't it curious that Ackerman and Hathaway read the U.N.-resolution subsection as applying to future U.N. resolutions, while they read the national-security-threat subsection as applying only to pre-2003 threats?
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Too often, people caught up in heated political debates assert that disfavored policies are not merely disfavored but illegal. Of course, the debate over the war in Iraq has been no exception to this sorry habit, as the Bush administration's critics long have declared the war "illegal" or "unconstitutional."
Bruce Ackerman, usually a level-headed theoretician, falls prey to this error in today's Washington Post, when he (and Oona Hathaway) argue that the war in Iraq will become illegal on New Year's Day 2009.
They cite a provision of the congressional authorization that limits that the use of military force only (1) to prevent Iraq's threat to our national security, and (2) to enforce all relevant U.N. resolutions. They dismiss the applicability of the national-security prong, and note that the current U.N. resolution expires on Jan. 1, 2009. Thus, they argue, the war will be illegal on Jan. 1, 2009, absent a new resolution.
I dare say that Ackerman completely misreads the joint resolution authorizing the use of military force in Iraq. That enactment reads:
(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
In short, the authorization remains in effect so long as the president determines that military force is necessary and appropriate in order to defend the national security threat posed to the United States by Iraq.
Ackerman and Hathway glibly dismiss the possibility that the current state of unrest in Iraq threatens our nation's national security. They argue that al-Qaida in Iraq cannot qualify as part of the "continuing threat posed by Iraq," because "al-Qaeda only came into Iraq as a result of U.S. intervention[,] [and] Congress only authorized the use of force to defend against the 'continuing threat' posed by Iraq, not all threats that might someday exist in Iraq."
Pardon me if I disagree with their crabbed reading of the authorization. Congress recognized at the time that part of Iraq's threat in 2002 was the possibility that it did or could harbor terrorist organizations hostile to the United States. Again, let's look at the war authorization's plain terms:
Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq;
Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of American citizens;
In short, the presence of terrorists in Iraq was and is grounds for Congress's authorization of the war effort. So long as the president determines that terrorists in Iraq pose a threat to our national security (or that Iraq poses other national security threats), the war remains authorized by Congress.
Bottom Line: Ackerman and Hathaway no doubt disagree with the war as a matter of policy. But to wrap their opposition up in the mantle of the rule of law, despite the plainly contrary words of the statute they purport to interpret, is silly.
(Note: After first posting this item, I edited it for length. AW)
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Via Scott Horton comes the news that the U.S. Marine Corps has charged an Iraqi-Canadian civilian contractor in Iraq with brandishing a knife and stabbing another contractor. The charges follow an important change to the Uniform Code of Military Justice in September 2006, which, in theory, extended the code's reach to include civilians and contractors on the battlefield. As Scott notes, there's still much we don't know here. But this case does represent a significant development in the application of U.S. law to contractors overseas, and I think there will be a lengthy court fight over whether the UCMJ can be applied to civilians in this manner.
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Like Marty, Diane, and Deborah, I, too, am excited about today's oral argument in Munaf and Omar. Not just because I think this case raises thorny issues, but also because this case deals with a subject I have some personal experience with.
I served in Iraq from 2005-06 as an adviser to the Iraqi police in Baqubah. My team also worked closely with the provincial courts and jails as part of an effort to improve the larger rule-of-law system. Every time we visited a police station, we also looked at its detention cell or jail. We lived on the police headquarters compound for the first three months of our tour, literally living above the provincial jail; we later moved down the street and spent at least two days inside the jail. Attorneys for Munaf and Omar now argue that it would be unlawful to transfer their clients from U.S. (or Multi-National Forces) custody to Iraqi custody because of the conditions in the Iraqi jails and prisons—and the likelihood of torture there. I believe these arguments because I saw the overcrowding, squalid conditions, lack of due process, and evidence of torture in these facilities with my own eyes.
Second, I soldiered under the Byzantine organization known as Multi-National Forces-Iraq. I served pretty far down in the command structure on an adviser team; between me and MNF-I lay the brigade, division, and corps layers of command. However, in our work with the Rule of Law system and Iraqi security forces, we frequently interacted with senior officials and leaders from MNF-I. Notwithstanding the legal arguments from the government's counsel, there is no question in my mind that this is a U.S.-led, U.S.-centric, and U.S.-run organization in every way—right down to the American comfort food they serve in the chow halls next to the Republican Palace in Baghdad that MNF-I uses for a headquarters. I understand the government's argument with respect to the U.N. Security Council mandate and other points, but I think that argument flies in the face of reality.
Why should reality matter?
I think the court is particularly sensitive to what I'll call the "ground truth" in these detention cases. I think the justices remember well how they heard oral argument in Rasul and Hamdi in April 2004—and even asked a question about torture, eliciting no response from the government—only to have CBS air the first images from Abu Ghraib that night on television. I also think the court is aware of how the torture issue has developed since then. My sense is that the court will consider the realities of Iraq in their deliberation and draw out some of those realities today at oral argument.
I look forward to reading Dahlia's "Supreme Court Dispatch" tonight. ...
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No answers to questions by Eric and Deborah, but more questions about Munaf: There's something curious about the United States' position in Munaf v. Geren, on which the Supreme Court will hear oral argument Tuesday morning.
Petitioning for a writ of habeas are Mohammad Munaf and Shawqi Ahmad Omar, both U.S. citizens who also hold citizenship in a second country and both of whom now are detained in Iraq. The U.S. brief filed in advance of oral argument cites as the "threshold jurisdictional question" in the case whether
United States courts lack jurisdiction to review the detention of individuals held broad pursuant to international authority, including individuals held by United States forces acting as part of a multinational force.
Interesting question, particularly given that the 1949 per curiam judgment in Hirota. There, as I discussed a while back, out of nine justices agreed denied habeas petitions challenging convictions issued by the International Military Tribunal for the Far East, the Tokyo-based counterpart to the Nuremberg trials. The court in Hirota deemed the IMTFE a "military tribunal" established by U.S. Gen. Douglas MacArthur "as the agent of the Allied Powers," so that "the courts of the United States have no power or authority to review, to affirm, set aside, or annul the judgments and sentences imposed." (p. 17)
But here's what is curious: In Munaf the U.S. government contends that U.S. troops that are detaining petitioners do not hold them "'in custody under or by color of the authority of the United States,' " as subsection (c)(1) of the federal habeas statute requires, for the reason that those troops are detaining petitioners "pursuant to international authority"; that is, the coalition known as Multi-National Force (MNF). (pp. 17-18)
The claim suggests a break in the U.S. chain of command—a cession of U.S. sovereignty—that's at odds both with the staunchly sovereigntist stance of this administration and with extrajudicial statements that administration officials have made. To cite just two examples, on June 5, 2004, Colin Powell, then the United States' Secretary of State, wrote in a letter to Lauro L. Baja Jr., then president of the U.N. Security Council: "[T]he MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel. ... The existing framework governing these matters is sufficient for these purposes." Likewise, in a July 1, 2004, U.S. Department of Defense briefing, Brigadier General David Rodriguez, deputy director for operations, J-3, Joint Staff, said with regard to the MNF:
But in every case, all our allies have a chain of command that goes up to their national leaders, just like we do.
Though the clash in claims may not stop the government as a matter of law, I am curious to see, should it be noted in oral argument, whether the government reconciles the clash as a matter of persuasive advocacy.
(Cross-posted at IntLawGrrls blog.)
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Suppose that U.S. troops are on patrol in country X. Perhaps they are engaging in joint maneuvers with that country's armed forces; perhaps they are there for some other reason. Some soldiers out on maneuvers run across a person whose face is on a "wanted" poster that they have seen. In violation of their own orders, U.S. law, and local law, they decide to arrest that person, reasoning that he is dangerous and that they are doing everyone a favor. A scandal ensues; the soldiers are disciplined.
Meanwhile, however, the government of country X asks the U.S. military, which has taken custody of the person in question, to hand him over to the government. The government understandably prefers that a wanted criminal not go free. The U.S. military is about to make the transfer when it learns that a U.S. district court has issued a preliminary injunction against turning this person over to the foreign government. This person, who happens to be an American citizen, although concededly under the criminal jurisdiction of country X where his alleged crimes occurred, has some relatives back in the U.S. who have filed a habeas petition on his behalf.
Normally, a habeas petition asks a court to order the U.S. government to release the person in custody. Fine, says the government; we will release him to the government of X. He is a wanted criminal, after all. No, says the court; you have to hold onto him. After we have a habeas hearing, then you can release him. Release him to the government of X? We'll decide later, says the court. Well, what are the other possibilities? Release him secretly so that he can continue to roam at large in country X? Ship him back to the United States and set him free there? Why would we want to do that?
Deborah, isn't this the Omar case (except that I have assumed, for the sake of argument, that U.S. custody of Omar is clearly illegal when it might well not have been)? Why would it be hypocritical or in any other way wrong for the United States government to release Omar to the custody of Iraqi law enforcement authorities? I'm sure Iraqi criminal justice is not fantastic, but it's what everyone else there has to put up with. As best I can tell, the majority of the appellate panel thinks that detaining Omar for a while longer might do him a favor because the Iraqi authorities could change their minds about arresting him and charging him with crimes, perhaps in light of evidence disclosed in the hearing. In effect, the court is anticipating that Omar's remedy for being illegally (if that is the case) detained is that he will be detained even longer. Odd.
To see why this is so odd, suppose that the preliminary injunction were out of the picture. Omar is picked up, and a habeas hearing is held instantaneously. If he wins (the court holds that the detention was illegal), then he is kept in detention (for how long?) in the hope that the Iraqis will change their minds. If he loses (the court holds that the detention was legal), then he is released immediately into the waiting arms of the Iraqi police. Do you think that a wanted criminal in Iraq should be shipped back to the United States for a trial here, even though the alleged crime was committed on Iraqi soil?
If I were a Supreme Court justice, I would ask Omar's counsel what relief he ultimately hoped to obtain (after the hearing is held). I find it hard to believe that the counsel could answer this question without sounding ridiculous. Anyone have any ideas?
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Of all the striking things about the consolidated cases the Supreme Court is set to hear this Tuesday—presenting the question whether U.S. citizens held by the U.S. military in Iraq can seek habeas review of their detention in the U.S. federal courts—the most striking to me has got to be how little anyone seems to care.
I should say I'm not one to raise the specter of public inattention lightly. Indeed, it always drove me a little bit nuts how often (viz. invariably) I'd get the question at public panels devoted to post-9/11 law and security issues (usually with respect to torture): "Why doesn't anyone seem to care about this?" First, a huge number of people demonstrably care (including the hosts of the forum and everyone attending). Congress has legislated now repeatedly on the topic. Foundations and nonprofits have devoted comparatively enormous quantities of time and resources to advancing (to greater or lesser degrees of success) their views. Academic and popular publications have proliferated on this like copies of Thriller c. 1983. And as far as I can tell, pretty much everyone in the press has covered it (torture in particular) at one time or another in recent years. Not, of course, that there's anything wrong with that. Second, I'm a lawyer, not a public opinion pollster. To the extent one hasn't encountered one's preferred level of rioting in the streets on a particular issue, I'd as soon defer on the "why" question to political scientists, clergy members, and marketing analysts (not necessarily in that order). Third, on what actual basis is anyone asserting there isn't "anyone" who cares? Their own polling? The issue's relative absence on the cover of People magazine?
Now where was I? Ah, being slightly more careful lest I be rightly accused of self-contradiction. Trying again—I've heard comparatively little about this case at the listservs, blogs, conferences, columns, amicus briefs, etc. folks in my field frequent. Maybe I just don't get out enough. Whatever the case, I think Geren v. Omar and Munaf v. Geren have the potential to be at least as important as Hamdi, Rasul, and Hamdan—the banner Supreme Court cases post-9/11 dealing (mostly favorably) with individual rights in the face of executive power.
While I'm hoping/guessing Dahlia will help fill the relative vacuum with her usual fabulous account of oral arguments on Tuesday, here are some questions I'd be most interested in hearing my fellow bloggers address in the meantime: 1) Anyone think this case is not likely to take another chunk out of the idea that the executive acting on security matters abroad is entitled to total deference by the courts? 2) On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?
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Today I endorse Barack Obama for president of the United States. I believe him to be a person of integrity, intelligence, and genuine good will. I take him at his word that he wants to move the nation beyond its religious and racial divides and that he wants to return the United States to that company of nations committed to human rights. I do not know if his earlier life experience is sufficient for the challenges of the presidency that lie ahead. I doubt we know this about any of the men or women we might select. It likely depends upon the serendipity of the events that cannot be foreseen. I do have confidence that the senator will cast his net widely in search of men and women of diverse, open-minded views and of superior intellectual qualities to assist him in the wide range of responsibilities that he must superintend.
This endorsement may be of little note or consequence, except perhaps that it comes from an unlikely source: namely, a former constitutional legal counsel to two Republican presidents. The endorsement will likely supply no strategic advantage equivalent to that represented by the very helpful accolades the senator has received from many of high stature and accomplishment, including most recently, from Gov. Bill Richardson. Nevertheless, it is important to be said publicly in a public forum in order that it be understood. It is not arrived at without careful thought and some difficulty.
As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends but as recognition of the significance of the procreative family as a building block of society. As a Republican and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement. As a Republican, I strongly believe that the Supreme Court of the United States must be fully dedicated to the rule of law and to the employ of a consistent method of interpretation that keeps the court within its limited judicial role. As a Republican, I believe problems are best resolved closest to their source and that we should never arrogate to a higher level of government that which can be more effectively and efficiently resolved below. As a Republican and a constitutional lawyer, I believe religious freedom does not mean religious separation or mindless exclusion from the public square.
In various ways, Sen. Barack Obama and I may disagree on aspects of these important fundamentals, but I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them.
No doubt some of my friends will see this as a matter of party or intellectual treachery. I regret that, and I respect their disagreement. But they will readily agree that as Republicans, we are first Americans. As Americans, we must voice our concerns for the well-being of our nation without partisanship when decisions that have been made endanger the body politic. Our president has involved our nation in a military engagement without sufficient justification or a clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.
Sept. 11 and the radical Islamic ideology that it represents is a continuing threat to our safety, and the next president must have the honesty to recognize that it, as author Paul Berman has written, "draws on totalitarian inspirations from 20th-century Europe and with its double roots, religious and modern, perversely intertwined. ... wields a lot more power, intellectually speaking, then naïve observers might suppose." Sen. Obama needs to address this extremist movement with the same clarity and honesty with which he has addressed the topic of race in America. Effective criticism of the incumbent for diverting us from this task is a good start, but it is incomplete without a forthright outline of a commitment to undertake, with international partners, the formation of a worldwide entity that will track, detain, prosecute, convict, punish, and thereby stem radical Islam's threat to civil order. I await Sen. Obama's more extended thinking upon this vital subject as he accepts the nomination of his party and engages Sen. McCain in the general campaign discussion to come.
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I'd like to add to the Cheney discussion that Adam, Jack, Eric and Dawn have been having with a note about his comments today on the war, because I think they illuminate further his views on executive power.
ABC News' Martha Raddatz sat down with Vice President Dick Cheney to get his views on the Iraq war for a segment airing today, the fifth anniversary of the U.S. invasion of Iraq. Not surprisingly, Cheney remains an aggressive supporter of the Iraq war, defying anyone who questions the raison d'etre for the invasion. However, today, he went a step further, dismissing the American people themselves as irrelevant:
MS. RADDITZ: Tell me what you said to the Iraqi leadership and how far you're willing to push them.
VICE PRES. CHENEY: On the security front, I think there's a general consensus that we've made major progress -- that the surge has worked. That's been a major success.
MS. RADDITZ: Two-thirds of Americans say it's not worth fighting.
VICE PRES. CHENEY: So?
MS. RADDITZ: So? You're not -- you don't care what the American people think?
VICE PRES. CHENEY: No, I think you cannot be blown off course by the fluctuations in the public opinion polls. There has, in fact, been fundamental change and transformation, and improvement for the better. That's a huge accomplishment.
Well, at least we know where he stands. This statement goes beyond mere stubborn belief in his own policies, or disdain for opinion polling. He's effectively saying the people's views are irrelevant -- and that the White House will decide the course of the nation, irrespective of what the people say. I understand that we only elect a President and Vice President every four years, and that strictly speaking, public opinion isn't directly relevant to his actions on a day-to-day basis. But this is war, not some minor matter of policy. It is the people who must ultimately shoulder the burden of this war, whether through taxes or military service. Their views ought to count for something; something more than Cheney's remarks suggest.
I'm curious to hear what my Convictions colleagues think about Cheney's comments -- particularly those of you who have served in the Justice Department as attorneys and advisers to presidents in the past.
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The Republicans have a problem: John McCain.
Oh, he's a military hero and all, and despite a wife who seems to lurk over him—well, everywhere (Spitzer could have used such a mate)—he is our courageous, if economically unschooled, nominee. I say "our" since I am still counting myself a Republican so long as I'm not the last guy in the party who believes in a constitutionally limited government; the defense of all individual rights, civil and economic; and a balanced budget (ha, ha, ha, ha). It's not at all clear to me that McCain is for those things, but I know this: He is the only nominee capable of withstanding physical torture should the next president be taken hostage.
Of course, except for a handful of Navy Seals, few of the rest of us are up to the mental torture of Bush III (or is it WW III?) once we have deployed all those troops that we don't have a la south Korea all over the planet—for how long is it? A hundred years? A thousand?
A nominee whose main calling cards are making the Bush tax cuts permanent, chatting up the surge, and telling long-unemployed Michigan auto workers to forget about working ever again wins the vote of Steve Forbes, General Petraeus, and maybe Mitt Romney, who benefited from McCain's confession of economic dunceness but who would have every Mormon right to sit on his hands if he wants to.
The fact is average Americans never saw the tax cut (or if they did, they don't remember it), the surge works about as well as duct tape, and the economy could use someone who might actually be willing to reduce, not aggravate, the trillions already borrowed and spent for unfunded entitlements like Social Security and an unjust war. Of course, the IRS stimulus check is in the mail (well, once I fire up the TurboTax it will be), and it will no doubt arrive just in the nick of time to buy something frivolous, like a tank of gas.
Yes, the GOP is in great shape. As the defeat of the Republican offered up to succeed the eminently forgettable, one-time Majority Leader Dennis Hastert for the safest of safe House seats in the country revealed, the public can hardly wait to send an electoral thank you. Who wouldn't be grateful for an administration that sullied America's international standing, bungled us into a tragically costly war, and accomplished little other than the firing of its own U.S. attorneys without cause just to prove—well, hey, it's the president's constitutional prerogative to act foolishly.
So, Democrats, take your time. Call each other names, play the race card and the gender card. You're not missing anything important. The only chance the Republicans have of winning any district outside Orange County, Calif., (if that) is to track down Colin Powell. Not because he's black necessarily—though that's helpful when you're likely competing against a Lincoln-esque, Kennedy-esque, Martin Luther King Jr.-esque guy who could teach Benjamin Disraeli a thing or two about political speechifying. FYI, Geraldine Ferraro, it was Disraeli who pointed out that "eloquence is the child of knowledge." So, yes, Mrs. F, whatever was the point of your racial swipe, Obama would still have merited the public's attention. In any event, Powell is the best bet for VP since he had the presence of mind to keep the Persian Gulf War within its internationally imposed limit, to reject (or at least resist) virtually all of the overstated claims associated with the "war on terror" that put us on the wrong side of the Geneva Conventions, and, well, Bush effectively fired him—which, is surely the best credential of them all.
Good luck, Democrats, fielding your own dream team. We've got ours—well, half of it at least, if Alma Powell's cool with it. Maybe we could keep Cindy McCain from making those fascinating faces behind John long enough to make the case.