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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, November 24, 2006

al-Marri Briefs: Law of War

And Also: A nod to my older sister, who knows a thing or two about cooking a good meal -- yes, even for us vegetarians at Thanksgiving time. BTW, this is when the "vegetarian" thing really kicks in, since we aren't talking vegan foods here. I never promised you a rose garden ... or perfection. Just trying to get closer to the good life, my own way. Meanwhile, already received some gifts that I ordered ... yes, Xmas is already upon us.

It was rightly noted that the ultimate determination will be made by the Supreme Court, but the last election suggests that having a good foundation is important, and basic ideals must be kept throughout.* And, this blog is about principles as much as anything else, the discussion of the matters involved and so forth.

Thus, various briefs in support of Ali Saleh Kahlah al-Marri, the largely forgotten domestic "enemy combatant," caught my eye. The preceding link can provide some background on his case, but it underlines the troubling potential and symbolic value of the case. Both sides know this -- the core issue here is the possibility that the executive will have unbridled power, which he might deign not to use, but that sort of is not the point. We have limits to guard against possible injustice -- there is always the possibility that they won't be necessary in a given case. "Just trust us" is not our motto, even for the people themselves -- we too cannot do anything we want; one of us, the executive, surely should not have such power.

The briefs provide various angles of the issue, again providing various expert testimony on relevant subjects, including the laws of war, prosecutorial possibilities (former prosecutors, including Janet Reno, signed that brief), the law of treason (a pretty interesting discussion), and enemy combatants generally (the most general of the briefs). A summary of the "law of war" brief's argument provides a good summary of the overall themes of all four:
His actions do not qualify him as a military combatant who would be subject to being shot on sight or detained as a prisoner of war. Mr. al-Marri is a lawful resident of the United States. He was arrested on U.S. soil and has at all times been detained here where civilian courts are open and operating. There is no allegation that he is a member of the armed forces of a nation at war with the United States. There is no allegation that he has been on a foreign battlefield where such troops are engaged in combat with the United States. There is no allegation that he directly participated in hostilities against the United States, or that he was poised to imminently engage in an armed attack.

Or, more simply: "The Government's novel redefinition of the term combatant eviscerates the distinction between military and civilian jurisdiction. The Government's position should be rejected." The Hamdi ruling underlines the point though it leaves a ticking time bomb by leaving the definition of "enemy combatant" open for lower court development. [Rasul is equally minimalist, so to speak, by supplying habeas review, but not clarifying what it should entail.] But, the footnote that does so, tell us that "Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant." Thus, we have perhaps a two part test: battlefield capture and member of the armed forces of another. The latter important or potentially a significant part of a populace could become "combatants" akin to the mentality of terrorists who justify bombing civilian office buildings.

The open-ended nature of the Hamdi plurality** suggests that in this particular conflict, "battlefield" might be something of a hazy line. At the very least, however, it would be a bit absurd to make the entire world a battlefield, and thus, rob the term of any meaning. There is a clear line between domestic and foreign. The "direct" prong of the excerpt is important as well. A veteran is not a "combatant," even though s/he once might have been. Nor is someone who might in the future choose to be one. And, the same applies to someone who might in some fashion assist a conflict. A worker in a factory producing war materiel is not a "combatant," even if the factory might be a legitimate target, or s/he might be liable for criminal prosecution. Hamdi does not really dispute the point, focused on "active combat operations" and the like.

In contrast, the ruling compares Hamdi to Milligan, a case arising from "a resident of Indiana arrested while at home there," from someone ["a bad man" according the opinion] planned domestic terrorism during the Civil War. The prosecutors' brief underlines that "civilian jurisdiction" has worked over the years to target domestic terrorism. Many examples are provided. The very reason al-Marri was made an enemy combatant, Padilla also fell victim to such arbitrariness, is that his lawyers challenged his civil detention. This is not how military confinement -- in a nation where the civil power is supreme -- is supposed to work. A "combatant" under the laws of war can be shot on sight, and if al-Marri was one, this would include "homes in Peoria, Illinois." In fact, the laws of war allow some collateral damage ... yes, potentially the neighbor's home is at risk as well. Rightly, we hear of use of a "verbal sleight of the hand."

Hamdi et. al. relied on "longstanding law-of-war principles." The laws of war brief also relies on treaties and customary international law, see also Hamdan, the latter which a 2004 ruling (Scalia/Thomas separately concurring) noted is "law that (we must assume) Congress ordinarily seeks to follow." Such rules speak of "combatants" and "civilians," the latter obviously perhaps criminally supporting the former. As noted by the United Kingdom, customary international law making such references relevant, terrorism generally is not the same thing as "armed conflict." The troubling WWII Quirin ruling does not change things in many ways, in part because it was assumed the people involved were members of foreign forces. That is the issue in question here. And, to some degree, the 1949 Geneva Conventions changed its meaning of "unlawful combatant" after that ruling was handed down.

A tricky problem here is that arguably the Military Commission Act did alter congressional understanding of "customary international law" to some extent. The technical point that pops up in various briefs is that it did so in less ways than the government suggests, especially respecting those held before its passing. And, to the degree it allegedly does, it could/would cause a slew of problems, including constitutional in nature.

Again, the wariness of bluntness helps, since such a radical move traditionally is deemed to require a clear statement. This is sound given "independent states may of right do" only certain things. Declaration of Independence.

[I will discuss the citizenship issue later.]


* I'm about done with the aforementioned book on the slaveholding republic; it ends with a discussion of the Republicans taking power, including the religious aspects of Lincoln's thought. [In particular he thought our path was compelled from above, so it is not surprising that "under God" was particularly found in his Gettysburg Address.] A reference was made to Proverbs 29:18 for the principle that those without a vision perish. The RSV version: "Where there is no prophecy the people cast off restraint, but blessed is he who keeps the law."

** Souter/Ginsburg agreed, but dissented to the extent the ruling denied the U.S. citizen various rights; Scalia/Stevens dissented given a citizen was denied habeas rights without a clear suspension being in place. To the extent Scalia's dissent relied primarily on Hamdan's citizenship, Stevens clearly did not agree as underlined by Stevens' Rasul opinion vs. Scalia's dissent in that very case. Thus, there was surely more than four votes on the "combatant" issue relevant here.