On Enemy Combatants, International Law and the War on Terror

Federal district court judge Richard Leon ruled today that President Bush must release five detainees currently held at Guantanamo Bay. One of the five prisoners is Lakhdar Boumediene, whose case prompted the Supreme Court to allow federal courts to review whether detainees captured during the "war on terror" were being properly held. Judge Leon's ruling is the first of its kind and it is a resounding critique of Bush's handling of the "war on terror." To sum up, Judge Leon ruled that the five detainees were not properly designated "enemy combatants" because the evidence the Government used to detain them was a single, unidentified source. Finding this evidence to be entirely too flimsy, Leon ordered their release. Because I agree with the outcome of the decision, but disagree with the rationale, you may consider this post my concurring opinion.

Judge Leon did the right thing by ordering the release of the prisoners. However, by ruling that the Government had not properly designated Boumediene and his friends as "enemy combatants," Judge Leon is assuming that there can be properly designated "enemy combatants" in the "war on terror." This is a fundamental misreading of the international laws of war (as governed by the Geneva Conventions - treaties which the United States is a party to). In the interest of brevity, I will limit my argument to its fundamentals, so forgive me if it seems a bit choppy and underexplained.

First, Article I, Section 8, Clause 10 grants Congress the power to "... [D]efine and punish piracies and felonies committed on the high seas, and offenses against the law of nations;" Thus, constitutionally, it is the Congress that should be defining the criteria of "enemy combatant" status - not the Executive. However, according to the Supreme Court in Hamdi v. Rumsfeld, Congress delegated this authority to the President when it passed the AUMF immediately following 9/11. So far so good. Except that there's this wonderful little line of cases espousing a principle of constitutional interpretation called the "Charming Betsy rule." This rule dictates that U.S. statutes should not be read to violate established international law of war principles. This makes sense, our very Constitution was shaped and informed in light of international law. Plus, the policy of promoting comity between nations is one of the leading justifications for obeying international law principles - even when dictating domestic law. Thus, it is vital that our Constitution and the statutes which flow from it are interpreted according to the international standards that are accepted by the global community (this is especially true when considering jus in bello rules, which have remained unchanged since the time of Thomas Aquinas!).

So we turn to the Geneva Conventions to decide what to do about detaining "enemy combatants." Articles Three and Four of the Conventions dictate the law of war rule of "distinction," that is, in "armed conflict" there are civilians and combatants. Combatants are defined as those who belong to an enemy military and/or take up arms in "direct hostilities" against another warring nation (civilians are anyone else). Does this cover terrorists? It might appear to, since terrorists do seem to act in "direct hostility" to the United States. Here's the catch that the Supreme Court missed - Articles Three and Four of Geneva also divide "armed conflict" into two types: international and non-international. International armed conflict is what you think of when you think of war: State A vs. State B, WWI and WWII. Non-international conflict is defined as a nation vs. a non-national organization or group. This would include civil wars, rebellions and international criminal organizations. Thus we have the category that al Qaeda falls into; clearly, the "war on terror" is a non-international armed conflict according to international law of war principles. Finally, the most important fact to take note of: non-international armed conflict is not covered by Articles 3 and 4. It is covered by Common Article 3 and various Additional Protocols. These documents do not recognize the existence of the class of "enemy combatant" in non-international warfare. This is key! There's no such thing as an "enemy combatant." Does this mean we cannot detain terrorists? Of course not. The law of war contemplates (and commands) that in non-international warfare, detainees are subject to the domestic law of the captors! Thus, terrorists should (indeed, must) be tried in civil courts, like any other criminal. Amazingly, the Supreme Court has recognized that the "war on terror" is indeed a non-international armed conflict (it did so in a case called Hamdan v. Rumsfeld - not to be confused with Hamdi). However, it failed to make the necessary connection that "enemy combatant" status does not exist in the "war on terror."

Think about it, what happened to Timothy McVeigh, the Atlanta Olmypic bomber and the captured 9/11 terrorist plotter? They were all tried in civil courts for the domestic crimes of conspiracy to commit murder and murder. This is the correct answer to the question of captured terrorists. Sadly, while getting the result correct, Judge Leon failed to recognize the right way to get there. He ignores or does not realize the unconstitutional nature of detaining civilians in military courts. I trust that other district court judge's will see the light and follow the principles of Charming Betsy, Hamdan and the Geneva Conventions.

~JSK