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Thursday, August 31, 2006

Hamdan v. Rumsfeld and the Impossibility of POW claims going forward

Just when you thought you'd heard the last about Hamdan v. Rumsfeld...

    Both the government and Hamdan have filed motions with the D.C. Circuit suggesting how (and where) Hamdan’s petition should be handled going forward.  In brief, the government argues for a limited conception of what claims Hamdan has left to assert, and contends that any such remaining claims are to be resolved in the D.C. Circuit. Hamdan argues for a broader understanding of his remaining claims, and for resolution of them in the first instance by the district court. SCOTUSBLOG’s Lyle Deniston has more details, including links to both motions, here

    The debate is interesting in several respects, but there is one point I'd like to highlight concerning the extent to which the Hamdan ruling entails a silver lining for the government.  In its motion, DOJ points out that the original district court ruling in Hamdan referred in part to the proposition that Hamdan could not be tried by military commission until a GPW Article 5 tribunal is convened and determines that he is not entitled to POW status. DOJ notes that the DC Circuit reversed on that point, and that the Supreme Court in Hamdan expressly reserved judgment on the issue. Accordingly, DOJ now argues, the DC Circuit should vacate the portion of the district court’s injunction that requires a POW-status determination before any commission proceedings can begin.  Here’s the question, though.  Given that the Supreme Court famously holds that Hamdan is detained in connection with a Common Article 3 conflict, it follows that he is not detained in connection with a Common Article 2 conflict.  And if that is correct - and I have trouble seeing how it is not - then it falso ollows that neither he nor any other al Qaeda detainee going forward can maintain any claim to POW status (or to any other protections afforded by the Conventions other than what is contained in Common Article 3).  From the government's perspective, that is some degree of silver lining in a decision that otherwise turned out badly. And yet it appears (at least at first glance) that DoJ has not yet picked up on this point (and, indeed, that the Court itself did not appreciate it in Hamdan). 

    It's been a long day, so perhaps I'm missing something rather obvious.  Am I?

Posted by Bobby Chesney on August 31, 2006 at 10:33 PM | Permalink


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I am not sure that I agree with what seems to be the consensus view of the scope of the Hamdan opinion regarding the conflict with AQ. Hamdan was captured in Afghanistan during a situation of clear armed conflict. What of the detainees who were initially arrested by police authorities in say, Bosnia, and turned over to U.S. armed forces later on? I did not read the Hamdan opinion as expressly validating the administration's view of the existence of a global war against AQ, although it certainly seems to suggest that is the case. Is there, after Hamdan, any room to argue that persons captured in a country where no real armed conflict is taking place (armed conflict as was understood prior to 9/11) are not covered by LOAC at all, not even CA3, but are instead subject to treatment in accordance with human rights law?

Posted by: Jennifer Elsea | Sep 5, 2006 9:17:12 AM

I'll line up with those who believe that the Court does not qualify the conflict in which Hamdan is being detained as either international or non-international, but merely concludes that the substance of CA 3 applies, either because it's a non-international armed conflict or because it's an international armed conflict, for which the protections of CA 3 are contained in the applicable treaty law (GC III or IV) or in customary international humanitarian law (Article 75 of Additional Protocol I). So if there is an impediment to Hamdan's continued claim of entitlement to a GC III, Art. 5 "competent tribunal" proceeding, it ain't this.

Also, in response to Marty Lederman's comments, there WAS an international armed conflict between the US and Afghanistan, but it became non-international upon the transfer of power from Taliban to Karzai. (Likewise, the armed conflict in Iraq is no longer international). There is a question of the effect of that change upon the status of persons who were detained by a party to the conflict prior to the change and who continue in detention. If Hamdan continues to be entitled to international armed conflict (IAC) rights, then the lack of an Art. 5 proceeding remains relevant - not because he would likely be found entitled to PoW status, but because detainees about whose status there is doubt, and who have not had an Art. 5 proceeding, are entitled to PoW treatment (which would include the application of GC III Art. 102, which requires Hamdan to be tried (OK, sentenced) by the same courts using the same procedures as are applied to US military personnel). If Hamdan is no longer entitled to IAC rights, then it is only CA 3 and whatever additional customary IHL rules of N-IAC there may be. No, there is no issue of PoW status in that scenario.

As for Marty's "more interesting question," GC IV, Art. 4 says that everyone in the hands of a party to the conflict is protected unless they are a)nationals of the detaining authority, b)nationals of a State not bound by the Convention (no such thing any more), c)nationals of a neutral or co-belligerent state that maintains diplomatic representation in the detaining State, or d)protected by one of the other GCs. The text leads to the conclusion that as long as no other disqualifying features (above) are present, a person who takes part in hostilities but fails to achieve PoW status will default into GC IV protected status. It is relevant to note in this regard that unprivileged belligerency is certainly inconsistent with PoW entitlement, but it is not a violation of IHL (let alone a war crime), so there is no reason for it to be a disqualifier for GC IV protection.(This is why the term "unlawful combatant" should be tossed in the trash, unless it is a reference to domestic law that makes unprivileged belligerency a crime). I believe, however, there are some IHL heavy weights who disagree with this, but I don't know their rationale.

As for Dave Glazier's comment about one or two armed conflicts and the supposed need for the US to define the situation, I make no representation about the effect of domestic law, but CA 2 says that the Conventions apply to armed conflict between two or more Parties to the GCs "even if a state of war is not recognized by one of them." I think the same rule must apply in connection with the IHL of N-IAC, since it cannot be that its application is optional. Indeed, AP II Art. 1 says it applies to ALL armed conflicts not covered by AP I (and that are non-international). As for NIAC that does not fall within AP II (either because the State is not a Party or because the rebels hold no territory), the customary IHL of NIAC also recognizes no "opt-out" clause, although domestic law may so provide. (See ICRC Customary International Law study, which cites all the various rules applicable in NIAC.)

As for Dave's additional comment on the general inapplicability of GC IV to "war on terror" detainees and the need to go to Art. 75 of AP I, I think it important to note that if the "fundamental guarantees" of Art. 75 apply to "war on terror" detainees, it is not because of any default to Art. 75 upon failure to meet the criteria for the more specific status of protected persons under either GC III or GC IV. Article 75 would only apply de jure to a CA 2 armed conflict (i.e., between States). However, Article 75 is excellent evidence of what, in the language of CA 3, comprises "all the judicial guarantees which are recognized as indispensable by civilized peoples." Thus, Art. 75 judicial guarantees apply to NIAC detainees (as do the ICCPR's judicial and other guarantees, but that's another story). Other bits of Art. 75, however, would only apply to the extent they are customary for NIAC.

Posted by: Gabor Rona | Sep 1, 2006 6:36:04 PM

This is just another dreary example of DOJ concoting a fraudulent argument and arguing out of both sides of their mouth at the same time. It's all pretty clear is you just read their original briefs to the D.C. Cir. in Hamdan:

D.C. Cir. - Hamdan v. Rumsfeld, No. 04-5393



The Supreme Court simply said that it wasn't necessary for them to resolve CA2 v. CA3, because the commissions were illegal either way and al Qaeda would be protected by CA3 even if the government's arguments about the existence of separate armed conflicts were correct. The detentions simply were not an issue in this case.

And with respect, I think you are missing a few things here. There are four lower court opinions that are directly affected by Hamdan:

DDC - Hamdan, Khalid, and In re Guantanamo Detainee Cases

CAD - Hamdan

Only one of those opinions survived the S.Ct. Hamdan decsion intact, and that was Judge Robertson's opinion in Hamdan. Judge Green's opinion in In re Gitmo took a hit on her ruling that al Qaeda was not protected by Geneva, but that's not critical because her main holding was that ALL of the detainees were protected by the 5th Amendment to the Constitution.

On the other hand, the CAD opinion in Hamdan and Judge Leon's DDC decision in Khalid both got reduced to smoking piles of ashes. That is quite obvious from Judge Williams concurring opinion in Hamdan (CAD) stating that CA3 would in fact apply to al Qaeda detainees, but that it doesn't matter for the reasons stated by Judge Randolph i the main opinion.

They never reached the merits - their holding was that abstention, and / or deference, and /or unenforcibility per the fraudulent DOJ party line precluded them even reaching the merits. Same story in Kalid, only more so -- Clarence-Thomas-style.

Now DOJ is essentially trying to argue that the S.Ct. affirmed one of their utterly dishonest mis-readings of Geneva by decisvely repudiating all of their arguments as to WHY Geneva doesn't apply.

It's absolutely absurd.

Posted by: Charles Gittings | Sep 1, 2006 4:47:00 PM

Thanks to Steve, Marty, and Dave for their very interesting and insightful responses (typical of each of them, I should say). Let me boil them down to two issues:

1. Is there more than one armed conflict between the U.S. and al Qaeda?
2. Is it still possible after Hamdan to contend for CA2 status?

On the first issue, it seems reasonable to me to assert that at any given time the U.S. may be involved in more than one armed conflict for purposes of jus in bello analysis (even if the domestic authority for the use of force is traced (for the sake of argument) to a single AUMF). These conflicts may overlap, however, complicating the analysis. On this theory, we have (or at least we had) a CA2 conflict in Afghanistan with respect to the Taliban (recall that the President ultimately determined that the Taliban would be deemed the government of Afghanistan in Fall 2001 for purposes of GC issues). Because our conflict with al Qaeda is not coextensive with the Afghanistan campaign either temporally or geographically, however, the conflict with al Qaeda arguably is best viewed as a distinct conflict that on the whole does not qualify under CA2, except insofar as it intertwined with the aforementioned CA2 conflict in Afghanistan (it does not follow in the latter case that AQ detainees are entitled to POW status, however, nor - for the reasons Dave highlights - that they would get the full benefit of GCIV either). In short, I think I agree with Marty on the two-track analysis.

The second issue - does the Hamdan decision foreclose a CA2 claim - is more complex than I originally suggested, as Steve and Dave point out. I agree that the majority opinion goes out of its way not to actually take a position on this issue. I also agree that there is language - particularly in note 63 - suggesting that CA3 standards are applicable to all armed conflicts, not just to those "not of an international character." On the other hand, the thrust of the court's analysis in that section (roughly pp. 67-70 of the slip opinion) is to rebut the government's claim that CA3's scope should be narrowly construed so as to apply only to civil wars within the territory of signatory states. The court does not expressly hold that CA3 itself can be construed to apply directly to those conflicts that qualify as "international armed conflicts" for purposes of CA2, and indeed it really would be hard to square such an interpretation with the fact that CA2 is conditioned on there being an "international armed conflict" while CA3 expressly refers to conflicts "not of an international character." Nor need one adopt such a countertextual interpretation in order to maintain the position that the substantive standards embodied in CA3 are always applicable in armed conflicts generally, since one could reach that result by concluding that those standards have achieved CIL status for all armed conflict. That approach, of course, raises distinct issues regarding the extent of domestic judicial enforceability in the U.S. (compared to an approach that construes CA3 itself to always apply), a consideration which naturally will impact the extent to which the competing litigants will find it attractive.

All that said, the bottom line is that Hamdan does not clearly foreclose a CA2-based argument for AQ detainees, though in my view it ought to be understood as making such an argument harder to maintain. I also want to acknowledge that it is far easier to describe the categorical boundaries mentioned above in the context of a casual blog post than it is to operationalize them in the real world.

Posted by: Bobby Chesney | Sep 1, 2006 1:29:05 PM

Marty - a quick followup to address your last point. I think your assumption that Geneva IV should apply to persons not qualifying for POW/Geneva III protections in an international armed conflict is generally correct, particularly since you caveat it to apply to nationals of the enemy state. The practical problem with Geneva IV application in the war in terror is, of course, that the US is not at war with the nations where most members of al Qaeda come from, and Geneva IV's definition of protected persons basically excludes citizens of states with which the belligerent has normal diplomatic relations. (All 10 of the persons currently facing military commission charges are from countries with which the U.S. currently has formal relations).

That's why Article 75 of Additional Geneva Protocol I, which the U.S. has agreed in several past pronouncements is declaratory of customary international law, is so important. Unlike the very general CA3, it provides some useful specificity in its provisions, and more importantly, is intended to apply to anyone not covered by a more specific treaty provision. I think the Hamdan plurality's suggestion that Art. 75 be read in conjunction with CA3 to clarify the latter's more generic language is the preferable approach to persons not falling clearly within the purview of Geneva III or IV. The advantage of CA3 is that it (at least for now) has teeth by being addressed in the War Crimes Act; the advantage of AP I art. 75 is that it has useful specificity, making the two together a synergistic combination.

Posted by: Dave Glazier | Sep 1, 2006 12:52:46 PM

Marty/Bobby -
(1) Can there really be separate armed conflicts against al Qaeda and the Taliban when Congress enacted a single AUMF? It seems to me that if we're going to take the rule of law seriously, the U.S. must legally define a conflict consistently with our own constitutional processes. Whatever form congressional authorization takes, whether a declaration of war or authorizing resolution, should therefore be given sigificant authority in defining the legal scope of the conflict. I suppose it's possible to read the AUMF as a series of blank checks that the President can simply fill in with the names of each new group/nation he finds participated in or aided the 9/11 attacks. But I'd think a better reading is that it authorizes a single conflict against those found collectively responsible. The war in Iraq, is of course, an entirely separate conflict both because it was separately authorized by Congress and because even President Bush has stopped just short of definitively claiming that Iraq's involvement with terrorism reached the threshhold specified by the AUMF.

(2) IF the Hamdan Court had definitively stated that the conflict Hamdan was captured in was a CA3 conflict and not an international conflict as defined in CA2, it would make sense to argue that an Article 5 tribunal was moot. But careful reading of Hamdan shows the decision is actually very imprecise - the Court essentially treats CA3 as if its lesser protections would necessarily be found in the full POW Convention, and by finding that at minimum CA3 would apply, the same result – halting the commissions – is reached whether it is a CA2 or CA3 conflict. The Court thus never holds Hamdan was not captured in a CA2 conflict, just that even if he was not, it was at least a CA3 conflict. Footnote 61 specifically addresses the Article 5 tribunal issue, noting that the Court is not deciding the issue of whether one still might be required. One thing the Court does not address is whether the DC Circuit was correct in holding that the commissions themselves could serve as the Article 5 tribunal, first deciding whether or not the accused was qualified for POW status before proceeding to the merits of the charges against them. While there are lots of reason to dislike this dual role, it does seem consistent with some historic precedents I’ve found dating back to the Civil War and seems implicitly supported by the language of Additional Geneva Protocol I article 45.

(3) I’ve rewritten my forthcoming BU Intl L J paper on international law applicable law to the commissions to address the Hamdan decision which I think really leaves all the key international law issues unresolved. My latest draft is posted here:


and I’d most definitely welcome any constructive criticism while there’s still a bit of time to make final changes.

Posted by: Davie Glazier | Sep 1, 2006 12:28:16 PM

Well, there are at least two armed conflicts here, right? -- against Afghanistan and against Al Qaeda (not to mention the conflict in Iraq). I think the Article 5 issue probably remains with respect to someone detained in the Afghan war (or in Iraq), even if they are suspected of being part of Al Qaeda. Someone detained "solely" in the conflict with Al Qaeda, however -- say, in Pakistan or in Europe -- is detained only in a conflict not of an international character, and thus apparently receives "only" CA3 protections. Isn't that what happens in a "traditional" internal civil war, which is the prototype of a conflict not of an international character -- or is there some issue of POW status even there?

(I'm putting aside here any complications potentially arising in a case involving possible civilians, i.e., implicating GCIV.)

I must admit that I've never quite understood the emphasis on the Article 5 question. With the possible exception of a few Taliban detainees, it seems implausible that many of the detainees in these wars, outside of Iraq, would qualify for POW status. That's why, for me, Common Article 3 has always been the whole ballgame. Which is no small thing, because CA3 *ought* to be read to prohibit most of the "enhanced" CIA techniques, and those secretly approved for the military in 2003 per the Working Group Report.

The more interesting question, for me, is what Geneva protections, if any, are available for non-POW belligerent detainees -- e.g., terrorists or "brigands" -- in a war that is of an international character, e.g., Al Qaeda detainees captured in Afghanistan. My rough understanding is that perhaps Geneva IV is the applicable law -- at least as to nationals of the nation with whom we are at war -- as it is with respect to most detainees in Iraq. But at this point I'm afraid I'm just repeating what others have told me.

Posted by: Marty Lederman | Sep 1, 2006 8:59:46 AM

Bobby -- Is it possible to see the Court's decision as an either/or proposition -- that CA3 applies at a minimum, without reaching whether CA2 (and therefore the rest of substantive Geneva) applies? If so, then this doesn't necessarily follow, right?

Posted by: Steve Vladeck | Sep 1, 2006 2:39:58 AM

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