Annie
Diamond Member
- Nov 22, 2003
- 50,848
- 4,830
- 1,790
How many times, by how many posters is it going to take until you understand that you are not bringing anything to the subject, other than your bleeding heart angst?
Never?Here's Why The Media Denies it Was Terrorism
- Thread starter PoliticalChic
- Start date
Never?
HUGGY
I Post Because I Care
How many times, by how many posters is it going to take until you understand that you are not bringing anything to the subject, other than your bleeding heart angst?
How many times do you have to be reminded that there has been no trial yet.
You state facts? You claim I cover for Bush and Blame Obama. I have plainly stated that Both contributed and are to blame. Was this preventable? Possibly, though given the climate, the odds were against it, being stopped. Did PC contribute to this? Probably. Will it again? Probably. Does Obama take the hit Yes. It's His Job. The Crime happened on His Watch.
DrSmith: Here I will ask a few simple questions and you can answer them with the factual responses.
DrSmith: When did obama become president?
1/20/2009.
DrSmith: How far back were hasan's "red flags" popping up?
Here is some of what I could track down.
Questions Abound as Warning Signs Stifled About Major Nidal Malik Hasan
Posted by Staff on Nov 19th, 2009 // No Comment
In the wake of the tragedy at Fort Hood, in which Major Nidal Malik Hasan has been accused in the deaths of 13 fellow unarmed soldiers during a shooting rampage on November 5, questions have risen as to whether warning signs were stifled for the sake of political correctness.
Supposed inaction by the military, as well as in the civilian sphere, have drawn ire after some have denounced the lack of investigation into whether Hasan suffered from post-traumatic stress disorder (PTSD), or whether his attack was fueled by Islamic extremism, or a combination of both. They claim that even in the post-attack media and military investigation, valid questions are not being asked for the sake of political correctness.
Yet, others point out that the value of political correctness cannot be deciphered from such a tragedy, but in the general good that it provides. They cite examples such as the desegregation of the military and the presence of women in the military as examples where politically correct motives has lead to real advancement in the military sphere and society at large.
The military, the media, and ultimately the people, are weighing the value of political correctness and their commitment to it in the post-attack discussion and reaction.
Questions Abound as Warning Signs Stifled About Major Nidal Malik Hasan | eCanadaNow
The FBI knew for nearly a year before his murderous Fort Hood rampage that psycho Army Maj. Nidal Malik Hasan had repeatedly contacted al Qaeda -- but the blundering agency last night admitted it dismissed the lead.
The clueless G-men said that at the time, they simply chalked up the chilling e-mails between Hasan and a radical imam and other terror-tied Islamic figures to his "research" as an Army shrink.
Outraged congressional leaders immediately called for a probe into the debacle -- and the red-faced agency vowed to get to the bottom of things itself.
Read more: FBI blew off killer e-mail to al Qaeda
United States Army Major Nidal Hasan proclaimed himself a "soldier of Allah" on private business cards he obtained over the Internet and kept in a box at his apartment near Fort Hood, Texas.
Major Nidal Hasan's private business card, which he obtained over the Internet and kept in a box at his apartment near Fort Hood, Texas.
(ABC News)Hasan, the alleged perpetrator of last week's fatal shootings in Fort Hood, TX, was charged Thursday with 13 counts of premeditated murder under Article 118 of the Uniform Code of Military Justice, which can carry a sentence up to death or life imprisonment.
The cards make no mention of his military affiliation, but underneath his name he listed himself as SoA (SWT). SoA is commonly used on jihadist Web sites as the acronym for Soldier of Allah, according to investigators and experts who have studied such sites. SWT is commonly used by Muslims as an acronym for Subhanahu Wa Ta'ala, Glory to God.
"He was making no secret of allegiances," said former FBI agent Brad Garrett, an ABC News consultant.
Related
FBI Agents Search Trash At Mosque Attended by HasanWATCH: Inside the Home of Nidal HasanMore from Brian Ross and the Investigative Team"It's one more piece of evidence that might have come out if investigators had taken a hard look at Hasan," said Garrett. "It doesn't say he's about to go out and shoot a bunch of people, but there's something not quite right for an Army major to self-identify that way."
The green and white business cards include the title Behavior Heatlh (sic) Mental Health and Life Skills.
Hasan listed a Maryland area mobile phone number and an aol.com e-mail address.
U.S. officials and analysts told ABCNews.com today that Hasan used multiple e-mail addresses and screen names as he contacted several jihadist web sites around the world.
CLICK HERE TO SEE INSIDE THE HOME OF NIDAL HASAN
In addition to his contacts with suspected al Qaeda recruiter Anwar al Awlaki in Yemen, authorities said there is evidence he contacted other radical sites and individuals, including some in Europe.
On Hasan's official Army personnel record, obtained by ABCNews.com., Hasan lists his e-mail address using the first name of Abduwall, instead of Nidal. Abduwalli, in Arabic, means "slave of" the great protector, or God.
Hasan Had Multiple E-mail Accounts, Officials Said - ABC News
A Walter Reed staff member familiar with his medical training told The Washington Post that Hasan was ordered to attend university lectures on terrorism, Islam and the Middle East in the hopes of redirecting his increasing preoccupation with the conflicts felt by Muslim American soldiers on the front lines.
U.S. military doctors overseeing Hasan's medical training reportedly had been worried he was "psychotic" and possibly capable of killing other American soldiers.
Medical officials at Walter Reed Army Medical Center held a series of meetings beginning in the Spring of 2008 to discuss serious concerns about Hasan's work and behavior, National Public Radio reported.
"Put it this way," one official told NPR. "Everybody felt that if you were deployed to Iraq or Afghanistan, you would not want Nidal Hasan in your foxhole."
An official who participated in the discussions reportedly told others he was worried that if Hasan was deployed to Iraq or Afghanistan, he might leak covert military information to Islamic extremists, NPR reported.
Another official "wondered aloud" to colleagues whether Hasan might be capable of killing fellow soldiers in the same way a Muslim sergeant in 2003 had set off grenades at a base in Kuwait, killing two and wounding 14, the radio network reported.
The officials who discussed Hasan's status were unaware - as some top Walter Reed hospital officials were - that intelligence agencies had been tracking Hasan's e-mails to a radical imam since December 2008, NPR said.
Officials considered kicking Hasan out of the program but chose not to partly because firing a doctor is a "cumbersome and lengthy" process that involves hearings and potential legal conflict, sources told NPR.
Officials also believed they lacked solid evidence that Hasan was unstable and were concerned they could be accused of discriminating against him because of his Islamic identity or views.
FOX News - Top Stories - Top Stories - Hasan's Business Cards Refer to 'Soldier of Allah'
This Report was presented to Top Army Doctors in June 2007
"The Koranic World View As It Relates to Muslims in The U.S. Military" by Major Nidal Malik Hasan
http://atlasshrugs2000.typepad.com/MAJHasanSlides.pdf
DrSmith: Here I will ask a few simple questions and you can answer them with the factual responses.
DrSmith: When did obama become president?
1/20/2009.
DrSmith: How far back were hasan's "red flags" popping up?
Here is some of what I could track down.
Questions Abound as Warning Signs Stifled About Major Nidal Malik Hasan
Posted by Staff on Nov 19th, 2009 // No Comment
In the wake of the tragedy at Fort Hood, in which Major Nidal Malik Hasan has been accused in the deaths of 13 fellow unarmed soldiers during a shooting rampage on November 5, questions have risen as to whether warning signs were stifled for the sake of political correctness.
Supposed inaction by the military, as well as in the civilian sphere, have drawn ire after some have denounced the lack of investigation into whether Hasan suffered from post-traumatic stress disorder (PTSD), or whether his attack was fueled by Islamic extremism, or a combination of both. They claim that even in the post-attack media and military investigation, valid questions are not being asked for the sake of political correctness.
Yet, others point out that the value of political correctness cannot be deciphered from such a tragedy, but in the general good that it provides. They cite examples such as the desegregation of the military and the presence of women in the military as examples where politically correct motives has lead to real advancement in the military sphere and society at large.
The military, the media, and ultimately the people, are weighing the value of political correctness and their commitment to it in the post-attack discussion and reaction.
Questions Abound as Warning Signs Stifled About Major Nidal Malik Hasan | eCanadaNow
The FBI knew for nearly a year before his murderous Fort Hood rampage that psycho Army Maj. Nidal Malik Hasan had repeatedly contacted al Qaeda -- but the blundering agency last night admitted it dismissed the lead.
The clueless G-men said that at the time, they simply chalked up the chilling e-mails between Hasan and a radical imam and other terror-tied Islamic figures to his "research" as an Army shrink.
Outraged congressional leaders immediately called for a probe into the debacle -- and the red-faced agency vowed to get to the bottom of things itself.
Read more: FBI blew off killer e-mail to al Qaeda
United States Army Major Nidal Hasan proclaimed himself a "soldier of Allah" on private business cards he obtained over the Internet and kept in a box at his apartment near Fort Hood, Texas.
Major Nidal Hasan's private business card, which he obtained over the Internet and kept in a box at his apartment near Fort Hood, Texas.
(ABC News)Hasan, the alleged perpetrator of last week's fatal shootings in Fort Hood, TX, was charged Thursday with 13 counts of premeditated murder under Article 118 of the Uniform Code of Military Justice, which can carry a sentence up to death or life imprisonment.
The cards make no mention of his military affiliation, but underneath his name he listed himself as SoA (SWT). SoA is commonly used on jihadist Web sites as the acronym for Soldier of Allah, according to investigators and experts who have studied such sites. SWT is commonly used by Muslims as an acronym for Subhanahu Wa Ta'ala, Glory to God.
"He was making no secret of allegiances," said former FBI agent Brad Garrett, an ABC News consultant.
Related
FBI Agents Search Trash At Mosque Attended by HasanWATCH: Inside the Home of Nidal HasanMore from Brian Ross and the Investigative Team"It's one more piece of evidence that might have come out if investigators had taken a hard look at Hasan," said Garrett. "It doesn't say he's about to go out and shoot a bunch of people, but there's something not quite right for an Army major to self-identify that way."
The green and white business cards include the title Behavior Heatlh (sic) Mental Health and Life Skills.
Hasan listed a Maryland area mobile phone number and an aol.com e-mail address.
U.S. officials and analysts told ABCNews.com today that Hasan used multiple e-mail addresses and screen names as he contacted several jihadist web sites around the world.
CLICK HERE TO SEE INSIDE THE HOME OF NIDAL HASAN
In addition to his contacts with suspected al Qaeda recruiter Anwar al Awlaki in Yemen, authorities said there is evidence he contacted other radical sites and individuals, including some in Europe.
On Hasan's official Army personnel record, obtained by ABCNews.com., Hasan lists his e-mail address using the first name of Abduwall, instead of Nidal. Abduwalli, in Arabic, means "slave of" the great protector, or God.
Hasan Had Multiple E-mail Accounts, Officials Said - ABC News
A Walter Reed staff member familiar with his medical training told The Washington Post that Hasan was ordered to attend university lectures on terrorism, Islam and the Middle East in the hopes of redirecting his increasing preoccupation with the conflicts felt by Muslim American soldiers on the front lines.
U.S. military doctors overseeing Hasan's medical training reportedly had been worried he was "psychotic" and possibly capable of killing other American soldiers.
Medical officials at Walter Reed Army Medical Center held a series of meetings beginning in the Spring of 2008 to discuss serious concerns about Hasan's work and behavior, National Public Radio reported.
"Put it this way," one official told NPR. "Everybody felt that if you were deployed to Iraq or Afghanistan, you would not want Nidal Hasan in your foxhole."
An official who participated in the discussions reportedly told others he was worried that if Hasan was deployed to Iraq or Afghanistan, he might leak covert military information to Islamic extremists, NPR reported.
Another official "wondered aloud" to colleagues whether Hasan might be capable of killing fellow soldiers in the same way a Muslim sergeant in 2003 had set off grenades at a base in Kuwait, killing two and wounding 14, the radio network reported.
The officials who discussed Hasan's status were unaware - as some top Walter Reed hospital officials were - that intelligence agencies had been tracking Hasan's e-mails to a radical imam since December 2008, NPR said.
Officials considered kicking Hasan out of the program but chose not to partly because firing a doctor is a "cumbersome and lengthy" process that involves hearings and potential legal conflict, sources told NPR.
Officials also believed they lacked solid evidence that Hasan was unstable and were concerned they could be accused of discriminating against him because of his Islamic identity or views.
FOX News - Top Stories - Top Stories - Hasan's Business Cards Refer to 'Soldier of Allah'
This Report was presented to Top Army Doctors in June 2007
"The Koranic World View As It Relates to Muslims in The U.S. Military" by Major Nidal Malik Hasan
http://atlasshrugs2000.typepad.com/MAJHasanSlides.pdf
Follow the Link shit Brain and then comment.
NAVAL WAR COLLEGE
Newport, R.I.
TERRORISTS AS ENEMY COMBATANTS
An Analysis of How the United States Applies the Law of Armed Conflict
in the Global War on Terrorism
By
Scott Reid
MAJ, U.S. Army
A paper submitted to the Faculty of the Naval War College in partial satisfaction of the
requirements of the Department of Joint Maritime Operations.
The contents of this paper reflect my own personal views and are not necessarily endorsed by
the Naval War College or the Department of the Navy.
Signature: ___________________
9 February 2004
TABLE OF CONTENTS
Introduction -------------------------------------------------------------------------------------- 1
Part I: Jus ad Bellum – Justifying the Use
of Armed Force Against Terrorists ------------------------------------------------ 2
A. The Significance of Engaging Terrorists
As Enemies Instead of Criminals ---------------------------------------------------- 2
B. Authority to Use Military Force Against Terrorists ----------------------------- 2
Part II: Jus in Bello – Examining the Rules That Apply
to Al Qaeda and Taliban Forces as Enemy Combatants ----------------------- 3
A. The Privileges of Lawful Combatancy --------------------------------------------- 3
B. The U.S. View: Al Qaeda and Taliban
Are Unlawful Combatants ----------------------------------------------------------- 4
C. Al Qaeda Members Are Always
Unlawful Combatants ----------------------------------------------------------------- 4
D. Taliban Forces Are Unlawful Combatants
Because of Their Conduct ------------------------------------------------------------ 5
1. The Geneva Conventions Apply to the Taliban ------------------------------ 5
2. The Taliban Failed to Qualify As Lawful
Combatants Eligible for POW Protections ------------------------------------ 7
a. Wearing emblems and carrying arms --------------------------------- 8
b. Failure to conduct operations in accordance
with the laws and customs of war --------------------------------------- 10
c. A cautionary note ---------------------------------------------------------- 10
E. Rules Governing Detention ------------------------------------------------------------ 11
1. Conditions of Internment ----------------------------------------------------------- 11
2. Repatriation --------------------------------------------------------------------------- 11
3. The President’s Military Order
– Authority to Detain “Certain Non-Citizens” ----------------------------------- 12
4. Challenging Detention ----------------------------------------------------------------- 13
a. In Federal Court --------------------------------------------------------------- 13
b. Geneva POW Convention -- Article 5 Tribunals ------------------------ 14
F. Lawful Combatants Receive Greater Due Process
if Charged With a Crime ------------------------------------------------------------------ 15
Conclusion --------------------------------------------------------------------------------------------- 16
Abstract
TERRORISTS AS ENEMY COMBATANTS
An Analysis of How the United States Applies the Law of Armed Conflict
in the Global War on Terrorism
Commanders need to understand how the law of armed conflict applies to the various
enemy forces they are likely to encounter while combating terrorism. Historically, terrorists
have been regarded as bandits and held criminally responsible for their unlawful acts under
domestic law. However, after the attacks on the World Trade Center and Pentagon in
September 2001, the U.S. decided to engage transnational terrorists in armed conflict. As
enemy combatants, terrorists may be lawfully killed by virtue of their membership in the
enemy group rather than their individual conduct.
If a nation’s armed forces harbor or support terrorists, the facts will determine whether
they are lawful or unlawful combatants. Lawful combatants are protected under the Geneva
Convention Relative to the Treatment of Prisoners of War and entitled to specific privileges
while captured. Unlawful combatants have no such rights. The President has considerable
latitude in identifying, detaining, and punishing them.
As U.S. forces engage terrorists and the states that harbor them, we should expect to
encounter both lawful and unlawful combatants. This paper explains what the difference is
and why it matters.
1
INTRODUCTION
The recent activities of transnational1 terrorist organizations have transcended the realm
of mere criminality. For more than a decade, the Al Qaeda terror network has repeatedly
attacked U.S. citizens, property, and military interests, to wit: the World Trade Center in
1993, the U.S. Embassies in Kenya and Tanzania in 1998, the U.S.S. Cole in a Yemeni port
in 2000, and the World Trade Center and Pentagon on September 11, 2001. Al Qaeda has
been characterized by one observer as a “modern army” with combat power, considerable
financial resources, decentralized command and control, and operational reach into all the
nations of the world.2 The President has responded to Al Qaeda’s asymmetric attacks with
military force, which perversely elevates the status of these terrorists from criminals to
enemies.3 When the Taliban government of Afghanistan persisted in providing Al Qaeda
with a safe haven, it became our enemy as well.4
Military commanders need to understand how the laws of armed conflict apply when
terrorists are treated as enemy combatants. Using Operation Enduring Freedom as an
analytical model, this paper demonstrates the legal advantages of treating terrorists as
enemies while highlighting the distinctions between lawful and unlawful combatants. Part I
sets forth the legal framework for using armed force against Al Qaeda and the Taliban, and
explains the advantages of treating terrorists as enemy combatants instead of criminals. Part
II analyzes the Bush Administration’s decision that neither Al Qaeda nor Taliban forces are
lawful combatants, focusing on the criteria for lawful combatancy and the rules regarding
detention and punishment. Careful study reveals that transnational terrorists will always be
unlawful enemy combatants, but the issue is fact-dependent with regard to the armed forces
of states that support terrorism.
2
Part I: Jus ad Bellum5 – Justifying the Use of Armed Force Against Terrorists
A. The Significance of Engaging Terrorists As Enemies Instead of Criminals
The biggest advantage in treating Al Qaeda and Taliban members as enemy combatants
is the right to kill them by virtue of their collective enemy status instead of arresting them for
their individual criminal acts.6 If terror acts are only domestic crimes, then law enforcement
agencies must investigate to determine who is individually responsible. They must capture
the criminals unless it is necessary to kill in self-defense.7 However, if the nature and
frequency of terror acts rise to the level of an armed conflict, there is no requirement to
determine individual criminal responsibility, demand surrender, or limit the use of force to
self-defense.8
B. Authority to Use Military Force Against Terrorists
The Posse Comitatus Act limits the military’s role in supporting federal agencies
responsible for enforcing our civil laws. 9 When terrorism rises to the level of a national
security threat, the Department of Defense transitions from supporting cast member to lead
actor because the President has an inherent authority to use the military to deter and prevent
acts of international terrorism against the United States.10 He may use military force “in the
event of (1) a declaration of war, (2) specific statutory authorization, or (3) a national
emergency created by attack upon the United States, its territories or possessions, or its
armed forces.”11 However, he must consult with Congress beforehand when possible, and
must keep Congress informed throughout the conflict.12
The Posse Comitatus Act does not impede military action against Al Qaeda. After the
attacks of September 11, 2001, the President declared a national emergency.13 Congress
3
promptly passed a joint resolution authorizing the use of military force against the
perpetrators and all who supported them:
[T]he President is authorized to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001,
or harbored such organizations or persons, in order to prevent
any future acts of international terrorism against the United
States by such nations, organizations, or persons.” 14
Because Al Qaeda is a private organization, the provisions of the Charter of the United
Nations (U.N.) governing the use of force against nations do not apply to the U.S.-Al Qaeda
conflict.15 The U.N. Charter does, however, govern the use of force against the Taliban. It
restricts nations from using force against each other unless acting in self defense or under a
U.N. Security Council authorizing such force.16 Although the Security Council never
affirmatively authorized the use of force against the Taliban, it passed resolutions
recognizing the United States’ right of self-defense. The resolutions declared that all states
shall “deny safe haven to those who finance, plan, support, or commit terrorist acts, or
provide safe havens” and “prevent those who finance, plan, facilitate or commit terrorist acts
from using their respective territories for those purposes against other States or their
citizens.”17 As a result, the U.S. was legally justified in pursuing Al Qaeda with armed force
and engaging the Taliban forces protecting those terrorists.
Part II: Jus in Bello – Examining the Rules That Apply to Al Qaeda
and Taliban Forces as Enemy Combatants
A. The Privileges of Lawful Combatancy
Although U.S. forces clearly had authority to kill Taliban and Al Qaeda members, issues
of detention and sanction are more complex. At the root of each issue is the distinction
4
between lawful and unlawful combatants. When a nation’s warriors meet the standards for
lawful combatancy, they are entitled to specific privileges under the law of armed conflict.
In international conflicts, such forces are immune from criminal liability when they attack
proper military targets. 18 They are also entitled to the protections of the 1949 Geneva
Convention on Treatment of Prisoners of War (POWs) [hereinafter “Geneva POW
convention”] upon capture. These protections include special privileges while detained,
repatriation at the end of hostilities, and specific due process rights if charged with a crime.19
B. The U.S. View: Al Qaeda and Taliban Are Unlawful Combatants
In February 2002, the Bush Administration announced that neither Al Qaeda nor the
Taliban forces qualified for POW protection, but emphasized that all captured Taliban and Al
Qaeda personnel would be treated humanely in accordance with the general principles of the
Convention and that delegates of the International Committee of the Red Cross would be
allowed to privately visit any detainee.20 The following sections examine the rationale
offered in support of the policy. Although some of it is particularly vulnerable to criticism,
good legal and practical reasons exist to deny lawful combatant status to both Al Qaeda and
Taliban forces.
C. Al Qaeda Members Are Always Unlawful Combatants
The U.S. position on the status of Al Qaeda members is sound. The Geneva Conventions
are contracts between sovereign nations, triggered by international armed conflict.21 Since
the Al Qaeda terror network is not a state, it cannot be a party to the POW convention.22 The
ability to make treaties with other nations is a benefit of statehood.23 States can enforce their
treaties through direct actions such as sanctions, but also through an infinite variety of more
subtle and indirect diplomatic pressures; for example, voting against a country’s bid to host
5
an Olympics. There is no comparable inventory of carrots and sticks available to regulate the
conduct of a stateless terror organization.
Only a fraction of the law of armed conflict protects Al Qaeda forces. Additional
Protocols I and II to the Geneva Conventions guarantee of humane treatment for all persons
who are “in the power of a Party to the conflict” or have “ceased to take part in hostilities”
for any reason.24 Although the U.S. has not ratified either treaty, it considers these
provisions to be customary international law. 25 The U.S. has afforded Al Qaeda members
the fundamental humane treatment prescribed by the Protocols, but international law contains
no higher obligation to them.26 When terrorists decide to attack a sovereign nation, they are
almost entirely at the mercy of the sovereign. Affording them any greater legal combatant
status would only serve to legitimize terrorism.
D. Taliban Forces Are Unlawful Combatants Because of Their Conduct
1. The Geneva Conventions Apply to the Taliban
The U.S. position with regard to the Taliban, although ultimately defensible, requires
closer examination. Taliban forces are the armed forces of a party to an international armed
conflict, and the Administration has acknowledged that the Geneva Convention on the
treatment of POWs applies to the hostilities between the U.S. and the Taliban.27 Article 2,
common to all four Geneva Conventions, states that each Convention will apply in full “to all
cases of declared war or other armed conflict which may arise” between states.28 Although
Al Qaeda are unlawful combatants due to their status as a stateless force, the Taliban are
unlawful combatants due to how they conduct themselves as the armed forces of a state.
The fact that the U.S. did not recognize the Taliban as the government of Afghanistan is
irrelevant.29 International law establishes four criteria for an entity to be regarded as a state:
6
defined territory, a permanent population, control by its own internal government, and the
capacity to conduct international relations.30 The Taliban controlled ninety percent of the
territory of Afghanistan and governed the population.31 It had the capacity to conduct
international relations and in fact had diplomatic relations with Pakistan, Saudi Arabia, and
United Arab Emirates until September 2001. 32 Afghanistan may have been a pariah state,
but it did not cease to be a state simply because most of the world condemned the Taliban’s
methods of government.33
What if Al Qaeda had been so intermingled with the Taliban government and armed
forces so that the two groups were indistinguishable? Some have argued that such an
incestuous relationship did exist, and it made Afghanistan an outlaw state that could not
claim to be a party to the Geneva POW convention.34 This argument is somewhat attractive,
but it confuses the concept of a rogue state with a failed state. As the district court reviewing
the case of “American Taliban” soldier John Walker Lindh noted, “the government has not
argued … that the Taliban's role in providing a home, a headquarters, and support to Al
Qaeda and its international terrorist activities serve to transform the Taliban from a legitimate
state government into a terrorist institution whose soldiers are not entitled to lawful
combatant immunity status.” 35
A better “Afghanistan-as-failed-state” argument should insist the Taliban actually failed
to govern, emphasizing its miserable record with regard to education, healthcare, food
distribution, transportation, electricity, water, and refugee flight. Ultimately, though, the
most realistic conclusion is the one adopted by the Administration. When a group succeeds
in taking over a state and governing its population–however dubiously--it wins the benefits
7
of statehood. The Taliban did not forfeit its status as a state government simply because it
provided hospitality to Al Qaeda or governed a primitive land.
The Geneva conventions apply to states even if they sponsor terrorist acts. The next step
is to determine whether Taliban forces met the legal standards required to reap the benefits of
their treaties.
2. The Taliban Failed to Qualify As Lawful Combatants Eligible for POW
Protections
On February 20, 2002, the U.S. Ambassador-at-Large for War Crimes Issues, Pierre-
Richard Prosper, opined that Taliban forces were not entitled to POW status upon capture:
[A] careful analysis through the lens of the Geneva Convention
leads us to the conclusion that the Taliban detainees do not
meet the legal criteria under Article 4 of the convention which
would have entitled them to POW status. They are not under a
responsible command. They do not conduct their operations in
accordance with the laws and customs of war. They do not
have a fixed distinctive sign recognizable from a distance. And
they do not carry their arms openly. Their conduct and history
of attacking civilian populations, disregarding human life and
conventional norms, and promoting barbaric philosophies
represents firm proof of their denied status.36
Unfortunately, the Ambassador did not support his conclusions with any examples. What
about the Taliban command structure rendered it irresponsible? Responsible command
means that a unit has an identified leader who controls his subordinates and is liable for any
unlawful acts he directed or allowed to happen.37 Taliban forces certainly must have
demonstrated some kind of responsible command structure when it defeated its competitors
for control of Afghanistan after the withdrawal of the Soviet Union in the early 1990s.38
Moreover, it is difficult to see the logic in the charge that Taliban forces, as a matter of
organizational practice, failed to carry their weapons openly. The problem with
distinguishing soldiers from civilians in Afghanistan was that practically every man of
8
suitable age carried a weapon openly.39 Finally, the Ambassador’s insistence that the Taliban
government’s history of human rights abuses disqualifies its army as a lawful belligerent is
not persuasive. The abominable practices of the Taliban forces must be related to the
international armed conflict with the United States.40
Fortunately for the Administration, White House Press Secretary Ari Fleischer had
provided a more focused rationale just two weeks earlier:
Under Article 4 of the Geneva Convention . . . Taliban
detainees are not entitled to POW status. To qualify as POWs
under Article 4, Al Qaeda and Taliban detainees would have to
have satisfied four conditions: They would have to be part of a
military hierarchy; they would have to have worn uniforms or
other distinctive signs visible at a distance; they would have to
have carried arms openly; and they would have to have
conducted their military operations in accordance with the laws
and customs of war.
The Taliban have not effectively distinguished themselves
from the civilian population of Afghanistan. Moreover, they
have not conducted their operations in accordance with the
laws and customs of war. Instead, they have knowingly
adopted and provided support to the unlawful terrorist
objectives of the Al Qaeda. 41
Mr. Fleischer’s argument about the Taliban failing to distinguish itself from the civilian
population is legally and logically sound. However, his next statement–that the Taliban does
not operate in accordance with the laws of war because it “adopts and supports” Al Qaeda
objectives translates into failure–stands on shaky legs.
a. Wearing emblems and carrying arms
The four conditions for lawful combatancy cited by the White House actually apply to the
Taliban as “the armed forces of a Party to the conflict”42 by way of the Hague Convention of
1907.43 The Geneva POW convention does not reiterate these criteria defining a nation’s
armed forces, but unlawful combatants could never establish legitimacy by merely claiming
9
to be “regular” armed forces without meeting the underlying Hague standards.44 To the
extent it can be proven that the Taliban army does not wear uniforms that distinguish its
members from a civilian population bearing abundant arms, it would fail to meet the Hague
criteria as a lawful belligerent force and forfeits the protections of the Geneva POW
convention. Military leaders are particularly well-qualified to gather such facts.
Additional Protocol I to the Geneva Conventions presents a legitimate counterargument.
In 1977, Protocol I relaxed the requirement for uniforms or other fixed insignia so that a
combatant must merely carry his arms openly during each military engagement and in the
time prior to the engagement while visible to the adversary.45 Under Protocol I, Taliban
forces could still qualify as lawful combatants without wearing uniforms.
Although many nations are bound by Protocol I, the U.S. objects to the above provision,
has refused to ratify the treaty, and does not consider it a part of customary international
law.46 The U.S. expects the armed forces of its nation-foes to wear uniforms and carry their
arms openly in order to qualify for POW treatment.
This position makes sense. The rationale for relaxing the uniform and weapons
requirement is that “there are situations in armed conflicts where, owing to the nature of the
hostilities an armed combatant cannot so distinguish himself.”47 (emphasis added) This
relaxed rule is better applied to–and was obviously written to accommodate–the belligerent
activities of insurgents “fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right of self-determination[.]”48 However, the
fight with the Taliban is an international armed conflict, and it is reasonable for states to
issue uniforms so that their armed combatants can distinguish themselves. If a nation’s
10
unconventional forces choose to shed their uniforms, they run the risk of losing their POW
status if captured.
A nation must be expected to put uniforms on its troops in order to reap the benefits of
lawful combatancy. The U.S. refused to ratify Protocol I largely because it is unwilling to
elevate the belligerent activities of insurgents to the level of an international armed conflict.49
b. Failure to conduct operations in accordance with the laws and customs
of war
The correct focus here should be upon the practices of the armed force as a whole rather
than the acts of individual soldiers. If an individual commits an illegal act while a member of
a force abiding by the laws of war, then he is entitled to POW status and due process of law
in accordance with the POW convention. In order for a military organization to lose its
status, it stands to reason that the whole unit must operate outside the bounds of the law in
the course of the relevant conflict.50
Adopting or supporting Al Qaeda objectives may make the Taliban a state sponsor of the
terrorists, but that is a reason to go to war, not a reason to disqualify the combatants in the
course of a war.51 The Taliban military must do something collectively unlawful in the
course of the armed conflict in order for the U.S. to claim that it has lost its combatant
privileges as a fighting force. It is possible for the Taliban to protect, train, supply, and agree
with Al Qaeda’s principles without violating the laws of war in its own military operations
against U.S. forces. Their status will be dictated by their deeds.
c. A cautionary note…
A close look at the elements of lawful combatancy reveals how important the facts are to
determining the status of an enemy nation’s forces. One would argue that the only thing
disqualifying the Taliban forces from POW status was their failure to wear something
11
distinguishing themselves from enemies and civilians alike. This is an issue of fact and
highly susceptible to change. If any Taliban units wore uniforms and fought in accordance
with the laws of war, then it would be hard to deny those troops the privileges of lawful
combatancy.
Likewise, consider if an Al Qaeda member had fought as part of the Taliban, wore a
uniform, carried a weapon, drew a Taliban salary, and was subordinate to a Taliban chain of
command. Arguably, he would have a claim for POW status if captured in the fighting in
Afghanistan. He would have to be repatriated at the end of hostilities unless tried for a law
of war violation in the course of the Taliban-U.S. conflict, and in that case he would get a full
trial under the Uniform Code of Military Justice.52 Only if he were discovered responsible
for an Al Qaeda attack beyond the battlefield in Afghanistan would he revert to an unlawful
combatant status. This scenario illustrates how combatant status is ultimately fact-driven.
E. Rules Governing Detention
1. Conditions of internment
The Geneva POW convention includes specific privileges regarding safety, quarters,
food, clothing, and medical care; opportunities for religious, intellectual, and physical
activity; performance of labor; financial allowances; and sending and receiving
correspondence.53 Unlawful combatants have no such entitlements, but they must still be
treated humanely as a matter of human rights law. The Administration’s policy promises
humane treatment to all detainees regardless of legal status.54
2. Repatriation
Detainees must be sent home eventually. Prisoners of war are guaranteed to be released
or repatriated “without delay at the cessation of active hostilities” unless charged with a
12
crime.55 Unlawful combatants have no such right to prompt repatriation, and may be
detained by the capturing state up until such time that detention without trial would be so
arbitrary or cruel as to violate customary international law.56
3. The President’s Military Order – Authority to Detain “Certain Non-Citizens”
The President has ordered the Defense Department to detain certain non-citizens whom
he specifically determines in writing to be either 1) Al Qaeda members, 2) other persons who
have engaged in acts of international terrorism, or 3) persons those who harbor such
terrorists.57
The order is legally valid as long as the designated individuals otherwise fail the
established test for lawful combatancy. This is not a problem with regard to transnational
terrorists in the first two categories because stateless criminals, once identified, will never get
POW protection. The difficulty will arise in the third category if the harboring individuals
are the armed forces of a state. Although the Taliban failed to distinguish themselves from
the civilian population, it is possible for a state’s armed forces to harbor a terrorist group and
still retain their status as lawful combatants. Assume, for instance, that Pakistan opposed a
U.S. operation that crossed its border to pursue Osama bin Laden. If they wore uniforms,
were led by responsible commanders, and operated in accordance with the laws of war, the
Pakistanis would certainly be lawful combatants entitled to POW status. We could not
enforce the President’s Military Order because it is more restrictive than the POW
convention.
The second issue is more practical than legal: the Military Order contains no limitations
on the length of detention without charges.58 There must be a limit to the amount of time a
detaining power can hold anyone without charges because when detention without trial
13
becomes arbitrary and cruel, customary international law and human rights law favors
release.59 This does not mean that lengthy detentions are necessarily arbitrary; a state has a
very high level of interest in protecting its citizens, property, and national security from
suspected terrorists. However, at some point in the process, the balance between human
rights and state security inevitably shifts.
Although the President has wide latitude to detain unlawful combatants, his authority is
not boundless. The U.S. Constitution obligates the Supreme Court to review the limits of the
President’s authority to detain suspected non-citizen terrorists without due process.60 The
Supreme Court is currently considering such a challenge by non-citizen detainees held at
Guantanamo Bay, Cuba, and will likely subject the President’s detention authority to close
Constitutional scrutiny.61 From both a legal and policy standpoint, this review should be
welcomed. Our nation must not undermine its international leadership as a guardian of
human rights.
4. Challenging Detention
a. In federal court
Although several individuals detained as unlawful combatants have sought relief in U.S.
district courts to secure their release, only two circumstances seem to confer jurisdiction:
U.S. citizenship, or presence within U.S. territorial jurisdiction. Detained citizens may seek a
writ of habeas corpus even if they are unlawful enemy combatants.62 Non-citizen detainees
can only gain access to federal courts if they are physically located within U.S. territory.63
Detainees have asked federal courts to review their combatant status. John Walker Lindh
asked a federal court to rule that he was entitled to combatant immunity.64 Yaser Hamdi, a
14
Taliban soldier born in Louisiana, also sought judicial review of his combatant status and
argued for his release on the grounds that active hostilities in Afghanistan were over.65
The courts in the Lindh and Hamdi cases both indicated that they had jurisdiction to
review combatant status and consider the question of when active hostilities end, but each
afforded a high degree of deference to the Executive Branch’s decisions in these matters of
war.66 These cases are exceptional because they involve (hopefully) rare instances in which
U.S. citizens are fighting for the enemy without forfeiting their citizenship rights. The U.S.
has a strong interest in fighting its enemies on battlefields rather than in courtrooms. There is
nothing blasphemous about denying enemy combatants access to federal courts; indeed, the
Supreme Court ruled in the 1950 case Johnson v. Eisentrager that enemy aliens who have not
entered the U.S. are not entitled to such access.67
b. Geneva POW Convention -- Article 5 Tribunals
Article 5 of the Geneva POW convention provides that if doubt should arise as to
whether a detainee belongs to a category of forces entitled to POW status, “such persons
shall enjoy the protection of the present Convention until such time as their status has been
determined by a competent tribunal.”68 Nowhere, however, does the Geneva POW
convention provide any further guidance for convening such a tribunal.69 Certainly nothing
therein expressly requires the involvement of the federal judiciary. The plain language of
Article 5 focuses on identifying the status of an individual and placing him in the appropriate
category of forces.70 This suggests that an Article 5 tribunal should inquire into an
individual’s identity and unit membership, not the lawful status of military organizations.71
By treating both Al Qaeda and Taliban detainees as unlawful combatants, the President’s
Military Order sidesteps an otherwise sticky wicket: if the Taliban were an Article 4 armed
15
force whose members were entitled to POW status, it would be in the best interest of all
detainees to seek Article 5 hearings to prove they are Taliban soldiers. But because the
President decided that Taliban membership does not trigger POW privileges, Article 5
apparently will not come into play as long as the President is sure the detainee is a Taliban or
Al Qaeda member subject to his Military Order.72
F. Lawful Combatants Receive Greater Due Process if Charged With a
Crime
Lawful combatancy is the threshold issue for determining how to punish a detainee for
his unlawful acts. The POW convention guarantees lawful combatants a trial under the same
laws that would apply to the detaining power’s own troops under similar circumstances.73 In
the 1942 case Ex Parte Quirin, the U.S. Supreme Court ruled that unlawful combatants may
be tried before military commissions instead of civilian courts:
The law of war draws a distinction between … those who
are lawful and unlawful combatants. Lawful combatants are
subject to capture and detention as prisoners of war by
opposing military forces. Unlawful combatants are likewise
subject to capture and detention, but in addition they are
subject to trial and punishment by military tribunals for acts
which render their belligerency unlawful.74
The U.S. Supreme Court will have an opportunity to review its ruling in Quirin later this
year in Al Odah v. United States, in which foreign detainees at Guantanamo Bay are
challenging the lawfulness of military commissions.75 In order for the plaintiffs to prevail,
the Supreme Court would have to overrule or distinguish its own precedents in Quirin and
Eisentrager on military commissions and enemy alien access to our courts. Otherwise, it
would seem that all Al Qaeda and Taliban members detained pursuant to the Military Order
will be subject to trial before military commissions for their unlawful acts.
16
This step-by-step analysis proves that the President has considerable power when he
treats terrorists as enemies. By statute, he may declare an emergency and use armed force
against terrorists.76 He may unilaterally decide if enemy forces are lawful or unlawful
combatants, and in the limited cases where courts have jurisdiction to hear a case, they have
deferred to his judgment as Commander-in-Chief.77 With regard to enemy aliens, his
decisions are not subject to any judicial review.78 By making his own written determination
that an individual is subject to his Military Order, the President has found a way to avoid
Article 5 tribunals.79 Finally, the President has the power to detain unlawful combatants
indefinitely before bringing them before a military tribunal to face criminal sanctions,
including death.80 It will be interesting to find out if the Supreme Court agrees that such
consolidated power is consistent with the Constitution.
CONCLUSION
Historically, terrorists have been regarded as bandits and held responsible for their
unlawful acts under the domestic laws of the state that captures them. In recent years this has
changed. When terrorist violence rose to the level of an armed attack against the U.S., our
national leadership viewed the perpetrators as enemy combatants. Commanders need to
understand how the law of armed conflict applies to the various enemy forces they are likely
to encounter while combating terrorism.
The U.S. decision to engage transnational terrorists as unlawful enemy combatants rather
than criminals means we will apply the international law of armed conflict, which has fewer
restrictions on the use of force, length of detentions, and forums for punishment. It is still
possible, however, that the armed forces of a state that harbors or otherwise supports such
terrorists may still remain lawful combatants protected by the Geneva Conventions. This
16
issue will likely be decided based upon the actual conduct of such forces, and commanders
will often be in the best position to report the facts.
NOTES
1 The Department of Defense uses the terms "international” or “transnational” terrorism
interchangeably as:
Terrorism in which planning and execution of the terrorist
act transcends national boundaries. In defining international
terrorism, the purpose of the act, the nationalities of the
victims, or the resolution of the incident are considered. These
acts are usually planned to attract widespread publicity and are
designed to focus attention on the existence, cause, or demands
of the terrorists.”
Department of Defense Directive 2000.12, DoD Combating Terrorism Program (15 Sep
1996), Encl. 2.
2 Bruce Berkowitz, The New Face Of War: How War Will Be Fought In The 21st
Century (The Free Press, 2003; reprint, Newport, RI: U.S. Naval War College, 2003), 10,
18.
3 President, Military Order, “Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism,” Federal Register 66, No. 222 (16 November 2001), 57833-
57834 [hereinafter “Military Order”].
4 Ibid.
5 Adam Roberts, “Counter-Terrorism, Armed Force, and the Laws of War,” Survival, vol.
44, no. 1 (Spring 2002): 9.
6 Noah Feldman, Choices of Law, Choices of War,” Harvard Journal of Law and Public
Policy, vol. 25 (Spring 2002): 468.
7 Ibid.
8 Ibid.
9 Crimes and Criminal Procedure, U.S. Code, Title 18, sec. 1385 (2002).
10 Department of Defense, Military Assistance For Civil Disturbances, Department of
Defense Directive 3025.12 (Washington, D.C. 1994), 3.
11 War and National Defense, U.S. Code, Title 50, sec. 1541(c) (2002). Statutory
authorizations include 42 U.S.C. § 5191(b) (declaring an emergency other than a federal
disaster); 42 U.S.C § 5170(c) (emergency 10-day authority to use Dep’t of Defense for work
“essential for the preservation of life and property”
; 42 U.S.C. § 5170 (declaration of a
19
major disaster); 42 U.S.C. § 5191(a) (declaration of an emergency); 10 U.S.C. §§ 331-334
(civil disturbance statutes); 18 U.S.C. §§ 351, 1116, 1751 (assisting Dep’t of Justice in cases
of offenses against the President, the Vice President, Members of Congress, the Cabinet, a
Supreme Court Justice, or an “internationally-protected person” 18 U.S.C. § 831
(prohibited transactions involving nuclear materials); 18 U.S.C. § 382 (emergencies
involving chemical or biological WMD).
12 Ibid., sec. 1542.
13 President, Proclamation, “Declaration of National Emergency by Reason Of Certain
Terrorist Attacks,” Federal Register 66, no. 181 (18 September 2001), 48199.
14 Joint Resolution to Authorize the Use of United States Armed Forces Against Those
Responsible for the Recent Attacks Against the United States, Statutes at Large 115, sec. 2,
224 (2001).
15 Charter of the United Nations, 2d ed. (Hague, 1947), Ch. I, Art. 2(1).
16 Ibid., Ch I, Art. 2(4); Ch. VII, Arts. 39, 41, 42, 51.
17 S.C. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg. at 1, U.N. Doc. S/Res/1368 (2001);
S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg. at 1-4, U.N. Doc. S/Res/1373 (2001).
18 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6
U.S.T. 3316, 75 U.N.T.S. 135, arts. 87, 99 (read together, these articles establish that a
belligerent in a war cannot prosecute enemy soldiers for their lawful acts of war); reprint,
Department of the Army Pamphlet 27-1, Treaties Governing Land Warfare, Department of
the Army, December 1956.
19 Ibid., Art. 21-32 (safety, quarters, food, clothing, medical care); Art. 34-38 (religious,
intellectual, physical pursuits); Art. 49-57 (labor); Art. 60 (payment); Art. 69-77
(correspondence).
20 “Statement by White House Press Secretary Ari Fleischer,” United States Mission-
Geneva, Press Releases 2002, 7 February 2002. <http://www.usmission.
ch/press2002/0802fleischerdetainees.htm> [7 Feb 2004].
21 Third Geneva Convention, art. 2.
22 Ibid.
23 George H. Aldrich, “The Taliban, Al Qaeda, and the Determination of Illegal
Combatants,” 96 Am. J. Int’l L. 891, 892 (2002).
20
24 Protocols to the Geneva Conventions of 12 August 1949, Protocol I, art. 75; Protocol
II, art. 4, Dep’t of the Army Pamphlet 27-1-1 (September 1979).
25 Aldrich, 893, n. 11.
26 “Statement by White House Press Secretary Ari Fleischer.”
27 Ibid.
28 Third Geneva Convention, art. 2.
29 Lawrence Azubuike, “Status of Taliban and Al Qaeda Soldiers: Another Viewpoint,
Connecticut Journal of International Law,” 19 Conn. J. Int’l L. 127, 130-31 (Fall 2003). The
Taliban is reported to be an organization influenced by the teachings of religious schools in
Pakistan who were provided military training from the Pakistani government. When the
Soviet Union withdrew from Afghanistan in 1989, the Taliban emerged from the six-year
struggle for control of Afghanistan controlling all but a small percentage of the territory. The
Taliban therefore became the de facto government of Afghanistan.
30 Restatement of Foreign Relations Law 3d, Sec. 201 (1986)
31 Azubuike, 131.
32 “Saudis Break Diplomatic Ties With Taliban,” CNN.com./World, 25 September 2001,
<http://www.cnn.com/2001/WORLD/asiapcf/central/09/25/ret.saudi.taliban/> [31 January
2004].
33 Azubuike, 131-34.
34 Mackubin T. Owens, “Detainees or Prisoners of War?,” Ashbrook Center for Public
Affairs at Ashland University, January 2002, <
http://www.ashbrook.org/publicat/oped/owens/02/pow.html> [2 February 2004].
35 United States v. Lindh, 212 F. Supp. 2d 541, 553 n.16 (E.D. Va. 2002).
36 Pierre-Richard Prosper, Ambassador-at-Large for War Crimes Issues, “Status and
Treatment of Taliban and Al Qaeda Detainees,” Remarks at Chatham House, London, United
Kingdom, 20 February 2002, <http://www.state.gov/s/wci/rm/2002/8491pf.htm> [7 February
2004].
37 William H. Parks, “Command Responsibility for War Crimes,” 62 Mil. L. Rev. 1
(1973).
21
38 Michael Rubin, “Who Is Responsible for the Taliban?” Middle East Review of
International Affairs, March 2002, <http://www.washingtoninstitute.org/media/rubin/rubinwho.
htm> [7 February 2004].
39 David Buchbinder, “Guns Offer Fast Profits for Afghans,” Christian Science Monitor,
Aug. 6, 2002, <http://www.csmonitor.com/2002/0806/p07s01-wosc.html> [7 February
2004].
40 Aldrich, 895-96.
41 “Statement by White House Press Secretary Ari Fleischer.”
42 Third Geneva Convention, art. 4(A)(1).
43 Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907,
36 Stat. 2277, T.S. No. 539, reprinted in Dept’ of the Army Pamphlet 27-1, Treaties
Governing Land Warfare, at 8; Manual of Military Law 240 (British War Office, 1914) (“It
is taken for granted that all members of the army as a matter of course will comply with the
four conditions; should they, however, fail in this respect... they are liable to lose their special
privileges of armed forces.").
44 Lindh, 212 F. Supp. 2d at 557, n.35.
45 Protocol I, art. 44.
46 Kenneth Anderson, “What to do With Bin Laden and Al Qaeda Terrorists? A Qualified
Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay
Naval Base,” 25 Harv. J.L. & Pub. Pol’y. 591, 615 (2002).
47 Protocol I, art. 44(3).
48 Protocol I, art. 1(4).
49 Michael J. Matheson, “The United States Position on the Relation of Customary
International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,” 2 Am.
U.J. Int’l & Pol’y 419, 420 (1987).
50 Aldrich, 895.
51 Ibid.
52 Third Geneva Convention, art. 87, 99-108.
22
53 Third Geneva Convention, art. 21-32 (safety, quarters, food, clothing, medical care);
art. 34-38 (religious, intellectual, physical pursuits); art. 49-57 (labor); art. 60 (payment); art.
69-77 (correspondence).
54 “Statement by White House Press Secretary Ari Fleischer.”
55 Third Geneva Convention, art 118.
56 Protocol I, art 75; Protocol II, art. 4.
57 Military Order, sec. 2(a)(1)(i)-(iii) (defining individuals subject to detention); sec. 3
(ordering detention).
58 Military Order, passim.
59 Protocol I, art 75; Protocol II, art. 4.
60 Jordan J. Paust, “Judicial Power To Determine the Status and Rights of Persons
Detained Without Trial,” 44 Harv. Int'l L.J. 503, 504 (Summer, 2003) (arguing that
international law, the U.S. Constitution, and U.S. federal case law limit the power to detain
persons without trial, and that such detention must be subject to judicial review).
61 Brief of the Military Defense Attorneys Assigned to the Defense in the Office of
Military Commission as Amicus Curiae in Support of Neither Party, Al Odah v. United
States, No. 03-343 (14 January 2004) (on file with author).
62 William H. Rehnquist, All the Laws But One – Civil Liberties in Wartime (New York:
Vintage Books 1998), 128; Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003).
63 Ex Parte Quirin, 317 U.S. 1 (1942); Johnson v. Eisentrager, 339 U.S. 763 (1950).
64 Lindh, 212 F. Supp. 2d 541.
65 Hamdi, 316 F.3d at 461.
66 Lindh, 212 F. Supp. 2d at 557; Hamdi, 316 F.3d at 462-63.
67 Eisentrager, 339 U.S. at 781 (1950).
68 Third Geneva Convention, art 5.
69 Ibid.
70 Ibid.
23
71 Ibid.
72 Military Order, sec.2.
73 Third Geneva Convention, art. 102.
74 Ex Parte Quirin, 317 U.S. at 30-31.
75 Al Odah, 124 S. Ct. 534 (2003).
76 War and National Defense, U.S. Code, Title 50, sec. 1631 (2002).
77 Military Order, sec. 2; e.g., Hamdi, 316 F.3d at 462-63.
78 Eisentrager, 339 U.S. at 781 (1950).
79 Military Order, sec. 2.
80 Ex Parte Quirin, 317 U.S. 1; Military Order, sec. 4
24
BIBLIOGRAPHY
Aldrich, George H. “The Taliban, Al Qaeda, and the Determination of Illegal Combatants.”
96 Am. J. Int’l L. 891 (2002).
Anderson, Kenneth. “What to do With Bin Laden and Al Qaeda Terrorists? A Qualified
Defense of Military Commissions and United States Policy on Detainees at Guantanamo
Bay Naval Base.” 25 Harv. J.L. & Pub. Pol’y. 591 (2002).
Azubuike, Lawrence. “Status of Taliban and Al Qaeda Soldiers: Another Viewpoint,
Connecticut Journal of International Law.” 19 Conn. J. Int’l L. 127 (Fall 2003).
Berkowitz, Bruce. The New Face Of War: How War Will Be Fought In The 21st Century.
The Free Press, 2003. Reprint, Newport, RI: U.S. Naval War College, 2003.
Brief of the Military Defense Attorneys Assigned to the Defense in the Office of Military
Commission as Amicus Curiae in Support of Neither Party. Al Odah v. United States,
No. 03-343 (14 January 2004) (on file with author).
Buchbinder, David. “Guns Offer Fast Profits for Afghans.” Christian Science Monitor. Aug.
6, 2002. <http://www.csmonitor.com/2002/0806/p07s01-wosc.html> [7 February 2004].
Crimes and Criminal Procedure. U.S. Code, Title 18, sec. 1385 (2002).
Department of the Army Pamphlet 27-1. Treaties Governing Land Warfare. Department of
the Army, December 1956.
Department of Defense Directive 2000.12, DoD Combating Terrorism Program (15 Sep
1996).
Ex Parte Quirin, 317 U.S. 1 (1942).
Feldman, Noah. Choices of Law, Choices of War.” Harvard Journal of Law and Public
Policy, vol. 25 (Spring 2002): 468.
Charter of the United Nations. 2d ed. Hague, 1947.
Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003).
Johnson v. Eisentrager, 339 U.S. 763 (1950).
Joint Resolution to Authorize the Use of United States Armed Forces Against Those
Responsible for the Recent Attacks Against the United States, Statutes at Large 115, sec.
2, 224 (2001).
http://www.fas.org/man/eprint/reid.pdf
Newport, R.I.
TERRORISTS AS ENEMY COMBATANTS
An Analysis of How the United States Applies the Law of Armed Conflict
in the Global War on Terrorism
By
Scott Reid
MAJ, U.S. Army
A paper submitted to the Faculty of the Naval War College in partial satisfaction of the
requirements of the Department of Joint Maritime Operations.
The contents of this paper reflect my own personal views and are not necessarily endorsed by
the Naval War College or the Department of the Navy.
Signature: ___________________
9 February 2004
TABLE OF CONTENTS
Introduction -------------------------------------------------------------------------------------- 1
Part I: Jus ad Bellum – Justifying the Use
of Armed Force Against Terrorists ------------------------------------------------ 2
A. The Significance of Engaging Terrorists
As Enemies Instead of Criminals ---------------------------------------------------- 2
B. Authority to Use Military Force Against Terrorists ----------------------------- 2
Part II: Jus in Bello – Examining the Rules That Apply
to Al Qaeda and Taliban Forces as Enemy Combatants ----------------------- 3
A. The Privileges of Lawful Combatancy --------------------------------------------- 3
B. The U.S. View: Al Qaeda and Taliban
Are Unlawful Combatants ----------------------------------------------------------- 4
C. Al Qaeda Members Are Always
Unlawful Combatants ----------------------------------------------------------------- 4
D. Taliban Forces Are Unlawful Combatants
Because of Their Conduct ------------------------------------------------------------ 5
1. The Geneva Conventions Apply to the Taliban ------------------------------ 5
2. The Taliban Failed to Qualify As Lawful
Combatants Eligible for POW Protections ------------------------------------ 7
a. Wearing emblems and carrying arms --------------------------------- 8
b. Failure to conduct operations in accordance
with the laws and customs of war --------------------------------------- 10
c. A cautionary note ---------------------------------------------------------- 10
E. Rules Governing Detention ------------------------------------------------------------ 11
1. Conditions of Internment ----------------------------------------------------------- 11
2. Repatriation --------------------------------------------------------------------------- 11
3. The President’s Military Order
– Authority to Detain “Certain Non-Citizens” ----------------------------------- 12
4. Challenging Detention ----------------------------------------------------------------- 13
a. In Federal Court --------------------------------------------------------------- 13
b. Geneva POW Convention -- Article 5 Tribunals ------------------------ 14
F. Lawful Combatants Receive Greater Due Process
if Charged With a Crime ------------------------------------------------------------------ 15
Conclusion --------------------------------------------------------------------------------------------- 16
Abstract
TERRORISTS AS ENEMY COMBATANTS
An Analysis of How the United States Applies the Law of Armed Conflict
in the Global War on Terrorism
Commanders need to understand how the law of armed conflict applies to the various
enemy forces they are likely to encounter while combating terrorism. Historically, terrorists
have been regarded as bandits and held criminally responsible for their unlawful acts under
domestic law. However, after the attacks on the World Trade Center and Pentagon in
September 2001, the U.S. decided to engage transnational terrorists in armed conflict. As
enemy combatants, terrorists may be lawfully killed by virtue of their membership in the
enemy group rather than their individual conduct.
If a nation’s armed forces harbor or support terrorists, the facts will determine whether
they are lawful or unlawful combatants. Lawful combatants are protected under the Geneva
Convention Relative to the Treatment of Prisoners of War and entitled to specific privileges
while captured. Unlawful combatants have no such rights. The President has considerable
latitude in identifying, detaining, and punishing them.
As U.S. forces engage terrorists and the states that harbor them, we should expect to
encounter both lawful and unlawful combatants. This paper explains what the difference is
and why it matters.
1
INTRODUCTION
The recent activities of transnational1 terrorist organizations have transcended the realm
of mere criminality. For more than a decade, the Al Qaeda terror network has repeatedly
attacked U.S. citizens, property, and military interests, to wit: the World Trade Center in
1993, the U.S. Embassies in Kenya and Tanzania in 1998, the U.S.S. Cole in a Yemeni port
in 2000, and the World Trade Center and Pentagon on September 11, 2001. Al Qaeda has
been characterized by one observer as a “modern army” with combat power, considerable
financial resources, decentralized command and control, and operational reach into all the
nations of the world.2 The President has responded to Al Qaeda’s asymmetric attacks with
military force, which perversely elevates the status of these terrorists from criminals to
enemies.3 When the Taliban government of Afghanistan persisted in providing Al Qaeda
with a safe haven, it became our enemy as well.4
Military commanders need to understand how the laws of armed conflict apply when
terrorists are treated as enemy combatants. Using Operation Enduring Freedom as an
analytical model, this paper demonstrates the legal advantages of treating terrorists as
enemies while highlighting the distinctions between lawful and unlawful combatants. Part I
sets forth the legal framework for using armed force against Al Qaeda and the Taliban, and
explains the advantages of treating terrorists as enemy combatants instead of criminals. Part
II analyzes the Bush Administration’s decision that neither Al Qaeda nor Taliban forces are
lawful combatants, focusing on the criteria for lawful combatancy and the rules regarding
detention and punishment. Careful study reveals that transnational terrorists will always be
unlawful enemy combatants, but the issue is fact-dependent with regard to the armed forces
of states that support terrorism.
2
Part I: Jus ad Bellum5 – Justifying the Use of Armed Force Against Terrorists
A. The Significance of Engaging Terrorists As Enemies Instead of Criminals
The biggest advantage in treating Al Qaeda and Taliban members as enemy combatants
is the right to kill them by virtue of their collective enemy status instead of arresting them for
their individual criminal acts.6 If terror acts are only domestic crimes, then law enforcement
agencies must investigate to determine who is individually responsible. They must capture
the criminals unless it is necessary to kill in self-defense.7 However, if the nature and
frequency of terror acts rise to the level of an armed conflict, there is no requirement to
determine individual criminal responsibility, demand surrender, or limit the use of force to
self-defense.8
B. Authority to Use Military Force Against Terrorists
The Posse Comitatus Act limits the military’s role in supporting federal agencies
responsible for enforcing our civil laws. 9 When terrorism rises to the level of a national
security threat, the Department of Defense transitions from supporting cast member to lead
actor because the President has an inherent authority to use the military to deter and prevent
acts of international terrorism against the United States.10 He may use military force “in the
event of (1) a declaration of war, (2) specific statutory authorization, or (3) a national
emergency created by attack upon the United States, its territories or possessions, or its
armed forces.”11 However, he must consult with Congress beforehand when possible, and
must keep Congress informed throughout the conflict.12
The Posse Comitatus Act does not impede military action against Al Qaeda. After the
attacks of September 11, 2001, the President declared a national emergency.13 Congress
3
promptly passed a joint resolution authorizing the use of military force against the
perpetrators and all who supported them:
[T]he President is authorized to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001,
or harbored such organizations or persons, in order to prevent
any future acts of international terrorism against the United
States by such nations, organizations, or persons.” 14
Because Al Qaeda is a private organization, the provisions of the Charter of the United
Nations (U.N.) governing the use of force against nations do not apply to the U.S.-Al Qaeda
conflict.15 The U.N. Charter does, however, govern the use of force against the Taliban. It
restricts nations from using force against each other unless acting in self defense or under a
U.N. Security Council authorizing such force.16 Although the Security Council never
affirmatively authorized the use of force against the Taliban, it passed resolutions
recognizing the United States’ right of self-defense. The resolutions declared that all states
shall “deny safe haven to those who finance, plan, support, or commit terrorist acts, or
provide safe havens” and “prevent those who finance, plan, facilitate or commit terrorist acts
from using their respective territories for those purposes against other States or their
citizens.”17 As a result, the U.S. was legally justified in pursuing Al Qaeda with armed force
and engaging the Taliban forces protecting those terrorists.
Part II: Jus in Bello – Examining the Rules That Apply to Al Qaeda
and Taliban Forces as Enemy Combatants
A. The Privileges of Lawful Combatancy
Although U.S. forces clearly had authority to kill Taliban and Al Qaeda members, issues
of detention and sanction are more complex. At the root of each issue is the distinction
4
between lawful and unlawful combatants. When a nation’s warriors meet the standards for
lawful combatancy, they are entitled to specific privileges under the law of armed conflict.
In international conflicts, such forces are immune from criminal liability when they attack
proper military targets. 18 They are also entitled to the protections of the 1949 Geneva
Convention on Treatment of Prisoners of War (POWs) [hereinafter “Geneva POW
convention”] upon capture. These protections include special privileges while detained,
repatriation at the end of hostilities, and specific due process rights if charged with a crime.19
B. The U.S. View: Al Qaeda and Taliban Are Unlawful Combatants
In February 2002, the Bush Administration announced that neither Al Qaeda nor the
Taliban forces qualified for POW protection, but emphasized that all captured Taliban and Al
Qaeda personnel would be treated humanely in accordance with the general principles of the
Convention and that delegates of the International Committee of the Red Cross would be
allowed to privately visit any detainee.20 The following sections examine the rationale
offered in support of the policy. Although some of it is particularly vulnerable to criticism,
good legal and practical reasons exist to deny lawful combatant status to both Al Qaeda and
Taliban forces.
C. Al Qaeda Members Are Always Unlawful Combatants
The U.S. position on the status of Al Qaeda members is sound. The Geneva Conventions
are contracts between sovereign nations, triggered by international armed conflict.21 Since
the Al Qaeda terror network is not a state, it cannot be a party to the POW convention.22 The
ability to make treaties with other nations is a benefit of statehood.23 States can enforce their
treaties through direct actions such as sanctions, but also through an infinite variety of more
subtle and indirect diplomatic pressures; for example, voting against a country’s bid to host
5
an Olympics. There is no comparable inventory of carrots and sticks available to regulate the
conduct of a stateless terror organization.
Only a fraction of the law of armed conflict protects Al Qaeda forces. Additional
Protocols I and II to the Geneva Conventions guarantee of humane treatment for all persons
who are “in the power of a Party to the conflict” or have “ceased to take part in hostilities”
for any reason.24 Although the U.S. has not ratified either treaty, it considers these
provisions to be customary international law. 25 The U.S. has afforded Al Qaeda members
the fundamental humane treatment prescribed by the Protocols, but international law contains
no higher obligation to them.26 When terrorists decide to attack a sovereign nation, they are
almost entirely at the mercy of the sovereign. Affording them any greater legal combatant
status would only serve to legitimize terrorism.
D. Taliban Forces Are Unlawful Combatants Because of Their Conduct
1. The Geneva Conventions Apply to the Taliban
The U.S. position with regard to the Taliban, although ultimately defensible, requires
closer examination. Taliban forces are the armed forces of a party to an international armed
conflict, and the Administration has acknowledged that the Geneva Convention on the
treatment of POWs applies to the hostilities between the U.S. and the Taliban.27 Article 2,
common to all four Geneva Conventions, states that each Convention will apply in full “to all
cases of declared war or other armed conflict which may arise” between states.28 Although
Al Qaeda are unlawful combatants due to their status as a stateless force, the Taliban are
unlawful combatants due to how they conduct themselves as the armed forces of a state.
The fact that the U.S. did not recognize the Taliban as the government of Afghanistan is
irrelevant.29 International law establishes four criteria for an entity to be regarded as a state:
6
defined territory, a permanent population, control by its own internal government, and the
capacity to conduct international relations.30 The Taliban controlled ninety percent of the
territory of Afghanistan and governed the population.31 It had the capacity to conduct
international relations and in fact had diplomatic relations with Pakistan, Saudi Arabia, and
United Arab Emirates until September 2001. 32 Afghanistan may have been a pariah state,
but it did not cease to be a state simply because most of the world condemned the Taliban’s
methods of government.33
What if Al Qaeda had been so intermingled with the Taliban government and armed
forces so that the two groups were indistinguishable? Some have argued that such an
incestuous relationship did exist, and it made Afghanistan an outlaw state that could not
claim to be a party to the Geneva POW convention.34 This argument is somewhat attractive,
but it confuses the concept of a rogue state with a failed state. As the district court reviewing
the case of “American Taliban” soldier John Walker Lindh noted, “the government has not
argued … that the Taliban's role in providing a home, a headquarters, and support to Al
Qaeda and its international terrorist activities serve to transform the Taliban from a legitimate
state government into a terrorist institution whose soldiers are not entitled to lawful
combatant immunity status.” 35
A better “Afghanistan-as-failed-state” argument should insist the Taliban actually failed
to govern, emphasizing its miserable record with regard to education, healthcare, food
distribution, transportation, electricity, water, and refugee flight. Ultimately, though, the
most realistic conclusion is the one adopted by the Administration. When a group succeeds
in taking over a state and governing its population–however dubiously--it wins the benefits
7
of statehood. The Taliban did not forfeit its status as a state government simply because it
provided hospitality to Al Qaeda or governed a primitive land.
The Geneva conventions apply to states even if they sponsor terrorist acts. The next step
is to determine whether Taliban forces met the legal standards required to reap the benefits of
their treaties.
2. The Taliban Failed to Qualify As Lawful Combatants Eligible for POW
Protections
On February 20, 2002, the U.S. Ambassador-at-Large for War Crimes Issues, Pierre-
Richard Prosper, opined that Taliban forces were not entitled to POW status upon capture:
[A] careful analysis through the lens of the Geneva Convention
leads us to the conclusion that the Taliban detainees do not
meet the legal criteria under Article 4 of the convention which
would have entitled them to POW status. They are not under a
responsible command. They do not conduct their operations in
accordance with the laws and customs of war. They do not
have a fixed distinctive sign recognizable from a distance. And
they do not carry their arms openly. Their conduct and history
of attacking civilian populations, disregarding human life and
conventional norms, and promoting barbaric philosophies
represents firm proof of their denied status.36
Unfortunately, the Ambassador did not support his conclusions with any examples. What
about the Taliban command structure rendered it irresponsible? Responsible command
means that a unit has an identified leader who controls his subordinates and is liable for any
unlawful acts he directed or allowed to happen.37 Taliban forces certainly must have
demonstrated some kind of responsible command structure when it defeated its competitors
for control of Afghanistan after the withdrawal of the Soviet Union in the early 1990s.38
Moreover, it is difficult to see the logic in the charge that Taliban forces, as a matter of
organizational practice, failed to carry their weapons openly. The problem with
distinguishing soldiers from civilians in Afghanistan was that practically every man of
8
suitable age carried a weapon openly.39 Finally, the Ambassador’s insistence that the Taliban
government’s history of human rights abuses disqualifies its army as a lawful belligerent is
not persuasive. The abominable practices of the Taliban forces must be related to the
international armed conflict with the United States.40
Fortunately for the Administration, White House Press Secretary Ari Fleischer had
provided a more focused rationale just two weeks earlier:
Under Article 4 of the Geneva Convention . . . Taliban
detainees are not entitled to POW status. To qualify as POWs
under Article 4, Al Qaeda and Taliban detainees would have to
have satisfied four conditions: They would have to be part of a
military hierarchy; they would have to have worn uniforms or
other distinctive signs visible at a distance; they would have to
have carried arms openly; and they would have to have
conducted their military operations in accordance with the laws
and customs of war.
The Taliban have not effectively distinguished themselves
from the civilian population of Afghanistan. Moreover, they
have not conducted their operations in accordance with the
laws and customs of war. Instead, they have knowingly
adopted and provided support to the unlawful terrorist
objectives of the Al Qaeda. 41
Mr. Fleischer’s argument about the Taliban failing to distinguish itself from the civilian
population is legally and logically sound. However, his next statement–that the Taliban does
not operate in accordance with the laws of war because it “adopts and supports” Al Qaeda
objectives translates into failure–stands on shaky legs.
a. Wearing emblems and carrying arms
The four conditions for lawful combatancy cited by the White House actually apply to the
Taliban as “the armed forces of a Party to the conflict”42 by way of the Hague Convention of
1907.43 The Geneva POW convention does not reiterate these criteria defining a nation’s
armed forces, but unlawful combatants could never establish legitimacy by merely claiming
9
to be “regular” armed forces without meeting the underlying Hague standards.44 To the
extent it can be proven that the Taliban army does not wear uniforms that distinguish its
members from a civilian population bearing abundant arms, it would fail to meet the Hague
criteria as a lawful belligerent force and forfeits the protections of the Geneva POW
convention. Military leaders are particularly well-qualified to gather such facts.
Additional Protocol I to the Geneva Conventions presents a legitimate counterargument.
In 1977, Protocol I relaxed the requirement for uniforms or other fixed insignia so that a
combatant must merely carry his arms openly during each military engagement and in the
time prior to the engagement while visible to the adversary.45 Under Protocol I, Taliban
forces could still qualify as lawful combatants without wearing uniforms.
Although many nations are bound by Protocol I, the U.S. objects to the above provision,
has refused to ratify the treaty, and does not consider it a part of customary international
law.46 The U.S. expects the armed forces of its nation-foes to wear uniforms and carry their
arms openly in order to qualify for POW treatment.
This position makes sense. The rationale for relaxing the uniform and weapons
requirement is that “there are situations in armed conflicts where, owing to the nature of the
hostilities an armed combatant cannot so distinguish himself.”47 (emphasis added) This
relaxed rule is better applied to–and was obviously written to accommodate–the belligerent
activities of insurgents “fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right of self-determination[.]”48 However, the
fight with the Taliban is an international armed conflict, and it is reasonable for states to
issue uniforms so that their armed combatants can distinguish themselves. If a nation’s
10
unconventional forces choose to shed their uniforms, they run the risk of losing their POW
status if captured.
A nation must be expected to put uniforms on its troops in order to reap the benefits of
lawful combatancy. The U.S. refused to ratify Protocol I largely because it is unwilling to
elevate the belligerent activities of insurgents to the level of an international armed conflict.49
b. Failure to conduct operations in accordance with the laws and customs
of war
The correct focus here should be upon the practices of the armed force as a whole rather
than the acts of individual soldiers. If an individual commits an illegal act while a member of
a force abiding by the laws of war, then he is entitled to POW status and due process of law
in accordance with the POW convention. In order for a military organization to lose its
status, it stands to reason that the whole unit must operate outside the bounds of the law in
the course of the relevant conflict.50
Adopting or supporting Al Qaeda objectives may make the Taliban a state sponsor of the
terrorists, but that is a reason to go to war, not a reason to disqualify the combatants in the
course of a war.51 The Taliban military must do something collectively unlawful in the
course of the armed conflict in order for the U.S. to claim that it has lost its combatant
privileges as a fighting force. It is possible for the Taliban to protect, train, supply, and agree
with Al Qaeda’s principles without violating the laws of war in its own military operations
against U.S. forces. Their status will be dictated by their deeds.
c. A cautionary note…
A close look at the elements of lawful combatancy reveals how important the facts are to
determining the status of an enemy nation’s forces. One would argue that the only thing
disqualifying the Taliban forces from POW status was their failure to wear something
11
distinguishing themselves from enemies and civilians alike. This is an issue of fact and
highly susceptible to change. If any Taliban units wore uniforms and fought in accordance
with the laws of war, then it would be hard to deny those troops the privileges of lawful
combatancy.
Likewise, consider if an Al Qaeda member had fought as part of the Taliban, wore a
uniform, carried a weapon, drew a Taliban salary, and was subordinate to a Taliban chain of
command. Arguably, he would have a claim for POW status if captured in the fighting in
Afghanistan. He would have to be repatriated at the end of hostilities unless tried for a law
of war violation in the course of the Taliban-U.S. conflict, and in that case he would get a full
trial under the Uniform Code of Military Justice.52 Only if he were discovered responsible
for an Al Qaeda attack beyond the battlefield in Afghanistan would he revert to an unlawful
combatant status. This scenario illustrates how combatant status is ultimately fact-driven.
E. Rules Governing Detention
1. Conditions of internment
The Geneva POW convention includes specific privileges regarding safety, quarters,
food, clothing, and medical care; opportunities for religious, intellectual, and physical
activity; performance of labor; financial allowances; and sending and receiving
correspondence.53 Unlawful combatants have no such entitlements, but they must still be
treated humanely as a matter of human rights law. The Administration’s policy promises
humane treatment to all detainees regardless of legal status.54
2. Repatriation
Detainees must be sent home eventually. Prisoners of war are guaranteed to be released
or repatriated “without delay at the cessation of active hostilities” unless charged with a
12
crime.55 Unlawful combatants have no such right to prompt repatriation, and may be
detained by the capturing state up until such time that detention without trial would be so
arbitrary or cruel as to violate customary international law.56
3. The President’s Military Order – Authority to Detain “Certain Non-Citizens”
The President has ordered the Defense Department to detain certain non-citizens whom
he specifically determines in writing to be either 1) Al Qaeda members, 2) other persons who
have engaged in acts of international terrorism, or 3) persons those who harbor such
terrorists.57
The order is legally valid as long as the designated individuals otherwise fail the
established test for lawful combatancy. This is not a problem with regard to transnational
terrorists in the first two categories because stateless criminals, once identified, will never get
POW protection. The difficulty will arise in the third category if the harboring individuals
are the armed forces of a state. Although the Taliban failed to distinguish themselves from
the civilian population, it is possible for a state’s armed forces to harbor a terrorist group and
still retain their status as lawful combatants. Assume, for instance, that Pakistan opposed a
U.S. operation that crossed its border to pursue Osama bin Laden. If they wore uniforms,
were led by responsible commanders, and operated in accordance with the laws of war, the
Pakistanis would certainly be lawful combatants entitled to POW status. We could not
enforce the President’s Military Order because it is more restrictive than the POW
convention.
The second issue is more practical than legal: the Military Order contains no limitations
on the length of detention without charges.58 There must be a limit to the amount of time a
detaining power can hold anyone without charges because when detention without trial
13
becomes arbitrary and cruel, customary international law and human rights law favors
release.59 This does not mean that lengthy detentions are necessarily arbitrary; a state has a
very high level of interest in protecting its citizens, property, and national security from
suspected terrorists. However, at some point in the process, the balance between human
rights and state security inevitably shifts.
Although the President has wide latitude to detain unlawful combatants, his authority is
not boundless. The U.S. Constitution obligates the Supreme Court to review the limits of the
President’s authority to detain suspected non-citizen terrorists without due process.60 The
Supreme Court is currently considering such a challenge by non-citizen detainees held at
Guantanamo Bay, Cuba, and will likely subject the President’s detention authority to close
Constitutional scrutiny.61 From both a legal and policy standpoint, this review should be
welcomed. Our nation must not undermine its international leadership as a guardian of
human rights.
4. Challenging Detention
a. In federal court
Although several individuals detained as unlawful combatants have sought relief in U.S.
district courts to secure their release, only two circumstances seem to confer jurisdiction:
U.S. citizenship, or presence within U.S. territorial jurisdiction. Detained citizens may seek a
writ of habeas corpus even if they are unlawful enemy combatants.62 Non-citizen detainees
can only gain access to federal courts if they are physically located within U.S. territory.63
Detainees have asked federal courts to review their combatant status. John Walker Lindh
asked a federal court to rule that he was entitled to combatant immunity.64 Yaser Hamdi, a
14
Taliban soldier born in Louisiana, also sought judicial review of his combatant status and
argued for his release on the grounds that active hostilities in Afghanistan were over.65
The courts in the Lindh and Hamdi cases both indicated that they had jurisdiction to
review combatant status and consider the question of when active hostilities end, but each
afforded a high degree of deference to the Executive Branch’s decisions in these matters of
war.66 These cases are exceptional because they involve (hopefully) rare instances in which
U.S. citizens are fighting for the enemy without forfeiting their citizenship rights. The U.S.
has a strong interest in fighting its enemies on battlefields rather than in courtrooms. There is
nothing blasphemous about denying enemy combatants access to federal courts; indeed, the
Supreme Court ruled in the 1950 case Johnson v. Eisentrager that enemy aliens who have not
entered the U.S. are not entitled to such access.67
b. Geneva POW Convention -- Article 5 Tribunals
Article 5 of the Geneva POW convention provides that if doubt should arise as to
whether a detainee belongs to a category of forces entitled to POW status, “such persons
shall enjoy the protection of the present Convention until such time as their status has been
determined by a competent tribunal.”68 Nowhere, however, does the Geneva POW
convention provide any further guidance for convening such a tribunal.69 Certainly nothing
therein expressly requires the involvement of the federal judiciary. The plain language of
Article 5 focuses on identifying the status of an individual and placing him in the appropriate
category of forces.70 This suggests that an Article 5 tribunal should inquire into an
individual’s identity and unit membership, not the lawful status of military organizations.71
By treating both Al Qaeda and Taliban detainees as unlawful combatants, the President’s
Military Order sidesteps an otherwise sticky wicket: if the Taliban were an Article 4 armed
15
force whose members were entitled to POW status, it would be in the best interest of all
detainees to seek Article 5 hearings to prove they are Taliban soldiers. But because the
President decided that Taliban membership does not trigger POW privileges, Article 5
apparently will not come into play as long as the President is sure the detainee is a Taliban or
Al Qaeda member subject to his Military Order.72
F. Lawful Combatants Receive Greater Due Process if Charged With a
Crime
Lawful combatancy is the threshold issue for determining how to punish a detainee for
his unlawful acts. The POW convention guarantees lawful combatants a trial under the same
laws that would apply to the detaining power’s own troops under similar circumstances.73 In
the 1942 case Ex Parte Quirin, the U.S. Supreme Court ruled that unlawful combatants may
be tried before military commissions instead of civilian courts:
The law of war draws a distinction between … those who
are lawful and unlawful combatants. Lawful combatants are
subject to capture and detention as prisoners of war by
opposing military forces. Unlawful combatants are likewise
subject to capture and detention, but in addition they are
subject to trial and punishment by military tribunals for acts
which render their belligerency unlawful.74
The U.S. Supreme Court will have an opportunity to review its ruling in Quirin later this
year in Al Odah v. United States, in which foreign detainees at Guantanamo Bay are
challenging the lawfulness of military commissions.75 In order for the plaintiffs to prevail,
the Supreme Court would have to overrule or distinguish its own precedents in Quirin and
Eisentrager on military commissions and enemy alien access to our courts. Otherwise, it
would seem that all Al Qaeda and Taliban members detained pursuant to the Military Order
will be subject to trial before military commissions for their unlawful acts.
16
This step-by-step analysis proves that the President has considerable power when he
treats terrorists as enemies. By statute, he may declare an emergency and use armed force
against terrorists.76 He may unilaterally decide if enemy forces are lawful or unlawful
combatants, and in the limited cases where courts have jurisdiction to hear a case, they have
deferred to his judgment as Commander-in-Chief.77 With regard to enemy aliens, his
decisions are not subject to any judicial review.78 By making his own written determination
that an individual is subject to his Military Order, the President has found a way to avoid
Article 5 tribunals.79 Finally, the President has the power to detain unlawful combatants
indefinitely before bringing them before a military tribunal to face criminal sanctions,
including death.80 It will be interesting to find out if the Supreme Court agrees that such
consolidated power is consistent with the Constitution.
CONCLUSION
Historically, terrorists have been regarded as bandits and held responsible for their
unlawful acts under the domestic laws of the state that captures them. In recent years this has
changed. When terrorist violence rose to the level of an armed attack against the U.S., our
national leadership viewed the perpetrators as enemy combatants. Commanders need to
understand how the law of armed conflict applies to the various enemy forces they are likely
to encounter while combating terrorism.
The U.S. decision to engage transnational terrorists as unlawful enemy combatants rather
than criminals means we will apply the international law of armed conflict, which has fewer
restrictions on the use of force, length of detentions, and forums for punishment. It is still
possible, however, that the armed forces of a state that harbors or otherwise supports such
terrorists may still remain lawful combatants protected by the Geneva Conventions. This
16
issue will likely be decided based upon the actual conduct of such forces, and commanders
will often be in the best position to report the facts.
NOTES
1 The Department of Defense uses the terms "international” or “transnational” terrorism
interchangeably as:
Terrorism in which planning and execution of the terrorist
act transcends national boundaries. In defining international
terrorism, the purpose of the act, the nationalities of the
victims, or the resolution of the incident are considered. These
acts are usually planned to attract widespread publicity and are
designed to focus attention on the existence, cause, or demands
of the terrorists.”
Department of Defense Directive 2000.12, DoD Combating Terrorism Program (15 Sep
1996), Encl. 2.
2 Bruce Berkowitz, The New Face Of War: How War Will Be Fought In The 21st
Century (The Free Press, 2003; reprint, Newport, RI: U.S. Naval War College, 2003), 10,
18.
3 President, Military Order, “Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism,” Federal Register 66, No. 222 (16 November 2001), 57833-
57834 [hereinafter “Military Order”].
4 Ibid.
5 Adam Roberts, “Counter-Terrorism, Armed Force, and the Laws of War,” Survival, vol.
44, no. 1 (Spring 2002): 9.
6 Noah Feldman, Choices of Law, Choices of War,” Harvard Journal of Law and Public
Policy, vol. 25 (Spring 2002): 468.
7 Ibid.
8 Ibid.
9 Crimes and Criminal Procedure, U.S. Code, Title 18, sec. 1385 (2002).
10 Department of Defense, Military Assistance For Civil Disturbances, Department of
Defense Directive 3025.12 (Washington, D.C. 1994), 3.
11 War and National Defense, U.S. Code, Title 50, sec. 1541(c) (2002). Statutory
authorizations include 42 U.S.C. § 5191(b) (declaring an emergency other than a federal
disaster); 42 U.S.C § 5170(c) (emergency 10-day authority to use Dep’t of Defense for work
“essential for the preservation of life and property”
; 42 U.S.C. § 5170 (declaration of a19
major disaster); 42 U.S.C. § 5191(a) (declaration of an emergency); 10 U.S.C. §§ 331-334
(civil disturbance statutes); 18 U.S.C. §§ 351, 1116, 1751 (assisting Dep’t of Justice in cases
of offenses against the President, the Vice President, Members of Congress, the Cabinet, a
Supreme Court Justice, or an “internationally-protected person”
; 18 U.S.C. § 831(prohibited transactions involving nuclear materials); 18 U.S.C. § 382 (emergencies
involving chemical or biological WMD).
12 Ibid., sec. 1542.
13 President, Proclamation, “Declaration of National Emergency by Reason Of Certain
Terrorist Attacks,” Federal Register 66, no. 181 (18 September 2001), 48199.
14 Joint Resolution to Authorize the Use of United States Armed Forces Against Those
Responsible for the Recent Attacks Against the United States, Statutes at Large 115, sec. 2,
224 (2001).
15 Charter of the United Nations, 2d ed. (Hague, 1947), Ch. I, Art. 2(1).
16 Ibid., Ch I, Art. 2(4); Ch. VII, Arts. 39, 41, 42, 51.
17 S.C. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg. at 1, U.N. Doc. S/Res/1368 (2001);
S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg. at 1-4, U.N. Doc. S/Res/1373 (2001).
18 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6
U.S.T. 3316, 75 U.N.T.S. 135, arts. 87, 99 (read together, these articles establish that a
belligerent in a war cannot prosecute enemy soldiers for their lawful acts of war); reprint,
Department of the Army Pamphlet 27-1, Treaties Governing Land Warfare, Department of
the Army, December 1956.
19 Ibid., Art. 21-32 (safety, quarters, food, clothing, medical care); Art. 34-38 (religious,
intellectual, physical pursuits); Art. 49-57 (labor); Art. 60 (payment); Art. 69-77
(correspondence).
20 “Statement by White House Press Secretary Ari Fleischer,” United States Mission-
Geneva, Press Releases 2002, 7 February 2002. <http://www.usmission.
ch/press2002/0802fleischerdetainees.htm> [7 Feb 2004].
21 Third Geneva Convention, art. 2.
22 Ibid.
23 George H. Aldrich, “The Taliban, Al Qaeda, and the Determination of Illegal
Combatants,” 96 Am. J. Int’l L. 891, 892 (2002).
20
24 Protocols to the Geneva Conventions of 12 August 1949, Protocol I, art. 75; Protocol
II, art. 4, Dep’t of the Army Pamphlet 27-1-1 (September 1979).
25 Aldrich, 893, n. 11.
26 “Statement by White House Press Secretary Ari Fleischer.”
27 Ibid.
28 Third Geneva Convention, art. 2.
29 Lawrence Azubuike, “Status of Taliban and Al Qaeda Soldiers: Another Viewpoint,
Connecticut Journal of International Law,” 19 Conn. J. Int’l L. 127, 130-31 (Fall 2003). The
Taliban is reported to be an organization influenced by the teachings of religious schools in
Pakistan who were provided military training from the Pakistani government. When the
Soviet Union withdrew from Afghanistan in 1989, the Taliban emerged from the six-year
struggle for control of Afghanistan controlling all but a small percentage of the territory. The
Taliban therefore became the de facto government of Afghanistan.
30 Restatement of Foreign Relations Law 3d, Sec. 201 (1986)
31 Azubuike, 131.
32 “Saudis Break Diplomatic Ties With Taliban,” CNN.com./World, 25 September 2001,
<http://www.cnn.com/2001/WORLD/asiapcf/central/09/25/ret.saudi.taliban/> [31 January
2004].
33 Azubuike, 131-34.
34 Mackubin T. Owens, “Detainees or Prisoners of War?,” Ashbrook Center for Public
Affairs at Ashland University, January 2002, <
http://www.ashbrook.org/publicat/oped/owens/02/pow.html> [2 February 2004].
35 United States v. Lindh, 212 F. Supp. 2d 541, 553 n.16 (E.D. Va. 2002).
36 Pierre-Richard Prosper, Ambassador-at-Large for War Crimes Issues, “Status and
Treatment of Taliban and Al Qaeda Detainees,” Remarks at Chatham House, London, United
Kingdom, 20 February 2002, <http://www.state.gov/s/wci/rm/2002/8491pf.htm> [7 February
2004].
37 William H. Parks, “Command Responsibility for War Crimes,” 62 Mil. L. Rev. 1
(1973).
21
38 Michael Rubin, “Who Is Responsible for the Taliban?” Middle East Review of
International Affairs, March 2002, <http://www.washingtoninstitute.org/media/rubin/rubinwho.
htm> [7 February 2004].
39 David Buchbinder, “Guns Offer Fast Profits for Afghans,” Christian Science Monitor,
Aug. 6, 2002, <http://www.csmonitor.com/2002/0806/p07s01-wosc.html> [7 February
2004].
40 Aldrich, 895-96.
41 “Statement by White House Press Secretary Ari Fleischer.”
42 Third Geneva Convention, art. 4(A)(1).
43 Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907,
36 Stat. 2277, T.S. No. 539, reprinted in Dept’ of the Army Pamphlet 27-1, Treaties
Governing Land Warfare, at 8; Manual of Military Law 240 (British War Office, 1914) (“It
is taken for granted that all members of the army as a matter of course will comply with the
four conditions; should they, however, fail in this respect... they are liable to lose their special
privileges of armed forces.").
44 Lindh, 212 F. Supp. 2d at 557, n.35.
45 Protocol I, art. 44.
46 Kenneth Anderson, “What to do With Bin Laden and Al Qaeda Terrorists? A Qualified
Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay
Naval Base,” 25 Harv. J.L. & Pub. Pol’y. 591, 615 (2002).
47 Protocol I, art. 44(3).
48 Protocol I, art. 1(4).
49 Michael J. Matheson, “The United States Position on the Relation of Customary
International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,” 2 Am.
U.J. Int’l & Pol’y 419, 420 (1987).
50 Aldrich, 895.
51 Ibid.
52 Third Geneva Convention, art. 87, 99-108.
22
53 Third Geneva Convention, art. 21-32 (safety, quarters, food, clothing, medical care);
art. 34-38 (religious, intellectual, physical pursuits); art. 49-57 (labor); art. 60 (payment); art.
69-77 (correspondence).
54 “Statement by White House Press Secretary Ari Fleischer.”
55 Third Geneva Convention, art 118.
56 Protocol I, art 75; Protocol II, art. 4.
57 Military Order, sec. 2(a)(1)(i)-(iii) (defining individuals subject to detention); sec. 3
(ordering detention).
58 Military Order, passim.
59 Protocol I, art 75; Protocol II, art. 4.
60 Jordan J. Paust, “Judicial Power To Determine the Status and Rights of Persons
Detained Without Trial,” 44 Harv. Int'l L.J. 503, 504 (Summer, 2003) (arguing that
international law, the U.S. Constitution, and U.S. federal case law limit the power to detain
persons without trial, and that such detention must be subject to judicial review).
61 Brief of the Military Defense Attorneys Assigned to the Defense in the Office of
Military Commission as Amicus Curiae in Support of Neither Party, Al Odah v. United
States, No. 03-343 (14 January 2004) (on file with author).
62 William H. Rehnquist, All the Laws But One – Civil Liberties in Wartime (New York:
Vintage Books 1998), 128; Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003).
63 Ex Parte Quirin, 317 U.S. 1 (1942); Johnson v. Eisentrager, 339 U.S. 763 (1950).
64 Lindh, 212 F. Supp. 2d 541.
65 Hamdi, 316 F.3d at 461.
66 Lindh, 212 F. Supp. 2d at 557; Hamdi, 316 F.3d at 462-63.
67 Eisentrager, 339 U.S. at 781 (1950).
68 Third Geneva Convention, art 5.
69 Ibid.
70 Ibid.
23
71 Ibid.
72 Military Order, sec.2.
73 Third Geneva Convention, art. 102.
74 Ex Parte Quirin, 317 U.S. at 30-31.
75 Al Odah, 124 S. Ct. 534 (2003).
76 War and National Defense, U.S. Code, Title 50, sec. 1631 (2002).
77 Military Order, sec. 2; e.g., Hamdi, 316 F.3d at 462-63.
78 Eisentrager, 339 U.S. at 781 (1950).
79 Military Order, sec. 2.
80 Ex Parte Quirin, 317 U.S. 1; Military Order, sec. 4
24
BIBLIOGRAPHY
Aldrich, George H. “The Taliban, Al Qaeda, and the Determination of Illegal Combatants.”
96 Am. J. Int’l L. 891 (2002).
Anderson, Kenneth. “What to do With Bin Laden and Al Qaeda Terrorists? A Qualified
Defense of Military Commissions and United States Policy on Detainees at Guantanamo
Bay Naval Base.” 25 Harv. J.L. & Pub. Pol’y. 591 (2002).
Azubuike, Lawrence. “Status of Taliban and Al Qaeda Soldiers: Another Viewpoint,
Connecticut Journal of International Law.” 19 Conn. J. Int’l L. 127 (Fall 2003).
Berkowitz, Bruce. The New Face Of War: How War Will Be Fought In The 21st Century.
The Free Press, 2003. Reprint, Newport, RI: U.S. Naval War College, 2003.
Brief of the Military Defense Attorneys Assigned to the Defense in the Office of Military
Commission as Amicus Curiae in Support of Neither Party. Al Odah v. United States,
No. 03-343 (14 January 2004) (on file with author).
Buchbinder, David. “Guns Offer Fast Profits for Afghans.” Christian Science Monitor. Aug.
6, 2002. <http://www.csmonitor.com/2002/0806/p07s01-wosc.html> [7 February 2004].
Crimes and Criminal Procedure. U.S. Code, Title 18, sec. 1385 (2002).
Department of the Army Pamphlet 27-1. Treaties Governing Land Warfare. Department of
the Army, December 1956.
Department of Defense Directive 2000.12, DoD Combating Terrorism Program (15 Sep
1996).
Ex Parte Quirin, 317 U.S. 1 (1942).
Feldman, Noah. Choices of Law, Choices of War.” Harvard Journal of Law and Public
Policy, vol. 25 (Spring 2002): 468.
Charter of the United Nations. 2d ed. Hague, 1947.
Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003).
Johnson v. Eisentrager, 339 U.S. 763 (1950).
Joint Resolution to Authorize the Use of United States Armed Forces Against Those
Responsible for the Recent Attacks Against the United States, Statutes at Large 115, sec.
2, 224 (2001).
http://www.fas.org/man/eprint/reid.pdf
Last edited:
RadiomanATL
Senior Member
No assumption. Its right here in black and white for everyone to read. You started off on how the military was conducting illegal activity, was called on it. You then moved on to how the war was illegal, and then was asked to prove it, which you couldn't. And now you're on to simply thrashing about, spewing ad hominems and accusing others of lying and putting words in your mouth, and generally making a fool of yourself.
No assumptions necessary chump.
Last edited:
Annie
Diamond Member
- Nov 22, 2003
- 50,848
- 4,830
- 1,790
How many times, by how many posters is it going to take until you understand that you are not bringing anything to the subject, other than your bleeding heart angst?
How many times do you have to be reminded that there has been no trial yet.
Huh? I said there was? Where?
RadiomanATL
Senior Member
Goddammit Intense.
Stop that shit. Ain't a ******* soul (or sole) going to read all that shiat.
Stop that shit. Ain't a ******* soul (or sole) going to read all that shiat.
******* Retards accused me of misrepresenting a Post. I tried more than once to get them to check the Source. They think FAS is a Troll site or something. ******* unbelievable.
RadiomanATL
Senior Member
Dude, it's CL. You could post "See Spot run" and it would over their head.
CurveLight
Rookie
- Oct 16, 2009
- 9,768
- 317
- 0
- Banned
- #571
One more time. I never said you did support the invasion. Your entire whiny rant is based on accusing me of saying something I never said. The proof is right now you will be asked to show where I said you support the invasion. Where is it?
I know you didn't support the invasion....I saw that when I first started posting. This is too stupid to even discuss. If your response doesn't show where I said specifically you support the invasion then don't keeping whining.
Shitbag.
RadiomanATL
Senior Member
GodDAMN your stupid.
I was agreeing with you, dumbass.
I said this to reiterate the point. Not to say that you said I did support it.
Shit man, what the hell do you flavor your chips with? Lead dust?
CurveLight
Rookie
- Oct 16, 2009
- 9,768
- 317
- 0
- Banned
- #574
Here ya go. That is the post where you claimed I made a strawman about you supporting the invasion. Got anymore ironic lead dust comments einstein?
RadiomanATL
Senior Member
CurveLight
Rookie
- Oct 16, 2009
- 9,768
- 317
- 0
- Banned
- #576
Can you show any post where I said FAS is a troll site? No. Do you know why? I'm familiar with that site and have linked it often in the past.
My beef was pointing out:
YOU SELECTIVELY QUOTED AN OPINION PIECE AND TRIED TO PASS IT OFF AS LAW OR FACT.
Can you please read that again. No, really. Like five more times.
CurveLight
Rookie
- Oct 16, 2009
- 9,768
- 317
- 0
- Banned
- #577
That must be why you said:
"Oh yeah, almost forgot.
I didn't support the invasion of Iraq..."
If you knew I didn't accuse you of supporting the invasion why would you say that? Don't bother man...it's too embarrassing to watch. You, ollie, intense and a couple of others have a serious problem of putting words in others' mouths then absolutely refusing to admit a mistake.
RadiomanATL
Senior Member
I was using that as a literary tool to show how your Cheney post was a strawman.
Shit man, you skipped the lead dust and moved straight to the lead bricks, haven't you? Or are you REALLY this dumb on accident? Hard to tell which.
CurveLight
Rookie
- Oct 16, 2009
- 9,768
- 317
- 0
- Banned
- #579
Here ya go (dis)honest abe. I pointed out I never said you supported the invasion or cheney and your response clearly says I implied that. Can't believe you tried to spin it as a "literary tool." rotfl.
You now have the opportunity to be honest or keep denying you fucked up. We both know what you will do so save yourself the embarrassment of actually doing it.
Here is the Original Post with three Links. Post #467. I apologize if you confused the links in that post. If the Questioned Post is not from FAS, but Cornell University. It is US Code. The FAS Link is not an Opinion Fluff piece, but an Independent Analysis, thats why the disclaimer. It states that it is an analysis in the first sentence. Your Charge is False.
US CODE: Title 18,2331. Definitions
Me make it Easier. Here is the part I left out. Do You really believe my intention was to mislead? Honestly?
NAVAL WAR COLLEGE
Newport, R.I.
TERRORISTS AS ENEMY COMBATANTS
An Analysis of How the United States Applies the Law of Armed Conflict
in the Global War on Terrorism
By
Scott Reid
MAJ, U.S. Army
A paper submitted to the Faculty of the Naval War College in partial satisfaction of the
requirements of the Department of Joint Maritime Operations.
The contents of this paper reflect my own personal views and are not necessarily endorsed by
the Naval War College or the Department of the Navy.
Signature: ___________________
9 February 2004
Last edited:
Similar threads
New Topics
-
-
Lessons from cops - How they act when interrogating criminals- Started by Robert W
- Replies: 0
-
-
Virgina Democrats passes a law that violates racial and gender discrimination laws- Started by TroglocratsRdumb
- Replies: 0
-
Zone1 Paula White: "Christian" Zionist and White House Staffer (Looney Tunes)- Started by SaxonJackson
- Replies: 15
