THE ENEMY COMBATANT PAPERS: AMERICAN JUSTICE, THE …assets.cambridge.org/97805218/86475/frontmatter/9780521886475… · 5. al-Marri v. Hanft 847 Introduction by Jonathan Hafetz 847

THE ENEMY COMBATANT PAPERS: AMERICAN JUSTICE, THE COURTS,AND THE WAR ON TERROR

This volume presents the five major enemy combatant cases of the post–9/11 era. As-sembled in narrative form, the documents tell the story of the legal arguments uponwhich the U.S. government and the defense attorneys have based their respective sidesin what has become a complex and philosophically important debate among Ameri-can lawyers, political scientists, and citizens. These cases involve two U.S. citizens, oneQatari citizen enrolled at an Illinois university, and two of the most prominent casesregarding Guantanamo detainees. Viewed together, the documents assembled herein indigested form illustrate the judicial struggle between the needs of national security andthe constitutional and international legal protections regarding the rights of individu-als. Legal issues, including habeas corpus, presidential powers, and the applicability ofthe Geneva Conventions; administrative issues such as the plenary executive and theroles of the Departments of Defense, State, and Justice; and moral questions, includingconditions of detention and how to define the “enemy,” all coalesce in providing one ofthe most comprehensive and compelling portraits of the U.S. engagement in the war onterror.

Karen J. Greenberg is the Executive Director of the Center on Law and Security at theNew York University School of Law. She is the editor of the NYU Review of Law andSecurity; co-editor of The Torture Papers: The Road to Abu Ghraib, with Joshua L. Dratel;editor of the books Al Qaeda Now and The Torture Debate in America; and author ofthe forthcoming The Least Worst Place: Guantanamo’s First Hundred Days. Her work onterrorism, international law, the war on terror, and detainee issues has been featured inFinancial Times, the Guardian, the Los Angeles Times, the San Francisco Chronicle, TheWashington Post, the Nation, the American Prospect, and on major media outlets.

Joshua L. Dratel is an attorney in New York City. Dratel, a past President of the NewYork State Association of Criminal Defense Lawyers and member of the Board of Di-rectors of the National Association of Criminal Defense Lawyers, has been defensecounsel in several terrorism and national security prosecutions, including that of SamiOmar Al-Hussayen, who was acquitted in federal court in Idaho in 2004, and Wadih El-Hage, a defendant in United States v. Usama bin Laden, which involved the August 1998bombings of the United States embassies in Kenya and Tanzania. He was also lead andcivilian counsel for David Hicks, an Australian detained at Guantanamo Bay, Cuba, inHicks’s prosecution by U.S. military commission. Dratel currently represents MohamedEl-Mezain, a defendant in the federal prosecution of the Holy Land Foundation for Re-lief and Development, and, on appeal, Lynne Stewart, a New York lawyer convicted ofmaterial support for terrorism. He is co-editor with Karen J. Greenberg of The TorturePapers: The Road to Abu Ghraib, a compendium of government memoranda.

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Cambridge University Press978-0-521-88647-5 - The Enemy Combatant Papers: American Justice, the Courts, and the War onTerrorEdited by Karen J. Greenberg and Joshua L. DratelFrontmatterMore information

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THEENEMY COMBATANT

PAPERS

American Justice, the Courts, andthe War on Terror

Edited by

Karen J. Greenberg

and

Joshua L. Dratel

with

Jeffrey S. Grossman






CAMBRIDGE UNIVERSITY PRESS

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Cambridge University Press32 Avenue of the Americas, New York, NY 10013-2473, USA

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C© Cambridge University Press 2008

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First published 2008

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Library of Congress Cataloging in Publication Data

The enemy combatant papers : American justice, the courts, and the War on Terror /edited by Karen J. Greenberg, Joshua Dratel.

p. cm.Includes bibliographical references and index.ISBN 978-0-521-88647-5 (hardback)1. War on Terrorism, 2001 – Law and legislation – United States.2. Detention of persons – United States. 3. Combatants and noncombatants –Legal status, laws, etc. – United States. 4. Combatants and noncombatants(International law) I. Greenberg, Karen J. II. Dratel, Joshua L., 1957– III. Title.KF9430.E53 2008345.73′02–dc22 2008013105

ISBN 978-0-521-88647-5 hardback

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Contents

Acknowledgments page viii

Caught in the War on Terror: Redefining Prisoners in the Post–9/11 Era,by Karen J. Greenberg ix

Repeating History: Rights and Security in the War on Terror, by Joshua L. Dratel xiii

Enemy-Criminals: The Law and the War on Terror, by Noah Feldman xvii

Readers’ Guide xxi

Timeline xxiii

PART ONE. “BATTLEFIELD” CAPTURES

1. Rasul v. Bush 3

Introduction by Joseph Margulies 3

Petition for Writ of Habeas Corpus (2/19/2002) 7Amended Petition for Writ of Habeas Corpus (3/18/2002) 18Government’s Motion to Dismiss (3/18/2002) 23District Court Decision (7/30/2002) 37Circuit Court Decision (3/11/2003) 47Rasul’s Supreme Court Brief (1/14/2004) 55Government’s Supreme Court Brief (3/03/2004) 76Rasul’s Reply Brief (4/07/2004) 86Supreme Court Decision (6/28/2004) 91District Court Memo In re Guantanamo Detainee Cases (1/31/2005) 110Circuit Court Opinion (2/20/2007) 133Denial of Certiorari (4/02/2007) 155Reply to Opposition to Rehearing (Abraham Declaration) (6/22/2007) 156Letter from the Solicitor General (McGarrah Declaration) (6/26/2007) 163Grant of Certiorari (6/29/2007) 174

2. Hamdi v. Rumsfeld 175

Introduction by Geremy C. Kamens 175

Petition for Writ of Habeas Corpus (5/10/2002) 178Magistrate Judge’s Order (5/20/2002) 187Government’s Objections to Magistrate Judge’s Order (5/23/2002) 188District Court Order (5/29/2002) 194Government’s Motion to Stay Unmonitored Access (5/31/2002) 196

v






vi Contents

Petition for Writ of Habeas Corpus (Naming Esam Fouad Hamdias Next Friend) (6/11/2002) 202

District Court Order (6/11/2002) 204Fourth Circuit Order (6/13/2002) 206Fourth Circuit Decision on Next Friend Status (“Hamdi I”) (6/26/2002) 207Fourth Circuit Decision on Provision of Counsel (“Hamdi II”) (7/12/2002) 209Government’s Motion to Dismiss (7/25/2002) 215Hamdi’s Response (7/30/2002) 229District Court Hearing Transcript (8/13/2002) 242District Court Order (8/16/2002) 265Fourth Circuit Decision (“Hamdi III”) (1/08/2003) 272Fourth Circuit Order (“Hamdi IV”) (7/09/2003) 288Hamdi’s Supreme Court Brief (2/23/2004) 301Government’s Supreme Court Brief (3/29/2004) 317Supreme Court Decision (6/28/2004) 337Motion to Stay (9/24/2004) 383Dismissal Stipulation (10/12/2004) 389

PART TWO. MILITARY COMMISSIONS

3. Hamdan v. Rumsfeld 393

Introduction by Joseph M. McMillan 393

President’s Determination that Hamdan Is Subject to Order AuthorizingMilitary Commissions (7/03/2003) 397

Memo Requesting Charges or Release from Pre-Commission Segregation(2/12/2004) 398

Memo from Legal Advisor to the Appointing Authority (2/23/2004) 399Petition for Writ of Mandamus or Habeas Corpus (Western District of

Washington) (4/06/2004) 400Conspiracy Charge (7/13/2004) 427Government’s Memo in Support of Motion to Dismiss (8/06/2004) 430Transfer from the Western District of Washington to D.C. (8/09/2004) 460District Court Decision (11/08/2004) 461Circuit Court Decision (7/18/2005) 477Hamdan’s Brief to the Supreme Court (1/06/2006) 486Government’s Motion to Dismiss for Lack of Jurisdiction (1/12/2006) 514Hamdan’s Opposition to Motion to Dismiss (1/31/2006) 519Government’s Supreme Court Brief (2/23/2006) 526Hamdan’s Reply Brief (3/15/2006) 548Supreme Court Decision (6/29/2006) 557Notice of Military Commissions Act of 2006 (10/18/2006) 638District Court Decision (12/13/2006) 649Military Commission Order (6/04/2007) 658

PART THREE. U.S. CAPTURES

4. Padilla v. Bush 663

Introduction by Andrew Patel 663

Material Witness Warrant (5/08/2002) 666Order Classifying Padilla as an Enemy Combatant (6/09/2002) 673






Contents vii

Amended Petition for Writ of Habeas Corpus (06/20/2002) 674Government’s Motion to Dismiss (6/26/2002) 681Padilla’s Reply to Motion to Dismiss (7/11/2002) 689Declaration of Michael H. Mobbs (8/27/2002) 692District Court Decision (“Padilla I”) (12/04/2002) 696Declaration of Vice Adm. Lowell E. Jacoby (1/09/2003) 726Second Circuit Decision (12/18/2003) 734Government’s Reply Supporting Certiorari (2/11/2004) 749Padilla’s Supplemental Brief (2/13/2004) 751Government’s Supreme Court Brief (3/17/2004) 753Padilla’s Supreme Court Brief (4/12/2004) 770Press Conference Remarks of Deputy Attorney General James Comey

(6/01/2004) 783Supreme Court Decision (6/28/2004) 788Petition for Writ of Habeas Corpus (South Carolina) (7/02/2004) 806Government’s Answer (8/30/2004) 810District Court Decision (2/28/2005) 823Fourth Circuit Decision (I) (9/09/2005) 830Memo Transferring Padilla from Department of Defense to Department

of Justice (11/20/2005) 837Fourth Circuit Decision (II) (12/21/2005) 838Supreme Court Order Granting Transfer (1/04/2006) 843Supreme Court Denial of Certiorari (4/03/2006) 844

5. al-Marri v. Hanft 847

Introduction by Jonathan Hafetz 847

Order Transferring al-Marri to Military Custody (6/23/2003) 851Petition for Writ of Habeas Corpus (7/08/2004) 852Government’s Answer (9/09/2004) 863al-Marri’s Reply to Government’s Answer (2/14/2005) 880District Court Order Denying Motion for Summary Judgment (7/08/2005) 900Magistrate Judge’s Report and Recommendation (5/08/2006) 905al-Marri’s Brief Addressing the Impact of Hamdan (7/12/2006) 907Government’s Response to al-Marri’s Brief Addressing the Impact of

Hamdan (7/19/2006) 911District Court Decision (8/08/2006) 913Combatant Status Review Tribunal Order (11/13/2006) 918Government’s Motion to Dismiss (11/14/2006) 919al-Marri’s Response to Government’s Motion to Dismiss (12/12/2006) 922al-Marri’s Letter Regarding District Court Decision in Hamdan (12/15/2006) 940Fourth Circuit Decision (6/11/2007) 941

Cases of Note 977

Index 983

Index of Cases of Note 995






Acknowledgments

This volume could not have been produced without the assistance of many of our col-leagues, including Neal Katyal, Paul Clement, Donna Newman, Stephen Holmes, JohnBerger, and Joan Dim. New York University law student Erik Paulsen (‘07) deservesespecial credit for coordinating the early stages of this project and scrupulously gath-ering and analyzing the many thousands of pages of primary source material. We arealso indebted to the researchers and staff of the Center on Law and Security and NewYork University law students and undergraduates for their dedication in assembling,editing, and proofing the documents herein. They include Meredith Angelson, KatieBrodsky, Keith Chapman, Nicholas Colten, Elizabeth Dettori, Daniel Freifeld, DivyaKhosla, Francesca Laguardia, Susan MacDougall, Adam Maltz, Christopher McGuire,Jason Porta, Jackie Randell, Elizabeth Rothstein, Gunjan Sharma, Zachary Stern, andKatie Sticklor. We would also like to thank Jim Diggins for his thorough work in com-piling the index.

viii






Caught in the War on Terror: Redefining Prisonersin the Post–9/11 Era

Karen J. Greenberg

A dramatic story unfolds through the pages of this volume. From the narrative digest ofthe five major enemy combatant cases that have come to define the role of the federalcourts in the war on terror, one predominant fact leaps out. These documents tell astory less about the dynamics of judicial process than about human beings. It is a taleof individuals, both Americans citizens and non-citizens, who have found themselvesensnared in a radically novel legal system, and who, as suspected terrorists, have beenlocked up, often held incommunicado and denied the elemental protections usuallyprovided by American law.

For over six years, as these cases have made their way from court to court and havebeen batted from the Supreme Court to Congress and back again, debate has raged overa central burning issue. These cases are not essentially about releasing or continuing todetain individuals who may possibly be terrorists, though that is indeed an underlyingthread in the larger strand of arguments. Instead, the existential tension at the heartof these cases concerns the basic constitutional guarantee that no person (includingnon-citizens) shall be deprived of liberty without due process of law.

Throughout American history, wartime presidents have stepped beyond their cus-tomary constitutional powers while Congress and the courts have stepped back, yield-ing to the prevailing winds of wartime discretion. For Presidents Lincoln, Wilson, andFranklin Roosevelt, the nation in arms opened the door to restricting fundamental lib-erties – habeas corpus, freedom of speech, and freedom from unreasonable search andseizure. Under these earlier presidents, however, the historic balance of power was al-ways restored at war’s end. Owing to the predictable cessation of hostilities, the nationhas managed to survive crises of national security while continuing, in the main, tohonor the Bill of the Rights and to treat as inviolable the basic principles of the Consti-tution. Americans, as a result, have accepted the pendulum swing that war can bring,tolerating the wartime Constitution, secure in the knowledge that the peacetime Con-stitution will be waiting on the shelf, ready to be retrieved and revived.

Like previous conflicts, the war on terror has encouraged and permitted the ex-ecutive to demand deference from the other branches of government. In the name ofnational security, as he defines it, President George W. Bush has claimed the power tomake decisions without consulting or even informing either Congress or the courts.Sidelining traditional restraints on executive power, his presidency has altered the rela-tionship not only between the branches of government but also between the governmentand the public. Secrecy, national security concerns, and the administration’s publiclyannounced willingness to use law enforcement in disregard of an American tradition ofcivil liberties appear to have cowed the citizenry into political paralysis. And six yearsafter its onset, the war on terror rages on, mostly out of sight and seemingly without

ix






x Caught in the War on Terror by Karen J. Greenberg

end. As President Bush predicted in a speech delivered on the South Lawn of the WhiteHouse on September 16th, 2001, the response to 9/11 promises to be “a long campaign.”Accordingly, the pendulum-swing back to constitutional normality hovers in defianceof physics, waiting for a sign that such a return is viable.

At the center of this reorganization of power, symbolically and legally, has been thecreation of a new category of person, applicable to U.S. citizens as well as to non-citizens.The nomenclature used to designate this new category is “enemy combatant,” a term thatmixes confusingly several legal and military concepts. What those who adopted it weresearching for was a term that could indicate prisoners in the war on terror who were notconventional prisoners of war. Although it conflates a number of previously well-definedcategories (especially “enemy prisoner of war,” “combatant” and “civilian combatant”),“enemy combatant” apparently seemed to anonymous administration linguists to bethe best option at the time.

In creating this nebulous class, the Bush administration exploited a lack of clarityin international law. Although the term “unlawful combatant,” is not part of any writteninternational law or code, the idea has long been recognized in practice. Legal interpre-tation, military protocol, and case law have all led to the widely shared acceptance of thedistinction between lawful combatants and unlawful combatants, a distinction that hasspecific implications for the legal treatment of prisoners in either group. Lawful com-batants include those members of militias and volunteer forces who, in the words of theGeneva Convention Relative to the Treatment of Prisoners of War, are “commanded by aperson responsible for his subordinates,” “have a fixed distinctive sign,” and carry “armsopenly.” Essentially, they are battlefield captives who qualify as lawful combatants andare entitled to prisoner of war status, defined according to widely accepted internationalnorms. As “enemy prisoners of war,” or “EPW” (as they are called by Army regulations),they are able to be legally detained for the duration of the war and, as such, are subjectto a lengthy set of international and U.S. military codes that ensure humane treatmenton the part of the detaining authorities, in this case the United States.

Unlawful combatants, such as the Nazi saboteurs whose fate was decided by theSupreme Court in the Quirin case, are prisoners “likewise subject to capture and de-tention, but in addition they are subject to trial and punishment by military tribunalsfor acts which render their belligerency unlawful,” as Chief Justice Harlan Fiske Stonewrote for the Court. The Quirin defendants were caught behind enemy lines, havinglanded in Florida and Long Island by submarine, burying their uniforms so as to defyidentification as combatants and intending to sabotage American industrial targets.

Citing Quirin as precedent, the government’s lawyers laid out their radical strat-egy, asserting that the demands of national security, given the unprecedented threatof Islamic fundamentalist terrorism, required a re-reading of the law. In a series ofmemos drafted by the Office of Legal Counsel beginning in the fall of 2001 and contin-uing throughout the Bush presidency, the administration asserted that not only werethe Geneva Conventions on the categorization and treatment of prisoners “quaint” and“obsolete,” but so too were the traditional guarantees of right to counsel, right to habeascorpus, and the right to humane and decent treatment. As a basis for later determina-tions in court, the administration’s lawyers concluded early in 2002 that the laws ofarmed conflict “do not protect” members of al Qaeda and the Taliban militia. Further-more, government lawyers concluded that al Qaeda and the Taliban militia were notcovered by the Geneva Conventions. The Taliban, the administration asserted by way ofexplanation, represented a failed state. “Afghanistan’s status as a failed state is groundalone to find that members of the Taliban militia are not entitled to enemy POW status,”as Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty






Caught in the War on Terror by Karen J. Greenberg xi

wrote in a draft memo on January 9, 2002. As a non-state actor, al Qaeda was similarlyheld to be not covered by international law in general and the Geneva Conventionsin particular. “Al Qaeda is merely a violent political movement organization and not anation-state,” echoed Assistant Attorney General Jay S. Bybee in a January 22, 2002,memo. With one fell swoop, the administration thus extricated the United States fromthe international obligations that have governed the treatment of prisoners in armedconflict since the middle of the nineteenth century.

Publicly defying tradition to an extent rarely, and perhaps never, seen in Americanhistory, the administration embraced the shattering of established rules and norms.In speeches and memos, the president and his lawyers would later use these baselinedeviations from previously settled law to defend coercive interrogation techniques, toredefine torture so narrowly as to allow for techniques accepted from medieval timesforward as torture – e.g., waterboarding – and to denounce proper judicial processes,both in the military and the civilian context, as posing unaffordable risks to national se-curity. Lawyers, courts, and the law, when exercised on behalf of individuals classified asenemy combatants, were considered impediments to the nation’s safety and well-being.The 2005 National Defense Strategy echoed this attitude toward the courts, including“judicial processes” among the country’s “vulnerabilities,” and labeling them part of a“strategy of the weak.”

The cases digested in this volume present the riveting story of five conversations onthe politics of the war on terror. Clearly presented are the justifications for reneging uponbasic rights and liberties that are traditionally guaranteed to Americans. For governmentlawyers, it has largely been a story of deference to the executive branch in time ofwar. Equally thought-provoking is the argument of the defense attorneys who haverelentlessly insisted that to create unheard-of categories of prisoners and to constantlychange the rules for their treatment threatens overarching principles of legality, bothdomestic and international.

As the petitioners in Hamdi argued in their Supreme Court brief, “Hamdi’s de-tention is offensive to the most basic and unimpeachable rule of due process: that nocitizen may be incarcerated at the will of the Executive without recourse to a timely pro-ceeding before an independent tribunal to determine whether the Executive’s assertedjustifications for the detention have a basis in fact and a warrant in law.”

The government has claimed that, in time of war, the courts need to step aside andgrant the institutions responsible for national security – the executive and the military –the ability to do what they think they need to do to protect the country adequately. Isjudicial abdication in time of war either justifiable or necessary? Might it not weakenthe country’s defenses in the face of a serious foreign threat? These are the fundamentalpolitical questions posed by the enemy combatant cases. As the Fourth Circuit explainedin July of 2002, in deciding Hamdi, “The federal courts have many strengths, but theconduct of combat operations has been left to others.” In other words, if the armedstruggle with al Qaeda involves war rather than crime, then it is for the military andpolitical branches of government alone, not for the courts.

Attorneys representing the detainees have repeatedly countered these argumentsby claiming that judicial deference to the executive will dangerously undermines fun-damental rights. In response to the administration’s dire warnings, the attorneys haveinvoked fear of another sort, namely the fear that American citizens will no longer beshielded from their government’s overreaching. Lawyers for Mr. al-Marri similarly in-voked the egregious violations of fundamental rights. “The government’s claim that thePresident can, without authorization from Congress, direct the military to seize a per-son off the streets of the United States and confine him indefinitely, without charges,






xii Caught in the War on Terror by Karen J. Greenberg

in a military prison contravenes the Suspension Clause’s protection against the arbi-trary exercise of executive power. The President cannot circumvent this constitutionalguarantee simply by labeling Mr. al-Marri an ‘enemy combatant.”’

Neither fears about national security nor consideration of rights seem to have beendecisive in shaping the thinking of the Supreme Court, however. Instead, the Justiceshave focused on presidential power. As Sandra Day O’Connor wrote in her opinion inHamdi, “a state of war” cannot be “a blank check for the President.” The Court hasinvoked the responsibilities of Congress several times over the course of the litigation.Congress’s response has been a codification of the power that the president has sought –first with the Detainee Treatment Act and then with the Military Commissions Act, adirect response to the decision in Hamdan, which declared that the types of militarytribunals then in use at Guantanamo did not meet the accepted standards for militarycommissions.

Arguably, this legal and legislative back-and-forth has brought to the fore a nationat its best, reasoning and debating, trying to make sense of a world increasingly difficultto fathom, searching its fundamental philosophical treatises and its knowledge of itsown past for usable precedents and explanatory principles, in an effort to find a guideto going forward. You will find in this volume attempts by both the government andthe defense attorneys to navigate treacherous political waters while keeping within theconfines of the law. Yet you will also see revealed here a nation struggling to find ashared language and, beyond that, a shared vision of how to proceed in bringing thewar on terror to a resolution that provides both a sense of security and a trust in theinviolability of the law.

The cases of Mr. Rasul, Mr. Hamdi, Mr. Hamdan, Mr. Padilla, and Mr. al-Marri haveinspired a new and rich conversation for understanding the politics of America at war.Perhaps the story of the detained men presented here will help the American citizenryunderstand better what is at stake, how best we as a nation can resolve these cases, andhow we should rethink what it means to create a new category of individual situatedoutside the protections of American law.






Repeating History: Rights and Securityin the War on Terror

Joshua L. Dratel

Since September 11, 2001, much has been made of the supposedly unprecedented na-ture of the threat presented by international terrorism. Indeed, it has been a refraincommonly used to justify an unprecedented response in the form of invented legal sys-tems and doctrine, “aggressive” interrogation methods, novel detention schemes, andan invigorated quest for unfettered executive authority.

All of those elements have converged in these five cases as they have percolated theirway through the U.S. civilian court system. They constitute the “enemy combatant”cases – involving persons the U.S. executive department has unilaterally designated“enemy combatants,” and therefore reputedly outside the rules of the law of war, inter-national law, and U.S. law, including the Constitution. Each case presents a differentwrinkle. Rasul v. Bush involves detainees at Guantanamo Bay, all aliens, who still seek,even after a Supreme Court victory, the right to institute habeas corpus actions to testthe validity of their detention. Hamdi v. Rumsfeld involved a U.S. citizen apprehendedin Afghanistan but held in military custody in the U.S. Padilla v. Hanft also involved aU.S. citizen in military custody, but one who had been arrested disembarking a flightin Chicago and initially held as a material witness pursuant to the ordinary rules offederal criminal procedure. Hamdan v. Rumsfeld involves a Guantanamo detainee whohad been charged in the military commission process devised just for the Guantanamopopulation. Al-Marri v. Hanft involves an alien who was initially indicted in the federalcriminal system but plucked from there on the eve of trial and transferred to militarycustody.

What the cases have shared is the government’s approach: that the courts do notpossess any role in the process; that only the executive can exercise any discretion indeciding who to detain, on what evidence, pursuant to what process, and for how long.Yet in that sense the cases are not unprecedented. Rather, they have repeated the samecycle that has existed during and after every war the U.S. has fought. At first, there isdeference to executive authority in the name of security and solidarity in the prosecutionof the war. That deference invariably extends beyond that which peacetime principlesfind tolerable and results in postwar retrenchment.

Whether the chosen analog is Ex parte Milligan and Ex parte Merryman (the CivilWar), the Espionage Act of 1917 prosecution of Eugene Debs (World War I), Korematsuand Quirin (World War II), the Smith Act cases (the Cold War), or the Chicago Eightand Dr. Spock cases (the Vietnam War), the current controversy replicates the tensionsbetween executive power and civil liberties about which the courts have had to decideduring a series of crises. Perhaps it is a sign of progress that while the administrationinsists that the conflict is ongoing – indeed, without any end in sight – the pendulum

xiii






xiv Repeating History by Joshua L. Dratel

swing toward greater protection for civil liberties and human rights appears already tobe occurring.

In three of the cases profiled in this volume – Rasul, Hamdi, and Hamdan – theSupreme Court reversed lower court decisions dismissing the particular detainees’ lawsuits and vindicated at least some of the rights and principles the detainees had invoked.In Padilla, the detainee’s loss was purely procedural. At the time of this writing, Mr. al-Marri’s case has not yet reached the Court (although he has won a victory before a panelof the Court of Appeals for the Fourth Circuit – the first in that court for an “enemycombatant” among the four cases it has decided).

Thus, unlike cases related to previous wars, court victories have not had to await theend of hostilities and the elimination of the perceived danger to U.S. national security.Indeed, it is ironic that the cycle from judicial deference to defiance has been shorterin the context of a conflict that does not appear to have any discernible end and thatis not susceptible to a clear point at which victory can be confidently and conclusivelydeclared.

Also ironic is the manner in which the administration has refused to apply anylaw to its treatment of “enemy combatants” and has as a result ushered in a resur-gence of attention and fidelity to international law principles and normative conceptsof universal human rights – two legal systems that had been roundly dismissed as irrel-evant to U.S. jurisprudence during the past two decades. The abandonment of ordinaryprotections, such as the U.S. Constitution and conventional statutory protections (i.e.,habeas corpus, the Third Geneva Convention, and the Convention Against Torture), hashad the unintended consequence of forcing the courts to address broader, traditionalprotections that have global application.

Much about this conflict has generated unanticipated developments. BeforeSeptember 11th, who would have thought it would be the United States that would, ineffect, repudiate the fundamental values incorporated in the Geneva Convention and,as a result, precipitate a crisis that would threaten to turn the clock back more than acentury with respect to treatment of prisoners taken in armed conflict?

Nevertheless, those values, so long in developing into formal rules and protections –after all, the international conventions are less than a century old, while warfare is asold as humanity – have proven more durable than the U.S. government hoped. Placedin jeopardy by U.S. actions since September 11th, those values have experienced aresurgence, reminding everyone of the compelling reasons they were enacted in the firstplace. Along with resuscitating those internationally acknowledged limits on the treat-ment of prisoners, these five cases have also served as an important reminder of thefounding principles of the U.S. itself: separation of powers, including an independentjudiciary and constitutional rights that cannot be abrogated at the discretion of theexecutive or even with the imprimatur of Congress.

The governmental structure the Framers created, on full display not only in thesefive cases themselves but also in the rich historical and legal analyses explicated in thebriefs and court opinions presented in this volume, continues more than 200 years laterto strike an extraordinarily sensitive yet enduring balance between security in a physicalsense – in immediate terms, within the natural purview of the executive – and securityin terms of the values that make that physical security worth preserving – the checksapplied by the legislative and judicial branches.

Thus, perhaps the triumph of these five cases in the historical context is not justtheir timing, coming during the conflict as opposed to after the danger has passed, butalso in how collectively they turn not so much on hypertechnical textual constructions –whether a person is a citizen or alien, whether territory is or is not sovereign U.S. soil






Repeating History by Joshua L. Dratel xv

conferring jurisdiction – as they do on the threshold requirements for the humanetreatment of individuals apprehended in a conflict that has transcended ordinary geo-graphical boundaries as well as on the definition of the “enemy.”

In many ways, these five cases share an attempt by the detainees, their lawyers, andthe courts to render stationary many of the concepts and definitions the administrationwishes to leave in a fluid state and has therefore resisted articulating with any specificity:Where is the battlefield? Who is the enemy? What is an “enemy combatant”? To whatprocess are detainees entitled? Which laws and principles apply?

The administration has made the answers to these questions moving targets ratherthan fixed principles, in effect arguing that it should be free to decide these issues onan ad hoc basis, free from any meaningful or independent review. The result is notonly the attempted thwarting of judicial intervention but also the attempted evasion ofaccountability in both the legal and electoral sense. Already we have on the record meaculpas from some of the participants as the rhetoric of executive hegemony fades inthe waning days of the Bush administration. Ultimate accountability, however, awaitsfurther investigation and review. These cases provide a legal and historical primer onthe important civic discussion that will likely ensue in the coming years.

Each of the five cases featured in this volume is important in its own right, bothlegally and historically. The process of reviewing them, and choosing what portions ofthe record, briefs, and opinions to include, has provided us the opportunity to reflecton them as a group and has enabled us to recognize with a good measure of claritythe intellectual, legal, and political drama that has unfolded over the fate of the enemycombatant cases. For the reader as well, we hope that reading through these narrativeswill bring greater understanding of the post–9/11 era and the challenges – legal, political,and philosophical – that await this nation in the days ahead.






Enemy-Criminals: The Law and the War on Terror

Noah Feldman

I.

Almost as soon as the towers fell on September 11, lawyers began to ask and advise onthe question of whether the U.S. government should engage with those responsible –and their associates – as criminals or as enemies in war. Both options seemed logicallypossible. On the one hand, the attacks perpetrated by al Qaeda certainly violated U.S.laws, and previous terrorists, including those who planned and executed the attackon the World Trade Center in 1991, had been tried as criminals. On the other hand,these attacks were on an unprecedented scale, came from outside the country, and wereunderstood as acts of war by those who planned them out. The attacks of 9–11 were notthe acts of a state, but, at least according to al Qaeda, they were directed at a state.

As it turned out, the U.S. government’s approach to the crime/war dilemma was totreat alleged members of al Qaeda as both criminals and as wartime enemies, sometimesalternately, and sometimes simultaneously. The Congress leapt into action within aweek, passing on September 18, 2001, a resolution authorizing the use of military forceagainst those responsible for 9–11, their associates, and those who harbored them. Thisdocument, known to initiates through its acronym “AUMF,” was based in part uponother resolutions that have come to do the legal and political work that a declarationof war did for an earlier generation. Where it differed from its predecessors was in itsextraordinarily open-ended description of the adversary. To fight an asymmetric, non-state enemy, Congress seemed to say, the executive branch must be able to range farand wide in targeting, unconstrained by the niceties of a more ordinary war which theenemy forces can be identified by their uniforms and their nation of origin.

The executive branch, we now know, adopted for itself an interpretation of thecongressional resolution that was at once embracing and dismissive. It was embracinginsofar as the Bush administration read the AUMF as allowing it to detain any suspectedal Qaeda members or associates wherever they might be, to hold them indefinitely andwithout counsel wherever it chose, and, in some cases, to interrogate them using meth-ods and techniques that would otherwise have been prohibited by U.S. and internationallaw. It was dismissive in that the same government that relied on the AUMF for theseextraordinary powers also maintained that it would have had all the same powers even ifCongress had never passed the resolution. The reason given was that, as the sole holderof the executive power and as commander in chief, the president had the inherent con-stitutional right to do what was necessary to defend a nation under attack – a powerthat Congress might confirm or even enhance but lacked the power to restrict.

With the two justifications of congressional and constitutional authority in hand,the executive branch undertook its own offensive in the global war on terror. Afghanistan

xvii






xviii Enemy-Criminals: The Law and the War on Terror by Noah Feldman

was invaded and the Taliban, who had harbored senior al Qaeda figures, includingOsama bin Laden and Ayman al-Zawahiri, fell quickly. In the aftermath, several hundrednon-Afghan Muslims who were found in or near Afghanistan were detained, many ofthem handed to U.S. authorities in exchange for bounty. The status of these men posedobvious legal problems. They wore no uniforms, and though most carried weapons,so did every herdsman in Afghanistan who could afford one. Their presence as non-Afghans in Taliban Afghanistan strongly suggested some degree of al Qaeda affiliation,but it was not as if al Qaeda fighters wore dog tags or carried identification. They did notfit the paradigm of ordinary prisoners of war, but neither could it be said immediatelythat they had committed any crimes.

These men, and some other suspected al Qaeda members apprehended elsewherein the world, were transferred in short order to detention facilities hastily constructedon the U.S. naval base in Guantanamo Bay, Cuba – a twilight zone for men whose legalstatus was itself of a twilight hue. The U.S. had leased Guantanamo in perpetuity whenCuba was little more than an American-controlled banana republic. Since Castro’s revo-lution, the U.S. had continued to claim and exercise control there over Cuban protest –but, crucially for the Bush administration’s legal strategy, not sovereignty. Guantanamowas therefore of the United States but not in it. The idea was that the government coulddo what it wanted there without falling inside the reach of U.S. law, whether statutoryor constitutional.

By happenstance, one of these new detainees was American born. This accidentmeant that Yaser Esam Hamdi came in for special treatment. He was transferred to amilitary brig in the U.S. There he was joined, metaphorically though not literally (sinceboth men were kept in solitary confinement in different locations), by another American,a Muslim convert named Jose Padilla. Padilla had not been to Afghanistan, but he hadapparently consorted with terrorist types in Yemen and Pakistan, and may have beenplanning attacks on U.S. soil. He was arrested at O’Hare airport in Chicago on hisreturn to the U.S., on information apparently obtained through the secret interrogationof Khalid Shaikh Mohammed, the purported mastermind of 9–11. What Padilla hadmost in common with Hamdi was that both were held on U.S. soil without criminalcharges or access to attorneys or indeed to anyone else. If the Guantanamo detaineeswere in a place that was off the grid, Hamdi and Padilla were off the legal grid eveninside the United States.

II.

To this point in our story, more than a year after 9–11, Congress and the presidenthad acted in the war on terror, but the third branch of government, the judiciary, haddone exactly nothing. It is a peculiar and quirky – though by no means necessary –feature of the American system of government that the courts only act when they areasked to consider the case of a particular individual who either has been harmed orhas been placed in jeopardy of life, limb, or liberty by the state. To be sure, the law wasconstantly on the minds of various government actors. Yet despite popular perceptionsto the contrary, the courts do not always have the chance to say what the law is. First acase must come before them.

Over the next several years, however, cases did begin to come to the U.S. courts,and, to one degree or another, these cases have been heard and decided. Through them,we are beginning to develop a picture of the how the law and the war on terror trulyinteract. The cases of the two Americans, Hamdi and Padilla, were among the first tobe dealt with in definitive terms, and they generated some important, disturbing, and






Enemy-Criminals: The Law and the War on Terror by Noah Feldman xix

fascinating results. First, the executive branch needed to explain how it could hold themincommunicado without any time horizon. To do so the Bush administration gave thema legal name, one that has stuck: illegal enemy combatants. The term makes them morethan ordinary criminals and less than soldiers in an enemy army. An illegal enemycombatant is one who has taken up arms against the U.S. but failed to follow the lawsof war. According to the Supreme Court, the AUMF authorized the president to detainsuch combatants until the end of hostilities – which could be indefinitely.

Nevertheless, the Supreme Court held in Hamdi’s case, an enemy combatant has atleast some rights. A plurality of the Court – four justices – said that Hamdi was entitled todue process of law under the Constitution, which usually means the chance to be givennotice of the charges against him and the chance to refute them before a nominallyneutral decisionmaker. This was an important precedent because, at least in principle,it denied the president the authority to hold detainees with no formal review whatever.Two justices – the unlikely combination of the arch-conservative Justice Scalia and theultra-liberal Justice Stevens – thought that when a U.S. citizen was on U.S. soil wherethe courts were open for business, he had to be tried as a criminal in a regular trial,not held as an enemy combatant. But inspiring as it sounded, this view did not carrythe day.

Another principle emerged from Padilla’s case as it played itself out in the SupremeCourt and the lower courts: that the government may treat a suspected terrorist as an en-emy or a criminal or both. Padilla had been captured in the U.S., and since the SupremeCourt ducked his case by saying it had been brought in the wrong court, it was unclearwhether he needed the full-dress trial that had been denied to his countryman Hamdi.The government ultimately announced it was transferring Padilla’s case to the ordinarycourts and charging him with conspiracy. Although an appellate court expressed its out-rage – the government had, after all, been claiming all along that Padilla could not becharged in federal court because of the circumstances of his case – the Supreme Courtallowed the transfer from military to civilian control.

The phenomenon of the enemy-criminal, though, is not limited to Padilla. In Guan-tanamo, where those detained are held as enemy combatants, the process of puttingthem on trial for war crimes has begun. This process had its birth when the SupremeCourt held that, despite the Bush administration’s best efforts to put the detainees outof the range of U.S. law, the federal statute conferring the right of habeas corpus on de-tained persons applied to them even in Guantanamo. This meant that, unless Congresschanged the law, the detainees would have their day in court to hear why they werebeing held and to give reasons for their release.

Congress did subsequently change the law to exclude the Guantanamo detaineesfrom seeking habeas corpus. Nevertheless, the symbolic significance of the Court’s hold-ing was profound. In effect, the Supreme Court said it would not recognize the claimthat the U.S. could hold human beings in a place where no law at all would protectthem. And in some form, the message got through to the White House. The presidentput in place tribunals in Guantanamo to try the detainees for war crimes. In anotherlandmark case involving Salim Ahmed Hamdan, Osama bin Laden’s driver, the SupremeCourt found those tribunals not to have been authorized by the AUMF in the specialform they took. In the aftermath of the Hamdan decision, Congress drafted a new statutedelineating the terms of the tribunals, and the president signed it into law.

Practically speaking, then, the Guantanamo detainees have been afforded limitedrights to limited tribunals, in which secret evidence may be used and the verdict isrendered by servants of the same military that brings the charges. They are not entitledto lawyers, although some have them anyway. This is hardly due process of the kind






xx Enemy-Criminals: The Law and the War on Terror by Noah Feldman

recognized in ordinary U.S. criminal trials. It is also true, however, that smart andaggressive lawyers have in some cases managed to publicize their clients’ circumstanceseffectively enough to get them released to their home countries, which in some cases atleast would doubtless mean an improvement in their circumstances.

It is probably too soon to render a final verdict on the way the law and the waron terror have interacted in the U.S. in the immediate post–9–11 years. More litigationremains. But it is not too soon to draw some conclusions. Congress has, for the mostpart, given the president almost everything he could ask for in terms of authority. Thathas not stopped the executive from in almost every instance trying to grab more eventhan Congress offered, stretching the law to its limits and then beyond, often withoutthinking through the likely consequences of its actions. Meanwhile, the courts haveadopted a split strategy. In well-publicized decisions, they have confronted the presidentand reined in some of his excesses, thus standing up for the rule of law. In practical terms,though, they have largely accommodated the executive and Congress by charting legalways for them to do what they had previously sought to do unlawfully. The law standsfor our aspirations to fairness and justice – but remains, in the end, in the service of thestate.






Readers’ Guide

We have necessarily been selective in assembling the documents for this volume. Ourguiding principal in deciding what to include has been to accurately reflect the legaltheories as they have won, lost, evolved, and manifested themselves in various formsamong the cases. We have also tried to provide a complete narrative so that the readercan follow the sequence of events as they occurred.

Background materials, including executive orders; amicus briefs; precedent casessuch as ex parte Milligan, ex parte Quirin, and Johnson v. Eisentrager ; and statutes suchas the Authorization for Use of Military Force, the Detainee Treatment Act, and theMilitary Commissions Act are available online at www.lawandsecurity.org.

The conventions that we used in editing the documents are as follows:

� The documents are presented in two formats, either as text or as an image of theoriginal. Text documents have been converted to a standard typeface throughout,but we have retained the original heading structure, citation style, and typographicerrors.

� Three centered dots indicate that an entire paragraph or a block of successive para-graphs has been deleted. Ellipses indicate that text within a paragraph, or at thebeginning or end of a paragraph, has been deleted.

� Timestamps and signature images have been removed from documents from whichwe have made substantive deletions. Typed signatures preceded by an “s/” are asthey are in the original.

� No alterations have been made to direct quotes. All ellipses and brackets withinquotation marks are as they are in the original.

� Footnote numbering corresponds to the original. As a result, some footnotes appearto be non-consecutive. Footnote one may be followed by footnote three, for example,where we have deleted footnote two and its accompanying text.

We hope that our edits are transparent and enhance the readers’ ability to assessthe arguments made on both sides of the cases presented herein.

xxi






Timeline

xxiii






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ust

com

ply

wit

hU

CM

JA

rt.3

9

11/1

0/20

04A

shcr

oft

resi

gnat

ion

ann

ou

nce

d

2005

1/31

/200

5D

ist.

jud

gein

DC

:C

SR

Tsdo

n’t

mee

t5t

hA

men

d.re

qs&

,for

Tali

ban

deta

inee

s,G

enev

aC

onv.

reqs

2/3/

2005

Go

nza

les

con

firm

ed

2/28

/200

5D

ist.

ct.i

nS

Cgr

ants

hab

eas

pet

.:P

res.

lack

edau

thor

ity

tode

tain

Pad

illa

asan

enem

yco

mba

tan

t

7/15

/200

5D

CC

ir.r

ever

ses:

mil

.co

mm

.is

a“c

ompe

ten

ttr

ibu

nal

”

8/31

/200

5N

ewM

il.C

omm

.Ord

.N

o.1

9/3/

2005

Just

ice

Reh

nq

uis

td

ies

9/8/

2005

Cas

esar

gued

inD

.C.C

ir.






Timeline xxxi

9/9/

2005

4th

Cir

.rev

erse

s:A

UM

Fau

thor

izes

dete

nti

on

9/29

/200

5Ju

stic

eR

ob

erts

swo

rnin

(pre

vio

usl

yo

nD

.C.

Cir

.)

11/7

/200

5S

.Ct.

agre

esto

hea

rca

se

11/1

7/20

05In

dic

tmen

tin

FL

11/2

0/20

05P

res.

ord

ers

tran

sfer

toci

vili

ancu

stod

yfo

rtr

ial

12/2

1/20

054t

hC

ir.d

enie

str

ansf

er

12/3

0/20

05D

TAsi

gned

2006

1/4/

2006

S.C

t.gr

ants

tran

sfer

1/31

/200

6Ju

stic

eA

lito

rep

lace

sJu

stic

eO

’Co

nn

or

4/3/

2006

S.C

t.de

clin

esca

se

5/8/

2006

Mag

istr

ate

reco

mm

end

sth

ath

abea

sp

et.b

ed

ism

isse

d:a

l-M

arri

didn

’tpr

esen

tre

butt

alev

iden

ce

6/29

/200

6S

.Ct.

rem

and

s:D

TAdi

dn

otst

rip

juri

sdic

tion

over

pen

din

gca

ses;

mil

.co

mm

.vio

late

sth

eU

CM

J&

Gen

eva

Con

v.(R

ober

tsre

cuse

d)

8/8/

2006

Dis

t.ct

.dis

mis

ses

hab

eas

pet

.:go

vern

men

tm

etit

sbu

rden

9/6/

2006

Pre

s.B

ush

ann

oun

ces

tran

sfer

ofh

igh

-val

ue

det

ain

ees

toG

TM

O






xxxii Timeline

Dat

eE

ven

ts/E

xecu

tive

Bra

nch

Act

ion

Ras

ul

v.B

ush

Ham

di

v.R

um

sfel

dH

amd

anv.

Ru

msf

eld

Pad

illa

v.B

ush

al-M

arri

v.H

anft

10/1

7/20

06M

CA

sign

ed

11/7

/200

6U

.S.e

lect

ion

s

11/8

/200

6R

um

sfel

dre

sign

atio

nan

no

un

ced

11/1

3/20

06D

ep.S

ec.o

fD

ef.:

al-M

arri

tob

ep

rovi

ded

aC

SR

Tu

pon

dis

mis

sal

12/5

/200

6G

ates

con

firm

ed

12/1

3/20

06D

ist.

ct.i

nD

Cd

ism

isse

sh

abea

sp

et.:

MC

Ast

ripp

edju

risd

icti

on&

Ham

dan

has

no

con

stit

uti

onal

righ

tto

hab

eas

2007

2/20

/200

7D

.C.C

ir.d

ism

isse

sh

abea

sp

etit

ion

s:M

CA

stri

pped

juri

sdic

tion

3/26

/200

7H

ick

sp

lead

sgu

ilty

tom

ater

ial

sup

po

rtfo

rte

rro

rism

;th

ense

nte

nce

dto

serv

e9

mo

nth

s

4/2/

2007

S.C

t.de

clin

esca

ses

4/30

/200

7S

.Ct.

decl

ines

case

5/14

/200

7C

rim

inal

tria

lbeg

ins

5/20

/200

7H

ick

sre

turn

edto

Au

stra

lia






Timeline xxxiii

6/4/

2007

Mil

.com

m.d

ism

isse

sch

arge

sag

ain

stO

mar

Kh

adr:

CS

RT

hel

dp

rior

toth

eM

CA

did

not

mee

tM

CA

reqs

for

clas

sify

ing

him

asan

un

law

fule

nem

yco

mb

atan

t

Mil

.com

m.d

ism

isse

sch

arge

s:C

SR

Th

eld

pri

orto

the

MC

Ad

idn

otm

eet

MC

Are

qsfo

rcl

assi

fyin

gH

amd

anas

anu

nla

wfu

len

emy

com

bat

ant

6/11

/200

74t

hC

ir.r

eman

ds

togr

ant

wri

tof

hab

eas:

MC

Ado

esn

’tap

ply

toal

-Mar

ri;m

ilit

ary

can

not

hol

dci

vili

ans

inde

fin

itel

y

6/22

/200

7A

bra

ham

dec

.file

d

6/29

/200

7S

.Ct.

agre

esto

hea

rca

ses

8/16

/200

7P

adil

laco

nvi

cted

ofte

rror

ism

sup

por

t

8/22

/200

74t

hC

ir.a

gree

sto

reh

ear

case

befo

refu

llpa

nel

8/27

/200

7G

on

zale

sre

sign

atio

nan

no

un

ced

9/8/

2007

Mu

kas

eyco

nfi

rmed

9/24

/200

7C

ourt

ofM

il.C

omm

.R

evie

wre

vers

esK

had

rd

ecis

ion

,cas

esp

roce

ed






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THE ENEMY COMBATANT PAPERS: AMERICAN JUSTICE, THE …assets.cambridge.org/97805218/86475/frontmatter/9780521886475… · 5. al-Marri v. Hanft 847 Introduction by Jonathan Hafetz 847