#11458 - Guantanamo Bay Detainees - International Humanitarian Law

Authority to Detain

1. Nature of the law of war.

2. Detention authority derived from authority to wage war (Hamdi), saying that if you have the authority to kill them, you have the authority to detain them

   1. Bush admin: emphasized presidential power, AUMF

   2. Obama admin: we can detain based on AUMF (we can engage militarily with Al Qaida and other orgs that caused 911)

      1. Habeas cases

Interrogation

1. Bush Administration

   1. February 7, 2002 memo: “treat humanely, consistent with military necessity” where military necessity trumps everything

   2. Although Nuremberg Tribunal rejected this– can’t violate the law of war because of military necessity

2. 5th amendment due process: “shock the conscience”

   1. Bush Admin argues that torture was OK if it didn’t shock the conscience.

      1. Hamdan: CA3 applies, not US Constitution

3. Executive Order 13440 (July 20, 2007): harsh interrogation techniques are lawful under CA3

4. GC3 standard, and Field Manual 2-22.3: no form of coercion, including unpleasantness (basically) is permissible (different from voluntariness standard)

   1. Law enforcement interrogation = voluntariness

      1. Military Commissions Act 2009

         1. “any alien unlawful enemy combatant is subject to trial by military commission”

            1. So CSRT = determines whether enemy combatant

            2. MCs = determines guilt

      2. Warsame Example: Warsame picked up between Somalia and Yemen, held on a ship for a couple months, and interrogated using a voluntariness standard (in crim. pro, a statement is admissible if it is voluntary without coercion)

What if it’s hard to tell combatant status?

1. GCIII:5 – minimum administrative tribunals and

2. GCIV: 78 Review

   1. Occupying power may, for reasons of security, assign persons to residence or internment. Procedure must include the right of appeal, which should be quickly decided. If decision is upheld, it should be subject to periodical review, if possible every 6 months, by a competent body set up by said power.

   2. When in doubt, a competent tribunal must determine the status of the person. Usually, the capturing military decides.

3. “Competent” does not necessarily entail procedural protections.

   1. US interpretation: does not require individual determination.

   2. Bush released blanket finding that no person in Alcaida or Taliban met the GCIII:4 definition (this was changed in Hamdi)

      1. Our competent tribunal = Combatant Status Review Tribunal

         1. Set up Post-Hoc, by Congress, July 7, 2005 after Hamdi

         2. Set of tribunals for confirming whether detainees had been correctly designated as “enemy combatants”. CSRTs are supposed to be a stand-in for habeas.

         3. 2 outcomes

            1. Enemy combatant

            2. No longer enemy combatant

Cases

1. Hamdi – minimum Adminstrative due process under GCIII:5a is

   1. notice

   2. and opportunity to respond

2. Hamdan –

   1. Rule: No gap (when in doubt, use CA3)

   2. Rule: CSRT not proper because not created by congress.

   3. Rule: MCs did not comply with international law, specifically to CA3

   4. But note: CA3 does not explicitly state “competent tribunal”

      1. CA 3 (1)(d) the passing of sentence and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples

3. Boumediene – found our military tribunals were not enough. Habeas sliding scale technique:

   1. How much control is being exercised over the place of the individuals being detained?

   2. How much interference with military operations might be caused by introducing judges and lawyers into the detention review processes?

   3. Held: Gtmo detainess were entitled to Habeas

   4. Held: you can’t legislate away Habeus

4. Maqaleh (district court only) – individuals held at Bagram had no entitltement to habeas review because there is no evidence that the government was trying to park the person there to avoid Habeas.

Obama Administration

1. March 7, 2011 Executive Order 13492

   1. modeled on law of war and some domestic law

   2. Does not address the legality of detention, but requires that if question of legality arises during periodic review, case must be immediately transferred to Secretary of Defense and Attorney General

   3. Periodic review

   4. Must provide notice & reasons for detention to each detainee

   5. Detainee can respond in writing

   6. Hearing & prompt decision

   7. “vigorous efforts to determine transfer location” if detention status determined to be unlawful

2. 2012 National Defense Authorization Act, sec. 1024

   1. Detainees must be given hearing before a military judge, who will make his status determination, and representation by military counsel in that proceeding if the detainee so chooses

Other treatment issues:

1. Minimum Humane Treatment Standards

   1. CA3

      1. “persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely”

      2. prohibits: “outrages upon personal dignity, in particular humilitating and degrading treatment”

      3. affords: all the judicial guarantees which are recognized as indispensable by civilized peoples

   2. Art 75 of API

      1. Prohibits torture & threats

      2. Requires: impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure (lays out conditions for this)

         1. Requires individual determinations (not blanket)

         2. Right to witnesses, etc

   3. Art 4 of APII

      1. Relates only to “all persons who do not take a direct part or who have cased to take part in hostilities, whether or not their liberty has been restricted”

      2. “they shall in all circumstances be treated humanely”

2. Detention standards

   1. GC3 governs POW treatment

   2. Obama Exec. Order on Guantanamo requires that app detainees be held in conformity with all applicable laws governing the conditions of confinement, including CA 3 (January 222, 2009)

      1. Walsh Report

         1. Feb 23, 2009

         2. Known officially as “Review of Department Compliance with President’s Executive Order on Detainee Conditions of Confinement

         3. Found that conditions of confinement at Guantanamo conform to CA 3

3. Army field manuals and regulations

   1. Army Regulation 190-8 – “Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees”

      1. Hamdi held that the tribunals the Department of Defense convened to review the status of Gtmo captives should be modeled after the Tribunals described in AR-190-8

      2. “competent tribunal”

      3. comparison with the 190-8 Tribunals and CSRTs: http://en.wikipedia.org/wiki/AR_190-8

         1. specifically different: the possible determinations, which under 190-8 include “innocent civilian”, and person entitlted to POW status

   2. Field Manual 3-19.40

      1. Requires that detainees receive humane treatment, and not be tortured

      2. Requires tribunal modeled on AR 190-8

   3. Derogations

4. Bureau of prison standards

   1. Right now all Gitmo detainees are in the equivalent of a minimum security prison. ICRC says that this doesn’t violate the GC’s because they have communal living capabilities.

John Yoo memos

1. What is the status of the conflict?

   1. On US soil (at least partially)

      1. But meets threshold of intensity, duration, scale

   2. Against non-state actors

      1. AQ bear no distinctive uniform, do not carry arms openly, do not represent regular or irregular military personnel. It is their aim to intermingle with ordinary civilian population in manner that conceals purposes/makes activities hard to detect. AQ members fail to satisfy the eligibility requirements for treatment as POWs under GC3.

      2. Taliban don’t qualify for GC3 protections because Afghanistan is a failed state, whose territory had been largely overrun and held by violence by militia (not govt.)

         1. Afghanistan was without the attributes of statehood necessary to continue as a party to the GC and

         2. Taliban don’t comply with requirements of GC3:4

            1. no organized command

            2. no fixed insignia

            3. not conducting operations in accordance with the laws and customs of war.

   3. Conclusion: too atypical for GC protections (gap)

2. Would Federal Courts have Habeas Jurisdiction over Aliens it Gtmo?

   1. Eisentrager Court: no habeas jurisdiction if prisoner is seized tried and held in territory outside of sovereignt of US.

      1. Cuba is the de jure sovereign

         1. “we do not believe that the Court intended to establish a two-part test, distinguishing between “sovereign” territory and territorial “jurisdiction.” Instead, we believe that the Court used the latter term interchangeably with the former.”

      2. No US law will apply on Guantanamo. Outside of jurisdiction of the courts.

      3. Despite the fact that under a treaty, the US had complete control jurisdiction. (de facto control)

   2. ICCPR art 2: we are not bound by HR, because Gtmo detainees are not within US territory

   3. But Yoo warns, if wrong:

      1. Treaties don’t apply to Al-Qaeda

         1. Because they aren’t a state

      2. CA3 doesn’t apply because this isn’t a NIAC

      3. CA2 doesn’t apply because this isn’t an IAC (AQ not a state)

      4. Laws of Armed Conflict don’t apply to Taliban either

         1. Afghanistan is a failed state. Run by militia and violence rather than government

            1. KJ: there’s no legal basis for determining that a place is a failed state. It’s more of a poli-sci test.

      5. Individual Taliban – not POWs because they don’t meet the qualifications (GCIII: 4(A)(2))

3. Effect of CIL

   1. CIL cannot bind the executive branch under the Constitution because it isn’t Federal Law

Taft: State Dept. Legal Adviser

1. Yoo’s analysis is flawed

   1. Contests assertion that Afghanistan is failed state

      1. Plus we do not have sufficient evidence that...