Detainee operations and the law of war

Parameters, Autumn, 2005 by Donald G. Rehkopf, Jr., Michael H. Hoffman

To the Editor:

Michael Hoffman's article, "Rescuing the Law of War: A Way Forward in an Era of Global Terrorism" (Parameters, Summer 2005), contains so many fundamental flaws in legal scholarship, errors of basic constitutional law, and factual fallacies that it verges on Administration propaganda. (1)

Allow me to provide three examples of significant distortions. First, Hoffman argues that "Rasul v. Bush ... establishes that unlawful belligerents have a right to challenge their detention in the federal court system." I was heavily involved in all of the Rasul litigation, and that is not what the case was about, nor is it what the Supreme Court decided. Rasul held that the prisoners (lawful and unlawful belligerents) at Guantanamo (GTMO) had the right to challenge their detention by way of habeas corpus since (a) US habeas corpus law applies at GTMO and (b) the petitioners (prisoners) were claiming that they were not unlawful belligerents in the first place. Indeed, Shafiq Rasul, the lead petitioner in the case, was released during the litigation without charges, information that should have at least been included in an endnote. That omission is seriously misleading, especially since most of your readers are not lawyers. By creating a penal colony at a place where US law applies, the Supreme Court in Rasul simply held, the President could not bar a prisoner from contesting his imprisonment--the very purpose of habeas corpus.

Second, Lieutenant Colonel Hoffman states, "There is no treaty that covers ... situations where privately organized armed forces cross international borders, stalk international sea lanes, or strike at international aviation for their own ideological or political purposes." This is both inaccurate and highly misleading. There are multiple treaties and specific US criminal statutes that govern such conduct, whether by "mercenaries" or others, which a modicum of legal research would have shown, and criminal prosecutions under their provisions have been undertaken by US prosecutors for years. (2)

Third, and particularly problematic in the area of "military law," is the author's premise regarding the court's intervention--e.g., "four years ago, the notion that the judicial branch would assert a role in reviewing battlefield capture and detention would likewise have been impossible to imagine." Any serious student of US military history or military jurisprudence would know that such a claim simply is not true. Since virtually the founding of our republic, our judiciary has taken an active role, as it is constitutionally required to, in "overseeing" improper executive military actions. Indeed, President George Washington was so concerned about scrupulously protecting the rights of "terrorists" during the Whiskey Rebellion of 1794 that he directed a US District Judge and a US Attorney to "accompany the troops" in quashing the rebellion. Those captured were criminally charged and brought before the judge--judicial "intervention" for sure, and at the express direction of the Commander in Chief.

A decade later, in Little v. Barreme, 6 U.S. 170 (1804), the Supreme Court was squarely confronted with the issue of Presidential "wartime" actions. In this case, Congress had passed a statute during a maritime "war" with France, specifically delegating to the President, as Commander in Chief, powers to seize (and forfeit) certain ships and cargoes. The President issued an order, ostensibly consistent with the statute. US Navy Captain Little seized a ship pursuant to the Commander in Chief's order and was promptly sued by the ship's owners for damages. Little defended on the ground that he was following an express order from the Commander in Chief, while the ship's owners argued that the order was illegal, that it exceeded the scope of the congressional statutory authorization. The Court, speaking through Chief Justice Marshall, held that the Commander in Chief's order was indeed illegal, and noted that such an order could never "legalize" an otherwise illegal act.

During and since the Civil War, there have been more than a dozen additional relevant instances of judicial involvement in cases of "wartime" captives. (3) One wonders, then, if this is a case of poor scholarship, or if the article just devolves to a promotion of the Administration's policies. What caught my eye in this regard were two phrases: "the executive branch has taken a gradualist approach in adopting appropriate rules" (emphasis added), and "the executive branch is best equipped to devise rules for this emerging though not entirely unprecedented problem."

The claim that the Administration has "taken a gradualist approach" is one of the most disputed issues in all of the GTMO "enemy combatant" litigation. In my opinion, the consensus of the experts in this area, including two US Supreme Court decisions (Hamdi and Rasul), is that the US government's approach has been both unprecedented and extremist.

Last, from a US military perspective, there is a serious omission in the article. In the author's discussion of "paradigms," there either should be three paradigms rather than two, or his litigation vs. law enforcement construct has a major unelaborated subcomponent. The "missing" component--one of special interest to a military audience--is the use of the UCMJ. For almost 100 years, Congress has given General Courts-Martial the jurisdiction to try persons suspected of violating the laws of war. So, to the extent that any "rescuing" is necessary, the failure to discuss this as a legitimate and available option is inexcusable. The very litigation that Colonel Hoffman bemoans could in large measure have been avoided by simply applying the UCMJ's provisions to the GTMO prisoners' cases. That was the holding in the recent case of Hamdan v. Rumsfeld, a habeas corpus action of a GTMO prisoner actually charged with offenses.