Obameter #181: Habeas Corpus Rights for Enemy Combatants

The phrase habeas corpus is Latin, meaning "You have the body." The premise is that one cannot be imprisoned for murder unless a murder has certainly happened: therefore, there has to be a body. It was originally used by the King or his representatives to ensure local governments were not impeding Crown business with false charges against Crown agents. Then it was extended to all subjects of the King, allowing the King to protect their rights (if he felt like it). When the 13 original colonies declared independence, they also provided the authority to demand formal, legal proof of habeas corpus to every citizen. It was a universal civil right only after a long evolution.

It is a central philosophy of criminal law everywhere the English Empire touched in it's imperial heyday. As such, it is one of the most universal legal principles there are: there can be no imprisonment without proof of a crime. That is what separates legal imprisonments from illegal kidnappings.

Except for prisoners of war. It is inherently entangled in the motivations of war to prevent captured enemy soldiers from ever again being about to fight against you. In ancient times this was accomplished by wholesale slaughter, or more beneficially by slavery, or more ethically by imprisonment. Even the Third Geneva Convention requires only allegiance to a government or an authority not recognized by the detaining power as reason enough to hold a person as a prisoner of war. And if there is any doubt as to whether a prisoner constitutes a prisoner of war, they are to be treated as one.

During the War in Iraq, the United States faced the phenomenon of "enemy combatants" for perhaps the first time. These are people who fight for the other side, but do not obviously fit the Geneva definition of "soldiers". Many such combatants were captured and held without trial by the US, often in Guantanamo Bay Detention Center, an American military prison on the island of Cuba.

Critics of the USA's handling of these "enemy combatants" argue that all prisoners are either prisoners of war or be civilians. "There is no intermediate status." I'm no legal scholar, but assuming that's true still doesn't guarantee enemy combatants habeas corpus rights. If they must be one, Geneva says "Should any doubt arise as to whether persons[ are prisoners of war], such persons shall enjoy the protection of the present Convention" ^[source]. Thus, Geneva says these disputed persons should be prisoners of war and have no habeas corpus rights.

That is not the reasoning given by the Bush Administration. Neither is it the reasoning given by the Obama Administration. But it is Geneva's reasoning.

Candidate Obama promised to restore habeas corpus to the enemy combatants, which is identical to declaring them civilians subject to due process. Since his election (May 21, to be precise), President Obama classified 5 fates for enemy combatants:

1. trial in federal courts (domestic civilians)
2. trial through military commissions in his superficially modified version of the Bush-era system (military criminals)
3. freed by the federal court decisions (free civilians)
4. turned over to other countries (foreign civilians)
5. no trial and no release (prisoners of war)

PolitiFact rules it as a compromise: the 5th group are not receiving habeas corpus rights.

This is a kind of reasoning called deconstruction: if you cannot determine a solution that works for all in a group, subdivide them into groups based on what decision applies. It forks from Candidate Obama's reasoning that all were civilians, instead treating enemy combatants as a complex and diverse group that needs further classification.

I completely agree with Obama's deconstructionist thinking: they are a diverse group. Humanity always is. By the same reasoning, I dispute the claim that there can only be soldiers and civilians. Humanity is more diverse than that. A good soldier can also be a petty criminal against civilian laws; should he be immune by reason of his military prowess? A good civilian may, in time of local unrest, fight to defend his land, family, or life. Civilian laws condemn his violent behavior, but he deserves military respect in proportion to his successes.

I do not consider any of these lines of reasoning infallible. Like all reasoning pertaining to reality, they are all flawed to some extent. Bush's reasoning is utilitarian: they must be kept out of the war, and this is the reasoning that will a accomplish that. Candidate Obama's is rejection: Bush was extremely wrong, so the opposite extreme must be right. Geneva's is committee authoritarianism: our committee agreed this is true, and thus all must concede it to be. President Obama's is perhaps the best of the four. It is a concession between a generalist's idealism and the harsh complexity of reality, an aspiration to do what is right for the combatants tempered by a necessity to do what is right for everyone outside of Guantanamo.

The promise was stupid, but the compromise is smart. I cautiously support Obama on this issue. He might just bring justice without abandoning security. He might, maybe, just manage to do it right.

Obameter #178: Handling Military Combatants

The classic idea of war is that two nations each build up an army and try to bash the other nation's army and country to bits. In order to minimize the inhumane damage war causes to the wounded, the sick, prisoners, civilians and other victims of war, several conventions were held in Geneva, Switzerland starting in 1864. These rules of wartime conduct are well-known under the name "the Geneva Conventions".

A new convention was held in Geneva in 1929 (at the beginning of WW2) to extend rules of humane conduct to the treatment of prisoners of war. This third Geneva Convention is the best known of the four, and is what people refer to when they say "the Geneva Convention" in the singular. The most widely known offenders of this third convention are the horrible concentration camps of Nazi Germany; the war crimes trials that followed WW2 made the term "Geneva Convention" a household name. A fourth convention was held in 1949 to protect noncombatant civilians from the horrors of war.

When the United States under George W. Bush invaded Iraq under Saddam Hussein, a problem quickly arose. The enemy soldiers were quickly defeated when they fought as the Geneva definition of "soldiers", and instead abandoned their uniforms and open opposition for subtle antagonism and terrorism. As they no longer qualified as soldiers in combat, they no longer qualified as prisoners of war under the 3rd Geneva Convention.

To be a soldier under Geneva, one must either belong to an official armed forces or militia for a government or other central authority or meet four other requirements:

1. be accountable to a commander.
2. wear a uniform that demonstrates your allegiance from a distance.
3. carry weapons openly.
4. follow the laws of war.

This new kind of enemy fought without uniforms, with concealed weapons, and without any central leadership. They could not be defined as soldiers by Geneva, but to the Americans clearly they weren't civilians. The terms "enemy combatants" and "unlawful combatants" arose to describe these warriors without commanders or nation or accountability. As the administration started capturing such fighters and lacking any protocol to handle them, they adopted a policy of simply imprisoning them to be handled later, most famously at Guantanamo Bay Detention Center in Cuba.

But the war dragged on. Facing public pressure, the Bush Administration established a military tribunal system for trying the enemy combatants. In 2006 the Supreme Court ruled that the process violated US military law and the Geneva Conventions, specifically declaring these violations of :

• The defendant and the defendant's attorney may be forbidden to view certain evidence used against the defendant; the defendant's attorney may be forbidden to discuss certain evidence with the defendant;
• Evidence judged to have any probative value may be admitted, including hearsay, unsworn live testimony, and statements gathered through torture; and
• Appeals are not heard by courts, but only within the Executive Branch

These grievances against due process were ruled to violate Article 3 of Geneva requirement for "all the judicial guarantees which are recognized as indispensable by civilized peoples."

The previous system having thus been eliminated, Congress passed and Bush signed a new system by the name The Military Commissions Act of 2006. Two years later, a part of this process was declared unconstitutional by the US Supreme Court, specifically the part where detainees of Guantanamo Bay Detention Center were not eligible for trial by the US civil justice system. This ruling occurred in June of 2008, only months before Barack Obama's election.

Obama, as a candidate, denounced the existing mess of a policy and promised, as President, "to distinguish between those prisoners who should be prosecuted for their crimes, those who can't be prosecuted but who can be held in a manner consistent with the laws of war, and those who should be released or transferred to their home countries." Almost immediately after his election (21 Jan 09), he made a powerful move toward that end: he suspended all the military commissions for 120 days to give the administration "time to review the military commissions process, generally, and the cases currently before military commissions, specifically."

On 15 May 09, just days before military tribunals would continue, the Obama Administration announced it was instituting a system of military tribunals. It denounced "the Military Commissions Act that was drafted by the Bush Administration and passed by Congress" that "had only succeeded in prosecuting three suspected terrorists in more than seven years." It announced the administration's intent to "ensure swift and certain justice against those detainees" and to "seek more time to allow us time to reform the military commission process." and concluded that "These reforms will begin to restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law."

While the White House is calling it a wholesale change in approach, human rights advocates are furious, calling it a continuation of the inhumane Bush policies. Specifically, they oppose the impression given that the Military Commissions Act was generally on the right track though wrong on specifics. One legal expert disapproved that Obama's plan lacked provisions for "detainees [to] have the opportunity to employee a civilian lawyer from their own country."

The announcement gives Congress 60 days to offer opinions and advice on how to reform the system, but it went into effect 60 days after the announcement whether altered or not. That deadline expired on July 14th. The superficially altered "Bush-era relic" is currently being used to try detainees.

Most will consider this a failing of Obama's ability to enact moral policies, perhaps even a flaw in his respect for human rights. I disagree. His respect for human rights stands as powerfully as ever. It is his respect for the legal complexity of the situation that has changed; in fact, it has grown. Where his rhetoric as a candidate spoke of the absolute moral choice and Bush's flawed choice, the reality of the situation requires implementing the choice and suffering it's effects. Bush was responding ably to a surprising, overwhelming issue, adapting the policy gradually toward a policy that would work. Obama assumed (or at least claimed) Bush's gradual adaptation was a moral failure; in essence, that Bush should have got it right the first try regardless of all circumstances. When faced with the same complexity and responsibility Bush had faced, Obama now sees that he can only put the final touches on a Bush creation that was adapted extremely well to the circumstances.

Sure, it'd have been preferable to have the finished work in 2002. But it was a puzzle that had to be solved, and the solving of it necessitated time spent. In the race for a winning policy, Bush didn't run a 4-minute mile. But he ran the distance, and in a respectable time. It speaks to Obama's naïveté that he judged Bush's attempt at a higher standard than Obama himself could achieve. His rhetoric is greater than his ability.

Thus, I count this issue as a mark against Obama, not because his policy is wrong but because he failed to contrast with the policy he denounced. Either his rhetoric is an ambitious lie or he has failed just as his predecessor did. Either is a mark against him.

Your biblical thought for the day is Matt 7:2. "with what judgment ye judge, ye shall be judged." It applies all over this issue.