July 17, 2008

The Geneva Order

The latest PEGC Update (2008.07.17) includes C-Span video links and reporting for two hearings of the House Judiciary committee -- the first, a sub-committee hearing with former Asst. Secretary of Defense Douglas Feith; the second, a hearing of the full committee with former Attorney General John Ashcroft. There wasn't much new, just the same old mix of lies and fallacious reasoning, but together they gave a pretty thorough (if somewhat confused) account of the administration's sundry excuses and shams. Now that's a topic I've been working on a bit myself lately in the aftermath of Boumediene, just trying to sort through where the issues stand, and I've had it in mind to do a series of posts on the various issues in the detainee cases moving forward -- the reason I decided to do a little blogging.

I'm going to start with the central topic of Tuesdays hearing with Prof. Feith -- central in the sense that most of Feith's arguments revolved around it even though the questioning never quite managed to reach the nuts and bolts of the thing. (My greatest frustration with these hearings and the standard five-minutes-per-member format they employ is how routinely they fail to do so.) What it all comes down to for Feith is the February 7, 2002 Bush order that allegedly required the "humane treatment" of detainees "consistent" with Geneva, a topic I've written about before... exactly five years ago; see: Jennifer Van Bergen & Charles Gittings, BUSH WAR: MILITARY NECESSITY OR WAR CRIMES?, truthout (2003.07.14) Since then, the memos on which the order was based have been released, in particluar, OLC Memo, APPLICATION OF TREATIES AND LAWS TO DETAINEES (Yoo draft, 2002.01.09); for the other memos in the series, see the PEGC History Page starting at 2002 (and just before). Here I want to zero in on the fatal defect.

Guantanamo Bay is subject to an order issued in February 2002:

Presidential Order (memo from Bush to Cheney), HUMANE TREATMENT OF TALIBAN AND AL QAEDA DETAINEES, The White House (2002.02.07).

The key provision ('Geneva Order') states:
"I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."

At the outset, two premises apply to an analysis of that order:

1. It is a fundamental breach of military duty to either issue or obey an unlawful order.

2. It is a fundamental breach of military discipline to act on an order which you do not understand.

The first is clear. The second simply observes that you can't do a thing unless you know what it is you're supposed to do; and if you don't understand an order, you're supposed to ask for a clarification. If you're ordered to attack some particular target, but the identification of it is ambiguous, it might be the case you would make your best guess if you knew the attack was expected in support of further operations which couldn't be delayed or recalled; but in that case, you are acting on the part of the order you do understand in the belief the risk of attacking the wrong target is out-weighed by the risks of not attacking at all; in an alternative, the intent of the attack might be diversionary, leading you to suppose the precise target didn't matter.

So what is the meaning of the Geneva Order?

Clearly, everything at OMC and Gitmo is subject to that order, since it applies to all detainees. "Consistent with Geneva" is clear enough, so the question goes to military necessity, which is a term of art with a precise meaning in military law:
military necessity
"(DOD, NATO) The principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war."

Any trial can potentially inflict inhumane treatment -- the panel might be ordered to find a defendant guilty without regard for the evidence for instance -- and the detention for trial can as well, obviously.

So the difficulty is this: how is military necessity per se applicable to a prisoner who is "hors de combat" (out of action)?

The laws of war forbid attacks on places which are undefended, and equally, all intentional abuse of detainees. It's difficult to see how ANY consideration of military necessity would apply to a detainee, and if that's the case, then the order essentially reduces to "we will obey Geneva unless we violate it".

Which brings a third premise:

3. An order which fails to state a definite object is 'void for vagueness'.

The Geneva Order fails to state any concrete object, while at the same time it presupposes an understanding of what "humane treatment" and "military necessity" mean. It ordered nothing, it was just a fraudulent smokescreen for committing war crimes against prisoners. If Mr. Feith (or Mr. Bush for that matter) want us to believe the order actually meant something, they could prove it easily simply by telling us what it means in plain English. Instead, they've spent six years trying to cover up their crimes and their lies.


* Lieber Code (General Orders No. 100, US War Department, 1863.04.24), arts. 14-16:
"14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

"15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the Army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.

"16. Military necessity does not admit of cruelty -- that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult."

* Hamdan v. Rumsfeld, 548 U.S. 557 (2006), KENNEDY, J., concurring in part, slip opinion at 6-7:
"The Court is correct to concentrate on one provision of the law of war that is applicable to our Nation's armed conflict with al Qaeda in Afghanistan and, as a result, to the use of a military commission to try Hamdan. Ante, at 65-70; see also 415 F.3d 33, 44 (CADC 2005)(Williams, J., concurring). That provision is Common Article 3 of the four Geneva Conventions of 1949. It prohibits, as relevant here, "[t]he passing of sentences 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." See, e.g., Article 3 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U.S.T. 3316, 3318, T.I.A.S. No. 3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id., at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C. §2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821."
* * *

July 8, 2008

Detainee Cases Begin Restart

2008.07.08 - PEGC Update


I've decided to start posting PEGC Updates on a blog. It's something I've resisted but have decided to try for a bit.

The URL for the PEGC Blog is...


...and there's an Atom feed at the lower left if you want to subscribe.

Meanwhile, I want to start right here, right now...


SCOTUSblog --

July 8, 2008
by Lyle Denniston


McClatchy Newspapers --

July 8, 2008
By Marisa Taylor


Associated Press --

July 8, 2008
By Matt Apuzzo


Reuters --

July 8, 2008
By James Vicini



* Rumsfeld v. PADILLA, 542 U.S. 426 (2004).

- Habeas venue lies in the district with jurisdiction over the custodian.

* RASUL v. Bush, 542 U.S. 466 (2004).

- Guantanamo Bay is de facto US territory subject to Article III jurisdiction.

- Detainees have a statutory right to habeas p. 18 USC 2241.

- Proper venue for detainees not present in the US is the USDC D.D.C.

* HAMDI v. Rumsfeld, 542 U.S. 507 (2004).

- US citizen on US soil has due process right to impartial review of detention.

* HAMDAN v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004).

- Hamdan has POW status under GPW art. 5, and may only be tried by a properly constituted court-martial under the UCMJ.

* KHALID v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005).

- Granted government motion to dismiss; reversed by BOUMEDIENE.

* IN RE GUANTANAMO DETAINEE CASES, 355 F.Supp.2d 443 (D.D.C. 2005).

- All detainees protected by 5th Amendment.

- Al Qaeda detainees not protected by Geneva.

* HAMDAN v. Rumsfeld, 548 U.S. 557 (2006).

- Hamdan is protected by CA3 at the minimum.

- Whether Hamdan is protected by CA2 or CA3 was not resolved.

- Military commissions are invalid under CA3.

* BOUMEDIENE v. Bush, 553 U.S.___ (2008).

- Detainees are entitled to seek habeas.

- DTA review procedures are an inadequate substitute for habeas.

- Detainees need not exhaust the review procedures in USCA D.C. Cir. before proceeding with their habeas actions in USDC D.D.C.

- MCA §7, 28 U.S.C.A. § 2241(e)(Supp. 2007) is unconstitutional.

- Both the DTA and the CSRT process remain intact.

- Executive branch is entitled to a reasonable period of time to determine a detainee's status before a court entertains a habeas petition.



"District courts are limited to granting habeas relief 'within their respective jurisdictions.' 28 U.S.C. § 2241(a). We have interpreted this language to require 'nothing more than that the court issuing the writ have jurisdiction over the custodian.' Braden, 410 U. S., at 495. Thus, jurisdiction over Padilla's habeas petition lies in the Southern District only if it has jurisdiction over Commander Marr. We conclude it does not. Congress added the limiting clause -- 'within their respective jurisdictions' -- to the habeas statute in 1867 to avert the 'inconvenient [and] potentially embarrassing' possibility that 'every judge anywhere [could] issue the Great Writ on behalf of applicants far distantly removed from the courts whereon they sat.' Carbo v. United States, 364 U. S. 611, 617 (1961). Accordingly, with respect to habeas petitions 'designed to relieve an individual from oppressive confinement,' the traditional rule has always been that the Great Writ is 'issuable only in the district of confinement.' " Id. at 618."

Rumsfeld v. Padilla, 542 U.S. 426 (2004), at 442.

"The District of South Carolina, not the Southern District of New York, was the district court in which Padilla should have brought his habeas petition. We therefore reverse the judgment of the Court of Appeals and remand the case for entry of an order of dismissal without prejudice."

Id. at 451.


"In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court's jurisdiction over petitioners' custodians. Cf. Braden, 410 U. S., at 495. [18 USC § 2241], by its terms, requires nothing more. We therefore hold that § 2241 confers on the [US District Court for the District of Columbia] jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base."

Rasul v. Bush, 542 U.S. 466 (2004), 483-484.


"At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an 'enemy combatant' and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker."

Hamdi v. Rumsfeld, 542 U.S. 507 (2004), at 509.


"Because the Geneva Conventions were written to protect individuals, because the Executive Branch of our government has implemented the Geneva Conventions for fifty years without questioning the absence of implementing legislation, because Congress clearly understood that the Conventions did not require implementing legislation except in a few specific areas, and because nothing in the Third Geneva Convention itself manifests the contracting parties' intention that it not become effective as domestic law without the enactment of implementing legislation, I conclude that, insofar as it is pertinent here, the Third Geneva Convention is a self-executing treaty. I further conclude that it is at least a matter of some doubt as to whether or not Hamdan is entitled to the protections of the Third Geneva Convention as a prisoner of war and that accordingly he must be given those protections unless and until the 'competent tribunal' referred to in Article 5 concludes otherwise. It follows from those conclusions that Hamdan may not be tried for the war crimes he is charged with except by a court-martial duly convened under the Uniform Code of Military Justice."

Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004), slip opinion at 25-26.


"[T]o the extent these non-resident detainees have rights, they are subject to both the military review process already in place and the laws Congress has passed defining the appropriate scope of military conduct towards these detainees. The extent to which these rights and conditions should be modified or extended is a matter for the political branches to determine and effectuate either through Constitutional amendments, federal laws, or treaties with the appropriate international entities. Thus, until Congress and the President act further, there is similarly no viable legal theory under international law by which a federal court could issue a writ. Accordingly, for this and all the reasons stated above, the [government's] motion to dismiss must be granted."

Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005), slip opinion at 33-34.


"In sum, there can be no question that the Fifth Amendment right asserted by the Guantanamo detainees in this litigation 'the right not to be deprived of liberty without due process of law' is one of the most fundamental rights recognized by the U.S. Constitution. In light of the Supreme Court's decision in Rasul, it is clear that Guantanamo Bay must be considered the equivalent of a U.S. territory in which fundamental constitutional rights apply. Accordingly, and under the precedent set forth in Verdugo-Urquidez, Ralpho, and the earlier Insular Cases, the respondents' contention that the Guantanamo detainees have no constitutional rights is rejected, and the Court recognizes the detainees' rights under the Due Process Clause of the Fifth Amendment."

In re Guantanamo Detainee Cases, 355 F.Supp.2d 443 (D.D.C. 2005), at 464.

"Clearly, al Qaeda is not a 'High Contracting Party' to the [Geneva] Conventions, and thus individuals detained on the ground that they are members of that terrorist organization are not entitled to the protections of the treaties."

Id. at 479.


"The conflict with al Qaeda is not,according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to 'all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.' 6 U.S.T., at 3318. Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a 'High Contracting Party' -- i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan.

"We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a 'conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply,as a minimum,' certain provisions protecting '[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by ... detention.' Id. at 3318. One such provision prohibits 'the passing of sentences 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.' Ibid."

Hamdan v. Rumsfeld, 548 U.S. 557 (2006), slip opinion at 65-67.


"[T]he Government's view is that the Constitution had no effect [in Guantanamo Bay], at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

"Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.' Murphy v.Ramsey, 114 U.S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say 'what the law is.' Marbury v. Madison, 1 Cranch 137, 177 (1803).

"These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain."

Boumediene v. Bush, 553 U.S.___ (2008), slip opinion at 35-36.

"We hold that Art. I, § 9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause." Cf. Hamdi, 542 U.S., at 564 (SCALIA, J., dissenting) ('[I]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ'). This Court may not impose a de facto suspension by abstaining from these controversies. See Hamdan, 548 U.S., at 585, n.16 ('[A]bstention is not appropriate in cases ... in which the legal challenge 'turn[s] on the status of the persons as to whom the military asserted its power '(quoting Schlesinger v. Councilman, 420 U.S. 738, 759 (1975)). The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention."

Id. at 41.

"We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation' of relevant law. St. Cyr, 533 U.S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained -- though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted."

Id. at 49-50.

"The extent of the showing required of the Government in these cases is a matter to be determined. We need not explore it further at this stage. We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release."

Id. at 58.

"Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U.S.C.A. § 2241(e)(Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact. Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee's status before a court entertains that detainee's habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant's habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status."

Id. at 66-67.


1:02-cv-00828 (CKK), AL ODAH v. UNITED STATES <1> <2>

1:04-cv-00547 (JDB), KHADR v. BUSH <1> <3>

1:04-cv-01142 (RJL), KHALID v. BUSH

1:04-cv-01519 (JR), HAMDAN v. RUMSFELD; CAD (DTA) No. 07-05042 <3>


KSM et al. <3>


1 - Assigned for coordination per order of D.D.C. executive session (TFH):


2 - AL ODAH is the senior docket now, as the last detainee in RASUL was David Hicks, who was repatriated to Australia last year.

3 - "Military Commission" pending.

4 - Special docket for coordinating cases under Judge Hogan.


JUDGE THOMAS F. HOGAN (In re Guantanamo Detainee Litigation)

Judge Hogan was appointed to the United States District Court in August 1982 and became Chief Judge on June 19, 2001. He graduated from Georgetown University, receiving an A.B. (classical) in 1960. He attended George Washington University's masters program in American and English literature from 1960 to 1962, and he graduated from the Georgetown University Law Center in 1966, where he was the St. Thomas More Fellow. Following law school, Judge Hogan clerked for Judge William B. Jones of the U. S. District Court for the District of Columbia from 1966 to 1967. He served as counsel to the National Commission for the Reform of Federal Criminal Laws from 1967 to 1968, and was engaged in private practice from 1968 to 1982. He has been an adjunct professor of law at the Georgetown University Law Center and a Master of the Prettyman-Leventhal Inn of Court. He is Chair of the Executive Committee of the U.S. Judicial Conference, Chair of the Courtroom Technology Subcommittee, and served on the Board of the Federal Judicial Center.


Judge Robertson was appointed United States District Judge in December 1994. He graduated from Princeton University in 1959 and received an LL.B. from George Washington University Law School in 1965 after serving in the U.S. Navy. From 1965 to 1969, he was in private practice with the law firm of Wilmer, Cutler & Pickering. From 1969 to 1972, Judge Robertson served with the Lawyers' Committee for Civil Rights Under Law, as chief counsel of the Committee's litigation offices in Jackson, Mississippi, and as director in Washington, D.C. Judge Robertson then returned to private practice with Wilmer, Cutler & Pickering, where he practiced until his appointment to the federal bench. While in private practice, he served as president of the District of Columbia Bar, co- chair of the Lawyers' Committee for Civil Rights Under Law, and president of Southern Africa Legal Services and Legal Education Project, Inc.

JUDGE RICHARD J. LEON (Khalid & Boumediene)

Judge Leon was appointed to the United States District Court in February 2002. He received his A.B. from Holy Cross College in 1971, his J.D. cum laude from Suffolk Law School in 1974, and his LL.M. from Harvard Law School in 1981. Immediately prior to his appointment to the bench, Judge Leon was engaged in private practice in Washington, D.C., as a partner in the Washington office of Baker & Hostetler (1989-1999), and Vorys, Sater, Seymour and Pease (1999-2002). Prior to and while in private practice, Judge Leon served as counsel to Congress in the investigations of three sitting Presidents. In 1987, he was the Deputy Chief Minority Counsel for the U.S. House Select "Iran-Contra" Committee. From 1992-1993, he was the Chief Minority Counsel to the U.S. House Foreign Affairs Committee's "October Surprise" Task Force. In 1994, Judge Leon was Special Counsel to the U.S. House Banking Committee for its "Whitewater" investigation. He also served in 1997 as Special Counsel to the bipartisan U.S. House Ethics Reform Task Force. Earlier in his career, Judge Leon served at the U.S. Department of Justice in a number of positions including Deputy Assistant Attorney General in the Environment Division, Senior Trial Attorney in the Criminal Section of the Tax Division, and as a Special Assistant United States Attorney in the Southern District of New York. He also served as a Commissioner on the White House Fellows Commission and the Judicial Review Commission on Foreign Asset Control. A former full-time law professor at St. John's Law School (1979-1983), Judge Leon is currently an adjunct law professor at the Georgetown University Law Center and the George Washington University Law School.


Judge Lamberth received his appointment to the United States District Court for the District of Columbia in November 1987. He was appointed Presiding Judge of the U.S. Foreign Intelligence Surveillance Court in May 1995 by Chief Justice Rehnquist.

Judge Lamberth graduated from the University of Texas and from the University of Texas School of Law, receiving an LL.B. in 1967. He served as a captain in the Judge Advocate General's Corps of the United States Army from 1968 to 1974, including one year in Vietnam. After that, he became an Assistant United States Attorney for the District of Columbia. In 1978, Judge Lamberth became Chief of the Civil Division of the U.S. Attorney's Office, a position he held until his appointment to the federal bench.

* * *