The US Supreme Court's 'enemy combatant' decisions: A 'major victory for the rule of law'?

Journal of Conflict and Security Law

Volumn 10, Issue 1, 2005, Pages 75-99

  Moeckli, Daniel ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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[No Author keywords available]

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EID: 27744554303     PISSN: 14677954     EISSN: None     Source Type: Journal    
DOI: 10.1093/jcsl/kri003     Document Type: Review

References (137)

1. Rumsfeld v Padilla, 124 S.Ct. 2711, 159 L.Ed.2d 513.
2. Hamdi v Rumsfeld, 124 S.Ct. 2633, 159 L.Ed.2d 578.
3. Rasul v Bush, 124 S.Ct. 2686, 159 L.Ed.2d 548.
4. Linda Greenhouse, 'Detention Cases Before Supreme Court Will Test Limits of Presidential Power', New York Times, 18 April 2004.
5. David Stout, 'Supreme Court Affirms Detainees' Right to Use Courts', New York Times, 28 June 2004.
6. American Civil Liberties Union, 'Supreme Court Says Courts Can Review Bush Administration Action in Terrorism Fight', 28 June 2004.
7. Center for Constitutional Rights, 'Supreme Court Rules Detention of Guantanamo Detainees Can Be Reviewed', 28 June 2004.
8. See Petitioner's Brief in Rumsfeld v Padilla, Respondent's Brief in Hamdi v Rumsfeld and Brief for the Respondents in Rasul v Bush. All briefs in the three cases are available at .
9. Hamdi v Rumsfeld, 124 S.Ct. 2639.
10. See article 43(2) of the Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (Protocol I).
11. See K. Dörmann, 'The Legal Situation of "Unlawful/Unprivileged Combatants"', (2003) 85 The International Review of the Red Cross 45, 46.
12. Ibid.
13. See articles 17 and 118 of the Third Geneva Convention respectively.
14. See Order signed by President Bush on 7 February 2002, outlining treatment of al-Qaeda and Taliban detainees, available at , and White House Fact Sheet, 'Status of Detainees at Guantanamo', 7 February 2002.
15. See Ari Fleischer, 'Special White House Announcement Re: Application of Geneva Conventions in Afghanistan', 7 February 2002, available in Lexis, Legis Library, Fednew File: 'The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the al Qaeda.'
16. Para. (1) of article 4(A) plainly states that '[m]embers of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces' qualify for POW status. Only para. (2) relating to '[m]embers of other militias and members of other volunteer corps' lists the additional four elements. See also G. Aldrich, 'The Taliban, al Qaeda, and the Determination of Illegal Combatants', (2002) 96 AJIL 891.
17. Supporting an interpretation contrary to the text of the Convention: R. Wedgwood, 'Al Qaeda, Terrorism and Military Commissions', (2002) 96 AJIL 328, 335.
18. For a comprehensive and balanced discussion of these issues, see R. Cryer, 'The Fine Art of Friendship: Jus in Bello in Afghanistan', (2002) 7 JCSL 37,68.
19. See ICRC Operational Update, 'Guantanamo Bay: The Work Continues', 18 July 2003.
20. Lindh, who had been captured fighting alongside the Taliban, was sentenced to 20 years in prison as part of a plea agreement; Ujaama, who allegedly had links with al-Qaeda, also entered a plea agreement and was sentenced to a two-year prison sentence; Moussaoui has been charged with several terrorist offences for his alleged involvement in the September 11 attacks; Reid was sentenced to life in prison for his attempt to blow up a plane.
21. The Universal Declaration of Human Rights, which is recognised as an authoritative statement of customary international law, contains the obligation to provide detainees with an opportunity to challenge their detention in court: See articles 9-10. The principle is also included in all major human rights treaties and supported by wide international practice as evidenced by, for example, Principle 32 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the General Assembly by Resolution 43/173, UN doc. A/43/49(1988).
22. See also Restatement (Third) of Foreign Relations Law of the United States, 1987, §702.
23. Padilla ex rel. Newman v Bush, 233 F.Supp.2d 564, 587.
24. Ibid., 588-599.
25. Padilla v Rumsfeld, 352 F.3d 695.
26. Ibid., 724.
27. Rumsfeld v Padilla, 124 S.Ct. 2721-2722.
28. Ibid., 2724-2725.
29. Ibid., 2730.
30. Ibid., 2733.
31. Ibid., 2735.
32. Hamdi v Rumsfeld, 124 S.Ct. 2637.
33. Hamdi v Rumsfeld, 243 F.Supp.2d 535.
34. Ibid., 533.
35. Hamdi v Rumsfeld, 316 F.M. 450.
36. Ibid., 476.
37. A 'plurality opinion' is an opinion lacking enough judges' votes to constitute a majority, but receiving more votes than any other opinion. See B. Garner (ed.), Black's Law Dictionary (7th edn., 1999) 1119. In the present case, Justices Souter and Ginsburg dissented with part of the plurality's reasoning but concurred in the judgment.
38. Hamdi v Rumsfeld, 124 S.Ct. 2640.
39. In Quirin, the court held that '[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of... the law of war'. See 317 U.S. 1, 37-38 (1942).
40. Hamdi v Rumsfeld, 124 S.Ct. 2640-2642.
41. Ibid., 2648.
42. Ibid.
43. Ibid., 2651.
44. Ibid.
45. Ibid., 2652-2660.
46. Ibid., 2660-2674.
47. Ibid., 2674-2685.
48. Rasul v Bush, 215 F.Supp.2d 55.
49. Al Odah v U.S., 321 F.3d 1134.
50. 28 U.S.C. §2241(a).
51. Rasul v Bush, 124 S.Ct. 2692-2695.
52. Ibid., 2696.
53. Ibid.
54. 339 US 763 (1950).
55. Rasul v Bush, 124 S.Ct. 2693-2694.
56. Ibid., 2695.
57. Ibid., 2711.
58. Ibid., 2710-11.
59. Ibid., 2708.
60. Ibid., 2701.
61. Ibid., 2706.
62. For example, the majority opinion delivered by Justice Kennedy in Lawrence v Texas, 000 U.S. 02-102 (2003), refers extensively to the case law of the European Court of Human Rights on the right to respect for private life. In Atkins v Virginia, 000 U.S. 00-8452 (2002), the Supreme Court took into account the overwhelming international consensus against imposing the death penalty on mentally retarded persons.
63. L. Damrosch & B. Oxman, 'Agora: The United States Constitution and International Law: Editors' Introduction', (2004) 98 AJIL 42.
64. Ibid.
65. See, e.g., amicus curiae briefs submitted in the Rasul case by the International Commission of Jurists and American Association for the International Commission of Jurists, 175 Members of Both Houses of the UK Parliament, a Bipartisan Coalition of 16 National and International Non-Governmental Organisations, the Commonwealth Lawyers Association, Former US Diplomats and the Human Rights Institute of the International Bar Association; in the Hamdi case by International Law Professors, the American Bar Association, Global Rights and Experts on the Law of War; in the Padilla case by the American Civil Liberties Union, International Law Professors, Comparative Law Scholars, Law Professors Henkin, Koh et al, and Practitioners and Specialists in the International Law of War; all available at .
66. Article 2 of the ICCPR provides that each state party must 'respect and ensure to all individuals within its territory and subject to its jurisdiction' the rights of the Covenant. The UN Human Rights Committee has interpreted this provision as meaning that the ICCPR applies to acts committed by state agents abroad: López Burgos v Uruguay, Communication No. 52/1979, 29 July 1981, UN doc. CCPR/C/13/D/52/1979 (see in particular para. 12.3 where the Committee held that it would be 'unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory');
67. and Casariego v Uruguay, Communication No. 56/1979, 29 July 1981, UN doc. CCPR/C/13/D/56/1979. The Inter-American Commission on Human Rights has reached the same conclusion with regard to the American Declaration of the Rights and Duties of Man, by which the United States is also bound: See Coard et al v United States, Case 10.951, Report No. 109/99, 29 September 1999 (concerning detention of petitioners during US military occupation of Grenada). Declaration of the Rights and Duties of Man, by which the United States is also bound: See Coard et al v United States, Case 10.951, Report No. 109/99, 29 September 1999 (concerning detention of petitioners during US military occupation of Grenada).
68. Damrosch & Oxman, loc. cit.
69. Hamdi v Rumsfeld, 124 S.Ct. 2639.
70. Ibid., 2641.
71. Ibid., 2640-2641.
72. Rasul v Bush, 124 S.Ct. 2699.
73. Ibid., 2708.
74. See note 63 above with respect to international human rights obligations. For international humanitarian law, see, e.g., C. Pilloud et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) para. 2910, stating that the protections of the Conventions apply to persons who 'are in enemy hands or have fallen into the hands or power of the enemy'.
75. Rasul v Bush, 124 S.Ct. 2696.
76. Hamdi v Rumsfeld, 124 S.Ct. 2649 (original emphasis).
77. The UN Human Rights Committee has found that already a delay of three days is in breach of article 9(4) of the ICCPR: See Hammel v Madagascar, Communication No. 155/1983, 3 April 1987, UN doc. CCPR/C/29/D/155/1983.
78. See also Principle 32(1) of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, note 19 above, which provides that 'a detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful'.
79. Rasul v Bush, 124 S.Ct. 2711.
80. The suggestion is Ronald Dworkin's: See R. Dworkin, 'What the Court Really Said', New York Review of Books, 12 August 2004. Apparently, most of the lawyers representing Guantánamo detainees have now in fact chosen to sue in the District of Columbia.
81. See 'Military Hearing for Guantanamo Detainee Is a First', Associated Press, 31 July 2004.
82. Hamdi v Rumsfeld, 124 S.Ct. 2650.
83. Ibid., 2672.
84. Ibid., 2649.
85. Ibid., 2651.
86. Army Regulation 190-8, 'Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees', 1997, §1-6.
87. Ibid., §1-6a.
88. Yasmin Naqvi has identified a pattern of granting a presumption of POW status in both international humanitarian law and state practice, including US army practice: Y. Naqvi, 'Doubtful Prisoner-of-War Status', (2002) 84 International Review of the Red Cross 571.
89. See section 5.3.1 below.
90. Jose Padilla v Commander C. T. Hanft, Petition for Writ of Habeas Corpus, 2 July 2004, available at .
91. B. Smith, 'Attorneys Argue Padilla Should Be Freed', Associated Press, 20 October 2004.
92. See J. Markon, 'Hamdi Returned to Saudi Arabia', Washington Post, 12 October 2004.
93. See Yaser Esam Hamdi v Donald Rumsfeld, Settlement Agreement, 17 September 2004, available at .
94. Markon, loc. cit.
95. See J. Brinkley & E. Lichtblau, 'U.S. Releases Saudi-American It Had Captured in Afghanistan', The New York Times, 12 October 2004.
96. See Deputy Secretary of Defense, 'Order Establishing Combatant Status Review Tribunal', 7 July 2004, available at .
97. Implementing guidelines were issued on 29 July 2004: See Secretary of the Navy, 'Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants detained at Guantanamo Bay Naval Base, Cuba', available at .
98. The procedures before these tribunals should not be confused with the Administrative Review Procedures, designed to determine annually whether each Guantánamo detainee remains a threat to the United States. The legal basis for these latter procedures had already been created before the Supreme Court's Rasul decision: See Deputy Secretary of Defense, 'Order on Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo Bay Naval Base, Cuba', 11 May 2004.
99. 'Order Establishing Combatant Status Review Tribunal', Ibid., preliminary para.
100. Ibid., para. (e).
101. Ibid., para. (c).
102. Ibid., para. (g) (4).
103. Ibid., para. (g) (8).
104. Ibid., para. (g) (9).
105. Ibid., para. (g) (12).
106. See DoD, 'Fact Sheet on Combatant Status Review Tribunals', 7 July 2004, available at .
107. See Amnesty International, 'USA: Administration Continues to Show Contempt for Guantánamo Detainees' Rights', 8 July 2004
108. Human Rights Watch, 'U.S.: Review Panels No Fix for Guantanamo', 27 July 2004
109. Center for Constitutional Rights, 'CCR Calls Guantanamo Review Policy "Inadequate and Illegal"', 9 July 2004.
110. DoD, 'Fact Sheet on Combatant Status Review Tribunals', loc. cit.
111. See note 99 above.
112. See, e.g., Fawzi Khalid Abdullah Fahad al Odah etal. v United States of America, Respondents' Factual Return to Petition for Writ of Habeas Corpus by Petitioner Abdullah Saleh Ali Al Ajmi, 17 September 2004, available at
113. and Abdullah Saleh Ali Al Ajmi et al. v United States of America, Declaration of James R. Crisfield Jr., 15 September 2004, available at .
114. Hamdi v Rumsfeld, 124 S.Ct. 2652.
115. See, e.g., UN Human Rights Committee, Berry v Jamaica, Communication No. 330/1988, 7 April 1994, UN doc. CCPR/C/50/D/330/1988, para. 11.1.
116. See, e.g., Order signed by President Bush on 7 February 2002, loc. cit.
117. Order Establishing Combatant Status Review Tribunal, loc. cit., para. (a).
118. Ibid., paras (g)(12), (i) and (j).
119. See DoD, 'Combatant Tribunals Update Status Review', 18 October 2004, available at .
120. P. Dodds, 'Gitmo Tribunal Hears Cases of Six Detainees', Associated Press, 8 October 2004.
121. I. James, '15 Yemeni Guantanamo Detainees Sue US, Seek Release', Associated Press, 16 July 2004.
122. See Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War on Terrorism, issued by the President on 13 November 2001
123. Department of Defense Military Commission Order No. 1 of 21 March 2002
124. Department of Defense Military Commission Instruction No. 2: Crimes and Elements for Trial by Military Commission of 30 April 2003.
125. See S. Higham, 'Trials Set to Begin for Four at Guantanamo', Washington Post, 23 August 2004.
126. Hamdi v Rumsfeld, 124 S.Ct. 2642-2643.
127. A letter to Senator Leahy, drafted by Yale Law School professors and students, and signed by over three hundred law professors and lawyers, protested the military order establishing the commissions. See Katharine Seelye, 'In Letter, 300 Law Professors Oppose Tribunals Plan', New York Times, 8 December 2001.
128. For scholarly writing criticising the commissions, see, e.g., J. Paust, 'Antiterrorism Military Commissions: Courting Illegality' (2001) 23 Michigan JIL 1
129. H. Koh, 'The Case against Military Commissions' (2002) 96 AJIL 337.
130. Human rights organisations criticising the commissions include Human Rights Watch, 'Briefing Paper on Military Commissions', August 2004, and Amnesty International, 'USA: A Deepening Stain on US Justice', 19 August 2004.
131. For press criticisms, see, e.g., Editorial, 'A Travesty of Justice', New York Times, 16 November 2001
132. 'An Un-American Secrecy', LA Times, 17 November 2001
133. Editorial, 'Military Justice (Continued)', Washington Post, 26 November 2001.
134. See, e.g., Amnesty International, ibid., on structural problems. In the first trials, three of the six military officers - but not the presiding officer whose impartiality had also been challenged - were dismissed after defence lawyers claimed potential bias: See J. Lumpkin, '3 Guantanamo Hearings Officers Dismissed', Associated Press, 21 October 2004.
135. See the two reports issued on abuses in Iraq: Army Report on 'Investigation of Intelligence Activities at Abu Ghraib', 6 August 2004, available at .
136. and 'Final Report of the Independent Panel To Review DoD Detention Operations', 24 August 2004 (the so-called Schlesinger Report), available at .
137. See also the statement by a senior US Army general who investigated the abusive treatment of prisoners in Iraq that the CIA may have avoided registering up to one hundred detainees in US military facilities, thus preventing the ICRC from monitoring their treatment. See B. Graham & J. White, 'General Cites Hidden Detainees', Washington Post, 10 September 2004.