A War Like No Other (20 page)

It is possible to take the president’s emotion at face value and still deem him primarily responsible for what is occurring at Guantánamo. This, in fact, is the view expressed by Owen Fiss in this chapter, “Imprisonment Without Trial,” which describes how and why President Obama perpetuated one of the most controversial of the Bush administration’s counterterrorism policies: prolonged, indefinite detention without trial of any
type. The essay, which first appeared in an abbreviated form in
Slate
and later in full in the
Tulsa Law Review,
revisits many of the themes and events discussed in previous essays, but brings to them a new theoretical rigor through an elaboration of what Fiss has called the principle of freedom. In Fiss’s view, this principle, which represents the collective operation of several constitutional provisions, overrides the various statutory and practical arguments in favor of prolonging the imprisonment without trial of foreign nationals held at Guantánamo.

Two applications of the principle of freedom discussed in the essay deserve special mention. The first is the incompatibility between the principle and what Fiss calls the “bifurcated exclusionary rule,” under which tainted evidence may be used as the basis for perpetual incarceration but not for a criminal trial. The second is the principle’s requirement that incarceration be conditioned on a criminal trial presided over by an independent judge. In Fiss’s view, oversight of executive action determining that the prisoner remains a threat to the United States—even if this oversight is conducted by an Article III judge—does not satisfy this requirement.

These two applications are noteworthy because they illustrate the perils of administrative solutions to constitutional wrongs. This is the central message of “Imprisonment Without Trial,” which demonstrates how even the most well-intentioned president can inadvertently entrench unconstitutional practices if he takes primary responsibility for protecting the rights of unpopular groups. As the essay makes clear, judges can transcend political inertia in a way that officials of the executive branch often cannot.

In the end, the president’s solution to the hunger strike was to permit the military to force-feed prisoners through the application of physical restraints and feeding tubes. One can only imagine the anguish the president must feel in knowing that his
attempts to solve the problem of Guantánamo have created the need for such grotesque practices. At one point in his career, Obama taught constitutional law, and he should not have been surprised to learn that the dignity of the individual is secured not through Article II of the Constitution, but rather the Bill of Rights.

Chapter 6

IMPRISONMENT WITHOUT TRIAL

T
he Constitution is a broad charter of governance. It establishes the institutions of government and places limits on their exercise of power. For the most part, the Constitution speaks in broad generalities, and over the last several hundred years many principles have been developed to give specific content to these generalities.

Some of these principles, such as the one requiring separation of powers, are inferred from the general structure of the Constitution. Others, among them antidiscrimination or its alternative, the antisubordination principle, are rooted in a specific provision such as the Equal Protection Clause and are meant to give further content to those provisions.

Both types of principles are supposed to guide government officials in discharging their duties, and, if required, they can be enforced against these officials by the judiciary. These principles are as endowed with the authority of the Constitution as are the words on the parchment, though they present themselves to us as an interpretation of those words and can be criticized and, if
need be, reformulated in ways that, short of an amendment, the words on the parchment cannot.

One such principle—I refer to it as the principle of freedom—has been violated by the Bush administration and, more recently, by the Obama administration in their fight against terrorism. This principle denies the government the power to imprison anyone without charging that individual with a specific crime and swiftly bringing him to trial. The principle of freedom is implicit in the provision of the Constitution that limits the power of Congress to suspend the writ of habeas corpus—the means by which the legality of imprisonment can be tested.
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More importantly, the principle should be seen as a gloss on the Fifth Amendment, which denies government the power to deprive anyone of “life, liberty, or property without due process of law.”

At its core, the principle of freedom denies the government the power to deprive an individual of his liberty without charging that individual with a specific crime and producing evidence of guilt in open court. It also requires the government to give the accused an opportunity to cross-examine the witnesses who testify against him, and to present his own witnesses.

Many of the procedural protections required by the principle of freedom have instrumental value: they are considered the best means available for arriving at the truth of the matter. They also reflect elemental notions of fairness and are thus one source of the government’s legitimacy. They put the government to the burden of proving its charges in open court and give the accused, who is also protected by a presumption of innocence and the right to trial by jury, a reasonable opportunity to defend himself. The underlying assumption is that a government willing to abide by these limitations is likely to win the respect and admiration of its citizens.

Like many constitutional principles, the principle of freedom has a limited number of exceptions. War is one. The Constitution
recognizes the authority of the United States to engage in war, and the principle of freedom has been adjusted to accommodate the necessities of combat. In the throes of war, the government is allowed to capture enemy soldiers and imprison them without a trial for the duration of the hostilities. Both Bush and Obama have made claim to this exception to the principle of freedom and have insisted on the authority to imprison for prolonged, indefinite periods of time anyone that they determine has fought for the Taliban or al-Qaeda.

The Taliban and the Geneva Convention

The continued detention of persons accused of fighting for the Taliban presents a special set of problems arising from the Third Geneva Convention of 1949. This treaty, having been ratified by the Senate, operates within this sphere of authority allowed by the Constitution and should thus be seen as a secondary constraint on the authority of the government to imprison without trial. Under the Third Geneva Convention, enemy combatants can be held for the duration of a war and are to be repatriated at the conclusion of the hostilities.
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The convention also implicitly provides that enemy combatants cannot be prosecuted simply for fighting, although they can be prosecuted for war crimes.
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The United States is a signatory of the treaty and is constrained by it whenever the belligerent is also a signatory.

In the fall of 2001, shortly after the terrorist attacks on September 11, the United States launched a war against Afghanistan. At that time, the Taliban, essentially a political organization of religious fanatics, controlled the government of Afghanistan and used its power to support and harbor al-Qaeda. The United States invaded Afghanistan when its government refused to turn over Osama bin Laden, then the leader of al-Qaeda. The Taliban fighters taken into custody in the course of this war are
protected by the Third Geneva Convention simply by virtue of the fact that both the United States and Afghanistan are signatories to the treaty. The fact that the United States had previously refused diplomatic recognition to the Afghan government when it was controlled by the Taliban did not preclude the applicability of the convention.

At an early stage in the war, President Bush declared that all who fought for the Taliban were unlawful enemy combatants.
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By that he meant that members of the Taliban were not entitled to any of the protections of the Third Geneva Convention. So denied the protection of the treaty, the Taliban fighters could, according to Bush, be prosecuted for fighting or, alternatively, held for prolonged indefinite periods of time, even for life, without placing them on trial. Moreover, under this doctrine there was no obligation at the conclusion of the war to repatriate the prisoners who had fought for the Taliban. President Bush did not in any way recognize the principle of freedom as a limitation of his power.

Late in 2001, a young American citizen—John Walker Lindh, who admitted to having fought for the Taliban but denied any connection whatsoever to al-Qaeda—was captured by United States forces in Afghanistan. Soon thereafter he was prosecuted in federal district court in Virginia for being part of a conspiracy to kill American soldiers. Lindh argued that the prosecution contravened the Third Geneva Convention, since he was being prosecuted simply for fighting. The district court denied Lindh’s motion to dismiss and in so doing lent support to the doctrine propounded by the Bush administration that treated all Taliban fighters as unlawful enemy combatants.
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After Lindh’s motion to dismiss was denied, Lindh pleaded guilty to one of the charges and was sentenced to twenty years’ imprisonment in a maximum-security facility in Arizona. The plea agreement provided that if, for any reason, the sentence were to be set aside, Lindh would once again be classified as an unlawful enemy
combatant and thus could be imprisoned without trial for an indefinite period of time, presumably even for life.

The Third Geneva Convention sets forth four conditions that must be met in order for an irregular militia to be brought within its protection. The fighters must (1) wear uniforms or some designation; (2) carry their arms openly; (3) be subject to a command structure; and (4) not commit war crimes. The district court took liberty with the text of the convention when it used these criteria to determine whether the Afghanistan army—not some irregular militia—was entitled to the protection of the treaty. By its very terms, the convention applies to “Members of the armed forces of a Party to a conflict.”
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It is generally understood that the convention provides no protection to spies and saboteurs, in part because they do not wear uniforms, but Bush sought to expand the use of that exception to cover the entire armed forces of Afghanistan under the Taliban regime. Unfortunately, the district court endorsed Bush’s policy.

The district court can also be faulted for the evidentiary basis it relied on in applying the Geneva Convention criteria to the Afghanistan army. For example, in determining whether the fighters had committed war crimes, the district court looked to practices of the Taliban that had brought it to power rather than the way it fought the war against the United States. To compound the error, the district court rested its judgment on books (one of which happened to be published before the war in Afghanistan began), not evidence on the record. Admittedly, a trial on how the entire Afghanistan army fought the war might prove to be a difficult, if not impossible, task, but it is a consequence of Bush’s extension of the exception for spies and saboteurs to the Afghan army.

President Obama has been careful to avoid using the nomenclature of unlawful enemy combatants, but he appears to be pursuing the same policy as Bush with regard to the Taliban. On May 21, 2009, in a speech at the National Archives, Obama
announced his strategy for dealing with the prisoners still being held at Guantánamo. By way of example, he listed among those to be held indefinitely without trial a prisoner who “had commanded Taliban troops in battle.”
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Obama said that this prisoner was being held for his “past crimes”
⁸
but never specified what those crimes were. If the Taliban prisoners being held at Guantánamo had violated the laws of war—by killing civilians, for example—then they should be tried for that crime. However, if their only crime was fighting against American soldiers, as was arguably true of the unnamed Taliban commander mentioned by Obama, then under the terms of the Geneva Convention, they should be turned over to the Afghanistan government, which would then be responsible for determining their fate.

The obligation of repatriation stems from the fact that we are no longer at war with Afghanistan, but rather are a vital (if increasingly frustrated) partner of the country’s government. That war ended by at least 2004, when the Taliban were routed, a new constitution was adopted for the country, elections held, and a new government installed. In fact, a second round of national elections was held in August 2009 and another in 2014. The United States and a limited number of NATO forces are still, as of this writing, operating in Afghanistan, but they are now doing so at the behest of the Afghan government, helping to reconstruct the nation, suppress the resurgence of the Taliban, and pursue al-Qaeda.

Inevitably, repatriation is a long, arduous process. It does not occur overnight. What is striking about Obama’s May 2009 National Archives speech is that he did not acknowledge the obligation to repatriate Afghan soldiers, including the one he described as having led troops in battle. In fact, in announcing that such prisoners will remain incarcerated for indefinite periods of time without trial, Obama appears to have repudiated such an obligation.

In a speech to the American Society of International Law on March 25, 2010, Harold Koh, the legal adviser to the Department of State, described recent attempts to improve the detention facilities in Afghanistan. He spoke glowingly of the Department of Defense’s efforts “to prepare the Afghans for the day when we turn over responsibility for detention operations.”
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There was no recognition, however, of the obligation to repatriate the Afghan soldiers, nor any indication that these new detention facilities would be used for the Guantánamo prisoners who had fought for the Taliban and who, Obama had declared, would be subject to indefinite, prolonged imprisonment without trial.