March 2004
Al Odah v. United States: The Supreme Court's First Big Battle in the War on Terrorism

In April 2004, the U.S. Supreme Court will hear arguments in Al Odah v. United States. This legal challenge to the federal response to terrorism-a first for the Supreme Court-principally deals with the U.S. government's treatment of Guantanamo Bay prisoners. AEI adjunct fellows Brad Berenson and Richard Klingler, who have just filed a brief with the Supreme Court on behalf of Citizens for the Common Defense, argued that the Supreme Court should adhere to the traditional rule that enemy fighters captured and held abroad by the military during wartime have no right to challenge their detention in the U.S. legal system at a March 3 AEI event.

David Frum
AEI

We are now entering an important era in the war on terror and our actions against the terrorists.  This war is a considerably different kind of conflict, one that is fought in the shadows similar to that of the Cold War.  However, there has been a judicial revolution in this country since the Cold War: most specifically, the spread of legal education and the idea that lawyers are in control and have the ability to decide everything.  This has now manifested itself in a case presented to the U.S. Supreme Court regarding the handling of enemy combatants.  It is important to note that these combatants have thrown off the laws of war.  They have not worn uniforms, often do not carry weapons, and do hide in concealment; their weapons are atrocities.   There are those who argue that these people should be considered as proper soldiers entitled to all the rights afforded to prisoners of war.  This brings up the need for a clarification of the role of the courts as to where they do and do not apply, as these enemy combatants are not Americans. 

Brad Berenson
AEI and Sidley, Austin, Brown, & Wood, LLP

The case brought before the Supreme Court deals directly with the treatment of detainees in Guantanamo.  Before one can tackle the legal issues inherent with this case, it is necessary to have a background on Guantanamo and how detainees end up there.  Currently there are 650 detainees in Guantanamo, including citizens of many nations- some of which are close allies of the United States.  None of the detainees are U.S. citizens, and they have no connection to the United States aside from taking up arms against it.  The context of detention is clearly non-punitive.  This is to say that most are not detained as a means of punishment for their actions, but rather as an incident of capture with the goal of removing people from the fight in an effort to expedite the end of the war.  The vast majority of those being held in Guantanamo are members of the Taliban or al Qaeda, and there is an extensive screening process that ensures that Guantanamo detainees are the most dangerous or valuable.  These unlawful combatants have been determined the enemies of all mankind and as such are afforded fewer rights than ordinary prisoners of war. 

The selection process consists of four levels of review all the way from the commanders in the field to general officers and civilian leadership in the Pentagon.  The first of these steps is an assessment of the captive by the commander in the field on how dangerous the prisoner is and what is known at the time of capture.  The second stage is referral to the Central Operations Area in the theatre where a screening team consisting of officers and lawyers analyzes each individual case, determining things such as the detainee's role in the al Qaeda organization and other valuable information.  Following the assessment of the screening team, there is a further review by a general officer.  Assuming approval, the recommendation is then submitted to Washington.  Once the order is signed in Washington, the detainee is transferred to Guantanamo.  Once at Guantanamo, a specialized team consisting of interrogators, intelligence officers, psychologists, and lawyers is required to carry out another review process within ninety days as to the status of the detainee.  The analysis of the team is sent to U.S. Southern Command for review and then to Washington for an interagency review process.  Finally, the resultant recommendation is given to the Secretary of Defense for review and judgment. 

It should be stated that throughout this entire process of review and decision, detainees are provided food, clothing, medical care, shelter, right to worship, Red Cross visits, mail, and other basic humanitarian rights.  During this time the captive also has the ability to tell his captors whatever he wishes to be taken as input to the review process.  During this process and continuing once they are transferred to Guantanamo, there are negotiations with the home countries of the detainees as well as information sharing to assist in the overall assessment of the detainee.  As a precaution to keeping innocent captives from being erroneously selected for detention, there is a formal review every year.  This process, recently announced by the Department of Defense, has already resulted in eighty releases.  Despite the care taken in this process and the criticism that the system is skewed against the detainees, there have been confirmed reports of some of these former captives returning to the fight against the United States-one of whom retained a leadership position.  Military commissions are available for all detainees charged with crimes, and this is certainly a less favorable position than simply remaining a detainee. 

The United States is engaged in a war.  Despite the uncharacteristic nature of the conflict and the fact that we are not engaging in hostilities with a nation, there are legal precedents other than massed armies that permit battle against private bands of organized groups to constitute war.  Given this, much of the criticism of Guantanamo has stemmed from the argument that the assumptions in the criminal system should be transported to the context of war.  These detainees are not prisoners of war and as such have fewer rights and luxuries.  For instance, they have no right of belligerency to wage war on the United States.  If this were the case, they would be able to prosecute attacks such as September 11 and the bombing of the U.S.S. Cole without fear of legal consequences.  With regard to criminal laws applying to these combatants, the text of various amendments of the Constitution make it clear that they do not apply to foreign combatants and that they do not have any extraterritorial capacity.  The fact of the matter is that the rights these detainees seek are unprecedented; there are no historical examples of a government engaged in war allowing their enemies to sue the commander in chief, much less provide them lawyers to do so.

There are clearly a couple of policy problems inherent with granting the petitioners what they seek.  The first of these is the diversion of military resources from the battlefield to the legal forum.  This would clearly limit the ability of the military to successfully prosecute the war on terrorism by removing those needed in the field of battle to take part in legal proceedings.  A hypothetical situation would be that if a detainee sued the United States and wished to cross-examine the officer that captured him, the detainee could recall that officer, regardless of command position or area of operations, just so that he or she could testify.  The second main problem would be that it would alter battlefield conditions.  An example of how this could occur would be the unfettered access to lawyers and its ramifications on intelligence gathering.  Since September 11, the United States has gathered a lot of good intelligence from these sources regarding the organizational structure of al Qaeda, training and explosive techniques, efforts to obtain WMD, and their methods of infiltration into the U.S.  With access to lawyers, detainees would most likely be advised to remain silent and not to give any information to the interrogator.  It is vital to remember that at every interrogation there is another September 11 or worse at stake, and impeding this process puts intelligence-gathering capability and lives at stake.  The risks associated with a time of war are unacceptable at any other time except during conflict.  These stakes now represented in the potential for wrongly detaining an innocent in the wrong place at the wrong time are accepted in this time of war as they were in World War II and throughout history.  It is far more important not to interpose the courts between our military and our enemies.

Richard Klingler
AEI and Sidley, Austin, Brown, & Wood, LLP

The case recently brought before the Supreme Court contains a highly political set of arguments.  This is not to say that the Supreme Court has never heard political arguments before, but the degree to which this case is politicized distinguishes it from 98 percent of other cases.  There are also indeed many divergences in the conceptions of international law that are relevant for a U.S. judicial decision.  Additionally, this case deals with the role of the courts in issues that are traditionally committed to the Congress, the executive branch, or both, particularly in times of war. 

In the Supreme Court, there are two fundamental steps to a case: deciding to take the case and then hearing the case.  Although the first is the considerably less glamorous step, it is where most of the Court's work is done due to the sheer volume of cases that apply to be heard and the limited number that are actually granted a writ of certiorari.  Usually there is a clear and accepted standard or precedent used to determine whether to permit a case to be heard.  In this case, none of the common qualifiers were present.  Amicus (or friends of the court) briefs are important as they can lend credence to the claims of the petitioner.  In this case, the amicus briefs included Fred Kormatsu, whose name was attached to a previous decision that declined to grant relief to Japanese internees in World War II; former POWs; former diplomats; and commonwealth lawyers.  These examples, along with other briefs from former U.S. government officials and international institutions like the ICRC, serve to highlight the incredibly political nature of this case.   

There has also been an appeal to adhere to global norms.  Most of these are based upon UN conventions, European court decisions, and other international standards-many of which the United States does not consider binding.  This new pressure is based on the fact that the world has taken note that the United States has detained these people without charging them or bringing them to trial.  Many call for adherence to a common international law pertaining to the treatment of these detainees and the rights afforded to them.  Aside from these, there are arguments based in domestic law pertaining to habeas corpus and the actual legal status of Guantanamo, including any due process rights that apply to the detainees.  Additionally, the government asserts the premise of separation of powers and the limited role of courts in foreign affairs or international matters as well as the limitations of classically binding customary international laws and treaty obligations that have been undertaken. 

Now that the case has been granted a writ of certiorari, the following is a prospectus for how the Justices will judge the case:  Chief Justice Rehnquist was at one point the head of the Department of Justice Office of Legal Counsel, the traditional fount of executive power protection.  He has also written extensively in cases involving international affairs and is most likely the best versed in the issue.  The Chief Justice also controls the assignment power of the court, meaning that if his preferred position is threatened, he can assign himself to write the opinion.  Justice Scalia was also once the head of the Department of Justice Office of Legal Counsel and is known for consistently providing a clear legal source for the Court's decisions.  Due to the fact that there are legal precedents favoring a ruling against the petitioners, he is likely to come down against the detainees.  Justices Breyer and Ginsburg have been unusually public in their views that the Court needs to step in at a time of war and terrorism to preserve civil liberties and will probably rule in favor of the detainees.  Justices Souter and Stevens are generally aligned with Justices Breyer and Ginsburg, but Souter is without an extensive body of writing and Stevens is the only Supreme Court Justice with a military record.  Given these factors, it is nearly impossible to determine where they will fall with their rulings.  Finally, Justices O'Connor and Kennedy are both concerned with the reputation of the Court and are considered the swing votes.  Both of them have ties to the diplomatic community and are open about drawing on these sources in their discussions.  Justice O'Connor wrote about the similarities between the relationship between international law and the United States and that between U.S. federal law and states.  It is also nearly impossible to predict how they will rule in this case.

Overall, there are three broad international law issues encompassed in this case.  The first of these pertains to the scope of relevant international law.  This references the idea of a common global law versus the conception of binding international laws.  Traditionally, U.S. conventions govern the incorporation of international law and treaty obligations to the extent they are enforceable.  A second point is when U.S. law incorporates whatever relevant international laws into a federal court, the petitioners argue that U.S. law should be interpreted, where there is some ambiguity, to aspire to and conform to this common international law and that judges are authorized to dictate such a change while the other side says that international law should be interpreted so it does not violate any binding international treaties or agreements.  The courts should not bring the country into conflict with Congress or the president by providing a second voice in international affairs.  The third and final issue is the separation of powers, meaning to what extent is the Court willing to assert authority to preserve the ability to protect rights in context of war or exercise power into what is considered a core executive power.  The fact is that the Court and the legal system in general are rarely competent to address foreign affairs issues reserved to the executive.

AEI research intern Robert Lowy prepared this summary.