By Ian Hutchinson Web Editor in Chief 13 November 2017

How does the designation of an “enemy combatant” work?

The term that was applied specifically to Guantanamo detainees was “unlawful enemy combatants.” It was important to draw a distinction between “prisoners of war” and “unlawful enemy combatants” at Guantanamo because of the Geneva Conventions, which, by the way, we led the effort to enact after World War II in order to create a bright-line between combatants and non-combatants. The objective was to shield non-combatants – the civilian population – from the effects of warfare. So basically you’re creating a dividing line between soldiers and civilians; that was the rationale behind Geneva. And with those distinctions come certain rights and responsibilities. So, again, the goal was to protect non-combatants from the effects of war; if you’re a non-combatant, then you’re supposed to be in protected status, in other words you can’t be deliberately targeted in the course of an armed conflict.

Can a U.S. citizen be designated an “enemy unlawful combatant?”

The term “unlawful enemy combatant” didn’t exist prior to 9/11. Look at the Geneva Conventions and you won’t find that term anywhere. The term was created by the Bush Administration in order to avoid the rights and responsibilities that come with prisoner of war status; again, a product of the combatant/non-combatant distinction that the Geneva Conventions draw. So the term “unlawful enemy combatant” was purely a creation of the Bush Administration to avoid the law. If you look back to when the Supreme Court struck down the military commissions that President Bush authorized in November of 2001, the Court said that the president does not have that unilateral authority to create them and that if he wanted to pursue that route it required the cooperation of Congress. So in September of 2006, Congress passed the Military Commissions Act of 2006. In the Act, it defines who’s subject to prosecution in a military commission and it’s limited to alien unlawful enemy combatants, which expressly precludes a U.S. citizen from being prosecuted in a military commission. A more complicated question would be, more recently, the guy that was involved in the incident in New York City.

Does just the term “unlawful enemy combatant” have legal status under the Military Commissions Act of 2006 or 2009?

They changed the terminology in the Military Commissions Act of 2009 and now the distinction is between a “privileged enemy belligerent” and an “unprivileged enemy belligerent.” A privileged belligerent would be someone who’s operating within the confines of the law of war, within the Geneva Conventions. So a soldier would be a privileged belligerent. For example, again going back to the Iraq War, a U.S. soldier on the battlefield shoots and kills a member of the enemy force, an Iraqi soldier. Normally if you deliberately point a gun at someone and pull the trigger and kill them, that’s called murder, which would be intentionally taking the life of another human being. But under the law of war, if you’re operating within its limits and the person that you point the gun at and pull the trigger is not in protected status, then you’re considered a privileged belligerent and what normally would be considered a criminal act, murder, is not a crime.

So the other term they use in the Military Commissions Act is “unprivileged enemy belligerent.” And that was intended to cover Al Qaeda and ISIS and those types of groups where, even though a lot of what they do has, for all practical effect, the look of a military operation, they certainly don’t comply with the law of war: They’re not wearing uniforms, they don’t have a chain of command that’s accountable for their conduct, they don’t do all of the things that are required to enjoy privileged belligerent status under the Geneva Conventions.

An example is Omar Khadr. Omar Khadr was a Canadian teenager whose father had a longstanding friendship and ties to Osama bin Laden; in fact, the Khadr kids grew up alongside some of the bin Laden kids. After 9/11, Omar Khadr’s father moved the family to Afghanistan and eventually, at some point, he loaned Omar to a Taliban group to act primarily as an interpreter because he was fluent in a couple of languages. When Khadr was with the group, U.S. forces were out on patrol with members of the Afghan military and they got a tip from some villagers that some bad guys were holed up in a compound nearby. When they got there, two Afghan troops approached the entrance to the compound and they were shot and killed, so a firefight broke out. Eventually, U.S. warplanes dropped 500 pound bombs on the compound and just leveled it. But, when it seemed that it was all over, the U.S. forces went inside what was left of the walls of the compound and at some point a grenade was lobbed over a wall and it seriously wounded a U.S. service member who died shortly thereafter. It was alleged that Omar Khadr had survived the bombing and he was the one who threw the grenade.

In that scenario, the U.S. forces would be privileged belligerents. They’re in uniform, they have a chain of command, the U.S. is a party to the Geneva Conventions, all of the things that give them privileged belligerent status. Khadr, on the other hand, is with a Taliban group who does not qualify for status as a privileged belligerent. The U.S. forces who were shooting into the compound at them had privileged status while those shooting back from inside the compound didn’t. Under the law of war, the other side had no legal right to do anything.

One of the concerns that was raised after the Military Commissions Act of 2009 was enacted was whether the way “unprivileged belligerent” was defined could potentially apply to CIA drone operators because they’re not members of the armed forces, they’re civilians. There was a bit of panic, “oh my god, are we defining our own CIA employees involved in the drone program as being guilty of murder in violation of the law of war?” And ultimately, I think, the Obama Administration was satisfied that they could articulate enough distinction to argue that it didn’t overlap. But it was, and I believe still is, a concern that we charged Omar Khadr with murder because he didn’t enjoy combatant immunity because he wasn’t a privileged belligerent while we have civilian employees at the CIA involved in drone strikes that don’t have combatant immunity either.
It seems like these lines are really fuzzy. The way we define enemy combatants in the era of the War on Terror, so to speak. Are there any hard lines that you think should be drawn when it comes to American citizens as unlawful combatants?

We talked about the recent incident in New York City, for example, that’s a criminal offense: It happened on U.S. soil, involved a lawful permanent U.S. resident, had U.S. and, as it turned out, foreign victims; it clearly meets the definition of murder under U.S. law. To me, there’s just no need to throw in the added complication of trying to pidgeon hole it into some law of war, terrorism-type description when there’s no practical benefit to be gained in doing so.

I know you wrote a piece about the Fort Hood shooter making the same argument, you don’t need to throw terrorism into the mix.

Yeah, it really gets you nothing. Under federal law, you’re death penalty eligible for committing murder, so why throw in extra elements you have to prove at trial if you don’t need to. It gets more complicated. You may not recall the case, but back when the war first started after we invaded Afghanistan, one of the first people we captured was John Walker Lindh, who was an American citizen who had gone off and joined the Taliban and in a firefight with U.S. troops, he gets captured. So in that case, he’s actually taken up arms on foreign soil with a hostile group of foreign fighters who are engaged in armed conflict with American troops, so that would come closer to a U.S. citizen potentially fitting into a law of war paradigm. But in that case, they brought him back to the United States, prosecuted him in federal court, and he got a 20 year sentence.

To me, it’s just hard to fathom a circumstance where we would want to try and fit a U.S. citizen or someone who has rights under U.S. law into some other system of justice when our federal court system has worked effectively, safely, and efficiently in handling these types of cases. It seems like people get too wrapped up in feelings and they lose sight of practicality.
Could you talk about what you see as the arc of the relationship between the justice system and the Administration from the Bush Administration to the Obama Administration to today? Do you see any trends in that relationship?

Well, I guess, unfortunately, the trend that began after 9/11 seems to have continued on for sixteen plus years now, with little change. Guantanamo is still open, military commissions are still running, to my knowledge we haven’t used enhanced interrogation techniques on anyone in the last decade or so, but we certainly have a commander-in-chief who’s said he would if the opportunity presented itself. It’s unfortunate, in my view, that for sixteen years we’ve continued on this track.

I think, if you go back to your question about the political aspect of trying to criminally prosecute terrorism or war-type offenses, go back to the Presidential campaign in 2008 between McCain and Obama. Both of them ran on platforms that included closing Gitmo. So at that time, late in the Bush Administration – and even President Bush said he’d like to close Gitmo – there was a point in time where closing Guantanamo and putting this chapter behind us was a nonpartisan issue. And so I think that when Obama got elected a lot of people were under the impression that it was the end of that era, the end of the Bush era, and this would all be quickly resolved and put behind us. Then you had, shortly after Obama took office, Mitch McConnell and others saying “our goal is to make him a one term president, so anything he’s for, we’re against, and anything he’s against, we’re for!” And Obama was for closing Guantanamo and ending the military commissions, so suddenly, they’re against it. If you go back and look, McCain had said pretty much the same things that Obama did about closing Guantanamo. I wonder if they’d have opposed McCain if he had won the election.

I’ve jokingly said before that if Obama had really wanted to close Guantanamo what he should have said was that he loved it and wanted to keep it open forever, and then the GOP would have fought to shut the place down before dark. It’s gotten politicized and that’s unfortunate. You’re seeing that play out a bit with what’s going on in the current environment with the Russia investigation and all that. We always say justice is blind. You have the statue of Lady Justice wearing a blindfold and holding the scales and whichever way the evidence tips the scales, that’s how she decides. That’s the perfect notion of what justice should be, and so to the extent that politics intrudes into it and tries to put a finger on the scales, it pollutes the notion that justice is blind.

So it feels like a pretty precarious moment for the U.S. justice system. It does seem like we’re seeing more politicization of it, through passive events and actions by certain people. Do you see a way out of that?

Well, I guess I’m an eternal optimist. For more than a decade now, I’ve continued to have hope that at some point we’ll be talking about all of this in the past tense. I think, in hindsight, one of the mistakes the Obama Administration made was early on around the time he signed the order to close Guantanamo within 12 months. Shortly after that is when Dick Cheney and others started going on television and giving talks about how bad these people are at Guantanamo and how it was essential we have the military tribunals to keep Americans safe. Unfortunately, the Obama Administration let the other side dictate the narrative with virtually no push-back. So, in the public’s mind, after they heard it over and over and over, that became the truth, and the Administration did very little to set the record straight. Obviously, the president has the power of the bully pulpit, and in hindsight the Obama Administration probably regrets that they didn’t do more to correct the perception that the other side was able to paint in the minds of the American people, largely without any obstruction or any basis in fact. They convinced a lot of the public that this was necessary for their own safety.

Until facts matter again and the public is conscious of what the facts are, it’s unlikely to change. But I hope that at some point, when facts do matter again, things will change. For example, take the argument that if we capture a bad guy, why wouldn’t we torture him to find out what they’re planning to do? From a visceral standpoint, that’s understandable. From a practical standpoint, it just doesn’t work. The best example of that is we invaded Iraq based in large part on information obtained from Ibn al-Shaykh al-Libi about the connections between Al Qaeda and Saddam Hussein and weapons of mass destruction, and that turned out to be false. When they went back to al-Libi later and asked “why did you lie about the whole WMD thing,” his response was, “well, I was being tortured and I wanted the torture to stop, so I told you what you wanted to hear.” And it’s those kinds of facts that matter. I don’t think anyone can give you a good example of a positive benefit we gained by using torture. The example that’s always used is, “well, if there was a ticking time bomb in the middle of Times Square, surely you’d torture the person to find out where the bomb is hidden.”

Very Jack Bauer.

Exactly! Unfortunately, right after 9/11 happened, 24 became a very popular TV show and I think for a lot of the country, that was the extent of their knowledge about torture and those kinds of things. But the whole Times Square ticking time bomb scenario, from a visceral standpoint, makes sense, but that scenario has never actually been the case. I guess I still hope that at some point people will look at it objectively and look at the actual facts and say that this was a substantial detour from who we claimed to be as Americans and it was ineffective. If you weigh the pros and cons, the cons win this one easily.

For one closing question, if there was one piece of advice you could give anyone in the Administration right now that they would take, what would it be?

Since Guantanamo and the military commissions have been among my top priorities, my recommendation would be to end the military commissions and prosecute the cases in federal court, and I guess there’s some reason for hope that it could happen given that recently President Trump said people were telling him to send the guy from New York City to Gitmo and prosecute him in the military tribunals, but he noted that the 9/11 cases have been mired in the Guantanamo quicksand for eleven-plus years now, so President Trump said we’re going to use the court in New York City, the federal court, to prosecute the offender. That at least suggests there’s a recognition that the military commissions are not a good idea. So maybe that’ll take hold and at some point we’ll actually talk about this in the past tense rather than the present tense.