Loyola of Los Angeles International and Comparative Law Review Volume 26 Number 1 Symposium: International Law Article 3 Weekend - West 9-1-2003 Terrorism, War and Justice: The Concept of the Unlawful Enemy Combatant George C. Harris Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Part of the Law Commons Recommended Citation George C. Harris, Terrorism, War and Justice: The Concept of the Unlawful Enemy Combatant, 26 Loy. L.A. Int'l & Comp. L. Rev. 31 (2003). Available at: https://digitalcommons.lmu.edu/ilr/vol26/iss1/3 This Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. Terrorism, War and Justice: The Concept of the Unlawful Enemy Combatant GEORGE C. HARRIS* I. INTRODUCTION In June 2002, while in Alexandria, Virginia, preparing for a motions hearing in the John Walker Lindh case, I noticed in a press report that Chief Justice Rehnquist had addressed federal judges in Virginia on the theme that "[i]n time of war, the laws are silent."' Ironically, one of the pending motions on behalf of Lindh relied on the international law of war to argue that Lindh could not be prosecuted for conspiracy to commit murder (one of the charges pending against him) based merely on having been a soldier on one side of a military conflict.2 The government argued in response to this motion that Lindh had been conclusively determined by the President to be an "unlawful enemy combatant" not entitled to lawful combatant immunity, and that the government's determination was not subject to review by the courts. In support of that position, the " J.D., 1982 Yale Law School; M.A.T. 1977, Brown University; B.A. 1974, Yale College. Mr. Harris is currently a partner at the firm of Morrison & Foerster, LLP in San Francisco. His clients include John Walker Lindh. This article is based on his presentation at International Law Weekend West 2003 conference. 1. David G. Savage, Historically,Laws Bend in Time of War, Rehnquist Says; Courts: Chief Justice Contends Judges are Inclined to Back the Government in Crises. Lincoln's Suspension of Habeas Corpus is Cited, L.A. TIMES, June 15, 2002, at A22; William H. Rehnquist, The Use of Military Tribunals, Remarks of the Chief Justice at the D.C. Circuit Judicial Conference (June 14, 2002), available at http://www.supremecourtus.gov/ publicinfo/speeches/sp_06-14-02.html. Chief Justice Rehnquist has also written on this topic. See WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME (2000). 2. United States v. Lindh, 212 F. Supp. 2d 541, 552-53 (E.D. Va. 2002). 3. Government's Opposition to Defendant's Motion to Dismiss Count One of the Indictment for Failure to State a Violation of the Charging Statute (Combat Immunity) Loy. L.A. Int'l & Comp. L. Rev. [Vol. 26:31 government relied on a two-page fact sheet that Presidential Press Secretary Ari Fleischer provided at a press conference in February 2002; the fact sheet announced that the President had determined that all Taliban detainees were unlawful combatants.4 It is the opinion of some, and apparently the prevailing view in the current Administration, that our ordinary criminal justice system is not adequately equipped to cope successfully with the current threat of terrorism.5 As a result, the Administration's anti- terrorism effort has moved from a criminal justice model to a war model, with the emphasis on prevention rather than conviction or punishment. One aspect of this approach has been to assert executive discretion to detain terrorism suspects without criminal charges under the President's war power. In the Executive's view, it has at least three strategic options to deal with suspected terrorists: (1) to detain the suspected terrorist in military custody as an "enemy combatant" indefinitely without judicial review (e.g. in the Hamdi, Padilla and Al-Marri cases), (2) to bring charges and try non-citizen suspects in military tribunals (as will apparently be done to some of the Guantanamo detainees),6 or (3) to charge the suspect in federal court and treat the suspect as an "unlawful enemy combatant" not entitled to normal protections of international law (e.g. the Lindh case). This policy raises important questions, including: What are the respective roles of the judiciary, executive, and legislature in determining the lawfulness of the detention of suspected terrorists? Does the Executive's determination to use military force and to treat the 9/11 attacks as acts of war remove the detention of terrorism suspects by the Defense Department from (#2) 'at 2, United States v. Lindh, 212 F. Supp. 2d 541 (No. 02-37-A), available at http://news.findlaw.com/hdocs/docs/lindh/uslindh605O2gop2im.pdf. 4. See id. at 2 n.2, (citing Statement by White House Press Secretary Ari Fleisher on the Geneva Convention, Feb. 7, 2002, available at http://www.usmission.ch/ press2002/0802fleischerdetainees.htm); Fact Sheet, Office of the Press Secretary, the White House, Status of Detainees at Guantanamo (Feb. 7, 2002), available at htnp://www.whitehouse.gov/news/releases/2002/02/print/20020207-13.html. 5. See Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833, 57,833 (Nov. 16, 2001). 6. The D.C. Circuit has held that U.S. courts lack jurisdiction to consider legal challenges to the detention of foreign nationals captured in hostilities abroad and incarcerated at the Guantanamo Naval Base in Cuba. Al Odah v. United States, 321 F.3d 1134, 1141 (D.C. Cir. 2003) cert. granted, 124 S.Ct. 534 (2003) (No. 02-5251,2003 Term; renumbered No. 03-343,2003 Term). 2003] The Concept of the Unlawful Enemy Combatant ordinary oversight by the judiciary, including habeas review? Should any judicial oversight be circumscribed by significant deference to the executive's war power? Whatever the wisdom of the government's current policy regarding terrorism suspects- whether it is necessary or even effective in combating terrorism is an important question for another forum-this policy, and the war model that animates it, both jeopardize principles fundamental to our criminal justice system, including: (1) the separation of power between the judiciary and the executive, (2) the presumption of innocence, and (3) the principle of individual culpability rather than guilt by association. This Article explores the Administration's application of the unlawful enemy combatant doctrine to terrorism suspects and the resulting implications for our criminal justice system. Part II describes current executive policy toward terrorism suspects. Part III looks at historical precedent for the Executive's use of the unlawful enemy combatant doctrine. Part IV analyzes current published decisions bearing on the detention of alleged enemy combatants. Part V describes an American Bar Association (ABA) task force report and a bill introduced in Congress to address the enemy combatant issue. Finally, Part VI concludes that the government's legitimate interest in gathering intelligence from terrorism suspects can be accommodated without abandoning the basic principles of our criminal justice system. II. THE GOVERNMENT'S CURRENT POLICY TOWARDS TERRORISM SUSPECTS To what degree is the apprehension and detention of suspected terrorists a matter of criminal justice and to what degree is it part of a war effort? Remarks at the sentencing of shoe- bomber Richard Reid help to frame that issue. Reportedly, Reid sought to justify his actions as part of a broad war against the United States. U.S. District Judge William G. Young told Reid that to consider himself a "righteous soldier" in a global war between Islam and the West would give him "far too much stature," because he was neither an enemy combatant nor a soldier in any war, but a terrorist.7 7. Pam Belluck, Unrepentant Shoe Bomber is Given a Life Sentence for Trying to Blow Up Jet, N.Y. TIMES, Jan. 31, 2003, at A13. Loy. L.A. Int'l & Comp. L. Rev. [Vol. 26:31 On the other hand, Jose Padilla, who, like Reid, has apparently never been on an actual battlefield, has been classified as an "enemy combatant" based on. his alleged association with al Qaeda and, on that basis, has been held in a military brig without charges or access to a lawyer for more than a year.8 Yaser Hamdi came out of a basement of the Qala-I-Janghi fortress in Mazar-e- Sharif, Afghanistan on December 1, 2001 with John Lindh and eighty-two other Taliban prisoners. 9 Hamdi was first held by Northern Alliance warlord General Rashid Dostum in Afghanistan, ° then at the U.S. detention camp at Guantanamo, and, after discovery of his U.S. citizenship, at a military brig in Norfolk, Virginia since April of 2002.11 As in the case of Padilla, no charges have ever been filed against him, and he has had no 12 access to lawyers or to his family. 8. William Glaberson, Judges Question Detention of American, N.Y. TIMES, Nov. 18, 2003, at A19. 9. Brian Blomquist, 2nd American Taliban Moved to Prison in U.S., N.Y. POST, Apr. 6, 2002, at 009; see Lindh's Path to Plea Bargain, USA TODAY, Jul. 16, 2002, at 3A; see also A Nation Challenged; Excerpt From Lawyers' Filingfor Lindh: "Threatened Him With Death," N.Y. TIMES, Feb.