Update: Because I only had 3 minutes the last time I wrote this blog, I left off a necessary discussion of the National Defense Authorisation Act 2012. That is now included below.
I don't have very long to do this, but I had to quickly address Lindsey Graham's criticism of the Obama Administration. Graham claims Obama should hold Dzhokhar Tsarnaev, one of the Boston bombers, as an "enemy combatant." This, according to Graham, would allow for better questioning.
This is like the "Cliff's Notes" version of what could be a much more detailed answer to Graham's criticism.
Here's the thing, that category doesn't exist under international law and its domestic codification - which is actually "unprivileged enemy belligerent," and the very existence of which may violate the US's international obligations - isn't applicable to Tsarnaev, who is a US citizen.
The applicable US domestic law is the Military Commissions Act of 2006, an attempt to legitimize the very illegitimate Bush Administration's treatment of alleged members of al Qaeda and other random people they were certain were the "worst of the worst" despite the fact that they've now let most of them go without trial.* There, the law makes it clear that an enemy combatant is an unprivileged enemy belligerent." This is actually a non-sensical category if you consider this is supposed to somehow align with international law.
The Military Commissions Act provides for the establishment of military commissions (it is rather shocking that the US law name actually does relate to what the US law does). The law provides two separate definitions to create an "alien unprivileged enemy belligerent." The first is "alien" meaning an "individual who is not a citizen of the United States." and the second is an "unprivileged enemy belligerent" which means a non-privileged belligerent who
Technically, belligerents are the parties to a conflict. It's supposed to refer to the states. The belligerents in World War II were Germany, Japan, the US, Russia, France, the UK, etc. Applying it to a non-international armed conflict (NIAC) like that of the US and al Qaeda, one would assume the belligerents were the US and al Qaeda. So, one has to assume that the US legislature actually meant to mean the people fighting because you can't try a category of people - just individuals.
Combatants under international law is a specific category. It refers to the people who fight in an international armed conflict. In a non-international armed conflict - like that between the US and al Qaeda or between Colombia and FARC - the designation for the non-state fighters is that of civilians directly participating in hostilities.
Now, combatants get special privileges under international law. They have the right to kill without being tried (as long as that killing is in line with international law, so no killing civilians or surrendered or injured people). They also get special protection if captured - the prisoner of war or POW protections - like specific pay for their work and an allotment of cigarettes while being detained.
But someone who would normally be entitled to these privileges can lose those extra protections. For example, if they are caught while engaged in spying, they don't get POW protection. Importantly for this case, if they are fighting against their own state, they are not protected as POW.
People who fight against their own state are operating outside their protection. They can be tried for things they did in the conflict. But (a) this whole category and discussion of POWs and immunity for killing only applies in international armed conflict, and (b) losing the POW protection doesn't mean that the person has no protection; they just don't have the special protection.
For non-international armed conflicts, those engaged in fighting against the country don't ever lose their protection. For starters, they don't have special protections. There's no immunity for killing; there's no guarantee of cigarettes; and obviously, because it's often between a state and its own citizens (think Syria and Colombia for more traditional forms of non-international armed conflict), it is specifically designed to apply to people who fight against their own country.
The guarantees for the non-government actors in a non-international armed conflict include the right to not be tortured and the right to the guarantees of a fair trial. This requires, at least, a presumption of innocence, an independent, impartial and regularly constituted court, information on their accusation, right to a speedy trial (or a "trial without undue delay"), the right to examine eyewitnesses. and the right to, and means of, defending themselves. This last one includes a right to legal assistance.
Their rights also include the right to remain silent and to not be compelled to testify against themselves or to confess guilt.
So that's what international law of armed conflicts is supposed to look like. Under domestic law, though, we've just ignored the international realities and created an "unprivileged enemy belligerent." A non-sensical category that mixes legal terms to create something specific we want that isn't supposed to exist.
The scope of IHL is limited, though. It applies only where there's ongoing armed conflict. There's a physical and geographical scope to armed conflict. You can't actually declare a global war - on anything - and have these laws applicable. There's some technicality to this issue, but I'm not going into it. But for the laws of armed conflict in this area to be applied in the US, an armed conflict would have to be ongoing in the US.
But this "alien unprivileged enemy belligerent" category now means that the US can try people by military commission, like those most famously used at Guantanamo Bay. And it's this that Graham wants the Obama Administration to apply to Tsarnaev.
But more or less only alien unprivileged enemy belligerents can be tried like this.
If you're a US citizen - and Tsarnaev is as of last year - you cannot be tried by military commission, with one potential brief exception that is massively constitutionally dubious. The one brief exception comes from the National Defense Authorisation Act for Fiscal Year 2012 (NDAA, see section 1021-1022).
If you are associated with al Qaeda, Taliban, "or associated forces" the statute says that you can be held without trial "pending disposition under the law of war." The problem with this in relation to Tsarnaev is two-fold. First, you have to know someone is associated with al Qaeda. You can't make that presumption, operate under it, and then later go, "Ooops - but we're gonna introduce all that information at trial anyhow." So the idea that you first treat him as an enemy combatant and then later come back to it and change his status has no basis in law.
Second, the constitutionality of this law hasn't been tested, but it's unlikely to be constitutional. It would not be unconstitutional to an American captured in Yemen or Afghanistan, but it would be unconstitutional to someone in the US.
The only way for this to be constitutional to an American captured in the US - and then it's still slightly dubious - would be for the US to be declared in a constant state of emergency. If you don't want us to be a constant state of emergency, the only way for this to be constitutional - to be able to strip an American citizen of their constitutional rights when they are on US territory - would be to declare an individual in the state of emergency. That doesn't make any sense. It's a legally vapid concept.
So Graham now wants the Obama Administration to ignore the Constitution, the laws of war, and the statutes he passed. Why? Because he wants information. But (a) torturing people or questioning them without a lawyer doesn't necessarily mean you'll get that, and (b) that's pointless because he can still give information.
There is a provision in US law that would allow the government to accomplish what Graham wants (questioning without a lawyer) independent of Graham's choice of action (illegal and unconstitutional treatment of a US citizen). There is a "public safety" exemption that allows for the government to delay telling a suspect their Miranda rights. I'm not going to really get into this because there's a lot out on there on this issue, but the DOJ indicated they would utilize this exemption (it appears there is a challenge coming on that from the Boston Federal Public Defender's Office**).
But it is worth noting that the Miranda rights - which are actually the Constitutional guarantees in the 5th and 6th Amendments - exist independent of whether the person is informed of them. By being an American on US soil, Tsarnaev inherently has the right to remain silent. If the government starts to question him and he's smart or watched any procedural shows, the fact that he hasn't been informed of his rights won't deter him from invoking his rights. He'll have a right to remain silent and a right to an attorney even before he's informed of those.
That doesn't change.
No matter what Graham wishes.
*And OMG it costs $700,000 extra to keep someone at GTMO than a US federal prison? And I have to listen to Republicans tell me I'm a big government spender?
Update: Slate has a great piece on the Miranda issue here.
**Another update: I want to give a big round of applause to the Boston Federal Public Defender's Office! MSNBC is reporting that they are representing Tsarnaev and are challenging extended use of the suspension of Miranda rights. Thank you for standing up for justice.
I don't have very long to do this, but I had to quickly address Lindsey Graham's criticism of the Obama Administration. Graham claims Obama should hold Dzhokhar Tsarnaev, one of the Boston bombers, as an "enemy combatant." This, according to Graham, would allow for better questioning.
This is like the "Cliff's Notes" version of what could be a much more detailed answer to Graham's criticism.
Here's the thing, that category doesn't exist under international law and its domestic codification - which is actually "unprivileged enemy belligerent," and the very existence of which may violate the US's international obligations - isn't applicable to Tsarnaev, who is a US citizen.
The applicable US domestic law is the Military Commissions Act of 2006, an attempt to legitimize the very illegitimate Bush Administration's treatment of alleged members of al Qaeda and other random people they were certain were the "worst of the worst" despite the fact that they've now let most of them go without trial.* There, the law makes it clear that an enemy combatant is an unprivileged enemy belligerent." This is actually a non-sensical category if you consider this is supposed to somehow align with international law.
The Military Commissions Act provides for the establishment of military commissions (it is rather shocking that the US law name actually does relate to what the US law does). The law provides two separate definitions to create an "alien unprivileged enemy belligerent." The first is "alien" meaning an "individual who is not a citizen of the United States." and the second is an "unprivileged enemy belligerent" which means a non-privileged belligerent who
(A) has engaged in hostilities against the United States or its coalition partners;(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or(C) was a part of al Qaeda at the time of the alleged offense under this chapter.Who are "privileged belligerents"? Well, the domestic law doesn't actually define that. International law does, though, kind of.
Technically, belligerents are the parties to a conflict. It's supposed to refer to the states. The belligerents in World War II were Germany, Japan, the US, Russia, France, the UK, etc. Applying it to a non-international armed conflict (NIAC) like that of the US and al Qaeda, one would assume the belligerents were the US and al Qaeda. So, one has to assume that the US legislature actually meant to mean the people fighting because you can't try a category of people - just individuals.
Combatants under international law is a specific category. It refers to the people who fight in an international armed conflict. In a non-international armed conflict - like that between the US and al Qaeda or between Colombia and FARC - the designation for the non-state fighters is that of civilians directly participating in hostilities.
Now, combatants get special privileges under international law. They have the right to kill without being tried (as long as that killing is in line with international law, so no killing civilians or surrendered or injured people). They also get special protection if captured - the prisoner of war or POW protections - like specific pay for their work and an allotment of cigarettes while being detained.
But someone who would normally be entitled to these privileges can lose those extra protections. For example, if they are caught while engaged in spying, they don't get POW protection. Importantly for this case, if they are fighting against their own state, they are not protected as POW.
People who fight against their own state are operating outside their protection. They can be tried for things they did in the conflict. But (a) this whole category and discussion of POWs and immunity for killing only applies in international armed conflict, and (b) losing the POW protection doesn't mean that the person has no protection; they just don't have the special protection.
For non-international armed conflicts, those engaged in fighting against the country don't ever lose their protection. For starters, they don't have special protections. There's no immunity for killing; there's no guarantee of cigarettes; and obviously, because it's often between a state and its own citizens (think Syria and Colombia for more traditional forms of non-international armed conflict), it is specifically designed to apply to people who fight against their own country.
The guarantees for the non-government actors in a non-international armed conflict include the right to not be tortured and the right to the guarantees of a fair trial. This requires, at least, a presumption of innocence, an independent, impartial and regularly constituted court, information on their accusation, right to a speedy trial (or a "trial without undue delay"), the right to examine eyewitnesses. and the right to, and means of, defending themselves. This last one includes a right to legal assistance.
Their rights also include the right to remain silent and to not be compelled to testify against themselves or to confess guilt.
So that's what international law of armed conflicts is supposed to look like. Under domestic law, though, we've just ignored the international realities and created an "unprivileged enemy belligerent." A non-sensical category that mixes legal terms to create something specific we want that isn't supposed to exist.
The scope of IHL is limited, though. It applies only where there's ongoing armed conflict. There's a physical and geographical scope to armed conflict. You can't actually declare a global war - on anything - and have these laws applicable. There's some technicality to this issue, but I'm not going into it. But for the laws of armed conflict in this area to be applied in the US, an armed conflict would have to be ongoing in the US.
But this "alien unprivileged enemy belligerent" category now means that the US can try people by military commission, like those most famously used at Guantanamo Bay. And it's this that Graham wants the Obama Administration to apply to Tsarnaev.
But more or less only alien unprivileged enemy belligerents can be tried like this.
If you're a US citizen - and Tsarnaev is as of last year - you cannot be tried by military commission, with one potential brief exception that is massively constitutionally dubious. The one brief exception comes from the National Defense Authorisation Act for Fiscal Year 2012 (NDAA, see section 1021-1022).
If you are associated with al Qaeda, Taliban, "or associated forces" the statute says that you can be held without trial "pending disposition under the law of war." The problem with this in relation to Tsarnaev is two-fold. First, you have to know someone is associated with al Qaeda. You can't make that presumption, operate under it, and then later go, "Ooops - but we're gonna introduce all that information at trial anyhow." So the idea that you first treat him as an enemy combatant and then later come back to it and change his status has no basis in law.
Second, the constitutionality of this law hasn't been tested, but it's unlikely to be constitutional. It would not be unconstitutional to an American captured in Yemen or Afghanistan, but it would be unconstitutional to someone in the US.
The only way for this to be constitutional to an American captured in the US - and then it's still slightly dubious - would be for the US to be declared in a constant state of emergency. If you don't want us to be a constant state of emergency, the only way for this to be constitutional - to be able to strip an American citizen of their constitutional rights when they are on US territory - would be to declare an individual in the state of emergency. That doesn't make any sense. It's a legally vapid concept.
So Graham now wants the Obama Administration to ignore the Constitution, the laws of war, and the statutes he passed. Why? Because he wants information. But (a) torturing people or questioning them without a lawyer doesn't necessarily mean you'll get that, and (b) that's pointless because he can still give information.
There is a provision in US law that would allow the government to accomplish what Graham wants (questioning without a lawyer) independent of Graham's choice of action (illegal and unconstitutional treatment of a US citizen). There is a "public safety" exemption that allows for the government to delay telling a suspect their Miranda rights. I'm not going to really get into this because there's a lot out on there on this issue, but the DOJ indicated they would utilize this exemption (it appears there is a challenge coming on that from the Boston Federal Public Defender's Office**).
But it is worth noting that the Miranda rights - which are actually the Constitutional guarantees in the 5th and 6th Amendments - exist independent of whether the person is informed of them. By being an American on US soil, Tsarnaev inherently has the right to remain silent. If the government starts to question him and he's smart or watched any procedural shows, the fact that he hasn't been informed of his rights won't deter him from invoking his rights. He'll have a right to remain silent and a right to an attorney even before he's informed of those.
That doesn't change.
No matter what Graham wishes.
*And OMG it costs $700,000 extra to keep someone at GTMO than a US federal prison? And I have to listen to Republicans tell me I'm a big government spender?
Update: Slate has a great piece on the Miranda issue here.
**Another update: I want to give a big round of applause to the Boston Federal Public Defender's Office! MSNBC is reporting that they are representing Tsarnaev and are challenging extended use of the suspension of Miranda rights. Thank you for standing up for justice.
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