JURIST Contributing Editor Gabor Rona, International Legal Director of Human Rights First, argues that the new wave of lawsuits regarding the NDAA stem from the poor detention policies of the US…

T his week, the US Court of Appeals for the Second Circuit will consider whether to stay US District Judge Katherine Forrest’s decision in Hedges v. Obama [PDF], granting a permanent injunction on First Amendment grounds against the detention powers enumerated in Section 1021(b)(2) of the FY2012 National Defense Authorization Act [PDF] (NDAA). Much of the discussion has been about Forrest’s questionable application of domestic law, including whether the plaintiffs have standing and whether the law that permits detention without charge or trial is so vague or overbroad as to impinge on rights of free expression. I want to focus instead on how the failure to honestly deal with applicable international law contributes to the seeming injudiciousness of the decision.

Forrest’s opinion is a Rorschach test. And I think the reason is that Forrest, like most every other authority over these issues — be they executive, legislative or judicial, as well as most pundits — is wittingly or unwittingly trapped by the original sin: the decision to indiscriminately round up suspects in Afghanistan in the immediate aftermath of 9/11. We remember how the US littered the Afghan countryside with tens of thousands of flyers offering a smart reward for turning in bad guys, and we know what that can mean in a poor country with almost as many disputes between families, tribes and villages, as there are families, tribes and villages. Yet, Donald Rumsfeld didn’t care. He just needed bodies to fill the “enhanced interrogation” centers.

These detention practices necessitated the Bush administration’s memo of February 7, 2002 [PDF], which denied that detainees are protected by what it sloppily referred to as “Geneva.” Bush did so because under “Geneva” and human rights law (the applicability of which the Obama administration continues to deny), most of those early captives would have been entitled to some modicum of legal process.

So, the tail that is the Bush memo is created to wag the dog of a lousy detention policy.

However, because we’re a “rule-of-law” kind of people, we don’t leave it at that. Instead, we create a new name and make-believe legal status for these detainees: “enemy combatant,” “unlawful enemy combatant,” or today’s “unprivileged enemy belligerent.” And to put some flesh on the bone of those terms, we import by analogy into this new kind of conflict, the understandably considerable powers of the Third Geneva Convention‘s rules for detention of prisoners of war applicable to wars against other States. These Third Geneva Convention powers are understandably considerable because in US vs. Germany, for example, the right to detain the enemy does not require much process to determine that the guy wearing the Third Reich’s uniform is the enemy. The US chose to define “enemy combatant” to include what the law of inter-State armed conflict considers civilians as well as combatants. And to make matters worse, the US also decided to apply to this mélange those traditional detention standards meant only for combatants: the power to detain “until the end of hostilities.” That’s not only bad law, it’s bad policy in a “war” that may or may not all be war against amorphous non-State entities, and that may never end. In any case, as a matter of international law, civilians under traditional inter-State armed conflict rules may only be detained so long as they remain a security threat, even if hostilities continue.

In transplanting rules from where they belong to where they do not, the US not only misuses the law of war during conflict, it also, perhaps even more harmfully, applies the law of war to non-war. Armed with the rationale that old rules are inadequate for new conflicts, the US has sought to justify the application of expanded wartime rules to detain people outside the context of war. And within war, the US attempts to justify detention of civilians under broad powers meant for the detention of combatants.

And if importing detention policy from international armed conflict into non-international armed conflict is enticing, then why not import targeting policy as well? To that end, the US applies terms like “associated forces” without defining the concept and justifies its use with reference to the concept of “co-belligerency,” which applies to wars between States, not wars with non-State actors. At the same time, the US declines to import even the understandably meager and commensurate substantive limitations and due process protections that the Geneva Conventions and customary international humanitarian law apply to targeting and detention, let alone applicable human rights law.

Congress and the US Court of Appeals for the District of Columbia Circuit then put the “Good Housekeeping Seal of Approval” on it all with the detention provisions of the NDAA and a series of decisions reversing district court grants of Guantanamo detainees’ habeas petitions. The court goes an extra step to conclude that basically anything the government claims is evidence is, indeed, evidence, and that any evidence will do to justify detention. By denying certiorari of any detainee cases, the US Supreme Court effectively overrules its recent decision in the Boumediene v. Bush case that detainees are entitled to “meaningful review,” and implicitly piles on to the conclusion that smoke and mirrors pass for both grounds for detention and for meaningful judicial review.

Eliding the distinctions between “war” and “not war,” between international and non-international armed conflict is almost as easy — and effective — in liberal and moderate political circles as it is at the American Enterprise Institute (AEI). All you have to do is ridicule the provisions of the Third Geneva Convention that require POWs to be paid in Swiss francs and provided with musical instruments. Yet those who actually know how and why security and liberty interests are balanced differently between war and peace, and, more to the point, between international and non-international armed conflict, are not so easily co-opted by the charge that traditional laws of war are, in the now famous words of former Attorney General Alberto Gonzales, “quaint.” To criticize the international humanitarian law of international armed conflict for its inadequacy in non-international armed conflict, or in non-armed conflict, makes little sense. It’s like calling antitrust law useless because it doesn’t prevent brokers from conducting Ponzi schemes. And it fails to appreciate the very good reasons why States declined to ensconce non-international armed conflict powers in the laws of war; why they wanted them to be left instead to domestic law. (For example, because they want those who take up arms against the state to be considered lowly criminals, not exalted warriors)

Anyway, we end up in a perfect closed circle. We apply the laws of war to where they don’t belong and with magical thinking about its content even where it does belong. Then we justify taking liberties with it because our imagined version of it is still not adequate to our felt needs. By the time this all gets to Forrest, the true limitations of the law of war and human rights law as applied in armed conflict are so obscured as to play virtually no role. The (self)-deception about applicable law that was set in motion on February 7, 2002 by President George W. Bush is still the main reason we end up with such a tangled web of an opinion.

Gabor Rona is the International Legal Director for Human Rights First. Prior to joining Human Rights First, he was Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC). Rona has extensive experience in international criminal law and international humanitarian and human rights law in the context of counter-terrorism policies and practices. He is a frequent JURIST contributor.

Suggested citation: Gabor Rona, Hedges Decision is Symptom of Poor Detention Policy, JURIST – Hotline, September 27, 2011, http://jurist.org/hotline/2012/09/gabor-rona-ndaa-symptom.php

This article was prepared for publication by Sean Gallagher, head of JURIST’s Professional Commentary services. Please direct any questions or comments to him at professionalcommentary@jurist.org