Cross posted from Balkanization
Government arguments in the detention context, from its claims about the status of Guantanamo through its manufacture of the “enemy combatant” designation, are unified by a single theme: the effort to establish an area of absolute factual discretion, in which the 99% who may be innocent may be held alongside the risky remainder. For the Vice-President’s fabled one-percent solution, a zone of darkness is a sine qua non.
The Justice Department’s latest effort at establishing this zone got a rebuke today from the D.C. Circuit. The Court, in Omar v. Harvey rejected the government’s argument that no jurisdiction exists over the habeas petition of a U.S. citizen in the physical custody of U.S. officials if the latter assert detention authority under a non-U.S. source of law. From an Administration that typically evinces allergic gingerliness in handling international law, this seems quite out of turn. But this argument, which purports to be grounded on a 1948 Supreme Court decision, Hirota v. MacArthur, is not so dissimilar from previous Bush Administration arguments for unfettered discretion as first might appear: All turn on surprisingly ambivalent features of international law.
By way of background, Shawqi Omar was arrested by U.S. forces in Iraq in October 2004. After interrogation using electric shocks to prompt answer, Omar was rotated between U.S. bases in Basra and Baghdad, where he remains, two-and-a-half years after his initial pick-up. In Omar, as in an analog companion case that will be argued this Friday in the D.C. Circuit the government makes a simple but sweeping claim: If the sign on the door says “U.N.,” no U.S. court can look inside to determine whether a U.S. citizen’s detention comports with either the law or the Constitution. Pace Hamdi, U.S. soldiers can sweep in “the errant tourist, embedded journalist, or local aid worker,” even U.S. citizens, so long as the government purports to be acting under color of non-U.S. law. In Iraq, the fons et origo of this extraordinary power is a set of U.N. Security Council Resolutions, specifically 1546, 1637, and 1723, that authorize a “continued presence of the multinational force” in Iraq.
Of course, the present Administration’s leeriness of international law, from its decision to 2001 withdraw from the ABM treaty to its recent refusal to sign a UN convention against forced disappearances, is legendary. But from the inception of the “war on terror,” international law, like other international allies, has in fact played a more ambivalent role for Administration. From the Justice Department’s January 2002 memo on the Application of Treaties and Laws to al Qaeda and Taliban Detainees, (available here), the exercise of the United States, right to international self-defense under Article 51 of the U.N. Charter has opened floodgates for the exercise of coercive force against nations and individuals. More ingenuity, in the January 2002 and its successors, was required to engineer the international law-of-war into a one-way ratchet for executive power.
In form, the government’s argument in Omar was analogous to earlier efforts to seek an authorization from international law and then to sidestep the constraints international law places on state coercion. At least from an international law perspective the Government had an easier road to travel than in the Guantánamo cases that still linger before the D.C. Circuit. The main body of the Geneva Conventions do not apply to U.S. citizens held by the United States. Article 4 of the Fourth Convention exempts from that treaty’s scope those “in the hands of a Party to the conflict or Occupying Power of which they are not a national.” For this class of detainees, only common Article 3 obtains. (Apparently, the 1949 drafters made the reckless assumption that a country would never subject its own citizens to lawless detention and treatment or that international law had no business regulating a country’s brutalization of its own nationals, perhaps an odd inference since the Universal Declaration of Human Rights had been promulgated but a year before).
The D.C. Circuit rejected the government’s ratchet argument in Omar, necessarily turning down the argument that a U.N. Security Council Resolution functions as an “out” from obligations under the Suspension Clause. As Lyle at SCOTUS blog explains, this is largely the result of the Court’s reading of Hirota, a three-paragraph 1948 Supreme Court per curiam that rejects an original habeas corpus writ from the former Japanese prime minister and foreign minister. As I explain in a symposium article forthcoming in the Annual Survey of American Law, the Hirota per curiam rests on the mundane and necessary limits of the Supreme Court’s Article III jurisdiction. These have been hornbook law since Ex Parte Bollman. Specifically, Hirota sought Article III “original,” not “appellate,” jurisdiction. But the Supreme Court has original habeas jurisdiction of the kind Hirota sought only in the limited set of cases described in Article III, section 2. Not being an “Ambassador,” a “public Minister” or one of the “Consuls,” Hirota struck out. (This was not the ground on which the D.C. Circuit ruled, but will be relevant if the case were to be heard higher up in the judicial hierarchy).
Whatever the eventually adopted reading of Hirota, the government’s inventive use of that decision raises telling questions about the structures most conducive to the protections of civil liberties. Since the Geneva Conventions and the Universal Declaration of Human Rights, it has been a truth near universally acknowledged that international law is a source of protection against states jealous of individual rights. The new convention on forced disappearances is but the most recent in a sequence of international enactments that pursue an uphill trajectory, aiming for a more perfect legal realization of human liberties.
But what if this Whiggish vision of international law is already fiction? After all, the aspirations of the World Social Forum aside, it is executive branches that are represented in international fora, and that make international law. As Balkinzation guest Kim Lane Scheppele has explained in recent articles and in a forthcoming book, should it any surprise that executives act in self-dealing ways when at the U.N.? Kim has pointed out how since September 2001, the U.N. Security Council has required countries to enact new and more draconian counter-terrorism laws – and that countries have tripped over themselves in so doing.
Resolution 1373, for example, was enacted on September 28, 2001 in the penumbral shock of 9/11. It demands that states freeze the assets of listed terrorists. Listed entities and individuals do not receive even the de minimus due process enjoyed under the U.S.'s 1977 International Economic Emergency Powers Act. Only in the European court system has litigation begun on the propriety and wisdom of a supra-national body promulgating lists of “terrorists” that are the yield of chancelleries around the globe dredging through dusty files, searching for “enemies of the state.”
What if the ascendant arc of international human rights between 1948 and 2001 was an anomaly? What if international law is indeed fated in the long term to return to statist roots? Civil libertarians now find little sustenance in domestic trends. 2006 saw the enactment of new counter-terrorism legislation not only in the United States, in the form of the ill-conceived, ill-informed, and ill-intentioned Military Commissions Act, but also in the United Kingdom. It is not only international law where there is a one-way ratchet at work. Each new emergency (or, as in the case of the Military Commissions Act, each hypothesized yet false emergency), enables a political faction to mobilize for electoral purposes by purporting to be “tough on terror,” and ratcheting down the institutional protection of rights. Like the “war on crime” disastrously fought since the early 1970s, democratic counter-terrorism policy risks spiraling into greater and greater dysfunction. In the crime context, we are at the point of foregoing all but the retributive goal of punishment, and the mass incarceration and the consequent evisceration of certain neighborhoods is the rule. The “war on terror” analogs are straightforward to imagine.
What’s troubling is how few options this leaves open. For if both international fora and domestic political processes are susceptible to self-dealing and partisanship, what opportunities for rational and humane debate on counter-terrorism remain?