Terrorism and Political Violence

The Geneva ConventionsInternational Treaties

Human Rights Accords

Obligations by the US and the West

[Restrictions on how the US can Fight Terror]

The Geneva Convention

The Geneva Convention Relative to the Treatment of Prisoners of War

Adopted on 12 August 1949

By the Diplomatic Conference for the Establishment of

International Conventions for the Protection of Victims of War

Held in Geneva from 21 April to 12, 1949

The Geneva ConventionWho is Covered?

Article 4

1. Members of the Armed Forces of a party to a conflict & members of militias or volunteers forming part of such armed forces.

2. Others not part of regular armed forces that fulfill following requirements:

A. Members of a group commanded by a person responsible for subordinates.

B. Must have a fixed distinctive sign recognizable at a distance.

C. Must carry weapons openly.

D. Must Conduct their operations in accordance with the laws and customs of war. 3

Geneva Convention III (1949)

Article 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it.

Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose custody they are.

Guatanamo Bay (Cuba) Prisoners

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Prisoners at Abu Ghraib in Iraq

Allegations Against the US for Violating the Geneva Conventions

Abuse is Investigated

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Other Captives

Others, like war correspondents, civilians, and others who fall under the power of a warring power must also be treated as POWs and given all rights and privileges of the Geneva Convention.

• Article 4 also includes other categories that are not as relevant to our course.

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The Point“Unlawful Enemy combatants” under US control are not covered

by the Geneva convention.

1. Most do not wear recognizable uniforms.2. The insurgents do not carry arms openly.3. They do not conduct operations in accord with conventions

of war (they deliberately attack civilians--terrorism).4. They hide among civilians for protection. 5. They execute prisoners and humiliate them publicly.

This makes them “unlawful combatants”, not prisoners of war. However, the US still treats them as if they were POWs even though they are not obligated to do so.

The US Supreme Court, however, has ruled that the US Constitution provides right to a “hearing” to determine whether their status as captive is constitutional. Military tribunals satisfy the requirement in most cases.

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What is US Legal and Moral Obligation Toward Terrorists?

Many Europeans and Americans want captured terrorists classified as criminals or as prisoners of war (i.e., as if they were lawful combatants).

The US, in fact, treats detainees in accord with the Geneva Convention and gives them rights because it is wise to do so. But we are under no obligation to do so under the Geneva Convention.

Still, the US does not want to give up the moral high ground by treating our detainees the way our enemies treat captured Americans.

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Geneva Convention Protocol I (1977)

Protocol I was an amendment to the Geneva Conventions adopted in 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts. It went into effect in 1979.

As of January 14, 2007, it had been ratified by 167 countries, with the US, Israel, Iran, Pakistan, Afghanistan, and Iraq being notable exceptions. However, the United States, Iran and Pakistan signed it on December 12, 1977, with the intention of ratifying it.

The international community outside of the U.S., generally accepts that the additional Geneva Conventions protocols are obligatory on all parties worldwide, as they have become part of the customary rules of war.

The U.S. main objection is that the protocol extends Geneva Conventions protection to those it regards being unlawful combatants and terrorists. The U.S. has to date not ratified Protocol I although much of its central precepts have been incorporated into the U.S. Army's Field Manual (The Law of Land Warfare).

Why the US opposes Protocol I

In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

The U.S. Position

Successive administrations have objected to certain revisions of the laws of war on the grounds that they might favor guerrilla fighters and terrorists.

Giving terrorists protections despite them hiding among civilians, etc., will encourage this behavior and endanger civilians. It also grants legitimacy to the goals and especially the methods of terrorists.

Misuse of the Laws of War

The primary US concern since 1987 (when terrorism against the US spiked) is that the laws of war might be misused by some people to give an unwarranted degree of recognition and legitimacy to guerilla terrorists and eliminate effective means for defeating terrorism.

In other words, unlawful combatants now have little to fear if captured (as consequences for their unlawful terrorism) while US troops AND civilians have much to fear from capture by terror groups.

Protocol IArticle 5

Parties to the conflict must make sure that there is supervision by a "Protecting Power". This article asserts that in a conflict there are to be people, not part of the conflict, to monitor the implementation of the Geneva Conventions by the parties to the conflict.

Before this article was introduced, the Geneva Conventions implied that this should be done, but there was no explicit treaty obligation for the parties to allow monitoring.

This provision is generally ignored by Terrorist states and terror groups.

Protection of EnvironmentProtocol I prohibits methods or means of

warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.

In the case of threatening to retaliate to the use of WMDs with WMDs, this would seem to limit the use of atomic weapons to neutron bombs.

Geneva Protocol IIPart II. Humane Treatment [Article 4; Fundamental guarantees], June 8, 1977:

1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.

2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;(b) collective punishments;(c) taking of hostages;(d) acts of terrorism;(e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form or indecent assault;(f) slavery and the slave trade in all their forms;(g) pillage;(h) threats to commit any or the foregoing acts.

There are additional provisions for treatment of the sick, treatment of children captives (right to education, etc.).

Ex Parte Milligan (1866)Lambdin P. Milligan, a US citizen, had lived for 20 years in

Indiana, and he was not, and never had been, in the military or naval service of the United States.

On Oct. 5th, 1864, while at home, he was arrested by order of General Alvin Hovey, commander of the military district of Indiana, and had since been kept in close confinement.

On Oct. 21st, 1864, Milligan was brought before a military commission (tribunal), convened at Indianapolis by order of General Hovey, tried on certain charges and specifications, found guilty, and sentenced to be hanged.

A civilian Grand Jury did NOT indict him for any violations of laws.

Was Milligan entitled to a civil Trial by Jury?

Milligan insisted, in his case to the US Supreme Court, that the military commission had no jurisdiction to try him on the charges the military lodged, or upon any charges whatever, because he was a citizen of the United States and of the State of Indiana, and since the commencement of the civil war, had not been a resident of any of the States in rebellion against the US government, nor was he a member of the US or enemy (Confederate) military.

Accordingly, he asserted, he had the right of indictment by Grand Jury (5th Amendment) and civil trial by jury (6th Amendment) which was guaranteed to him by the constitution of the United States.

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The 5th Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[Italics added]

The 6th Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of counsel for his defence.” [sic]

3 Questions Related to Milligan

• 1st: On the facts stated in Milligan’s petition and exhibits, ought a writ of habeas corpus to be issued?

• 2nd: Whether, upon the facts stated in his court petition and exhibits, the military commission had jurisdiction to legally try and sentence Milligan in the form of a military tribunal rather than a civilian trial after indictment by a Grand Jury?

• 3rd: On the facts stated in said petition and exhibits, ought Milligan be discharged from custody?

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3 Answers Related to Milligan• Question 1: Yes, a writ of Habeas Corpus was issued, because its

suspension in a peaceful state (like Indiana at the time) is unreasonable, even if other parts of country were in rebellion.

• Question 2: No, the military did NOT have the right to use a military tribunal against Milligan. When peace prevails, and the authority of the government is undisputed, and there is no difficulty of preserving the safeguards of liberty (as in Indiana at the time), then the right to Grand Jury and to Trial by Jury shall be preserved. The Courts of Indiana were open & operating, so must be used for a person not in the military.

• Question 3: Yes, if the military trial of Milligan was contrary to law, then he was entitled, on the facts stated in his petition, to be discharged from custody by the terms of the act of Congress of March 3d, 1863 (that placed limits on the suspension of Habeas Corpus and extended Habeas Corpus rights). The Grand Jury in Indiana did not indict him, and the Military Tribunal was illegal, so Milligan was entitled to his freedom.

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Martial Law in the USThe Court in Milligan stated: “It is difficult to see how the safety for the

country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal, and as there could be no wish to convict except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.”

In fact, the Court system (Grand Jury) of Indiana did have proceedings and refused to indict Milligan.

However, the court implied that under certain conditions the military can prosecute and sentence civilians in the US, and even treat them as prisoners of war, which in such cases the military or US government “may” not be required to hold a hearing where the prisoner can challenge his incarceration. By 1866, the rules on this were not clear.

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The Court asserts a meaning of “prisoner of war”

The Court ruled in Milligan: “It is not easy to see how [Milligan] can be treated as a prisoner of war when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war, for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?”

Ex Parte Quirin (1942)All the petitioners were born in Germany; all have lived in the United States. All returned to Germany

between 1933 and 1941.

All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority and that he has not since lost his citizenship. The Government, however, takes the position that on attaining his majority he elected to maintain German allegiance and citizenship or, in any case, that he has by his conduct renounced or abandoned his United States citizenship. For reasons presently to be stated we do not find it necessary to resolve these contentions.

After the declaration of war between the United States and the German Reich, petitioners received training at a sabotage school near Berlin, Germany, where they were instructed in the use of explosives and in methods of secret writing. Thereafter petitioners, with a German citizen, Dasch, proceeded from Germany to a seaport in Occupied France, where petitioners Burger, Heinck and Quirin, together with Dasch, boarded a German submarine which proceeded across the Atlantic to Amagansett Beach on Long Island, New York.

The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses and incendiary and timing devices.

While landing they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing they buried their uniforms and the other articles mentioned and proceeded in civilian dress to New York City.

Crimes or Acts of War?The remaining four petitioners at the same French port boarded another

German submarine, which carried them across the Atlantic to Ponte Vedra Beach, Florida. On or about June 17, 1942, they came ashore during the hours of darkness wearing caps of the German Marine Infantry and carrying with them a supply of explosives, fuses, and incendiary and timing devices. They immediately buried their caps and the other articles mentioned and proceeded in civilian dress to Jacksonville, Florida, and thence to various points in the United States.

All were taken into custody in New York or Chicago by agents of the Federal Bureau of Investigation. All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government. They also had been paid by the German Government during their course of training at the sabotage school and had received substantial sums in United States currency, which were in their possession when arrested. The currency had been handed to them by an officer of the German High Command, who had instructed them to wear their German uniforms while landing in the United States.

President FDR Takes Action• The President, as President and Commander in Chief of the Army and

Navy, by Order of July 2, 1942, appointed a Military Commission and directed it to try petitioners for offenses against the law of war and the Articles of War, and prescribed regulations for the procedure on the trial and for review of the record of the trial and of any judgment or sentence of the Commission.

• On the same day, by Proclamation, the President declared that 'all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals'.

• The Proclamation also stated that all such persons were to be denied access to the US courts.

Petitioners Handed over to US MilitaryPursuant to direction of the Attorney General, the Federal Bureau of

Investigation surrendered custody of petitioners to the Provost Marshal of the Military District of Washington, who was directed by the Secretary of War to receive and keep them in custody, and who thereafter held petitioners for trial before the Military Commission.

On July 3, 1942, the Judge Advocate General's Department of the Army prepared and lodged with the Commission the following charges against petitioners, supported by specifications:

1. Violation of the law of war. 2. Violation of Article 81 of the Articles of War, defining the offense of

relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy.

3. Violation of Article 82, defining the offense of spying. 4. Conspiracy to commit the offenses alleged in charges 1, 2 and 3.

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The Petitioners’ Challenge

Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses.

It was also argued that the President's Order, in prescribing the procedure of the Commission and the method for a review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with the Articles of War adopted by Congress-particularly Articles 38, 43, 46, 50 1/2 and 70-and are, accordingly, illegal and void.

The Relevant Courts Were OpenIt was conceded by the US government that ever since

petitioners' arrest, the state and federal courts in Florida, New York, and the District of Columbia, and in the states in which each of the petitioners was arrested or detained, had been open and functioning normally.

But the US government challenged each of the petitioner’s propositions to being entitled to access to US civil courts. But regardless of their merits, the US also insisted that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing.

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The Court’s [Quirin] Decision

(1) The charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission.

(2) The military commission in this case was lawfully constituted.

(3) That petitioners are held in lawful custody, for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus. [The motions for leave to file petitions for writs of habeas corpus were denied].

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The Quirin Petitioners Lose Their CaseThe Court did rule that neither the President’s Proclamation nor the fact

that the petitioner’s are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission.

The court simply ruled that the military commissions were lawful, given the facts of the case.

The Constitution invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.

In essence, enemy combatants are not entitled to defendant’s rights or protections of the US constitution (especially if they are foreign non-US citizens, enemy military members, and actively engaged in warfare activities, even if on US soil.

Even US Citizens might be denied Rights as Suspects

The Court asserted in Quirin:

• “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.”

• “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”

• “It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.”

Unlawful warfare against the US, even when committed by a citizen, is distinct from the crime of treason defined in Article III of the Constitution, since the absence of uniform so essential to one (unlawful warfare) is irrelevant to the other (treason).

The Quirin Court Explains Milligan and Quirin Differences

• The Court concluded “that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury.”

• “Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case that the law of war 'can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed'. Elsewhere in its opinion, the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents.”

• The Court construed the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as, in circumstances found not there to be present and not involved here, martial law might be constitutionally established.

Hamdi v. Rumsfeld (2004)After Congress passed a resolution—the Authorization for Use of Military

Force (AUMF)—empowering the President to “use all necessary and appropriate force” against “nations, organizations, or persons” that he determines “planned, authorized, committed, or aided” in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime.

Petitioner Yaser Esam Hamdi, an American citizen (born in Louisiana in 1980) whom the Government has classified as an “enemy combatant” for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, South Carolina.

Hamdi’s father filed a habeas petition on his behalf under 28 U. S. C. §2241, alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments.

Although the petition did not elaborate on the factual circumstances of Hamdi’s capture and detention, his father has asserted in other documents in the record that Hamdi went to Afghanistan to do “relief work” less than two months before September 11 and could not have received military training.

The District Court & Appeals Court RulingsThe Government attached to its response to the petition a declaration from Michael

Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration alleges various details regarding Hamdi’s trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S allies, and his subsequent surrender of an assault rifle.

The District Court found that the Mobbs Declaration, standing alone, did not support Hamdi’s detention and ordered the Government to turn over numerous materials for review. The Fourth Circuit Court of Appeals reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government’s assertions was necessary or proper.

Concluding that the factual averments in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the circuit court ordered the habeas petition dismissed.

The Fourth Circuit Court of Appeals held that, assuming that express congressional authorization of the detention was required by 18 U. S. C. §4001(a)—which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”— the AUMF’s “necessary and appropriate force” language provided the sufficient authorization for Hamdi’s detention.

It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention’s legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.

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The US Supreme Court Weighs InThe US Supreme Court overturned the Circuit Court of

Appeals.

JUSTICE O’CONNOR, joined by CHIEF JUSTICE Rehnquist, JUSTICE KENNEDY, and JUSTICE BREYER, concluded that, although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a US citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. [Italics added]

However, the Supreme Court did not indicate what type of hearing would be required in such cases (i.e., civil trial or military tribunal).

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Justices Souter and Ginsburg Opposed Even the Detention

JUSTICE SOUTER, joined by JUSTICE GINSBURG, concluded that Hamdi’s detention is unauthorized, therefore illegal, but they joined with the plurality to conclude that Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant.

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How is Hamdi different from Milligan?

Neither were members of a military fighting for a government (but Hamdi was fighting with Taliban forces).

Hamdi was a combatant (and an unlawful combatant under the Geneva Convention), but neither Milligan nor Hamdi wore uniforms of an official state or militia.

Milligan was “captured” on US soil, while Hamdi was captured overseas and brought to US soil.

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The ruling was a very limited victory for Hamdi

Hamdi’s habeas petition asked that the court, among other things, (1) appoint counsel for Hamdi; (2) order respondents to cease interrogating him; (3) declare that he is being held in violation of the Fifth and Fourteenth Amendments; (4) “[t]o the extent Respondents contest any material factual allegations in this Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of their allegations”; and that Hamdi be released.

The Court did not order his release, order that interrogation cease, nor appoint counsel, nor assert that other rights in the constitution be afforded (an adversarial jury trial, counsel, Miranda, or that he be charged as a criminal defendant, rather than held as an enemy combatant).

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The Jose Padilla CaseJose Padilla is a U.S. citizen who (allegedly) plotted to detonate a

"dirty bomb" and use natural gas to blow up apartment buildings in Washington D.C., New York and Florida.

Since his capture − not on the battlefields of Afghanistan or Iraq, but at Chicago's O'Hare Airport − he had not been charged with any crime before the Supreme Court decision in 2004.

Since June 2002, Padilla has been held incommunicado in a South Carolina military brig − indefinite detention, without access to a lawyer, until the government acceded to outside pressure in March 2004.

The government still argues, however, that it is not required to charge him with crimes, to provide him with attorneys, or to grant Geneva Convention protections, because he is an unlawful combatant – despite actually granting him some rights as a “criminal defendant”.

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Jose Padilla

Rumsfeld v. Padilla (2004)Respondent Padilla, a United States citizen, was brought to New York for

detention in federal criminal custody after federal agents apprehended him while executing a material witness warrant issued by a New York District Court (for the Southern District of New York) in connection with its grand jury investigation into the September 11, 2001, al Qaeda terrorist attacks.

While his motion to vacate the warrant was pending, the President issued an order to Secretary of Defense Rumsfeld designating Padilla an “enemy combatant” and directing that he be detained in military custody.

Padilla was later moved to a Navy brig in Charleston, S. C., where he has been held ever since. His counsel then filed in the Southern District of New York court a habeas petition under 28 U. S. C. §2241, which, as amended, alleged that Padilla’s military detention violates the Constitution, and named as respondents the President, Secretary Rumsfeld, and Melanie Marr, the brig’s commander.

The Government moved to dismiss, arguing, inter alia, that Commander Marr, as Padilla’s immediate custodian, was the only proper respondent, and that the District Court lacked jurisdiction over her (Marr) because she is located outside the Southern District (of New York).

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The District Court’s Ruling

The Southern District of New York court held that Secretary Rumsfeld’s personal involvement in Padilla’s military custody rendered him a proper respondent, and that the New York District Court could assert jurisdiction over the Secretary under New York’s long-arm statute, notwithstanding his absence from that District.

On the merits, the court accepted the Government’s contention that the President has authority as Commander in Chief to detain as enemy combatants citizens captured on American soil during a time of war.

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The Circuit Court of Appeals Ruling

The US Circuit Court for the Second Circuit agreed with the lower district court that Secretary Rumsfeld was a proper respondent and that the Southern District had jurisdiction over the Secretary under New York’s long-arm statute.

The appeals court reversed on the merits, however, holding that the President lacks authority to detain Padilla militarily as an enemy combatant.

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The Supreme Court Weighs InThe Supreme Court Held:

1. Because this [Supreme] Court answers the jurisdictional question in the negative (i.e., the New York district court lacks jurisdiction), it does not reach the question whether the President has authority to detain Padilla militarily.

2. The Southern District lacks jurisdiction over Padilla’s habeas petition.

3. Commander Marr is the only proper respondent to Padilla’s petition because she, not Secretary Rumsfeld, is Padilla’s custodian. The federal habeas statute straightforwardly provides that the proper respondent is “the person” having custody over the petitioner. Its consistent use of the definite article (“the”) indicates that there is generally only one proper respondent, and the custodian is “the person” with the ability to produce the prisoner’s body before the habeas reviewing court. The petitioner cannot name someone else just because Padilla’s physical confinement stems from a military order by the President.

Padilla should name his warden as respondent and file the petition in the district of his confinement. This rule serves the important purpose of preventing forum shopping by habeas petitioners.

Whether the president can name a US citizen captured on US soil as an “enemy combatant” was left as an unanswered question.

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The Detainee Treatment Act (2005)Section 1002

• (a) In General- No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

• (b) Applicability- Subsection (a) shall not apply with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

• (c) Construction- Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.

Detainee Treatment ActSection 1003

• (a) In General- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

• (b) Construction- Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

• (d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined- In this section, the term 'cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

DTA: Section 1004(a) Protection of United States Government Personnel- In any civil action or

criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted,

it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.

Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

Theoretical Questions

Is the Geneva Conventions, and other similar conventions, obsolete in a world of WMDs and a world of numerous terror organizations, not only willing, but actually desiring to use them?

Would the Geneva Conventions be sufficient if only they were enforced against the enemies of the west? How do you get our enemies to wear uniforms, not attack civilians, use civilians as human shields, etc., especially when they have no fear that the West will torture, attack civilians, etc.?

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