Boston and the Dangerous Calls for “Enemy Combatant” Status

(Published in the Huffington Post,  Apr. 30, 2013, and The Truman Doctrine blog, Apr. 30, 2013)

The Obama Administration announced last week that it would prosecute Boston bomber Dzhokhar Tsarnaev in the Federal criminal justice system. This should have been unremarkable, but it came amidst a cacophony of voices demanding that Tzarnaev be classified and treated as an “enemy combatant.” There were calls to similarly classify the Christmas day bomber, the Times Square bomber, and several other terrorist suspects captured in the United States. Such claims have no legal validity, and are indeed dangerous.

The calls for “enemy combatant” status not only came from various so-called pundits on Fox News and the like, but also from more serious quarters. Senator Lindsey Graham criticized the administration, arguing that Tsarnaev should be classified as an “enemy combatant” under the law of armed conflict for the purposes of extracting intelligence.

Alberto Gonzales, former White House in the Bush administration stated in an interview last week that “nothing prevents the President from deciding: ‘This isn’t working, it’s not going the way we hoped it would go, so I’m pulling him out of the criminal justice system and I’m designating him an enemy combatant.'”

The implication behind these calls for “enemy combatant” classification, is that the suspects could thereby be interrogated without concerns over constitutional protections, they could be sent to Guantanamo Bay and held in indefinite detention, and perhaps prosecuted in a military commission (though Senator Graham, argued for a more selective application of the designation, explicitly ruling out prosecution of Tsarnaev in a military commission).

So, as a legal matter, how is that the President can simply designate a person as an “enemy combatant”, thus providing authority for more intensive interrogation, or indefinite detention? Those claiming this power inevitably refer to the law of armed conflict (LOAC), from which the concept of “combatant” is plucked.

LOAC (also known as international humanitarian law or IHL) is a specialized body of international law that governs the conduct of armed forces in armed conflict, both authorizing and qualifying the use of deadly force, and imposing limits to protect civilians and reduce human suffering in war. It is codified in such treaties as the Geneva Conventions, to which the United States is party.

As a specialized body of law, which displaces the operation of other legal regimes, LOAC only applies in the context of armed conflict. Moreover, LOAC itself provides the criteria for determining whether an armed conflict exists in any given situation, thus triggering the operation of the rest of the regime. In circumstances in which there is no armed conflict, LOAC does not operate, and domestic criminal and constitutional law, and international human rights law, continues to govern conduct in that context.

In order to make the claim that a person is a combatant under LOAC, therefore, one must first establish that the person is acting in the context of an armed conflict, such that LOAC applies at all. So how would that analysis apply to Boston? The United States is of course involved in an armed conflict against the Taliban in Afghanistan, but that has no relevance whatsoever to this incident in Boston.

The U.S. has made the additional claim it is in a “transnational” armed conflict with Al Qaeda and “associated forces”, which is separate from the conflict in Afghanistan, and extends beyond the “hot battlefield”. This claim is controversial, and has been disputed by the likes of the International Committee for the Red Cross, because sporadic violence perpetrated by terrorists does not satisfy the traditional criteria for determining the existence of an armed conflict, even when such attacks are perpetrated by more organized groups such as Al Qaeda, and they are directed against the institutions of a state for clear political purposes.

Even if one accepts entirely the claim that the U.S. is an armed conflict with Al Qaeda and associated forces, however, the Boston bombing cannot be brought within the ambit of that putative conflict. There is no evidence whatsoever that the Tsarnaev brothers were members of any group, far less one “associated” with Al Qaeda.

In the event that it turns out that they were acting under the direction of some radical Chechen terrorist organization, the incident still could not be classified as being part of the armed conflict with Al Qaeda. Nor could one such terrorist attack bring into existence a new armed conflict between the United States and the Chechen group behind the attack. In short, the Boston bombing was not part of any armed conflict, LOAC thus does not apply to the situation – and so Tsarnaev cannot, as a matter of law, be treated as a combatant within an armed conflict under LOAC.

Finally, even if LOAC did apply to this situation, there would be problems with the attempt to use the concept of “enemy combatant”. While “combatant” is a defined term under LOAC, “enemy combatant” and “unlawful enemy combatant” are not defined, and the terms were employed by the Bush administration in an attempt to create a category of persons who could be targeted and detained under principles of LOAC, but who did not enjoy any of the legal protections and privileges of either combatants or civilians under LOAC. The Israeli Supreme Court famously rejected claims that there is in LOAC a new “third” category of “unlawful enemy combatant” that may be targeted by states in an armed conflict with irregular terrorist organizations.

These claims that terrorist suspects can be classified as “enemy combatants”, in circumstances in which LOAC does not even apply, constitute an attempt to cherry pick principles from one legal regime, and apply them in an entirely different legal context in an effort to achieve a better policy result. It is like trying to apply a principle of family law to a commercial transaction or employment relationship – such as trying to sue one’s employer for alimony (a family law concept) after being fired, because doing so might, if it actually worked, lead to more money than severance pay (an employment law concept).

These claims that terrorist suspects are “enemy combatants” are not merely invalid and illegitimate as a matter of law, they are also dangerous. For one thing, we should appreciate the potential ramifications of employing principles of LOAC to a domestic situation. For instance, if someone who is not already in custody is classified a “combatant” under LOAC, then the armed forces of the state have the authority to kill the person at will, simply based on their status. “Jihad Jane” could have been taken out with a drone in her living room in Pennsylvania.

Of course, the supporters of these claims will argue that only “some aspects” of the principle would really apply. This only highlights the real danger that these claims pose to our legal system. The cynical and instrumentalist attempts to pluck legal principles from one regime and apply them in another, in isolation and in total disregard of the criteria that determine when and how those principles are to operate, perverts not only those particular legal regimes, but undermines the integrity of the entire legal system. Ultimately, it undermines respect for the rule of law itself. We should not permit this pernicious meme to flourish.