Terrorism at Home and Unlawful Enemy Combatants
During morning rush hour in New York City, 27 year old Bangladeshi-American Akayed Ullah detonated a homemade pipe bomb he was wearing at the New York Port Authority Bus Terminal near Times Square. Three people were injured, including the suspected terrorist, a lawful permanent resident who pledged allegiance to the Islamic State and is reported to have been upset at recent Israeli actions in Gaza. The attempted attack comes in the heels of a more lethal Oct. 31 truck attack in New York City that left 8 people dead. Investigators allege Sayfullo Habibullaevic Saipov — a 29-year old lawful permanent resident and Uzbekistan native — was responsible for the lone wolf attack, inspired, if not directed, by the Islamic State. The attack follows an Islamic State “playbook” of using civilian vehicles to target innocent civilians. Saipov told investigators on Nov. 2 that he “felt good about what he had done,” according to a federal complaint. He even asked if he could have an Islamic State flag in his hospital room. Both attacks were despicable criminal acts, and almost certainly qualify as terrorism under federal law.
Within hours of each attack, lawmakers called on President Donald Trump to classify each attacker as an “enemy combatant,” with Sen. Linsdsey Graham leading the charge both times to get Trump to send these men to Guantanamo Bay for detention based on the law of armed conflict. After initially embracing the concept, Trump decided to defer to the Department of Justice and allow Saipov to be charged criminally for violations of federal law to be adjudicated in a regularly constituted Article III (civilian) court. Now, the commander-in-chief’s tweets regarding Saipov’s future may actually jeopardize the federal case against the attacker. The president followed the Justice Department precedent with Ullah, as he was charged in U.S. District Court on December 12 with providing material support to terrorism and other terrorism related offenses.
Steering these cases to the Department of Justice, rather than classifying the accused as enemy combatants, is the correct course of action that should be followed in future cases. While the concept of “unlawful enemy combatants” enjoys substantial legal authority under the laws of armed conflict, routing terrorism suspects into wartime detention is unnecessary. The federal courts are open and functioning well with regard to terrorism prosecutions. Prosecution in regular Article III courts is a low risk proposition that vindicates the rule of law and allows America to claim the moral high ground in the struggle against terrorism. Moreover, interrogating a suspect while classifying him as an “unlawful combatant” yields no advantages over questioning him when holding him as an ordinary criminal law detainee, even when affording him rights under Miranda.
Traditionally, individuals who commit harmful uses of force or military-type activities in contravention of U.S. interests or against U.S. persons, including against American troops on the battlefield, generally have been divided into two categories: lawful combatants (members of the armed forces of a state and other militias meeting certain legal conditions qualifying them as combatants) or criminal actors. For example, Russian soldiers in its army, Chinese sailors in its navy, Iranian uniformed missile launch operators, Canadian uniformed lawyers, Brazilian American uniformed special operations commandos, German fighter pilots, and Royal Navy submariners all fall into the category of lawful combatants because they meet four criteria specified in the Third Geneva Convention: being commanded by a person responsible for his subordinates, i.e. being in a military unit; having a fixed distinctive sign recognizable at a distance (uniforms with distinct, mostly standardized markings); carrying arms openly; and conducting operations in accordance with the laws and customs of war.
The most important consequences of being classified as a lawful combatant mainly deal with their rights as soldiers at war. First, where a state of international armed conflict exists, and in some cases of non-international armed conflict, the individual combatant may be targeted by enemy forces without provocation, based on his or her status as a combatant alone. If captured, the individual enjoys combatant immunity — that is, he must be treated as a prisoner of war within the meaning of the Fourth Geneva Convention. He may not be tried by foreign courts for his wartime actions, including killing, maiming and destruction of property, assuming his actions were otherwise consistent with the law of armed conflict. This is the traditional foundational principle on which state-on-state warfare is grounded in terms of the rights and responsibilities of individual soldiers.
If an individual conducts a warlike act against an American and does not fit these criteria for a lawful combatant, he or she was usually considered a criminal suspect, and the domestic courts had jurisdiction. For example, members of the violent Puerto Rican separatist group Fuerzas Armadas de Liberación Nactional Puertorriqueña were convicted in federal court of terrorist acts in the 1970s and 80s, as were members of the May 19 Communist Organization and the Black Liberation Army. Both sets of attacks used violence to advance political agendas and might have been considered unlawful combatants, yet all the accused were tried in U.S. federal courts. Similarly, a Russian spy in the United States committing espionage would be subject to the jurisdiction of U.S. courts. In such a circumstance, the spy would be considered an unprivileged belligerent, and would be afforded no rights under the Geneva Conventions provided to a lawful combatant. He would be treated as an ordinary criminal conducting an extraordinary act.
Over time, “unlawful enemy combatants” has emerged as a third category. This legal classification includes actors who do not fit the legal definition of a lawful combatant, and whose warlike activities exceed those which a society is willing to allow for trial civilian courts — namely, acts of violent terrorism and other “warlike” acts targeting both military personnel and civilian noncombatants. The concept finds its principal U.S. judicial legacy in the case of Ex parte Quirin. This 1942 U.S. Supreme Court case concerned eight German saboteurs captured after their infiltration into the United States, where they planned to attack war industries and weaken America’s ability to mobilize its forces to fight in Europe. They were tried as unlawful enemy combatants by a military tribunal. The Court upheld the government’s decision to do so. Its statement as to why is useful for our purposes and worth quoting at length:
[T]he law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
The language in Ex Parte Quirin set the stage for the rejuvenation of the third category of unlawful combatants and the reinvigoration of the use of military detention and military commissions to address their warlike conduct. Based on this language, on November 13, 2001, President George W. Bush issued a military order pertaining to the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” The order was grounded in his inherent authority under Article II of the Constitution, as well as the 2001 Authorization for the Use of Military Force (AUMF), which focused tightly on the 9/11 perpetrators and groups supporting them. It recognized a category of persons not entitled to prisoner-of-war status or combatant immunity, but also removed them from the jurisdiction of the U.S. courts for purposes of criminal trials. The military order permitted indefinite detention and, in certain cases where trial is appropriate, trial by military commission. The military commission trial authority has evolved beyond the initial military order over a series of court cases and Congressional acts beyond the scope of this paper, but the baseline for who may be detained as an unlawful enemy combatant and tried for their actions in violation of the laws of war has remained relatively constant.
The authority of the U.S. government to continue indefinite detentions of al-Qaeda and al-Qaeda-associated detainees grounded on the AUMF has been questioned as years pass since 9/11. Indeed, the AUMF itself is now less relevant to current operations globally against terrorists and terrorist organizations, as it was limited in its scope by its very terms. As a result, the authority to add new unlawful enemy combatants to the detention population becomes more tenuous. Theoretically, when the conflict terminates, so does the authority to detain using the AUMF as authority. In fact, some writers have argued the AUMF has already expired grounded on a conditions-based analysis — along with its attendant detention authority. Moreover, the link between Ullah and Saipov and the detention authority under the AUMF is tenuous, at best. Neither suspect is a member of the 9/11 conspiracy (they were children when the attacks took place), al-Qaeda, or an al-Qaeda-affiliated group.
While the president certainly has the authority under international law to declare both Ullah and Saipov as enemy combatants, the policy reasons to do so are opaque at best. To classify them, and future attackers, as unlawful enemy combatants, permitting either indefinite “wartime” detention without trial, or detention and trial by military commission, is unwarranted when there is such a capable apparatus at the president’s fingertips to try them as terrorist criminals. Expertise in prosecuting terrorism cases is not in short supply at the Department of Justice, particularly in the U.S. Attorney’s Office for the Southern District of New York, the proper venue for prosecuting Saipov. The office boasts convictions against four men convicted of supporting the 1993 World Trade Center bombing, along with the mastermind, Ramzi Yousef, four men convicted of the East African embassy bombings, and al-Qaeda spokesman Sulaiman Abu Ghaith, among others. Terrorism prosecutions by the Department of Justice are almost always concluded within a couple years, where the 9/11 codefendants were charged for trial by military commission on May 31, 2011, almost ten years after the offenses were committed. Those cases have been mired in pretrial litigation for over six years, with no realistic trial date in the foreseeable future.
There is simply no need to classify Ullah as an enemy combatant for interrogation, or to send an accused such as Saipov to Guantanamo Bay for wartime detention. “Ordinary” criminal interrogation is likely sufficient to obtain useful information and there are capable prosecutors in the United States with an extraordinary track record in terrorism prosecutions. There is no public evidence either attack was directed by any transnational terrorist group, and both Saipov and Ullah were in the United States as lawful permanent residents — a very different situation from the 9/11 case and the facts of Ex Parte Quirin. Moreover, affording a terrorist a criminal status and trial, with all the rights attendant, is a powerful statement that America believes in the rule of law and trusts its law enforcement agents, prosecutors and courts. Prosecution puts the terrorist’s horrific actions on public display not only for the jury to adjudicate, but for all of humanity. If these alleged terrorists are convicted, they will be imprisoned in the U.S. federal prison system, like all other terrorism suspects convicted of their crimes in American courts. If they are acquitted, they could either be deported or then detained as unlawful enemy combatants. Classifying either defendant, or others similarly situated, as an unlawful combatant is unnecessary so long as the Department of Justice continues to hit home runs in terrorism prosecutions.
Butch Bracknell is a graduate of the Francis King Carey School of Law at the University of Maryland (JD) and Harvard Law School (LLM). He was a career officer in the U.S. Marine Corps and is a member of the Truman National Security Project’s Defense Counsel and the Carnegie Institute’s Council for Ethics in International Affairs.