Since the September 11 attacks, federal judges have out of necessity plunged into the real-life facts of terrorism’s twilight world of training camps, safe houses, and dry runs, as they review the Guantanamo dossiers of al Qaeda and Taliban suspects captured in Afghanistan and elsewhere. Even in the view of hard-bitten intelligence types, the federal courts reviewing the habeas corpus challenges of Guantanamo prisoners stemming from the war in Afghanistan and al Qaeda’s terror attacks have done a remarkable job in measuring the dossier evidence of each capture against what can reasonably be expected during a war in the shadows.
But no routine answers may be possible in a conflict whose shape keeps morphing. Lately, the Gulf of Aden has become a new hotspot, endangering international shipping’s route to the Suez Canal in a militant vise between the radicals of Yemen and the radicals of Somalia. The year before September 11, a U.S. warship was bombed and nearly sunk by a skiff in a Yemeni harbor. Al Qaeda’s new juvenile ideologue, an American named Anwar al-Awlaki, has lately taken up residence in the hills of northern Yemen, answerable only to visiting drones. Much of Somalia’s territory is in the thrall of the radical Islamic leaders of the al Shabab militia, reducing the formal government of Somalia to a footnote in Mogadishu, even with the presence of African Union peacekeepers.
International real estate values in the Gulf of Aden have also been diminished by the fact that for the last six years, the waterway has been crowded with pirate crews who specialize in raiding container vessels, oil tankers, and yachts, seizing multi-million cargos and holding hostage the crews and passengers. Collaboration between the radicals of al Shabab and the seaside pirates is not a pleasant prospect, and same is true of Islamist cooperation across the Aden Gulf.
For that reason, one should be thrilled by the successful capture of any al Shabab leader who is cooperating with al Qaeda. This includes the mala fides of a suspect named Ahmed Abdulkadir Warsame, who was seized last April from a fishing skiff bobbing in the waters between Yemen and Somalia. The capture was made by the U.S.S. Boxer, an amphibious assault ship with a brig and an attitude. Mr. Warsame was held on board the ship for the next two months while he was interrogated by U.S. intelligence specialists flown in for the purpose. This is the kind of unconventional operation that counter-terrorism specialists such as John Brennan can brag about.
But there is one problem. With rope work worthy of any cowpoke, the Obama Administration has captured itself in its own legal lasso.
President Obama came into office pledging that his view of the law would be different from George W. Bush and that he would close the prison facilities at Guantanamo within a year. But governing is always harder than the sound bites of a campaign trail. And though this is no surprise to anyone with radar, there appear to be dangerous leaders of al Qaeda and its affiliates still parked at Guantanamo, against whom there is not sufficient evidence for a criminal conviction by proof beyond a reasonable doubt, either under the restrictive common law rules of evidence in a federal district court or even in a military commission. And where intelligence was first obtained from a prisoner under unconventional circumstances, the path to trial is even murkier. Thus, President Obama may—like it or not—end up far closer to the policies of George W. Bush than some of his supporters will like.
Yet the difficulty in the handling of Ahmed Abdulkadir Warsame is more basic. The Supreme Court ruled in 2004 that even in the fight against al Qaeda, one basic feature of the 1949 Geneva Conventions has to be observed: namely, the guarantees of common Article 3. This requires “humane” treatment and the avoidance of “outrages upon personal dignity” including “degrading treatment” as well as trials that include “all the judicial guarantees which are recognized as indispensable by civilized peoples.” In ruling that the military commissions originally constituted by George Bush did not pass this test, the Supreme Court adopted a rule of soft incorporation—namely, that the most vital norms recognized elsewhere in the Geneva Conventions may be “read into” common Article 3.
Well, there is one rule that the White House and the Defense Department seem to have overlooked in this inconvenient instance. It is the rule that flatly forbids holding prisoners captured in war in any locale other than “on land”—a rule with a history that stems from the American Revolution itself, when rebellious Americans caught by the British were interned in the death-dealing conditions of British prison ships hulking in New York harbor.
While the healthy conditions of the U.S.S Boxer might seem the exception that a situational rule should permit, the norm in the Third Geneva Convention is absolute on its face—namely, as Article 22 states, “prisoners of war may be interned only in premises located on land.” President Obama could now be ready to admit that al Qaeda combatants are not, as such, fully privileged prisoners of war, but rather unlawful combatants. Nonetheless, the avoidance of incarceration at sea is part of the fundamental protections of Geneva, rather than its privileges.
The canonical commentary on the Geneva Conventions published in 1960, summarizing the evolution of the treaty provisions, is plain spoken. This long-standing commentary by Jean Pictet, who was the legal director of the International Committee of the Red Cross, states that “the place of internment of prisoners of war may be either in an urban area or in the country, but it must be located on land. The use of boats, rafts or ‘pontoons’ is therefore absolutely forbidden.” It is more than possible that some American judges would conclude that the extended use of floating prisons (for any longer than is required for a transfer) is inconsistent with the standards of “humane” treatment required by common Article 3—even in the war against al Qaeda, and even if the suspect turns out to be an unlawful combatant.
Thus, it’s hard to see why it was adjudged as convenient to hold the al Shabab leader as a shipboard prisoner for more than two months, with intelligence officials flying in and flying out, rather than transporting him to Guantanamo. Of course, there are no defense lawyers with writs of habeas corpus congregating on shipboard, and the courts have had little occasion (at least for the last 150 years) to address a writ of habeas corpus to a ship’s captain. But by the logic of the decision on Guantanamo habeas corpus, a military ship that is not engaged in combat might—if the lingering presence of a prisoner were known—also be the subject of demands for presentment in a federal court.
It is thus another occasion when the pledge to live by the letter of the law has tripped up the Obama administration. And in this case, it’s ironic that the unyielding presidential pledge to shut down Guantanamo may have been the tripwire for failing another test of humanitarian law.
But then, Davy Jones has not been this Administration’s strong suit. Of all people on earth, Osama bin Laden deserves to sleep with the fishes. But the Administration did not stop to explain why the provisions of Article 20 of the Second Geneva Convention (requiring ordinary burial “[i]f dead persons are landed”) and Article 17 of the First Geneva Convention (requiring a marked grave that may be found) also did not apply. There are strong reasons of state and prudence that might tempt one to vary from these texts. But this requires a pragmatism of the very sort that President Obama has professed to eschew in so many other settings.