Note: A version of this article appeared in the The Newspaper of the Western State University College of Law Student Bar Association, Vol. 14 No. 1, Feb. 28, 2016.
In the 2008 presidential campaign, then candidate Barack Obama ran on a promise to close detention facilities at Guantanamo Bay. Days after assuming presidency, now President Obama released Executive Order 13492 to effectuate his intent to close detention facilities at Guantanamo Bay; however, that measure was meet with sizeable resistance from a Democrat held Congress, and eventually brought to a halt. Seven years later, President Obama is, once again, pursuing the closure of detention facilities at Guantanamo Bay.
This effort seems more fruitless than the last time, though, with a Republican held Congress claiming the issue is dead on arrival. Shortly thereafter, Congress and the President became locked on whether the transfer of detainees from Guantanamo Bay to stateside is legal. But, the real legal questions that should be raised is whether the U.S. can hold these detainees indefinitely without trial, and whether U.S. courts—military tribunal or federal—is the proper venue to prosecute the detainees.
The Road to Guantanamo
Necessary in evaluating the aforesaid legal questions is understanding how the U.S. came to be in such a predicament of possibly holding terrorists, or suspected terrorists, indefinitely. Post 9/11, the U.S. responded with a flurry of actions. Of those actions, birthed the controversial U.S. Patriot Act, and, more importantly to the issues at hand, the Authorization of Use of Military Force.
Today, the Authorization of Use of Military Force is the main vehicle the U.S. uses to effectuate its “Global War on Terrorism.” Indeed, the act was written broadly to address all forms of terrorism, and the possible threat thereof, by “[a]uthoriz[ing] the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”
Thus, in operation, the Authorization of Use of Military Force is where the President derives the authority to: use drones across the world; drop bombs on suspected terrorist(s) in countries which the U.S. does not operate in; kill or capture terrorist(s) hiding in countries the U.S. does not operate in, such as Bin Laden in Pakistan; initiate and sustain U.S. campaigns in Iraq and Afghanistan, and; build detention centers to hold prisoners of war, like the detention center on Guantanamo Bay.
The Question of Indefinitely Holding Guantanamo Bay Detainees
Congress and the President are aligned in one aspect in regards to detainees at Guantanamo Bay: a determined will to hold the detainees at Guantanamo Bay indefinitely. Oddly, this undermines the purpose of having a trial by nullifying the core concept that a trial may find a detainee innocent. Thus, confusingly, Congress and the President are assuring indefinite detention, while also proclaiming their conviction that the detainees will be offered a fair trial.
In U.S. v. Ghailani, the administration used Ahmed Ghailani—a suspected terrorist and Guantanamo Bay detainee—as the test case of whether the federal courts are the proper venue to bring claims against suspected terrorists. The court in Ghailani acquitted him of 284 out of 285 counts, finding Ahmed Ghailani guilty of one count of conspiracy to destroy government buildings and property. Therefore, Ghailani offered mixed results with an acquittal on virtually every count, while still churning out the result the government wanted: a life sentence.
Since Ghailani, the administration continues to seek out federal courts as the proper venue to prosecute Guantanamo Bay detainees, or, instead, continue to hold them indefinitely. The latter question, however, has been met with substantial rebuke.
Treaties as the “Supreme Law of the Land”
The U.S. is bound by treaties. To be sure, Article VI of the constitution provides, in pertinent part: “This Constitution, and the laws of the United States … and all treaties made … shall be the supreme law of the land; and the judges in every state shall be bound thereby …” The unambiguous text of the U.S. Constitution offers a plain reading that treaties are considered binding on the U.S.
Moreover, a congressional report to the Senate Committee on Foreign Relations came to the same conclusion stating, “by virtue of the supremacy clause of the Constitution (Article VI), a treaty … may have a status as the ‘Supreme Law of the Land’ along with federal statutes and the Constitution itself.” In explaining their conclusion, the congressional report pointed to the case Foster v. Neilson, where the U.S. Supreme Court reiterated that the “…constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature.”
Therefore, combining the plain reading of article VI of the U.S. Constitution, and the overwhelming evidence that the aforesaid congressional report found, there can be no question as to whether treaties are binding on the U.S., subject to very few exceptions.
Geneva Conventions Dictate the Control of Prisoners of War
Because treaties are binding on the U.S., the question of whether the U.S. can hold these detainees indefinitely is squarely answered by the Geneva Conventions. To be clear, the U.S. is not in violation of the Geneva Conventions should they decide to transfer detainees at Guantanamo Bay, notwithstanding few limitations (i.e. safety of the prisoner). However, what remains an open question is whether the U.S. has, or may, end up violating the Geneva Conventions through indefinitely holding Guantanamo Bay detainees.
Here, the Third Geneva Convention intended to be the successor to the London Agreement of 1945, as well as prevent future incidences of war crimes. The London Agreement of 1945 birthed the Charter of the International Military Tribunal. Consequently, this charter was used to execute the Nuremberg Trials, and eventually became the framework for future international prosecutions. In sum, the Third Geneva Convention sought to address the capture and subsequent handling of prisoners of war, to include prosecution.
The Geneva Convention is a comprehensive, four-part document that attempts to address virtually every instance that could arise between nation states, organizations, or persons. As such, the rules pertaining to enemy combatants, who become prisoners, apply to “all cases of declared war or of any other armed conflict …” Thus, this rule would be holding, because, even though the U.S. has not declared war, the U.S. is engaged in armed conflict through the passing of the Authorization of Use of Military Force.
Moreover, the Geneva Convention would be holding because the provision does not turn on whether the state of war is recognized by all parties. Rather, the Geneva Convention is triggered when one nation, organization, or persons declares war on another nation, organization, or persons and is independent of whether the “state of war is not recognized by one of them.” Terrorist organizations, like al-Qaeda and the Islamic State, have declared war on the U.S. That being the case, this declaration would trigger the Geneva Convention, and, thus, bind the U.S. to the rules thereof.
Nevertheless, the U.S. remains determined to hold terrorists, or suspected terrorists indefinitely, with or without trial. However, this stance is contradictory to two independent guarantees of the Geneva Convention: (1) prisoners of war “may be prosecuted in any member country’s own courts,” or “hand such person(s) over for trial to another” member country, and; (2) “prisoners of war shall be released and repatriated without delay after the cessation of hostilities.”
Both of the aforesaid guarantees are aimed to deter, and otherwise defeat, a country, organization, or person from indefinitely holding prisoners of war—in this case terrorists, or suspected terrorists, detained at Guantanamo Bay—with or without trial. In the former guarantee, the holding country can choose between prosecuting, or turning the prisoner over for another member country to prosecute. Meanwhile, the latter acts as a statute of limitations by terminating a prisoner’s detention at the conclusion of hostilities, if the detaining nation intends not to prosecute.
For example, as the Allies began to gain momentum in World War II with the U.S. entry into the war, a sudden influx in Axis prisoners occurred. To accommodate the influx, the Allies built detention facilities to house prisoners of war. The Allies never had any intention to prosecute the vast majority of the prisoners of war. Indeed, prosecution was reserved for major war criminals. Consequently, at the conclusion of World War II, prisoners were released from captivity without contention at the end of World War II.
Currently, though, the U.S. is determined to hold terrorists, or suspected terrorists, indefinitely, with or without trial, in contradiction to the rule of law of the Geneva Convention. Moreover, Article VI of the U.S. Constitution makes treaties the “supreme law of the land,” consequently giving said treaties the same binding effect as “equivalent to an act of the legislature.”
Proper Courts to Prosecute Suspected Terrorists: U.S. or International Courts
Turning to the second question posed: whether U.S. courts—military tribunal, federal, or otherwise—are the proper venue to prosecute terrorists, or suspected terrorists. This question is not so much a question of law, as much as it is a question of good policy.
Here, the Geneva Convention makes clear that prisoners of war “may be prosecuted in any member country’s own courts,” or “hand such person(s) over for trial to another” member country to prosecute. Therefore, the U.S. has two options: (1) prosecute detainees, or (2) turn them over to another member country to prosecute. The latter includes the option of an international prosecution, such as the ones conducted at the Nuremberg Trials.
However, the U.S.’s efforts to prosecute in their own courts have become increasingly frustrated. Leaders among nations part of the Geneva Convention have voiced their concern with the level of fairness in U.S. military tribunals. These concerns have materialized to be legitimate. U.S. military tribunals have the advantage of operating in the shadows. Further, U.S. military tribunals do not follow standard rules of evidence that would otherwise be afforded to a defendant in a regular U.S. court. Put another way, U.S. Military tribunals allow evidence that would normally be inadmissible.
Some of these concerns were similar concerns about the rule of law applied during the Nuremberg Trials, and other international military tribunals. It is true that U.S. military tribunals do not follow standard rules of evidence; however, international tribunals have afforded prosecution under these same relaxed evidence standards. The Charter for International Military Tribunals used during the Nuremberg Trials afforded this relaxed standard.
Since the Nuremberg Trials, little has been done to rectify another abuse of evidence standards. Many prosecutors at the Nuremberg Trials considered the rules of the international military tribunals to be flawed. Furthermore, many American legal scholars and justices voiced their objections to the evidence standards used at the Nuremberg Trials. Most notably, Chief Justice Harlan Stone of the U.S. Supreme Court at the time considered the trials a “sanctimonious fraud.” Nevertheless, the Geneva Convention is eerily silent on the topic of evidence, in turn jeopardizing the guarantee of a fair trial for a prisoner of war.
In regards to federal courts, there is no question that prisoners of war can be tried in U.S. civil courts. But, Ghailani proved that the strict standards of evidence in American law will likely have mixed results. Still the U.S. is left with the question of whether prosecution in U.S. courts is considered just.
That answer is, probably, no. The U.S. repeatedly makes claims that the detention facilities at Guantanamo Bay offer a talking point for terrorists to recruit other members to their cause. Additionally, the government argues that hosting the prosecutions of terrorists, or suspected terrorists, in federal courts would help combat terrorists’ recruiting tactics. In other words, the Obama administration speciously argues that the closing of Guantanamo Bay, in combination with federal hearings, would combat terrorists’ recruiting tactics.
This logic is plainly flawed. There is probably no better talking point for terrorists to exploit in recruiting other than that the U.S. is the sole entity detaining and prosecuting terrorists, or suspected terrorists. Indeed, the best way to sanitize terrorists’ “talking points” in regards to detention and prosecution, would be to host international detentions and prosecutions. Thus, to combat terrorists’ recruiting tactics, the U.S. should enlist the effort of every member nation of the Geneva Convention to detain and prosecute terrorists, or suspected terrorists, on the international stage.
Here, the detention of terrorists, or suspected terrorists, would be at an international detention facility. Additionally, the prosecution of terrorists, or suspected terrorists, would be held at an international court, or international military tribunal. Moreover, the international community is up to the task. The United Nations instituted a comprehensive plan to counter terrorism back in 2006. Furthermore, the international community has yet to voice objections to detaining or prosecuting terrorist, or suspected terrorists, on the international stage.
Thus, the proper venue to detain and prosecute terrorists, or suspected terrorists, in the international stage where all member nations of the Geneva Convention participate. In so doing, the U.S. would be relieved of the self-imposed burden of detaining and prosecuting terrorists, or suspected terrorists. Further, detaining and prosecuting terrorists, or suspected terrorist, on the international stage will help combat terrorists’ recruiting tactics. Lastly, it further removes the question of whether Guantanamo Bay detainees are, or will, receive fair trials under U.S. military tribunals.
In the end, the U.S. must choose between whether to prosecute terrorists, or suspected terrorists, detained at Guantanamo Bay, or be backed into the corner of having to release the detainees, if and when, hostilities cease. Surely, the latter is the looming question, as the government has repeatedly assured the public that the wars in Iraq and Afghanistan will end.
Even if the campaigns in Iraq and Afghanistan do end, though, the U.S. could continue to engage in a “Global War on Terrorism” through the broad language conferred by the Authorization of Use of Military Force. Combining the broad language of the Authorization of Use of Military Force and the Geneva Convention’s equally broad classification of “any other armed conflict,” the U.S. may be able to continue to hold detainees indefinitely, with or without trial.
Certainly, though, the aforesaid position complicates the U.S.’s goal of ending the fight on terrorism, as well as frustrates its efforts to combat the effectiveness of terrorists’ recruiting tactics. Thus, without action, the U.S. will see itself squarely in violation of the Geneva Conventions, in addition to defeating its own goals to counter-terrorism.
In the absence of action, the U.S. will begin to tread in murky waters likely to raise eyebrows, and substantial rebuke from the international community. Moreover, indefinitely holding terrorists, or suspected terrorists, will continue to offer substantial ammunition to the terrorists’ recruitment efforts, thereby building a larger terrorism effort against the U.S., and its allies. Further, the U.S. has created a self-imposed burden to detain and prosecute terrorists, or suspected terrorists, putting the U.S. in the spotlight for international rebuke, and the crosshairs of terrorist organizations.
Therefore, enlisting the effort of the international community to detain and prosecute terrorists, or suspected terrorists, provides a handful of substantial benefits: (1) it relieves the U.S. of its self-imposed burden of being the sole actor in detaining and prosecuting terrorists, or suspected terrorists; (2) hosting detentions and prosecutions at the international stage removes the question of fairness in U.S. military tribunals; (3) offers a unified front against terrorism (as it is supposed to be), and; (4) dilutes the U.S.’s role in detaining and prosecuting terrorists, or suspected terrorists, thereby furthering the efforts to frustrate the effectiveness of terrorists’ recruiting tactics.
 Exec. Order No. 13492 (Jan. 22, 2009), https://www.gpo.gov/fdsys/pkg/FR-2009-01-27/pdf/E9-1893.pdf.
 Meanie Garunay, President Obama Presents the Plan to Close Guantanamo: This is About Closing a Chapter in History, White House (Feb. 23, 2016), https://www.whitehouse.gov/blog/2016/02/23/president-obamas-plan-close-guantanamo-about-closing-chapter-history. See also http://www.defense.gov/Portals/1/Documents/pubs/GTMO_Closure_Plan_0216.pdf.
 S.J. Res. 23, 107th Cong. (2001) (enacted), available at https://www.congress.gov/bill/107th-congress/senate-joint-resolution/23.
 U.S. v. Ghailani, 733 F.3d 29 (2d Cir. 2013).
 Benjamin Weiser, Detainee Acquitted on Most Counts in ’98 Bombings, New York Times (Nov. 17, 2010), http://www.nytimes.com/2010/11/18/nyregion/18ghailani.html?_r=1.
 Chad Bray, Embassy Bomber Gets Life in Prison, Wall Street Journal (Jan. 26, 2011), http://www.wsj.com/articles/SB10001424052748704698004576104073143860398.
 U.S. Const. art. VI, cl. 2, available at https://www.law.cornell.edu/constitution/articlevi.
 Staff of S. Comm. on Foreign Relations, 106th Cong., Treaties and Other Int’l Agreements: The Role of the U.S. Senate, 72 (Comm. Print 2001), available at http://www.au.af.mil/au/awc/awcgate/congress/treaties_senate_role.pdf.
 Ibid. at 72-73 citing Foster v. Neilson, 27 U.S. 314 (1829).
 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135, available at http://cil.nus.edu.sg/1949/1949-geneva-convention-iii-relative-to-the-treatment-of-prisoners-of-war/.
 London Agreement of Aug. 8th, 1945, available at http://avalon.law.yale.edu/imt/imtchart.asp; see also Charter of the International Military Tribunal, Aug. 8th, 1945, available at http://avalon.law.yale.edu/imt/imtconst.asp.
 1949 Geneva Convention (III), art. II.
 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, art. 49, Aug. 12, 1949, 75 U.N.T.S. 31, available at http://cil.nus.edu.sg/1949/1949-geneva-convention-i-for-the-amelioration-of-the-condition-of-the-wounded-and-sick-in-armed-forces-in-the-field/.
 1949 Geneva Convention (III), art. 118.
 Staff of S. Comm. on Foreign Relations, 106th Cong., Treaties and Other Int’l Agreements: The Role of the U.S. Senate, 72-73 (Comm. Print 2001), citing Foster v. Neilson, 27 U.S. 314 (1829).
 1949 Geneva Convention (I), art. 49.
 Charter of the International Military Tribunal, art. 19, Aug. 8th, 1945, available at http://avalon.law.yale.edu/imt/imtconst.asp.
 Mark Weber, The Nuremberg Trials and the Holocaust, Institute for Historical Review (last visited on Feb. 26, 2016), http://www.ihr.org/jhr/v12/v12p167_Webera.html.
 Nuremberg Trials, History.com (2010), http://www.history.com/topics/world-war-ii/nuremberg-trials.
 1949 Geneva Convention (III), art. 99-109. Note: In that same convention, articles 82-98 speak only to offenses committed by a prisoner of war during captivity. Thus, those articles concern the relations between the prisoners of war and the authorities holding them, and not to the war crimes committed, or the proceedings resulting thereof.
 U.S. v. Ghailani, 733 F.3d 29 (2d Cir. 2013).
 U.N. Res. 60th Sess., 99th plen. mtg., U.N. Doc. A/Res/60/288 (Sept. 8, 2006), available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/N05/504/88/PDF/N0550488.pdf?OpenElement.