Litigating How We Fight

• Author: Ashley S. Deeks
• Position: Academic Fellow at Columbia Law School
• Pages: 427-461

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Litigating How We Fight

Ashley S. Deeks*

I. Introduction

Itis well-documented that the way the Bush administration chose to conduct its

conflict against al Qaeda caused asignificant rift between the United States and

European States. US policies that authorized the use ofrenditions, secret detention

facilities and harsh interrogation techniques created diplomatic tension between

the United States and many of its European allies, making it harder to focus on

other bilateral and multilateral issues and at times diminishing law enforcement

and intelligence cooperation. 1Many ofthese European reactions and decisions were

discretionary, taken by the political branches of European countries in response to

pressure from their electorates and human rights groups. One might reasonably

think, therefore, that some of the changes introduced by the Obama administra-

tion related to the conflict with al Qaeda—the three January 2009 executive orders,

for instance—would have started to close that rift. 2

But something remarkable—and surprisingly unremarked upon—has been

happening since 2001 that is both widening and securing the permanence of this

transatlantic divide. Courts on both sides of the Atlantic are deciding cases

brought by individuals who are contesting the way States have been fighting

armed conflicts with non-State actors (such as the Taliban and al Qaeda, as well as

*Academic Fellow at Columbia Law School. She previously served in the Office of the Legal

Adviser at the US Department of State. The views and characterizations expressed herein are

those of the author, and do not necessarily reflect those of the US Department of State or the US

government.

Litigating How We Fight

armed groups in Iraq). With the exception of individual claims related to the law-

fulness of detention at Guantanamo, the US government has won the vast major-

ity of its cases, with the courts often declining even to reach the merits of the

claim. 3In contrast, European States (with the United Kingdom leading the way)

have lost virtually every case on these issues that has come before their courts or

before the European Court of Human Rights (ECtHR). These cases are having a

systematic effect on States' decisions about how to conduct themselves in armed

conflict. It therefore is in the interests of policymakers and warfighters to under-

stand this trend.

Part II of this article examines the wide spectrum of cases in which States or

State officials have been sued for their alleged conduct related to non-international

armed conflicts. Part III assesses the real-world implications for the judicial deci-

sions in each area, not only for the specific litigants but also for government policy

and operations more generally. Part IV considers possible explanations for the diver-

gent outcomes of these cases and offers some thoughts about how States might try

to manage these developments in the future.

II. Suing States over How They Fight

Virtually every aspect of the way in which the United States and European States

are fighting conflicts against non-State actors—including detention, the use of

force during occupation, the transfer of detainees from one State to another and

the use of intelligence and intelligence agencies—has been challenged in court. 4

These cases stem primarily from the conflicts in Iraq and Afghanistan, though

some flow from the US conflict with al Qaeda outside of those theaters and allega-

tions about US activities, such as renditions, in the course of that latter conflict.

This Part examines four categories of claims asserting unlawful actions by States:

unlawful detention, unlawful treatment, unlawful transfers and illegality in intelli-

gence activities. Each section focuses first on US cases and then turns to other

States' cases, most often cases brought in the United Kingdom.

Claims of Unlawful Detention

US Cases

It is useful to sort into three general categories claims brought by detainees against

the United States alleging that they are being unlawfully detained. First, detainees

have challenged the executive branch's general authority to detain al Qaeda and

Taliban fighters under the laws of war. US courts have upheld the executive's au-

thority in this area. In Hamdi v. Rumsfeld, the Supreme Court upheld the legality of

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Ashley S. Peeks

detention of individuals engaged in hostilities against the United States in Afghani-

stan, while requiring the US government to provide the individual detainee in

question with aprocess by which to contest the factual basis for his detention.5

Likewise, in Hamdan v. Rumsfeld, the Supreme Court affirmed that the United

States was in an armed conflict with al Qaeda and did not question the legality of

Hamdan's detention as amember of al Qaeda (though it concluded that the military

commission before which the United States planned to try him was unlawful).6

Second, detainees have sought to have federal courts, not just the executive

branch, review the legality of their detentions. The United States, which has argued

against the extension of review to courts, has lost these cases. The chain of cases

that resulted in the Supreme Court's holding that constitutional habeas corpus

applies to detainees held at Guantanamo includes Rasul v. Bush and Boumediene

v. Bush.7

The Boumediene decision resulted in athird category of cases: detainees at

Guantanamo have brought habeas petitions challenging the specific factual bases

for their detentions. The United States is defending almost two hundred habeas

cases brought by those who remain at Guantanamo, and has lost anumber ofcases,

even as the courts continue to uphold the basic scope of the government's claimed

detention authority.8Much ink has been spilled about the unprecedented nature of

judicial review of the propriety of aperson's detention during an armed conflict.

Indeed, the fact that the federal district courts hearing these cases are struggling

with what rules to apply to this review illustrates the novel nature ofthe courts' role

in this type of decision making and the non-traditional nature of the armed

conflict. 9The outcomes of these cases have been mixed: the courts (to date) have

denied detainees the writ of habeas in about sixteen cases, and have granted it in

thirty-seven cases. 10 As aresult, the United States has transferred anumber of de-

tainees to their countries of nationality or other locations, and in other cases con-

tinues to seek homes for those ordered released.

In Boumediene, the Supreme Court evaluated three factors to determine the

reach of the writ of habeas in the wartime detention context: "(1) the citizenship

and status of the detainee and the adequacy of the process through which that sta-

tus determination was made; (2) the nature of the sites where apprehension and

then detention took place; and (3) the practical obstacles inherent in resolving the

prisoner's entitlement to the writ." 11

One question left unresolved by Boumediene was whether the right of habeas

corpus might extend to detainees held in US custody in locations other than

Guantanamo.

In May 2010, the D.C. Circuit answered this question in the negative in the

Maqaleh case, at least with regard to certain detentions in Afghanistan. 12 The court

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