Litigating How We Fight

AuthorAshley S. Deeks
PositionAcademic Fellow at Columbia Law School
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 Qaedathe three January 2009 executive orders,
for instancewould have started to close that rift. 2
But something remarkableand surprisingly unremarked uponhas 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
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 actorsincluding detention, the use of
force during occupation, the transfer of detainees from one State to another and
the use of intelligence and intelligence agencieshas 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
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
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

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT