ICRC Annual Report 2013

Seattle-based Joseph McMillan, a partner at Perkins Coie in the Intellectual Property Litigation practice, was a member of the pro bono defense team for Salim Hamdan, who was Osama Bin Laden’s driver. He will have a key role to play as a judge in the Clara Barton International Humanitarian Competition, taking place March 12-15. Named after the founder of the American Red Cross, this simulation-based experiential legal competition will expose rising professionals to the practice of IHL and to real world challenges facing IHL practitioners during armed conflict.

The event brings together IHL, legal and military experts alongside leading practitioners in the government, military, international organizations and academia. In advance of the competition, McMillan addressed some of the complexities that surround IHL in a post-9/11 context.

Q: As an attorney specializing in commercial litigation and intellectual property for a major firm, you are also well-known for joining the legal team for a pro bono defense of Guantanamo Bay detainee, Salim Hamdan, who worked as a driver for Osama Bin Laden. In the wake of 9/11, the global war on terror seems to have blurred the parameters of the law of war. Could you outline how this particular case related to IHL and the Geneva Conventions?

A: The Hamdan case involved a number of basic tenets of IHL and the application and scope of the Geneva Conventions, which are the most important codification of the law of war (IHL). The Hamdan case forced us to examine how the global war on terror has had the unfortunate effect of blurring the parameters of war, including fundamental questions such as: What constitutes war as a legal matter?  What are the geographical boundaries of the war zone?  When did the war begin, and how do we determine that the state of war has ended?   It also raised the crucial question in IHL of who is a combatant, and how are combatants to be distinguished from non-combatants.

Prior to 9/11, isolated acts of violence—even as horrific as 9/11—carried out by a criminal, stateless group have not, properly interpreted under IHL, been deemed warfare.  But in the post 9/11 environment, the U.S. government position was that Hamdan was guilty of war crimes—conspiracy and providing material support for terrorism—dating back to 1996, when he went to Afghanistan.  The United States was not at war with Afghanistan at that time and no one recognized a global war on terror as being under way.  Our position was that, if we are at war, then we are obligated to abide by the Geneva Conventions, which offer protections to prisoners of war and others captured in the context of armed conflicts.

As for the charges against Hamdan, we litigated vigorously on the basis that neither conspiracy nor material support for terrorism are violations of law of war.  In short, working as a driver for Bin Laden wasn’t a war crime.  After a Supreme Court decision, a trial by military commission and a successful appeal to the DC Court of Appeals, the Hamdan case has left a lasting IHL legacy: even an alleged terrorist is protected by the Geneva Conventions in the unusual circumstances presented in Hamdan’s case, and he has the right to be heard in an American court.

Q: As you noted, despite the initial victory in the case of Hamdan v. Rumsfeld, your defense team had to return to a restructured military tribunal, under the military commission act of 2006 (MCA 2006), where the federal government renewed its charges against Hamdan.  The Military Commissions Act of 2006 allowed testimony gathered using “enhanced interrogation” techniques, though the revised MCA of 2009 alters that in some respects, requiring that statements be “voluntary” in order to be admitted.  Does this indicate a shift in the conversation that seeks to draw a distinction between torture and “enhanced interrogation” techniques? 

A: From a legal perspective, the Military Commissions Act of 2006 (MCA 2006), tried to establish a false distinction between torture and enhanced interrogation.  In my view, enhanced interrogation was and is a euphemism for torture.  At a minimum, there can be no reasonable doubt, in my view, that enhanced interrogation constituted cruel, inhumane, degrading and humiliating treatment, which is expressly prohibited by Common Article 3 of the Geneva Conventions. With the MCA of 2009, there are some improvements, but huge problems remain, including in the definition of combatants subject to the jurisdiction of military commissions.   Moreover, on evidentiary issues the statute is vague and a military judge will make a determination on what constitutes a “voluntary” statement.  How to determine what is truly “voluntary” is going to be litigated very heavily if the government moves forward with the military commission trials.

Meanwhile, the currency of the phrase “enhanced interrogation” is illustrative of the fact that the US public, the media, our political leadership and other institutions still have not come to grips with the fact that we were torturing people.  This is underscored by the protracted controversy over the 2014 release of a highly redacted executive summary of the Feinstein report from the Senate Intelligence Committee and the administration’s decision not to follow up and hold accountable those who were responsible. While the Obama administration wants to look forward, this was a very dark chapter in American history and we need to tackle it head on.

Q: Given that the nature of warfare has evolved significantly, what represents the most important challenges in recent years for upholding IHL? What areas are you finding to be most promising, or most troubling?

A: We are constantly seeing new challenges to the interpretation of IHL, such as the use of drone strikes against persons outside of any recognized war zone.  While Obama has spoken out against torture—and with the advent of this administration there was progress—in my opinion, we didn’t go far enough. We think that the worst abuses are behind us, such as black sites, but on legal issues, the executive branch continues to sideline the courts, preventing them from playing their traditional role in protecting individuals from the excesses of executive authority. The legal problems posed by the MCA of 2009 have yet to be fully addressed, and it remains to be seen how that new regime will be implemented.

Q: On the presidential campaign trail, ISIS has become highly topical and candidates have proposed various measures to address the crisis. What are the flashpoints that stand out in relation IHL?

A: First, when we are talking about law of war, we need to acknowledge that ISIS is a different animal from al Qaeda. The conflict against ISIS conforms more closely to the definition of war: it seeks to establish a caliphate, there is a functioning government, and ISIS has carved out control over a territory and has organized armed forces.  Yet in speaking about combating ISIS, the rhetoric of some politicians harkens back to the early post -9/11 era, when respect for our legal traditions – including an absolute rejection of torture – was jettisoned for political expediency, amid a great deal of fear mongering.  To exaggerate the threat posed by terrorism and to disregard IHL in this context will have unfortunate consequences.  We mustn’t forget that as Americans, we also look to IHL for the protection of American men and women in uniform.

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