Rule of Law

The U.S. Supreme Court will have two new faces when it next convenes. This shake-up occurs at a time when the Court’s decisions could have a substantial impact on issues of foreign policy and national security. Already the court has heard several cases that affect the "war on terror": First in June 2004, the Court ruled in Rasul v. Bush that foreign nationals kept at the Guantanamo Bay detention center were entitled to challenge their captivity in U.S. courts. Then in Hamdi v. Rumsfeld, it held the same was true for U.S. citizens labeled "enemy combatants." David Golove, professor of law at New York University, and Steven C. Welsh, research analyst at the Center for Defense Information, spoke with cfr.org about the potential international implications of the Court’s decisions with its new mix of justices. What are the major foreign policy and national security related cases the Supreme Court is likely to consider in the near future? Golove: Two summers ago the Court decided three major "war on terror" cases: the [Shafiq] Rasul case [v. President Bush], the [Yaser Esam] Hamdi case [v. Secretary of Defense Donald Rumsfeld], and the [Jose] Padilla case [on terror-related charges]. There’s continuing litigation in connection with all but the Hamdi case; he was released after the Supreme Court rendered its decision. We also currently have in the Supreme Court the [Salim Ahmed] Hamdan case, which involves a war crimes charge before a military commission in Guantanamo. That case will presumably be decided by the Court, though in light of recent legislation there are questions over whether the Court still has jurisdiction or whether it’s been stripped of its jurisdiction by Congress. Interestingly, [Chief] Justice [John] Roberts ruled on this case in a lower appeals court and would presumably not sit on it again. The Padilla case continues to be litigated. Government sought to avoid the Court’s deciding the case by announcing it was going to transfer Padilla to civil authorities for prosecution in Miami. Whether or not the Court will consider the case moot now is unclear. Those are not the only cases involving national security and foreign policy the Court is likely to hear. It’s conceivable the surveillance case discussed in the press in the last couple of weeks may come before the Court. People who have been convicted in federal court [on] terrorism-related charges are now inquiring whether...the search warrants the government used to collect evidence against them were based upon evidence which had been obtained in potentially illegal searches in connection with the eavesdropping program. Welsh: It’s one thing to look at what the Supreme Court is taking up or might take up; it’s another thing to look at what the confirmation hearing gets into, even if those things never turn into actual litigation. The confirmation hearings, even though they’re to confirm a nominee for a position, are before a political body that could use the hearing as a template for legal debate and policy debate and even political debate. One broad issue is executive power. It was brought up during the Roberts confirmation hearings in a lot of different ways, in terms of the ability to go to war or stop a war. Right now we’re getting into executive power issues relating to activities the administration deems incidental to national security and defending the nation, such as the warrantless surveillance of international communications. That’s one area that is probably going to be explored and in the confirmation hearings, but the extent to which it works its way into litigation is unclear. Some other areas that the court has dealt with obviously involve detainee operations through series of cases that produced what Chairman [Arlen] Specter [R-PA] called "a crazy quilt of opinions"—majority, plurality, dissenting, and concurring, and so on—relating to the treatment of detainees in different circumstances, including Guantanamo Bay. Another other big area is civil liberties since 9/11. One thing I would question and think needs to be explored more is that there should not be a false dichotomy that develops between law and security. Sometimes there’s a suggestion that there needs to be a trade-off, but that’s not necessarily the case. Obeying the law does not mean that one is undermining security. For example, in the treatment of detainees being interrogated, it turns out that unlawful behavior also produces bad information, which defeats the purpose of intelligence interrogation. Are there any recent, close decisions with international implications that might have gone the other way under the newly configured court? Golove: It’s difficult to predict how the new justices—assuming [nominee Judge Samuel] Alito is confirmed—would have voted. In the Rasul case, the decision was six to three. [Former Chief Justice William] Rehnquist was in the dissent and [former Justice Sandra Day] O’Connor was with the majority. So you might say the case would still be five to four even if the two new justices voted with the minority. But that’s a little too simple, because the case was really five to one to three—that is to say, there was a separate concurrence by Justice [Anthony] Kennedy that didn’t necessarily endorse everything that was said in the majority opinion. So with two new justices—if they were with the dissenting judges—it might have been a four-one-four decision, which might have significant consequences for what the law was interpreted to be. Justice O’Connor wrote the Hamdi plurality decision, and said the commanding chief power is not a blank check and the president is still bound by the law by the constitution—something the administration rejects. If Judge Alito takes her place, it could be very significant to some of these cases, especially if the court is closely divided on many issues, including those related to the war on terrorism, as I expect it will be. Welsh: I think one of the reasons the Alito confirmation is drawing more controversy than the Roberts confirmation is people felt Roberts would not necessarily be more conservative than Chief Justice Rehnquist, whereas there’s speculation Judge Alito might be more conservative than Justice O’Connor. I think the decisions that have been most significant in a lot of ways that matter are still unfolding. For example, the Department of Defense looked to Justice O’Connor’s opinion in Hamdi [to guide its actions], but that wasn’t even a majority opinion, that was a plurality. As dramatic as these decisions have been, I don’t know there’s been a cut-and-dry final result of where things are heading in terms of U.S. policy with all the branches of the government acting together. Interesting wrinkles that could emerge will be the extent to which the Supreme Court gets into more constitutional issues as opposed to statutory issues. The Supreme Court tries, if it can, to keep things as simple as possible, to avoid the big constitutional confrontation. So in the Rasul v. Bush case, the Supreme Court focused on simply looking at the statute. But the statute’s been amended, now. So whether it’s in that case or in others, if Congress acts in a way that takes away a statutory basis for the court’s decision, then will the Court look to other constitutional issues? What kind of impact might the Court have on the ongoing debate on balancing civil liberties with security? Golove: The eavesdropping question is interesting in its own right, but it is also—and maybe more importantly—part of a very radical and very broad movement in the executive branch to exert executive authority of a really unprecedented kind. [The movement is based on] the same legal theory that the administration says justifies the eavesdropping program, notwithstanding the Foreign Intelligence Surveillance Act (FISA) law. There’s the FISA law, the torture statute, and the war crimes act, all of which the administration in its various memos has asserted are unconstitutional insofar as they seek to limit the president. Now, the administration took the position that these laws were unconstitutional insofar as they apply to the president, but it did that in secret. Whether the Supreme Court will weigh in and how it will weigh in is a little hard to predict, but in the Hamdi case, Justice O’Connor’s opinion made it very clear that, at least when we’re talking about American citizens, the Constitution still applies, and the principle of due process applies. It is unclear if the court will ever get an opportunity to decide directly on those questions, but it certainly might, in any of these cases, make rulings that suggest more or less directly that it doesn’t agree with the president’s theory. I think it’s very unlikely the court would ever uphold the theory the executive branch has used. It would be remarkable if the court were to enforce any such view. And in fact, in the Hamdi case, eight of the nine judges essentially rejected that view, at least in that context. Welsh: The interesting thing about the civil liberties debate is the extent to which one is talking about the rights of everybody versus how one handles alleged terrorists. For example, in Boston and New York, suspicionless searches of bags on the subway—which is something that affects everybody—at least has a common understanding. I have no idea whether some of these supposedly suspicionless searches in fact are targeted at people that are under surveillance as suspected terrorist sympathizers. But in terms of the publicly announced policy, it’s something affecting everybody. In the context of the warrantless surveillance of international communications, the administration is claiming that it’s targeted at people suspected or known to have ties to al-Qaeda. At the same time, there have been media reports for years about the supposed echelon program of NSA [National Security Agency] essentially engaging in something analogous to data-mining of international communications. They’re intercepting all sorts of communications from everyone and having technology parse through all of these to try to pick up key words. So I think that the tenor of the debate is slightly different when it affects everybody than when it just affects suspected terrorists. To the extent constitutional issues are involved, then obviously that is the purview of the courts, and when lower courts have been reviewing issues surrounding suspicionless searches they obviously have been looking to Supreme Court opinions. How is the court likely to come into contact with the question of international law and its applicability to the United States? Golove: That’s a very important question because the administration has also made broad claims about executive power to carry out foreign affairs without being limited by the judiciary, or to some extent, Congress. Despite the long history going back to the founding of the Court’s active engagement in interpreting international law, the administration has taken a narrower and narrower view of the courts, asserting essentially that treaties are a matter for the executive branch to deal with between states and the courts need to defer to the executive branch’s interpretations of the treaties of international law. And what’s more, that the president has the authority to violate treaties of international law when he so chooses. There was a case a couple of years ago that overturned a Massachusetts law sanctioning Burma for human rights violations. Then there was a law in California dealing with insurance claims by Holocaust survivors. Both of these laws were struck down by the Supreme Court in those cases. Then there have been a series of cases on the Vienna Convention on Consular Relations—that’s a convention that protects American citizens abroad when they’re arrested by placing an obligation on foreign countries to notify the U.S. consulate that an American citizen has been arrested and allow the consul to aid in the citizen’s defense. Of course, that obligation is reciprocal on the United States, but the United States has been very lax in engaging in the required consular notification. This has led to a great deal of international controversy and a series of decisions by the International Court of Justice [ICJ] saying the United States is in violation of that treaty, and that to remedy the violation of the treaty, the United States is required to provide some kind of judicial remedy to convicted defendants who are not afforded their right of consular notification. Now the court has before it two new cases that raise very similar questions about the relationship between the international institutions, the judicial institutions like the ICJ, and American courts and American interpretations of treaties. These are tremendously important questions about foreign policy and how it will be conducted, and the role of the Court and the separation of powers in foreign affairs. The Court has typically been evenly divided in these cases, especially on very sensitive issues about the relationship between international law and domestic law. The new justices may have an impact on how those decisions are actually rendered. In a way, Justice O’Connor has been quite receptive to international law and foreign constitutional law in her decisions. Whether a Justice Alito would be similar in his attitudes is highly doubtful. Welsh: Well, first of all, there are international law issues that are very important to national security that probably would not be within the purview of the court. One that comes to mind is the fact that international law basically requires the Iranian nuclear matter to be referred to the Security Council. That’s something that’s definitely legal, but I don’t see whether that would necessarily be part of a case or controversy coming before the Supreme Court. There’s the question of detainees, in terms of cases already coming through the Court system or might come through the system. The Geneva Conventions [on the treatment of prisoners of war], the Convention against Torture, and other sources of international law have certainly been brought up in argument. One thing to remember, though, is that some international law is part of the U.S. legal system: Treaties to which the United States is party to and the laws of nations are part of the U.S. legal system but they’re subordinate to the U.S. Constitution. Other sources of international law, such as decisions by courts in other countries, are what have raised more controversy, I think, in terms of some justices wanting to look at those decisions for their persuasive value, even though they are not legally binding. I’m interested to see what other kind of litigation might come up because of, for example, the detainee amendment. The McCain amendment [on detainees], barring mistreatment of any U.S. detainee, for example, would cause me to wonder whether there will be lawsuits brought over the alleged secret prisons. There have already been lawsuits brought over rendition.

This publication is now archived. IntroductionThere is a growing chorus of complaints from Sunni Arab leaders that the Iraqi Security Forces (ISF) has been infiltrated by Shiite militias that engage in torture, kidnappings, and, in some cases, deaths squads against Sunnis. Though Iraq’s leadership downplays these outbreaks of violence, experts say there is widespread evidence that an increasing number of members of the Mahdi Army, led by the hot-headed Shiite cleric Muqtada al-Sadr, and Badr Organization are joining the ranks of Iraq’s military and engaging in paramilitary-style policing methods. “The ISF is not a true national force but rather a carved-up conglomeration of militias,” says Kenneth Katzman, senior Middle East analyst with the Congressional Research Service. The latest evidence: The November 13 discovery of a detention center in Baghdad allegedly run by Iraqi intelligence officials linked to the Badr Organization, where eighteen of the center’s roughly 170 captives—most of them Sunni Arabs—were reportedly beaten, blindfolded, or subjected to electric shocks. Sunni Arab leaders accuse Interior Minister Bayan Jabr, a former high-ranking official with the Badr Organization, of turning a blind eye to this torture. The Muslim Scholars Association, a Sunni organization, recently compiled a list alleging hundreds of extrajudicial killings, disappearances, illegal raids, and instances of torture of Sunnis by individuals linked to Shiite militias. Experts say it’s impossible to tell what percent of the ISF is made up of militia members. However, according to the Los Angeles Times, the bulk of Baghdad’s largely Shiite 60,000-strong police force is split between those loyal to the Mahdi Army and the Badr Organization. Squad cars in Iraq’s capital often carry a green ribbon, the Badr Organization’s insignia, or a picture in their windows of al-Sadr. The U.S. Position on MilitiasThese militias have put the U.S. government in a difficult bind: On one hand, experts say, these groups are effective in fighting the Sunni-led insurgency. Last year, the U.S. military fought alongside militia groups in counterinsurgency operations in Mosul and Samarra. On the other hand, these groups are fueling sectarian tensions and infiltrating the military, which raises doubts as to where these soldiers’ allegiance lies. But U.S. officials seem unworried by the spread of militias. “They are increasingly an Iraqi problem, not a U.S.problem,” says a senior Defense Department official who preferred not to be named. Though Iraqi militias were technically banned by theCoalition Provisional Authority (CPA) in June 2004, the U.S. military is “encouraging existing militias into the security services—that is true,” says the Defense Department official. “We continue to examine their loyalties but also are trying to build loyalty [to the Iraqi state].” The Mahdi ArmyThe Mahdi Army—named after a Shiite messianic figure—is a militia of several thousand members loyal to the young anti-U.S. cleric Muqtada al-Sadr. The group led two uprisings last year against U.S. forces before agreeing to a ceasefire in October 2004. The militia is heavily influential in Najaf, a city in southern Iraq, and in Sadr City, a Baghdad slum of some 2.5 million Shiites. Some news reports suggest the Mahdi Army may be regrouping and rearming itself. In recent months, Sadr’s group has been accused of abducting Sunni Arabs as well as members of rival Shiite militias like the Badr Organization, British troops, and journalists, including Rory Carroll, an Irish reporter for the British newspaper the Guardian. On October 27, in Medayna, a village northeast of Baghdad, a group of so-called Sadrists reportedly raided and set ablaze several homes suspected of harboring Sunni insurgents; the ensuing fight left some twenty people dead. Some experts say the group is not an organized, disciplined unit with clear political objectives. ’’I think the Sadrists are a social movement, not really so much an organization,’’ said Juan Cole, a Middle East expert at the Universityof Michigan , in an interview with the New York Times. ’’So you have these neighborhood-based youth gangs masquerading as an ’army.’ Then you have the mosque preachers loyal to Muqtada who try to swing their congregations, and who interface with the youth gangs.’’Other experts say Sadr is receiving aid from Iran’s intelligence services and Revolutionary Guard, though this is widely disputed. “Sadr is a very poor prospect as an Iranian proxy,” argues Michael Knights, a London-based associate with the Washington Institute for Near East Policy. “He’s xenophobic. He’s very disenchanted with Iranian-sponsored exiles who are currently heading up Iraq’s Shiite block, including of course Prime Minister [Ibrahim al-] Jaafari and SCIRI. He has recently flexed militarily with SCIRI’s Badr forces, so he’s generally not an ideal proxy for the Iranians to use.” Regardless, Sadr has emerged as a powerful figure in Iraqi politics and relishes his new kingmaker position. Though he has refused to participate directly in Iraqi politics, his supporters won a handful of parliamentary seats in the January 30 elections and thirty of his candidates joined the mainstream Shiite coalition, the United Iraqi Alliance, ahead of the December 15 parliamentary elections. The Badr OrganizationThe Badr Organization, formerly known as the Badr Brigade, was built by Iraqi Shiite defectors and soldiers captured by Iran during the 1980-1988 Iran-Iraq War. Its members were funded, trained, and equipped by the Iranian Revolutionary Guard Corps. In 2003, the 10,000-strong militia changed its name from the Badr Brigade to the Badr Organization of Reconstruction and Development after pledging to disarm and devote itself to peaceful purposes and is now the armed wing of the Supreme Council for the Islamic Revolution in Iraq (SCIRI), a Shiite opposition party founded in 1982 by Iraqi exiles in Iran. SCIRI, which has emerged as Iraq’s most powerful political party, advocates the creation of a separate, Shiite-run region comprising nine oil-rich provinces in southern Iraq. In a rare November 27 interview with the Washington Post, SCIRI’s leader, Abdul Aziz Hakim, downplayed his organization’s ties to Iran and denied accusations that the Badr Organization practiced torture or targeted Sunni Arabs.The group, however, has remained armed, experts say, and has been accused of assassinating, torturing, and unlawfully detaining Sunni Arabs. Peter Khalil, former director of national security policy with the CPA and a Middle East analyst with the Eurasia Group, says the Badr Organization continues to receive support, both military and financial, from Iran (Al-Malaf.net, a Jordanian news site, alleges the Badr Organization still receives a monthly stipend from Tehran of roughly $3 million). The militia group has also said it will run candidates, separate from SCIRI, in the upcoming December 15 parliamentary elections as part of the United Iraqi Alliance, the most powerful Shiite coalition. The Badr Organization has recently clashed with British troops in Basra and with the al-Sadr’s Mahdi Army, also based in Iraq’s predominantly Shiite south. In August, after Sadr’s headquarters in Najaf were set aflame, the Mahdi Army staged a reprisal attack against Badr troops. “It’s a mafia-style war between two descendants of Iraq’s leading ayatollah-led families, the Sadrs and the Hakims, who don’t exactly express affection for each other,” writes Robert Dreyfuss, a national security expert, in TomPaine.Com. Further attacks were called off by Sadr after Grand Ayatollah Ali al-Sistani intervened to quell the dispute. The Badr Organization denied responsibility for setting fire to Sadr’s offices. The Wolf BrigadeOne of the Badr Organization’s offshoots is the Wolf Brigade, a unit of roughly 2,000 special commando police officially under the Ministry of the Interior that is among Iraq’s most feared groups. Last November, the brigade—which was formed in the fall of 2004 by a former three-star Shiite general and SCIRI official whose nom de guerre is Abu Walid—fought alongside U.S.-led forces in Mosul, a Sunni stronghold northwest of Baghdad. Its members dress in garb—olive uniform, red beret, wraparound sunglasses—redolent of Saddam’s elite guard; their armband logo is a menacing-looking wolf. Last December, the Wolf Brigade won further notoriety after the success of Terrorism in the Grip of Justice, a primetime show on U.S.-funded al-Iraqiya television that featured live interrogations of Iraqi insurgents by Wolf Brigade commandos. In one show, Abu Walid questioned around thirty shabbily dressed suspects, some clutching photos of their victims, waiting to confess their crimes.The Wolf Brigade was reportedly responsible for the July seizure of eleven Sunni bricklayers who were then locked in the back of police cars and held for sixteen hours in scorching-hot temperatures. The brigade’s fierceness has given it a mythological aura among Shiite Iraqis: Parents are said to warn their children about the “wolves.” There are also patriotic songs devoted to the group. However, in May, the Sunni-controlled Muslim Scholars Association and other Sunni Arab leaders accused the Wolf Brigade of targeting Palestinian refugees in Iraq, using torture to extract confessions from prisoners, raiding Sunni homes, and engaging in “mass killings” and arrests in northeastern Baghdad. Walid denies the charges. Yet human rights groups say the Wolf Brigade, because of its counterterrorism television show, is violating the Geneva Conventions by publicly humiliating detainees. Despite its heavy-handed tactics, the group has proved useful to counterinsurgency operations. In mid-November 2004, the Wolf Brigade successfully arrested more than 300 suspected insurgents, including several Sunni officials, in Baqubah, a city northeast of Baghdad. The militia has also spawned copycat groups, not necessarily under the aegis of the Interior Ministry, with names like the Tiger, Scorpion, or Snake brigades.