The Talking Dog

July 22, 2006, TD Blog Interview with Glenn Sulmasy

Commander Glenn Sulmasy is a professor of law at the United States Coast Guard Academy, and has written extensively on matters pertaining to the conduct of the war on terror. On July 6, 2006, I had the privilege of interviewing Professor Sulmasy by telephone. What follows are my interview notes, corrected as appropriate by Professor Sulmasy (who advises that the opinions expressed are solely his own, and do not reflect the views or policies of the United States Dept. of Homeland Security, the United States Coast Guard or the Coast Guard Academy.)

The Talking Dog: I'll start with my usual first question, where were you on September 11th?

Glenn Sulmasy: At that time I was on my way to work in Connecticut after conducting some governmental outreach. I heard that there had been a plane crash at the World Trade Center on WNPR radio, and it took a little while to figure out that it wasn't a gimmick or Don Imus type joke... That was the start of a fascinating day. I have family who lives in Battery Park City [adjacent to the World Trade Center site] and in Manhattan proper.

That day I came to the realization of which I've written a number of times: the sleeping giant had once again been awakened that day: we finally recognized that international terrorism was here to stay and we were prepared, at least then, to fight it with all resources available and with a united front.

The Talking Dog: Has there been a marked difference in the operation or mission of your service, the United States Coast Guard, since September 11th or since the Coast Guard's transfer from the Transportation Department into the Homeland Security Department?

Glenn Sulmasy: There is no question that there has been a change in mission. We have returned to our roots as a coastal defense force. Whether this is serving on a patrol boat in the Persian Gulf, or on a buoy tender off the U.S. coasts or rivers, or any other job in any other location, the members of the Coast Guard, who have so many missions, now know that we have a primary mission of protecting our nation and its homeland. The Coast Guard is a natural fit for the war on terror: we are a hybrid of law enforcement and warfare and have made the transition well.

In fact, in many ways, the Coast Guard has regained her identity. Set up in 1790, the Coast Guard is our oldest seagoing continuous service (the Navy was shut down for a time early on in the Republic.) The Coast Guard had been in the Treasury Department until 1967, and then in the Transportation Department. It was somewhat anomolous to be a military service within the Department of Transportation.

Under the Department of Homeland Security, the Coast Guard has found its home, and I believe is ideally suited for its mission.

The Talking Dog: You've written ( in Pittsburgh Law School's Jurist here and the National Review, here ) about the viability, and indeed, desirability, of what you have called "national security courts" to process, and as necessary, to try charges against those detained pursuant to the war on terror. In light of the Supreme Court's decision of last week in Hamdan, would you submit that this is a good time to try to implement that idea legislatively?

Glenn Sulmasy: This would be the ideal time to work on such legislation. Ironically, while every other branch of government has changed its views of the world in light of the war on terror, Congress and the executive have made substantial changes, for example, to immigration control, the Transportaiton Safety Administration, indeed, the whole Homeland Security Department... the Court's view-- at least as to the propriety of detentions and adjudications... seems more static. We know that the Eisentrager case [standing for "extraterritoriality", to wit, non-U.S. detainees captured by the U.S. overseas and not brought within an American venue are not within American court jurisdiction, at least during wartime] has been effectively reversed by the Hamdi and Rasul cases.

Lawyers need to be at the forefront of proposing rational changes to the existing regime. In my view, the commissions ARE lawful. However, we can't operate under them de facto... the Supreme Court has held that the charges against detainees cannot be adjudicated under the way they're currently constructed. That said, this would be the ideal time to consider something broader-- like national security courts-- so that the jihadists can be properly, and humanely, tried. The war itself is a hybrid of law enforcement and warfare – thus, the national security courts would be similarly constituted.

The Talking Dog: I understand that Senator Spector is working on a bill to simply legislate the commission structure as already formulated by the President... do you have a comment on that?

Glenn Sulmasy: Policy makers must grapple with the reality that this is a new war. We conduct our operations the same way we have in the past -- the wars of the last century. We need to adapt and create new codes to handle this reality. The commission process has not been as effective as one might have originally hoped -- the Supreme Court has told us that the current commission structure in the War on Terror, is now invalid, at least as it currently stands. Again, in my view, commissions are hardly terra incognita-- they are already provided for in Article 21 of the Uniform Code of Military Justice and by the Quirin decision. But nonetheless, the Supreme Court has told us that the commission process, as currently constructed, is not palatable with international law and domestic legislation...they have chartered the executive and legislative branches to "find a new way" to do this. We should exhaust all new ideas and thoughts in the public arena before moving forward.

The Talking Dog: Some of the justices-- at least 4-- found that since the commissions, as structured, can only try violations of the law of war, and that, of the 10 detainees charged, while all are charged with a conspiracy count, seven are charged only with a conspiracy count (rather than with an overt act in support of the conspiracy)... did you see this as a problem with the commissions?

Glenn Sulmasy: You're 100% correct about the conpsiracy charge. That is a problem. But in my view, the Hamdan case is an example of judicial activism – the justices overstepped their bounds by intervening in what is truly the province of the executive in times of war. This is certainly not what the Founders intended for the Supreme Court to be involved in – making decisions impacting military operations. Traditionally, when they have intervened, the Court has employed the military deference doctrine and allowed the commander in chief to exercise his constitutional authority and responsibility. They don't understand the ramifications of their intervention in the courts martial and commission process. Now they have held that the Geneva Conventions apply to everyone involved in the conflict in Afghanistan. Arguably, as a result of Hamdan, Osama bin Laden can now be categorized on the same level as our military personnel-- as if he were another legitimate combatant. While the Supreme Court may have concluded that the executive has gotten too strong, or that the executive has overstepped its bounds, it has abandoned its traditional deference in military matters. Now, one can ask the "is this a war or not?" question... But a decision like this has major impacts on our armed forces. Nonetheless, the Supreme Court has, de facto, told us that this doesn't work, even if it is legal under the laws of war.

The Talking Dog: But under our system of judicial review (not technically in the Constitution, but we've been doing it this way for a long time), the referee's whistle goes to the Supreme Court. How else could this be reconciled? Also, can't you read Hamdan as simply finding that the President has overstepped the powers provided by Article 2 of the Constitution to the Executive by in effect legislating which is reserved to Congress by Article 1 of the Constitution?

Glenn Sulmasy: There's no question that this is all structurally messy, and we are getting into messy issues. Military commissions-- the question of are they illegal-- literally impacts our ability to prosecute the war. This really is, in the relatively new War on Terror, an aspect of combat operations – especially with regard to intelligence collection.

There certainly is a legitimate argument that Hamdan can be read as a separation of powers issue- that we could do the commissions if they are enacted and “blessed” by Congress ... I would suggest that this opportunity to address this issue should be taken up, and something concrete be done (rather than just politically expedient). I would suggest the national security courts, as modeled after similar entities in France and Britain... Saudi Arabia does something similar as well. It will be very difficult to move forward on the proper detention and adjudication of the jihadists until these issues are resolved on a firmer footing.

The Talking Dog: Let me ask you about a suggestion of yours that I've read about, to wit, that the Geneva Conventions will need to be changed in light of the new realities of terrorism. What specific changes to the Geneva Conventions and to American legislation do you envision to permit your proposed "national security courts"?

Glenn Sulmasy: I don't believe the formation of the national security courts is a treaty issue; we will continue to abide by our existing treaty obligations, including the torture conventions and others. I think this issue dovetails, to an extent with our other existing obligations under myriad treaties, but I believe it is something that can be handled by federal legislation. I would envision a bipartisan panel to do this...

As far as Geneva Conventions, a key reason for having them is the rationale of reciprocity-- we treat those captured in accordance with certain rules and those that capture our personnel will abide by the same rules. The jihadists, of course, don't honor reciprocity... to say the least, they don't treat our captured soldiers well... they abuse them, torture them, behead them. Just look at the recent (ironically right after Hamdan was handed down), capture of two of our men in Iraq, they were tortured, beheaded and had their chests carved open – and then had them televised in this state on radical websites…they will NEVER act in accord with Geneva. We must be aware of this when attempting to achieve idealistic goals.

The Talking Dog: Do you believe that the Combatant Status Review Tribunals (CSRTs) we have provided to the Guantanamo detainees (after the Rasul case) qualify as proper "Article 5" tribunals within the meaning of the Geneva Conventions?

Glenn Sulmasy: Article 5, among other things, gives those captured during hostilities a presumptive entitlement to prisoner of war status. In my view, the CSRTs probably achieve the same goals, and in my view, are lawful under the laws of war ("de jure belli"). However, the international community wants us to provide actual “Article 5 hearings.” The CSRTs are our attempt to play catch-up, particularly after the Supreme Court's mandates (Hamdi and Rasul) and the Detainee Treatment Act (DTA).

The Deputy Assistant Secretary of Defense for Detainee Affairs [Charles Stimson] recently announced that the Pentagon is still working on the CSRTs and the proceedings. In my view, the smartest thing they could do would be to call them Article 5 tribunals, so that everyone understands, using a commonly understand parlance, what is happening, and that we are complying with international law. Simply, call them what they are in order to remove cynicism from the world community.

The Talking Dog: Since we're on the subject of Geneva Convention articles, let me ask you about Article 40. I've seen it suggested that we should invoke Article 40, pertaining to how those accused of violations of the laws of war should be tried, in order to effectuate charging those we contend are war criminals. How do you respond to that?

Glenn Sulmasy: The Geneva Conventions were called "quaint" by the attorney general. I think there is a better term-- so I'll say that the conventions are antiquated, or shall we say, outdated to meet the new threat we face. We really do have to update the laws of war. From a public relations standpoint, certainly something like invoking article 40 is a good idea. Again, I would assert Geneva does not apply to the jihadists. But ultimately, to try suspected terrorists, we really should move our legislation towards creating the national security court apparatus I've talked about; France and Britain have programs already set up that we can rely upon as models for this, so that we don't have to start completely from scratch, and reinvent the wheel. There are existing structures in other countries that work.

Policy makers at this point have to look at new ideas. But a national security court will at least force the debate forward. Certainly, partisam politics will continue to present a problem, but we have to move forward. I am excited to report that there has been greater interest- far greater interest since the Hamdan case was decided-- among Congressional staffs regarding these issues and my suggestions. (In fact, in the Congressional hearings last week, the idea of national security courts was raised).

The Talking Dog: Let me ask you a question that I probably should have pressed Jeff Addicott more on in my interview with him. That being the duration question; just who decides when the war is over in this "new" kind of war, given that under the traditional definitions of war, we could hold detainees for the duration of hostilities, but "hostilities" under the murkier "war" we are in now could take decades, or conceivably, forever. Can you comment on that?

Glenn Sulmasy: Well, certainly, to the extent we have people at Guantanamo over 4 years, their ongoing intelligence value, if that is a basis to hold them, is greatly reduced. There is no question that as a matter of custom, we hold people for the duration of hostilities. We have in the past – this is not something new…Winston Churchill, FDR and others have employed this theory. Now, of course, the Defense Department has released a number of detainees from Guantanamo, and is scheduled, at least, to release an additional number shortly.

There is no question that custom says detentions can be for the length of hostilities, and the war on terror could go on a very, very long time. In my view, this issue has to be grappled with at the Defense Department, the Administration and Congress. Could this go on 20, 30 years, during which we hold people indefinitely? Well, this might be permissible under the laws of war, but as a policy matter and public relations matter, it is a problem. In my view, as a default, after a certain amount of time.. 5 years, 7 years.... 8 years... whatever is decided... if a detainee is not charged with anything, he should be released, as a default matter. And those charged, should go to the national security court apparatus.

The Talking Dog: Again, on the subject of the forum for trying accused terrorists, I understand that there is a 2009 round coming up to update and modify the Rome Statute better known as the International Criminal Court. Would that be an appropriate time to advance some of the issues we've been talking about, to deal with what you perceive as shortfalls in the international mechanism to deal with terrorism?

Glenn Sulmasy: There's the big answer to the big question. In 20 years time, or 30, or thereabouts, maybe the International Criminal Court will be the right place to try those accused of international terrorism. Ideally, I'd hope that enough trust and experience develops so that the United States is willing to sign on, and bind itself to those procedures as in ours and everyone else's interests... but we're not there yet. The nation is not ready for such a waiver of sovereignty. In addition, it is likely that in its current form, our enemies would use this international court mechanism against us and our allies.

As I said before, the existing treaties are antiquated, or out of date, when it comes to terrorism... they weren't intended to deal with it. After all, terrorists like the al Qaeda network are not part of any nation-state. So the question is how do we move forward... how do we get from here to there...?

Again, I think this would be a very good time and place to consider national security courts, as an appropriate model. We could do this as part of a treaty, or modifying existing treaties... or by simply creating our legislation. We can go as far as to provide codification for wiretapping and surveillance methods in this context...

But I would add that right now, without blaming anyone, as the Administration acted as it believed appropriate, but, by this point, certainly after Hamdan, our current mechanism of adjudicating terrorists is starting to unravel. Since there appears to be, and the Supreme Court has agreed that is a war, albeit a new one, we'll probably need to update the Geneva Conventions, in any event.

The Talking Dog: Let me ask you another question that I probably should have pressed Jeff Addicott more on in my interview with him. That is the "how do we even know this is a war at all?" question. The reason I ask, is that we are, of course, fighting a non-state actor... which makes this very different from most wars as we understand them. Can something this different be "war" for purposes of law?

Glenn Sulmasy: In my view, we have to regard this as a war. Since 1993, when the first attack was made on the World Trade Center, al Qaeda was and has been at war with the United States. We may not have been conscious of it, but subsequent events, like the embassy bombings, and the attack on the U.S.S. Cole, and others show us that it is indeed a war. It is a different kind of war, but nonetheless, a war.

On September 11th, everyone saw this as an armed attack on the United States. As a result of that, there was a change in the mentality... I think it became much clearer to all that this is, indeed a war, and we have to fight it as such.

Part of the mentality, and the jihadist doctrine, calls for using our own court system against us, as Moussaoui has done. The mentality we are up against in this war is nothing less than the destruction of Western civilization, and yes, it is necessary for us to fight keeping the mentality that this is, indeed, an armed conflict. To do otherwise is exactly what the jihadists are counting on and took advantage of during the 1990’s.

The Talking Dog: You've suggested that people like Moussaoui, or for that matter, Richard Reid, might be good candidates for your national security courts. They, of course, are not citizens, or even legal residents. I take it that your national security courts would be for such people only, and not for citizens?

Glenn Sulmasy: No question it would just be for non-citizens, and we could do it by statute. There are far too many constitutional issues that would be involved in trying citizens in the national security courts.

The Talking Dog: Do you have any final thoughts, or issues that I haven't asked you about which you believe that my readers and the public need to be aware?

Glenn Sulmasy: Again, I will say that September 11th awoke a sleeping giant. But we can't go back to sleep. At times I fear we have “dozed off.” The Department of Homeland Security and Congress have been managing expectations, and we fortunately haven't been struck directly since September 11th, but they will strike again.

September 11th took ten years of planning. We have to be conscious of this. They are coming at us. It might be easy to sit back and opine, but the scary reality of another attack is in fact going to occur – it is just a matter of when and what weapons they will employ. Recent arrests reveal this cold fact. Taking the fight to the jihadists overseas, as well as the USA PATRIOT Act, has helped ensure our safety. In the wars in Afghanistan and then Iraq, we took the fight to the terrorists, and as a result, we are keeping the homeland secure.

One final note, the majority of the Supreme Court opined that Article 3 common to the Geneva Conventions should apply to the Global War on Terror. This is not legally accurate, nor is it in our interest to do this. Article 3 refers to non-international armed conflicts. This is, as is noted in Asia, Africa, the Middle East, London, Spain, and others locations, an international armed conflict. Having said this, we still should afford the spirit of Common Article 3– that is, all detainees will be treated humanely. But the strict reading of the Convention shows that this is not applicable. Again, let us devise a new Convention to best meet the needs of the international war we now face.

The Talking Dog: On behalf of myself and my readers, I'd like to thank Professor Sulmasy for that informative interview.

Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux,
Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainee Shafiq Rasul , and with law professor and former Army J.A.G. officer Jeffrey Addicott to be of interest.


Good interview, Dogbreath.

Posted by Billy Batts at July 24, 2006 1:05 PM

Can you believe this tsuff....

Al Qaeda No. 2 Calls for Muslims to Start Holy War Against Israel

Posted by wdfwerf at July 27, 2006 9:30 PM

Attorney Sulmasy was one of the early voices advocating national security courts and a change to Geneva. He continues these efforts, and I sincerely hope that the policymakers in Washington DC engage in a serious debate about these concepts. These are smart, pragmatic steps that both conservatives and liberals should be willing to consider.

Posted by B. Flynn at August 5, 2006 2:56 PM