John Walker Lindh and Yaser Esam Hamdi: Closing the Loophole in International Humanitarian Law for American Nationals Captured Abroad While Fighting with Enemy Forces.

Article excerpt

  I.  INTRODUCTION
 II. THE DEVELOPMENT OF THE UNITED STATES' POSITION ON THE
     TREATMENT OF NATIONALS ENGAGED IN ARMED CONFLICT WITH
     ENEMY FORCES ABROAD
     A. International Law on the Treatment of Nationals Engaged in
        Armed Conflict with Enemy Forces Abroad
     B. The United States' Position on the Treatment of Nationals
        Engaged in Armed Conflict with Enemy Forces Abroad
III. REVIEW OF RELEVANT LEGAL PROVISIONS
     A. Geneva Law
     B. The Additional Protocols
     C. Customary International Law and Human Rights Norms
        1. Human Rights Law
        2. Customary International Law
 IV. HISTORICAL DEVELOPMENT OF SPECIFIC LEGAL REGIMES RELATING
     TO TREASON, MERCENARY SERVICE AND DESERTION
     A. Traitors
     B. Mercenaries
     C. Deserters
  V. NORMATIVE ANALYSIS: INTERNATIONAL HUMANITARIAN LAW AND
     NATIONALS CAPTURED ABROAD WHILE FIGHTING WITH ENEMY
     FORCES
 VI. RECOMMENDATION FOR THE FUTURE: MINIMUM HUMANITARIAN
     STANDARDS
VII. FORECAST FOR CHANGE AND CONCLUSION

I. INTRODUCTION

In late 1998, the Lindhs, two middle-class American parents, financed their teenage son's desire to venture from California across the globe to Yemen, where their devout Muslim son sought instruction in ancient Arabic tongues. (1) The young Lindh abandoned his purely academic endeavors after traveling to Pakistan with an Islamic missionary, where he eventually settled in a madrasa (2) outside Bannu in the Northern provinces. (3) By the summer of 2001, Lindh chose to take up arms with the Pakistanis during the ongoing hostilities between Muslims and Hindus in the disputed region of Kashimir. (4) Later, Lindh aligned himself with Ansar, a group of non-Afghan fighters, whose training was funded by Osama bin Laden. (5) Soon, he was sent to fight the Northern Alliance in Afghanistan. (6) Finally, after the September 11, 2001, attacks, Lindh found himself surrendering to the United States military, who transported Lindh and the rest of the captured enemy forces to a fortress prison in Mazar-e Sharif. (7) The confined inmates revolted, but Walker was re-captured. (8)

After an extensive investigation into the events surrounding Walker Lindh's capture and subsequent arrest, an eight-count indictment was issued against Walker Lindh. (9) Six months after the Grand Jury in the Eastern District of Virginia issued the indictment, Walker Lindh negotiated a plea bargain with the government in which he agreed to plead guilty to two charges: supplying services to the Taliban and carrying an explosive during the commission of a felony. (10) On October 4, 2002, Walker Lindh was sentenced to twenty years in prison. (11) Interestingly, as part of the plea agreement, the government agreed to "forego any right it ha[d] to treat [Walker Lindh] as an unlawful enemy combatant based on the conduct alleged in the Indictment." (12) Arguably, this element of the plea agreement suggests that the government expressly recognized Lindh had a status under international humanitarian law because it alludes to Lindh as an unlawful enemy combatant. Nevertheless, the government ultimately opted to use the domestic criminal justice system as its adjudicatory framework for handling Lindh, rather than the legal mechanisms set forth under the Geneva Conventions. The government, defying prediction, positioned itself quite differently in the case of the second American Taliban, Yaser Esam Hamdi. (13)

Months after the first detainees were transferred to Guantanamo Bay, Cuba, United States authorities discovered unexpected evidence validating a second captured detainee's claims of American citizenship. (14) An authentic birth certificate proved Yaser Esam Hamdi was born in Baton Rouge, Louisiana, although he spent his formative years in Saudi Arabia. (15) After United States forces captured Hamdi in Afghanistan, they transferred him to detention facilities at Guantanamo Bay for confinement with other Taliban and al Qaeda combatants. …