Jose Padilla’s conviction for conspiracy to commit terrorist acts and provide material support to terrorists is the end of a long troubling journey in the post 9/11 criminal justice system as conceived by this Department of Justice. Upon Padilla’s arrest in 2002 at O’Hare Airport, he was held indefinitely by DOJ as a material witness and sent from the 7th Circuit to the 2nd Circuit. When a federal judge told Attorney General Ashcroft that he had misused the material witness statute and could no longer hold him, the decision was appealed. But before the appellate court could confirm that, Ashcroft relabeled Padilla an enemy combatant and he was handed from DOJ to DOD and taken down to the 4th Circuit, where successive federal courts found him properly detained. When his case was remanded by the Supreme Court for improper procedure in 2004, Padilla remained in a military brig as his case worked its way back up to the Supreme Court. However, before his case was heard by an uncertain array of justices, DOD gave Padilla back to DOJ and relabeled him a criminal. Padilla was taken down to the 11th Circuit and tried in federal court on conspiracy charges under a statute that defines conspiracy so broadly that sending someone a video on the life of Martin Luther King, Jr. can be considered providing material support to terrorists. That a U.S. citizen, no matter how bad they are, can be jerked from Illinois to New York to South Carolina to Florida before multiple courts on multiple charges, remain in solitary detention by the military for 3 1/2 years and spend part of that time without access to counsel, is mind-boggling. Are we re-writing the rules on due process? It sure would be nice to know.

The Yale Law Journal’s Pocket Part today published an essay by Colonel Morris Davis, the Chief Prosecutor in Guantanamo.

Col. Davis offers a perspective not often read in law journals and the media, and one which I believe is meritworthy.  Some of his points:

1) The detention facility has been inaccurately portrayed by critics.

2) Arguments about “indefinite trial without detention” are misplaced in a wartime context.

3) Military commissions have been historically used and are consistent with the Geneva Conventions.

4) Military commissions as constituted provide full and fair trial rights.

5) Military commissions will not exclude defendants from their trial.

6) Military commissions exclude evidence if it is derived by torture.

7) Military commissions allow the use of hearsay, but so do the ICC, the ICTY, ICTR, SCSL, Cambodia tribunal, etc.

This is just a brief summary, the article is worth checking out.

Ali Hassan al-Majid, better known in the West as “Chemical Ali”, was charged on August 8, 2007, along with fourteen others, for the massacre of Iraq’s Shi’ites in the aftermath of the 1991 Gulf War. Tens of thousands were killed in the uprising which the U.S. urged but failed to support. Iraqi High Tribunal Prosecutor Jaafar al-Moussawi announced that the trial would begin on August 21. Formal charges range from crimes against humanity to genocide. Al-Majid, Saddam Hussein’s cousin and frequent military commander of choice, was instrumental in brutally repressing post-Gulf War uprisings. There is just one snag in this process. Al-Majid may be dead within weeks of entering his plea in this trial.

On June 24, 2007, al-Majid was convicted on charges of genocide, war crimes and crimes against humanity as a key ringleader in the military reprisals known as the “Anfal Campaigns” that claimed the lives of up to 180,000 Iraqi Kurds during the waning years of the Iran-Iraq War. Al-Majid often supplemented his attacks against civilian targets and villages with chemical weapons - hence the sobriquet “Chemical Ali.” He drew the death sentence in that trial and, per Iraqi law, his case was immediately forwarded to an appellate chamber for automatic review. If confirmed by the appellate court, also per Iraqi law, his execution must be carried out within 30 days.

This same procedure played out in December, 2006, when Saddam’s death sentence in the Dujail trial for the massacre of 182 Shi’a was hurriedly and amateurishly carried out after confirmation by the appellate court. At the time of his execution, Saddam was half-way through the Anfal trial. Many observers, including myslef, argued strenouosly for Saddam’s execution to be postponed until all seven trials could be completed, or at least the Anfal trial itself; or, in the alternative, have the trial continue posthumously against him so that the record of his involvement and guilt could be established. Instead, not only was Saddam executed, but the Iraqi High Tribunal declined to continue the trial posthumously against him. Moreover, all charges against Saddam in the Anfal genocide were dropped.

Thus, Saddam got away with murder. His role in the Anfal Campaigns was not officially established through a court process, flawed as that process it. The storytelling function of a criminal trial is vitally important for the victims involved. In the case of Saddam’s legally required but premature execution, Iraq’s Kurds were denied that function. And although the Shi’a of Dujail got their day in court against Saddam, the Kurds did not. Similarly, the Shi’a of southern Iraq will not get their day in court against al-Majid in the 1991 Shi’ite Uprising trial that the Kurds got in the Anfal trial.

The best institutions learn from their mistakes. The IHT and the Iraqi government should learn from the mishandling of the Saddam proceedings. My advice to the Iraqi government and the IHT on the matter of al-Majid remains the same as it was with Saddam. Postpone al-Majid’s execution so that his role in the suppression of the Shi’ites can be fully explored with his active defense. Do not rescind it, or commute it, just postpone it. Failing that, at least let the trial against him continue posthumously. And at the very least avoid dropping the charges against him. To drop the charges is not only an insult to the survivors, but to the memory of the victims as well.

In today’s New York Times General Wesley Clark and law professor Kal Raustiala offer their perspective on the war on terrorism (see here). They argue that the current administration’s policies have blurred the line between soldier and civilian. They then argue:

Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers….The second major problem with the approach of the Bush administration is that it endangers our political traditions and our commitment to liberty, and further damages America’s legitimacy in the eyes of others…A great danger in treating operatives for Al Qaeda as combatants is precisely that its members are not easily distinguished from the population at large.

Professor Bobby Chesney of Wake Forest responds:

It seems to me that this particular argument is missing a critical point: attacks on military objectives are indeed permitted, but only when carried out by someone with the combatant’s privilege. Insofar as al Qaeda members lack that privilege, their conduct in bombing the USS Cole remains an illegal act of mass murder rather than a lawful act of war regardless of whether the perpetrators are deemed to be subject to military detention in connection with armed conflict.

As does Professor Kenneth Anderson of American University here:

Well. Kal Raustiala is one of the brightest international law scholars around, and I have enomous respect for him, but this piece does not move me. It sets up a false dichotomy between ‘criminals’ and ‘combatants’, and then argues that the Bush administration has treated terrorists as combatants whereas it should treat them as criminals. This is an argument that has been going on since approximately September 12, 2001 - it is more than a bit of a dinosaur, I would have thought - and it surprises me that anyone would still be wanting to have it in these terms. More to the point - you can argue for pretty much all of the reforms of the system that the op-ed calls for (important ones of which I in fact support) without having to go back and make claims about the fundamental wrongness of the administration’s legal judgments about the applicability of the laws of war.

Professor Anderson then goes on in his typically thorough style to deconstruct all of their arguments, which I won’t attempt to reconstruct here.

However, I will post a few of my favorite “zingers” fired off by Professor Anderson:

To be perfectly blunt, at every meeting I have attended since 2001 - perhaps half a dozen - in which Clark spoke about terrorism, he made his centerpiece this point that terrorists are not soldiers and we shouldn’t treat them that way; he does not appear to have thought about it any further than that since then.

The op-ed suggests - in my view a straw man argument - that because the administration characterized Al Qaeda members as combatants, and had the attackers limited themselves to the USS Cole attack, solely on a military target, and skipped - well, what? 9/11, the African embassy bombings, the 1993 WTC attack, and a long list more - then they would had to have been treated as legal combatants rather than criminals. The fundamental premise of this argument is from an alternative universe, and a distant one at that. Why on earth are we discussing this?

Professor Chesney and Professor Anderson seem to have the better of the argument, and both posts are worth checking out!

Most of us blogging here love International Law— and with that oftentimes comes a love of internatioanl cuisine. In the spirit of that I’ve decided to post a quick video about how to make a mouthwatering dish, courtesy of my good friend Dave Caputo (who I’m hoping becomes a Food Network star someday).

From his description:

Regional/Seasonal cooking, Harvest Sausage and Grapes is the recipe demonstrated in this video. If you are looking for an easy dish that is sure to impress at a wine tasting…this is the perfect dish. We all know that people eat with their eyes first, and this dish is as beautiful on the plate as it tastes. Sweet and Savory is the perfect way to describe this delicious dish! I know that I have what it takes to be the Next Food Network Star…if you agree, let me know!

WATCH the short video HERE 

While Jack Goldsmith, Neal Katyal, Harvey Rishikof, and even Amos (see posting below) should be credited for thinking outside the box on what to do with terrorists, creating a special national security court within the U.S. court system is a bad idea. Granted, the military commissions operating outside Geneva protections down in Guantanamo Bay are no better. But the idea of allowing convictions based on classified evidence that defendants cannot see still smacks of separate justice, not equal justice. Prof. Rishikof’s 2004 NYT op-ed, which predates the one by Goldsmith and Katyal, argues:

Prosecuting terrorism is compromising our traditional court structures. The courts that are currently trying to handle such cases are clearly inappropriate. What we need is a specialized, secure and protected federal court dedicated to matters involving domestic and international security…. A national security court, with its trials as open as possible, would give our allies needed reassurance, though the court would need to forgo the death penalty in order to ensure our allies would extradite terrorists. Having a specialized court would also make it possible for us to designate and fortify an existing federal courthouse to hold terrorism trials, which would improve security for all participants. A specialized judicial bench could also travel to locations like Camp X-Ray to conduct hearings.

This really does raise the specter of closed justice - judges hiding behind fortified bunkers and all. The image is really one of the Soviet variety. As we have seen with the rampant abuse of the closed FISA court system by the executive branch, this is not the way. John Walker Lindh was tried and convicted in an Article III federal court. Zacharias Moussoui was tried and convicted. The shenanigans that went on in that case were due to the ineptitude of the DOJ attorneys prosecuting the case; not the federal judge. Our court system can handle the stresses of national security cases. Federal judges have spent decades developing theories of deference to the executive in matters that deserve that deference. Let’s trust the judges we’ve appointed to the bench to do their jobs.

A new report issued by the Combating Terrorism Center at West Point finds that 73% of GITMO detainees are a “demonstrated threat.“  Report webpage here

What does demonstrated threat mean?  It means that they have satisfied any of the following criteria:

• explicitly and without qualification supported or waged hostile activities against the U.S. or coalition partners
• fought for al Qaeda or the Taliban or associated forces
• received training in an al Qaeda or Taliban training camp
• received training in the use of combat weapons beyond small arms (grenades, rpg’s, ied’s, sniper rifles, etc.)

In fact a further 95% were found to constitute a “potential threat.”

Bill Glaberson of the N.Y. Times, whom I have spoken with from time to time on Guantanamo issues and who consistently offers balanced and well researched coverage has this to say:

The report, by a terrorism study center at West Point, is essentially a rebuttal by the military of growing assertions by advocates for detainees that the naval station at Guantánamo Bay, Cuba, is filled with hapless innocents and low-level cooks and other support personnel who pose no real threat.

It paints a chilling portrait of the Guantánamo detainees. Publicly available information, the report says, indicates that 73 percent of them were a “demonstrated threat” to American or coalition forces. It says that 95 percent were at the least a “potential threat,” including detainees who had played a supporting role in terrorist groups or had expressed a commitment to pursuing jihadist violence.

The Wall Street Journal editors also reference the report in their support for Guantanamo, stating :

The real goal of Guantanamo’s critics is to have these killers treated like common criminals in American courts. That would make it impossible to deny them the full array of U.S. legal protections. In many cases, prosecutors would lack enough evidence to convict them under normal trial rules, especially if much of the evidence were classified. Soldiers don’t build a criminal case like “C.S.I.” sleuths when they’re snagging an enemy on the battlefield while also trying to avoid getting killed.

The result of bringing Gitmo detainees into U.S. criminal courts would inevitably be their widespread release—which means leaving them free to kill Americans again. The Combating Terrorism Center at West Point recently examined the non-classified evidence about Gitmo detainees, and in a new report concludes that 73% were a “demonstrated threat” to U.S. forces. No less than 95% were a “potential threat.” According to the Pentagon, at least 30 former Gitmo detainees have returned to fight Americans after deceiving U.S. interrogators and being released.

The next Supreme Court term will offer interesting developments for the future of Guantanamo.  National Security Law nerds (like me) can’t wait to see what happens.

My proposal for the establishment of a domestic terror court, Where are Terrorists to be Tried - A Comparative Analysis of Rights Granted to Suspected Terrorists, is premised on the need to find a “middle ground” that protects the rights of the defendant while enabling the state to proceed with prosecutions while protecting the source if the case against the defendant is intelligence material based. In essence, I am advocating a re-articulation of the FISA Court so that it would become a terror trial court. My proposal addresses questions regarding interrogation, remand, trial and appeal. The proposal is relevant to what the Israel Supreme Court has called “armed conflict short of war.” In order to preserve the rights of the individual, my proposal emphasizes the absolute requirement for independent judicial review throughout the interrogation and judicial process.The detained individual is neither a POW nor a criminal as traditionally understood; therefore, the appropriate paradigm is what I refer to as a hybrid paradigm, Quirin to Hamdan: Creating a Hybrid Paradigm for the Detention of Terrorists. The proposal seeks to protect the constitutional rights and privileges of the individual, regardless whether he or she is an American citizen. My proposed Court would hear cases of American and non-American citizens, provided they are suspected of committing crimes of terrorism.

The detained individual would be granted Miranda rights at the beginning of the interrogation regardless of where the individual was detained. Should he choose to exercise that right, the interrogation cannot continue, regardless of the suspected offense. In addition, the detained individual would be regularly brought before a judge for purposes of remand. Indefinite detention is an absolute violation of the individual’s rights. The state would need to file a charge sheet against the detainee within the prescribed period of time for criminal suspects.

With respect to the interrogation process, I have argued elsewhere that torture is illegal, immoral, and does not lead to actionable intelligence, The Unholy Trinity: Intelligence, Interrogation and Torture. My proposal does allow the use of coercive interrogation techniques (hood over head, loud and cacophonous music, stress position, sleep deprivation, room modulation temperature) provided that the approval to use these measures is given in writing by the head of the national security service and that there is a physician on site who is not part of the “chain of command.” Interrogation of Detainees: Extending a Hand or a Boot?

With respect to the trial, the defendant would be granted the right to confront his accuser. Unlike traditional Article III courts, if there is a need to introduce classified information (human or signal intelligence based) it would available neither to the defendant nor his counsel. The Court could review the intelligence information and question the source. In addition, the information can assist the Court in determining the defendant’s guilt or innocence. However, a conviction cannot be based solely on this information and the Court must state that its decision to convict was primarily (more than 50%) predicated on evidence openly submitted to court, thereby preserving the defendant’s right to confront his accuser.

According to my proposal, if convicted, the defendant could appeal to the United States Supreme Court regarding both conviction and/or the severity of punishment.

Cross posted from the National Security Advisors Blog.

Fresh off the presses International Criminal Law and Its Enforcement, Cases and Materials.

Beth Van Schaack and Ron Slye provide this description of their new book:

This casebook draws from the jurisprudence of the various international and hybrid criminal tribunals (in The Hague, Tanzania, Sierra Leone, East Timor, Bosnia-Herzegovina, Baghdad, and Cambodia), United Nations bodies (such as the Human Rights Committee), regional human rights institutions, formal domestic courts, alternative or traditional courts (such as the gacaca proceedings in Rwanda), and transitional justice institutions (such as truth commissions). It also draws upon domestic and international jurisprudence involving civil, as opposed to criminal, liability to the extent that such cases are predicated upon tort analogs of international crimes and forms of responsibility such as complicity and command responsibility.

An exciting new entrant to the ever growing field of international criminal law!

(Hat Tip to IntlLawGrrls)