On Wednesday, December 5, 2007, the US Supreme Court will hear argument in Boumediene v. Bush, challenging whether the Military Commissions Act of 2006 validly stripped federal habeas jurisdiction over Petitioners imprisoned at the United States detention facility at Guantanamo Bay, and whether Petitioners’ indefinite military imprisonment as “enemy combatants” lacks Congressional authorization and violates due process.

Since January 2002, the United States has held nearly 800 people, from more than 40 countries, in military custody at the U.S. Naval Base at Guantanamo Bay, Cuba.  Some of those detained at Guantanamo were taken into custody during the war in Afghanistan. Others, including the petitioners in the Boumediene case, were captured in places far from any battlefield, including Bosnia, Gambia and Thailand.  About 385 detainees remain at Guantanamo today.  In June 2004, the Supreme Court decided Rasul v. Bush, 542 U.S. 466 (2004), holding that individuals detained at Guantanamo have a right to judicial review of the legality of their detention in U.S. courts.  Two years later, in June 2006, the Supreme Court decided Hamdan v. Rumsfeld, 542 U.S. 507 (2006), holding that the military commissions set up by the Bush Administration to try the detainees at Guananamo Bay lack “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the Geneva Conventions.

Shortly after the Hamdan decision, in July 2006, I was asked to testify before the US House Armed Services Committee, which was considering legislation to respond to the Supreme Court’s holding.  My testimony is available at: http://www.publicinternationallaw.org/publications/testimony/MilitaryCommission%20TestimonyHouse%20ArmedServices%20Committe72606.doc 

During my testimony, I stated:

“I understand that some in this room may favor the idea of responding to Hamdan by enacting legislation that would simply give Congressional authorization to the President’s existing Military Commission system without changing a thing.  It is true that  for purposes of domestic law, Congress can override the requirements of the 1949 Geneva Conventions if it enacts a later-in-time statute that manifests a clear intent to violate the provisions of these venerable international humanitarian law treaties, to which the United States is a ratifying party.  See Breard v. Greene, 523 U.S. 371 (1998).  However, Congress has always been extremely reluctant to use this power, as it renders the United States in breach of its international obligations with often serious international legal and diplomatic consequences.  Do we really want to be the only country in the world to go on record as abrogating the Geneva Conventions?   Since the United States military is more forward-deployed than all other nations combined, strict adherence to the Geneva Conventions is more important to us than any other nation.  Since the United States is a world leader, our practice is followed by other nations. If we try detainees in violation of internationally-required fair trial procedures, we increase the risk that our own troops and those of our allies (such as Israel) will be subject to similar mistreatment at the hands of others. And if by approving departure from the requirements of the Geneva Conventions, Congress is perceived as expressing disdain for some of the most important treaties of the international system, it will seriously complicate our diplomatic efforts to solve the Lebanon crisis, to eventually withdraw from Iraq, and to maintain support for our efforts to suppress terrorism worldwide. ”

A few months later, on October 17, 2006, the Military Commissions Act (MCA), was signed into law.   On the one hand, I was relieved to see that the MCA does not on its face disavow or abrogate the Geneva Conventions.  In fact, the Act declares that the military commissions created under the act are in full compliance with the Geneva Conventions (though many experts including this writer believe the military commission procedures are not in fact consistent with what is required by the Geneva Conventions).  On the other hand, the Act provides that no one tried under the military commissions may invoke the Geneva Conventions as a source of rights, and it purports to strip detainees deemed to be “unlawful enemy combatants” of the opportunity to challenge their detention or their trial before the military commissions in U.S. courts.

On November 1, 2006, counsel for Guantanamo detainees in Boumediene v. Bush, and Al Odah v. United States, two related cases, filed legal briefs in the D.C. federal appeals court challenging the habeas stripping provision (among other grounds). In February 2007, the D.C. federal appeals court rejected the detainees’ arguments that the MCA provision was unconstitutional. The Guantanamo detainees appealed the court’s decision to the U.S. Supreme Court, which denied certiorari (declined to hear the appeal) on April 2, 2007.  In an unusual move, however, the Supreme Court reversed that decision on June 29, 2007.  The case, which will be argued this week, will decide whether Petitioners-and all other Guantanamo detainees-have meaningful access to the courts to challenge their imprisonment.  The Briefs for the Petitioners, the US Government, and Amicus are available at:     http://www.wilmerhale.com/boumediene/

Amos Guiora will be among a group of experts being interviewed tomorrow, December 3, 2007 on the use of third-world contractors in Iraq. The interview can be heard live on KUER 90.1, a public radio station licensed to the University of Utah in Salt Lake City. The program is also distributed by PRI on XM Public Radio Channel 133 at 11:00 a.m. Mountain / 1:00 p.m. Eastern and repeated at 7:00 p.m. on KUER 90.1

The interview profiles the following article written by Matt LaPlante which appears in today’s Salt Lake Tribune.

Human rights, safety at issue in exporting security

By Matthew B. LaPlante

Salt Lake Tribune

Mario Urquia’s story is backed up by passport stamps, a voided visa, photographs, contracts, personal letters, military documents, Honduran government officials, an American attorney and Honduran news reports.

But perhaps most significantly, his complaints are consistent with the results of a recent investigation of the billion-dollar security contracting industry by the United Nations Working Group on the Use of Mercenaries, which has exposed systemic abuses among security contractors and subcontractors who recruit in third-world nations.

According to a report issued last year, the U.N. group found “irregularities of contracts, harsh working conditions with excessive working hours, partial or non payment of remuneration, ill-treatment and isolation, and lack of basic necessities such as medical treatment and sanitation,” among security recruits from Honduras who took jobs in Iraq. The group made similar findings regarding workers from Chile, Peru, Ecuador and Fiji all nations with rampant poverty in which U.S.-based private security companies regularly recruit and has received similar reports of abuses in more than a dozen other countries.

José Luis Gómez del Prado, the Spanish expert who heads the U.N. group, said investigators “found the same things in all these countries. There is a series of military and private security companies that obtain a contract from the Pentagon or the State

Department of the United States and then subcontract other companies which go to third world countries because the workforce is cheaper.”

Gómez del Prado said the system has little oversight and is rife with abuse.

But the bottom line, he added, is that the contractors “are civilians who have guns in a war zone and that goes against international laws.”

The United States is not a signatory on the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, but it nonetheless has been resistent to call members of its private army “mercenaries.”

The U.S. State Department uses private security contractors to augment small detachments of U.S. Marines at embassies around the world. The department declined to respond to questions regarding the legal and ethical propriety of using workers from impoverished countries in its warzone facilities.

But the U.S. Mission to U.N. offices in Geneva disputes Gómez del Prado’s conclusion that the hiring of third-world security contractors constitutes “a new form of mercenary activity.”

“Accusations that U.S. government-contracted security guards, of whatever nationality, are mercenaries is inaccurate and demeaning to men and women who put their lives on the line to protect people and facilities every day,” an October statement from the mission said.

But as the U.S. and U.N. officials parse words, the extent of the exploitation continues to be overlooked, said Jen Daskal, who studies the policies and conduct of the U.S. military for the nonprofit Human Rights Watch.

No matter what terminology is used, Daskal said, “there’s a complete lack of oversight in terms of how contractors find, pay and treat their employees when they’re hired.

Daskal called the issue “a huge problem,” but said no one in the U.S. Government seems to want to do anything about it. “There appears to be a lack of political will,” she said.

With growing scrutiny in the wake of a number of high-profile incidents involving private security companies in Iraq, Daskal is hopeful that legislation aimed at making individual contractors easier to prosecute when they commit criminal acts might, as a tertiary consequence, also bring the force of U.S. labor regulations over the process.

That, she said, might help end the most egregious abuses including some reported cases, like Urquia’s, in which “people are basically taken into indentured servitude.”

But no pending legislation would stop companies such as Blackwater, DynCorp and Triple Canopy those three security companies alone have taken in more than $2.5 billion in contracts in Iraq from recruiting workers from poor countries to risk their lives for a few dollars a day. Of that, Daskal said, “there’s nothing that has any momentum going forward right now. There’s very little outcry or even knowledge of what’s going on over there.²

That deeply concerns Amos Guiora. The national security expert, a professor at the University of Utah’s S.J. Quinney School of Law, said all Americans should be concerned with “who is fighting our battles.” He wonders what message the United States sends about its intentions and commitments overseas when such a large part of its foreign-deployed forces aren’t even Americans. And notwithstanding the obvious human rights issues, he said, there is a very clear question as to the risks the U.S. government is taking by exporting its security to the lowest bidder.

If a mercenary from Honduras will man a guard tower for the United States for $31 a day, Guiora wondered, what would he do for $32?

“When you look at the tactical, geo-strategic and geo-political risks,” he said, “from all perspectives, it¹s lose, lose, lose.”
—
mlaplante@sltrib.com
To listen to archived RadioWest programs visit:

http://www.kuer.org/kuer_podcasting.html

Cross-posted on National Security Advisors Blog

60 Minutes has just posted a 12 minute video of the case against Omar Khadr (article here) Including video of Khadr learning how to make an IED, and placing that IED on the ground in preparation for an attack. The piece has interviews with Khadr’s lawyer and his brother as well as interviews with members of the military who are working on the case or who were involved in Khadr’s capture.

http://www.cbsnews.com/sections/i_video/main500251.shtml?id=3518748n

The following op-ed was published in the San Francisco Chronicle.

In the post 9/11 world, life has changed both globally and locally. A few examples: We arrive at airports well before scheduled departure times because of long security lines; we arrive earlier at large public events because of bag checks; and increasingly, while riding public transportation to work, we check to see if something or someone seems suspicious.

Not everything about this new reality is obvious, but this much is: We need to develop a counterterrorism training model for protecting the public; a model that must be exponentially different from yesteryears. This requires a multidisciplinary, integrative approach that facilitates discussion of two issues fundamental to counterterrorism: effectiveness and protection of human rights.

As we prepare and train those involved in operational counterterrorism, we need to ask: What we are training for?” What do we expect and demand the trainee to learn and implement?

How should those protecting us respond when someone seemingly ill seeks to pass through a security line? There have been cases where illness was feigned for purposes of conducting terror attacks.

How should those protecting us respond when an apparently pregnant woman requests special consideration? After all, terrorist organizations have previously used such scenarios for duplicitous reasons.

And where do we draw the line? Should every shoe be removed and scanned after an attempt at London airport to use shoes to smuggle a dirty bomb or do we make an exception when an elderly woman with a wooden leg connected to a shoe tries to pass a security line?

These questions are relevant to military personnel, Transportation Security Administration personnel and security officials at public events worldwide. Thus, training programs should be based on the experience of others. Israel, which has been forced to respond to terrorism for many years, can be seen as the “world’s laboratory” for operational counterterrorism. Israel has developed security strategies for, among others, airports, public transportation and shopping mall protection.

These strategies are predicated both on their cost and protection of human rights. They presume a need to prepare security personnel for complex situations in which they will be required to distinguish between a civilian and a terrorist, whether in the West Bank or Jerusalem’s central bus station.

Under my command, the Israel Defense Forces School of Military Law engaged senior commanders to co-develop an interactive training program that addressed the confluence of human dignity and armed conflict. Teaching the soldier how to distinguish between an innocent civilian and a terrorist carrying a suicide bomb belt hidden in a prayer rug or an ambulance is extraordinarily complicated. It is also mandatory. Otherwise both human rights violations and ineffective counterterrorism will rule the day.

The great battles of the past were conducted on large battlefields. The enemy wore a uniform, was readily identified, carried his weapon openly and represented a nation-state. Military training was very much “within the box.” Given the enormous complexity of terrorism and counterterrorism alike, both domestically and globally, today’s training model requires us to think “outside the box.”

The “enemy” may cause unimagined damage in an ever-moving “zone of combat” that extends far beyond the traditional battleground. Whether in Berkeley or Mumbai, Salt Lake City or Mosul, Wichita or, Tel Aviv, the “enemy” does not wear a uniform, generally does not openly carry a weapon and does not represent a nation-state.

In order to prevent loss of innocent life, violations of human rights and waste of public funds, we must develop sophisticated training models to address these profound concerns.

Effective counterterrorism training models must teach our protectors:

– International and domestic law;

– Moral standards in armed conflict;

– International relations and history;

– Cultural norms and sensitivities;

– Language and communication skills.

We must think “outside the box” in developing a worldwide training model that enables our protectors to more effectively protect us. This is a critical first step. And one we need to take today.

Amos N. Guiora is a professor of law at the S.J. Quinney College of Law, University of Utah, is speaking on Nov. 15 on legal and policy global perspectives on Counterterrorism at the Santa Clara School of Law, San Jose State University and Stanford University.

This article appeared on page B - 11 of the San Francisco Chronicle

View comments to this article online at San Francisco Chronicle.

Cross-posted on the National Security Advisors Blog

By Michael Scharf and Margaux Day

            While we applaud Colonel Davis for his integrity in resigning in the face of executive branch interference in the work of the Military Commissions, one statement from his interview (reproduced in Greg McNeal’s essay, “Politics and the Military Commission” below) cried out for a response:

INTERVIEWER: Some say Khadr is a child soldier, why isn’t he treated as a child soldier?

COL. DAVIS: “…because he is not.  If you look at the Convention on the Rights of the Child, Article 37 talks about the prosecution of individuals under the age of 18.  They can be prosecuted but they can’t be sentenced to death or confinement for life…The definition of a child soldier is one who has not yet attained the age of 15, Omar Khadr was 15 years and 10 months old when we captured him on the battlefield.”                       

            As a 15-year-old captured on the battlefield of Afghanistan, Omar Khadr was in fact a child soldier, and the jurisprudence of the Special Court for Sierra Leone suggests that Khadr’s prosecution by a U.S. military commission would therefore be inappropriate.  Under its statute, the jurisdiction of the Special Court for Sierra Leone was broad enough to potentially include prosecution of soldiers over the age of 15, but the Chief Prosecutor, David Crane, concluded that prosecuting such persons would be inappropriate under international law because child soldiers are victims at the same time they are perpetrators - a conclusion that was implicitly reaffirmed by the Appeals chamber of the Special Court for Sierra Leone in Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Prosecutor v. Sam Hinga Norman, SCSL-2004-14-AR72 (E) (May 31, 2004) (recognizing customary international law crime of recruiting child soldiers).  According to Crane: “The children of Sierra Leone have suffered enough both as victims and perpetrators. I am not interested in prosecuting children. I want to prosecute the people who forced thousands of children to commit unspeakable crimes.”  See Amnesty International Report, “Liberia: The Promises of Peace for 21,000 Child Soldiers,” 17 May 2004.

            While Colonel Davis is correct that the Convention on the Rights of the Child defines a child as a person less than fifteen years of age (Article 1), he overlooks the fact that the Optional Protocol to the Convention on the Rights of a Child on the Involvement of Children in Armed Conflict (1) requires all States to “take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities”; (2) prohibits the compulsory recruitment of persons under 18; and (3) permits the voluntary recruitment of persons under 18 under very limited circumstances, conditioned on parental consent, full information, and reliable proof of age.  The Optional Protocol, adopted on 25 May 2000, has been ratified by 73 countries, including Afghanistan and the United States.

         Other international instruments define a child soldier as a person less than eighteen years of age.  For example, the Cape Town Principles on the Prevention of Recruitment of Children into the Armed Forces and Demobilization and Social Reintegration of Child Soldiers in Africa, adopted in April 1997, recommends that governments prevent the participation of persons in hostilities that are less than eighteen years of age.  It goes on to specifically define a “child soldier” as “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity.” The Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour states that the term child should apply to all persons under the age of eighteen.

         Many countries have domestic laws outlawing the recruitment and deployment of persons under eighteen for armed service.  Although the United States might be a persistent objector to the customary principle that child soldiers are soldiers under the age of eighteen, widespread practice by other States reveals that persons between the ages of fifteen and seventeen are children, and must be treated as such.  Below is a timeline that shows domestic laws and international instruments that prohibit the recruitment of persons under the age of eighteen into armed forces, indicating how out of step the U.S. is on this issue.

Timeline - Recruitment of Child Soldiers

• 1900 - Guinea sets minimum age of recruitment for armed services at 18
• 1903 - Australia sets minimum age of recruitment for armed services at 18
• 1954 - Thailand sets minimum age of recruitment for armed services at 18
• 1956 - Germany sets minimum age of recruitment for armed services at 18
• 1959 - Myanmar sets minimum age of recruitment for armed services at 18
• 1960 - Gabon sets minimum age of recruitment for armed services at 18
• 1961 - Cote d’Ivoire sets minimum age of recruitment for armed services at 18
• 1962 - Jamaica sets minimum age of recruitment for armed services at 18
• 1962 - Nepal sets minimum age of recruitment for armed services at 18
• 1962 - Benin sets minimum age of recruitment for armed services at 18
• 1964 - Brazil sets minimum age of recruitment for armed services at 18
• 1966 - Morocco sets minimum age of recruitment for armed services at 18
• 1969 - Iraq sets minimum age of recruitment for armed services at 18
• 1970 - Singapore sets minimum age of recruitment for armed services at 18
• 1972 - France sets minimum age of recruitment for armed services at 18
• 1975 - Paraguay sets minimum age of recruitment for armed services at 18
• 1976 - Bolivia sets minimum age of recruitment for armed services at 18
• 1977 - Belize sets minimum age of recruitment for armed services at 18
• 1978 - Chile sets minimum age of recruitment for armed services at 18
• 1980 - Denmark sets minimum age of recruitment for armed services at 18
• 1980 - Ecuador sets minimum age of recruitment for armed services at 18
• 1980 - Egypt sets minimum age of recruitment for armed services at 18
• 1980 - Kuwait sets minimum age of recruitment for armed services at 18
• 1980 - Zimbabwe sets minimum age of recruitment for armed services at 18
• 1981 - Vietnam sets minimum age of recruitment for armed services at 18
• 1982 - Indonesia sets minimum age of recruitment for armed services at 18
• 1983 - El Salvador sets minimum age of recruitment for armed services at 18
• 1983 - Lebanon sets minimum age of recruitment for armed services at 18
• 1984 - China sets minimum age of recruitment for armed services at 18
• 1984 - Iran sets minimum age of recruitment for armed services at 18
• 1987 - Haiti sets minimum age of recruitment for armed services at 18
• 1987 - Libya sets minimum age of recruitment for armed services at 18
• 1989 - sets minimum age of recruitment for armed services at 18
• 1989 - Adoption and Opening for Signature of U.N. Convention on the Rights of the Child.
• 1990 - African Charter on the Rights and Welfare of the Child adopted
• 1990 - Namibia sets minimum age of recruitment for armed services at 18
• 1990 - Entry into Force of U.N. Convention on the Rights of the Child.
• 1991 - Armenia sets minimum age of recruitment for armed services at 18
• 1991 - Croatia sets minimum age of recruitment for armed services at 18
• 1991 - Philippines sets minimum age of recruitment for armed services at 18
• 1992 - Czech Republic sets minimum age of recruitment for armed services at 18
• 1992 - Republic of Moldova sets minimum age of recruitment for armed services at 18
• 1992 - Ukraine sets minimum age of recruitment for armed services at 18
• 1992 - Chad sets minimum age of recruitment for armed services at 18
• 1992 - El Salvador Chad sets minimum age of recruitment for armed services at 18
• 1992 - Belarus sets minimum age of recruitment for armed services at 18
• 1993 - Hungary sets minimum age of recruitment for armed services at 18
• 1993 - Kazakhstan sets minimum age of recruitment for armed services at 18
• 1993 - Mongolia sets minimum age of recruitment for armed services at 18
• 1993 - Nigeria sets minimum age of recruitment for armed services at 18
• 1994 - Kyrgyzstan sets minimum age of recruitment for armed services at 18
• 1994 - Sweden sets minimum age of recruitment for armed services at 18
• 1994 - Tajikistan sets minimum age of recruitment for armed services at 18
• 1994 - Cameroon sets minimum age of recruitment for armed services at 18
• 1995 - Spain passes Penal Code, Article 612(3)
• 1995 - Russian Federation sets minimum age of recruitment for armed services at 18
• 1995 - Uganda sets minimum age of recruitment for armed services at 18
• 1995 - Argentina sets minimum age of recruitment for armed services at 18
• 1995 - Eritrea sets minimum age of recruitment for armed services at 18
• 1996 - Bosnia Herzegovina sets minimum age of recruitment for armed services at 18
• 1996 - Dominican Republic sets minimum age of recruitment for armed services at 18
• 1996 - Ethiopia sets minimum age of recruitment for armed services at 18
• 1996 - Lesotho sets minimum age of recruitment for armed services at 18
• 1996 - Romania sets minimum age of recruitment for armed services at 18
• 1997 - Cambodia sets minimum age of recruitment for armed services at 18
• 1997 - Colombia sets minimum age of recruitment for armed services at 18
• 1997 - Slovakia sets minimum age of recruitment for armed services at 18
• 1997 - Greece sets minimum age of recruitment for armed services at 18
• 1997 - The Cape Town Principles on the Prevention of Children into Armed Forces and Demobilisation and Social Reintegration of Child Soldiers in Africa adopted
• 1997 - Mozambique sets minimum age of recruitment for armed services at 18
• 1998 - Argentina passes Draft Code of Military Justice
• 1998 - Algeria sets minimum age of recruitment for armed services at 18
• 1999 - South Africa sets minimum age of recruitment for armed services at 18
• 1999 - Venezuela sets minimum age of recruitment for armed services at 18
• 1999 - Adoption of Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour
• 1999 - Portugal sets minimum age of recruitment for armed services at 18
• 1999 - Entry into force of African Charter on the Rights and Welfare of the Child
• 2000 - Adoption and Opening of Signature of Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.
• 2000 - Democratic Republic of the Congo sets minimum age of recruitment for armed services at 18
• 2000 - Entry into force of Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour
• 2001 - East Timor Congo sets minimum age of recruitment for armed services at 18
• 2001 - Finland sets minimum age of recruitment for armed services at 18
• 2002 - Entry into force of Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.
• 2002 - Israel sets minimum age of recruitment for armed services at 18

In a frank interview with the Canadian television program “The Verdict” Colonel Morriss Davis, the former Chief Prosecutor for the Department of Defense Office of Military Commissions offers his insight into the process and the reason why he resigned from his post as Chief Prosecutor (full disclosure, I worked with Colonel Davis on research issues related to the prosecutions). 

Here are some of the highlights:

COL. DAVIS: “I resigned recently because of what I considered political pressure which I deemed unacceptable…the military judge says he took heat for his decisions, I can attest to that on my side as well…for me it got to the point where I felt the politicization of the process had taken control so I resigned.  We have the tools to do it right if you could get a couple of people out of the process.” 

INTERVIEWER: “Can you let us have some idea where this [poltical] heat comes from?”

COL. DAVIS: “Primarily from the Dept. of Defense General Counsel, a gentleman by the name of Jim Haynes.  Mr. Haynes is a political appointee, he had been nominated by the President for a seat on the the 4th Circuit Court of Appeals, but because of his involvement in the torture memo and torture policy his nomination died.  In October Mr. Haynes became part of my chain of command…that’s when I said ‘enough is enough’ and I quit.” 

INTERVIEWER: [Regarding the Khadr Case] Why is this taking so long?

COL. DAVIS: “I put most of the blame at the feet of Jim Haynes.  This is supposed to be a military commission…if they trusted folks in uniform to do this right, I think we’d be halfway finished with all these trials by now.  But they don’t trust the military.  The political appointees want to control the process, they don’t trust the military to do it right…folks in uniform have done their best to bring integrity to this process…”

INTERVIEWER: Some say Khadr is a child soldier, why isn’t he treated as a child soldier?

COL. DAVIS: “…because he is not.  If you look at the Convention on the Rights of the Child, Article 37 talks about the prosecution of individuals under the age of 18.  They can be prosecuted but they can’t be sentenced to death or confinement for life…The definition of a child soldier is one who has not yet attained the age of 15, Omar Khadr was 15 years and 10 months old when we captured him on the battlefield.” 

I’ve blogged previously about the type of issues that Col. Davis raises.  What seems apparent to me, is that the military has consistently raised procedural concerns that have fallen on deaf political ears.  The only type of influence actors in the Executive branch seem to want to exert is that of control of the process.  When given the opportunity to use their influence to clear procedural hurdles and keep the process on track they’ve failed to act. 

Examples of the failure to act abound, for example a good use of Executive influence would be to clear procedural deficiencies such as those regarding:  the jurisdictional predicate made by the C.S.R.T. (which could have been resolved months earlier by changing the “Wolfowitz memo,” but which instead wound its way all the way to the D.C. Circuit); resolving whether the Deputy Secretary of Defense properly constituted the appeals panel (which could have been corrected by a memorandum, but instead had to wind its way through the appeals court); eliminating the requirement that the panel make a sentencing determination when a plea had already been worked out which would supercede any panel determination (instead a panel was constituted and flown down to Guantanamo to make a determination on a sentence that had already been agreed to and finalized); clearing unecessarily classified information for use at trial; eliminating the Appointing Authority’s Legal Advisor’s influence from the process (which creates the perception that an objective check designed to analyze whether charges are sufficient instead appears to be a political process designed to direct the prosecution team regarding what cases they should bring.)  

If the military commissions are really the centerpiece of the administration’s counterterrorism policy (or at least a key part of it), they certainly have not done a good job ensuring the success of the commissions.  Repeatedly in the “war on terrorism” we’ve found uniformed officers taking a principled stance on legal issues, only to be consistently thwarted by political appointees, the Davis interview highlights that this unfortunate practice is continuing today.  The question of course, is what to do?  Revoking the MCA doesn’t seem in the cards, but certainly some more oversight on the part of Congress would be necessary and appropriate.  Undue command influence is a serious issue, it is a prime feature in the M.C.A. & U.C.M.J., and bears directly on Congressional responsibility to regulate the military– if Congress wants to have an impact, perhaps they should look into these command influence issues. 

To watch the full interview click here . 

Global Perspectives on Counterterrorism

Amos N. Guiora
University of Utah

500 pages. Paperback. ISBN: 978-0-7355-6800-6. With Teacher’s Manual.

About the Book

Author Amos N. Guiora compares the four aspects of counterterrorism-law, policy, intelligence gathering, and operational decisions-from the perspectives of five different countries: the United States, Spain, Russia, Israel, and India. With engaging writing and an interdisciplinary approach, Guiora illuminates a wide variety of timely issues, including interrogation, judicial review, international law, and the proper forum for trying terrorists.

A perfect complement to the study of international law, constitutional law, criminal law, national security law, and counterterrorism, Global Perspectives on Counterterrorism is ideal for anyone seeking insight and a broader perspective on a subject at once national and personal, offering:

• Expertise that draws on first-hand knowledge of law, policy, military operations, and intelligence gathering
• An interdisciplinary approach that examines law, policy, intelligence gathering, and operational decisions in the context of counterterrorism
• Extensive comparative analysis of the counterterrorism efforts of five different nations
• A rich selection of materials that includes case law, policy documents, and case studies
• Highly engaging text supported by simulation exercises and suggested topics for discussion
• Timely coverage of a range of issues from the ethical boundaries of interrogation to judicial review, international law, and the proper forum for trying terrorists

View this online at Aspen Publishers Legal Education.
Cross posted from the National Security Advisors Blog.

The AIDP (American National Section) has awarded a Book of the Year Award and an Article of the Year Award at its Annual Meeting in October every year since 2003. As winner of last year’s Book of the Year Award, I was asked to serve as Chair of the three-person Committee which selected the winners of this year’s awards. The three finalists for 2007 Book of the Year Award were “War Crimes and Just War” by Larry May; “Atrocity, Punishment, and International Law” by Mark Drumbl; and “Saddam on Trial: Understanding and Debating the Iraqi High Tribunal” by Michael Scharf and Greg McNeal.

And the winner of the 2007 Book of the Year Award was … “Atrocity, Punishment, and International Law” by Mark Drumbl. In addition, I am pleased to announce that the winner of the 2007 Article of the Year Award was “From the eXile Files: An Essay on Trading Justice for Peace,” 63 Washington and Lee Law Review 339 (2006), by Michael Scharf. Congratulations to Mark and Michael on their scholarly achievement.

Colonel Larry Morris has been appointed Chief Prosecutor for the Department of Defense Offiice of Military Commissions.

Colonel Morris, currently the Chief of Trial Defense Services for the Army JAG Corps served on the inter-service team responsible for developing rules and strategies for trying suspected terrorists by military commissions, expertise which I’m sure will serve him well in his new position.

Losing Colonel Davis was a big loss for the prosecution, but it looks like the Department of Defense has made the right choice by appointing someone from outside the convening authority’s office who also has military commissions expertise. Coming from the Trial Defense side of the house is an extra bonus (although most JAGs frequently shift from one side of the v. to the other throughout their career).

Congratulations to Colonel Morris.

Full bio here.

This story is sure to make you uncomfortable:

In the early hours of May 12, seven U.S. soldiers - including Spc. Jimenez - were on lookout near a patrol base in the al Qaeda-controlled area of Iraq called the “Triangle of Death.”

Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.

* * * * *

A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers - obeying strict U.S. laws about surveillance - cobbled together the legal grounds for wiretapping the suspected kidnappers.

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

* * * *

“The intelligence community was forced to abandon our soldiers because of the law,” a senior congressional staffer with access to the classified case told The Post.

“How many lawyers does it take to rescue our soldiers?” he asked. “It should be zero.”

The FISA law applies even to a cellphone conversation between two people in Iraq, because those communications zip along wires through U.S. hubs, which is where the taps are typically applied.

More here