National Security Advisors

Army Initiates First Court-Martial of a Civilian Contractor

The Army has charged the first civilian for trial by court-martial since the the Court of Appeals for the Armed Forces struck down the exercise of such jurisdiction in 1970.  The charge against a contractor in Iraq accused of aggravated assault in violation of the Uniform Code of Military Justice is based on a resurrection of this jurisdiction resulting from an amendment to the UCMJ enacted by Congress in October 2006.  This amendment expressly established jurisdiction over civilians accompanying the armed forces in the field during not only declared wars, but during any other contingency operation approved by the Secretary of Defense. 

A commentary on what I believe are potential constitutional problems with this exercise of jurisdiction is available here.  I have also written a critique of this amendment to the UCMJ in an article forthcoming in the Miami Law Review, proposing that this jurisdiction be limited to summary courts-martial (which do not result in a federal criminal conviction).  Such a limitation would respond to the legitimate needs of operational commanders for effective disciplinary sanctions over civilian contractors without subjecting civilians to true criminal trials before non-civilian courts.  The article is available here.

National Security Law Junior Faculty Workshop (May 23, 2008)

On behalf of a range of institutions (please see the list of sponsors/hosts in the attached flyer), I am very pleased to announce that there will be a national security law junior faculty workshop at Wake Forest on Friday May 23, 2008.  The full details appear here. 

For those among you who write or teach on topics in this area, please give serious consideration to attending.  Also please forward this announcement to any colleagues who you think might be interested.  Contact me at robert.chesney[at]wfu.edu if you (or they) have any questions!

Veto of Bill Banning Torture Places Interrogators in a Bind

In response to President Bush's decision to veto legislation outlawing waterboarding, Daniel C. Barr (Perkins Coie Brown & Bain) and I wrote this op-ed, Veto of Bill Banning Torture Places Interrogators in a Bind, published in today's Salt Lake Tribune.

Cross-posted on AIDP Blog.

Learn more information about my casebook Global Perspectives on Counterterrorism here.

Did Omar and Munaf Just Become the Same Case?

Over at Opinio Juris, Kevin Heller has news of an immensely important development -- the Iraqi Court of Cassation's reversal of Mohammed Munaf's conviction by the Central Criminal Court of Iraq (the "CCC-I"). Munaf's habeas petition is one of two brought by U.S. citizens detained in Iraq set to be argued before the Supreme Court later this month (and in which I co-authored an amicus brief in support of the federal courts' jurisdiction).

Significantly, the distinction between Munaf and the other detainee -- Omar -- relied upon by the D.C. Circuit was Munaf's conviction by the CCC-I... the lower courts concluded that, where the U.S. citizen-detainee had not been tried and convicted (Omar), there was jurisdiction; where he had, there wasn't (Munaf).

If Munaf's conviction has now been reversed, that has the potential to change the whole complexion of the two cases; now, both present a challenge to "pure" executive detention, without the wrinkle added by Munaf's conviction (subsequent to the filing of his habeas petition). Indeed, Munaf's almost becomes the stronger case, since his, unlike Omar's, is not in the posture of a grant of a preliminary injunction...

How will the government respond? Will the Supreme Court now just decide Omar, and vacate and remand Munaf for further proceedings not inconsistent therewith?

One thing is for sure: If this all pans out, the reversal of Munaf's conviction serves to reinforce the deep flaws in his trial in the first place, and the reason why federal judicial review of his detention via habeas was--and continues to be--so critical in his case.

Law Professor Amicus Brief in Omar and Munaf

I'm extremely pleased (and, perhaps more importantly, relieved) to post a copy of the amicus brief filed today on behalf of a group of federal courts and constitutional law professors in the Iraqi detention cases currently before the Supreme Court -- Geren v. Omar and Munaf v. Geren.  I had the privilege of co-authoring the brief along with Judith Resnik (Yale) and a team of lawyers from Davis Polk...

I've written a lot about these cases before, both on the blog and in print. In a nutshell, the brief argues that the Supreme Court's habeas jurisprudence, though not always completely consistent, has evolved in such a manner so as to produce a series of principles that support the exercise of jurisdiction in both of the current cases (although the brief takes no position on the merits).

Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists

View my debate with John T. Parry, Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists

Abstract:
Despite the fact that six years have passed since 9/11, the Pentagon's recent decision to try six Guantanamo detainees for capital crimes such as terrorism and support of terrorism made national headlines. William Glaberson, U.S. Charges 6 With Key Roles in 9/11 Attacks, N.Y. Times, Feb. 11, 2008, at A1. In this Debate, Professors Amos N. Guiora, of the University of Utah, and John T. Parry, of Lewis & Clark Law School, attempt to settle the question of what sort of forum is most appropriate to try the thousands of individuals in U.S. custody who are suspected of terrorism.

Professor Guiora considers three forum options: treaty-based international terror courts, traditional Article III courts, and a hybrid option he calls domestic terror courts. Ultimately, Professor Guiora argues in favor of domestic terror courts, which he describes as being able to balance the legitimate rights of the individual with the equally legitimate national security rights of the state. He considers this option to be the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and an awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.

Professor Parry agrees that current U.S. policy toward detainees has been misguided, but does not believe that innovations of the sort proposed by Professor Guiora are necessary. Rather, he suggests that policymakers should choose Article III courts rather than hybrid courts for trials of suspected terrorists, with military courts as a fallback option. Professor Parry points to research that shows that the federal government is often able to prosecute suspected terrorists in federal court, and therefore considers alternative proposals to Article III courts to be solution[s] in search of a problem. Professor Parry realizes that trial in federal court will not be possible for every suspected terrorist, and concludes that, [f]or people who pose a risk but whose conduct may not violate federal criminal law, prolonged preventive detention is the best choice.

Cross-posted on AIDP Blog 

Learn more information about my casebook Global Perspectives on Counterterrorism here.

Alternatives to Habeas and the Myth of Swain v. Pressley

I've been staying rather mum on the Guantanamo cases and the Iraqi detention cases, partly because I've been busy and partly because I've been involved in both... that being said, I wanted to flag one issue that I explore in a new paper an early draft of which I just posted to SSRN--the idea of "adequate" and "effective" alternative remedies to habeas corpus. The paper, which I wrote in conjunction with a November 2007 symposium at the Roger Williams University School of Law, basically argues that Swain v. Pressley, the 1977 decision commonly cited for the proposition that Congress can fashion alternative remedies to habeas corpus, is actually incredibly unhelpful in providing criteria for identifying limits on Congress's power to so provide (and that a careful analysis of Pressley and its precursor, United States v. Hayman, helps to show why).

Here is the abstract; of course, I'd welcome any and all comments:

The Supreme Court's decision in Swain v. Pressley, 430 U.S. 372 (1977), is routinely cited for the proposition that "the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus." Thus, in the habeas petitions filed by Guantanamo detainees currently before the Supreme Court, one of the central questions is whether the substitute remedy provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 is "neither inadequate nor ineffective to test the legality of . . . detention."

Surprisingly, though, for as central a role as Pressley may yet come to play in the current cases, exceedingly little has been written about the decision, and there are no sustained academic treatments of Justice Stevens's cryptic holding. This symposium essay attempts to remedy that defect, analyzing Pressley in light of the precedent upon which it relied (the Court's 1952 decision in United States v. Hayman, upholding 28 U.S.C. 2255), before moving to how Pressley came to be understood after it was decided. As the essay argues, critical to the Court's decision in Pressley (as in Hayman) was statutory language providing that, should the alternative remedy prove to be inadequate or ineffective, habeas corpus would remain available. Thus, courts interpreting the statutes upheld in Hayman and Pressley never had to choose between concluding that the remedy _was_ adequate and effective and striking down the statute as violating the Constitution's Suspension Clause.

As the essay concludes, the myth of Swain v. Pressley, then, is that it provides useful criteria for assessing statutory substitutes for habeas corpus that do not include similar safety valves. Quite to the contrary, as a series of cases under the REAL ID Act of 2005 help illuminate, Pressley ultimately distorts courts' analysis of the adequacy of the substitute remedy, and will therefore likely be of little practical utility to the Supreme Court in the current cases.

A Critical Decision Point on the Battlefield-Friend, Foe, or Innocent Bystander

View my article co-authored with Matthew V. Ezzo, A Critical Decision Point on the Battlefield-Friend, Foe, or Innocent Bystander

Abstract:
Unlike traditional war in which soldiers fought soldiers and tanks attacked tanks, the "unseen enemy in the dark shadows of the back alleys" characterizes the post 9/11 world. Commanders are facing many challenges targeting battlefield combatants. What increasingly complicates the battlefield commanders' dilemma in determining the status of the individual standing before him is what we describe and define in the article as "voluntary human shields". Commanders are faced with many decision points once terrorist organizations or enemy forces introduce human shields into the equation. Battlefield commanders must determine whether the human shield is friend, foe, or innocent bystander. After making this determination, the commander then must consider the impact of potential civilian casualties or the perception that civilian casualties occurred. These decisions often have to be made by the commander on the ground with little to no time to contemplate the pros and cons of the decision.

We have chosen to address this issue for multiple reasons: commanders demand clear criteria regarding the status of those in the "zone of combat"; the innocent civilian must be protected; international law demands the soldier be trained in distinguishing between the innocent and non-innocent and the community supporting terrorist organizations must know that the truly innocent will be protected (to the greatest extent possible). The security of those individuals on the battlefield depends on the analysis of the commander. The commander must assess the security rights of the individuals on the field of battle (guided by international humanitarian law) versus the security of the soldiers he commands and the security of the state he represents. The commander needs tools to toss into his proverbial pack to take with him on the battlefield. In the article, we assert the "tools" must consist, at a minimum, of the following factors: 1) intelligence information; 2) analysis of the conduct of the specific individual; 3) battlefield circumstances at the relevant time; 4) the commanders' prior experience; 5) the conduct of additional individuals in the surrounding area. Senior military commanders, policy and decision makers, academics, the general public and those supporting terrorists must address this issue. Otherwise, the killing of innocent civilians is as inevitable as the tragic death of a soldier unequipped to determine "who is the enemy".

Cross-posted on National Security Advisors Blog.

Learn more information about my casebook Global Perspectives on Counterterrorism here.

Accountability and Effectiveness in Homeland Security

View my following paper, Accountability and Effectiveness in Homeland Security

Abstract:
In response to the continued terror threat facing the United States, counterterrorism measures must be developed that are both effective and meet accountability standards. This paper approaches the issue by: (1) proposing a matrix facilitating the measurement of the effectiveness or ineffectiveness of a particular counterterrorism measure; and (2) proposing an accountability matrix for measuring the effectiveness of particular measures. The paper's central focus is developing criteria for measuring effective counterterrorism - premised on the rule of law, policy considerations, and the limits of power. If utilized, these criteria will provide empirical evidence that particular counterterrorism measures in actuality contribute to effective and legal counterterrorism.

Cross-posted on National Security Advisors Blog.

Learn more information about my casebook Global Perspectives on Counterterrorism here.

Do We Already Have a "National Security Court"?

[An edited version of this post also appears at PrawfsBlawg.]

Jonah beat me to the punch re: a post on the new Super Bowl champions, which leaves me to talk substance on this dreary Washington Monday morning... I was very lucky to play a part in last Friday's conference here at WCL asking "Do We Need a New National Security Court?", where the star was undoubtedly the keynote speaker, Judge Leonie Brinkema of the Eastern District of Virginia, who has presided over the Moussaoui and Al-Timimi cases, among others.

I moderated the last panel -- on whether we need a new national security court for criminal prosecutions of suspected terrorists, and wanted to focus on one suggestion made by one of the questioners--one of the conference co-organizers, Ben Wittes from the Brookings Institution. Ben's question was simple enough: Don't we already have such a national security court, under the guise of the military commissions set up pursuant to the Military Commissions Act of 2006 ("MCA")?

After reflecting on that question for a minute, I sort of hedged, and suggested that I thought "it depends." Why?

The basic premise of Ben's question was that the MCA, in effect, sets up a national security court by giving the government broad powers to try terrorism suspects before courts whose procedures and evidentiary rules vary dramatically from that of the typical Article III civilian criminal tribunals. And he is certainly right in so characterizing the MCA.

But I think it's slightly more nuanced than that. If one accepts, as I do, that the laws of war recognize a small class of cases where enemy belligerents during wartime may lawfully be tried by a military commission, then I don't think it meets a loose definition of a general "national security court" simply for Congress to provide more comprehensive statutory authority for such tribunals.

The hard part is the scope of the MCA commissions' personal and subject-matter jurisdiction. And given the breadth of the definition of "unlawful enemy combatant" in section3 of the Act, combined with the inclusion of a host of substantive offenses (e.g., conspiracy; material support) not recognized by the laws of war (and capable of sweeping within their scope a massive range of criminal, as opposed to belligerent, conduct), I think it is quite clear that the MCA creates military commissions with jurisdiction over both offenders and offenses that substantially exceeds that of traditional military commissions.

Of course, it's a separate question whether the MCA is unconstitutional in so providing. The bigger point here, methinks, is that the answer to that question has implications for the future of the idea of "national security courts." If there are constitutional limits on the circumstances under which Congress may depart from the Article III model for trying federal criminal offenses, presumably those limits would be implicated here. If, conversely, the jurisdiction of the MCA commissions is eventually upheld, then I think it is fair to say that the MCA could become an important precedent for future "national security court" proposals, especially where non-citizens are concerned.

One thing is certainly clear: The contention that was raised several times on Friday--i.e., that this debate is entirely academic and lacks practical significance because "no one" would ever dare create a national security court for criminal prosecutions--may not be entirely accurate. And the MCA, stealthily (is that even a word?), is the reason why.