National Security Advisors

Improving Detainee Policy: Testimony before Senate Judiciary Committee on June 4

I have been invited to testify before the Senate Judiciary Committee in a hearing on June 4, 2008, entitled "Improving Detainee Policy:  Handling Terrorism Detainees within the American Justice System."  I will testify regarding my proposal advocating the establishment of a domestic terror court in the US.

To watch the Senate Judiciary Committee hearings on Wednesday, June 4, open wwww.CapitolHearings.org
Click on Room number Dirksen 226 from  the scrolling list to the right of the screen to begin streaming audio.

 The executive summary of my testimony appears below. Click here to read the full text of the prepared testimony.

 Improving Detainee Policy:  Handling Terrorism Detainees within the American Justice System

(Executive Summary)

 Considering how to handle terror detainees within the American justice system, there are three forum options: (1) treaty-based international terror courts, (2) traditional Article III courts, and (3) a hybrid option which I call “domestic terror courts.” This testimony discusses the feasibility of each forum and recommends domestic terror courts as the practical solution to detainee policy, as a legal regime for the trials of those detained post-9/11.  

 In response to the Supreme Court decision, Hamdan v Rumsfeld, 126 S.Ct. 2749 (2006), I have developed a model that enables the trying of terrorists while meeting judicial scrutiny by drawing on certain elements of the criminal law process. Incorporating elements of the American criminal law and criminal procedure paradigm, and drawing on the Israeli two-tiered system for the trying of terrorists, this testimony offers the forum of the domestic terror courts as a concrete recommendation for how to handle detainees post-Hamdan.

 Furthermore, the testimony addresses the limits of the applicability of the criminal law process, particularly with respect to the right of detainees to confront their accusers. Detainee trials are largely based on intelligence sources whose identity cannot be disclosed. The lack of disclosure prevents full implementation of the Sixth Amendment confrontation clause.

 Ultimately, my model balances the defendant's basic rights with equally legitimate national security considerations. Therefore, the domestic terror court option is 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 awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.

Cross-posted on AIDP Blog.

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

KSM's Defense Counsel - Good Man With an Impossible Job?

While I’m normally a ‘glass is half-full’ type of person and not prone to give much credence to conspiracy theories, I find it hard to be too optimistic over this generally positive account of Khalid Shaik Mohammed’s lead defense counsel, Navy Reserve Captain Prescott Prince, that appeared in the Los Angeles Times this weekend.

On the plus side, it is good news for those concerned about justice that Captain Prince is a reservist who has substantially more criminal defense experience than an active duty counterpart could amass and that he plans to mount a zealous defense.  Further, as a reserve captain (O-6), one would expect that he recognizes that he has gone as far as he can on merit and should have little professional concern about competing for further promotion.  And his background in psychology will obviously be most helpful given his client’s factual circumstances.

On the negative side, I find far more basis for concern in the article than optimism, however, for the reasons that follow:

Although the government has had years to prepare for these trials, it is now pushing forward at a pace that can only serve to impair the ability of the defense to prepare.

The government continues to hamper defense access to the defendants.  The prosecution, which will build its case from evidence compiled by various government agencies and military commands, can essentially access its evidence anywhere it chooses.  Defense counsel, by comparison are dependent upon information from their clients and must spend essentially a full day traveling to, and another back from, Guantanamo each time they want to see their clients, and are at the mercy of the government for both travel arrangements and access to their clients once they are in Guantanamo.  Flight schedules and limited access to their clients once in Guantanamo can result in spending days of time for a few hours of access.  (While “government” usually means the prosecution in a criminal case, with respect to Guantanamo travel that is not the case.  Here it refers to a military bureaucracy that believes the Guantanamo detainees are true evil incarnate and that has no ethical obligation to cooperate with the defense the way the prosecutors at least are supposed to).  It seems clear from the story that although KSM faces arraignment next week, Prince has not even had sufficient opportunity to consult with his client to know how he will plead, let alone to begin to develop any practical defense strategy beyond a general plan to contest the procedure in Article III courts as well as before the commission.

The rest of the defense team cannot even begin to review evidence because they still lack clearances and adequate facilities for the defense to work in are still lacking.  But of course this isn’t really a big deal because the government has totally failed to cooperate in any discovery, so actually at this point the defense probably doesn’t have any evidence it needs to store or review other than notes taken during client interviews.

While Captain Prince has enough background in psychology to have real concerns about his client’s mental health, he is at the mercy of the government as to whether or not there will actually be any objective assessment of his client’s condition, who will perform it, and whether it will be admissible or not.

If and when his client does cooperate in identifying any potential evidence or witnesses that might aid his cause, is there reason to believe that the government will provide the defense the necessary investigative resources to track down overseas evidence or grant the necessary access to other detainees?  And should he find such witnesses, the article makes clear, the gag order that defense counsel operate under precludes any discussion of what his client might have said with potential corroborating sources.

Senior government officials have long acknowledged that KSM was waterboarded, resulting in his admission to a fantastical series of plots that intelligence officials admit exceeds plausibility.  Yet it seems extremely unlikely that the defense will ever get sufficient details of KSM’s treatment to mount an effective challenge to this evidence, while we know that the commission’s legal advisor insists that such evidence can be presented to a judge who must bear the responsibility for determining what is admissible or not.  Given the mechanics of the adversarial system, this puts the burden squarely on the defense to contest admissibility, which they can’t do without the facts of how it was obtained.

Finally, the article notes that any trial is likely to result in years of appellate litigation.  There is little assurance that any officer, regular or reserve, will be allowed to remain assigned to a defense team long enough to see such efforts through to their conclusion.  Most those who were charged under the original military commission procedure are on their second, or even third set of military counsel.

While I said upfront I’m not a conspiracy theorist, the appointment of Captain Prince and the conditions under which he must operate suggest the Office of Military Commissions is more interested in creating the impression of adequate representation than the reality.  While the LA Times article suggests that Prince is a good choice for the job, the reality may well be that no one can provide effective representation under these circumstances.

National Security Law Junior Faculty Workshop - May 22-23

Beginning this Thursday evening in Winston-Salem, Wake Forest School of Law and the Army JAG School are co-hosting a national security law junior faculty workshop.  The event aims to bring together JAG School faculty and junior civilian faculty working in the national security law area, and will include both paper presentations and blocks of instruction led by the JAG faculty.  We are expecting between 20 and 25 participants.  The agenda is posted here.

Special thanks to Aspen Publishing (publisher of at least three terrific texts in this area, one focused on national security law in general, one on counterterrorism law from a US perspective, and yet another offering a comparative perspective) for sponsoring the event's opening dinner!

The Wall Street Journal Gets It Wrong

The Wall Street Journal published a scathing editorial today blasting the military and civilian defense attorneys it portrays as unreasonably obstructing the capital military commission prosecutions of high value terrorists, including alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM).  It is not surprising that a paper noted for its politically conservative editorial stance should defend the government's general approach to the so-called "War on Terror."  But it is disappointing to see the editors of a paper that is generally well regarded for the basic quality of its journalism get so many points of law, history, and fact wrong, as well as to question the integrity of so many career military lawyers and judges. It is also ironic to see how far the editors have shifted their views on the role of law and justice since the time of the trial they hold up as a prototype.  But more on that in a minute. 

The editorial contrasts what it portrays as the relative ease with which the Roosevelt Administration got eight Nazi saboteurs tried and "most sentenced to hang" within two months during 1942, implying that the seven year gap between the events of 9/11 and the trials the government is rushing to begin next month is due to defense counsel.  Aside from the basic fact that the Nazis were electrocuted, not hanged, the Journal neglects to mention that in 1942 the FBI assumed that the saboteurs would be tried in federal court and faithfully complied with all existing constitutional criminal procedure requirements.  Two decades before Miranda, the Nazis were informed that any statements they could make could be used against them, yet all eight voluntarily confessed in non-coerced interrogations, and provided the information necessary for the government to recover a treasure trove of physical evidence in terms of sabotage equipment and explosives they had buried on the landing beaches.  While the trial did proceed expeditiously, it was fundamentally fair.

Today the situation is quite different.  After first holding the detainees incommunicado for several years at CIA "black sites" where they were subject to extremely coercive interrogation, if not outright torture, they were only transferred to Guantanamo in the fall of 2006 as political leverage to compel Congress to enact the Military Commission Act of 2006 (MCA).  It took the government almost another year after that to get new military commission procedures and the necessary appellate court established, and it was only a few months ago that the government let it be known that it planned to finally charge these defendants.  Despite these years to prepare on its side, however, defense teams have not even been allowed to begin adequate defense preparations!  So it is simply unfair to blame the delay in these cases on the defense. 

Curiously, in 1942 the WSJ seemed to appreciate the value of a robust defense.  Despite an order from President Roosevelt foreclosing judicial review, the sabotuers' lead defense counsel, Colonel Kenneth Royall, took the lead in persuading the Supreme Court to assemble in a special July term to hear that one case.  While the subsequent decision, styled as Ex parte Quirin ultimately upheld the trial, the very fact that the Court heard the case implicitly rebuked the idea that the President could foreclose judicial review.  And of even more significance, the Court found that the constitutional authority underlying the commission belonged to Congress, not the President, laying the groundwork for the 2006 Hamdan decision and the subsequent enactment of the MCA.  In a July 30, 1942 editorial entitled "A Constitution Still Governs," the WSJ editors opined:

"In war the laws are silent"--said Cicero some two thousand years ago . . . That it is not true today of this country appears strikingly in the extraordinary session of the Supreme Cout, which assembled yesterday to consider the "rights" of eight men on trial in time of war.  The Court had but one question before it, namely whether or not the trial of these men was being conducted according to Constitutional provisions and principles, and in doing so gave the most convincing evidence that there is one law that is not silent . . . .

Our Constitution is based upon the principles enunciated in the Declaration of Independence, and all our civil liberties depend upon those principles.  So long as the Constitution stands, those liberties are safe, even in a state of total global war. . . . If it can be invoked in aid of enemy spies in time of war, no citizen should fear for his own freedoms . . . .

The real danger to those liberties is not from without; it is from within and from some of our own citizens.  So long as our people have faith in the principles that the Constitution exemplifies, no external political threat can harm.  Unfortunately there those among us for whom these principles are no more than "myths and folklore." * 

Now, however, the WSJ defends BGEN Thomas Hartman, who wants the prosecution to forego their ethical responsibilities to do justice and present evidence they know to have been obtained through unlawful coercion.  While it sounds appealing to "let the judge decide," the reality is that restrictive discovery rules will make it difficult, if not impossible, for the defense to gather the true facts about how incriminating statements were obtained.  Yet letting the judge decide effectively means that the defense will bear the burden of showing why evidence should not be admissible, something the government is in a position of being able to keep them from doing.  The result is almost certainly going to be trials universally branded as kangaroo courts, and the adverse publicity will play directly into the hands of our adversaries.  Instead of letting these defendants fade into the obscurity of prolonged preventive detention justified by the law of war, or giving them the fairest possible trial in a regular federal court, it is likely to turn them into highly visible martyrs.  And while the possibility of actual prosecutions is remote, the commission proceedings  offer the real possibility of turning the U.S. participants into war criminals for having denied an adversary a fair trial meeting international legal standards.

Perhaps inadvertently, the WSJ editors provide us with new evidence of just how flawed the Guantanamo process is.  Recent suggestions by defense counsel that charges against the "20th hijacker" were dismissed over concerns about coerced evidence are all wrong they say.  The real reason we know to be is that he was simply too peripherial to the main plot to be included in a trial with the likes of KSM.  This seems odd given that the proper remedy would be simply to try him separately, not to dismiss otherwise valid charges.  But more to the point, what does it say about the government if they share such core information with sympathetically minded journalists while withholding it from the defense who require it to do their jobs?  Clearly these are political trials, not an attempt to do justice.

There is much to criticize about the entire military commission process and when their history is written these events will almost certainly rank alongside such cases as Dred Scott and Korematsu as true lowpoints in American legal history.  None of that is the responsibility of the defense.

* I have not been able to find this editorial from any free source.  I located it through ProQuest with the assistance of a Loyola Marymount University reference librarian where it is available for purchase for $4.95.

The Resilient Homeland: Testimony before U.S. House Subcommittee on May 15

On May 15, I will speak before the U.S. House Committee on Homeland Security's Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment.

 The hearing is titled “The Resilient Homeland: How DHS Intelligence Should Empower America to Prepare for, Prevent, and Withstand Terrorist Attacks."

The hearing will convene at 10:00 a.m. EST in 311 Cannon House Office Building.

 Click here to view a live webcast of the hearing.

 The executive summary of my testimony appears below. Click here to read the full text of the prepared testimony.

The Resilient Homeland: How DHS Intelligence Should Empower America to Prepare for, Prevent, and Withstand Terrorist Attacks (Executive Summary)

 To ensure a resilient homeland in a post-9/11 society, the United States must have a homeland security strategy that (1) understands the threat, (2) effectively counters the threat while preserving American values, (3) establishes a system of accountability, and (4) creates public-private and federal-state partnerships facilitating intelligence sharing and the continuity of society in the aftermath of an attack.

It is necessary to work with clear definitions of the terms and concepts that frame this strategy for resiliency. As I have previously articulated, “one of the greatest hindrances to a cogent discussion of terrorism and counterterrorism has been that the terms lack clear, universal definitions.” For this reason, I provide clear, concrete definitions of terrorism, counterterrorism, homeland security, effectiveness, accountability, and resiliency—the key terms in articulating the strategy for a resilient homeland. In addition to these definitions, I include two critical matrices for: Determining Effectiveness and Implementing Accountability.

The central focus of this testimony examines the dire consequences of the break-down in communications following both 9/11 and Hurricane Katrina, which suggests that in order to realize resiliency in the future, it is paramount that there is clear cooperation and coordination between the public sector and the private sector. Effective resiliency will ultimately be tied to establishing public-private partnerships.

  In establishing these partnerships, they must be based upon three critical components: (1) clearly defined roles and responsibilities; (2) articulating a coordinated prevention-response plan; and (3) repeated training and/or simulation exercises using the prevention-response plan against realistic disaster/terror scenarios. By strategically strengthening security, sharing intelligence, and creating plans for post-attack procedures (such as evacuation plans, transportation plans, establishing places of refuge, and having basic supplies available to aid first-responders) private partners become the key to a secure and resilient homeland.

The importance of information before, during and after a disaster or attack is vital to resilience. Information sharing is, perhaps, the single most important aspect of successful resilience. Information sharing requires government agencies (federal, state and local) to share information both amongst themselves and with the private sector. Furthermore, it requires that the private sector—subject to existing legal and constitutional limits—share information with the public sector. Successful information sharing requires cooperation and coordination both internally (within sectors) and cross sectors (between public-private entities).

The lessons of 9/11 and Katrina speak for themselves. Resilience in the aftermath of either disaster or attack requires federal, state and local government agencies to understand that information sharing is vital to the nation’s homeland security. That information sharing process must include the private sector. Otherwise, the mistakes of yesterday will inevitably re-occur.

Cross-posted on AIDP Blog.

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

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).