National Security Advisors

A Critique of "National Security Courts"

Although I've written before about my concerns with the idea of "national security courts" for terrorism cases (including challenges to detention and trials for criminal offenses), we've already seen calls for such hybrid tribunals in the aftermath of the Supreme Court's decision 11 days ago in Boumediene, and I imagine those calls will only increase as the summer goes on.

With that in mind, I wanted to flag an important new statement out today from the Constitution Project's Liberty and Security Committee and its Coalition to Defend Checks and Balances, both of which are groups of fairly high-profile folks from all points along the political spectrum. The statement, titled A Critique of "National Security Courts," identifies some of the more serious flaws with such proposals, and ultimately takes a very skeptical view of their utility and their viability. [Full disclosure: I am the group's "Reporter."]

There's much more to be said about this debate, but given that almost all of the discussions out there thus far have been in favor, I thought I'd flag this important, dissenting view.

Where should the U.S. try terrorism cases? U.S. should establish domestic terror courts to try cases

This is a link to an op-ed published in the Salt Lake Tribune, June 21, 2008  and to be published in the East Valley Tribune, June 22, 2008 that I have co-authored with Dan Barr of Perkins Coie Brown and Bain proposing the establishment of a US domestic terror court. The proposal, based on my testimony earlier this month before the Senate Judiciary Committee, is written in light of the Supreme Court’s decision in Boumediene.

Cross-posted on AIDP Blog.

Learn more about my casebook, Global Perspectives on Counterterrorism here

Boumediene’s Impact on the Military Commissions

An important question left open by the Supreme Court’s Boumediene decision announced yesterday, which held that Guantánamo detainees have a constitutional entitlement to petition federal courts for writs of habeas corpus, is what impact it will have on the military commission trials just getting underway there.

On one hand, the Attorney General of the United States has boldly declared the trials will press on unfettered by the decision. On the other hand, Hamdan’s current military defense counsel has already announced he will use the decision as the basis of an immediate challenge that his client’s constitutional right to a speedy trial has been violated.  I think the legal and practical reality falls somewhere in between.

Boumediene explicitly addresses only the issue of the detainees’ right to challenge the basic grounds for their detention, saying nothing about trials per se. Yet in holding that the constitutional right to petition for the writ extends to those detained at Guantanamo, it is only logical to infer that the right must include the ability to challenge those government actions which fall within the constitutional scope of the writ elsewhere. Congress presumably can limit the application of statutory habeas at Guantánamo largely as it sees fit, but cannot constrain its constitutional exercise.

Most American lawyers’ exposure to habeas corpus is based upon its primary modern usage as a means to collaterally challenge state convictions. This use is extensively governed by statute and requires prior exhaustion of all other legal means of appeal. It was likely with this application in mind that some U.S. lawyers have concluded that Boumediene will have little immediate impact on the military commissions. But there is a rich, and unique, American history of habeas challenges to military trials. For the first 200 years of American military justice, the only federal court review available for military trials was that provided by habeas and other collateral attacks, and such review was limited exclusively to questions of jurisdiction.

The relevance of this point to the Guantanamo trials is twofold – first constitutional habeas clearly includes the right to challenge the jurisdiction of a military tribunal, and second, courts will generally hear jurisdictional challenges upfront. If there is no legal right to try a person, there is no value added in waiting to have a record of their unlawful trial available to review, whereas the injury suffered by the unlawfully accused increases immeasurably. Recall that the government urged the courts to abstain from deciding Hamdan’s original habeas petition until a trial had been completed. While the D.C. Circuit opinion joined by now Chief Justice Roberts endorsed this approach, the Supreme Court itself did not, overturning the original commission process in its 2006 Hamdan decision before any case had proceeded to trial.

Detainees facing military trial may have grounds to challenge commission jurisdiction on a number of fronts, including:

(1)The Military Commissions Act of 2006 limits trials to individuals determined to have been “unlawful enemy combatants,” which is logically a level beyond the “enemy combatant” designation assigned by the Combatant Status Review Tribunals. The commission defendants presumably have all the same grounds to challenge their basic CSRT classification as other detainees; if their detention is invalid then presumably a trial is even more so. But the accused presumably have additional grounds for challenge based on the need for the government to meet the higher MCA standard for trial eligibility rather than just that necessary for basic detention. This issue has already been decided by the Court of Military Commission Review which held that the commissions themselves could make the initial “unlawful enemy combatant” determination, but that outcome is now presumably subject to collateral attack.

(2) Many of the defendants currently facing proposed or approved charges, including Hamdan himself, are only accused of “conspiracy” or “providing material support to terrorism." While both these offenses are crimes under federal law, many legal scholars (myself included) do not believe that they constitute law of war violations lawfully triable by a military tribunal.

(3) Several additional defendants, such as Omar Khadr, are accused of specific hostile acts against American or allied service personnel. These charges raise basic questions about whether the accused are entitled to combatant immunity, which would bar prosecution outright. If these accused are held to fall outside the scope of that immunity, then there is real reason to question whether they can tried under the law of war for these acts. The view held by what seems to be the majority of law of war scholars (again, myself included) is that individuals without combatant immunity are liable to prosecution only for ordinary domestic crimes of murder, assault, etc. in these cases and not for law of war violations.

(4) This seems like merely stating the obvious, but the law of war is applicable only to conduct taking place during armed conflict. Under U.S. law, the President has constitutional authority to respond to an actual or imminent armed attack, but arguably only Congress can actually place the nation at war. In the wake of 9/11 the President asked for, and got, a determination that the nation was at war in the form of the Authorization for the Use of Military Force, which limited its application to those responsible for the 2001 attacks as well as those aiding or sheltering persons responsible. Presumably the President could have cited earlier attacks such as the 1998 embassy bombings in his request and asked for a retroactive determination that the conflict began before 9/11/2001, but he did not do so. Several Guantanamo detainees are facing military charges for participation in events that took place prior to 9/11 and they would seem to have a reasonable argument that the tribunals lack any jurisdiction over such matters.

(5) It may be possible to challenge whether or not the MCA fully satisfies the concerns with the trials that the Court identified in Hamdan. Certainly the statute addressed the core Hamdan holding that commission proceedings had not been authorized by Congress. But the Hamdan Court decreed that the law of war imposed a mandatory floor on trial procedures, which at a minimum would be those derivable from the language of Common Article 3 to the Geneva Conventions. So there may be room to argue upfront that the MCA's prescribed commission procedures still fall short of some aspect of international law mandates and that this is sufficient reason for the courts to intervene again without waiting for a trial to be completed.

I find it surprising that Hamdan’s attorney says he intends to pursue the speedy trial claim as his initial challenge to commission proceedings. I don’t find anything in the Court’s decision that suggests the full panoply of constitutional rights applies to Guantanamo, just habeas review. In fact I think that such a reading would be a strained one absent a clear intent by the Court to overturn the longstanding Insular Case precedents. While GTMO may be de facto U.S. territory, it doesn’t likely qualify as a place deserving higher legal standing than such de jure U.S. territories as the post-Spanish American War Philippines or early 20^th century Hawaii where full Bill of Rights protections were inapplicable. And since the Court has never held that the Bill of Rights applies to courts-martial, I find it particularly bizarre that a uniformed military attorney plans to argue that suspected terrorists are entitled to more rights before a military commission than his active duty colleagues would get before a court-martial. I believe the law of war mandates that the detainees receive trials matching the due process accorded Americans, but not more. Also, a substantial part of the delay in bringing Hamdan to trial has been caused by his predecessors' decision to take his case all the way to the Supreme Court, which resulted in a decision requiring Congress to enact a new statute followed by an entire redrafting of all the commissions’ procedural rules and establishment of a new appellate court. So Hamdan is hardly a sympathetic plaintiff on this issue!

Hamdan has a much better claim on the issue that his charges fail to state a violation of the law of war. Four Supreme Court justices were ready to reach this result two years ago; it was probably only Justice Kennedy’s belief that it was premature to address the issue that kept it from being part of the majority opinion.

Having said all this, it still remains to be seen what Boumediene's actual impact will be on the commission proceedings this summer. I do expect that various defense counsel will raise some or all of these issues in habeas petitions in the near term. But merely filing such petitions will not necessarily halt the Guantanamo proceedings unless either the federal judges to which they are assigned elect to issue injunctions, or the commission trial judges exercise discretion in staying their trials pending their outcome. If I was a commission judge, personally I would do just that. Denying a defendant a fair trial is a war crime under the customary law of war and those presiding over such trials are clearly liable to criminal prosecution themselves. So the prudent judge should want to await the outcome of any habeas review. But again, there is no legal mandate that they do so, or practical assurances that they will.

In the long run, I think it is safe to say that Boumediene means that there will now be far more federal judicial scrutiny of the military commission process than was previously provided for by the MCA. But whether the ruling will have any nearterm impact on the governments plan to press on with trials this summer remains to be seen

Boumediene & Munaf

Steve Vladeck and I, as well as a number of other folks, are currently participating in an "insta-symposium" on Boumediene, and Munaf to some extent, over at Opinio Juris.  Contributions and comments are welcome either here or there.  There's also good stuff going on at Balkinization and elsewhere.  Here's my initial post:

Boumediene and the Use of History; Boumediene & Munaf

by Andrew Kent

Thanks to Opinio Juris for inviting me back. These things are always fun. I’m not going to try to systematically address Boumediene, but will instead offer a few thoughts about Boumediene's use of history and the relationship between Boumediene and Munaf.

1. I agree with much of the Chief’s and Scalia’s criticisms of the Boumediene majority opinion’s aggressive assertions of judicial supremacy over detention decisions in the war on terror. But it cannot be accidental that the Court chose to release Munaf v. Geren on the same day. And if Boumediene is a green light for lower federal courts to exercise substantial control over the military’s legal proceedings regarding captured enemies, Munaf is a red—or at least yellow—light. There the Court goes out of its way to emphasize that the relief ordered by the lower court against the U.S. military was wholly inappropriate and that courts should careful to avoid “unwarranted judicial intrusion into the Executive’s ability to conduct military operations abroad” (slip op. 22). I hope Munaf’s cautions will be noted by lower court judges.

2. Although not implicated directly in either case, I bet the Geneva Conventions played an important behind-the-scenes role in today’s decisions. The Executive has of course long taken the position that alleged members or associates of al Qaeda or the Taliban captured in Afghanistan or elsewhere are not covered by the Geneva Conventions, but that all persons detained in Iraq are. Though in 2004 Hamdan held that Common Article 3 protects al Qaeda etc. personnel, that provision is merely a floor to outlaw the worst kind of misconduct by U.S. personnel. So generally speaking, Iraq conflict detainees have pretty comprehensive legal protections under Geneva (and Iraqi law, where applicable), whereas Guantanamo detainees have been perceived to be in a “legal black hole,” to use the popular metaphor.

My sense is that at least three justices (Kennedy, Souter and Ginsburg) simply think it is unacceptable for persons in U.S. detention to be held outside the protections of either the Constitution or a robust international legal regime like Geneva. Recall that Hamdi’s plurality pointed to Army regs implementing Geneva procedures as an example of acceptable due process. And Boumediene suggests that constitutional habeas may be unavailable for some foreigners held abroad if “there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power” (slip op. 65). This seems likely to be a reference to Geneva. Munaf’s unanimous deference to the Executive could well be motivated in part by the comfort the Court draws from the presence of Geneva in Iraq.

Back in the black hole, the government was essentially informed today that procedures and standards devised by the Executive or Congress for Guantanamo will never pass muster with this Court unless Article III courts are involved and able to enforce the Constitution. Rasul, Hamdi and Hamdan invited the President and Congress to create the kind of “non-constitutional” and "non-habeas" framework that Boumediene finds clearly unconstitutional. This is bad news for the advocates (e.g., Jack Goldsmith, Ben Wittes, Neal Katyal) of creative statutory detention and review procedures more appropriate for the novel circumstances of the war on terror.

In light of the significant losses the Executive has suffered in the Court in Guantanamo cases (Hamdi, Hamdan and now Boumediene), as well as the awful prisoner abuse and the diplomatic and public relations disasters, and one wonders whether even the Executive might now think we would have been better off maintaining from the outset that Geneva did not apply to al Qaeda etc. personnel, but that it would be applied anyway as a matter of humanity and good policy.

3. Judges and lawyers are often cautioned that they misunderstand and misuse history when they try to force it to decisively answer current legal problems. According to historian Jack Rakove: “Professional historians should have no problem in admitting ambiguity or uncertainty in our findings, but political and legal disputes leave little room for scholarly hemming and hawing.” Here’s historian Michael Bellesiles: Unlike advocates arguing for a client or judges justifying a decision, “[h]istorians doubt any case for which all the evidence falls consistently on one side and work on the assumption that the past is pitted with ambiguities and paradoxes.” The criticisms of lawyers and judges often seem apt. (I know that I—lacking a graduate degree in history—live in fear that I am getting my history wrong in some way. And I probably am.)

The Boumediene majority opinion appears to handle the complexities of constitutional history and its application to current disputes in a way that should please most historians. The historical question is whether, as of 1789 when the U.S. Constitution went into effect, aliens could have used the common law writ of habeas corpus to challenge in civilian courts on the mainland their detention as combatants by the military in a location under the de facto control but not de jure sovereignty of our country. The Boumediene majority considers the historical evidence but carefully and modestly declines to draw any firm conclusions because the evidence is ambiguous and incomplete and our eighteenth century predecessors did not leave record of having confronted and resolved the precise issues we face today. I have previously concluded much the same thing about the historical evidence, in a 2007 law review article and post for the Opinio Juris symposium about the D.C. Circuit decision in Boumediene.

Before today, the Court had a very different view. The five justice majority in Rasul v. Bush (2004) reviewed English habeas history and concluded that: “Application of the habeas statute to persons detained at the [Guantanamo Bay military] base is consistent with the historical reach of the writ of habeas corpus. . . . In the end, the answer to the question presented is clear.”

But as a detailed and erudite recent article on this topic by Professors Paul Halliday and G. Edward White (cited by the Boumediene majority) notes, “[t]he historical underpinnings of Stevens’ analysis [in Rasul] were slight” (p. 116 of the SSRN version). And lo and behold, the Court has recognized and corrected its error. In Boumediene, all nine justices reject the faulty historical analysis in Rasul. The Boumediene majority opinion correctly notes that the history of the writ provides “no certain conclusions” (slip op. 16). The Court finds “little” historical “support” for the claim that common law courts sitting in England prior to 1789 entertained “petitions brought by alien prisoners detained abroad” (slip op. 18-19). In fact, the Court notes, there is a “lack of historical evidence on point” (slip op. 22). All five justices in the majority signed on the opinion—and these statements—in full. Souter notes in his somewhat odd concurrence that he “join[s] the Court’s opinion in its entirety.” The four justices in dissent reject Rasul’s analysis and conclusions and instead find that the available evidence points the other way. I think they go too far by finding a clear answer, but their historical argument is, in my view, stronger than the Rasul majority's.

By contrast with the Court’s approach today, the Brief of Legal Historians as Amici Curiae submitted in Boumediene argued that the “Court’s conclusion in Rasul is fully supported by the historical record.” Given his vote in Boumediene, not even Justice Stevens, the author of the Rasul majority opinion, appears to believe that anymore. The amici legal historians also wrote that “prisoners of war and alleged enemy aliens could challenge the legality of their detention by way of habeas corpus. Even where in these cases courts ultimately declined to discharge the petitioner, they reviewed the basis of the prisoners’ detention on the merits.” The Boumediene majority correctly notes that whether the key cases’ holdings “were jurisdictional or based upon the courts’ ruling that the petitioners were detained unlawfully as prisoners of war is unclear” (slip op. 17).

Rather than attempt to answer a momentous question of U.S. constitutional law based on an ambiguous and incomplete historical record, the Court today quite properly turns to other sources of constitutional meaning, namely text, structure, the Court’s precedent and functional, consequential and prudential considerations. Well done.

Methodologically, that is. On the substance of many issues, the Court is shaky. It badly misreads key precedents (Johnson v. Eisentrager, Balzac v. Porto Rico). It somehow convinces itself that “separation of powers” principles written by the Founders into the Constitution positively require that the federal judiciary have the final say about the legality of all executive detentions, even those occurring during wartime outside of the United States and involving noncitizens. It utterly fails to answer the Chief's fairly devastating dissent. I am still fond of my textual-structural approach to the territorial scope of the Suspension Clause (in above), but will not reprise it a third time here.

Notwithstanding these and other disagreements, I applaud the Court’s new-found methodological caution regarding the use of history.

    

GTMO detainees prevail in Boumediene, US detainees in Iraq lose in Munaf

Two momentous decisions this morning.  In Boumediene, the Supreme Court holds 5-4 that (i) GTMO detainees are protected by the Suspension Clause and (ii) the Detainee Treatment Act review system does not provide an adequate substitute for habeas because it does not authorize the DC Circuit to order detainees to be released, does not allow detainees to argue that their detention exceeds the scope of the executive's detention authority, and does not allow presentation of new evidence. 

Meanwhile, a unanimous Supreme Court holds in Munaf that a US citizen held in US military custody in Iraq, under color of the authority of the MNF-I, has a right to seek habeas relief but that habeas jurisdiction does not empower courts to forbid the transfer of such persons to Iraqi criminal custody.  The fact that the Iraqi criminal process does not satisfy US constitutional requirements is not relevant, the court observed.  More significantly, the court also held that judges should not second-guess the State Department's determination that such persons will not face an undue risk of torture upon transfer.  That aspect of the holding has implications for the larger issues associated with extraordinary rendition in general and GTMO transfers in particular. 

In short, a big defeat for the administration in Boumediene, but a big victory for it in Munaf.

Hartman on Military Commissions - A Critical Assessment

Last week Newsweek published an interview (full text here) with BGEN Thomas Hartmann, the controversial legal advisor to the Military Commission Convening Authority who has already been disqualified from further participation in the Hamdan case because of his improper efforts to influence the prosecution.   It appears that Hartmann has also appointed himself to fill the shoes of Col. Mo Davis, the former chief prosecutor he helped drive to resign, as the government's leading cheerleader for the commission process.  Such a role was logically inappropriate for a prosecutor, but seems equally, if not even more, improper for an individual charged with offering objective legal advice to the head military commission decision maker.  Worse to my thinking than the mere fact he is defending the commission process is that he is doing so with incomplete, incorrect, or potentially even deliberately misleading information.

Here are some significant excerpts from the interview conducted by Dan Ephron with my assessment of his comments inserted where appropriate.

NEWSWEEK: Let me start by asking you about the perception problem that the military commissions have. It's not just the ACLU that believes they're unfair; it's a good number of our allies around the world, some former prosecutors in the military commissions office, and some key politicians here in Washington. Even if the commissions are fair, as you've said again and again, how do you address the problem of perception?

Gen. Thomas Hartmann: You start with the core. You start with what you've got in the statute and the manual for military commissions and the regulation. When you start with those things, you will see that at the core, before you start making generalizations, the protections provided to these people, to these accused, are very, very similar to the protections that would be provided to me in connection with a military court-martial. That's a fundamentally important thing, to say that you're giving essentially the same kinds of protections to people accused in these cases to the kinds of people that we are. We wear these uniforms; we take oaths. And that's an important thing. Secondly, step outside the military arena to the Article 3 [federal] courts. The same kinds of protections are here. These cases, there's an automatic appeal for any finding of guilt. Then go to Nuremberg. Everybody thinks Nuremberg is the gold standard, right?

No.  Nuremberg was a vital precedent for establishing individual criminal liability for launching a war of aggression, committing war crimes, and engaging in crimes against humanity even against a nation's own citizens.  But no serious legal scholar that I'm aware of would argue that the criminal procedure followed in that case sets a standard that remains sufficient today.  And at the time the Chief Justice of the United States privately called Nuremberg a "high grade lynching party." 

The most casual student of criminal procedure understands that there has been a substantial evolution of due process standards since the 1940s, and both civilian and military justice have seen major improvements in the intervening six decades.  So even if Nuremberg's standard of justice was sufficient in the 1940s, that provides no legitimate basis for comparison today.

There was no beyond-a-reasonable-doubt standard at Nuremberg. There were no appellate rights at Nuremberg. There were no rules of evidence at Nuremberg.  The people at Nuremberg who were found guilty and were sentenced to death are dead. How long did it take them to be dead? Less than a week, because there were no appellate rights.

Given that the government has apparently chosen to use Nuremberg as the model they are trying to emulate, you'd think they would at least make the effort to have their facts right.  The Nuremberg judgments were handed down on October 1, 1946 and the convicted defendants were executed on October 16.  More important than this minor factual distortion, however, is the fact that every post-WWII era war crimes trial, as well as modern U.S. military justice, provided a formal appellate system so any due process comparisons beween what is acceptable in 2008 and what might have been done in 1946 are logically irrelevant.  It's like saying lethal injection can't be an issue now because we used to burn people at the stake.

The rules of evidence also merit consideration.  The International Military Tribunal was a civil justice style panel consisting of experienced legal personnel so it was entirely logical that the Nuremberg rules would give the judges the wide latitude to determine the weight to give evidence themselves as is customary in civil justice systems.  The military commission trial panels, by comparison, are much more akin to Anglo-American juries, and the U.S. court-martial practice on which they are based has always long applied rules of evidence based on those used in U.S. federal courts.  This practice was adopted early in the 19th century by military officers themselves rather than required by any higher authority.  This same practice was also followed rigorously by U.S. military commissions at least until the time of WWII even though not statutorily mandated.

But there were also acquittals at Nuremberg

We haven't even had a trial yet. So there may be acquittals in these cases, too. Nobody's saying there won't be acquittals. Nobody's saying anything about the outcome. The outcome does not determine the fairness. The fairness is in the process of making sure that the evidence is heard, that the accused has the right to counsel, that the accused has the right to remain silent, the accused has privileges, the accused can cross examine, confront, challenge, call his own witnesses, file motions, argue to the jury.

But a key question that will dog perceptions of fairness at Guantanamo is what happens after the trial.  At Nuremberg those acquitted were promptly released from U.S. government custody, while the condemned were executed and those sentenced to terms of imprisonment were moved to a long-term prison.  There is every chance that at Guantanmo both the convicted (in non-capital cases) and anyone acquitted alike will simply be returned to the same supermax-style cells they've been sitting in for extended periods already: the convicted to serve their sentences and the acquitted to continue in detention as "enemy combatants" too dangerous to be released.  As Chief Prosecutor Robert Jackson cautioned well before Nuremberg got underway, however, "You must  put no man on trial before anything that is called a court . . . if you are not willing to see him freed if not proven guilty."

Defense lawyers for the five high-value detainees [accused of masterminding the attacks of 9/11] asked to postpone the arraignment but were turned down. What's the rush?

The judge made that determination. As a general matter, there is no rush on anything. [But] it's 2008. So there is no rush, but there is a sense of the importance of these cases in general, not just the 9/11 cases. They've been analyzed, reviewed, coordinated with the intelligence and law enforcement communities, the legal communities, and now various prosecutors are ready to swear charges, and once you swear charges you get into the process.

But as far as I understand, only one of the five detainees who is going to be arraigned Thursday has had a chance to see his attorney.

Dan, that will always be the case, won't it? It will always be the case. Because the prosecutor in every trial, the trial down the street, the trial in the military, the trial in this process—the prosecutor is the guy who's been studying the evidence, organizing it, collating it, gathering it, putting trial briefs together, putting charges together, swearing charges. There is no defense counsel. The accused doesn't even know he's got a case. And when that's done, the accused is charged, just like in our case. And when the charges are sworn, the accused gets a counsel. So the defense is always going to come later to the game than the prosecution does.

There's a difference between coming later to the game and having fair opportunity to meet with a client and provide meaningful legal advice to allow the client to decide how to plead.  The issue is not that the defense hasn't had the same amount of time as the prosecution to prepare; it's that they're being rushed to proceed much faster than can be done with any modicum of justice, given the unique issues they confront and the many impediments the government has either erected in their path, or at least refuses to do all it can to remove them.

One of the issues that's come up is security clearances for the civilian attorneys, even for the military defense attorneys. When will that be resolved?

Glad to answer. They have 18 defense counsel on the 9/11 cases. Write these numbers down, because this is important. Ten military and eight civilian. Of the 10 military, eight have the appropriate level of security clearance. Of the civilians, of those eight, five have or will have by [May 30] the appropriate level of security clearance. Three are in the process of getting their security clearance. If you try to get the level of security they need in these cases, it usually takes a year to 18 months. Now, that wouldn't work, would it? So what we've done is we've streamlined that process to make sure the defense counsel and others in the process move very rapidly in getting their security clearance. So absent some unusual thing, that security clearance that began between the 12th and the 21st of May should be done by the end of June.

A more fundamental question is why do they all need security clearances at all?  What really distinguished Nuremberg, and gave it what legitimacy it does enjoy, is that the prosecution assembled a massive public case, developed in large part from the Nazi German government's own documents proving beyond any reasonable doubt both the nature of the aggressive wars Germany launched against both eastern and western neighbors as well as the horrors of the Holocaust, forced labor, etc.  A trial based on secret evidence, by comparison, will never enjoy any sense of legitimacy, particularly given real reason for belief that what is "classified" is the coercive means by which statements were extracted from the defendants.

At Guantanamo classification seems to serve two nefarious purposes.  First, to allow the government to make it difficulty, if not impossible, for the defense to meaningful challenge the coercive means by which self-incriminatory evidence was obtained from the defendants, and second, to provide a justification for excluding foreign nationals from participating as counsel.  No trial can legitimately be perceived as fair if the defendants don't trust their lawyers, and the majority of these defendants will not trust American lawyers after all they've been through.

At Nuremberg the defendants were able to pick their own attorneys and were represented by fellow nationals paid for by the Allies, not forced to rely on "enemy" military officers.

But from the perspective of the attorney, he's saying, "Even if I get the clearance before the arraignment, the first time I can see my client is a day or two days before. We have to talk about the plea he's going to enter; we have to talk about some defense strategy." And some of these attorneys won't get it until after the arraignment.

Well, the judge looked at all that. Tom Hartmann is not the judge. The judge is the judge. Judge [William] Kohlmann looked at all that. All those arguments were made in the motion, in the filing. The judge dealt with the very issues that you're bringing up, Dan, and he concluded that it was appropriate to proceed with the arraignment.

But this is disingenous give that Tom Hartmann has declared that he has the legal authority to direct the prosecution, the prosecution is obligated to do justice, and the prosecution has great latitude to control the timing of these events.

There's speculation that part of the strategy is to get the arraignment done before the Supreme Court issues its decision [on the legitimacy of the military commissions]. What do you say to that?

I know nothing about that.

Given the evidence already in the public record about the politically motivated timing of virtually every thing that has happened at Guantanamo over the past few years this denial rings a bit hollow.

Capt. Prescott Prince, the military attorney representing Khalid Sheikh Mohammed, one of the things he has been complaining about is that all his requests for discovery material have been denied. Why is that?

I don't know. I don't know anything about his requests for discovery material. But the prosecution has an obligation to produce certain things to him on their own, exculpatory information for example, and various kinds of information by the accused, material that is necessary for the defense. Those matters will either be produced—or the alternative, Dan, is to go to the judge and the judge will require production of the evidence. If the defense thinks it's not getting discovery, the place to go is not the media, the place to go is to the judge.

But the Military Commissions Act only requires the production of material in the hands of the prosecution, not the "government."  So it does nothing to ensure justice given that there is already evidence suggesting that in the CSRT processes exculpatory evidence was kept from those tribunals by the simple expedient of other government agencies not turning it over to those administering the process.

Exculpatory evidence, discovery. [Prince] talks about being in an interview with his client and not being able to walk out with written notes.

That's not correct. Of course he can take notes. He can take them out with him.

How would Hartmann know?  Prince's account is entirely consistent both with other published accounts and with stories I've been told by those defense counsel I've met.  The reality is that the detention facility at Guantanamo is outside the control of the Office of Military Commissions leaving the staff free to interfere with defense attorneys, whether to deliberately make their job harder or just via well intentioned zealous enforcement of rules designed without consideration of the defense mission.

Attorney Prince has complained that he can't take his notes with him.

Well, he can. I'm telling you: number one, he can take notes; number two, he can take those notes out with him; and number three, if those notes are classified, he can take those notes to classified storage locations on Guantánamo. He has a defense special compartmentalized information facility, a SCIF, completely dedicated to the defense. A big building about half the size of all the floor space we've got has been available to them. It's been available to them for about three weeks now. They have one in the United States, and when it wasn't available to them down there, they had other SCIF storage space down there.

Having visited Guantanamo several times during my previous Navy career, I know from personal experience just how remote it is and how difficult it can be to do many things we take for granted stateside.  Realistically the defense needs to do much of its work off the island, and so even if Hartmann is correct that the defense can now remove their notes from the detention facility itself, giving the defense the ability to keep notes at Guantanamo does little to facilitate their ability to prepare for trial if they can't freely transfer items back and forth between the mainland and the island.  Realistically the defense simply cannot do its job as long as things like simple notes of attorney-client meetings are treated as classified information.

I want to ask you about waterboarding, which most security officials now agree is torture, including CIA [Director Michael] Hayden. What's your opinion on that?

I don't give an opinion on that. I allow the courts to decide whether it falls in a particular category. Torture is illegal. The president of the United States has said we do not torture. Statements derived from torture are inadmissible in these proceedings. Beyond that, we allow the courts to evaluate the evidence. Ninety-five to 99 percent of what goes on in the trial is fact, and you evaluate the facts against the law.

Hartmann wears the uniform of a United States military judge advocate.  If one of our service personnel was being detained by a foreign power and was subjected to waterboarding would there be any equivocation or would we denounce it as torture and both demand it stop and that the perpetrators be prosecuted by any nation that could get their hands on them?  We all the know the right answer is the latter.  No one should be allowed to wear a U.S. uniform who doesn't understand this.   The President may be the commander-in-chief, but military personnel are not legally obligated to obey his orders per se, only his lawful orders.  This caveat has been part of U.S. military law since 1775.  It is thus incumbent on judge advocates to independently assess the legality of orders from higher authority, not to simply rely onthe superior's logic as Hartmann does here.

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.