National Security Advisors

ECJ Ruling Strikes Down Asset-Freeze Regulations

The European Court of Justice has struck down regulations authorizing asset freezes for terrorism suspects, enacted pursuant to UN Security Council mandate, largely on the ground that the regulations did not provide a realistic opportunity for persons subject to sanction to contest their designation.  The decision gives the Council of Ministers time to modify the regulations, however, before the ruling striking them down takes effect.

A summary of the decision is here, and key excerpts from the summary appear below:

 

Next, ruling on the actions for annulment brought by Mr Kadi and Al Barakaat, the Court concludes that, in the light of the actual circumstances surrounding the inclusion of the appellants' names in the list of persons and entities whose funds are to be frozen, it must be held that the rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected.

 

On this point, the Court observes that the effectiveness of judicial review means that the Community authority in question is required to communicate to the person or entity concerned the grounds on which the measure at issue is based, so far as possible, either when that measure is decided on or, at the very least, as swiftly as possible after that decision in order to enable those persons or entities to exercise, within the periods prescribed, their right to bring an action.

 

The Court acknowledges that prior communication of the grounds would be liable to jeopardise the effectiveness of the measures freezing funds and economic resources which must, by their very nature, have a surprise effect and apply with immediate effect. Nor, for the same reasons, were the Community authorities required to hear the persons concerned before their names were included in the list.

 

Nevertheless, the regulation at issue provides no procedure for communicating the evidence justifying the inclusion of the names of the persons concerned in the list, either at the same time as, or after, that inclusion. At no time did the Council inform Mr Kadi and Al Barakaat of the evidence adduced against them in order to justify the initial inclusion of their names in the list. That infringement of Mr Kadi and Al Barakaat's rights of defence also gives rise to a breach of the right to a legal remedy, inasmuch as the appellants were also unable to defend their rights in satisfactory conditions before the Community courts.

 

The Court further concludes that the freezing of funds constitutes an unjustified restriction of Mr Kadi's right to property.

 

The Court considers that the restrictive measures imposed by the regulation constitute restrictions of that right which could, in principle, be justified. It notes that the importance of the aims pursued by the regulation is such as to justify negative consequences, even of a substantial nature, for some persons, and emphasises that the competent national authorities may unfreeze the funds necessary to cover basic expenses (payment of rent, medical expenses etc.).

 

The Court considers, however, that the regulation in question was adopted without furnishing any guarantee enabling Mr Kadi to put his case to the competent authorities. Such a gurantee was, however, necessary in order to ensure respect for his right to property, having regard to the general application and continuation of the freezing measures affecting him

 

GTMO litigation update

A few developments late last week in connection with the ongoing habeas and DTA litigation arising out of GTMO. Earlier last week I noted Judge Leon's case management order, which among other things specified that the government's obligation to disclose exculpatory information applied only to that information the government reviewed in preparing its factual return and otherwise preparing for hearings. Lyle Denniston at SCOTUSblog notes here that some petitioners have urged Judge Leon to extend that obligation more broadly, and that Judge Loen has asked for additional briefing on the subject.

Meanwhile, DOJ is exploring multiple strategies in hopes of bringing DTA proceedings before the DC Circuit to a halt while the habeas proceedings before the district court continue to unfold. Lyle has the details here.

Cheng on Preemptive Self-Defense

Tai-Heng Cheng (NY Law) has posted Would Wider Legal Authorization to Use Military Force Abroad Make the United States Safer?. From the abstract:

Terrorists will continue to pose security threats to the United States. In response, legal scholars have debated whether the United States should press to legalize preemptive self-defense. Hawks and doves have each explained their respective points of view. However, their positions remain divergent. This Article bridges the gap between them. It approaches the problem from a policy orientation that combines legal analysis, anthropological research, and empirical modeling. It first widens the debate about preemptive self-defense. The key policy issue is about whether preemptive attacks should be launched, whether the legal justification comes from self-defense, Chapter VII of the UN Charter, or elsewhere. Hawks and doves disagree because they respectively prioritize national security and global order. The article breaks their impasse by accepting, for the sake of engaging both sides, that national security has primary importance. It then tests the assumption that wider uses of preemptive military force would make the United States safer. Drawing from field interviews in Iran and Pakistan of the Taliban, government officials and leaders of Islamic parties, the Article hypothesizes that while there are definite costs in every U.S. military preemption, the security benefits are often indeterminate because the use of force risks animus and retaliation against the United States. The Article then confirms this hypothesis using statistical regressions of U.S. government data on U.S. use of force and attacks on the U.S. from 1948 to 2006. These regressions reveal that there is insufficient evidence to conclude that preemptive attacks will make the United States safer. The Article thus concludes that before military preemption is deployed, the U.S. government should require its proponents to meet a high burden of proof that the security benefits of preemption outweigh its costs. As an alternative to a policy of preemptive attacks, this Article recommends five strategies that could be more easily justifiable and might better promote U.S. security.

Katz on Boumediene

Martin Katz (Denver) has posted Boumediene and Jurisdiction Stripping: Imperial Politics Meet the Imperial Court. From the abstract:

This essay argues that the Supreme Court's recent decision in Boumediene v. Bush, its latest pronouncement on the detainees in Guantanamo Bay, should be understood as a jurisdiction-stripping case. Most of the commentators to address the case so far have seen it as a case about the war on terror, or about the reach of habeas corpus. I argue that this decision takes significant steps toward resolving a debate that has been raging among the giants of constitutional law for more than 50 years: Can Congress "strip" jurisdiction from the federal courts to prevent them from hearing certain important cases?

Although the Court has previously gone to great lengths to avoid answering this question, and although Boumediene could have done the same, the Court instead engaged the issue and engaged it forcefully. The Court's decision rested upon broad and powerful separation of powers principles, strongly suggesting the indispensability of judicial review. This essay argues that these principles boldly suggest something that the Court has only hinted at before: that Congress cannot preclude federal courts from hearing constitutional claims; not just habeas claims, but all constitutional claims.

The essay also addresses the normative implications of Boumediene, arguing that the opinion represents a bold but appropriate response to what the Court perceives as an imperious President and an enabling Congress. As such, this case does not represent an imperious Court, so much as it represents a restoration of a healthier balance of power.

Ernesto Hernandez Lopez on Boumediene

Ernesto Hernandez Lopez (Chapman) has posted "Boumediene v. Bush and Guantanamo, Cuba: Does the 'Empire Strike Back'?" . From the abstract:

Focusing on the Supreme Court decision in Boumediene v. Bush (2008) and the U.S. occupation of the Naval Station at Guantanamo Bay, Cuba, this article argues that the base's legal anomaly heavily influences "War on Terror" detention jurisprudence. Agreements between the U.S and Cuba in 1903 and 1934 affirm that the U.S. lacks sovereignty over Guantanamo but retains "complete jurisdiction and control" for an indefinite period; while Cuba has "ultimate sovereignty." Gerald Neuman labels this as an anomalous zone with fundamental legal rules locally suspended. The base was chosen as a detention center because of this anomaly, with checks in constitutional and international law perceived to not apply. This article makes three arguments about what legal norms apply to Guantanamo. First, the base's legal anomaly is not an aberration, but instead is a precise objective of U.S.-Cuba relations, evident in the Platt Amendment and international agreements. Second, four legal objectives frame anomaly, historically and presently. They are that the U.S.: avoids sovereignty abroad, limits incidents of Cuban sovereignty, avoids constitutional limits for overseas authority, and protects strategic overseas interests. Using these objectives, Boumediene addresses this anomaly. To hold that detainees have access to the writ of habeas corpus in the Constitution's Suspension clause, the Court finds that the U.S. exercises de facto sovereignty over the base and that the Constitution has extraterritorial application. Third, tracking legal similarities in base occupation and base detention, post-colonial analysis illuminates how current doctrine evades individual rights protections with overseas authority.

Avery on Warrantless Surveillance in the US

Michael Avery (Suffolk) has posted "The Constitutionality of Warrantless Electronic Surveillance of Suspected Foreign Threats to the National Security of the United States", University of Miami Law Review, Vol. 62, p. 541, 2008. From the abstract:

In the fall of 2001, shortly after the terrorist attacks of September 11, the National Security Agency launched a secret program to engage in electronic surveillance, without prior judicial authorization, of communications between persons in other countries and persons inside the United States (the Terrorist Surveillance Program or TSP). Despite the clear language of the Foreign Intelligence Surveillance Act (FISA) and of Title 18 of the United States Code that no electronic surveillance was permitted other than that authorized by statute, the President claimed inherent power to conduct such surveillance. And despite the clear intent of Congress that the President should seek an amendment to FISA to authorize extraordinary surveillance lasting more than fifteen days during wartime, the President did not seek such an amendment and instead continued to act unilaterally and in secret. President Bush secretly reauthorized the TSP multiple times and originally intended to continue doing so indefinitely.

This surveillance raised serious constitutional questions concerning the separation of powers and the scope of protection provided by the warrant requirement of the Fourth Amendment. The article begins with a history of the Bush administration's warrantless electronic surveillance after September 11, 2001. It then lays out the statutory framework that existed under FISA. It discusses the principal arguments concerning the question whether the President had inherent power to conduct warrantless electronic surveillance of suspected foreign threats to national security. The article concludes that in the face of Congress's clear decision that such surveillance required a judicial warrant, the President had no inherent authority to engage in surveillance without a warrant. The article rejects the government's argument that the Authorization for the Use of Military Force (AUMF), issued by Congress following September 11, impliedly authorized the TSP.

The government raised the state-secrets privilege during litigation over the TSP and argued that all suits challenging the practice should be dismissed. This article concludes that the courts should determine the constitutionality of the TSP by reference to first principles and that state secrets are not essential to that inquiry.

The article then discusses the change in the Bush administration's strategy in January 2007 when it sought and obtained orders from the Foreign Intelligence Surveillance Court authorizing electronic surveillance that had been conducted previously through the TSP. It argues that this change did not render moot the legal challenges pending to the TSP. Finally it addresses the question of the constitutionality of the amendments to FISA that were enacted in August 2007 and concludes that even as authorized by Congress, warrantless electronic surveillance violates the Fourth Amendment.

Fox on Iraqi Law and Proposals for a SOFA with the US

Gregory Fox (Wayne State) has posted "Constitutional Violations and the Validity of Treaties: Will Iraq Give Lawful Consent to a Status of Forces Agreement?". From the abstract:

The United States and Iraq are about to conclude a Status of Forces Agreement (SOFA) designed to replace UN Security Council resolutions as the legal basis for a continued U.S. troop presence in Iraq. But it appears the Iraqi Prime Minister and the Iraqi Parliament are divided on the desirability of a SOFA, the former favoring the agreement and the latter opposing it. Because the United States has pushed very hard to complete an agreement, one possible scenario is that the Iraqi Parliament will refuse to ratify the SOFA. What would happen if the Iraqi Prime Minister nonetheless signed the agreement, representing that his signature was sufficient to bind the state of Iraq?

Few dispute that such an act would violate the 2005 Iraqi constitution, which requires parliamentary approval of all treaties. This article inquires into the international legal effect of such a national law violation. It concludes that under Article 46 of the Vienna Convention on the Law of Treaties, the SOFA would be voidable at the discretion of future Iraqi governments. Three arguments support this conclusion.

First, the 2005 Iraqi constitution clearly requires Parliamentary approval of treaties. The United States has been acutely aware of this requirement throughout the negotiations, and for it to claim that a SOFA lacking parliamentary approval was nonetheless valid would be an act of blatant bad faith. The U.S. made the new Iraqi constitution possible by deposing the Saddam regime, set the constitutional drafting process in motion during its control of the country from May 2003 to June 2004 and was intimately involved in the drafting process itself. The international law of treaties allows such "manifest" violations of national law to serve as a basis for voiding treaties.

Second, one of the reasons international law has taken account of national law violations in assent to treaties is to support the democratic institutions involved in treaty ratification. To affirm a treaty assented to in violation of separation of powers principles would be to abet the degradation of those principles. Democracy promotion has emerged as an important international goal since the end of the Cold War, giving new life to this aspect of treaty law. That goal has particular resonance for a U.S.-Iraqi agreement. The United States has made democracy promotion its central justification for the 2003 invasion and has spent countless dollars and political capital creating functional democratic institutions in the country. For the U.S. to claim the benefit of an agreement defying those institutions' doctrinal core - the constitution - would also be an act of extraordinary bad faith.

Third, the profound implications of a SOFA for the Iraqi people require input from their elected representatives. Under current Security Council authorization, Iraq may demand the U.S. troops leave at any time. Under a SOFA withdrawal may be substantially more difficult and, at a minimum, take much more time. In addition, the SOFA's likely provision of immunity to U.S. troops (and potentially private contractors) from the jurisdiction of Iraqi courts may, in reality, mean complete impunity. Iraqi victims will bear the consequences of such a lack of accountability. Both these issues involve difficult political decisions. The Iraqi Parliament, elected on the understanding that it would pass judgment on all treaties, should not be excluded from these decisions with the stakes this high.

De Londras on the Comparison Between ECHR and SCOTUS Treatment of Risk-of-Torture Arguments in the Military Context

Fiona de Londras (U. Coll. Dublin) has posted "International Decision: Saadi v. Italy", American Journal of International Law, Vol. 102, 2008. From the abstract:

Since the inception of the 'War on Terrorism' the absolute prohibition on refoulement under Article 3 of the European Convention on Human Rights has been the subject of intense criticism by some European states. The United Kingdom, in particular, has argued that the principle of non-refoulement under Article 3 (i.e. that a state may not transfer an individual (regardless of the danger they may pose) to any state where there is a "real risk" of subjection to torture, inhuman or degrading treatment or punishment) is inappropriate when applied to suspected terrorists considered to pose a dangerous threat to the safety and welfare of the community as a whole. In addition, numerous European states have begun to deport individuals suspected of terrorist involvement to states with notorious reputations for ill-treatment on the basis of Diplomatic Assurances.

In Saadi v Italy - the case considered in this short note - the European Court of Human Rights firmly reasserted the absolute nature of Article 3 and held that the pre-2001 test of no-refoulement was not subject to alteration or 'balancing' on the basis of the perceived dangerousness of the individual concerned.

This case note, forthcoming in final form in the American Journal of International Law, outlines the Article 3 decision in the case and contrasts the rigour of the Strasbourg jurisprudence on this matter with the US Supreme Court's decision regarding transfer to the Iraqi government in Munaf v Geren (2008), considering whether this disparity might result in any operational difficulties in circumstances - such as Iraq and Afghanistan - where United States and United Kingdom forces are collaborating in military operations.

Lochner on Pretextual Prosecution of Terrorism Suspects

Todd Lochner (Lewis & Clark) has posted "Sound and Fury: Pretextual Prosecution and Department of Justice Antiterrorism Efforts", 30 Law & Policy 168 (2008). From the abstract:

Using Justice Department antiterrorism efforts as a case study, this article expands upon existing theories of pretextual prosecution by distinguishing a law enforcement system that employs a pretextual strategy from one that employs what I term technical or disingenuous prosecutions. Contrary to Justice Department claims, the data suggest that since September 2001, federal investigators continually have referred a large number of specious antiterrorism matters to federal prosecutors. The data further suggest that federal prosecutors are  more likely to be engaging in technical or disingenuous prosecutions than pretextual prosecutions.

[My own thoughts on this topic appear here, in an article that offers an explanation for the confusion that often surrounds terrorism prosecution data]

Parchomovsky & Siegelman on Bribery in War (and the Impact of Law)

Gideon Parchomovsky (Penn) and Peter Siegelman (U Conn) have posted "Bribes v. Bombs: A Study in Coasean Warfare". From the abstract:

The use of bribes to co-opt an enemy's forces can be a more effective way to wage war than the conventional use of force: Relative to bombs, bribes can save lives and resources, and preserve civic institutions. This essay evaluates the efficacy and normative desirability of selectively substituting bribes for bombs as a means of warfare. We show how inter-country disparities in wealth, differences in military strength, the organization of the bribing and recipient forces, uncertainty about the outcome of the conflict, and communications technology can contribute to the efficacy of bribes. We discuss methods for enforcing bargains struck between opposing forces, a key problem in structuring bribes. We also examine the legal status of bribe agreements, under both international and U.S. law. While the former apparently views bribery as legitimate means of warfare, the latter poses a potentially significant obstacle by refusing on public policy grounds to enforce secret contracts made with foreign agents.