National Security Advisors

Is Kiyemba Cert.-Worthy?

My initial reaction to the news of the D.C. Circuit's decision this Wednesday in Kiyemba v. Obama, holding that the federal courts have no power to order the release of the Uighurs held at Guantanamo into the United States, was that the Supreme Court would never go near this decision, especially given the sui generis nature of the case (since, unlike most of the remaining Guantanamo detainees, there is nowhere for the Uighurs to go).

Then, I read Judge Randolph's opinion. It was mostly as expected, but one passage particularly caught my eye. Randolph rejects the detainees' due process claim because, in his words, "Decisions of the Supreme Court and of this court . . . hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States." He then cites a number of precedents in supoort, including Zadvydas, Verdugo-Urquidez, and Johnson v. Eisentrager (and a bunch of D.C. Circuit decisions, among others), and admonishes the district court for failing to follow binding precedent.

What's fascinating--and ironic--of course, is that he nowhere cites Boumediene in this discussion. To be sure, Justice Kennedy was extremely careful to limit his analysis in Boumediene to the particular question of whether the Suspension Clause applies in Guantanamo, and to thereby leave open the question of whether other constitutional protections apply to non-citizens detained there. But to say it's an open question is not the same thing as concluding--as Randolph apparently must have--that Boumediene in no way calls these earlier cases (Verdugo-Urquidez and Eisentrager, especially) into question. Indeed, as Orin already noted, Boumediene was the third time that the Supreme Court has reversed a Randolph opinion taking a skeptical view of the legal rights of the detainees (see also Rasul and Hamdan). At some point along the way, don't some of these precedents become worth revisiting?

All of this leads me to wonder if Randolph may have written an opinion that the Court--which might otherwise have been inclined to duck this case--cannot ignore. To say that the Due Process Clause categorically does not apply to Guantanamo is to suggest that the very review that Boumediene mandates need only be superficial. What's more, such a conclusion wasn't necessary to reject the Uighur's claims, so long as Randolph's analysis of the immigration laws is correct (my own view is that this, too, was an open question).

It's a messy case with unique facts and a very possible political solution in the offing that would moot the petitioners' claims. But I just can't see how Randolph's cursory and wholly unconvincing analysis of the detainees' due process rights can be left intact, either by the en banc D.C. Circuit or, if necessary, by his admirers on all-things-Gitmo: the Supreme Court.

Op-ed: Policy on Russia Marked with Irony

View this op-ed, "Policy on Russia Marked with Irony" by Susan M. Jellissen, Ph.D, professor of political science at Belmont University, discussing Biden's recent comments at the 45th Munich Security Conference and U.S.-Russian relations.

UC Davis conference concerning Justice Stevens & security

UC-Davis School of Law has a terrific upcoming conference on Justice Stevens, including an impressive panel examining his jurisprudence relating to security concerns. The event is on March 6. Details here. The most interesting panel, from this blog's perspective, concerns security. Participants include: Kenneth A. Manaster (moderator) Professor of Law, Santa Clara University School of Law Author, Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens (2001) Daniel A. Farber Sho Sato Professor of Law and Director, Environmental Law Program, University of California, Berkeley, School of Law Eugene R. Fidell Florence Rogatz Visiting Lecturer in Law, Yale Law School President, National Institute of Military Justic Deborah N. Pearlstein Associate Research Scholar, Woodrow Wilson School for Public & International Affairs, Princeton University Former Director, Law & Security Program, Human Rights First Kathryn Watts Assistant Professor of Law, University of Washington School of Law.

Detainee litigation continues to put pressure on the administration to make detention policy decisions now rather than in 6 months

[once more, apologies for any formatting issues as I continue to try to get Word's blog posting feature to play nice with Typepad…]

First, an update on the # of GTMO detainees.  It appears the correct current count is 242.  See here, thanks to the most up-to-date data developed by Ben Wittes and the folks at Brookings.

Second, a flurry of opinions and orders by district judges dealing with detainee litigation suggests that the Task Force(s) created by yesterday's executive orders had better work much faster than their 6-month schedule would otherwise allow.  The litigation docket will force hard decisions soon in these and related cases, barring a willingness by these judges (or the detainees) to let the habeas process pause for half a year while the issues are sorted out:

Hamlily v. Obama (D.D.C.) (GTMO); Maqalah v. Gates (D.D.C.) (Bagram)

Notwithstanding yesterday's executive orders, and notwithstanding the fact that the Obama administration has moved successfully to stay GTMO habeas proceedings at least momentarily before one of the judges handling GTMO habeas petitions, other proceedings continue forward, and in doing so they pressure the administration to make tough decisions now regarding the scope of the military detention authority it may wish to defend, rather than waiting for the completion of the "task force" reviews contemplated in yesterday's orders.

Yesterday Judge Bates issued a series of orders in opinion in both GTMO habeas cases and in Maqalah v. Gates, the habeas case that attempts to extend Boumediene to Bagram Airbase.  In Hamlily v. Obama, a GTMO case, Judge Bates invited the Obama administration to revise the government's position on the substantive scope of the government's military detention authority (the Bush administration's position, adopted by Judge Leon in the habeas petitions before him, was that the CSRT definition of "enemy combatant" sufficed).  And in Maqalah, Judge Bates cited his Hamlily order and invited the government to refine its positions re Bagram detention as well. 

The Maqalah order gives the government until the 20^th to decide whether it wants to revise its position, at which point a new briefing schedule would be set up.  Presumably this could give the administration at least two months, maybe three, before it has to put into print its position.  And in Hamlily, any revised position must be submitted  by February 9.  Those Task Force(s) better work fast!

Ahmed v. Bush (D.D.C.) (GTMO)

            Judge Kessler, on the 21^st, set a deadline of January 29^th for both petitioner and the administration to submit a definition of "enemy combatant" in this case.

Zaid v. Bush (D.D.C.) (GTMO)

Meanwhile, in Zaid v. Bush, another GTMO case, Judge Bates rejected the government's position (advanced by the Bush administration) that it need only produce to the petitioner the particular versions of his own statements that the government actually plans to rely on in defending his detention.  Judge Bates disagreed:

A petitioner may assert that he never said what the government claims he did or that he only said what he did because he was coerced. A petitioner making a colorable claim to that effect cannot be denied the best evidence of what he said and the circumstances under which he said it merely because the government -- which has sole possession of that evidence -- thinks that it is too burdensome to locate it. As a first step in this process of basic fairness, then, the government must identify what potentially relevant materials exist.

For these reasons, it is again hereby ORDERED that respondents shall inform the Court, now by not later than 5:00 p.m. on February 4, 2009, whether respondents possess any of the

following materials with regard to the "statements" of petitioner that they have produced:

1. Audio recordings of statements made by petitioner;

2. Video recordings of statements made by petitioner;

3. Transcripts of statements made by petitioner;

4. Contemporaneous notes taken during any interrogation of petitioner; or

5. Records or reports of petitioner's statements made by persons other than the persons who prepared the summaries of petitioner's statements already produced.

Respondents have often replied to this Court's orders with eleventh-hour requests for enlargements of time or explanations why compliance is impossible or ill-advised. Respondents should not expect a sympathetic reception from the Court should they invoke that approach once again.

Taher v. Bush (D.D.C.) (GTMO)

                        Judge Kessler issued an order yesterday requiring that discovery proceed in this GTMO habeas case, with certain disclosures from the government due on Feb. 6.

The hard questions are in the hands of the committees: today’s executive orders re detention, interrogation, and rendition

A brief overview of today's four executive orders follows below (GTMO, detainee policy, interrogation/rendition, Al-Marri).  The long and short of it is that a cabinet-level committee will have 6 months to come up with new policies on detention, interrogation, and transfer; GTMO must be shuttered within one year, one way or another; CIA detention is over; and the government will do its best to resolve Al-Marri's status before it must file a merits brief in that case.

The GTMO closure order:

                This order appears to track the draft version about which I posted earlier.  Please see that earlier post.  Short version: all the expected options are to be used to effect closure in 1 year.

Special Task Force on Detainee Disposition order:

Another order establishes a task force to hash out detention policy not just re GTMO, but more generally for persons "captured or apprehended in connection with armed conflicts and counterterrorism operations."

The Task Force members are the AG, SecDef, SecState, SecHomeland, DNI, D-CIA, CJCS, and whomever else the SG and SecDef jointly might add.  The AG and SecDef in turn may designate personnel from their departments to function as support staff, and they may request staff from other agencies as well.  One person will be the Executive Secretary of the Task Force.

The Task Force will generate its report in 6 months (unless an extension is sought), and there shall be preliminary reports in the meantime. 

The interrogation standards order:

Section 1 revokes EO 13,440 (July 20, 2007), which had addressed the meaning of Common Article 3 as applied to the CIA, among other things.  Section 1 also revokes all orders or regulations inconsistent with this new order, and directs department and agency heads to ensure compliance (and to seek DOJ guidance in case of uncertainty).

Section 3, the title of which states that Common Article 3 provides a "minimum baseline," specifies that any persons detained in any armed conflict shall be treated humanely, not subjected to violence to life and person or to outrages upon personal dignity, whenever in US custody, the effective custody of the US, or a US-controlled facility.  No such person shall be subjected to a technique not authorized or listed in Army Field Manual 2-22.3.  This section expressly forbids reliance upon legal advice relating to interrogation rendered by DOJ between 9/11/01 and 1/20/09.

Section 4 (i) directs CIA to shut down its detention facilities, if any remain, as fast as possible, and not to operate any such facilities in the future; (ii) requires timely notice to the ICRC for any person the U.S. may detain in any armed conflict

Section 5 creates a "Special Interagency Task Force on Interrogation and Transfer Policie," consisting of the AG, the DNI, the SecDef, the SecState, SecHomeland, D-CIA, CJCS, and others to be appointed by the Chair.  Their task "shall be: (i)   to study and evaluate whether the interrogation practices and techniques in Army Field Manual 222.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies; and (ii)  to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control."  Logistically, the setup is much the same as the detainee policy task force, with the same deadlines.

The Al-Marri order:

Ali Al-Marri, the sole enemy combatant detained in the U.S. itself, is not within the bounds of the GTMO closure order above.  This order directs the same officers to determine the best disposition of his situation.  SCOTUSblog notes that Al-Marri has agreed to a government request to delay the government's brief for 30-days beyond the current late February deadline.

    

   

[Again, apologies for formatting problems. I continue to try to make Word's auto-blog feature work for me here....]

An overview of the draft GTMO closure order

The ACLU has posted what appears to be the draft executive order, to be issued formally later today, regarding GTMO and the CIA.  See it here.

I reprint and summarize the key passages below.  Note that the draft order holds the door open to prosecution options other than federal criminal prosecution, and in fact appears to leave the door open to non-criminal detention methods.

[From the "findings" section]

In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantánamo and closure of the facility would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facility without promptly determining the appropriate disposition of the individuals detained would not adequately serve those interests. To the extent practicable, the prompt and appropriate disposition of the individuals detained at Guantanamo should precede the closure of the detention facilities at Guantanamo. . . .

It is in the interests of the United States that the Administration undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantánamo require a comprehensive interagency review.

Sec. 3. Closure of Detention Facilities at Guantánamo.

The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.

Sec. 4. Immediate Review of All Guantánamo Detentions.

 

[This section requires an individual status review to begin immediately, with "full cooperation and participation" from the AG, SecDef, SecState, SecHomeland, DNI, CJCS, and others to be designated by the AG.  The review process specifically will consider or do the following:

 

* Gathering data- the AG will assemble all relevant information the government has on each detainee

 

* Transfer/release - the reviewers will decide for each case whether a transfer/release to another country is feasible

 

* Prosecute in some cases - for those who do not get approved for transfer/release, the reviewers will determine whether the government should pursue a criminal prosecution (and if so, the reviewers are to take steps to make that happen).  The draft language refers to prosecution in an Article III court, but does so in a way that does not foreclose use of other for a:

 

"In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations." (emphasis added)

 

* Other disposition (i.e., detention on other grounds) – here is the catch-all section, which leaves the door open for non-prosecutorial detention:

 

"(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under subsections (c)(2) or (c)(3) of this section, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions."

 

* Moving to the US – the reviewers also are to consider the many issues raised by the prospect of moving the GTMO detainees to facilities in the US, including the possible need for legislation. 

 

Section 6. Humane Standards of Confinement.

 

[SecDef to conduct a review within 30 days to ensure full compliance with Common Article 3 at GTMO]

 

Sec. 7. Military Commissions.

 

            [SecDef to ensure that no charges are sworn or referred to the Military Commission system during the pendency of the review, and that all pending proceedings are "halted."]

 
 

Sec. 8. General Provisions.

 

            [Nothing in this order impacts detention beyond GTMO]

 

Change is coming to GTMO, but is it also coming to domestic military detention?

Several interesting developments, as the press of litigation calendars impels the new administration toward making decisions regarding counterterrorism policy in several spheres. First: Al Marri v. Spagone (S. Ct. No. 08-368) (Petitioner’s Brief). SCOTUSBLOG’s Lyle Denniston has the details as well as a link that will get you to al-Marri’s brief. One of the interesting questions here is whether the Obama administration will move to moot this case, either by repatriating Al Marri to Qatar or by shifting him into the civilian criminal justice system (ala Jose Padilla). At the moment, they have till late February to decide, at which point the respondent’s brief will be due. Second: Draft executive order on GTMO closure. A number of sources are reporting that a draft executive order is in circulation, one that would provide for closure of GTMO as a detention facility within the year. It is not clear whether the draft also specifies what will become of the detainees, thought it sounds as if the draft is likely silent on that point for now. Third: Bostan v. Obama (D.D.C. Jan. 20, 2009). No doubt you have heard by now that military commission proceedings have been stayed for the next 120 days while the new administration sorts out its plans for that process. But what about the ongoing habeas review process for the GTMO detainees? Bostan v. Obama (was v. Bush, of course) is one of the many pending petitions, and as it happened there was a hearing in that case set for this afternoon. Shortly after the inauguration, however, DOJ moved for a two-week continuance (with consent from the detainees), and Judge Walton granted it. The motion explained: 3. The Government is now assessing how it will proceed in the above-captioned Guantanamo Bay detainee habeas corpus cases. Time is needed to make that assessment and determination. Accordingly, the Government requests a short, two-week continuance of tomorrow’s hearing to permit the assessment to move forward without an intervening argument on the first full day of the new Administration as to the Government’s legal and other merits related positions in these cases. The full motion is here: . Apologies for this terrible formatting, by the way. I'm experimenting with using Word to post directly to the blog, from my listserv; not so good so far...

Civilian Contractors and the Limits of Military Jurisdiction

With a big hat tip to CAAFlog (a name that'll make sense in a second), I thought I'd pen a few quick thoughts on a fascinating habeas petition filed last week in the D.C. federal district court by a civilian contractor who is being subjected to court-martial proceedings in Iraq for his alleged role in a fire that took place during maintenance of an unmanned Predator drone. Although the contractor in question was formerly enlisted in the U.S. Air Force, there is no question that he is not currently a member of the U.S. military.

As such, subjecting him to military jurisdiction seems to run right into a long line of Supreme Court decisions suggesting that the Constitution categorically bars the exercise of military jurisdiction over civilians (indeed, this is part of the argument in al Marri). The government will argue, I'm sure, that contractors performing what are effectively military-like functions (such as the maintenance work the petitioner was contracted to perform here) should fall on the other side of that line (especially in light of a 2006 amendment to the UCMJ that supports such a reading), but the Court's most recent pronouncement on the subject -- its 1987 decision in Solorio -- seemed to suggest that form matters much more than function. There, the Court overruled the so-called "service connection" test, holding that servicemembers could be subjected to military jurisdiction for any offense committed while in military service, because the Constitution draws such a bright line between servicemembers and civilians.

Moreover, although these facts seem to present the perfect case for reliance upon the Military Extraterritorial Jurisdiction Act of 2000 ("MEJA"), the Justice Department declined to pursue charges against the petitioner in the civilian courts, sending the case back to the Air Force. Suffice it to say, this should be a really interesting -- and potentially important -- case going forward...

Whither GTMO? Judge Leon orders release of a 6th detainee, while significantly different bills are introduced in the Senate and House….

1. El Gharani v. Bush (D.D.C. Jan. 14, 2008) (GTMO habeas)

Judge Leon has granted habeas to GTMO detainee Mohammed El Gharani.  The opinion is posted here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv0429-202

A brief overview of the El Gharani decision:

El Gharani is a citizen of Chad, and a native of Saudi Arabia.  He appears to have left Saudi Arabia in 2001 at the age of 14.  In his account, he traveled to Pakistan for innocuous reasons.  In the government's account, he traveled to Afghanistan, stayed in and trained at al Qaeda facilities, fought at Tora Bora, and was arrested by Pakistani authorities after fleeing from Afghanistan.

Judge Leon observed that the key evidence against El Gharani consisted of inculpatory statements offered by two other detainees whose reliability "has either been directly called into question by Government personnel or has been characterized by Government personnel as undetermined." (slip at 7).   Internal inconsistencies in some of these inculpatory accounts, combined with credibility concerns and a lack of corroborating evidence, prompted Judge Leon to conclude that the government had not met its burden of proof (the preponderance standard).

I believe this brings the overall habeas count to 6 detainees ordered released, and 3 detainees for whom detention was affirmed.  So far all the decision are from Judge Leon, though other judges eventually will be in the mix as well as their habeas proceedings move along. As noted previously, Judge Leon has accepted a broad definition of what counts as grounds for detention in theory, but the pattern of decisions in his cases thusfar demonstrates that he is taking the government's evidentiary burden extremely seriously.   

2. Senate and House Legislation re GTMO Closure

Meanwhile, legislation is moving in both houses to compel the closure of GTMO during 2009.  That itself is uninteresting, since it is clear President Obama will seek closure this year.  What is interesting is the effort in these bills to define the set of options for dealing with the detainees going forward.

The Senate bill is S.147, introduced by Senator Feinstein (with Rockefeller, Wyden, and Whitehouse).  It is posted here.

In relevant part, it provides:

Section 3(b) Detainees- Prior to the date that the President closes the detention facility at Guantanamo Bay, Cuba, as required by subsection (a), each individual detained at such facility shall be treated exclusively through one of the following:

(1) The individual shall be charged with a violation of United States or international law and transferred to a military or Federal civilian detention facility in the United States for further legal proceedings, provided that such a Federal civilian facility or military facility has received the highest security rating available for such a facility.

(2) The individual shall be transferred to an international tribunal operating under the authority of the United Nations that has jurisdiction to hold a trial of such individual.

(3) The individual shall be transferred to the custody of the government of the individual's country of citizenship or a different country, provided that such transfer is consistent with--

(A) the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984;

(B) all relevant United States law; and

(C) any other international obligation of the United States.

(4) If the Secretary of Defense and Director of National Intelligence determine, jointly, that the individual poses no security threat to the United States and actions cannot be taken under paragraph (1) or (3), the individual shall be released from further detention.

(5) The individual shall be held in accordance with the law of armed conflict

The House bill is HR 374, introduced by Representative Harman (with Conyers, Esho, and Nadler).  It is posted here. 

In relevant part, it provides:

Section 3(b) Detainees- Prior to the date that the President closes the detention facility at Guantanamo Bay, Cuba, as required by subsection (a), each individual detained at such facility shall be treated exclusively through one of the following:

(1) The individual shall be charged with a violation of United States or international law and transferred to a military or Federal civilian detention facility in the United States for further legal proceedings, provided that such a Federal civilian facility or military facility has received the highest security rating available for such a facility.

(2) The individual shall be transferred to an international tribunal operating under the authority of the United Nations that has jurisdiction to hold a trial of such individual.

(3) The individual shall be transferred to the custody of the government of the individual's country of citizenship or a different country, provided that such transfer is consistent with--

(A) the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984;

(B) all relevant United States law; and

(C) any other international obligation of the United States.

(4) If the Secretary of Defense and Director of National Intelligence determine, jointly, that the individual poses no security threat to the United States and actions cannot be taken under paragraph (1) or (3), the individual shall be released from further detention.

See the difference?  

The Senate bill preserves the option of detention under the law of armed conflict, the House bill does not.   Of course, detention under the law of armed conflict is the basis for current policy.  We can assume, however, that the sponsors of the Senate bill do not intend to endorse the full scope of detention authority the current administration believes that it has under the law of armed conflict. 

So what next?  Perhaps an attempt to clarify S.147 Section 3(b)(5), articulating in a particular way just the conduct or status that would warrant detention under the law of war (e.g., language referring to those who bore arms against the US or its allies in Afghanistan) and specifying that there must be judicial review of that determination (not that this needs specification, given Boumediene).

Note that Judge Leon's rulings in the habeas decisions to date, discussed above, might have the effect of encouraging legislators (and the Obama administration) to give this option serious consideration.  On the other hand, any continuation of military detention in any form no doubt will generate its share of criticism.

Op-ed: Legal Aspects of ‘Operation Cast Lead’ in Gaza

View my op-ed published on JURIST Forum,  Legal Aspects of ‘Operation Cast Lead' in Gaza, where I argue that while self-defense (in the classic model) is the legal basis for Israel's "Operation Cast Lead" against Hamas, the Israel Defense Forces' re-articulation of proportionality and collateral damage in that context is a new development in international law that carries significant risks.

Cross-posted on AIDP Blog.