National Security Advisors

Waterboarding, foreigners, and Americans abroad

The other morning, I was listening to a discussion on "On Point" on NPR about the release of the formerly classified torture memos, and one of the program guests -- I think it was George Washington law prof Jonathan Turley -- asserted that if another country had treated Americans the way we treated Khalid Sheikh Mohammed and Abu Zubaydah (i.e., allegedly waterboarding them a combined 200+ times), we would be outraged.

I'm not so sure.

Just to be clear, I'm not intending in this blog post to defend how we treated those two al Qaeda members, nor am I intending to argue that waterboarding is not torture.  I'm simply exploring the counterfactual offered above.

Suppose that a foreign country captured two American citizens that it claimed had planned and executed a terrorist attack that killed more than 3000 persons.  And then for interrogation or retributive purposes, that country had subjected the two Americans to 200 instances of waterboarding.  Would we jump so fast to defend our fellow citizens?

Maybe.  But the closest analogy I can think of is the 1994 caning punishment inflicted on American teenager Michael Fay in Singapore.  Fay had been charged with vandalizing a number of vehicles, and after pleading guilty, he was sentenced to six caning strokes across the butt.  President Clinton asked Singapore officials for clemency of some sort, but all the Singapore government would do was reduce it to four caning strokes.  Although President Clinton decried the punishment as extreme, a significant percentage of Americans, as AsiaWeek reported at the time:

But according to a string of polls, Fay's caning sentence struck a chord in the U.S. Many Americans fed up with rising crime in their cities actually supported the tough punishment. Singapore's embassy in Washington said that the mail it had received was overwhelmingly approving of the tough sentence. And a radio call-in survey in Fay's hometown of Dayton, Ohio, was strongly pro-caning.

Of coure, caning is not the same as waterboarding, and Fay did receive due process in the sense of a judicial proceeding, so the two situations aren't exactly alike.  However, my point is that many Americans appeared to see Fay as getting what he deserved according to the laws of the country in which he was then residing.  In the same way, I'm not sure that all Americans would protest if another country were to punish Americans for pretty heinous acts in ways that would offend our laws and constitution.

Live Chat on Investigating (and/or Prosecuting) Bush Administration Officials

Hi all -- Just wanted to flag that I'll be doing a live chat today at 1:30 p.m. (EDT) over at WashingtonPost.com on whether (and to what extent) Congress and/or the Obama Administration should investigate and potentially prosecute Bush Administration officials. My own views are a bit complicated, but it should be a fun discussion!

An Exchange on Israel's Gaza Campaign

I wanted to bring to your attention an exchange  between Prof David Luban (Georgetown University Law Center) and myself regarding "Operation Cast Lead" - Israel's December 2008-January 2009 campaign in the Gaza Strip.

ABSTRACT
In this exchange published in the American Bar Association's National Security Law Report, Prof. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles and that the Hamas civil administration were not lawful targets under Israel's own interpretation of the law of armed conflict. Prof. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted. Prof. Luban's article is entitled "Was the Gaza Campaign Legal;" Prof. Guiora's is entitled "Proportionality 'Re-Configured.'"

This exchange includes essays by Guiora and Luban, followed by Guiora's response to Luban's essay, and Luban's response to Guiora's.

View the debate here.

March 23: Harvard's Web Seminar on "Closing Guantánamo: Legal and Policy Debates”

 On March 23, I will participate in a live Web seminar sponsored by the Program on Humanitarian Policy and Conflict Research at Harvard University. The program, “Closing Guantánamo: Legal and Policy Debates,will begin at 9:30 a.m. EST.  It focuses on the likely effects of the closure of the Guantanamo Bay Detention Facilities, including the appropriate legal framework to apply to current detainees and the key lessons to be learned.

Registration Required:

https://harvardsph.webex.com/harvardsph/onstage/g.php?t=a&d=715675188 

For more information on the event, click here:

http://ihlforum.ning.com/events/closing-guantanamo-legal-and

To link to discussion threads on the Humanitarian Law and Policy Forum social networking site, click here:

http://ihlforum.ning.com/forum/categories/closing-guantanamo-legal-and/listForCategory

 

Cross Posted on AIDP Blog

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]