National Security Advisors

The [Unfortunate] Resurrection of the Military Commission

President Obama's announcement Friday that he was going to resume military commission trials comes as a real disappointment to those who believe that conforming the fight against terror with the rule of law is the right thing to do not only from a legal perspective, but from a pragmatic one as well.  The fight against al Qaeda is much more than a military struggle; it is as also an international criminal law enforcement effort requiring a great deal of international cooperation, as well as a political and pyschological contest in which we must persuade the substantial majority of the Muslim world that we are in the right and terrorism is the ultimate wrong.   Resuming the military commissions, suffering from both real legal shortcomings and substantial adverse publicity, seems counter to our national interest. 

The President's statement refered to the "long tradition" of American military commission use.  As one who has spent the better part of the years since 2001 documenting military commission history and assessing applicable governing law -- both international and domestic -- I'm led to conclude that the revisions the President proposed are wholly insufficient to redress the commissions' legal shortcomings, let alone overcome the public taint fully merited by their flawed implementation during the previous administration.

The Guantanamo commissions have suffered from critical substantive and procedural defects since their inception.  To be fair, as I have documented here, commission procedure has been significantly improved over the past few years.  Despite its many faults, the Military Commissions Act of 2006 made a substantial contribution in this respect.  Nevertheless, the commissions as inherited by the Obama administration retained a number of significant procedural flaws, including

    (1) limitations on discovery that impair defense access to key evidence, including potentially exculpatory information held by the government

    (2) real potential for convictions based on information obtained via coercion or even torture

    (3) inability of defendants to be represented by counsel of choice

    (4) inequality of arms between prosecution and defense in terms of access to witnesses and resources available to counsel

President Obama is directing some some modest changes such as banning evidence obtained through cruel, inhuman, and degrading treatment and requiring the proponent of hearsay evidence to demonstrate its reliability.  These are steps forward, but in an adversarial system effective judicial gatekeeping still requires the defense to have sufficient knowledge of evidentiary sources to argue why the judge should exclude tainted evidence, and nothing in the new proposals seems to sufficiently address the information and resource disparities between prosecution and defense, still leaving military commission defense counsel shortchanged over their access to evidence as compared to court-martial attorneys.  The President adopts the court-martial rule allowing defendants to request specific military counsel.  That right might mean something to an active duty servicemember who has had the opportunity to make the acquaintance of multiple JAGs over the course of their military service or learn of their reputations; it's not very meaningfull to foreign citizens isolated at Guantanamo whose real desire is to be able to call upon attorneys they can trust from their homeland -- a privilege accorded by virtually every previous war crime tribunal when the trying nation was not actually still in a shooting war with the defendant's home state.  The President's proposed changes rdo epresent another small evolutionary step forward in commission procedure, but still fall well short of the standards necessary to produce credible trials.  

The commissions also have raised substantial equal protection concerns which the new changes do nothing to address.  The most obvious example is that the tribunals are limited to trying non-citizens only, implying upfront that this is too low a standard of justice to be imposed upon an American.  But of equal concern, the rights and privileges accorded the defendants have varied considerably according to the relationship of the defendants' home country with the United States.  Britain got its citizens exempted.  Australia negotiated very special considerations for David Hicks including assistance by national counsel even though not permitted by the commission rules and uniformly denied to those from Muslim countries to date.  This inequality is evident to even casual foreign observers, and will likely preclude convictions from receiving broad public acceptance.

But the most fundamental flaw in the whole commission process is the lack of conformance with any credible body of substantive law.  The commissions are ultimately justified through reference to the law of war, but there has been no serious effort to conform to the rules of that body of law.  The most obvious example is that essentially all charges brought to date are legally problematic.  Virtually all serious legal scholars who have examined the issue, as well as four Supreme Court justices, are on record as agreeing that conspiracy is not a war crime, yet that has been one of the principle charges levied against Guantanamo defendants.  Providing material support to terrorism is another example of a charge clearly prosecutable in U.S. federal courts but lacking standing as a law of war offense.  The government seeks to deny the defendants any combatant standing, but the law of war provides individual criminal liability fundamentally for combatants because international law immunizes them from domestic criminal prosecution for their martial acts of violence.  If members of al Qaeda lack combatant standing, they are logically to be tried in domestic courts because the law of war does not criminalize their participation in hostilities but rather fails to immunize it. 

The irony is that the assumed advantage of the military commissions is that they can render swifter justice than regular federal trials and can deliver convictions where Article III courts cannot.  But if those convictions are the result of procedural shortcuts or based on tainted evidence then the verdicts and any punishment imposed will be irreparably tainted, providing a propaganda advantage to our adversaries and further impairing legal cooperation with our friends.  And federal law clearly provides the robust slate of proven offenses necessary to bring virtually all those associated with al Qaeda within its ambit.  Military commission convictions, by contrast, will result in years of appeals on basic issues related to their jurisdiction over the substantive offenses charged which would not be an issue subject to challenge in federal courts.

The military commissions were a bad idea under the Bush Administration.  They remain a bad idea now.

Creating a Domestic Terror Court

View my article, Creating a Domestic Terror Court, forthcoming in the Washburn Law Journal, 2009.    

Abstract:

President Barack Obama has stated that among his initial priorities as commander-in-chief is closing the United States detention facility in Guantanamo Bay. One of his first actions after taking office was to suspend all legal proceedings in Guantanamo so that “the newly inaugurated president and his administration [can] review the military commission’s process, generally, and the cases currently pending before military commissions, specifically.” To that end, on January 22, 2009, President Obama signed an executive order requiring the closure of the Guantanamo Bay detention facility within one year. This Order raises numerous, highly problematic questions including: What do we do with the current detainees? Where will they go? How will they be tried? Will they be tried? What shall be done with future terrorism suspects?Although President Obama has made his intentions clear, he has not, as of yet - according to media reports - determined what is the most effective manner to go forth with this enormously complex issue. Therefore, now is clearly the time to develop a working strategy to resolve the fundamental questions of where and how thousands of post-9/11 detainees are tried. For the reasons articulated below, I recommend establishing a domestic terror court (DTC) in the United States.

This article will detail the specific processes and procedures of such a court and seek to answer many of these difficult questions. In doing so, it is my hope that this article will act as a “guide” for policy makers in articulating, developing, and implementing a process from detention to trial of individuals suspected of involvement in terrorism. A lawful civilian process, subject to independent judicial review, is the constitutional, intellectual, and philosophical underpinning of this proposal. In detailing the nuts and bolts of the proposed DTC. Though I will briefly address why the DTC proposal should be adopted, the primary emphasis in this article is to fill in the blanks as to the workings of the court.

 

Cross-posted in AIDP Blog

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.