National Security Advisors

Changes to the UCMJ needed to prevent Presidential Overreaching

In early May, President Obama announced the administration’s intention to continue the use of military commissions to try some of the suspected terrorists now being held atGuantanamo.  At the same time, the President announced a number of changes, including a prohibition on the use of evidence secured as a result of cruel, inhuman, or degrading treatment.  In addition, the President ordered the modification of the Commission’s evidentiary rules to place the burden on the party offering hearsay evidence to establish its reliability; previously, the party objecting to hearsay had the burden to show the evidence was unreliable, a burden that often fell on the accused. 

 

The Obama administration also announced it would be pursuing legislative changes to the Military Commissions Act.  To ensure that any procedures governing military commissions that depart from the established procedures in military courts-martial are based on legitimate national security concerns, we would recommend as well a specific change to Article 36(b) to the Uniform Code of Military Justice. As currently formulated, Article 36(b) requires that the rules and regulations for military commissions and the rules and regulations for military courts-martial be uniform insofar as practicable The Supreme Court concluded in Hamdan v. Rumsfeld that this was to ensure the rules for military commissions were not modified merely for the sake of expedience. 

 

Unfortunately, Article 36(b) does not set out a process to determine, if, when, and how the procedures for military commissions should depart from the procedures found in military courts-martial.  This lack of clarity means that the potential still exists for a President to modify the rules based upon expediency rather than legitimate national security concerns. 

 

To prevent such Presidential tinkering, Article 36(b) should be amended to provide that all rules, procedures and regulations for military commissions be uniform so far as practical, and that, before the President adopts any rules, regulations, and procedures that differ from those governing trial by courts-martial, he must submit to Congress a justification and explanation of why the rules governing courts-martial are not practicable. 

 

This amendment would accomplish several objectives.  First, it would clarify that the President has the responsibility to make the initial practicality determination if he decides that military commission procedures should depart from courts-martial procedures.  Because he, as Commander in Chief, will be the institutional actor seeking to establish military commissions, it is appropriate that he have the burden of showing impracticality.   

 

Second, this amendment would require the President to more completely and precisely articulate why he believed a departure from the courts-martial rules and procedures was necessary.  The amended Article would more fully align the use of military commissions with historical precedent—precedent that strongly favors procedures consistent with those used in courts-martial.  If the President wanted to depart from that precedent, then he would have to fully explain and justify such a departure.  This requirement will help to ensure that departures are not motivated by a desire simply to develop a more convenient adjudicatory tool.

 

Third, by requiring the President to explain why existing procedures are not practical, the amended Article 36(b) would give Congress an opportunity to evaluate the President’s exercise of his authority.  Congress could review the explanation put forth by the President and make its own determination as to whether his decision was justified.  If Congress disagrees with the President, it has the constitutional authority to take action—either to seek compromise or otherwise prevent the President from changing the rules and procedures.  The very act of reviewing these changes would be beneficial, increasing transparency and affording citizens the opportunity to understand the implications of the suggested changes.

 

Finally, this amendment to Article 36(b) would help to ensure that the President will develop a record stating why particular traditional procedures are impracticable.  The courts would then have a basis upon which to evaluate whether the President’s determinations satisfy Article 36(b).  And so the third branch of the government would provide an additional check upon a President tempted to allow an interest in expediency to trump the rule of law.

Victor Hansen and Lawrence Friedman, New England Law Boston

Judicial Review and Administrative Detention

[I had initially submitted the following post in two parts. They appear below in sequence, with the second half responding specifically to Ken Anderson's question.]

The ‘limits of power’ is essential to the ‘rule of law’. While perhaps an obvious motto or slogan its application in times of crises is no mean feat. FDR’s decision to interne Japanese-Americans in the aftermath of Pearl Harbor and the Supreme Court’s decision in Korematsu are but the best examples of what I define as ‘panic responses’. The ‘Palmer Raids’, Prize Cases and Presidential Order establishing the Military Commissions are similar examples. What is disheartening in all four is that while the executive engaged in excess neither the Congress nor Supreme Court engaged or challenged the President. Checks and balances fell by the wayside; Justice Jackson’s famous warning of an ‘unfettered executive’ went unheeded.

As the three branches of government move into the post Bush era they would do well to recall not only Justice Jackson’s words but also those of the former President (Chief Justice) of the Israeli Supreme Court, Aharon Barak, ‘national security is not a magical phrase’. Those two phrases articulating the same concept are essential to understanding how administrative detention can and should be implemented.

The fundamental requirements are caution and skepticism; caution by the executive and skepticism by the Congress and Courts. Both are essential to the rule of law and ensuring that ‘by all means necessary’ will be relegated to Hollywood rather than adopted by the Administration as a viable counterterrorism policy. Easier said than done in the immediate aftermath of a terrorist attack; I know for I have been a direct participant in decision making under such circumstances. The dilemma of the decision maker is truly put to the test; the public and media are clamoring for a response (however defined) and politicians demand action (however defined) ensuring the voter that if they were in office either the attack would not have occurred or their response would be so powerful and effective as to literally guarantee no future attacks. Precisely because of these pressures the Supreme Court must engage in active judicial review.

The administrative detention paradigm with its inherent prejudice (individual cannot confront his accuser) requires rigorous judicial review, perhaps more than other operational counterterrorism measures. When I was mandated with recommending to commanders whether to administratively detain Palestinian’s the High Court of Justice’s future review of the recommendation/decision was a critical component of the internal (IDF/intelligence community) process. After all, the Court would ask why a particular recommendation was made and would intervene if not convinced the decision met a reasonableness standard. While reasonableness may seem broad/vague it was sufficiently defined/contoured to provide decision makers guidelines regarding the scope/range of what measures could be implemented. Active judicial review of the administrative detention meant that the Court was consistently examining whether the executive correctly applied the reasonableness test to operational decisions. That is, the review was not vague; it was concrete in that the Court wanted to be satisfied that the executive understood reasonableness was an abstract concept but rather a term with clear parameters and therefore, judicially imposed limits.

Unlike late Chief Justice Rehnquist’s philosophy regarding the Supreme Court’s role in times of armed conflict the Barak’s model was a fundamental lack of deference to the executive (IDF). While commander’s felt the HCJ had intervened in their natural bailiwick, Barak was convinced of the need to ensure that operational counterterrorism measures were reasonable. The only way to do so was to engage the executive; otherwise disregard for the rule of law emanating from judicial deference was inevitable. That is, only by directly hearing from the commander or his representative was the Court able to decide –case by case—whether administrative detention had been reasonably applied based on available intelligence information and whether it could be declassified.

*****

In planning the week’s posts I intended to use the last day to discuss, if not apply, the Israeli experience to the American paradigm. Ken Anderson’s exceptionally thoughtful comment—which reflects an uncanny understanding of Israeli society–goes to the core of comparatavism.

While I am an unequivocal advocate for comparative research and analysis and have sought to bring this approach to my scholarship (with thanks to Ken for his gracious comment re my scholarship/policy writing) I am fully aware of its limitations. That said, I am unequivocally of the opinion that nation states can and must learn from each other. While judicial, constitutional and societal paradigms are unique and distinct it is essential that like-minded civil, democratic states undertake the critical effort to understand how similar countries address similar issues. In the field of counterterrorism (like others) no one nation state has ‘all the answers’, therefore learning from others is essential.

Under former President (Chief Justice) Meir Shamgar and particularly under former President (Chief Justice) Aharon Barak the Israeli Supreme Court was the nation’s dominant institution, matched –perhaps–only by the Israel Defense Forces (IDF). Barak’s extraordinarily broad definition of standing and justiciability literally meant that every alleged grievance committed by the State (including future, proposed action) was petitionable to the Court sitting as the High Court of Justice. As I have discussed during the week, military commanders beginning in the 1990’s were increasingly forced to take into consideration the Court’s real-time intervention. The dilemma of the decision maker–complicated enough in operational counterterrorism without external intervention–was indeed made more complicated precisely because the Court imposed its ‘reasonableness’ test on commanders. The burden was on the commander to show that a particular operational decision met that test; if not, the Court would not hesitate to rule that the commander’s decision violated the rights of the petitioner.

I have advocated in my scholarship the absolute importance of active judicial review. The basis for this deeply held belief is the seat that I had at the counterterrorism table. That is, I have been a direct participant (not witness) to extraordinarily complicated dilemmas and understand the tension between excess of power and limits of power. That tension and the need to respond justifies active judicial review. The legislative branch –as historically documented–is incapable/unwilling to restrain the executive (in any country, including the U.S. and Israel); the only operational response to Justice Jackson’s ‘unfettered executive’ concern is an active, interventionist Court.

That said, as Ken correctly highlights, the Israeli paradigm is not a mirror image of the American paradigm. Barak’s theory of literally unlimited scope of judicial review stands in direct contrast with the ‘cases and controversies’ clause of Article III of the US Constitution. As a result of Chief Justice Marshall’s decision in Marbury v Madison, the Supreme Court became an equal partner in the government; in the Israeli paradigm according to Barak’s theory –I suggest–the Court (particularly when sitting as the High Court of Justice) is first amongst equals.

Is this system ‘translatable’ into the American paradigm? According to Marbury and a narrow reading of ‘cases and controversies’, the majority of scholars would suggest it is not. On the other hand, the historical U.S. overreaction to perceived or actual threats suggests that the U.S. Supreme Court (in lieu of a Congress that genuinely engages in ‘checks and balances’) adopt a fundamentally different approach than it has historically. Perhaps Boumediene is sign of things to come; needless to say, I fully agree with Judge Bates and only hope that future decisions will reflect his holding.

Ken Anderson is of course right that there are fundamental differences between Israel and America–size and immediacy of the threat are but prime examples. However, precisely because both are vibrant democracies the principles of checks and balances and separation of powers must be more than empty platitudes. They are what protect us from executive excess in both cultures. The role of the Court is to constantly and unblinkingly engage the executive. Whether Barak’s theory is too interventionist is a matter of lively academic debate; while I would suggest it was a proper response in reining in the executive I well understand those who are critical. On the other hand former Chief Justice Rehnquist’s theory regarding the role of the Court in times of armed conflict is, I respectfully suggest, deeply flawed and ultimately harmful to American principles and values.

The ultimate role, I believe, of a ‘comparatist’ is to examine different regimes–in the understanding that profound differences exist–with the intention of identifying strengths from distinct paradigms and to cobble together a functional model for addressing similar issues. With respect to the issue of administrative detention–the focus of my posts this week–I do believe that the Israeli model (albeit problematic as I have argued) is adaptable in the US, conditioned on legislation and subject to active judicial review.

Final thought: many thanks to Ken for truly ‘pushing the issue’; that was my fundamental hope with respect to the postings this week. Needless to say, I look forward to additional discussion and again thank my friends at OJ for their gracious invitation.

Cross posted on Opinio Juris

An Israeli Case for Administrative Detention

I would like to thank everyone at Opinio Juris for inviting me to guest blog this week on detention policy issues facing the Obama Administration, the Congress, and the courts. Needless to say, I hope my comments contribute to the debate and I welcome comments/feedback from readers.

The discussion below addresses both detainees presently held and those detained who will be detained in the days and years ahead. My fundamental assumption is that the present detention model–which I suggest is largely ‘indefinite detention’—must be replaced by a paradigm that is consistent with U.S. constitutional protections and guarantees as articulated by the Supreme Court in Boumediene v. Bush and Judge Bates with respect to habeas corpus.

In considering detention policy with respect to detainees arrested since 9/11 held in Guantanamo Bay, Bagram, Abu Ghraib and elsewhere by the US (directly and indirectly), there are a number of fundamental issues requiring discussion and ultimately resolution by the Administration:

1) How is the post 9/11 paradigm to be defined? (traditional criminal law; prisoner of war; ‘hybrid’ combining aspects of both)?

2) What are the criteria for determining whether a specific detainee presents a particular threat to America’s national security?

3) What are the standards for judicial review for those detainees deemed to present a threat (after establishment of criteria based vetting process)?

4) Are all detainees ‘prosecutable’ or are some to be held in an alternate detention paradigm?

5) Where will released detainees be freed (country of their citizenship; US; third country)?

I have previously advocated the adoption of a hybrid model, one based on the criminal law but modified to reflect differences between terrorism and what is understood to be the traditional criminal law paradigm. In a nutshell, I define terrorism as actions intended to kill or injure innocent civilians or intimidate the civilian population from conducting its normal activities for the sake of advancing a cause (social, political, economic or religious), with no pecuniary benefit accrued to the terrorist. In addition, as I have suggested elsewhere, prosecuting accused terrorists often requires the introduction of classified intelligence information (bolstering the criminal evidence) justifying the establishment of an alternative judicial paradigm (national security court).

With respect to detention, I propose adoption of a two-tiered model:

1) Detention prior to trial in the traditional criminal law paradigm (based on criminal evidence);

2) Administrative detention (based on classified intelligence information).

Administrative detention was held by the Israeli Supreme Court (sitting as the High Court of Justice) to be lawful (in accordance with Clause 85 of the Defense Emergency Regulation Act of 1945), provided that the available intelligence information (which must be reliable, credible, time-relevant, and cannot be presented in open court because of ‘source sensitivity’) indicates that the individual in question is involved in a future act of terrorism. An Order is subject to three layers of judicial review:

1) A hearing before a military judge (akin to an administrative hearing)

2) An appeal heard before a senior military judge

3) A hearing before the Israel Supreme Court (sitting as the High Court of Justice).

According to the Act, the maximum period an Order may authorize detention for is six months, though it is renewable for an additional six months. The number of times an Order may be renewed is unlimited, though each renewal order requires the same three-step judicial process. The fundamental premise of the administrative detention model is the individual’s involvement in a future act: that involvement must present a sufficient threat (real, not perceived) to national security to justify a process where neither the individual nor counsel see the classified information for judicial hearings are in camera/ex parte. While human rights organizations (Israeli and international alike) have been extremely critical of the process which denies the detainee the right to confront his accuser, the High Court of Justice has upheld the measure as lawful and necessary in the context of national security provided the following questions have been weighed and balanced by the military commander (who signs the detention order based on the recommendation of the intelligence community):

1) The quality of the intelligence and the reliability of the source

2) The intelligence cannot be declassified (which would enable initiation of the criminal law process)

3) The threat the individual poses to national security

4) The appropriate length of detention (in proportion to the threat posed)

5) In considering whether to renew an order based on information that justified the initial order (rather than new information) the commander must weigh factors including continuing severity and nature of the threat.

Adoption of administrative detention requires authorizing congressional legislation rather than only an executive order. I would suggest that one of the critical ‘lessons learned’ of the Bush Administration’s measures in response to 9/11 was a fundamental lack of Congressional involvement and engagement.

In recommending adoption of the administrative detention model, my fundamental assumption is the critical need to determine whether detainees present a threat to national security, the requirement to assess the reliability and credibility of the intelligence information and to facilitate independent judicial review. While the obvious preference—from a legal and policy perspective—is to enable all post 9/11 detainees a full criminal trial, source protection (subject to independent judicial review) is a legitimate consideration in the context of lawful counterterrorism when intelligence information suggests the prospective detainee is involved in future acts of terrorism.

Cross-posted in Opinio Juris

More on the Israeli Model

In my post "An Israeli Case for Administrative Detention", I presented the fundamental principles of administrative detention. Today, I will discuss the process and considerations when to apply the measure as developed over the course of years in Israel with respect to a specific individual. The measure is applied in the West Bank by order of the military commander (Israel has never annexed the West Bank) and in Israel proper by the Minister of Defense. In both, the decision is subject to judicial review (in the West Bank by two military courts and the Israeli Supreme Court; in Israel by the Tel Aviv District Court and by the Israeli Supreme Court).

As to the process: when the security forces (Israel Security Agency, ISA; formerly known as General Security Services) receive intelligence information suggesting a specific individual’s involvement in terrorism the following options are ‘on the table’:

1) Arrest for purposes of initiating a criminal law process (detention-interrogation-trial)
2) Arrest for purposes of administrative detention (detention-hearings)
3) Not arrest (monitor/surveillance).

If the ISA chooses to recommend the commander impose administrative detention on the individual, then the military commander’s legal advisor is requested to review the intelligence information in order advise the commander whether to adopt the recommendation. In my postings as senior security advisor to the West Bank Legal Advisor (1990-1992) and Gaza Strip Legal Advisor (1994-1997), I was asked to review ISA recommendations to military commanders regarding Palestinian residents of the West Bank and Gaza Strip. My recommendations were either to:

1) Accept the ISA’s detention recommendation and if yes, whether to affirm the ISA’s recommendation regarding length of detention (up to six months); OR
2) Reject the ISA recommendation and recommend either not to detain the individual or to arrest for purposes of initiating a criminal law process.

My recommendations (to the commander) were based on the following considerations:

1) Quality of intelligence and source reliability/credibility (this required expert opinion by an ISA official);
2) Timeliness/staleness of the intelligence information (this required expert opinion by an ISA case agent);
3) Previous activities of the individual (this required review of the intelligence dossier prepared by the ISA);
4) Impact on the individual’s immediate community; this was of particular relevance if the individual was a highly regarded/respected leader (this required expert opinion by an ISA official);
5) NGO response (while Israeli and international human rights organizations were unanimous in their criticism of the measure, there was additional sensitivity with respect certain categories including women, ‘people of prominence’, and attorneys);
6) Severity of the danger posed by the individual (this required expert opinion by an ISA official);
7) Whether the intelligence information could be declassified and the individual interrogated thereby enabling initiation of the criminal law process;
8. Danger to the source/s were the information to be declassified (this required expert opinion by an ISA official);
9) Whether the Israel Supreme Court (sitting as the High Court of Justice) would intervene in the commander’s decision.

Were I to affirm the ISA’s recommendation then the intelligence dossier and my recommendations were brought before the commander; if the commander accepted my recommendation the individual would be detained in accordance with the signed order which included a short description of the order’s justification (largely a general statement regarding the individual’s activity).

As I shall discuss in subsequent postings, the orders are subject to judicial review (military court and Israel Supreme Court).

Cross-posted in Opinio Juris

Dilemmas in the Administrative Detention Paradigm

There are two fundamental realities regarding the Israeli administrative detention process:
1) the individual (detainee) cannot confront his accuser
2) the individual (detainee) involved in planning terrorist actions is detained prior to carrying out an act of terrorism.

Balancing these two is essential to lawful implementation of a measure, which by its very nature, places the individual at an extraordinary disadvantage. When I was asked to review a file –whether as legal advisor or judge (see "More on the Israeli Model")—the dilemma was the same: is the measure truly necessary or is there another mechanism available that balances the legitimate rights of the individual with the equally legitimate rights of the state. While the preferred answer –provided I was convinced of the danger posed by the individual—was to initiate the criminal law process, operational counterterrorism is dependent on intelligence information. Which, in a nutshell, means protecting the source is of the fundamental essence for otherwise the state cannot gather intelligence information which is the heart and soul of operational counterterrorism.

By analogy: if terrorism depends on resources and motivation then counterterrorism depends on intelligence information based on sources. My dilemma, then, was whether the severity of the planned action justified denying the individual his ‘day in court’ in order to protect the source. As a lawyer trained to respect the principle of enabling the accuser to confront his accuser I consistently grappled with the following: deny the individual that right or potentially endanger the source which had direct implications on that particular source and indirect implications regarding other sources.

In many ways the dilemma is ‘lose-lose’; denial of otherwise guaranteed privileges and protections raises fundamental legal and moral questions regarding society and the limits it will go to protect itself. I have, throughout my career, recoiled at phrases such as ‘by all means necessary’; I always believed that a seat at the counterterrorism table (which I had) imposes the requirement of understanding the limits of power. That principle means being extraordinarily sensitive both to the rule of law and the dangers inherent to the ‘slippery slope’ as exemplified by government excess not subject to independent judicial review.

As the legal advisor mandated with recommending to the commander whether and for how long to administratively detain a Palestinian resident either of the West Bank or Gaza Strip I saw my responsibility as a buffer between competing interests. On the one hand, the security agency had its very specific interests which generally aligned with the commander’s; on the other hand the potential detainee had his rights and freedom which were deserving of protection. While the courts (military and Israel Supreme Court sitting as the High Court of Justice, HCJ) exercised independent review of the detention order (both with respect to its necessity and length) I endeavored to minimize the cases in which the HCJ would intervene in the commander’s decision. To that end, my responsibility was to carefully review the intelligence information to ensure that only those cases in which administrative detention was required were brought before the commander. The two step process–whether to detain and if yes, for what period of time –required balancing powerful, competing interests.

I have repeatedly argued that the most difficult part of the process was determining what detention period to recommend to the commander. Precisely because the detainee does not have the right to confront his accuser I found this decision more difficult than sentencing a defendant represented by counsel. It would be fair to state that the question of how many months in detention are appropriate with respect to a particular individual represent some of my most difficult internal struggles. While a mathematical formula does not exist I was guided by the principles of proportionality and necessity seeking to balance equally legitimate rights with the understanding, frankly, that the process is inherently problematic because the detainee cannot confront his accuser.

That said, it is important to recall the criteria for applying administrative detention: individuals who were involved to varying degrees in planning future acts of terrorism or had indicated their intention to commit future acts. In planning with others the individual –by analogy—was engaged in a conspiracy; by indicating to others an intention (as an example) to throw Molotov cocktails the next time an IDF patrol passed through his village the individual clearly expressed an intent to commit a crime. As the principle of administrative detention is preventive detention in both cases the ISA would recommend administratively detaining the individual; my decision (and this is critical to the discussion) would be based—in large part—on two factors:

1) reliability/credibility/time relevance of the intelligence information;
2) whether the information could be declassified (source protection).

I have advocated elsewhere for the creation of an alternative judicial paradigm for bringing post 9/11 detainees to trial; I would suggest that same court would be the most appropriate forum for administrative detention. The alternative paradigm is fundamentally predicated on the understanding that terrorist trials often require the introduction of classified information. This will be particularly true should the decision be made to bring detainees held over the course of a number of years in Guantanamo Bay, Abu Ghraib and Bagram to trial. Because both trials of suspected terrorists and administrative detention hearings involve review of intelligence information I would suggest that the proposed alternative judicial model is appropriate for both paradigms. Critics have, correctly, identified the fundamental flaw in the proposal: denying the individual the right to confront some or all of his accusers. That criticism is both valid and correct.

However, the unfortunate reality of operational counterterrorism is a reliance on classified intelligence information. The balance an alternative judicial paradigm (whether trial or administrative detention) seeks to strike is guaranteeing a process with judicial review rather than detention by executive fiat not subject to independent judicial review. That model is clearly unconstitutional and has, in large part, been struck down by the Supreme Court. The question going forward is what process does the Obama Administration establish for the thousands of detainees presently held. I would suggest that the proposed administrative detention model in conjunction with the alternative judicial model reflects a balanced approach in an extraordinarily complicated and complex paradigm.

Cross-posted in Opinio Juris

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.