Crimes, War Crimes and the War on Terror

[jmm99]

Hey Boon,

The Hutchins case on its facts presents some interesting questions based on this summary from the Marine Times:


Hutchins was accused of devising a plot to kill Saleh Gowad, who Marines suspected of planting roadside bombs in and around Hamdaniya, and then leading his squad to Gowad’s house in the early hours of April 26, 2006. When they arrived and Gowad wasn’t there, prosecutors alleged, four members of the squad snatched another man instead, bound him with duct tape and dragged him to a nearby road where they executed him beside a freshly-dug hole.

The Marines later told their superiors that the 52-year-old man they killed, eventually identified as a retired Iraqi policeman, died during a firefight that erupted after they caught him prepping the hole for a roadside bomb.

Hutchins is one of eight initially charged in the case. Military juries convicted two fire team leaders but gave no jail time. Four other members of other Hutchins’ squad pleaded guilty to various charges, with sentences ranging from no confinement to an eight-year sentence, later reduced to time serve.

A military jury at Camp Pendleton, Calif., convicted Hutchins of unpremeditated murder, conspiracy, larceny and making a false official statement. His 15-year prison sentence later was reduced to 11 years.

Something about the results (e.g., no or reduced prison time for the alleged "perps") suggest there is more to this case. For example, if the first sentence is just re-written a bit:


Hutchins was accused of devising an operational plan to neutralize Saleh Gowad, whom Marines had positively identified, based on reasonable evidence, of participation in planting roadside bombs in and around Hamdaniya, and then leading his squad to Gowad’s house in the early hours of April 26, 2006.

Probably outside of SGT Hutchins' authority to order that kind of action, but not a criminal conspiracy either. The problem would still exist (even in that version) if we had a successful snatch and grab, but that followed by execution of the prisoner (mistaken ID makes it look worse, but doesn't add to the crime) - if those facts are accurate. If those facts were accurate, the low sentences are not explicable to me.

The screw-up re: "withdrawal" of defense counsel may have given the reviewing court a good reason to dump the case - without addressing the merits (or whether that "withdrawal" actually prejudiced the defendant).

Withdrawal of defense counsel in my world (civilian criminal justice system), if before trial, requires a motion to withdraw with notice and hearing afforded the accused. If during trial, the same procedure would apply; but the judge would almost certainly deny the motion to withdraw barring some very unusual circumstances.

The CM rule appears to be the same in substance (from the concurring opinion by Judge Maksym):


Rule 1.16 of the Rules of Professional Conduct governing attorneys practicing under the cognizance of the Judge Advocate General of the Navy (Judge Advoctae General Instruction 5803.1C (9 Nov 2004)) sets forth the conditions under which a judge advocate can terminate the privileged state he/she enjoys with a client. The rule states in part:

b. Except as stated in paragraph c, a covered attorney may seek to withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(1) the client persists in a course of action involving the covered attorney’s services that the covered attorney reasonably believes is criminal or fraudulent;

(2) the client has used the covered attorney’s services to perpetrate a crime or fraud;

(3) the client insists upon pursuing an objective that the covered attorney considers repugnant or imprudent;

(4) in the case of covered non-USG attorneys, the representation will result in an unreasonable financial burden on the attorney or has been rendered
unreasonably difficult by the client; or

(5) other good cause for withdrawal exists.

Concurring Judge Price was impressed with the case against the defendant; but the other judges did not address the merits of the case.

Regards

Mike

[davidbfpo]

Six former Guantanamo Bay detainees have overturned a ruling that allowed government use of secret evidence to defend itself against a damages claim. The men had been told that parts of MI5 and MI6's defence could be kept secret. The men are suing the UK government, saying their detention by the US could have been stopped. The Court of Appeal ruled it would "take a stand" against secrecy that would undermine the "most fundamental principles of common law".

Ends with a critic's view:
..the Court of Appeal has sent the strongest signal to the security establishment that it cannot play fast and loose with the rule of law.

Link:http://news.bbc.co.uk/2/hi/uk_news/8659567.stm

[davidbfpo]

Andy Worthington has written this article and this is the opening paragraph:
Last November, US District Court Judge Gladys Kessler granted the habeas corpus petition of Farhi Saeed bin Mohammed, a 48-year old Algerian, held in Guantánamo, who was seized in Pakistan in December 2001 after fleeing the chaos in Afghanistan following the US-led invasion, and has been in US custody ever since.

Link:http://www.eurasiareview.com/2010/05/how-binyam-mohammeds-torture-was.html

[jmm99]

was first reported by me here, DC Habeas Cases - Update (http://council.smallwarsjournal.com/showpost.php?p=89403&postcount=450) (12-19-2009); and re-linked here, Happy to ... (http://council.smallwarsjournal.com/showpost.php?p=92997&postcount=471) (02-10-2010), with my quotation of one graphic episode.

This is scarcely new news. I've cited Andy in a number of posts - as a juxtaposition to my own views and as an example of what I classify as an extreme pro-detainee viewpoint. Andy is not a lawyer (and doesn't claim to be - he does often rely on Clive Stafford Smith, UK counsel for Binyam Mohamed).

Andy has done a lot of research on all of the Gitmo detainees. His webpage is here, Andy Worthington, Author & journalist (http://www.andyworthington.co.uk). All here can visit it and draw their own conclusions re: Andy's positions.

I do not plan donations to Andy's cause. We have more areas of disagreement, than agreement - most based on his view that the LOAC (laws of armed conflict) have no application to these detentions. Ironically, both he and I have an interest in Stonehenge - he into it much more deeply, with two books to his credit.

His lead article today is UK Appeals Court Rules Out Government’s Use of Secret Evidence in Guantánamo Damages Claim (http://www.andyworthington.co.uk/2010/05/05/uk-appeals-court-rules-out-governments-use-of-secret-evidence-in-guantanamo-damages-claim/):


5.5.10

In the Court of Appeal yesterday morning, six former Guantánamo prisoners — Bisher al-Rawi, Jamil El-Banna, Richard Belmar, Omar Deghayes, Binyam Mohamed and Martin Mubanga — won a resounding victory against the government, when three senior judges, including Lord Neuberger, the Master of the Rolls, overturned a ruling that, for the first time in British .....

Regards

Mike

[jmm99]

Two weeks ago, I reported the Uthman case, Alleged UBL bodyguard granted habeas (http://council.smallwarsjournal.com/showpost.php?p=97066&postcount=499), where habeas was granted largely because Uthman's allegations of torture were not contested.

The same judge, Henry H. Kennedy has decided a very similar case, Civil Action No. 2004-1254 (ABDAH et al v. BUSH et al) (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1254-825); but where some allegations of torture were contested and habeas was denied.

Although the judge found that some mistreatment probably occured, the detainee's statements were voluntary, given the totality of circumstances (the first 20 pages of the opinion deal with the torture allegations; at p.20):

1091

The judge then spent another 20 pages discussing the facts that led him to conclude that the detainee was a part of AQ and lawfully detained (p.42):

1092

The lesson learned from this and other cases is that uncontested torture allegations have been poison to the government. Where less "enhanced" methods were solely used, or were used later after the initial "taint" was diminished, the government has generally been successful in defeating habeas claims.

[Jedburgh]

UNODC, 18 May 10: Digest of Terrorist Cases (http://www.unodc.org/documents/terrorism/09-86635_Ebook_English.pdf)

The United Nations Office on Drugs and Crime (UNODC (http://www.unodc.org)) brought together senior criminal justice experts—including Attorney-Generals and Chief Prosecutors—to share experiences and good practices on how to deal with terrorism cases. The outcome is this Digest of Terrorist Cases, giving policymakers and criminal justice officials practical ideas and expert insights on how to deal with a relatively new field of jurisprudence. It complements other UNODC tools that provide guidance on how to address acts of terrorism within a legal framework, like legislative guides.

The judicial cases featured in this Digest cover relevant aspects of the international legal regime against terrorism. It provides a comparative analysis of national statutory frameworks for terrorism prosecutions, and it identifies legal issues and pitfalls encountered in investigating and adjudicating relevant offences. In addition, it identifies practices related to specialized investigative and prosecutorial techniques. It also addresses the links between terrorism and other forms of crime (like organized crime, the trafficking of drugs, people and arms), as well as how to disrupt terrorist financing.

[jmm99]

Thanks again for another interesting legal link; although it has only a brief section on interrogations and admissions. I'll add it to my reading list ;).

Regards

Mike

[jmm99]

A three judge panel of the DC Circuit, in a 26-page opinion (http://www.scotusblog.com/wp-content/uploads/2010/05/CA-ruling-Maqaleh-5-21-10.pdf), reversed the grant of habeas ordered in the District Court by Judge John Gates, which was reported in April 2009 in this thread, Habeas extended to Bagram, but only in part (http://council.smallwarsjournal.com/showpost.php?p=69290&postcount=249).

Here is the link to the commentary by Lyle Denniston at SCOTUSBlog, No habeas rights at Bagram (http://www.scotusblog.com/2010/05/no-habeas-at-bagram/):


Limit on detainees' challenges
Lyle Denniston | Friday, May 21st, 2010 10:38 am

In a major victory for the Obama Administration’s detention policy, the D.C. Circuit Court ruled on Friday that foreign nationals held at a U.S. military prison at Bagram airbase outside of Kabul, Afghanistan, do not have a right to challenge in U.S. courts their continued imprisonment. The ruling overturned a federal judge’s decision that the Supreme Court’s ruling two years ago allowing habeas challenges by prisoners at Guantanamo Bay extends to Bagram, at least for non-Afghan foreign nationals captured outside of Afghanistan and taken there for detention. The three-judge panel was unanimous in Maqaleh, et al., v. Gates (Circuit docket 09-5265). The issue is likely to be taken to the Supreme Court by detainees’ lawyers, but review there is no certainty.

The case, involving two Yemenis and a Tunisian, poses a broadly significant test of how far beyond U.S. shores a constitutional right to challenge U.S. military detention extends — an issue that potentially affects U.S. bases virtually around the globe. Chief Circuit Judge David B. Sentelle wrote the 26-page decision Friday, joined in full by Circuit Judge David S. Tatel and Senior Circuit Judge Harry T. Edwards. Sentelle is a conservative jurist; the other two are liberals. Their ruling overturned a decision by a judicial moderate, District Judge John D. Bates. ....

The result of this decision did not surprise me; although it being unanimous (including 2 liberal judges) did surprise me.

The lesson learned is to follow the Army and Marine detention guidelines and keep the detainees in theatre.

Regards

Mike

[davidbfpo]

From the Washington Post two short articles: France http://www.washingtonpost.com/wp-dyn/content/article/2010/05/12/AR2010051204361.html and Indonesia:http://www.washingtonpost.com/wp-dyn/content/article/2010/05/12/AR2010051205187.html

The French emphasis on informants note is often followed up with robust executive action, such as extradition to Algeria - a country that the UK often recoils from.

[jmm99]

Michael Yon posted this, linked on the SWJ Blog feed (http://council.smallwarsjournal.com/showpost.php?p=99039&postcount=1) as, Court Decisions on Bagram Detainees (http://smallwarsjournal.com/blog/2010/05/court-decisions-on-bagram-deta/), with comments by the lawyers who filed an amicus brief and whose arguments were largely accepted by the DC Circuit:


It appears that our amicus brief was right on target. While both the government and counsel for the detainees made "bright line" arguments -- that is, they argued that habeas rights should always or should never apply on U.S. military bases overseas -- the court refused to accept either extreme position. Instead, it focused on the "practical factors" which were emphasized in our brief. In this regard, the most important language appears on page 22 of the decision: " . . . we hold that the third factor, that is 'the practical obstacles inherent in resolving the prisoner’s entitlement to the writ . . . weighs overwhelmingly in favor of the position of the United States." The court then concluded that the fact that Bagram is located within an active theater of war weighed strongly against extending habeas rights to detainees held there. Given the court's emphasis on the "practical difficulties" side of the analysis, we feel confident that the involvement of amici who could speak with ultimate credibility as to those difficulties cannot but have made an immense impact.

Perhaps, a bit more on this later.

Regards

Mike

[jmm99]

at least for the time being. The DC Circuit affirmed detention of Adham Mohammed Ali Awad (DC District decision reported in this thread on 26 Sep 2009, Update on habeas cases (http://council.smallwarsjournal.com/showpost.php?p=83285&postcount=392)) in a 20-page opinion (http://pacer.cadc.uscourts.gov/common/opinions/201006/09-5351-1248614.pdf) (classified facts redacted in the public opinion), with analysis at SCOTUSblog (http://www.scotusblog.com/2010/06/detainee-defeats-continue/):


Detainee defeats continue

Lyle Denniston
Tuesday, June 8th, 2010 10:14 am

The string of D.C. Circuit Court rulings interpreting the Supreme Court’s decision allowing Guantanamo Bay detainees to challenge their confinement lengthened on Tuesday, as a three-judge Circuit panel upheld the government’s authority to continue the imprisonment of a Yemeni national. Once more, as in several other recent rulings, the Circuit Court provided a new victory for the Obama Administration, and a new defeat for a detainee.

The ruling came in the case of Adham Mohammed Ali Awad. A federal judge, while saying that the evidence of Awad’s role in armed conflict was “gossamer thin,” had rejected his plea for freedom, and the Circuit Court upheld that result.
.....
The Al-Bihani ruling [JMM Note: relied on by the Awad panel was reported in this thread at Judge Leon affirmed - Al-Bihani, the Cook (http://council.smallwarsjournal.com/showpost.php?p=90508&postcount=455) and Al-Bihani - part 2 (http://council.smallwarsjournal.com/showpost.php?p=90509&postcount=456)] represents the Circuit Court’s most significant ruling so far to interpret how District judges are to handle Guantanamo detainees’ cases. The Circuit Court now is weighing a request to reconsider that ruling by the full, en banc Circuit Court. The briefing has been completed on that issue so a ruling on it could come at any time.

If the 3-judge panel's opinion in Al-Bihani is reversed by the DC Circuit en banc, the Awad opinion (as well as other DC Circuit opinions) will also fall. The "betting" seems to be that Al-Bihani will be affirmed; and that the detainees will then appeal to SCOTUS.

The Awad opinion made three major points of blackletter law. We address them in order. The first was the correct standard of proof required (pp.17-18):


First, Awad challenges the district court's holding that the government must prove its authority to continue to detain him by a preponderance of the evidence. He argues that the government has to meet its burden by clear and convincing evidence. He is incorrect. We have already explicitly held that a preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantanamo Bay, Cuba. See Al-Bihani, 590 F.3d at 878 ("Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.").

The Al-Bihani holding follows the Supreme Court's guidance to lower courts in the Hamdi plurality. See Hamdi, 542 U.S. at 534 ("Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant."). Our precedent in Al-Bihani is clear, and "[we, of course, are without authority to overturn a decision by a prior panel of this Court." Louisiana Public Service Comm 'n v. FERC, 522 F.3d 378,390 (D.C. Cir. 2008). Awad seems to argue that there is some uncertainty in the evidentiary standard. Lest there be any hrther misunderstandings, let us be absolutely clear. A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF.

The "preponderance of evidence" standard (50 yards plus a nose) reflects the US position that the AQ-Taliban detainees are being treated as EPWs so far as status determinations are concerned. They are not being treated as criminal subjects so far as the habeas corpus proceedings are concerned. The second point ties into the first.

The second point is the irrelevance of whether the detainee is now (today) a threat to US security (pp.18-19):


Awad next argues that the district court erred in denying his petition without a specific factual finding that Awad would pose a threat to the Untied States and its allies if he were released. Again, Al-Bihani forecloses this argument. Al-Bihani makes plain that the United States's authority to detain an enemy combatant is not dependent on whether an individual would pose a threat to the United States or its allies if released but rather upon the continuation of hostilities. 590 F.3d at 874. Awad again attempts to insert uncertainty into this court's prior holding where there is none. Whether a detainee would pose a threat to U.S. interests if released is not at issue in habeas corpus proceedings in federal courts concerning aliens detained under the authority conferred by the AUMF.

Like EPWs, AUMF detainees may be held for the duration of the hostilities - and no lpnger; as opposed to a criminal who may be held for the duration of the sentence imposed.

The third point is the non-necessity to prove that the detainee was included in AQ's "command structure" in order to prove the AUMF requirement that the detainee was "part of" AQ (pp.19-20):


Awad's last challenge is that it is not enough that he was found to be "part of' al Qaeda. He argues that there must be a specific factual finding that he was part of the "command structure" of al Qaeda. There is no such requirement under the AUMF. See AUMF ("That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons."). Nowhere in the AUMF is there a mention of command structure.

The distinction here is between defining what is necessary and what is sufficient. If the government can establish by a preponderance of the evidence that a detainee was part of the "command structure" of al Qaeda, this satisfies the requirement to show that he was "part of' al Qaeda. But there are ways other than making a "command structure" showing to prove that a detainee is "part of' al Qaeda. For example, if a group of individuals were captured who were shooting at U.S. forces in Afghanistan, and they identified themselves as being members of al Qaeda, it would be immaterial to the government's authority to detain these people whether they were part of the "command structure" of al Qaeda. Once Awad was "part of' al Qaeda by joining the al Qaeda fighters behind the barricade at the hospital, the requirements of the AUMF were satisfied. See Al-Bihani, 590 F.3d at 872 (holding that under the AUMF, a person may be lawfblly detained if, inter alia, he was "part of' al Qaeda forces). Awad points us to no authority from this court or the Supreme Court that would counsel a different decision.

A more difficult issue is whether a person who knowingly provides material support (financial aid or propaganda, for example) to AQ should be found to be "part of" AQ. That question is presently before SCOTUS, with a large number of convictions depending on the result that is reached.

Regards

Mike

[jmm99]

The first case is Civil Action No. 2005-1189 (KHALIFH et al v. BUSH et al), Doc No. 168 (unclassified memorandum order (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1189-168)), by Judge James Robertson, who denied Khalifh's petition for habeas.

The Khalifh case hinged on whether Khalifh was "part of" AQ (e.g., as measured under the DC Circuit's Al-Bihani ruling - see prior post above). The judge's bottom line was (pp.16-17):


While I am not convinced by the government's evidence related to Tora Bora or Taloqan, the "part of al-Qaida" determination is a construct of all of the evidence. Looking at the case from this perspective, the government has shown more than probable cause to believe that Khalifh was a part of al-Qaida and associated forces through a steady string of activity right up until the time of his capture. [14]


[14] The government also proved that Khalifh was a part of the LIFG, but I need not determine whether LIFG membership alone supports detention; I take Khalifh's LIFG participation to be important mainly because his LIFG activities increasingly blurred with al-Qaida activities. Similarly, Khalifh's participation with the Taliban is best viewed as a tributary of his al-Qaida membership. rather than as an independent ground for detention.

In the Sudan, he worked for bin Laden's trucking company, received training in guerrilla tactics, and followed direct LIFG orders at least once to leave Sudan. In Afghanistan, he trained jihadists at al-Qaida training camps, attempted to clear mines with the Taliban, and recuperated from the loss of his leg at al-Qaida safe houses where top al-Qaida personnel were present. After 9/11, with an attack by the U.S. imminent, al-Qaida and LIFG members in Afghanistan regarded Khalifh as enough of a fellow traveler to continue to meet with him. While I find that the government has not shown that Khalifh was at Tora Bora or Taloqan or that he personally took up arms against U.S. or coalition forces, it is slicing the law too thin to require such proof. Given the clear proof of his long-standing membership in al-Qaida and the LIFG, and the absence of any evidence of active dissociation or of a compellingly lengthy lapse in activity (as in Salahi), find that Khalifh was a part of al-Qaida at the time his capture. Accordingly, the petition for writ of habeas corpus is denied. It is SO ORDERBD.

This decision is unexceptional given the evidence presented of Khalifh's mosaic as whole.

The second case is also unexceptionable, at least as the judge laid out the evidence - Civil Action No. 2004-1254 (ABDAH et al v. BUSH et al), Doc No. 873 (u) (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1254-873), by Judge Henry H. Kennedy, Jr.

The judge's bottom line was (pp.36):


Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to Al Qaeda. Consequently, his detention is not authorized by the AUMF. The Court therefore emphatically concludes that Odaini's motion must be granted.

This opinion is heavily redacted (pp. 20-30 are mostly black boxes). Since that was a key part of the case, one cannot determine whether the judge's conclusions were correct or not.

The third case was not a merits hearing, but an order for a government witness to appear before the court - Civil Action No. 2005-1347 (MOHAMMED et al v. BUSH et al), Doc No. 295 (order) (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1254-873), by Judge Gladys Kessler.

The history of this case (habeas having already heen granted hy Judge Kessler) is that of the song "I'd rather stay in Gitmo than meet my Maker in Algiers":


On November 19, 2009, after a merits hearing, this Court granted Petitioner’s request for a Writ of Habeas Corpus and ordered the Government to take all necessary and appropriate diplomatic steps to facilitate his release forthwith. On June 1, 2010, Petitioner filed an Emergency Motion to Compel Compliance With This Court’s Order of November 19, 2009 and For TRO and Injunction Against Transfer of Petitioner to Algeria.
.....
Petitioner has voiced great fear about being transferred to Algeria. He has not lived in Algeria for more than 20 years, and has no ties to that country. Because he has been designated an “enemy combatant,” he greatly fears retribution by the Algerian authorities and that he will be formally charged under the Algerian Penal Code, tortured, convicted, and very possibly executed by the Algerian Government. He has claimed that he will be caught between the Algerian government, which will brand him as an international terrorist, and armed domestic terrorists, who oppose the existing government, often pressure individuals to join their ranks, and retaliate violently when such individuals refuse. Petitioner has made clear that he would rather suffer continued confinement in Guantanamo Bay than be placed in the control of the Algerian government.

It will be interesting to see what develops in this case. Judge Kessler has pretty much marched to the tune of her own drummer in these cases. She has denied habeas only where the person was captured with AK in hand, or the equivalent.

[davidbfpo]

IIRC the issue of Control Orders in the UK has appeared here before. They are a controversial policy option, mainly as they have amounted to house arrest and a number of subjects have absconded. Plus for JMM:
Almost all of the evidence against him is thought to be intelligence material which neither he nor his lawyers have seen.

The BBC have a lengthy article on one case, of a Jordanian: http://news.bbc.co.uk/1/hi/programmes/newsnight/8743947.stm

A short film (not made by the BBC) and a phone interview is on:http://news.bbc.co.uk/1/hi/programmes/newsnight/8746467.stm. A longer explanation by a BBC reporter is:http://news.bbc.co.uk/1/hi/programmes/newsnight/8744783.stm and a studio debate, with an ex-judge, an ex-Minister and a Muslim ex-fighter: http://news.bbc.co.uk/1/hi/programmes/newsnight/8746404.stm

Hopefully the film can be viewed outside the UK on IPlayer.

[jmm99]

I don't know UK law on classified evidence; so, any comment from me on what the Brits do would be uninformed.

Based on the BBC, the control order does appear to be a form of "house arrest" - so, arguably a form of detention even though the man is not lodged in a public facility.

If someone is detained here (US territory, including Gitmo but not Bagram), a competent merits hearing has to be held to determine whether detention is justified. Currently, the DC habeas proceedings fill that need.

As to classified evidence, a detainee cannot have access unless that detainee has the requisite security clearance. But, classified evidence is made available to the detainee's lawyer if that lawyer has the requisite security clearance - subject to meeting all the requirements set up in the judge's case management order. Not a problem that I've seen.

Regards

Mike

[davidbfpo]

BBC update on the five US citizens arrested in Pakistan, in December 2009, having left their families in Alexandria, Virginia en route to join the jihad or do charity:http://news.bbc.co.uk/1/hi/world/south_asia/10400972.stm

Note initial sentencing in anti-terrorist courts can be overturned upon appeal.

[davidbfpo]

A variety of articles on the anniversary and this one is by an ex-London (met Police) CT officer and takes a wider, controversial viewpoint: http://www.guardian.co.uk/politics/2010/jul/07/terrorism-policy-flaws-attacks-police-chief

[davidbfpo]

Two different US press articles on the role of informants, citing Tom Ridge's comments: http://www.washingtontimes.com/news/2010/jul/14/ridge-mulls-challenges-of-targeting-terrorists/print/; a wider piece on FBI/local links and overseas information gathering, using Somali as an example: http://liveshots.blogs.foxnews.com/2010/07/14/feds-grapple-with-locals-intelligence-ops/

[jmm99]

We have seen the DC District and DC Circuit deal with questions concerning movement of Gitmo prisoners: transfer to facilities (INCONUS & OCONUS); release INCONUS or OCONUS, with associated issues of ill-treatment or torture if the detainee is packed off to a foreign country.

Let us take a particular issue - the detainee (who has been slated for release from Gitmo) says you can't send me home because they will torture, kill, etc. me; so, you have to release me into CONUS (or Canada, or Switzerland, etc.).

Should that issue be decided, on a case to case basis, by the Executive Branch or by the Federal Courts ?

For the US, this is a domestic constitutional issue (dealing with our separation of powers rules); and another country (e.g., UK, France or Germany) might well have a different constitutional requirement.

SCOTUS, in two cases without more than 1 sentence orders, has deferred to the Executive Branch (not an unexpected result IMO), as reported by Lyle (http://www.scotusblog.com/2010/07/curb-on-judges-power-stands/):


Curb on judges’ power stands — for now
Algerian's plea fails
Lyle Denniston | Friday, July 16th, 2010 7:44 pm

UPDATE Saturday 5:50 a.m. Late Friday night, the Court, without noted dissent, refused to delay the transfer of a second Algerian, Abdul Aziz Naji.
....
In the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantanamo Bay, the Court Friday evening cleared the way for the transfer of an Algerian detainee to his home country over his protest. The action divided the Court 5-3; the dissenters noted that the case involved “important questions” the Court has yet to answer. The Court’s action was not a final ruling on those questions; rather, it was a refusal to block a lower court order letting the government, not a judge, decide the transfer issue.
.....
[see Lyle's analysis in original]
.....
(NOTE TO READERS: There is another notable aspect of the Court’s Friday order: the Justices acted without the public ever having access to most of the significant filings in that case — in the Supreme Court, in the Circuit Court, and in the District Court. Except for the Circuit Court’s most recent ruling (http://www.scotusblog.com/wp-content/uploads/2010/07/CADC-Mohammed-ruling-7-8-10.pdf), which was made public on Thursday [2-page majority; 2-page partial dissent], every other document of importance remains under seal. As a consequence, the full range of the legal issues that the courts have been exploring remains unknown. Moreover, no one outside the group of judges, lawyers and law clerks involved has any idea when any of those materials will be made public, even in redacted form.

(Moreover, most of the information that is in the documents is not formally classified as secret: it fits into an unusual category of what the courts call “protected information.” As a brief Justice Department motion, filed with the Supreme Court in the Mohammed case, put it, this is information that must be withheld “because public disclosure of that information may cause diplomatic and potential security harm.” A special court rule was written in 2008 to govern the protection of such information in Guantanamo habeas cases. In the second Algerian detainee’s case that was filed at the Supreme Court Friday (docket 10A70), a brief motion asserted that his application “includes little if any information properly designated as ‘protected’ under the protective order.” It nevertheless had to be filed under seal.)

Reading between the lines, a few kinks still need to be resolved - a business which will be left to the DC Circuit in the next few months.

Regards

Mike

[jmm99]

from my British "evil twin", Andy Worthington (www.andyworthington.co.uk.), and the Center for Constitutional Rights (http://ccrjustice.org) - each of whom has different opinions about these cases than I.

From Andy, we have Guantánamo Habeas Results: The Definitive L (http://www.andyworthington.co.uk/guantanamo-habeas-results-the-definitive-list/)ist, which he tallies as: "LATEST TALLY: PRISONERS 38, GOVERNMENT 16".

Andy's tally is factually accurate, but misleading. It includes 22 cases (17 Uighurs and 5 Algerians) which were not contested in any real sense by the DoJ (and all but 5 of those have been released). So, the tally in the more contested cases is more like 16-16.

The CCR tally (http://ccrjustice.org/learn-more/faqs/guantanamo-bay-habeas-decision-scorecard) is one case behind Andy's list, but also includes the Uighur and Algerian cases:


Total Habeas Cases Decided: 53
Habeas Cases Granted: 37
Habeas Cases Denied: 16
Habeas Granted and Released: 23
Habeas Granted and Still Detained: 14
Current Guantanamo Population: 178

Both Andy's list and the CCR list include links to the various SCOTUS, DC Circuit and DC District habeas cases, which I want to check out for completeness and broken links. Andy's list also includes his editorials about these cases, which you might want to read for a viewpoint that is quite different from those of the USG, JMM and what seems to be becoming a dominant view in the DC Circuit.

The DC Circuit (31 Aug 2010) (http://pacer.cadc.uscourts.gov/common/opinions/201008/09-5051-1263353.pdf) denied en banc rehearing of Al-Bihani v. Obama, a 2-1 panel decision in favor of the USG and against the detainee. Andy discusses that decision in an article for the Future of Freedom Foundation, Restricting Presidential Wartime Powers (http://www.fff.org/comment/com1009b.asp).

While Andy sees hope for his side of the argument, the court decisions have not been favorable to the detainees' legal arguments. But, roughly 50% of the truly contested cases havbe found in favor of the detainees based on their factual arguments.

The unfavorable decisions for the detainees (especially on legal points) are most apparently in the recent DC Circuit decisions:

2010-01-05 Al Bihani (http://ccrjustice.org/files/2010-01-05%20Al%20Bihani%20-%20Appeal%20Denied.pdf) - denial of habeas affirmed
2010-06-02 Awad (http://ccrjustice.org/files/2010-06-02%20Awad%20v%20%20Obama%20DC%20Circuit%20Opinion. pdf) - denial of habeas affirmed
2010-06-11 Barhoumi (http://ccrjustice.org/files/2010-06-11%20Barhoumi%20Appeal%20-%20Denied%20-%20Order.pdf) - denial of habeas affirmed
2010-07-01 Bensayah (http://ccrjustice.org/files/2010-07-01%20Bensayah%20Reversal%20(redacted)_0.pdf) - remand for new merits hearing
2010-07-07 Al Odah (http://ccrjustice.org/files/2010-07-07%20Al%20Odah%20Appeal%20-%20Denied%20-%20Opinion.pdf) - denial of habeas affirmed
2010-07-13 Al-Adahi (http://ccrjustice.org/files/2010-07-13%20Al-Adahi%20Reversal%20(redacted).pdf) - grant of habeas reversed, with instructions to Judge Kessler to enter a denial of habeas.

The last case is very telling, since Judge Kessler has imposed a high evidentiary standard (and something of an ICRC "direct participation" standard) on the USG in her cases (most holding against the USG).

Almost time for a law review type article on the DC Circuit appeals decided so far.

Mike

[jmm99]

The several DC Circuit opinions that simply affirmed DC District opinions denying habeas are not that noteworthy - most decisions are affirmed on appeal. However, the reversal of Judge Kessler in Al-Adahi (http://ccrjustice.org/files/2010-07-13%20Al-Adahi%20Reversal%20(redacted).pdf) got my attention, especially when the DCCA panel not only found error, but ordered Judge Kessler to enter an order denying habeas.

The legal logic of the DCCA panel was based on Judge Kessler's non-application of "conditional probability analysis" to the largely uncontested evidence before her (pp. 6-8):


The district court divided the government's evidence into five categories in rough chronological order: Al-Adahi's trip to Afghanistan; his meetings with bin Laden; his stay in an al-Qaida guesthouse; his military training at Al Farouq; and his other, later activities in Afghanistan. Mem. Op. at 13. We will generally follow the court's organization, but before we get to the specifics we need to mention an error that affects much of the district court's evaluation of the evidence. The error stems from the court's failure to appreciate conditional probability analysis. United States v. Prandy-Binett, 5 F.3d 558, 558-60 (D.C. Cir. 1993) (denying rehearing).


"Many mundane mistakes in reasoning can be traced to a shaky grasp of the notion of conditional probability." JOHN ALLEN PAULOS, INNUMERACY: MATHEMATICAL ILLITERACY AND ITS CONSEQUENCES 63 (1988). The key consideration is that although some events are independent (coin flips, for example), other events are dependent: "the occurrence of one of them makes the occurrence ofthe other more or less likely . . . ." JOHN ALLEN PAULOS, BEYOND NUMERACY: RUMINATIONS OF A NUMBERS MAN 189 (1991). Dr. Paulos gives this example: "the probability that a person chosen at random from the phone book is over 250 pounds is quite small. However, if it's known that the person chosen is over six feet four inches tall, then the conditional probability that he or she also weighs more than 250 pounds is considerably higher." INNUMERACY 63.

Those who do not take into account conditional probability are prone to making mistakes in judging evidence. They may think that if a particular fact does not itself prove the ultimate proposition (e.g., whether the detainee was part of al-Qaida), the fact may be tossed aside and the next fact may be evaluated as if the first did not exist. Prandy-Binett, 5 F.3d at 559-60. This is precisely how the district court proceeded in this case: Al-Adahi's ties to bin Laden "cannot prove" he was part of Al-Qaida and this evidence therefore "must not distract the Court." Mem. Op. at 18. The fact that Al-Adahi stayed in an al-Qaida guesthouse "is not in itself sufficient to justify detention." Id. at 20. Al-Adahi's attendance at an al-Qaida training camp "is not sufficient to carry the Government's burden of showing that he was a part" of al-Qaida. Id. at 25. And so on. The government is right: the district court wrongly "required each piece of the government's evidence to bear weight without regard to all (or indeed any) other evidence in the case. This was a fundamental mistake that infected the court's entire analysis." Br. of Appellants at 42.

Having tossed aside the government's evidence, one piece at a time, the court came to the manifestly incorrect - indeed startling - conclusion that "there is no reliable evidence in the record that Petitioner was a member of al-Qaida and/or the Taliban." Mem. Op. at 41. When the evidence is properly considered, it becomes clear that Al-Adahi was - at the very least - more likely than not a part of al-Qaida. And that is all the government had to show in order to satisfy the preponderance standard. Awad, slip op. at 17-1 8; see Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622 (1993) (citing In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring)).

The DCCA panel then proceeded to review the most material evidence taken as a whole - rather than deciding (as Judge Kessler did) that each item of evidence must of itself prove that Al-Adahi was "part of AQ". Here is sample of the panel's analysis (pp.8-11):


Al-Adahi served in the Yemeni army for two years and was later employed as a security guard at the Yemeni state oil company. In July 2001 he took a six-month leave of absence from his job and left his wife and his two children to travel with his sister Amani to Afghanistan (by way of Pakistan). Amani had entered into an arranged marriage with Riyadh Abd A1-Aziz Almujahid, a Yemeni citizen then residing in Kandahar.

Riyadh was affiliated with al-Qaida. He arranged for Amani's and Al-Adahi's trip to Afghanistan. He helped them obtain passports from the passport agency in their hometown of Ta'iz. He then sent Al-Adahi to the Yemeni capital city of Sana'a. Al-Adahi was instructed to wear a red jacket and wait outside a specified building for a man he did not know. This man, Ali Yayha, recognized Al-Adahi and gave him two plane tickets and travel money. Yayha also arranged for Al-Adahi and Amani to obtain visas. The government presented evidence that al-Qaida paid for Al-Adahi's and Amani's trip. Al-Adahi admitted that the sort of arrangements that Riyadh made for him and his sister were the same as those al-Qaida used for bringing jihadist recruits to Afghanistan.' And he described how Riyadh had obtained Al-Adahi's travel funds from "the Saudi who handled the money" for al-Qaida in Kandahar. That Al-Adahi was an al-Qaida recruit is also supported by a witness's statement - not addressed bv the district court - that Al-Adahi was a [description classified and redacted from this public opinion].

Riyadh was "from mujahidin" - that is, those who fought against the Russians and in the Afghan civil war. Many mujahidin frequented the guesthouse Riyadh operated in Kandahar. Al-Adahi stayed at Riyadh's house, located in the same compound. Al-Adahi told interrogators that Riyadh "had achieved a very- hig-h status" in al-0aida.' Like Al-Adahi. Riyadh was described to interrogators as a [description classified and redacted from this public opinion]. And Al-Adahi admitted that Riyadh's compound was very close to the compound of Mullah Omar, the leader of the Taliban.

Bin Laden hosted the male-only celebration of Riyadh's marriage to Al-Adahi's sister. Bin Laden held the celebration at his compound, which Al-Adahi described as "surrounded by a concrete fence further secured by a large metal gate." Inside the compound, a group of armed guards "draped in munitions belts, grenades, and Kalashnikov rifles" welcomed the wedding
guests. At the party, bin Laden gave a speech congratulating Riyadh. Al-Adahi and bin Laden were introduced and sat next to each other during the meal.

Several days later, bin Laden summoned Al-Adahi for another meeting. According to Al-Adahi, at his meeting bin Laden asked him about people he was connected with in Yemen - some of whom were involved in jihad. (The events following the meeting, including Al-Adahi's showing up at the al-Qaida training camp, suggest that more transpired in the meeting than what Al-Adahi related.) In the habeas proceedings, Al-Adahi tried to explain his personal audience with bin Laden on the basis that "meeting with Bin Laden was common for visitors to Kandahar." Mem. Op. at 17. This is, as the government points out, utterly implausible. Al-Adahi's story was "contradicted by the undisputed evidence that in 2001 Usama bin Laden, who knew he was a military target of the United States, had gone into hiding under tight security . . . ." Br. of Appellants at 64.

As to the latter point the district court said nothing, despite the well-settled principle that false exculpatory statements are evidence - often strong evidence - of guilt. See, e.g., United States v. Penn, 974 F.2d 1026, 1029 (8th Cir. 1992); United States v. Meyer, 733 F.2d 362, 363 (5th Cir. 1984). The court characterized the rest of the evidence about Al-Adahi's meetings with bin Laden as "sensational and compelling" but not "actual, reliable evidence that would justify" detention. Mem. Op. at 41.

The court's statements are incomprehensible. On what possible ground can the court say that the evidence on this subject was, on the one hand, "compelling," and yet say, on the other hand, that it was not "actual" and "reliable"? All that comes to mind is the idea that two personal meetings with bin Laden are not enough to prove that an individual is part of al-Qaida. If that is what the court intended, then it was once again engaging in the mistaken reasoning we mentioned in connection with conditional probability analysis. The court rounded off its discussion by characterizing the government's presentation as merely indicating that Al-Adahi had "familial ties to Usama bin Laden," a statement incorrect as a factual matter (Al-Adahi's family ties were to a top aide of bin Laden's) and one that misses the strong thrust of the evidence. The evidence derived its power not only from Al-Adahi's family relationships, but also from his meetings with bin Laden. That close association made it far more likely that Al-Adahi was or became part of the organization.

Rather than grasping this essential point, the district court called the evidence regarding the meetings a distraction - something that should not divert "the Court from its essential focus - the nature of Al-Adahi's own conduct, upon which this case must turn." Mem. Op. at 18. Here again the court's remarks are perplexing. If Al-Adahi's meetings with bin Laden were not his "own conduct," whose conduct were they?

The panel then continued to lambast Judge Kessler's findings of fact for another eight pages.

Regards

Mike

[jmm99]

Binyam Mohamed will have to rely on his British civil actions because his US civil action was dismissed by the 9th Circuit Court of Appeals sitting en banc, Mohamed v. Jeppesen Dataplan (http://www.scotusblog.com/blog/2010/09/08/rendition-challenge-scuttled/) (reported at SCOTUSBlog):


Lyle Denniston, Reporter
Posted Wednesday, September 8th, 2010 9:37 pm

“Rendition” challenge scuttled

Circuit Court, citing “state secrets,” dismisses detainees’ claims that CIA transported them to “black sites” for interrogation and torture.

Raising further the prospect that the courts may never rule on the legality of the Central Intelligence Agency’s alleged program of “rendition” of terrorism suspects to other countries for questioning and perhaps for torture, the en banc Ninth Circuit Court on Wednesday dismissed the latest challenge. Dividing 6-5, the Court relied on a broad “state secrets” theory to put a stop — before any evidence was offered — to a case against a small air flight planning firm that allegedly worked with the CIA to arrange those trips.

Together with the Fourth Circuit Court’s 2007 decision in the case of Khaled el-Masri (which the Supreme Court refused to hear that year, in case 06-1613), the Ninth Circuit’s ruling in Mohamed, et al., v. Jeppesen Dataplan, Inc. (Circuit docket 08-15694) goes far toward insulating the “rendition” program from judicial review — unless the Supreme Court took on that case and reversed the result.

Given how vigorously the Jeppesen case has been pursued by both sides, it seems highly likely that it will be appealed to the Supreme Court. ... (much more in article)

As Lyle points out in his article's body, the 6-5 opinion (actually a 5-5-1 opinion with the "1" voting with one "5" on one issue and with the other "5" on another issue) may not be much of a precedent - except in this case, which throws Binyam and his friends out of court.

The opinion itself (http://www.ca9.uscourts.gov/datastore/opinions/2010/09/08/08-15693.pdf) is scarcely a barn-burner in favor of the USG (not surprising given its venue in the 9th Circuit, the most reversed circuit):


OPINION

FISHER, Circuit Judge:

This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.

On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court.

I. BACKGROUND

We begin with the factual and procedural history relevant to this appeal. In doing so, we largely draw upon the three judge panel’s language in Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949-52 (9th Cir.) (Jeppesen I), rehearing en banc granted, 586 F.3d 1108 (9th Cir. 2009). We emphasize that this factual background is based only on the allegations of plaintiffs’ complaint, which at this stage in the litigation we construe “in the light most favorable to the plaintiff[s], taking all [their] allegations as true and drawing all reasonable inferences from the complaint in [their] favor.” Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). Whether plaintiffs’ allegations are in fact true has not been decided in this litigation, and, given the sensitive nature of the allegations, nothing we say in this opinion should be understood otherwise.

.... [setting out allegations in the complaint] ....

C. Procedural History

Before Jeppesen answered the complaint, the United States moved to intervene and to dismiss plaintiffs’ complaint under the state secrets doctrine. The then-Director of the CIA, General Michael Hayden, filed two declarations in support of the motion to dismiss, one classified, the other redacted and unclassified. The public declaration states that “[d]isclosure of the information covered by this privilege assertion reasonably could be expected to cause serious — and in some instances, exceptionally grave — damage to the national security of the United States and, therefore, the information should be excluded from any use in this case.” It further asserts that “because highly classified information is central to the allegations and issues in this case, the risk is great that further litigation will lead to disclosures harmful to U.S. national security and, accordingly, this case should be dismissed.”

The district court granted the motions to intervene and dismiss and entered judgment in favor of Jeppesen, stating that “at the core of Plaintiffs’ case against Defendant Jeppesen are ‘allegations’ of covert U.S. military or CIA operations in foreign countries against foreign nationals — clearly a subject matter which is a state secret.” Plaintiffs appealed. A three judge panel of this court reversed and remanded, holding that the government had failed to establish a basis for dismissal under the state secrets doctrine but permitting the government to reassert the doctrine at subsequent stages of the litigation. Jeppesen I, 579 F.3d at 953, 961-62. We took the case en banc to resolve questions of exceptional importance regarding the scope and application of the state secrets doctrine. See Fed. R. App. P. 35(a)(2).

The government maintains its assertion of privilege on appeal, continuing to rely on General Hayden’s two declarations. While the appeal was pending Barack Obama succeeded George W. Bush as President of the United States. On September 23, 2009, the Obama administration announced new policies for invoking the state secrets privilege, effective October 1, 2009, in a memorandum from the Attorney General. See Memorandum from the Attorney Gen. to the Heads of Executive Dep’ts and Agencies on Policies and Procedures Governing Invocation of the State Secrets Privilege (Sept. 23, 2009) (“Holder Memo”), http://www.justice.gov/opa/documents/state-secret-privileges.pdf. The government certified both in its briefs and at oral argument before the en banc court that officials at the “highest levels of the Department of Justice” of the new administration had reviewed the assertion of privilege in this case and determined that it was appropriate under the newly announced policies. See Redacted, Unclassified Br. for U.S. on Reh’g En Banc (“U.S. Br.”) 3.

Besides overall ACLU representation of all the detainees, British counsel were involved on Binyam Mohamed's behalf:


Clive Stafford-Smith and Zachary KatzNelson, Reprieve, London, England, for plaintiff-appellant Binyam Mohamed.

It has been a bad summer for detainees in Court of Appeals cases.

Regards

Mike

[jmm99]

The 9th Circuit opinion in Mohamed (post above) has struck a chord (nay, a heartstring) on both left and right. Here are two samples - both authors are lawyers. I've focused just on the headlines.

First, from the (far) left:


Glenn Greenwald (at Salon), Obama wins the right to invoke "State Secrets" to protect Bush crimes (http://www.salon.com/news/opinion/glenn_greenwald/2010/09/08/obama/index.html) (Wednesday, Sep 8, 2010 18:09 ET)

President Bush is the primary culprit (Greenwald has consistently called him a criminal). President Obama is a lesser culprit - an accessory after the fact (http://en.wikipedia.org/wiki/Accessory_(legal_term)) in legal jargon.

No punches are pulled by the (far) right:


From Jacob Hornberger (at Freedom Foundation, where Andy Worthington recently filed a column - see a couple of posts above), Barack Obama: Torturer-and-Assassin-in-Chief (http://www.fff.org/blog/jghblog2010-09-09.asp) (Thursday, September 9, 2010).
Hornberger, BTW, is a grad of VMI - his bio (http://www.fff.org/aboutUs/bios/jgh.asp).

While reading these headlines (and the articles), a musing thought came to me: In how many countries could one write about the CEO in the terms used here ?

Another thought (just confirmatory) is that we live in an "era of absolutism", where deviations from the perceived norm (even if it be the norm of an outlier) are treated as criminal infractions (I gotcha).

Regards

Mike

[Bill Moore]

http://www.npr.org/templates/story/story.php?storyId=129941946


Nine years after the Sept. 11 attacks, Americans continue to struggle with the complex ethical and legal questions that have been raised by the country's fight against terrorism. Among them: whether terrorists should be treated as criminals or as enemy combatants.

You can read the PDF file or listen to the audio file, both are at the link above.

I was surprised that the majority left the debate in favor of treating terrorists as criminals versus enemy combatants, but as Mr. Hayden said in the beginning of the debate he feared the debate would be taken off topic and become a debate over the morality of torture.

I clearly thought the debate team arguing for treating terrorists as enemy combatants made more compelling arguments on that one issue, but the other team was able to obscure the debate with comments with comments about torture, etc.

Worth the read or listen if you have time.

[jmm99]

Hi Bill,

One would think from such as David Frakt that 2004 Hamdi through 2008 Boumediene were never decided by SCOTUS; nor that approximately 3 dozen DC District habeas cases and about a dozen DC Circuit cases have uniformally affirmed the legal rule that Gitmo detainees may be held as enemy combatants subject to Common Article 3 of the GCs, if the facts support that status.

In fact, the recent (this summer's) DC Circuit cases have uniformally rejected the arguments made by David Frakt et al (well known in this thread) to use a criminal law standard. Bluntly stated, the courts have accepted detention for the duration of the armed conflict, without requiring criminal prosecutions to be filed. Some detainees (many where the USG conceded its errors) have been freed because of factual findings that they were not enemy combatants.

So, unless SCOTUS completely reverses the DC Circuit, there is no debate.

It's interesting (perhaps, very telling) that the two proponents were non-lawyers - and two opponents were non-lawyers. You'd think they could have turned up at least one lawyer to speak of and for what the courts are actually holding.

Nice to hear from you and that you're still following this thread.

Regards

[Bill Moore]

Mike,

Actually the two oponents to using the enemy combatant designation were lawyers, one was an Air Force lawyer who was (may still be) a defense attorney for the Gitmo detainees and other lawyer was Tim McVeigh's defense attorney. Mr. Hayden of course is a key leader in the intelligence community and other guy was a speech writer for the former President G.W. Bush.

The point was made during the debate that the courts have already ruled that the detainees are properly designated as combatants, so the debate was actually an academic debate on the morality of that decision. Is it in accordance with our values?

I agree it would have been nice to see a lawyer on the proponent side who actually knew the arguments presented in the actual cases where the court ruled that they are enemy combatants. Still worthwhile to read or listen to in order to assess the perceptions of the debate.

[jmm99]

Here is how the debate is spun (call it "lawfare" if you like) by my "evil twin", Andy Worthington - "evil" only in the sense that he (since he never saw a Gitmo detainee who deserved to be detained) often presents the opposite view from mine. :)

Anyhow, Andy has David Frakt's spin on the debate, David Frakt Explains Why Guantánamo Prisoners Have Habeas Corpus Rights (http://www.andyworthington.co.uk/2010/09/25/david-frakt-explains-why-guantanamo-prisoners-have-habeas-corpus-rights/). Frakt as usual attacks the Bush administration (as you know, Pres. Bush was re-elected to a 3rd term in 2008), provides us with a misleading set of stats on the habeas cases, and says not much about what has gone on since last July when the USG gave up on prosecuting Jawad (Frakt's client).

Andy also has the two-part transcript of the debate - also with some (but not much) of his own spin - part 1 (http://www.andyworthington.co.uk/2010/09/19/david-frakt-stephen-jones-michael-hayden-and-marc-thiessen-discuss-guantanamo-and-enemy-combatants-part-one/) & part 2 (http://www.andyworthington.co.uk/2010/09/20/david-frakt-stephen-jones-michael-hayden-and-marc-thiessen-discuss-guantanamo-and-enemy-combatants-part-two/).

OK, I spent too much time reading through the transcript. Theissen and Hayden were so pathetic on the supposed topic of debate that I felt like puking. Jones mouthed platitudes; and Frakt presented the same arguments he's presented a number of times. Somehow, this debate ended up with the question in effect being put: "Was John Yoo right or wrong ?" The so-called "moderator" also sucked. Zero stars.

Cheers

Mike

PS: I screwed up this sentence in post 524:


It's interesting (perhaps, very telling) that the two proponents were non-lawyers - and two opponents were non-lawyers.

which should have read:


It's interesting (perhaps, very telling) that the two proponents were non-lawyers - and the two opponents were lawyers.

I was well aware of Frakt in the Jawad case; and like everyone was interested in McVeigh (and how Jones represented him, vice Mike Tiger's representation of Terry Nicholls).

Sorry for the confusion apparently caused by gas passage in the uppermost story.

[yvonne]

The question as to what type of trial to give to foreign combatants who are held prisoner begs the question of whether they should be given one at all. Is anyone aware of an explanation for why the detainees should be afforded a trial?

Most arguments seem to assume that a trial should occur and then embark upon a debate over what type of trial and how to conduct it. But I have never seen a justification for why we should hold a trial. I don't understand why non-US citizens who were taken prisoner on a battlefield, during armed conflict, and held prisoner outside of our borders, should have protections in the US Constitution bestowed upon them. Rather than addressing this question, we are subjected to accusations of torture, mistreatment, and denial of due process (again, without clarifying whether the detainees are owed any due process).

In the quote that begins this thread, there is a mention of undermining the rule of law. It seems that undermining the rule of law in Taliban-controlled Afghanistan was a good thing. Laws against shaving beards and flying kites don't seem all that virtuous to begin with. If the implication is that rule of law could be undermined in the US, then I don't see how that is possible, so long as the individuals are non-US citizens, not in the US, and captured on a battlefield during time of war.
To Schmedlap:

It is not the US Constitution that is the basis of providing the Taliban with a trial. It is the International Humanitarian Law & Law of Armed Conflict, which are both international customary laws that all countries follow. Even if the terrorist do not, civilized nations must. Because the Afghanistan government is a sovereign nation, the conflict they are fighting with the Taliban falls under Common Article 3 of Geneva. Terrorism, insurgency, rebels, they are nothing new and the laws have applied.

The international issue with how the US handled "terrorist" was because they created the "War on Terror" which is a war without a State and then categorized the terrorist or Taliban as a third category outside of the law's categories of combatants and noncombatants. Even if the US says that the Laws of Armed Conflict under Geneva do not apply, there are still the International Humanitarian Laws which state that all humans have rights to ask why they are being held by any government. There is more to it than that and the way it is written basically they are stating that humans have a right to a trial. I don't think they explicitly use the word "trial" but based on the rights, that is what it amounts to. My source:

Solis, Gary, D., The Law of Armed Conflict/International Humanitarian Law, 2010

[jmm99]

the Schmedlap and Yvonne posts is that no one is defining what they mean by "trial". More likely than not Schmedlap is questioning whether a detainee (call him a Gitmo detainee for clarity) has a right (from any source) to a criminal trial before a US military commission or a US Federal court. He can confirm or deny that.

The pages of posts in this thread (going back to 2008) report all of the relevant opinions re: detainees by SCOTUS, DC Circuit and DC District. No opinion having present precedential value has held that a detainee has a right to be tried as a criminal either before a military commision or a Federal court. All legislation and executive orders have been to the contrary.

What detainees do have is a right to contest their detainment via a merits hearing before an impartial magistrate. The two avenues of contest are by claiming either EPW status under GC III or civilian status (without being a security risk) under GC IV. In practice, the habeas petitions have claimed non-participation in or non-material support of AQ, Taliban or associated groups (as required by the 2003 AUMF) - that is, reduced to its salient point, the basic argument is that "I was a civilian who was not a threat under GC IV." No Gitmo detainee has claimed EPW status in the DC habeas proceedings - no surprise because that dog doesn't leave the kennel for the hunt.

With respect to Common Article 3, it does provide rules re: the treatment of detainees taken in an armed conflict not of an international character. Obviously, CA 3 contemplates detention - and so have all US courts (SCOTUS, DC Circuit and DC District). To those courts, the 2001 AUMF is the triggering mechanism for Common Article 3 (and other informative rules accepted by the US under the Laws of War, aka LOAC and aka International Humanitarian Law):


Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

From the associated commentary on Common Article 3:


Sentences and executions without previous trial are by definition open to error. "Summary justice" may be effective on account of [p.40] the fear it arouses, but it adds too many innocent victims to all the other innocent victims of the conflict. All civilized nations surround the administration of justice with safeguards aimed at eliminating the possibility of judicial errors. The Convention has rightly proclaimed that it is essential to do this even in time of war.

We must be very clear about one point; it is only "summary" justice which it is intended to prohibit. No sort of immunity is given to anyone under this provision. There is nothing in it to prevent a person presumed to be guilty from being arrested and so placed in a position where he can do no further harm; and it leaves intact the right of the State to prosecute, sentence and punish according to the law.

As can be seen, Article 3 does not protect an insurgent who falls into the hands of the opposing side from prosecution in accordance with the law, even if he has committed no crime except that of carrying arms and fighting loyally. In such a case, however, once the fighting reaches a certain magnitude and the insurgent armed forces meet the criteria specified in Article 4. A.(2), the spirit of Article 3 certainly requires that members of the insurgent forces should not be treated as common criminals.

"Detention" is not an "execution", nor is it a "sentence" - that is the lesson learned from three years of habeas decisions. The law from those cases (20+ pages in this thread) establish that, on legal issues, the far out position held by such as John Yoo has gone done in flames. The substantive legal positions on detainment itself, advanced by attorneys for the detainees, have also gone down in flames. The habeas cases that have been won have been won on the basis of the lack of facts presented by the DoJ and DoD, and/or on evidentiary exclusionary rules.

Citing Gary's textbook might be a winner in his classroom. It carries no more weight here than my opinions, or those of Andy Worthington, have - based on reference to and discussion of the original sources that are applicable,

Regards

Mike

[Boondoggle]

Even if the US says that the Laws of Armed Conflict under Geneva do not apply, there are still the International Humanitarian Laws which state that all humans have rights to ask why they are being held by any government. There is more to it than that and the way it is written basically they are stating that humans have a right to a trial.

Well, I guess I missed where international bodies can unilaterally bind US courts. Guess I'll have to change my presentation I just did where I mentioned Scalia's pithy view of international law in our courts.

I do not use foreign law in the interpretation of the United States Constitution. . . . But apart from that, if you talk about using it [in regard to] constitutional law, you know, you talk about it’s nice to know that, you know, that we’re on the right track, that we have a same moral and legal framework as the rest of the world. But we don’t have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that we’re after is to, you know, do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it’s full of, you know, statements that make very clear they didn’t have a whole lot of respect for many of the rules in European countries.

But of course even under Breyer, until our courts say so, it ain't the law, at least in this country.

http://blogs.wsj.com/law/2010/04/02/i-can-read-what-i-want-says-breyer-on-international-law-debate/

[jmm99]

If Customary International Law (Humanitarian and other areas) is to be adopted by the US, which branch of government should do the "adopting"; or are some areas the province of the executive branch, some the province of the legislative branch, and some the province of the judicial branch ?

This is not a new issue. The question in the 18-19th centuries, as the US came on line with its 13 states and as new states were added, was what common and statutory laws should be adopted in the absence of positive legislation on the topic.

It strikes me as odd that the courts could unilaterally adopt a rule under Customary International Humanitarian Law (aka Laws of Armed Conflict, aka Laws of War) where the Constitution distributes its war powers among the executive and legislative branches, and gives no express grant to the courts.

Regards

Mike

[AdamG]

Curiouser and curiouser...


NEW YORK (AP) -- The military-grade explosives found at a historic New York City cemetery are more than 13 years old, police said Tuesday.

It was still unclear who placed the plastic bag of C-4 at the foot of a tombstone in New York City Marble Cemetery on Manhattan's Lower East Side.

A caretaker planting shrubs in the cemetery dug up the bag in May or June 2009, didn't realize what it was and left it.

It remained in the back, near a tree, until a volunteer saw it over the weekend and put it in a trash can, thinking it was some a leftover movie prop because the cemetery is often used as a film setting, police said. But the volunteer thought it might be dangerous and called police Monday.

http://hosted.ap.org/dynamic/stories/U/US_CEMETERY_SUSPICIOUS_PACKAGE?SITE=FLTAM&SECTION=US

[jmm99]

We have a couple of relevant (and material) references from Lawfare (http://www.lawfareblog.com/) (a Ben Wittes, Bobby Chesney and Jack Goldsmith production started this September - with HT to Boondoggle for initially linking it here).

An Alternative to the Scorecard (http://www.lawfareblog.com/2010/10/an-alternative-to-the-scorecard/) by Benjamin Wittes:


Brookings Legal Fellow Larkin Reynolds, who has been working with Bobby and me on a second edition of our monograph on “The Emerging Law of Detention,” recently handed me a chart she had constructed that attempted to quantify numerically Guantanamo case outcomes in a fashion more evocative than the scorecard approach I have criticized. I thought the chart very illuminating and asked her to write it up in postable paragraphs. Here they are:
....
Summarizing the above information into shorthand looks something like this:

- Uighur cases in which detention was deemed or conceded unlawful: 17
- Petitioners’ district-court wins pending at D.C. Circuit: 8
- Petitioners’ district-court wins not appealed by the government: 12
- Petitioners’ appellate-court wins resulting in a remand to district court, with remand still pending: 1
- Petitioners’ merits wins at D.C. Circuit: 0
- Government’s district-court wins pending at D.C. Circuit: 11
- Government’s district-court wins that will likely be appealed: 2
- Government’s merits wins at D.C. Circuit: 5
- Government’s district-court wins where appeal dismissed as moot by D.C. Circuit: 1
- Post-Boumediene merits decisions in which cert. has been granted or denied: 0

Their results parallel my position that Gitmo "scorecards" can be misleading. The 17 Uighur cases and 12 unappealed detainee DC wins (all turning on issues of fact found in favor of the detainees) over-emphasize and are very misleading if asserted in an attempt to prove that the detainees are presenting winning legal arguments.

In fact, the 17 Uighurs and 12 other unappealed cases had winning factual cases even applying the law as asserted by the USG. I've pointed that out in the Uighur cases and in some of the 12 unappealed cases (in some others, I disagreed with the trial judges' fact findings). In justice to Andy W and others, some detainees should not have been detained or should have been transferred out earlier. On the other hand, we know of other detainees who should not have been released.

What is more critical to the development of the law are the DC Circuit results: Petitioners’ merits wins at D.C. Circuit: 0; Government’s merits wins at D.C. Circuit: 5. Of course, there are pending: Petitioners’ district-court wins pending at D.C. Circuit: 8; Government’s district-court wins pending at D.C. Circuit: 11. One cannot posit that the USG will run the table in all 19 of the appeals pending - and more DC District decisions and DC Circuit appeals can be expected.

The second resource linked by Lawfare is:

The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking (http://www.brookings.edu/papers/2010/0122_guantanamo_wittes_chesney.aspx) by Benjamin Wittes, Robert Chesney & Rabea Benhalim (Jan 2010).

I'm not touting this version (now 9 mos old - a century in this fast-moving arena) except as a review of the legal developments pre-2010. I'm suggesting that its upcoming second edition (mentioned in the first quote) be kept in mind. For those interested in Gitmo, etc., add Lawfare (http://www.lawfareblog.com/) to your legal links.

Regards

Mike

[jmm99]

Regular readers know that I've held the position that both detention and prosecution are viable options in dealing with members of irregular forces that are in effect waging special operations warfare against the US.

As a practical matter, persons arrested within the US are usually better handled via Federal crimiinal prosecutions (or if soldiers such as MAJ Hasan are involved, via UCMJ courts-martial). On the other hand, persons detained in the course of military operations are usually better handled as military detainees - as to which, Gitmo is not the only model.

I've not fallen in love with prosecutions of those military detainees (KSM is a good example) whether in Federal courts (the apparent love of the left) or before military commissions (the apparent love of the right). What follows are some resources that key in on the future of military detention of irregular combatants - that is, persons who are mermbers or material supporters of a combatant Power in a non-international armed conflict.

Here is a series of brief opinion pieces (from earlier this month) that generally endorse long-term military detention as a better solution than either civilian court or miltary commission trials, but differ as to the ultimate allowable term of detention.

Don’t Try Terrorists, Lock Them Up (http://www.nytimes.com/2010/10/09/opinion/09goldsmith.html?_r=2&hp) (8 Oct 2010, NYT Op Ed)


THE Obama administration wants to show that federal courts can handle trials of Guantánamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government’s case much harder when he excluded the testimony of the government’s central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.

Some, mostly liberals and civil libertarians, applauded the ruling, saying it showed that the rule of law is being restored. But many conservatives denounced it as proof that high-level terrorists cannot reliably be prosecuted in civilian courts and should instead be tried by military commissions.

The real lesson of the ruling, however, is that prosecution in either criminal court or a tribunal is the wrong approach. The administration should instead embrace what has been the main mechanism for terrorist incapacitation since 9/11: military detention without charge or trial.

Military detention was once legally controversial but now is not. District and appellate judges have repeatedly ruled — most recently on Thursday — that Congress, in its September 2001 authorization of force, empowered the president to detain members of Al Qaeda, the Taliban and associated forces until the end of the military conflict. ....

The case mentioned ("most recently on Thursday") is the DC District decision against Toffiq Nasser Awad Al-Bihani (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv2386-1773) (by Judge Reggie Walton).

Terror detentions deserve time limits (http://www.washingtonpost.com/wp-dyn/content/article/2010/10/08/AR2010100806341.html) (10 Oct 2010, WP Op Ed)


American soldiers in Afghanistan capture a Taliban fighter who has launched a rocket-propelled grenade at them. Few people would think that the only answer is to bring him to the United States for a criminal trial. The military's primary battlefield mission is not collecting evidence for prosecution, nor should it be.

If the United States is going to neutralize the threat that the Taliban soldier represents, however, some system of detention, as in more traditional wars, is inevitable. The legal uncertainty about who can properly be put into this system -- Must a detainee have been captured on "the battlefield"? How broad is "the battlefield"? How directly involved in hostilities must a person have been? -- should not obscure this central fact.

Facing this reality, Jack Goldsmith argued on this page ["A way past the detention gridlock," Sept. 10] that Congress and the president should work to put our detention system on stronger moral and legal footing. But Goldsmith did not address the hardest problem in doing so: the specter of indefinite detention. Unless that specter is removed, no system of detention is likely sustainable. ....

At Lawfare, added comments re: when military detention ends or should end, in Problems with Military Detention (http://www.lawfareblog.com/2010/10/problems-with-military-detention/) (Goldsmith) and Problems with Military Detention (Cont’d.) (http://www.lawfareblog.com/2010/10/problems-with-military-detention-contd/) (Wittes).

From 2005 Harvard Law Review, Bradley & Goldsmith, Congressional Authorization and the War on Terrorism (http://hlr.rubystudio.com/media/pdf/bradley_goldsmith.pdf); and from 2009 Brookings, by Wittes, Designing Detention: A Model Law for Terrorist Incapacitation (http://www.brookings.edu/papers/2009/0626_detention_wittes.aspx) (direct pdf (http://www.brookings.edu/~/media/Files/rc/papers/2009/0626_detention_wittes/0626_detention_wittes.pdf)).

These are some futuristic views of military detention policies based generally on our (US) experience with the 2001 AUMF (Authorization to Use Military Force).

------------------------
Other Than Gitmo Models

Military Detention in Iraq: Understanding the Detention Policy Cycle for Expeditionary Deployments, and Exploring the Relationship Between Law and Practice in the Field (http://www.lawfareblog.com/2010/10/military-detention-in-iraq-understanding-the-detention-policy-cycle-for-expeditionary-deployments-and-exploring-the-relationship-between-law-and-practice-in-the-field/), by Robert Chesney (from 13 Oct 2010 Lawfare):


Ever notice that the debate over detention law and policy rarely makes reference to the American experience in Iraq over the past seven years? Ever wonder what lesssons, if any, that experience has to offer? If so, you might want to take a look at my forthcoming article “Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010” (Virginia Journal of International Law, Volume 51).

Among other things, I describe a cycle of detention policy in the context of expeditionary deployments, one that begins with an embrace of conventional and highly-discretionary military detention but that shifts over time in the direction of heightened screening procedures and, eventually, a primary or even exclusive emphasis on the host nation’s criminal justice system. This process is nearing completion in Iraq, and is in mid-stream now in Afghanistan. Notably for both cases, and for any future expeditionary deployments, the cycle ultimately entails the loss of control over the physical facilities on which U.S.-operated military detention depends–meaning that the current availability of facilities like the Detention Facility in Parwan (DFIP) should not be viewed as a long-term solution to the problems associated with shuttering GTMO while still wishing to maintain the capacity to detain individuals for the long-term outside the United States. .. (full abstract of article follows) ....

Quite a bit more about both OIF and OEF detention policies can be found in the Lessons Learned series at CLAMO (https://www.jagcnet.army.mil/8525751D00557EFF/0/A86D78669E17E6F9852574DA005E3ADF?opendocument) - OEF/OIF Vols. I & II, and Forged in the Fire.

For a 2010 update on Astan (Bagram) detention procedures, see Jeff A. Bovarnick, Detainee review boards in Afghanistan: from strategic liability to legitimacy (http://findarticles.com/p/articles/mi_m6052/is_2010_June/ai_n55171804/) (Army Lawyer, June, 2010). This is part of the June 2010 International and Operational Law Edition (http://www.loc.gov/rr/frd/Military_Law/pdf/06-2010.pdf) (probably less time consuming to download the entire pdf than the 72 pages from Find Articles).

All these are a serious overload in reading material. The emerging US law of military detention of irregular combatants is doing just that - emerging. So, we have lots of suggestions to consider. In a decade or two, we should have all of this down much better.

Regards

Mike

[Polarbear1605]

Thanks for the references...wading through them now...question regarding the CLAMO website...is it possible for lawyers to write a handbook that is LESS THAN 300 pages??? Don't get me wrong, I am very interested in those things (especially lessons learned) but DANG!

[jmm99]

The answer to your question:


from PB1605
is it possible for lawyers to write a handbook that is LESS THAN 300 pages???
is very surprisingly - an affirm. :)

But, IFF, the two principal authors are an Army LTC and a Marine LTC who "manage to co-operate, as they say" - and the publication is edited by a Navy CAPT ("adult supervision"). :D

2010 Law of War Deskbook.pdf (DL from the CLAMO Publications page) - 248 pages:


Authors
LTC Jeff A. Bovarnick, JA, USA
LtCol J. Porter Harlow, USMC
....
Editor
CAPT Brian J. Bill, JAGC, USN
....
This Law of War Deskbook is intended to replace, in a single bound volume, similar individual outlines that had been distributed as part of the Judge Advocate Officer Graduate and Basic Courses and the Operational Law of War Course. Together with the Operational Law Handbook and Law of War Documentary Supplement, these three volumes represent the range of international and operational law subjects taught to military judge advocates.

Table of Contents


Introduction to Public International Law 1
History of the Law of War 5
Framework of the Law of War 17
Legal Basis for the Use of Force 25
GC I: Wounded and Sick in the Field 37
GC III: Prisoners of War 63
GC IV: Civilians on the Battlefield 91
GC IV: Occupation and Post-Conflict Governance 107
Means and Methods of Warfare 131
War Crimes and Command Responsibility 163
Human Rights 187
Comparative Law 201
Less than a 2MB download

Besides that particular reference, I also should have included the Library of Congress - Military Legal Resources (http://www.loc.gov/rr/frd/Military_Law/military-legal-resources-home.html) (links to all kinds of original source docs, as well as CLAMO, etc.). The LoC page is worth saving as a favorite.

Now, excuse me while I get back to my lime green popsicle - how can you stand those purple grape things on your tonguee ? ;)

Regards

Mike

[jmm99]

From the NYT (http://www.nytimes.com/2010/10/26/us/26gitmo.html?_r=1&src=mv):


Deal Averts Trial in Disputed Guantánamo Case
By CHARLIE SAVAGE
Published: October 25, 2010

WASHINGTON — A former child soldier being held at the military prison at Guantánamo Bay, Cuba, pleaded guilty on Monday to terrorism-related charges, averting the awkward prospect that he would be the first person to stand trial before a military commission under the Obama administration.

The defendant, Omar Khadr, 24, a Canadian, admitted to a military judge that he threw a grenade that killed an American soldier during a 2002 firefight and that he had planted 10 roadside bombs for Al Qaeda. Mr. Khadr, born in Toronto, was 15 when he was captured in Afghanistan.

By avoiding the need for a trial of Mr. Khadr, the deal represents a breakthrough for the Obama administration’s legal team, which had been dismayed that his case was to become the inaugural run of a new-look commissions system — undermining their efforts to rebrand the tribunals as a fair and just venue for prosecuting terrorism suspects.

Mr. Khadr’s decision to plead guilty was a turnabout from his vow to never accept such an arrangement lest it allow the United States to save face. He contended that he was coerced by older relatives into working with Al Qaeda and was not at fault.

In exchange for pleading guilty to five charges — including murder in violation of the law of war, supporting terrorism and spying — Mr. Khadr was spared the risk of a life sentence. A panel of seven military officers will decide the length of his prison sentence.

But his plea agreement is believed to cap the potential time at eight years, on top of the eight he has been in custody.

The deal followed a complex flurry of negotiations, including a side deal reached on Saturday between the United States and Canada allowing Mr. Khadr, after a year, to apply for transfer to Canadian custody to serve out the remainder of his sentence. ......

Consider that, if criminal prosecution had been rejected as an option, the USG would have had to prove in a habeas proceeding, only by a preponderance of the evidence, that Khadr was part of AQ (either the grenade or one IED emplacement would have more than sufficed). He then could have been detained for the duration of our hostilities with AQ.

Regards

Mike

[davidbfpo]

The recent public statement / speech by the British SIS (popularly known as MI6) head fits well here, particularly as the Binyam Mohammed case involves an allegation of torture and now a UK police investigation.

I have only linked two BBC reports, the first is a general article:
How secret does a secret service need to be? That's the question MI6, like its sister services MI5 and GCHQ in Britain, as well as more distant relatives abroad, has been wrestling with. The man known as "C" - Sir John Sawers - has offered his answer.

Link:http://www.bbc.co.uk/news/uk-11648114

Under the headline 'MI6 chief Sir John Sawers says torture illegal' :
The head of MI6, Sir John Sawers, has described torture as "illegal and abhorrent" and defended the service's need for secrecy.

Link:http://www.bbc.co.uk/news/uk-11642568

[ODB]

Lawyers muddy the whole mess and we get nowhere......just drags on until everyone forgets about it and they live long happy lives with Playstation 3's, gourmet meals, and all the amenties of a 5 star resort.

[jmm99]

From plea bargain (which trumps) - 1 year at Gitmo + 7 years in Canada (maybe). Coverage from Toronto Sun, Omar Khadr gets 40 years (http://www.torontosun.com/news/canada/2010/10/31/15897686.html) (well "yes", but "no"), with a comment from a Sun reader:


I hope this worthless piece of traitorous trash never ever sets foot back in Canada again. Send him back to Afghanistan where he really wants to be. Then remove not only his citizenship but that of his traitorous family as well and deport them to be with him where they all belong. He is a piece of work and a very poor sorry excuse for a Canadian. I hope he and his family rot in hell.

And so it may go.

Links to plea bargain (http://www.lawfareblog.com/wp-content/uploads/2010/11/Khadr-pleabargain.source.prod_affiliate.56.pdf) and US-Canada diplomatic notes (http://www.lawfareblog.com/wp-content/uploads/2010/11/Khadr-dipnotes.source.prod_affiliate.56.pdf).

Regards

Mike

[jmm99]

Mohammedou Ould Salahi (http://www.lawfareblog.com/wp-content/uploads/2010/11/2010-11-05-Salahi-Slip.pdf) was granted habeas by Judge Robinson (reported in post # 497 (http://council.smallwarsjournal.com/showpost.php?p=96579&postcount=497)).

The Court of Appeals reversed, adding to a string of DoJ succcesses before the DC Circuit (emphasis added):


This case is more than merely the latest installment in a series of Guantanamo habeas appeals. The United States seeks to detain Mohammedou Ould Salahi on the grounds that he was “part of” al-Qaida not because he fought with al-Qaida or its allies against the United States, but rather because he swore an oath of allegiance to the organization, associated with its members, and helped it in various ways, including hosting its leaders and referring aspiring jihadists to a known al-Qaida operative. After an evidentiary hearing at which Salahi testified, the district court found that although Salahi “was an al-Qaida sympathizer” who “was in touch with al-Qaida members” and provided them with “sporadic support,” the government had failed to show that he was in fact “part of” al-Qaida at the time of his capture. The district court thus granted the writ and ordered Salahi released. Since then, however, this Court has issued three opinions—Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010); Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010); and Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010)—that cast serious doubt on the district court’s approach to determining whether an individual is “part of” al-Qaida. We agree with the government that we must therefore vacate the district court’s judgment, but because that court, lacking the benefit of these recent cases, left unresolved key factual questions necessary for us to determine as a matter of law whether Salahi was “part of” al-Qaida when captured, we remand for further proceedings consistent with this opinion.

Two articles at Lawfare, Comments on Salahi (http://www.lawfareblog.com/2010/11/comments-on-salahi/) and Press Release of the Day (http://www.lawfareblog.com/2010/11/press-release-of-the-day/).

Regards

Mike

[davidbfpo]

The new UK government appears torn over whether to keep this option, which is effectively house arrest, albeit of varying intensity, e.g. no GPS capable tags. In opposition the Lib-Dems were against, plus several prominent Tories; this article is a good insight into the issue:http://www.guardian.co.uk/commentisfree/2010/oct/31/andrew-rawnsley-coalition-terrorism-laws

A different columnist, from a conservative viewpoint, within a longer article adds his view:http://www.telegraph.co.uk/comment/columnists/charlesmoore/8113915/We-didnt-win-liberties-in-order-to-bestow-them-on-our-enemies.html

Currently the UK has:
only nine people are currently under them and seven have absconded abroad whilst under 'control'.

[jmm99]

before either a civilian court (often a liberal-left fav) or a military commission (often a conservative-right fav), if the WP's sources are accurate.

Opposition to U.S. trial likely to keep mastermind of 9/11 attacks in detention (http://www.washingtonpost.com/wp-dyn/content/article/2010/11/12/AR2010111207508.html?hpid=topnews)

By Peter Finn and Anne E. Kornblut
Washington Post Staff Writers
Saturday, November 13, 2010; 12:38 AM

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.

The White House has made it clear that President Obama will ultimately make the decision, and a federal prosecution of Mohammed and four alleged co-conspirators has not been ruled out, senior officials said. Still, they acknowledge that a trial is unlikely to happen before the next presidential election and, even then, would require a different political environment. .....

As previously noted by me, indefinite detention of KSM under military law, without criminal prosecution via either civilian or military trial, would not break JMM's heart.

Jack Goldsmith was an early proponent of indefinite detention for such as KSM - going back to 2005, as we see in today's Lawfare article, The Goldsmith-Wittes-Posner Option Goes Live (http://www.lawfareblog.com/2010/11/the-goldsmith-wittes-posner-option-goes-live/), by Benjamin Wittes:


..... (comments on WP story) ...

If this comes about, it will be a significant vindication for a much-derided idea that Jack and I and Eric Posner-particularly Jack-have been advancing for some time. Way back in 2005, Jack and Eric wrote this oped in the Post (http://www.washingtonpost.com/wp-dyn/content/article/2006/08/03/AR2006080301257.html), which begins:


Everyone involved in the contentious negotiations between the White House and Congress over the proper form for military commissions seems to agree on at least one thing: that al-Qaeda and Taliban terrorists ought to be prosecuted. We think this assumption is wrong: Terrorist trials are both unnecessary and unwise.
The oped concludes:


Congress and the president are wasting political energy designing a trial system that will satisfy few and convict even fewer. They should instead focus on improving the military detention process, a tool that has the sanction of law and custom and that has proved itself more than adequate for wartime needs.
More recently, Jack and I wrote this piece (http://www.washingtonpost.com/wp-dyn/content/article/2010/03/17/AR2010031702844.html), arguing specifically against the consensus that the administration needed to bring KSM to trial:


The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. Both sides are busily ignoring the obvious solution: Don’t bother trying them at all.

Mohammed has already spent more than seven years in military detention. Both the Obama administration and the Republicans who object to trying him in federal court accept the legitimacy of such detention as a traditional incident of war for those in the command structure of al-Qaeda, and perhaps for associated forces as well. In general outline, so do the courts. Given these facts, the politically draining fight about civilian vs. military trials is not worth the costs. It also distracts from more important questions in the legal war against terrorism.
And only a few weeks ago, Jack reiterated the point in an oped in the New York Times (http://www.nytimes.com/2010/10/09/opinion/09goldsmith.html?_r=2&hp):


THE Obama administration wants to show that federal courts can handle trials of Guantánamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government’s case much harder when he excluded the testimony of the government’s central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.

Some, mostly liberals and civil libertarians, applauded the ruling, saying it showed that the rule of law is being restored. But many conservatives denounced it as proof that high-level terrorists cannot reliably be prosecuted in civilian courts and should instead be tried by military commissions.

The real lesson of the ruling, however, is that prosecution in either criminal court or a tribunal is the wrong approach. The administration should instead embrace what has been the main mechanism for terrorist incapacitation since 9/11: military detention without charge or trial.

Currently, three separate legal arenas are in play, where the results will be determinative as to whether AQ and associated groups will be treated primarily under the Laws of War (kill or detain), or primarily under the Rule of Law (capture and trial):

1. KSM and similar prosecutions, whether civilian court or military commission;

2. Al-Awlaki and other direct action cases;

3. Gitmo detention cases, where the DC Circuit is developing the indefinite detention doctrine under the 2001 AUMF informed by the Laws of War (LOAC).

The early idealistic hopes of some in the Obama administration have clearly been dashed by harsh realities.

Regards

Mike

[jmm99]

From Lawfare, Ghailani Convicted on One Count, Acquitted on All Others (http://www.lawfareblog.com/2010/11/ghailani-convicted-on-one-count-acquitted-on-all-others/), Wednesday, November 17, 2010, focusing on the statute which could bring him from 20 years to life:


Ghailani was convicted of violating 18 USC 844(f)(3) and (n). Section 844(f) provides:


(1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

(2) Whoever engages in conduct prohibited by this subsection, and as a result of such conduct, directly or proximately causes personal injury or creates a substantial risk of injury to any person, including any public safety officer performing duties, shall be imprisoned for not less than 7 years and not more than 40 years, fined under this title, or both.

(3) Whoever engages in conduct prohibited by this subsection, and as a result of such conduct directly or proximately causes the death of any person, including any public safety officer performing duties, shall be subject to the death penalty, or imprisoned for not less than 20 years or for life, fined under this title, or both.
Section 844(n) then applies conspiracy liability to this provision, but takes the death penalty off the table:


Except as otherwise provided in this section, a person who conspires to commit any offense defined in this chapter shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense the commission of which was the object of the conspiracy.

I expect this result (since there were 280+ Not Guilty verdicts on the other counts) will put paid to future civilian criminal prosecutions of Gitmo detainees.

Regards

Mike

[AdamG]

Just to provide a Hellerian Catch-22 to the post above :

(Context : military flight returning from Afghanistan)


The TSA personnel at the airport seriously considered making us unload all of the baggage from the SECURE cargo hold to have it reinspected. Keep in mind, this cargo had been unpacked, inspected piece by piece by U.S. Customs officials, resealed and had bomb-sniffing dogs give it a one-hour run through. After two hours of sitting in this holding area, the TSA decided not to reinspect our Cargo–just to inspect us again: Soldiers on the way home from war, who had already been inspected, reinspected and kept in a SECURE holding area for 2 hours. Ok, whatever. So we lined up to go through security AGAIN.

This is probably another good time to remind you all that all of us were carrying actual assault rifles, and some of us were also carrying pistols.

So we’re in line, going through one at a time. One of our Soldiers had his Gerber multi-tool. TSA confiscated it. Kind of ridiculous, but it gets better. A few minutes later, a guy empties his pockets and has a pair of nail clippers. Nail clippers. TSA informs the Soldier that they’re going to confiscate his nail clippers.

http://www.redstate.com/erick/2010/11/18/another-tsa-outrage/

[davidbfpo]

In an amazing decision the UK government has decided to make an out of court settlement regarding the allegations of collusion in the torture of UK citizens and residents.

Report:http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8135810/Guantanamo-seven-paid-off-to-halt-legal-action-against-Government.html

Commentary:http://www.telegraph.co.uk/news/worldnews/northamerica/usa/8148736/Our-judges-decision-on-Guantanamo-should-mystify-us-all.html

[jmm99]

No DC District habeas proceedings were decided for or against these seven Gitmo detainees; nor were any of them tried on criminal charges before either civilian courts or military commissions.

At this point, looking back to why they were being held at Gitmo gives us a better perspective of each of them.

------------------------------------
1. Binyam Mohamed - Wiki (http://en.wikipedia.org/wiki/Binyam_Mohamed)


Mohamed was among the 60% of prisoners who participated in the tribunal hearings. A Summary of Evidence memo was prepared for the tribunal of each detainee.

Mohamed's memo accused him of the following:


a. The detainee is associated with al Qaida or the Taliban.

1. The detainee is ########## who lived in the United States from 1992 to 1994, and in London, United Kingdom, until he departed for Pakistan in 2001.

2. The detainee arrived in Islamabad, Pakistan, in June 2001, and traveled to the al Faruq training camp in Afghanistan, to receive paramilitary training.

3. At the al Faruq camp, the detainee received 40 days of training in light arms handling, explosives, and principles of topography.

4. The detainee was taught to falsify documents, and received instruction from a senior al Qaida operative on how to encode telephone numbers before passing them to another individual.

5. The detainee proposed, to senior-al Qaida leaders, the idea of attacking subway trains in the United States.

6. The detainee was extracted from Afghanistan to Karachi, Pakistan, where he received explosives and remote-controlled-detonator training from an al Qaida operative.

7. The detainee met with an al Qaida operative and was directed to travel to the United States to assist in terrorist operations.

8. The detainee attempted to leave Pakistan for the United States but was detained and interrogated by Pakistani authorities, revealing his membership in al Qaida, the identities of Mujahidins he knew, and his plan to use a "dirty bomb" to carry out a terrorist attack in the United States.
Although Binyam Mohammed did not attend his Tribunal, notes from one of the Personal Representative's meetings with him were published. According to that Personal Representative "BM" agreed that the first four allegations were true.


"Detainee admitted items 3A1-4 on the UNCLASS summary of evidence, but stated he went for training to fight in Chechnya, which was not illegal. The detainee stated that the other items were rubbish or made under duress."

------------------------------------------------
2. Bisher Al Rawi - Wiki (http://en.wikipedia.org/wiki/Bisher_Amin_Khalil_al-Rawi)


Al Rawi was among the 60% of prisoners who participated in the tribunal hearings. A Summary of Evidence memo was prepared for the tribunal of each detainee.

Al Rawi's memo accused him of the following:

1. The detainee is associated with al Qaida:

2. The detainee provided harbor in London, United Kingdom to a known al Qaida fugitive named Abu Qatada.

3. The detainee assisted Abu Qatada by locating an apartment where Abu Qatada hid from British authorities.

4. Abu Qatada has strong links to senior al Qaida operatives and facilitated the travel of individuals to an al Qaida guesthouse located in Pakistan.

5. Abu Qatada is a known al Qaida operative who was arrested in the United Kingdom as a danger to national security.

6. In addition to helping Abu Qatada evade British authorities, the detainee transferred funds between branches of the Arab Bank at Abu Qatada’s direction in 1999 or 2000.

7. In November 2002, the detainee was arrested in Gambia after arriving from the United Kingdom and was later transferred to U.S. custody in Bagram, Afghanistan.

-----------------------------------------------------
3. Jamil El Banna - Wiki (http://en.wikipedia.org/wiki/Jamil_el_Banna)


El Banna was among the 60% of prisoners who participated in the tribunal hearings. A Summary of Evidence memo was prepared for the tribunal of each detainee. The memo for his hearing lists the following allegations:

a. The detainee is a member of al-Qaida:

1. Abu Qutada is a known al-Qaida operative arrested in the United Kingdom as a danger to national security.

2. Detainee visited Abu Qatada while Qatada was in hiding from the British police.

3. Detainee has been indicted by a Spanish National High Court Judge for membership in a terrorist organization.

4. Detainee was arrested in Gambia, while attempting to board an airplane with equipment that resembled a homemade electronic device.

----------------------------------------------------
4. Richard Belmar - Wiki (http://en.wikipedia.org/wiki/Richard_Belmar)


Belmar was among the 60% of prisoners who participated in the tribunal hearings. A Summary of Evidence memo was prepared for the tribunal of each detainee. The memo for his hearing lists the following:

a. The detainee is associated with the Taliban and al Qaida forces.

1. The detainee is a citizen of the United Kingdom who traveled to Afghanistan to flee criminal prosecution and receive military training.

2. The detainee traveled from the United Kingdom to Kandahar, Afghanistan around July 2001, via the United Arab Emirates and Pakistan.

3. The detainee stayed at a house in Kabul, Afghanistan and received training in the assembling and disassembling of the AK47.

4. The detainee traveled to a terrorist training camp around 21 July 2001.

5. The detainee received basic weapons, war tactics, and navigation training at a terrorist training camp.

6. The detainee conducted guard duty with a Kalishnikov rifle at the front gate of a terrorist training camp.

7. The detainee was in contact with Usama Bin Laden while at a terrorist training camp.

8. The detainee stated he had one opportunity to fight the Northern Alliance forces in Kabul, Afghanistan.

9. The detainee was arrested by the Pakistani local authorities on 07 February 2002.

10. The detainee swore a bayat (oath or promise) to Usama Bin Laden.

-----------------------------------------------------
5. Omar Deghayes - Wiki (http://en.wikipedia.org/wiki/Omar_Deghayes)


A Summary of Evidence memo was prepared for Omar Amer Deghayes's Combatant Status Review Tribunal, on 27 September 2004. The memo listed the following allegations against him:

The detainee is a member of al Qaida and associated with the Taliban:

1. The detainee traveled to Afghanistan with a fake passport.

2. The detainee stayed at the guesthouse of a senior al Qaeda leader.

3. The detainee is a member of the Libyan Islamic Fighting Group (LIFG).

4. The Libyan Islamic Fighting Group (LIFG) is a terrorist organization.

5. The detainee was filmed in an Islamic extremist training video.

-----------------------------------------------------
6. Moazzam Begg - Wiki (http://en.wikipedia.org/wiki/Moazzam_Begg)


Moazzam Begg was among the 60% of prisoners who chose to participate in tribunal hearings. A Summary of Evidence memo was prepared for the tribunal of each detainee, listing the allegations that supported their detention as an "enemy combatant".

Moazzam Begg's memo accused him of the following:

a. The detainee:

1. Is a member of al-Qaida and other affiliated terrorist organizations.

2. Recruited individuals to attend al-Qaida run terrorist training camps in Afghanistan.

3. Provided money and material support to al-Qaida terrorist training camps.

4. Has received extensive training at al-Qaida-run terrorist training camps since 1993. He has been trained on the AK-47, rocket propelled grenades (RPGs), handguns, ambush theory, detection of land mines, and the manufacture of improvised grenades.

5. Provided support to al-Qaida terrorists by providing shelter for their families while the al-Qaida members committed terrorist acts.

b. The detainee:

1. Engaged in hostile acts against the U.S. or its coalition Partners.

2. Was armed and prepared to fight on the frontlines against US and allied forces alongside Taliban and al-Qaida fighters.

3. Retreated to Tora Bora Afghanistan along with other Taliban and al-Qaida fighters.

4. Engaged in these hostile actions while neither he nor his fellow fighters wore distinctive military emblems on their clothes, nor followed a typical chain of command.

5. Provided support to Osama Bin Laden's al-Qaida terrorist network with full knowledge that Bin Laden had issued a declaration of war against the U.S., and that the al-Qaida network had committed numerous terrorist attacks against the U.S. and its citizens.

-----------------------------------------------------
7. Martin Mubanga - Wiki (http://en.wikipedia.org/wiki/Martin_Mubanga)

Mubanga's Summary of Evidence is not quoted in his Wiki; but the SoE is at the NYT Gitmo database (http://projects.nytimes.com/guantanamo/detainees/10007-martin-john-mubanga).

1329

Sad that HMG felt compelled to settle.

Regards

Mike

[davidbfpo]

In an unexpected - to me - move the Labour Party spokesman on home affairs has indicated a change over support for Control Orders and IMHO more significantly extended periods of pre-charge detention (currently 28 days). Which may enable the coalition government to overcome opposition.

Links BBC:http://www.bbc.co.uk/news/uk-politics-11804899 and Daily Telegraph:http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8148748/Labour-signals-big-U-turn-on-terror-suspects.html

Note Ed Balls last sentences:
I’m quite clear we must always strike a balance between protecting our country from the risks of terrorist attacks on the one hand, and preserving our democratic freedoms and fundamental liberties on the other: it should never be a case of one or the other.

[jmm99]

The DC habeas "front" has not had much visible activity since November. In the last two weeks, several developments worth noting have occured.

In September 2010, Judge Walton denied the habeas petition (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv2386-1773) of Toffiq Nasser Awad Al Bihani (his brother was the subject of earlier DC Circuit opinion adverse to his own habeas petition):


IV. Conclusion

As counsel for the petitioner candidly acknowledged at the merits hearing, "the most effective way to lie is to mix truth and falsehood." Hr'g Tr. at 214:16-18; see also Williamson, 512 U.S. at 599-600 (observing that "[o]ne of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-incuplatory nature"). The Court agrees and finds that the petitioner did just that his inculpatory admissions regarding his desire to prepare for jihad, that he received training at the al-Farouq training camp, and that he continued to associate himself with al-Qaeda operatives while going to and from various al-Qaeda-affiliated guesthouses-are credible, while his attempt to place "an innocuous gloss over these ... facts," Al Odah, 611 FJd at 15, by stating that he had no intention of engaging in jihad upon arriving in Afghanistan. and that he intended to travel back to Saudi Arabia or Yemen upon leaving al-Farouq, fails to have the ring of truth. Accordingly, from the testimony presented by the petitioner at the merits hearing, his declaration, and the stipulations agreed to in the Joint Pre-Trial Statement, the Court concludes that the government has provided more than enough evidence to satisfy its burden of establishing the lawfulness of the petitioner's detention under the AUMF. And, because the petitioner has failed to meet his burden of producing evidence sufficient to rebut the government's prima facie showing, the petitioner's petition for a writ of habeas corpus must be denied.
Toffiq Al Bihani also appealed to the DC Circuit. On 7 Jan 2011, he and the DoJ filed a Joint Motion for Summary Affirmance (http://www.lawfareblog.com/wp-content/uploads/2011/01/samotion.pdf), which reads in pertinent part (emphasis added):


2. Mr. Al-Bihani does not challenge on appeal the factual findings of the district court, but seeks to argue that the district court applied an erroneous legal standard in upholding his detention. Mr. Al-Bihani contends that he did not participate actively and directly in hostilities against the United States, and did not intend to engage in hostile acts against the United States, in his view he cannot be lawfully detained under the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001), or the laws of armed conflict.

3. The parties agree that Mr. Al-Bihani’s arguments on appeal are foreclosed by established circuit precedent. See, e.g., Al-Adahi v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010), cert. pet. pending, No. 10-487; Al-Bihani v. Obama, 590 F.3d 866, 871 (D.C. Cir.), reh’g and reh’g en banc denied, 619 F.3d 1 (D.C. Cir. 2010), cert. pet. pending, No. 10-7814.1 Because this Court’s decisions are controlling as to the issues Mr. Al-Bihani seeks to raise in this Court, the parties agree that to pursue this appeal would be futile.

4. Mr. Al-Bihani joins this motion for summary affirmance in order to obtain a judgment of this Court allowing him to seek Supreme Court review of the district court’s decision in the most efficient manner possible and in recognition of the futility of pursuing a challenge in this Court to controlling authority.

So, Mr. Al-Bihani and his counsel threw in the towel so far as the DC Circuit was concerned - leaving his hope with the Supreme Court (more on that at the end).

A few days later, 11 Jan 2011, Judge Leon entered another habeas denial in the case of Abdul Razak Ali (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1020-1448), an Algerian who also goes by the name Saeed Bakhouche. The findings were similar to those found in Al-Bihani:


The Government contends that the petitioner was a member of Abu Zubaydah’s force that was reorganizing at a guesthouse in Faisalabad, Pakistan, and preparing for future operations against U.S. and Allied forces. In particular, the Government contends that the petitioner: (1) lived with Abu Zubaydah and a cadre of his lieutenants during a two week period; (2) previously traveled with Abu Zubaydah’s force through Afghanistan and ultimately fled with them through Afghanistan to Pakistan; and (3) took an English course (with an American accent) when he was staying at Abu Zubaydah’s guesthouse.

Petitioner, not surprisingly, disagrees. Although he acknowledges being captured in the same guesthouse as Abu Zubaydah, he denies: (1) ever being in Afghanistan, let alone being with Abu Zubaydah’s force there; (2) ever taking an English course from Abu Zubaydah’s trainers at the guesthouse; and (3) ever being a member, permanent or otherwise, of Abu Zubaydah’s force. In essence, he claims that the Government has mistakenly identified him as a member of Abu Zubaydah’s force, who traveled with Abu Zubaydah in Afghanistan and fled with him to Pakistan before gathering at this particular guesthouse to start preparing for their next offensive against u.s. and Allied forces. Upon reviewing the Return, the Traverse, and the oral argument during the merits hearing, I disagree with the petitioner’s contention and conclude for the following reasons that the Government has more than adequately established that it is more likely than not that petitioner Bakhouche was, in fact, a member of Abu Zubaydah’s force and is therefore detainable under the AUMF.

Judge Leon has been active since the beginning of the DC habeas cases (he was the trial judge in Boumediene).

Thus, neither the DC Circuit nor DC District have been a source of much joy to detainees so far in 2011.

-----------------------------------------
What follows is a key decision.

The most recent news (18 Jan 2011) comes from SCOTUS, which denied certiorari (without comment) in Al Adahi v. Obama (http://www.supremecourt.gov/orders/courtorders/011811zor.pdf), a key DC Circuit case mentioned above in the Al-Bihani quote, which leaves in place the DC Circuit opinion adverse to Al-Adahi.

Here are the briefs filed in SCOTUS (Al-Adani (http://www.supremecourt.gov/orders/courtorders/011811zor.pdf) and DoJ (http://www.lawfareblog.com/wp-content/uploads/2010/12/Al-Adahi-10-487.pdf)); the DC Circuit opinion (http://www.cadc.uscourts.gov/internet/opinions.nsf/CC9963FC962DF552852578070070BC96/$file/09-5333-1254718.pdf) reversing Judge Kessler; and Judge Kessler's DC District opinion (http://www.scotusblog.com/wp-content/uploads/2009/08/Al-Adahi-opinion-8-21-09.pdf) (granting habeas).

The Al-Adahi case and Judge Kessler's methodology in deciding cases have been discussed in a number of prior posts in this thread (here (http://council.smallwarsjournal.com/showpost.php?p=71248&postcount=270), here (http://council.smallwarsjournal.com/showpost.php?p=71827&postcount=283), here (http://council.smallwarsjournal.com/showpost.php?p=72019&postcount=287), here, (http://council.smallwarsjournal.com/showpost.php?p=80808&postcount=371), here (http://council.smallwarsjournal.com/showpost.php?p=106278&postcount=520)).

I've been critical of Judge Kessler's methodology employed in Al-Adahi and several others cases in which she allowed habeas. The DC Circuit opinion (reversing Judge Kessler) was, therefore, a victory in my eyes; and the SCOTUS denial of certiorari was frosting on the cake.

Regards

Mike

[jmm99]

Ben Wittes has a piece (filed a few hours ago) on the SCOTUS denial of certiorari in Al-Adahi (emphasis added):


Why the Al Adahi Cert Denial Matters (http://www.lawfareblog.com/2011/01/why-the-al-adahi-cert-denial-matters/)
by Benjamin Wittes
....
The Supreme Court’s unwillingness to hear the case suggests a comfort level with letting the D.C. Circuit continue writing the rules of these habeas cases and a lack of interest in getting down and dirty with the nitty gritty of detention.

If that lack of interest persists – as I suspect it will - the rules will continue to develop incrementally in undercovered cases like Al Adahi – cases that many in the press will ignore altogether or will consider as only one “point” on the so-called “scorecard” but which will actually define the lawful parameters of detention both at Guantanamo and. ultimately, elsewhere.

And let’s be honest: the rules the D.C. Circuit will write, as Al Adahi shows, will be quite unfavorable to detainees. Will the human rights community continue to insist that “habeas works” – that the judiciary is the appropriate body to make detention policy – even when judges end up creating a detention system with rules this generous to the government?

My only conplaint with Ben's piece is that he is conceding the "human rights community" to those who would only argue Al-Adahi's case.

I also have a concern with human rights, but I am also aware of the need for appropriate degrees of freedom in military operational and security needs.

In fact, I would contend that application of the Laws of War, as the so-called "human rights community" wishes (e.g., the transitory combatant who hides among the civilian population), results in less human rights for innocent civilians.

I agree with Ben's reasons for finding Al-Adahi important:


Among other things, it:

raised serious questions as to whether the government needs to prove a habeas case by a preponderance of the evidence or whether a lesser showing might suffice;

insisted that lower courts not assess each piece of government evidence in isolation from one another but consider the “conditional probability” of each piece of evidence’s contributing to the government’s burden of proof in light of the other established facts;

suggested that false exculpatory statements by detainees should be treated as evidence in favor of detention;

suggested that a detainee’s “voluntary decision to move to an al-Qaida guesthouse, a staging area for recruits heading for a military training camp, makes it more likely – indeed, very likely – that [he] was himself a recruit”; and

treated the detainee’s attendance at an Al Qaeda training camp as ”to put it mildly – strong evidence that he was part of Al Qaida” and did not treat evidence that he left the camp as undermining that conclusion; in fact, the D.C. Circuit treated the detainee’s training as conclusive on its own.

Regards

Mike

[jmm99]

As of 16 Feb 2011, the scorecard (from Lawfare, GTMO Habeas Numbers Update (http://www.lawfareblog.com/2011/02/gtmo-habeas-numbers-update/)) broke down as follows (my comments after each category):


Uighur cases in which detention was deemed or conceded unlawful: 17

These cases were unique to say the least - the earliest Gitmo cases to be disposed of (by consent).


Petitioners’ district-court wins not appealed by the government, including cases in which the government’s initial appeal was later dismissed: 14

Many of these were early cases where (1) the facts simply did not favor the USG (similar to the Uighurs), or (2) the factual findings (though contested) were against the USG, which for reasons known to itself decided against appeals (esp. in earlier cases). Thus, the early media coverage reached the conclusion (based on the Uighurs and early cases) that most all Gitmo detainees were unlawfully detained.


Petitioners’ district-court wins pending at D.C. Circuit: 5

Based on its more current track record, the USG will probably win most of these.


Petitioners’ district-court wins resulting in a remand to district court, with remand still pending: 2

The detainees' chances in these cases have diminished because each remand means a DC Circuit opinion at least in part favorable to the USG.


Petitioners’ merits wins at D.C. Circuit: 0

This statistic (and the associated USG wins at DCC) tell it all.


Government’s district-court wins not appealed by the petitioner, including cases in which the petitioner’s initial appeal was later dismissed: 2

The detainees, having nothing to lose, have appealed almost everything.


Government’s district-court wins that will likely be appealed: 3

See above.


Government’s district-court wins pending at D.C. Circuit: 10

Based on the more recent track record at DCC, these detainees should not count on reversals.


Government’s district-court wins resulting in a remand to district court, with remand still pending: 1

So far, the remands of USG wins have focused on clarification of lesser factual issues.


Government’s merits wins at D.C. Circuit: 6

So, at DCC, the scorecard is USG 6, Detainees 0.


Post-Boumediene merits decisions in which cert. has been denied by SCOTUS: 1

This cert denial resulted in a USG DCC win staying in place.

Regards

Mike

[davidbfpo]

An indicator of how lawfare fares here; from the opening phrase:
Only one in four people arrested in Britain on suspicion of terrorism in the last year was charged with a terror-related offence, figures show.

Link:http://www.bbc.co.uk/news/uk-12567754

I expect someone collects such data internationally, although I am sceptical that legal definitions, procedures and far more make comparisons difficult.

[davidbfpo]

A man convicted of serious terrorism offences in the UK who claimed the UK was complicit in his torture in Pakistan has lost his appeal.

Rangzieb Ahmed, 34, from Greater Manchester, was convicted of membership of al-Qaeda and directing terrorism in December 2008.

He alleged he was unlawfully held and beaten, and his conviction should be quashed because the UK was complicit.

Link:http://www.bbc.co.uk/news/uk-12580780

In a commentary on the judgement, in the conservative leaning weekly The Spectator:
The judgment went much further. It said:

‘We should record that it was not possible to treat as an established law the concept of complicity in torture, which is an essential plank of the appellant’s case.’

This is a seminal decision (and a rarity in that I imagine it will not remotely inconvenience the government). It means that passive receipt of intelligence perhaps gained through torture is not the same as complicity in torture.

Link:http://www.spectator.co.uk/coffeehouse/6733368/a-landmark-judgement-for-the-security-services-on-torture.thtml

Notice the difference between the allegations made by Binyam Mohammed of UK complicity in him being tortured, with a civil action and the government reaching an out of court settlement.

[davidbfpo]

Cross refer to the thread 'Terrorist Prisoners and Deradicalization' and this quote:
Perhaps another surprising observation is that in the U.K. we have had over 400 al Qaeda-linked extremists convicted of terrorism-related offences since 2001. Approximately 300 of these people have been released already, and many have received relatively short sentences. Most of these people are on the streets in the U.K. One finding is that there does not seem to be any evidence of these people re-engaging in extremism or becoming involved in violence again. The re-conviction rate or the re-offending rate of these individuals is extremely low. It has surprised many people who assumed that if someone was radicalized, chiefly engaged in violence and had spent time in prison, they would still be dangerous when they came out. From most of them we see that prison represents a transition period where they move on to other issues and away from violence.

[davidbfpo]

A BBC Radio programme 'Unreliable Evidence':
The first in a new series of Unreliable Evidence looks at the role of the law in preventing terrorism.

The programme brings together the former Director of Public Prosecutions, Lord Macdonald who has just overseen the Government's review of its counter terrorism powers and Lord Carlile, who for the past ten years been the government's independent reviewer of terrorism legislation.

They agree that the right balance has to be struck between security and the protection of civil liberties, but disagree about the extent to which this has been achieved.

Both men have been able to see the intelligence information on which government anti-terrorism legislation has been based. Lord Carlile believes security measures such as control orders have averted terrorist attacks, while Lord Macdonald worries they have often prevented justice being done.

Also taking part in the discussion is human rights barrister, Tim Owen QC, who has appeared in several leading cases relating to control orders and other anti-terrorism measures.

They discuss the law relating to torture, deportation, stop and search powers and the new measures being brought in to replace the highly controversial control orders.

Not sure how long the podcast will be available and unlike TV should be available beyond the UK. Link:http://www.bbc.co.uk/iplayer/episode/b00zllkg/Unreliable_Evidence_Terrorism/

[jmm99]

and why detainees and their attorneys should be nervous about their prospects for success in future habeas hearings.

Today, a D.C. Circuit panel (JJ. Garland, Griffith, & Kavanaugh; opinion by Brett Kavanaugh (http://www.lawfareblog.com/wp-content/uploads/2011/03/Uthman-opinion.pdf)) reversed and remanded, with instructions to deny habeas on rehearing, the merits appeal of Uthman Abdul Rahim Mohammed Uthman. Judge Henry Kennedy’s April 2010 decision (http://ccrjustice.org/files/2010-04-21%20Uthman%20Opinion%20Public%20Version%2004-1254.pdf) granted Uthman’s habeas petition.

The DC Circuit's opinion reiterates three legal points which its decisions after April 2010 have emphasized:

1. AUMF and detention duration:


In response to al Qaeda’s attacks against the United States on September 11, 2001, Congress passed and President Bush signed the Authorization for Use of Military Force. The AUMF provides:


That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001); see U.S. CONST. art. I. § 8. The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004).

2. Qualitative and Quantitative Proof Required:


In decisions issued since the District Court’s judgment in this case, this Court has rejected “command structure” as the test for determining whether someone is part of al Qaeda. Our cases have held that the “determination of whether an individual is ‘part of’ al-Qaida ‘must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization.’” Salahi v. Obama, 625 F.3d 745, 751-52 (D.C. Cir. 2010) (quoting Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010)).
....
Our cases have stated that the preponderance of the evidence standard is constitutionally sufficient and have left open whether a lower standard might be adequate to satisfy the Constitution’s requirements for wartime detention. See Al-Adahi v. Obama, 613 F.3d 1102, 1104-05 (D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1, 11 & n.2 (D.C. Cir. 2010); Al-Bihani, 590 F.3d at 878 & n.4. The preponderance of the evidence standard is equivalent to the “more likely than not” standard. See Concrete Pipe & Prods., Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622 (1993); Al-Adahi, 613 F.3d at 1106.

3. Considering the evidence as a whole:


We do “not weigh each piece of evidence in isolation, but consider all of the evidence taken as a whole.” Al Odah, 611 F.3d at 15 (quoting Awad, 608 F.3d at 6-7); see also Al-Adahi, 613 F.3d at 1105-07.

The key facts requiring a finding that Uthman was "a part of AQ" were:


In analyzing whether Uthman more likely than not was part of al Qaeda, we consider the following facts, which were found by the District Court or are otherwise uncontested:

- Uthman was captured in December 2001 in the vicinity of Tora Bora, an isolated, mountainous area where al Qaeda forces had gathered to fight the United States and its allies.

- When captured, Uthman was traveling with a small group of men, two of whom were al Qaeda members and bodyguards for Osama bin Laden and one of whom was a Taliban fighter.

- Leading up to his capture, Uthman’s journey began at a religious school in Yemen where al Qaeda had successfully recruited fighters. The two al Qaeda members and Osama bin Laden bodyguards who were later captured with Uthman, as well as the Taliban fighter captured with Uthman, also attended the Furqan Institute.

- Uthman traveled to Afghanistan along a route used by al Qaeda recruits.

- Uthman lied to hide the fact that someone else paid for his travel to Afghanistan.

- While in Afghanistan, Uthman was seen at an al Qaeda guesthouse.

- Uthman’s explanation of why he went to Afghanistan and why he was traveling in a small group that included al Qaeda members and a Taliban fighter near Tora Bora during the battle there involves a host of unlikely coincidences.

The opinion discusses the legal points and factual findings in much more depth.

Regards

Mike

[AdamG]

40 Search Warrants Executed as FBI Goes After 'Anonymous'


Police agencies worldwide are turning up the heat on a loosely organized group of WikiLeaks activists. On Thursday U.K. police arrested five people, and U.S. authorities said they'd executed more than 40 search warrants in the U.S. in connection with last month's Web-based attacks against companies that had severed ties with WikiLeaks.

http://www.pcworld.com/businesscenter/article/218036/40_search_warrants_executed_as_fbi_goes_after_anon ymous.html?tk=out

[AdamG]

SAN DIEGO -- One of the nation's largest military bases is reportedly under tighter security after three Middle Eastern men tried to enter without proper authorization.
10News learned the three men -- 40-year-old Afghani Ahmad Rahmani Naeem, 41-year-old Iranian Vahik Petrossian and 27-year-old Iranian Sengekdi Norvik Avanosian -- attempted to get into Camp Pendleton last weekend under what was considered suspicious circumstances.

http://www.10news.com/news/27377448/detail.html

[davidbfpo]

From ICSR's blogsite:
Speaking yesterday at a conference organised by King’s College London’s ICSR, the Council on Foreign Relations, and Georgetown University’s Center for Peace and Security Studies, British Security Minister Baroness Pauline Neville Jones revealed core elements of the British government’s revised Prevent agenda.

She announced that the new strategy would be broader than it currently is, “confront[ing] all forms of extremism, from the far left to the far right”. At the same time, it will focus “more narrowly… on violent extremism and the pathways that lead to [the] espousal of violence”.

At the core of the new strategy will be “three I’s”: ideology, institutions, and individuals.

Link:http://icsr.info/blog/British-Security-Minister-Outlines-Key-Elements-of-New-Prevent-Agenda

If this speech reflects HMG's decisions, which is a moot point, then in these straitened financial times the Prevent agenda (PVE) will IMHO be a declaratory policy only, with a few changes, fewer partners and little impact.

There is a link to the CFR website: http://www.cfr.org/publication/by_type/video.html to the podcasts of four segments and I'm about to listen to Intelligence and Counter-Radicalization. Others are:
Reaching Out” – Promoting Community Engagement, the speech A New Approach to Counter-Radicalization and Community Partnerships to Counter Violent Extremism.

[jmm99]

Yesterday, the Supreme Court briefly denied certiorari in 3 cases: Al Odah v. Obama (No. 10-439), Awad v. Obama (No. 10-736), and Al Bihani v. Obama (No. 10-7814). The effect is that the DC Circuit decisions (which were adverse to the detainees in all three cases) will stand - a clean sweep so far for the DOJ and USG position in this term of SCOTUS (4 denials of certiorari in the 4 cases so far decided).

The two cases remaining are those of the Uighurs, which as frequent readers know are unique cases. They do, however, deal with the power of Federal judges to enforce release of detainees whose habeas petitions have been granted.

Regards

Mike

[jmm99]

The DC Circuit rejected another detainee appeal from a District judge's denial of habeas corpus - unanimous opinion (a brief concurrence in treated elsewhere) in Esmail v Obama (http://www.lawfareblog.com/wp-content/uploads/2011/04/2011-04-08-Esmail-opinion.pdf).

The facts found by the two courts (District and Circuit), and the legal conclusions to be drawn, are becoming almost a matter of course - the opinion states that the facts compel the legal conclusions as a "matter of law":


... we review the ultimate issue of whether the detainee was “part of” al Qaeda .....

First, Esmail, a Yemeni who traveled to Afghanistan in 1999, admits to having received weapons training at al Farouq, an al Qaeda training camp, for at least one month. Although he claims that he did not know until after he left that the camp was al Qaeda-run, the district court found this contention to be incredible, and Esmail offers us no basis to question that fact finding. See Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010) (“A finding is clearly erroneous when . . . the reviewing court . . . is left with the definite and firm conviction that a mistake has been committed.” (internal quotation marks omitted)). We have observed that training at al Farouq or other al Qaeda training camps is compelling evidence that the trainee was part of al Qaeda. See Al-Adahi v. Obama, 613 F.3d 1102, 1109 (D.C. Cir. 2010) (suggesting, but not relying on, the proposition that such evidence would be sufficient on its own); see also Al-Bihani v. Obama, 590 F.3d 866, 873 n.2 (D.C. Cir. 2010). The length of Esmail’s training — at least a month — makes this particularly strong evidence. Cf. Al-Adahi, 613 F.3d at 1108 (noting that the detainee was at al Farouq for only seven to ten days).

Second, Esmail admits to having studied at the al Qaeda-affiliated Institute for Islamic/Arabic Studies. Although the district court found this fact, on its own, not to be strong evidence, see Abdah v. Obama, 709 F. Supp. 2d 25, 44(D.D.C. 2010), it is relevant and, when viewed in light of the remainder of the evidence, makes it more likely that Esmail was “part of” al Qaeda. See Al-Adahi, 613 F.3d at 1105–09 (describing the importance of considering each fact in light of the remainder of the evidence).

Third, although Esmail contests precisely where he was taken into custody by the Northern Alliance (he asserts it occurred in Jalalabad while the government argues it occurred in a village near Tora Bora, a cave complex in the mountains of Eastern Afghanistan), he does not contest that he passed through Tora Bora in December of 2001 or that when he was taken into Afghan custody, he was with two other men, both of whom had participated in the fighting and one of whom had been injured. Seeking to explain these movements, Esmail claims that after September 11, when he was in Kandahar, he wanted to return to Yemen, but rather than retrace the route he had taken from Yemen to Afghanistan in 1999, he headed north to Kabul, where he claims he planned to meet and marry a Pakistani friend’s sister. Once in Kabul, he adds, he was kidnapped from the street and taken to Tora Bora, where his kidnappers picked up two other men. The kidnappers then took the three of them to Jalalabad and sold them into Afghan custody. The district court, however, “was not persuaded by Esmail’s attempt to paint his decision to travel from Kandahar to Kabul after September 11 as innocent” and found his allegations of kidnapping “not logical.” Abdah, 709 F. Supp. 2d at 46–47; cf. Al-Adahi, 613 F.3d at 1107 (noting that a false explanation can provide further corroboration that a detainee is “part of” al Qaeda). Esmail has failed to show that this credibility determination was clearly erroneous.

As we explained in Uthman v. Obama, Tora Bora was a “widely known . . . battleground between al Qaeda and the United States” and travel in that region in December 2001 “suggests that [the traveler] was affiliated with al Qaeda.” No. 10-5235, slip op. at 8 (D.C. Cir. Mar. 29, 2011) (internal quotation marks omitted). In that case, we also found it “highly significant” that the detainee was “captured in the company of a Taliban fighter and two al Qaeda members and Osama bin Laden bodyguards,” id. at 9, and could “not credibly explain[] . . . how he found himself traveling with [that group],” id. at 14. Likewise, we find it “highly significant” that Esmail was captured along with two fighters, one of whom had been injured in the battle, and that Esmail has offered no credible explanation either of his decision to remain in Afghanistan after September 11 or of how he ended up traveling through Tora Bora with two Tora Bora battle participants.

Regards

Mike

[jmm99]

Some of the folks at Lawfare have published an "e-book", The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking (http://www.brookings.edu/papers/2011/05_guantanamo_wittes.aspx), by Benjamin Wittes, Senior Fellow, Governance Studies; Robert M. Chesney, Nonresident Senior Fellow, Governance Studies; Larkin Reynolds, Legal Fellow, Governance Studies - all at The Brookings Institution.

The entire pdf download (http://www.brookings.edu/~/media/Files/rc/papers/2011/05_guantanamo_wittes/05_guantanamo_wittes.pdf) is only 1.46MB. The idea, as expressed here at Lawfare (http://www.lawfareblog.com/2011/05/the-emerging-law-of-detention-2-0/#more-1988), is to provide a means of rapid updates. The appellate cases are moving faster than either book publishing or law review publishing can keep up:


It is with great pleasure that we announce the second edition of the The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking. As many readers will remember, the first edition of this paper came out early last year and described the astonishing diversity of practice and law in the district court handling of Guantanamo habeas cases. The paper received a great deal of attention, positive and negative, but it was also quickly outdated by the D.C. Circuit’s rapid-fire intervention in the cases, which has across a range of areas reoriented the lower court.

The idea in this edition was both to bring the paper up to date and to do it in a fashion that would resist being rendered obsolete in the future. Hence the new version, which we are calling The Emerging Law of Detention 2.0.

The new version is specifically crafted as a living document, one that will be constantly updated as new opinions emerge. When you visit its home page, you will see that each chapter has a “last updated” date, so that the reader can tell how fresh it is. While we intend to keep both the statistical data and the chapters themselves reasonably current, the paper isn’t a blog; there will thus be an inevitable lag while we add analysis after opinions come out. We will also, over time, add sections to cover areas we have not considered. The idea is to create a fluid, constantly updated treatise that–at any given time–will function as a resources for those exploring the law of detention.

Unlike in the earlier version, which contained a clear normative call for greater clarity in the rules either from Congress or from the appellate courts, in version 2.0 we have endeavored to eschew normative judgments of any kind. While our views on the debate over common-law adjudication versus legislation are well known, our purpose here is not to engage that debate. We hope the paper will be as useful in informing those who argue for the common-law development of this body of law as it will be for those who urge that the project of judge-made detention rules is folly.

Finally, one of the virtues of this form of scholarship is that error correction is extremely easy. So if you think we have misinterpreted a case or if we have slipped up factually or gotten a citation wrong, please let us know. We hope the paper will be useful to a wide range of practitioners, judges, scholars, and students, and we hope it will get more so over time.

Note that the "law of detention" is "informed" by the Laws of War. Hence, many of the rules developed by the DC Circuit will apply to "kill or capture" missions. E.g., HVTs.

Regards

Mike

[jmm99]

The Supreme Court today denied certiorari (a one-liner included in a huge multi-case order (http://www.supremecourt.gov/orders/courtorders/051611zor.pdf)) in Mohamed v. Jeppesen Dataplan.

That order leaves as a final order the Ninth Circuit’s en banc opinion (http://www.ca9.uscourts.gov/datastore/opinions/2010/09/08/08-15693.pdf), based on state secrets privilege grounds, affirming dismissal of that civil suit (relating to Jeppesen's alleged complicity in extraordinary rendition and torture).

This result effectively is 180 degrees from the result reached in the UK Binyam Mohamed case.

While a cert denial is technically not a precedent, SCOTUS has denied cert in a number of USG-won "Gitmo" cases since 2008.

Regards

Mike

[AdamG]

NEW YORK: Two defectors from Iran's intelligence service have testified that Iranian officials knew in advance about the attacks of September 11, 2001, says a US court filing that seeks damages for Iran's ''direct support for, and sponsorship of, the most deadly act of terrorism in American history''.

One of the defectors also claimed that Iran was involved in designing the attacks, the filing said. The defectors' identities and testimony were not revealed in the filing but were being submitted to a judge under seal, said lawyers who brought the original suit against Iran on behalf of families of dozens of September 11 victims.

The suit says Iran and Hezbollah, the Lebanese militant group with close ties to Tehran, helped al-Qaeda with planning the attacks and with the hijackers' training and travel. After the attacks, the suit says, Iran and Hezbollah helped al-Qaeda operatives and their families to escape, in some cases providing them with a safe haven in Iran.

http://www.smh.com.au/world/iran-accused-of-september-11-role-20110520-1ewq7.html

[davidbfpo]

AdamG cited, in part:
...Two defectors from Iran's intelligence service have testified that Iranian officials knew in advance about the attacks of September 11, 2001...

Remember 'Curveball' and be very wary.

[Ken White]

Having some familiarity with Iranian methods of, ah, imparting information, I recognize a couple of flags waving in that report... :wry:

[AdamG]

I knew folks would find that amusing.

Then again, just to be the Devil's Advocate, let's engage Professor Peabody's Wayback Machine.


Between 2002 and 2003, the NYPD and FBI arrested and deported six Iranian diplomats in New York for photographing infrastructure and rail lines. The busts set off an alarming scenario for the NYPD’s intelligence division — that Iran could aid terrorist groups like Hizbollah in an attack on the Big Apple.

To investigate, detectives had to go beyond the five boroughs. They flew to Buenos Aires to meet with Argentine authorities and learn from the 1992 and 1994 Hizbollah attacks on Jewish and Israeli facilities there.

Those deadly bombings were retaliation for the death of Hizbollah leaders in the Middle East. The quickly executed strikes led intelligence officials to believe plans had been in the bag for a while and that reconnaissance on the targets and materials were provided by Iranian officials stationed in South America.

Read more: http://www.nypost.com/p/news/opinion/opedcolumnists/nypd_long_arm_of_the_law_Zs9SkOimTmrCYbfNCrLNzM#ix zz1NCsRKsM9

[jmm99]

A D.C. Circuit panel (JJ. David Tatel (http://en.wikipedia.org/wiki/David_S._Tatel), Karen LeCraft Henderson (http://en.wikipedia.org/wiki/Karen_L._Henderson) and Douglas Ginsburg (http://en.wikipedia.org/wiki/Douglas_H._Ginsburg) - a mixed lot across the political spectrum) decided against the detainee in Al Madhwani v. Obama (http://www.lawfareblog.com/wp-content/uploads/2011/05/2010-05-27-Al-Madhwani-Slip.pdf), affirming Judge Thomas Hogan’s opinion (http://www.lawfareblog.com/wp-content/uploads/2010/12/2010-01-06-Anam-TFH-Slip.pdf) finding this Yemeni detainee to be "part of" AQ, and therefore denying habeas.

The Facts of the Case (as condensed by the Court of Appeals from the District Court's findings) were as follows (pp.2-3 pdf):


In early summer 2001, Madhwani met two men in a coffee shop somewhere in Yemen. The two spoke to him about the “new Islamic state” in Afghanistan. Merits Hearing Tr. at 62, 69, Anam v. Obama, C.A. No. 04-1194 (D.D.C. Oct. 27, 2009) (Tr. 10/27). One of them suggested to Madhwani—a recent high school graduate who was unemployed—that he go to Afghanistan to “witness the situation” for himself. Id. at 71–72. Madhwani accepted a plane ticket and a small sum of money from the man and left Yemen in August 2001. The stated purpose of his trip, according to Madhwani, was “adventure” and “to see what things are like in Afghanistan.” Id. at 73. Once he arrived in Afghanistan, Madhwani accompanied a group of fellow Yemenis he had met along the way to “the Arab guesthouse” in Kandahar, where his passport and return airline ticket were confiscated. Id. at 108–09. Madhwani was told that his travel documents would be returned after he completed two months of military training. Madhwani reluctantly agreed to the arrangement and, by mid-August, he was transported to a remote mountain camp to begin a course of physical conditioning and small arms instruction.

Madhwani was still at the training camp when al-Qaida attacked the United States on September 11, 2001. The camp was closed down, for fear that it would be bombed, and Madhwani and the other trainees were given permission to leave. Madhwani took a rifle from the camp’s armory and, in the company of two trainers from the camp and a score of fellow recruits, wandered for several months through a succession of Afghan cities. Madhwani claimed that they were all traveling in search of their passports, which—like Madhwani’s—had been confiscated before they were sent to the camp. They ended up in Kabul just three days before the capital fell to the United States led military coalition. Madhwani was reunited with his passport, mysteriously, infra p. 8, and he then went to neighboring Pakistan. There he remained for the better part of one year—aside from a brief trip to Iran—moving from one clandestine location to another. Madhwani believed the Pakistani authorities would arrest him, as an Arab, if he were to travel openly to an airport or to the Yemeni embassy to seek help in returning home.

Madhwani was captured along with several other Arabs on September 11, 2002, when Pakistani security forces raided the Karachi apartment building where he had been hiding from the authorities. Two of Madhwani’s associates—one from the same apartment and another from across the hall—fought and died in a two-and-one-half hour gun battle with Pakistani soldiers. After spending five days in a Pakistani prison, Madhwani was turned over to U.S. military custody. Madhwani was then taken to a “dark prison” where he claims to have been tortured. He was transferred in October 2002 to the U.S. Naval Base at Guantanamo Bay, Cuba.

The material factual scenario is post-9/11, in Afghanistan; post-Tota Bora, in Pakistan (other than a "vacation" in Iran); and a Pakistani direct action resulting in his capture - and in the deaths of two of his associates.

The Law of the Case is the current position of the DC Circuit based on the 2001 AUMF:


The President’s detention authority originates with the 2001 Authorization for Use of Military Force (AUMF), which authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224; see Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (AUMF “authorized detention” of enemy combatants). We have held that the authority conferred by the AUMF covers at least “those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.” Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010), cert. denied, 79 U.S.L.W. 3568 (U.S. Apr. 4, 2011) (No. 10-7814). Determining whether an individual is “part of” al-Qaida or the Taliban is an inquiry that “ ‘must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization.’ ” Salahi v. Obama, 625 F.3d 745, 752 (D.C. Cir. 2010) (quoting Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010)). “We review the district court’s . . . habeas determination de novo . . . .” Al-Bihani, 590 F.3d at 870. Because we agree with the district court’s conclusion that Madhwani was more likely than not “part of” al-Qaida and find no other error in the district court’s handling of the case, we affirm.

The 2001 AUMF provides no express directions for a "kill" operation vice a "capture" operation. For an attacker in a "declared hostile force" situation (given a PID), the attacker has discretion to "kill" or "capture". The Laws of War (absent a clear surrender that can be reasonably and safely accepted by the attacker) allow a "kill" at any time and any place, armed or unarmed, hostile act/threat or not (OBL).

The DC Circuit (having only detainees before it in the Gitmo cases) has not had to deal with the 2001 AUMF standard for a "kill" operation. It also has avoided delving into the limits of the "support" branch arising from the 2001 AUMF (from Law of the Case quoted above - emphasis added):


We have held that the authority conferred by the AUMF covers at least “those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.”

So, we have four situations under the AUMF (leaving aside "Taliban" and "associated force" issues - 8 more cases):

1. Part of AQ - captured & detained

2. Part of AQ - killed

3. Support of AQ - captured & detained

4. Support of AQ - killed

The law (in the DC Circuit) is very clear as to case #1; not so clear on case #3; and non-existent (of course) as to cases ## 2 & 4.

As everyone probably knows, the 2012 NDAA (http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540rh/pdf/BILLS-112hr1540rh.pdf) (National Defense Appropriations Act) has passed the House. It includes Sec. 1034, which is a revised AUMF.

That will move on to the Senate, where it will be amended; and if passed there in amended form, will go to a Conference Committee. I've not delved into this "new" AUMF here (many legal pundits have done so elsewhere) because it is nowhere near its final form. As you all know, my crystal ball is broken, or at least clouded.

Regards

Mike

[jmm99]

David Remes (http://en.wikipedia.org/wiki/David_H._Remes) is an "establishment" (Covington & Burling) Gitmo detainee attorney. He no longer sees habeas as a viable remedy for Gitmo detainees, David Remes on the D.C. Circuit (http://www.lawfareblog.com/2011/06/david-remes-on-the-d-c-circuit-2/):


I agree with my colleague Richard Murphy (here (http://www.lawfareblog.com/2011/06/two-guantanamo-detainees-drop-appeals/)) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.

Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.

The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court affirmed six of the eight government wins (al-Bihani, Awad, Barhoumi, al Odah, Esmail, Madhwani), remanding the other two (Bensayah, Warafi).

In two critical non-merits cases, the D.C. Circuit held in Kiyemba I and III that the district court cannot compel the government to release a detainee found to be unlawfully held; and in Kiyemba II, the court effectively barred the district court from enjoining the release of a detainee to a country where he fears he will be tortured. Because the Supreme Court denied review in both cases, only Congress can overrule them. Unless Congress removes from the Executive the discretion to decide whether to release a prevailing detainee, I don’t see what practical difference legislation making substantive or procedural improvements in Guantánamo habeas litigation can make.

While some Gitmo cases will still continue (although two mentioned in the Robert Murphy comment have been dropped this month by the detainees-appellants), the curtain is about to drop down on that aspect of the "GWOT".

Regards

Mike

[jmm99]

Hussain Almerfedi won in the DC District Court. The DC Circuit (http://www.cadc.uscourts.gov/internet/opinions.nsf/87F8BA8DC6EA1F67852578AB004EC213/$file/10-5291-1312587.pdf), following its precedents established over the past year, reversed and denied Almerfedi habeas. The facts were a bit different from most Gitmo cases because Almerfedi was captured in Tehran by Iranian authorities sometime after September 11, 2001. He was turned over to Afghani authorities in March 2002 as part of a prisoner exchange. Then, in May 2003, he was, in turn, transferred to Guantanamo Bay by United States forces. The circumstances of his apprehension in Iran, or his Afghan custody, were only sparsely set out in the record.

The majority opinion provided an example which would not meet the preponderence of evidence standard (p.10, n.7):


As an example, if the only evidence the government offered in a particular case was that a petitioner had been apprehended with an AK-47 in rural Afghanistan – which would be at least probative – it would not be sufficient to establish a basis for detention. Possession of a rifle is commonplace in Afghanistan, and therefore does not meaningfully distinguish an al Qaeda associate from an innocent civilian. But the government could satisfy its burden by showing that an individual was captured carrying an AK-47 on a route typically used by al Qaeda fighters. Cf. Al-Odah v. United States, 611 F.3d 8, 11, 16 (D.C. Cir. 2010) (significant that individual captured near Tora Bora in late 2001). And, of course, that a petitioner trained at an al Qaeda camp or stayed at an al Qaeda guesthouse “overwhelmingly” would carry the government's burden. See Al-Bihani, 590 F.3d at 873 n.2.

The facts of this case were different - no AK or other weapon was involved (pp.10-11):


In this case, the government seeks to satisfy its burden by deploying Almerfedi’s own admissions. First, Almerfedi acknowledges that he stayed for two and a half months at Jama’at Tablighi, an Islamic missionary organization that is a Terrorist Support Entity “closely aligned” with al Qaeda. Almerfedi v. Obama, 725 F. Supp. 2d 18, 29 (D.D.C. 2010). He asserts he refused to join the organization and remained largely incommunicado, but he stayed there for free. Although that evidence is probative, by itself it presumably would not be sufficient to carry the government’s burden because there are surely some persons associated with Jama’at Tablighi who are not affiliated with al-Qaeda. But if we add Almerfedi’s travel route, which is quite at odds with his professed desire to travel to Europe (and brought him closer to the Afghan border where al Qaeda was fighting), and also that he had at least $2,000 of unexplained cash on his person when captured, notwithstanding his claim to have given that much to Ali (which was all he brought from Yemen), the government’s case that Almerfedi is an al Qaeda facilitator is on firmer ground.

We conclude that all three facts, when considered together, see Awad, 608 F.3d at 7, are adequate to carry the government’s burden of deploying “credible evidence that the habeas petitioner meets the enemy-combatant criteria,” Hamdi, 542 U.S. at 534 (plurality opinion). We consistently have found such circumstantial evidence damning, see Uthman, 637 F.3d at 407 (collecting cases), and sufficient to distinguish a petitioner from the “errant tourist, embedded journalist, or local aid worker.” So too here.

The concurring opinion reached the same result following a slightly different listing of the material facts (pp.14-15):


I join the court in holding that the government met its burden of proof to show by a preponderance of the evidence that its detention of petitioner Hussain Almerfedi is lawful based on the evidence in the record regarding: (1) Almerfedi’s two and one half month stay at the Jama’at Tablighi center in Lahore, Pakistan; (2) his eastward travel from Tehran to Mashad near the Afghan border in late 2001 or early 2002, which was 500 miles in the opposite direction of his purported destination of Greece via Turkey; (3) his possession upon his capture thereafter in Tehran of a large unexplained sum of money; and (4) undisputed evidence about the existence of Bin Laden-funded “guesthouses” in Tehran and the use of hotels in Mashad as waystations for fighters traveling to or fleeing from Afghanistan. See generally Maj. Op. at 10–11. Viewed together, this evidence supports a reasonable inference that Almerfedi was an al-Qaeda facilitator by the time of his capture in early 2002. Almerfedi presented no evidence that would suffice to “rebut [the government’s] evidence with more persuasive evidence,” Hamdi v. Rumsfeld, 542 U.S. 507, 534 (2004). The district court found that Almerfedi’s explanation of his travels was “not . . . a convincing explanation,” Almerfedi v. Obama, 725 F. Supp. 2d 18, 30 (D.D.C. 2010), and was “at the very least, perplexing,” id. at 27. These findings are not clearly erroneous and their implications buttress the government’s “credible evidence,” Hamdi, 542 U.S. at 534, that Almerfedi’s behavior and travel route fit the profile of an al-Qaeda facilitator. See Maj. Op. at 11 (referring to false exculpatory statements).

The bottom line was that the panel found Almerfadi to be an al-Qaeda facilitator, not an al-Qaeda combatant.

Regards

Mike

[jmm99]

The DC Circuit continued its trend in holding for the USG in Gitmo detainee cases and against the detainees in two recent cases:

Al-Alwi v Obama (http://www.cadc.uscourts.gov/internet/opinions.nsf/007C372BEA1A6DEA852578D5004FBBAE/$file/09-5125-1320097.pdf) (July 22, 2011)

Gul v Obama (http://www.cadc.uscourts.gov/internet/opinions.nsf/CEC7BA37D384CB81852578D5004FBBD1/$file/10-5117-1320109.pdf) (July 22, 2011)

Al-Alwi is still another case affirming that the facts justified a finding (by a preponderence of the evidence) that the detainee was "part of" AQ or the Taliban. Gul held that habeas jurisidiction (judicial review) is lost once the USG decides to release or transfer a detainee.

These and the rest of the 2010-2011 DC Circuit Gitmo habeas cases should be constrasted with the two cases, decided earlier this month, by the European Court of Human Rights, sitting as a Grand Chamber:

In the case of Al-Skeini and Others v. the United Kingdom (http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=887952&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649) (7 July 2011)

In the case of Al-Jedda v. the United Kingdom (http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=887954&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649) (7 July 2011)

Al-Skeini covers shoot-kill situations. Al-Jedda covers capture-detain situations.

The DC Circuit and the ECHR are separated by more than an ocean. The former is basing its opinions on the "laws of war" (the 2001 AUMF). The latter is basing its opinions on the "rule of law" (the European Human RIghts Convention).

Regards (and thank you for the over 50,000 views of this thread since its inception by David)

Mike

[jmm99]

In those cases where habeas relief has been granted (not common in recent DC Circuit cases), some have called the successful detainees "innocent civilians". That may or may not be true, depending not only on the evidence admitted by the court, but also on evidence excluded as a matter of process (our various exclusionary rules).

Tom Joscelyn has an article at Long Wars Journal, Al Qaeda fighter's detention upheld by DC Circuit Court (http://www.longwarjournal.org/archives/2011/08/al_qaeda_fighters_de.php) (2 Aug 2011), which summarizes the evidence not admitted by the court (in part):


Additional intelligence not considered

The leaked JTF-GTMO threat assessment summarizes additional intelligence compiled in al Alwi's case, including descriptions of al Alwi provided by other Guantanamo detainees, several of whom were senior al Qaeda leaders.
....

Al Alwi was captured in December 2001 as he fled the Tora Bora Mountains. He was captured as part of a group referred to in JTF-GTMO documents as the "Dirty 30," which was comprised mainly of Osama bin Laden's elite bodyguards.

One member of the "Dirty 30" was Mohammed al Qahtani, the so-called "20th hijacker." Qahtani was slated to take part in the September 11 attacks but was denied entry into the US in the summer of 2001. Qahtani, whose detention has been controversial because of the harsh interrogation methods employed during his questioning, was one of several detainees to identify al Alwi. Qahtani identified al Alwi as "a veteran fighter in Afghanistan."

Ahmed Ghailani, who helped plot al Qaeda's August 1998 embassy bombings, "photo-identified" al Alwi to his interrogators as well. According to the leaked threat assessment, Ghailani said al Alwi was a bodyguard for Osama bin Laden. While he was detained by the CIA, Ghailani was subjected to controversial interrogation techniques. He was later transferred to the US to stand trial and convicted of terrorism-related charges.

Other detainees held at Guantanamo identified al Alwi as a bodyguard for Osama bin Laden, too.

(much more in article)

In this particular case, the added evidence would not have changed the result. In other cases, excluded evidence may have been outcome-determinative. Some of that excluded evidence has been unrealiable. Other excluded evidence has been reliable, but inadmissible under various exclusionary rules. Those rules are not that much different in the habeas cases vs military commissions. In those cases where detainees have been granted habeas but with reliable evidence excluded, one can scarcely argue their "innocence".

Regards

Mike

[jmm99]

The United States Court of Military Commission Review (USCMCR) has two decisions to its credit:

United States v Salim Ahmed Hamdan (http://jnslp.files.wordpress.com/2011/06/09-002-hamdan-uscmcr-decision-june-24-2011-86-pages.pdf) (USCMCR, 24 Jun 2011) (86 pages).

United States v Ali Hamza Ahmad Suliman al Bahlul (http://www.lawfareblog.com/wp-content/uploads/2011/09/al-Bahlul-USCt-Mil-Comm-Review-Sept-9-2011-1.pdf) (USCMCR, 9 Sep 2011) (139 pages).

These are in-depth opinions, which follow the general course of the DC Circuit decisions discussed in prior posts over the last year or so.

The substantial differences are that the USCMCR cases are criminal cases charging war crimes; and so, subject to proof beyond a reasonable doubt and a full-fledged courts-martial process. The opinions amount to little textbooks; e.g., the Table of Contents for al Bahlul:


I. INTRODUCTION

II. PROCEDURAL HISTORY

III. JURISDICTIONAL BASIS FOR REVIEW

IV. ISSUES ON APPEAL
A. Result of Court’s Review

V. STATEMENT OF FACTS
A. The Al-Qaeda Plan
B. Appellant’s Background, Conduct, and Trial

VI. STANDARD OF REVIEW

VII. MILITARY COMMISSION SUBJECT MATTER JURISDICTION

A. Introduction

B. Issue Presented

C. The Law
1. Military Commissions Act of 2006
2. Congressional Authority to Define and Punish Offenses Against the Law of Nations
3. The Law of Nations
4. The Law of Armed Conflict
a. Combatants—Lawful and Unlawful
(1) Alien Unlawful Enemy Combatant (AUEC) – Common Element 1
(a) AUEC and the Law of Armed Conflict
(b) Irregular Warfare
(c) U.S. Army 1914 and 1956 Manuals
(d) Terrorists
(e) Conclusion
(2) Conduct in the Context of and Associated with an Armed Conflict – Common Element 2

VIII. PROVIDING MATERIAL SUPPORT FOR TERRORISM, EX POST FACTO, AND INSTRUCTIONAL ERROR

A. Providing Material Support for Terrorism – an Offense Under the Law of Armed Conflict
1. The Charge
2. The 2006 M.C.A. and 2007 M.M.C
a. Material Support or Resources
b. Terrorism defined
3. Non-U.S. Domestic Providing Material Support for Terrorism-Type Laws

B. Discussion
1. Criminal Organizations – International Military Tribunal at Nuremburg
2. Control Council 10 – Nuremburg Military Tribunals
3. Joint Criminal Enterprise

C. Analysis

D. Complicity

E. Aiding the Enemy

F. Ex Post Facto

G. Instructional Error

IX. CONSPIRACY TO VIOLATE THE LAW OF WAR AS AN OFFENSE TRIABLE BY MILITARY COMMISSION

A. Conspiracy - The Charge and Specification

B. Conspiracy under the 2006 M.C.A. and 2007 M.M.C

C. Analysis
1. Non-U.S. Conspiracy-Type Laws

D. Conclusion

X. SOLICITATION AS AN OFFENSE TRIABLE BY MILITARY COMMISSION

A. Solicitation - The Charge and Specification

B. Solicitation under the 2006 M.C.A. and 2007 M.M.C

C. Analysis
1. Solicitation-Type Laws

XI. FIRST AMENDMENT ISSUES

A. Discussion

B. The Military Commissions Act and the First Amendment

C. Potential Chilling Effect on U.S. Citizens

D. Military Commission Judge’s Instructions

E. Conclusion

XII. 2006 M.C.A. AND BILL OF ATTAINDER

A. Bills of Attainder and Legislative Analysis
1. Legislatively Determines Guilt
2. Legislatively Inflicts Punishment
a. Historical Test
b. Functional Test
c. Motivational Test
(1) Specificity of Identification
(2) Lack of Judicial Trial

B. Conclusion

XIII. EQUAL PROTECTION

XIV. WAIVER OF ASSIGNMENTS OF ERROR I, III to V

A. The Law

B. Analysis

XV. SENTENCE APPROPRIATENESS

A. Applicable Law

B. Analysis
1. The Offense and the Offender
2. Closely-Related Cases

XVI. CONCLUSION

No matter what one's view on military commissions, these cases are must reads for anyone who engages in discussions concerning them.

Regards

Mike

[jmm99]

The new Military Commissions Webpage (http://www.mc.mil/) has a lot of information linked to its various dropdown menus.

The current news item is DOD Announces Charges Referred Against Detainee Al Nashiri (http://www.defense.gov/releases/release.aspx?releaseid=14821) - a death penalty case.

The more open MC policies probably have a lot to do with this: New Military Commissions Chief Prosecutor Announced (http://www.defense.gov/releases/release.aspx?releaseid=14598). BG Mark Martins has had the right tickets punched:


Martins has had a distinguished career in the military, as a soldier and judge advocate. His career has also included assignments as deputy legal counsel to the chairman of the Joint Chiefs of Staff, and as staff judge advocate for Multi-National Force-Iraq under Gen. David Petraeus. Martins finished first in his class at the U.S. Military Academy at West Point. He was also a Rhodes Scholar and graduate of Harvard Law School, where he served on the Harvard Law Review. In 2011, Martins received Harvard Law School’s Medal of Freedom.

but, to me and more importantly, he has had two decades of experience in the "Laws of War" (primarily ROE theory and practice); and more recently with "Rule of Law" work in Astan.

I've mentioned him (and articles by him) in 8 SWC posts in two threads, The Rules - Engaging HVTs & OBL (http://council.smallwarsjournal.com/showthread.php?t=13239) and Rule of Law in Iraq & Afghanistan (http://council.smallwarsjournal.com/showthread.php?t=13105). Search each of the threads for Martins. He's a smart guy and a real pro.

Regards

Mike

[davidbfpo]

JMM steadfastly keeps SWC up to date here, so time to add what at first seems dangerous British humour, no, it is fact a real story. Yes, the suspected terrorists, are suing SIS (MI6) in the English civil courts; with one substantial out of court settlement already (a previous post refers).

Draw your own conclusions.

Link:http://www.spectator.co.uk/essays/7222998/to-catch-a-spy.thtml

[davidbfpo]

Hat tip to LWOT for citing this guide
The volume of sheer, unadulterated nonsense zipping around the internet about the NDAA boggles the mind. There was a time–only a few months ago–when the NDAA detention provisions were the obscure province of a small group of national security law nerds. Now, however, this bill has rocketed to international notoriety. The added attention to it is a good thing. It’s an important subject and warrants genuine debate and discussion. The trouble is that much of the discussion is the intellectual equivalent of the “death panel” objections to the health care bill. While certain journalists have done a good job covering the controversy, it’s much easier to get bad information than good. The reader who wants answers to simple questions faces a confusing array of conflicting information.

Here then, as a public service, is an NDAA FAQ–a simple attempt to lay out the key questions people are asking about the NDAA and answer them as simply and neutrally as we can. Many of the answers here we have discussed in greater depth elsewhere on the blog. We will link to those posts for readers who want greater depth. This is an overview, a Guide for the Perplexed.

Link:http://www.lawfareblog.com/2011/12/ndaa-faq-a-guide-for-the-perplexed/

[jmm99]

The major points - at the end (though reading the body of the summary (http://www.lawfareblog.com/2011/12/ndaa-faq-a-guide-for-the-perplexed/) helps to understand the finish) - are:



So if it doesn’t significantly expand the government’s detention authority, doesn’t authorize detention of citizens, doesn’t really mandate the military detention of other terrorist suspects, and doesn’t do more to prevent the closure of Gitmo than does current law, what’s all the fuss about? Is it even important?

The final bill is, indeed, far less consequential than earlier versions would have been. Much of the fuss is overblown. That said, the bill has several important elements:


- The codification of detention authority in statute is a significant development, not because it enables anything that Congress had previously forbidden but because it puts the legislature squarely behind a set of policies on which it had always retained a kind of strategic ambiguity–a tolerance for detention without a clear endorsement of it of the sort that would make members accountable. Congress has now given that endorsement, and that is no small thing.

- The transfer restrictions will continue to have negative effects on administration management of detainee affairs, reducing flexibility and agility and compelling the continued detention of people the administration does not want to detain, in a status the administration does not wish to use, and at a facility it would prefer to vacate. That this is no change from current law–indeed, that the NDAA offers slightly more flexibility than does current law–does not make these restrictions any less troublesome.

- The rump mandatory detention provision remains a bit of a wild card that could have mischievous effects in practice. Though it ends up requiring very little, it does impose–as we have described–a default option of military detention for certain categories of cases. And this option might prove politically difficult to jettison.


Is there anything in the NDAA about which human rights groups and civil libertarians ought to be pleased?

Yes, actually, there is. Section 1024 of the bill, as we’ve noted, requires that people subject to long-term military detention in circumstances not already subject to habeas corpus review–think the Detention Facility in Parwan, Afghanistan–henceforth shall have the right to a military lawyer and a proceeding before a military judge in order to contest the government’s factual basis for believing them to be subject to detention. This is an extraordinary and novel development. Detainees in Afghanistan currently have access to the Detainee Review Board process, which as described in this article (http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CB4QFjAA&url=http%3A%2F%2Fwww.loc.gov%2Frr%2Ffrd%2FMilitary _Law%2Fpdf%2FBovarnick-Detainee.pdf&ei=1lzvTrWIHfDCsQKmyIXYDQ&usg=AFQjCNGfwiDed-csP_SzVy5TogpHGBKprA) already provide a relatively robust screening mechanism, particularly compared to years past. The DRB process does not include lawyers and judges, however, and human rights advocacy groups have criticized them on this ground. Requiring lawyers and judges to staff out the screening process is a pretty remarkable shift in the direction of accomodating those concerns.

Semantics can be important. Thus, one should reflect on the statute's use of the term "law of war" (used 11 times in the summary; as opposed to using the "Law of Armed Conflict" or "International Humanitarian Law"). To me, that usage (now primarily a USAianism) reflects an intent that decision-makers need to look not at LOAC-IHL as viewed internationally, but as to how LOAC-IHL is viewed parochially by the US Constitutional Branches as the "law of war".

At the same time, the statute extends the substance of the habeas process via a military judge wherever in the World detainees are held by the US. That is something I've suggested as an alternative to the more costly and toothless habeas process centered on Washington DC.

Regards

Mike

[carl]

Mike:

I read the Lawfare article and think I understand it. Sort of.

I also read something that Senator Graham said about one of the provisions.

"1031, THE STATEMENT OF AUTHORITY TO DETAIN, DOES APPLY TO AMERICAN CITIZENS AND IT DESIGNATES THE WORLD AS THE BATTLEFIELD, INCLUDING THE HOMELAND." (I didn't capitalize this quote, it just came out that way. No editorial comment intended. Also I believe he meant 1021, not 1031.)

Does Senator Graham's belief mean anything to how the law will be applied? And also, I don't like his wanting to confer battlefield status upon the US. I've read enough comments here to know that for the lack of a better term, battlefield law is not something that can be applied to the US without tossing the Bill of Rights into the waste paper basket. What do you think?

[jmm99]

should relax with a good cup of shut ... up.

Within a limited scope (but he omits to state the limitation), he's right. If a US citizen, as part of an armed enemy force, engages in hostile acts against the US in the US, he is subject to the same neutralization (kill or capture) rules as any non-citizen enemy combatant.

That was established by Ex Parte Quirin (http://supreme.justia.com/us/317/1/case.html) involving WWII German expats, including one who claimed US citizenship (H.H. Haupt). The Supreme Court made it clear that, under the facts then, his citizenship was no shield against penalties imposed by the laws of war:


Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid,

Page 317 U. S. 38

guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U. S. 612, 101 U. S. 615, 101 U. S. 617-18. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.

Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when, with that purpose, they entered -- or, having so entered, they remained upon -- our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, § 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other.

Haupt was in fact executed 8 Aug 1942 (Herbert Hans Haupt - Wiki (http://en.wikipedia.org/wiki/Herbert_Hans_Haupt)).

Of course, during our Civil War, both sides had to face up to folks picking sides contrary to his national or state citizenship. Initially, the Confederates decided to treat Union soldiers and sailors under the Laws of War. Contrarywise, the Union initially treated the Confed soldiers as traitors and its sailors as pirates. The Lieber Code changed that in 1863 to treat the Confeds as combatants under the Laws of War.

Today, a INCONUS Mumbai situation could, in my opinion, call into play the Laws of War - and probably Ex Parte Quirin.

Regards

Mike

[jmm99]

In 2009, Judge Richard Leon (probably the most experienced of the Gitmo habeas District Judges, having decided over 2 dozen cases) granted al-Janko's habeas petition (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1310-162).


Thus, combining the limited and brief nature of lanko's relationship with al Qaeda (and/or the Taliban), with the extreme conduct by his captors over a prolonged period of time, the conclusion is inescapable that his preexisting relationship, such as it was, was sufficiently vitiated that he was no longer "part of' al Qaeda (or the Taliban) at the time he was taken into custody by U.S. forces in 2002. Accordingly, the Government has failed to establish by a preponderance of the evidence that lanko was lawfully detainable as an enemy combatant under the AUMF at the time he was taken into custody, and the Court must, and will, GRANT his petition for a writ of habeas corpus and order the Government to take all necessary and appropriate diplomatic steps to facilitate his release forthwith.

I reported that decision here, First torture case decided on the merits .... (http://council.smallwarsjournal.com/showpost.php?p=75188&postcount=343), with a bit tongue in cheek because al-Janko was tortured by the AQ-Taliban as an American spy.

From our (US) standpoint, one could validly question what two CSRTs (Combatant Status Review Tribunals) were thinking when they found al-Janko an "enemy combatant" in 2004 and 2008. In any event, al-Janko filed a civil action against the US et al (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1702-20), which was assigned to Judge Leon. He found the facts to be largely uncontested (good for al-Janko):


The facts of this case are well known and largely undisputed. As I recounted in my June 22, 2009 Opinion, plaintiff is a Syrian citizen who spent his teen years in the United Arab Emirates. ... Around January 2000, he traveled to, and began living in, Afghanistan. ... After a brief stay at a Taliban guesthouse he attended the al Farouq training camp only to be accused by certain al Qaeda leaders of being a U.S. spy. ... Ultimately he was tortured so severely by al Qaeda that he gave a false "confession" that he was, indeed, a U.S. spy. ... Thereafter, he was imprisoned by the Taliban for over eighteen months at the infamous Sarpusa prison in Kandahar. ... In January 2002, when U.S. forces learned of plaintiff's presence at the prison - which was by then abandoned - they took him into custody and questioned him at Kandahar Air Base. ... At the time, the Government "mistook [AI] Janko as one of a number of suicide martyrs based on videotapes captured at an al Qaeda safehouse." ... Not yet aware that "the tape involving [AI] Janko ... was actually an Al Qaeda torture tape," U.S. forces transported plaintiff to Guantanamo Bay, Cuba. ... During his time at Guantanamo, plaintiff's detention status was twice reviewed by Combatant Status Review Tribunals ("CSRTs").

On October 27,2004, the first of two different CSRT panels determined that plaintiff was an enemy combatant. ... That CSRT panel relied upon evidence such as the taped confession the Government later learned was coerced. ... An Administrative Review Board ("ARB") later affirmed plaintiff's status as an enemy combatant and continued his detention on October 24,2005. ... Relying upon much of the same evidence, a second CSRT panel again determined in 2008 that plaintiff was properly detained as an enemy combatant. ... Ultimately, however, in the aftermath of the Supreme Court's decision in Rasul v. Bush, 542 U.S. 466, 483 (2004) (holding that 28 U.S.C. § 2241 extends statutory habeas corpus jurisdiction to detainees in Guantanamo Bay), plaintiff filed a petition for writ of habeas corpus with this Court on June 30, 2005. ...
...
... On June 22,2009, I granted his petition and ordered his release, finding that "the limited and brief nature of [AI] Janko's relationship with al Qaeda (and/or the Taliban) ... was sufficiently vitiated" by his intervening mistreatment and imprisonment by al Qaeda and the Taliban such that "he was no longer 'part of al Qaeda (or the Taliban) at the time he was taken into custody by U.S. forces in 2002," and, as a result, the Government "failed to establish by a preponderance of the evidence that [AI] Janko was lawfully detainable as an enemy combatant ... at the time he was taken into custody." ... Final judgment was entered in the case on July 17, 2009. The United States did not appeal the ruling, and the plaintiff was finally released from Guantanamo on October 7, 2009.

However, Judge Leon concluded that, regardless of the errors in detaining al-Janko, the Federal courts were barred by statute from hearing civil actions for damages:


War, by its very nature, victimizes many of those caught in its wake. Innocent civilians are invariably killed, and sometimes even mistakenly imprisoned. Our legal system was never designed to provide a remedy in our Courts for these inevitable tragedies, especially in a conflict like this where terrorists cunningly morph into their surroundings. Indeed, the Congress has specifically barred the Judicial Branch from reviewing "any aspect of the detention ... treatment ... or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination," 28 U.S.C. § 2241(e)(2). For this Court to circumvent such a clear directive from our Legislative Branch would be an utter disregard of the limitations of our judicial power.

Thus, al-Janko's case was dismissed by the same judge who granted his habeas petition.

That result (in accord with a number of other recent US cases) is contrary to the line of UK cases allowing civil actions for damages (as David reported, To catch a spy - sue him! (http://council.smallwarsjournal.com/showpost.php?p=126271&postcount=574)). As often stated, substantial differences often exist between US and UK legal precedents (to say nothing of differences in US and Euro laws).

Regards

Mike

PS: David - I hope you are having an enjoyable Boxing Day; to you and yours, the best from us. Main course yesterday looked something like this (http://www.donaldrussell.com/ribeye-roll.html) (though USAian, not Scottish). :)

[davidbfpo]

JMM rightly notes the sometimes acute differences between the legal position in the legal response to terrorism between the USA and the UK.

The UK government has proposed a number if changes to the law, known as a 'Green Paper on Justice and Security' and the main legal proposals are to change the procedures in civil courts and coroner's inquests regarding secret evidence. There are several non-legal changes regarding oversight of intelligence.

The consistently excellent blog on 'Watching Them, Watching Us' has a commentary:http://spyblog.org.uk/

Here is a taster:
Far too often, the "national security" classification of documents or witness testimony is really about preventing embarrassment to politicians, mandarins and apparatchiki in Whitehall etc.e.g. the torture claims case of Binyam Mohamed and the inquest into the "Friendly Fire" deaths of UK military personnel caused by trigger happy US Air Force ground attack aircraft pilots in Afghanistan etc.

So following the title 'sue him' may not last too long if HMG is successful. IIRC others have commented on the proposal's impact on coroner's inquests, notably for service personnel.

[jmm99]

See my post in another thread, Pres. Obama's Signing Statement on the NDAA (http://council.smallwarsjournal.com/showpost.php?p=130495&postcount=14).

Regards

Mike

[Polarbear1605]

Lessons from Haditha's Quiet Denouement
By Jonathan F. Keiler January 30, 2012 American Thinker
Six years ago, in Haditha, Iraq, in the wake of a deadly insurgent attack on their convoy, a Marine quick reaction force raided several houses from which they were taking fire. At the conclusion of the action it became clear that a number of Iraqi civilians had been killed, which was duly reported up the Marine Corps chain of command. The command determined that while the deaths were unfortunate, the engaged Marines had not violated the laws of war.
Then, early in 2006, a reporter from Time Magazine got wind of the incident, and all hell broke loose. An Army report condemned the Marines, Democrat Congressman John Murtha announced that Marines had killed Iraqi civilians in "cold blood," and the press in general had a field day. Under this new assault, the Marine Corps changed its tune and preferred court-martial charges against eight Marines, from enlisted men to battalion commander. These unfortunate men were accused of everything from obstruction of justice to murder.
Over the next two years the Haditha cases fell apart. One after another, the eight accused Marines were exonerated in Article 32 hearings, saw charges dropped in return for immunity, or were acquitted at trial. By 2008, only a single remaining Marine, Staff Sergeant Frank Wuterich, stood accused of unpremeditated murder in the case. His case lingered until last week, when it too died with a whimper. Wuterich pled guilty to a much-reduced charge of dereliction of duty. What did the military justice system finally determine was Wuterich's crime? He told his men to "shoot first and ask questions later." After all, his men were Marines, not policemen.
Wuterich received no jail time and no loss of pay, but he saw his rank reduced to private.
The Haditha incident's quiet denouement demonstrates what is right and wrong with America's military justice system, and the dangers of turning combat troops into a heavily armed constabulary.
Clearly Marine commanders' early instincts in the case were correct, but the Corps subsequently allowed itself to be bulldozed into a Dickensian legal farce. This was a function not only of bad publicity and political pressure, but of the increasingly legalistic nature of the armed forces in general. Like other areas of American society, the military is over-lawyered and increasingly hamstrung by its own rules and regulations.
Through most of American history the primary function of JAG officers was implementing commonplace military justice. JAGs prosecuted or defended soldiers, sailors, and Marines over the usual array of misbehavior endemic in any organization made up largely of aggressive young men. But after Vietnam, with the introduction of the all-volunteer military and correspondingly increasingly qualified enlistees, common criminal conduct declined. That might have led to a decline in JAG billets, but of course, just the opposite happened. Military lawyers, like their civilian counterparts, were quick to find other pressing needs for their services, until today, almost every military function is subject to some degree of legal review, including combat.
Beginning in the 1980s, during my own service as an Army JAG, the military introduced the concept of "operational law." Now JAGs would ensure that "all U.S. military operations complied strictly with the laws of war." Select JAGs moved from their offices into the TOCs (Tactical Operation Centers) of every unit from corps to battalion.
Perhaps there has been some positive benefit in placing JAGs close to the sharp end, but it's not very evident. Rather, at least anecdotally, it appears that the profusion of legal expertise in (or at least near) the trenches has led to increasingly complex rules of engagement, and the occasional suspension of otherwise necessary operations. Can a JAG viewing a video feed of a potential drone strike determine any better than the operational commander whether civilians would be put at risk?
Still, commanders in the field don't seem to mind having the JAGs around, because JAGs provide a level of insulation against legal jeopardy -- the same way corporate lawyers insulate executives. But is this really the way to fight wars?
The Haditha legal fiasco might help answer the question. The battalion involved in the Haditha incident had its own operational lawyer on hand, Marine Captain Randy Stone. While it appears that he was not consulted before the Marines launched their assault, in the wake of the incident, he vetted their accounts and determined that the laws of war had not been violated. For this Captain Stone found himself among the eight Marines initially charged! Stone endured an Article 32 investigatory hearing (the military equivalent of a grand jury), but eventually charges against him were dropped.
When the operational lawyers are being charged along with the soldiers and Marines they are supposed to be operationally advising, something indeed is wrong with the system.
The real problem is that one person's legitimate military operation is another's war crime, and the so-called "laws of war" have little to do with it. We saw this most compellingly in the idiotic and corrupt Goldstone investigation of Israel's 2008 Cast Lead Operation. There Israeli forces, which also operate in close consultation with their attorneys, were castigated for dozens of alleged war crimes, when, in fact, the Israelis acted with almost unprecedented care and forbearance during the conflict. Ultimately Judge Goldstone repudiated his own report, and even Hamas admitted that its own military losses were almost exactly what the IDF had claimed, but the damage had already been done. Israel's JAGs, no more than America's, did not make much of a difference.
America's conflicts in Iraq and Afghanistan (as with Israel's in Gaza) have been wars of relatively low intensity, against generally incompetent adversaries, which has allowed our forces to play around with operational law concepts without catastrophic consequences. Almost certainly soldiers and Marines have died or been unnecessarily maimed due to adherence to complex and unrealistic rules of engagement. But those are small tragedies that would be difficult to prove.

http://www.americanthinker.com/2012/01/lessons_from_hadithas_quiet_denouement.html#ixzz1k y7spSte

Comments?

[jmm99]

In Al-Zahrani v U.S (http://www.cadc.uscourts.gov/internet/opinions.nsf/6F1C608D9D1D95B7852579AB0053A8EF/$file/10-5393-1359343.pdf)., a D.C. Circuit panel held the Federal courts have no jurisdiction to hear "wrongful death claims" arising from detainees' deaths during detention:


Factual History

While the parties are in disagreement over the precise events that led to the deaths of appellants’ decedents, much of the general background is undisputed. Beginning in January of 2002, Yasser Al-Zahrani, Jr., a citizen of Saudi Arabia, and Salah Ali Abdullah Ahmed Al-Salami, Jr., a citizen of Yemen, were detained at the United States military base at Guantanamo Bay, Cuba, as “enemy combatants.” In 2004, under the then current procedure of the United States military, Combatant Status Review Tribunals reviewed the detention of the two and confirmed the earlier determination that both detainees were enemy combatants. On June 10 of 2006, both men, along with a third detainee, died. Although the cause of death is the subject of dispute in the current litigation, a Naval Criminal Investigative Service report concluded that the deaths were the result of suicide by hanging.
...
On January 7, 2009, the plaintiffs, as fathers of the two named decedents, filed an action against the United States, twenty-four named, current, or former officials of the United States, and one hundred unnamed “John Doe” officials of the United States, seeking money damages relating to the deaths of the two detainees and alleging that the defendants had subjected the decedents to torture, arbitrary detention, and ultimately, wrongful death. The defendants moved for the dismissal of plaintiffs’ by-then amended complaint. The district court dismissed the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief could be granted.

The district court's decision under Rule 12(b)(6) was limited to dismissal of the claim as pleaded. It would not be precedent for dismissal of other claims pleaded differently by other parties, allegedly arising from any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien by the U.S.

In October of 2006, Congress enacted the Military Commissions Act. Section 7 of the MCA included a two-pronged constraint on the subject-matter jurisdiction of all Federal courts, justices and judges, in cases brought by or on behalf of "an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

The exact structure of the statute is as follows:


(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005 - the DTA review process in the Court of Appeals], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
28 U.S.C. § 2241(e)(1) and (2).

Boumediene v. Bush, 553 U.S. 723, 787-92 (2008), held Section 7 unconstitutional. However, that case (an application for a writ of habeas corpus) focused on the Constitution's Suspension Clause (U.S. Const. art. I, § 9, cl. 2) as its sole rationale for holding Section 7 to be unconstitutional.

If Congress had elected not to deal with habeas writs, it might have passed a single-pronged statute along these lines:


Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005 - the DTA review process in the Court of Appeals] and except for applications for writs of habeas corpus, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The Suspension Clause clearly would not apply to this posited statute.

However, SCOTUS in Boumediene did not get into the fine points of severance and separability of the clauses in a two-pronged statute. Its conclusion as to what it held was:


Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007).

The Plaintiffs in al-Zahrani argued that Boumediene should be taken literally.

The D.C. Circuit panel disagreed. First, federal courts constitutionally have limited subject-matter jurisdiction, which can be further limited by legislation:


Analysis

Federal courts are courts of limited subject-matter jurisdiction. A federal court created by Congress pursuant to Article III of the Constitution has the power to decide only those cases over which Congress grants jurisdiction.
...
For a case or controversy to fall within the authority of an inferior court created under Article III of the Constitution, the Constitution must have supplied to the courts the capacity to take the subject matter and an Act of Congress must have supplied jurisdiction over it. ... Therefore, rather than proceed to weigh the adequacy of the complaint to state a claim, as did the District Court, we first examine the jurisdiction of the courts to entertain plaintiffs’ claims and find that jurisdiction wanting.

The D.C. Circuit panel quoted Section 7 (as above); and then dealt with Boumediene:


We have previously held in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), that the Act means what it says. It is true that the Supreme Court, in its review of our decision in Boumediene, found § 7 of the MCA to be constitutionally defective. Boumediene v. Bush, 553 U.S. 723, 787-92 (2008). However, the Boumediene appeal involved a decision applying the first subsection of § 7 governing and barring the hearing of applications for writs of habeas corpus filed by detained aliens. The Supreme Court’s conclusion that the statute unconstitutionally stripped the courts of jurisdiction to review habeas corpus petitions relied on the Suspension Clause of the Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. Subsection 2 of the MCA, which governs and bars the present litigation, has no effect on habeas jurisdiction. The Suspension Clause is not relevant and does not affect the constitutionality of the statute as applied in “treatment” cases.

We have said as much already. In Kiyemba v. Obama, 561 F.3d 509, 512 n.1 (D.C. Cir. 2009), we noted that the Supreme Court’s reference to § 7 in Boumediene did not specify a particular subsection of 28 U.S.C. § 2241(e), “but its discussion of the Suspension Clause clearly indicates it was referring only to that part of § 7 codified at § 2241(e)(1).” We reiterate our reasoning from Kiyemba. In that case, we recognized that the Supreme Court’s decision in Boumediene had stricken the bar to federal court jurisdiction over habeas claims, but as we noted above, further recognized that the reasoning of the Supreme Court applied only to the stripping of habeas jurisdiction. “[O]rdinarily a court should invalidate as little of an unconstitutional statute as necessary to bring it into conformity with the Constitution.” Kiyemba, 561 F.3d at 512. We therefore presume that the Supreme Court used a scalpel and not a bludgeon in dissecting § 7 of the MCA, and we uphold the continuing applicability of the bar to our jurisdiction over “treatment” cases.
...
Conclusion

For the reasons set forth above, we hold that 28 U.S.C. § 2241(e)(2) deprives this court of jurisdiction over appellants’ claims. We further hold that the Supreme Court did not declare § 2241(e)(2) unconstitutional in Boumediene and the provision retains vitality to bar those claims. We therefore conclude that the decision of the District Court dismissing the claims should be affirmed, although for a lack of jurisdiction under Rule 12(b)(1) rather than for failure to state a claim under Rule 12(b)(6).
By taking the jurisdictional approach, the D.C. Circuit panel effectively barred in the D.C. Circuit all "other actions" (except habeas, which has very limited remedial value) brought by or on behalf of an alien "against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

The plaintiffs' remedies are to request review en banc by all the D.C. Circuit judges, or review by SCOTUS (both discretionary with those courts).

Regards

Mike

[jmm99]

hearts and minds - a major "why" for the Haditha courts-martial. The use of legalisms and SJAs is driven by policy, not by those instruments of policy.

The juxtaposition of the D.C. Circuit decisions over the last two years, with the Haditha courts-martial, is to say the least "ironic". That is especially so in light of al-Zahrani and its refusal to hear "wrongful death claims" on behalf of deceased alien enemy combatants, present and future, regardless of their merits.

Discussion of the merits and materiality of "hearts and minds" belongs elsewhere. The dominant viewpoint in my little rural haven is pretty much that of Kyle Steiner from Restrepo (http://www.youtube.com/watch?v=ik9dVd5IutM).

Regards

Mike

[jmm99]

Mjid Shoukat Khan is a Pakistani national, who lived in the US on 9/11 and subsequently became a member of AQ. His plea shortened his military commission trial. We have (HT to Lawfare):

Statement by Chief Prosecutor Mark Martins (http://www.lawfareblog.com/2012/02/majid-khan-arraignment-5-prosecution-remarks-to-the-press/)
The Stipulation of Facts (http://www.lawfareblog.com/wp-content/uploads/2012/02/Khan-PE001-Stipulation-of-Fact.pdf)
Pre-Trial Agreement (http://www.lawfareblog.com/wp-content/uploads/2012/02/Khan-AE012-PTA.pdf)
Appendix A of the Pre-Trial Agreement (http://www.lawfareblog.com/wp-content/uploads/2012/02/Khan-AE013-Appendix-A.pdf)

From the Statement:


Chief Prosecutor Mark Martins

Remarks at Guantanamo Bay on 29 February 2012

Good afternoon. Today, following his initial appearance and arraignment, a military commission accepted the voluntary guilty plea of Mjid Shoukat Khan to serious violations of the law of armed conflict. Mr. Khans conviction, based upon irrefutable and lawfully obtained evidence, means that he will likely spend between 19 and 25 years in confinement measured from this day forward as punishment for his crimes. Because the supporting evidence also establishes, unassailably, that he joined with and materially supported al Qaeda, Mr. Khans conviction affirms that his years of detention to date have been grounded in strong legal authority.

Even for those who have long been familiar with Mr. Khans detention and unlawful belligerent status in connection with al Qaeda, and even for all of you who observed the proceedings today, it is instructive to examine the offenses of which Mr. Khan has now been convicted and to review the supporting evidence now on the record. Mjid Shoukat Khan is a Pakistani national who lived in the United States from 1996 to early 2002 before returning to Pakistan. The commission has now established to the highest standard of proof in our legal system that Mr. Khan joined with members of al Qaeda in Pakistan to plan and prepare attacks against diverse targets in the United States, Indonesia, and elsewhere after Sept. 11, 2001. ... (much more in the Statement)

Some irony might be found between today's successful MCA result and President Obama's Sec. 1022 Waivers of Military Detention yesterday.

WH 1022 Fact Sheet (http://www.lawfareblog.com/wp-content/uploads/2012/02/NDAA-Fact-Sheet.pdf)
Presidential Policy (http://www.lawfareblog.com/wp-content/uploads/2012/02/NDAA-Presidential-Policy-Directive.pdf)

Of course, the waivers are allowed, not required. So, it depends on who the decisions-makers are.

Regards

Mike

[tequila]

Some irony might be found between today's successful MCA result and President Obama's Sec. 1022 Waivers of Military Detention yesterday.


How many successful MCA results have there been, and the success rate, vice those of civilian trials?

[jmm99]

ready at hand because they are not material to my "Select Any of Three Paths Position" (see diagram & below).

1577

I suspect the datasets (MCA vs civilian) are not comparable anyway; and could be argued to support whatever position the arguer wants to support.

There have been a much greater number of Federal court cases. A high percentage of them have resulted in convictions. For example, we had the Detroit bomber recently plead guilty and receive a life sentence.

My suggestion is that both paths (MCA and Federal courts) should be open, if what you want to do is prosecute criminally. Which path to select depends on the facts of each case. A third option (acceptable to me) is not to prosecute criminally and simply detain for the duration of the armed conflict. Guidelines should be generalized and should not be straitjackets.

The left is very much opposed to MCA trials. The right is very much opposed to Federal court trials. The seven waiver situations have become something of a litmus test as to where a person stands politically.

The WH Fact Sheet (http://www.lawfareblog.com/wp-content/uploads/2012/02/NDAA-Fact-Sheet.pdf) makes it crystal that President Obama has decided that waivers shall be granted if any of the seven situations occur. That to me is the clear meaning of this language (emphasis added by JMM in all quotes below):


In addition, the President has decided to waive application of Section 1022 at the outset in a number of specific situations where it serves our national security interests, including by avoiding harm to our counterterrorism efforts. Specifically, as certified in the procedures issued today, the President has determined it is in the national security interests of the United States to waive the military custody requirement of Section 1022 in the following circumstances ... [listing the 7 waiver situations]. ...

So, from the Executive's point of view, it's a done deal.

The WH has spelled out the default COA following arrest by Federal law enforcement agencies, which is civilian law enforcement and clearly not military custody (from the WH Fact Sheet):


Under these procedures, a federal law enforcement agency arresting a terrorist suspect must notify the Attorney General when there is probable cause to believe the suspect is covered by the statute – or when a suspect might be a “covered person” -- and therefore potentially subject to the military custody requirement of Section 1022.

If the Attorney General initially agrees that there is probable cause to believe that the individual is covered by the statute, a careful review commences to determine whether there is clear and convincing evidence that the military custody requirement applies, and to determine whether the requirement should be waived in the interests of national security.

The Attorney General, in consultation and coordination with other senior national security officials, makes this determination based on the facts, circumstances, and all relevant information in the possession of the U.S. government.

The Attorney General may issue a final determination that an individual is a covered person who must be transferred to military custody only with the concurrence of Secretary of State, Secretary of Defense, Secretary of Homeland Security, Chairman of the Joint Chiefs of Staff, and Director of National Intelligence.

Before any transfer of an individual to military custody occurs, the Director of the FBI must determine that the transfer will not disrupt any ongoing intelligence collection or compromise any national security investigation, as is expressly contemplated by the statute.

Finally, even in the event that an individual is transferred to military custody, the statute expressly recognizes that there are a number of different options for the individual’s ultimate disposition. These options may include transfer back to law enforcement custody for trial in federal court; continued military detention until the end of the conflict with al-Qa’ida; transfer for trial by a military commission, or transfer to a foreign government. Therefore, as specifically envisioned by the NDAA, an individual required to be held in military custody under Section 1022 may ultimately be returned to law enforcement custody for criminal trial.

The "covered person" process (quoted above) does not extend outside of Federal law enforcement (WH Fact Sheet):


Under the implementing procedures, the process described above for determining whether a terrorist suspect is covered by the statute and potentially subject to military custody does not apply to individuals captured, arrested, detained by, or otherwise taken into the custody of the Department of Defense, state and local law enforcement agencies acting under their authorities, or a foreign government. In short, the “covered person” determination process applies only to those arrested by or taken into the custody of the FBI or another federal law enforcement agency.

However, those non-Federal LEA detainees are still subject to the seven situations where military custody has been waived (WH Fact Sheet):


• When placing a foreign country’s nationals or residents in military custody will impede counterterrorism cooperation;

• When a foreign government indicates that it will not extradite or transfer suspects to the United States if the suspects may be placed in military custody;

• When an individual is a U.S. lawful permanent resident who is arrested in this country or arrested by a federal agency on the basis of conduct taking place in this country;

• When an individual has been arrested by a federal agency in the United States on charges other than terrorism offenses (unless such individual is subsequently charged with one or more terrorism offenses and held in federal custody in connection with those offenses);

• When an individual has been arrested by state or local law enforcement, pursuant to state or local authority, and is transferred to federal custody;

• When transferring an individual to military custody could interfere with efforts to secure an individual’s cooperation or confession; or

• When transferring an individual to military custody could interfere with efforts to conduct joint trials with co-defendants who are ineligible for military custody or as to whom a determination has already been made to proceed with a prosecution in a federal or state court.

In any given case, the facts will be to some extent indeterminate. The "law" (here the "seven brides for seven brothers") will also be indeterminate. It depends on the policy viewpoint of the decision-maker.

The WH Fact Sheet ends on an "all options are on the table" note:


Scope and Impact of Section 1022:

It is important to recognize that the scope of the new law is limited. Section 1022 does not apply to U.S. citizens, and the President has decided to waive its application to lawful permanent residents arrested in the United States. An individual required to be held in military custody under Section 1022 may be returned to law enforcement custody for criminal trial. In addition, Section 1022 does not change the FBI’s authorities to respond to terrorism threats and these procedures do not apply to any individuals held in the custody of the Department of Defense, state and local law enforcement agencies acting under their authorities, or a foreign government.

Finally, a determination by the executive branch that the military custody requirement of the Section 1022 does not apply or should be waived in a particular context does not affect the executive branch’s discretion to use any lawful disposition option that is in the interest of U.S. national security. Such a determination means only that there is no statutory requirement to place an individual in military custody.

The result here is compatible with my "Select Any of Three Paths Position"; so, I've no personal insult to avenge. ;) The last quoted sentence is a classic in legal draftsmanship to arrive at a point 180 degrees from where one started.

I did find irony in this "Left Hand" of the Obama Administration being issued at the same time as its "Right Hand" announcing its success under the MCA.

Regards

Mike

[jmm99]

The AP, Gitmo war crimes court surprises some observers (http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2012/03/05/international/i000429S28.DTL&ao=all) (By BEN FOX, March 5, 2012), has been told that about 35 Gitmo prisoners will probably be tried by military commissions. Seven MCA convictions have been obtained by jury verdicts or guilty pleas.

A majority of the remaining 171 prisoners will be not be prosecuted; but, they will be held in military detention until the USG declares the 2001 AUMF's armed conflict ended (e.g., the 1964 Tonkin Gulf AUMF was terminated by Congress), or until individual detainees are released by the Executive.

From the AP article:


Officials have said that about 35 prisoners at Guantanamo could eventually be tried in the first U.S. war crimes tribunals since the World War II era. That group includes five men accused of plotting the Sept. 11 attacks who are expected to be arraigned later this year on charges that carry a potential death penalty. It also includes a Saudi accused of helping set up the deadly bombing of the USS Cole in 2000 in another capital case.

But lower-level figures so far have appeared to fare better. Khan pleaded guilty to charges that included murder, attempted murder and spying for helping al-Qaida plot attacks in the U.S. and delivering money for a deadly hotel bombing in Indonesia. He will receive a sentence that cannot exceed 19 years, if he helps prosecute other prisoners, and could end up receiving less.

Omar Khadr pleaded guilty to throwing a grenade that mortally wounded an American soldier and received a sentence capped at eight years. He could be sent back to his native Canada, where some expect he will be quickly released. The Toronto-born Khadr was 15 when he was captured, and his advocates say he was abused early in his captivity. Still, he could have received a life sentence at the commission, and a civilian U.S. court would likely have given him one.

Two other men who pleaded guilty to aiding al-Qaida also secured deals that will get them home in the next several years. Salim Hamdan, who was convicted by a military jury of aiding terrorism in his work as a driver for Osama bin Laden, was sentenced to 5 1/2 years, including time served, and is back home in Yemen, reportedly working as a taxi driver.

The exception has been Ali Hamza al-Bahlul, who helped al-Qaida produce propaganda and handled media relations for bin Laden and refused to participate in his trial. He was convicted in November 2008 of multiple counts of conspiracy, solicitation to commit murder and providing material support for terrorism, and is serving a life sentence at Guantanamo.

Under the Intelligence Authorization Act, the DNI is required to issue a Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba (http://dni.gov/reports/March%202012%20Summary%20of%20Reengagement.pdf). As of as of 29 December 2011, 599 detainees had been released by transfer with a confirmed reengagement rate of 15.9%, and an added 12% suspected.

Here is the summary:

http://www.lawfareblog.com/wp-content/uploads/2012/03/DNI-Data.jpg

Note that none of these transferred detainees were released by compulsion of a Federal court. The DC Circuit has specifically held that Federal courts do not have jurisdiction to compel the Executive to release a non-citizen Gitmo detainee. Thus, the orders granting habeas to detainees have been "advisory opinions" in effect.

Regards

Mike

[Surferbeetle]

Mike,

So many interesting things, so little time...:wry:

The rule of law assessments by my legal beagle CA brothers & sisters were always very interesting.

Wonder if this is applicable, helpful, correct?

Guiding Principles for Stabilization and Reconstruction (http://www.usip.org/publications/guiding-principles-stabilization-and-reconstruction), Section 7 Rule of Law

Regards,

Steve

[jmm99]

I thought this thread, Rule of Law in Iraq & Afghanistan (http://council.smallwarsjournal.com/showthread.php?p=133138#post133138), was a better place for a Civil Affairs discussion of the Rule of Law. So, Surf's up - here (http://council.smallwarsjournal.com/showpost.php?p=133138&postcount=67).

Regards

Mike

[jmm99]

The 9th Circuit has had a Damascus Moment. HT to Lawfare.

Ninth Circuit (En Banc) Vacates Millenium Bomber’s 22-Year Sentence as Too Lenient (http://www.ca9.uscourts.gov/datastore/opinions/2012/03/12/09-30000.pdf):


The government appeals the sentence imposed by the district court upon Ahmed Ressam, the so-called “Millennium Bomber,” as substantively unreasonable. We review a challenge of that nature under what the Supreme Court has described as “the familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).

Ressam was convicted by a jury on nine counts of criminal activity[1] in connection with his plot to carry out an attack against the United States by detonating explosives at the Los Angeles International Airport, commonly known and referred to by its airport code “LAX.” His plan was for the attack to occur on the eve of the new millennium, December 31, 1999.

[1] Specifically, Ressam was convicted of (1) conspiring to commit an act of terrorism transcending national boundaries, in violation of 18 U.S.C. § 2332b(a)(1)(B); (2) conspiring to place an explosive in proximity to a terminal, in violation of 18 U.S.C. § 33; (3) possession of false identification documents in connection with a crime of violence, in violation of 18 U.S.C. § 1028(a)(4) and (b)(3)(B); (4) use of a fictitious name for admission into the United States, in violation of 18 U.S.C. § 1546; (5) making false statements on a customs declaration, in violation of 18 U.S.C. § 1001; (6) smuggling explosives into the United States contrary to law, in violation of 18 U.S.C. § 545; (7) transportation of explosives, in violation of 18 U.S.C. §§ 842(a)(3)(A) and 844(a); (8) possession of an unregistered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871; and (9) carrying an explosive during the commission of a felony, in violation of 18 U.S.C. § 844(h)(2).

The advisory Sentencing Guidelines imprisonment range for Ressam’s convictions was calculated by the district court to be 65 years to life. That calculation has not been challenged by either party. The district court sentenced Ressam to a term of imprisonment of 22 years, plus five years of supervised release.

Upon our review of the record, we have a definite and firm conviction that the district court committed a clear error of judgment in sentencing Ressam as it did. As a result, we conclude that the sentence imposed by the district court was substantively unreasonable. We vacate the sentence and remand the case to the district court for resentencing.

Regards

Mike

[jmm99]

SCOTUS (in today's orders (http://www.supremecourt.gov/orders/courtorders/061112zor.pdf)) denied certiorari without comments in seven Gitmo habeas cases: Latif, Al-Bihani, Uthman, Almerfedi, Al-Kandari, Al-Madhwani, and Al-Alwi.

In all of these cases, the DC Circuit held against the detainees' claims of illegal detention. Thus, the DC Circuit decisions will stand.

SCOTUS also denied review in Lebron v. Rumsfeld (a civil action by Jose Padilla). In that case, the 4th Circuit held against Padilla's claims.

Two posts at Lawfare briefly discuss today's orders by SCOTUS (link (http://www.lawfareblog.com/2012/06/scotus-denies-cert-in-seven-gtmo-habeas-cases-and-lebron-too/) & link (http://www.lawfareblog.com/2012/06/d-c-circuit-1-guantanamo-bar-0/)).

Regards

Mike

[davidbfpo]

From a friend a commentary on 'Caught between human rights and terrorism' looking at India and Malaysia:http://www.sunday-guardian.com/analysis/caught-between-human-rights-and-terrorism

The cited article from a Singapore think-tank is:http://www.rsis.edu.sg/publications/Perspective/RSIS0882012.pdf

[jmm99]

This thread started 5 years ago with Hamdan. So, for old times sake, a 5-part post on the DC Circuit opinion reversing the lower courts and setting aside the "material support of terrorism" charge upon which Hamdan was convicted.

Opinion for the Court (http://www.lawfareblog.com/wp-content/uploads/2012/10/Hamdan-D.C.-Circuit.pdf) filed by Circuit Judge KAVANAUGH, with whom Chief Judge SENTELLE joins except as to footnote 6, and with whom Senior Judge GINSBURG joins except as to footnotes 3, 6, and 8.

Introduction

It is most important to understand that this opinion does not question either the direct action "kill" option, or the "capture, detain & interrogate" option. In fact, it endorses indefinite detention for the duration.


pp.2-4 pdf

KAVANAUGH, Circuit Judge: The United States is at war against al Qaeda, an international terrorist organization. ... That war continues.

In war, when the United States captures or takes custody of alien enemy combatants or their substantial supporters, it may detain them for the duration of hostilities. Moreover, the United States may try unlawful alien enemy combatants before military commissions for their war crimes. See Hamdi v. Rumsfeld, 542 U.S. 507, 518-24 (2004); Ex parte Quirin, 317 U.S. 1, 26-45 (1942).
...
Hamdan was not just detained at Guantanamo as an enemy combatant. He was also accused of being an unlawful enemy combatant and was tried and convicted by a military commission for “material support for terrorism,” a war crime specified by the Military Commissions Act of 2006. See 10 U.S.C. § 950t(25); see also 10 U.S.C. § 950v(b)(25) (2006) (previous codification of same provision). Hamdan’s conviction was based on actions he took from 1996 to 2001 – before enactment of the Military Commissions Act. At the time of Hamdan’s conduct, the extant federal statute authorized and limited military commissions to try violations of the “law of war.” 10 U.S.C. § 821.

Issues and Conclusions

The Court nicely summarized the issues and its conclusions - as to which, all three judges agreed.


pp.4-5 pdf

This appeal presents several issues.

First, is the dispute moot because Hamdan has already served his sentence and been released from U.S. custody?

Second, does the Executive have authority to prosecute Hamdan for material support for terrorism on the sole basis of the 2006 Military Commissions Act – which specifically lists material support for terrorism as a war crime triable by military commission – even though Hamdan’s conduct occurred from 1996 to 2001, before enactment of that Act?

Third, if not, did the pre-existing statute that authorized war-crimes military commissions at the time of Hamdan’s conduct – a statute providing that military commissions may try violations of the “law of war,” 10 U.S.C. § 821 – proscribe material support for terrorism as a war crime?

We conclude as follows:

First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.

Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

Thus, acts committed before the 2006 MCA was enacted (e.g., the events of 9/11) are subject to the international law standard for war crimes imposed by then-current 10 U.S.C. § 821 !!

The Rule and Exceptions

The Court's rule is clear; but so are its stated exceptions to the rule.


pp. 9, 11 pdf

Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated. [1] ...


[1] Our judgment would not preclude detention of Hamdan until the end of U.S. hostilities against al Qaeda. Nor does our judgment preclude any future military commission charges against Hamdan – either for conduct prohibited by the “law of war” under 10 U.S.C. § 821 or for any conduct since 2006 that has violated the Military Commissions Act. Nor does our judgment preclude appropriate criminal charges in civilian court. Moreover, our decision concerns only the commission’s legal authority. We do not have occasion to question that, as a matter of fact, Hamdan engaged in the conduct for which he was convicted.
... At Guantanamo, Hamdan not only was detained as an enemy combatant but also was eventually charged with one count of conspiracy and was to be tried before a military commission as an unlawful enemy combatant who had committed war crimes. [2] ....


[2] Generally speaking, enemy soldiers or combatants are considered unlawful enemy combatants when they, for example, join or support an organization waging unlawful war or they commit specific “acts which render their belligerency unlawful.” Ex parte Quirin, 317 U.S. 1, 31 (1942). For purposes of the war against al Qaeda, this concept is now defined by statute. See 10 U.S.C. § 948a.
....
When his sentence ended later in 2008, the war against al Qaeda had not ended. Therefore, the United States may have continued to detain Hamdan as an enemy combatant. See Hamdan, 548 U.S. at 635; Hamdi v. Rumsfeld, 542 U.S. 507, 518-24 (2004). But in November 2008, Hamdan was transferred by the U.S. Military to Yemen, and he was then released on or about January 8, 2009, in Yemen. ...

Those who are now saying that non-prosecuted detainees must now be released are woofing up the wrong tree.

- cont -

[jmm99]

The Court dealt with the issue of Mootness (pp.11-13 pdf) - discussion omitted here. The bulk of the decision deals with pre-MCA law and retroactivity of the 2006 MCA (pp.13-27 pdf). Before going there, two caveats should be recognized. Both caveats apply to the relative supremacy of interenational law vice the powers guaranteed by the US Constitution and statutes enacted thereunder.

Caveat One: Independent Article I Congressional War Powers

The other two judges decided not to discuss this.


pp.15-16, note 6 pdf

[6] Judge Kavanaugh alone concurs in this footnote.

Because the question of Congress’s Article I power to make material support for terrorism a war crime has been thoroughly briefed and argued, because that question is logically antecedent to the ex post facto issue, and because of the importance of deciding wartime cases in a way that provides clear guidance, Judge Kavanaugh believes it appropriate to address the antecedent question – as the Supreme Court itself did in resolving similar antecedent issues in both Hamdi and Hamdan. See Hamdi, 542 U.S. at 516-24, 533-34 (resolving several “threshold” questions, including whether enemy combatants may be detained for the duration of hostilities, before concluding that the procedures used to detain Hamdi were insufficient); Hamdan, 548 U.S. at 593-94 (resolving antecedent question whether relevant statutes generally authorized military commissions, before concluding that the commission in Hamdan’s case contravened separate statutory limits).

Here, Judge Kavanaugh would conclude that Congress has authority under Article I, § 8 to establish material support for terrorism as a war crime that, when committed by an alien, may be tried by military commission. Although material support for terrorism is not yet an international-law war crime, Congress’s war powers under Article I are not defined or constrained by international law. The Declare War Clause and the other Article I war powers clauses do not refer to international law, unlike the Define and Punish Clause. Moreover, Congress has long prohibited war crimes beyond those specified by international law. See 10 U.S.C. § 904 (aiding the enemy); id. § 906 (spying); cf. Quirin, 317 U.S. 1.

The U.S. Constitution does not give the international community – either directly, or indirectly through the vehicle of international law – a judicially enforceable veto over Congress’s exercise of its war powers. Put simply, the United States may be a leader in the international community, not just a follower, when Congress authorizes war against a terrorist organization or makes crimes such as material support for terrorism war crimes triable by military commission. To be sure, it is often prudent for Congress and the President to coordinate closely with the international community and pay careful attention to international law when authorizing war and enacting war crimes. But those policy factors, political realities, and international-law considerations are not constitutional constraints incorporated into the Article I war powers clauses and thereby enforceable in U.S. courts.

Caveat Two: Customary International Law

All three judges agreed that "customary international law" is a sticky, tricky wicket.


pp.22-24

Customary international law is a kind of common law; it is the body of international legal principles said to reflect the consistent and settled practice of nations. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation”). It is often difficult to determine what constitutes customary international law, who defines customary international law, and how firmly established a norm has to be to qualify as a customary international law norm. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).[10]


[10] Although customary international law, including the customary international law of war, contains some well-defined prohibitions at the core, the contours of customary international law are imprecise. That imprecision provides good reason for Congress and the Executive, when they want to outlaw violations of perceived international-law norms, to enact statutes outlawing specific conduct, rather than simply prohibiting violation of something as vague as “international law” or “the law of nations” or the “law of war.” Congress has done so in many recent statutes, including the Military Commissions Act of 2006. Pub. L. No. 109-366, 120 Stat. 2600 (2006). See also War Crimes Act of 1996, Pub. L. No. 104-192, 110 Stat. 2104; Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992); Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891.

At the same time, the imprecision of customary international law calls for significant caution by U.S. courts before permitting civil or criminal liability premised on violation of such a vague prohibition. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). A general prohibition against violations of “international law” or the “law of nations” or the “law of war” may fail in certain cases to provide the fair notice that is a foundation of the rule of law in the United States. Therefore, as the Supreme Court required in an analogous context in Sosa, and as the plurality suggested in Hamdan, imposing liability on the basis of a violation of “international law” or the “law of nations” or the “law of war” generally must be based on norms firmly grounded in international law. See Sosa, 542 U.S. at 724-38; Hamdan, 548 U.S. at 602-03 & n.34, 605 (plurality). In this case, the asserted norm has no grounding in international law, much less firm grounding.

Those caveats are both valid in my opinion.

- cont. -

[jmm99]

This brings us to the first of two parts dealing with the main body of the Court's decision - pre-2006 Law under 10 U.S.C. § 821 (pp. 13-14, 19-21 pdf)

General "Law of War" Violations - and Two Specifics: Spying and Aiding the Enemy - 10 U.S.C. § 821


pp.13-14 pdf

Under a law now codified at 10 U.S.C. § 821, Congress has long authorized the Executive to use military commissions to try war crimes committed by the enemy. See Ex parte Quirin, 317 U.S. 1 (1942). That statute authorizes military commissions to try violations of the “law of war” – a term, as we explain below, that has long been understood to mean the international law of war. See Hamdan v. Rumsfeld, 548 U.S. 557, 603, 610 (2006) (plurality); id. at 641 (Kennedy, J., concurring); Quirin, 317 U.S. at 27-30, 35-36. Two other longstanding statutes separately authorize military commission prosecutions for spying and aiding the enemy. See 10 U.S.C. §§ 904, 906.[4]


[4] The “aiding the enemy” proscription in 10 U.S.C. § 904, which was first codified in the Articles of War of 1806, see WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 102-03, 981 (rev. 2d ed. 1920), generally requires breach of a duty of loyalty as well as aid to the enemy. See Hamdan, 548 U.S. at 600-01 n.32 (plurality) (“aiding the enemy may, in circumstances where the accused owes allegiance to the party whose enemy he is alleged to have aided, be triable by military commission”). The breach of loyalty requirement is made explicit in the 2006 Military Commissions Act, which re-codified the crime. 10 U.S.C. § 950t(26) (“Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.”) (emphasis added).

"Law of War" under 10 U.S.C. § 821 = "International Law"


pp. 19-21 pdf

Analysis of this issue begins by determining what body of law is encompassed by the term “law of war” in 10 U.S.C. § 821. The Supreme Court’s precedents tell us: The “law of war” referenced in 10 U.S.C. § 821 is the international law of war.[8]


[8] It has been suggested that courts should not use international law as a free-floating tool to alter how the courts would otherwise interpret a domestic U.S. statute when the statute does not incorporate or refer to international law. See Al-Bihani v. Obama, 619 F.3d 1, 5-8 (D.C. Cir. 2010) (Brown, J., concurring in denial of rehearing en banc); id. at 9-23 (Kavanaugh, J., concurring in denial of rehearing en banc). But that interpretive issue is not implicated in this case. As Congress has often done, and as explained in an Al-Bihani concurrence, Congress here explicitly referred to international law and explicitly incorporated international norms into domestic U.S. law in 10 U.S.C. § 821 by means of the express cross-reference to the “law of war.” See id. at 10, 13-15 (Kavanaugh, J., concurring in denial of rehearing en banc) (explaining that distinction).

See Hamdan, 548 U.S. at 603 (plurality) (act is law of war offense when “universal agreement and practice both in this country and internationally” recognize it as such) (internal quotation marks omitted); id. at 610 (analyzing international sources to determine whether conspiracy was “recognized violation of the law of war”); id. at 641 (Kennedy, J., concurring) (“the law of war” referenced in 10 U.S.C. § 821 “derives from rules and precepts of the law of nations” and is “the body of international law governing armed conflict”) (internal quotation marks omitted); Quirin, 317 U.S. at 29 (“law of war” referenced in 10 U.S.C. § 821 is a “branch of international law”); id. at 27-28 (The “law of war” is “that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.”); see also Instructions for the Government of Armies of the United States in the Field (Lieber Code), General Orders No. 100, arts. 27 & 40 (Apr. 24, 1863) (describing the law of war as a “branch” of the “law of nations”); O.L.C. Memorandum from Patrick F. Philbin to Alberto R. Gonzales 5 (Nov. 6, 2001) (“laws of war” are “considered a part of the ‘Law of Nations’”); id. at 29 (“the term ‘law of war’ used in 10 U.S.C. § 821 refers to the same body of international law now usually referred to as the ‘laws of armed conflict’”). [9]


[9] See also Curtis A. Bradley & Jack L. Goldsmith, The Constitutional Validity of Military Commissions, 5 GREEN BAG 2d 249, 256 (2002) (“As noted above, President Bush’s Military Order, 10 U.S.C. § 821, and Supreme Court precedent all indicate that the jurisdiction of military commissions extends (at least) to violations of the international laws of war.”); Maj. Michael A. Newton, Continuum Crimes: Military Jurisdiction Over Foreign Nationals Who Commit International Crimes, 153 MIL. L. REV. 1, 21 (1996) (“Therefore, the entire scope of history and American jurisprudence compel the conclusion that Article 21 grants jurisdiction only over violations of the international laws of war. The text of Article 21 leads to the same conclusion.”); Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 AM. J. INT’L L. 328, 334 (2002) (“This statutory language” in 10 U.S.C. § 821 “acknowledges that the jurisdiction of military commissions is defined by the norms of the customary law of nations, namely, the law of war.”).

Even outside the context of 10 U.S.C. § 821, the term “law of war” in the U.S. Code and precedent generally refers to the international law of war. See Madsen v. Kinsella, 343 U.S. 341, 354 (1952) (The “law of war” includes that part of “the law of nations” which “defines the powers and duties of belligerent powers.”); Prize Cases, 67 U.S. 635, 667 (1863) (“The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war.”); Hearings on H.R. 2498 (UCMJ) Before the H. Comm. on Armed Servs., 81st Cong. 959 (1949) (Representative Overton Brooks, Chairman, House Subcommittee No. 1 on Armed Services: “What is a law of war?” Colonel John P. Dinsmore: “‘Law of war’ is set out in various treaties like the Geneva convention and supplements to that.” Representative Brooks: “International law.” Colonel Dinsmore: “Yes, sir.”); U.S. ARMY JAG, LAW OF WAR HANDBOOK 20 (Maj. Keith E. Puls ed., 2005) (identifying “customary international law” – that is, “the ‘unwritten’ rules that bind all members of the community of nations” during war as one of the two major sources of the law of war, along with conventional international law); MANUAL FOR COURTS-MARTIAL UNITED STATES, at I-1 (2012) (“The sources of military jurisdiction include the Constitution and international law. International law includes the law of war.”).

Judge Ginsberg withheld his agreement from footnote 8. Otherwise, all three judges agreed.

- cont. -

[jmm99]

The second part of the decision's main body was devoted to answering the historical question: "Whether material support for terrorism was an international-law war crime when Hamdan committed his acts in 1996-2001?" (pp.22-27 pdf).

The Court looked to a four part historical review.

Major Conventions on the Law of War


p.22 pdf

It is true that international law establishes at least some forms of terrorism, including the intentional targeting of civilian populations, as war crimes. See, e.g., Rome Statute of the International Criminal Court art. 8(2)(b), July 17, 1998, 2187 U.N.T.S. 90; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV), art. 33, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; COMMISSION OF RESPONSIBILITIES, CONFERENCE OF PARIS 1919, VIOLATION OF THE LAWS AND CUSTOMS OF WAR 17 (Clarendon Press 1919) (the Allied Nations condemned Germany for “the execution of a system of terrorism” after World War I).

But the issue here is whether material support for terrorism is an international-law war crime. The answer is no. International law leaves it to individual nations to proscribe material support for terrorism under their domestic laws if they so choose. There is no international-law proscription of material support for terrorism.

To begin with, there are no relevant international treaties that make material support for terrorism a recognized international-law war crime. Neither the Hague Convention nor the Geneva Conventions – the sources that are “the major treaties on the law of war” – acknowledge material support for terrorism as a war crime. See Hamdan, 548 U.S. at 604 (plurality); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907, 36 Stat. 2277.

Prominent Modern International Tribunals


p.24 pdf

The 1998 Rome Statute of the International Criminal Court, which catalogues an extensive list of international war crimes, makes no mention of material support for terrorism. See Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90. Nor does the Statute of the International Tribunal for the Former Yugoslavia, the Statute of the International Tribunal for Rwanda, or the Statute of the Special Court for Sierra Leone. See Statute of the International Tribunal for the Former Yugoslavia, adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159, 1192; Statute of the International Tribunal for Rwanda, adopted by S.C. Res. 955, U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598, 1602 (includes terrorism itself as a crime); Statute of the Special Court for Sierra Leone art. 3(d), Jan. 16, 2002, 2178 U.N.T.S. 138 (same). Nor have any international tribunals exercising common-law-type power determined that material support for terrorism is an international-law war crime.

Leading International Law Experts


pp.24-25

Commentators on international law have similarly explained that material support for terrorism is not an international-law war crime. See, e.g., ANDREA BIANCHI & YASMIN NAQVI, INTERNATIONAL HUMANITARIAN LAW AND TERRORISM 244 (2011) (“there is little evidence” that a proscription of “material support for terrorism” is “considered to be part of the laws and customs of war”). Nor is the offense of material support for terrorism listed in the JAG handbook on the law of war. See U.S. ARMY JAG, LAW OF WAR HANDBOOK (Maj. Keith E. Puls ed., 2005); see also Jennifer K. Elsea, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice 12 (CRS, updated Sept. 27, 2007) (“defining as a war crime the ‘material support for terrorism’ does not appear to be supported by historical precedent”) (footnote omitted).

US Civil War Cases


pp. 26-27

The Government latches on to a few isolated precedents from the Civil War era to prop up its assertion that material support for terrorism was a pre-existing war crime as of 2001 for purposes of 10 U.S.C. § 821. There are several independent reasons that those cases fail to support the Government’s argument.

First, the Civil War cases did not involve any charges of material support for terrorism. Instead, several cases involve guerillas who were punished for taking up “arms” as “insurgents” – that is, for direct attacks rather than material support. See, e.g., G.O. No. 15, HQ, Dep’t of the Mississippi (Apr. 3, 1862), 1 OR ser. II, at 472-76. Others were convicted of “joining, aiding and assisting a band of robbers and bandits” – in other words, what we would likely call aiding and abetting, not material support. G.O. No. 19, HQ, Dep’t of the Mississippi (Apr. 24, 1862), 1 OR ser. II, at 478. In short, those precedents are at best murky guidance here. Cf. Hamdan, 548 U.S. at 602 (plurality) (requiring “plain and unambiguous” precedent).

Second, those Civil War commissions were in part military tribunals governing certain territory – which are a separate form of military commission subject to a separate branch of law, and not the kind of law-of-war military commission at issue here. As others have suggested, their precedential value is therefore limited. See Hamdan, 548 U.S. at 596 n.27; id. at 608 (plurality) (The “military commissions convened during the Civil War functioned at once as martial law or military government tribunals and as law-of-war commissions. Accordingly, they regularly tried war crimes and ordinary crimes together.”) (citation omitted).

Third, and perhaps most to the point, those cases do not establish that material support for terrorism was a war crime recognized under international law as of 1996 to 2001 when Hamdan committed his conduct, which is the relevant inquiry under 10 U.S.C. § 821. The Government contends that those Civil War precedents illuminate what it calls the “U.S. common law of war” – not the international law of war. But the statutory constraint here imposed by 10 U.S.C. § 821 is the international law of war. As the Government told the Supreme Court in Quirin, “This ‘common law of war’ is a centuries-old body of largely unwritten rules and principles of international law which governs the behavior of both soldiers and civilians during time of war.” Brief for the United States at 29, in Quirin, 317 U.S. 1 (emphasis added) (citation omitted). To be sure, U.S. precedents may inform the content of international law. But those Civil War precedents fail to establish material support for terrorism as a war crime under the international law of war as of 1996 to 2001. And even the Government admits that material support for terrorism was not an international-law war crime as of 1996 to 2001.

QED.

- cont. -

[jmm99]

This is my "Op-Ed".

What Effect on Current and Future MCA Prosecutions ?

1. For post-2006 actions alleged to be unlawful, the 2006 MCA (as revised in 2009) will provide the roadmap for specific charges - including "material support of terrorism".

2. For pre-2006 MCA Act actions alleged to be unlawful, the scope of military commission jurisdiction will be limited to war crimes recognized under international law at the time of the actions.

3. Effect on current 9/11 prosecutions of KSM, etc.- ??

What Effect on Future Strategy and Tactics ?

1. The direct action "kill" option will avoid a lot of legal complicatiuons.

2. If the "capture" option, then indefinite detention and interrogation will also avoid many legal complications.

3. In effect, why plan to prosecute these people at all ?

Regards

Mike

[davidbfpo]

I am sure this incident, a CIA kidnapping in Milan, Italy that went very wrong, has appeared on SWC before. Reminder:
The case centered on the CIA's "extraordinary rendition" of an Egyptian citizen, known as Abu Omar, from Milan to Cairo for interrogation. Upon release three years later, he claimed he was tortured and showed reporters multiple scars on his back.

Italian counterterrorism police were listening when he called his wife in Milan and described his kidnapping. With those details, they were easily able to track down the cell phone calls of the CIA snatch team and and trace the phones to their hotels and rental cars.

Now the Italian court has convicted in absentia three diplomats, including the CIA Station chief:http://spytalkblog.blogspot.co.uk/2013/02/cia-station-chief-convicted-in-italy.html

[jmm99]

HT to Wells Bennett at Lawfare, United States v. Daoud: Court Orders Disclosure of FISA Documents to Cleared Defense Counsel (http://www.lawfareblog.com/2014/01/united-states-v-daoud-court-orders-disclosure-of-fisa-documents-to-cleared-defense-counsel/#.UumqZp0o6Rs)(by Wells Bennett, January 29, 2014). The Court's opinion is here (http://www.lawfareblog.com/wp-content/uploads/2014/01/daoud-FISA.pdf).

Summary of case:


Defendant Adel Daoud is charged with attempting to use a weapon of mass destruction in violation of 18 U.S.C. § 2332a(a)(2)(D) and attempting to destroy a building by means of explosive in violation of 18 U.S.C. § 844(i). Daoud filed a motion for disclosure of Foreign Intelligence Surveillance Act of 1978 (“FISA”) related material and to suppress the fruits or derivatives of electronic surveillance and any other means of collection conducted pursuant to FISA or other foreign intelligence gathering[51]. This Court heard oral argument on this, and other motions, on 1/3/2014. For the reasons discussed below, the motion is granted in part and denied in part.

and Summary of decision:


In sum, this Court grants disclosure to cleared defense counsel of the FISA application materials and such disclosure will be made under an appropriate protective order. By this Order, this Court does not express any opinion with respect to the constitutionality of FISA or its procedures. Nor has this Court lost sight of the potential Classified Information Procedures Act (“CIPA”) issues that may be implicated by this disclosure, and resolution of those issues may result in the redaction of certain portions of the material. Lastly, this Court denies Daoud’s request to suppress all fruits of FISA surveillance without prejudice. Counsel for Daoud must present to the Court documentation of current valid security clearances at or before the next status hearing on February 6, 2014

This decision is ground-breaking though it is very consistent with the philosophy of Brady v Maryland (http://en.wikipedia.org/wiki/Brady_v._Maryland) and "Brady Disclosure (http://en.wikipedia.org/wiki/Brady_disclosure)". That being said, one suspects that the adverse public reaction to NSA metadata collection has much to do with the judge's decision.

Here is the basis for the Court's decision and rejection of a "state secrets" privilege in this fairly run-of-the mill terrorist case:


Attorney General Eric H. Holder, Jr., filed an affidavit stating under oath that disclosure of such materials would harm national security. See 50 U.S.C. §§ 1806(f), 1825(g). Attorney General Holder’s claim of privilege is supported by a classified declaration from an FBI official. Pursuant to FISA, the filing of an Attorney General affidavit triggers an in camera, ex parte procedure to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. 50 U.S.C. §§ 1806(f), 1825(g).

Once the in camera, ex parte procedure is triggered, the reviewing court may disclose such materials “only where such disclosure is necessary to make an accurate determination of the Case: 1:12-cr-00723 Document #: 92 Filed: 01/29/14 Page 3 of 5 PageID #:670 legality of the surveillance.” 50 U.S.C. § 1806(f); see also 50 U.S.C. § 1825(g). The Seventh Circuit has previously reviewed de novo the probable cause determination of the FISC, United States v. Dumeisi, 424 F.3d 526, 578 (7th Cir. 2005), and therefore this Court rejects the government’s request for deferential review. The factual averments and certifications used to support the government’s FISA warrant application are reviewed for clear error. United States v. Rosen, 447 F.Supp.2d 538, 546 (D.Va. 2006).

Here, counsel for defendant Daoud has stated on the record that he has top secret SCI (sensitive compartmented information) clearance. Assuming that counsel’s clearances are still valid and have not expired, top secret SCI clearance would allow him to examine the classified FISA application material, if he were in the position of the Court or the prosecution.

Furthermore, the government had no meaningful response to the argument by defense counsel that the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances. The government’s only response at oral argument was that it has never been done. That response is unpersuasive where it is the government’s claim of privilege to preserve national security that triggered this proceeding.

Without a more adequate response to the question of how disclosure of materials to cleared defense counsel pursuant to protective order jeopardizes national security, this Court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel. Upon a showing by counsel, that his clearance is still valid, this Court will allow disclosure of the FISA application materials subject to a protective order consistent with procedures already in place to review classified materials by the court and cleared government counsel.

While this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds that the disclosure may be necessary. This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment. Anders v. California, 386 U.S. 738, 743 (1967). Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. “The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 (1984).

We'll see whether DoJ will appeal.

Regards

Mike

[jmm99]

From Stars & Stripes, 9/11 trial to start Monday in New York (http://www.stripes.com/news/us/9-11-trial-to-start-monday-in-new-york-1.270801) (by Richard A. Serrano, Tribune Washington Bureau, March 2, 2014):


WASHINGTON — Weeks after he took office, President Barack Obama met privately with 40 grieving Americans, many clutching photographs of loved ones lost in terrorist attacks.

The new president told them he would be closing Guantanamo Bay military prison within the year and putting many of the detainees there on trial in the U.S., where justice would be swifter.

Five years later, the first and probably only federal court trial of a Sept. 11-related case will start jury selection on Monday at a U.S. District courthouse in lower Manhattan, not far from where the World Trade Center once stood.
...
Obama’s plans to relocate other Guantanamo detainees, most notably self-confessed Sept. 11 mastermind Khalid Shaikh Mohammed and four others accused in the plot, ran into congressional roadblocks that prevented the president from trying them in New York and closing the Cuba detention facility as he promised.

But when Sulaiman abu Ghaith, 48, Osama bin Laden’s son-in-law, who is accused of being a top al-Qaida propagandist, was arrested last year, the Justice Department brushed aside pressure to send him to Guantanamo and launched proceedings in New York, partly as a test case to demonstrate that high-profile terrorism trials could be handled safely and efficiently in the U.S.
...
Federal prosecutors in New York are hoping to prove that justice can move faster there. They are seeking life in prison with no parole for Abu Ghaith, who is accused of being a Qaida leader and calling for additional attacks after Sept. 11. Prosecutors did not seek the death penalty because Abu Ghaith is not accused of directly planning or carrying out acts of terrorism. ...

This one has been something of a sleeper case. Here's some background:

Sulaiman Abu Ghaith Wiki (http://en.wikipedia.org/wiki/Sulaiman_Abu_Ghaith).

Initial NYT story from Mar 2013, Bin Laden Relative With Qaeda Past to Have New York Trial (http://www.nytimes.com/2013/03/08/world/middleeast/bin-laden-son-in-law-is-being-held-in-a-new-york-jail.html?hp) (by MARK MAZZETTI and WILLIAM K. RASHBAUM, March 7, 2013).

SDNY Indictment (http://s3.documentcloud.org/documents/612003/sulaiman-abu-ghaith-indictment.pdf).

Regards

Mike