Adoption of "customary international law"
Thank you, sw, for the citation to The Paquete Habana, 175 U.S. 677 (1900). This is one of a number of cases in which SCOTUS had to deal with the extraterritorial reach of the Constitution and international law in the context of US global expansion and the Spanish-American War. Those "Insular Cases" have a good deal of relevance to present-day "Small Wars" issues.
From the Paquete Habana syllabus:
Quote:
Under the Act of Congress of March 3, 1891, c. 517, this Court has jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute and without any certificate of the district judge as to the importance of the particular case.
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.
which makes a number of points:
1. The Federal courts were given jurisdiction in prize cases by statute (which was within their constitutional mandate).
2. The international law issues must be "be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination." This ties into point 1.
3. "Customary international law" comes into play only "where there is no treaty and no controlling executive or legislative act or judicial decision." In short, it is a last resort in arriving at a rule of decision in a case where the court has jurisdiction.
4. In making that determination, the court looks, "as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." Modern punditry is filled with "what the law ought to be".
The Paquete Court embarked on a multipage historical quest (starting in 1403) to determine what "customary international law" was concerning fishing vessels seized in prize cases. Nonetheless, three members of the Court differed and concluded that "customary international law" in this area was neither "customary" nor "authoritative":
Quote:
In is needless to review the speculations and repetitions of the writers on international law. Ortolan, De Boeck, and others admit that the custom relied on as consecrating the immunity is not so general as to create an absolute international rule; Heffter, Calvo, and others are to the contrary. Their lucubrations may be persuasive, but not authoritative.
In my judgment, the rule is that exemption from the rigors of war is in the control of the Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended.
[Page 175 U. S. 721]
Exemptions may be designated in advance or granted according to circumstances, but carrying on war involves the infliction of the hardships of war, at least to the extent that the seizure or destruction of enemy's property on sea need not be specifically authorized in order to be accomplished.
The lesson to be learned is that incorporation of "customary international law" is best done by definitive joint executive and congressional action. In that, I join Judges Hogan and Brown.
Regards
Mike
The man who decides the fate of Guantanamo detainees
From the BBC an interview whilst commuting:
Quote:
Matthew G Olsen heads the US task force deciding the fate of the remaining detainees at Guantanamo Bay.
While hopes of meeting President Barack Obama's January 2010 deadline for closing the camp have ended, Mr Olsen and other US officials have been meeting at secure locations to try to resolve the outstanding cases.
The link:http://news.bbc.co.uk/1/hi/world/americas/8454351.stm
Nothing startling, but all in one place.
Detroit FBI raid - role of an informant / undercover cop
Post No.411 (Pg. 21) refers to FBI action in Detroit back in September '09, with a raid on a 'radical' mosque, with one local Muslim leader shot dead, with charges following which aroused - from this armchair - little interest.
Now a local paper has a lengthy article, under the headline 'Deadly FBI raid in Dearborn prompts concern over informants' and I cite in parts:
Quote:
The story of Jabril's alleged infiltration offers a rare look into the use of FBI informants in Muslim-American communities in the aftermath of Sept. 11, 2001. Members of the Detroit mosque say they believe Jabril was a key undercover informant in helping the FBI build a case against Abdullah and his followers.
Muslim advocates say there's a growing problem of improper use of informants, particularly in houses of worship. Some accuse the informant of luring Abdullah to his death in the fatal shooting, which has raised questions about excessive force.
Abdullah and his followers were not charged with any acts of terrorism. The charges against the 11 men arrested include dealing in stolen goods such as laptops and fur coats, firearms violations and tampering with vehicle identification numbers. The criminal complaint, however, highlights the radical views of the group.
How I fought to survive Guantánamo
A long story in The Guardian, with this opener:
Quote:
For nearly six years, British resident Omar Deghayes was imprisoned in Guantánamo and subjected to such brutal torture that he lost the sight in one eye. But far from being broken, he fought back to retain his dignity and his sanity
Within is this:
Quote:
The British also accused him of teaching people to fight in terrorist training camps in Chechnya, and claimed they had secret video evidence.
Deghayes had never been to Chechnya, and thought all these allegations laughable. Only later did he discover through Clive Stafford Smith, director of the human rights charity Reprieve, that his apparent appearance in an Islamic terrorist training video in Chechnya was the crucial evidence in a flimsy case against him. The authorities refused to give Stafford Smith, who campaigned for Guantánamo detainees, a copy of this videotape, but he eventually obtained one through the BBC.
It was, says the Reprieve director, an obvious case of mistaken identity: the person depicted lacked Deghayes' small childhood scar on his face. *Stafford Smith was able to show that the videotape was of a completely different person, actually a Chechnyan rebel called Abu Walid, who was dead.(My emphasis) "This was typical of the whole Guantánamo experience," says Stafford Smith. "They said they had evidence and they wouldn't let you see it. Then when you did, it was incorrect.
Link:http://www.guardian.co.uk/world/2010...ive-guantanamo
Drip, drip of UK court cases
This time in Scotland, which has a different legal system to the rest of us; a complex case and an Appeal Court has quashed a conviction; web link:
http://news.bbc.co.uk/1/hi/scotland/...al/8504952.stm
Quote:
A man branded a "wannabe suicide bomber" by prosecutors will not face a retrial on terrorism charges....The most serious charge related to the possession of articles that gave rise to "reasonable suspicion" they were connected to terrorism. His conviction on that allegation resulted in a six-year prison term.
In a broader commentary:
Quote:
The quashing of one of Mohammed Atif Siddique's terrorism convictions poses tough questions about Section 57 of the 2000 Terrorism Act - the offence of possessing "articles" for terrorist purposes. The offence emerged from the lessons of Northern Ireland where detectives sometimes caught paramilitaries with DIY bomb parts - but no actual bomb or plot. In the age of al-Qaeda inspired extremism, Section 57 has been used against suspects found with extremist material on their computers.
Two years ago the English Court of Appeal criticised the vague phraseology of the offence as it cleared five students in very similar circumstances to Mohammed Atif Siddique.
All these young men say they were criminalised for what they had thought, rather than what they did. And Edinburgh and London's appeal judges say juries need to be given clearer guidance on when the line between thoughts and deeds is crossed.
Alas HMG is not in the mood or mode to listen and respond. Other sections of the CT law are much criticised, partly for their wording and also for their impact on innocent parties.
UK government given a 'slap' by the judges
The Binyam Mohammed case has appeared here many times and today the Appeal Court has issued a judgement regarding the government's refusal to disclose US intelligence documents (in fact seven paragraphs):
BBC:http://news.bbc.co.uk/1/hi/uk/8507852.stm
Daily Telegraph:http://www.telegraph.co.uk/news/ukne...ay-judges.html
FCO:http://www.fco.gov.uk/en/news/latest...ws&id=21722320
In the radio reports and on the FCO website reference has been made to a US court decision that led to the documents being disclosed - "so the pass had been sold". Secondly that the judgement upheld the principle of 'control' that the UK could not release intelligence documents provided by the USA.
The BBC:
Quote:
BBC home affairs reporter Dominic Casciani said the seven-paragraph summary released by the court provides details of what London learnt about Mr Mohamed's treatment in 2002, following his detention in Pakistan. At the time he was being held by Pakistani interrogators at the behest of the US, who suspected him of having received firearms and explosives training from al-Qaeda in Afghanistan. The summary says that Mr Mohamed was intentionally subjected to continuous sleep deprivation during his initial period of captivity. Along with the sleep deprivation, it says the interrogators subjected him to threats and inducements, including playing on his fears that he would be passed on to another country.
Perhaps JMM can explain if "the pass was sold"?
There remains a UK police investigation into whether the intelligence officers involved were complicit with inhuman treatment / torture.
Binyam Mohammed: more revealed
The Appeal Court judgement in the Binyam Mohammed case has taken both expected and unexpected routes. Criticism of the judges for taking decisions on policy that should be the executive's or Crown; the impact on the much prized UK-US 'Special Relationship' in the intelligence sharing arena and the revelation that the senior Crown lawyer wrote a letter challenged parts of the draft, written judgement as being too critical of the Security Service (MI5).
The Guardian (the most extensive report): http://www.guardian.co.uk/world/2010...m-mohamed-case
BBC:http://news.bbc.co.uk/1/hi/uk/8509787.stm
DT:http://www.telegraph.co.uk/news/worl...-warns-US.html
Whatever the "smoke" generated, notably by the Foreign Secretary in his parliamentary statement yesterday, the case has been over the release in the UK to a court seven, short paragraphs summarising Binyam Mohammed's treatment written by the CIA for MI5 use before they interrogated Binyam at G-Bay were pre-empted as JMM reports in the release of pages of evidence in a US court case.
Some here will be happy to exclude the courts from a role in such cases, others will use the case as an opportunity to "beat" the government, especially over the alleged official complicity in torture; meantime others will challenge whether 'trust & confidence' in the security services, government and UK society has been weakened by all the revelations.
Matters of classification ?
The "seven paragraphs" (see below) seem more a summary by the judges of a series of reports, with editorial comments by the judges (esp. the last two paragraphs).
From the Telegraph:
Quote:
Here are the seven paragraphs from the High Court judgments in full:
- It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.
- It was reported that at some stage during that further interview process by the United States authorities, BM (Binyam Mohamed) had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.
-It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and ''disappearing'' were played upon.
-It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews.
- It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.
- We regret to have to conclude that the reports provided to the SyS (security services) made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.
-The treatment reported, if had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.
The controversy certainly does not lie in the content - compare Judge Kessler's findings of fact (post # 471).
The controversy hinges on the fact that the underlying report(s) from USG to the Brits was classified and still remains so. Apparently, the British judicial system (at least in this type of case) has no process to protect classified evidence.
Rather than releasing Binyam, he ought to have been tried before the military commission which was in the process of doing just that (1 Sep 2008). But, because that case looked "messy", the decision was made to release the man. Much of the evidence re: Binyam was open-source at that time - see Binyam Mohamed (1 Sep 2008).
Regards
Mike
Jonathan Evans, MI5 Director weighs in
This appeared yesterday in The Daily Telegraph, but was not linked last night: 'Jonathan Evans: conspiracy theories aid Britain's enemies MI5 was not involved in any torture 'cover-up’, says its director general, Jonathan Evans:http://Jonathan Evans: conspiracy theories aid Britain's enemies MI5 was not involved in any torture 'cover-up’, says its director general, Jonathan Evans.
Worth reading IMHO and how the public reacts is unclear. Torture is an issue that has a habit of lingering on and causing concern - not I agree on a mass basis or 'the man on the Clapham omnibus' being greatly concerned.
JMM,
Note Jonathan Evans says:
Quote:
...the paragraphs were received on intelligence channels and provided on the basis that they would not be disclosed...
Fighting abroad and came from the USA
I have seen this report before, but it took time to trace and even if nine years old is still relevant IMHO.
Quote:
An FBI team sent to Kabul in 2001 to fingerprint all arrested insurgents made a surprising discovery: hundreds of arrested people in Afghanistan who were supposed to be local fighters (1% of the total) were already in the FBI's database for arrests ... in the US. Many arrests were for drunken driving, passing bad checks and traffic violations. That means that there were probably a far higher percentage of arrested ‘insurgents’ who went through the US without being arrested, and that the already arrested guys had ‘normal’ delinquency, not related to Islam.
From:Ellen Nakashima, “Post-9/11 Dragnet Turns Up Surprises: Biometrics Link Foreign Detainees to Arrests in U.S.”, Washington Post, 6 July 2008.http://www.washingtonpost.com/wp-dyn...070501831.html
I've not seen similar reports on other nations discovering and proving this, so if anyone knows of similar please let me know.