Crimes, War Crimes and the War on Terror
The Lewis and Clark Law School, Portland, Oregon, USA held this symposium in April 2007 and have now published a number of articles. This is the link:
http://www.lclark.edu/org/lclr/issue_11_4.html and this one links to the speakers bios: http://www.lclark.edu/org/artslive/lawreviewsymp.html
The subjects include:
The Role of Federal Criminal Prosecutions in the War on Terrorism
Federal Prosecution of Terrorism-Related Offenses: Conviction and Sentencing Data in Light of the "Soft-Sentence" and "Data-Reliability"
Critiques
Enemies of the State: Rational Classification in the War on Terrorism
Combatant Status Review Tribunals: An Ordeal Through the Eyes of One "Enemy Combatant"
Enemy Aliens, Enemy Property, and Access to the Courts
Hamdan, Terror, War
Why States Need an International Law for Information Operations
Al-Qaeda and the Law of War
Surveillance and Transparency
Electronic Surveillance of Terrorism: The Intelligence/Law Enforcement Dilemma - A History
Rays of Sunlight in a Shadow “War”: FOIA, The Abuses of Anti-Terrorism, and the Strategy of Transparency
I've only read three, on surveillance, they are interesting for a non-American and probably of more value for an American.
davidbfpo
Well said and I totally agree. Seems to me that
the Lawyers totally blew it in an effort to outsmart themselves. Use of 'PW' instead of 'detainee' and keeping them in the nation where picked up -- or in Afghanistan for those from Pakistan or elsewhere -- would've been the simple solution and far better PR (and, no Lawyer but IMO, legal) decision. All that detainee foolishness and the arch stupidity that was and is Gitmo couldn't have been much worse if the bad guys were the planners.
Hmmm... :wry:
On the PR angle, the US is going to get tabbed by not only the opposition but by some of our 'friends' and by many here in the US as the bad guy almost no matter what we do. Why that is so difficult for the squirrels in DC to comprehend and attempt to mitigate by not being stupid I cannot fathom. They need to tumble to that fact and stop trying to 'do the right thing so the world will see we're really nice.' The world is absolutely determined not to see that and to deny it if it appears that way; been that way all my adult life and it's really not much worse now than it has been since about 1947 or so; we just communicate far more widely and rapidly today so it seems worse. Not as bad now as it was during Viet Nam.
So on the PR front (since the late 40s) as well as the international terrorism front (since 1972) we refuse to adapt to reality; "It must be done as we wish it done." Get over it, Washington, not going to happen... :mad:
NOTE: This was addressed to Shmedlap's post; Marc beat me ;)
Marc and wm; good points. But...
Quote:
Originally Posted by
marct
...On a more serious note, though, there has been a lot of international concern about the US governments position on international law in many areas, and the Gitmo experience (along with extraordinary rendition, etc.) only reinforces the concerns held by other countries (think Italy for a sec...). In Canada, we have been following the Gitmo travesty ever since Khadr was captured, and the ongoing French bedroom farce of his detainment makes headlines fairly often.
True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...
Quote:
Originally Posted by
wm
I do not disagree with your point, but I would hope that we could replace the motivation for doing the right thing. We ought not to be doing "the right thing so the world will see we're really nice." We ought to be doing the right thing just because it is the right thing. (Sorry if this sounds like I'm being naively idealistic ;))
I agree with your goal but would point out that others do not operate that way and while some disadvantage to do the right thing can and should be accepted -- and we do that, all day and every day in many ways and knowingly and willingly give others an advantage -- there had better be limits or we will not be around to do the right thing. Thus, regrettably, I do suspect you're being a bit naively idealistic.
More good points. But (yet again...)
Quote:
Originally Posted by
marct
This becomes a very interesting question - what is a "uniform"? It wasn't a problem back in the day, but I would submit that it is now.
Agreed but unfortunately, the GC is not designed to cope with today's modified realities so the Lawyers get to play.
Quote:
...As such, any who wear their uniform (even if they define that as civilian clothes) must be offered the protection of the Geneva conventions analogous to the volunteer brigades in the Spanish Civil War. I know, it's not a popular argument :wry:.
I agree. That's why I said the majority (including all the Talib) should've simply been declared PW and confined in Afghanistan. The real issue is with the non-Taliban types, the AQ folks who do not merit the protection you propose and the GC offers and with which I agree.
Quote:
Sorry, their definition as "illegal combatants". At the same time, the GC is vastly out of date and, in its categories, somewhat ridiculous.
Disagree on the former, agree on the latter -- I did however note that the Lawyers did not do the former at all well...
Quote:
The problem with the sorting is that it doesn't really account for the current reality <sigh>. What is needed, IMHO, is a category of "irregular combatants" who are treated as POWs, but who may be interrogated to determine motivation and possibility for criminal charges based on international law.
That might be possible though my suspicion is that any attempt to do that will be fought tooth and nail by the HR community.
Quote:
Nothing wrong with that :D. Still and all, Khadr met the UN definition of being a "child soldier". We can argue back and forth whether it is right or wrong in any individual case (or in general), but under existing international agreements, he meets the definition and law is all about definitions.
The UN is NOT a legislative body; they may propose things to their hearts content but they do not produce laws. Yes, Law is all about definitions or, more correctly, pocket lining arguments about definitions but it becomes sort of counterproductive when attempts to apply it fly in the face of common sense. A 15 year old can kill you just as dead as can a 30 year old.
Not to start a food fight but instead of looking down noses at the people who simply apprehended a 'child' being where he should not have been and doing something he should not have been doing and correctly in my view attempting to punish him for that, folks might want to look at the fact that the child had no business being there, had no business doing what he was doing and the fact that he was taken to that environment by his Father and possibly encouraged to do those things is not an excuse; the kid was in the wrong place at the wrong time and allegedly doing the wring thing -- and we did not put him there.
An attitude of excessive forgiveness of children for being little monsters has put the entire European hearth in danger of a takeover by the little dears. They need to learn that actions have consequences -- as do Parents who not only tolerate but actively encourage such foolishness (in this case criminality by the definition of the UN you say...). You youngsters will have fun with that, I'll be dead and gone so I'll miss it. :cool:
This has all been facinating but
why are they illegal anything?
If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.
If I declare Ken an illegal combatant can I lock him up indefinitely? We disagree from time to time but I am not sure that would be very fair.
AQ to Taliban to AQ to ...
Quote:
Originally Posted by
marct
...Totally agree that the Taliban should have been declared POWs which, BTW, would include Khadr.
True. Then he'd be a PW with no reason to be tried and no hope of release until the end of hostilities...
Quote:
... The problem with most supra-national bodies is that they have what, for want of a better term, might be called "para-legislative" powers - they are legislative upon states, not individuals. It's awkward in oh so many ways...
Awkward perhaps but even the para legislative powers upon states is there only if the state(s) deign to accept them. For more on which see below.
Quote:
...Where we disagree is in whether or not our disgust with victim poker outweights the agreements our countries have signed on the rights of child soldiers...
You are aware the US has not ratified some of those protocols? One we and Canada have ratified is the Optional Protocol on the Involvement of Children in Armed Conflict, which requires signatories to 'take all feasible measures' to ensure that children under age 18 do not participate in hostilities... ??? :wry:
Quote:
... Then again, with such sterling role models as Doug Feith around, that may be a touch tricky...
Ordinarily, I would not stoop to citing Maxime or Alphonse as examples that such dimwits abound worldwide but Fido Feith had nothing to do with the discussion. :D
Or, if he did, I missed the connection,,,
Always happy to entertain...
Quote:
Originally Posted by
JJackson
why are they illegal anything?
Dunno; their choice and I long ago stopped trying to figure motives in people...
Quote:
If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.
Only if you had a particularly poor batch of US Troops find you; most exercise some discrimination and if they err, tend to err on giving your story the benefit of the doubt. That is to say far more bad guys talk their way out of a bad spot then are wrongly caught.
Quote:
If I declare Ken a non combatant can I lock him up indefinitely? We disagree from time to time but I am not sure that would be very fair.
Well, you could, I guess but I don't know why you'd lock up a non combatant; we try to avoid that, mostly successfully and concentrate on locking up combatants -- the issue du jour being whether they are 'illegal' or legal combatants.
That involves the Geneva Convention and those provisions that state aside from combatants (pictured as military force against military force; out of date but there it is), other individuals, including civilians, who commit hostile acts and are captured do not have the protections of the GC. Rightly or wrongly, the US decided to label people in that category 'illegal combatants.' Gives the Lawyers something to do...
We don't disagree on much...
Quote:
Originally Posted by
Rex Brynen
The UN does actually, under some circumstances, produce laws...That's a quibble, however ;)
A valid one. However, the UN item acquires the force of law only as it is codified by the ratifying state -- and the US is notorious for not ratifying or placing many exceptions in its ratification process.
Quote:
More broadly, there are several reasons for playing by the rules of international humanitarian law:...
I agree with all those. As I said, we may or may not be legal; I'll leave that to the Lawyers, not my field -- but we sure weren't smart (and I minored in Stupidity...).
Quote:
I've noticed a tendency in many milblogs (not here) to treat IHL as an evil concoction by lawyers who are perversely seeking to prevent "us" from winning. Yet (military and civilian) international lawyers, diplomats, and technical experts involved in treaty negotiation are some of the smartest, best-informed people that I've ever known. Their IHL work involves trying to balance the considerations above, national interest, the compromises of diplomatic-legal coalition-building, and (to the extent they can) the "greater good" in a way that leaves us off better off than we were before--which, given the competing interests, complexity, and evil-doers involved, is no easy task.
Nor do I disagree with that -- with the caveat that excessive idealistically derived but legitimate humanitarian concerns sometimes have effects that are not what the originators envisioned. See Steyn, M. and Section 13.1 of the Canadian Human Rights Act. Comes under the heading, I believe, of 'be careful what you wish for, you may get it...'
Quote:
There, having established my credentials as a defender the indefensible (lawyers), I'll next defend the Air Force... :D
Masochist! ;)
Hmm. Obviously I've been wrong all these years...
As you say, "snow refers to the white stuff on the ground;" or "snow" as you say is the white stuff on the ground while that white stuff that appears on the ground in winter is usually snow.
Yet 'snow' refers to the name we use for the white stuff on the ground while the white stuff on the ground is apparently snow but 'snow' also refers to other white stuff that can put one on the ground.
I'm snowed, I think I'll go get a drink... :D
The Trial and Punishment of JJackson, Esq.
Quote:
Originally Posted by
JJackson
If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.
I’ll take a crack at this one. If grabbed as a suspected terrorist by US troops, I don’t know who decides you go to Gitmo. Or how it is decided. But, it seems possible, if whoever thinks you belong there has the power to make it happen. The accusation or suspicion or terrorism, itself, provides sufficient justification for you to be held there.
Once you get your orange jumpsuit, you’ll have plenty of time to ruminate. Martin Luther King, Henry David Thoreau, and Adolf Hitler all decided to write about their circumstances while behind bars. I don’t know if you’d be allowed that privilege, or not. I haven’t noticed any jailhouse manifestos from Gitmo in my local bookstore, yet.
Tacitus' opinions don't carry much weight, of course. Of more importance on this issue, let's hear what Senators Obama and McCain think about this.
http://www.cfr.org/publication/14751...008%2Ftrackers
Both of these gentlemen have several times said they plan to shut this thing down, Obama suggesting trying the accused in a U.S. criminal court or by a military court-martial. I think McCain has suggested just moving this thing to Fort Leavenworth, and using what is already in place there.
Since your case is unlikely to be resolved before Inauguration Day (January 20, 2009), there’s a fair chance you’ll have your day in court somewhere else.
I wouldn't take any false comfort from that, though. They probably wouldn't have grabbed you for nothing, and might could get you on a charge of spying for terrorists, if not being one, yourself. The last British spy that I remember us dealing with was Major John Andre. He was denied a soldier’s death by firing squad, and instead hung. And he wasn’t even Al Qaeda.:eek:
http://en.wikipedia.org/wiki/John_Andr%C3%A9
Orange is not my colour ...
Quote:
Originally Posted by
Tacitus
They probably wouldn't have grabbed you for nothing
This is the part of the process that bothers me.
I have never been in a situation like this but assume it is fairly chaotic. Some of the insurgents will be local, some from further afield and if the engagement is in a town or village will include a whole spectrum from completely uninvolved through sympathisers, non combatant supporters, lookouts, fighters and their commanders. I assume they all get rounded up and all claim innocence then what? How many were just in the wrong place at the wrong time and if they are not going to get a hearing then how can they escape the nightmare? This war (if that is what it is) is already as long as WWII as far as I can see very few of those interned have any kind of evidence against them that could stand up in a court of law. Most seem to have just been released despite serving hundreds of man/years between them.
In the UK we had a whole spate of IRA miscarriages of justice releases and apologies for fabricated evidence against individuals who the police 'knew' were guilty but could not provide evidence. With the public baying for blood and their superiors for convictions, they just helped the cases along. This is very understandable given the circumstances at the time, but also very wrong.
As you may have gathered I am not inclined to give the authorities the benefit of the doubt and am much more frightened of tyrannical governments than terrorists.
Flatland's Response to Insurgency
1. Country Study.
We have some of the picture of Village X, and of some Ps moving toward higher-level CIF; but we need a bit of background for our fairy tale.
Village X is located in the independent nation of Flatland. That name from the 1884 math "sci-fi" book which describes the culture of a 2-dimensional world.
http://en.wikipedia.org/wiki/Flatland
Flatland's government is strongly "libertarian" (but still has a military). The insurgency is strongly "statist". Thus, they are 180 degrees out of phase on the "diamond test".
http://www.theadvocates.org/quiz.html
The insurgency has an ideological cause supported by many arguments. The incumbancy has a ideological counter-cause also supported by many arguments. The majority of Flatlanders are political sheep. For present purposes, there are no external "Powers" or "Parties" involved in the conflict.
Flatland, like many countries, has a well-developed civil and military jurisprudence: Uniform Code of Civil Justice (UCCJ) and Uniform Code of Military Justice (UCMJ). Flatland also is a signatory to the 1949 GCs, and has ratified them, subject to reservations as to some key provisions.
Flatland's Constitution derives all delegated powers from its people (non-delegated powers being reserved to them). It is the Supreme Law of the Land, which trumps inconsistent internal laws. It also trumps treaties and executive agreements which are inconsistent with either its substantive or interpretative principles (e.g., among the latter, "void for vagueness"). All of this drives I Law theorists nuts because I Law derives its "powers" from states, not from the people of the World.
2. Problems Dealing with the Insurgency
The over-riding concern of Flatland's libertarian government lies in the fact that the available tools to quash the insurgency are - well, frankly - authoritarian. So, the incumbancy must use "statist" methods to crush a "statist" ideology, so as to preserve a "libertarian" ideology ! Will the baby be tossed out with the dirty bath water ? The government's conclusion is: probably not; but we have to be damned careful.
Part of this problem is how to proceed with Ps in detention, adjudication and final disposition. The Flatland government is willing to trust its military to initiate the process to separate the goats (IPI, IMF, IAF, ILF), who may be detained (some could be released for tactical reasons); from the sheep (IS, NEU, CIS), who will be released.
That phase (above post) involves preservation of evidence and witnesses; as well as two administrative adjudications of probable factual status (e.g., IPI, IMF, IAF, ILF), with routing to appropriate detention centers based on each person's dossier. The question is what to do when they get there.
Flatland's government considered use of its UCCJ and UCMJ at that time point. Those codes are fine for their intended use (and provide more safeguards for the accused than exist in most other nations). However, they are designed to remedy the acts or omissions of individuals (civilian or military); so, the civil and military courts, both procedurally and substantively, are not well-designed to adjudicate what are, in essence, networked group military or paramilitary actions.
Moreover, Flatland's government had a greater, long-term concern: "taint" of its UCCJ and UCMJ jurisprudence (for its non-insurgent civilians and military) by decisions made in insurgency cases. Hard cases make bad law. In short, the emotional response to the insurgency could in the end destroy much that is essential to Flatlander jurisprudence and liberties.
The decision was made to institute a Uniform Code of Insurgency Justice (UCIJ), with a separate administrative adjudicative process. That, in general, presented no inherent constitutional problems since Flatland has many administrative agencies with administrative law judges (and its UCMJ is administrative, as well). The government's problem was how to design and implement the UCIJ.
3. Specific Problems under the UCIJ
1. The persons to be adjudicated are detained members of these factual classes, IPI, IMF, IAF and ILF. The majority view in the government was that in all of those classes could be found persons who took an "active part in the hostilities." That view was based on the insurgency's own doctrine of "4GW" and its networked nature, where the IPI and ILF were equally or more important to the end result than the IMF and IAF. The majority concluded that common Art. 3, GCs 1949 does not apply to make them "protected persons" (as well as questioning whether Art. 3 is "void for vagueness"). However, the majority was not adverse to incorporating provisions of Art. 3 into the UCIJ on an item by item basis.
2. The minority positions were along two tracks. One was to find "protected person" status under Art. 3 for all IPI, IMF, IAF and ILF persons, except those who had not "laid down their arms". One soldier asked: "So, this SOB takes two shots at me; tosses his shotgun to the ground; jumps down from the tree; and says, 'sorry, I'm now a protected person.'" Another view (a totally separate track from the Art. 3 track) was to treat the insurgency as a recognized belligerancy, with full PW/POW status granted to its "armed forces" (the IPI, IMF, IAF and ILF, most broadly construed).
3. Agreement was better as to the administrative court and phases of adjudication: (1) a preliminary hearing after the person reached the detention center before an administrative judge to present the substantive charges, determine "probable cause" to hold, and the person's legal status issues, if any; and (2) a trial on the charges before a larger panel of judges. Flatland's UCMJ was rifled for much of the UCIJ's procedures. But, the on-going insurgency required consideration of security clearances and intelligence issues, which were not fully resolved. Also, the final "military-civilian" composition of the trial courts remained open - a number of agencies wished to get into the act.
4. Agreement was generally reached on substantive law; that is, the possible charges and punishments that might be - by adopting a sliding scale of crimes and punishments (from major to minor). An unresolved debate was on the extent to use the death penalty ("we shoot insurgents, don't we ?), or whether to use it at all. A further debate (among death penalty proponents) was about the level where it could or should be imposed (by now, we have four levels of adjudications: on-site military, higher-level military, prelim hearing, trial). Thoughts of Breaker Morant lurked in some minds.
5. Some controversy existed as to interrogation of detainees (if to be allowed at all; if so, the extent allowed); the extent of "coercion" allowed; and the time lapses between adjudications (to allow interrogations), etc. A small, but very vocal, minority expressed a belief that "confession brings redemption" (even if torture be required), following the quasi-religious theory found in Roger Trinquier, Modern Warfare (Praeger 2006), pp.17-20.
Can you help the Flatlanders solve their problems ?
Boumediene-Munaf "Symposium"
A number of different views on Boumediene and Omar-Munaf (see below) are found at Opinio Juris:
http://www.opiniojuris.org/posts/chain_1213336401.shtml
That discussion seems likely to continue.
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Omar-Munaf is the case most directly applicable to OIF. Excellent opinion by Justice Roberts with no dissents ("cautionary" concurrence by Justices Souter, Ginsberg & Breyer):
http://www.scotusblog.com/wp/wp-cont...06/06-1666.pdf
Note that Justice Roberts, after finding jurisdiction to hear the habeas petition, felt that the circumstances required a prompt decision on the merits of the habeas petition (slip p.14, and following). Which is exacly what he did:
Quote:
(slip p.28)
Munaf and Omar are alleged to have committed hostile and warlike acts within the sovereign territory of Iraq during ongoing hostilities there. Pending their criminal prosecution for those offenses, Munaf and Omar are being held in Iraq by American forces operating pursuant to a U. N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them.
For all the reasons given above, petitioners state no claim in their habeas petitions for which relief can be granted, and those petitions should have been promptly dismissed. The judgments below and the injunction entered against the United States are vacated, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
Some links to 5 lawyers bios
re: Tom Odom's 1st link above
http://www.mcclatchydc.com/detainees/story/38886.html
The five White House, Pentagon and Justice Department lawyers named in the McClatchy article are David Addington, Alberto Gonzales, William J. Haynes, John Yoo and Timothy E. Flanigan.
The top two, David Addington, Alberto Gonzales, attended but did not finish at service acadamies. That struck me as a bit odd, especially Addington's reason, if Napolitano can be believed. William J. Haynes was an army CPT (1984-1989). No military service indicated for John Yoo and Timothy E. Flanigan; although Flanigan was born at Fort Belvoir.
Here are some links to them.
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David Addington
http://en.wikipedia.org/wiki/David_Addington
http://www.newyorker.com/archive/200...?currentPage=4
Quote:
After high school, Addington pursued an ambition that he had had for years: to join the military. Rather than attending West Point, as his father had, he enrolled in the U.S. Naval Academy, in Annapolis. But he dropped out before the end of his freshman year. He went home and, according to Napolitano, worked in a Long John Silver’s restaurant. “The academy wasn’t academically challenging enough for him,” Napolitano said.
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Alberto Gonzales
http://en.wikipedia.org/wiki/Alberto_Gonzales
Quote:
... Gonzales enlisted in the United States Air Force in 1973, for a four year term of enlistment, serving two years at Fort Yukon, Alaska before released from active duty to be a cadet at the United States Air Force Academy. Prior to beginning his third year at the academy, which would have caused him to incur a further service obligation, he left the Academy and was allowed out of his enlistment contract ...
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William J. Haynes II
http://en.wikipedia.org/wiki/William_J._Haynes,_II
http://www.usdoj.gov/olp/haynesresume.htm
http://www.dod.mil/dodgc/gc/gcbio.html
Quote:
Born in Texas, Mr. Haynes earned his Juris Doctor degree from Harvard Law School, and his Bachelor of Arts degree from Davidson College, where he was elected to membership in Phi Beta Kappa and Omicron Delta Kappa. After law school, Mr. Haynes clerked for U.S. District Judge James B. McMillan in Charlotte, North Carolina. He also served four years on active duty as a Captain in the U.S. Army [1984-1989, from resume].
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John Yoo
http://en.wikipedia.org/wiki/John_Yoo
http://www.nytimes.com/2005/12/23/po...erland&emc=rss
Quote:
From the chambers of Judge Silberman, Mr. Yoo moved on to a clerkship with Justice Clarence Thomas on the Supreme Court, stopping briefly at Berkeley. Justice Thomas helped place him with Senator Orrin G. Hatch, Republican of Utah, as general counsel on the Senate Judiciary Committee.
Along the way, Mr. Yoo passed up a chance to work in the Washington office of the law firm Jones Day, where he caught the eye of a senior partner, Timothy E. Flanigan. After five years that Mr. Yoo spent at Berkeley, writing on legal aspects of foreign affairs, war powers and presidential authority, the two men met up again when Mr. Yoo joined the Bush campaign's legal team, where Mr. Flanigan was a key lieutenant.
Mr. Flanigan became the deputy White House counsel under Alberto R. Gonzales. Mr. Yoo ended up as a deputy in the Justice Department's Office of Legal Counsel, or the O.L.C., a small unit of lawyers that advises the executive branch on constitutional questions and on the legality of complex or disputed policy issues.
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Timothy E. Flanigan
http://en.wikipedia.org/wiki/Timothy_Flanigan
Quote:
Timothy Elliott Flanigan (b. May 16, 1953 in Fort Belvoir, Virginia) is an American lawyer and politician.
Parhat - Detainee Treatment Act of 2005
The first of the DTA (Detainee Treatment Act of 2005) cases was decided Friday, with notice issued Monday:
http://www.scotusblog.com/wp/wp-cont...er-6-20-08.pdf
Quote:
On Friday, June 20, 2008, the court issued an opinion to the parties in the above-captioned case. Pursuant to the Detainee Treatment Act of 2005, the court held invalid a decision of a Combatant Status Review Tribunal that petitioner Huzaifa Parhat is an enemy combatant. The court directed the government to release or to transfer Parhat, or to expeditiously hold a new Tribunal consistent with the court's opinion. The court also stated that its disposition was without prejudice to Parhat's right to seek release immediately through a writ of habeas corpus in the district court, pursuant to the Supreme Court's decision in Boumediene v. Bush, No. 06-1195, slip op. at 65-66 (U.S. June 12, 2008). Because the opinion contains classified information and information that the government had initially submitted for treatment under seal, a redacted version for public release is in preparation.
Note that the government was given options: (1) to release Parhat; (2) to transfer Parhat (presumably to another status or to another jurisdiction); or (3) to expeditiously hold a new Tribunal consistent with the court's opinion.
Parhat was given the option to apply for habeas; but, as the pair in Omar-Munaf found out, habeas jurisdiction granted does not necessarily mean release. Those two should be remanded to Iraqi custody in accord with Justice Robert's decision.
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My 2 cents worth on US "war crimes" and "war criminals" - Take a deep breath and hold it.
Parhat redacted opinion issued
The DC Circuit issued its unanimous opinion in Parhat v. Gates, redacting quotation of classified evidence, at:
http://www.scotusblog.com/wp/wp-cont...in-6-20-08.pdf
Some key points in the holding:
Quote:
(slip p. 30)
In this opinion, we neither prescribe nor proscribe possible ways in which the government may demonstrate the reliability of its evidence. We merely reject the government’s contention that it can prevail by submitting documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant.
and,
Quote:
(slip p. 33)
Accordingly, we direct the government to release Parhat, to transfer him, [19] or to expeditiously convene a new CSRT to consider evidence submitted in a manner consistent with this opinion. If the government chooses the latter course, it must -- to obviate the need for another remand -- present to that Tribunal the best record of Parhat’s status as an enemy combatant that it is prepared to make.
[19] The government is under district court order to give 30 days’ notice of intent to remove Parhat from Guantanamo. See Kiyemba v. Bush, No. 05-1509, Mem. Order at 2-3 (D.D.C. Sept. 13, 2005).
and,
Quote:
(slip p. 38)
Congress has directed this court “to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” DTA § 1005(e)(2)(A). In so doing, we are to “determine,” inter alia, whether the CSRT’s decision “was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals[,] including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence.” Id. § 1005(e)(2)(C)(i). A CSRT’s decision regarding enemy combatant status was not consistent with those standards and procedures unless the Tribunal had -- and took -- the opportunity to assess the reliability of the evidence that the government presented to it. Nor can this court conclude that such a decision was consistent with those standards and procedures unless we, too, are able to assess the reliability of the government’s evidence. Because the evidence that the government submitted to Parhat’s CSRT did not permit the Tribunal to make the necessary assessment, and because the record on review does not permit the court to do so, we cannot find that the government’s designation of Parhat as an enemy combatant was consistent with the specified standards and procedures and is supported by a preponderance of the evidence.
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Commentary on Parhat by Marty Lederman at:
http://balkin.blogspot.com/2008/06/c...ly-detain.html
and by Lyle Denniston at
http://www.scotusblog.com/wp/circuit...re-assertions/
Ashcroft et al. off the civil liability hook
The 2nd Circuit (in a 2-1 opinion) ruled today that Arar may not sue U.S. government officers for money damages based on allegations that he was captured and sent to Syria where he was tortured.
http://www.scotusblog.com/wp/wp-cont...ca-6-30-08.pdf
This decision was not based on a trial with evidence presented. For purposes of this decision only, Arar's allegations in his complaint (dismissed by the district court with prejudice) were assumed by the Circuit Court to be factually true.
The majority summarized its holding as follows:
Quote:
(slip pp. 6-8)
We must therefore determine (1) whether the district court had personal jurisdiction over the individual defendants; (2) whether Arar’s allegation that U.S. officials conspired with Syrian authorities to torture him states a claim against the U.S. officials under the TVPA; (3) whether to create a judicial damages remedy, pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), for Arar’s claims that U.S. officials (a) removed him to Syria with the knowledge or intention that he would be detained and tortured there and (b) mistreated him while he was detained in the United States; and finally, (4) whether Arar may seek a declaratory judgment that defendants’ actions violated his constitutional rights.
For the reasons that follow, we conclude that under the precedents of the Supreme Court and our Court: (1) Arar has made a prima facie showing sufficient to establish personal jurisdiction over Thompson, Ashcroft, and Mueller at this early stage of the litigation; (2) Count one of Arar’s complaint must be dismissed because Arar’s allegations regarding his removal to Syria do not state a claim against defendants under the TVPA; (3) Counts two and three of Arar’s complaint, which envisage the judicial creation of a cause of action pursuant to the doctrine of Bivens, must also be dismissed because (a) the remedial scheme established by Congress is sufficient to cause us to refrain from creating a free standing damages remedy for Arar’s removal-related claims; and (b) assuming for the sake of the argument that the existence of a remedial scheme established by Congress was insufficient to convince us, “special factors” of the kind identified by the Supreme Court in its Bivens jurisprudence counsel against the judicial creation of a damages remedy for claims arising from Arar’s removal to Syria; (4) Count four of Arar’s complaint must be dismissed because Arar’s allegations about the mistreatment he suffered while in the United States do not state a claim against defendants under the Due Process Clause of the Fifth Amendment; and (5) Arar has not adequately established federal subject matter jurisdiction over his request for a judgment declaring that defendants acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.
In the circumstances presented, we need not consider the issues raised by the assertion of the state-secrets privilege by the United States—particularly, whether the exclusion of information pursuant to the privilege might result in the dismissal of certain of Arar’s claims.
We do not doubt that if Congress were so inclined, it could exercise its powers under the Constitution to authorize a cause of action for money damages to redress the type of claims asserted by Arar in this action. The fact remains, however, that Congress has not done so. Instead, it has chosen to establish a remedial process that does not include a cause of action for damages against U.S. officials for injuries arising from the exercise of their discretionary authority to remove inadmissible aliens. We are not free to be indifferent to the determinations of Congress, or to ignore the Supreme Court’s instructions to exercise great caution when considering whether to devise new and heretofore unknown, causes of action.
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Brief commentary by Lyle Denniston at:
http://www.scotusblog.com/wp/circuit...for-rendition/
This case will be of Canadian interest.
Hamdan & al-Marri Updates
The military commission trial of Hamdan will move forward next week, unless enjoined by a higher court.
Quote:
Analysis by Lyle Denniston
U.S. District Judge James Robertson refused on Thursday to delay the trial of a Yemeni national on war crimes charges - a trial scheduled to begin next Monday.
The judge issued an oral ruling after a morning hearing and said he would issue a written opinion probably by tomorrow morning so that either side could challenge it in the D.C. Circuit Court if they wished.
The judge said he based his ruling - on a motion filed by Salim Ahmed Hamdan, the detainee best known as the alleged driver of Osama bin Laden - on the fact that Congress and the President had decided that any review of the fairness of a military commission trial should occur after “final judgment” and not before. He also said that a recent ruling by the D.C. Circuit in another detainee’s case [Parhat v Gates, discussed in above posts] made it clear that all of the challenges that are raised against military commission trials can be addressed once the trial is over. He said lawyers for Hamdan had raised “novel and complex” constitutional issues but he did not think he needed to address them at this time.
http://www.scotusblog.com/wp/judge-r...-crimes-trial/
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The somewhat different al-Marri case (he was a foreign national arrested in the US) also was resolved at the Court of Appeals level, in a very divided set of 5-4 opinions, consisting of some 7 separate opinions in 216 pages. The net result was generic approval of the MCA system, with the addition of possible habeas corpus relief upon remand to District Court.
http://www.scotusblog.com/wp/split-d...n-on-al-marri/
Quote:
Analysis by Lyle Denniston
A federal appeals court on Tuesday upheld President Bush’s power to order the detention of a foreign student living in the U.S., based on claims he had terrorist links, but also ruled that the detainee must be given a new chance to challenge in court his designation as an “enemy combatant” — the basis for holding him.
.....
Because Judge Traxler’s vote was necessary to make a majority on each part of the ruling, and because he did not sign onto any opinion written by other judges on either part, his 35 pages of rationale generally will be considered the controlling justification for the entire decision. The four judges who voted against presidential authority to order the detention said they would not have ruled on the detainee’s right to challenge his detention, but they nevertheless voted to support Traxler on that point “to give practical effect” to an order to govern further developments in District Court.
......
The Traxler opinion concluded that Al-Marri is entitled to “further evidentiary proceedings on the issue” of whether he “is, in fact, an enemy combatant subject to military detention.”
The general rule, the judge said, is that “Al-Marri would be entitled to the normal due process protections available to all within this country,” but that general rule can be offset if the government first shows that it is outweighed by national security and that it would be too burdensome for the government to have to produce stronger evidence to justify a detention, in response to a detainee’s demands for more information from the government.
The al-Marri opinions are here:
http://www.scotusblog.com/wp/wp-cont...arrienbanc.pdf
The actual holding of the Court (what all of the judges could agree on about their disagreements !) was this:
Quote:
(slip pp.4-5)
PER CURIAM:
Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri’s military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007). Subsequently, this court vacated that judgment and considered the case en banc.
The parties present two principal issues for our consideration: (1) assuming the Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.
Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant.
Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.
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The lesson that is beginning to emerge from these cases is that the MCA system itself (that is, trial by military commissions) is holding up fairly well to challenges; but that the courts are very uncomfortable with the CSRT (combatant status review tribunal) process - and with unilateral executive determinations of unlawful enemy combatant status.
In fact, the military judge (Keith J. Allred) in the Hamdan case, found the CSRT process to be deficient for a number of reasons (written opinion issued 17 Dec 2007). He then proceeded to determine Hamdan's status at a de novo hearing (5 & 6 Dec 2007), where both sides presented their proofs on the question of unlawful enemy combatant status vs. PW/POW status. He then entered findings of fact and concluded that Hamdan was an unlawful enemy combatant (written opinion issued 19 Dec 2007).
See, the following for links to Judge Allred's opinions, and new filings in the Hamdan MCA trial:
http://www.defenselink.mil/news/commissionspress.html
http://www.defenselink.mil/news/commissionsHamdan.html