Crimes, War Crimes and the War on Terror

[jmm99]

B. The Paperwork at Issue

The DTA is of general application to all alien detainees, whether at Gitmo or in Iraq or Afghanistan. It represents an initial stage in the process (and for those detainees not charged under the MCA, the final stage). The closest domestic law enforcement analogy is the arrest and initial incarceration phase (police investigation, arrest warrant and affidavit before a magistrate, jail booking).

So, the DTA paperwork should, if properly done, reflect similar features. Many who are reading this are very familiar with the domestic law paperwork, so I will not dwell on that. Police investigative reports (like everything else) may be good, bad or indifferent. My own experience has generally been positive - they nail down the facts of the case, the witnesses, the crime scene, accused's admissions, technical evidence, etc. Of course, certain aspects have to be developed as one moves to the charging stage and into preliminary and trial stages - in MI, by complaint, preliminary examination (usually a bind-over), information, pre-trial motion practice and trial (followed by conviction and hanging - not really, but just checking to see if you are still awake).

For those familiar with domestic law enforcement, I think you will find - if you look at the actual DTA paperwork - that it is not up to the standards set by our police agencies. That is my opinion after after having downloaded (from the DoD webpages) and reviewed some of it. That is rather surprising since the government has had years to prepare this preliminary paperwork.

The reversal in Parhat of the CSRT determination (total lack of evidence), and Judge Allred's felt need to re-determine de novo Hamdan's status as an enemy combatant (he found that status based on the evidence he required to be presented), support my opinion about DTA paperwork.

The skeptic in me sends up a red flag - does the government really have evidence against many of these detainees that would meet the probable cause test which we are so used to in obtaining an arrest warrant - or, in making an arrest without warrant ?

That is, of course, the question being asked by the detainees' attorneys in the "Bismullah" discovery cases. That there should be some discovery of the evidence used to make the CSRT determination seems to me to be a no-brainer - including exculpatory evidence if it exists. The government seems to think differently. The issue is whether the Brady discovery doctrine (Brady v Maryland, from the early 60's) is a fundamental due process rule, since its purpose is to guard against convicting an innocent person.

We could live without Miranda and many of the various search and seizure rules requiring exclusion of credible evidence because of technical errors (the constable has blundered, so the guilty must go free). In fact, we lived under the "totality of circumstances" exclusionary concept for almost 200 years without losing the integrity of our judicial system. The Brady doctrine (applied with some common sense) is of a different order of magnitude.

The "Bismullah" requests also involve requests for discovery of relevant evidence not used in the CSRT determinations - which the government also opposes.

It is interesting that, in SEC 1005(a) of the DTA, we do find a "new evidence" requirement:

(3) Consideration of new evidence.--The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.

That provision is one factor in the "Bismullah" requests for discovery of "government information"

[jmm99]

I am not going to dwell on the MCA and its commission procedure. MCA is very similar to the courts martial process (albeit with some shortcuts). We have seen one complete trial (Hamdan) under that statute. The military has handled that process well, in my opinion. So, I will address only the provisions for review by Article III courts.

The DTA act in SEC 2005(e)(2) provides for review of MCA commission adjudications by the DC Circuit Court of Appeals, again giving some leeway for interpetation.

(e) Judicial Review of Detention of Enemy Combatants.--
.....
(3) Review of final decisions of military commissions.--

(A) In general.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).

(B) Grant of review.--Review under this paragraph--

(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or

(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.

(C) Limitation on appeals.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--

(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a final decision has been rendered pursuant to such military order.

(D) Scope of review.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and

(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.

The MCA also provides for review of military commission adjudications, in two stages. First, we have the Court of Military Commission Review:

§ 950f. Review by Court of Military Commission Review

(a) ESTABLISHMENT.—The Secretary of Defense shall establish a Court of Military Commission Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing military commission decisions under this chapter, the court may sit in panels or as a whole in accordance with rules prescribed by the Secretary.

(b) APPELLATE MILITARY JUDGES.—The Secretary shall assign appellate military judges to a Court of Military Commission Review. Each appellate military judge shall meet the qualifications for military judges prescribed by section 948j(b) of this title or shall be a civilian with comparable qualifications. No person may be serve as an appellate military judge in any case in which that person acted as a military judge, counsel, or reviewing official.

(c) CASES TO BE REVIEWED.—The Court of Military Commission Review, in accordance with procedures prescribed under regulations of the Secretary, shall review the record in each case that is referred to the Court by the convening authority under section 950c of this title with respect to any matter of law raised by the accused.

(d) SCOPE OF REVIEW.—In a case reviewed by the Court of Military Commission Review under this section, the Court may act only with respect to matters of law.

From there, one moves to the DC Circuit and the Supreme Court:

§ 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court

(a) EXCLUSIVE APPELLATE JURISDICTION.—(1)(A) Except as provided in subparagraph (B), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.

(B) The Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted.

(2) A petition for review must be filed by the accused in the Court of Appeals not later than 20 days after the date on which—

(A) written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or

(B) the accused submits, in the form prescribed by section 950c of this title, a written notice waiving the right of the accused to review by the Court of Military Commission Review under section 950f of this title.

(b) STANDARD FOR REVIEW.—In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law.

(c) SCOPE OF REVIEW.—The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of—

(1) whether the final decision was consistent with the standards and procedures specified in this chapter; and

(2) to the extent applicable, the Constitution and the laws of the United States.

(d) SUPREME COURT.—The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28.

So, the DTA and MCA (as they are being applied) do not prohibit ultimate access to an Article III Federal court; but they do limit that access to specific courts and time frames.

That BTW, is not much different from the situation where a state court defendant (regardless of his Federal law claims) must proceed through the state court system - in MI, District Court, Circuit Court, Court of Appeals, Supreme Court - before seeking review by SCOTUS (which is rarely granted).

The state defendant with Federal law claims may also seek habeas relief in Federal District Court, but that relief is limited in both scope and time frame.

It is in the area of habeas review that the DTA and MCA limitations have been dismantled in part.

[jmm99]

The DTA SEC 2005(e)(1) amendment to 28 USC 2441 also limits Federal court jurisdiction in two ways:

(1) In general.--Section 2241 of title 28, United States Code, is amended by adding at the end the following:

``(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--

``(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

``(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

``(A) is currently in military custody; or

``(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.''.

The MCA also weighs in and limits habeas and other Federal court review:

SEC. 7. HABEAS CORPUS MATTERS.

(a) IN GENERAL.—Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109–163 (119 Stat. 3477) and inserting the following new subsection (e):

(e)(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 paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), 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 habeas limitations in DTA and MCA have fallen to the Boumediene decision, which has been sliced, diced and discussed above. That decision applies to aliens and hinges on the territorial test for the constitutional scope of the habeas remedy. That was a close 5-4 decision.

Note that a different approach was taken in the Manuf case (US citizens held in Iraq) which applied a citizenship test for the constitutional scope of the habeas remedy. The two decisions are not inconsistent. The latter simply says that US citizens can have more rights than aliens. Manuf was a unanimous decision.

Note that Boumediene's majority opinion was far less sweeping than the 1866 decision in Ex Parte Milligan, which involved a US citizen tried in Indiana which was within the theatre of war (it was a military district), but not within a theatre of hostilities at the time. Besides, the Federal courts were very much open for business. In fact, the commander of the Indiana military district (a lawyer as well as a BG) was very much opposed to using a military commission in Milligan's case. He was relieved from his command.

In any event, the Milligan court reached a unanimous result - invalidating Milligan's proceedings in toto. The justices differed 5-4 in their logic; one side by a more radical constitutional interpretation, the other by a more conservative legislative construction.

The opinions in Ex parte Milligan, 71 U.S. 4 Wall. 22 (1866), are here.

http://supreme.justia.com/us/71/2/case.html

While the habeas limitations of the DTA and MCA are gone - note that the scope of the habeas remedies (if any are granted) still remain a work in process - the "other actions" limitations of the DTA and MCA still remain in effect. They are not necessarily unconstitutional because there are many other considerations involved.

The lower court opinions, so far, have been generally respectful of the "other actions" limitations. E.g., Judge Leon's "it's a naval base, not Vegas."

from DTA (in full above)

``(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

``(A) is currently in military custody; or

``(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.''.

from MCA (in full above)

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), 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.’’.

So, to put it in the simplest terms, the courts are not in the process of dismantling DTA and MCA, but they are interpreting those statutes independently of what the government seems to want.

The habeas limitation was, of course, a "contempt of court" for historical reasons - and was punished accordingly. However, affirmation of a constitutional habeas jurisdiction does not mean that jurisdictionn will be used to grant unlimited habeas relief. That is an issue for the coming months and Judge Leon.

Questions 2 and 2b will probably be answered more briefly - since we have this background noise out of the way.

Now, if permitted, I have to pay some Labor Day attention to my wife; who may not be Ann-Margaret, but is a lot better looking than this stuff

[jmm99]

Cross-posted on my last part - shades of Pearl Harbor & the 14-part Japanese mesage.

Selil
If you are ever in da region (South East Chicago) I'll buy you a beverage or nine. Now you have me wanting to attend law school when I finish my PhD.

1st sentence - agreed. Also, reciprocal if you get up here (which might be safer). Also, same invitation extended to our UK friend, who hopefully was not Witness B.

As to 2nd sentence, if you are masochist enough, law school should be your pleasure. The actual practice is superior to the schooling.

I'm waiting for the 75 page High Court case to download. Haven't had to read one of those in a while.

As the last sentence of final post indicates, I will return with some sort of answers - sometime this week.

[jmm99]

I read through Lord Justice Thomas' Opinion, which is quite interesting from a comparative law standpoint; and seems a rather well-written opinion from the standpoint of UK law. I now understand the Norwich case and its requirements to compel 3rd party document disclosure - different from ours, which is usually more direct.

I note that he did not make definitive factual findings confirming BM's allegations; but did find them to be arguable - which was sufficient to support a judgment under Norwich compelling disclosure of the UK government documents. This opinion has to be read carefully as to evidenced facts, alleged facts contested, and alleged facts not contested for lack of knowledge. Lord Justice Thomas makes the appropriate distinctions; the Guardian article was not so circumspect.

According to the NY Times, the UK case may become moot.

World Briefing | Europe
Britain: U.S. Acts on Court Files
By RAYMOND BONNER
Published: August 29, 2008
In a reversal, the Bush administration turned over documents that may support allegations by a Guantánamo Bay detainee, Binyam Mohamed, that he was tortured while in American custody in Pakistan in early 2002, a British court disclosed Friday.....
.....
On Wednesday the State Department informed the British court that the documents had been turned over to the Pentagon official who decides whether a Guantánamo case should go to trial. ...

http://www.nytimes.com/2008/08/30/wo...html?ref=world

The MCA charge sheet for Binyam Mohamed is here - his case is linked to Jose Padilla.

http://www.defenselink.mil/news/Nov2...04muhammad.pdf

Wiki Bio

Binyam Ahmed Mohamed (Arabic: بنيام محمد‎) (also described as Benjamin Mohammed, Benyam (Ahmed) Mohammed and Benyam Mohammed al-Habashi) (born 24 July 1978) is an Ethiopian national who is detained in Guantanamo Bay prison. In 1994, Mohamed sought asylum in the UK. He was captured and transported in the frame of the US extraordinary rendition program.....

http://en.wikipedia.org/wiki/Binyam_Ahmed_Muhammad

ACLU Biography of Plaintiff Binyam Mohamed

NEW YORK - In July of 2002, Ethiopian native Binyam Mohamed was taken from Pakistan to Morocco on a Gulfstream V aircraft registered with the Federal Aviation Administration (FAA) as N379P. Flight and logistical support services for this aircraft were provided by Jeppesen Dataplan, Inc. In Morocco, Mohamed was handed over to agents of Moroccan intelligence who detained and tortured him for the next 18 months. In 2004, Mohamed was rendered to a secret U.S. detention facility in Afghanistan. Flight and logistical support services for this aircraft, a Boeing 737 business jet, were also provided by Jeppesen. In Afghanistan Mohamed was tortured and inhumanely treated by United States officials. Later that same year Mohamed was rendered a third time by U.S. officials, this time to Guantánamo Bay, Cuba where he is presently. ....

http://www.aclu.org/safefree/torture...s20070530.html

ACLU Lawsuit vs Boeing Subsidiary

ACLU Sues Boeing Subsidiary for Participation in CIA Kidnapping and Torture Flights (5/30/2007)
.....
NEW YORK - The American Civil Liberties Union today filed a federal lawsuit against Jeppesen Dataplan, Inc., a subsidiary of Boeing Company, on behalf of three victims of the United States government's unlawful "extraordinary rendition" program. The lawsuit charges that Jeppesen knowingly provided direct flight services to the CIA that enabled the clandestine transportation of Binyam Mohamed, Abou Elkassim Britel and Ahmed Agiza to secret overseas locations where they were subjected to torture and other forms of cruel, inhuman and degrading treatment. ...

http://www.aclu.org/safefree/torture...s20070530.html

On this one (which might be messy), we will just have to wait to see what the military judge rules - unless the administration decides to dismiss the charges and release BM. From the charge sheet, he fits the junior man-eater category.

[jmm99]

I thought there might be a more direct route than a separate legal action, which might exist under US law to obtain evidence to use in a foreign proceeding similar to the MCA (i.e., if the UK had an MCA and a potential defendant sought discovery of US-held documents). Not so, after looking at some resources here at the office.

Mohammed's charges have not yet been referred to a military commission; but even if they were pending for trial, there might be some question about whether discovery of UK documents could be obtained, since the jurisdiction of the US does not extend to the UK.

The MCA discovery provisions are as follows:

‘‘§ 949j. Opportunity to obtain witnesses and other evidence

‘‘(a) RIGHT OF DEFENSE COUNSEL.—Defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense.

‘‘(b) PROCESS FOR COMPULSION.—Process issued in a military commission under this chapter to compel witnesses to appear and testify and to compel the production of other evidence—

‘‘(1) shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue; and

‘‘(2) shall run to any place where the United States shall have jurisdiction thereof.

‘‘(c) PROTECTION OF CLASSIFIED INFORMATION.—(1) With respect to the discovery obligations of trial counsel under this section, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable—

‘‘(A) the deletion of specified items of classified information from documents to be made available to the accused;

‘‘(B) the substitution of a portion or summary of the information for such classified documents; or

‘‘(C) the substitution of a statement admitting relevant facts that the classified information would tend to prove.

‘‘(2) The military judge, upon motion of trial counsel, shall authorize trial counsel, in the course of complying with discovery obligations under this section, to protect from disclosure the sources, methods, or activities by which the United States acquired evidence if the military judge finds that the sources, methods, or activities by which the United States acquired such evidence are classified. The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence.

‘‘(d) EXCULPATORY EVIDENCE.—(1) As soon as practicable, trial counsel shall disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused. Where exculpatory evidence is classified, the accused shall be provided with an adequate substitute in accordance with the procedures under subsection (c).

‘‘(2) In this subsection, the term ‘evidence known to trial counsel’, in the case of exculpatory evidence, means exculpatory evidence that the prosecution would be required to disclose in a trial by general court-martial under chapter 47 of this title.

Subsection (d) "Exculpatory Evidence" is the Brady doctrine.

Lord Justice Thomas was fully aware of these provisions, but doubted their direct applicability to the UK.

Possibly, discovery in a foreign country could be obtained more directly by treaty provisions or "letters rogatory" - I have been involved in the those procedures but rarely in 40 years.

US DoS - Preparation of Letters Rogatory
......
Summary: Letters rogatory are the customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement. Letters rogatory are requests from courts in one country to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, could constitute a violation of that country's sovereignty. Letters rogatory may be used in countries where multi-lateral or bilateral treaties on judicial assistance are not in force to effect service of process or to obtain evidence if permitted by the laws of the foreign country. 22 CFR 92.54 provides a definition of letters rogatory.

http://travel.state.gov/law/info/jud...icial_683.html

An equitable bill of discovery seems an alternative remedy. Here is an article on that remedy - which I have never used as a practicing lawyer.

The complaint for a pure bill of discovery: a living, breathing modern day dinosaur?
Publication Date: 01-MAR-04
Publication Title: Florida Bar Journal
Format: Online
Author: Morman, Daniel
......
This article examines the ancient equitable remedy known as a pure bill of discovery. A pure bill of discovery is initiated by filing a complaint which seeks relief in the form of discovery. It is usually brought to obtain disclosure of facts within a defendant's knowledge, or of deeds or writings or other things in the defendant's custody, or in the aid of prosecution or defense of an action in some other court. ... Most discovery requirements in cases can be met by using the standard methods available in the rules. Nevertheless, a complaint for a pure bill of discovery can satisfy certain needs that can not be met under the rules....
.....
A complaint must show that the disclosure of facts which it seeks is necessary to enable the plaintiff to maintain his cause of action or defense in a suit pending or about to be brought in another court, and that the cause of action or defense is legally sufficient. ... The particular matters as to which discovery is sought must, of course, be set out clearly and definitely. ....

http://goliath.ecnext.com/coms2/summary_0199-131418_ITM

Think about the British case a bit more. Would it really be mooted if the US documents were disclosed fully ? Are the US documents the same as the Brit documents ?

[jmm99]

because of the government's refusal to provide discovery in many detainee cases.

Detainees: U.S. must be punished for delay
Tuesday, September 9th, 2008 6:59 pm Lyle Denniston
......
In a plea for a stiff rebuke of the federal government, lawyers for Guantanamo Bay detainees on Tuesday asked a U.S. District judge to impose severe sanctions for delays that the attorneys said were of the government’s own making — delays that are already slowing down court review of military detentions. Even as that maneuver unfolded, the government asked another District judge to give it more time and new filing deadlines in other detainee cases — a move likely to meet the same resistance. ....

http://www.scotusblog.com/wp/detaine...hed-for-delay/

The bottom line requested by the detainees is:

Response p. 2 (same at pp. 11-12)
....
The Court must do more than tell Respondents to go and sin no more. The Court should order Respondents to adhere to the Scheduling Order. Moreover, to sanction Respondents for violating the August 29, 2008 deadline, and to deter violations of future deadlines, the Court should deny without further consideration all late-filed motions to amend a return (including motions due but not filed by August 29, 2008), unless the Petitioner waives his objection to a late filing. In the case of late-filed original returns, the Court should require Respondents to file within seven days all such returns as were due by August 29, 2008; and if Respondents fail to meet that deadline or any existing future deadline for filing original returns, the Court should impose meaningful sanctions, including appropriate default, evidentiary and/or monetary sanctions. Nothing less will do to ensure Respondents’ future compliance with the Court’s deadlines and protect Petitioners’ rights. ....

http://www.scotusblog.com/wp/wp-cont...ief-9-9-08.pdf

Of course, asking for sanctions does not mean you will get them. So, again we have to wait for the judges to decide the issues.

In an ordinary Federal case, I would not want to be on the wrong side of a judge's scheduling order - especially when I suggested the timetable - and when one of my agency's filed a declaration that I was the cause of the delay.

Note: Judge Leon (a pre-9/11 nominee by a day), for example, has governmental experience, as an attorney in investigations concerning covert operations. See, his official bio (friendly looking guy from the photo) and wiki bio

http://www.dcd.uscourts.gov/leon-bio.html
http://en.wikipedia.org/wiki/Richard_J._Leon

In any event, bad PR for DoJ - again.

PS:- Selil. I haven't forgotten your Gitmo question, which in its own way, raises some important issues about the background and reasoning behind the diverse opinions in Rasul and Boumediene. You have taken me back to the 1890s (the guano island & the Japanese consular court murder cases), the Insular Cases, etc. I am hammering away at something, but it will be long (so people can see what the law is, not what I say it is). Anyway, it will be a new thread here if I feel what I write is worthwhile posting - more reference material for all of these cases.