Crimes, War Crimes and the War on Terror

[jmm99]

As predicted (in post #88), the government has a added 30 days (from 31 Aug - so really about a week from the order date) to complete presentation of its first 50 submissions - with 50 more to be filed each month thereafter.

No punishment for U.S. delay on detainees
Friday, September 19th, 2008 7:15 pm Lyle Denniston
.....
The federal judge overseeing some 200 detainees’ cases on Friday gave the government added time to supply its reasons for holding the prisoners and refused to impose any punishment for delays up to now, but warned that his patience may be growing thin. ...
..... The first 50 such returns are now due by Sept. 30, a month later, and 50 more will be due each month until all have been filed. ...

http://www.scotusblog.com/wp/no-puni...-on-detainees/

The order is here

http://www.scotusblog.com/wp/wp-cont...er-9-19-08.pdf

The opinion explaining the order is here.

http://www.scotusblog.com/wp/wp-cont...in-9-19-08.pdf

The order adds this interesting option for the government - transfer or release of detainees:

(order, p.2)
The Court further ORDERS that, pending further order of the Court, the government need not file factual returns or motions to amend factual returns at this time for petitioners approved for transfer or release from the United States Naval Base at Guantanamo Bay, Cuba.

The opinion makes it clear that the schedule is now a mandate:

(opinion, pp.5-6)
As it is disappointed in the government’s failure to meet the schedule the Court adopted based in part on the government’s assurances, the Court grants the government’s motion reluctantly. ... But the Court admonishes the government that, in allowing it an additional thirty days to file each set of factual returns in these cases, the Court is not merely setting a “goal” for which the government is to “strive,” ... Rather, the Court is ordering the government to produce at least fifty factual returns by month’s end, followed by at least fifty more each month thereafter until production is complete. Nor is the government’s “doubt that Petitioners’ counsel can respond, and the Court can adjudicate, cases at that pace,” Gov’t Reply 4, a basis on which the government can rely to disobey an order of this Court.

While the Court is not unsympathetic to the government’s current workload and that, since Boumediene was decided a little over three months ago, government “[a]ttorneys and others from multiple agencies have worked long and hard, nights and weekends,” see Gov’t Mot. 10-11, 10 n.3, the government has detained many of these petitioners for more than six years, and the time has come to provide them with the opportunity to fully test the legality of such detention in a prompt, meaningful manner. .....
.....
Review of the public and ex parte declarations assures the Court that the government is now on notice of the time needed “to accomplish the development and finalization of amended and original factual returns in the pending habeas cases,” Gov’t Reply 2. Going forward under the revised schedule resulting from the Court’s granting of its motion, consequently, the government cannot claim as a basis for failing to meet deadlines imposed by this Court that it “simply did not appreciate the full extent of the challenges posed,” Gov’t Mot. 3. Except for good cause shown, therefore, the Court will not tolerate any further delay. ....

Meanwhile, in Judge Leon's court, the first habeas evidentiary hearing is scheduled to begin in 2 weeks. The government has not yet convinced him to extend his timetable.

(same SCOTUSblog above)
The Justice Department has made a similar request for more time to file returns in the two dozen cases being handled by a different District judge, Judge Richard J. Leon. That judge had several times told Justice Department lawyers that, if the process was slowed down, he would summon government officials to his courtroom to explain in person.

Judge Leon has yet to rule on the sufficiency of the evidence already submitted - that is, whether it can be unsworn or whether a jurat will be required.

[jmm99]

There are three cases pending, which have been discussed in prior posts; but which do not involve the DTA and MCA cases involving Gitmo detainees. This is a brief update on them.

--------------------------------------
The Arar and Rasul cases involve claims of civil liability for alleged torture, etc. While the issues are somewhat different in each case, they boil down to which (if any) government officials can be sued in tort for the alleged offenses - none of these cases has been tried.

Ashcroft et al. off the civil liability hook (post # 46)

Arar v. Ashcroft
....
Synopsis
Arar v. Ashcroft is a federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged.
.....
Status
On December 9, 2008, oral argument will be heard by the Second Circuit Court of Appeals en banc.

http://www.ccrjustice.org/ourcases/c...ar-v.-ashcroft

Torture as a Federal Tort Claim ? (post # 65)

Rasul v. Rumsfeld
....
Synopsis
Rasul v. Rumsfeld is a lawsuit against former Secretary of Defense Donald Rumsfeld on behalf of four former detainees seeking damages for their arbitrary detention and torture while detained at Guantánamo.
.....
Status
On January 11, 2008, the Court of Appeals for the D.C. Circuit dismissed the case. The court affirmed the district court's dismissal of the constitutional and international law claims, and reversed the district court's decision that the Religious Freedom Restoration Act (RFRA) applied to Guantanamo detainees, dismissing those claims as well. On August 22, 2008, the plaintiffs filed a petition for certiorari before the U.S. Supreme Court.

http://www.ccrjustice.org/ourcases/c...ul-v.-rumsfeld

--------------------------------------------
Hamdan & al-Marri Updates (post # 48)

Al-Marri v. Pucciarelli
....
President’s domestic detention power tested
Friday, September 19th, 2008 1:30 pm Lyle Denniston
.....
Lawyers for the only detainee seized in the U.S. under presidential order and still in military captivity urged the Supreme Court on Friday to rule that no federal law and no part of the Constitution allows the President to order such detentions.

http://www.scotusblog.com/wp/preside...-power-tested/

This is a re-play of the Civil War case of Ex Parte Milligan, 71 U.S. 2 (1866); except that Al-Marri is a documented alien rather than a US citizen. The outcome will very likely hinge on the legal distinction between the theatre of operations (worldwide, assuming a GWOT), and a theatre of active hostilities (where US courts are not open for business) - and on whether SCOTUS will draw a distinction between US citizens (Milligan) and documented aliens.

-------------------------------------------
Since the issues in these cases are quite distinct from the issues in the Gitmo "War Crimes" cases, I will start new threads for them when I have the time.

[jmm99]

but I can bar transfers that would interfere with my habeas cases.

---------------------------------------------
A while ago, Selil was interested in whether the Federal courts would address prison conditions at Gitmo. I've noted an apparent reluctance by the DC District judges to involve themselves in that area (e.g., Judge Leon's decision not to bring the detainees before him at the habeas hearings he has scheduled).

Now, we do have a decision on this issue from Judge Hogan, as these cases move along and the law becomes clearer as to its outside parameters.

UPDATE: Boumediene and judicial powers
Monday, September 22nd, 2008 4:43 pm Lyle Denniston
...
UPDATE: Readers may note that the following contains materials from an earlier post on Monday, titled “Narrow reading of Boumediene.” The following is a complete rewrite to take account of other significant developments on Monday.
....
In those two orders, Judge Hogan gave a narrow interpretation of the Supreme Court’s Boumediene ruling. Hogan found that the Military Commissions Act of 2006 had taken away all authority of federal courts to examine “transfer, treatment, trial, or conditions of confinement” of any captive found by the government to be an “enemy combatant.” The Supreme Court did not nullify that provision in Boumediene, Hogan wrote, so the courts “have no jurisdiction” over detainees’ pleas over the conditions of their imprisonment at Guantanamo. One of the detainees sought access for his lawyers to his medical records and sought a blanket and mattress in his cell at Guantanamo; the other detainee sought uncensored copies of records and staff reports regarding his medical problems — he has had seizures.

http://www.scotusblog.com/wp/narrow-...of-boumediene/

The two orders and opinions, which are identical, are here and here.

https://ecf.dcd.uscourts.gov/cgi-bin...2004cv1254-293
https://ecf.dcd.uscourts.gov/cgi-bin...?2008cv1360-32

The key MCA provision before Judge Hogan is this:

(Latif opinion, p. 1)

In relevant part, Section 7 of the Military Commissions Act of 2006 (“MCA”), 28 U.S.C. § 2241(e), provides:

(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) [N]o 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 part in italics (1) was held unconstitutional by SCOTUS in Boumediene. Judge Hogan held that SCOTUS did not intend to hold part (2) unconstitutional; and that it took away his jurisdiction on the two petitions dealing with "detention, transfer, treatment, trial, or conditions of confinement".

(Latif opinion, p. 2, 3)

Cognizant of the long-standing rule of severability, this Court, therefore, holds that § 7(a)(2) remains valid and strips it of jurisdiction to hear a detainee’s claims that “relat[e] to any aspect of the detention, transfer, treatment, trial, or conditions of confinement,” 28 U.S.C. 2241(e)(2). See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (holding that a court must “refrain from invalidating more of the statute than is necessary whenever an act of congress contains unobjectionable provisions separable from those found to be unconstitutional” (internal alterations and quotations omitted)).
.....
In sum, while the Supreme Court’s decision in Boumediene gives Petitioner the right to challenge the fact of his confinement, 128 S. Ct. at 2262 (“Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.”), it says nothing of his right to challenge the conditions of his confinement, id. at 2274 (“[W]e need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.”). And MCA § 7(a)(2) extinguishes this Court’s jurisdiction to hear claims relating to such conditions. The Court, therefore, will deny Petitioner’s motion.

This is a logical opinion, based on a conservative (in the non-political sense) approach to statutory construction. It also has the practical advantage to the Federal judge of not becoming the administrator of Gitmo (e.g., "It's a naval base; not Vegas" - Judge Leon).

Lyle Denniston and Marty Lederman differ a bit on the implications of Judge Hogan's order:

(Lyle, from above source)

If Judge Hogan’s rulings withstand appeals, they would wipe out many of the claims that detainees have made since Boumediene – challenges to transfers, to transfers without first notifying detainees’ lawyers, to a lack of access to medical care and to their lawyers, to torture or abuse or to other living conditions in the various camps at Guantanamo.....

(Marty, from source below)

Lyle writes ... I think this is not quite right. What Judge Hogan held in the Latif case, fairly unremarkably, is simply that section 7(a)(2) of the MCA strips courts of power to consider GTMO detainees’ claims challenging conditions of confinement and transfers, and that the Supreme Court’s Boumediene decision did not resolve the constitutionality of section 7(a)(2).

Judge Hogan did not address whether and to what extent challenges to conditions or transfers are constitutionally protected (in habeas or otherwise) and, if so, whether section 7(a)(2) is constitutional, because the petitioner did not raise that constitutional argument.

http://www.scotusblog.com/wp/gtmo-co...ansfer-claims/

Marty is technically correct - for some reason, the constitutionality of part (2) was not argued.

(Latif opinion, p. 2)

Rather than arguing that MCA § 7(a)(2) is unconstitutional, Petitioner contends ....

So, the constitutionality of part (2) is still an open question - technically.

[jmm99]

--------------------------------------------
Judge Hogan also entered another order, which prohibited the transfer of one of the Gitmo detainees. Based on the redactions (name, place, etc.), the record in that case is largely classified.

We know of the order from a DoJ letter to the DC Circuit, with the redacted order, which is part of the public record in the presently under-appeal case of Kiyemba v. Bush, Nos. 05-5487, 05-5489, here.

http://www.scotusblog.com/wp/wp-cont...er-9-22-08.pdf

The letter (p.1-2) notes:

Pursuant to Rule 28(j), Fed. R. App. P., appellants/cross-appellees hereby submit copies of Judge Hogan’s order in In re Guantanamo Bay Detainee Litigation, Misc. No. 08-mc-0442, barring the transfer of a detainee. The order was issued under seal and then released publicly with redactions (including the date of issuance). The redacted-public version is attached.
.....
In light of the district court’s rationale, it appears the district courts are now poised to bar any transfer of a Guantanamo detainee. This reality counsels in favor of this Court’s expeditious resolution of the current appeals. We believe that in this context, if possible, this Court should resolve the key issues as soon as possible after oral argument and, if necessary, issue an order disposing of the issues prior to a full opinion.

The full text of the redacted order seems worthy of quote - if for no other reason than to prove that the Federal court system is capable of protecting classified information:

Pending before the Court are Petitioner’s (1) xxxx Motion For A Temporary Restraining Order Enjoining Transfer Of Petitioner To xxxx ("Injunction Motion") and (2) Motion xxxxxxxx.

For the reasons given during the telephonic hearing held on xxxx, the Court ORDERS that Petitioner’s Injunction Motion is GRANTED. Specifically, finding it necessary to protect its jurisdiction over Petitioner’s petition for a writ of habeas corpus, pursuant to its remedial authority under the All Writs Act, 28 U.S.C. § 1651, see Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008) (holding that, notwithstanding Section § 7(a)(2) of the Military Commissions Act of 2006, district court has authority under 28 U.S.C. § 1651 to enjoin transfer to protect its jurisdiction to determine the constitutionality of § 7(a)), the Court temporarily enjoins the government from transferring Petitioner from the United States Naval Base at Guantanamo Bay, Cuba, to xxxx pending the United States Court of Appeals for the D.C. Circuit’s decision in Kiyemba v. Bush, No. 05-5487 (consolidated with Nos. 05-5488, 05-5489, 05-5490, and 05-5492), which is set for oral argument on September 25, 2008.

The Court further ORDERS that Petitioner’s Motion xxxx is GRANTED in part and DENIED in part. Specifically, xxxxxxxxxxxxxx the government is not prohibited from sharing information contained in such pleadings with representatives of xxx.

This order is consistent with Judge Hogan's orders above (though not perfectly consistent).

The purpose of the habeas proceeding is to determine whether the government has evidence of probable cause (50 yards plus a nose) to believe that the detainee is an enemy combatant - if so, the MCA applies; if not, it does not.

If, for purposes of the habeas proceeding, the detainee were presumed to be an enemy combatant, 7(a)(2) would apply and bar any anti-transfer order. A transfer (detention in a foreign country X under its control, for example) could then be used to defeat the habeas proceeding, since the US would no longer have jurisdiction over the detainee.

Judge Hogan refused to grant that presumption for purposes of the habeas hearing. For purposes of prison conditions, he employed that presumption (at least implicitly) to dismiss the two prison condition petitions.

The three cases might have been handled in a slightly different manner, as follows:

1. The anti-transfer order would be justified by Judge Hogan's logic and denial of any presumption that habeas petitions are "enemy combatants" - the only issue in the habeas proceedings.

2. The petition about prison conditions would not be decided until after the habeas petition is decided on the merits. That would be a right of judicial scheduling and primacy.

3. The presumption re: "enemy combatant" would be rejected for all purposes (which IMO is correct); but that would be of no use to the detainee if the court found probable cause that the detainee was an enemy combatant. In that case, 7(a)(2) would apply to bar the petition on prison conditions. If the court found no probable cause (as the DC Circuit did in Parhat), then the question is the appropriate remedy - for which, we are still looking.

[jmm99]

Reuters
September 11 suspect calls U.S. trial "inquisition"
Wed Sep 24, 2008 3:32pm EDT
.....
By Randall Mikkelsen
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) ....
....
"We are your enemy," Khalid Sheikh Mohammed told the judge, Marine Col. Ralph Kohlmann. "You are an officer in the United States armed forces ... Myself and my brothers will be judged by the same armed forces that are killing our people." Mohammed spoke in English as he outlined objections at a pretrial hearing to Kohlmann on behalf of himself and four accused September 11 co-conspirators, who face a potential death sentence if convicted. ....

http://www.reuters.com/article/domes...080924?sp=true

KSM's advocacy came in support of the detainee's motion to disqualify the military judge under MCA §949f.(a) & (b):

(a) ....The military judge and members of a military commission under this chapter may be challenged by the accused or trial counsel for cause stated to the commission. The military judge shall determine the relevance and validity of challenges for cause.
...
(b) ...The military judge may not be challenged except for cause...

See also RCM Rule 902, Disqualification of military judge, Manual for Courts-Martials - 2008 ed., p. II-88, for the standards under the UCMJ, to the same effect.

The judge denied the motion.

Looks like KSM and his four friends plan on active participation in the trial.

[jmm99]

but, not quite yet.

All Uighurs now off “enemy” list
Wednesday, October 1st, 2008 9:48 pm Lyle Denniston
.......
The Justice Department, in a move that could put new pressure on a federal judge to decide whether Guantanamo prisoners are to be released when no longer considered “enemy combatants,” has decided to take all 17 members of a Chinese Muslim minority — the Uighurs — off of that enemies list.
....
.... lawyers for the 12 prisoners promptly asked the judge handling their habeas cases — District Judge Ricardo M. Urbina — to order their immediate release after a hearing in his Court next Tuesday. “The government,” that memo said, “has abandoned any right to contend that it may justify the imprisonment of any petitioner before this Court on the grounds that he is an ‘enemy combatant.’ ”

http://www.scotusblog.com/wp/all-uig...ff-enemy-list/

The government's filing is here

http://www.scotusblog.com/wp/wp-cont...mo-9-30-08.pdf

The Uighurs' petition for immediate release is here.

http://www.scotusblog.com/wp/wp-cont...mo-10-1-08.pdf

The interesting legal point here is that, by conceding that the Uighurs are not "enemy combatants", the government has, in effect, restored their full habeas rights - as well as any other rights barred by MCA. At least that is what they are arguing:

But our dispute with the government on this point is now academic, for the government has conceded it away in this case. By its own terms, the habeas-stripping statute applies only to an alien “determined by the United States to have been properly detained as an enemy combatant or [who] is awaiting such determination,” 28 U.S.C. § 2241(e)(1). Subsection (2), which purports to bar ancillary remedies — such as, presumably, remedies related to conditions of confinement — also applies only to that defined population. Id. § 2241(e)(2). The mandate has issued in Parhat v. Gates, which means that, as a matter of law, Parhat has never been properly determined to be an enemy combatant. All the other Petitioners are “in the same category,” the
government now says. Thus, even if the habeas-stripping statute succeeded in lopping off statutory rights for other Guantanamo prisoners, Sections 2241 and 2243 (and the rest of statutory habeas) were never stripped as to these Petitioners.

We'll see what Judge Urbina will do with this petition next Tuesday.

Judge Urbina's bio here.

http://www.dcd.uscourts.gov/urbina-bio.html

[jmm99]

This did not take long.

Federal Judge Orders Uighurs in U.S. by Friday
Tuesday, October 7th, 2008 12:29 pm | Ben Winograd
....
A federal judge has ordered the government to release a group of 17 Chinese Muslims held at Guantanamo Bay into the United States, and to present in his courtroom at 10 a.m this Friday.

At a hearing this morning in US District Court in Washington, Judge Ricardo Urbina said the government no longer possessed authority to detain the Uighurs, whom the government has conceded are not enemy combatants and has acknowledged cannot be returned to China for fear of potential persecution.

Judge Urbina ordered a subsequent hearing to be held October 16th, at which members of the Department of Homeland Security could speak to what conditions they wish to apply to the Uighurs presence in the country.

http://www.scotusblog.com/wp/federal...-us-by-friday/

This decision, if it stands, has somewhat limited application to Gitmo detainees in general. The requirement for release from Gitmo to the US (where the detainees will presumably be treated as undocumented immigrants - since the judge ordered DHS into the picture) is a final determination, or concession by the government, that the detainee is not an enemy combatant.

We shall see if the government appeals.