Crimes, War Crimes and the War on Terror

[jmm99]

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:

(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,

(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,

(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/

[jmm99]

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:

(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.

[jmm99]

is back in the news as his lawyers seek to stop his military commission trial, set for 21 Jul 2008.

Article by Lyle Denniston here:

http://www.scotusblog.com/wp/new-cha...als/#more-7638

New challenge to war crimes trials
Thursday, July 3rd, 2008
Lyle Denniston
....
Lawyers for Salim Ahmed Hamdan — the Yemeni national detained at Guantanamo Bay whose case led to the scuttling of President Bush’s first attempt to set up military trials for terrorism suspects — moved on Thursday to stop the replacement system enacted by Congress. In legal filings in U.S. District Court, Hamdan’s counsel sought a court order blocking the scheduled military commission trial of Hamdan, now due to begin on July 21.
.....
UPDATE 4:23 p.m. District Judge James Robertson, moving this new case along swiftly, has told the Justice Department to file its opposition on Monday, July 14, and detainee’s counsel to file their reply on Wednesday, July 16. The judge set oral argument on the motion for Thursday, July 17.

More than 250 cases are expected in the DC district::

http://www.scotusblog.com/wp/detaine...istrict-court/

Federal District judges in Washington, D.C., who will handle scores of pending and likely future challenges by Guantanamo Bay detainees to their confinement, decided on Monday to shift them temporarily to one judge to work on ways to process the cases. Attorneys for detainees began receiving notices Tuesday that the judges, in a closed-door session earlier in the day, had agreed that Senior District Judge Thomas F. Hogan would handle “coordination and management” issues. The underlying cases will remain with the individual judges for future action on the merits.

Of course, there was an exception - so, 18 cases (including Boumediene) are following a separate track:

http://www.scotusblog.com/wp/separat...ome-detainees/

A federal judge in Washington, refusing to give up even temporarily the handling of 18 cases by Guantanamo Bay detainees seeking to challenge their captivity, moved forward with those on Wednesday, calling in lawyers for an update on the cases’ status on July 10. Among the 18 cases is the lead case that led to the Supreme Court’s decision allowing habeas pleas by the captives – Boumediene v. Bush (District Court docket 04-1166, Supreme Court docket 06-1195).

For more in depth coverage of the major detainees, see the DoD's Military Commissions page at:

http://www.defenselink.mil/news/commissions.html

E.g.,

Military Commissions Act
Military Commissions Manual
Military Commissions Regulation
Military Commissions Trial Judiciary Rules of Court
United States Court of Military Commission Review
...
Commission Cases

Sept. 11 Co-Conspirators *New Items*
Khalid Sheikh Mohammed
Walid Muhammad Salih Mubarek Bin 'Attash
Ramzi Binalshibh
Ali Abdul Aziz Ali
Mustafa Ahmed Adam al Hawsawi
[etc.]

Since this site includes the charge sheets and MC orders (including the Dec 2007 orders for Hamdan), one can draw one's own conclusions about how "due" the process has been.

At least, in Hamdan's case (after reading the MC judge's decisions in Dec 2007), here and here:

http://www.defenselink.mil/news/commissionsHamdan.html

http://www.defenselink.mil/news/commissionspress.html

12/19/2007 - Ruling in Motion to Dismiss for Lack of Jurisdiction - Salim Ahmed Hamdan
12/17/2007 - Ruling on Defense Motion for Article 5 Status Determination - Salim Ahmed Hamdan

I fail to see the problem. They were well considered decisions.

[jmm99]

The military commission trial of Hamdan will move forward next week, unless enjoined by a higher court.

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/

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:

(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.

----------------------------------------------
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

[jmm99]

for now; and the MC trial begins Monday.

Analysis by Lyle Denniston

UPDATE 2:15 p.m. The judge’s refusal to delay the Hamdan trial starting Monday will not be challenged in a higher court. Georgetown law professor Neal Katyal, one of the defense lawyers, said: “We have decided not to appeal Judge Robertson’s decision.” If the detainee ultimately is convicted, he will have the option then to appeal.
....
While the substance of Judge Robertson’s “memorandum order” closely tracked his oral announcement a day before, at several points he impliedly questioned some aspects of the trial process set up by Congress under the Military Commissions Act of 2006.
.....
The judge, at the same time, seemed impressed by what he called “significant improvements” in the war crimes trial process under the 2006 law, compared to the process that the judge himself had struck down in 2004 in an earlier case involving Hamdan; that earlier process had been set up solely under Presidential order. (The Supreme Court in 2006 nullified that earlier system, mostly agreeing with Judge Robertson.)

The judge indicated again, as he had Thursday, that the fact that the two other branches of government had combined to create the new system was a key factor in his ruling. “Where both Congress and the President have expressly decided when Article III review is to occur, the courts should be wary of disturbing their judgment.”

http://www.scotusblog.com/wp/hamdan-...now-available/

Judge Robertson's written opinion, filed today, is here:

https://ecf.dcd.uscourts.gov/cgi-bin...2004cv1519-108

[jmm99]

for those that are interested in day to day, SCOTUSblog will be linking to the news stories on the MC trial, as well as linking to any written rulings that are issued. For example, today's coverage:

Hamdan Military Commission Coverage
....
Due to reader interest in Salim Ahmed Hamdan, the military detainee who has admitted to formerly serving as a driver for Osama bin Laden, this post will provide links to coverage from designated major media outlets of his ongoing military commission trial from Guantanamo Bay, Cuba. Going forward, readers can access this post by clicking the SCOTUSblog logo at the top of the right sidebar.

July 22

Miami Herald: “Trial arguments describe world of al Qaeda,” by Carol Rosenberg (link)
New York Times: “Military Trial Begins for Guantanamo Detainee,” by William Glaberson and Eric Lichtblau (link)
Washington Post: “Prosecutors Begin Arguments in Hamdan Case,” by Jerry Markon (link)

http://www.scotusblog.com/wp/

[jmm99]

to sort out - the appeals and hearings in a number of pending DC cases.

US files first appeal in new detainee cases
Friday, July 25th, 2008 3:05 pm Lyle Denniston
....
The Justice Department on Friday notified the federal judge in charge of coordinating scores of new Guantanamo Bay detainees’ cases that it is appealing his order requiring the government to give advance notice before it moves any prisoner out of the military prison on the island of Cuba. This marks the first appeal in what could be a number of them as deep controversies continue to split government attorneys and lawyers for the captives.
...
In a notice of appeal Friday, the Department said it was appealing Hogan’s order “in its entirety” in 117 pending habeas cases filed by detainees. The notice, as usual, contained no explanation of the basic and scope of the appeal, other than contesting all of the Hogan order.

First detainee plea to come to U.S.
Thursday, July 24th, 2008 6:29 pm Lyle Denniston
....
In the first effort to win release into the U.S. — to the Washington, D.C., area — of a Guantanamo Bay detainee, lawyers for a member of a Chinese Muslim minority have asked a federal judge to order the Pentagon to free him immediately. The individual is Huzaifa Parhat, whose case is the furthest along of any of more than 200 Guantanamo prisoners who are challenging their detention.

http://www.scotusblog.com/wp/

----------------------------------------
The D.C. District Court now provides a webpage for the Gitmo cases.

WASHINGTON, DC., July 25, 2008 - The United States District Court for the District of Columbia today unveiled a web page for the Guantanamo detainee habeas cases before the Court. The webpage includes links to recent opinions and orders, press releases, notices and general information about the Court. A link to the web page can be found at the top of the Court’s home page www.dcd.uscourts.gov

which leads to

http://www.dcd.uscourts.gov/public-docs/gitmo

Looks like the whole ball of wax (hundreds of ops & orders)- maybe, I should get back into trial law. Not likely, John Michael, not likely.