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Thread: Crimes, War Crimes and the War on Terror

  1. #521
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    Default Binyam Mohamed - Civil Action Dismissed

    Binyam Mohamed will have to rely on his British civil actions because his US civil action was dismissed by the 9th Circuit Court of Appeals sitting en banc, Mohamed v. Jeppesen Dataplan (reported at SCOTUSBlog):

    Lyle Denniston, Reporter
    Posted Wednesday, September 8th, 2010 9:37 pm

    “Rendition” challenge scuttled

    Circuit Court, citing “state secrets,” dismisses detainees’ claims that CIA transported them to “black sites” for interrogation and torture.

    Raising further the prospect that the courts may never rule on the legality of the Central Intelligence Agency’s alleged program of “rendition” of terrorism suspects to other countries for questioning and perhaps for torture, the en banc Ninth Circuit Court on Wednesday dismissed the latest challenge. Dividing 6-5, the Court relied on a broad “state secrets” theory to put a stop — before any evidence was offered — to a case against a small air flight planning firm that allegedly worked with the CIA to arrange those trips.

    Together with the Fourth Circuit Court’s 2007 decision in the case of Khaled el-Masri (which the Supreme Court refused to hear that year, in case 06-1613), the Ninth Circuit’s ruling in Mohamed, et al., v. Jeppesen Dataplan, Inc. (Circuit docket 08-15694) goes far toward insulating the “rendition” program from judicial review — unless the Supreme Court took on that case and reversed the result.

    Given how vigorously the Jeppesen case has been pursued by both sides, it seems highly likely that it will be appealed to the Supreme Court. ... (much more in article)
    As Lyle points out in his article's body, the 6-5 opinion (actually a 5-5-1 opinion with the "1" voting with one "5" on one issue and with the other "5" on another issue) may not be much of a precedent - except in this case, which throws Binyam and his friends out of court.

    The opinion itself is scarcely a barn-burner in favor of the USG (not surprising given its venue in the 9th Circuit, the most reversed circuit):


    FISHER, Circuit Judge:

    This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.

    On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court.


    We begin with the factual and procedural history relevant to this appeal. In doing so, we largely draw upon the three judge panel’s language in Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949-52 (9th Cir.) (Jeppesen I), rehearing en banc granted, 586 F.3d 1108 (9th Cir. 2009). We emphasize that this factual background is based only on the allegations of plaintiffs’ complaint, which at this stage in the litigation we construe “in the light most favorable to the plaintiff[s], taking all [their] allegations as true and drawing all reasonable inferences from the complaint in [their] favor.” Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). Whether plaintiffs’ allegations are in fact true has not been decided in this litigation, and, given the sensitive nature of the allegations, nothing we say in this opinion should be understood otherwise.

    .... [setting out allegations in the complaint] ....

    C. Procedural History

    Before Jeppesen answered the complaint, the United States moved to intervene and to dismiss plaintiffs’ complaint under the state secrets doctrine. The then-Director of the CIA, General Michael Hayden, filed two declarations in support of the motion to dismiss, one classified, the other redacted and unclassified. The public declaration states that “[d]isclosure of the information covered by this privilege assertion reasonably could be expected to cause serious — and in some instances, exceptionally grave — damage to the national security of the United States and, therefore, the information should be excluded from any use in this case.” It further asserts that “because highly classified information is central to the allegations and issues in this case, the risk is great that further litigation will lead to disclosures harmful to U.S. national security and, accordingly, this case should be dismissed.”

    The district court granted the motions to intervene and dismiss and entered judgment in favor of Jeppesen, stating that “at the core of Plaintiffs’ case against Defendant Jeppesen are ‘allegations’ of covert U.S. military or CIA operations in foreign countries against foreign nationals — clearly a subject matter which is a state secret.” Plaintiffs appealed. A three judge panel of this court reversed and remanded, holding that the government had failed to establish a basis for dismissal under the state secrets doctrine but permitting the government to reassert the doctrine at subsequent stages of the litigation. Jeppesen I, 579 F.3d at 953, 961-62. We took the case en banc to resolve questions of exceptional importance regarding the scope and application of the state secrets doctrine. See Fed. R. App. P. 35(a)(2).

    The government maintains its assertion of privilege on appeal, continuing to rely on General Hayden’s two declarations. While the appeal was pending Barack Obama succeeded George W. Bush as President of the United States. On September 23, 2009, the Obama administration announced new policies for invoking the state secrets privilege, effective October 1, 2009, in a memorandum from the Attorney General. See Memorandum from the Attorney Gen. to the Heads of Executive Dep’ts and Agencies on Policies and Procedures Governing Invocation of the State Secrets Privilege (Sept. 23, 2009) (“Holder Memo”), The government certified both in its briefs and at oral argument before the en banc court that officials at the “highest levels of the Department of Justice” of the new administration had reviewed the assertion of privilege in this case and determined that it was appropriate under the newly announced policies. See Redacted, Unclassified Br. for U.S. on Reh’g En Banc (“U.S. Br.”) 3.
    Besides overall ACLU representation of all the detainees, British counsel were involved on Binyam Mohamed's behalf:

    Clive Stafford-Smith and Zachary KatzNelson, Reprieve, London, England, for plaintiff-appellant Binyam Mohamed.
    It has been a bad summer for detainees in Court of Appeals cases.


    Last edited by jmm99; 09-10-2010 at 03:27 AM.

  2. #522
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    Default Flak from both (far) left and (far) right

    The 9th Circuit opinion in Mohamed (post above) has struck a chord (nay, a heartstring) on both left and right. Here are two samples - both authors are lawyers. I've focused just on the headlines.

    First, from the (far) left:

    Glenn Greenwald (at Salon), Obama wins the right to invoke "State Secrets" to protect Bush crimes (Wednesday, Sep 8, 2010 18:09 ET)
    President Bush is the primary culprit (Greenwald has consistently called him a criminal). President Obama is a lesser culprit - an accessory after the fact in legal jargon.

    No punches are pulled by the (far) right:

    From Jacob Hornberger (at Freedom Foundation, where Andy Worthington recently filed a column - see a couple of posts above), Barack Obama: Torturer-and-Assassin-in-Chief (Thursday, September 9, 2010).
    Hornberger, BTW, is a grad of VMI - his bio.

    While reading these headlines (and the articles), a musing thought came to me: In how many countries could one write about the CEO in the terms used here ?

    Another thought (just confirmatory) is that we live in an "era of absolutism", where deviations from the perceived norm (even if it be the norm of an outlier) are treated as criminal infractions (I gotcha).



  3. #523
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    Default Are Terrorists Criminals Or Enemy Combatants?

    Nine years after the Sept. 11 attacks, Americans continue to struggle with the complex ethical and legal questions that have been raised by the country's fight against terrorism. Among them: whether terrorists should be treated as criminals or as enemy combatants.
    You can read the PDF file or listen to the audio file, both are at the link above.

    I was surprised that the majority left the debate in favor of treating terrorists as criminals versus enemy combatants, but as Mr. Hayden said in the beginning of the debate he feared the debate would be taken off topic and become a debate over the morality of torture.

    I clearly thought the debate team arguing for treating terrorists as enemy combatants made more compelling arguments on that one issue, but the other team was able to obscure the debate with comments with comments about torture, etc.

    Worth the read or listen if you have time.

  4. #524
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    Default There ain't no debate today.

    Hi Bill,

    One would think from such as David Frakt that 2004 Hamdi through 2008 Boumediene were never decided by SCOTUS; nor that approximately 3 dozen DC District habeas cases and about a dozen DC Circuit cases have uniformally affirmed the legal rule that Gitmo detainees may be held as enemy combatants subject to Common Article 3 of the GCs, if the facts support that status.

    In fact, the recent (this summer's) DC Circuit cases have uniformally rejected the arguments made by David Frakt et al (well known in this thread) to use a criminal law standard. Bluntly stated, the courts have accepted detention for the duration of the armed conflict, without requiring criminal prosecutions to be filed. Some detainees (many where the USG conceded its errors) have been freed because of factual findings that they were not enemy combatants.

    So, unless SCOTUS completely reverses the DC Circuit, there is no debate.

    It's interesting (perhaps, very telling) that the two proponents were non-lawyers - and two opponents were non-lawyers. You'd think they could have turned up at least one lawyer to speak of and for what the courts are actually holding.

    Nice to hear from you and that you're still following this thread.


  5. #525
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    Default Two lawyers, a propagandist and an intell pro


    Actually the two oponents to using the enemy combatant designation were lawyers, one was an Air Force lawyer who was (may still be) a defense attorney for the Gitmo detainees and other lawyer was Tim McVeigh's defense attorney. Mr. Hayden of course is a key leader in the intelligence community and other guy was a speech writer for the former President G.W. Bush.

    The point was made during the debate that the courts have already ruled that the detainees are properly designated as combatants, so the debate was actually an academic debate on the morality of that decision. Is it in accordance with our values?

    I agree it would have been nice to see a lawyer on the proponent side who actually knew the arguments presented in the actual cases where the court ruled that they are enemy combatants. Still worthwhile to read or listen to in order to assess the perceptions of the debate.

  6. #526
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    Default Agitprop, agitprop & more agitprop

    Here is how the debate is spun (call it "lawfare" if you like) by my "evil twin", Andy Worthington - "evil" only in the sense that he (since he never saw a Gitmo detainee who deserved to be detained) often presents the opposite view from mine.

    Anyhow, Andy has David Frakt's spin on the debate, David Frakt Explains Why Guantánamo Prisoners Have Habeas Corpus Rights. Frakt as usual attacks the Bush administration (as you know, Pres. Bush was re-elected to a 3rd term in 2008), provides us with a misleading set of stats on the habeas cases, and says not much about what has gone on since last July when the USG gave up on prosecuting Jawad (Frakt's client).

    Andy also has the two-part transcript of the debate - also with some (but not much) of his own spin - part 1 & part 2.

    OK, I spent too much time reading through the transcript. Theissen and Hayden were so pathetic on the supposed topic of debate that I felt like puking. Jones mouthed platitudes; and Frakt presented the same arguments he's presented a number of times. Somehow, this debate ended up with the question in effect being put: "Was John Yoo right or wrong ?" The so-called "moderator" also sucked. Zero stars.



    PS: I screwed up this sentence in post 524:

    It's interesting (perhaps, very telling) that the two proponents were non-lawyers - and two opponents were non-lawyers.
    which should have read:

    It's interesting (perhaps, very telling) that the two proponents were non-lawyers - and the two opponents were lawyers.
    I was well aware of Frakt in the Jawad case; and like everyone was interested in McVeigh (and how Jones represented him, vice Mike Tiger's representation of Terry Nicholls).

    Sorry for the confusion apparently caused by gas passage in the uppermost story.
    Last edited by jmm99; 09-26-2010 at 04:56 AM. Reason: add PS

  7. #527
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    Quote Originally Posted by Schmedlap View Post
    The question as to what type of trial to give to foreign combatants who are held prisoner begs the question of whether they should be given one at all. Is anyone aware of an explanation for why the detainees should be afforded a trial?

    Most arguments seem to assume that a trial should occur and then embark upon a debate over what type of trial and how to conduct it. But I have never seen a justification for why we should hold a trial. I don't understand why non-US citizens who were taken prisoner on a battlefield, during armed conflict, and held prisoner outside of our borders, should have protections in the US Constitution bestowed upon them. Rather than addressing this question, we are subjected to accusations of torture, mistreatment, and denial of due process (again, without clarifying whether the detainees are owed any due process).

    In the quote that begins this thread, there is a mention of undermining the rule of law. It seems that undermining the rule of law in Taliban-controlled Afghanistan was a good thing. Laws against shaving beards and flying kites don't seem all that virtuous to begin with. If the implication is that rule of law could be undermined in the US, then I don't see how that is possible, so long as the individuals are non-US citizens, not in the US, and captured on a battlefield during time of war.
    To Schmedlap:

    It is not the US Constitution that is the basis of providing the Taliban with a trial. It is the International Humanitarian Law & Law of Armed Conflict, which are both international customary laws that all countries follow. Even if the terrorist do not, civilized nations must. Because the Afghanistan government is a sovereign nation, the conflict they are fighting with the Taliban falls under Common Article 3 of Geneva. Terrorism, insurgency, rebels, they are nothing new and the laws have applied.

    The international issue with how the US handled "terrorist" was because they created the "War on Terror" which is a war without a State and then categorized the terrorist or Taliban as a third category outside of the law's categories of combatants and noncombatants. Even if the US says that the Laws of Armed Conflict under Geneva do not apply, there are still the International Humanitarian Laws which state that all humans have rights to ask why they are being held by any government. There is more to it than that and the way it is written basically they are stating that humans have a right to a trial. I don't think they explicitly use the word "trial" but based on the rights, that is what it amounts to. My source:

    Solis, Gary, D., The Law of Armed Conflict/International Humanitarian Law, 2010

  8. #528
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    Default The first problem with ...

    the Schmedlap and Yvonne posts is that no one is defining what they mean by "trial". More likely than not Schmedlap is questioning whether a detainee (call him a Gitmo detainee for clarity) has a right (from any source) to a criminal trial before a US military commission or a US Federal court. He can confirm or deny that.

    The pages of posts in this thread (going back to 2008) report all of the relevant opinions re: detainees by SCOTUS, DC Circuit and DC District. No opinion having present precedential value has held that a detainee has a right to be tried as a criminal either before a military commision or a Federal court. All legislation and executive orders have been to the contrary.

    What detainees do have is a right to contest their detainment via a merits hearing before an impartial magistrate. The two avenues of contest are by claiming either EPW status under GC III or civilian status (without being a security risk) under GC IV. In practice, the habeas petitions have claimed non-participation in or non-material support of AQ, Taliban or associated groups (as required by the 2003 AUMF) - that is, reduced to its salient point, the basic argument is that "I was a civilian who was not a threat under GC IV." No Gitmo detainee has claimed EPW status in the DC habeas proceedings - no surprise because that dog doesn't leave the kennel for the hunt.

    With respect to Common Article 3, it does provide rules re: the treatment of detainees taken in an armed conflict not of an international character. Obviously, CA 3 contemplates detention - and so have all US courts (SCOTUS, DC Circuit and DC District). To those courts, the 2001 AUMF is the triggering mechanism for Common Article 3 (and other informative rules accepted by the US under the Laws of War, aka LOAC and aka International Humanitarian Law):

    Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

    (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

    (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

    (b) taking of hostages;

    (c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

    (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
    From the associated commentary on Common Article 3:

    Sentences and executions without previous trial are by definition open to error. "Summary justice" may be effective on account of [p.40] the fear it arouses, but it adds too many innocent victims to all the other innocent victims of the conflict. All civilized nations surround the administration of justice with safeguards aimed at eliminating the possibility of judicial errors. The Convention has rightly proclaimed that it is essential to do this even in time of war.

    We must be very clear about one point; it is only "summary" justice which it is intended to prohibit. No sort of immunity is given to anyone under this provision. There is nothing in it to prevent a person presumed to be guilty from being arrested and so placed in a position where he can do no further harm; and it leaves intact the right of the State to prosecute, sentence and punish according to the law.

    As can be seen, Article 3 does not protect an insurgent who falls into the hands of the opposing side from prosecution in accordance with the law, even if he has committed no crime except that of carrying arms and fighting loyally. In such a case, however, once the fighting reaches a certain magnitude and the insurgent armed forces meet the criteria specified in Article 4. A.(2), the spirit of Article 3 certainly requires that members of the insurgent forces should not be treated as common criminals.
    "Detention" is not an "execution", nor is it a "sentence" - that is the lesson learned from three years of habeas decisions. The law from those cases (20+ pages in this thread) establish that, on legal issues, the far out position held by such as John Yoo has gone done in flames. The substantive legal positions on detainment itself, advanced by attorneys for the detainees, have also gone down in flames. The habeas cases that have been won have been won on the basis of the lack of facts presented by the DoJ and DoD, and/or on evidentiary exclusionary rules.

    Citing Gary's textbook might be a winner in his classroom. It carries no more weight here than my opinions, or those of Andy Worthington, have - based on reference to and discussion of the original sources that are applicable,


    Last edited by jmm99; 10-05-2010 at 04:41 AM.

  9. #529
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    Default I don't remember this part in law school...

    Even if the US says that the Laws of Armed Conflict under Geneva do not apply, there are still the International Humanitarian Laws which state that all humans have rights to ask why they are being held by any government. There is more to it than that and the way it is written basically they are stating that humans have a right to a trial.

    Well, I guess I missed where international bodies can unilaterally bind US courts. Guess I'll have to change my presentation I just did where I mentioned Scalia's pithy view of international law in our courts.

    I do not use foreign law in the interpretation of the United States Constitution. . . . But apart from that, if you talk about using it [in regard to] constitutional law, you know, you talk about it’s nice to know that, you know, that we’re on the right track, that we have a same moral and legal framework as the rest of the world. But we don’t have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that we’re after is to, you know, do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it’s full of, you know, statements that make very clear they didn’t have a whole lot of respect for many of the rules in European countries.

    But of course even under Breyer, until our courts say so, it ain't the law, at least in this country.

  10. #530
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    Default Discussion topic - adoption of customary law

    If Customary International Law (Humanitarian and other areas) is to be adopted by the US, which branch of government should do the "adopting"; or are some areas the province of the executive branch, some the province of the legislative branch, and some the province of the judicial branch ?

    This is not a new issue. The question in the 18-19th centuries, as the US came on line with its 13 states and as new states were added, was what common and statutory laws should be adopted in the absence of positive legislation on the topic.

    It strikes me as odd that the courts could unilaterally adopt a rule under Customary International Humanitarian Law (aka Laws of Armed Conflict, aka Laws of War) where the Constitution distributes its war powers among the executive and legislative branches, and gives no express grant to the courts.



  11. #531
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    Hiding from the Dreaded Burrito Gang


    Curiouser and curiouser...

    NEW YORK (AP) -- The military-grade explosives found at a historic New York City cemetery are more than 13 years old, police said Tuesday.

    It was still unclear who placed the plastic bag of C-4 at the foot of a tombstone in New York City Marble Cemetery on Manhattan's Lower East Side.

    A caretaker planting shrubs in the cemetery dug up the bag in May or June 2009, didn't realize what it was and left it.

    It remained in the back, near a tree, until a volunteer saw it over the weekend and put it in a trash can, thinking it was some a leftover movie prop because the cemetery is often used as a film setting, police said. But the volunteer thought it might be dangerous and called police Monday.
    A scrimmage in a Border Station
    A canter down some dark defile
    Two thousand pounds of education
    Drops to a ten-rupee jezail

  12. #532
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    Default The Emerging Law of Detention

    We have a couple of relevant (and material) references from Lawfare (a Ben Wittes, Bobby Chesney and Jack Goldsmith production started this September - with HT to Boondoggle for initially linking it here).

    An Alternative to the Scorecard by Benjamin Wittes:

    Brookings Legal Fellow Larkin Reynolds, who has been working with Bobby and me on a second edition of our monograph on “The Emerging Law of Detention,” recently handed me a chart she had constructed that attempted to quantify numerically Guantanamo case outcomes in a fashion more evocative than the scorecard approach I have criticized. I thought the chart very illuminating and asked her to write it up in postable paragraphs. Here they are:
    Summarizing the above information into shorthand looks something like this:

    - Uighur cases in which detention was deemed or conceded unlawful: 17
    - Petitioners’ district-court wins pending at D.C. Circuit: 8
    - Petitioners’ district-court wins not appealed by the government: 12
    - Petitioners’ appellate-court wins resulting in a remand to district court, with remand still pending: 1
    - Petitioners’ merits wins at D.C. Circuit: 0
    - Government’s district-court wins pending at D.C. Circuit: 11
    - Government’s district-court wins that will likely be appealed: 2
    - Government’s merits wins at D.C. Circuit: 5
    - Government’s district-court wins where appeal dismissed as moot by D.C. Circuit: 1
    - Post-Boumediene merits decisions in which cert. has been granted or denied: 0
    Their results parallel my position that Gitmo "scorecards" can be misleading. The 17 Uighur cases and 12 unappealed detainee DC wins (all turning on issues of fact found in favor of the detainees) over-emphasize and are very misleading if asserted in an attempt to prove that the detainees are presenting winning legal arguments.

    In fact, the 17 Uighurs and 12 other unappealed cases had winning factual cases even applying the law as asserted by the USG. I've pointed that out in the Uighur cases and in some of the 12 unappealed cases (in some others, I disagreed with the trial judges' fact findings). In justice to Andy W and others, some detainees should not have been detained or should have been transferred out earlier. On the other hand, we know of other detainees who should not have been released.

    What is more critical to the development of the law are the DC Circuit results: Petitioners’ merits wins at D.C. Circuit: 0; Government’s merits wins at D.C. Circuit: 5. Of course, there are pending: Petitioners’ district-court wins pending at D.C. Circuit: 8; Government’s district-court wins pending at D.C. Circuit: 11. One cannot posit that the USG will run the table in all 19 of the appeals pending - and more DC District decisions and DC Circuit appeals can be expected.

    The second resource linked by Lawfare is:

    The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking by Benjamin Wittes, Robert Chesney & Rabea Benhalim (Jan 2010).

    I'm not touting this version (now 9 mos old - a century in this fast-moving arena) except as a review of the legal developments pre-2010. I'm suggesting that its upcoming second edition (mentioned in the first quote) be kept in mind. For those interested in Gitmo, etc., add Lawfare to your legal links.


    Last edited by jmm99; 10-22-2010 at 12:50 AM.

  13. #533
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    Default Which is more practical - Detention or Prosecution ?

    Regular readers know that I've held the position that both detention and prosecution are viable options in dealing with members of irregular forces that are in effect waging special operations warfare against the US.

    As a practical matter, persons arrested within the US are usually better handled via Federal crimiinal prosecutions (or if soldiers such as MAJ Hasan are involved, via UCMJ courts-martial). On the other hand, persons detained in the course of military operations are usually better handled as military detainees - as to which, Gitmo is not the only model.

    I've not fallen in love with prosecutions of those military detainees (KSM is a good example) whether in Federal courts (the apparent love of the left) or before military commissions (the apparent love of the right). What follows are some resources that key in on the future of military detention of irregular combatants - that is, persons who are mermbers or material supporters of a combatant Power in a non-international armed conflict.

    Here is a series of brief opinion pieces (from earlier this month) that generally endorse long-term military detention as a better solution than either civilian court or miltary commission trials, but differ as to the ultimate allowable term of detention.

    Don’t Try Terrorists, Lock Them Up (8 Oct 2010, NYT Op Ed)

    THE Obama administration wants to show that federal courts can handle trials of Guantánamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government’s case much harder when he excluded the testimony of the government’s central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.

    Some, mostly liberals and civil libertarians, applauded the ruling, saying it showed that the rule of law is being restored. But many conservatives denounced it as proof that high-level terrorists cannot reliably be prosecuted in civilian courts and should instead be tried by military commissions.

    The real lesson of the ruling, however, is that prosecution in either criminal court or a tribunal is the wrong approach. The administration should instead embrace what has been the main mechanism for terrorist incapacitation since 9/11: military detention without charge or trial.

    Military detention was once legally controversial but now is not. District and appellate judges have repeatedly ruled — most recently on Thursday — that Congress, in its September 2001 authorization of force, empowered the president to detain members of Al Qaeda, the Taliban and associated forces until the end of the military conflict. ....
    The case mentioned ("most recently on Thursday") is the DC District decision against Toffiq Nasser Awad Al-Bihani (by Judge Reggie Walton).

    Terror detentions deserve time limits (10 Oct 2010, WP Op Ed)

    American soldiers in Afghanistan capture a Taliban fighter who has launched a rocket-propelled grenade at them. Few people would think that the only answer is to bring him to the United States for a criminal trial. The military's primary battlefield mission is not collecting evidence for prosecution, nor should it be.

    If the United States is going to neutralize the threat that the Taliban soldier represents, however, some system of detention, as in more traditional wars, is inevitable. The legal uncertainty about who can properly be put into this system -- Must a detainee have been captured on "the battlefield"? How broad is "the battlefield"? How directly involved in hostilities must a person have been? -- should not obscure this central fact.

    Facing this reality, Jack Goldsmith argued on this page ["A way past the detention gridlock," Sept. 10] that Congress and the president should work to put our detention system on stronger moral and legal footing. But Goldsmith did not address the hardest problem in doing so: the specter of indefinite detention. Unless that specter is removed, no system of detention is likely sustainable. ....
    At Lawfare, added comments re: when military detention ends or should end, in Problems with Military Detention (Goldsmith) and Problems with Military Detention (Cont’d.) (Wittes).

    From 2005 Harvard Law Review, Bradley & Goldsmith, Congressional Authorization and the War on Terrorism; and from 2009 Brookings, by Wittes, Designing Detention: A Model Law for Terrorist Incapacitation (direct pdf).

    These are some futuristic views of military detention policies based generally on our (US) experience with the 2001 AUMF (Authorization to Use Military Force).

    Other Than Gitmo Models

    Military Detention in Iraq: Understanding the Detention Policy Cycle for Expeditionary Deployments, and Exploring the Relationship Between Law and Practice in the Field, by Robert Chesney (from 13 Oct 2010 Lawfare):

    Ever notice that the debate over detention law and policy rarely makes reference to the American experience in Iraq over the past seven years? Ever wonder what lesssons, if any, that experience has to offer? If so, you might want to take a look at my forthcoming article “Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010” (Virginia Journal of International Law, Volume 51).

    Among other things, I describe a cycle of detention policy in the context of expeditionary deployments, one that begins with an embrace of conventional and highly-discretionary military detention but that shifts over time in the direction of heightened screening procedures and, eventually, a primary or even exclusive emphasis on the host nation’s criminal justice system. This process is nearing completion in Iraq, and is in mid-stream now in Afghanistan. Notably for both cases, and for any future expeditionary deployments, the cycle ultimately entails the loss of control over the physical facilities on which U.S.-operated military detention depends–meaning that the current availability of facilities like the Detention Facility in Parwan (DFIP) should not be viewed as a long-term solution to the problems associated with shuttering GTMO while still wishing to maintain the capacity to detain individuals for the long-term outside the United States. .. (full abstract of article follows) ....
    Quite a bit more about both OIF and OEF detention policies can be found in the Lessons Learned series at CLAMO - OEF/OIF Vols. I & II, and Forged in the Fire.

    For a 2010 update on Astan (Bagram) detention procedures, see Jeff A. Bovarnick, Detainee review boards in Afghanistan: from strategic liability to legitimacy (Army Lawyer, June, 2010). This is part of the June 2010 International and Operational Law Edition (probably less time consuming to download the entire pdf than the 72 pages from Find Articles).

    All these are a serious overload in reading material. The emerging US law of military detention of irregular combatants is doing just that - emerging. So, we have lots of suggestions to consider. In a decade or two, we should have all of this down much better.



  14. #534
    Council Member Polarbear1605's Avatar
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    Sep 2008
    Raleigh, NC

    Default Thanks

    Thanks for the references...wading through them now...question regarding the CLAMO it possible for lawyers to write a handbook that is LESS THAN 300 pages??? Don't get me wrong, I am very interested in those things (especially lessons learned) but DANG!

  15. #535
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    May 2008

    Default Hail Great White Furry Critter

    The answer to your question:

    from PB1605
    is it possible for lawyers to write a handbook that is LESS THAN 300 pages???
    is very surprisingly - an affirm.

    But, IFF, the two principal authors are an Army LTC and a Marine LTC who "manage to co-operate, as they say" - and the publication is edited by a Navy CAPT ("adult supervision").

    2010 Law of War Deskbook.pdf (DL from the CLAMO Publications page) - 248 pages:

    LTC Jeff A. Bovarnick, JA, USA
    LtCol J. Porter Harlow, USMC
    CAPT Brian J. Bill, JAGC, USN
    This Law of War Deskbook is intended to replace, in a single bound volume, similar individual outlines that had been distributed as part of the Judge Advocate Officer Graduate and Basic Courses and the Operational Law of War Course. Together with the Operational Law Handbook and Law of War Documentary Supplement, these three volumes represent the range of international and operational law subjects taught to military judge advocates.
    Table of Contents

    Introduction to Public International Law 1
    History of the Law of War 5
    Framework of the Law of War 17
    Legal Basis for the Use of Force 25
    GC I: Wounded and Sick in the Field 37
    GC III: Prisoners of War 63
    GC IV: Civilians on the Battlefield 91
    GC IV: Occupation and Post-Conflict Governance 107
    Means and Methods of Warfare 131
    War Crimes and Command Responsibility 163
    Human Rights 187
    Comparative Law 201
    Less than a 2MB download

    Besides that particular reference, I also should have included the Library of Congress - Military Legal Resources (links to all kinds of original source docs, as well as CLAMO, etc.). The LoC page is worth saving as a favorite.

    Now, excuse me while I get back to my lime green popsicle - how can you stand those purple grape things on your tonguee ?



  16. #536
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    May 2008

    Default Khadr pleads guilty

    From the NYT:

    Deal Averts Trial in Disputed Guantánamo Case
    Published: October 25, 2010

    WASHINGTON — A former child soldier being held at the military prison at Guantánamo Bay, Cuba, pleaded guilty on Monday to terrorism-related charges, averting the awkward prospect that he would be the first person to stand trial before a military commission under the Obama administration.

    The defendant, Omar Khadr, 24, a Canadian, admitted to a military judge that he threw a grenade that killed an American soldier during a 2002 firefight and that he had planted 10 roadside bombs for Al Qaeda. Mr. Khadr, born in Toronto, was 15 when he was captured in Afghanistan.

    By avoiding the need for a trial of Mr. Khadr, the deal represents a breakthrough for the Obama administration’s legal team, which had been dismayed that his case was to become the inaugural run of a new-look commissions system — undermining their efforts to rebrand the tribunals as a fair and just venue for prosecuting terrorism suspects.

    Mr. Khadr’s decision to plead guilty was a turnabout from his vow to never accept such an arrangement lest it allow the United States to save face. He contended that he was coerced by older relatives into working with Al Qaeda and was not at fault.

    In exchange for pleading guilty to five charges — including murder in violation of the law of war, supporting terrorism and spying — Mr. Khadr was spared the risk of a life sentence. A panel of seven military officers will decide the length of his prison sentence.

    But his plea agreement is believed to cap the potential time at eight years, on top of the eight he has been in custody.

    The deal followed a complex flurry of negotiations, including a side deal reached on Saturday between the United States and Canada allowing Mr. Khadr, after a year, to apply for transfer to Canadian custody to serve out the remainder of his sentence. ......
    Consider that, if criminal prosecution had been rejected as an option, the USG would have had to prove in a habeas proceeding, only by a preponderance of the evidence, that Khadr was part of AQ (either the grenade or one IED emplacement would have more than sufficed). He then could have been detained for the duration of our hostilities with AQ.



  17. #537
    Council Member davidbfpo's Avatar
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    Mar 2006


    The recent public statement / speech by the British SIS (popularly known as MI6) head fits well here, particularly as the Binyam Mohammed case involves an allegation of torture and now a UK police investigation.

    I have only linked two BBC reports, the first is a general article:
    How secret does a secret service need to be? That's the question MI6, like its sister services MI5 and GCHQ in Britain, as well as more distant relatives abroad, has been wrestling with. The man known as "C" - Sir John Sawers - has offered his answer.

    Under the headline 'MI6 chief Sir John Sawers says torture illegal' :
    The head of MI6, Sir John Sawers, has described torture as "illegal and abhorrent" and defended the service's need for secrecy.
    Last edited by davidbfpo; 11-06-2010 at 10:58 AM. Reason: fix quote

  18. #538
    Council Member ODB's Avatar
    Join Date
    Apr 2008

    Default What happened was.

    Lawyers muddy the whole mess and we get nowhere......just drags on until everyone forgets about it and they live long happy lives with Playstation 3's, gourmet meals, and all the amenties of a 5 star resort.

    Exchange with an Iraqi soldier during FID:

    Why did you not clear your corner?

    Because we are on a base and it is secure.

  19. #539
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    May 2008

    Default Khadr - 40 years from military jury

    From plea bargain (which trumps) - 1 year at Gitmo + 7 years in Canada (maybe). Coverage from Toronto Sun, Omar Khadr gets 40 years (well "yes", but "no"), with a comment from a Sun reader:

    I hope this worthless piece of traitorous trash never ever sets foot back in Canada again. Send him back to Afghanistan where he really wants to be. Then remove not only his citizenship but that of his traitorous family as well and deport them to be with him where they all belong. He is a piece of work and a very poor sorry excuse for a Canadian. I hope he and his family rot in hell.
    And so it may go.

    Links to plea bargain and US-Canada diplomatic notes.


    Last edited by jmm99; 11-02-2010 at 01:58 AM. Reason: add links

  20. #540
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    May 2008

    Default USG wins another appeal in DC Circuit

    Mohammedou Ould Salahi was granted habeas by Judge Robinson (reported in post # 497).

    The Court of Appeals reversed, adding to a string of DoJ succcesses before the DC Circuit (emphasis added):

    This case is more than merely the latest installment in a series of Guantanamo habeas appeals. The United States seeks to detain Mohammedou Ould Salahi on the grounds that he was “part of” al-Qaida not because he fought with al-Qaida or its allies against the United States, but rather because he swore an oath of allegiance to the organization, associated with its members, and helped it in various ways, including hosting its leaders and referring aspiring jihadists to a known al-Qaida operative. After an evidentiary hearing at which Salahi testified, the district court found that although Salahi “was an al-Qaida sympathizer” who “was in touch with al-Qaida members” and provided them with “sporadic support,” the government had failed to show that he was in fact “part of” al-Qaida at the time of his capture. The district court thus granted the writ and ordered Salahi released. Since then, however, this Court has issued three opinions—Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010); Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010); and Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010)—that cast serious doubt on the district court’s approach to determining whether an individual is “part of” al-Qaida. We agree with the government that we must therefore vacate the district court’s judgment, but because that court, lacking the benefit of these recent cases, left unresolved key factual questions necessary for us to determine as a matter of law whether Salahi was “part of” al-Qaida when captured, we remand for further proceedings consistent with this opinion.
    Two articles at Lawfare, Comments on Salahi and Press Release of the Day.




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