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Thread: Crimes, War Crimes and the War on Terror

  1. #561
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    Default Free book

    Some of the folks at Lawfare have published an "e-book", The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking, by Benjamin Wittes, Senior Fellow, Governance Studies; Robert M. Chesney, Nonresident Senior Fellow, Governance Studies; Larkin Reynolds, Legal Fellow, Governance Studies - all at The Brookings Institution.

    The entire pdf download is only 1.46MB. The idea, as expressed here at Lawfare, is to provide a means of rapid updates. The appellate cases are moving faster than either book publishing or law review publishing can keep up:

    It is with great pleasure that we announce the second edition of the The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking. As many readers will remember, the first edition of this paper came out early last year and described the astonishing diversity of practice and law in the district court handling of Guantanamo habeas cases. The paper received a great deal of attention, positive and negative, but it was also quickly outdated by the D.C. Circuit’s rapid-fire intervention in the cases, which has across a range of areas reoriented the lower court.

    The idea in this edition was both to bring the paper up to date and to do it in a fashion that would resist being rendered obsolete in the future. Hence the new version, which we are calling The Emerging Law of Detention 2.0.

    The new version is specifically crafted as a living document, one that will be constantly updated as new opinions emerge. When you visit its home page, you will see that each chapter has a “last updated” date, so that the reader can tell how fresh it is. While we intend to keep both the statistical data and the chapters themselves reasonably current, the paper isn’t a blog; there will thus be an inevitable lag while we add analysis after opinions come out. We will also, over time, add sections to cover areas we have not considered. The idea is to create a fluid, constantly updated treatise that–at any given time–will function as a resources for those exploring the law of detention.

    Unlike in the earlier version, which contained a clear normative call for greater clarity in the rules either from Congress or from the appellate courts, in version 2.0 we have endeavored to eschew normative judgments of any kind. While our views on the debate over common-law adjudication versus legislation are well known, our purpose here is not to engage that debate. We hope the paper will be as useful in informing those who argue for the common-law development of this body of law as it will be for those who urge that the project of judge-made detention rules is folly.

    Finally, one of the virtues of this form of scholarship is that error correction is extremely easy. So if you think we have misinterpreted a case or if we have slipped up factually or gotten a citation wrong, please let us know. We hope the paper will be useful to a wide range of practitioners, judges, scholars, and students, and we hope it will get more so over time.
    Note that the "law of detention" is "informed" by the Laws of War. Hence, many of the rules developed by the DC Circuit will apply to "kill or capture" missions. E.g., HVTs.

    Regards

    Mike

  2. #562
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    Default SCOTUS denies Binyam Mohamed review

    The Supreme Court today denied certiorari (a one-liner included in a huge multi-case order) in Mohamed v. Jeppesen Dataplan.

    That order leaves as a final order the Ninth Circuit’s en banc opinion, based on state secrets privilege grounds, affirming dismissal of that civil suit (relating to Jeppesen's alleged complicity in extraordinary rendition and torture).

    This result effectively is 180 degrees from the result reached in the UK Binyam Mohamed case.

    While a cert denial is technically not a precedent, SCOTUS has denied cert in a number of USG-won "Gitmo" cases since 2008.

    Regards

    Mike

  3. #563
    Council Member AdamG's Avatar
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    Default

    NEW YORK: Two defectors from Iran's intelligence service have testified that Iranian officials knew in advance about the attacks of September 11, 2001, says a US court filing that seeks damages for Iran's ''direct support for, and sponsorship of, the most deadly act of terrorism in American history''.

    One of the defectors also claimed that Iran was involved in designing the attacks, the filing said. The defectors' identities and testimony were not revealed in the filing but were being submitted to a judge under seal, said lawyers who brought the original suit against Iran on behalf of families of dozens of September 11 victims.

    The suit says Iran and Hezbollah, the Lebanese militant group with close ties to Tehran, helped al-Qaeda with planning the attacks and with the hijackers' training and travel. After the attacks, the suit says, Iran and Hezbollah helped al-Qaeda operatives and their families to escape, in some cases providing them with a safe haven in Iran.
    http://www.smh.com.au/world/iran-acc...520-1ewq7.html
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  4. #564
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    Default Caution

    AdamG cited, in part:
    ...Two defectors from Iran's intelligence service have testified that Iranian officials knew in advance about the attacks of September 11, 2001...
    Remember 'Curveball' and be very wary.
    davidbfpo

  5. #565
    Council Member Ken White's Avatar
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    Default Bears repeating -- Caution.

    Having some familiarity with Iranian methods of, ah, imparting information, I recognize a couple of flags waving in that report...

  6. #566
    Council Member AdamG's Avatar
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    Default

    I knew folks would find that amusing.

    Then again, just to be the Devil's Advocate, let's engage Professor Peabody's Wayback Machine.

    Between 2002 and 2003, the NYPD and FBI arrested and deported six Iranian diplomats in New York for photographing infrastructure and rail lines. The busts set off an alarming scenario for the NYPD’s intelligence division — that Iran could aid terrorist groups like Hizbollah in an attack on the Big Apple.

    To investigate, detectives had to go beyond the five boroughs. They flew to Buenos Aires to meet with Argentine authorities and learn from the 1992 and 1994 Hizbollah attacks on Jewish and Israeli facilities there.

    Those deadly bombings were retaliation for the death of Hizbollah leaders in the Middle East. The quickly executed strikes led intelligence officials to believe plans had been in the bag for a while and that reconnaissance on the targets and materials were provided by Iranian officials stationed in South America.
    Read more: http://www.nypost.com/p/news/opinion...#ixzz1NCsRKsM9
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  7. #567
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    Default Another DC Circuit affirmation for USG

    A D.C. Circuit panel (JJ. David Tatel, Karen LeCraft Henderson and Douglas Ginsburg - a mixed lot across the political spectrum) decided against the detainee in Al Madhwani v. Obama, affirming Judge Thomas Hogan’s opinion finding this Yemeni detainee to be "part of" AQ, and therefore denying habeas.

    The Facts of the Case (as condensed by the Court of Appeals from the District Court's findings) were as follows (pp.2-3 pdf):

    In early summer 2001, Madhwani met two men in a coffee shop somewhere in Yemen. The two spoke to him about the “new Islamic state” in Afghanistan. Merits Hearing Tr. at 62, 69, Anam v. Obama, C.A. No. 04-1194 (D.D.C. Oct. 27, 2009) (Tr. 10/27). One of them suggested to Madhwani—a recent high school graduate who was unemployed—that he go to Afghanistan to “witness the situation” for himself. Id. at 71–72. Madhwani accepted a plane ticket and a small sum of money from the man and left Yemen in August 2001. The stated purpose of his trip, according to Madhwani, was “adventure” and “to see what things are like in Afghanistan.” Id. at 73. Once he arrived in Afghanistan, Madhwani accompanied a group of fellow Yemenis he had met along the way to “the Arab guesthouse” in Kandahar, where his passport and return airline ticket were confiscated. Id. at 108–09. Madhwani was told that his travel documents would be returned after he completed two months of military training. Madhwani reluctantly agreed to the arrangement and, by mid-August, he was transported to a remote mountain camp to begin a course of physical conditioning and small arms instruction.

    Madhwani was still at the training camp when al-Qaida attacked the United States on September 11, 2001. The camp was closed down, for fear that it would be bombed, and Madhwani and the other trainees were given permission to leave. Madhwani took a rifle from the camp’s armory and, in the company of two trainers from the camp and a score of fellow recruits, wandered for several months through a succession of Afghan cities. Madhwani claimed that they were all traveling in search of their passports, which—like Madhwani’s—had been confiscated before they were sent to the camp. They ended up in Kabul just three days before the capital fell to the United States led military coalition. Madhwani was reunited with his passport, mysteriously, infra p. 8, and he then went to neighboring Pakistan. There he remained for the better part of one year—aside from a brief trip to Iran—moving from one clandestine location to another. Madhwani believed the Pakistani authorities would arrest him, as an Arab, if he were to travel openly to an airport or to the Yemeni embassy to seek help in returning home.

    Madhwani was captured along with several other Arabs on September 11, 2002, when Pakistani security forces raided the Karachi apartment building where he had been hiding from the authorities. Two of Madhwani’s associates—one from the same apartment and another from across the hall—fought and died in a two-and-one-half hour gun battle with Pakistani soldiers. After spending five days in a Pakistani prison, Madhwani was turned over to U.S. military custody. Madhwani was then taken to a “dark prison” where he claims to have been tortured. He was transferred in October 2002 to the U.S. Naval Base at Guantanamo Bay, Cuba.
    The material factual scenario is post-9/11, in Afghanistan; post-Tota Bora, in Pakistan (other than a "vacation" in Iran); and a Pakistani direct action resulting in his capture - and in the deaths of two of his associates.

    The Law of the Case is the current position of the DC Circuit based on the 2001 AUMF:

    The President’s detention authority originates with the 2001 Authorization for Use of Military Force (AUMF), which authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224; see Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (AUMF “authorized detention” of enemy combatants). We have held that the authority conferred by the AUMF covers at least “those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.” Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010), cert. denied, 79 U.S.L.W. 3568 (U.S. Apr. 4, 2011) (No. 10-7814). Determining whether an individual is “part of” al-Qaida or the Taliban is an inquiry that “ ‘must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization.’ ” Salahi v. Obama, 625 F.3d 745, 752 (D.C. Cir. 2010) (quoting Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010)). “We review the district court’s . . . habeas determination de novo . . . .” Al-Bihani, 590 F.3d at 870. Because we agree with the district court’s conclusion that Madhwani was more likely than not “part of” al-Qaida and find no other error in the district court’s handling of the case, we affirm.
    The 2001 AUMF provides no express directions for a "kill" operation vice a "capture" operation. For an attacker in a "declared hostile force" situation (given a PID), the attacker has discretion to "kill" or "capture". The Laws of War (absent a clear surrender that can be reasonably and safely accepted by the attacker) allow a "kill" at any time and any place, armed or unarmed, hostile act/threat or not (OBL).

    The DC Circuit (having only detainees before it in the Gitmo cases) has not had to deal with the 2001 AUMF standard for a "kill" operation. It also has avoided delving into the limits of the "support" branch arising from the 2001 AUMF (from Law of the Case quoted above - emphasis added):

    We have held that the authority conferred by the AUMF covers at least “those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.”
    So, we have four situations under the AUMF (leaving aside "Taliban" and "associated force" issues - 8 more cases):

    1. Part of AQ - captured & detained

    2. Part of AQ - killed

    3. Support of AQ - captured & detained

    4. Support of AQ - killed

    The law (in the DC Circuit) is very clear as to case #1; not so clear on case #3; and non-existent (of course) as to cases ## 2 & 4.

    As everyone probably knows, the 2012 NDAA (National Defense Appropriations Act) has passed the House. It includes Sec. 1034, which is a revised AUMF.

    That will move on to the Senate, where it will be amended; and if passed there in amended form, will go to a Conference Committee. I've not delved into this "new" AUMF here (many legal pundits have done so elsewhere) because it is nowhere near its final form. As you all know, my crystal ball is broken, or at least clouded.

    Regards

    Mike

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    Default Throwing in the Towel

    David Remes is an "establishment" (Covington & Burling) Gitmo detainee attorney. He no longer sees habeas as a viable remedy for Gitmo detainees, David Remes on the D.C. Circuit:

    I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.

    Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.

    The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court affirmed six of the eight government wins (al-Bihani, Awad, Barhoumi, al Odah, Esmail, Madhwani), remanding the other two (Bensayah, Warafi).

    In two critical non-merits cases, the D.C. Circuit held in Kiyemba I and III that the district court cannot compel the government to release a detainee found to be unlawfully held; and in Kiyemba II, the court effectively barred the district court from enjoining the release of a detainee to a country where he fears he will be tortured. Because the Supreme Court denied review in both cases, only Congress can overrule them. Unless Congress removes from the Executive the discretion to decide whether to release a prevailing detainee, I don’t see what practical difference legislation making substantive or procedural improvements in Guantánamo habeas litigation can make.
    While some Gitmo cases will still continue (although two mentioned in the Robert Murphy comment have been dropped this month by the detainees-appellants), the curtain is about to drop down on that aspect of the "GWOT".

    Regards

    Mike

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    Default DC Circuit again denies habeas to a Gitmo detainee

    Hussain Almerfedi won in the DC District Court. The DC Circuit, following its precedents established over the past year, reversed and denied Almerfedi habeas. The facts were a bit different from most Gitmo cases because Almerfedi was captured in Tehran by Iranian authorities sometime after September 11, 2001. He was turned over to Afghani authorities in March 2002 as part of a prisoner exchange. Then, in May 2003, he was, in turn, transferred to Guantanamo Bay by United States forces. The circumstances of his apprehension in Iran, or his Afghan custody, were only sparsely set out in the record.

    The majority opinion provided an example which would not meet the preponderence of evidence standard (p.10, n.7):

    As an example, if the only evidence the government offered in a particular case was that a petitioner had been apprehended with an AK-47 in rural Afghanistan – which would be at least probative – it would not be sufficient to establish a basis for detention. Possession of a rifle is commonplace in Afghanistan, and therefore does not meaningfully distinguish an al Qaeda associate from an innocent civilian. But the government could satisfy its burden by showing that an individual was captured carrying an AK-47 on a route typically used by al Qaeda fighters. Cf. Al-Odah v. United States, 611 F.3d 8, 11, 16 (D.C. Cir. 2010) (significant that individual captured near Tora Bora in late 2001). And, of course, that a petitioner trained at an al Qaeda camp or stayed at an al Qaeda guesthouse “overwhelmingly” would carry the government's burden. See Al-Bihani, 590 F.3d at 873 n.2.
    The facts of this case were different - no AK or other weapon was involved (pp.10-11):

    In this case, the government seeks to satisfy its burden by deploying Almerfedi’s own admissions. First, Almerfedi acknowledges that he stayed for two and a half months at Jama’at Tablighi, an Islamic missionary organization that is a Terrorist Support Entity “closely aligned” with al Qaeda. Almerfedi v. Obama, 725 F. Supp. 2d 18, 29 (D.D.C. 2010). He asserts he refused to join the organization and remained largely incommunicado, but he stayed there for free. Although that evidence is probative, by itself it presumably would not be sufficient to carry the government’s burden because there are surely some persons associated with Jama’at Tablighi who are not affiliated with al-Qaeda. But if we add Almerfedi’s travel route, which is quite at odds with his professed desire to travel to Europe (and brought him closer to the Afghan border where al Qaeda was fighting), and also that he had at least $2,000 of unexplained cash on his person when captured, notwithstanding his claim to have given that much to Ali (which was all he brought from Yemen), the government’s case that Almerfedi is an al Qaeda facilitator is on firmer ground.

    We conclude that all three facts, when considered together, see Awad, 608 F.3d at 7, are adequate to carry the government’s burden of deploying “credible evidence that the habeas petitioner meets the enemy-combatant criteria,” Hamdi, 542 U.S. at 534 (plurality opinion). We consistently have found such circumstantial evidence damning, see Uthman, 637 F.3d at 407 (collecting cases), and sufficient to distinguish a petitioner from the “errant tourist, embedded journalist, or local aid worker.” So too here.
    The concurring opinion reached the same result following a slightly different listing of the material facts (pp.14-15):

    I join the court in holding that the government met its burden of proof to show by a preponderance of the evidence that its detention of petitioner Hussain Almerfedi is lawful based on the evidence in the record regarding: (1) Almerfedi’s two and one half month stay at the Jama’at Tablighi center in Lahore, Pakistan; (2) his eastward travel from Tehran to Mashad near the Afghan border in late 2001 or early 2002, which was 500 miles in the opposite direction of his purported destination of Greece via Turkey; (3) his possession upon his capture thereafter in Tehran of a large unexplained sum of money; and (4) undisputed evidence about the existence of Bin Laden-funded “guesthouses” in Tehran and the use of hotels in Mashad as waystations for fighters traveling to or fleeing from Afghanistan. See generally Maj. Op. at 10–11. Viewed together, this evidence supports a reasonable inference that Almerfedi was an al-Qaeda facilitator by the time of his capture in early 2002. Almerfedi presented no evidence that would suffice to “rebut [the government’s] evidence with more persuasive evidence,” Hamdi v. Rumsfeld, 542 U.S. 507, 534 (2004). The district court found that Almerfedi’s explanation of his travels was “not . . . a convincing explanation,” Almerfedi v. Obama, 725 F. Supp. 2d 18, 30 (D.D.C. 2010), and was “at the very least, perplexing,” id. at 27. These findings are not clearly erroneous and their implications buttress the government’s “credible evidence,” Hamdi, 542 U.S. at 534, that Almerfedi’s behavior and travel route fit the profile of an al-Qaeda facilitator. See Maj. Op. at 11 (referring to false exculpatory statements).
    The bottom line was that the panel found Almerfadi to be an al-Qaeda facilitator, not an al-Qaeda combatant.

    Regards

    Mike
    Last edited by jmm99; 06-10-2011 at 11:56 PM.

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    Default Two from Washingon DC; two from Europe

    The DC Circuit continued its trend in holding for the USG in Gitmo detainee cases and against the detainees in two recent cases:

    Al-Alwi v Obama (July 22, 2011)

    Gul v Obama (July 22, 2011)

    Al-Alwi is still another case affirming that the facts justified a finding (by a preponderence of the evidence) that the detainee was "part of" AQ or the Taliban. Gul held that habeas jurisidiction (judicial review) is lost once the USG decides to release or transfer a detainee.

    These and the rest of the 2010-2011 DC Circuit Gitmo habeas cases should be constrasted with the two cases, decided earlier this month, by the European Court of Human Rights, sitting as a Grand Chamber:

    In the case of Al-Skeini and Others v. the United Kingdom (7 July 2011)

    In the case of Al-Jedda v. the United Kingdom (7 July 2011)

    Al-Skeini covers shoot-kill situations. Al-Jedda covers capture-detain situations.

    The DC Circuit and the ECHR are separated by more than an ocean. The former is basing its opinions on the "laws of war" (the 2001 AUMF). The latter is basing its opinions on the "rule of law" (the European Human RIghts Convention).

    Regards (and thank you for the over 50,000 views of this thread since its inception by David)

    Mike

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    Default Non-innocents

    In those cases where habeas relief has been granted (not common in recent DC Circuit cases), some have called the successful detainees "innocent civilians". That may or may not be true, depending not only on the evidence admitted by the court, but also on evidence excluded as a matter of process (our various exclusionary rules).

    Tom Joscelyn has an article at Long Wars Journal, Al Qaeda fighter's detention upheld by DC Circuit Court (2 Aug 2011), which summarizes the evidence not admitted by the court (in part):

    Additional intelligence not considered

    The leaked JTF-GTMO threat assessment summarizes additional intelligence compiled in al Alwi's case, including descriptions of al Alwi provided by other Guantanamo detainees, several of whom were senior al Qaeda leaders.
    ....

    Al Alwi was captured in December 2001 as he fled the Tora Bora Mountains. He was captured as part of a group referred to in JTF-GTMO documents as the "Dirty 30," which was comprised mainly of Osama bin Laden's elite bodyguards.

    One member of the "Dirty 30" was Mohammed al Qahtani, the so-called "20th hijacker." Qahtani was slated to take part in the September 11 attacks but was denied entry into the US in the summer of 2001. Qahtani, whose detention has been controversial because of the harsh interrogation methods employed during his questioning, was one of several detainees to identify al Alwi. Qahtani identified al Alwi as "a veteran fighter in Afghanistan."

    Ahmed Ghailani, who helped plot al Qaeda's August 1998 embassy bombings, "photo-identified" al Alwi to his interrogators as well. According to the leaked threat assessment, Ghailani said al Alwi was a bodyguard for Osama bin Laden. While he was detained by the CIA, Ghailani was subjected to controversial interrogation techniques. He was later transferred to the US to stand trial and convicted of terrorism-related charges.

    Other detainees held at Guantanamo identified al Alwi as a bodyguard for Osama bin Laden, too.

    (much more in article)
    In this particular case, the added evidence would not have changed the result. In other cases, excluded evidence may have been outcome-determinative. Some of that excluded evidence has been unrealiable. Other excluded evidence has been reliable, but inadmissible under various exclusionary rules. Those rules are not that much different in the habeas cases vs military commissions. In those cases where detainees have been granted habeas but with reliable evidence excluded, one can scarcely argue their "innocence".

    Regards

    Mike

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    Default Military Commission Cases

    The United States Court of Military Commission Review (USCMCR) has two decisions to its credit:

    United States v Salim Ahmed Hamdan (USCMCR, 24 Jun 2011) (86 pages).

    United States v Ali Hamza Ahmad Suliman al Bahlul (USCMCR, 9 Sep 2011) (139 pages).

    These are in-depth opinions, which follow the general course of the DC Circuit decisions discussed in prior posts over the last year or so.

    The substantial differences are that the USCMCR cases are criminal cases charging war crimes; and so, subject to proof beyond a reasonable doubt and a full-fledged courts-martial process. The opinions amount to little textbooks; e.g., the Table of Contents for al Bahlul:

    I. INTRODUCTION

    II. PROCEDURAL HISTORY

    III. JURISDICTIONAL BASIS FOR REVIEW

    IV. ISSUES ON APPEAL
    A. Result of Court’s Review

    V. STATEMENT OF FACTS
    A. The Al-Qaeda Plan
    B. Appellant’s Background, Conduct, and Trial

    VI. STANDARD OF REVIEW

    VII. MILITARY COMMISSION SUBJECT MATTER JURISDICTION

    A. Introduction

    B. Issue Presented

    C. The Law
    1. Military Commissions Act of 2006
    2. Congressional Authority to Define and Punish Offenses Against the Law of Nations
    3. The Law of Nations
    4. The Law of Armed Conflict
    a. Combatants—Lawful and Unlawful
    (1) Alien Unlawful Enemy Combatant (AUEC) – Common Element 1
    (a) AUEC and the Law of Armed Conflict
    (b) Irregular Warfare
    (c) U.S. Army 1914 and 1956 Manuals
    (d) Terrorists
    (e) Conclusion
    (2) Conduct in the Context of and Associated with an Armed Conflict – Common Element 2

    VIII. PROVIDING MATERIAL SUPPORT FOR TERRORISM, EX POST FACTO, AND INSTRUCTIONAL ERROR

    A. Providing Material Support for Terrorism – an Offense Under the Law of Armed Conflict
    1. The Charge
    2. The 2006 M.C.A. and 2007 M.M.C
    a. Material Support or Resources
    b. Terrorism defined
    3. Non-U.S. Domestic Providing Material Support for Terrorism-Type Laws

    B. Discussion
    1. Criminal Organizations – International Military Tribunal at Nuremburg
    2. Control Council 10 – Nuremburg Military Tribunals
    3. Joint Criminal Enterprise

    C. Analysis

    D. Complicity

    E. Aiding the Enemy

    F. Ex Post Facto

    G. Instructional Error

    IX. CONSPIRACY TO VIOLATE THE LAW OF WAR AS AN OFFENSE TRIABLE BY MILITARY COMMISSION

    A. Conspiracy - The Charge and Specification

    B. Conspiracy under the 2006 M.C.A. and 2007 M.M.C

    C. Analysis
    1. Non-U.S. Conspiracy-Type Laws

    D. Conclusion

    X. SOLICITATION AS AN OFFENSE TRIABLE BY MILITARY COMMISSION

    A. Solicitation - The Charge and Specification

    B. Solicitation under the 2006 M.C.A. and 2007 M.M.C

    C. Analysis
    1. Solicitation-Type Laws

    XI. FIRST AMENDMENT ISSUES

    A. Discussion

    B. The Military Commissions Act and the First Amendment

    C. Potential Chilling Effect on U.S. Citizens

    D. Military Commission Judge’s Instructions

    E. Conclusion

    XII. 2006 M.C.A. AND BILL OF ATTAINDER

    A. Bills of Attainder and Legislative Analysis
    1. Legislatively Determines Guilt
    2. Legislatively Inflicts Punishment
    a. Historical Test
    b. Functional Test
    c. Motivational Test
    (1) Specificity of Identification
    (2) Lack of Judicial Trial

    B. Conclusion

    XIII. EQUAL PROTECTION

    XIV. WAIVER OF ASSIGNMENTS OF ERROR I, III to V

    A. The Law

    B. Analysis

    XV. SENTENCE APPROPRIATENESS

    A. Applicable Law

    B. Analysis
    1. The Offense and the Offender
    2. Closely-Related Cases

    XVI. CONCLUSION
    No matter what one's view on military commissions, these cases are must reads for anyone who engages in discussions concerning them.

    Regards

    Mike

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    Default New - Military Commissions Webpage

    The new Military Commissions Webpage has a lot of information linked to its various dropdown menus.

    The current news item is DOD Announces Charges Referred Against Detainee Al Nashiri - a death penalty case.

    The more open MC policies probably have a lot to do with this: New Military Commissions Chief Prosecutor Announced. BG Mark Martins has had the right tickets punched:

    Martins has had a distinguished career in the military, as a soldier and judge advocate. His career has also included assignments as deputy legal counsel to the chairman of the Joint Chiefs of Staff, and as staff judge advocate for Multi-National Force-Iraq under Gen. David Petraeus. Martins finished first in his class at the U.S. Military Academy at West Point. He was also a Rhodes Scholar and graduate of Harvard Law School, where he served on the Harvard Law Review. In 2011, Martins received Harvard Law School’s Medal of Freedom.
    but, to me and more importantly, he has had two decades of experience in the "Laws of War" (primarily ROE theory and practice); and more recently with "Rule of Law" work in Astan.

    I've mentioned him (and articles by him) in 8 SWC posts in two threads, The Rules - Engaging HVTs & OBL and Rule of Law in Iraq & Afghanistan. Search each of the threads for Martins. He's a smart guy and a real pro.

    Regards

    Mike

  14. #574
    Council Member davidbfpo's Avatar
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    Default To catch a spy - sue him!

    JMM steadfastly keeps SWC up to date here, so time to add what at first seems dangerous British humour, no, it is fact a real story. Yes, the suspected terrorists, are suing SIS (MI6) in the English civil courts; with one substantial out of court settlement already (a previous post refers).

    Draw your own conclusions.

    Link:http://www.spectator.co.uk/essays/72...ch-a-spy.thtml
    davidbfpo

  15. #575
    Council Member davidbfpo's Avatar
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    Default NDAA FAQ: A Guide for the Perplexed

    Hat tip to LWOT for citing this guide
    The volume of sheer, unadulterated nonsense zipping around the internet about the NDAA boggles the mind. There was a time–only a few months ago–when the NDAA detention provisions were the obscure province of a small group of national security law nerds. Now, however, this bill has rocketed to international notoriety. The added attention to it is a good thing. It’s an important subject and warrants genuine debate and discussion. The trouble is that much of the discussion is the intellectual equivalent of the “death panel” objections to the health care bill. While certain journalists have done a good job covering the controversy, it’s much easier to get bad information than good. The reader who wants answers to simple questions faces a confusing array of conflicting information.

    Here then, as a public service, is an NDAA FAQ–a simple attempt to lay out the key questions people are asking about the NDAA and answer them as simply and neutrally as we can. Many of the answers here we have discussed in greater depth elsewhere on the blog. We will link to those posts for readers who want greater depth. This is an overview, a Guide for the Perplexed.
    Link:http://www.lawfareblog.com/2011/12/n...the-perplexed/
    davidbfpo

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    Default HT, David, for Lawfare's summary

    The major points - at the end (though reading the body of the summary helps to understand the finish) - are:

    So if it doesn’t significantly expand the government’s detention authority, doesn’t authorize detention of citizens, doesn’t really mandate the military detention of other terrorist suspects, and doesn’t do more to prevent the closure of Gitmo than does current law, what’s all the fuss about? Is it even important?

    The final bill is, indeed, far less consequential than earlier versions would have been. Much of the fuss is overblown. That said, the bill has several important elements:

    - The codification of detention authority in statute is a significant development, not because it enables anything that Congress had previously forbidden but because it puts the legislature squarely behind a set of policies on which it had always retained a kind of strategic ambiguity–a tolerance for detention without a clear endorsement of it of the sort that would make members accountable. Congress has now given that endorsement, and that is no small thing.

    - The transfer restrictions will continue to have negative effects on administration management of detainee affairs, reducing flexibility and agility and compelling the continued detention of people the administration does not want to detain, in a status the administration does not wish to use, and at a facility it would prefer to vacate. That this is no change from current law–indeed, that the NDAA offers slightly more flexibility than does current law–does not make these restrictions any less troublesome.

    - The rump mandatory detention provision remains a bit of a wild card that could have mischievous effects in practice. Though it ends up requiring very little, it does impose–as we have described–a default option of military detention for certain categories of cases. And this option might prove politically difficult to jettison.
    Is there anything in the NDAA about which human rights groups and civil libertarians ought to be pleased?

    Yes, actually, there is. Section 1024 of the bill, as we’ve noted, requires that people subject to long-term military detention in circumstances not already subject to habeas corpus review–think the Detention Facility in Parwan, Afghanistan–henceforth shall have the right to a military lawyer and a proceeding before a military judge in order to contest the government’s factual basis for believing them to be subject to detention. This is an extraordinary and novel development. Detainees in Afghanistan currently have access to the Detainee Review Board process, which as described in this article already provide a relatively robust screening mechanism, particularly compared to years past. The DRB process does not include lawyers and judges, however, and human rights advocacy groups have criticized them on this ground. Requiring lawyers and judges to staff out the screening process is a pretty remarkable shift in the direction of accomodating those concerns.
    Semantics can be important. Thus, one should reflect on the statute's use of the term "law of war" (used 11 times in the summary; as opposed to using the "Law of Armed Conflict" or "International Humanitarian Law"). To me, that usage (now primarily a USAianism) reflects an intent that decision-makers need to look not at LOAC-IHL as viewed internationally, but as to how LOAC-IHL is viewed parochially by the US Constitutional Branches as the "law of war".

    At the same time, the statute extends the substance of the habeas process via a military judge wherever in the World detainees are held by the US. That is something I've suggested as an alternative to the more costly and toothless habeas process centered on Washington DC.

    Regards

    Mike

  17. #577
    Council Member carl's Avatar
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    Default

    Mike:

    I read the Lawfare article and think I understand it. Sort of.

    I also read something that Senator Graham said about one of the provisions.

    "1031, THE STATEMENT OF AUTHORITY TO DETAIN, DOES APPLY TO AMERICAN CITIZENS AND IT DESIGNATES THE WORLD AS THE BATTLEFIELD, INCLUDING THE HOMELAND." (I didn't capitalize this quote, it just came out that way. No editorial comment intended. Also I believe he meant 1021, not 1031.)

    Does Senator Graham's belief mean anything to how the law will be applied? And also, I don't like his wanting to confer battlefield status upon the US. I've read enough comments here to know that for the lack of a better term, battlefield law is not something that can be applied to the US without tossing the Bill of Rights into the waste paper basket. What do you think?
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

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    Default Sometimes, Carl, Sen. Graham

    should relax with a good cup of shut ... up.

    Within a limited scope (but he omits to state the limitation), he's right. If a US citizen, as part of an armed enemy force, engages in hostile acts against the US in the US, he is subject to the same neutralization (kill or capture) rules as any non-citizen enemy combatant.

    That was established by Ex Parte Quirin involving WWII German expats, including one who claimed US citizenship (H.H. Haupt). The Supreme Court made it clear that, under the facts then, his citizenship was no shield against penalties imposed by the laws of war:

    Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid,

    Page 317 U. S. 38

    guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U. S. 612, 101 U. S. 615, 101 U. S. 617-18. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.

    Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when, with that purpose, they entered -- or, having so entered, they remained upon -- our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, § 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other.
    Haupt was in fact executed 8 Aug 1942 (Herbert Hans Haupt - Wiki).

    Of course, during our Civil War, both sides had to face up to folks picking sides contrary to his national or state citizenship. Initially, the Confederates decided to treat Union soldiers and sailors under the Laws of War. Contrarywise, the Union initially treated the Confed soldiers as traitors and its sailors as pirates. The Lieber Code changed that in 1863 to treat the Confeds as combatants under the Laws of War.

    Today, a INCONUS Mumbai situation could, in my opinion, call into play the Laws of War - and probably Ex Parte Quirin.

    Regards

    Mike

  19. #579
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    Default Separated by more than a common language

    In 2009, Judge Richard Leon (probably the most experienced of the Gitmo habeas District Judges, having decided over 2 dozen cases) granted al-Janko's habeas petition.

    Thus, combining the limited and brief nature of lanko's relationship with al Qaeda (and/or the Taliban), with the extreme conduct by his captors over a prolonged period of time, the conclusion is inescapable that his preexisting relationship, such as it was, was sufficiently vitiated that he was no longer "part of' al Qaeda (or the Taliban) at the time he was taken into custody by U.S. forces in 2002. Accordingly, the Government has failed to establish by a preponderance of the evidence that lanko was lawfully detainable as an enemy combatant under the AUMF at the time he was taken into custody, and the Court must, and will, GRANT his petition for a writ of habeas corpus and order the Government to take all necessary and appropriate diplomatic steps to facilitate his release forthwith.
    I reported that decision here, First torture case decided on the merits ...., with a bit tongue in cheek because al-Janko was tortured by the AQ-Taliban as an American spy.

    From our (US) standpoint, one could validly question what two CSRTs (Combatant Status Review Tribunals) were thinking when they found al-Janko an "enemy combatant" in 2004 and 2008. In any event, al-Janko filed a civil action against the US et al, which was assigned to Judge Leon. He found the facts to be largely uncontested (good for al-Janko):

    The facts of this case are well known and largely undisputed. As I recounted in my June 22, 2009 Opinion, plaintiff is a Syrian citizen who spent his teen years in the United Arab Emirates. ... Around January 2000, he traveled to, and began living in, Afghanistan. ... After a brief stay at a Taliban guesthouse he attended the al Farouq training camp only to be accused by certain al Qaeda leaders of being a U.S. spy. ... Ultimately he was tortured so severely by al Qaeda that he gave a false "confession" that he was, indeed, a U.S. spy. ... Thereafter, he was imprisoned by the Taliban for over eighteen months at the infamous Sarpusa prison in Kandahar. ... In January 2002, when U.S. forces learned of plaintiff's presence at the prison - which was by then abandoned - they took him into custody and questioned him at Kandahar Air Base. ... At the time, the Government "mistook [AI] Janko as one of a number of suicide martyrs based on videotapes captured at an al Qaeda safehouse." ... Not yet aware that "the tape involving [AI] Janko ... was actually an Al Qaeda torture tape," U.S. forces transported plaintiff to Guantanamo Bay, Cuba. ... During his time at Guantanamo, plaintiff's detention status was twice reviewed by Combatant Status Review Tribunals ("CSRTs").

    On October 27,2004, the first of two different CSRT panels determined that plaintiff was an enemy combatant. ... That CSRT panel relied upon evidence such as the taped confession the Government later learned was coerced. ... An Administrative Review Board ("ARB") later affirmed plaintiff's status as an enemy combatant and continued his detention on October 24,2005. ... Relying upon much of the same evidence, a second CSRT panel again determined in 2008 that plaintiff was properly detained as an enemy combatant. ... Ultimately, however, in the aftermath of the Supreme Court's decision in Rasul v. Bush, 542 U.S. 466, 483 (2004) (holding that 28 U.S.C. § 2241 extends statutory habeas corpus jurisdiction to detainees in Guantanamo Bay), plaintiff filed a petition for writ of habeas corpus with this Court on June 30, 2005. ...
    ...
    ... On June 22,2009, I granted his petition and ordered his release, finding that "the limited and brief nature of [AI] Janko's relationship with al Qaeda (and/or the Taliban) ... was sufficiently vitiated" by his intervening mistreatment and imprisonment by al Qaeda and the Taliban such that "he was no longer 'part of al Qaeda (or the Taliban) at the time he was taken into custody by U.S. forces in 2002," and, as a result, the Government "failed to establish by a preponderance of the evidence that [AI] Janko was lawfully detainable as an enemy combatant ... at the time he was taken into custody." ... Final judgment was entered in the case on July 17, 2009. The United States did not appeal the ruling, and the plaintiff was finally released from Guantanamo on October 7, 2009.
    However, Judge Leon concluded that, regardless of the errors in detaining al-Janko, the Federal courts were barred by statute from hearing civil actions for damages:

    War, by its very nature, victimizes many of those caught in its wake. Innocent civilians are invariably killed, and sometimes even mistakenly imprisoned. Our legal system was never designed to provide a remedy in our Courts for these inevitable tragedies, especially in a conflict like this where terrorists cunningly morph into their surroundings. Indeed, the Congress has specifically barred the Judicial Branch from reviewing "any aspect of the detention ... treatment ... 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," 28 U.S.C. § 2241(e)(2). For this Court to circumvent such a clear directive from our Legislative Branch would be an utter disregard of the limitations of our judicial power.
    Thus, al-Janko's case was dismissed by the same judge who granted his habeas petition.

    That result (in accord with a number of other recent US cases) is contrary to the line of UK cases allowing civil actions for damages (as David reported, To catch a spy - sue him!). As often stated, substantial differences often exist between US and UK legal precedents (to say nothing of differences in US and Euro laws).

    Regards

    Mike

    PS: David - I hope you are having an enjoyable Boxing Day; to you and yours, the best from us. Main course yesterday looked something like this (though USAian, not Scottish).
    Last edited by jmm99; 12-26-2011 at 08:44 PM.

  20. #580
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    Default To catch a spy - sue him! Part 2

    JMM rightly notes the sometimes acute differences between the legal position in the legal response to terrorism between the USA and the UK.

    The UK government has proposed a number if changes to the law, known as a 'Green Paper on Justice and Security' and the main legal proposals are to change the procedures in civil courts and coroner's inquests regarding secret evidence. There are several non-legal changes regarding oversight of intelligence.

    The consistently excellent blog on 'Watching Them, Watching Us' has a commentary:http://spyblog.org.uk/

    Here is a taster:
    Far too often, the "national security" classification of documents or witness testimony is really about preventing embarrassment to politicians, mandarins and apparatchiki in Whitehall etc.e.g. the torture claims case of Binyam Mohamed and the inquest into the "Friendly Fire" deaths of UK military personnel caused by trigger happy US Air Force ground attack aircraft pilots in Afghanistan etc.
    So following the title 'sue him' may not last too long if HMG is successful. IIRC others have commented on the proposal's impact on coroner's inquests, notably for service personnel.
    davidbfpo

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