Crimes, War Crimes and the War on Terror

[jmm99]

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

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

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

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

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

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

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

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

SEC. 7. HABEAS CORPUS MATTERS.

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

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant
or is awaiting such determination.’’.

The habeas limitations in DTA and MCA have fallen to the Boumediene decision, which has been sliced, diced and discussed above. That decision applies to aliens and hinges on the territorial test for the constitutional scope of the habeas remedy. That was a close 5-4 decision.

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

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

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

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

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

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

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

from DTA (in full above)

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

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

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

from MCA (in full above)

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.’’.

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

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

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

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

[jmm99]

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

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

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

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

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

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

[jmm99]

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

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

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

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

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

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

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

Wiki Bio

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

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

ACLU Biography of Plaintiff Binyam Mohamed

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

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

ACLU Lawsuit vs Boeing Subsidiary

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

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

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

[jmm99]

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

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

The MCA discovery provisions are as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[jmm99]

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

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

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

The bottom line requested by the detainees is:

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

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

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

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

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

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

In any event, bad PR for DoJ - again.

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

[jmm99]

First the Uighurs; and then the new classified evidence rules.

Detainees seek to attend hearing
Thursday, September 11th, 2008 5:48 pm Lyle Denniston
.....
Lawyers for a group of Chinese Muslims now being held at Guantanamo Bay asked a federal judge on Wednesday to order the Pentagon to take four of the detainees to Washington, D.C., for the hearing on their plea to be released....
...
Judge Urbina has not yet indicated whether he will allow any detainee to be brought to a hearing in his court. Another judge who is moving along rapidly with detainee cases, District Judge Richard J. Leon, has indicated that detainees can only participate in hearings in his court via a telephone hook-up from Guantanamo.

http://www.scotusblog.com/wp/detaine...ttend-hearing/

Detainees' motion is here.

http://www.scotusblog.com/wp/wp-cont...0-7-08-hrg.pdf

As noted in the quote above, Judge Leon has already denied a similar motion for personal presence. Except for affirmation of the habeas jurisdiction, the DC judges have shown a reluctance to interfere with prison administration at Gitmo.

Of more interest is pp.1-2 of the motion, which spells out the four different positions of the government taken on this group of Uighurs as "enemy combatants" or not. Since this .pdf does not allow select text, you will have to open the file and read it. Too long to type out.

Besides Parhat (already in the non-combatant class), 4 more have been stipulated to enjoy that status. A third group of 8 and a fourth group of 4 may have slightly different fact situations. The court ordered the government to put up or shut up by 30 Sep as to the last 12.

---------------------------
A new ruling defining treatment of classified evidence, and security clearance rules for legal counsel, was issued by Judge Hogan.

same source
Meanwhile, Senior District Judge Thomas F. Hogan, who is coordinating most of the detainee habeas cases, on Thursday issued a new order to control how classified information is handled in the cases, and to control arrangements for detainees’ lawyers to meet with them at Guantanamo. It replaces a series of “protective orders” first put in place four years ago.

The 28-page order is here.

https://ecf.dcd.uscourts.gov/cgi-bin...2002cv0828-371

The definition of classified information, and access requirements, are:

8. The terms “classified national security information and/or documents,” “classified information” and “classified documents” mean:

a. any classified document or information that was classified by any Executive Branch agency in the interests of national security or pursuant to Executive Order, including Executive Order 12958, as amended, or its predecessor Orders, as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or additionally controlled as “SENSITIVE COMPARTMENTED INFORMATION (SCI),” or any classified information contained in such document;

b. any document or information, regardless of its physical form or characteristics, now or formerly in the possession of a private party that was derived from United States government information that was classified, regardless of whether such document or information has subsequently been classified by the government pursuant to Executive Order, including Executive Order 12958, as amended, or its predecessor Orders, as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or additionally controlled as “SENSITIVE COMPARTMENTED INFORMATION (SCI)”;

c. verbal or non-documentary classified information known to petitioners or petitioners’ counsel; or

d. any document and information as to which petitioners or petitioners’ counsel were notified orally or in writing that such document or information contains classified information.
.....
16. Without authorization from the government, no petitioner or petitioner’s counsel shall have access to any classified information involved in these cases unless that person has done the following:

a. received the necessary security clearance as determined by the Department of Justice Security Officer; and

b. signed the Memorandum of Understanding (“MOU”), attached hereto as Exhibit A, agreeing to comply with the terms of this Protective Order. ...

And, as to counsel's access to a detainee:

C. Requirements for Access to and Communications with Detainees

8. Security Clearance.

a. Counsel must hold a valid, current United States security clearance at the Secret level or higher or its equivalent, as determined by appropriate DoD intelligence personnel.

b. Counsel who possess a valid security clearance shall provide, in writing, the date of their background investigation, the date such clearance was granted, the level of the clearance, and the agency that granted the clearance. Access will be granted only after DoD verification of the security clearance.

c. Counsel who do not currently possess a Secret clearance are required to submit an application for clearance to the Department of Justice, Litigation Security Division.

Finally, each person accessing classified information must sign the Exhibit A agreement, which provides in pertinent part:

Having familiarized myself with the applicable statutes, regulations, and orders related to, but not limited to, unauthorized disclosure of classified information, espionage and related offenses; The Intelligence Identities Protection Act, 50 U.S.C. § 421; 18 U.S.C. § 641; 50 U.S.C. § 783; 28 C.F.R. § 17 et seq.; and Executive Order 12958; I understand that I may be the recipient of information and documents that belong to the United States and concern the present and future security of the United States, and that such documents and information together with the methods and sources of collecting it are classified by the United States government. In consideration for the disclosure of classified information and documents:

(1) I agree that I shall never divulge, publish, or reveal either by word, conduct or any other means, such classified documents and information unless specifically authorized in writing to do so by an authorized representative of the United States government, or as expressly authorized by the Protective Order entered in the United States District Court for the District of Columbia in the above captioned cases.

(2) I agree that this Memorandum of Understanding and any other non-disclosure agreement signed by me will remain forever binding on me.

(3) I have received, read, and understand the Protective Order entered by the United States District Court for the District of Columbia in the above-captioned cases, and I agree to comply with the provisions thereof.

This 28-page order replaces the prior protective orders entered in 2004. It appears that Judge Hogan is starting the process of gaining control over the situation - i.e., removing possible grounds for the government to refuse or delay discovery of evidence.

[CloseDanger]

Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

"Noncombatants" fall not under convention period. Neigh Constitutional, nor Geneve.

Ergo, their status is determined by the same laws that govern their adversary, Which under profound wisdom established The Uniformed Code Of Military Justice as an equal act of Justice on both our and their "Soldiers".

In the case of GTMO, it is a military tribunal. The prisoners do not consign to anything whatsoever. No code at all. They are merely Men without a religion, nation, country, or funding entity worth a damn.

To show the world that it is okay to officially recognize this kind of fraud (these prisoners) WOULD be criminal.

Your most profound argument before Justice is that you walked a straight line by what is legally, morally, and Godly true. And easily verifiable as well.

[jmm99]

The battle between the government and the detainees has two fronts - the DC Circuit on DTA cases and the DC District on habeas cases. However, it is resolving itself into one issue - the collision between classified data and application of the Brady discovery doctrine.

Since the government has conceded that it cannot meet the discovery timetable it set, it has had to go to a fallback position.

U.S. seeks to escalate detainee delay dispute
Monday, September 15th, 2008 8:11 pm Lyle Denniston
.....
Seeking to head off court-imposed punishment for failing to meet deadlines for filings in Guantanamo Bay detainee cases, the Justice Department on Monday sought to raise the stakes, foreseeing two potential threats to national security if it is sanctioned. ...
....
The core of this new dispute is the simple one of meeting deadlines — in fact, deadlines that the government sought, over detainees’ objections that they were too generous. The government has conceded it has not been able to meet them, and it is seeking relaxation of them until it can try to catch up.

But it has become increasingly apparent that the underlying controversy is over classified information — how much of it there is, who gets to see it, what process should be used to prepare it for court review, what effect will it have on continued detention of prisoners.

http://www.scotusblog.com/wp/us-seek...delay-dispute/

The government's reply in the District Court, seeking relief from the present scheduling order, is here.

http://www.scotusblog.com/wp/wp-cont...ay-9-15-08.pdf

The reply first contains the concession; notes the need to prepare new factual returns; and then eventually reaches its bottom line:

(reply, pp. 2, 3, 11)
....
As explained in connection with its Motion for Relief, the Government underestimated the time it would take to accomplish the development and finalization of amended and original factual returns in the pending habeas cases. When it could not meet the benchmark it had initially represented to the Court as attainable, it requested relief from the Court in the form of an additional 30 days to complete the filing of the first 50 returns.....
....
... Petitioners have wrongfully interpreted the Governments’ desire to present the strongest possible case for detention as an admission that the Government now finds the records of the Combatant Status Review Tribunal (“CSRT”) “inadequate” to justify detention. See, e.g., Pet. Opp. at 9 n. 7. The Government’s development of new factual returns, however, recognizes that significant legal changes have occurred since the original CSRTs were done and the original returns were filed, and it admits of the possibility of factual changes regarding the cases against detainees. ...
....
.... Petitioners seek to prevent the Court from considering late-filed amended returns and to allow the Government only seven days to file original returns on pain of default or evidentiary sanctions.7 Imposing such sanctions because the Government was overly optimistic in its estimates of how long it would take to ramp up production of returns would not force Respondents alone to pay the price. It would force the American people to shoulder the burden, either in the form of increased risk of the erroneous release of individuals whom the government has determined are enemies of the United States, or in the form of reckless and inappropriate dissemination of classified information without careful review and vetting by the intelligence agencies charged with protecting American interests....

Most (all) readers in this forum will be concerned about the danger of "inappropriate dissemination of classified information". In assessing that risk, one should go back to Judge Hogan's protective order (cited in post # 86 above), and read the whole thing. Then, draw your own conclusions as to whether the court's order will be adequate to the task.

My broken crystal ball suggests that the DC District judges will probably cut the government some slack on the timing of discovery, but will not be that impressed by the classified data arguement on its merits.

------------------------------
On the DC Circuit front, we have a slightly different government approach.

from SCOTUSblog source above
....
Meanwhile, the Justice Department made a new effort in D.C. Circuit Court to shut down at least temporarily that Court’s part in reviewing government detention decisions.....
....
... the Department said in its newest filing that the Circuit Court should put some 190 such detainee cases on hold until after District Court judges resolve the prisoners’ habeas claims. At a minimum, it said, no action should be taken on the motion to compel until after the Circuit Court has decided whether to put the detainee cases aside.

The government's reply filed in the DC Circuit is here.

http://www.scotusblog.com/wp/wp-cont...el-9-15-08.pdf

There, we have this interesting bit of advocacy:

(response pp.4-5)
...
As the Government’s abeyance motions explain, holding the DTA cases, such as these, in abeyance is appropriate given the pendency and rapid movement of the habeas litigation. The two types of cases are duplicative. And the Supreme Court in Boumediene directed that habeas move forward "prompt[ly]," while at the same time holding the DTA proceedings to be a constitutionally inadequate substitute for habeas corpus. Boumediene, 128 S. Ct. at 2275. Thus, Judge Hogan has entered an order requiring expedited briefing on case procedures and the production of at least 50 factual returns every month with respect to cases he is coordinating. Scheduling Order, In re Guantanamo Bay Litig., Misc. No. 08-442 (D.D.C. July 11, 2008). Moreover, the Government has additional obligations in the cases pending before Judges Leon and Sullivan. Indeed, Judge Leon recently issued an order scheduling the first merits hearing in a case before him for October 6, 2008. See Scheduling Order, Boumediene ~. Bush, Civ. Case No. 04-1166 (D.D.C. Aug. 27, 2008).

So, while the government is moving in DC District to delay its proceedings, it is moving in DC Circuit to stay its proceedings because the DC District is moving ahead so quickly.

In the government's defense (fair is fair), the response does specify the efforts being undertaken here:

(response pp. 5-6)
...
The preparation of factual returns in the habeas cases is an enormous undertaldng. As the Government recently explained to the district court, the Department of Defense has approximately 30 attorneys working exclusively on the habeas litigation (with more to be deployed), and has diverted intelligence personnel to work full-time in support of the habeas litigation. See Respondent’s Motion for Partial and Temporary Relief from the Court’s July 11,2008 Scheduling Order, In Re Guantanamo Bay Litigation, No. 08-442 (filed Aug. 29, 2008), at 4. The Department of Justice has assigned or detailed more than 50 attorneys to producing factual returns and litigating the more than 250 habeas cases, and the CIA presently has more than 50 attorneys, paralegals, subject matter experts, and classification officials involved in the process of reviewing classified factual returns - a necessary step to their submission in the habeas litigation. ... The Government’s resources are finite, and they will not permit it to litigate 190 DTA cases and more than 200 fast-track habeas cases at the same time at the rate ordered by the district courts.

So, a question to those in law enforcement. If your prosecutor's office had roughly 130 attorneys, could it handle some 400 cases (recall these are basically unlawful firearms and explosives cases) on an expedited basis ?

----------------------------------------
I am also aware of the litigation game - known as "graymail" - where the threatened use of classified data, sources and methods, is a tool to force an advantageous settlement or dismissal of charges.

Here is a recent example (not a "War Crimes Case"), where the government is claiming the defendant is doing exactly that. The defendant, on the other hand, claimed the government had improperly influenced the grand jury - that claim was rejected by the judge.

News - Channel 8
Ex-CIA Exec Facing Trial Says He'll Expose Agents, Programs
posted 8:58 pm Tue September 09, 2008
McLean, Va.
....
A former top CIA official accused of corruption and fraud is threatening to expose the identities of numerous agents and programs as part of his defense, prosecutors said. ... In a court filing, prosecutors allege that former CIA executive director Kyle "Dusty" Foggo is trying to gum up the works of his trial, scheduled for November, by delving into classified information that is irrelevant to his case.

http://www.news8.net:80/news/stories/0908/552040.html

Many of the filings in the Foggo case have been sealed because of references to classified data. Federal judges do know how to protect classified data.

[jmm99]

trying to figure out what the DoJ's game plan is.

Yesterday, it seemed to be (based on its responsive briefs) to stay the DC Circuit cases (under DTA); and to obtain more time to file amended reports in the DC District habeas cases (which include both DTA and MCA cases). That was then ... this is now (as of 22:33 tonite).

Early test of detention reasons
Tuesday, September 16th, 2008 10:33 pm Lyle Denniston
.....
The Justice Department, in seeking to bolster its claims to continue holding scores of detainees at Guantanamo Bay, has been filing a stack of new reports in court to update its reasons. In fact, it has said it plans to file amended reports in nearly all of the 250 habeas cases now in District Court. ...

http://www.scotusblog.com/wp/early-t...ntion-reasons/

The immediate action is again before Judge Leon, where five detainees are challenging a large submission of amended reports

(same source as above)
....
The attorneys sought to bring on that test by asking U.S. District Judge Richard J. Leon, who has about two dozen detainees’ cases in his Court and is moving them rapidly, to strike from court records the massive filing the government made about five Algerians in the case titled Boumediene v. Bush ....
.....
At issue are both the classified and unclassified versions of a 53-page “narrative” of information, plus 134 attached exhibits. The classified version was filed August 22, and a heavily redacted public version was filed Sept. 5. ...

The detainee's main argument is that no government official has signed the documents under oath verifying the truth and reliability of the information. The detainee's motion is here.

http://www.scotusblog.com/wp/wp-cont...ct-9-16-08.pdf

The motion's main thrust is:

(motion pp.1, 3, 4)
....
This Court ordered the Government to submit any material it wished to add to its previously filed “return” – i.e., its explanation why the Petitioners were being imprisoned – on or before August 22. Briefing and Scheduling Order, Boumediene v. Bush, No. 04-1166, Dkt. No. 125 (RJL) (D.D.C. July 31, 2008). The Court also ruled that the Government bears the burden of proof to show that Petitioners’ imprisonment is lawful. Case Management Order, Boumediene v. Bush, No. 04-1166, Dkt. No. 142 (RJL) (D.D.C. Aug. 27, 2008).
.....
Although the facts alleged by the Government in support of continued imprisonment are contained in the Narrative, no officer of this Court has attested that the alleged facts are true or have a good-faith basis in fact. The Narrative – the Government’s summation of the reasons why the Petitioners have been and continue to be imprisoned – is unsigned. No one from the Government has put his or her name to the allegations – not the Government’s counsel from the Department of Justice (who signed the cover memo, but not the rest), nor Rear Admiral Thomas, who cautiously declares under penalty of perjury only that the Narrative contains “information” that the Department of Defense used to “establish” and “substantiate [Petitioners’] detention.” Thomas Decl. ¶ 3. Admiral Thomas does not declare under penalty of perjury that the “facts” alleged within the Narrative are, to the best of his knowledge, information, and belief, all true.

Nobody does....
....
Surely someone at the Department of Justice is willing to do that, if these allegations are to be given the weight and credibility that the Government contends are sufficient to justify indefinite military detention. Failure of an officer of the Court to sign the Narrative certainly reinforces Petitioners’ arguments regarding the insufficiency and vagueness of the Government’s allegations.

Therefore, Petitioners respectfully request that the Court order the Government to file a signed Narrative, or a signed certification from counsel of record attesting to the veracity of the unsigned Narrative. If Government counsel will not sign, Petitioners request that the Court strike the Narrative and its accompanying exhibits. [going on to cite various cases striking unsigned pleadings under FRCP Rule 11 and 28 U.S.C. § 2243, the Habeas Act] ...

A large amount of classified information is contained in the government's exhibits (most everything). That data cannot be independently checked for accuracy. Thus, besides the statute and rule, the argument is plausible that someone should stick out his or her neck to sign and swear that, "to the best of his (her) knowledge, information and belief", all factual allegations are true. We shall see what Judge Leon does with this one.

[jmm99]

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

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

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

The order is here

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

The opinion explaining the order is here.

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

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

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

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

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

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

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

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

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

[jmm99]

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

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

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

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

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

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

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

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

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

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

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

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

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

[jmm99]

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

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

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

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

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

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

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

The key MCA provision before Judge Hogan is this:

(Latif opinion, p. 1)

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

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) [N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

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

(Latif opinion, p. 2, 3)

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

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

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

(Lyle, from above source)

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

(Marty, from source below)

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

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

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

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

(Latif opinion, p. 2)

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

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

[jmm99]

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

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

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

The letter (p.1-2) notes:

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

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

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

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

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

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

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

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

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

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

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

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

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

[jmm99]

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

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

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

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

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

The judge denied the motion.

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

[jmm99]

but, not quite yet.

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

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

The government's filing is here

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

The Uighurs' petition for immediate release is here.

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

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

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

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

Judge Urbina's bio here.

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

[jmm99]

This did not take long.

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

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

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

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

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

We shall see if the government appeals.

[jmm99]

That didn't take long either. DoJ has moved the DC Circuit to stay Judge Urbina's order.

U.S. asks Circuit Court for speed on Uighurs
Tuesday, October 7th, 2008 11:46 pm | Lyle Denniston
.....
The Justice Department, in an emergency filing Tuesday night, asked the D.C. Circuit Court to act by no later than tomorrow on its request for a temporary order blocking a judge’s order that 17 Chinese Muslim detainees at Guantanamo Bay be transported to Washington, D.C., this week. The Department said action within the next day was necessary “in order for the government to seek an emergency stay from the Supreme Court, if necessary.” .....
....
Judge Urbina has refused to stay his order, and has refused to issue a short administrative stay to allow the Justice Department to pursue its appeal.

http://www.scotusblog.com/wp/us-asks...ed-on-uighurs/

The reference to SCOTUS in the filing is instructive. The DC Circuit in Parhat (posts above) cleared him of the "enemy combatant" charge (complete lack of evidence) and instructed Judge Urbina to proceed quickly on the other Uighur cases.

The DoJ then conceded that all of the Uighurs were in the same boat as Parhat - thus, none are "enemy combatants". Given that concession, Judge Urbina treated the case as an ordinary habeas case and ordered "the bodies to be brought before him".

Since the DC Circuit has already ruled on the merits, the DoJ probably does not expect it to stay the order. So, the probable need for DoJ to invoke SCOTUS.

Judge Urbina’s oral ruling, and the full hearing transcript, can be found here.

http://www.scotusblog.com/wp/wp-cont...pt-10-7-08.pdf

The transcript is worth reading (for education about how to conduct a hearing); here is an example of a judge taking charge in a nice way - and eliminating the spin:

(pp. 4-5)

All right. Let me suggest to you how we're going to do things. I'm going to make some preliminary rulings that will put everyone on the same page as far as salient matters are concerned, and then I believe that counsel have provided more than ample briefings on the issues before the Court today.

If counsel really feel the strong need to iterate, and I don't mean reiterate what's already been stated in your very well prepared and generous submissions, if you feel the need to emphasize something once again, you'll have that opportunity briefly. I will make some more rulings, and if those rulings necessitate the calling of witnesses for more information relevant to the issues extent at that point, then we will call the witnesses.

First of all, let me say that the authorizations that have been submitted representing the authority of the Petitioners' counsel to act on their behalf are satisfactory. I accept them and I have examined them, particularly under the guidelines provided by Adem versus Bush.

Secondly, I'd like to confirm that the Uighurs before the Court in this matter today have similar factual backgrounds, that is to say that the parties acknowledge that there are no material differences between the individual Petitioners that the Court should be made aware of at this time.

If the answer to that question is "yes," then the factual determination made by this circuit in Parhat will apply to all the Petitioners. Are we in agreement? MR. WILLETT: Your Honor, we believe the Government has conceded that point. THE COURT: All right. I know that as of September the 30th the remaining -- the Uighurs not previously recognized as non-enemy combatants have now been designated as non- -- or treated as non-enemy combatants; is that correct? MR. O'QUINN: That's correct, Your Honor. THE COURT: All right. So is my assumption correct? MR. O'QUINN: Yes, Your Honor. ...

The transcript is also instructive in showing that Federal judges, albeit legal beagles as we all are, are more concerned with national security issues than legal technicalities - questions by Judge to DoJ counsel:

(pp.15-17)

THE COURT: What is the risk to -- the security risk to the United States? What page is that on? What is the security risk to the United States should these people be permitted to live here? What is it? You've had seven years to study this issue. What is the security risk?
....
THE COURT: I'm not talking about status. I'm talking about what is the security risk. What is the risk to national security if these individuals were admitted? Forget about the legal --
.....
THE COURT: So your answer is these -- these Uighurs are a risk to national security because Congress says so. MR. O'QUINN: My answer, Judge Urbina, without offering any -- you know, I don't have available to me today any particular specific analysis as to what the threats of -- from a particular individual might be if a particular individual were let loose on the street.

Judge Urbina's bench opinion ordering release is at pp. 29-43.

He makes a couple of points that should be of comfort to active duty soldiers serving in a war zone - that is, his opinion does not impose a strait-jacket on them in initially handling detainees. The context is Congress' 2001 AFUMFA and the DoD order of 7 Jul 2004 defining "enemy combatant":

(pp. 30-31)

This standard defines an enemy combatant as, quote, an individual who was part or supporting -- part of or supporting Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners. Thus far, this standard is the only one recognized by the Supreme Court for legally detaining individuals under the Authorization For Use of Military Force Act.
.....
In this case, the Government has already absolved the Petitioners of their enemy combatant title; that is to say, they have indicated that none of these are to be treated as enemy combatants, so its theory for continued detention is based on an inherent Executive authority to quote/unquote wind-up detentions in an orderly fashion.

Initially, the Petitioners' protest that this wind-up authority should -- should it exist, would not apply to them because they were never lawfully detained in the first instance, but in Boumediene, the Supreme Court made it clear that habeas is not available the moment a person is taken into custody, and in any event, the record is too undeveloped as to the circumstances regarding their transfer from Pakistan officials to U.S. custody to make that determination.
....
Accordingly, the Court assumes, for the sake of this discussion, that the Petitioners were lawfully detained and that the Executive does have some inherent authority to wind up wartime detentions.....

One hopes that this standard (that is, initial detention can be lawful, even though the subsequent final legal determination is that the detainee should no longer be detained) will be followed. Otherwise, we would force MAJ Smith to make definitive legal determinations that SCOTUS has problems with.

[jmm99]

After Judge Urbina ruled, the political spin machine went into gear - statements from the White House (Dana Perino) and DoJ are at urls posted below quotes:

(from Ms. Perino)
... The district court's ruling, if allowed to stand, could be used as precedent for other detainees held at Guantanamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country. ...

http://www.scotusblog.com/wp/wp-cont...rs-10-7-08.pdf

This is total Bravo Sierra - this ruling is limited to the Uighurs (conceded by DoJ not to be "enemy combatants") - I think I have explained that point enough.

(from DoJ)
... Today’s ruling presents serious national security and separation of powers concerns and raises unprecedented legal issues. ...
....
....During the time between the presentment of the Uighurs on October 10 and the hearing on October 16, the court ordered that the government have no supervision or oversight of the released individuals.

http://www.usdoj.gov/opa/pr/2008/October/08-ag-903.html

This is lesser Bravo Sierra. DoJ counsel at argument was unable to articulate the national security risk to the US posed by the 14 Uighurs (see above).

The case does raise separation of powers issues - many of which have been caused by the unprecedented claims to Executive powers by the Bush Administration (IMO - and I am somewhat biased toward Executive power, but there can be too much of a good thing).

The "no supervision or oversight of the released individuals" comes from an off-hand remark of the judge with DoJ counsel toward the end of the hearing - the context was the judge's request that the Uighurs not be arrested on immigration charges once they entered the US for Friday's hearing !

The DoJ and DHS on Friday will have the opportunity to request "supervision or oversight" of the Uighurs pending next week's hearing on what the specific terms of their release will be.

The "no supervision or oversight of the released individuals" claim is in fact belied by the terms of the order proposed by the detainees' attorneys:

It is FURTHER ORDERED as follows:

The Court, having reserved the right and power to impose such conditions as it deems reasonable, orders that the government produce each of the Petitioners in this Court on Friday, October 10, 2008, at 10:00 a.m., at which hearing the Court will order their release and impose such short-term terms and conditions of release as it then finds and rules to be reasonable and appropriate; and

That each of the Petitioners and the government shall appear in this Court at a hearing to be commenced on October 16, 2008, to address such other and further terms and conditions of release as the Court may find and rule to be reasonable and appropriate. The parties may offer evidence and argument as to such terms and conditions. The Court directs that the government provide a representative of the Department of Homeland Security to be present at the hearing.

http://www.scotusblog.com/wp/wp-cont...er-10-7-08.pdf

The DoJ notice of appeal and stay filing are here:

http://www.scotusblog.com/wp/wp-cont...rs-10-7-08.pdf

http://www.scotusblog.com/wp/wp-cont...dc-10-7-08.pdf

[jmm99]

but, first of all, the final order issued by Judge Urbina, in pertinent part:

ORDERED that upon entry into the United States, the U.S. Marshals Service shall assume custody of and house the petitioners until presentment before the court on Friday, October 10, 2008 at 10:00 am.

http://www.scotusblog.com/wp/wp-cont...er-10-8-08.pdf

As I said, Bravo Sierra from the political spinners.

Now, onto the rapidly developing story.

Detainee lawyers seek familiar Circuit panel
Wednesday, October 8th, 2008 1:55 pm | Lyle Denniston
.....
Seeking to get an appeal panel that has already shown skepticism toward the government’s handling of Chinese Muslim detainees at Guantanamo Bay, lawyers for those 17 prisoners asked the D.C. Circuit Court on Wednesday to assign those same three judges to hear the Bush Administration’s new appeal on the captives’ legal rights.

http://www.scotusblog.com/wp/detaine...amiliar-panel/

The detainees' emergency motion is very simply 6 pages of hard-hitting factual and legal points limited to the particular facts of this case - most all of which cannot be contested. Draw your own conclusions; here it is.

http://www.scotusblog.com/wp/wp-cont...rs-10-8-08.pdf

The DoJ opened the door and now the defense team is walking through it. Since the DoJ wants action today, we should be getting some more news soon enough.

[jmm99]

New DC Circuit panel - new briefing schedule.

Detainees’ entry to U.S. blocked, for now
Wednesday, October 8th, 2008 6:55 pm | Lyle Denniston
UPDATED 7:05 p.m.
The D.C. Circuit Court blocked, for at least eight days, the entry of 17 Guantanamo Bay detainees into the U.S., putting on hold a federal judge’s order for their release. ....
.....
The stay order was issued by Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph and Judith W. Rogers.

http://www.scotusblog.com/wp/detaine...amiliar-panel/

The three-judge panel, issuing the order, was totally different from the panel that heard the original Parhat appeal and issued a unanimous opinion clearing him (Chief Circuit Judge David B. Sentelle and Circuit Judges Merrick B. Garland and Thomas B. Griffith).

The order is a temporary administrative stay, which provides:

Upon consideration of the emergency motion for stay pending the court’s disposition of a motion for a stay pending appeal, it is

ORDERED that the district court’s order directing that appellees be released into the United States and brought to the district court on October 10, 2008, be stayed pending further order of the court. The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for stay pending appeal and should not be construed in any way as a ruling on the merits of that motion. See D.C. Circuit Handbook of Practice and Internal Procedures 32 (2007). It is

FURTHER ORDERED that appellants hand-serve and hand-file their motion for
stay pending appeal by 4:00 p.m., October 10, 2008; appellees hand-serve and handfile a response to the motion by 4:00 p.m., October 14, 2008; and appellants handserve and hand-file any reply by 4:00 p.m., October 16, 2008.

http://www.scotusblog.com/wp/wp-cont...rs-10-8-08.pdf

The detainee's brief opposing the emergency stay can be found here.

http://www.scotusblog.com/wp/wp-cont...ay-10-8-08.pdf

The last page (p.25) is a letter from Bill Delahunt (D) and Dana Rohrabacher (R) requesting DoD to release the Uighurs.

Judge Urbina's order for release, subject to imposition of conditions at the Friday 10 Oct and Thursday 16 Oct hearings, is here.

http://www.scotusblog.com/wp/wp-cont...er-10-8-08.pdf

That order is now stayed until the DC Circuit hears the DoJ's motion to enter a long-term stay until the DoJ's appeal of the release order is heard. To summarize:

1. The DoJ's motion for a temporary stay has been granted.

2. The DoJ's motion for a stay during the pendency of its appeal of the release order will be decided after Thursday of next week.

3. If that stay is granted, the DoJ's appeal on the merits of releasing the detainees will be briefed, argued and decided. How long that will take is up to the DC Circuit panel.

4. If that stay is denied, the appeal will still continue; but Judge Urbina would then have his hearings to impose conditions for release.

Have to look around and see what Dana R has to say about all this.