Crimes, War Crimes and the War on Terror

[jmm99]

Four habeas petitions from Bagram detainees will be heard tomorrow before DC District Judge John Bates.

Does Boumediene reach to Bagram?
Sunday, January 4th, 2009 6:24 pm | Lyle Denniston
....
Since June, and the Supreme Court’s ruling in Boumediene v. Bush, it has been clear that foreign nationals held as terrorism suspects by the U.S. military at Guantanamo Bay, Cuba, have a constitutional right to challenge their captivity in U.S. courts in Washington. On Wednesday, a federal judge will begin exploring whether Boumediene’s result reaches another military prison where the U.S. now holds perhaps three times the number of detainees still left at Guantanamo Bay — the “Bagram Theater Internment Faciltliy” at an airfield some 40 miles outside of Kabul, Afghanistan.
...
In ordering a hearing for 10 a.m. Wednesday, District Judge John D. Bates made clear he would be focusing on whether his court has any authority to rule on the Bagram detainee claims. He told lawyers not to expect to spend much time on any other issue in the cases.

http://www.scotusblog.com/wp/does-bo...ram/#more-8470

The fact situation here precludes automatic application of either SCOTUS decision in Boumediene v. Bush or Munaf v. Geren.

Munaf found jurisdiction because the petitioners were US citizens (the well-established nationality jurisdiction - all justices agreed).

Boumediene (5-4) found territorial jurisdiction, in effect, by considering Gitmo to be a US territory.

Bagram, under no stretch, can be considered a US territory; though it might be considered US property. This is the first round in a case which will not go away - eventually SCOTUS will have consider the rules for battlefield detainees under GCs Common Article 3. No timetable was given for issuance of the decision.

[jmm99]

McClatchy summarizes 4 DoJ appointments; three will have some impact on these "War Crimes" cases, here.

Posted on Monday, January 5, 2009
Obama's Justice nominees signal end of Bush terror tactics
By Greg Gordon | McClatchy Newspapers

WASHINGTON — In filling four senior Justice Department positions Monday, President-elect Barack Obama signaled that he intends to roll back Bush administration counterterrorism policies authorizing harsh interrogation techniques, warrantless spying and indefinite detentions of terrorism suspects.

The most startling shift was Obama's pick of Indiana University law professor Dawn Johnsen to take charge of the Office of Legal Counsel, the unit that's churned out the legal opinions that provided a foundation for expanding President George W. Bush's national security powers. .....

The article provides most background on Dawn Johnson, who will take over at OLC (Office of Legal Counsel and source of the Yoo memoes). Two 2008 statements by her are here and here.

The person in overall charge of the habeas cases will be Tom Perrelli, counsel to Clinton Attorney General Janet Reno from 1997 to 1999, as the associate attorney general who oversees civil matters (which is what habeas petitions are considered). He is best known as a media lawyer - e.g., here and here.

Presenting DoJ's position before SCOTUS, with influence on DC Circuit appeals, will be Elena Kagan, the dean of the Harvard University Law School and a former Clinton White House aide, as solicitor general. Her Wiki is here.

[jmm99]

The Bagram habeas hearing ended with the judge requesting more information from the DoJ.

Analysis: Some overseas extension of habeas?
Wednesday, January 7th, 2009 4:45 pm | Lyle Denniston
.....
UPDATE 6:40 p.m. After Wednesday’s hearing, Judge John D. Bates ordered the government to supply, by Jan. 16, information on how many detainees are at Bagram Air Base, how many were captured elsewhere, and how many are Afghan citizens — the last two points apparently bearing on issues the judge had raised at the hearing. [order is here]

Analysis

Voicing some concern over the government creating a “black hole” for detainees in a “law-free zone” at an overseas military base, a federal judge hinted on Wednesday that he may allow some of the prisoners the U.S. holds in Afghanistan to file court cases to test their captivity.
....
Bates, though, did indicate that he would approach cautiously the issue of granting habeas rights for anyone now at a U.S. military prison at Bagram. Holding a hearing on whether the right to bring a habeas challenge, recognized by the Supreme Court last June in Boumediene v. Bush, extends to Bagram, the judge seemed to grow impatient with a lawyer for detainees who asked for a sweeping expansion of habeas rights.

“You seem to be reserving the position that anywhere [detainees] are held, they would have habeas privileges,” the judge commented to Stanford law professor Barbara J. Olshansky She told Bates that, while she was seeking habeas rights only for the four prisoners involved in the cases now before him, “there can’t be any place in the world where we can keep people without any due process.”

The judge, however, said: ”I don’t think the Supreme Court in Boumediene was intimating that anywhere detainees are held, they have habeas rights. That was not the kind of analysis it made.” The case, he said, was decided on very specific grounds, and left much to be decided by lower courts later. Any ruling that extended habeas everywhere, Bates added, “would write off the books” the six-factor test the Supreme Court laid down last June for determining the scope of habeas.

Seems clear that Judge Bates is not going to be impressed with a strict territorial argument. Still, the Bagram cases are directly on point with Johnson v. Eisentrager, 339 U. S. 763 (1950), which denied habeas to German detainees held in a US prison in Germany.

The information requested by the judge

from order
.... (1) the number of detainees held at Bagram Air Base; (2) the number of Bagram detainees who were captured outside Afghanistan; and (3) the number of Bagram detainees who are Afghan citizens.

suggests part of his decision will hinge on whether Bagram is being used as a local prison (largely for Afghans) or as global dump (cf., Gitmo).

The judge was concerned with a shift in the DoJ's position post-20 Jan:

As the hearing neared a close, with O’Quinn making a brief rebuttal, Judge Bates wondered whether the cases would be impacted by the beginning of President-elect Obama’s administration. “Should I have any concern that there will be a new regime responding to these issues in 13 days?” he asked Quinn, noting that “from the top” — meaning Barack Obama himself — there had come word that Guantanamo would be closed “Is there a possibility of a refined perception regarding these issues?” the judge asked.

O’Quinn said he could only speak for the U.S. government on this day, and its position was that habeas does not extend to prisoners held at Bagram airfield. “I can’t get into the head of the transition team,” the Justice Department lawyer said. He said that, as far as military operations were concerned, “I would be surprised if the incoming administration would take the position that Bagram is to be superintended by the courts.”

Bates said he would work to reach a decision “in what I hope is a reasonable time period.”

My bet would be in a month or two - with a post-20 Jan order allowing the option of added briefing by DoJ.

[jmm99]

The DC Circuit panel in Bismullah v Gates voided the process of direct DTA review by the Circuit Court and remitted its detainees to the DC District habeas remedy. Lyle's article is here.

One challenge route closed to detainees
Friday, January 9th, 2009 10:39 am | Lyle Denniston
.....
The D.C. Circuit Court on Friday closed one civilian court channel that Guantanamo Bay detainees had used to challenge their confinement, shutting down perhaps 175 pending cases in that court. The three judges on the panel were unanimous in accepting the government’s argument that the review process created under the Detainee Treatment Act of 2005 has been scuttled, even though that law is still on the books. ....

While Lyle feels that the decision, which is here, might limit the scope of the habeas cases, I tend to disagree. The distrct judges have limited those cases (already decided) to the enemy combatant issue; and have refused to turn them into referenda on Gitmo.

The Circuit opinion - which rests on the concept of the court deciding what Congress would have done if Congress had thought of doing what it didn't do (think I got that right) - expresses no opinion on what the DC District should do with habeas cases (pp.2-3).

GINSBURG, Circuit Judge: The petitioners, detainees held in military custody at Guantanamo Bay, each filed a petition, pursuant to the Detainee Treatment Act (DTA), for review of the determination by a Combatant Status Review Tribunal (CSRT) that he is an “enemy combatant.” The Government contends we do not have jurisdiction over the detainees’ petitions because the provision of the DTA that grants us subject matter jurisdiction cannot be severed from the provision eliminating habeas corpus jurisdiction, which the Supreme Court held unconstitutional in Boumediene v. Bush, 128 S. Ct. 2229 (2008). We agree and therefore dismiss these petitions for lack of jurisdiction; the petitioners are remitted to their remedy under the habeas corpus statute,28 U.S.C. § 2241.

My thought is that SCOTUS in Boumediene was careful to limit its holding of unconstitutionality to a specific subsection of a statute. Once a more generalized approach to unconstitutionality is taken (as in this opinion), other judges may feel free to run with the ball.

In any event, the new DoJ team will be calling the shots on how these cases will be handled.

[jmm99]

Richard Leon is earning himself the title of "The Decider". As Lyle Denniston points out here, he has decided 9 detainee cases so far.

Detainee’s release ordered
Wednesday, January 14th, 2009 5:59 pm | Lyle Denniston
....
In the first Guantanamo Bay prisoner case where detention was based primarily upon claims of other detainees, U.S. District Judge Richard J. Leon on Wednesday found those claims unreliable and so ordered the release of a Saudi Arabian who is a citizen of Chad — Mohammed El Gharani (who also uses the name Yousuf Al Karany). ....
....
.... The U.S. government, in Judge Leon’s court, had relied mainly upon statements from two other Guantanamo prisoners who claimed that Al Gharani had stayed at a guesthouse in Afghanistan that was affiliated with the Al Qaeda terrorist network, had been trained at Al Qaeda military camps, had fought against U.S. and allied forces at a battle at Tora Bora in Afghanistan, and was a member of a terrorist cell in London.

Each of those contentions came from other detainees, Judge Leon said, and the judge found the statements inconsistent or unverified, and had no support from other evidence.

The judge also rejected a separate government claim, based on unrevealed classified information, that Al Gharani had served as a courier for several high-ranking Al Qaeda members. This information, Leon found, was “woefully deficient.”
.....
Judge Leon, who is moving more rapidly than other District judges on detainee cases, has now ordered the release of six prisoners and the continued detention of three others.

The opinion is here.

The key points of the ruling are first the legal test for "enemy combatant" ("unlawful combatant", which I prefer, is the same thing):

(opinion, p.5)
The following definition of "enemy combatant," previously adopted by this Court in the Boumediene cases, governs the proceedings in this case:

An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Boumediene v. Bush, 2008 WL 4722127, at *2 (D.D.C. Oct. 27, 2008).

The proof test is a preponderence of the evidence (50 yds + a nose).

The second point is Judge Leon's analysis (pp.6-10) of the DoJ's case in chief, which consisted largely of hearsay statements made by other Gitmo detainees - note: hearsay evidence is permitted in these proceedings, but its weight is then considered by the court (0% to 100% accuracy scale, in effect). He concluded (pp.10-11):

Thus, notwithstanding the substantial and troubling uncertainties regarding petitioner's conduct and whereabouts prior to his detention by Pakistani forces, the Government has failed to establish by a preponderance of the evidence that petitioner el Gharani was "part of or supporting" al Qaeda or the Taliban prior to or after the initiation of force by the U.S. in 2001. Simply stated, a mosaic of tiles bearing images this murky reveals nothing about the petitioner with sufficient clarity, either individually or collectively, that can be relied upon by this Court. Accordingly, the Court must, and will, GRANT the detainee's petition for a writ of habeas corpus and order the respondents to take all necessary and appropriate diplomatic steps to facilitate his release forthwith.

Note that Judge Leon specifically ordered diplomatic steps to be taken. See post #34 here, where the use of diplomacy to effectuate release was suggested in another habeas case.

This case also is another instance where evidence was fouled up - here the unique set of classified AQ dispatches that 8 other different detainees might have been carrying !

(opinion p.9)
Next, the Government contends that petitioner el Gharani was a courier for certain senior al Qaeda operatives. Once again, this allegation, if proven, would be strong evidence of enemy combatancy. Unfortunately for the Government, however, the classified information it relies upon - which did not include statements of any other detainees - was woefully deficient to establish this point by a preponderance of the evidence. Besides having internal inconsistencies, the Government's evidence raises serious questions about whether certain alleged al Qaeda correspondence was even on the person of the petitioner as opposed to one of eight other individuals who were turned over to U.S. authorities at Kandahar at the same time as petitioner. Accordingly, this allegation is also not established.

This illustrates what a preponderence of the evidence means. There is a 1/9th chance that el Gharani was the courier - which is not 50% + a nose.

The question is WTF was DoD and/or DoJ doing here. The dispatches exist, but which detainee they were taken from has been lost or never was recorded. Since hearsay is allowed, a simple entry that "these documents were found on detainee X" would have been enough - in fact, that would come in under the business entry exception to hearsay in a normal criminal case. Sheer incompetence in this instance.

[jmm99]

Besides the 4 named in post #162 above - and Mr. Holder, 5 more middle level appointee have been named. Their bios are linked here and here.

Of interest to these cases is the slated appointment of Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, as the principal deputy solicitor general, the office’s No. 2 spot.

Based on the bios, you can judge qualifications, experience, political slant, etc.

As a generalization, many of these folks (like Mr. Holder) held lower-level positions in AG Reno's DoJ.

[jmm99]

On the DC District front, some 200 habeas cases are now pending. In several of them, DoJ moved for a 2-week continuence, which was granted. One logically would expect that similar motions will be filed in other cases as hearings are scheduled - while the Obama DoJ attempts to get its act together.

On the Gitmo front (besides the PR EO requiring it to be closed down within the year), a 120-day continuence was sought and granted in 5 cases with similar action expected in some 15 others.

Obama starts acting on detainee cases
Wednesday, January 21st, 2009 10:44 am | Lyle Denniston
....
The Obama Administration, in its first move to shape the civilian courts’ handling of Guantanamo Bay detainee cases, on Tuesday asked for — and received — a delay in a scheduled hearing in two of those cases. In a filing made soon after the new President was sworn in, the Justice Department asked a U.S. District Court judge for a two-week postponement in cases involving three detainees.
....
Although the motion was confined to just three cases out of some 200 now pending, the reason for the delay appeared likely to apply to other cases as well. These cases appeared to have been chosen at this point because a hearing had been scheduled for 2 p.m. Wednesday.
....
President Obama on Tuesday ordered military proseuctors to ask for a 120-day postponement in all cases “that had been referred to military commission.”.... A military judge on Wednesday granted the request, halting proceedings in the case involving five prisoners who have been accused of war crimes for their alleged roles in the Sept. 11, 2001, terrorist attacks on the U.S. The Pentagon had told the judge it would be seeking similar delays in “all pending military commissions cases,” reaching another 15 individuals. ....

http://www.scotusblog.com/wp/obama-s...etainee-cases/

In the DC District case, the motion and order - unopposed by detainees' counsel - yield no clues as to what the future DoJ position will be in these cases (links in Lyle's article).

The Gitmo request (in the KSM Five case) is more expressive, but not an icon for tea leaf readers.

The Secretary of Defense issued his order to the Chief Prosecutor in order to provide the Administration sufficient time to conduct a review of detainees currently held at Guantánamo Bay, Cuba, to evaluate the cases of detainees not approved for release or transfer to determine whether prosecution may be warranted for any offenses those detainees may have committed, and to determine which forum best suits any future prosecution.

I am most curious to see how the Obama administration will handle the KSM Five.

[jmm99]

in referring to your Gitmo EO as a "PR EO". The draft, now being floated and discussed here, has some teeth - and also some tea leaves.

Obama’s tentative plan for Guantanamo
Wednesday, January 21st, 2009 7:01 pm | Lyle Denniston
....
President Obama is considering a plan, with three distinct stages, for closing the U.S. military detention camp at Guantanamo Bay, Cuba. A draft of an Executive Order circulating in Washington on Wednesday revealed a plan for, first, a full-scale review of the case of each of the remaining 245 or so prisoners; second, relocation of the prisoners either to the U.S. or to foreign countries with full release for some, and, third, prosecution of some — though not necessarily in regular civilian courts — for terrorist-related crimes.
....
The draft ... at one point: “Merely closing the facility without promptly determining the appropriate displosition of the individuals would not adequately serve [national security and foreign policy intersts and interests of justice]. To the extent practicable, the prompt and appropriate disposition of the individuals should precede the closure of the detention facilities at Guantanamo.” ....

So, the draft begins the process required to reduce the general principle ("Close Gitmo") to practice - what to do with some 250 legal cases. The draft does not address four other areas of interest (part of Lyle's much longer analysis - and which have been reported here in various posts):

Four other aspects of the draft may cause concern among detainees’ lawyers and human rights groups.

First, it made no mention whatever of the situation of about 650 detainees now being held by the U.S. military at a prison at Bagram airbase in Afghanistan — an issue also pending in U.S. District Court;

second, it made no mention of the fate of the one detainee who was captured inside the U.S. and remains confined within the country — a detainee whose case is now awaiting review in the Supreme Court;

third, it raised a question whether “it is feasible to prosecute” any crimes detainees may have committed under regular courts — the civilian courts created under the Constitution’s Article III — and thus opened the possibility of proceedings where the accused may have fewer rights than in those courts; and,

fourth, it left open for future decision what might happen to detainees who could not be released or transferred to other countries, and could not be prosecuted and yet would not be deemed free to go. It suggested a possibility that some detainees might be brought to “facilities within the United States,” and suggested possible new legislation, but went no further.

One has to start somewhere - this EO does that.

----------------------------------
Some comments on the draft EO, which is here.

The relevant legal references (besides the Constitution and Federal statutes also referenced) are these:

Section 1. Definitions. As used in this order:

(a) “Common Article 3” means Article 3 of each of the Geneva Conventions.

(b) “Geneva Conventions” means:

(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949 (6 UST 3114);

(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949 (6 UST 3217);

(iii) the Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949 (6 UST 3316); and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 (6 UST 3516).

Note that this is a conservative legal positions (without attempting to incorporate the Additional Protocals and international "humanitarian" law which have not been adopted by the US). Cf., old FM 27-10.

It also emphasizes Common Article 3 of the 4 GCs, and requires its application:

Sec. 6. Humane Standards of Confinement. No individual currently detained at Guantánamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions. The Secretary of Defense shall immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with this directive. Such review shall be completed within 30 days and any necessary corrections implemented immediately thereafter.

I have no problems with that since that has been my position here from the git go (AQ-Taliban detainees are CA 3 detainees, pure and simple).

The DoJ is given some primacy in conducting the required file review:

Sec. 4. Immediate Review of All Guantánamo Detentions.

(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantánamo (“Review”) shall commence immediately.

(b) Review Participants. The Review shall be conducted with the full cooperation and participation of the following officials:

(1) the Attorney General, who shall coordinate the Review;

(2) the Secretary of Defense;

(3) the Secretary of State;

(4) the Secretary of Homeland Security;

(5) the Director of National Intelligence;

(6) the Chairman of the Joint Chiefs of Staff; and

(7) other officers or full-time or permanent part-time employees of the United States, including employees with intelligence, counterterrorism, military, and legal expertise, as determined by the Attorney General, with the concurrence of the head of the department or agency concerned.

This process makes sense because the cases which are immediately in need of it are the DC District habeas cases - and the MCA cases at Gitmo have been halted.

The future of the MCA cases is in doubt:

Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order no charges are sworn, or referred to a military commission, under the Military Commissions Act of 2006, Pub. L. 109-366, and the Rules thereto, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

While there have been problems with application of the MCA process in some areas (which I have acknowledged), I have felt that the process could be salvaged. E.g., the Hamdan trial was an example of due process properly applied - even though some (on each end of the spectrum) disliked the result.

Fve specific actions required by the draft will be discussed in a part 2.

[jmm99]

The review process, in Section 4(c) requires five actions to be taken - and the probable consequences are suggested by some of them. In order, with some comments:

(1) Consolidation of Detainee Information. The Attorney General shall, to the extent reasonably practicable, and in coordination with the other Review participants, assemble all information in the possession of the Federal Government that pertains to any individual currently detained at Guantánamo and that is relevant to determining the proper disposition of any such individual. All executive branch departments and agencies shall promptly comply with any request of the Attorney General to provide information in their possession or control pertaining to any such individual. The Attorney General may seek further information relevant to the Review from any source.

Why was this not done 5 or more years ago ? It seems quite conceivable to me that the 60 or so released detainees who went back to their old ways, may not have been released if all the evidence relevant to each was assembled into a complete dossier. In any event, this provision is aimed at correction of a problem that has afflicted a number of cases.

(2) Determination of Transfer. The Review shall determine, on a rolling basis and as promptly as possible with respect to each individual currently detained at Guantánamo, whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release on appropriate terms and conditions. The Secretary of Defense, the Secretary of State, and, as appropriate, other Review participants shall work to effect promptly the release or transfer of all individuals for whom release or transfer is possible on such terms and conditions.

This provision should comfort the Uighurs, the few others where DC judges have ordered release, and those detainees who are sheep and not goats. Note that "appropriate terms and conditions" would suggest something of a parole procedure.

(3) Determination of Prosecution. In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations.

This adds nothing new (in the sense that Article III Federal courts always have been an option); but does suggest that the Federal criminal process might be used. There are pros and cons on this - consider trying the KSM Five (who are not going to get off the hook - it seems that they do not want to get off the hook, but would love a trial where they could present their agitprop).

(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under subsections (c)(2) or (c)(3) of this section, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions.

(5) Consideration of Issues Relating to Transfer to United States. The Review shall identify and consider legal, logistical, and security issues relating to the potential transfer of individuals currently detained at Guantánamo to facilities within the United States and the review participants shall work with Congress on any legislation that may be appropriate.

Section (4) would allow some form of MCA proceedings; and Section (5) would allow some form of long-term detention for Common Article 3 detainees. Those would be those detainees not subject to criminal charges; those subject to criminal charges are covered by Section (3).

Going back to another discussion, this could come out with a rule that it is no crime to be an unlawful combatant under CA 3, but we can detain you for a long, long time if you are found to be one.

I hope this rather long - and heavily referenced to the original - comment will be helpful to readers in assessing what the media says this EO says.

[jmm99]

The as-signed Gitmo order had no substantive changes from the draft order reported last nite.

An added order was signed in the al-Marri case which is presently pending before SCOTUS.

Al-Marri is the case where DoJ (Ashcroft) began his prosecution in Federal District court under the Anti-Terrorism statutes. The prosecution was later dropped (first without prejudice to its renewal; then with prejudice to its renewal); and al-Marri has been detained in the Charleston Navy brig since then.

Government to reconsider Al-Marri case
Thursday, January 22nd, 2009 12:14 pm | Lyle Denniston
.....
President Obama on Thursday ordered the Justice Department to make a new review of the detention case now awaiting a rulng by the Supreme Court — Al-Marri v. Spagone (08-368); the review is to “commence immediately.” The case involves a Qatari national, Ali Saleh Kahlah Al-Marri, who was seized inside the U.S. where he was living legally, and has been held in military custody in this country for more than five years.
......
The President said the Justice Department will be asking the Supreme Court to delay the case, and it appears that the U.S. Solicitor General is already planning to seek at least a 30-day extension of time to file the government’s brief in the case — a brief that, at present, would be due Feb. 20. The case had been expected to be scheduled for oral argument sometime in March.

Al-Marri has already filed his merits brief, which is here, with an associated article here.

This case is very unique because al-Marri is being held, not pursuant to a CSRT determination (as in the Gitmo cases), but pursuant to a Presidential order signed by President Bush:

Brief pp.4-5
Petitioner’s Designation and Detention as an “Enemy Combatant”

The following Monday morning, June 23, 2003—just days before the scheduled suppression hearing and less than a month before the scheduled trial date—the government moved ex parte and in camera to dismiss the indictment based on a one page redacted declaration signed by President Bush that same morning asserting a determination that al-Marri was an “enemy combatant.” Pet. App. 466a-467a.

The President’s declaration alleged in a conclusory fashion that al-Marri was “closely associated” with al Qaeda and had “engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.” Pet. App. 466a.

The President claimed that al-Marri was “a continuing, present, and grave danger to the national security of the United States” and that military detention was “necessary to prevent him from aiding al Qaeda,” despite the fact that al-Marri had been imprisoned in solitary confinement by the government for eighteen months. Pet. App. 467a.

The President also asserted that al-Marri “possesse[d] intelligence . . . that . . . would aid U.S. efforts to prevent attacks by al Qaeda.” Pet. App. 467a. He ordered the Attorney General to surrender al-Marri to the Secretary of Defense and directed the latter “to detain him as an enemy combatant.” Pet. App. 467a.

[jmm99]

Three judicial orders set some timelines for the Obama DoJ to tell us what (if any) policy changes will be made in the Gitmo and Bagram cases.

The first of these is the revised briefing and argument order in al-Marri.

Court extends time for U.S. brief in Al-Marri case
Friday, January 23rd, 2009 1:37 pm | Lyle Denniston
.....
The Supreme Court on Friday granted a Justice Department request to delay, until March 23, the filing of the federal government’s merits brief in Al-Marri v. Spagone (08-368). The brief previously had been due on Feb. 20, but the new Obama Administration sought additional time to review its position, as directed on Thursday by President Obama. The new schedule of briefing indicates that oral argument in the case will not be held until the sitting that begins April 20.

If the initial Federal criminal prosecution had not been dismissed with prejudice, this case would present no great problem for the Obama DoJ. It could simply re-indict al-Marri and try him as a terrorist (let the jury decide). That course of action was the conservative course of action (going back to Justice Jackson's post-WWII opinions about the rights of resident aliens) - which may have been why it was initially chosen by Ashcroft. The task of the Obama DoJ, unless it opts for his outright release, is to come up with a process whereby he can be detained as an "enemy combatant".

The issue of defining an "enemy combatant" has been raised by District Judge John D. Bates, who is faced with 4 Bagram cases. His bio is here. Appointed in Dec 2001, his bio includes a couple of interesting facts:

From 1968 to 1971, he served in the United States Army, including a tour in Vietnam. [JMM - before law school] .... In February 2006, he was appointed by Chief Justice Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court.

In any event, here (link above) is some background on the order (more of a suggestion to the DoJ):

A new chance to define “enemy”
Thursday, January 22nd, 2009 11:46 pm | Lyle Denniston
....
A federal judge in Washington, giving the new Obama Administration an early chance to directly influence the scope of legal rights of Guantanamo Bay detainees, on Thursday invited the government — if it wishes — to offer a new definition of “enemy combatant.” U.S. District Judge John D. Bates set a Feb. 9 deadline for such a filing, issuing an order in Hamlily v. Obama (District docket 05-763), and two other cases.
....
The definition of “enemy combatant” is, of course, crucial in the detainees’ habeas challenges to their confinement. If a prisoner is found to meet the definition, that has determined whether he is detained and whether he remains detained by the U.S. military. It also has some effect on a detainee’s eligibility to be prosecuted for war crimes by a military commission.
....
U.S. District Judge Richard J. Leon, who has completed more contested habeas cases than any of his colleagues in Washington, last October became the first federal court to give a fixed legal definition of “enemy combatant.” In fact, he chose the one the Pentagon had first adopted in July 2004 — much more favorable to the government than what detainees’ lawyers had proposed.

Here is Judge Leon’s version: “An ‘enemy combatant’ is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the Unied States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

Detainees’ lawyers, in pleas to Judge Leon, had suggested that an “enemy combatant” should be defined only as someone who was a member of a foreign government’s armed forces engaged in hostilities, and civilians who directly participated in hostilies as part of an organized armed force.

Judge Leon's definition, his factual findings and decisions (running 6-3 in favor of detainees) have been discussed in prior posts. Judge Bates' order is a classic in understatement:

... the Court is currently reviewing the parties' submissions in anticipation of a ruling regarding the appropriate definition of "enemy combatant" for use in these habeas cases. The Court recognizes, however, that the new Presidential administration may wish to review the Government's current position regarding the appropriate definition of "enemy combatant" to be used in these and other habeas cases involving Guantanamo Bay detainees. Accordingly, the Court invites Respondents to submit any refinement of their position on the appropriate definition of "enemy combatant" by not later than February 9, 2009.

So, the Obama DoJ will have about 2 weeks to continue with Judge Leon's definition (basically a Common Article 3 definition); accept the detainees' definition (which probably would not find any detainee an "enemy combatant"); or come up with something different.

Addressing the specific Bagram cases, Judge Bates issued a second order (again more of a suggestion):

Obama asked for views on Bagram detainees
Friday, January 23rd, 2009 10:22 am | Lyle Denniston
....
President Obama’s changed policy on military detention at Guantanamo Bay, Cuba, announced Thursday, made no mention of the more than 600 prisoners the U.S. military now holds at another overseas prison — Bagram air base outside Kabul, Afghanistan. A White House official told reporters, at a briefing, not to expect any changes to existing policies in Afghanistan for at least six months.

There may have to be an answer earlier, though. Later in the day Thursday, a federal judge in Washington issued an order asking the new Administration to indicate whether it will continue to follow the Bush Administration view that Bagram detainees have no right to go to court to challenge their ongoing captivity.

Judge Bates order again asks for "refinement" of DoJ's position:

Following the January 22 Executive Order, the Court is providing the new administration with an opportunity to provide input regarding the definition of "enemy combatant" for use in the Guantanamo Bay detainee habeas cases. See Hamlily v. Bush, et al., Civ.A.No. 05-0763 (Dkt. No. 140). Given the Executive Order and respondents' classified filing, the Court will provide the new administration with the same type of opportunity in these Bagram Airfield habeas cases. Hence, the Court invites respondents to inform the Court, in writing and by not later than February 20, 2009, whether they intend to refine their position in the above-captioned cases filed by detainees held at Bagram Airfield. Based on that submission, the Court will decide whether further briefing or some other course is appropriate.

Here, the Obama DoJ will have 30-days to develop its position. So, within the next 15-60 days (assuming DoJ does not request further continuences), we should have the Obama DoJ's position on three central constitutional issues.

Federal judges cannot order the Executive branch to adopt a national security policy. But, they can set timelines where its attorneys put up or shut up - realizing here that there are so many political commitments made that a defined policy decision has to be made.

[jmm99]

actually, their attorneys have filed a letter request.

Uighurs’ lawyers urge immediate release
Friday, January 23rd, 2009 11:10 pm | Lyle Denniston
....
Lawyers for 17 Guantanamo Bay detainees who are members of a long-persecuted Chinese Muslim minority urged leaders of the new Obama Administration on Friday to order the immediate release of the prisoners, to live at least temporarily in the U.S. The plea was made in a letter to Attorney General-designate Eric H. Holder, Jr., Acting Attorney General Mark R. Filip, and Defense Secretary Robert M. Gates. ....

Noting that President Obama on Thursday ordered a new review of every Guantanamo detainee’s situation, as part of a plan to close the prison at the U.S. Naval base in Cuba, the Uighurs’ attorneys wrote: “There is literally nothing left to review…The executive branch, the judiciary, and Members of Congress all have acknowledged that the Uighurs should be released.”

It added: “The issue for the Obama Administration is not whether the Uighurs should be released, but rather where they should be released.. We urge the government to release the Uighurs immediately in the only place they can be released — the United States.” ....

The letter, which is here, goes into some detail in reviewing the facts of the case. My own concern has been with the terms of release, which the letter covers:

Fortunately, detailed resettlement arrangements have already been put in place and presented to Judge Urbina, as shown in the attached materials that previously were submitted to the Court. These include the provision of refugee services by religious and refugee organizations. We are amenable to the imposition of reasonable release conditions, such as, for example, monitoring, by the Court in consultation with the Department of Homeland Security.

Although the Executive may choose to grant the men an immigration status, it may also choose not to do so. We do not believe that executive compliance with Judge Urbina’s release order would necessarily confer upon the men any immigration status. In such a situation, the men might be subject to removal to an appropriate country of resettlement should one later be found.

This seems more of a parole request than an outright release. Don't know whether this is a shot in the dark - or if it has been back-channeled (if so, the letter will probably get a positive response).

Another decision for the Obama DoJ to make.

[jmm99]

You can draw your own conclusions from the following news articles.

Washington Post

Guantanamo Case Files in Disarray
Situation Complicates Prison's Closure
By Karen DeYoung and Peter Finn
Washington Post Staff Writers
Sunday, January 25, 2009; Page A05

President Obama's plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials -- barred until the inauguration from examining classified material on the detainees -- discovered that there were no comprehensive case files on many of them.

Instead, they found that information on individual prisoners is "scattered throughout the executive branch," a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material. ....

Newsweek

Safe To Release?
A new Pentagon report may complicate Obama's plans for Gitmo.
By Michael Isikoff | NEWSWEEK
Published Jan 24, 2009
From the magazine issue dated Jan 24, 2009

The Pentagon is preparing to declassify portions of a secret report on Guantanamo detainees that could further complicate President Obama's plans to shut down the detention facility.

The report, which could be released within the next few days, will provide fresh details about 62 detainees who have been released from Guantanamo and are believed by U.S. intelligence officials to have returned to terrorist activities, according to two Pentagon officials who asked not to be identified talking about a document that is not yet public. One such example, involving a Saudi detainee named Said Ali Al-Shihri, who was released in 2007, received widespread attention Friday when Pentagon officials publicly confirmed that he has recently reemerged as a deputy commander of Al Qaeda in Yemen. Al-Shihri, once known publicly only as Guantanamo detainee No. 372, is suspected of involvement in a thwarted attack on the U.S. embassy in Yemen last September. ....

Yahoo News

Two ex-Guantanamo inmates appear in Al-Qaeda video
Print Sat Jan 24, 1:52 pm ET

WASHINGTON (AFP) – Two men released from the US "war on terror" prison at Guantanamo Bay, Cuba have appeared in a video posted on a jihadist website, the SITE monitoring service reported.

One of the two former inmates, a Saudi man identified as Abu Sufyan al-Azdi al-Shahri, or prisoner number 372, has been elevated to the senior ranks of Al-Qaeda in Yemen, a US counter-terrorism official told AFP.

Three other men appear in the video, including Abu al-Hareth Muhammad al-Oufi, identified as an Al-Qaeda field commander. SITE later said he was prisoner No. 333.

For the rogues gallery, go here - 109 photos - know your enemy.

CNN News

January 24, 2009 -- Updated 2122 GMT (0522 HKT)
Security experts skeptical on Gitmo detainee report

WASHINGTON (CNN) -- Security experts are questioning information released by the Pentagon last week, saying 61 former detainees from its detention center at Guantanamo Bay, Cuba, may have returned to terrorist activities.

The report, released days before President Obama took office, says 18 former detainees are confirmed to have participated in attacks, and 43 are suspected to have been involved in attacks.

That figure would be about 11 percent of the roughly 520 prisoners who have been released from the Guantanamo facility, which Obama on Thursday ordered be shut down.

On Friday, a Pentagon spokesman defended the integrity of the report but would not directly answer questions about where the figures come from.

"We don't make these figures up. They're not done willy-nilly," spokesman Geoff Morrell said. ...

Not quite as easy as the pundits trumpeted before 20 Jan.

[Ken White]

some well publicized efforts of their predecessor's. Almost invariably a cock up or two results. Most of Bush's first term mistake were due to that syndrome. These guys are even more arrogant so there'll be more in the next couple of years...

[jmm99]

as reported here.

US judge OKs holding Taliban cook at Guantanamo
© AP
2009-01-28 20:35:02 -

WASHINGTON (AP) - A Guantanamo Bay prisoner who says he merely cooked meals for Taliban forces and never fired a shot in battle lost his petition to be released Wednesday after being held for more than seven years. ...

I will quote extensively from Judge Richard Leon's opinion, which is here, because it was panned on MSNBC's Countdown tonite:

(opinion, pp.6-9)
The Government's evidence is a combination of certain statements of the petitioner that the Court finds credible and certain classified documents that help establish the most likely explanation for, and significance of, petitioner's conduct. Due to the unclassified nature of this proceeding, however, the Court is limited to the following explanation of the factual basis of the Government's case.

First, with respect to staying at particular al Qaeda affiliated guesthouses in Afghanistan, the Government was able to establish this allegation by a preponderance of the evidence by relying primarily on petitioner's own admissions. (See Unclassified Opening at 17 :24-18:9.) The Court finds these admissions to be credible and consistent not only with respect to his visits, but also with his overall trip to Afghanistan to participate in jihad on behalf of the Taliban against the Northern Alliance.

Next, with respect to the Government's allegations that petitioner attended two al Qaeda affiliated training camps (Le. al Farouq and Khalid bin Al Walid), the Court is posed with the novel dilemma of choosing between two diametrically opposed accounts by petitioner about receiving military training; the second of which being a wholesale recantation of the first. (GEx. 49 at 4 [Dkt. #83-4].) In particular, from January 2002 to June 2005, petitioner consistently acknowledged in numerous interrogation sessions that he had attended both of these al Qaeda affiliated training camps as a part of his preparation to join the 55th Arab Brigade. Indeed, on a number of occasions he described in significant detail the training regiment, method of instruction, and instructors at these camps. In June of 2006, however, he suddenly reversed course when he testified as part of his ARB hearing that he had never received military training at any time. (GEx. 49 at 4-5 [Dkt. #83-4].) Curiously, in an interrogation session after his ARB proceeding, he reversed course once again and acknowledged attending these military training camps. While it is tempting to resolve this dispute on behalf of the Government by accrediting, as a matter of common sense, Al Bihani's longstanding and consistent admission to attending those camps, the Court will refrain from doing so as unnecessary in light of the overwhelming and consistent testimony of the petitioner in support of the Government's
third allegation.

As stated previously, the Government's final, and most telling, allegation is that the petitioner, as a member of the SSth Arab Brigade fighting unit, "supported" the Taliban in its fight against the Northern Alliance both prior to and after the initiation of force by the U.S. in October 2001. In that regard, however, petitioner strongly contends that his service in the S Sth Arab Brigade was limited to serving as a cook and kitchen aid to its ISO-plus fighters. Although he acknowledges being assigned a rifle and ammunition, (Unclassified Opening at 18:13), Al Bihani contends that he never fired the rifle in a battle against the Northern Alliance, let alone the United States and its allied forces. Unfortunately petitioner misconstrues the concept of "support" inherent in the enemy combatant definition. It is not necessary, as this Court ruled previously in the Al Alwi case (Ghazy et al. v. Bush et aI., No. OS-2223, Dkt. # 107 at 8 (D.D.C., filed Nov. IS, 200S», that petitioner actually fire a weapon against the U.S. or coalition forces in order for him to be classified as an enemy combatant under the definition adopted by this Court. Petitioner has not only admitted to serving under an al Qaeda military commander, but his close ties to Taliban and al Qaeda affiliated forces as a member of the Arab Brigade unit, albeit in a non-front-line capacity, is more than enough. Indeed, it is particularly telling that when he finally retreated from the front lines, he did so only: (1) after the U.S. had commenced its bombing campaign against the Taliban; (2) in response to an order from his commander; (3) with Taliban forces, in Taliban trucks, and armed with his Taliban-issued Kalashnikov rifle; and (4) to a designated guesthouse where the unit went to regroup in preparation for its next mission. (GEx. 6 at 7-10.) Of course, it was at that location, that his unit commander ultimately decided to surrender to the Northern Alliance troops headed by General Dostum. (GEx. 6 at 10.) Simply stated, faithfully serving in an al Qaeda affiliated fighting unit that is directly supporting the Taliban by helping to prepare the meals of its entire fighting force is more than sufficient "support" to meet this Court's definition. After all, as Napoleon himself was fond of pointing out: "an army marches on its stomach."

In short, I will not call you a liar (though I should) because there is more than enough evidence to find you a combatant, albeit a remf.

I see no justification for panning the decision, which deals solely with the question of detention under GC Common Article 3.

[jmm99]

The initial report on resolution of Gitmo issues has been assigned.

Top admiral to study detainee prison
Tuesday, February 3rd, 2009 5:01 pm | Lyle Denniston
....
The Navy’s second-highest ranking officer, a four-star admiral, was named on Tuesday to conduct a new study of the military’s operation of the prison for detainees at Guantanamo Bay, Cuba, the Pentagon announced. ....
.....
It appeared likely that Admiral Walsh, besides studying conditions of confinement of the prisoners there, will also examine the current state of the war crimes prosecution system — the military commissions. ....

The AFPS release provides more detail.

Navy Admiral to Lead Review of Guantanamo Detention Facility
By Gerry J. Gilmore
American Forces Press Service

WASHINGTON, Feb. 3, 2009 – Defense Secretary Robert M. Gates has selected a Navy four-star admiral to lead an assessment of operations at the U.S. detention center at Guantanamo Bay, Cuba, a senior Defense Department official said here today.
...
The admiral’s review of Guantanamo’s detention operations is to be completed within 30 days, Morrell said.

Pentagon officials believe that detainee operations at Guantanamo “have been in compliance with Common Article 3 of the Geneva Conventions for some time and are still so,” Morrell said.

This and prior orders place the focus on CA 3, which (IMO) is where it should be as to issues of detainee status and length of alllowable detention.

The question of war crimes and other criminal violations by detainees is separable from the issue of appropriate CA 3 policies governing detention itself. There has been some confusion (and some conflicting statements) about that over the past 7 years.

[jmm99]

Propublica has published a chart of several dozen internal Executive branch memos written in 2001-2005, most dealing with detainee issues.

The Obama administration is being asked (by Propublica) to release them. If they are released, they probably would shed some light on the decisions which were made prior to the various SCOTUS decisions and enactment of the MCA.

[jmm99]

Of three updates tonite, the first is the schedule in al-Marri.

Wide support for Al-Marri
Wednesday, February 4th, 2009 7:03 pm | Lyle Denniston
....
Awaiting word on President Obama’s position on domestic detention of terrorism suspects, lawyers for the only detainee being held inside the U.S. have gained a wide array of support for his Supreme Court appeal. A total of 18 amicus briefs have been filed in the case, Al-Marri v. Spagone (08-368). ...
...
The government’s brief in the case had been due on Feb. 20, but the Court on Jan. 23 extended the time for filing that document until March 23, at the request of the Obama Administration....
....
It appears that, if the case proceeds before the Court, it would be heard in the argument session that begins on April 20.

The ACLU links to the briefs filed in this SCOTUS appeal are here and here.

Al-Marri is a unique case because it involves a non-citizen, legal resident of the US, who was in the US when he allegedly acted as an AQ agent, was arrested and detained. As such, it is factually and legally distinct from the Gitmo and Bagram cases. It also should have no impact on the legal positions of Gitmo or Bagram detainees who might be brought into the US as Common Article 3 detainees.

[jmm99]

The CMCR (U.S. Court of Military Commission Review) has continued the Jawad case for 120 days.

Jawad torture case put on hold
Wednesday, February 4th, 2009 8:10 pm | Lyle Denniston
...
With a bow to presidential power to fashion detention policy, the military’s highest court on war crimes prosecutions on Wednesday gave the Obama Administration a requested 120-day delay of a pending case to allow a new study of the fate of prisoners at Guantanamo Bay.
....
By postponing a ruling in the case, the military court spared the Obama Administration from having to make a prompt decision — in order to gain time for its study of detention policy — either to have war crimes charges dismissed, or else withdraw the prosecutors’ appeal, thus forfeiting it.
....
The case has been fully briefed and was argued Jan. 13, and ordinarily, the Court would have produced a ruling within 30 days. Now, it will not do so for 120 days.

The US motion is here; the detainee's opposition is here; and the Court's opinion is here.

The major legal point made by the appeals court hinged on Presidential powers:

(opinion p.2)
Indeed, the U.S. Supreme Court has often recognized that the President has the principal constitutional responsibility for national security and foreign policy. See e.g., Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)) (citing “the generally accepted view that foreign policy was the province and responsibility of the Executive”); Harlow v. Fitzgerald, 457 U.S. 800, 812 n. 19 (1982) (national security and foreign policy are “‘central’ Presidential domains”); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (stating the “very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations”). We, thus, accord great deference to the President in his determination that the Interagency review is required – now – in the interests of national security and foreign policy.

Thus, this decision virtually insures that other MCA cases will be stayed for the requested 120-days - until 20 May 2009.

---------------------------
Lyle's article also mentions the Jawad habeas case in DC District, and another civil action (by former detainees) presently before the DC Circuit.

The new Administration is seeking to put Jawad’s habeas case in District Court on hold until after his war crimes proceedings are over. Jawad’s lawyers are to respond to that plea by Feb. 13. As of now, the Administration also has a Feb. 27 deadline in the habeas case to file its formal reasons for continuing to detain Jawad as an “enemy combatant.”

There is another case pending in federal court in which the new President and his legal and military teams must take a position on legal issues growing out of claims of torture. The other is at the D.C. Circuit Court, after being returned there by the Supreme Court, involving four Britons who are seeking a right to sue Pentagon officials over alleged torture while they were prisoners at Guantanamo Bay. Both sides are to file new briefs in that case by March 12. (They have been released, and have returned to Britain, but their lawsuit continues.)

Discussion of the civil action by the four British citizens would unduly complicate the present discussion because its issues are different from either MCA cases or the DC District habeas cases - all in due course.

Brief Opinion Piece

The Obama administration's motion to stay the Jawad habeas proceeding may be unwise - unless it (somewhat like the Bush administration) wants to mix the issue of Common Article 3 detention, with the issue of "war crimes" trials under the MCA.

In this, I am following Judge Leon's lead in treating the habeas cases as single issue cases - is there a preponderence of evidence that the detainee was an "enemy combatant" ? Using that standard, Judge Leon has decided 10 detainee cases on the merits.

In Jawad, the issue of whether he was an enemy combatant may well involve some evidence that would also be relevant and material to the criminal charges under the MCA. Perhaps, the Obama DoJ wants to keep its options open - that is, attempt to stay all DC habeas cases in which MCA charges are pending or might be brought. We shall see.

Since the Jawad habeas case is nearly ready to go (it could be tried in March), my preference would be for an Article III judge to decide the merits of whether Jawad was an "enemy combatant" subject to CA 3 detention. If the DoJ cannot meet that fairly minimal standard, the DoD shouldn't be charging crimes under the MCA.

[jmm99]

and creating a problem in US-UK relations, as posted by David here (post #7).

The posture of this case before US tribunals is presently:

1. An MCA criminal prosecution was initiated, but then terminated without prejudice to renewal. Given the 120-day stay policy in those cases (see prior post), no MCA proceedings will be brought until after 20 May - if at all.

2. A DC District habeas case is pending before Judge Emmet Sullivan. This case has been mired in arguments over discovery of evidence - centered on some 42 documents in the possession of the USG; and is further clouded by allegations of extraordinary renditions and subsequent torture. The issue of whether Mohamed is now being detained as a CA 3 enemy combatant, as his status when he was first detained, has been lost in the shuffle.

Meanwhile, Mohamed's UK lawyers brought an equitable action in the UK to compel the UKG to disclose its copies of the 42 documents. That proceeding has resulted in four decisions:

21 August 2008
High Court (Queen's Bench Division) Divisional Court Judgment

29 August 2008
High Court (Queen's Bench Division) Divisional Court Judgment

22 October 2008
High Court (Queen's Bench Division) Divisional Court Judgment

4 February 2009
High Court (Queen's Bench Division) Divisional Court Judgment

This case is now well beyond any normal legal discussion, since it is being used for political purposes (rightly or wrongly) - and seems to have driven something of a wedge in UK-US relations.

The bottom line holding by Lord Justice Thomas (as to the redacted portions of the 42 documents) is:

(opinion, pp.33-34)
107. How is this judgement of the Foreign Secretary in relation to the public interest in national security to be balanced against the public interest in open justice as safeguarding the rule of law, free speech and democratic accountability? In our judgement the decisive factors are the other means which have resulted from these proceedings for safeguarding democratic accountability and the rule of law (the reference of the matter to the ISC and the Attorney General) and what has already been placed into the public domain which can engender debate. In the circumstances now prevailing, the balance is served by maintaining the redaction of the paragraphs from our first judgment. In short, whatever views may be held as to the continuing threat made by the Government of the United States to prevent a short summary of the treatment of BM being put into the public domain by this court, it would not, in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the United Kingdom to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day to day life. If the information in the redacted paragraphs which we consider so important to the rule of law, free speech and democratic accountability is to be put into the public domain, it must now be for the United States Government to consider changing its position or itself putting that information into the public domain.

Perhaps, Lord Justice Thomas will have an answer by 20 May 2009, which now seems the target date for action by the Obama administration on several fronts.