Crimes, War Crimes and the War on Terror

[jmm99]

A couple of weeks ago, we saw (post #246) the first Gitmo informer ordered released. Now we have the opinion in somewhat redacted form, with the detainee's release in place (a new use for RIP):

Judge: No threat, no detention
Friday, April 17th, 2009 4:11 pm | Lyle Denniston
...
A federal judge, explaining her reasons for ordering in March the release of a Guantanamo Bay detainee, ruled that the U.S. government can no longer hold in captivity an individual who does not now pose a threat of terrorist activity. U.S. District Judge Ellen Segal Huvelle rejected a Justice Department claim that it can continue to hold detainees as long as the “war on terrorism” goes on overseas, whether or not a given individual poses a threat of returning to a battlefield.
....
The decision involves one of the most controversial detainees still at Guantanamo — Yasin Muhammed Basardh, a 33-year-old Yemeni who has repeatedly made accusations against other detainees and has cooperated extensively with U.S. military officials in deciding whether to hold other detainees. Those activities, Judge Huvelle noted, have led to repeated physical attacks and even death threats from other prisoners.
....
... her release order, originally issued without explanation on March 31 (see this earlier post), was based upon her legal conclusion that detention authority stops when the government has decided that an individual is not likely to return to a battlefield or to activity with the terrorist networks of the Taliban or Al Qaeda. That was her interpretation of the resolution Congress passed to allow the U.S. to respond to the terrorist attacks of Sept. 11, 2001 — the Authorization for the Use of Military Force.
....
She summed up: “The AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals fraom rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.”
....
Although Huvelle ordered Basardh released “forthwith,” the order actually only directed that the government “take all necessary and appropriate diplomatic steps to facilitate” his release. She said she had no power, because of a recent D.C. Circuit Court ruling, to order Basardh’s release into the U.S. or to order his transfer to “a safe haven.”

This decision seems correct on the law; and, such were its facts, that a separation of powers issue was not present. Such an issue would arise if the Executive Branch determined that the detainee would return to AQ, etc.; and the judge determined the detainee would not return to AQ, etc.

In this case, the DoJ expressed no opinion on what the detainee would do (opinion, p.10, n.11). In effect, its position was something of a "plea bargain" in reverse - we don't contest that lesser charge, your Honor.

What will happen to Basardh ? Probably, he's toast if released outside of protection - probably safer at Gitmo. Does the base need a grass cutter ?

[jmm99]

District Judge Reggie B. Walton has issued a 48-page opinion, which is more in the nature of guidance for merits hearings in the 14 detainee cases before him. He largely accepted the DoJ's refined definition of detainee status, with further refinements by the judge.

Since the opinion is a long one, it probably would be best for most readers to start with Lyle's analysis:

U.S. wins — mostly — on detention power
Thursday, April 23rd, 2009 11:32 am | Lyle Denniston
.....
The Supreme Court has not yet defined explicitly the president’s power to detain terrorism suspects, even after five years of deciding detention cases. A federal judge on Wednesday began a new effort to define that authority. The result was that the Obama Administration’s position — a “refined” version of the Bush Administration approach – won its first full-scale test in a federal court.

At the same time, however, the judge — U.S. District Judge Reggie B. Walton — issued a warning that he would not allow detention authority to creep beyond some “limiting principles’ he laid down.
....
Elaborating on his definition, Walton said it would mean that individuals could be detained if they were “members of the ‘armed forces’ of an enemy organization” when captured. “Amed forces,” he said, would read quite broadly to include any group that was “organized” under some kind of commander who was in control, and engaged in some kind of “combat operations.”

“Only persons who receive and execute orders from the enemy’s command structure,” the judge said, could be treated as members of the armed forces subject to detention after capture. “The key question,” he declared, “is whether an individual receives and executes orders from the enemy force’s combat apparatus….The individual must have some sort of ’structured’ role in the ‘hierarchy’ of the enemy force.”

That could include, the judge said, those who provided housing, feeding or transporting “al-Qaeda fighters,” such as a cook who was a part of the armed forces but was temporarily assigned only a non-combat role.

Thus, he added, “civilians who may have some tangential connections to such organizations” could not be detained. “Sympathizers, propagandists, and financiers who have no involvement” with the command structure, even though “members of the enemy organization in an abstract sense,” could not be detained unless they took “a direct part in hostilities.”

The bottom line of Judge Walton's opionion is his refined definition of detainee status pursuant to the post-9/11 AUMF:

(opinion, p.48)
With that understanding, the Court concludes as a matter of law that, in addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms “substantially supported” and “part of” are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture. [21]

[21] The government also asserts that the President may detain individuals who substantially support “forces” that are “associated” with the Taliban and al-Qaeda. Gov’t’s Mem. at 2. The meaning of the term “associated forces,” and the propriety of detaining members of such forces under the laws of war, were not argued in any detail by the parties and may not concern many of the petitioners with habeas corpus petitions pending before this member of the Court. The issue must therefore await resolution at a later date if that becomes necessary.

The "understanding", referred to in the first sentence quoted above is, is to the preceding pages of the judge's opinion !

My analysis follows in the next part

[jmm99]

--------------------------------
JMM Analysis

Judge Walton's opinion is heavily based on Common Article 3 of the 1949 GCs, Additional Protocol II to the 1949 GCs, and the commentaries of the International Committee of the Red Cross. That is not necessarily bad, since his focus is on non-international conflicts (those involving one or more non-state actors); and, at one point, refers to the situation as really being a trans-national (cross-borders) situation. So, while the opionion does not as such refer to TVNSAs (Transnational VIolent Non-State Actors), it is consistent with that concept.

The opinion is logically divided into several parts:

pp.6-19 - Historical account of the DC Circuit and SCOTUS detainee cases; and the shift in definitions between the Bush II and Obama administrations.

pp.20-34 - Refutation of some specific arguments made by the detainees - in essence, they asked the court to adopt a very restrictive standard allowing detention only of those who were actually armed at the time of capture. One detainee argued in effect that all AQ-Taliban should be regarded as civilians and thus entitled to the full civilian protections of GC IV. All of those arguments were rejected by the judge.

pp.34-38 - Recognition that the Bush II DoJ's definition was, in a sense, defective in focusing on the concept of "enemy combatants"; thereby allowing arguments to limit the scope of the detention power.

pp.39-48 - Setting the limits under the Obama DoJ's definition.

The discussion at pp.34-35 is essential to understanding Judge Walton's conclusions. The detainees argued that 'combatants" may be properly detained, but "non-combatants" may not - relying on the interplay between GC III (PW/POW provisions - applying to combatants) and GC IV (civilian provisions). The judge noted that the argument made sense under the Bush II standard, but not under the new Obama standard based on Common Article 3:

(opinion pp.35-37)
Because the members of al-Qaeda and similar organizations do not qualify as “combatants” under Article 4, the petitioners contend that the only individuals subject to detention in this non-international armed conflict are “civilians who give up the protections of civilian status by participating actively and directly in hostilities as part of an organized armed force.” Pet’rs’ Mem. at 5. The petitioners defend this “‘direct participation in hostilities’ standard” as “a critical distinction in the law of armed conflict,” for whereas “combatants” within the meaning of Article 4 of the Third Geneva Convention “may be deliberately targeted with deadly force, . . . civilians who are not participating in hostilities may not.” Id. at 6.

The petitioners’ reliance on the standards governing international armed conflict is understandable given the government’s longstanding justification of its detention of the petitioners on the grounds that they were “enemy combatants.” This term has meaning under the Geneva Conventions only insofar as it is construed as a subset of “prisoner of war” status, which the Third Geneva Convention defines at length. [citations & comments omitted]

At least for those petitioners detained due to their associations with terrorist organizations like al-Qaeda, there is little question that such individuals fail to satisfy these requirements. While the term “armed forces” is defined broadly in the Third Geneva Convention, “the non-recognized government or authority” sponsoring the putative “armed forces” in question “must represent, or must claim to represent, a subject of international law recognized as such by the other Party to the conflict,” ICRC Additional Protocols Commentary, supra, at 508, and must be “indissolubly bound” by the rules that govern international warfare, id. at 513. “Anyone who participates directly in hostilities without being subordinate to an organized movement” that “enforc[es] compliance with these rules[] is a civilian.” Id. at 514.

Thus, under the combatant/civilian distinction formerly drawn by the government, the petitioners would appear to fall under the rubric of “civilians.” [citations & comments omitted] And as civilians, the petitioners would not be subject to military force “unless and for such time as they [took] a direct part in hostilities.” Id., art. 51.1, 51.3. In its most restrictive interpretation, this standard would require “a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity [took] place.” ICRC Additional Protocols Commentary, supra, at 516. [15]

[15] It is far from clear that the definition of “direct participation” set forth in the commentary to Additional Protocol I is correct. [long comment by court omitted].

But the government no longer seeks to detain the petitioners on the theory that they are “enemy combatants,” and neither Common Article 3, Additional Protocol II, nor the respective commentaries on these treaties by the International Committee of the Red Cross make any reference whatsoever to the term “combatant.” “The reason for the absence of combatant status in non-international armed conflicts is obvious: states are not prepared to grant their own citizens, and even less others who might engage in fighting on behalf of a non-state group, the right to do so.” J.K. Kleffner, From “Belligerents” to “Fighters” and Civilians Directly Participating in Hostilities—on the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference, 54 Netherlands Int’l L. Rev. 315, 322 (2007). Thus, whereas the Geneva Conventions rigorously protect individuals who participate in hostilities in the international context, they are silent with respect to individuals who engage in intranational (or, in this case, transnational) combat.

The petitioners evidently interpret this lack of protection for “combatants” in non-international armed conflicts to mean that every individual associated with the enemy to any degree in such a conflict must be treated as a civilian. As with Khan’s argument regarding the source of the President’s ability to detain individuals in armed conflicts in general, this assumption rests on the notion that the Geneva Conventions must specifically enable its signatories to act in a specific manner for a signatory to have the authority necessary to take such action. See supra, part II.A. And, as with Khan’s prior argument, this notion gets things exactly backwards. The Geneva Conventions restrict the conduct of the President in armed conflicts; they do not enable it. And the absence of any language in Common Article 3 and Additional Protocol II regarding prisoners of war or combatants means only that no one fighting on behalf of an enemy force in a non-international armed conflict can lay claim to the protections of such status, not that every signatory to the Geneva Conventions must treat the members of an enemy force in a civil war or transnational conflict as civilians regardless of how important the members in question might be to the command and control of the enemy force or how well organized and coordinated that force might be.

I would find in Common Article 2, the beginning of the flow chart into Common Article 3. The DoJ did not argue CA 2. The result is the same - CA 3 is the source of any restrictions on detention power and the balance of GC III and GC IV do not apply.

The remainder of the opinion (pp.39-48) leads to the concluding definition (p.48); and includes Judge Walton's limiting factors. It is a Common Article 3 analysis, with some added rules from the laws of war.

I'll cover those in the next part, since it is the crux of the decision.

[jmm99]

The primary authorities relied on by the judge are Common Article 3 and a portion of Additional Protocol II (neither signed nor ratitified by the US; but accepted by the US as to its "core principles"). The first part is a technical construction of Common Article 3:

(opinion, pp.39-40)
The text of Common Article 3 impliedly supports this conclusion. The article provides in pertinent part that “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause” must be treated “humanely.” Third Geneva Convention art. 3(1) (emphasis added). This restriction on the conduct of the state engaging in a non-international armed conflict carries with it two distinct implications. The first implication, correctly identified by the government, is that “[S]tates engaged in such conflicts can detain those who are part of [enemy] armed groups.” Gov’t’s Mem. at 9. Otherwise, there would be no “[p]ersons . . . placed hors de combat by . . . detention” to treat “humanely.”

Second, the fact that “members of armed forces who have laid down their arms and those placed hors de combat” are not “taking [an] active part in the hostilities” necessarily implies that “members of armed forces” who have not surrendered or been incapacitated are “taking [an] active part in the hostilities” simply by virtue of their membership in those armed forces. And the fact that the category of “[p]ersons taking no active part in the hostilities” only “includ[es]” surrendered or incapacitated members of an armed force necessarily suggests that there is a category of persons in non-international armed conflicts that, by virtue of their lack of membership in the armed forces of the enemy, are not “taking [an] active part in hostilities.” This equivalency in treatment reflects the “fundamental principle of the law of war that those who do not participate in the hostilities [should] not be attacked,” in which respect “harmless civilians and soldiers hors de combat are a priori on the same footing.” ICRC Additional Protocols Commentary, supra, at 482.

Common Article 3 therefore implicitly bifurcates individuals associated in some sense with the enemy in a non-international armed conflict into two groups: “members of armed forces” who necessarily always actively participate in hostilities; i.e., would-be combatants, and individuals who are not a part of the enemy’s armed forces and therefore do not actively participate in hostilities; i.e., civilians and soldiers rendered hors de combat. It is not surprising to discover, then, that the International Committee of the Red Cross makes just this sort of distinction in its commentaries to the Third and Fourth Geneva Conventions. It focuses its commentary on Article 3, sub-paragraph (1) of the Third Geneva Convention on “prisoners of war, who are covered by the Third Convention,” ICRC Third Geneva Convention Commentary, supra, at 38, while restricting the focus of its commentary on the identical provision in the Fourth Geneva Convention to “points which more particularly concern persons protected under the Fourth Convention,” which governs the treatment of civilians, International Committee of the Red Cross, Commentary on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, at 38 (Pictet et al. eds., 1958).

The next arrow fitted to Judge Walton's bow is construction of Additional Protocol II, and tying it to Common Article 3:

(opinion, pp.40-43)
This bifurcation is also apparent in Additional Protocol II. Part IV of that protocol “is aimed at developing the legal protection to which the civilian population is entitled,” ICRC Additional Protocols Commentary, supra, at 1443, and to that end Article 13 of the protocol provides that “[t]he civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations,” Additional Protocol II, art. 13.1, and that “[t]he civilian population as such, as well as individual civilians, shall not be the object of attack . . . unless and for such time as they take a direct part in hostilities,” id., art. 13.2-13.3. Of course, it would be odd for the drafters of Additional Protocol II to devote a portion of the convention to protecting a discrete group of individuals labeled “civilians” if every member of the enemy in a non-international armed conflict is a civilian, as the petitioners suggest. It would also cripple a state’s capability to effectively combat the enemy force in a non-international armed conflict if the members of that enemy force, including those members in a command position, could only be detained whenever there was “a sufficient causal relationship between the [member’s] act of participation and its immediate consequences,” as the International Committee of the Red Cross defines the term “direct part in hostilities” for purposes of Article 13.3. ICRC Additional Protocols Commentary, supra, at 1453. But, lest there be any confusion on the matter, the Committee itself explicitly notes that, unlike civilians, “[t]hose who belong to armed forces or armed groups may be attacked at any time.” Id.

In short, Common Article 3, Additional Protocol II, and the commentaries of the International Committee of the Red Cross all contemplate a division in the treatment of the members of an enemy’s “armed forces” and civilians. Unless they surrender or are incapacitated, members of the enemy’s armed forces are always “taking [an] active part in hostilities,” Third Geneva Convention, art. 3(1), and therefore “may be attacked” and, incident to that attack, detained “at any time,” ICRC Additional Protocols Commentary, supra, at 1453. “[C]ivilians who do not participate in hostilities,” on the other hand, “should be spared” those consequences. Id. at 1443.

Interpreting Common Article 3 and Additional Protocol II in this manner comports with customary international law. As the International Committee of the Red Cross noted in its recent study of that body of law, “[s]tate practice establishes” the rule distinguishing civilians from fighters “as a norm of customary international law applicable in both international and non-international armed conflicts.” 1 Int’l Comm. of the Red Cross, Customary International Humanitarian Law 3 (Jean-Marie Henckaerts & Louise Doswald-Beck, eds., Cambridge Univ. Press 2005) (the “ICRC Study”). Several states have either explicitly or impliedly required that their armed forces distinguish between fighters and civilians, see id. at 6 (listing states with military manuals, legislation, or official statements imposing this rule), “to the effect that only the former may be targeted,” id. And the International Committee of the Red Cross “has called on parties to both international and non-international armed conflicts to respect the distinction between [fighters] and civilians.” Id. at 8.16

This result is also consonant with the intended purpose of Common Article 3. While its scope may encompass the transnational conflict at issue here, the article was drafted “to aid the victims of civil wars and internal conflicts.” ICRC Third Geneva Convention Commentary, supra, at 28. As counsel for the government pointed out at oral argument on this issue, permitting a State to detain members of the armed forces of a non-state entity in a non-international armed conflict only when those members directly participated in hostilities, at least as that term is defined by the petitioners, “would encourage . . . armed groups to try to blend into the civilian population, which then necessarily subjects the civilian population to increased danger.” Hr’g Tr. 63:11-14, Mar. 23, 2009. And the practical absurdity of the petitioners’ approach is evident when one considers the impact such a standard would have had on the “civil wars and internal conflicts” experienced by this nation in the past.

The Court therefore rejects the petitioners’ argument that the laws of war permit a state to detain only individuals who “directly participate” in hostilities in non-international armed conflicts. Common Article 3 is not a suicide pact; it does not provide a free pass for the members of an enemy’s armed forces to go to and fro as they please so long as, for example, shots are not fired, bombs are not exploded, and planes are not hijacked.

Consistent with Common Article 3 and Additional Protocol II, the President may detain anyone who is a member of the “armed forces” of an organization that “he determines planned, authorized, committed, or aided” the 9/11 attacks, as well as any member of the “armed forces” of an organization harboring the members of such an organization. Pub. L. No. 107-40 § 2(a), 115 Stat. at 224.

Judge Walton then went on to consider some practical limitations on Common Article 3 detentions, which are covered in the next part.

[jmm99]

The most relevant portion of the opinion (to most here) deals with the criteria used to determine membership in the “armed forces” of the enemy. Judge Walton felt that Article 4 of the Third Geneva Convention and Article 43 of Additional Protocol I, while not binding, can be used to inform:

(opinion, p.43)
Although these provisions obviously cannot be applied literally to the enemy organizations contemplated in the AUMF—if that were the case, the conflict at hand would not be governed by Common Article 3 in the first place—they may nevertheless serve as templates from which the Court can glean certain characteristics necessary to identify those individuals who comprise an “armed force” for purposes of Common Article 3. This approach is also consistent with Common Article 3’s command that the “[p]arties to the conflict . . . endeavor[r] to bring into force . . . all or part of the other provisions of the [Third Geneva Convention].

The judge, along with JMM, concluded that agreements with AQ-Taliban, as to the application of the GCs, are unlikely (p.43, n.18).

OK, here is the judge's key test for a person being a part of AQ-Taliban:

(opinion, pp.43-46)
Foremost among these basic distinguishing characteristics of an “armed force” is the notion that the group in question be “organized . . . under a command responsible . . . for the conduct of its subordinates,” Additional Protocol I, art. 43.1. Although “[t]he term ‘organized’ is obviously rather flexible, . . . [a]ll armed forces, groups[,] and units are necessarily structured and have a hierarchy.” ICRC Additional Protocols Commentary, supra, at 512; see also Kleffner, supra, at 332 (“Members of organi[z]ed armed groups do not act as atomi[z]ed individuals, but as part of a structured collective whose very purpose it is to use armed force and inflict death and injury to objects of such an intensity so as to reach the threshold of non-international armed conflict.”). Thus, mere sympathy for or association with an enemy organization does not render an individual a member of that enemy organization’s armed forces. Instead, the individual must have some sort of “structured” role in the “hierarchy” of the enemy force.

Obviously, “the ‘organizations’ that the President is authorized to target under the AUMF do not . . . issue membership cards or uniforms.” Gov’t’s Opp’n at 6. Nevertheless, there is a distinction to be made between members of a terrorist organization involved in combat operations and civilians who may have some tangential connections to such organizations. As Curtis Bradley and Jack Goldsmith note in their lengthy article on the validity of the AUMF and its implications, “terrorist organizations do have leadership and command structures, however diffuse, and persons who receive and execute orders within this command structure are analogous to combatants” in international armed conflicts. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2114-15 (May 2005). Thus, under Additional Protocol I, only “persons who receive and execute orders” from the enemy’s “command structure” can be considered members of the enemy’s armed forces. Sympathizers, propagandists, and financiers who have no involvement with this “command structure,” while perhaps members of the enemy organization in an abstract sense, cannot be considered part of the enemy’s “armed forces” and therefore cannot be detained militarily unless they take a direct part in the hostilities.

At the same time, the armed forces of the enemy consist of more than those individuals who would qualify as “combatants” in an international armed conflict. See ICRC Third Geneva Convention Commentary, supra, at 51. (“At the Conference on Government Experts, the question arose as to the advisability of giving a more exact definition of armed forces by stating . . . that the term covers both combatants and non-combatants. It was finally considered that this fact was usually implicit in any general reference to armed forces . . . .”); ICRC Additional Protocols Commentary, supra, at 510 (noting that under the Hague Regulations that informed the drafting of Article 4 of the Third Geneva Convention and Article 43 of Additional Protocol I, “[t]he armed forces of the belligerent parties may consist of both combatants and non-combatants”).

The key question is whether an individual “receive[s] and execute[s] orders” from the enemy force’s combat apparatus, not whether he is an al-Qaeda fighter. Thus, an al-Qaeda member tasked with housing, feeding, or transporting al-Qaeda fighters could be detained as part of the enemy armed forces notwithstanding his lack of involvement in the actual fighting itself, but an al-Qaeda doctor or cleric, or the father of an al-Qaeda fighter who shelters his son out of familial loyalty, could not be detained assuming such individuals had no independent role in al-Qaeda’s chain of command. See Kleffner, supra, at 334 (“[P]ersons who accompany the armed forces without actually being members thereof should be immune from being made the object of attack, unless and for such time as they directly participate in hostilities.”). [19]

[19] Kleffner argues that “only ‘fighters’ should be liable to attack for the entire duration of their membership” in the enemy armed forces because “organi[z]ed armed groups may include members devoted to functions other than fighting.” Kleffner, supra, at 333. The problem with this approach is that many members of the armed forces who, under different circumstances, would be “fighters” may be assigned to non-combat roles at the time of their apprehension. These individuals are no less a part of the military command structure of the enemy, and may assume (or resume) a combat role at any time because of their integration into that structure. For example, an al-Qaeda cook who has trained at an al-Qaeda camp and sworn allegiance to Osama bin Laden is no less dangerous than his comrade guarding the camp entrance, and must be incapacitated for the same reasons.

My only concern with this test, as stated above, is that it may not be broad enough to pull in some persons who are integral members of the infrastructure. Remember that a person who cannot be detained also cannot be killed - I suppose that person could be arrested and charged criminally (e.g., a financier of AQ); but isn't the AQ financier as or more important than the AQ foot soldier ?

This is a first step down the path under the new definition. Presumably, there will be more refinements as cases are tried by Judge Walton under it (see pp.46-47).

[jmm99]

The "state secrets privilege" (in US law - not the UK statute) is a doctrine which, in one branch (dismissal of the action), goes back to a contract made by Abe Lincoln with a spy; and which, in another branch (exclusion of evidence), goes back to the trial of Aaron Burr. The doctrine applies to civil cases brought against the government.

Two recent Court of Appeals cases (which conflict) involved extraordinary rendition; but there have been a number of cases in the last few years. The latest case, analysed by Lyle Denniston, involves our old pal Binyam Mohamed.

“State secrets” doctrine narrowed
Tuesday, April 28th, 2009 6:16 pm | Lyle Denniston
....
Deepening a split among lower courts, and thus adding to chances the Supreme Court will be drawn back into the dispute, a federal appeals court on Tuesday narrowed significantly the government’s power to block lawsuits altogether by claiming the need to protect “state secrets.” It did so by proclaiming an important role for judicial power “in the context of secret Executive conduct.”

The ruling by the Ninth Circuit Court in Mohamed, et al., v. Jeppesen Dataplan, et al. (docket 08-15693), renews a controversy over the federal courts’ role in judging the legality of the government’s secret “rendition” program of picking up terrorism suspects abroad and shipping them to other countries for interrogation and, sometimes, torture. The Supreme Court turned down the first case on the “rendition” program 18 months ago (El-Masri v. U.S., 06-1613), but the issue now seems sure to return.

The Mohamed opinion is here; the El-Masri opinion is here.

A report by the ACS (American Constitution Society), "Reforming the State Secrets Privilege", is here. The Senate report for the 2008 State Secrets Protection Act (proposed, but not enacted) is here.

Given the huge changes in the treatment of state secrets (the classification systems) since the era of Burr & Lincoln, this doctrine seems something of a past relic. As we have seen in the habeas and FISA cases, Federal judges are quite competent to protect classified evidence - and to issue very redacted opinions, etc.

Since two Circuits are clearly divided, SCOTUS would be likely to take the case - if DoJ appeals. And, of course, Congress could act to define the doctrine more clearly.

[jmm99]

Yup, chalk one thumbs up for John Ashcroft, who wanted to (and did) charge al-Marri in Federal District Court - and chalk one thumbs down for Pres. Bush, who overruled Ashcroft and detained al-Marri for the last six years under an Executive Order.

Except for some minor issues, the case ended today in a guilty plea (to a slightly reduced charge - 15 year max).

Lingering issues for Al-Marri
Thursday, April 30th, 2009 10:06 pm | Lyle Denniston
...
Nearly two months after the Supreme Court took off of its docket a major case on presidential detention power, the individual involved — Ali Saleh Kahlah Al-Marri, a Qatari and Saudi national — has pleaded guilty to criminal charges in a regular federal court. ...
...
In particular, Al-Marri’s lawyers indicated in the plea agreement that they will attempt to get credit for him against his prison term — up to 15 years — for the more than seven years he has been in federal civilian or military custody. They apparently also will press for even less prison time, with the argument that he was abused and kept in inhumane conditions for much of the time he was being held in a Navy brig in South Carolina as an “enemy combatant.”
....
On Thursday, in U.S. District Court in Peoria, Ill. — the city where Al-Marri had been living and where he was first taken into federal custody in late 2001 — the former detainee pleaded guilty to one of the two counts against him: conspiracy to provide “material support” to the Al-Qaeda terrorist network....
....
U.S. District Judge Michael M. Mihm has set sentencing for July 30. The Justice Department said Al-Marri “faces up to 15 years imprisonment, a $250,000 fine, a life term of supervised release, and a $100 mandatory special assessment.” The Justice Department signaled in the plea agreement that it “reserves the right to oppose” any claim that Al-Marri should get less than a 15-year prison term. ...

Credit for time served is normally granted - that issue has been discussed here before (in connection with the Hamdan case).

The DoJ Press Release goes into some detail about al-Marri's proffer in support of the plea:

Statement of Facts

Between 1998 to 2001, al-Marri attended various terrorist training camps where he learned the use of weapons and operational security tradecraft that al-Qaeda employed to avoid detection, conceal their communications and protect their operations. These methods included prearranged codes and other techniques to protect communications, counter-surveillance techniques and the protection of information on computers.

During these trips, al-Marri stayed in safe houses in Pakistan, which he agrees the government would prove were run by al-Qaeda. While in the terrorist training camps and safe houses, he used the nickname "Abdul-Rahman al-Qatari," and provided al-Qaeda operatives with his family contact information so they could inform his family should he be killed or "martyred" during an al-Qaeda mission.

In 2001, al-Marri was approached by Khalid Sheikh Mohammed, who was then the external operations chief for al-Qaeda, about assisting al-Qaeda operations in the United States. Al-Marri agreed to do so and knew at the time that he entered into the agreement with Khalid Sheikh Mohammed that he was providing himself to al-Qaeda to further their terrorist objectives. Al-Marri was also aware that al-Qaeda was responsible for attacks against the United States, including the 1998 bombings of two U.S. Embassies in East Africa, and the 2000 attack on the USS Cole. In addition, he was aware of the 1996 and 1998 "fatwas" issued by Usama bin Laden against the United States.

Al-Marri was instructed by Khalid Sheikh Mohammed to enter the United States no later than Sept. 10, 2001, with an understanding that he was to remain in the United States for an undetermined length of time. Khalid Sheikh Mohammed also directed al-Marri to meet with Mustafa al-Hawsawi (hereinafter al-Hawsawi) in Dubai, United Arab Emirates, where al-Hawsawi provided him with $10,000. Al-Marri knew that al-Hawsawi was associated with al-Qaeda and agrees that the government would prove at trial that al-Hawsawi was a primary financier of the September 11th attacks.

Communications in Code

Khalid Sheikh Mohammed and al-Marri also set up a code through which they communicated. Al-Marri was instructed to conceal telephone numbers and other numbers to be used in e-mail addresses by using a numeric code (hereinafter, "10-code"). This code was used by al-Qaeda members, including al-Hawsawi and some of the Sept. 11th hijackers to conceal telephone numbers so as to avoid detection. Al-Marri was also provided contact information for several al-Qaeda associates which he stored in his personal PDA (Personal Digital Assistant) using the 10-code.

Khalid Sheikh Mohammed and al-Mari also used a pre-arranged code to disguise their email communications. The pre-arranged communication method referred to Khalid Sheikh Mohammed as "Muk." Al-Marri was to refer to himself as "Abdo" in these communications and to send emails to HOR70@hotmail.com, an email account used by Khalid Sheikh Mohammed. Through these emails, al-Marri was to keep Khalid Sheikh Mohammed apprised of his efforts to enter the United States, his contact information and his efforts to advance al Qaeda’s mission in the United States. Khalid Sheikh Mohammed was to use these emails to pass on instructions to al-Marri.

Details of the prearranged code were stored in an address book that was found in an al-Qaeda safe house in Pakistan. The book contained the email address to be used by al-Marri, which was listed as farwaa@yahoo.com , along with the identification number for al-Marri of "038." From this coded information, al-Marri used the email address of farwaa72@hotmail.com. The address book also listed Khalid Sheikh Mohammed’s email address as HOR70@hot[mail.com].

From approximately June 2001 through August 2001, al-Marri communicated via email with Khalid Sheikh Mohammed, as directed and agreed upon, about his attempts to gain entry into the United States via a student visa from Bradley University in Peoria, Ill.. He applied online to Bradley University using the same email address he used to communicate with Khalid Sheikh Mohammed. To expedite his admission, he applied for a second bachelor’s degree instead of a master’s degree.

Once al-Marri learned he had been re-enrolled in Bradley University, he traveled to Dubai and met with al-Hawsawi, who provided him $10,000. Al-Marri then traveled to Pakistan to meet Khalid Sheikh Mohammed. Upon his return to Qatar, al-Marri applied for a new Qatari passport. He also obtained his student visa, but did not admit on his visa application that he had taken a trip to the United States in 2000, where he had established a fictitious business using a false name and stolen Social Security number, fraudulently obtaining a number of credit cards and opening several business accounts.

Arrival in the United States

Al-Marri and his family arrived in the United States on Sept. 10, 2001. On Sept. 21, 2001, he traveled to another university in Illinois and created five new email accounts under different aliases. By this time, he knew al-Qaeda was responsible for the Sept. 11, 2001 attacks and understood why Khalid Sheikh Mohammed had directed him to be in the United States before that date. Al-Marri used these new e-mail accounts to inform Khalid Sheikh Mohammed that he had arrived safely in the United States. He also provided Khalid Sheikh Mohammed with his Peoria cellular telephone number.

From Sept. 23, 2001 through Nov. 4, 2001, al-Marri made several unsuccessful attempts to call al-Hawsawi and others he knew were al-Qaeda operatives. To conceal his communications efforts, he used prepaid calling cards at public pay phones in and around central and northern Illinois. Although the initial calls were made from payphones in the Peoria area, after al-Marri was interviewed by the FBI on Oct. 2, 2001, he expanded the calling area, sometimes traveling more 160 miles away to place calls.

Al-Marri also conducted online research of various cyanide compounds, including hydrogen cyanide, potassium cyanide, and sodium cyanide. He reviewed toxicity levels, locations where these items could be purchased, and specific pricing of the compounds. He also explored obtaining sulfuric acid, a well-known binary agent used in a hydrogen cyanide binary device to create cyanide gas. Al-Marri agrees that the government would prove at trial this is the method taught by al Qaeda for manufacturing cyanide gas.

Al-Marri agrees that the government would prove at trial that his research into cyanide compounds is consistent with research conducted by persons trained in camps teaching advanced poisons courses to terrorist organizations, including al Qaeda. He also agrees that the government would prove at trial that an almanac recovered in his residence was bookmarked at pages showing dams, waterways and tunnels in the United States, consistent with al Qaeda attack planning regarding the use of cyanide gases.

Finally, al-Marri used an "anonymizer" program on his laptop when surfing the internet. He agrees that the government would prove at trial that these types of programs are designed to allow individuals to anonymously search internet websites and programs, and that the program on his computer also erased all historical internet searches on a regular basis.

So, another potential witness against KSM - and, so much for an innocent grad student who wouldn't hurt a fky - ad infinitum, ad nausium.

[jmm99]

When Pres. Obama was candidate Obama, he made very clear his opposition to the use of military commission trials (under the MCA) in detainee cases. In fairness to his administration, it has not expressly said that the MCA system was dead. Now, this from the NY Times:

U.S. May Revive Guantánamo Military Courts
The four-month suspension of military commission proceedings ordered for Guantánamo detainees is to end on May 20.
By WILLIAM GLABERSON
Published: May 1, 2009

The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself.

Officials said the first public moves could come as soon as next week, perhaps in filings to military judges at the United States naval base at Guantánamo Bay, Cuba, outlining an administration plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.
.....
Obama administration officials — and Mr. Obama himself — have said in the past that they were not ruling out prosecutions in the military commission system. But senior officials have emphasized that they prefer to prosecute terrorism suspects in existing American courts. When President Obama suspended Guantánamo cases after his inauguration on Jan. 20, many participants said the military commission system appeared dead.

But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.

“The more they look at it,” said one official, “the more commissions don’t look as bad as they did on Jan. 20.”

Several officials insisted on anonymity because the administration has directed that no one publicly discuss the deliberations.

Administration officials said Friday that some detainees would be prosecuted in federal courts and noted that Mr. Obama had always left open the possibility of using military commissions. ... [much more in article]

There is still some confusion among the media (surprise !) about the two very different paths that detainee cases can take. Since this is a rapidly developing area of law (with very divergent views held by the "SMEs"), one cannot place too much blame on the journalists - their lawyer-pundit guests are another kettle of fish.

In any event, to summarize what seems to me to be going on is this:

1. Detention. The issue of detention, which is basic - and rather easy to determine whichever one of the respective tests developed by Judges Leon, Urbina, Bates and Walton, one uses - boiling down to whether the detainee, when captured or surrendered, had been involved in AQ-Taliban or associated groups (the differences between the judges has hinged on what measure of involvement is needed to allow detention).[*]

Among the detainees, we have at least four status classes to consider (putting them in a quote to set them off):

1. Aliens never resident in the US or unlawfully resident in the US. No question here that the AUMF and Executive powers allow detention, subject to review of the detainee's status by an independent magistrate (not necessarily via DC District habeas cases, since judicial independence could be rather easily established via a separate & independent detainee review process initially outside of the Article III courts, so long as ultimate appellate review can be had in an Article III court).

2. Aliens given resident status in the US under false pretenses. Mr al-Marri is a perfect example, since his resident status was invalid ab initio because his application failed to disclose his AQ connections (e.g., the various prison guards at Nazi concentration camps). Logic suggests that anyone in this category be treated the same as those in category 1.

3. Aliens initially holding valid resident status, who later became associated with AQ, for example. This is a more difficult constitutional question (addressed by Justice Robert Jackson in the early 1950s, who was a genuine SME on war crimes; and, more recently, by Justice Scalia), which might have been addressed if the Al-Marri case had been decided by SCOTUS. This category, as far as detention for the duration of the armed conflict is concerned, stands between categories 2 and 4.

4. US citizens who became associated with AQ. The law in this area seems fairly clear (e.g., Justice Scalia has addressed it, among others) - US citizens, even if AQ members, cannot be detained simply because of that status; but must be charged criminally (treason or a lesser criminal chage).

As I perceive the cases so far decided, this is where we stand on the question of detention (basically a Common Article 3, GCs, issue based on the law surrounding CA 3 as it has been accepted by the US - not on what I Law "SMEs" claim it is).

2. Criminal charges. Many of the detainees are also subject to criminal charges under one or more Federal statutes (e.g., KSM). The question which the NY Times article raises is whether prosecutions should be by military tribunals - presumably as an alternative forum to the Federal courts.

Whether or not criminal charges are brought has nothing to do with whether the person can be detained until such time as the President and Congress determine that the armed conflict with AQ has ended - or that the detainee is not likely to return as a participant to that conflict (which requires a rather exact crystal ball).

This last point is where much controversy lies. The Euro-centric view (e.g., the Eminent Jurists Panel) views these cases as solely criminal law matters - and that the US detentions (based on the CA 3 armed conflict standard) are frankly illegal. Many I Law "SMEs" agree. The DC judges (to a person) disagree and have been developing a CA 3 armed conflict jurisprudence (see note * below).

- cont. in part 2 ....

------------------
[*] Many of the DC judges (district and circuit) have rotated through tours on the national intelligence courts (FISA cases, etc.). As such, they are more familiar with the classified information regarding AQ etc., than those of us who are viewing the process from the outside. One should keep this in mind, since their life experiences do enter into their decisions.

[jmm99]

The NY Times also ran a News Analysis of the Al-Marri case today:

News Analysis
Path to Justice, but Bumpy, for Terrorists
By JOHN SCHWARTZ
Published: May 1, 2009

For years, legal experts have debated whether terrorism suspects held as enemy combatants by the Bush administration could be effectively tried within the criminal justice system. On Thursday, in one of the first such cases resolved before a civilian judge, an answer began to emerge: terrorists can be brought to justice, but the process can be very messy. ....

In that article, one finds a quote by Andy McCarthy (a cousin no doubt, since he does not mince words):

“This is a guy who conspired to commit mass murder attacks with the very highest-ranking guys” in Al Qaeda, said Andrew C. McCarthy, a former United States attorney who successfully prosecuted Sheik Omar Abdel Rahman and 11 others for their role in the 1993 World Trade Center attack. The role of the government in such a case, Mr. McCarthy said, is “to get these guys off the street for as long as you can keep them off the street.”
.....
Mr. McCarthy, the former United States attorney, who this week publicly refused an invitation from the attorney general to join a presidential task force on detention policy over his disagreement with the administration’s policies, said the nation’s future safety would determine which side was right. If no new terrorist attacks take place, he said, “people like me are going to have to acknowledge that we overrated the threat.” He added, however, that he did not believe that would be the case.

Mr McCarthy's letter (1 May 2009) to AG Holder is here, which says (in small part, with emphasis as in ACM's original, except as noted):

Beyond that, as elucidated in my writing (including my proposal for a new national security court, which I understand the Task Force has perused [JMM emphasis]), I believe alien enemy combatants should be detained at Guantanamo Bay (or a facility like it) until the conclusion of hostilities. This national defense measure is deeply rooted in the venerable laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi case. Yet, as recently as Wednesday, you asserted that, in your considered judgment, such notions violate America’s “commitment to the rule of law.” Indeed, you elaborated, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay…. President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law[.]” (Emphasis added.)

Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.

For what it may be worth, I will say this much. For eight years, we have had a robust debate in the United States about how to handle alien terrorists captured during a defensive war authorized by Congress after nearly 3000 of our fellow Americans were annihilated. Essentially, there have been two camps. One calls for prosecution in the civilian criminal justice system, the strategy used throughout the 1990s. The other calls for a military justice approach of combatant detention and war-crimes prosecutions by military commission. Because each theory has its downsides, many commentators, myself included, have proposed a third way: a hybrid system, designed for the realities of modern international terrorism—a new system that would address the needs to protect our classified defense secrets and to assure Americans, as well as our allies, that we are detaining the right people [JMM emphasis].

There are differences in these various proposals. But their proponents, and adherents to both the military and civilian justice approaches, have all agreed on at least one thing: Foreign terrorists trained to execute mass-murder attacks cannot simply be released while the war ensues and Americans are still being targeted. We have already released too many jihadists who, as night follows day, have resumed plotting to kill Americans. Indeed, according to recent reports, a released Guantanamo detainee is now leading Taliban combat operations in Afghanistan, where President Obama has just sent additional American forces.

The Obama campaign smeared Guantanamo Bay as a human rights blight. Consistent with that hyperbolic rhetoric, the President began his administration by promising to close the detention camp within a year. The President did this even though he and you (a) agree Gitmo is a top-flight prison facility, (b) acknowledge that our nation is still at war, and (c) concede that many Gitmo detainees are extremely dangerous terrorists who cannot be tried under civilian court rules. Patently, the commitment to close Guantanamo Bay within a year was made without a plan for what to do with these detainees who cannot be tried. Consequently, the Detention Policy Task Force is not an effort to arrive at the best policy. It is an effort to justify a bad policy that has already been adopted: to wit, the Obama administration policy to release trained terrorists outright if that’s what it takes to close Gitmo by January.

Obviously, I am powerless to stop the administration from releasing top al Qaeda operatives who planned mass-murder attacks against American cities—like Binyam Mohammed (the accomplice of “Dirty Bomber” Jose Padilla) whom the administration recently transferred to Britain, where he is now at liberty and living on public assistance. I am similarly powerless to stop the administration from admitting into the United States such alien jihadists as the 17 remaining Uighur detainees. According to National Intelligence Director Dennis Blair, the Uighurs will apparently live freely, on American taxpayer assistance, despite the facts that they are affiliated with a terrorist organization and have received terrorist paramilitary training. Under federal immigration law (the 2005 REAL ID Act), those facts render them excludable from the United States. The Uighurs’ impending release is thus a remarkable development given the Obama administration’s propensity to deride its predecessor’s purported insensitivity to the rule of law.

I am, in addition, powerless to stop the President, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.

Tough love.

I hope this update and analysis will be helpful to readers of this thread, in reaching a better understanding of what the issues are and what possible solutions exist.

[jmm99]

U.S. District Judge Gladys Kessler ordered the release yesterday of Alla Ali Bin Ali Ahmed.

Judge Orders Release of Guantanamo Inmate, Imprisoned Seven Years
U.S. District Judge Gladys Kessler says the United States should take all necessary diplomatic steps to release Alla Ali Bin Ali Ahmed.
AP
Monday, May 04, 2009

WASHINGTON -- A federal judge on Monday ordered a Yemeni man released from Guantanamo Bay after seven years' detention.

U.S. District Judge Gladys Kessler says the United States should take all necessary diplomatic steps to release Alla Ali Bin Ali Ahmed. He was picked up seven years ago by Pakistani forces in a prayer house that the United States said was run by a high-ranking Al Qaeda operative
....
The judge gave the United States until June 15 to report back on the status of his release. Justice Department spokesman Dean Boyd said the decision is under review and that he can't comment yet on whether the government will appeal.

Most of the information in the case is classified. The United States argued that Ahmed, held as detainee 692, was associated with Al Qaeda and the Taliban. Unclassified documents filed in court say he traveled to Faisalabad, Pakistan, in October 2001 and stayed at an Al Qaeda guesthouse for about four months before being captured during a raid on the house in March 2002 when he was 18 years old. ....

This is a new judge in our reporting of these cases (Judge Kessler was appointed in 1994 by Pres. Clinton).

The question not addressed in the news brief is what standard she used to determine the detainee's status. More on that if I run into her opinion.

[jmm99]

to be released when classification review is completed, per her order filed about 15 minutes ago:

For the reasons set forth in this Court’s Classified Memorandum Opinion of May 4, 2009, [1] it is hereby ORDERED, that Petitioner Alla Ali Bin Ali Ahmed’s petition for a writ of habeas corpus is granted; and it is further

ORDERED, that the Government take all necessary and appropriate diplomatic steps to facilitate Petitioner’s release forthwith, and to report back to the Court no later than June 15, 2009, as to the status of Petitioner’s release.
....
[1] The Classified Opinion is currently undergoing classification review. As soon as it is completed, the Unclassified Opinion will be made public.

For any masochist who wants to follow the Gitmo DC District cases, the official webpage is here.

[davidbfpo]

Today The Independent has two articles on UK Security Service (MI5) offers to detainees in Afghanistan, Pakistan and G-Bay. Based on a detainee's interview, now submitted as a document for the High Court; which I suspect are part of the legal battle in the UK for compensation and more non-legal impact: http://www.independent.co.uk/news/uk...y-1679884.html

The second article is more of a comment: http://www.independent.co.uk/opinion...n-1679708.html

No real surprises.

davidbfpo

[jmm99]

Thank you for the UK update.

If memory serves, the High Court, in the Binyam Mohamed case, still had outstanding the request for the remainder (IIRC about 7 paragraphs) of the document held by your FM David Miliband. Haven't seen a decision on that yet. If it comes down (or if I missed it), I would appreciate the advice.

[davidbfpo]

An interesting commentary by the former CIA Director and Congressional veteran, especially the impact on those in the "firing line" in the agencies: http://www.washingtonpost.com/wp-dyn...042403339.html

davidbfpo

[davidbfpo]

If memory serves, the High Court, in the Binyam Mohamed case, still had outstanding the request for the remainder (IIRC about 7 paragraphs) of the document held by your FM David Miliband. Haven't seen a decision on that yet. If it comes down (or if I missed it), I would appreciate the advice.

JMM,

Found the latest UK legal update: http://news.bbc.co.uk/2/hi/uk_news/8040203.stm and a shorter notice by his lawyers http://cryptome.org/0001/uk-torture.htm

Methinks the UK government is having a hard time deciding how to proceed and would prefer a quiet Sunday morning to announce their decision. Perhaps the furore over MPs expenses will help?

davidbfpo

[jmm99]

will love this one - as well as the CIA docs and other docs released and to be released (or leaked). There will be little rationality in the process which will ensue.

[jmm99]

for the update. Often when SCOTUS re-hears a decision, the result is a reversal of the decision. But, not always. So, I'll be patient and wait to see what your judges decide.

[davidbfpo]

There is a seperate thread on US attempts to get others to accept those released, but it has meandered off the original topic: http://council.smallwarsjournal.com/...ead.php?t=7191

So I've added a cross reference on that thread and this update here: http://www.telegraph.co.uk/news/worl...o-inmates.html

One wonders what the 'price' exacted by Saudi Arabia is?

davidbfpo

[jmm99]

at the Byzantine ways of the Kingdom's diplomacy. I am getting the impression (from a number of different threads and perhaps isolated events) that somethings (pl.) are on-going. No idea what - and what the wave (in MikeF terms - , Mike) really looks like.

PS: We had a snow squall yesterday - probably very explainable scientifically; but I don't know that answer either.

I also note that Turki's WP interview involved a slam at Gitmo - and a tout of the Kingdom's rehab program. So, that fits with a deal to transfer.

Also, perhaps (?) a Hekmatyar deal. I don't recall whether he was one of Turki's proteges back in the day.

And, of course, what Pstan is going to look like.

[davidbfpo]

JMM,

Yes, I too thought the coincidences shown here are all rather timely, in meeting Saudi interests and helping the USA. Some are rather public, which is not how I thought they worked.

davidbfpo