Lawfare - Theory & Practice

[Schmedlap]

The more that I think about this topic, the more that I think it is just Americans whining about more difficult security challenges. It sounds very similar to complaints of "criminals getting acquitted on minor technicalities" or "criminals hiding behind the law." I think those complaints are better directed at the lawyers who failed to get the prosecution or the evidence gatherers who were not meticulous enough. We can say that it shouldn't be so difficult, but that presupposes that "we know he did it" before the trial goes forth. On the issue of trying terrorists, we can also say that it should not be so difficult, but that presupposes that wars will always be fought fairly and on our terms. Welcome to the 21st century.

On the specific issue of terrorists, I wonder if perhaps it is time for a "minimum contacts" test to assert Constitutional protections. Put the burden on the prosecution to demonstrate no "minimum contacts" with this country.

If a strong case can be made that you only came here to blow stuff up and it is demonstrated that you are not a citizen and you are here on a temporary visa (or cannot produce any documentation at all), then we notify your countr(y/ies) of citizenship. Then...

1) no foreign state is willing to intervene on your behalf, then you fall under jurisdiction of the military tribunals.

2) if a country in which you have citizenship is willing to intervene, or if your country asks another country to do so on its behalf, then you are detained, like any nonresident criminal suspect, and your processing through the legal system is suspended until arrangements can be made for your return to your home country.

This would mean that a terrorist from a country with poor relations with us might get returned. Say, for example, some terrorist from a state that doesn't like us shows up, attempts a terror attack, we capture him, and his country of nationality says, "we want him back" and we know that he will return to a hero's welcome. So what? He still gets questioned and still gets detained for a long period of time while the legal haggling occurs. In the meantime, he gets no miranda rights and no access to a lawyer. If his country of nationality says "we don't want him" and he gets tried in our legal system, then only evidence that can pass muster of our rules of evidence gets admitted. That, too, could result in a "known terrorist" being acquitted and deported. So what? Look how many Gitmo detainees have returned to being terrorist operatives. Have we all spontaneously combusted as a result?

[jmm99]

by whatever (), the LWOT (presumably the Legal War On Terror) can be accessed at FP's mainpage - nearer bottom under "The Latest from FP" (same place as Bob Haddick's SWJ weekly feed to FP); but it also has its own section, THE LWOT (presently, 4 articles). The latest article is The LWOT: The “Al Qaeda Seven” Revealed; Supreme Court Hears Foreign Torture Trial.

This appears to be more a news item feed than a legal analysis blog. Of course, you can then follow up the news item to get (eventually) to the meat of the situation.

And, from one of the news items, a cheerful note from the UK via the Telegraph, Guantanamo: £30m torture case bill for taxpayers:

Compensation claims lodged against the Government by six former Guantanamo Bay detainees are likely to cost the taxpayer more than £30 million in legal bills, The Daily Telegraph has learnt.

By Gordon Rayner, Chief Reporter
Published: 7:30AM GMT 01 Mar 2010

Binyam Mohamed, who is at the centre of a row over Britain’s alleged complicity in torture, and five other men are each suing MI5 and MI6, claiming the security services were complicit in their alleged torture in custody.

They could be awarded between £200,000 and £500,000 each if they win their cases, but spiralling legal bills will dwarf any damages awards, as the joint action by the men is currently expected to take seven years to work its way through the courts.

Sources close to the case have disclosed that 75 lawyers have been hired by the Government to sift through hundreds of thousands of classified documents relating to the detainees’ arrests and treatment.

It will take up to five years for the Government to prepare its defence, at a predicted cost of £20m, and because all six of the former detainees are being given legal aid to fight for compensation, their own lawyers’ fees and court costs are expected to add another £10m.

A source within Whitehall told The Daily Telegraph that £30m was “a conservative estimate” for the final cost of the case. ... (more in story)

Who says Lawfare does not pay ?

Regards

Mike

[Boondoggle]

http://www.longwarjournal.org/archiv...eda_senten.php

There's a lawfare lesson in there: Don't get caught doing anything that lends itself to a (fairly) straightforward criminal case. Here, Siddiqui picks up a rifle and shoots a soldier. If she doesn't do that, they either have to send her to Gitmo or try her based on her participation in various plots which brings all sorts of side effects that we've been trying to avoid (CIA, potential torture of witnesses, methods etc...) If I'm AQ I make it SOP that when I'm caught, take the fight to us through the courts, not with your hands.

And this is probably appropriate for this thread, been following for a few weeks, I might start commenting occasionally on their blog here since they're not taking comments (they're scared of the mud):

http://www.lawfareblog.com/

[Bob's World]

Rather than looking at the law as simply one more LOO or weapon for defeating the threat; I believe there are more practical applications for legal approaches to mitigate the conditions that give rise to and empower these non-state threats.

One primary application is that of "Sanctuary." High time we evolved from the tired, and entirely incomplete cliché of "ungoverned spaces" and evolved to a more sophisticated and complete understanding of what truly provides sanctuary to these groups.

First, all insurgents and terrorists are by definition outlaws, so they have their first sanctuary right there. One is not constrained by the law once they opt to live and act outside it.

Second, being "non-state" actors they are also outside the rules and tools designed for the control of proper state behavior. We must develop new legal approaches that deny this 'sanctuary from consequences' much more effectively than current approaches.

Another critical component to sanctuary is the support of poorly governed populaces. Understanding what aspect of governmental actions contribute most significantly to such perceptions and then crafting and enforcing laws aimed at the governments that create these conditions we nick away at their sanctuary even more.

Next we need better laws for allowing short-notice, short-duration punitive raids to deal with critical nodes of networked terror organizations. There must be checks and balances, and full communicaitons and transparency behind the scenes (to the degree possible); but we can't keep rubbing other peoples faces in it when we decide we want to pop into their country to whack somebody.

This is just one area, but for me, if lawfare is just another rocket to shoot at the insurgent himself, it not much value added. I would expect lawyers to be a bit more clever and devious in their approaches...

[jmm99]

Benjamin Wittes (legal media background), Jack Goldsmith (legal academic) and Robert Chesney (legal academic) won't let you play with them; thereby curtailing your mud wrestling practice ?

Plan A: Why don't you and Polarbear kidnap them and take them out into the boonies for a condensed version of TBS ? I'm sure that in no time at all the two of you could knock off some of the polish and reduce them to more rough-edged versions of their present selves.

Plan B: your posting comments and links to their blog in this thread, would be most welcome.

-------------------
A lot of the BS in this area can be blamed on too many justices writing opinions. Back in 2004, SCOTUS decided Hamdi v Rumsfeld. That, of course, was a decision in result only with 4 separate views being offered.

First, the plurality opinion (4 justices):

Justice O'Connor wrote a plurality opinion representing the Court's judgment, which was joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. O'Connor wrote that although Congress had expressly authorized the detention of unlawful combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his detention. However, Justice O'Connor used the three-prong test of Mathews v. Eldridge to limit the due process to be received. This required notice of the charges and an opportunity to be heard, though because of the burden upon the Executive of ongoing military conflict, normal procedural protections such as placing the burden of proof on the government or the ban on hearsay need not apply. O'Connor suggested the Department of Defense create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued detention as an enemy combatant. The United States Department of Defense created Combatant Status Review Tribunals in response, modeling them after the AR 190-8. O'Connor did not write at length on Hamdi's right to an attorney, because by the time the Court rendered its decision, Hamdi had already been granted access to one. However, O'Connor did write that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on remand." The plurality held that judges need not be involved in reviewing these cases, rather only an impartial decision maker was required.

In retrospect, this solution looks pretty good - to me. At the least, it is logically consistent and could be implemented in practice with minimal adverse consequences to detention. In effect, this is a Common Article 3 (of the 1949 GCs) solution, where detention is the default remedy - military commissions and civilian courts are add-ons, which can be useful in certain cases.

Second, we have the concur-dissent opinion (2 justices):

Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling. However, they dissented from the plurality's ruling that AUMF established Congressional authorization for the detention of unlawful combatants.

In effect, this opinion requires a law enforcement approach to the problem of detained TVNSAs (Transnational Violent Non-State Actors) - you can kill them under the AUMF and the Laws of War, but you can detain them only under the Rule of Law.

Third, we have the Let Him Go or Suspend Habeas dissent (2 justices):

Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus, or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

This was truly an Odd Couple since the result is pure law enforcement (which was Stevens' posiiton throughout). I suppose Scalia thought Congress would suspend habeas (it did) and Stevens thought it would not.

Fourth, we have the Unlimited Executive Power dissent (1 justice):

Justice Clarence Thomas was the only justice who sided entirely with the executive branch and the Fourth Circuit's ruling, based on his view of the security interests at stake and the President's broad war-making powers. Thomas wrote that the Court's rationale would also require due process rights for bombing targets: "Because a decision to bomb a particular target might extinguish life interests, the plurality’s analysis seems to require notice to potential targets." Thomas also wrote that Congress intended that the AUMF authorized such detentions.

In effect, John Yoo's constitutional views received only one vote.

The DC District and Circuit have tried to make some sense of the this hash and the hash in later SCOTUS cases. Meanwhile, the USG (and the two major political parties) have created their own hash made up of variant combinations of the Laws of War and the Rule of Law.

Regards

Mike

[jmm99]

on the following general points:

from BW
First, all insurgents and terrorists are by definition outlaws, so they have their first sanctuary right there. One is not constrained by the law once they opt to live and act outside it.

Second, being "non-state" actors they are also outside the rules and tools designed for the control of proper state behavior. ....

Another critical component to sanctuary is the support of poorly governed populaces. ...

Next we need better laws for allowing short-notice, short-duration punitive raids to deal with critical nodes of networked terror organizations. ...

Now, if you could provide me some content - that is, what laws you propose.

I'm most interested in your 1st, 2nd and 4th points.

The third point seems difficult (to me); e.g., you say (emphasis added):

Understanding what aspect of governmental actions contribute most significantly to such perceptions and then crafting and enforcing laws aimed at the governments that create these conditions we nick away at their sanctuary even more.

Once upon a time, we did deal with those of "bad governance" (as we defined it) by "clever" and "devious" approaches, where perhaps 130 (or less) operatives were involved in a country (some even were lawyers). Those approaches made for bad press - the purges starting with Ramparts' exposé of the CIA ties to the National Student Association, labor organizations and academia in the later 1960s (links here).

So, today, we are much more "aboveboard" in dealing with "bad governance" (as we define it) and send 130K troops to rectify the situation.

Feel free to post some proposed laws - reduction of ideas to practice, clever and devious accepted.

Regards

Mike

[Boondoggle]

TBS was a summer of fun, but maybe they could crawl through the Quigley with me in February just for old times sake.

I struggle with how judges can approach the AUMF (which granted I probably haven't read in a few years now so my memory is quite groggy) and not think it authorizes the detention of both lawful and other combatants. Conducting war by different means is still just that, war. And the Scalia - Stevens pairing was certainly interesting.

Now as for following through on having a "neutral decisionmaker" not necessarily a judge, I'm sure we'll eventually see something... and that something will be run up the legal flagpole for review in short order, but the military justice system should be able to readily adapt to that. It actually makes sense, probably by carving someone out of the regular chain of command and giving them that job, the harder question would be who would be the appeal authority for that initial decision.

[stanleywinthrop]

http://www.longwarjournal.org/archiv...eda_senten.php

There's a lawfare lesson in there: Don't get caught doing anything that lends itself to a (fairly) straightforward criminal case. Here, Siddiqui picks up a rifle and shoots a soldier. If she doesn't do that, they either have to send her to Gitmo or try her based on her participation in various plots which brings all sorts of side effects that we've been trying to avoid (CIA, potential torture of witnesses, methods etc...) If I'm AQ I make it SOP that when I'm caught, take the fight to us through the courts, not with your hands.

And this is probably appropriate for this thread, been following for a few weeks, I might start commenting occasionally on their blog here since they're not taking comments (they're scared of the mud):

http://www.lawfareblog.com/

I see your point here and I agree from a metaphysical standpoint. However it seems that jihadists just don't do a good job of seeing that there are often better ways to fight your enemy than simply trying to kill them. Case in point- Maj. Hasan- he could have done far more damage to our cause in A-stan if he'd gone mole and deployed. No disrespect to our fallen in TX, but many more could have died in Hasan cued ambushes.