Ashcroft v. Iqbal; upcoming events; forthcoming scholarship

May 19, 2009

[note: some of you have inquired recently to ensure the list is running correctly, prompted by the low volume of recent posts.  Not to worry; the drop-off in volume just reflects some competing work obligations that will have an impact between now and late July.  From late July onward, things will be back to normal (if not sooner).]

1. Ashcroft v. Iqbal (S.Ct. May 18, 2009)

The Supreme Court yesterday held that a Bivens complaint (asserting civil causes of action against several government officials in connection with post-9/11 immigration enforcement measures) failed to satisfy the pleading standard set forth in Twombly.  En route to that holding, the court noted that Bivens liability in this context cannot be vicarious, but must instead be premised on the individual defendant’s personal unconstitutional conduct.  The case will be remanded to the Second Circuit for a determination as to whether the plaintiffs should be given leave to replead.

The opinion appears here.

2. Upcoming Events

“Scars of Intelligence Reform” (Breakfast presentation by Donald Kerr, sponsored by the ABA Standing Committee on Law and National Security) Tuesday June 9th, at 8 a.m.

Dear Colleague:

On Tuesday, June 9, 2009, Donald Kerr, former Principal Deputy Director of National Intelligence in the Office of the Director of National Intelligence, will address the Standing Committee on Law and National Security.  His topic is “Scars of Intelligence Reform.”

The breakfast will be held at the University Club, 1135 16th Street, NW in Washington and will begin at 8:00 am.

Dr. Kerr, currently a Research Professor at George Mason University, has a notable career in the Intelligence Community. Prior to serving as second in command in the office of the DNI, he served as Director of the National Reconnaissance Office, Deputy Director for Science and Technology at the CIA, Assistant to the Secretary of the Air Force for Intelligence Space Technology and Assistant Director of the FBI, responsible for the Laboratory Division and Director of the Los Alamos National Laboratory from 1979 to 1985.

The charge for this breakfast is $25.00.  Reservations must be made in advance.  Checks made payable to “ABA” may be enclosed with the response form attached [SEE ATTACHMENT] and returned by June 5. If you are bringing guests, please note their names on the form. In the event you need to cancel your reservation, a refund will be made provided notice of cancellation is received in our office by June 5.  There is no charge for members of the press.

We look forward to seeing you at our next breakfast program on Tuesday, June 9.

“Legal Aspects of the Fight Against Terrorism” (day one of a two day “Ivy to Olives Joint Academic Symposium” held at Ono Academic College in Israel (June 1, 2009)

Please see the attached flyer for the very interesting lineup of topics and speakers.

3. Forthcoming Scholarship

United States Detention Operations in Afghanistan and the Law of Armed Conflict

Matthew C. Waxman
Columbia Law School

Columbia Public Law Research Paper No. 09-202
Israel Yearbook on Human Rights, Vol. 39, 2009

Abstract:
Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the policy matter – in waging counterinsurgency warfare, how do foreign military forces transition military detention operations to effective civilian institutions? – has emerged as a critical strategic priority for which the law of armed conflict provides little instructive guidance.

After briefly outlining the basis of US and coalition detention operations, this article addresses each of these issues in turn. It concludes with some general observations about the convergence of law and strategy.

“Defining Armed Conflict”

Journal of Conflict Security Law, Vol. 13, pp. 393-400, Winter 2008
Notre Dame Legal Studies Paper No. 09-09

MARY ELLEN O’CONNELL, Notre Dame Law School

Email: MaryEllenOConnell@nd.edu

Within hours of the 9/11 attacks in the United States, President George W. Bush declared ?a global war on terrorism?. Experts around the world assumed this declaration was a rallying cry, a rhetorical device to galvanize the nation to serious action. By November 2001, however, the evidence began to mount that the President was ordering actions that could only be lawful in a de jure armed conflict: targeting to kill without warning, indefinite detention without trial, and search and seizure on the high seas without consent. It was difficult to criticize these actions on the basis of international law, however, given that international law contained no widely accepted definition of armed conflict. By May 2005, the International Law Association determined that there was a pressing need for a report on the meaning of armed conflict supported by international law. The Use of Force Committee presented its Initial Report on the Meaning of Armed Conflict in International Law at the Rio de Janeiro biennial meeting of the ILA. The Report concludes that all armed conflicts have as minimum two necessary characteristics: 1.) the presence of organized groups 2.) engaged in intense armed fighting. The Report indicates that while the United States has been engaged in an armed conflict in Afghanistan and in Iraq since 9/11, it has not been engaged in a global armed conflict. The Initial Report will be expanded for presentation in final form in 2010 at The Hague biennial meeting.

“Share and Share Alike: Intelligence Agencies, Information Sharing, and National Security”

George Washington Law Review, Forthcoming
George Mason Law & Economics Research Paper No. 09-24

NATHAN ALEXANDER SALES, George Mason University School of Law
Email: nsales1@gmu.edu

Why don’t intelligence agencies share information with each other? This article attempts to answer that perennially vexing question by consulting public choice theory as well as insights from other legal disciplines. It begins by surveying arguments for and against expanded sharing, examples of sharing failures, and recent reforms intended to encourage sharing. Next, the article considers why intelligence agencies see information sharing as a threat to the various values they maximize, such as influence over senior executive branch policymakers and autonomy to pursue agency priorities. It then proposes a series of analytical frameworks that enrich our understanding of why agencies resist sharing: At times data exchange resembles an intellectual property problem, sometimes it looks like an antitrust problem, and sometimes it looks like an organizational theory problem. Finally, the article examines whether the solutions suggested by these other disciplines can be adapted to the problems of information sharing.

Boumediene‘s Quiet Theory: Access to Courts and the Separation of Powers”

Notre Dame Law Review, Vol. 84, 2009
American University, WCL Research Paper No. 2009-08

STEPHEN I. VLADECK, American University – Washington College of Law
Email: svladeck@wcl.american.edu

At the core of Justice Kennedy’s majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy?s analysis – of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus – without understanding the significance of his separation-of-powers discussion. At least where habeas corpus is concerned, it seems clear from Boumediene that the purpose of judicial review, in Justice Kennedy’s view, appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants.

In this article, I take on this quiet theory behind Kennedy’s opinion and ask whether it might have applications beyond the unique context of habeas corpus, especially with regard to the more general constitutional right of access to the courts. As I argue, there is actually much to gain from re-conceptualizing access to courts as being as much about protecting the courts as it is about vindicating the individual rights of litigants, a theme largely reflected (although since forgotten) in the judicial decisions giving rise to modern access-to-courts jurisprudence. Thus, going forward, Boumediene might do more than just answer the circumstance-specific question about habeas corpus rights for non-citizens detained as enemy combatants; it might provide the starting point for a new theory of access to the federal courts in particular that could allow us to rethink a number of tenets of federal courts doctrine.

“The Problem of Jurisdictional Non-Precedent”

Tulsa Law Review, Vol. 44, 2009
American University, WCL Research Paper No. 2009-09

STEPHEN I. VLADECK, American University – Washington College of Law
Email: svladeck@wcl.american.edu

Most critiques of the Supreme Court’s June 2008 decision in Boumediene v. Bush (including Justice Scalia’s dissent in the same) have at their core the argument that Justice Kennedy’s majority opinion is inconsistent with prior precedent, specifically the Supreme Court’s 1950 decision in Johnson v. Eisentrager A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal in China. Put another way, it is hard to understand the scope of the rule that the Eisentrager majority thought it was enunciating, and therefore the extent to which it should have also applied in the Guantanamo cases.

This problem is not unique to Eisentrager, though. In the Court’s June 2008 decision in Munaf v. Geren, it also brushed aside a post-World War II precedent — the 1948 decision in Hirota v. MacArthur, again because it was not clear exactly which facts the earlier jurisdiction-precluding decision relied upon. As I explore in this essay — part of the Tulsa Law Review’s annual Supreme Court review — these decisions are emblematic of a judicial methodology that is no longer in vogue, thanks to the Supreme Court’s 1998 decision in Steel Co. v. Citizens for a Better Environment. After Steel Co., federal courts can no longer reach issues over which they lack jurisdiction, and so are far more careful to resolve jurisdictional questions at the outset, before moving on (where possible) to the merits.

But what effect does Steel Co. have on prior precedent, where the Court’s decision leaves unclear how much the merits actually mattered? As I explore in this essay, Steel Co. may itself compel that contemporary courts narrowly construe jurisdiction-precluding rules in cases like Eisentrager and Hirota, on the assumption that those courts would not have analyzed questions the answers to which could not have mattered. Reasonable people may disagree about whether Boumediene and Munaf were rightly decided, but the critical point for present purposes is that both were decided on jurisprudential clean slates.

“ASAT-Isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons”

Michigan Journal of International Law, Vol. 30, 2009
Georgetown University Law Center, Public Law and Legal Theory Research Paper No. 09-09

DAVID A. KOPLOW, Georgetown University – Law Center
Email: koplow@law.georgetown.edu

This article asserts the thesis that customary international law (CIL), even in the absence of any new treaty, already provides a legal regime constraining the testing and use in combat of anti-satellite (ASAT) weapons. This argument, if validated, is important for both legal and public policy considerations: the world (especially, but not only, the United States) has grown increasingly dependent upon satellites for the performance of a wide array of commercial and military functions. At the same time, because of this growing reliance (and hence vulnerability), interest has surged in developing novel systems for attacking a potential enemy’s satellites – ASAT technology has been tested by the United States, Russia, and China, and other countries may soon shoot up that same dangerous trajectory. Oddly, the United States has consistently opposed international efforts to negotiate an arms control solution to this problem. Any comprehensive treaty would certainly be difficult to reach (there are numerous complicated issues of definitions, scope, and verification to surmount) but the American stance (not only during the Bush Administration) has been that we should not even try, because “there is currently no arms race occurring in outer space.”

This article turns that resistance on its head, by asking whether customary international law, even without any formal treaty on point, already imposes meaningful constraints upon ASAT activities. To develop the argument, it analyzes three strands of CIL: first, “general” customary international law, which has long been recognized as an authoritative, albeit complex, source of binding rules; second, the specialized legal regime incorporated into the law of armed conflict, which imposes its own strictures, fully applicable to conventional warfare, but not yet applied extra-terrestrially; and finally, another realm of specialized CIL, the emerging jurisprudence governing international environmental law. My conclusion is that there is already a meaningful ASAT-control regime, created by CIL even without codification in a new treaty. This is not, to be sure, a fully comprehensive legal web, and there would still be plenty of additional scope for a new treaty to enhance and extend the legal regime. But the conclusion is that treaty negotiators would not be drafting on a complete tabula rasa; an incipient legal order is already in place.

“Constitutional Canaries and the Elusive Quest to Legitimize Security Detentions in Canada”

Case Western Reserve Journal of International Law, Vol. 40, pp. 531-560, 2009

MAUREEN T. DUFFY, McGill Centre for Human Rights and Legal Pluraliem
Email: maureen.duffy@mail.mcgill.ca
RENE PROVOST, McGill University – Faculty of Law
Email: rene.provost@mcgill.ca

Canada, like many other countries, has struggled with questions of how to prevent terrorist attacks without undermining human rights. One tool that gained prominence in recent years involves preventive detention under “security certificates.” This measure, undertaken through immigration legislation, applies to non-citizens found inadmissible for one of a number of reasons, including a suspicion that they endanger national security. Such detentions have ignited considerable controversy within Canada. In February 2007, the Supreme Court of Canada found the existing scheme unconstitutional. While the Court did not find the scheme to be discriminatory, in spite of its application only to non-citizens, it did find that the potential use of secret evidence contravened procedural fairness. Canada subsequently passed legislation, creating a special advocate system. This article argues that continued problems exist with these detentions, including questions of discrimination and concerns about the fairness of the new special advocate system.

“International Cooperation in Homeland Security”

U of Utah Legal Studies Paper No. 057-08-09

AMOS N. GUIORA, University of Utah – S.J. Quinney College of Law
Email: guioraa@law.utah.edu

Terrorism against the United States, post-9/11, reaches far beyond the U.S. borders. In order to effectively prevent and react to terrorism within the homeland, the U.S. must think of security internationally. International security efforts touch on key issues such as travel security, border control, immigration, intelligence, and financing terrorism. This article examines the U.S. effort at international cooperation in homeland security by examining security and threat assessment in order to analyze current developments and necessary progress moving forward. Further, this article explores comparative efforts at international cooperation in homeland security by examining Canada, Japan, and the E.U. in terms of security and threat assessment. Finally, this article offers recommendations and articulates criteria by which the U.S. can improve vital efforts at international cooperation in homeland security.

To ensure effective counterterrorism, the U.S. must follow a two step process. First, the U.S. must take measures to protect the homeland. Those measure include: promoting travel security by implementing sophisticated technology; promoting border security by securing the Northern border; implementing intelligence sharing between agencies; creating a coordinated plan to promote travel and border security; undergoing training and simulation, and finally; ensuring institutionalized continuity from one Administration to the next.

After taking action to protect the homeland, the U.S. must use these factors as a foundation on which to establish international cooperation. To establish effective international cooperation in homeland security, the U.S. must take measures including the following: forging international partnerships; sharing intelligence related to travel security; creating a coordinated international security plan; running international training and simulation exercises, and finally; implementing international institutionalized continuity.

“Anticipatory Self-Defence and International Law – A Re-Evaluation”

Journal of Conflict and Security Law, 2008
U of Utah Legal Studies Paper No. 057-08-10

AMOS N. GUIORA, University of Utah – S.J. Quinney College of Law
Email: guioraa@law.utah.edu

Traditional state v. state war is largely a relic. How then does a nation-state protect itself – preemptively – against the unseen enemy? Existing international law – the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 – do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based “strict-scrutiny” approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable, and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power o the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

Muge Kinacioglu, Department of International Relations, Bilkent, University, Turkey, wrote a response to my article titled, “A Response to Amos Guiora: Reassessing the Parameters of the Use of Force in the Age of Terrorism: Pre-emptive Action and International Law.” Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, also wrote a response titled, “A Response to Amos Guiora’s Article on Pre-Emptive Self-Defence Against Non-State Actors.”

“An Exchange on Law and Israel’s Gaza Campaign”

ABA National Security Law Report, Vol. 31, pp. 1-6, February 2009
U of Utah Legal Studies Paper No. 057-09-01

AMOS N. GUIORA, University of Utah – S.J. Quinney College of Law
Email: guioraa@law.utah.edu
DAVID LUBAN, Georgetown University – Law Center
Email: david.luban@gmail.com

This exchange on Operation Cast Lead – Israel’s December 2008-January 2009 campaign in the Gaza Strip – includes essays by Guiora and Luban, followed by Guiora’s response to Luban’s essay and Luban’s response to Guiora’s. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles. He also argues that the Hamas civil administration were not lawful targets under Israel’s own interpretation of the law of armed conflict. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted.

Attachments:


new FOIA guidelines; Al Shimari v. CACI; forthcoming scholarship (NSL)

March 19, 2009

1. New FOIA Guidelines Issued by DOJ (for all agencies)

The Justice Department has issued new guidelines, for all agencies to follow, with respect to FOIA requests.  The guidelines are posted here.  From the press release:

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

The Attorney General also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law. Under the previous defensibility standard of the rules rescinded today, the Department had said it would defend a denial if the agency had a “sound legal basis” for its decision to withhold.

In addition to establishing criteria governing the presumption of disclosure, the Attorney General’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests. In the memo, the Attorney General calls on each agency to be fully accountable for its administration of the FOIA.

The Attorney General’s memo also emphasizes that FOIA is the responsibility of everyone in each agency, and that in order to improve FOIA performance, agencies must address the key roles played by a broad range of personnel who work with each agency’s FOIA professionals. The memo highlights the key role played by agency Chief FOIA Officers who will now be reporting each year to the Department of Justice on their progress in improving FOIA administration. And, the Attorney General also directs FOIA professionals to work cooperatively with FOIA requesters and to anticipate interest in records before requests are made and to make requested records available promptly.

The Office of Information Policy will conduct training and provide guidance on the new FOIA guidelines to executive branch departments and agencies, as well as to interested groups, in order to maintain a comprehensive approach to greater government transparency.

Today’s memo rescinds the guidelines issued on Oct. 12, 2001, by former Attorney General John Ashcroft.

2. Al Shimari v. CACI (E.D. Va. Mar. 18, 2009)

The plaintiffs in this suit are four Iraqi citizens suing CACI on the ground that contract interrogators employed by CACI abused them at Abu Ghraib.  In this lengthy decision, which is attached as a pdf, the district court grants CACI’s motion to dismiss as to the plaintiffs’ Alien Tort Statute claims.  But it rejects the motion in all other respects (though it did not foreclose the possibility of an immunity finding at a later date, after discovery).

3. Forthcoming Scholarship (NSL)

Administrative Detention of Terrorists: Why Detain, and Detain Whom?”

Matthew C. Waxman (Columbia Law)

From the introduction:

A debate rages in the halls of universities as well as in Congress and national security agencies about whether the United States should enact new “administrative” or “preventive” detention laws – laws that would authorize the detention of suspected terrorists outside the normal criminal justice system.1 Advocates argue that criminal law alone is inadequate to combat transnational terrorist networks spanning continents and waging violence at a level of intensity and sophistication previously achievable only by powerful states, but that the law of war is inadequate to protect liberty.2 Jack Goldsmith and Neal Katyal, for example, call on “Congress to establish a comprehensive system of preventive detention that is overseen by a national security court.”3 Critics warn that new administrative detention laws will undermine liberty, and they assert that criminal law already provides the government with ample tools to arrest,

charge, and prosecute suspected terrorists.4 Center for Constitutional Rights President Michael Ratner writes that preventive detention “cuts the heart out of any concept of human liberty.”5

This debate has only intensified since the Supreme Court held last Term in Boumediene v. Bush that prisoners at Guantánamo have a constitutional right to habeas corpus review of their detention.6 The Court expressly left unresolved important substantive questions such as the scope of the Executive’s power to detain,7 and delegated to lower courts resolution of

the procedural issues likely to arise in hundreds of resulting habeas petitions.8 Administrative detention proponents argue that these openings invite Congress to enact legislation to clarify the uncertainties, recognizing that the modern-day terrorist threat necessitates new legal tools.9 Critics draw the opposite lesson from Boumediene. A week after the decision came down, the bipartisan Constitution Project published a report condemning administrative detention proposals, arguing that Boumediene “illustrates [that] existing Article III courts are fully capable of adjudicating issues regarding the legality of detention. There is no need to create a specialized tribunal either for Guantanamo detainees or for anyone else who may be subject to detention under existing law.”10

This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural

and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty and security, but their resolution should precede analysis of the procedural

issues. The soundness of any specific procedural architecture depends heavily on its purpose and on the substantive determinations it is expected to make.

To some, the answers to the why and whom questions may seem obvious – to prevent terrorism we should detain terrorists. With those basic ideas apparently settled, the administrative detention debate tends to jump quickly to the question of how to detain: What procedural protections should we afford suspects? What rights should they have to challenge

evidence proffered against them – and with what kind of lawyer assistance? What kinds of officials should adjudicate cases?11

The answers to why and whom are more complex and consequential than they may seem at first glance. There are several different ways in which detention can help prevent terrorism, including incapacitating terrorists, disrupting specific plots, deterring potential terrorists, and gathering information through interrogation. The choice of which among these preventive objectives to emphasize will, in turn, drive the way the class of individuals subject to detention is defined, with major implications for both liberty and security. The way we answer the why and whom questions will then significantly determine the procedural architectural needs of any new administrative detention regime. This article therefore cautions against jumping too quickly in administrative detention discussions to the issue of procedural design, or the how questions.

Part I of this article briefly explores the Bush administration’s approach to the why and whom questions, in particular its reliance on a theory of “enemy combatants,” and the logic behind calls to reform it through administrative detention legislation. Part II examines various strategic objectives behind administrative detention proposals, and Parts III and IV then explain how those objectives translate into different definitions of the class subject to proposed detention laws. Part V returns to the procedural issues and shows how new administrative detention processes – or perhaps even special national security courts – would likely look very different depending on the strategic choices underlying them. Rather than coming down for or against new administrative detention law, this article identifies the approaches that stand the best chance of successfully protecting security and liberty, as well as questions that should guide further consideration and refinement of the policies.

Homeland Security, Information Policy, and the Transatlantic Alliance

Stewart A. Baker
Steptoe & Johnson LLP

Nathan Alexander Sales
George Mason University School of Law

Abstract:

This short essay uses a recent case study – the controversy surrounding the U.S. Department of Homeland Security’s access to European airline reservation data – as a vehicle for exploring the European Union’s new enthusiasm for projecting its data-privacy values globally. We begin by discussing how DHS uses passenger name records, or “PNR,” to detect potential terrorist operatives. We then examine the legal authorities under which passenger data is collected and used, including domestic constitutional and statutory norms as well as principles of international law. Next, the essay discusses the hostile response of some EU policymakers to DHS’s use of reservation data, and offers possible explanations for their efforts to apply European data-privacy principles to American national-security initiatives. Finally, we propose solutions to transatlantic conflicts that will help preserve both individual privacy and national autonomy.

And from the intro, which I just couldn’t resist reprinting:

It’s June 14, 2003 at Chicago’s O’Hare international airport. The U.S.-led war to topple Saddam Hussein’s Ba’athist regime in Iraq was launched a little less than three months ago. Resurgent fears of terrorism have kept some would-be passengers from the skies, but O’Hare is still operating at a fairly brisk pace.

A Jordanian man named Ra’ed al-Banna is among the throng of passengers who have just arrived on KLM flight 611 from Amsterdam. After waiting in line, al-Banna presents his passport to U.S. Customs and Border Protection officers.

The CBP officers consult the computerized targeting system used to screen passengers who seek to enter the U.S. The information about al-Banna – drawn from his airline reservations and past travel – triggers a closer look. The officers examine al-Banna’s documents, and they begin asking him questions.

Something doesn’t add up. Al-Banna has a legitimate Jordanian passport; he holds a valid visa that allows him to work in the United States; and he had visited the U.S. before for a lengthy stay. But the officers aren’t satisfied that he’s being completely truthful with his answers, so they decide to refuse him admission. Al-Banna’s fingerprints are taken, and he is put on a plane back to Jordan.

So far it sounds like a fairly routine day at the border. And it was, until events in Iraq nearly two years later gave it a new, and sinister, significance.

On February 28, 2005, at about 8:30 in the morning, several hundred police recruits were lined up outside a clinic in Hilla, a city in the south of Iraq. With no warning, a car drove into the crowd and detonated a massive bomb. 132 people were killed, and about as many were wounded. At the time, it was the deadliest suicide bombing Iraq had seen.

The driver was Ra’ed al-Banna. We know that because when authorities found the steering wheel of his car, his forearm was still chained to it.

No one knows why al-Banna wanted to be in the U.S. in 2003, or what he would have done if he had gotten in. But we do know what kept him out – the government’s ability to quickly marshal the data that first triggered a closer look, and that the CBP officer later used to question al-Banna closely and to conclude that his answers weren’t satisfactory.

At the center of that system was airline reservation data, known as Passenger Name Records or “PNR.”

The Why and How of Preventive Detention in the War on Terror

Stephanie Cooper Blum

Department of Defense, Navy, Naval Postgraduate School ; Department of Homeland Security
Thomas Cooley Law Review, Summer 2009

Abstract:

After September 11, 2001, the Bush Administration decided to detain certain individuals suspected of being members or agents of al Qaeda or the Taliban as enemy combatants and hold them indefinitely and incommunicado for the duration of the war on terror. The rationale behind this system of preventive detention was to incapacitate suspected terrorists, facilitate interrogation, and hold them when traditional criminal charges were not feasible for a variety of reasons. While the rationale for preventive detention is legitimate and the need for preventive detention real, the Bush Administration’s approach was reactionary, illogical, and probably unconstitutional. This article explores the underlying rationales for preventive detention as a tool in this war on terror and analyzes the legal obstacles to creating a preventive-detention regime. In the end, it offers some overarching principles that could be used by Congress or President Obama’s newly-created Special Inter-Agency Task Force to enact a comprehensive preventive-detention regime for U.S persons and foreign nationals. While establishing a lawful preventive-detention regime for terrorist suspects is challenging, there appears to be room for enacting such a regime if Congress sets forth explicit legislation allowing for preventive detention and the suspects are provided a meaningful opportunity to challenge the underlying evidence.

Attachments: CACI


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