1. Khalid Abdullah Mishal Al Mutairi v. United States (D.D.C. July 29, 2009) (opinion explaining decision to grant habeas to GTMO detainee)
Back on July 29th, Judge Kollar-Kotelly granted Al Mutairi’s habeas petition. The underlying opinion was not released at the time, but now is available. It is posted here. Key points include:
On the admissibility of hearsay: “The Court finds that allowing the use of hearsay by both parties balances the need to prevent the substantial diversion of military and intelligence resources during a time of hostilities, while at the same providing Al Mutairi with a meaningful opportunity to contest the basis of his detention. The Court is fully capable of considering whether a piece of evidence (whether hearsay or not) is reliable, and it shall make such determinations in the context of the evidence and arguments presented during the Merits Hearing -including any arguments the parties have made concerning the unreliability of hearsay evidence.” (slip op. at 4)
On the government’s request for a presumption that its evidence is both accurate and authentic: “the Government argues that a presumption as to its evidence is both appropriate and necessary. The Court disagrees. One of the central functions of the Court in this case is “to evaluate the raw evidence” proffered by the Government and to determine whether it is “sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of clarity.” Parhat, 532 F.3d at 847. Simply assuming the Government’s evidence is accurate and authentic does not aid that inquiry. Cf Ahmed v. Obama, 613 F. Supp. 2d 51, 55 (D.D.C. 2009) (rejecting a presumption of accuracy for the Government’s evidence and holding that ”the accuracy of much of the factual material contained in [the Government's] exhibits is hotly contested for a host of different reasons …”).” (slip op. at 5)
On the substantive scope of the government’s detention authority: The Court agrees that the President has the authority to detain individuals who are “part of’ the Taliban, al Qaeda, or associated enemy forces, but rejects the Government’s definition insofar as it asserts the authority to detain individuals who only “substantially supported” enemy forces or who have “directly supported hostilities “in aid of enemy forces. While evidence of such support is undoubtedly probative of whether an individual is part of an enemy force, it may not by itself provide the grounds for detention. Accord Mattan, 2009 U.S. Dist. LEXIS 43286 at *13-*15. Accordingly, the Court shall consider whether AI Mutairi is lawfully detained in the context of the following standard:
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of the Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act in aid of such enemy armed forces.” (slip op. at 8)
On the credibility of Al Mutairi’s version of events (i.e., that he traveled from Kuwait to Afghanistan after 9/11 to build a mosque): “Based on these identified inconsistences, implausibilities, and in some respects, impossibilities, the Court does not credit Al Mutairi’s version of events that occurred while he was in Afghanistan.” (slip op. at 15-16)
On the significance of the Court’s decision to reject Al Mutairi’s account: “Notwithstanding the Court’s conclusions with respect to Al Mutairi’s version of events, the Court’s inquiry is far from complete. Because Al Mutairi has no burden to prove his innocence, the Court must now assess the Government’s evidence to determine whether it has demonstrated by a preponderance of the evidence that during the time for which Al Mutairi cannot account, he trained with or became a part of al Wafa (according to the Government, an associated force of al Qaida), or al Qaida itself.” (slip op. at 16)
On the credibility of the government’s evidence: This portion of the opinion is redacted in significant part, but is still worth reading if you want a sense of how Judge Kollar-Kotelly parsed the evidence. She summarized her assessment as follows: “In summary, the Court has credited the Government’s evidence that (1) Al Mutairi’s path of travel into Afghanistan was consistent with the route used by al Wafa to smuggle individuals into Afghanistan to engage in jihad; (2) that Al Mutairi’s travel from Kabul to a village near Khowst was consistent (in time and place) with the route of Taliban and al Qaida fighters fleeing toward the Tora Bora mountains along the Afghanistan-Pakistan border, and (3) Al Mutairi’s non-possession of his passport is consistent with an individual who has undergone al Qaida’s standard operating procedures that require trainees to surrender their passports prior to beginning their training. The Court has also found minimally probative on this record the appearance of Al Mutairi’s name and reference to his passport. Taking this evidence as a whole, the Government has at best shown that some of Al Mutairi’s conduct is consistent with persons who may have become a part of al Wafa or al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become a part of one or more of those organizations, where he would have done so, and with which organization. While Al Mutairi’s described peregrinations within Afghanistan lack credibility, the Government has not filled in these blanks nor supplanted Al Mutairi’s version of his travels and activities with sufficiently credible and reliable evidence to meet its burden by a preponderance of the evidence. Accordingly, the Court shall grant Al Mutairi’s petition for habeas corpus.”
2. Forthcoming scholarship
The National Strategy Forum Review, “Strategic Challenges Near and Far” (August 2009)
NSFR is a terrific publication, one that should be more widely read. The most recent issue is posted as a pdf here, and its contents are as follows:
August 2009 Publisher’s Note
The United States and Mexico: Mutual Problems, Joint Solutions The following five essays discuss many of the challenges that the United States and Mexico face in coordinating effective border policies. The goal is to elucidate the many areas where more cooperation and tighter joint strategies are needed by both countries to achieve their national goals.
Reasons of State that Sustain Mexico’s Strategy Against Organized Crime
The Mexico-United States Border: A Fragmented Agenda
Luis Herrera-Lasso M.
The Mérida Initiative: A New Security Cooperation Partnership
David T. Johnson
Iñigo Guevara Moyano
Mexico’s Polity and Economy: Security vs. Progress and Our Failed Integration
José Luis Valdés-Ugalde
American Foreign Policy Toward Pakistan
Frank Schell, Richard E. Friedman, and Lauren Bean
Regions at a Glance:
War in Afghanistan: Achieving a Successful Civilian Surge
NSF Insider Views:
Richard E. Friedman
The Iranian and North Korean Nuclear Programs and International Law
John Allen Williams
Ilan Berman and Winning the Long War
Eric S. Morse
“Jurors Believe Interrogation Tactics are Not Likely to Elicit False Confessions: Will Expert Witness Testimony Inform Them Otherwise?”
Psychology, Crime & Law, 2009
IRIS BLANDON-GITLIN, affiliation not provided to SSRN
KATHRYN SPERRY, affiliation not provided to SSRN
RICHARD A. LEO, University of San Francisco – School of Law
Situational factors – in the form of interrogation tactics – have been reported to unduly influence innocent suspects to confess. This study assessed jurors’ perceptions of these factors and tested whether expert witness testimony on confessions informs jury decision-making. In Study 1, jurors rated interrogation tactics on their level of coerciveness and likelihood that each would elicit true and false confessions. Most jurors perceived interrogation tactics to be coercive and likely to elicit confessions from guilty, but not from innocent suspects. This result motivated Study 2 in which an actual case involving a disputed confession was used to assess the influence of expert testimony on jurors’ perceptions and evaluations of interrogations and confession evidence. The results revealed an important influence of expert testimony on mock-jurors decisions.
“Human Rights and Military Decisions: Counterinsurgency and Trends in the Law of International Armed Conflict”
University of Pennsylvania Journal of International Law, Vol. 30, p. 1367, 2008-09
UNLV William S. Boyd School of Law Legal Studies Research Paper No. 09-13
DAN E. STIGALL, U.S. Army JAG Corps
CHRISTOPHER L. BLAKESLEY, William S. Boyd School of Law, UNLV
CHRIS JENKS, Government of the United States of America – Judge Advocate General’s Corps
The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that – given the nature of contemporary conflict, it is no longer possible to address one body of law without also dealing with the other. This has been the most dramatic trend for LOIAC in the last decade. It will doubtlessly continue.
This article briefly addresses this interesting and important phenomenon in the context of the history of LOIAC and modern warfare, which has changed from large-scale clashes of the military might of sovereign states to conflict characterized by long-term guerilla and asymmetric warfare, concomitant counterinsurgency, and stability operations. The nature of contemporary stability operations and counterinsurgency has broadened the scope of military operations so that commanders must now engage in a range of activities not traditionally considered combat-related. Associated with this expanded range of military responsibility is an expanded range of legal responsibility. Hence, we arrive at the necessity and value of human rights law. We briefly identify the general implications of the legal trend and illuminate some notable aspects of the legal landscape that loom before military commanders and their advisors.
The issue of where, when, and how human rights protections apply is essential to understanding their functionality. The treatment of detainees is a prime example of the expanded range of legal responsibility that implicates human rights law. Thus, our discussion of jurisdiction includes analysis of variations among some countries and various regional and international organizations, which differ in their positions on the proper extraterritorial application or jurisdictional scope of their own and international human rights norms. This includes analysis of recent interesting decisions from the British House of Lords and the European Court of Human Rights. Finally, we discuss the Copenhagen Process, which began with the first Copenhagen Conference held in October 2007. The Copenhagen Process is an effort to establish a common platform for the handling of detainees which illustrates how intertwined strands of international human rights law and LOIAC have become. It may also represent a way, if not to cut the Gordian knot, then to move past it with a better recognition of how both legal strands will influence future military operations.
Adil Ahmad Haque
Rutgers, The State University of New Jersey – School of Law-Newark
There is a gap between the international humanitarian law of Geneva and the international criminal law of Rome, a gap between the law we have and the law we need if we are to “ensure respect for and protection of the civilian population” caught in the midst of armed conflict. The Rome Statute fails to faithfully translate the prescriptive, action-guiding rules of humanitarian law into a correspondingly robust set of evaluative, judgment-guiding rules suitable for criminal adjudication. The result is a document that is not only substantively incomplete but morally incoherent as well. The purpose of this article is to expose these defects and propose a way to overcome them. Drawing on contemporary criminal law theory, it offers a new approach to war crimes against civilians, one that better protects and respects the value of civilian life.
The Rome Statute is substantively incomplete in the sense that it fails to enforce core principles of humanitarian law designed to protect civilians. As a result, it is possible for a combatant to kill civilians with a culpable mental state, without justification or excuse, and in violation of humanitarian law, yet escape criminal liability under the Rome Statute. The Rome Statute is morally incoherent in the sense that the legal definitions of the relevant war crimes ignore or misapply fundamental criminal law categories—conduct offenses and result offenses, material and mental elements, offenses and defenses—and inadvertently sever the relevant prohibitions from the humanitarian values that should provide their moral foundation. This article proposes a redefined offense of Willful Killing that fully incorporates the principles of distinction and discrimination as well as a new affirmative defense that fully incorporates the principles of necessity and proportionality. Only by adopting such an approach can international criminal law provide civilians their full measure of legal protection and moral recognition.
“Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite the Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work”
UCLA School of Law, Law & Economics Research Paper No. 09-12
MAXIMO LANGER, University of California, Los Angeles – School of Law
JOSEPH W. DOHERTY, University of California, Los Angeles – School of Law
This article analyzes whether managerial judging reforms that were introduced to expedite procedure at the International Criminal Tribunal for the former Yugoslavia (ICTY) achieved their goal. Using survival analysis – Weibull regression – the paper tests the hypothesis that the higher the number of reforms a case was subjected to, the shorter the pretrial and trial phase of that case should be. Our six models for pretrial and trial reveal that in all pretrial and trial models the number of reforms is significantly correlated with longer pretrial and trial. The article explains that reforms made process longer rather than shorter because ICTY judges did not use their managerial powers or used them deficiently, and prosecution and defense managed to neutralize the implementation of the reforms. To explain judges’ behavior, the paper articulates an unnoticed challenge for managerial judging – the court is likely to have limited information about the case that may lead judges to restrict use of their managerial powers to avoid making inefficient decisions. In addition, ICTY did not have an implementation plan to encourage judges to change their behavior. The paper also explains the incentives that prosecution and defense had to neutralize the reforms.
“Child Soldiers: Agency, Enlistment, and the Collectivization of Innocence”
Washington & Lee Legal Studies Paper No. 2009-7
MARK A. DRUMBL, Washington and Lee University School of Law
This Paper reviews how international criminal law proscribes the conscription, enlistment, or use of children in armed conflict. This legal regime then is contrasted with the social reality of child soldiering, in particular as revealed by ethnographic research from Sierra Leone, the DRC, and northern Uganda regarding how children end up in armed conflict and what they do during conflict. Field research suggests that children exercise greater agency in enlisting in armies, fighting forces, and militias than international criminal law assumes; what is more, field research also suggests that, despite the existence of staggeringly coercive pressures, some children may exercise greater authorship over the violence they commit than international lawyers and human rights workers assume. An individual can be both a victimizer and a victim at the same time – a reality with which international criminal law remains queasy.
Assessing the agency of child soldiers is a difficult task that requires great sensitivity, care, and nuance. It is considerably easier to prejudge ex ante that they have no responsibility than to examine ex post why, exactly, they join militias and then why, exactly, some among them commit terrible crimes. International criminal law, however, ought to be the subject of objective study and dispassionate inquiry. The soothing path that assuages collective sensibilities is not necessarily the best path to protect children from endemic violence, to safeguard and heal post conflict societies, or to promote the best interests of those children who commit international crimes. International criminal lawyers should encourage, instead of gloss over, the hard work and discomforting questions that should be addressed in order to reintegrate children who perpetrate grievous atrocity in a salutary, viable manner that dissuades their recidivism, ostracism, and marginalization. Atrocity trials for children are not a solution; neither, however, is an absence of any accountability mechanism.