DoD report on GTMO compliance with CA3; Richmond Law Review symposium on detention policy; forthcoming scholarship

February 24, 2009

1. Review Of Department Compliance With President’s Executive Order On Detainee Conditions Of Confinement (02/23/2009)

2. U. Richmond Law Review symposium: Detaining Suspected Terrorists: Past, Present and Future” (April 2, 2009)

In March 2009, the Richmond Law Review will publish its Allen Chair Symposium Issue (Vol. 43, No. 3).  The topic for this year’s symposium is “Detaining Suspected Terrorists: Legal Challenges of the Past, Present, and Future.” To order a copy of the March 2009 issue, please fill out the Subscription Form.

In conjunction with the publication of the 2009 Allen Chair issue, the University of Richmond Law Review will host its Allen Chair Symposium on April 2, 2009.  The symposium will consist of separate panels addressing various aspects of detainee rights and reflections on the future of American law and policy.  The symposium will be held at the Jepson Alumni Center at the University of Richmond, and is free of charge.

The symposium will run from 4-7 p.m., with a reception to follow.  Participants include: Professor Nathan Sales (George Mason University School of Law), Professor Stephen Vladeck (American University Washington College of Law), Professor Benjamin Priester (Florida Coastal University School of Law), Professor Kyndra Rotunda (Chapman University School of Law), Professor Kristine Huskey (University of Texas School of Law), Professor Gregory McNeal (Penn State University Dickinson School of Law), and Tung Yin (University of Iowa College of Law).

3. Forthcoming Scholarship

“The Central Intelligence Agency’s ‘Family Jewels’: Legal Then? Legal Now?”

Indiana Law Journal, Vol. 84, p. 637, 2009

DANIEL L. PINES, Central Intelligence Agency

Congress and the media recently have claimed that various activities of the Central Intelligence Agency (CIA) – from rendition operations, to the destruction of videotapes, to the maintenance of secret detention facilities overseas – are illegal. Critics levied similar charges against the CIA thirty-five years ago, with regard to activities contained in the “Family Jewels” – the 1973 compilation of the CIA’s darkest secrets. The recent release of the Family Jewels provides the opportunity to try to put today’s concerns in perspective. This Article evaluates the key activities conducted by the CIA as described in the Family Jewels – experimentation on unconsenting individuals, attempted targeted killings of foreign leaders, electronic surveillance of Americans, examination of U.S. mail, and collection of information on American dissident movements. Contrary to widely held beliefs both then and now, all but one of these activities (experimentation on unconsenting individuals) were legal when they were committed, suggesting that other allegedly “illegal” activities, engaged in by the CIA now, may similarly prove to be lawful.

“The War Powers Resolution, Once Again”

American Journal of International Law, January 2009

MICHAEL J. GLENNON, Tufts University – The Fletcher School

On July 8, 2008, the “National War Powers Commission” issued a report recommending repeal of the 1973 War Powers Resolution and enactment of a new law. The new law would put in place a consultation requirement applicable to significant armed conflicts, set up a new joint congressional committee for the President to consult, and establish a procedure aimed at requiring congressional approval or disapproval of such conflicts. The members of the Miller Center panel are owed a debt of gratitude for helping to focus public attention on these problems and adding to the impetus for reform. The panel’s proposals, however, present an illusory solution to a non-problem. The problem is not, as its report suggests, that Congress sometimes is silent in the wake of significant but unauthorized use of force by the President. The problem, rather, is that force sometimes is used by the President without congressional or constitutional authority. The solution to this problem is not, as its proposal recommends, to try to force Congress to approve or disapprove that use of force after the fact, or to force the President merely to consult with a few members of Congress beforehand. Congress has no obligation to say anything when faced with a presidential fait accompli that violates the Constitution; it often would be good if it did, but that is, at least partially, the job of the courts. Seeking a few congressional opinions does not fulfill the constitutional requirement of prior legislative authorization. The report is correct that Congress needs to address the Resolution’s flaws. The real question is whether Congress truly wants to force its inclusion in the decision to go to war. If it does, the constitutional means are available to do that.

Amidax Trading v. S.W.I.F.T.; forthcoming scholarship

February 19, 2009

Judge Castel has granted a motion to dismiss a would-be class action directed against SWIFT (a consortium in the business of facilitating international banking transfers), the Treasury Department, CIA, and other defendants, arising out of reports that the U.S. government obtained data from SWIFT as part of its post-9/11 counterterrorism efforts.  The core of the analysis follows:

In sum, in a newspaper article based on discussions with “[n]early 20 current and former government officials and industry executives,” there is one unnamed person quoted as saying that the government initially got “the entire Swift database.” (Id.) Every other person quoted explains that there was a limit to the amount of information provided by SWIFT and there were controls and restrictions constraining the ability of government officials to search through the data provided. Of course, plaintiff need not establish that the government obtained access to the entire SWIFT database. To establish an injury in fact–and thus, a personal stake in this litigation–plaintiff need only establish that its information was obtained by the government. See Sierra Club, 405 U.S. at 734-35 (“the ‘injury in fact’ test requires … that the party seeking review be himself among the injured”). However, plaintiff has not made any showing that the government is now, or ever was, in possession of its financial information. See Am. Civil Liberties Union v. Nat’l Sec. Agency, 493 F.3d 644, 677 (6th Cir.2007) (explaining that because “plaintiffs do not, and cannot, assert that any of their own communications have ever been intercepted” plaintiffs lack standing to challenge the National Security Agency’s Terrorist Surveillance Program on Fourth Amendment grounds) (footnote omitted).

Plaintiff’s complaint does not allege a concrete and particularized injury. It is premised upon conjecture and requires the kind of speculation that the Supreme Court has prohibited. It would be purely “hypothetical” to surmise that plaintiff’s financial information was among the tens of thousands (or perhaps hundreds of thousands) of SWIFT transactions obtained or reviewed by the government; and it would be entirely “conjectural” to suppose that an anonymous source quoted in one paragraph of an article is more reliable or accurate than any other source quoted elsewhere in the article. See Lujan, 504 U.S. at 560-61. Read in its entirety, the complaint is a patchwork of guesses and contradictions. Thus, plaintiff has failed to adequately allege an injury in fact, and, therefore, the Court need not consider whether the remaining standing requirements of causation and redressability have been met.

The Court acknowledges that defendants’ potential invocation of the state secrets privilege, (see Federal Def.’s Mem. at 35 n. 15), raises the possibility that neither plaintiff nor anyone else will ever be able to establish that its data was obtained by the government from SWIFT. However, as the Second Circuit has noted, “perhaps no one could ever have standing to raise this issue. But such is irrelevant for determining whether the ‘case’ or ‘controversy’ requirement has been satisfied.” In re United States Catholic Conference (Abortion Rights Mobilization Inc. v. Baker), 885 F.2d 1020, 1031 (2d Cir.1989), cert. denied, 495 U.S. 918 (1990). “The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing,” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974), because that “view would convert standing into a requirement that must be observed only when satisfied.” Valley Forge, 454 U.S. at 489. Indeed, the Second Circuit has explained that “the lack of a plaintiff to litigate an issue may suggest that the matter is more appropriately dealt with by Congress and the political process.” Catholic Conference, 885 F.2d at 1031. Because plaintiff lacks standing, this action must be dismissed for lack of subject matter jurisdiction. [FN5]

2. Forthcoming scholarship

“Law Enforcement and Intelligence Gathering in Muslim and Immigrant Communities After 9/11”

U. of Pittsburgh Legal Studies Research Paper No. 2009-03

DAVID A. HARRIS, University of Pittsburgh – School of Law

Since the attacks of September 11, 2001, law enforcement agencies have actively sought partnerships with Muslim communities in the U.S. Consistent with community-based policing, these partnerships are designed to persuade members of these communities to share information about possible extremist activity. These cooperative efforts have borne fruit, resulting in important anti-terrorism prosecutions. But during the past several years, law enforcement has begun to use another tactic simultaneously: the FBI and some police departments have placed informants in mosques and other religious institutions to gather intelligence. The government justifies this by asserting that it must take a pro-active stance in order to prevent attacks by terrorists from outside the U.S., and by so-called homegrown cells from within. The problem is that when the use of informants in a mosque becomes known in a Muslim community, people within that community – the same people that law enforcement has so assiduously courted as partners against extremism – feel betrayed. This directly and deeply undermines efforts to build partnerships, and the ability to gather intelligence that might flow from those relationships is compromised or lost entirely.

As it stands, the law – whether in the form of Fourth Amendment doctrine, defenses in substantive criminal law, or cases and statutes supporting lawsuits against government surveillance – offers little help in resolving this dilemma. Further, change in either statutes or Supreme Court doctrine that might help address the problem seems vanishingly unlikely. Locally negotiated agreements on the use of informants represent the best alternative route toward both security against terrorists and keeping Muslim communities inclined to assist in anti-terrorism efforts. In these agreements, law enforcement might agree to limit some of its considerable power to use informants, in exchange for the continued cooperation of the community. The article discusses how such agreements might be reached, what they might strive to do substantively, and also addresses the problems they would encounter.

“Security Council’s Targeted Sanctions Against Presumed Terrorists: The Need to Comply with Human Rights Standards”

Journal of International Criminal Justice, Vol. 6, Issue 3, pp. 541-555, 2008

MICHAEL BOTHE, affiliation not provided to SSRN

A serious lacuna in international relations is the absence of a possibility for individuals to challenge decisions of international organizations. However, the right to legal remedy is a fundamental human right, and it is generally recognized that human rights bind international organizations. Thus, the question is raised as to what reforms the Security Council procedure requires in light of targeted sanctions, i.e. the placing of individuals on a list of measures to be implemented by states or the EU/EC. The author argues that there should be due process standards for listing decisions themselves as well as an effective remedy against such decisions. The inspection panels installed by the World Bank are presented as an example that meets such standards and could inspire a review procedure for Security Council actions affecting individuals by targeted actions. Finally, it is contended that, despite the possible critique, it is not only a matter of expediency but a legal duty to render UN listing and de-listing procedures consistent with due process requirements.

War About Terror: Civil Liberties and National Security After 9/11

Council on Foreign Relations

Daniel B. Prieto

This working paper, authored by Daniel B. Prieto, adjunct senior fellow for counterterrorism and national security, addresses the issue of how to maintain America’s longstanding democratic traditions while protecting it from real and serious threats. Based on an assessment of executive authority, legislative activity and oversight, and judicial review, the paper argues that counterterrorism policies will be sustainable over the long term only if policymakers design them with the coequal objectives of improving national security and protecting civil liberties. On this basis, it offers findings and recommendations on U.S. detention and interrogation policy, and the domestic intelligence activities of the United States.

“Fighting Terrorism in the Political Arena the Banning of Political Parties”

Party Politics, Vol. 14, No. 6, pp. 91-108, 2008

SUZIE NAVOT NAVOT, College of Management – Law School

In recent years, Western democracies have attempted to outlaw political parties alleged to be ‘non-democratic’. Provisions in post-World War II constitutions were mainly enacted to exclude Nazi and Fascist parties from participating in the elections. Lately, the banning of political parties has spread to radical and religious parties. Recent debates in Spain, Germany, Turkey and Israel provide some examples of this. This article deals with the legal framework for the disqualification of political parties in Israel, focusing on the new anti-terrorist amendment, which allows for banning lists and individual candidates who support terrorist acts and the use of violence. The new grounds for banning parties are also discussed in a comparative perspective, vis-a-vis the new Spanish law of 2002. The article reveals the dilemmas of Israel, a ‘defensive’ democracy, in its attempt to deal with support for terrorism by outlawing political parties.

“National Security and Expulsion to a Risk of Torture”

Edinburgh Law Review, Vol. 12, No. 3, pp. 486-490, September 2008

JERNEJ LETNAR CERNIC, University of Aberdeen – School of Law

In Saadi v Italy, the European Court of Human Rights held that article 3 of the European Convention on Human Rights prohibits expulsion of individuals to states where they would face a “real risk” of torture, inhuman or degrading treatment. This article analyses the ECHR’s reasoning.

“Bank Liability Under the Anti-Terrorism Act: Dispelling the ‘Routine Banking Services’ Defense in Material Support Cases”

STEPHEN I. LANDMAN, Catholic University of America – Columbus School of Law

This article evaluates civil liability for financial institutions that provide material support to terrorist organizations. Part I of this article analyzes the development of the ATA and related legislation proscribing material support to terrorist groups, highlighting the evolving statutory construction by looking to the body of case law surrounding lawsuits against the terrorist support network. Part II examines the issue of terrorist financing generally, taking into consideration the challenges facing financial institutions. Finally, Part III analyzes the term “financial services” in the context of material support prohibitions, referencing the ongoing litigation against financial institutions under the ATA. Using the lawsuit filed on behalf of Daniel Pearl as a case study, this article concludes that a broad interpretation of the statute is not only in line with the legislative intent of the ATA, but is also the only way in which it can be effective in halting terrorist financing.

Al-Adahi v. Obama; Gherebi v. Obama; forthcoming scholarship

February 13, 2009

1. Al-Adahi v. Obama (D.D.C. Feb. 12, 2009) (Kessler, J.)

Judge Kessler has issued an opinion concluding that the government’s “search” obligation when it comes to identifying and disclosing potentially relevant information runs to information reviewed in connection with any GTMO habeas factual return (not just the return for a particular detainee), but that the obligation to does not run more generally.  See the opinion and accompanying case management order.

2. Gherebi v. Obama (D.D.C. Feb. 13, 2009) (Walton, J.)

Judge Walton has issued an order instructing the parties in the GTMO petitions to be prepared at a February 18th status conference to set a schedule for resolving the issue of the scope of the government’s military detention authority.  Judge Walton did not forbid the administration from arguing for a case-by-case approach as it attempted, unsuccesfully, before Judge Bates in Hamlily v. Obama on the 11th, but he did signal that this is not likely to work and that he wants the government prepared to set a schedule for addressing the general scope of detention authority.

3. Forthcoming Scholarship

Offshoring the War on Terror

Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law

Kal Raustiala (UCLA)

Offshoring is usually thought of in the context of globalization and economic activity. Yet a signal feature of the Bush Administration’s “war on terror” was the offshoring of core security functions. The most famous example is the use of Guantanamo Bay as a detention center, but many other examples of extraterritorial activity exist, such as the practice of “extraordinary rendition.” This chapter, drawn from a forthcoming book from Oxford University Press titled Does the Constitution Follow the Flag?, charts and analyzes these developments, and associated judicial decisions such as Boumediene v. Bush, with reference to larger trends in American politics and jurisprudence.

“Combatants and the Combat Zone”

University of Richmond Law Review, Forthcoming
Notre Dame Legal Studies Paper No. 08-39

MARY ELLEN O’CONNELL, Notre Dame Law School

Following the attacks of 9/11, President George W. Bush declared that the United States was in a “global war on terrorism”. His administration claimed the wartime privileges to kill without warning and detain without trial anyone suspected of association with terrorist organizations anywhere in the world. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender.

“Passing the Buck: State Responsibility for Private Military Companies”

European Journal of International Law, Vol. 19, Issue 5, pp. 989-1014, 2008

CARSTEN HOPPE, European University Institute

States hire private military or security companies [PMSCs/contractors] in armed conflict and occupation to fulfil tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. PMSC personnel, like soldiers, can and do violate or act incompatibly with International Humanitarian Law and Human Rights Law. Relying on the International Law Commission’s Articles on State Responsibility, the article compares the responsibility of states for such conduct of their soldiers with that which states incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. Positive obligations of states under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to prevent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap – although important – remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state as that of persons forming part of its armed forces in the sense of the customary provision enshrined in Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers, which fully eliminates the regulatory gap.

“The Rules on the Use of Force at the Beginning of the XXI Century”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 319-342, 2006

TARCISIO GAZZINI, affiliation not provided to SSRN

The article discusses the impact of recent military interventions in Kosovo, Afghanistan and Iraq on the rules governing the use of force in international law. It argues that, in spite of some egregious violations, existing rules have not been changed or fallen into desuetude. The attempt to dismantle the collective security system and the claim to relax beyond recognition the general prohibition on the use of force have found the strong opposition of the overwhelming majority of the UN membership. Furthermore, existing rules and Article 51 of the UN Charter have proved flexible enough to protect States against the threats posed by terrorism and weapons of mass destruction. Their application, nonetheless, remains extremely problematic and confirms the need for a collective control over the use of military force.

“The Temporal Dimension of Self-Defence: Anticipation, Pre-Emption, Prevention and Immediacy”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 361-369, 2006

T.D. GILL, University of Amsterdam – Faculty of Law

This article explores the temporal dimension of the right of self-defense, in particular, the controversy relating to the possibility of responding to the potential threat of attack which has resulted from the publication by the U.S. Government of its National Security Strategy document in 2002, in which the U.S. Government claimed a right to use force to pre-empt such threats. In assessing the temporal scope of self-defense an examination is made of the dual customary-Charter nature of the right of self-defence and conclusion is drawn that both sources of law are relevant in assessing any claim to use force in advance of an armed attack on the basis of the Caroline criteria of immediacy, necessity and proportionality, which are still relevant today.

“The Emerging Use-of-Force Paradigm”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 309-317, 2006

MICHAEL J. GLENNON, Tufts University – The Fletcher School

Change has been the source of many recent proposals concerning United Nations (UN) reform, and because that report has also been a focal point of discussion concerning the law that ought to govern the use of force, it is appropriate to consider closely the report’s treatment of that subject. Viewing the topic afresh, one would suppose that a useful commentary would have addressed four questions:
(1) What security threats do states face in the twenty-first century?
(2) What rules are in place to meet those threats?
(3) Do the rules work?
(4) If not, how can they be fixed?

“You are the Weakest Link and We Will Help You! The Comprehensive Strategy of the United Nations to Fight Terrorism”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 371-397, 2006

NOËLLE QUÉNIVET, affiliation not provided to SSRN

In 2004, the United Nations Secretary-General published the report of the high-level panel of experts on threats, challenges and change that projected a comprehensive strategy to fight various types of scourges that afflict humankind and notably terrorism. The report and the following world summit documents inscribe themselves in established trends set by the State community and the United Nations in the past decades. Since 11 September, five different wide-encompassing strategies have been offered to the State community to come to terms with terrorism. This article focuses on this proliferation of documents and their inconsistency in terms of content. Yet, it also pinpoints the common thread that runs through the documents, namely that the comprehensive strategy must address the root causes of terrorism, strengthen States and promote the rule of law and human rights, three targets that can be reached by the implementation of a strong policy of capacity-building. In all cases, the State community works on the premise that weak and rogue States will consent to be helped in building national and regional capacity to combat terrorism. Undoubtedly, convincing weak and rogue States to abide by international standards will require more than just capacity-building to deflect terrorism. Rather, the United Nations will need to conceptualise general measures to prevent and reverse state failure, which in turn means that the strategy must be indeed ‘comprehensive’.

“The Impact of the Responsibility to Protect on Peacekeeping”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 429-464, 2006

SUSAN C. BREAU, affiliation not provided to SSRN

This article examines the impact of the doctrine of the Responsibility to Protect on Peacekeeping in the United Nations. One of the key debates in peacekeeping is whether there is a duty to use force to protect civilians from genocide, crimes against humanity and war crimes. The practice of UN peacekeeping is evolving in many instances, with the notable exception of Darfur, into robust peacemaking actions with a positive responsibility to protect civilians within the field of operations. This article reviews the development of the concept of the responsibility to protect and then applies the various parts of the doctrine to actual situations of threats to international peace and security.

“The Expanding Law of Self-Defence”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 343-359, 2006

NATALINO RONZITTI, affiliation not provided to SSRN

Since the entry into force of the UN Charter, self-defence has become the preferred excuse for States to justify their use of force, for use of force is in principle banned not only by the Charter but also by modern constitutions. The author examines how States are stretching the notion of this permissible use of force to justify their armed actions in foreign territory. Although it is still the object of controversy between continental and overseas lawyers, a consensus seems to be emerging on the lawfulness of anticipatory self-defence, provided that it is given a narrow interpretation. On the contrary, pre-emption has not gained currency within the international community. Another emerging consensus is related to the origin of an armed attack, which may come not only from States but also from non-State entities to trigger the right of self-defence. The author suggests that a declaratory GA resolution, such as the ones on Friendly Relations and on the Definition of Aggression, could clarify the subject. However, his conclusion is pessimistic, because States prefer to leave the boundaries of self-defence undefined to retain their freedom of action.

“Regional Organisations and the Maintenance of International Peace and Security: Three Recent Regional African Peace Operations”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 483-508, 2006

MARTEN ZWANENBURG, University of Leiden

The leitmotiv of this article is the recommendation by the High-Level Panel on Threats, Challenges and Change that authorisation from the Security Council should in all cases be sought for regional peace operations. It discusses the legal basis for such operations, and three recent regional peace operations are analysed in detail: African Union Mission in Sudan (AMIS), Economic Community of West African States in Cote d’Ivoire (ECOFORCE) and Economic and Monetary Community of Central Africa in the Central African Republic (FOMUC). This article concludes that the practice with respect to these operations does not support a requirement of Security Council authorisation, where there is consent of the parties or, it appears, the government of the host state alone.

“The UN-Led Multilateral Institutional Response to Jihadist Terrorism: Is a Global Counterterrorism Body Needed?”
Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 399-427, 2006

ERIC ROSAND, affiliation not provided to SSRN

This article first briefly outlines the current terrorist threat posed by militant Islamist radical terrorism and the complexity and evolving nature of threat. It highlights the lack of consensus in academic and policy communities regarding the underlying causes of this terrorism. It them posits that the overarching challenge in the next few years will be to maintain the broad-based international co-operation in the fight against terrorism that has existed since 11 September 2001, which is essential to address the threat effectively. Elements of this challenge include dispelling the notion that the US-led counterterrorism effort is targeting Islam and keeping the global South engaged. Durable, effective and flexible mechanisms are needed at the global, regional and national levels to ensure that multifaceted, holistic strategies are developed and implemented to address these issues. The article then outlines the current capacity of multilateral institutions to contribute to the fight against terrorism. The performance of the main UN counterterrorism bodies – led by the Security Council’s different counterterrorism entities – as well as some of the key regional and functional ones, this article concludes, has been uneven. Different organisations have developed counterterrorism programs and units, but these have emerged from political reactions rather than strategic decisions with corresponding achievable technical objectives. The duplication of efforts, overlapping mandates and lack of co-ordination at the international, regional and sub-regional levels have limited the different bodies’ overall contribution to the global non-military counterterrorism effort and have left many of the world’s vulnerabilities to terrorism unaddressed. This article concludes that maintaining international co-operation and the focus on capacity-building and other non-military counterterrorism measures, as well as the need to address the proliferation of counterterrorism bodies, highlights the need for an effective multilateral body at the center of the effort. The UN Security Council’s Counter-Terrorism Committee was supposed to be this body, but it has been unable to fulfill its broad mandate effectively. The article details the limitations of the current UN Security Council-led approach and the inherent, political, administrative and budgetary challenges of operating within the UN system that would make it difficult to co-ordinate global capacity-building efforts effectively. While it proposes a possible short-term improvement – the consolidation of the different parts of the Security Council counterterrorism program into as single body – in the end, it argues that a new international body dedicated to counterterrorism outside of, but perhaps related in some way to, the UN may be needed.

State Secrets Protection Act (Senate and House bills attached), plus analysis of Senate bill

February 11, 2009

* Texts of the State Secrets Protection Act bills in Senate and House, plus an analysis of the Senate bill

Here you will find the text of both the Senate and House bills introduced today in connection with reform of the State Secrets Privilege (thank you list members).  They are in fact the same bills as were introduced in the last Congress (the original SSPA bill in the Senate is here, for example, and the House bill is here).

These bills present a host of complicated issues, and it would not be right to try to highlight and assess them all in this brief space.  So, instead, I’m attaching a 12-page document that I wrote last year, constituting a sort of section-by-section analysis of the Senate bill.  It is largely supportive of the bill, but highlights a handful of issues that I think may be problematic or at least require further consideration.

I do not have a similar existing section-by-section analysis for the House bill, though I will note that it is not identical to the Senate bill and does raise some additional concerns (e.g., section 6(c) of the House bill purports to direct judges to give no special deference to the judgment of the executive branch with respect to whether disclosure of the information at issue poses a sufficient risk of harm to warrant application of the privilege).

* State Secrets Protection Act (reintroduced today)

Hot on the heels of DOJ’s continued assertion of the state secrets privilege yesterday in Jeppesen, the leading sponsors of last year’s state secrets-reform legislation today reintroduced the State Secrets Protection Act.  From the press release, it sounds much like the earlier version.

I have not yet been able to obtain the text, but when I do I will circulate an analysis (if you have the text, please pass it along!).  In the meantime, you can click here for video and prepared testimony from the hearing the Senate Judiciary committee held last February in connection with the original bill.

Goldsmith on detention options and national security courts

February 11, 2009

* Jack Goldsmith, “Long Term Terrorist Detention and Our National Security Court” (Feb. 9, 2009)

A Working Paper of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution

This 20-pager is a must-read document for those following the debate about how best to proceed in connection with detention policy.  From the introduction:

For years there has been a debate about whether to create a national security court to supervise the non-criminal military detention of dangerous terrorists. The debate has many dimensions and is often confusing. Some national security court opponents are really opposed to the non-criminal military detention system that such a court would supervise, and insist that terrorists be tried in criminal court or released. Other opponents of a national security court accept the need for non-criminal military detention but do not favor institutionalizing a new and “secret” court to oversee these detentions. Proponents of a national security court come in many stripes as well. They advocate many versions of the court with many different tasks, ranging from various forms of detention supervision to the conduct of criminal trials.

This essay attempts to simplify these issues, at least a bit. It argues that the national security court debate—a debate in which I have participated1—is largely a canard. The fundamental issue is whether the United States should have a system of non-criminal military detention for enemy terrorists who for many reasons are difficult to prosecute and convict by trial. If the Obama administration chooses to maintain a system of non-criminal military detention—and for reasons set forth below, I think it should—it will necessarily also choose to have a national security court. This is so because federal courts constituting a “national security court” must supervise non-criminal detention under the constitutional writ of habeas corpus and a likely statutory jurisdiction conferred by Congress. Viewed this way, we have had a centralized and thinly institutionalized national security court for years in the federal courts of the District of Columbia, which have been supervising Guantánamo Bay military detentions. The hard question about a national security court, once we accept the need for non-criminal military detention, is not whether it should exist but rather what its rules should be and, just as important, who should make these rules. In my view, Congress and the President, rather than the courts, must play the predominant role in crafting these rules. After explaining these points, I outline some of the issues and legal policy tradeoffs that the political branches should address, including whether such a court should be an independent institution akin to the Foreign Intelligence Surveillance Court and whether it should conduct criminal trials in addition to supervising detention.

Al-Adahi v. Obama; Sharifulla v. Bush; forthcoming scholarship

February 11, 2009

1. Al-Adahi v. Obama (D.D.C. Feb. 10, 2009)

Judge Kessler has issued an opinion denying requests by two GTMO detainees for injunctive relief relating to the manner in which the military carries out forced feeding required by the petitioners’ hunger strikes.  In short, Judge Kessler determined that federal courts lack jurisdiction over conditions-of-confinement claims thanks to the Military Commissions Act, and that this aspect of the MCA was unaffected by Boumediene.  She also determined that use of a restraint chair in the feeding process most likely would not constitute “deliberate indifference” violating the Eighth Amendment (interestingly, the court appears to assume, at least for the sake of argument, that detainees have Eighth Amendment rights; perhaps in my quick skim I missed the discussion of this issue), and that a prohibition on use of restraints would expose medical personnel to danger. The full opinion appears here. Read the rest of this entry »

United States v. Jawad; forthcoming scholarship

February 5, 2009

1. United States v. Jawad (Ct. Mil. Com. Rev. Feb. 4, 2009)

The U.S. Court of Military Commission Review has granted the government a stay until May 20th in United States v. Jawad, in order to give the administration time to review its military commission policy as contemplated in EO 13,492 (i.e., one of the executive orders issued by President Obama relating to detention policy during his first week in office).

Note that this ruling applies only to the Jawad appeal (the government is appealing an order by the trial judge that excluded certain statements made by the defendant on grounds of coercion).  For the moment, other proceedings in the military commission system have not been stayed.  The Court of Mil. Com. Review’s order is here (thanks to SCOTUSblog). Read the rest of this entry »

GTMO panel webcast

February 3, 2009

* “The Post-Guantanamo Era: A Dialogue on the Law and Policy of Detention and Counterterrorism”

On Wednesday, January 28, 2009, the University of Texas School of Law and the Robert S. Strauss Center for International Security and Law hosted a panel discussion about the task of reforming the government’s approach to military detentions.  See here for more details.

The event was recorded and can be viewed online: [stream] [download]

The distinguished panel included John Bellinger, who served as Legal Adviser to the Secretary of State and to the National Security Council during the Bush Administration; Benjamin Wittes of the Brookings Institute, author of the book Law and the Long War: The Future of Justice in Age of Terror; and Stephen Vladeck, professor of law at American University and coauthor of a brief to the Supreme Court on behalf of Guantanamo detainee Salim Hamdan. Professor Bobby Chesney, a Strauss Center fellow and visiting professor of law at the University of Texas School of Law, facilitated the discussion.