United States v. Jawad; forthcoming scholarship

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).

2. Forthcoming Scholarship

“Closing the Guantanamo Detention Center: Legal Issues”

Michael John Garcia, et al., Congressional Research Service, (Jan. 22, 2009)


Following the terrorist attacks of 9/11, Congress passed the Authorization to Use Military Force (AUMF), which granted the President the authority ?to use all necessary and appropriate force against those … [who] planned, authorized, committed, or aided the terrorist attacks? against the United States.? As part of the subsequent ?war on terror,? many persons captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba for detention and possible prosecution before military tribunals. Although nearly 800 persons have been transferred to Guantanamo since early 2002, the substantial majority of Guantanamo detainees have ultimately been transferred to a third country for continued detention or release. The roughly 250 detainees who remain fall into three categories: (1) persons placed in non-penal, preventative detention to stop them from rejoining hostilities; (2) persons who have been brought, or are expected to be brought, before a military tribunal to face criminal charges for alleged war crimes; and (3) persons who have been cleared for transfer or release to a third country, whom the United States continues to detain pending transfer. Although the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees may seek habeas corpus review of the legality of their detention, several legal issues remain unsettled, including the scope of habeas review available to Guantanamo detainees, the remedy available for those persons found to be unlawfully held by the United States, and the extent to which other constitutional provisions extend to noncitizens held at Guantanamo. On January 22, 2009, President Barack Obama issued an Executive Order requiring the Guantanamo detention facility to be closed as soon as practicable, and no later than a year from the date of the Order. Officials in the Obama Administration have stated that the Administration will work with Congress to craft legislation to effectuate the facility?s closure and clarify the legal status of detainees transferred to the United States. The closure of the Guantanamo detention facility may raise a number of legal issues with respect to the individuals formerly interned there, particularly if those detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different than the protections owed to persons held at Guantanamo or elsewhere. This may have implications for the continued detention or prosecution of persons who are transferred to the United States. The transfer of detainees to the United States may also have immigration consequences. Notably, some detainees might qualify for asylum or other protections under immigration law. This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer or release of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought to the United States. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, courtmartial proceedings, and military commissions). Issues discussed include detainees? right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases.

“Permissible Perfidy?: Analysing the Colombian Hostage Rescue, the Capture of Rebel Leaders and the World’s Reaction”

Journal of International Criminal Justice, Vol. 6, Issue 4, pp. 627-653, 2008

JOHN C. DEHN, United States Military Academy – Department of Law
Email: johncdehn@gmail.com

On 2 July 2008, Colombian forces disguised as an international humanitarian mission rescued 15 hostages from the Fuerzas Armadas Revolucionarias de Colombia guerrilla group, its opponent in a decades-long conflict. Those forces also captured two guerrillas, including the commander who had been responsible for the hostages. The world’s reaction, including those of humanitarian and human rights organizations, was universally positive in spite of reports that Colombian commandos and intelligence agents posed as aid workers and journalists non-combatants protected by international humanitarian law (IHL) in effecting the rescue and capture. Criticism of the operation later arose only when it was discovered that at least one of the Colombian soldiers participating in the operation wore the emblem of the International Committee of the Red Cross. Even that criticism focused solely on the misuse of the emblem, not the feigning of non-combatant status resulting in capture. The author examines the rescue operation to determine whether and how it might have violated IHL prohibitions regarding perfidious capture, recently asserted to apply in both international and non-international armed conflict. He reviews the perfidy prohibition, its scope and applicability, and possible interpretations that might explain the world’s uncritical reaction to the operation. He also examines doctrines that might preclude or negate potential criminal responsibility for individual participants or decision-makers, as well as those that might apply at a collective level. The author argues that the lack of the clear applicability of any doctrine precluding criminal responsibility for this supposed violation of IHL might confirm either that perfidious capture is permissible in non-international armed conflict or that it is a non-criminal and inconsequential violation of IHL. Alternatively, he suggests that uncritical acceptance of this operation might reveal that the applicable law no longer reflects our intuitive notions of justice.

“The Laws of War and the ‘Lesser Evil'”

Harvard Law School Faculty Scholarship Series Working Paper No. 24

GABRIELLA BLUM, Harvard Law School
Email: gblum@law.harvard.edu

Why is it that the laws of war, or international humanitarian law (IHL), allow no justification for breaking the law even if where such conduct would actually produce less humanitarian harm than following the law? In introducing the concept of a humanitarian necessity justification, and complementing existing work on humanitarian exceptions to the jus ad bellum, this paper suggests that it should. It first addresses the puzzle of IHL’s existing absolutist stance with regard to compliance with IHL norms; to demonstrate the implications of this absolutist stance, I use three historical case studies in which actors broke the law under a claim of necessity, or a mixed concern for self and others: The Early Warning Procedure employed by the IDF in the West Bank, the paradigmatic case of interrogational torture, and the atomic bombings of Hiroshima and Nagasaki. I then examine whether the domestic necessity defense in criminal law might be transposed onto the international level, ultimately finding that such transposition is impossible given the different assumptions that operate in domestic criminal law and IHL. In further searching for an account for IHL’s absolutist stance and the possibility of mitigating that stance, the paper turns to first-order accounts – deontological, consequential, and institutional. I argue that none of these accounts offers a sufficiently convincing explanation for the exclusion of a humanitarian necessity paradigm, and instead, that room should be made for some humanitarian-driven exceptions. Ultimately, the paper offers a blueprint for a definition for a humanitarian necessity justification that would exculpate an actor who violated the laws of war in the name of a greater humanitarian good. The central component of the definition is a requirement that the greater humanitarian good would be for the benefit of the enemy, rather than for oneself. Under such paradigm, the Early Warning Procedure and perhaps even the atomic bombing of Hiroshima (but not Nagasaki) might be justified, while the paradigmatic case of interrogational torture could not.

“Jihad, Terrorism and Islamic Jurisprudence”

AVANI BANSAL, affiliation not provided to SSRN

This paper emerged as a reaction to the deafening silence of the umpteen reports announcing the ghastly acts of Terrorism around the world and further atrocious attempt to link an entire religion with these acts. The brunt of such mindless acts is being faced not only by the innocent Muslims but also by every ordinary citizen of this world who stands perplexed at the fear ridden world and finds himself lost in this quagmire. This project report is an humble attempt to revisit the linkage that is most frequently drawn by scholars of the day in the wake of Post September 11 mania, and especially after November 26th to find out the truth. This paper is definitely not an ‘experiment with truth’ but rather a ‘quest for truth’. To what extent has the authoress succeeded is for the reader to find and judge but as for me, though I didn’t reach the destination, I learned a lot on this journey and it is this understanding of the issues that confront my world today which stands as my most cherished award.

“Poetic Injustice: A Case Study of the UK’s Anti-Terrorism Legislation”

Retfærd: The Nordic Journal of Law and Justice, 2008

REZA BANAKAR, University of Westminster – School of Law
Email: r.banakar@wmin.ac.uk

This paper explores the effects of anti-terrorism policy and legislation on the Muslim immigrant communities, in general, and British-born Muslims, in particular. R v Malik, in which the Court of Appeal quashed Samina Malik’s conviction on terrorism charges, provides our point of entry into the legal discourse on counter-terrorism. Malik’s conviction at the Old Bailey and the subsequent decision of the Court of Appeal to declare her conviction unsafe, will serve to highlight three interrelated aspects of anti-terrorism policy and legislation in the UK. These two decisions, firstly, will help to examine how the legal and policing measures to combat the threat of terrorism interact with the ethno-cultural relationships in contemporary Britain. Secondly, they will allow us to view the UK’s anti-terrorism policy and legislation in relation to what David Garland termed the “culture of control”, which marks the move from a criminal policy based on “penal welfarism” to a governance of crime based on “the management of risks”. Finally, they will throw light on the tension between the UK government and the judiciary.

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