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

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.

2. Sharifulla v. Bush (D.D.C. Feb. 10, 2009)

In this GTMO habeas proceeding, Judge Sullivan ordered that:

“no later than February 17, 2009, the government shall produce to Petitioner’s counsel, subject to any restrictions pursuant to the Protective Order in this case, any and all exculpatory information reasonably available to the United States Government that bears on Petitioner’s detention and/or that would suggest that Petitioner should not be designated as an enemy combatant. It is further ORDERED that by no later than February 17, 2009, the government shall produce all information reasonably available to the United States Government bearing on the circumstances surrounding any statements upon which Respondent relies in its Factual Return.”

The interesting point here is that the disclosure obligation is not limited to the information accessed by the Justice Department attorneys involved in litigation the habeas claim, but instead by its terms appears to flow throughout the government (i.e., throughout the Intelligence Community).  This is one of the key points on which the various judges of the district court have disagreed in these proceedings, and one of the questions that most cries out for uniform treatment.

3.  Forthcoming Scholarship

“Torture, Truth Serum, and Ticking Bombs: Toward a Pragmatic Perspective on Coercive Interrogation”

Loyola University Chicago Law Journal, Vol. 39, p. 329, 2008
University of Baltimore School of Law Legal Studies Research Paper No. 2009-10

KENNETH LASSON, University of Baltimore School of Law

The ‘War on Terror’ has prompted a great deal of discussion about the use of torture as a means of extracting information from those suspected of having perpetrated past acts of violence or planning future ones. Despite the years that have passed since the attacks of September 11, 2001, for both citizens and government officials there is still a strong tension between the competing emotions of anger, revenge, and desperation; it seems increasingly difficult to adhere to international norms governing a nation’s moral and legal obligations to protect its citizens from grave danger while continuing to support individual freedoms. Among the more difficult questions to emerge from those that were far-fetched (if not unthinkable) just a few decades ago is how to handle the so-called ticking-bomb scenario. As terror organizations grow in size and complexity, uncovering terrorist plans by interrogating a group member has become critical, and the need to gather intelligence in order to save lives increasingly urgent.

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.

“Constitutional Crises”

University of Pennsylvania Law Review, Vol. 157, 2009
Yale Law School, Public Law Working Paper No. 161
U of Texas Law, Public Law Research Paper No. 135

SANFORD LEVINSON, University of Texas Law School

JACK M. BALKIN, Yale University – Law School

In popular discussion, the term constitutional crisis is used to describe every kind of conflict, great and small. But we think we can give the idea greater analytical clarity, and in the process, make some important points about constitutional design.

The secret, we shall argue, is to think about crisis not in terms of constitutional disagreement but in terms of constitutional design. Disagreement and conflict are natural features of politics. The goal of constitutions is to manage them within acceptable boundaries. When constitutional design functions properly – even if people strongly disagree with each other and threaten each other – there is no crisis. On the other hand, when the system of constitutional design breaks down, either because people abandon it or because it is leading them off of the proverbial cliff, disagreements and threats take on a special urgency that deserves the name of crisis. In this essay we offer a typology of different types of constitution crises based on this insight.

We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. Type One crises arise when political leaders believe that exigencies require public violation of the constitution. Type Two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type Three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests; people take to the streets, armies mobilize, and brute force is used – or threatened – in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this central task.

“Finding the Tort of Terrorism in International Law”

Review of Litigation, Vol. 28, No. 2, 2009
Santa Clara Univ. Legal Studies Research Paper No. 09-03

BETH VAN SCHAACK, Santa Clara University – School of Law

This Article – part of a symposium on civil litigation and terrorism – focuses on the potential of the Alien Tort Statute (ATS) to serve as a vehicle for asserting civil claims in U.S. courts for acts of terrorism. Although this paper primarily considers terrorism torts under the “law of nations” prong of the ATS (which requires a showing that the relevant prohibition is part of customary international law), terrorism torts may provide a vehicle for activating the ATS’s dormant treaty prong as well, given the strong support for the terrorism treaties exhibited by the United States and the high degree of domestic incorporation of the crimes identified therein. One of the first modern cases to be filed under the Alien Tort Statute, Tel-Oran v. Libyan Arab Republic, immediately called into question the utility of the ATS as a counter-terrorism tool. Ever since, the statute has been relatively underutilized in this context, even while U.S. courts have gradually extended jurisdiction under the ATS over other international crimes. Meanwhile, the U.S. Congress has vastly expanded opportunities for U.S. nationals to pursue civil claims in domestic courts for acts of terrorism. For example, the Antiterrorism Act (ATA) enables U.S. nationals – as well as their estates, survivors, and heirs – to sue individuals responsible for personal, property, or business injuries incurred by reason of acts of international terrorism. U.S. victims and claimants may also sue states and state agents implicated in acts of terrorism under the Foreign Sovereign Immunity Act (FSIA), so long as the state itself has been specifically designated as a “sponsor of terrorism” by the Department of State or where the circumstances otherwise satisfy one of the codified exceptions to foreign sovereign immunity. As compared with these statutory causes of action for U.S. citizen victims and claimants, only the ATS has the potential to provide jurisdiction over civil claims arising out of acts of terrorism brought by non-nationals who have access to U.S. courts. This paper argues that the uncertainty surrounding the availability of the ATS to permit such terrorism claims reveals a lacuna in the United States’ anti-terrorism statutory scheme.

Since the U.S. Supreme Court issued its landmark opinion in Sosa v. Alvarez-Machain and finally set forth a methodology for considering actionable claims under the ATS, a few cases involving terrorism allegations have begun to work their way through the federal court system. Although it is still difficult to draw broad conclusions, the existing cases do demonstrate that the various federal statutes – the ATA, FSIA, and ATS – can work in tandem to provide causes of action to alien and U.S. plaintiffs injured in terrorist incidents. Furthermore, litigants are creatively utilizing multiple causes of action drawn from statutes, the common law, and international law to press their claims. While the federal courts have yet to definitively recognize a standalone cause of action for terrorism stricto sensu, developments in the law of terrorism at the international level reveal the gradual crystallization of a consensus set of elements that comprise a definitive prohibition against terrorism applicable to all but a narrow set of circumstances. What lingering definitional impasse exists highlights an unsettled and highly contentious area of international law: the legal categorization and consequences of attacks by unprivileged combatants against privileged combatants or military targets. In all other situations, the international law governing acts of terrorism is sufficiently precise, robust, and uncontroversial to support the recognition by the federal courts of a cause of action for terrorism under the ATS, assuming the other jurisdictional requirements are satisfied. Recognizing such causes of action will bolster the United States’ counter-terrorism regime by enabling a broader array of victims of acts of terror to pursue the assets of individuals and groups that finance or otherwise support acts of terrorism.

“Great Power Politics and the Structure of Foreign Relations Law”

Chicago Journal of International Law, Forthcoming
U of Chicago, Public Law Working Paper No. 256

DANIEL ABEBE, University of Chicago – Law School

Should courts consider great power politics in determining the allocation of foreign relations law authority? Foreign relations law is a set of rules serving as an internal constraint on the unilateral exercise of foreign relations powers. Given the predominance of the executive branch in foreign affairs, courts routinely consider foreign relations law questions about the breadth of the executive’s authority by reference to legal precedent, historical practice and functional concerns for guidance. Courts primarily look to solely internal, domestic factors. But the natural focus on internal constraints obscures the increasing importance of external constraints on the executive authority. This symposium article argues that one cannot determine the overall level of constraints on the executive without understanding the relationship between internal constraints produced by foreign relations law and external constraints generated by great power politics. To understand this relationship, this article frames foreign relations law as a function of great power politics, discusses the impact of external constraints on executive decisionmaking, and offers a skeletal theory on the salience of great power politics on the allocation of foreign relations law authority. The theory suggests that the overall level of constraint on the executive likely varies over time as the strength of external constraints varies, leading to the conclusion that courts should consider both external and internal constraints in determining the true breadth of executive decisionmaking authority.

“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.

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