ACLU v. DoD; forthcoming scholarship

October 19, 2009

1. ACLU v. DoD (D.D.C. Oct. 16, 2009) (FOIA ruling in re detainee statements and interrogation transcripts)

Judge Lamberth has granted the government’s summary judgment motion in this FOIA action, citing FOIA exemptions 1 and 3.  Key aspects of the ruling:

Plaintiffs assert that the government’s release of the declassified OLC memoranda and the IG Report demonstrates that the information they seek is in the public domain. These documents contain general information regarding defendants’ interrogation program. (See Pls.’ Opp’n Ex. A-D, F-G.) The redacted information at issue in this case, however, is specific and particular to each detainee and would reveal far more about the CIA’s interrogation process than the previously released records. (See Hilton Decl. ¶¶ 49, 60, 62-64.) Indeed, the fact that the government disclosed general information on its interrogation program does not require full disclosure of aspects of the program that remain classified.See Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (recognizing that the fact that some information is publicly available “does not eliminate the possibility that further disclosures can cause harm to intelligence sources, methods, and operations”).

Moreover, as stated in Ms. Hilton’s declaration, the redacted information relates not just to the use of EITs, but also to the interrogation methods and procedures that are authorized in the Army Field Manual and are in use today. (Hilton Decl. ¶ 60.) Release of such information would seriously damage national security by compromising intelligence sources and methods (see id. ¶¶ 50-64, 70-72), even if the damage is not apparent to the casual observer. See Halperin, 629 F.2d at 150 (“[E]ach individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.”).

The Court also finds that plaintiffs’ reliance on the report authored by the International Committee of the Red Cross is misplaced. This report does not constitute an official disclosure by the government. Without official disclosure, classified information is not considered to be public.

Second, the Court does not see how the President’s order prohibiting the use of EITs and closing the CIA’s prisons justifies full disclosure of the records sought. Plaintiffs’ theory would require the government to fully disclose the details of every classified program that the government discontinues. This simply is not true. A government record remains classified until a government official determines that “the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”

Third, contrary to plaintiffs’ assertion, defendants may redact portions of the detainees’ statements that would expose “intelligence sources and methods.” It is within defendants’ broad discretion to determine “whether disclosure of information may lead to an unacceptable risk of compromising the . . . intelligence-gathering process.” 

According to plaintiffs, defendants only seek to withhold the information to “conceal violations of law” or “prevent embarrassment,” which is in violation of Exec. Order No. 12,958, § 1.7(a)(1)-(2). The Court finds that defendants have shown that damage to national security would reasonably result if the detainees’ statements were disclosed, and that defendants did not classify portions of the detainees’ statements to conceal violations of the law or prevent embarrassment.

As discussed above, defendants  reprocessed all documents responsive to plaintiffs’ FOIA request in light of the President’s disclosure of the OLC memoranda. The President’s disclosure released only general information about defendants’ interrogation program. The redacted information, however, relates only to specific information that has not yet been disclosed to the public because of the damage its release would cause to national security. (See Hilton Decl. ¶¶ 44, 53-72.) This Court is in no position to second-guess defendants’ determination that disclosure of detainees’ statements would result in damage to national security. See Weissman v. CIA, 565 F.2d 692, 697 (D.C. Cir. 1977) (“Few judges have the skill or experience to weigh the repercussions of disclosure of intelligence information.”).

2. Forthcoming Scholarship

“Triggering Congressional War Powers Notification: A Proposal to Reconcile Constitutional Practice with Operational Reality”

Lewis and Clark Law Review, Forthcoming

GEOFFREY S. CORN, South Texas College of Law
Email: gcorn@stcl.edu

In 1973, a supermajority of Congress overcame President Nixon’s veto to enact the War Powers Resolution. That law was intended to restore the Founder’s vision of cooperative war-making authority between the two political branches. Since that time, two areas of uncertainty have plagued the efficacy of the law: the arguable intrusion into the exclusive war-making authority of the President; and the uncertainty as to what events trigger the law’s obligations. In an effort to cure these defects, a group of experts recently proposed adoption of a substitute law: the War Powers Consultation Act of 2009. This proposed successor statute shifts the focus of statutorily mandated inter-branch war powers cooperation from the express authorization emphasis of the War Powers Resolution to notification and cooperation. While this shift in emphasis is both logical and more aligned with historical constitutional practice than the War Powers Resolution, the proposal still struggles to define an effective trigger for this notification and cooperation mandate. This article will review how the War Powers Consultation Act seeks to cure the defects of the War Powers Resolution and impose a more effective cooperative war-making relationship between the two political branches. It will then propose a critical improvement: a more effective notification and cooperation trigger to implement this purpose, one that is derived from the nature of the military operations this cooperative decision-making mandate is intended to enhance. The article will explain how linking the congressional notification mandate of the proposed law to operational rules of engagement will provide the most effective pragmatic notification trigger, mitigate the risk of interpretive avoidance of the law’s mandate, and reconcile the scope of the cooperative war-making obligation with constitutional authority.

“Administration of War”

Duke Law Journal, Vol. 58, p. 2277, 2009
UC Berkeley Public Law Research Paper No. 1479252

JOHN YOO, University of California at Berkeley School of Law
Email: YOO@LAW.BERKELEY.EDU

This essay asks whether the Constitution’s implicit grant of the removal power to the President provides control over the administrative agencies by examination of civil-military relations under the administration of President George W. Bush. Control over the military is one of the most significant, but also understudied, aspects of administrative law. The U.S. Armed Services are the nation’s first administrative agencies, predating the Constitution itself. The President has greater freedom to remove and command military officers than over the personnel of any civilian agency. Yet, greater constitutional command over the military agencies has not produced greater presidential control. Since the end of the Cold War, the military has become increasingly independent from political leadership. During both the Clinton and Bush administrations, military officers publicly opposed and sought to change civilian policies. A principal-agent model of administration, built on rational choice approaches to the study of bureaucracy, suggests ways that civilian principals can increase their control. Dividing the military into different services with similar functions may reduce its ability to unify in its struggle with civilian principals. When there is an unprecedented form of external threat and disagreement on the most effective policies, decentralization may also create a healthy competition that provides principals with more varied policy options and hence more control over their agents.

“Prison Islam in the Age of Sacred Terror”

The British Journal of Criminology, Vol. 49, No. 5, pp. 667-685, 2009

MARK S. HAMMaffiliation not provided to SSRN

Research indicates that Islam is the fastest growing religion among prisoners in Western nations. In the United States, roughly 240,000 inmates have converted to the faith since the 9/11 attacks. According to federal law enforcement, Saudi-backed Wahhabi clerics have targeted these prisoners for terrorist recruitment. The present research examines this claim from several different perspectives. First, it reviews the literature on prisoner conversions to Islam and concludes that there are opposing viewpoints on the matter. One side of the debate takes an alarmist stance, arguing that prisons have become incubators for Islamic terrorism; the other side asserts that Islam plays a vital role in prisoner rehabilitation. Second, results of a two-year study of prisoner radicalization and terrorist recruitment in US prisons are reported. The motives for prisoner conversions to Islam are discussed along with the effects of conversion on inmate behaviour; the role played by gangs and charismatic leaders in radicalizing prisoners; and the social processes by which inmates move from radicalization to operational terrorism. Third, two case studies are presented. One involves a terrorist plot waged by a gang of Sunni prisoners at California’s New Folsom Prison; the other looks at the inmate-led Islamic Studies Program at Old Folsom Prison, which has adopted a de-radicalization agenda. It is argued that inmate self-help programmes may do more than the state to prevent radicalization and terrorist recruitment behind bars.

“Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War”

Yale Journal of International Law, Vol. 35, No. 1, 2009

BRIAN FINUCANE, Yale University-Law School
Email: brian.finucane@yale.edu

Enforced disappearance as a crime under international law has a long and neglected history. In this Note I argue that that the criminal prohibition of disappearance is rooted in the laws of war, rather than in late 20th century human rights law. By analyzing the judgments of the Nuremberg Tribunals, I show that the conduct underlying enforced disappearance carried individual criminal liability at the time of the Second World War, both as a war crime and as a crime against humanity. I trace the origins of the prohibition to the protection of the family by the 19th laws of war. By using the prosecution of enforced disappearance in Bosnia and Herzegovina as a case study, I show the practical relevance of enforced disappearance’s long history under international humanitarian law.