NSL-events at AALS next week in New Orleans

December 30, 2009

* NSL-related events taking place in association with or near the time of the AALS conference in New Orleans, January 6-10, 2010

For the faculty members on this list, allow me to plan your trip to AALS for you!

Wednesday January 6th

1:30 to 3:15  “Maintaining or Restoring the Rule of Law After September 11, 2001”

(The American Society of Political and Legal Philosophy annual meeting) Hilton New Orleans Riverside, Belle Chasse Room (3rd floor)

Benjamin Kleinerman (Michigan State)

Curtis Bradley (Duke)

Lionel McPherson (Tufts)

Nancy Rosenblum (Harvard) Read the rest of this entry »

United States v. Stewart

December 28, 2009

I posted a few weeks ago regarding the Second Circuit’s decision to require resentencing in the Lynne Stewart case.  A few days ago, the same panel amended that opinion.  As I understand it, the thrust of the change is to add an emphasis on the potential applicability of the terrorism sentencing enhancement.  In any event, here is the key passage regarding the impact of the court’s order:

A district court’s failure to find particular facts will in no way impede our review in some, perhaps in most, situations; this, however, is not one of them. Especially in light of the absence of a finding that Stewart did not commit perjury at trial or otherwise obstruct justice, we think it preferable not to determine whether her sentence was substantively reasonable.

We therefore remand this matter to the district court for resentencing, in the course of which we direct the court to determine the issue of perjury and if it finds such perjury, to resentence Stewart so as to reflect that finding. The district court should also consider whether Stewart’s conduct as a lawyer triggers the special-skill/abuse-of-trust enhancement under the Guidelines, see U.S.S.G. § 3B1.3, and reconsider the extent to which Stewart’s status as a lawyer affects the appropriate sentence. Finally, the district court should further consider the overall question whether the sentence to be given is appropriate in view of the magnitude of the offense, which the court itself has explicitly recognized. Although we do not preclude the district court’s election to continue to impose a non-Guidelines sentence, we do require that such a sentence, selected after the reconsideration we have directed, begin with the terrorism enhancement and take that enhancement into account. We have serious doubts that the sentence given was reasonable, but think it appropriate to hear from the district court further before deciding the issue.

We have identified actions taken or not taken by the district court in imposing sentence that we conclude constituted procedural error and thus require resentencing. Other issues are raised by Judge Walker, who finds that they resulted in procedural error and substantive unreasonableness, and addressed by Judge Calabresi in response. To the extent we did not discuss or rule on those issues in this majority opinion, our silence should not be construed by the district court, or by others relying on this opinion, to mean that the majority has adopted Judge Calabresi’s views or rejected Judge Walker’s. We have not.

Although we find no procedural or substantive error in connection with the sentencing of Sattar and Yousry, we nonetheless remand their cases, too. We conclude that, inasmuch as the interrelationship among the sentences of the co-defendants is a principal consideration as to a proper sentence of Stewart, the district court should have the ability, if not the obligation, to resentence them as well.

After the district court completes the resentencing, jurisdiction may be restored to this Court by letter from any party, and the Office of the Clerk of this Court shall set an expeditious briefing schedule and refer the matter to this pan el for further review.

2. United States v. Abdulmutallab (E.D. Mich. Dec. 26, 2009)

Click here for the DOJ press release describing initial charges in the Christmas Day attempt to destroy a Northwest Airlines jet bound for Detroit from Amsterdam.  The charges are straightforward: attempted destruction of an aircraft, and bringing a destructive device onboard an aircraft.

National security law as a legal field?

December 27, 2009

[This one is a bit of a novelty post meant for the benefit of those of may be looking for a thought-provoking distraction during the holiday break….substantive posting resumes tomorrow]

Substitute the words “national security” for “environmental” or “environment” throughout the article below, and try to come to a decision regarding the question posed in the title of the short piece that appears in full below.  You’ll have to do some additional substitutions in Part II, as you will see, but just what the appropriate substitutions in that Part might be is itself an interesting inquiry.  Perhaps there’s a symposium to be had somewhere in these questions….  In any event, I offer this to those of you who are, perhaps, discreetly checking your email while hanging with family or whomever during a holiday break, or who otherwise have need for a thought-provoking distraction! Read the rest of this entry »

Bawazir v. Obama; forthcoming scholarship

December 23, 2009

1. Bawazir v. Obama (D.D.C. Dec. 22, 2009)

Judge Kessler has dismissed (without prejudice) a GTMO habeas petition on the ground that the petitioner (Bawazir) does not wish to pursue it.

2. More GTMO transfers (Dec. 20, 2009)

Last week, the government transferred 12 detainees out of GTMO (press release here):

To Afghanistan: Abdul Hafiz, Sharifullah, Mohamed Rahim and Mohammed Hashim

To Somaliland: Mohammed Soliman Barre and Ismael Arale

To Yemen: Jamal Muhammad Alawi Mari, Farouq Ali Ahmed, Ayman Saeed Abdullah Batarfi, Muhammaed Yasir Ahmed Taher, Fayad Yahya Ahmed al Rami and Riyad Atiq Ali Abdu al Haf.

3. Judge Royce Lamberth, “Trying Terrorists in Article III Courts” (Dec. 17, 2009) — Remarks at Breakfast Event Sponsored by ABA Standing Committee on Law and National Security

Audio available here

4. Forthcoming Scholarship


Jon Sherman (WilmerHale)

11 University of Pennsylvania Journal of Constitutional Law 1475 (2009)

In a 2006 speech, former Deputy Attorney General Paul McNulty said the following: “In the wake of September 11, this aggressive, proactive, and preventative course is the only acceptable response from a department of government charged with enforcing our laws and protecting the American people. Awaiting an attack is not an option. That is why the Department of Justice is doing everything in its power to identify risks to our Nation’s security at the earliest stage possible and to respond with forward-leaning—preventative—prosecutions.”1 Though the military’s counterterrorism tactics have dominated our post-9/11 consciousness of counterterrorism, federal criminal investigation and law enforcement directed by the Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”) have adapted and expanded in an attempt to prevent terrorism with “forward-leaning” strategies. Observers have advanced a few theories for the accelerating shift to preventative policing and prosecutions: constitutional difficulties with military detention, most recently in Boumediene v. Bush,2 the irrelevance of immigration law enforcement to “homegrown” terrorists; the increasing decentralization of the global jihadist movement; and the prevalence of “unaffiliated” terrorists operating without any connection to a designated foreign terrorist organization (“FTO”).3

Whatever the precise reasons, federal criminal prosecutions have played an ever-expanding role in counterterrorism. According to the New York University Law Center on Law and Security, between September 11, 2001 and September 11, 2008, 228 persons have been charged and prosecuted under a “terrorism statute,” with another 465 persons charged under other statutes but “publicly associated with terrorism by the DOJ.”4 Of the 130 “Resolved Terrorism Trials” out of 228 resolved or pending terrorism prosecutions, 93 persons have been convicted; 12 have been acquitted; and 25 have seen a mistrial or dismissal.5 The other 465 defendants have been charged with general criminal conspiracy, general fraud, immigration violations, racketeering, and other offenses.6 Some scholars have noted that pretextual charging has played a significant role in the government’s early intervention strategy.7 The Justice Department’s focus on early intervention tactics and “anticipatory prosecution,” as Professor Robert Chesney has called it, under federal conspiracy statutes (18 U.S.C. § 956(a)–(b)) and material support statutes (18 U.S.C. § 2339A and § 2339B) has made undercover investigations followed by sting operations a more attractive strategy.8 The FBI increasingly relies on confidential informants to gather intelligence, conduct surveillance of mosques, and pursue suspected terrorist plots.9 In several recent cases, including United States v. Batiste,10 United States v. Hayat,11 United States v. Lakhani,12 and United States v. Siraj,13 an undercover agent has “played a crucial catalytic role” in the criminal plot.14 Though some cases involve career agents, many informants are often enlisted as part of a brokered deal with the government to eliminate or reduce criminal penalties, drop criminal charges, approve a political asylum application, or reverse a removal order.15 This growing reliance on undercover cooperating witnesses and sting operations for counterterrorism has dramatically increased the risk of entrapment.

This Article seeks to reexamine the entrapment defense against the rise of anticipatory terrorism prosecutions, and  specifically, the charging of material support in furtherance of a predicate offense under 18 U.S.C. § 2339A. I argue that entrapment doctrine must be restructured to keep FBI counterterrorism efforts targeted and focused and to safeguard innocent First Amendment activity from the reach of highly inchoate offenses, which are aggressively pursued with undercover informants.

Intervention to Stop Genocide and Mass Atrocities: International Norms and U.S. Policy

Matthew C. Waxman (Columbia Law School & Council on Foreign Relations)

Council on Foreign Relations Special Report

Recent events in Darfur raise again the familiar question of whether the current international legal system facilitates the kind of early, decisive, and coherent action—especially with respect to military force—needed to effectively combat genocide and mass atrocities. An international legal regime that puts decisions about international intervention solely in the hands of the UN Security Council risks undermining the threat or use of intervention when it may be most potent in stopping mass atrocities. The features of the UN Charter that help resolve security crises peacefully make it difficult to generate the rapid action needed to deter or roll back mass atrocities, especially with several permanent Security Council members ideologically hostile to such interventions generally or self-interestedly hostile to specific interventions.  This report urges steps to improve responsiveness of the existing UN Security Council while preparing and signaling a willingness, if the UN Security Council fails to act in future mass atrocity crises, to take necessary action to address them.

The Blank-Prose Crime of Aggression

Michael J. Glennon (Tufts University – The Fletcher School)

35 Yale Journal of International Law 71 (2010)

A review conference to be convened in May, 2010, will consider an amendment to the treaty establishing the International Criminal Court that would define the crime of aggression and make that crime prosecutable before the Court. The proposed definition would, this article argues, constitute a crime in blank prose, one that would, in its disregard of the international principle of legality and related constitutional prohibitions against vague and retroactive criminal punishment, run afoul of basic international human rights norms and U.S. domestic guarantees of due process. Repeated efforts to define aggression foundered throughout the 20th century for good reason: no consensus existed then or now as to what the term means, at least not at the level of specificity needed to impose individual criminal liability. Prosecution under the ambiguous definition that is proposed would turn upon factors that the law does not delineate, rendering criminal liability unpredictable and undermining the law’s integrity. The definition is, moreover, so broad in its potential reach that, had it been effect for the last several decades, every U.S. president since John F. Kennedy, hundreds of American legislators and military leaders, as well as innumerable foreign military and political leaders could have been subjected to prosecution. These difficulties would be magnified by including the roulette wheel that is the United Nations Security Council in the decision to prosecute, as some have urged. Excluding the Council, on the other hand, would create an irresolvable conflict with the Charter. That the United States is not a party to the treaty does not render all this academic: it is possible that U.S. military and political leaders could still be prosecuted for the crime of aggression even if the United States continues to refuse to join.

“The Wrongheaded and Dangerous Campaign to Criminalize Good Faith Legal Advice”

Case Western Reserve Journal of International Law, Forthcoming
Hofstra Univ. Legal Studies Research Paper No. 09-27

JULIAN KU, Hofstra University – School of Law
Email: lawjgk@hofstra.edu

I argue in this brief essay that the increasingly fervent insistence on criminal punishment of the Bush administration lawyers for their legal advice on interrogation policy is both wrong-headed and dangerous. It is wrong-headed because the insistence on criminal prosecution of attorneys based solely upon their good faith interpretation of the law is highly unlikely to succeed as a matter of both U.S. and international law. It is dangerous because, at least with respect to U.S. law, prosecuting good faith legal advice is (and should be) a violation of those attorneys’ constitutional rights under the U.S. Constitution’s First Amendment and broader norms of free expression. Insisting on prosecuting lawyers for their good-faith legal advice, or even threatening prosecution, will chill the ability of future government lawyers to give legal advice on complex and important questions implicating U.S. national security.

60-day extension for sunsetting PATRIOT Act provisions; passing the 800 member mark

December 16, 2009

1. 60 day extension on the way for expiring PATRIOT Act provisions

A quick note on the PATRIOT Act provisions that were set to expire this month.  Apparently Congress is punting the issue until after the holidays, as there is a 60-day extension for these authorities in the Defense Appropriations bill that appears set to become law in the near future.  The PATRIOT debate accordingly will resume in early 2010…

2. 800 members and counting…

I was pleased to note yesterday that this listserv now has exactly 800 members, which is its high water mark.  The list has been around since about 2003, and has grown steadily, especially this year.  Feel free to encourage others to sign up!  Who knows, maybe there will be more than a 1000 of us by this time next year…

Executive Order re Thomson Correction Center; Hatim v. Bush

December 15, 2009

1. Executive Order Directing the Attorney General to Acquire the Thomson Correction Center

Available here.  And for an interesting assessment of whether relocation of a detainee from GTMO to the TCC would require refilling that person’s habeas petition in the Northern District of Illinois, see the take provided here by Steve Vladeck (his answer: probably not).  And if you are dying for more commentary on the pros-cons of the TCC development, check out the debate underway at NYT’s Room for Debate blog, here.

2. Hatim v. Bush (D.D.C. Dec. 16, 2009) (granting habeas to GTMO petitioner)

Meanwhile, habeas review of individual GTMO detainee cases continues.  After a win for the government that I reported yesterday, today brings a defeat.  Judge Urbina has granted habeas relief to Hatim (Case No. 05-cv-1429), according to a notice placed on the docket today.  The opinion explaining the ruling at this point is classified; I’ll circulate the unclassified version if and when it becomes available.

Al-Madhwani v. Obama (GTMO habeas denied); United States v. Sadequee (sentencing)

December 15, 2009

1. Musa’ab Al-Madhwani v. Obama (D.D.C. Dec. 14, 2009) (bench ruling denying GTMO habeas petition)

The Washington Post (Del Quentin Wilber) reports that Judge Hogan has denied habeas relief to Al-Madhwani, a Guantanamo detainee.   There is as yet no written opinion, but the Post account provides the following interesting details of the oral ruling:

– The government’s evidence consisted primarily of the petitioner’s own statements, with one set of statements coming from interrogations and another coming from the petitioner’s appearances before CSRT and ARB panels.

– Judge Hogan declined to consider the interrogation-derived statements, which apparently were given early on during the petitioner’s confinement, on the ground that they were tainted by abusive interrogation techniques.

– Judge Hogan did consider, however, the statements which the petitioner gave to the CSRT and ARB panels, on the ground that the taint of the earlier abuse had worn off sufficiently by then.  These statements included admissions that petitioner received military training at an al Qaeda camp, and that he had contact with Osama bin Laden.

– Relying on such statements, Judge Hogan found that the government had proved by a preponderance of the evidence that the petitioner was a member of al Qaeda.

2. United States v. Sadequee, United States v. Ahmed (N.D. Ga. Dec. 14, 2009)

A federal judge yesterday gave Sadequee a 17 year sentence, and gave Ahmed a 13 year sentence.  DOJ’s press release offers the following account of their underlying actions:

Sadequee was born in Fairfax, Va., in 1986.  He attended school in the United States, Canada and Bangladesh. In December 2001, while living in Bangladesh, he sought to join the Taliban, to help them in their fight against U.S. and coalition forces in Afghanistan.

Ahmed, a naturalized citizen born in Pakistan in 1984, came to the United States in the mid-1990s.  He attended high school in Roswell and Dawsonville, Ga., followed by college studies at North Georgia College and Georgia Tech.

Sadequee and Ahmed began discussing their obligation to support jihad in late 2004.  By this time, both Sadequee and Ahmed had become active on several web forums known to support the cause of violent jihad.  These discussions quickly grew into an active conspiracy with others to provide material support to terrorists engaged in violent jihad. The evidence indicated that the material support consisted of (1) Sadequee, Ahmed, and other individuals who intended to provide themselves as personnel to engage in violent jihad, and (2) property, namely, video clips of symbolic and infrastructure targets for potential terrorist attacks in the Washington, D.C., area, including the U.S. Capitol, the World Bank headquarters, the Masonic Temple, and a fuel tank farm — all of which were taken by Sadequee and Ahmed to be sent to “the jihadi brothers” abroad.

At trial, the government presented evidence that Sadequee, Ahmed, and their co-conspirators used the Internet to develop relationships and maintain contact with each other and with other supporters of violent jihad in the United States, Canada, the United Kingdom, Pakistan and elsewhere. In support of the conspiracy, in March 2005 Sadequee and Ahmed traveled to Toronto to meet with other co-conspirators, including Fahim Ahmad, one of the “Toronto 18” suspects awaiting a terrorism trial in Canada.  While in Canada, Sadequee, Ahmed, and their co-conspirators discussed their plans to travel to Pakistan in an effort to attend a paramilitary training camp operated by a terrorist organization, as well as potential targets for terrorist attacks in the United States.

In April 2005, Sadequee and Ahmed drove to the Washington, D.C., area to take the casing videos, which the government’s evidence showed they made to establish their credentials with other violent jihad supporters as well as for use in violent jihad propaganda and planning.  Sadequee later sent several of the video clips to Younis Tsouli, aka “Irhabi007” (Arabic for “Terrorist 007”), a propagandist and recruiter for the terrorist organization Al Qaeda in Iraq, and to Aabid Hussein Khan, aka “Abu Umar,” a facilitator for the Pakistan-based terrorist organizations “Lashkar-e-Tayyiba” and “Jaish-e-Mohammed.”  Both Tsouli and Khan have since been convicted of terrorism-related offenses in the United Kingdom and are imprisoned there.

The government’s evidence additionally showed that Sadequee and Aabid Hussein Khan, the convicted U.K.-based terrorist, using a members-only violent jihadist web forum known as “At-Tibyan Publications,” recruited at least two individuals to participate in violent jihad.  One, a self-identified 17-year-old American convert, was praised by Sadequee for his “capacity of fulfilling [his] largest obligations in [his] native land.”

The government also presented evidence at trial that in July 2005, Ahmed traveled from Atlanta to Pakistan in an unsuccessful attempt to enter a paramilitary terrorist training camp and ultimately engage in violent jihad.  While in Pakistan, Ahmed met with Aabid Hussein Khan, and the two discussed Ahmed’s intention of joining a camp. The day before Ahmed returned to Atlanta, Sadequee departed Atlanta for Bangladesh, carrying with him, hidden in the lining of his suitcase, an encrypted CD; a map of Washington, D.C., that covered all of the areas he and Ahmed had cased; and a scrap of paper with Aabid Hussein Khan’s mobile phone number in Pakistan.

Once in Bangladesh, Sadequee began to conspire more closely with Younis Tsouli and Mirsad Bektasevic, a Swedish national of Serbian origins.  Specifically, Tsouli, Bektasevic, Sadequee and others formed a violent jihadist organization known as “Al Qaeda in Northern Europe.”  The group was to be based in Sweden.  The evidence at trial showed that in October 2005, Sadequee sought a visa that would allow him to relocate from Bangladesh to Sweden.  Bektasevic was arrested in Sarajevo, Bosnia and Herzegovina, on Oct. 19, 2005.  He and a co-conspirator were found in possession of over 20 pounds of plastic explosives, a suicide belt with detonator, a firearm with a silencer and a video recorded by Bektasevic demonstrating how to make detonators; showing an arsenal of semi-automatic weapons, grenades, explosives and other arms; and depicting Bektasevic and others placing a grenade booby-trap in a forest near Sarajevo.  Sadequee had been in electronic and telephonic contact with Bektasevic as recently as three days before Bektasevic’s arrest, discussing the silencer and explosives Bektasevic had acquired for the group.  Bektasevic has since been convicted of terrorism offenses in Bosnia and Herzegovina.

Meanwhile, after returning to Atlanta to resume his studies at Georgia Tech in August 2005, Ahmed remained in contact with Sadequee, expressed regret at his failure to join violent jihadists, conducted internet research on topics such as high explosives and defeating Special Operations troops, and discussed his intent to make another attempt to enter a violent jihad training camp.  In March 2006, Ahmed was approached by FBI agents and agreed to a series of voluntary, non-custodial interviews over the course of eight days.  Amid efforts to deny his illegal activities and mislead the agents, Ahmed made increasingly incriminating statements.  Efforts by the FBI to obtain Ahmed’s cooperation in the ongoing international terrorism investigation ended after the FBI discovered that Ahmed was surreptitiously contacting Sadequee, who was still in Bangladesh, to advise him of the FBI investigation and to warn him not to return to the United States.

Ahmed was arrested on March 23, 2006, in Atlanta, on material support of terrorism charges.  He has been in custody ever since.

Sadequee was arrested on April 20, 2006, in Bangladesh, on charges arising out of false statements he made in an August 2005 interview with the FBI in the Eastern District of New York (EDNY).  Sadequee was indicted in the Northern District of Georgia on July 19, 2006, and transferred to Atlanta in August of that year, after the charges in EDNY were dismissed at the Government’s request.

Mayfield v. United States (9th Circuit December 10, 2009) (reversed for lack of standing, decision below vacated)

December 11, 2009

* Brandon Mayfield v. United States (9th Circ. Dec. 10, 2009)

As many of you will recall, Brandon Mayfield was an Oregon lawyer who was wrongly suspected of involvement in the Madrid train bombings.  Ultimately he brought a civil suit, most elements of which were settled.  The one claim that was not settled involved his argument that the use of FISA in his case violated the 4th Amendment, an argument that was accepted by the District Court.  Specifically, that court held that the 4th Amendment forbids resort to FISA where the “primary purpose” of the investigation was criminal prosecution.  The appeal has been pending for quite a while, and has been much anticipated.

Yesterday, the 9th Circuit vacated the decision below, and ordered the case dismissed for lack of standing.  The full text follows below:

Cite as: 2009 WL 4674172 (9th Cir.(Or.)))

Only the Westlaw citation is currently available.

United States Court of Appeals,

Ninth Circuit.

Brandon Bieri MAYFIELD, an individual; Mona Mayfield appointed as Guardian Ad

Litem per Order; Shane Mayfield; Sharia Mayfield; Samir Mayfield, individuals,

by and through their guardian ad litem Mona Mayfield, Plaintiffs-Appellees,


UNITED STATES of America, Defendant-Appellant.

No. 07-35865.

Argued and Submitted Feb. 5, 2009.

Filed Dec. 10, 2009.

Douglas Letter and Scott McIntosh, Civil Division, Department of Justice, Washington, D.C., for the appellant.

Elden Rosenthal, Rosenthal & Greene, P.C., Portland, OR, for the appellees.

Appeal from the United States District Court for the District of Oregon,  Ann L. Aiken, Chief District Judge, Presiding. D.C. No. CV-04-01427-AA.

Before RICHARD A. PAEZ and JOHNNIE B. RAWLINSON, Circuit Judges, and  RANER C. COLLINS, [FN*] District Judge.

FN* The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.


PAEZ, Circuit Judge:

*1 In this appeal, we must decide whether Plaintiffs-Appellees Brandon Mayfield, a former suspect in the 2004 Madrid train bombings, and his family, have standing to seek declaratory relief against the United States that several provisions of the Foreign Intelligence Surveillance Act (“FISA”) as amended by the PATRIOT Act are unconstitutional under the Fourth Amendment of the U.S. Constitution. Although Mayfield settled the bulk of his claims against the government, the settlement agreement allowed him to pursue his Fourth Amendment claim. According to the terms of the settlement agreement, the only relief available to Mayfield, if he were to prevail on his Fourth Amendment claim, is a declaratory judgment. He may not seek injunctive relief. We hold that, in light of the limited remedy available to Mayfield, he does not have standing to pursue his Fourth Amendment claim because his injuries already have been substantially redressed by the settlement agreement, and a declaratory judgment would not likely impact him or his family. We thus vacate the judgment of the district court.


On March 11, 2004, terrorists’ bombs exploded on commuter trains in Madrid, Spain, killing 191 people and injuring another 1600 people, including three U.S. citizens. [FN1] Shortly after the bombings, the Spanish National Police (“SNP”) recovered fingerprints from a plastic bag containing explosive detonators. The bag was found in a Renault van located near the bombing site. On March 13, 2004, the SNP submitted digital photographs of the fingerprints to Interpol Madrid, which then transmitted them to the FBI in Quantico, Virginia. Read the rest of this entry »

United States v. Ghailani (S.D.N.Y. Nov. 18, 2009) (denying 5th and 6th amendment arguments for continued access to military counsel)

December 11, 2009

* United States v. Ghailani (S.D.N.Y. Nov. 18, 2009)

A few weeks ago, Judge Kaplan rejected the argument by former GTMO detainee Ahmed Khalfan Ghailani that he has the right under the 5th and 6th amendments in the current civilian criminal proceeding to be represented by the two military lawyers who had previously represented him in connection with earlier military commission charges.  The full text appears below:
Cite as: 2009 WL 3853799 (S.D.N.Y.))

Only the Westlaw citation is currently available.

United States District Court,

S.D. New York.



Ahmed Khalfan GHAILANI, Defendant.

No. S10 98 Crim. 1023(LAK).

Nov. 18, 2009.

David Raskin, Michael E. Farbiarz, Ross E. Morrison, Assistant United States Attorneys, Preet Bharara, United States Attorney, David Brash, Robert E. Easton, Director, Office of Litigation Counsel, Department of Defense, Gregory E. Cooper, Esq., Peter Enrique Quijano, Esq., Michael K. Bachrach, Esq., for Defendant.


LEWIS A. KAPLAN, District Judge.

*1 Ahmed Khalfan Ghailani, an alleged member of Al Qaeda, was indicted in this Court in 1998 and charged with conspiring with Usama Bin Laden and others to kill Americans abroad by, among other means, bombing the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. An arrest warrant promptly issued. Some years later, Ghailani was captured abroad by a foreign state and turned over to the Central Intelligence Agency (“CIA”). Rather than execute the outstanding arrest warrant, the executive branch held Ghailani in CIA custody. Much later, he was transferred to secure facilities at the United States naval base at Guantanamo Bay, Cuba, where he remained until he was turned over to civilian authorities and presented pursuant to the warrant earlier this year. He now stands charged with, among other crimes, conspiring to kill Americans both here and abroad including by bombing the East African embassies.

While Ghailani was at Guantanamo, he was charged before a military commission with one of the embassy bombings. Two military officers, members of Marine and Air Force Judge Advocate General Corps, were assigned as his defense counsel. Although the military commission proceeding was aborted, Ghailani now seeks an injunction barring the Secretary of Defense from reassigning those officers to other duties and requiring that he permit them to participate fully in Ghailani’s defense in this Court. He argues that his constitutional rights to due process of law and to the effective assistance of counsel would be violated absent the full participation of these military counsel.


A. The Indictments

Ghailani first was indicted by a grand jury in this Court on December 16, 1998. The indictment, the third superseding indictment in this case, charged the existence of a broad ranging conspiracy by Usama Bin Laden and others, including Ghailani, to wage a campaign of terror against the United States. [FN1] Among the alleged means and methods of the conspiracy were (a) killing Americans abroad and (b) the bombing of the United States Embassies in Nairobi and Dar es Salaam. [FN2] Ghailani was charged with participation in the conspiracy and with substantive offenses.

The indictment in this case has been superseded many times since December 1998. Ghailani now is charged in the tenth superseding indictment, which was returned on March 12, 2001. [FN3] Unlike the third superseding indictment, the tenth alleges that the conspiracy in which he participated included among its objects the killing of Americans both in the United States and abroad. [FN4] He faces additional conspiracy and substantive charges under the current indictment, [FN5] but the broad outline of his alleged involvement in the conspiracy remains largely the same as in previous instruments.

B. Ghailani’s Capture and Detention

This Court issued a warrant for Ghailani’s arrest on the day he first was charged. [FN6] The warrant was not promptly executed, presumably because he could not be found.

*2 On July 24, 2004, Ghailani was taken into Pakistani custody. He was transferred to exclusive United States control and then held and interrogated outside of the United States by the CIA as part of a secret intelligence-gathering program. [FN7] In September 2006, President Bush ordered that Ghailani and several other “high value detainees” be transferred to the U.S. naval base at Guantanamo Bay, [FN8] where he was held in military custody for approximately 32 months.

C. The Military Commission Prosecution at Guantanamo

In March 2008, Ghailani was charged before a military commission at Guantanamo with offenses related to the 1998 embassy bombing in Dar es Salaam. A month later, Lieutenant Colonel Michael Acuff, United States Army Reserve, was assigned to represent him in that proceeding. Some time later, Ghailani requested new counsel in consequence of which Lieutenant Colonel Acuff was reassigned in August 2008. Soon thereafter, the Chief Defense Counsel of the Office of Military Commissions assigned Lieutenant Colonel Jeffrey P. Colwell, United States Marine Corps, and Major Richard B. Reiter, United States Air Force, to represent him. [FN9]

By all accounts, Colonel Colwell and Major Reiter established good working relationships with the defendant. At his October 22, 2008 arraignment before the military commission, Ghailani requested that a civilian attorney, Scott Fenstermaker, Esq., be allowed to join the defense team, but he indicated also that he wanted Colonel Colwell’s and Major Reiter’s representation to continue. Colonel Colwell and Major Reiter spent considerable time and effort preparing for Ghailani’s defense before the military commission, including several trips to meet with the defendant at Guantanamo.

D. Ghailani’s Transfer to the Criminal Justice System and His Subsequent Representation in this Court

After taking office in January 2009, President Obama suspended the military commissions and, on May 21, 2009, announced that Ghailani would be transferred to this Court for prosecution. Immediately thereafter both Ghailani and his military counsel formally requested that Colonel Colwell and Major Reiter be permitted to represent the defendant in this forum. [FN10] These requests ultimately were denied save that Colonel Colwell and Major Reiter were given permission to remain involved with the defense until October 19, 2009 so that they might effectively “transition” the case to Ghailani’s appointed civilian counsel. [FN11]

E. The Present Motion

On October 7, 2009, the defense moved by order to show cause for a temporary restraining order and permanent injunction enjoining the reassignment of Colonel Colwell and Major Reiter at the conclusion of the transition period on October 19, 2009. [FN12] Ghailani claims that such a reassignment would violate his Fifth Amendment right to due process of law and his Sixth Amendment right to the effective assistance of counsel.

It is important to note the precise manner in which the application is framed. The papers bear the caption of this criminal case followed by an additional caption styled Ahmed Khalfan Ghailani, Petitioner, against Robert M. Gates, Secretary of Defense, Respondent. They seek an injunction against the Secretary of Defense. Ghailani, however, has filed no such civil action.


*3 This is a criminal prosecution to which the Secretary of Defense is not a party. Thus, by styling the application as one for an injunction against the Secretary, the defense has raised a number of preliminary questions, including whether the Court could and should grant relief against the Secretary in this case, assuming arguendo that relief otherwise were warranted. The Defense Department and the United States Attorney’s Office (“USAO”), moreover, have met the defense on this ground. [FN13] But the application must be viewed from another perspective as well.

In essence, the defendant claims that the United States government, the word  “government” here used to refer to the United States as a whole rather than in the more limited sense used in criminal cases, where it typically refers to the USAO and the Department of Justice, threatens to act in a manner that would violate his Fifth and Sixth Amendment rights in this criminal case. [FN14] There appears to be little doubt that “[i]f … a Sixth Amendment violation is the result of ongoing government conduct, the district court … may order the cessation of such conduct” in the context of a criminal case. [FN15] There is no doubt at all that a completed violation of Fifth or Sixth Amendment rights may warrant dismissal of an indictment. [FN16] Accordingly, the Court will consider both the specific application for an injunction against the Secretary of Defense and the more general assertion that relief is warranted against the United States as part of this criminal prosecution.

I. Jurisdiction Over and Justiciability of the Motion for an Injunction Against the Secretary

A. The Standard for Injunctive Relief

“A party seeking preliminary injunctive relief must establish: (1) either (a) a likelihood of success on the merits of its case or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor, and (2) a likelihood of irreparable harm if the requested relief is denied.” [FN17] The standard for a permanent injunction is the same except that the applicant must prevail, as distinguished from establishing some likelihood of success, on the merits. [FN18] In order to prevail here, then, Ghailani first must establish that the Court has jurisdiction–power–to grant relief against the Secretary if relief were warranted and that prudential considerations would permit the exercise of any such power. I begin with those questions. [FN19] The further issue whether the reassignment of Colonel Colwell and Major Reiter would violate Ghailani’s constitutional rights is common to his claims against the Secretary and for relief against the government, meaning here the prosecution, and therefore is treated separately below.

B. Subject Matter Jurisdiction

“Federal district courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute .” [FN20]

*4 Jurisdiction in this case is invoked under Section 3231 of the Criminal Code, [FN21] which provides that “[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” In seeking to obtain an injunction against the Secretary, Ghailani seeks relief that is beyond the scope of that statute. The question therefore arises whether jurisdiction may be grounded in the doctrine of ancillary jurisdiction or elsewhere.

The doctrine of ancillary jurisdiction “recognizes federal courts’ jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them,” [FN22] essentially allowing federal courts to “assert[ ] otherwise nonexistent federal jurisdiction.” [FN23] “At its heart, ancillary jurisdiction is aimed at enabling a court to administer ‘justice within the scope of its jurisdiction.’ … Without the power to deal with issues ancillary or incidental to the main action, courts would be unable to ‘effectively dispose of the principal case, nor do complete justice….’ ” [FN24] But “[t]he boundaries of ancillary jurisdiction are not easily defined and the cases addressing it are hardly a model of clarity, [FN25] particularly in criminal cases. [FN26] Specifically, the Supreme Court has instructed that exercise of ancillary jurisdiction may be appropriate in two circumstances: “(1) to permit disposition of claims that are, in varying respects and degrees, factually interdependent by a single court, and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” [FN27]

In the criminal context, district courts most often have exercised ancillary jurisdiction in order to settle state law contract disputes over attorneys’ fees related to their ongoing criminal proceedings. [FN28] However, in Stein v. KPMG, LLP, [FN29] its most recent statement on this subject, the Second Circuit held improper the district court’s exercise of ancillary jurisdiction in a criminal case over a state law contract claim against a non-party for payment of defense costs. [FN30] It explained that “when a non-party to the primary proceeding is sought to be joined as a defendant in the ancillary proceeding, the need for the ancillary proceeding and the efficiencies provided by it must be both sufficiently great to outweigh the prejudice to the non-party and to be consistent with the limited jurisdiction of federal courts.” [FN31] Its holding therefore rested on its conclusions that (1) KPMG, as a non-party to the criminal proceedings, would have been prejudiced significantly by being subjected to ancillary jurisdiction, [FN32] (2) the claim over which ancillary jurisdiction was exercised involved state law contract “matters that [we]re otherwise outside the jurisdiction conferred by the Constitution and the Congress,” [FN33] and (3) the exercise of ancillary jurisdiction would not necessarily have remedied the constitutional concerns that motivated it and there in any case were other remedies for any constitutional violations. [FN34] This case, however, is significantly different.

*5 Ghailani’s claim, in contrast to that against KPMG in Stein, is not a state law contract matter over which the federal courts otherwise would lack subject matter jurisdiction. Ghailani contends that the Secretary intends to act in a manner that would violate his rights under the U.S. Constitution. That claim arises under the federal Constitution. It would come within the federal question jurisdiction of the district courts conferred by Section 1331 of the Judicial Code [FN35] and within the waiver of sovereign immunity contained in Section 10(a) of the Administrative Procedure Act [FN36] if it were brought as a free-standing civil action. Thus, the exercise of ancillary jurisdiction would not involve this Court in state law matters that otherwise would be beyond its cognizance. Nor would it prejudice the Secretary by “subject[ing him] to what may be a different forum and different procedural or even substantive rules than would normally be involved in disposing of the claims at issue.” [FN37]

To be sure, there is one pertinent similarity between Stein and this case there is at least one other remedy for any violation by the Secretary of Ghailani’s constitutional rights–dismissal of the indictment. But that, in the Court’s view, is not sufficient to deprive it of ancillary jurisdiction to determine Ghailani’s claim. There is an overwhelming public interest in the determination of the charges against Ghailani on the merits without unnecessarily risking the possibility that any conviction, if that were the outcome, would have to be overturned on a basis that could have been avoided by a ruling prior to trial. Given the lack of any prejudice to the Secretary from determining the matter now and the fact that the claim against him raises purely federal questions that could be heard now in a civil suit in federal court, this Court concludes that the balance of considerations decidedly favors the exercise of ancillary jurisdiction to decide the merits of Ghailani’s contentions.

C. Justiciability

The fact that the Court has jurisdiction to decide the claim against the Secretary does not necessarily mean that it should do so. There are both constitutional and prudential limitations on the exercise of federal judicial power, commonly referred to under the rubric of justiciability. [FN38] In deciding whether a case is justiciable, courts must consider whether it is of a sort that courts can decide competently as well as whether they ought to do so in light of the constitutional balance of powers. [FN39]

The Constitution explicitly vests Congress and the executive with control over military affairs. [FN40] In an oft-quoted passage, the Supreme Court remarked:

“[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments…. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.” [FN41]

*6 Courts therefore have shown great deference to the political branches regarding military decisions, both at the threshold justiciability stage and when deciding the merits of justiciable cases. [FN42] “The rule of non-justiciability of discretionary military decisions,” however, “is not absolute.” [FN43] Courts consistently have held justiciable certain types of claims against the military service members’ challenges under the Administrative Procedure Act to final decisions by Boards for the Correction of Military Records, [FN44] claims that a military official acted beyond his or her powers [FN45] or that a decision was “so arbitrary and irrational that it cannot stand,” [FN46] allegations that the military violated Congressional rules or internal military regulations [FN47] and constitutional challenges to military regulations. [FN48] With respect to each of these categories the Supreme Court has determined or, at times, simply assumed [FN49] that the particular question presented was subject to judicial review notwithstanding the general textual commitment of military matters to the political branches. Ghailani’s claim, however, does not fit neatly into any of these categories, so the Court must look to more general justiciability standards.

The justiciability of a particular claim involving separation of powers concerns turns on two distinct but closely related inquiries. [FN50] First, as a general matter, a court must decide “whether the claim presented and the relief sought are of the type which admit of judicial resolution.” [FN51] If so, the court then must ask “whether the structure of the Federal Government renders the issue presented a ‘political question’–that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.” [FN52]

1. General Justiciability

In answering the first question, courts must decide whether “the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” [FN53]

Here, the defendant asserts that reassignment of Colonel Colwell and Major Reiter to other duties would violate his Fifth and Sixth Amendment rights. He asks the Court to enjoin the Defense Department from taking this action. [FN54] Determining whether a person’s constitutional rights have been violated and fashioning appropriate relief is a core, traditional function of American courts. [FN55] There is no suggestion that deciding this question would be beyond the institutional competence of the judiciary. Moreover, to whatever extent the government’s argument relies on the asserted impropriety of injunctive relief, the Court notes that injunctive relief is only one potentially available remedy should it determine that Ghailani’s constitutional rights would be violated by the intended government action. [FN56] Accordingly, Ghailani’s claim “admit[s] of judicial resolution.” [FN57] The criteria for general justiciability are satisfied.

2. The Political Question Doctrine

*7 The second justiciability inquiry concerns the constitutional separation of powers. It requires courts to define the proper scope of judicial authority in relation to the other government branches. [FN58]

As far back as Marbury v. Madison, [FN59] the Supreme Court recognized a narrow class of claims, the resolution of which is best left to the politically accountable branches of the federal government. [FN60] This widely recognized but ill-defined doctrine received its clearest and most systematic treatment in Baker v. Carr, [FN61] where the Supreme Court sketched its contours by describing six of the most common characteristics of political questions:

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” [FN62]

The Court cautioned, however, that “the doctrine of which we treat is one of  ‘political questions,’ not one of ‘political cases.’ ” [FN63] The mere fact that a case may have political overtones or consequences does not make it nonjusticiable. Rather, the court must engage in a “discriminating inquiry into the precise facts and posture of the particular case.” [FN64] “Whether a case or controversy … lies beyond judicial cognizance can only be determined by ‘a discriminating analysis of the particular question posed,’ including a consideration of ‘the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in the specific case, and of the possible consequences of judicial action.’ ” [FN65]

Each Baker factor contemplates a different potential constitutional or prudential problem that could be created were a court to adjudicate the “issue” or “question” in the case. Before addressing these factors, then, this Court must define with specificity the issue presented. [FN66]

Both the government and the defense have spent considerable energy disputing the scope of the Court’s authority to review and enjoin the Defense Department’s reassignment of Colonel Colwell and Major Reiter. This focus, however, confuses the central question presented by Ghailani’s application with the specific form of relief requested. The precise issue before this Court is not the Secretary’s authority to order reassignment or even the appropriateness of this discretionary personnel decision in this instance. It is, instead, the question whether the effect of this decision would infringe upon the defendant’s constitutional rights. In deciding that issue, the Court need not review the Secretary’s discretionary decision or his reasoning. It need determine only whether that decision would violate the defendant’s Fifth or Sixth Amendment rights. Having precisely characterized the issue in this manner, the Court now proceeds to the Baker factors to determine whether it constitutes a political question.

*8 Most political question cases involving claims against the military have turned on a combination of the first and second Baker factors [FN67]— whether there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department” [FN68] and whether there are “judicially discoverable and manageable standards” for its resolution. The Second Circuit, moreover, repeatedly has recognized the first factor as the “dominant consideration in any political question inquiry” because a textual commitment strongly indicates that the matter falls outside the scope of judicial power. [FN69] The first and second factors are not entirely separate, however, as “[t]he lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch.” [FN70]

The Constitution explicitly commits control and maintenance of the military to Congress and the executive. [FN71] Pursuant to this commitment, Congress has delegated significant rulemaking and decisionmaking authority to military agencies and officials. [FN72] Whether or not a case involving military action turns on a political question, however, depends upon a more nuanced analysis as to whether the specific issue presented, as distinguished from military affairs generally, has been committed to a political branch.

In the 1970s, the Second Circuit confronted a series of legal challenges to military campaigns in southeast Asia. The different results in those cases demonstrate both the importance of properly defining the issue and the significance of the second Baker factor in political question analysis.

In Orlando v. Laird, [FN73] the Second Circuit held that the question whether the Vietnam war had been authorized by Congress and therefore was constitutional was justiciable. In so doing, it relied upon the fact that Article I, Section 8, of the Constitution, which gives to Congress the power to declare war, provided a judicially discoverable and manageable standard for deciding the war’s constitutionality. [FN74] In the same opinion, however, the Circuit concluded that the “constitutional propriety of the means by which Congress has chosen to ratify” the military action was a political question because it was “one of policy, committed to the discretion of Congress … and there are no intelligible and objectively manageable standards by which to judge such actions.” [FN75]

By contrast, the Second Circuit held nonjusticiable two other challenges to military conduct that would have required the court to determine whether particular military actions constituted continuations of a Congressionally authorized war or “escalations” that required new Congressional authorization. In DaCosta v. Laird, [FN76] it concluded that President Nixon’s decision, made without new Congressional authorization, to mine North Vietnam harbors was nonjusticiable. [FN77] Not only were such tactical decisions exclusively committed to the president as commander-in-chief, but the court held also that judicial review of that decision would require factual investigations and political policy determinations for which courts were ill-equipped. [FN78] Likewise, in Holtzman v. Schlesinger, [FN79] the Circuit held that it lacked both constitutional authority and the factfinding capacity to review the legality of military bombings in Cambodia. [FN80]

*9 Ghalani’s application is comparable to Orlando and quite different from  DaCosta and Holtzman. This motion requires only that this Court apply the Fifth and Sixth Amendments to determine the constitutionality of the Secretary’s intended action much as Orlando required nothing more than the application of Article I, Section 8, to determine whether the president’s action constituted the making of war without the requisite Congressional authority. The question presented is simply whether the severance of the professional relationships between Colonel Colwell and Major Reiter with Ghailani would be a constitutional violation. Its resolution requires a purely legal determination for which the courts are particularly well-suited. Unlike DaCosta and Holtzman, it would not involve a determination of a matter textually committed to another branch or fact finding endeavors for which courts are ill equipped.

This view is consistent also with Gilligan v. Morgan, [FN81] another case that involved a civilian challenge to military policies and conduct that was held to present a political question. There, in the wake of the shootings at Kent State University, students sought “a judicial evaluation of the appropriateness of the ‘training, weaponry and orders’ of the Ohio National Guard.” [FN82] The Court’s justiciability analysis first concluded that “there [was no] relief a District Court could appropriately fashion.” “The [declaratory and injunctive] relief sought by respondents, requiring initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard, would … embrace critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches of the Government.” [FN83] Furthermore, the Court noted that discretionary choices regarding “evolving methods of training, equipping, and controlling military forces” were best left to military professionals. [FN84] Accordingly, the Court held the claim to be nonjusticiable based on a combination of factors: “[t]he advisory nature of the judicial declaration sought,” the fact that “the questions to be resolved on remand are subjects committed expressly to the political branches,” “uncertaint[y] as to whether a live controversy still exists,” and “the infirmity of the posture of respondents as to standing.” [FN85] It noted, however, that “we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel….” [FN86]

Unlike cases that courts have found to turn on political questions, this motion does not ask this Court to “review” a military decision or otherwise act beyond its constitutionally prescribed role and institutional competence. It need not insert itself into the military’s decisionmaking hierarchy, second-guessing discretionary decisions as in Gilligan. Nor is it asked to discover or evaluate, as a factual matter, the bases on which the Judge Advocates General of their respective military branches have decided to reassign Colonel Colwell and Major Reiter. The motion instead asks only that it decide the legal effect that these military decisions would have on the defendant, a function to which it is well-suited. Furthermore, unlike the situation in Gilligan, appropriate relief could be fashioned in this case.

*10 These considerations suggest that the particular question at issue in this case is committed to the judiciary rather than the political branches. [FN87] The mere fact that the controversy involves military personnel decisions does not render it a nonjusticiable political question under the first two Baker factors. [FN88]

Baker’ s other four factors are easily dispatched. Factors four through six  “appear to be relevant only if judicial resolution of the question would contradict prior decisions taken by a political branch in those limited contexts where such contradiction would seriously interfere with important governmental interests.” [FN89] “The greater the scope of a military decision and the more far-reaching its effects, the more it assumes the aspects of a political determination, which, in and of itself, is not subject to judicial second-guessing.” [FN90]

Here, the Court’s review of the effect of the Secretary’s decision would be quite narrow. Adjudication of the motion would judge the constitutional effect, not the wisdom, of the decision to reassign Colonel Colwell and Major Reiter. Such judicial action would not require an initial policy determination, nor would it necessarily contradict or be incompatible with the military’s reassignment of these officers. Colonel Colwell and Major Reiter’s superior officers presumably balanced a variety of military needs and interests in making their staffing decisions. The Court, however, need only determine the constitutional effect of those decisions, an inquiry which would implicate different facts and concerns and imply no disrespect for the staffing decision made by a coordinate political branch. The fact that adjudication of the defendant’s rights might prove inconvenient for a coordinate department is not the sort of constitutionally cognizable “disrespect” the political question doctrine seeks to prevent. [FN91]

The Secretary and the USAO rely, in support of a contrary conclusion, upon cases involving intramilitary immunity. This line of authority, which began with Feres v. United States [FN92] and has been followed by a series of Supreme Court and Second Circuit cases, has restricted the types of suits that service members may bring against the military, [FN93] including in some instances suits challenging personnel decisions. [FN94]

The intramilitary immunity cases do not go as far as the government would have them. At least some suits by service members for equitable relief “designed to halt or prevent … constitutional violation[s] rather than [to recover] money damages” [FN95] are permissible. [FN96] But this ultimately is beside the point.

The intramilitary immunity doctrine most frequently has been justified by three considerations specific to the intramilitary context: (1) military life and discipline necessitate greater restrictions on individual rights, [FN97] (2) intramilitary suits may detrimentally affect military discipline in light of the “peculiar and special relationship of the soldier to his superiors,” [FN98] and (3) an internal military justice system is available to redress service members’ grievances. [FN99] But Ghailani is not a member of the armed forces. Considerations of military life and discipline are not relevant to his situation, and he has no remedies within the military justice system and no further practical avenue for relief within its administrative structure. In consequence, the intramilitary immunity cases–although both the intramilitary immunity and political question doctrines stem from similar structural and policy concerns, and courts understandably and frequently have transplanted language and reasoning from one doctrinal line to the other–are not compelling here. The issue tendered by Ghailani’s motion is not a political question.

* * *

*11 In the last analysis, Ghailani asks this Court to decide only the constitutional effect of the Secretary’s intended action, not the propriety or wisdom of his decision to act in that manner. Defining and protecting constitutional rights is a core function of the judiciary and one that this Court cannot and should not abdicate. Accordingly, the Court holds that Ghailani’s motion for relief against the Secretary of Defense is justiciable. As his rights to relief against the Secretary and against the government, meaning here the prosecution, are coextensive, I treat the issue as one.

III. Ghailani’s Constitutional Claims

A. The Due Process Claim

Ghailani asserts that his relationship with Colonel Colwell and Major Reiter is unique. He was rendered involuntarily into CIA custody and placed in a secret interrogation program that, in Ghailani’s words, “created a situation where it is highly likely that [he] would have difficulty forming a productive attorney-client relationship with his attorneys.” [FN100] When he was moved to Guantanamo and charged before a military commission, Colonel Colwell and Major Reiter were assigned to him by the military. Notwithstanding what he suggests were near-insurmountable difficulties created by the U.S. government, he came to trust these officers to a degree that perhaps could not be equaled with new counsel. [FN101] The president then suspended the military commissions and elected to prosecute him in this Court whereupon the Secretary has determined to deprive him of assistance of these valued lawyers. This, he argues, is egregiously unfair and would deprive him of due process of law.

The Fifth Amendment guarantees criminal defendants “fundamental fairness” throughout the criminal process. [FN102] Nevertheless, “[w]here a particular [constitutional] Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process” must be the guide for analyzing [a] claim[ ].’ ” [FN103]

The Sixth Amendment attaches upon indictment and thereafter guarantees the right to effective assistance of counsel. [FN104] The government conduct at issue in this case–the Defense Department’s reassignment of Colonel Colwell and Major Reiter–is occurring post-indictment and therefore is properly governed by the Sixth rather than the Fifth Amendment. The defense’s reliance on United States v. Stein [FN105] for a contrary view therefore is misplaced. Indeed, the Court’s due process analysis there concerned pre-indictment government conduct. [FN106] Accordingly, Ghailani’s claim rises or falls on the Sixth Amendment. [FN107]

B. The Sixth Amendment Right to Counsel Claim

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” [FN108] For a criminal defendant who can pay for representation, this encompasses the right to choose his or her own legal counsel. [FN109] Indigent defendants like Ghailani also are entitled “to assistance of counsel, by appointment if necessary, in a trial for any serious crime.” [FN110] However, “[t]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” [FN111] “The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.” [FN112]

*12 In large part, this reflects the Supreme Court’s interpretation of the Sixth Amendment as fundamentally more concerned with fostering an effective adversarial system than with ensuring satisfying attorney-client relationships. [FN113] Indeed, the Court specifically has “reject[ed] the claim that the Sixth Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel.” [FN114] In the same vein, the Second Circuit has held that “there is no constitutional right to continuity of appointed counsel.” [FN115] Indeed, the Criminal Justice Act provides that a court “in the interests of justice” may “substitute one appointed counsel for another at any stage of the proceeding.” [FN116]

Defense counsel correctly note that the military justice system does recognize a qualified right to continuity of counsel [FN117] which, if it applied here, might require a showing of good cause for the reassignment of these officers. But the more generous protection of the right to counsel afforded in the military justice system is grounded in the Uniform Code of Military Justice and military regulations, not the Sixth Amendment. [FN118] Accordingly, the military analogy lends no support to Ghailani’s argument. He is entitled to, and is receiving, representation of appointed counsel at public expense. He is not entitled to choose particular government-paid counsel–military or civilian–and he does not have a right to the continued services of previously appointed counsel. [FN119]


Colonel Colwell and Major Reiter have performed a service to their country as well as to their client by their steadfast devotion to his cause. Their professionalism in seeking to remain in the case is admirable. The Secretary’s decision to reassign them, however, does not violate Ghailani’s rights.

The defendant’s motion [DI 791], whether treated solely as one for preliminary and permanent injunctive relief against the Secretary of Defense or as one to dismiss the indictment or for other relief, based on the alleged violation by the United States of his Fifth and Sixth Amendment rights is denied. The foregoing constitute my findings of fact and conclusions of law.


FN1. Third superseding indictment [DI 31] ¶¶ 1-9.

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New GTMO Transfer: Al Rabiah sent to Kuwait

December 9, 2009

1. New GTMO Transfer: Al Rabiah sent to Kuwait

Al Rabiah had prevailed in his habeas litigation in September, and has now been transferred back to Kuwait. Details here.

2. Forthcoming Scholarship

Conquering Peace: Military Commissions as a Lawfare Strategy in the Mexican War

Erika Myers
American Journal of Criminal Law, Vol. 35, No. 2, pp. 201-240, 2008

The War on Terror has provoked much discussion on the proper role of law in war. A considerable amount of this debate has centered on the idea of lawfare: the use of international law as a weapon of war – usually by weaker states or unconventional combatants, and usually to America’s disadvantage. This Note examines this theory of lawfare through our experience with military tribunals in the Mexican War; it provides the most extensive study to date of the use of military commissions and councils of war during that conflict. Other articles have surveyed the history of American military tribunals from the Revolutionary period to the present, primarily focusing on the balance of power between the legislative and executive branches over military tribunals in the absence of specific legislation. Few, however, have devoted any significant attention to the Mexican War, and none have thoroughly explored how the Mexican War tribunals functioned as part of the American occupation strategy. This Note argues that General Scott used military tribunals as part of a counterinsurgency strategy, developing innovations tailored to the needs of his occupation yet exceeding the requirements of international law, and that this strategy worked to hamper public support for and decrease the effectiveness of unconventional enemy combatants. This Note is also the first to relate this history to the idea of lawfare, using it to challenge the common perception that lawfare is a strategy of America’s enemies, by showing how Scott used lawfare to American advantage in the occupation of Mexico.

Lincoln and Habeas: Of Merryman, Milligan, and McCardle

John Yoo (Berkeley)

Chapman Law Review, Vol. 12, No. 3, pp. 1-29, 2009

This essay examines the costs of judicial intervention in wartime policy through the lens of three Civil War cases – Ex parte Merryman, Ex parte Milligan, and Ex parte McCardle. In Merryman, the Supreme Court held that President Lincoln’s suspension of the writ of habeas corpus was unconstitutional. In Milligan, the Court held that military commissions had no jurisdiction over civilians in Northern states, where the courts were open and their process unobstructed. Although both opinions provide stirring rhetoric about the vitality of constitutional rights during wartime, they became largely irrelevant. President Lincoln refused to obey the Court and continued to order the detention of suspected Confederate sympathizers and conspirators. After Milligan, Congress stripped the Court of jurisdiction over habeas corpus appeals, and military occupation and trials continued throughout the South – an outcome accepted by the Court in McCardle. The remarkable lack of deference to the political branches during provoked reactions by the political branches that undermined the Court as an institution. Chief Justice Taney and Justice Davis wrongly believed that the Court had the final and immediate authority to resolve constitutional questions, regardless of the wartime circumstances. The Court’s attachment to judicial supremacy in wartime ultimately provoked outright presidential defiance and the only clear example of congressional jurisdiction-stripping in the Court’s history.

“Congress’s Role in Cyber Warfare”

Journal of National Security Law & Policy, Forthcoming
Vermont Law School Research Paper No. 10-16

STEPHEN DYCUS, Vermont Law School
Email: sdycus@vermontlaw.edu

U.S. defense and intelligence communities are currently working feverishly to prepare for electronic warfare. The threat of a cyber attack on the United States is extremely serious. Many nations and individuals now possess the means to carry out such an attack, and it might be impossible to identify the attacker. If the United States launches a preemptive strike or counterattack, it could be difficult to predict the effects, raising significant law of armed conflict concerns.

The potential strategic and diplomatic consequences of cyber warfare are at least at great as those of a conflict using conventional kinetic weapons. The Framers intended that Congress play a significant role in deciding when and how the United States should engage in such a consequential conflict. Yet little effort has been made so far to describe an appropriate role for Congress.

Borrowing from our experience in planning for nuclear war, this article suggests that Congress immediately engage in collaborative planning with the executive branch for cyber warfare. Specifically, it urges Congress to organize itself better to conduct this planning, to adopt general guidelines for the use of cyber weapons, and to strengthen existing rules for oversight and accountability. It proposes a review of relevant privacy laws. And it argues for a prohibition on automated offensive responses to cyber attacks, as well as on the employment of contractors to operate cyber weapons.

Judicial Micro-Management of National Security Information

Stephen I. Landman
Catholic University of America – Columbus School of Law

A recent decision by U.S. District Judge Vaughn R. Walker in the Northern District of California, al Haramain Islamic Foundation, Inc. v. Bush, has revived a question of national security law and policy long thought to be settled – is control over access to classified information entrusted to the sole discretion of the Executive Branch, and if so can the Judiciary review that determination? Although this case began as an attempt to challenge the constitutionality of the recently discovered Terrorist Surveillance Program (“TSP”), it may present the U.S. Court of Appeals for the Ninth Circuit with an opportunity to rule on the ability of the Executive Branch to protect sensitive military and national security information.

This article will evaluate the District Court’s recent discovery orders in al Haramain Islamic Foundation, Inc. v. Bush, focusing on the debate that has ensued over which branch of the United States Government is entrusted with control over access to sensitive national security information. Part I of this article will detail the background and procedural history of the al Haramain litigation, highlighting the facts and circumstances that make the plaintiff unique in the multitude of challenges to the Bush Administration’s Terrorist Surveillance Program. Part II examines the debate over access to classified documents generally as well as the specific issues highlighted by the al Haramain litigation, ultimately concluding that the District court ignored long standing precedent for judicial restraint in cases involving Executive Branch determinations over access to classified material. Finally, Part III proposes a variety of possible solutions that each of the coordinate branches could undertake to resolve the underlying dispute in the al Haramain litigation.

“Security vs. Liberty: An Imbalanced Balancing”

Minnesota Legal Studies Research Paper No. 09-42

OREN GROSS, University of Minnesota Law School
Email: gross084@umn.edu

The metaphor of balancing and the use of “balancing tests” are dominant features in legal discourse. Since the terrorist attacks of September 11, 2001, that metaphor has been invoked regularly to explain the need for a trade-off between liberty and security. This Article focuses on challenges to balancing that are either unique or somehow exacerbated in the context of responding to violent crises. Drawing on cognitive theory of decision-making under conditions of uncertainty it suggests that balancing processes, in general, and those seeking to balance such interests as liberty and security, in particular, are likely to suffer from identifiable biases. This indicates that the outcomes of such delicate and complex balancing acts are likely to be distorted and thus sub-optimal. While the theory does not, necessarily, make claims as to what the equilibrium between the competing interests ought to be at any given context – for example, it does not seek to determine what an acceptable level of risk from terrorist attacks ought to be – it does suggest that once such a decision is made, the analysis that decision-makers perform in particular cases and in adopting specific counter-measures is likely to be significantly flawed. Perhaps even more importantly, it suggests that such flaws are systematic and that they are going to be tilted in one direction – i.e., towards more security – than the other, i.e., more liberty. The systematic nature of the biases that are identified suggests that failure to address them may turn the mistakes and errors that are discussed in the paper into cognitive pathologies, i.e., decision methods that are not only mistaken but irrational.