more GTMO transfers; forthcoming scholarship

December 1, 2009

DOJ has announced that four GTMO detainees have been transferred to Hungary (1), France (1), and Italy (2) (see United States Transfers a Guantanamo Bay Detainee to HungaryUnited States Transfers a Guantanamo Bay Detainee to France; and United States Transfers Two Guantanamo Bay Detainees to Italy).  Details from the press releases follow.  Note that this reduces the number of GTMO detainees to about 211.

Hungary (unnamed detainee, someone identified as being from the West Bank):

As directed by the President’s Jan. 22, 2009 Executive Order, the interagency Guantanamo Review Task Force conducted a comprehensive review of this case. As a result of that review, the detainee was approved for transfer from Guantanamo Bay. In accordance with Congressionally-mandated reporting requirements, the Administration informed Congress of its intent to transfer the detainee at least 15 days before his transfer.

Late last night, a detainee originally from the West Bank was transferred to the government of Hungary. The government of Hungary has requested that the detainee’s identity be withheld for security and privacy reasons. The United States is grateful to the government of Hungary for helping achieve President Obama’s directive to close the Guantanamo Bay detention facility.

This transfer was carried out under an arrangement between the United States and the government of Hungary. The United States has coordinated with the government of Hungary to ensure the transfer takes place under appropriate security measures and will continue to consult with the government of Hungary regarding this individual.

France (Sabir Lahmar, one of five detainees as to whom Judge Leon concluded in Boumediene the government lacked sufficient evidence to detain):

Late last night, Sabir Lahmar, a native of Algeria, was transferred to the government of France. On Nov. 20, 2008, a federal court ruled that Lahmar may no longer be detained under the Authorization for the Use of Military Force and ordered the government to take all necessary and appropriate diplomatic steps to facilitate his release from detention at Guantanamo Bay. The United States is grateful to the government of France for helping achieve President Obama’s directive to close the Guantanamo Bay detention facility.

This transfer was carried out under an arrangement between the United States and the government of France. The United States has coordinated with the government of France to ensure the transfer takes place under appropriate security measures and will continue to consult with the government of France regarding this individual.

Italy (Abel Ben Mabrouk bin Hamida Boughanmi, Mohammed Tahir Riyadh Nasseri, both of Tunisia, will be prosecuted in Italy):

As directed by the President’s Jan. 22, 2009 Executive Order, the interagency Guantanamo Review Task Force conducted a comprehensive review of each of these cases. As a result of that review, these detainees were approved for transfer from Guantanamo Bay. In accordance with Congressionally-mandated reporting requirements, the Administration informed Congress of its intent to transfer each of these detainees at least 15 days before their transfer.

Earlier today, Abel Ben Mabrouk bin Hamida Boughanmi and Mohammed Tahir Riyadh Nasseri, both of Tunisia, were transferred to the government of Italy. Both detainees are the subject of outstanding arrest warrants in Italy and will be prosecuted there. The United States is grateful to the government of Italy for helping achieve President Obama’s directive to close the Guantanamo Bay detention facility.

These transfers were carried out pursuant to a Memorandum of Understanding concluded by Attorney General Eric Holder and Italian Justice Minister Angelino Alfano in September. The United States has coordinated with the government of Italy to ensure the transfers take place under appropriate security measures and will continue to consult with the government of Italy regarding these detainees.

2. Forthcoming Scholarship

Secret Evidence and the Due Process of Terrorist Detentions

Daphne Barak-Erez (Tel Aviv University – Buchmann Faculty of Law)
Matthew C. Waxman (Columbia Law School)
Columbia Journal of Transnational Law, Vol. 48, No. 003, 2009

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the “special advocate” model employed by Britain and Canada, and the “judicial management” model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of “fundamental fairness” or “due process,” and their effectiveness in each system depends on the special institutional features of each national court system. This Article examines the secret evidence dilemma in a manner relevant to foreseeable reforms in the United States, as courts and Congress wrestle with questions left open by Boumediene v. Bush.

Guantánamo Habeas Review: Are the D.C. District Court’s Decisions Consistent with IHL Internment Standards?”

Laura Marie Olson
The Constitution Project
Case Western Reserve Journal of International Law, Vol. 42, December 2009

After the Supreme Court ruled in 2008 in Boumediene v. Bush that the detainees at the Guantánamo Bay detention facility are entitled to the privilege of habeas corpus to challenge the legality of their detention, the D.C. District Court started to take action on the hundreds of petitions filed. In these habeas proceedings, the court has faced the threshold legal question of the scope of the government’s authority to detain pursuant to the Authorization for Use of Military Force as informed by the law of war. This article reviews how the court has delimited the permissible bounds of the government’s detention authority, specifically focusing on whether the court’s decisions are consistent with the internment standards under the law of war, international humanitarian law (IHL). This analysis seeks to assess whether the court’s application of the Bush Administration’s definition of “enemy combatant” or the new definition provided by the Obama Administration is broader or narrower than the IHL standards.

“When and How (If at All) Does Law Constrain Official Action? (The Sibley Lecture)”

Georgia Law Review, Vol. 45, No. 1, 2010

FREDERICK SCHAUER, University of Virginia School of Law
Email: schauer@virginia.edu

Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This paper, presented as the John A. Sibley Lecture at the University of Georgia School of Law, draws on the jurisprudential and philosophical literature to frame the question of obedience to law, and then seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk about official obligation to the law, in fact officials rarely obey the law just because it is the law, and are rarely politically punished for engaging in sanction-free illegal actions when their constituents approve their first-order substantive decisions. For official behavior, therefore, there may be considerably less internalization of law than is commonly supposed. And if this hypothesis turns out to be true, the implications for public law may be considerable. Moreover, if sanction-free internalization of law is less common than many commentators believe, it would be appropriate to give renewed attention to the role of sanctions and coercion not only in securing compliance with law, but also in understanding the nature of law itself.

Turning Ideas Into Action

(September 2009)

Project on National Security Reform

[This is both an interesting and important take on the current structure of the national security and foreign policy establishment, and a pretty good way for newcomers to get up to speed on the granular organizational details.  From PNSR’s description]:

On July 26, 1947, The National Security Act  was signed into law by President Harry Truman.  World War II had ended just 23 months earlier.  For the next 46 years, two superpowers, the US and the USSR, would vie for world dominance.  That war ended in 1991.  Much has changed since then.
But one thing that has not changed is America’s national security system.

PNSR is working hard to fix that. Our new report,Turning Ideas Into Action, is the next step of the process.

The global economy.  Pandemics.  Terrorism.  Access to oil.  Global warming.  Failed states. These are the types of complex issues that our world increasingly faces. National security is no longer dominated by defense and diplomacy.

Ensuring the viability and vitality of our nation and its great principles requires a wide range of talents from the federal government, state/local/tribal/territorial governments, the private sector, non-governmental agencies, academia and a host of other mission partners.

But today, the United States Government lacks the institutions, processes, and know-how to operate collaboratively and on equal plane across the federal government and elsewhere.

The US national security system is outdated and misaligned with 21st century challenges.  This is the premise that launched the Project on National Security Reform (PNSR).  Mandated by Congress, PNSR has analyzed the problems within the current system, is facilitating the changes that are required for meaningful transformation, and has crafted instruments required to institutionalize a new way of business — one that harnesses the full range of our nation’s power.

Turning Ideas into Action updates our progress, proposes next steps, and provides the actual implementation tools that will be required to make national security reform a reality.

Bringing the Spies in from the Cold: Legal Cosmopolitanism and Intelligence under the Laws of War”

Peyton Cooke (Alabama)

San Francisco Law Review (Forthcoming)

Recently, as never before, intelligence operations have come under international humanitarian law. The Supreme Court has handed down the Hamdan and Boumediene decisions; President Obama has required the CIA and other interrogators to abide by Geneva Conventions Common Article 3 standards for all interrogations; district courts have declared stringent law of war criteria for overseas detentions; the Executive has applied the laws of war to terrorist targeting; and the private groups which have initiated this litigation, and pressed for these changes, continue to work for even more reform. This paper addresses the roots and effects of such changes. It begins by defining its key term – legal cosmopolitanism – with reference to a wide variety of legal materials, from Eric Posner, the European Court of Human Rights, and others. The paper attempts to illuminate that term’s core parts: a belief in an expanded United States demos, and preference for judicial over political power. The paper then continues with a survey of intelligence law. It illuminates the assumptions of a limited demos and unfettered executive that have until recently underlay intelligence law domestically, and goes on to establish that, in the long history of intelligence, no international law standard has heretofore been successfully applied to these operations. Thus legal cosmopolitanism and intelligence seem opposed, one attempting to expand the demos, with the other depending to some extent on limiting the demos. Nevertheless, recent executive and judicial actions affecting intelligence law have displayed strong and recognizable cosmopolitan underpinnings. The aforementioned executive orders, district court decisions, and policy positions reinforce this point, as a thorough survey of them reveals. Moreover, the history of similar legal initiatives in the uniformed military and elsewhere indicates that United States intelligence agencies will likely instantiate changes beyond even what the executive and courts require. Finally, the paper will conclude by suggesting that we view these changes – and the legal revolution they promise – skeptically. Intelligence has always operated apart from the law. If we bring intelligence operations within the law, they may no longer be able to protect us from what lurks without.

“Who Can Sue Over Government Surveillance?”

UCLA Law Review, Vol. 57, p. 71, 2009

SCOTT MICHELMAN, American Civil Liberties Union
Email: smichelman@gmail.com

The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied — and decisions on the merits of core constitutional questions avoided — by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelligence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case. In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the surveillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthesized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.

“A Comparative Historical Analysis of War Time Procedural Protections and Presidential Powers: From the Civil War to the War on Terror”

Chapman Law Review, Vol. 12, No. 449, 2009

KYNDRA K. ROTUNDA, Chapman University – School of Law
Email: krotunda@chapman.edu

This article analyzes and compares procedural rules governing military trials from the American Revolution to the War on Terror. It discusses and analyzes Presidential power during war time, particularly in light of recent Supreme Court cases concerning detainees held in Guantanamo Bay.

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