Report on GTMO habeas litigation

January 22, 2010

[with apologies for the self-promotion…comments/criticisms welcome]

The Emerging Law of Detention: The Guantanamo Cases as Lawmaking

A Report Published by the Brookings Institution (Governance Studies)

  • Benjamin Wittes (Brookings)
  • Robert Chesney (University of Texas School of Law; Brookings)
  • Rabea Benhalim (Brookings)

President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist suspects.

Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it. We pay particular attention to the courts’ decisions relating to: the substantive grounds for detention (including whether a once-adequate relationship with enemy forces may be vitiated); the nature and allocation of the burden of proof (including whether the burden actually varies over time); government requests for presumptions that its evidence is authentic and accurate; the admissibility and weight of hearsay evidence; the extent to which interrogation statements may be admitted or given weight in the face of torture, coercion, or involuntariness arguments; and the relevance of the “mosaic” theory.

We find a considerable amount of disagreement among the judges regarding most of these matters—enough to suggest that in at least some instances the merits might well have been resolved differently had the detainee’s case been heard by a different judge.

The appellate process may eventually impose greater uniformity. In the meantime, the lack of clarity regarding such important matters as the scope of the government’s detention power and the circumstances in which an interrogation statement can be used to justify a detention presents problems from the perspectives of both the detainees and the government. Neither can be sure of the rules of the road in the ongoing litigation, and the prospect that allocation of a case to a particular judge may prove dispositive on the merits can cut in either direction. Because it remains unclear how far the courts’ jurisdiction extends, moreover, nobody knows at this stage precisely how many cases these rules will ultimately govern and where else in the world they will have a direct impact. More fundamentally, because the courts in these cases are defining not merely the rules for habeas review but also the substantive law of detention itself, they have implications far beyond the litigation context. The rules the judges craft could have profound implications for decisions in the field concerning whether to initially detain, or even target, a given person, whether to maintain a detention after an initial screening, whether to employ certain lawful but coercive interrogation methods, and so forth.

united states v. headley; united states v. muse; upcoming events; forthcoming scholarship

January 22, 2010

1. United States v. Headley (N.D. Ill. Jan. 14, 2010)

A superseding indictment last week in the David Headley prosecution (relating to the Mumbai attack, among other things).  From the press release:

A federal grand jury today returned a superseding indictment adding three defendants, including Tahawwur Rana, to charges filed last month against David Coleman Headley, alleging that they and others participated in conspiracies involving a planned terrorist attack against a Danish newspaper and the November 2008 terrorist attacks in Mumbai, India, that killed approximately 164 people, including six Americans.

The 12-count superseding indictment contains the identical charges that were filed against Headley on Dec. 7, 2009, while adding Rana as a defendant in three of the counts charging material support of the terrorism plots in Denmark and India, as well as in support of the designated foreign terrorist organization Lashkar e Tayyiba. Also indicted were Ilyas Kashmiri, an allegedly influential terrorist organization leader in Pakistan who is alleged to be in regular contact with leaders of al Qaeda, and Abdur Rehman Hashim Syed (Abdur Rehman), a retired major in the Pakistani military, both of whom were charged in two conspiracy counts relating to the Denmark terrorism plot.

Both Rana and Abdur Rehman were charged separately in previous court filings, but today’s indictment charges Kashmiri for the first time, although he was identified by name in the charges filed previously against Rana, Abdur Rehman and Headley.

More details here. Read the rest of this entry »

upcoming events; forthcoming scholarship

January 20, 2010

“War Bound by Law: Non-State Actors and the Law of Armed Conflict in the 21st Century” (Jan. 22 at Duke)

Duke Journal of International and Comparative Law Symposium

Details here.

Continental Breakfast / Attendee Check-In (8:30 – 8:55) Read the rest of this entry »

DOJ OIG Report on FBI Exigent Letters Seeking Non-Content Telephone Records

January 20, 2010

* DOJ OIG, “A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records, January 2010

This was much in the news yesterday, and has now been released to the public.  Warning: the file is 306 pages long….

3rd Annual National Security Law Workshop / IHL Training Session: Austin, April 1st-2nd, 2010

January 13, 2010

* Announcing the 3rd Annual National Security Law Article Workshop and IHL Training Session – Austin, April 1st and 2nd, 2010

I’m excited to announce that the 3rd annual workshop/training session will take place here at UT on Thursday April 1st and Friday April 2nd, with sponsorship from UT’s Strauss Center for International Security Law and the International Committee of the Red Cross, co-hosting by myself and Prof. Geoff Corn (South Texas), and additional participation by faculty from the Army JAG School.  This is a very fun, eclectic event.  The basic idea is that there will be about 8 papers presented (discussant format, with everyone engaging in Q&A), and also 8 one-hour blocks of IHL-related training and discussion (half by ICRC instructors, half by JAG School instructors).  Based on how attendance went the past two years, we expect about two or three dozen attendees, including both civilian law profs (and would-be law profs) and current JAGs.  It’s a great chance to network, too, and based on past experience it’s unusually fun and casual by the standards of your typical academic workshop.

This is a pay-your-own-way event, but we will provide food during the day, and might even repeat the past practice of sponsoring the group dinners (Wednesday March 31st, Thursday the 1st) as well.

Call for papers:  If you want to present a paper, email me the abstract or draft no later than February 1st.  Accepted for publication is ok; actually published is not (no, SSRN does not count as published for this purpose).  Selections will be announced soon after Feb. 1st.  As for subject matter, national security law is a big tent.  If in doubt, go ahead and submit (or at least check with me).

Just attending: Whether you present a paper or not, we would love to have you here if space permits.  As our space is not unlimited, I do ask that you RSVP to me by email and wait to hear back from me before making any travel arrangements; if we end up with too many would-be attendees, preference will go to junior faculty members, and beyond that efforts will be made to ensure the group presents an interesting mix of folks.


recap of oral argument before the 11th Circuit in Jose Padilla v. United States

January 13, 2010

* Padilla v. United States (11th Cir.) (oral argument overview)

I don’t normally circulate news items, but this report has a useful overview of the issues and exchanges in connection with Jose Padilla’s recent oral argument in the 11th Circuit, including the very timely issue of whether attempts to prosecute someone after years in military detention and interrogation should result in a dismissal of charges on outrageous government conduct grounds.

Gillon v. UK (ECHR) (striking down search provision in UK’s Terrorism Act 2000)

January 13, 2010

* Case of Gillon and Quinton v. the United Kingdom (Eur. Ct. Hum. Rts. Jan. 12, 2010)

From the ECHR press release (for the full opinion, see the link at the top of the press release):

Principal facts

The case concerned the police power in the United Kingdom under sections 44-47 of the Terrorism Act 2000 (“the 2000 Act”) to stop and search individuals without reasonable suspicion of wrongdoing. Read the rest of this entry »

El-Ganayni v. DOE; forthcoming scholarship

January 13, 2010

1. El-Ganayni v. Dep’t of Energy (3rd Cir. Jan. 11, 2010)

The Third Circuit on Monday upheld dismissal of a suit challenging DOE’s decision to revoke the security clearance of a nuclear scientist from Bettis Labs, a Muslim man who alleged that the revocation was in retaliation for his political views (the plaintiff had been critical of U.S. involvement in Iraq and critical of the FBI), and discriminatory.  Among other things, the court holds: Read the rest of this entry »

United States v. Cannon (E.D. Va. Jan. 6, 2010)

January 11, 2010

* United States v. Cannon (E.D. Va. Jan. 6, 2010)

Federal prosecutors last week unsealed an indictment against two former Blackwater contractors who allegedly shot and killed two Afghan nationals (and wounded a third) in Kabul in May 2009.  The indictment asserts jurisdiction under the Military Extraterritorial Jurisdiction Act (the contract in question was a DOD contract to provide training to Afghan forces in the use and maintenance of weapons and weapons systems), and presents an array of murder, attempted murder, and firearms-related charges.  Details here:

forthcoming scholarship

January 10, 2010

“Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan”

Journal of Transnational Law & Policy, Vol. 19, 2010
U of Houston Law Center No. 2009-A-36

JORDAN J. PAUST, University of Houston Law Center

This article addresses the permissibility of use of force in self-defense in response to non-state actor armed attacks and the permissibility of U.S. use of drones in Pakistan for such purposes. Contrary to some writers, when directed merely against the non-state actors, responsive force is not engaged in against the foreign state as such or as an attack “on” or “against” its territory. Responsive measures of self-defense in a foreign state would not necessarily create a state of war between the responding state and the foreign state or between the responding state and the non-state actors, and whether or not an armed conflict exits to which the laws of war apply would be tested under normal criteria with respect to the existence of an international or non-international armed conflict. It is understandable, therefore, that a self-defense paradigm can be different than a war paradigm and both are different than a mere law enforcement paradigm. Permissibility of use of drones in Pakistan also depends on inquiry into many features of context and appropriate application of principles of reasonable necessity and proportionality. Read the rest of this entry »