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)

Abstract:
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.

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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 »