GTMO transfers; forthcoming scholarship

1. Still more GTMO transfers…

DOJ reports that two more Uighur detainees at GTMO have been transferred, this time to Switzerland. Details here: United States Transfers Two Uighur Detainees from Guantanamo Bay to Switzerland.

2. Forthcoming scholarship

Obfuscation and Candor: Reforming Detention in a World in Denial

Benjamin Wittes


Forthcoming in Future Challenges in National Security and Law, edited by Peter Berkowitz (Stanford, CA: Hoover Institution Press, 2010)

[There is no abstract for this 14-page essay, but you can get the flavor of
it from the following excerpt. I highly recommend this to anyone who follows
the detention policy debate.

“…The Western World does not believe in detention. Even when it needs detention, the West does not believe in it or want to acknowledge it. And over the years, Western nations have developed elaborate systems for pretending they don’t engage in it. The chief system for this pretense has been us, the United States; in more recent years, the Afghan criminal justice system has played an increasingly important role in helping the West pretend.

None of the United States’ major coalition partners in Afghanistan engages in detention operations. While U.S. forces have the authority to hold Taliban or Al Qaeda operatives whom they capture, coalition forces do not. Under standard coalition procedures, rather, they either turn detainees over to the Afghan criminal justice system within ninety-six hours of capture or they release them. The result is that U.S. detention operations and Afghan prosecutions, in practical terms, function on behalf of the coalition more broadly. Given that the United States is far more secure from terrorism than is Europe, it seems preponderantly likely that American detention operations have done more—probably much more—to protect European security than American security. Yet European countries not only refuse to participate in detention operations, they have become detention’s principal critics.

The arrangement—in which the United States conducts detentions on behalf of the West as a whole while our Western allies refuse meaningful participation in those operations and energetically criticize them—mirrors the larger relationship between the

United States and Europe on security matters. It is part of a larger pattern of European free-riding on the American security umbrella, and as with much such behavior, it gives European countries all of the benefits and none of the costs of a robust detention

policy. The United States neutralizes some dangerous enemies who pose a threat both to European forces in the field and to European civilians at home. At the same time, Europe’s hands are clean from a process that would raise political hackles at home—just as it does in the United States—and European officials are neatly insulated from the very difficult policy problems associated with these detentions. Indeed, they can publicly take the high road vis-à-vis the United States and pretend to maintain a pure law enforcement model for counterterrorism. It is an ideal detention arrangement for a public that doesn’t believe in detention.

We should not wax too contemptuous, however, for we are fast becoming the new Europeans…..”

The Shadow of State Secrets

Laura Donohue
Georgetown University Law Center
University of Pennsylvania Law Review, Forthcoming

Despite the recent explosion in scholarship focused on state secrets, very little is known about how the privilege actually works. This article fills the lacuna, demonstrating that the shadow of state secrets casts itself longer than previously acknowledged. The 2001-2009 period proves illuminating. The article begins with disputes related to government contractors, where breach of contract, patent disputes, trade secrets, fraud, and employment termination cases emerged, proving remarkable in their frequency, length, and range of technologies. Wrongful death, personal injury, and negligence extended beyond product liability to include infrastructure and services, as well as conduct of war. Empirical research suggests a conservative executive branch, more likely to intervene when breach of contract, trade secrets, or patent disputes present themselves, and unlikely – once it asserts the privilege – to back down. Critically, the expansion of the military-industrial complex appears to be giving birth to a new form of “greymail”: companies embedded in the state may threaten to air legally- or politically-damaging information should the government refuse to support their state secrets claim. The government also may depend on a corporation for a key aspect of national defense – thus creating an incentive to protect the company from financial penalties associated with bad behavior. The article next turns to the telecommunications cases that arose out of the NSA’s warrantless wiretapping program. In excess of fifty such suits emerged 2006-2009, with the government acting, variously, as plaintiff, intervenor, and defendant. Although many of these cases ultimately turned on amendments to the Foreign Intelligence Surveillance Act, state secrets assertions grounded on a closely held executive branch jurisprudence played a key role throughout. Following this, the article looks at disputes where the government defended both the suit and state secrets assertions. These cases stem from allegations of Fourth and Fifth Amendment violations, torture, environmental degradation, breach of espionage contracts, and defamation. As in the corporate cases and the telecommunications suits, the executive does not change its course once it asserts the privilege. State secrets also played a role in the criminal context. Remarkably, in two cases, the executive did not even need to assert the privilege; instead, the court simply read it into the case. Collectively, these cases underscore the importance of looking more carefully at how the doctrine works. They challenge the dominant paradigm, which tends to cabin state secrets as an evidentiary rule within executive privilege, suggesting in contrast that it has evolved to become a powerful litigation tool, wielded by both private and public actors. It also has become intimately connected to the military-industrial complex, undermining contractual obligations and perverting tort law, creating a form of private indemnity for government contractors in a broad range of areas. Patent law, contracts, trade secrets, employment law, environmental law, and other substantive legal areas have similarly been affected, even as the executive branch has gained significant and unanticipated advantages over opponents in the course of litigation.

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