kiyemba v. obama (D.C. Cir. May 28, 2010)

May 28, 2010

* Kiyemba v. Obama (D.C. Cir. May 28, 2010) (denying further habeas relief to the five remaining Uighurs at GTMO)

A per curiam DC Circuit panel opinion (Henderson & Randolph), with a concurrence by Rogers, has granted the government’s motion to reinstate the Circuit’s earlier judgment denying further habeas relief to the Uighur detainees who remain at GTMO. Five of the original seventeen Uighur petitioners remain at GTMO today, though at least one other country (aside from China) has offered to take them in. The per curiam and concurring opinions are posted here.


United States v. Alfaro-Moncada (11th Cir. May 27, 2010)

May 28, 2010

forthcoming scholarship

May 27, 2010

* forthcoming scholarship

Harvard National Security Journal Volume 1

· Dialogue, Discourse, and Debate: Introducing the Harvard National Security Journal – By Martha Minow

· The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis – By Michael Schmitt

· Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare – By Laurie Blank and Amos Guiora

· FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security – By Scott Glick

· Cybersecurity and National Policy – By Dan Geer

Note: HNSJ is now accepting submissions for Volume 2. Details here.

A Note on the Law of Wars in Cyberspace

James Lewis, Center for Strategic and International Studies

There is some disagreement as to whether we can apply the existing legal framework for warfare to cyber conflict or whether a new legal framework is needed. This debate conflates two separate issues: can the existing legal framework be applied to cyber conflict and is the existing framework adequate. A review of the applicability of existing law of war suggests that if we approach cyber warfare as involving the use of a new technology to gain military advantage, the current body of international law can be applied to cyber conflict, but some issues involving sovereignty, combatants, "force" or "overflight" may need expanded or new definitions or rules.

"Terrorism Trials and the Article III Courts after Abu Ali"

Texas Law Review, Forthcoming
American University, WCL Research Paper No. 2010-09

STEPHEN I. VLADECK, American University – Washington College of Law
Email: svladeck

To say that it is difficult to divorce the debate over the suitability of trying terrorism suspects in the Article III courts from the politics of the moment would be an epic understatement. Especially in light of the Obama Administration’s decisions to (1) try the “9/11 defendants” in the civilian courts and (2) subject Umar Farouk Abdulmutallab to civilian – rather than military – jurisdiction, recent months have witnessed a renewed barrage of objections to subjecting such extraordinary cases to the ordinary processes of our criminal justice system. These critiques have included claims that such trials make the city in which they occur a target for future attacks; that they provide the defendants with a platform from which to spew anti-American propaganda; that they risk publicly revealing information about intelligence sources and methods; that they are enormously costly both with regard to the security measures they require and the judicial resources they consume; and, most substantively, that they put pressure on the courts to sanction exceptional departures from procedural or evidentiary norms that will eventually become settled as the rule – what we might characterize as either a “distortion effect” or a “seepage problem.”

Although these arguments are not new, they do raise fundamental questions about whether the civilian courts are able effectively to function in certain high-profile terrorism cases and to balance the rights of the defendants with the very real practical, logistical, and substantive difficulties that such prosecutions tend to raise. And while any number of groups have attempted to answer these questions at the macro level, there have been few concerted studies of individual trials. This symposium article attempts a different approach, focusing on the specific procedural and evidentiary issues confronted in one of the more legally significant of the post-September 11 criminal prosecutions completed as of this Article – the trial of Ahmed Omar Abu Ali.

As this article suggests, Abu Ali is a microcosm both of the unique difficulties these cases present and the ways in which such issues have generally been resolved by federal trial judges exercising creativity and flexibility. Moreover, Abu Ali provides particular proof of the extent to which advancements in courtroom technology may well mitigate at least some of the practical obstacles that courts face in transnational terrorism cases. Finally, whatever difficulties Abu Ali may have presented for the civilian criminal justice system, it is not at all clear why the same difficulties wouldn’t also be present had Abu Ali been tried in a military commission. The claimed errors at trial that were analyzed by the Fourth Circuit were all constitutionally grounded, and there is little in the way of precedent for the proposition that either the Fifth Amendment’s privilege against self-incrimination or the Sixth Amendment’s right to confrontation have less force before a military tribunal – especially where the defendant is a U.S. citizen.

To be sure, like this Article’s conclusions, its aim is modest. There are a host of reasons why it would be wrong to draw sweeping lessons from the story of one particular case, no matter how significant that one case may be. In addition, even an assessment just of the Abu Ali litigation is lacking for any appreciation of the myriad problems that government or defense counsel likely encountered behind the scenes; the story told here is one reconstructed entirely from the public record, a record that could also be read with a far more skeptical eye. Nevertheless, my hope is that a candid discussion of the Abu Ali litigation – including its triumphs and its shortcomings – will add meaningful substantive content to a conversation that, for the moment, seems awash in unsubstantiated (and largely partisan) rhetoric.

"The Application of IHL in the Goldstone Report: A Critical Commentary"

Yearbook of International Humanitarian Law, Vol. 12, 2009
Emory Public Law Research Paper No. 10-96

LAURIE R. BLANK, Emory University School of Law
Email: lblank

Operation Cast Lead, the Israeli military operation in Gaza that began on December 27, 2008, demonstrated anew the challenges international humanitarian law – otherwise known as the law of armed conflict or the law or war – faces in contemporary conflict. The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and how the law might be used to solve difficult problems such conflict poses.

This article analyzes the Goldstone Report’s application of the law to the conduct of both parties in the conflict so as to examine whether the report applies the correct legal standards and interprets them appropriately within the framework of the Gaza conflict. In particular, the article focuses on two main shortcomings in the Goldstone Report’s application of IHL: areas in which the report could have benefitted from a greater sensitivity to the complexities of modern warfare, and areas in which its approach is questionable as a matter of law.

First, I highlight the report’s flawed examination of the challenges posed by contemporary conflicts in two fundamental areas of IHL: distinction and military objectives. Both require that military commanders and soldiers understand who is a civilian and who is a fighter or combatant, and which targets are military targets and which are civilian objects. Without a thorough and sophisticated understanding of how to make these determinations, military commanders, soldiers and policy makers will face grave difficulty in planning and carrying out military operations within the bounds of the law. The challenges presented in Operation Cast Lead are emblematic of some of the most difficult dilemmas modern warfare poses.

Second, the article highlights several areas in which the Goldstone Report’s application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies. The report errs twice in its treatment of the principle of proportionality, first by approaching jus in bello proportionality retrospectively rather than prospectively, and second by conflating jus ad bellum proportionality with jus in bello proportionality. Additional problems arise in its analysis of the law governing precautions in attack and the treatment of prisoners of war, and its assessment of responsibility for specific crimes, including attacks on civilians, destruction of property and hostage taking.

"Aggression, Legitimacy and the International Criminal Court"

European Journal of International Law, Vol. 20, Issue 4, pp. 1147-1156, 2009

SEAN D. MURPHY, George Washington University – Law School
Email: smurphy

The late Thomas Franck postulated that the legitimacy of international norms and institutions rested in large part upon certain important factors, notably whether the norm or institutional process was validated through commonly accepted means, whether it was clearly understood by those upon whom it operated, whether it cohered with other norms and institutions, and whether it was well-grounded in secondary rules of international law concerning law formation. This article argues that the proposed draft amendment to the Rome Statute on the crime of aggression does not fare well under these criteria, casting into doubt the long-term prospects for the legitimacy of the definition of the crime and of the institutional structures charged with administering it. Choices made at the ICC Review Conference in 2010 to finalize an amendment to the Rome Statute may help alleviate or aggravate these concerns.

"Second Thoughts on the Crime of Aggression"

European Journal of International Law, Vol. 20, Issue 4, pp. 1117-1128, 2009

ANDREAS L. PAULUS, University of Goettingen
Email: apaulus

The article is a critique of the proposal for the codification of the crime of aggression by the Special Working Group on the Crime of Aggression. It concentrates on four main points – the inherent indeterminacy of the definition of aggression, its uncertain application to recent cases concerning the use of force, the involvement of the Security Council in the exercise of jurisdiction, and, finally, the danger of concentrating issues of jus in bello and jus contra bellum in one single court or tribunal. The contribution concludes that the time is not ripe for a codification of the crime of aggression at a time at which the Court is still struggling to establish itself.

"Typology of Conflict: Terrorism and the Ambiguation of the Laws of War"

GNLU Law Review, Vol. 2, No. 1, 2010

JACKSON NYAMUYA MAOGOTO, University of Manchester
Email: jacksonmaogoto
GYWNN MACCARRICK, affiliation not provided to SSRN

One of the reasons that terrorism is unconventional and viewed as beyond the pale is because it adopts an arbitrary stance. War is the predictable and directed waging of armed conflict against an enemy, where as terrorism can not be anticipated or calculated because it’s ominous and malevolent actions do not discriminate between the enemy and civilians. In deed the greater the number of civilian casualties the greater the prominence they bring to their political cause. The distinction here is that we can seek to place limits on war because both sides agree to the terms under which they fight and both stand to gain from the benefits of limitation. But acts of terror rely upon the absence of limitation (including the absence distinction, proportionality, military necessity) for psychological impact such that there is no mutual benefit of placing constraints or confines on actions taken. Thus terrorism has passed over the parameters of warfare and into the realm of criminal conduct or alternatively it is employing the methods of warfare with a criminal intent. It seems therefore that terrorists should either be thought of as criminal behavior, in which case they might be accused of violating criminal law, or they should be thought of as acting within the scope of war and peace, in which case they might be accused of violating either the law of war or the law of peace. However, they do not seem to fall clearly in either scenario thus despite being law violators, they have situated themselves in an impossible place, located somewhere outside of the law.

"Burdens of Proof and Evidentiary Standards in U.N. Weapons Inspections"

ROB BEJESKY, affiliation not provided to SSRN
Email: rb_775

The article analyzes the role of evidentiary standards under international law and how perceptions of evidence on weapons of mass destruction (WMD) allegations led to the 2003 invasion of Iraq. The evidentiary record is built by using the five-year Senate Select Committee on Intelligence investigation of the pre-invasion intelligence information (concluded in June 2008), the Iraqi Survey Group physical inspection findings during occupation, other government studies, and verified media releases over the past six years. Findings are juxtaposed with the domestic level issue formation, the UN Security Council interactions, and the four months of UN inspection reports. The chronological case study builds a structure of evidentiary standards, explains why Security Council interactions were logistically effective but ultimately unavailing, and is applied to a two-level domestic/international interactive game framework that distinguishes between established evidence and media assertions. Diplomatic and inspector evidentiary perceptions are analyzed as they progressed and are applied to resolution language that should have been the legal frame of reference for breach. Evidentiary standards of proof for breach were required in Security Council resolutions, all UN processes, UN inspection obligations, under good faith diplomacy principles, and even the language of Congress’s October 2002 Authorization for Use of Military Force Against Iraq. However, preconditions were bypassed. Since the UN Security Council does not possess a formal and dispassionate evidentiary fact-finding institution and diplomatically-produced information can commingle with potentially irreconcilable prerogatives of sovereign authority, an augmenting pressure dynamic can arise to supplant objectivity and relegate impartial, sober, and dispassionate legal processes to the realm of politics.


United States v. Smadi (N.D. Tex. May 26, 2010)

May 26, 2010

* United States v. Smadi (N.D. Tex. May 26, 2010)

From DOJ’s press release (see attached docs, too):

DALLAS — Hosam Maher Husein Smadi pleaded guilty today before U.S. District Judge Barbara M. G. Lynn to a felony offense related to his attempted bombing of a downtown Dallas skyscraper in September 2009…

Smadi, 19, pleaded guilty to one count of attempted use of a weapon of mass destruction. He faces a maximum statutory sentence of life in prison and a $250,000 fine. Under the terms of the plea agreement, however, Smadi faces a sentence of 30 years in prison, if the court accepts the plea. Judge Lynn has set a sentencing date of Aug. 20, 2010.

“Today’s guilty plea underscores the continuing threat we face from lone actors who, although not members of any international terrorist organization, are willing to carry out acts of violence in this country to further the terrorist cause. I applaud the many agents, analysts and prosecutors responsible for this successful investigation and prosecution,” said Assistant Attorney General Kris.

“I commend the FBI, the lawyers and support staff in the U.S. Attorney’s Office, and the Counterterrorism section at the Department of Justice for their excellent work in bringing this case closer to a successful conclusion,” said U.S. Attorney Jacks.

“The facts disclosed today and Smadi’s plea make it clear his intention was to kill American citizens. I want to commend the work of the FBI’s North Texas Joint Terrorism Task Force investigators and the prosecutors in the U.S. Attorney’s Office for the Northern District of Texas, who worked countless hours to bring this investigation closer to its conclusion and to protect the community in their execution of the FBI’s Counterterrorism strategy to detect, penetrate, and disrupt acts of terrorism in the United States,” said FBI Special Agent in Charge Casey.

According to documents filed, on Sept. 24, 2009, Smadi knowingly took possession of a truck that contained a weapon of mass destruction, specifically a destructive device or bomb. The truck with the bomb inside was a vehicle borne improvised explosive device. Smadi believed that this was an active weapon of mass destruction, and while it was inert when Smadi took possession of it, it was a readily-convertible weapon of mass destruction.

Smadi knowingly drove the truck containing the bomb to Fountain Place, a 60-story public office building located at 1445 Ross Avenue in Dallas, and parked it in the public parking garage under the building. After parking the truck, Smadi activated a timer connected to the device, locked the truck and walked away. Smadi walked out of the parking garage, crossed the street and got into a car with an undercover law enforcement agent. They drove a safe distance away and prepared to watch the explosion. Smadi, who believed the bomb would explode and cause extensive damage, used a cell phone to remotely activate the device.

smadi_factual resume.pdf

smadi_plea agreement.pdf


Al Maqaleh v. Gates (D.C. Cir. May 21, 2010) (reversing decision below and dismissing habeas petitions by detainees in Afghanistan)

May 21, 2010

* Al Maqaleh v. Gates (D.C. Cir. May 21, 2010) (reversing decision below and dismissing habeas petitions by detainees held in Afghanistan)

A very big win for the government. The 26-page opinion is posted here, and attached as a pdf as well.

The long and short of it is that the panel (Sentelle, Tatel, and Edwards) thought that the district court (Bates) underestimated the significance of the fact that the Bagram Theater Internment Facility (and, now, the new facility located nearby) was located in a zone of ongoing armed conflict, which in the panel’s view made this case more analogous to Eisentrager than Boumediene irrespective of where a particular detainee was captured.

Significantly, the panel did note the petitioners’ argument that excluding jurisdiction on this ground might open the door to manipulation in the sense that the executive branch could choose to put detainees captured elsewhere into this war zone precisely in order to avoid habeas jurisdiction. Rather than reject this as irrelevant, the panel instead observed that there was no evidence that this sort of purposeful manipulation actually had occurred with respect to any of the petitioners at issue in this case (even the petitioners who had been captured outside Afghanistan). The panel reserved the question of what the outcome would be, in terms of habeas jurisdiction, should a petitioner come forward with evidence of such manipulation. That’s a relatively important point going forward, obviously.

Another interesting point: the panel in a footnote declined to take into account the recent enhancement of the procedural safeguards used in conducting detention screening in Afghanistan, stating simply that the court would decide the case in light of the prior procedures rather than new procedures adopted while the appeal was pending.

Here are the key excerpts from Chief Judge Sentelle’s opinion:

While it is true that the United States holds a leasehold interest in Bagram, and held a leasehold interest in Guantanamo, the surrounding circumstances are hardly the same. The United States has maintained its total control of Guantanamo Bay for over a century, even in the face of a hostile government maintaining de jure sovereignty over the property. In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the “host” country. Therefore, the notion that de facto sovereignty extends to Bagram is no more real than would have been the same claim with respect to Landsberg in the Eisentrager case. While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with

respect to Bagram. Though the site of detention analysis weighs in favor of the United States and against the petitioners, it is not determinative.

But we hold that the third factor, that is “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ,” particularly when considered along with the second factor, weighs overwhelmingly in favor of the position of the United States. It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war. Not only does this suggest that the detention at Bagram is more like the detention at Landsberg than Guantanamo, the position of the United States is even stronger in this case than it was in Eisentrager. As the Supreme Court recognized in Boumediene, even though the active hostilities in the European theater had “c[o]me to an end,” a theater of war remained:

In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military’s efforts to contain “enemy elements, guerilla fighters, and ‘were-wolves.’”

128 S. Ct. at 2261 (quoting Eisentrager, 339 U.S. at 784).

In ruling for the extension of the writ to Guantanamo, the Supreme Court expressly noted that “[s]imilar threats are not apparent here.” 128 S. Ct. at 2261. In the case before us, similar, if not greater, threats are indeed apparent. The United States asserts, and petitioners cannot credibly dispute, that all of the attributes of a facility exposed to the vagaries of war are present in Bagram. The Supreme Court expressly stated in Boumediene that at Guantanamo, “[w]hile obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight.” Id. at 2261-62 (emphasis added). Indeed, the Supreme Court supported this proposition with reference to the separate opinion of Justice Harlan in Reid, where the Justice expressed his doubts that “every provision of the Constitution must always be deemed automatically applicable to United States citizens in every part of the world.” See 354 U.S. at 74 (Harlan, J., concurring in the result). We therefore conclude that under both Eisentrager and Boumediene, the writ does not extend to the Bagram confinement in an active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign.

We are supported in this conclusion by the rationale of Eisentrager, which was not only not overruled, but reinforced by the language and reasoning just referenced from Boumediene. As we referenced in the background discussion of this opinion, we set forth more fully now concerns expressed by the Supreme Court in reaching its decision in Eisentrager:

Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish theprestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Eisentrager, 339 U.S. at 779. Those factors are more relevant to the situation at Bagram than they were at Landsberg. While it is true, as the Supreme Court noted in Boumediene, that the United States forces in Germany in 1950 faced the possibility of unrest and guerilla warfare, operations in the European theater had ended with the surrender of Germany and Italy years earlier. Bagram remains in a theater of war. We cannot, consistent with Eisentrager as elucidated by Boumediene, hold that the right to the writ of habeas corpus and the constitutional protections of the Suspension Clause extend to Bagram detention facility in Afghanistan, and we therefore must reverse the decision of the

district court denying the motion of the United States to dismiss the petitions.

We do not ignore the arguments of the detainees that the United States chose the place of detention and might be able “to evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will.” Brief of Appellees at 34 (quotation marks and citation omitted). However, that is not what happened here. Indeed, without dismissing the legitimacy or sincerity of appellees’ concerns, we doubt that this fact goes to either the second or third of the Supreme Court’s enumerated factors. We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation. In so stating, we note that the Supreme Court did not dictate that

the three enumerated factors are exhaustive. It only told us that “at least three factors” are relevant. Boumediene, 128 S. Ct. at 2259 (emphasis added). Perhaps such manipulation by the Executive might constitute an additional factor in some case in which it is in fact present. However, the notion that the United States deliberately confined the detainees in the theater of war rather than at, for example, Guantanamo, is not only unsupported by the evidence, it is not supported by reason. To have made such a deliberate decision to “turn off the Constitution” would have required the military commanders or other Executive officials making the situs determination to anticipate the complex litigation history set forth above and predict the Boumediene decision long before it came down.

bagramjudgment.pdf

bagramopinion.pdf


Journal of National Security Law & Policy – call for papers

May 18, 2010

* Call for Papers: the Journal of National Security Law & Policy

The Journal of National Security Law & Policy (JNSLP) is soliciting articles for its winter 2011 issue. Since its founding in 2003, the JNSLP has quickly become one of the most frequently cited peer reviewed journals and the only one devoted exclusively to national security law and policy.

We accept article submissions on a rolling basis, but to be considered for the winter 2011 issue, submissions must be received by September 30, 2010. There is no page limit; however, our preferred article length is 5,000-10,000 words. Please include resumes with submissions. For past issues and information about the JNSLP, visit jnslp.com.


GTMO habeas petition denied

May 18, 2010

* Abdah v. Obama (D.D.C. May 4, 2010) (Kennedy, J.) (denying habeas petition of GTMO detainee Yasein Khasem Mohammad Esmail)

In a 43-page opinion posted here, Judge Kennedy on May 4th denied Esmail’s habeas petition on the ground that the government proved by the preponderance of the evidence that Esmail was part of al Qaeda at the time of his capture in Afghanistan in late 2001. Specifically, the court concluded that the government’s evidence sufficed to prove that Esmail had (i) traveled to Afghanistan after being recruited by an al Qaeda facilitator, (ii) attended multiple military-style training courses sponsored by al Qaeda, (iii) stayed at multiple guesthouses sponsored by or associated with al Qaeda, (iv) studied at a religious institute sponsored by al Qaeda, (v) elected to remain in Afghanistan after the 9/11 attacks, and (vi) was present at the battle of Tora Bora as an al Qaeda fighter.

Substantive detention standard: Notably, Judge Kennedy did not say whether it would have been adequate to justify detention if the government had proved only the training and guesthouse facts. Footnote 25 on p. 42 acknowledges that the D.C. Circuit’s opinion in al Bihani asserts in dicta that such facts would suffice to justify detention, but goes on to state that the “Court need not evaluate the significance of this statement [from al Bihani] because the evidence in this case demonstrates that Esmail did more than stay in Al Qaeda guesthouses and attend Al Qaeda training camps.”

Reliability of interrogation and CSRT statements/Taint issues: Equally notable is Judge Kennedy’s analysis of the evidence used by the government to establish these facts. Most of that evidence consisted of statements made by Esmail either during (i) interrogations by U.S. officials in Bagram and Kandahar in early 2002 and thereafter at GTMO or (ii) Esmail’s CSRT appearance. Esmail argued that these statements were unreliable, contending that he had been tortured or at least abused repeatedly at all stages of U.S. custody (that is, in Bagram, then in Kandahar, and then later at GTMO) and that he frequently told interrogators what he thought they wanted to hear in order to prevent further abuse. The government denied the abuse allegations, and put forward evidence contesting them. Ultimately Judge Kennedy concluded that Esmail may have suffered some abuse, but also that he had exaggerated or invented the worst of his allegations. As a result, Judge Kennedy was willing to credit his prior, inculpatory statements.