al-Qurashi v. Obama (D.D.C. AUg. 3, 2010) (GTMO suppression hearing decision)

August 19, 2010

* al-Qurashi v. Obama (D.D.C. Aug. 3, 2010) (GTMO suppression hearing decision)

In a 50-page opinion made public today (but issued on August 3), Judge Huvelle denies a motion to suppress certain evidence in connection with Sabry Mohammad Ebrahim al-Qurashi’s habeas petition. The opinion is posted here. In brief, the motion presented a factual dispute as to whether al-Qurashi was abused while in Pakistani custody after being arrested in Karachi in February 2002, prior to his interrogation by an FBI agent the next day.

Among other interesting aspects, the opinion:

– holds that a statement must be suppressed if “involuntary,” with the voluntariness standard from criminal law providing the relevant measure. To wit:

“This requires the Court to ask whether "the confession is the product of all essentially free and unconstrained choice by its maker," or whether "his will has been overborne and his capacity for self-determination [has been] critically impaired …." Id. The answer to this question is detcl1uined by considering "the totality of all of the surrounding circumstances -both the characteristics of the accused and the details of thee interrogation." (slip op. at 19)

– holds that the burden is on the government to prove by the preponderance of the evidence that the voluntariness test is satisfied (slip op. at 19)

– holds that the government met its burden in this instance:

“the Court is persuaded that Agent****** testimony is to be credited and that this testimony, as elaborated upon herein, in conjunction with other evidence, sustains the government’s burden of establishing voluntariness. The Court also finds, as Judge Kennedy did in Esmail, that petitioner’s "descriptions of abuse, particularly the ones made to his attorneys Sh0l11y before the merits hearing, are exaggerated:’ see 2010 WL 1798989, at *5, and therefore, they cannot be credited.” (slip op. at 22)

forthcoming scholarship

August 19, 2010

* Forthcoming Scholarship

"Characterization of Conflict: The Case of Iraq"

Chatham House Project on Categorization of Conflict Discussion Paper

MICHAEL N. SCHMITT, Durham University Law School, UK
Email: schmitt

The draft piece looks at the changing characterization of the conflict in Iraq from inception of hostilities: international armed conflict, belligerent occupation, and non-international armed conflict.

Legality of Lethality: Paradigm Choice and Targeted Killings in Counterterrorism Operations

Adam Ross Pearlman
March 23, 2010

Since 9/11, academics and government officials alike have debated whether counterterrorism efforts fit into the laws of war, or are instead criminal law enforcement endeavors. Each legal paradigm, in addition to the authorities granted to the intelligence community, brings with it specific powers and limitations. This paper briefly surveys the legal authorities and implications for the targeted killings of terror suspects within each paradigm: the law of armed conflict, criminal law, and covert action, and argues for the justification of the practice within each. It is not meant to be an exhaustive analysis, but rather serves to raise the key legal issues involved, and concludes by pointing out the policy aspects that ultimately drive whether and how we continue the practice.

Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict[ed. note: previously only the abstract was available for this one, but now the paper itself is posted as well]

Geoffrey S. Corn
South Texas College of Law
Journal of International Humanitarian Legal Studies, Forthcoming

One of the most complex contemporary debates related to the regulation of armed conflict is the relationship between international humanitarian law (or the law of armed conflict) and international human rights law. Since human rights experts first began advocating for the complimentary application of these two bodies of law, there has been a steady march of human rights application into an area formerly subject to the exclusive law of armed conflict regulation. While the legal aspects of this debate are both complex and fascinating, like all areas of conflict regulation the outcome must ultimately produce guidelines that can be translated into an effective operational framework for war-fighters. In an era of an already complex and often confused battle space, there can be little tolerance for adding complexity and confusion to the rules that war-fighters must apply in the execution of their missions. Instead, clarity is essential to aid them in navigating this complexity.

This article will explore this debate from a military operational perspective. It asserts the invalidity of extreme views in this complementarity debate, and that the inevitable invocation of human rights obligations in the context of armed conflict necessitates a careful assessment of where symmetry between these two sources of law is operationally logical and where that logic dissipates. While acknowledging a legitimate role for human rights norms in relation to the treatment of noncombatants and subdued opposition personnel, I argue that these norms cannot be permitted to influence the legal framework that regulates the application of combat power against operational opponents. Preventing this intrusion is essential to balance the interest of protecting human rights with the fundamental purpose of armed hostilities – securing the prompt and efficient submission of an opponent. Perhaps the most critical premise of this article is that failing to recognize the existence of this boundary will produce a distortion of this historic authority/restraint balance at the core of the law of armed conflict – a distortion that will inevitably be perceived as operationally illogical by armed forces thereby risking the credibility of both bodies of law.

Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct

Adam M. Gershowitz
University of Houston Law Center
Geoffrey S. Corn
South Texas College of Law

Berkeley Journal of Criminal Law, Forthcoming

Lawyers often refer to criminal litigation as a war between competing adversaries. Yet, one of the central tenets of the law of war – the doctrine of command responsibility – has not been applied to criminal litigation. Under the doctrine of command responsibility, military commanders are held responsible for the misconduct of their subordinates that they knew or should have known would occur. The purpose of the command responsibility doctrine is to ensure that supervisors develop an atmosphere of compliance by training subordinates to avoid misconduct. This article applies the doctrine of command responsibility to civilian prosecutors holding supervisory positions. We argue that instances of prosecutorial misconduct can be reduced by imputing liability to supervising prosecutors who fail to create a culture of ethical compliance and therefore should have known that misconduct could occur.