Khan v. Obama (D.D.C.) (habeas denied); proposed changes to the FISC rules of procedure

September 7, 2010

1. Shawali Khan v. Obama (D.D.C. Aug. 3, 2010) (denying habeas relief to GTMO detainee)

Judge Bates has issued an order (see attached) denying the habeas petition of Shawali Khan. The opinion itself has not yet been released. For those tracking the ultimate numbers, district judges have denied relief to 16 GTMO detainees while granting relief to 21 detainees via habeas (in addition, the D.C. Circuit previously granted relief to the 17 Uighur detainees in the only case decided on the merits under the now-defunct Detainee Treatment Act system (involving direct appeal from a CSRT determination).

If you are interested in Khan’s case and want to read about it a bit more while waiting for the unredacted opinion to be published, you might have a look at the decision Judge Bates issued in July 2009 denying Khan’s expedited motion for judgment on the record prior to the completion of discovery. Of note, that earlier opinion notes that the case against Khan rested at least in part on his alleged involvement with Heb-i-Islami Gulbuddin (“HIG”) rather than al Qaeda or the Afghan Taliban associated with Mullah Omar. That is, the case at least at that point illustrated the potential applicability of the AUMF to co-belligerents of al Qaeda and the Taliban. Then again, Khan in that earlier motion accepted for the sake of argument that proof of such affiliation would justify his detention (he limited his argument to contesting the sufficiency of the government’s evidence). Also, it appears from the attached order that the government filed a supplemental factual return, so it may be that the government ultimately linked Khan directly to a group other than HIG. In any event, this will be one issue worth looking at once the unclassified opinion becomes available.

2. proposed amendments to the FISC Rules of Procedure

Greg McNeal (Pepperdine) has a very useful post concerning proposed amendments to the Rules of Procedure of the Foreign Intelligence Surveillance Court. He catches a point that I had not noticed concerning the capacity of the FISC to publish opinions without ex ante Executive branch review for purposes of protecting classified information.

Khan – Petition denied – 09.03.10.pdf

nationalsecuritylaw forthcoming scholarship

September 7, 2010

* forthcoming scholarship

My Trip to Al-Qaeda

Lawrence Wright

HBO Documentary Films

[This one is not precisely scholarship, but if you are like me you have used The Looming Towers in the classroom and may be especially interested in this documentary as a result]


A Court Without Jurisdiction: A Critical Assessment of the Military Commission Charges Against Omar Khadr

David W. Glazier
Loyola Law School Los Angeles

August 31, 2010
Loyola-LA Legal Studies Paper No. 2010-37

This analysis, extracted from a larger work in progress examining the overall legal issues with the Obama administration’s military commissions, focuses on the validity of the charges levied against twenty-three year-old Canadian citizen Omar Khadr. Although most public criticism has been directed at procedural shortcomings, the commissions’ substantive law issues are more significant. Even if Khadr did everything alleged, none of the five charges as actually lodged describes a criminal violation of the law of armed conflict (LOAC). Two of the charges, conspiracy and providing material support to terrorism, are inherently problematic. The remaining offenses, murder and attempted murder “in violation of the law of war,” and spying, are capable of valid application, but lack legitimacy in Khadr’s factual situation. Essentially the government seeks to distort the fundamental legal equality between opposing belligerents into a unilateral shield for coalition personnel, turning the conflict into a “hunting season” in which U.S. forces can shoot their enemy on sight but their adversaries commit a war crime by fighting back. Because the tribunals’ statutory bases, the Military Commission Acts of 2006 and 2009, were enacted after Khadr was in custody, any charges lacking sound grounding in the LOAC constitute impermissible ex post facto enactments. These charges fail that test and the commission thus lacks jurisdiction. Khadr can only be validly tried in a U.S. or Afghan domestic law court.

"Obama’s War Law"

Engage, Vol. 11, Aug. 2010
U of St. Thomas Legal Studies Research Paper No. 10-20

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)

Despite being engaged in armed conflict in Afghanistan and elsewhere, the Obama Administration has not articulated its overall views on the law of war or its application to these conflicts. The most systematic description of its views thus far was given last spring in a short speech to the American Society of International Law by Harold Koh, now the Legal Adviser to the State Department. This essay examines Koh’s remarks in light of other statements and actions by the Obama Administration, and concludes that the legal views of this Administration are close to those of the Bush Administration on crucial issues.

"Government Dragnets"

Law and Contemporary Problems, Vol. 73, No. 3, 2010

Email: c.slobogin

This article examines group-focused police investigation techniques – for instance, roadblocks, drug testing programs, area or industry-wide health and safety inspections, data mining, and camera surveillance – a phenomenon referred to as “government dragnets” because these general searches and seizures attempt to cull out bad actors through ensnaring a much larger number of individuals who are innocent of any wrongdoing. The courts have imposed few limitations on dragnets. Recent commentary has either advocated an even more laissez-faire attitude toward these group search and seizures or, at the other end of the spectrum, proposed schemes that would make most of them impossible. This article proposes an intermediate ground, relying on political-process theory and proportionality and exigency considerations. In combination, these regulatory regimes would create a presumption that dragnets authorized by narrow, nondiscriminatory legislative enactments are valid, but would also require that, on those frequent occasions when the presumption does not apply, the government demonstrate either that its “hit rate” will likely be proportionate to the intrusion visited on dragnet subjects or that the dragnet is necessary to prevent significant, specific, and imminent harm.

"Law and Policy of Targeted Killing"

Harvard National Security Journal, Vol. 1, No. 145, 2010

GABRIELLA BLUM, Harvard Law School
Email: gblum
PHILLIP B. HEYMANN, affiliation not provided to SSRN
Email: heymann

This is a chapter from our forthcoming book, ‘Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism’, (MIT Press, September 2010). This chapter addresses the legal, ethical, and strategic aspects of targeted killings as a counterterrorism measure, drawing on the American and Israeli experience. We argue that since terrorism is neither a traditional war nor a traditional crime, its non-traditional nature must affect how, where, and when we employ targeted killings. Specifically, we argue that whether one begins with a law enforcement model or a war model in mind, the ultimate contours of justifiable targeted killings are very similar under either paradigm.

"A Sense of Duty: The Illusory Criminal Jurisdiction of the U.S./Iraq Status of Forces Agreement"

San Diego International Law Journal, Vol. 11, p. 411, 2010

CHRIS JENKS, Government of the United States of America – Judge Advocate General’s Corps
Email: mcjenks03

The Status of Forces Agreement (SOFA) between the U.S. and Iraq entered force on January 1, 2009 and established the legal framework by which U.S. personnel continue to operate in Iraq. The SOFA followed lengthy and contentious negotiations, which many commentators claim that Iraq “won,” extracting significant concessions from the U.S. in the process. While that may true in some areas, the opposite seems to be the case in one of the most contentious areas of this or any SOFA – criminal jurisdiction over service members. This article examines the criminal jurisdiction article of the Iraq SOFA and posits that the purported grant to Iraq of primary jurisdiction over U.S. service members is illusory if not an outright nullity.

Lost amidst politically charged issues like troop withdrawal dates and contractor impunity, the SOFA departs from long standing U.S. practice of a jurisdictional framework based on whether there is a nexus between a service member’s acts or omissions and their official duties. Instead, the Iraq SOFA utilizes a jurisdictional construct predicated on U.S. service member duty status. Thus, while the SOFA purports to grant Iraq the primary right of jurisdiction over U.S. service members in certain circumstances, the grant is limited to crimes committed outside duty status. But U.S. service members, even those committing crimes, always have a duty status so the required predicate for Iraq to exercise jurisdiction will never be met. In the years following the U.S invasion of Iraq, U.S. service members have committed a number of serious and high profile crimes against Iraqis, including rape and murder. Prior to the SOFA, Iraq did not have primary jurisdiction over the U.S. service members who committed such crimes. After the SOFA, and seemingly in direct contradiction to lofty SOFA language about Iraq’s sovereign right to enforce its own criminal law, Iraq still lacks primary jurisdiction over U.S. service members, even for rape and murder of Iraqis.

The article concludes that with U.S. troops scheduled to be in Iraq until at least the end of 2011, the likelihood of a U.S. service member committing a violent crime against Iraqis, and bringing much attention to the duty status jurisdictional construct in the process, is high. In the short term, this will almost inevitably create difficulties for the U.S. in its relationship with Iraq. In the long term, the U.S. may have protected its service members from an Iraqi judicial system perceived as not capable of providing due process and a fair trial but the linguistic mechanism for accomplishing that will make future security agreement negotiations with other countries that much more difficult.