habeas denied to two GTMO detainees: Fahmi Salem Al-Assani

* Al-Adahi v. Obama (D.D.C. Feb. 24, 2010) (Kessler, J.)

Judge Kessler has denied habeas relief to two GTMO detainees who are part of the group of petitioners in Al-Adahi v. Obama. The underlying opinions are not yet available but the orders are here:

Fahmi Salem Al-Assani:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv0280-551

Suleiman Awadh Bin Agil Al-Nahdi:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv0280-548

Holder v. Humanitarian Law Project; 4 new GTMO transfers; forthcoming scholarship

1. Holder v. Humanitarian Law Project (S.Ct. oral argument was held yesterday)

This is the suit challenging the constitutionality of 18 USC 2339B (the 1996 material support statute). Oral argument was yesterday. For more insight, check out the brief podcasts (one by Peter Margulies of Roger Williams in defense of the statute, one by David Cole of Georgetown attacking the statute) provided by SCOTUSblog: http://www.scotusblog.com/2010/02/podcasts-holder-v-humanitarian-law-project/

2. More GTMO transfers

One unidentified GTMO detainee has just been transferred to Spain. Three (Saleh Bin Hadi Asasi, a native of Tunisia, Sharif Fati Ali al Mishad, a native of Egypt, and Abdul Rauf Omar Mohammad Abu al Qusin, a native of Libya) have just been sent to Albania. 188 detainees remain at GTMO.

3. Forthcoming Scholarship

“National Security Case Studies: Special Case-Management Challenges”

Robert Timothy Reagan

Federal Judicial Center

National security cases often pose unusual and challenging case-management issues for the courts. Evidence or arguments may be classified; witnesses or the jury may require special security measures; attorneys contacts with their clients may be diminished; other challenges may present themselves. The purpose of this Federal Judicial Center resource is to assemble methods federal judges have employed to meet these challenges so that judges facing the challenges can learn from their colleagues experiences. These case studies include background factual information about a selection of national security cases as well as descriptions of the judges challenges and solutions.The information presented is based on a review of case files and news media accounts and on interviews with the judges.

Al-Zahrani v. Rumsfeld (D.D.C. Feb. 16, 2010)

* Al-Zahrani v. Rumsfeld (D.D.C. Feb. 16, 2010)

Judge Huvelle has granted a motion to dismiss a civil suit against the United States and various officials, brought on behalf of two men who died at GTMO.  The suit asserted claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments.  The full text appears below:

Report on GTMO habeas litigation

[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.

Executive Order re Thomson Correction Center; Hatim v. Bush

1. Executive Order Directing the Attorney General to Acquire the Thomson Correction Center

Available here.  And for an interesting assessment of whether relocation of a detainee from GTMO to the TCC would require refilling that person’s habeas petition in the Northern District of Illinois, see the take provided here by Steve Vladeck (his answer: probably not).  And if you are dying for more commentary on the pros-cons of the TCC development, check out the debate underway at NYT’s Room for Debate blog, here.

2. Hatim v. Bush (D.D.C. Dec. 16, 2009) (granting habeas to GTMO petitioner)

Meanwhile, habeas review of individual GTMO detainee cases continues.  After a win for the government that I reported yesterday, today brings a defeat.  Judge Urbina has granted habeas relief to Hatim (Case No. 05-cv-1429), according to a notice placed on the docket today.  The opinion explaining the ruling at this point is classified; I’ll circulate the unclassified version if and when it becomes available.

Canada (Prime Minister) v. Khadr (Fed. Ct. App. (Can.) Aug. 14, 2009); useful BBC video on the airline plot conviction; forthcoming scholarship

1. Canada (Prime Minister) v. Omar Khadr (Federal Court of Appeal (Canada) August 14, 2009) (directing administration to seek repatriation of Khadr from GTMO)

A few weeks ago, Canada’s Federal Court of Appeal rejected the Canadian government’s appeal of Khadr v. Canada (Prime Minister), 2009 FC 405, in which a lower court judge had determined (i) that Canada violated Khadr’s rights under section 7 of the Canadian Charter of Rights and Freedoms (“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”) when Canadian officials interviewed Khadr at GTMO and then shared the resulting information with U.S. authorities and (ii) that the Canadian government as a result was obliged to request Khadr’s repatriation immediately.  The government had appealed on the ground that the remedial order infringed the government’s exclusive control over foreign affairs (an argument that we in the United States of course would expect to see under the heading of Curtiss-Wright).  By a 2-1 majority, the Federal Court of Appeals rejected this argument.  The full opinion is posted here.

Note that the Supreme Court of Canada recently decided to hear the government’s appeal of this decision (arguments are set for November 13).

2. Handy teaching tool:  BBC videoclip on the UK Airline Bomb Plot Trial

This ten-minute videoclip from the BBC provides a very handy overview of the investigation, trials, and verdict in the UK airline bomb plot, which resulted in a series of convictions this week.  Most notably, it discusses the decision by the United States to permit the use of certain sensitive intelligence during the retrial (but not the original trial).  I used it today in class as a case study in the tensions that can arise between permitting the use of intelligence as evidence at trial (facilitating conviction, but risking exposure of the intel capacity) and withholding inculpatory intel (undermining trial prospects, but preserving the flow of intel).  It worked quite well.

3. Forthcoming scholarship

Apropos of the al-Kidd decision, note the following timely new book:

Counterterrorism and the Comparative Law of Investigative Detention

MAJ Dan Stigall

Chief, Rule of Law & Stability Operations OTJAG, International Law Division

Cambria Press

The years since the devastating attacks of September 11, 2001, have seen dramatic developments in the recognized challenges to U.S. national security and in the ways the United States reacts to terrorist threats. Those reactions have demonstrated both the flexibility and limitations of U.S. criminal law in its ability to adapt to terrorism. In response to the ongoing threat of domestic and international terrorism, governments across the globe have enacted counterterrorism legislation designed to facilitate the capture and interrogationof terrorist suspects. A focus on the perceived limitations of U.S. criminal law in this regard has led to calls from key players within the U.S. national security apparatus for an improved regime of investigative detention, such as those currently in place in the United Kingdom and France.

This book provides the first focused look at the concept of investigative detention and counterterrorism. It is also the first book to analyze in detail the comparative law of investigative detention in the United States, the United Kingdom, and France––laying out exactly how each investigative detention regime works, what the extent of each country’s powers are, and examining their use in counterterrorism. As such, it is one of only a handful of “practical comparative law” books on the market––a book which not only illuminates the legal landscape of various countries, but also seeks to inform counterterrorism policy through a comparative analysis.

Al Mutairi v. United States; forthcoming scholarship

1. Khalid Abdullah Mishal Al Mutairi v. United States (D.D.C. July 29, 2009) (opinion explaining decision to grant habeas to GTMO detainee)

Back on July 29^th, Judge Kollar-Kotelly granted Al Mutairi’s habeas petition.  The underlying opinion was not released at the time, but now is available.  It is posted here.  Key points include:

On the admissibility of hearsay: “The Court finds that allowing the use of hearsay by both parties balances the need to prevent the substantial diversion of military and intelligence resources during a time of hostilities, while at the same providing Al Mutairi with a meaningful opportunity to contest the basis of his detention. The Court is fully capable of considering whether a piece of evidence (whether hearsay or not) is reliable, and it shall make such determinations in the context of the evidence and arguments presented during the Merits Hearing -including any arguments the parties have made concerning the unreliability of hearsay evidence.” (slip op. at 4)

On the government’s request for a presumption that its evidence is both accurate and authentic: “the Government argues that a presumption as to its evidence is both appropriate and necessary. The Court disagrees. One of the central functions of the Court in this case is “to evaluate the raw evidence” proffered by the Government and to determine whether it is “sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of clarity.” Parhat, 532 F.3d at 847. Simply assuming the Government’s evidence is accurate and authentic does not aid that inquiry. Cf Ahmed v. Obama, 613 F. Supp. 2d 51, 55 (D.D.C. 2009) (rejecting a presumption of accuracy for the Government’s evidence and holding that ”the accuracy of much of the factual material contained in [the Government’s] exhibits is hotly contested for a host of different reasons …”).” (slip op. at 5)

On the substantive scope of the government’s detention authority: The Court agrees that the President has the authority to detain individuals who are “part of’ the Taliban, al Qaeda, or associated enemy forces, but rejects the Government’s definition insofar as it asserts the authority to detain individuals who only “substantially supported” enemy forces or who have “directly supported hostilities “in aid of enemy forces. While evidence of such support is undoubtedly probative of whether an individual is part of an enemy force, it may not by itself provide the grounds for detention. Accord Mattan, 2009 U.S. Dist. LEXIS 43286 at *13-*15. Accordingly, the Court shall consider whether AI Mutairi is lawfully detained in the context of the following standard:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of the Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act in aid of such enemy armed forces.” (slip op. at 8)

On the credibility of Al Mutairi’s version of events (i.e., that he traveled from Kuwait to Afghanistan after 9/11 to build a mosque): “Based on these identified inconsistences, implausibilities, and in some respects, impossibilities, the Court does not credit Al Mutairi’s version of events that occurred while he was in Afghanistan.”  (slip op. at 15-16)

On the significance of the Court’s decision to reject Al Mutairi’s account: “Notwithstanding the Court’s conclusions with respect to Al Mutairi’s version of events, the Court’s inquiry is far from complete. Because Al Mutairi has no burden to prove his innocence, the Court must now assess the Government’s evidence to determine whether it has demonstrated by a preponderance of the evidence that during the time for which Al Mutairi cannot account, he trained with or became a part of al Wafa (according to the Government, an associated force of al Qaida), or al Qaida itself.” (slip op. at 16)

On the credibility of the government’s evidence: This portion of the opinion is redacted in significant part, but is still worth reading if you want a sense of how Judge Kollar-Kotelly parsed the evidence.  She summarized her assessment as follows: “In summary, the Court has credited the Government’s evidence that (1) Al Mutairi’s path of travel into Afghanistan was consistent with the route used by al Wafa to smuggle individuals into Afghanistan to engage in jihad; (2) that Al Mutairi’s travel from Kabul to a village near Khowst was consistent (in time and place) with the route of Taliban and al Qaida fighters fleeing toward the Tora Bora mountains along the Afghanistan-Pakistan border, and (3) Al Mutairi’s non-possession of his passport is consistent with an individual who has undergone al Qaida’s standard operating procedures that require trainees to surrender their passports prior to beginning their training. The Court has also found minimally probative on this record the appearance of Al Mutairi’s name and reference to his passport. Taking this evidence as a whole, the Government has at best shown that some of Al Mutairi’s conduct is consistent with persons who may have become a part of al Wafa or al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become a part of one or more of those organizations, where he would have done so, and with which organization. While Al Mutairi’s described peregrinations within Afghanistan lack credibility, the Government has not filled in these blanks nor supplanted Al Mutairi’s version of his travels and activities with sufficiently credible and reliable evidence to meet its burden by a preponderance of the evidence. Accordingly, the Court shall grant Al Mutairi’s petition for habeas corpus.”

2. Forthcoming scholarship

The National Strategy Forum Review, “Strategic Challenges Near and Far” (August 2009)

NSFR is a terrific publication, one that should be more widely read.   The most recent issue is posted as a pdf here, and its contents are as follows:

August 2009 Publisher’s Note

The United States and Mexico: Mutual Problems, Joint Solutions The following five essays discuss many of the challenges that the United States and Mexico face in coordinating effective border policies.  The goal is to elucidate the many areas where more cooperation and tighter joint strategies are needed by both countries to achieve their national goals.

Reasons of State that Sustain Mexico’s Strategy Against Organized Crime
Eduardo Medina-Mora

The Mexico-United States Border: A Fragmented Agenda
Luis Herrera-Lasso M.

The Mérida Initiative: A New Security Cooperation Partnership
David T. Johnson

Mexico’s Strategy
Iñigo Guevara Moyano

Mexico’s Polity and Economy: Security vs. Progress and Our Failed Integration
José Luis Valdés-Ugalde

Special Report:
American Foreign Policy Toward Pakistan
Frank Schell, Richard E. Friedman, and Lauren Bean

Regions at a Glance:
War in Afghanistan: Achieving a Successful Civilian Surge
Catherine Dale

NSF Insider Views:
Trying Terrorists
Richard E. Friedman

The Iranian and North Korean Nuclear Programs and International Law
John Allen Williams

Speaker Summary:
Ilan Berman and Winning the Long War
Eric S. Morse

“Jurors Believe Interrogation Tactics are Not Likely to Elicit False Confessions: Will Expert Witness Testimony Inform Them Otherwise?”

Psychology, Crime & Law, 2009

IRIS BLANDON-GITLIN, affiliation not provided to SSRN
KATHRYN SPERRY, affiliation not provided to SSRN
RICHARD A. LEO, University of San Francisco – School of Law
Email: rleo@usfca.edu

Situational factors – in the form of interrogation tactics – have been reported to unduly influence innocent suspects to confess. This study assessed jurors’ perceptions of these factors and tested whether expert witness testimony on confessions informs jury decision-making. In Study 1, jurors rated interrogation tactics on their level of coerciveness and likelihood that each would elicit true and false confessions. Most jurors perceived interrogation tactics to be coercive and likely to elicit confessions from guilty, but not from innocent suspects. This result motivated Study 2 in which an actual case involving a disputed confession was used to assess the influence of expert testimony on jurors’ perceptions and evaluations of interrogations and confession evidence. The results revealed an important influence of expert testimony on mock-jurors decisions.

“Human Rights and Military Decisions: Counterinsurgency and Trends in the Law of International Armed Conflict”
University of Pennsylvania Journal of International Law, Vol. 30, p. 1367, 2008-09
UNLV William S. Boyd School of Law Legal Studies Research Paper No. 09-13

DAN E. STIGALL, U.S. Army JAG Corps
Email: dan.stigall@us.army.mil
CHRISTOPHER L. BLAKESLEY, William S. Boyd School of Law, UNLV
Email: chris.blakesley@unlv.edu
CHRIS JENKS, Government of the United States of America – Judge Advocate General’s Corps
Email: mcjenks03@yahoo.com

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that – given the nature of contemporary conflict, it is no longer possible to address one body of law without also dealing with the other. This has been the most dramatic trend for LOIAC in the last decade. It will doubtlessly continue.

This article briefly addresses this interesting and important phenomenon in the context of the history of LOIAC and modern warfare, which has changed from large-scale clashes of the military might of sovereign states to conflict characterized by long-term guerilla and asymmetric warfare, concomitant counterinsurgency, and stability operations. The nature of contemporary stability operations and counterinsurgency has broadened the scope of military operations so that commanders must now engage in a range of activities not traditionally considered combat-related. Associated with this expanded range of military responsibility is an expanded range of legal responsibility. Hence, we arrive at the necessity and value of human rights law. We briefly identify the general implications of the legal trend and illuminate some notable aspects of the legal landscape that loom before military commanders and their advisors.

The issue of where, when, and how human rights protections apply is essential to understanding their functionality. The treatment of detainees is a prime example of the expanded range of legal responsibility that implicates human rights law. Thus, our discussion of jurisdiction includes analysis of variations among some countries and various regional and international organizations, which differ in their positions on the proper extraterritorial application or jurisdictional scope of their own and international human rights norms. This includes analysis of recent interesting decisions from the British House of Lords and the European Court of Human Rights. Finally, we discuss the Copenhagen Process, which began with the first Copenhagen Conference held in October 2007. The Copenhagen Process is an effort to establish a common platform for the handling of detainees which illustrates how intertwined strands of international human rights law and LOIAC have become. It may also represent a way, if not to cut the Gordian knot, then to move past it with a better recognition of how both legal strands will influence future military operations.

Killing Civilians

Adil Ahmad Haque

Rutgers, The State University of New Jersey – School of Law-Newark

There is a gap between the international humanitarian law of Geneva and the international criminal law of Rome, a gap between the law we have and the law we need if we are to “ensure respect for and protection of the civilian population” caught in the midst of armed conflict. The Rome Statute fails to faithfully translate the prescriptive, action-guiding rules of humanitarian law into a correspondingly robust set of evaluative, judgment-guiding rules suitable for criminal adjudication. The result is a document that is not only substantively incomplete but morally incoherent as well. The purpose of this article is to expose these defects and propose a way to overcome them. Drawing on contemporary criminal law theory, it offers a new approach to war crimes against civilians, one that better protects and respects the value of civilian life.

The Rome Statute is substantively incomplete in the sense that it fails to enforce core principles of humanitarian law designed to protect civilians. As a result, it is possible for a combatant to kill civilians with a culpable mental state, without justification or excuse, and in violation of humanitarian law, yet escape criminal liability under the Rome Statute. The Rome Statute is morally incoherent in the sense that the legal definitions of the relevant war crimes ignore or misapply fundamental criminal law categories—conduct offenses and result offenses, material and mental elements, offenses and defenses—and inadvertently sever the relevant prohibitions from the humanitarian values that should provide their moral foundation. This article proposes a redefined offense of Willful Killing that fully incorporates the principles of distinction and discrimination as well as a new affirmative defense that fully incorporates the principles of necessity and proportionality. Only by adopting such an approach can international criminal law provide civilians their full measure of legal protection and moral recognition.

“Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite the Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work”

UCLA School of Law, Law & Economics Research Paper No. 09-12

MAXIMO LANGER, University of California, Los Angeles – School of Law
Email: langer@law.ucla.edu
JOSEPH W. DOHERTY, University of California, Los Angeles – School of Law
Email: doherty@law.ucla.edu

This article analyzes whether managerial judging reforms that were introduced to expedite procedure at the International Criminal Tribunal for the former Yugoslavia (ICTY) achieved their goal. Using survival analysis – Weibull regression – the paper tests the hypothesis that the higher the number of reforms a case was subjected to, the shorter the pretrial and trial phase of that case should be. Our six models for pretrial and trial reveal that in all pretrial and trial models the number of reforms is significantly correlated with longer pretrial and trial. The article explains that reforms made process longer rather than shorter because ICTY judges did not use their managerial powers or used them deficiently, and prosecution and defense managed to neutralize the implementation of the reforms. To explain judges’ behavior, the paper articulates an unnoticed challenge for managerial judging – the court is likely to have limited information about the case that may lead judges to restrict use of their managerial powers to avoid making inefficient decisions. In addition, ICTY did not have an implementation plan to encourage judges to change their behavior. The paper also explains the incentives that prosecution and defense had to neutralize the reforms.

“Child Soldiers: Agency, Enlistment, and the Collectivization of Innocence”

Washington & Lee Legal Studies Paper No. 2009-7

MARK A. DRUMBL, Washington and Lee University School of Law
Email: DRUMBLM@WLU.EDU

This Paper reviews how international criminal law proscribes the conscription, enlistment, or use of children in armed conflict. This legal regime then is contrasted with the social reality of child soldiering, in particular as revealed by ethnographic research from Sierra Leone, the DRC, and northern Uganda regarding how children end up in armed conflict and what they do during conflict. Field research suggests that children exercise greater agency in enlisting in armies, fighting forces, and militias than international criminal law assumes; what is more, field research also suggests that, despite the existence of staggeringly coercive pressures, some children may exercise greater authorship over the violence they commit than international lawyers and human rights workers assume. An individual can be both a victimizer and a victim at the same time – a reality with which international criminal law remains queasy.

Assessing the agency of child soldiers is a difficult task that requires great sensitivity, care, and nuance. It is considerably easier to prejudge ex ante that they have no responsibility than to examine ex post why, exactly, they join militias and then why, exactly, some among them commit terrible crimes. International criminal law, however, ought to be the subject of objective study and dispassionate inquiry. The soothing path that assuages collective sensibilities is not necessarily the best path to protect children from endemic violence, to safeguard and heal post conflict societies, or to promote the best interests of those children who commit international crimes. International criminal lawyers should encourage, instead of gloss over, the hard work and discomforting questions that should be addressed in order to reintegrate children who perpetrate grievous atrocity in a salutary, viable manner that dissuades their recidivism, ostracism, and marginalization. Atrocity trials for children are not a solution; neither, however, is an absence of any accountability mechanism.

al Ginco v. Obama (D.D.C. June 22, 2009) (GTMO habeas)

* al Ginco v. Obama (D.D.C. June 22, 2009) (Leon, J.) (ruling against the government in a GTMO habeas case)

Judge Leon yesterday determined that the government failed to show by a preponderance of the evidence that al Ginco (a Syrian captured in Kandahar in January 2002) was “part of . . . al Qaeda or the Taliban.”

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1310-162

Hamlily v. Obama (major opinion partially accepting and partially rejecting the revised

* Hamlily v. Obama (D.D.C. May 19, 2009) (Judge Bates recognizes a relatively limited degree of detention authority in the GTMO habeas cases)

Judge Bates, fresh from becoming the new chief of the FISA Court, today issued an important decision that partially accepts and partially rejects the Obama administration’s recently-revised definition of its military detention authority vis-à-vis the GTMO detainees.  Specifically, Judge Bates holds that detention authority includes those who are functional members of AQ, the Taliban, and co-belligerent groups, as well as those others who directly participate in hostilities.  It does not include, however, those who provide support to these groups separate and apart from membership, or those who provide support to hostile acts separate and apart from direct participation.

Below I provide the conclusion of his opinion, and then an outline of his rationale:

Conclusion:

“After careful consideration, the Court is satisfied that the government’s detention authority is generally consistent with the authority conferred upon the President by the AUMF and the core law of war principles that govern non-international armed conflicts. In those instances where the government’s framework has exceeded that which is permitted by the law of war – specifically with respect to the concept of “support” — the Court rejects such bases for detention. Therefore, the Court concludes that under the AUMF the President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who are or were part of Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces.” (p. 21)

Outline:

1. Background:

– The question presented: what is the scope of detention authority under the AUMF, as informed by the law of war? (p.1)

– The judiciary owes some degree of deference to the executive in matters relating to foreign affairs. (p.6-7) [Note that Judge Bates here cites the dueling law review articles on this topic by Eric Posner and Cass Sunstein, on one hand, and Derek Jinks and Neal Katyal on the other.  And they say judges don’t read law review articles anymore…]

2. Summary of the holding:

The court “rejects the concept of “substantial support” as an independent basis for detention. Likewise, the Court finds that “directly support[ing] hostilities” is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of “support” as a valid ground for detention. The Court does not accept the government’s position in full, then, even given the deference accorded to the Executive in this realm, because it is ultimately the province of the courts to say “what the law is,” Marbury v.Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), and in this context that means identifying the “permissible bounds” of the Executive’s detention authority, Hamdi, 542 U.S. at 522 n.1. Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not warranted by domestic law or the law of war. With the exception of these two “support”-based elements, however, the Court will adopt the government’s proposed framework, largely for the reasons explained in Gherebi. The AUMF and the law of war do authorize the government to detain those who are “part of” the “Taliban or al Qaida forces.”  (p. 7)

3. Explanation of the holding:

a. The AUMF: The AUMF, as a matter of domestic law, grants detention authority with respect to the members of the organizations it covers. (p. 10-12)

b. Construing the AUMF in light of the laws of war: The next question is whether this grant of authority is compatible with the law of war, given the detainees argument that there are no combatants and hence no status-based detention in non-international armed conflict.  (p. 12)  The petitioners argued instead for detention being limited to those who directly participated in hostilities (DPH), and they argued that DPH should be construed narrowly (though the court noted that their own expert appeared to support a broader formulation of DPH).  (p. 12)

c. Detention authority in non-international armed conflict: The court accepted that the relationship between the US and AQ is best described as a non-international armed conflict and that there is no “combatant” status in NIAC, but nonetheless rejected the argument that this compels the conclusion that all detainees must then be categorizes as “civilians.”  (P.13)  The court noted that Common Article 3 itself refers to protections for “members of armed forces who have laid down their weapons,” and that AP II provides certain protections specifically directed toward the “civilian” population (implying the existence of non-civilians, according to the court).  (p.14)  Judge Bates then cited a pair of ICTY decisions in support of this view. (p. 14-15)  [As to customary law, interestingly, the court observes that “candidly” this is an open question.]

d. The meaning of “associated forces” – the court concludes that the AUMF extends beyond AQ and the Taliban to “associated forces,” which it defined in terms of co-belligerent status.  (p.16).  The court also noted, however, that “”Associated forces” do not include terrorist organizations who merely share an abstract philosophy or even a common purpose with al Qaeda — there must be an actual association in the current conflict with al Qaeda or the Taliban.” (p. 16 n. 17)

e. Who counts as a member or part of a covered group? The court declined to offer a comprehensive test, saying there are “no settled criteria,” that the decision must be individualized, and that the analysis should be “more functional than formal.” (p. 17)  The key, following the earlier decision of Judge Walton in Gherebi, is not self-identification as a member but, instead, “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.” (p. 17)

f. “Support” for a covered group as a ground for detention: The opinion states that the government provided no argument to explain how the laws of war support use of a “support” criterion as a basis for detention, other than what the court found to be an unpersuasive effort at oral argument to root the concept in the notion of co-belligerency.  (p. 18)  Judge Bates concludes that the concept instead is an “import” from civilian criminal law. (p. 18-19)  He therefore concludes: “Detaining an individual who “substantially supports” such an organization, but is not part of it, is simply not authorized by the AUMF itself or by the law of war. Hence, the government’s reliance on substantial support” as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected.” (p. 19)

g. Support for a covered group as evidence of functional membership in the group: Judge Bates went out of his way to observe that evidence of support—particularly recurring support-could constitute evidence that a person as a functional matter is part of AQ, the Taliban, etc., even if they would not self-identify as such. (p.19-20).

h. Support for hostilities as a ground for detention: Citing the same rational provided above, Judge Bates also rejected the proposition that supporting hostile acts can provide a basis for detention. (p. 20)

i. Committing a belligerent act as a ground for detention: Judge Bates concluded that detention authority does extend to persons who commit belligerent acts, a category he defined with reference to the DPH concept.  (p. 20)  He did not attempt to define the outer parameters of DPH, but did note that the ICRC is engaged in an attempt to do just that, and observed that the outer bounds will be determined as needed in the habeas context on a case-by-case basis.  (p. 21)

resentencing of Abu-Jihaad; forthcoming scholarship

1. United States v. Abu-Jihaad (D. Conn.)

Hassan Abu-Jihaad has received a 10 year sentence (the statutory maximum) for his conviction on a charge of disclosing classified information relating to national defense.  The defendant had been convicted at trial on another charge—18 USC 2339A (material support in furtherance of certain specified predicate offenses)—but last month the trial judge granted a defense motion of acquittal on that count.  Details here.

2. forthcoming scholarship

“The ambiguous protection of schools under the law of war – time for parity with hospitals and religious buildings.”

Georgetown Journal of International Law

Gregory R. Bart (JAGC, USN)

A disturbing trend during recent armed conflicts is that states tend to treat school buildings less respectfully than they treat hospitals and religious buildings. One important cause of this trend is the different privileged status afforded to each building type under the law of war. The law of war equally forbids targeting hospitals, religious buildings, schools, and other civilian buildings unless they become justifiable military objectives. But ironically, it fails to equally protect these buildings from being used for such objectives in the first place. Under the law of war’s privileges for civilian hospitals and most religious buildings, armed forces cannot use these buildings for military purposes–without exception. In contrast, the law of war’s privilege for school buildings ambiguously allows military use based on necessity. This is surprising because military use converts a school from a privileged site into a justifiable target for an opposing army. Even more troubling, such use increases the likelihood that an opposing army will confuse converted and unconverted schools and wrongfully attack one that shelters children and other civilians.

State practice paradoxically both opposes and accepts military use of schools during war. The ongoing conflict in Iraq provides many examples. In 2003, the United States condemned Iraqi military commanders for employing school buildings and grounds as sites for artillery, materiel storage, and headquarters. (1) Human Rights Watch noted that the Iraqi practice directly contributed to the number of civilian casualties because those buildings became lawful targets for the coalition forces. (2) The United States also denounced hostile insurgent forces for using school buildings as weapons caches and bases to launch attacks. (3) Meanwhile, in northern Iraq, U.S. military commanders employed school buildings for military headquarters and command posts. (4) Of note, American forces utilized school buildings that they characterized as abandoned or as former schools while Iraqi and insurgent forces exploited ones that were still occupied by students. (5) But these incidents beg the question of why armed forces respect hospitals and religious buildings more than schools?

This article considers whether the law of war provides school buildings with a less privileged status than it gives to hospitals and religious buildings. It proposes that three critical issues necessarily affect any legal regime that seeks to establish privileged status for a specific type of building during war: 1) defining which buildings qualify; 2) ensuring maintenance of privileged status by prohibiting their military use; and 3) ensuring their recognition by armed forces.

The article’s first section reviews how the law of war and humanitarian law evolved to address these issues for hospitals and religious buildings. It traces how the law of war originally gave these buildings only a derivative privileged status that was based entirely on the presence of civilians and noncombatants. Through a series of treaties, the law of war gradually gave direct, independent protection to hospital buildings based on their inherent humanitarian nature and to most religious buildings based on their cultural and spiritual value to a people. The law shifted from focusing exclusively on the obligations of military attackers in targeting to creating equally shared obligations for attackers and defenders not to use these buildings for military purposes.

The second section shows that the law of war’s privilege for schools has not evolved to the same extent because it fails to clearly answer the above three questions for school buildings. Current international law does not provide most with a direct, clear, and independent privileged status based on their inherent humanitarian nature or value to a people. Rather, it protects schools against military use based solely on the presence of civilians and noncombatants. It thereby focuses exclusively on the military attacker’s obligations to discriminate in targeting. These indirect protections are anachronistic compared to the direct ones currently afforded to hospitals and religious buildings.

The final section proposes that the law of war should adopt for schools a modern privilege that answers the above three issues. It asserts that school buildings have an inherent value to society that merits independent protection. It further suggests a framework for a modern school privilege by borrowing the best aspects of the protections currently afforded to hospitals and religious buildings. Specifically, for schools, a modern privilege should describe which buildings qualify, prohibit their military use, and establish a distinctive emblem. In this manner, the law of war might inhibit in the future the high incidence of school building destruction that has been common in recent armed conflicts.

“Jack Bauer Syndrome: Hollywood’s Depiction of National Security Law”

Southern California Interdisciplinary Law Journal, Vol. 17, p. 279, 2008
U Iowa Legal Studies Research Paper No. 09-13

TUNG YIN, University of Iowa – College of Law
Email: tung-yin@uiowa.edu
U IOWA LEGAL STUDIES RESEARCH PAPER SERIES, University of Iowa College of Law
Email: lawssrn@iowa.uiowa.edu

In this Article, which was presented at the Law & Humanities Section Panel at the 2008 Annual AALS Conference, I examine the way that the Fox television series “24” portrays two issues relevant to national security law: the use of torture to extract information in order to stop an imminent terrorist attack, and the depiction of Arabs as villains (and non-villains) with the concomitant impact on racial profiling and other stereotyping of Arab-Americans and Arabs. I conclude that the depiction of torture is narratively stacked in favor of government agent Jack Bauer. I also conclude that “24” attempts to balance its portrayal so that not all villains are Arabs, and not all Arabs are villains. However, I point out points of improvement in this area.

“Boumediene and Lawfare”

U Iowa Legal Studies Research Paper No. 09-11
University of Richmond Law Review, Vol. 43, p. 865, 2009

TUNG YIN, University of Iowa – College of Law
Email: tung-yin@uiowa.edu
U IOWA LEGAL STUDIES RESEARCH PAPER SERIES, University of Iowa College of Law
Email: lawssrn@iowa.uiowa.edu

One reason that the Bush Administration persistently resisted giving Guantanamo Bay detainees access to courts and to lawyers was the belief that they would use such access to engage in “lawfare,” or “the use of law as a weapon of warfare.” Discovery of a purported al-Qaeda training manual in a safehouse in Great Britain reinforced this concern, particularly given the manual’s exhortation to its readers, if captured, to make false claims of torture and to use attorneys to pass information to the outside world. Yet, the Supreme Court’s decision in Boumediene v. Bush appears to discount the concern over lawfare by implying that the detainees are constitutionally entitled to representation by counsel. In this Essay prepared for the Allen Chair Symposium on “Detaining Suspected Terrorists: Past, Present, and Future,” I discuss reasons to believe that lawfare — as practiced by lawyers for detainees — can be adequately controlled by existing tools available to the government: security clearance requirements for counsel, and monitoring of privileged conversations. These tools are not without controversy, and I do not mean to suggest that they should be used lightly, but their very intrusiveness makes them particularly effective at impeding lawfare. Thus, I conclude that it is unpersuasive to argue that Bouemdiene will endanger Americans by enabling detainees to engage in effective lawfare through the use of lawyers.

“Threats of Armed Force and Contemporary International Law”

Netherlands International Law Review, Vol. 54, pp. 229-277, 2007

MARCO ROSCINI, University of Westminster School of Law, King’s College London School of Law, Queen Mary University of London School of Law
Email: mroscini@iol.it

The article first tries to define what a ‘threat’ of armed force under Article 2 (4) of the UN Charter is. It then analyses the status of its prohibition in the framework of the sources on international law. The legal consequences of the violation of the prohibition under the law of treaties, law of state responsibility and international criminal law and the remedies against such threats are finally discussed.

“The Efforts to Limit the International Criminal Court’s Jurisdiction Over Nationals of Non-Party States: A Comparative Study”

The Law and Practice of International Courts and Tribunals, Vol. 5, pp. 495-527, 2006

MARCO ROSCINI, University of Westminster School of Law, King’s College London School of Law, Queen Mary University of London School of Law
Email: mroscini@iol.it

The purpose of this article is to discuss and compare the multilateral and bilateral efforts to prevent the ICC from exercising its jurisdiction over nationals of states non-parties to the Rome Statute. In particular, the US secured the adoption of Security Council resolutions no. 1422 (2002), 1487 (2003), 1497 (2003), 1593 (2005) and launched a campaign for the conclusion of bilateral non-surrender agreements: the differences between the resolutions and between them and the agreements are analysed. None of the resolutions above can be qualified as an exercise of the Security Council’s power to request the ICC not to commence or proceed with investigations or prosecutions under Article 16 of the Rome Statute, as this provision was not conceived to cover future and hypothetical cases. Furthermore, by adopting resolutions 1422 and 1487 and by including the paragraphs on the exclusive jurisdiction of the contributing state in resolutions 1497 and 1593, the Security Council acted ultra vires, since no threat to the peace can be found in order to justify the exercise of Chapter VII powers. The resolutions are also in contrast with the principles and purposes of the UN. As to the bilateral non-surrender agreements, they cannot be qualified as “international agreements pursuant to which the consent of the sending State is required to surrender a person of that State to the Court” as required by Article 98 (2) of the Statute, since they prohibit the surrender to the ICC of any individual who is “present” on the territory of the other party and they do not require the state to which the accused has been transferred to investigate and prosecute the case. Should Italy conclude a non-surrender agreement with the US, it would incur international responsibility. The law giving effect to such an agreement in the Italian legal order would also be in contrast with Articles 10 (1) and 11 of the Constitution.

“Unraveling Guantanamo: Detention, Trials and the ‘Global War’ Paradigm”

New Directions for the Department of Justice , No. 1, 2009
NYU School of Law, Public Law Research Paper No. 09-08

STEPHEN SCHULHOFER, New York University – School of Law
Email: stephen.schulhofer@nyu.edu

Closing Guantanamo presents a daunting challenge, both politically and practically. The detainees cannot be transferred readily to other locations abroad, and yet many commentators insist that they are too dangerous to be held within the United States. Under current law the detainees cannot continue to be held unless they are charged with crimes; yet the existing military commission system is unsustainable, and many detainees allegedly are impossible to prosecute in traditional courts without jeopardizing classified information. These immediate issues are also symptoms of a more basic problem – the concept of a “global war on terror.” Clear thinking about solutions to Guantanamo cannot begin in the absence of clear thinking about the legitimacy of the global war paradigm.

The immediate need to address Guantanamo and the broader imperative to find a sustainable framework for the future can both be met by a straightforward principle – the unqualified acceptance of pre-9/11 rules of international law and domestic due process. The difficulties attributed to that traditional approach are not wholly imaginary, but they have been misunderstood and shamelessly exaggerated. Familiar rules and institutions, properly managed, possess ample resources to cope with the challenges of modern terrorism.