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

June 23, 2009

* 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

May 19, 2009

* 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

April 3, 2009

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.


new FOIA guidelines; Al Shimari v. CACI; forthcoming scholarship (NSL)

March 19, 2009

1. New FOIA Guidelines Issued by DOJ (for all agencies)

The Justice Department has issued new guidelines, for all agencies to follow, with respect to FOIA requests.  The guidelines are posted here.  From the press release:

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

The Attorney General also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law. Under the previous defensibility standard of the rules rescinded today, the Department had said it would defend a denial if the agency had a “sound legal basis” for its decision to withhold.

In addition to establishing criteria governing the presumption of disclosure, the Attorney General’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests. In the memo, the Attorney General calls on each agency to be fully accountable for its administration of the FOIA.

The Attorney General’s memo also emphasizes that FOIA is the responsibility of everyone in each agency, and that in order to improve FOIA performance, agencies must address the key roles played by a broad range of personnel who work with each agency’s FOIA professionals. The memo highlights the key role played by agency Chief FOIA Officers who will now be reporting each year to the Department of Justice on their progress in improving FOIA administration. And, the Attorney General also directs FOIA professionals to work cooperatively with FOIA requesters and to anticipate interest in records before requests are made and to make requested records available promptly.

The Office of Information Policy will conduct training and provide guidance on the new FOIA guidelines to executive branch departments and agencies, as well as to interested groups, in order to maintain a comprehensive approach to greater government transparency.

Today’s memo rescinds the guidelines issued on Oct. 12, 2001, by former Attorney General John Ashcroft.

2. Al Shimari v. CACI (E.D. Va. Mar. 18, 2009)

The plaintiffs in this suit are four Iraqi citizens suing CACI on the ground that contract interrogators employed by CACI abused them at Abu Ghraib.  In this lengthy decision, which is attached as a pdf, the district court grants CACI’s motion to dismiss as to the plaintiffs’ Alien Tort Statute claims.  But it rejects the motion in all other respects (though it did not foreclose the possibility of an immunity finding at a later date, after discovery).

3. Forthcoming Scholarship (NSL)

Administrative Detention of Terrorists: Why Detain, and Detain Whom?”

Matthew C. Waxman (Columbia Law)

From the introduction:

A debate rages in the halls of universities as well as in Congress and national security agencies about whether the United States should enact new “administrative” or “preventive” detention laws – laws that would authorize the detention of suspected terrorists outside the normal criminal justice system.1 Advocates argue that criminal law alone is inadequate to combat transnational terrorist networks spanning continents and waging violence at a level of intensity and sophistication previously achievable only by powerful states, but that the law of war is inadequate to protect liberty.2 Jack Goldsmith and Neal Katyal, for example, call on “Congress to establish a comprehensive system of preventive detention that is overseen by a national security court.”3 Critics warn that new administrative detention laws will undermine liberty, and they assert that criminal law already provides the government with ample tools to arrest,

charge, and prosecute suspected terrorists.4 Center for Constitutional Rights President Michael Ratner writes that preventive detention “cuts the heart out of any concept of human liberty.”5

This debate has only intensified since the Supreme Court held last Term in Boumediene v. Bush that prisoners at Guantánamo have a constitutional right to habeas corpus review of their detention.6 The Court expressly left unresolved important substantive questions such as the scope of the Executive’s power to detain,7 and delegated to lower courts resolution of

the procedural issues likely to arise in hundreds of resulting habeas petitions.8 Administrative detention proponents argue that these openings invite Congress to enact legislation to clarify the uncertainties, recognizing that the modern-day terrorist threat necessitates new legal tools.9 Critics draw the opposite lesson from Boumediene. A week after the decision came down, the bipartisan Constitution Project published a report condemning administrative detention proposals, arguing that Boumediene “illustrates [that] existing Article III courts are fully capable of adjudicating issues regarding the legality of detention. There is no need to create a specialized tribunal either for Guantanamo detainees or for anyone else who may be subject to detention under existing law.”10

This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural

and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty and security, but their resolution should precede analysis of the procedural

issues. The soundness of any specific procedural architecture depends heavily on its purpose and on the substantive determinations it is expected to make.

To some, the answers to the why and whom questions may seem obvious – to prevent terrorism we should detain terrorists. With those basic ideas apparently settled, the administrative detention debate tends to jump quickly to the question of how to detain: What procedural protections should we afford suspects? What rights should they have to challenge

evidence proffered against them – and with what kind of lawyer assistance? What kinds of officials should adjudicate cases?11

The answers to why and whom are more complex and consequential than they may seem at first glance. There are several different ways in which detention can help prevent terrorism, including incapacitating terrorists, disrupting specific plots, deterring potential terrorists, and gathering information through interrogation. The choice of which among these preventive objectives to emphasize will, in turn, drive the way the class of individuals subject to detention is defined, with major implications for both liberty and security. The way we answer the why and whom questions will then significantly determine the procedural architectural needs of any new administrative detention regime. This article therefore cautions against jumping too quickly in administrative detention discussions to the issue of procedural design, or the how questions.

Part I of this article briefly explores the Bush administration’s approach to the why and whom questions, in particular its reliance on a theory of “enemy combatants,” and the logic behind calls to reform it through administrative detention legislation. Part II examines various strategic objectives behind administrative detention proposals, and Parts III and IV then explain how those objectives translate into different definitions of the class subject to proposed detention laws. Part V returns to the procedural issues and shows how new administrative detention processes – or perhaps even special national security courts – would likely look very different depending on the strategic choices underlying them. Rather than coming down for or against new administrative detention law, this article identifies the approaches that stand the best chance of successfully protecting security and liberty, as well as questions that should guide further consideration and refinement of the policies.

Homeland Security, Information Policy, and the Transatlantic Alliance

Stewart A. Baker
Steptoe & Johnson LLP

Nathan Alexander Sales
George Mason University School of Law

Abstract:

This short essay uses a recent case study – the controversy surrounding the U.S. Department of Homeland Security’s access to European airline reservation data – as a vehicle for exploring the European Union’s new enthusiasm for projecting its data-privacy values globally. We begin by discussing how DHS uses passenger name records, or “PNR,” to detect potential terrorist operatives. We then examine the legal authorities under which passenger data is collected and used, including domestic constitutional and statutory norms as well as principles of international law. Next, the essay discusses the hostile response of some EU policymakers to DHS’s use of reservation data, and offers possible explanations for their efforts to apply European data-privacy principles to American national-security initiatives. Finally, we propose solutions to transatlantic conflicts that will help preserve both individual privacy and national autonomy.

And from the intro, which I just couldn’t resist reprinting:

It’s June 14, 2003 at Chicago’s O’Hare international airport. The U.S.-led war to topple Saddam Hussein’s Ba’athist regime in Iraq was launched a little less than three months ago. Resurgent fears of terrorism have kept some would-be passengers from the skies, but O’Hare is still operating at a fairly brisk pace.

A Jordanian man named Ra’ed al-Banna is among the throng of passengers who have just arrived on KLM flight 611 from Amsterdam. After waiting in line, al-Banna presents his passport to U.S. Customs and Border Protection officers.

The CBP officers consult the computerized targeting system used to screen passengers who seek to enter the U.S. The information about al-Banna – drawn from his airline reservations and past travel – triggers a closer look. The officers examine al-Banna’s documents, and they begin asking him questions.

Something doesn’t add up. Al-Banna has a legitimate Jordanian passport; he holds a valid visa that allows him to work in the United States; and he had visited the U.S. before for a lengthy stay. But the officers aren’t satisfied that he’s being completely truthful with his answers, so they decide to refuse him admission. Al-Banna’s fingerprints are taken, and he is put on a plane back to Jordan.

So far it sounds like a fairly routine day at the border. And it was, until events in Iraq nearly two years later gave it a new, and sinister, significance.

On February 28, 2005, at about 8:30 in the morning, several hundred police recruits were lined up outside a clinic in Hilla, a city in the south of Iraq. With no warning, a car drove into the crowd and detonated a massive bomb. 132 people were killed, and about as many were wounded. At the time, it was the deadliest suicide bombing Iraq had seen.

The driver was Ra’ed al-Banna. We know that because when authorities found the steering wheel of his car, his forearm was still chained to it.

No one knows why al-Banna wanted to be in the U.S. in 2003, or what he would have done if he had gotten in. But we do know what kept him out – the government’s ability to quickly marshal the data that first triggered a closer look, and that the CBP officer later used to question al-Banna closely and to conclude that his answers weren’t satisfactory.

At the center of that system was airline reservation data, known as Passenger Name Records or “PNR.”

The Why and How of Preventive Detention in the War on Terror

Stephanie Cooper Blum

Department of Defense, Navy, Naval Postgraduate School ; Department of Homeland Security
Thomas Cooley Law Review, Summer 2009

Abstract:

After September 11, 2001, the Bush Administration decided to detain certain individuals suspected of being members or agents of al Qaeda or the Taliban as enemy combatants and hold them indefinitely and incommunicado for the duration of the war on terror. The rationale behind this system of preventive detention was to incapacitate suspected terrorists, facilitate interrogation, and hold them when traditional criminal charges were not feasible for a variety of reasons. While the rationale for preventive detention is legitimate and the need for preventive detention real, the Bush Administration’s approach was reactionary, illogical, and probably unconstitutional. This article explores the underlying rationales for preventive detention as a tool in this war on terror and analyzes the legal obstacles to creating a preventive-detention regime. In the end, it offers some overarching principles that could be used by Congress or President Obama’s newly-created Special Inter-Agency Task Force to enact a comprehensive preventive-detention regime for U.S persons and foreign nationals. While establishing a lawful preventive-detention regime for terrorist suspects is challenging, there appears to be room for enacting such a regime if Congress sets forth explicit legislation allowing for preventive detention and the suspects are provided a meaningful opportunity to challenge the underlying evidence.

Attachments: CACI


DoD report on GTMO compliance with CA3; Richmond Law Review symposium on detention policy; forthcoming scholarship

February 24, 2009

1. Review Of Department Compliance With President’s Executive Order On Detainee Conditions Of Confinement (02/23/2009)

http://www.defenselink.mil/pubs/pdfs/REVIEW_OF_DEPARTMENT_COMPLIANCE_WITH_PRESIDENTS_EXECUTIVE_ORDER_ON_DETAINEE_CONDITIONS_OF_CONFINEMENTa.pdf

2. U. Richmond Law Review symposium: Detaining Suspected Terrorists: Past, Present and Future” (April 2, 2009)

In March 2009, the Richmond Law Review will publish its Allen Chair Symposium Issue (Vol. 43, No. 3).  The topic for this year’s symposium is “Detaining Suspected Terrorists: Legal Challenges of the Past, Present, and Future.” To order a copy of the March 2009 issue, please fill out the Subscription Form.

In conjunction with the publication of the 2009 Allen Chair issue, the University of Richmond Law Review will host its Allen Chair Symposium on April 2, 2009.  The symposium will consist of separate panels addressing various aspects of detainee rights and reflections on the future of American law and policy.  The symposium will be held at the Jepson Alumni Center at the University of Richmond, and is free of charge.

The symposium will run from 4-7 p.m., with a reception to follow.  Participants include: Professor Nathan Sales (George Mason University School of Law), Professor Stephen Vladeck (American University Washington College of Law), Professor Benjamin Priester (Florida Coastal University School of Law), Professor Kyndra Rotunda (Chapman University School of Law), Professor Kristine Huskey (University of Texas School of Law), Professor Gregory McNeal (Penn State University Dickinson School of Law), and Tung Yin (University of Iowa College of Law).

3. Forthcoming Scholarship

“The Central Intelligence Agency’s ‘Family Jewels’: Legal Then? Legal Now?”

Indiana Law Journal, Vol. 84, p. 637, 2009

DANIEL L. PINES, Central Intelligence Agency
Email: thedanielpines@yahoo.com

Congress and the media recently have claimed that various activities of the Central Intelligence Agency (CIA) – from rendition operations, to the destruction of videotapes, to the maintenance of secret detention facilities overseas – are illegal. Critics levied similar charges against the CIA thirty-five years ago, with regard to activities contained in the “Family Jewels” – the 1973 compilation of the CIA’s darkest secrets. The recent release of the Family Jewels provides the opportunity to try to put today’s concerns in perspective. This Article evaluates the key activities conducted by the CIA as described in the Family Jewels – experimentation on unconsenting individuals, attempted targeted killings of foreign leaders, electronic surveillance of Americans, examination of U.S. mail, and collection of information on American dissident movements. Contrary to widely held beliefs both then and now, all but one of these activities (experimentation on unconsenting individuals) were legal when they were committed, suggesting that other allegedly “illegal” activities, engaged in by the CIA now, may similarly prove to be lawful.

“The War Powers Resolution, Once Again”

American Journal of International Law, January 2009

MICHAEL J. GLENNON, Tufts University – The Fletcher School
Email: michael.glennon@tufts.edu

On July 8, 2008, the “National War Powers Commission” issued a report recommending repeal of the 1973 War Powers Resolution and enactment of a new law. The new law would put in place a consultation requirement applicable to significant armed conflicts, set up a new joint congressional committee for the President to consult, and establish a procedure aimed at requiring congressional approval or disapproval of such conflicts. The members of the Miller Center panel are owed a debt of gratitude for helping to focus public attention on these problems and adding to the impetus for reform. The panel’s proposals, however, present an illusory solution to a non-problem. The problem is not, as its report suggests, that Congress sometimes is silent in the wake of significant but unauthorized use of force by the President. The problem, rather, is that force sometimes is used by the President without congressional or constitutional authority. The solution to this problem is not, as its proposal recommends, to try to force Congress to approve or disapprove that use of force after the fact, or to force the President merely to consult with a few members of Congress beforehand. Congress has no obligation to say anything when faced with a presidential fait accompli that violates the Constitution; it often would be good if it did, but that is, at least partially, the job of the courts. Seeking a few congressional opinions does not fulfill the constitutional requirement of prior legislative authorization. The report is correct that Congress needs to address the Resolution’s flaws. The real question is whether Congress truly wants to force its inclusion in the decision to go to war. If it does, the constitutional means are available to do that.


Al-Adahi v. Obama; Gherebi v. Obama; forthcoming scholarship

February 13, 2009

1. Al-Adahi v. Obama (D.D.C. Feb. 12, 2009) (Kessler, J.)

Judge Kessler has issued an opinion concluding that the government’s “search” obligation when it comes to identifying and disclosing potentially relevant information runs to information reviewed in connection with any GTMO habeas factual return (not just the return for a particular detainee), but that the obligation to does not run more generally.  See the opinion and accompanying case management order.

2. Gherebi v. Obama (D.D.C. Feb. 13, 2009) (Walton, J.)

Judge Walton has issued an order instructing the parties in the GTMO petitions to be prepared at a February 18th status conference to set a schedule for resolving the issue of the scope of the government’s military detention authority.  Judge Walton did not forbid the administration from arguing for a case-by-case approach as it attempted, unsuccesfully, before Judge Bates in Hamlily v. Obama on the 11th, but he did signal that this is not likely to work and that he wants the government prepared to set a schedule for addressing the general scope of detention authority.

3. Forthcoming Scholarship

Offshoring the War on Terror

Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law

Kal Raustiala (UCLA)

Offshoring is usually thought of in the context of globalization and economic activity. Yet a signal feature of the Bush Administration’s “war on terror” was the offshoring of core security functions. The most famous example is the use of Guantanamo Bay as a detention center, but many other examples of extraterritorial activity exist, such as the practice of “extraordinary rendition.” This chapter, drawn from a forthcoming book from Oxford University Press titled Does the Constitution Follow the Flag?, charts and analyzes these developments, and associated judicial decisions such as Boumediene v. Bush, with reference to larger trends in American politics and jurisprudence.

“Combatants and the Combat Zone”

University of Richmond Law Review, Forthcoming
Notre Dame Legal Studies Paper No. 08-39

MARY ELLEN O’CONNELL, Notre Dame Law School
Email: MaryEllenOConnell@nd.edu

Following the attacks of 9/11, President George W. Bush declared that the United States was in a “global war on terrorism”. His administration claimed the wartime privileges to kill without warning and detain without trial anyone suspected of association with terrorist organizations anywhere in the world. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender.

“Passing the Buck: State Responsibility for Private Military Companies”

European Journal of International Law, Vol. 19, Issue 5, pp. 989-1014, 2008

CARSTEN HOPPE, European University Institute
Email: carsten.hoppe@eui.eu

States hire private military or security companies [PMSCs/contractors] in armed conflict and occupation to fulfil tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. PMSC personnel, like soldiers, can and do violate or act incompatibly with International Humanitarian Law and Human Rights Law. Relying on the International Law Commission’s Articles on State Responsibility, the article compares the responsibility of states for such conduct of their soldiers with that which states incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. Positive obligations of states under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to prevent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap – although important – remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state as that of persons forming part of its armed forces in the sense of the customary provision enshrined in Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers, which fully eliminates the regulatory gap.

“The Rules on the Use of Force at the Beginning of the XXI Century”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 319-342, 2006

TARCISIO GAZZINI, affiliation not provided to SSRN

The article discusses the impact of recent military interventions in Kosovo, Afghanistan and Iraq on the rules governing the use of force in international law. It argues that, in spite of some egregious violations, existing rules have not been changed or fallen into desuetude. The attempt to dismantle the collective security system and the claim to relax beyond recognition the general prohibition on the use of force have found the strong opposition of the overwhelming majority of the UN membership. Furthermore, existing rules and Article 51 of the UN Charter have proved flexible enough to protect States against the threats posed by terrorism and weapons of mass destruction. Their application, nonetheless, remains extremely problematic and confirms the need for a collective control over the use of military force.

“The Temporal Dimension of Self-Defence: Anticipation, Pre-Emption, Prevention and Immediacy”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 361-369, 2006

T.D. GILL, University of Amsterdam – Faculty of Law
Email: T.D.Gill@uva.nl

This article explores the temporal dimension of the right of self-defense, in particular, the controversy relating to the possibility of responding to the potential threat of attack which has resulted from the publication by the U.S. Government of its National Security Strategy document in 2002, in which the U.S. Government claimed a right to use force to pre-empt such threats. In assessing the temporal scope of self-defense an examination is made of the dual customary-Charter nature of the right of self-defence and conclusion is drawn that both sources of law are relevant in assessing any claim to use force in advance of an armed attack on the basis of the Caroline criteria of immediacy, necessity and proportionality, which are still relevant today.

“The Emerging Use-of-Force Paradigm”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 309-317, 2006

MICHAEL J. GLENNON, Tufts University – The Fletcher School
Email: michael.glennon@tufts.edu

Change has been the source of many recent proposals concerning United Nations (UN) reform, and because that report has also been a focal point of discussion concerning the law that ought to govern the use of force, it is appropriate to consider closely the report’s treatment of that subject. Viewing the topic afresh, one would suppose that a useful commentary would have addressed four questions:
(1) What security threats do states face in the twenty-first century?
(2) What rules are in place to meet those threats?
(3) Do the rules work?
(4) If not, how can they be fixed?

“You are the Weakest Link and We Will Help You! The Comprehensive Strategy of the United Nations to Fight Terrorism”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 371-397, 2006

NOËLLE QUÉNIVET, affiliation not provided to SSRN

In 2004, the United Nations Secretary-General published the report of the high-level panel of experts on threats, challenges and change that projected a comprehensive strategy to fight various types of scourges that afflict humankind and notably terrorism. The report and the following world summit documents inscribe themselves in established trends set by the State community and the United Nations in the past decades. Since 11 September, five different wide-encompassing strategies have been offered to the State community to come to terms with terrorism. This article focuses on this proliferation of documents and their inconsistency in terms of content. Yet, it also pinpoints the common thread that runs through the documents, namely that the comprehensive strategy must address the root causes of terrorism, strengthen States and promote the rule of law and human rights, three targets that can be reached by the implementation of a strong policy of capacity-building. In all cases, the State community works on the premise that weak and rogue States will consent to be helped in building national and regional capacity to combat terrorism. Undoubtedly, convincing weak and rogue States to abide by international standards will require more than just capacity-building to deflect terrorism. Rather, the United Nations will need to conceptualise general measures to prevent and reverse state failure, which in turn means that the strategy must be indeed ‘comprehensive’.

“The Impact of the Responsibility to Protect on Peacekeeping”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 429-464, 2006

SUSAN C. BREAU, affiliation not provided to SSRN

This article examines the impact of the doctrine of the Responsibility to Protect on Peacekeeping in the United Nations. One of the key debates in peacekeeping is whether there is a duty to use force to protect civilians from genocide, crimes against humanity and war crimes. The practice of UN peacekeeping is evolving in many instances, with the notable exception of Darfur, into robust peacemaking actions with a positive responsibility to protect civilians within the field of operations. This article reviews the development of the concept of the responsibility to protect and then applies the various parts of the doctrine to actual situations of threats to international peace and security.

“The Expanding Law of Self-Defence”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 343-359, 2006

NATALINO RONZITTI, affiliation not provided to SSRN

Since the entry into force of the UN Charter, self-defence has become the preferred excuse for States to justify their use of force, for use of force is in principle banned not only by the Charter but also by modern constitutions. The author examines how States are stretching the notion of this permissible use of force to justify their armed actions in foreign territory. Although it is still the object of controversy between continental and overseas lawyers, a consensus seems to be emerging on the lawfulness of anticipatory self-defence, provided that it is given a narrow interpretation. On the contrary, pre-emption has not gained currency within the international community. Another emerging consensus is related to the origin of an armed attack, which may come not only from States but also from non-State entities to trigger the right of self-defence. The author suggests that a declaratory GA resolution, such as the ones on Friendly Relations and on the Definition of Aggression, could clarify the subject. However, his conclusion is pessimistic, because States prefer to leave the boundaries of self-defence undefined to retain their freedom of action.

“Regional Organisations and the Maintenance of International Peace and Security: Three Recent Regional African Peace Operations”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 483-508, 2006

MARTEN ZWANENBURG, University of Leiden

The leitmotiv of this article is the recommendation by the High-Level Panel on Threats, Challenges and Change that authorisation from the Security Council should in all cases be sought for regional peace operations. It discusses the legal basis for such operations, and three recent regional peace operations are analysed in detail: African Union Mission in Sudan (AMIS), Economic Community of West African States in Cote d’Ivoire (ECOFORCE) and Economic and Monetary Community of Central Africa in the Central African Republic (FOMUC). This article concludes that the practice with respect to these operations does not support a requirement of Security Council authorisation, where there is consent of the parties or, it appears, the government of the host state alone.

“The UN-Led Multilateral Institutional Response to Jihadist Terrorism: Is a Global Counterterrorism Body Needed?”
Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 399-427, 2006

ERIC ROSAND, affiliation not provided to SSRN

This article first briefly outlines the current terrorist threat posed by militant Islamist radical terrorism and the complexity and evolving nature of threat. It highlights the lack of consensus in academic and policy communities regarding the underlying causes of this terrorism. It them posits that the overarching challenge in the next few years will be to maintain the broad-based international co-operation in the fight against terrorism that has existed since 11 September 2001, which is essential to address the threat effectively. Elements of this challenge include dispelling the notion that the US-led counterterrorism effort is targeting Islam and keeping the global South engaged. Durable, effective and flexible mechanisms are needed at the global, regional and national levels to ensure that multifaceted, holistic strategies are developed and implemented to address these issues. The article then outlines the current capacity of multilateral institutions to contribute to the fight against terrorism. The performance of the main UN counterterrorism bodies – led by the Security Council’s different counterterrorism entities – as well as some of the key regional and functional ones, this article concludes, has been uneven. Different organisations have developed counterterrorism programs and units, but these have emerged from political reactions rather than strategic decisions with corresponding achievable technical objectives. The duplication of efforts, overlapping mandates and lack of co-ordination at the international, regional and sub-regional levels have limited the different bodies’ overall contribution to the global non-military counterterrorism effort and have left many of the world’s vulnerabilities to terrorism unaddressed. This article concludes that maintaining international co-operation and the focus on capacity-building and other non-military counterterrorism measures, as well as the need to address the proliferation of counterterrorism bodies, highlights the need for an effective multilateral body at the center of the effort. The UN Security Council’s Counter-Terrorism Committee was supposed to be this body, but it has been unable to fulfill its broad mandate effectively. The article details the limitations of the current UN Security Council-led approach and the inherent, political, administrative and budgetary challenges of operating within the UN system that would make it difficult to co-ordinate global capacity-building efforts effectively. While it proposes a possible short-term improvement – the consolidation of the different parts of the Security Council counterterrorism program into as single body – in the end, it argues that a new international body dedicated to counterterrorism outside of, but perhaps related in some way to, the UN may be needed.


Goldsmith on detention options and national security courts

February 11, 2009

* Jack Goldsmith, “Long Term Terrorist Detention and Our National Security Court” (Feb. 9, 2009)

A Working Paper of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution

http://www.brookings.edu/~/media/Files/rc/papers/2009/0209_detention_goldsmith/0209_detention_goldsmith.pdf

This 20-pager is a must-read document for those following the debate about how best to proceed in connection with detention policy.  From the introduction:

For years there has been a debate about whether to create a national security court to supervise the non-criminal military detention of dangerous terrorists. The debate has many dimensions and is often confusing. Some national security court opponents are really opposed to the non-criminal military detention system that such a court would supervise, and insist that terrorists be tried in criminal court or released. Other opponents of a national security court accept the need for non-criminal military detention but do not favor institutionalizing a new and “secret” court to oversee these detentions. Proponents of a national security court come in many stripes as well. They advocate many versions of the court with many different tasks, ranging from various forms of detention supervision to the conduct of criminal trials.

This essay attempts to simplify these issues, at least a bit. It argues that the national security court debate—a debate in which I have participated1—is largely a canard. The fundamental issue is whether the United States should have a system of non-criminal military detention for enemy terrorists who for many reasons are difficult to prosecute and convict by trial. If the Obama administration chooses to maintain a system of non-criminal military detention—and for reasons set forth below, I think it should—it will necessarily also choose to have a national security court. This is so because federal courts constituting a “national security court” must supervise non-criminal detention under the constitutional writ of habeas corpus and a likely statutory jurisdiction conferred by Congress. Viewed this way, we have had a centralized and thinly institutionalized national security court for years in the federal courts of the District of Columbia, which have been supervising Guantánamo Bay military detentions. The hard question about a national security court, once we accept the need for non-criminal military detention, is not whether it should exist but rather what its rules should be and, just as important, who should make these rules. In my view, Congress and the President, rather than the courts, must play the predominant role in crafting these rules. After explaining these points, I outline some of the issues and legal policy tradeoffs that the political branches should address, including whether such a court should be an independent institution akin to the Foreign Intelligence Surveillance Court and whether it should conduct criminal trials in addition to supervising detention.