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

February 25, 2010

* 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

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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)


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.


Al-Adahi v. Obama; Sharifulla v. Bush; forthcoming scholarship

February 11, 2009

1. Al-Adahi v. Obama (D.D.C. Feb. 10, 2009)

Judge Kessler has issued an opinion denying requests by two GTMO detainees for injunctive relief relating to the manner in which the military carries out forced feeding required by the petitioners’ hunger strikes.  In short, Judge Kessler determined that federal courts lack jurisdiction over conditions-of-confinement claims thanks to the Military Commissions Act, and that this aspect of the MCA was unaffected by Boumediene.  She also determined that use of a restraint chair in the feeding process most likely would not constitute “deliberate indifference” violating the Eighth Amendment (interestingly, the court appears to assume, at least for the sake of argument, that detainees have Eighth Amendment rights; perhaps in my quick skim I missed the discussion of this issue), and that a prohibition on use of restraints would expose medical personnel to danger. The full opinion appears here. Read the rest of this entry »


United States v. Jawad; forthcoming scholarship

February 5, 2009

1. United States v. Jawad (Ct. Mil. Com. Rev. Feb. 4, 2009)

The U.S. Court of Military Commission Review has granted the government a stay until May 20th in United States v. Jawad, in order to give the administration time to review its military commission policy as contemplated in EO 13,492 (i.e., one of the executive orders issued by President Obama relating to detention policy during his first week in office).

Note that this ruling applies only to the Jawad appeal (the government is appealing an order by the trial judge that excluded certain statements made by the defendant on grounds of coercion).  For the moment, other proceedings in the military commission system have not been stayed.  The Court of Mil. Com. Review’s order is here (thanks to SCOTUSblog). Read the rest of this entry »


GTMO’s future; Bostan v. Obama (D.D.C.)

January 25, 2009

Two related items on the pending policy change relating to GTMO

1. Draft executive order on GTMO closure

A number of sources are reporting that a draft executive order is in circulation, one that would provide for closure of GTMO as a detention facility within the year.  It is not clear whether the draft also specifies what will become of the detainees, thought it sounds as if the draft is likely silent on that point for now.

2. Bostan v. Obama (D.D.C. Jan. 20, 2009)

No doubt you have heard by now that military commission proceedings have been stayed for the next 120 days while the new administration sorts out its plans for that process.  But what about the ongoing habeas review process for the GTMO detainees?  Bostan v. Obama (was v. Bush, of course) is one of the many pending petitions, and as it happened there was a hearing in that case set for this afternoon.  Shortly after the inauguration, however, DOJ moved for a two-week continuance (with consent from the detainees), and Judge Walton granted it.  The motion explained:

3. The Government is now assessing how it will proceed in the above-captioned Guantanamo Bay detainee habeas corpus cases. Time is needed to make that assessment and determination. Accordingly, the Government requests a short, two-week continuance of tomorrow’s hearing to permit the assessment to move forward without an intervening argument on the first full day of the new Administration as to the Government’s legal and other merits related positions in these cases.

The full motion is here: http://www.scotusblog.com/wp/wp-content/uploads/2009/01/doj-motion-bostan-1-20-09.rtf.