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

February 24, 2010

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. Read the rest of this entry »


Bensayah v. Obama; Al Maqaleh v. Gates (govt brief with attached Bagram Review Procedures); Camp Cropper facility closed; Oussama Kassir sentenced to life

September 14, 2009

1. Bensayah v. Obama (D.C. Cir.) (argument preview)

Heads-up: The DC Circuit will hear oral argument inBensayah next Thursday, in a hearing that is closed to the public.  This is an appeal of Judge Leon’s ruling denying habeas relief on the merits to one of the several GTMO detainees taken into custody in Bosnia (including Boumediene).  It is the first occasion for the Circuit to address the substantive scope of the government’s detention authority (the case also raises some procedural issues) in connection with habeas proceedings, though it should be noted that the Circuit previously had the opportunity to say a few things on this topic in Parhat v. Gates via the Detainee Treatment Act direct review system (i.e., the system of direct judicial review of CSRT determinations that the Supreme Court held inBoumediene did not provide an adequate substitute for habeas review).

2. Al Maqaleh v. Gates (D.C. Cir.) (government’s brief, including an attached copy of the Bagram

The government’s brief challenging the decision by Judge Bates to extend habeas review to Bagram detainees who are not Afghans and who were not captured in Afghanistan is posted here.  Of particular interest, the brief includes as an addendum (at pp. 78-85 of the pdf file) policy guidance setting forth the new procedures to be used in reviewing detainee status at the Bagram Theater Internment Facility.

3. Closure of Camp Cropper in Iraq (and the coming end of long-term military detention by the US in Iraq)

I normally don’t post news articles.  But after writing up the Al Maqaleh entry above, I wanted to draw attention to this article in the Times noting the recent closure of the US detention facility at Camp Cropper in Iraq and the anticipated shutdown in the months ahead of the remaining US long-term military detention facilities in Iraq.

4. United States v. Kassir (S.D.N.Y. Sep. 15, 2009)

Following up on the post earlier this week describing the denial of Kassir’s post-verdict motions, Kassir has now been sentenced to life in prison.  That in itself is interesting, given the mix of charges on which he was convicted: various material support counts, an explosives count, and conspiracy counts under 956(a) that did contemplate an agreement to commit violent acts abroad but that did not (so far as I can tell) allege a link between Kassir and any particular act of violence.  I’ve written previously about the capacity of conspiracy liability to be used in this manner.  If you are interested, see here.

Also interesting, for those who are not keeping up with the long-running saga of the Oregon training camp with which Kassir was associated: The press release for the sentencing has a brief summary of the current situation relating to co-defendants who remain in the UK fighting extradition to the US, including especially Abu Hamza:

KASSIR’s co-defendants ABU HAMZA and ASWAT are presently detained in England awaiting extradition to the United States. In addition to the charges against all three men, the Indictment charges ABU HAMZA with conspiracy and substantive offenses relating to a hostage-taking in Yemen in 1998, facilitating violent jihad in Afghanistan, and supplying goods and services to the Taliban in 2000 and 2001. ABU HAMZA was arrested in May 2004 by the Metropolitan Police at New Scotland Yard in London, England, on a warrant relating to these charges. Thereafter, ABU HAMZA was charged with terrorism offenses by the U.K. authorities, which resulted in a conviction in the U.K. on February 7, 2006. The extradition proceedings against ABU HAMZA were stayed pending completion of the U.K. criminal proceedings. After ABU HAMZA’s U.K. conviction was affirmed on appeal, the United States renewed its efforts to extradite ABU HAMZA to the United States. The extradition proceedings against ABU HAMZA are currently pending in the European Court of Human Rights.


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)


newly-public OLC memos

January 9, 2009

* Newly-public memos from the Office of Legal Counsel

A fascinating array of OLC memos, ranging in date from November 2001 to March 2004, have just been posted to OLC’s website:

“PROTECTED PERSON” STATUS IN OCCUPIED IRAQ UNDER THE FOURTH GENEVA CONVENTION
(March 18, 2004) (added 1/08/09)

STATUS OF TALIBAN FORCES UNDER ARTICLE 4 OF THE THIRD GENEVA CONVENTION OF 1949
(February 7, 2002) (added 1/08/09)

AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
(October 23, 2002) (added 1/08/09)

EFFECT OF A RECENT UNITED NATIONS SECURITY COUNCIL RESOLUTION ON THE AUTHORITY OF THE PRESIDENT UNDER INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
(November 8, 2002) (added 1/08/09)

WHETHER FALSE STATEMENTS OR OMISSIONS IN IRAQ’S WEAPONS OF MASS DESTRUCTION DECLARATION WOULD CONSTITUTE A “FURTHER MATERIAL BREACH” UNDER U.N. SECURITY COUNCIL RESOLUTION 1441
(December 7, 2002) (added 1/08/09)

LEGALITY OF THE USE OF MILITARY COMMISSIONS TO TRY TERRORISTS
(November 6, 2001) (added 1/08/09)


symposium: terrorism & the legal impact on business; forthcoming scholarship

November 21, 2008

1. Center for Terrorism Law (St. Mary’s), Symposium: Terrorism, Crime & Business: Understanding the Fundamental Legal and Security Issues for American Business (Houston, TX, March 5-6, 2009)

Details posted here: http://www.stmarytx.edu/ctl/content/events/Business_Symposium.html

2. Forthcoming Scholarship

“The Rise and Spread of the Special Advocate”

Public Law, pp. 717-741, 2008

JOHN IP, University of Auckland – Faculty of Law
Email: j.ip@auckland.ac.nz

This article critically examines the special advocate procedure, a means devised to reconcile the use of secret evidence with principles of due process or natural justice. The special advocate is a lawyer who is appointed to represent the interests of a person during proceedings in which the state relies on sensitive material that cannot be disclosed to that person. Read the rest of this entry »


written opinion in Boumediene v. Bush

November 20, 2008

* Judge Leon’s written opinion in Boumediene v. Bush (D.D.C. Nov. 20, 2008)

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1166-276

Here is a brief overview of the opinion:

Judge Leon framed the question as follows, citing the Case Management Order he previously had issued: had the government presented proof sufficient to establish by a preponderance of the evidence that the detainees were part of or supporting al Qaeda, the Taliban, or associated forces engaged in hostilities against the U.S. or its allies (including persons who committed belligerent acts or who “directly supported” hostilities).

The government argued that all 6 men planned to go to Afghanistan to fight against the US.  It also alleged that one of the men – Belkacem Bensayah – was an al Qaeda member who served a “facilitator” function (i.e., that he recruited fighters and assisted their transit to Afghanistan).  The government did not at this stage still contend that the men had plotted to attack the US embassy in Bosnia, nor that Bensayah was a financier as opposed to a “facilitator”. Read the rest of this entry »