Wednesday, December 16, 2009
Thomson Correctional Facility- This is a prison in Illinois where the President has decided to relocate all remaining Guantanamo Bay detainees. Yesterday, by Executive Order, President Obama commanded that the Secretary of Defense and the Attorney General work together to make TCC ready to house the high security prisoners from Gitmo. The order seems to set the deadline for the move at January 22, 2009 which is the original date set for the closure of Gitmo.
There are a lot of legal questions that go along with this move and I think the move will generate new legal challenges. The one thing I am most interested to know is how moving the detainees to American soil will affect the cases of those detainees that win their habeas petitions. Will they be eligible for release in the U.S. now that they are on American soil? I believe that I read an argument posited by the government at some point that a reason that detainees successful at the habeas stage aren't given the right to release in the U.S. because they were never actually in the U.S. I'm just brainstorming right now and I may be misremembering, but I think I read that argument somewhere.
56,000 more contractors to Afghanistan- The Washington Post reports that the Congressional Research Service is estimating that up to 56,000 more private contractors may be sent to Afghanistan. The use of contractors in Iraq and Afghanistan is something that has interested me for awhile and I've published one paper and written another on the topic. The Washington Post article says that it could raise the number of contractors in Afghanistan to over 160,000. That is a lot and is similar to the number of contractors used in Iraq. The increase in the number of contractors also increases the risk of contractors getting into trouble in Afghanistan. There were several high profile incidents in Iraq involving contractors (mostly from Blackwater) that raised the question of whether or not private contractors that commit crimes in a war zone should be subject to the military justice system. I argue in the second paper that I mentioned above that they should be subjected to the military system for practical purposes and because they are in fact involved in fighting a war. Whether or not contractor problems will actually arise in Afghanistan like they did in Iraq remains to be seen, but with the increase in number the chances get higher.
Friday, December 11, 2009
During his stay at Gitmo, Ghailani was represented by two military JAG officers, Lt. Col. Jeffrey Colwell (Marines) and Major Richard Reiter (Air Force), in his appearance before a military commission. The two attorneys developed a good rapport with Ghailani and it was Ghailani's wish, as well as the two attorneys' wish, that they be allowed to remain as his defense counsel when he was transferred to the civilian justice system for trial. The military denied the request and removed the two officers from the case.
Ghailani recently moved the court in the Southern District of New York to declare the military's decision to remove the two military attorneys from the case violated his Sixth Amendment right to counsel. Ghailani sought this relief in the form of an injunction against the Secretary of Defense. On November 18 Judge Kaplan of the SDNY entered his opinion denying Ghailani's motion. Kaplan's opinion is very interesting. Here's a quick run down of the opinion's salient points:
- He starts off by determining if a federal court in a criminal trial does in fact have ancillary jurisdiction to grant an injunction (a traditionally civil remedy) as long as it would aid the court in fully administering justice in the case. In this case Judge Kaplan said it would be appropriate to exercise ancillary jurisdiction because Ghailani was challenging that the Secretary of Defense was violating his constitutional rights.
- Next Judge Kaplan examined the question of justiciability. While jurisdicitonal analysis involved a determination of the power of a court to hear a case, a justiciability analysis determines the propriety of the court to hear the case. Specifically in this case the court had to determine whether granting an injunction over the Secretary of Defense is appropriate since he is an executive officer. This type of justiciability is referred to as the "political question doctrine." Essentially what it says is that there are some questions that fall outside of a court's purview because of their inherently political nature. In this case the court found that questions of military tactics were political questions that are improper for federal courts to hear; however, the court found that Ghailani's case had nothing to do with military tactics. The court here found that Ghailani's case dealt with his constitutional rights at trial and the potential violation of those rights by the Secretary of Defense. As such, the court found this question justiciable and moved on to the substance of Ghailani's constitutional challenge.
- The opinion is somewhat odd in the fact that Ghailani's question was whether or not he had a Sixth Amendment right to keep his two military attorneys but yet in the opinion Judge Kaplan spent the first 29 pages recounting the facts and analyzing jurisdiction and justiciability. The analysis of the Sixth Amendment rights is short and only takes up the last 3 pages of the opinion. What the court found was that Ghailani had no right in the civilian justice system to what it dubbed "continuity" of representation. While there is a provision in military law that seeks to preserve the continutiy of representation (meaning that you keep your same counsel throughout your case) there is no such provision in the civilian system. I think that Judge Kaplan summed up the civilian justice system's view of the matter when he said that federal civilian courts are "more concerned with fostering an effective adversarial system than with ensuring satisfying attorney-client relationships." In the end Ghailani will not get his military attorneys back and will have to settle for the private attorneys currently representing him.
It seems to me that the legal reasoning in this opinion is dead on. I haven't done research on the topic myself of course, but it seems to make sense. As I read this I thought Ghailani would get his attorneys back because Judge Kaplan seemed to work so hard to find jurisdiction and find a good reason that the court should decide the motion on justiciability grounds. I think that if he were so inclined he could have tried to carve out an exception to the general Sixth Amendment view that continuity of representation is not something federal civilian courts are concerned with. After all, this case, and other Gitmo cases, are not your normal civilian criminal case. It's a fact that these detainees have been subjected to both the military and now civilian justice system and most if not all had military lawyers representing them before the military commissions. Those military attorneys have had more of an opportunity to create a rapport and get the detainees comfortable with them which is no small feat. Making civilian attorneys start all over and try to create some kind of relationship with the detainees seems to me to be a daunting task, and a task that, if they fail, could adversely affect the smoothness of the upcoming trials.
Tuesday, November 24, 2009
National security implications here are clear. The indictments allege that these men attended al Shabaab training camps in Somalia where they were indoctrinated in anti-Americanism. While there are no allegations that these men were planning any attacks here in the U.S., it would not be too much of a stretch to believe that such plans could easily develop.
Here is the DoJ press release. Also: Omar indictment, Faarax-Isse indictment, other indictment.
Monday, November 23, 2009
Another major issue that Ghailani is challenging is his right to a speedy trial. This issue isn't as high-profile as the other, but nonetheless important. In the federal system a defendant is entitled to two types of speedy trial protection - statutory and constitutional. By statute (18 U.S.C. 3161) federal prosecutors must file an indictment within 30 days of a defendant's arrest and then, if he pleads not guilty, trial must commence within 70 days of the filing of the indictment or the defendant's first appearance in court. The constitutional protection of the right to a speedy trial comes from the Sixth Amendment. Courts balance several factors to determine whether or not a defendant's constitutional right to a speedy trial has been violated. If Ghailani were a normal criminal defendant there is no doubt his case would be thrown out on speedy trial grounds. He was captured by U.S. forces in Pakistan in 2004 and was reportedly moved around between several U.S. run "black site" prisons before finally winding up in the military prison at Guantanamo Bay. Therefore, he has been held for five years without being indicted. Even under the more lenient constitutional speedy trial standard a federal court should throw out his case. But Ghailani is not a normal criminal nor a normal defendant in a federal prosecution. He's been held by the U.S. government for five years with no hint of prosecution, but during the majority of that time is was the strong belief of the U.S. government that he was more a prisoner of war than a criminal. Like it or not that was the official position of the government during the Bush administration, and therefore no federal criminal procedures were started in his case. Because of the federal government's position regarding men like Ghailani I definitely don't see his speedy trial motion succeeding. The judge in charge of this case would have to be extremely bold to consider throwing this case out on those grounds. First of all, he would be vilified in the court of public opinion. Second of all, the judge has legal avenues through which to deny the speedy trial challenge. As I said, the constitutional analysis of speedy trial is based on a balancing test, one factor of which is the reason for the delay. The reason for this delay was that the U.S. government's policy was that Ghailani was not a prisoner subject to the federal criminal justice system. There was literally no way for federal prosecutors to bring a case against him before now. That sounds like a pretty good reason to me. The statutory speedy trial also contains exceptions, one of which allows a judge to consider the interests of justice. That is usually a catch all provision that comes in to play only in extreme circumstances. I would consider this to be an extreme circumstance. There are probably multiple other arguments that prosecutors will make regarding this motion, but I just thought that an overview of a couple would be helpful here. Again, I don't think that there is any chance that the judge grants this motion, for multiple reasons, but it is a novel and interesting legal issue in these cases.
The last thing I will mention about this NYT article is that I think it gives a small, but fascinating window into how high-profile, highly sensitive terrorism trials will work. I'm specifically talking right now about the defense attorneys will go about properly preparing to defend their clients. These cases inevitably involve a great deal of top secret information which people not in government service are unable to look at. This has been a major area of contention as to how terrorism prosecutions can actually be carried out. One side argues that you can't allow a lot of terrorists to be prosecuted because it will lead to the leak of sensitive intelligence which will harm national security. Others argue that we have to prosecute those terrorists that we capture for the sake of sticking to our constitutional values. Both arguments have merit. The article reveals that Ghailani's attorneys have obtained security clearances from the government, and the judge in the case has set up a secured room in which the attorneys can view classified information related to the case and prepare written submissions based on that classified information. This seems like a logical and efficient way to deal with this issue. It still raises concerns of course. One of those concerns is that these are private attorneys that are being allowed to view highly classified information. I think the idea of non-governmental entities looking at classified information still makes people nervous, but they are still subject to criminal penalties for revealing that information just as those that work for the government are. Also, let's face it, those that work for the government and have security clearances are always the most tight-lipped people around.
No matter how you feel about it, we have entered the time where the U.S. is again treating terrorists more as criminals than soldiers. That means that terrorists will be tried in civilian courts of law. Questions still remain: What is the best way to carry out a terrorism prosecution? Can federal courts as they exist now effectively try terrorists or is it too burdensome? Do we need some kind of stand alone judicial entity such as a national security court to handle sensitive national security issues? How the Ghailani trial unfolds will provide some answers, but not all of them. I believe that if the trials of the 9/11 conspirators happen (That is, as long as the defendants in those cases don't plead out which it does not look like they are going to) we will get a good look at how the U.S. federal court system can handle high-profile terrorism trials. At that point, hopefully, this country will get some good guidance as to what procedures it needs to implement with terrorists from the moment of capture to the end of trial. I think these trials will end up being historic events in America's continuing fight against terrorism.
Thursday, October 29, 2009
Denniston's post says that this is a new issue in Kiyemba and while that is true I don't think that it actually puts a new wrinkle into the case. The bottom line determination that the Supreme Court will have to make is whether or not giving detainees the right to challenge their detention through habeas corpus without giving them the right to the remedy of release from detention is constitutional. Kiyemba is about Gitmo detainees that won their habeas challenges years ago but were then kept in captivity at Gitmo because a suitable country for relocation could not be found. For obvious reasons the government, the courts, and the American people did not want the detainees released in the U.S. While are reasons were obvious they are most likely not constitutional. How can you have a system by which those held in captivity can successfully challenge that captivity and not be released? A right without a remedy is useless. I realize that the situation with Gitmo detainees is not so black and white. Releasing those detainees into the U.S. could be a recipe for disaster. Some of those set for release could be hardened terrorists that won their habeas challenge because of lack of government evidence to justify detention. Some set for release may not have been terrorists at all when they were captured, but now that they have been wrongly held at Gitmo for years they may have developed a hatred for America which they may express violently. Regardless of all that though, I cannot see how the Court will come up with a convincing constitutional reason as to why detainees can challenge their detention and succeed but not be eligible for release.
Coming back around to my original point, what I'm trying to say is that while this new law may be an issue that has to be dealt with in Kiyemba, I do not think that it is going to tip the scales in favor of the government. If not granting a detainee release after a successful habeas challenge is unconstitutional then a new law attempting to halt the release of a detainee who is entitled to release is unconstitutional. In the end, I think this new law may add a few pages to the Court's decision but I don't believe that it will be a deciding factor.
*The closer we get to a decision in this case the more I hope that the government can figure it out on its own and avoid a decision by the Court. There are still a few months before oral argument and then time after that before the decision will be handed down. Hopefully the Gitmo situation, or at least the Uighur situation, will be resolved by that point. Administratively closing down that prison is much more desirable than judicially resolving it.
Tuesday, October 20, 2009
Friday, October 9, 2009
Friday, October 2, 2009
While the aid is not expected to be cut off permanently this delay situation is a catch-22. While cutting off aid is aimed at not helping al Shabbab it indirectly does help them. The more desperate the Somali population becomes the more susceptible it will be to control by terrorist organizations like al Shabbab. It's also important to note that one reason we went into Somalia in the early 90's was to secure food and aid distribution which was being controlled by warlords. I don't want to get ahead of myself or make absurd predictions, but it's starting to look more and more to me like the U.S. may engage in some sort of intervention in that country.
Anyways, those are just my thoughts on the situation. Here's the indictment in U.S. v. Boyd, et al.
Wednesday, September 30, 2009
Amen to that. Well... kinda. It's pretty clear to those who read this blog that I am opposed to continuing a detention system at Gitmo and I believe that the U.S. needs to exhaust all efforts to bring those detainees to trial. Unfortunately, I also believe that a good number of the remaining detainees cannot be brought to trial with any real chance of actually obtaining a conviction. I also believe it to be a possibility that more than a handful of those who can't be brought to trial are extremely dangerous. I don't want to see those detainees released. That being said I'm also unsure how we can legitimately continue to hold them.
Here is how I see this playing out once they are introduced into the U.S. criminal justice system, as the officers urge. We will have to move expeditiously to charge them with a crime and bring them to trial because it would be their constitutional right. If we lack the evidence to do so we will have to release them. Not only would they be released, but i assume that they would be released here in the U.S. Now the government could try to construct some sort of system where we can administratively detain them without bringing charges against them (Israel has a system like this). However, any such system would be incredibly controversial and may draw the same ire that Gitmo does. In addition, I think that if the government tried to apply an administrative detention system to those detainees it could run up against an ex post facto problem.
This post is really just speculation. I haven't done extensive research regarding the ramifications of any of these potential decisions, but I think that they are legitimate concerns.
Friday, September 25, 2009
That's right. Kiyemba is back baby... well for a short time at least. If you'll remember the Supreme Court put their decision on whether to hear the case on hold over the summer. I believed the reason for this was to give the government more time to resettle the Uighur detainees and therefore avoid hearing the case, and it looks like I was right... mostly. SCOTUSblog reported yesterday that the Pacific island of Palau has agreed to accept 12 of the 13 Uighur detainees that remain at Gitmo. Six of the twelve have already agreed to the transfer and discussions are ongoing with the other six. It's important to note that three of the potential transferees are not technically petitioners in the case, but have expressed an interest to be included. The remaining detainee that has not been offered transfer is a petitioner in the case. This means that if a suitable country for resettlement of this detainee is not found the Court could still hear the case without the entire matter being moot.
I can't for the life of me figure out why Palau will only agree to 12 of the 13. You figure that if you can negotiate to get 12 transferred to Palau then you could convince them to take the 13th and just be done with the matter. I'm not sure if the 13th (Arkin Mahmud) is more dangerous than the others or what, but keeping this potentially huge case alive because of one person is not something that the government could possibly want. Time is running out to get these transfers completed because the Court will hold a private conference next Tuesday to decide whether or not it will hear the matter. I think that they will agree to hear it unless there is some way they can delay that decision again. If the Court can't delay any longer the government is under the gun to get this matter resolved before it will have to engage in a very serious battle before the Court.
Nukes in Iran
Mahmoud is really stirring things up again. In a not entirely surprising story it was revealed that Iran has been constructing yet another uranium enrichment facility this time around the city of Qom. This is yet another big step in Iran's journey toward possessing nuclear weapons. The U.S., Britain, and France have known about the facility for years but just recently alerted teh IAEA. All three called for stiff sanctions against Iran if it did not back off of its accelerating journey towards nuclear weapons. Iran, of course, claims that its nuclear ambitions are purely for civilian purposes.
This news dampens the mood following the historic U.N. agreement to scale back nuclear weapons around the world in an effort to stem the threat of nuclear terrorism.
Thursday, September 24, 2009
The article does not say what the specific legislative basis for detention is but I assume they are referring to the Authorization for Use Of Military Force ("AUMF") that was passed on the heels of September 11th. While I believe that we can't simply let terrorists go I also believe that we need more specific and targeted legislation to legitimize the detention system. The AUMF is too broad to base detention powers on. The AUMF gives the President power that is essentially unilimited in time. If we base detention powers on that ground then we are allowing the Executive to detain people forever without any truly defined system by which to manage those detainees. The article says that part of the reason for this move is that any legislation on this subject is likely to be met with a great deal of resistance from Congress and I realize that, but from a purely ideological standpoint it makes me uncomfortable that we can just hold people without trial and without any kind of set procedures to deal with those particular people.
Wednesday, September 23, 2009
"But the core of any counterinsurgency strategy must focus on the fact that the decisive terrain is the human terrain, not the high ground or the river crossing."I love that quote. Traditional combat operations are necessary to get a foothold, but the real battle that needs to be won is stabilizing the region that you are in so that the local population is not reliant on, or in fear of, terrorist organizations.
Tuesday, September 15, 2009
This story is evidence of two things. First, that Somalia is becoming increasingly more prevalent in the War on Terror. Maybe it has been prevalent for a long time and it is just now coming to light, but the recent struggles for power over the country and now the killing of a major AQ figure in the country leads me to believe that AQ and its affiliates see an advantage in trying to operate out of Somalia. Second, it seems that the U.S. is also starting to focus on Somalia and maybe attempt to preempt terrorists from grabbing a real foothold in the country. This is a pretty brazen attack given that it is in broad daylight and right in the middle of a sovereign nation. Granted Somalia in its current state is barely a nation, you won't see U.S. military helicopters carrying special forces soldiers fly into the middle of London or Paris to take out a terrorist, but it seems to be a strong sign that we are stepping up our efforts to disrupt AQ in areas other than Pakistan and Afghanistan. I hope that we continue to focus some resources on Somalia because it will pay dividends towards stabilizing that country and making it harder for terrorists to operate there.
Sunday, September 13, 2009
This is a big step forward. Even human rights groups say this is a significant improvement to the current system. Those groups also say that it is not enough because the detainees still don't have access to legal counsel. I agree that access to legal counsel is a hallmark of fairness, but we aren't dealing with a civilian situation here. When it comes to Gitmo it is much easier to allow for legal counsel because the detainees are held at a military base that isn't in an active theater of war. Bagram is right in the middle of a war torn country where the military is struggling to assert its control. Allowing for legal counsel and traditional legal processes is simply impractical. A full fledged review system similar to the one that exists for Gitmo would use up a great deal of resources, both administrative and security related, in Bagram. The military needs to focus its resources on gaining control of Afghanistan. I like this proposed system. It is not the most protective of detainee rights at Bagram, but I believe it is the most we can do in a practical sense.
Monday, September 7, 2009
This story got me thinking about how we've gotten away from thinking about terrorist attacks against America. No doubt life has changed since September 11th with massive reorganization of government, tighter security at airports, arenas, etc., and a general sense that terrorism can be a real threat to this country. While all that has happened I feel like the potential for another massive attack is not something people think about anymore. If the liquid explosive plot would have succeeded completely it would have resulted in the destruction of multiple commercial airlines in mid-air over the Atlantic and left 1500 innocent people dead. That kind of attack would have created panic on an absolutely massive scale, and dealt a struggling airline industry a blow that it might not have recovered from. It's unsettling to think that such a small group can inflict so much damage. Luckily cooperation between U.S. and British intelligence resulted in the discovery of the plot, but it is a reminder of how vulnerable we are. It's easy to get distracted by the wars in Iraq and Aghanistan, and more recently the economic downturn, but that doesn't mean that terrorist groups don 't still mean the U.S. harm. There are still a good number of targets that terrorists can strike with relative ease that they haven't yet. Examples of such targets that come to my mind are so called "soft targets" such as arenas, malls, and various forms of public transportation. These attacks would probably be less dramatic than September 11th, but could be carried out with more frequency. They would also create a different kind of fear than September 11th because they would be aimed more at the basis of people's everyday lives.
I'm not trying to be the voice of doom here because I do think that we are safer now than we were on September 11th. I also think that it is a good thing that we don't live our daily lives in fear of another attack. This story just made me think about how we can lose focus on a real threat in the absence of a recent attack.
Wednesday, August 26, 2009
I can only assume that the court's reasoning for issuing this denial is that they are setting up a situation in which the Kiyemba II petitioners can be easily transferred out of Gitmo. This would be important because the Kiyemba II petitioners are the petitioners in Kiyemba which could end up leading to a very significant Supreme Court case which the government and the Supreme Court would like to avoid. I believe that this is the case because the petitioner argument in Kiyemba II was much stronger than the government's and I believe that on that basis their motion should have been granted. I said in my first post on this case that while I was ideologically behind Petitioners I felt that they weren't actually in danger of the government surprising them with a transfer to a hostile country. Since I don't think that it is likely that the petitioners in this case will be treated unfairly and transferred to a hostile country I don't have a huge problem with this ruling.
Tuesday, August 25, 2009
- The court will presume the authenticity of the government's exhibits as long as those exhibits have been maintained in the ordinary chain of custody.
- The court will not presume the accuracy of the government's evidence. There are a couple of reasons for this. First, the accuracy of evidence in these cases is "hotly contested" because of the large amounts of multi-level hearsay involved and the danger that evidence was obtained through torture. Second, because there is no jury in habeas hearings, the court must act as the fact finder and determine the reliability and weight of the evidence.
- While the court would not give the government's evidence a rebuttable presumption of accuracy it did say that hearsay could be allowed in some circumstances.
- Mosaic theory- This is a popular evidentiary theory amongst the intelligence community and government has attempted to get the courts to accept this theory as a way for the government to prove its habeas cases. The theory is based on the idea that the court should look at all the pieces of the government's evidence as a whole and not focus on each individual piece of evidence. You can imagine this as a kaleidoscope in which the design is made up a many smaller pieces that look great together, but are not useful as a single piece. Judge Kessler said that while this theory was good enough for the intelligence community it was not good enough for a judicial proceeding. She said that allowing the government to use this theory would allow it to circumvent it's burden of proving every piece of its evidence.
- Despite strong evidence of family ties to Osama Bin Laden, some evidence that Al-Adahi stayed at an Al Qaeda guesthouse, an admission by Al-Adahi that he trained at the Al Farouq training camp, and evidence that he may have been a Bin Laden bodyguard, Judge Kessler found that the government's evidence did not satisfy the question of whether Al-Adahi was a member of the armed forces of Al Qaeda and therefore granted the habeas motion.
This opinion is a great window into a judge's thinking on the Gitmo habeas motions and what standard the government is being held to. This opinion makes it look like the government is going to have a very hard time meeting its burden given the nature of the evidence in many of these cases.
Thursday, August 20, 2009
I don't have a huge moral objection to the CIA tracking and killing terrorists although a strong argument can be made that we should focus on capturing terrorists and bring them to justice rather than just killing them. That being said, I obviously have an objection to the government outsourcing such a program. I'm not even going to attempt to list the legal, moral, and practical problems that arise with farming out killing people. These problems are only amplified when you take into consideration the company that you're contracting with - Blackwater. Blackwater is a company that has a notorious reputation for employing operatives that have little or no regard for the law or human life (an example would be when a group of Blackwater employees slaughtered more than 15 innocent civilians in downtown Baghdad) and, if that low regard is present even when they are not hired specifically to kill people, I cannot imagine what kinds of actions Blackwater would engage in when given the authority to seek out people and kill them. A government engaging in this activity is particularly unsettling. People accept the fact that their government may have to take the lives of others in order to protect their society. Unfortunately that is a necessary evil; however, it is precisely the fact that the taking of life is carried out by those our actual government that makes it acceptable. Contracting out killing to private entities is not something that should be tolerated. Giving that kind of authorization to a private actor can easily create a slippery slope sort of situation where that actor may start acting in its own interest but yet justify it in the name of protecting the country.
Wednesday, August 19, 2009
A big part of both of these briefs is based on the Supreme Court's decision in Munaf v. Geren which is a case I had not read up to this point. I have read it now and will give a brief rundown here. The Munaf case is about two prisoners that were being held by the U.S. in Iraq. In pertinent part, the two prisoners in that case were seeking to stop the U.S. from releasing them to Iraqi authorities for fear of prosecution and torture. They essentially argued that habeas protections should require the court to enjoin their release to the Iraqi government. The Supreme Court disagreed and said that habeas offered these two no protection in this case. The Munaf decision said two things that I think are important to understanding the arguments in Kiyemba II. First, the Court said that habeas did not apply to the two petitioners in Munaf because they committed crimes in Iraq and were being held in Iraq. The Court said that allowing habeas to protect the two from release would interfere with the Iraqi government's sovereign power to punish crimes in its own land committed by people still being held in Iraq. Second, the Court said that the determination of whether a country is likely to torture or otherwise abuse a prisoner if transferred there is one left to the political branches. This statement was fairly resolute, but there seemed to be some wavering to this point in the concurring opinion in Munaf.
So that is your background for Munaf. The government's opposition brief here in Kiyemba II is fairly straightforward and is based almost exclusively on Munaf. The government's two main arguments here are: 1) the Kiyemba II petitioners are in essentially the same factual situation as the ones in Munaf; and 2) that the torture determination is one to be made the political branches.
As far as Munaf being completely applicable to Kiyemba II because the facts are similar I completely disagree. I agree with Petitioners' argument in Kiyemba II that Munaf was based on a very fact specific determination. The Court's decision in Munaf came back to the fact several times that the petitioners in that case had committed crimes in Iraq and that they were currently being held there. The Court's major consideration in Munaf was not to allow those petitioners to use habeas as a tool to get the U.S. to shelter them from the power of a country in which they were currently being held. In the case of the Kiyemba II petitioners the prisoners are being held in Cuba for no legitimate reason. They ended up in U.S. custody because American authorities wrongly apprehended them because they mistakenly believed they were training to attack the U.S. Their habeas cases have already been decided and they won. They should have been released long ago, but they remain incarcerated for various reasons. Munaf simply does not apply in this sense. If they had committed crimes in Cuba, and had they not already won their habease cases then it would probably apply, but they did not and that is a very important factual distinction.
The second main argument about leaving the torture determination to the political branches is one that the government harps on over and over and over again in this brief. It seems like they cling to it because the language in Munaf seemed particularly clear on that subject. I will agree with the government that the Court in Munaf did say that the likelihood of torture determination should be left to the political branches. However, the government claims that this ruling in Munaf is unambiguous. I disagree with that a little bit because there is language in the concurrence that suggests that judicial review may be appropriate if there is a good deal of evidence that torture is likely and the government is going to go through with the transfer anyway.
In the end the government simply misses the boat in their brief because they don't focus at all on the fact that the petitioners are not trying to avoid release like the ones in Munaf. Petitioners in this case merely want advanced notice before they are released so that they might be able to stop a release that may send them to a hostile country. I think I only saw the word "notice" one time in the government's brief. It pretended like the petitioners were attacking the government's ability to release them at all, but release is exactly what Petitioners want. They desperately want to get out of Gitmo, which courts have already said they have the right to do, but they don't want to be sent to a country that may torture or kill them. The government just doesn't address the fact that notice is what Petitioners are looking for in this case. That fact alone distinguishes Kiyemba II from Munaf. Since the government's entire brief is based on the that alleged similarity that makes that government's brief extremely weak and I think it should make Petitioners' request for a stay likely to be granted.
Monday, August 17, 2009
Let's just run through some reasons that the Israel/Palestinian problem does not really compare to the Texas/Mexico problem. Perry actually attempted to back up his statement with the fact that only 28 Israelis have been killed by rocket attacks against Israel in the past eight years but over 1,000 people have died in Juarez, Mexico in the past year. I'm not sure which member of Rick's staff dug up this nugget and encouraged him to use it, but they should put a sign around their neck that says "snitch" and leave them in the streets of Juarez. Rick, the modern state of Israel was formed when the world powers after WWII displaced an entire country full of people (the Palestinians) and gave it to another group of people (the Jewish people) after that group was nearly wiped off the face of the earth. Since then the Jewish people have been under a constant state of attack from both the Palestinians, whom they displaced, and the other Arab countries in the region. These attacks have come in the form of all out war as well as constant terrorist attacks aimed at disrupting the way that all Israelis live their every day lives. Israel has not lived in a state of peace since its very inception and it is unlikely that it ever will. I'm not trying to downplay the severity of the problem in Mexico because it is a huge problem and one that puts innocent people at risk, but the drug dealers' goal is to make money not to wipe the state of Texas from the face of the earth.
As far as Rick's firm belief that God ordained that the state of Israel belong to the Jewish people, that is his personal belief and he is entitled to it. Unlike his belief that his border problem is worse than the Israeli/Palestinian one, he is certainly not the only person in the world that believes that God ordained the Jewish people to have Israel. I'll just say that politicians basing their foreign policy on the Bible makes me uncomfortable to very uncomfortable.
It's disturbing to me that I don't even have to touch on the fact that Rick Perry suggested that Texas might want to secede from the Union in order to prove what a complete lunatic he is.
Don't get excited because this post is not about the Kiyemba case that I've written so many posts about. Remember, the Supreme Court is still considering that case's cert petition and it will make a decision as to whether it will hear that case as soon as the justices get back from summer camp. That should be some time in late September or October I believe. This post looks at the case being dubbed Kiyemba II. This case deals with a challenge by the Uighur detainees ("Petitioners") asking that they be given advanced notice before the U.S. transfers them out of Gitmo and out of the reach of the U.S. court system. Petitioners' central concern is that they don't want the U.S. government to order a surprise transfer in which they are taken out of Gitmo and sent to another prison outside the reach of U.S. courts or sent back to China where they will almost certainly be tortured and/or executed.
The procedural history of this case is slightly convoluted and took me awhile to figure out, but what is most important to know is that the motion discussed in this post is a motion to stay the mandate of the D.C. Circuit Court during the pendency of Kiyemba II's cert petition to the Supreme Court. The mandate that Petitioners seek to stay says that Gitmo detainees do not have a right to notice before they are transferred even if they fear being tortured or prosecuted by the transferee country.
I'm not going to get deep into the minutiae of this motion because the argument centers around the legal test for staying a court order. I don't think that it is important to get into the esoteric legal details of that argument here; however, it is important to understand what this case is about and what the arguments being made are actually saying. First, as already discussed, Kiyemba II is about Petitioners getting the right to have notice from the government before they are transferred so that they can see where they are going and challenge that transfer if it will take them to a country that will further prosecute, torture, execute, or violate their rights in some other way.
Second, I think that what the arguments are actually saying here is that not allowing for pre-transfer notice to detainees is a huge blow to the habeas rights given to detainees in Boumediene to the point that it may "[render it] hollow." This argument should sound very familiar because it is the central ideological argument in Kiyemba I. In Kiyemba I Petitioners are saying that they are entitled to release from Gitmo to an acceptable country, even if it has to be the U.S., because they won their habeas cases. To not allow them release is anathema to both Boumediene and the constitutional right of habeas itself. Petitioners argue in Kiyemba II that allowing the government to surprise detainees with transfer without any right to analyze the specifics of the transfer and challenge the transfer is another way for the government to potentially skirt the legal process and constitutional protections.
This discussion is fairly superficial and if you want to get acquainted with the specifics of the argument then you should definitely read the motion. There is also a good discussion of it by Lyle Denniston on SCOTUSblog. I just want to say that I agree with Petitioners' argument here. The government should most certainly not be allowed to circumvent the habeas protection promised to detainees by transferring them out of the judiciary's jurisdiction or by transferring them to countries that may very well violate their legal or human rights. That being said I don't believe that the government would try to solve the detainee problem through surprise transfers. The first reason I believe this is that such a move would be a public relations nightmare. The administration would be torn apart in the court of public opinion for trying to do this. Secondly, we've already seen a concerted effort by the government to find suitable countries for relocation. Proof positive of this came in June when four of the Uighur detainees were transferred to Bermuda and it seems like the administration is doing all it can to find suitable transferee nations for those detainees that qualify. I think that if the government were going to try to solve the detainee problem by quick transfers then they would have done it already and not waited until Kiyemba I got so much publicity and made it all the way to the Supreme Court. Finally, I don't think surprise transfers are likely because of the part of the Supplemental Appropriations Act that requires the Executive to give Congress fifteen days notice before a Gitmo detainees is released or transferred. Petitioners in this case recognize that this law is on the books and requires notice, but they argue that the law cuts the courts out of the decision as to whether transfer would be appropriate. While that argument is true I don't believe that Congress would sanction a transfer that was clearly meant to remove a detainee from U.S. court jurisdiction or that was going to send the detainee to a questionable country. Again, the court of public opinion should keep the Executive's and Congress's actions in check in this situation.
A reply brief by the government should be forthcoming and I'll keep you updated on that.
Thursday, August 6, 2009
Who knows whether all this is true or not, but I'll tell you that none of this surprises me. Prince has allowed his operatives to perform all kinds of questionable/illegal activity in Iraq, it wouldn't surprise me to find out that Prince was directly involved in illegal activity himself. I do know this, the stories out of Blackwater are starting to sound eerily like that plot of the recent movie "State of Play" which I wrote a post about a couple months ago. More on this as it develops.
h/t to Ned on this one.
Sunday, August 2, 2009
This new plan suffers from all the same ailments as options that have already been considered. First of all, there are big public relations/political problems with transferring the prisoners at Gitmo into the United States. The big problem here is the "not in my backyard" argument which says that almost no one, citizens or politicians, want the prisoners anywhere near them. A lot of people are worried about having prisoners that have been branded as terrorists near them, and the politicians are worried the voters of their state or district will blame them if the prisoners end up there. As far as I'm concerned that is a non-issue. When is the last time you heard of prisoners escaping from a maximum security prison? It's extremely rare, and even if it is possible the security at any prison housing the detainees will be extremely high.
The real issues that remain unanswered are legal/constitutional ones. We can move the detainees anywhere we want to, but the fact remains that we don't know what to do with the ones we can't put on trial or transfer to another country. The article reporting on this new plan says that we can take 60 to 80 of the prisoners left at Gitmo to trial. That means that 170 are left that we can't try or transfer. The new plan actually includes a plan for cells in which dangerous terrorists that can't be tried can be held, as well as a plan for "immigration cells" which will hold detainees that the courts have ordered to be freed yet can't be because the U.S. won't release them here and no other countries want them. Those two parts of the plan essentially institutionalize existing constitutionally-questionable problems as if doing so suddenly makes them constitutional.
In the end the fact remains that holding prisoners without trial is unconstitutional. Holding prisoners that have successfully challenged their detention through the habeas corpus process, and whose release has been ordered by a court, is unconstitutional. The fact remains that we are in a tough spot, but we have to do better.
Saturday, July 25, 2009
Tuesday, July 14, 2009
Sunday, July 12, 2009
Thursday, July 9, 2009
No matter what motivates them, I think Africa is the logical place for AQ to move to. As I've said in past posts, it is already happening in Somalia. The elements that make Somalia an ideal place for AQ to grab a foothold are present in numerous other African nations like the ones named in this article.
In other news, there have been a couple of developments on the legal front of national security, but I get my fill of legal content every day so it's hard to summon the motivation to read more of it. I will try to post something about them soon.
Thursday, July 2, 2009
If these statements strike you as odd you are not alone. Voodoo is with you on that one my friend. For starters I find it odd that a WMD attack will make this country more safe. For some crazy reason I feel that it would make the country less safe. For example, New York City, as it exists now, would be a lovely and relatively safe place for a visit this summer. I encourage you to take your family there. On the other hand if terrorists detonated a nuclear weapon in Manhattan tomorrow your choice of vacation spot would be slightly less picturesque and safe as there would be possibly millions of dead bodies there, and the resulting nuclear fallout would render the city uninhabitable for the next 20 years. Under these circumstances I would not recommend you take your family there. Based on these facts I will put my reputation on the line and say that NYC, and the U.S. as a whole, is definitely safer now than it would be in the event of a WMD attack. I will also respectfully disagree with the implication that the U.S. has not used the requisite amount of violence to protect itself. Some might even say we've used too much seeing as how we've started wars in two different countries (three if you count the move to Pakistan) that have resulted in the deaths of thousands of soldiers, terrorists, and civilians. We also tortured a bunch of people.
In conclusion: 1) We are safer in the absence of a WMD attack; and 2) Starting two wars and torturing people is, at the very least, a reasonable reaction to terrorism. These are just my thoughts of course. Voodoo encourages debate so if you feel that Scheuer is the only voice of reason left in this crazy, pansy-ass country let me know.
Oh and of course, welcome back Glenn.
Tuesday, June 30, 2009
North Korea literally couldn't be more annoying if it tried. I would wager that there is a higher than 90% chance that the Kang Nam has nothing illegal on it. The New York Times has an article today that says that the ship is moving incredibly slow and speculates that maybe it is trying to goad the U.S. or another country into boarding it and sparking an international incident. The article poses the question "Are the North Koreans really that wily?" Of course they are. Actually, I don't think it is really that wily of a move in the first place. North Korea knows that the global community is hypersensitive towards it right now, and I think that it is simply looking to tick someone off enough so that they overreact and make this whole thing a much bigger problem.
At the risk of oversimplifying this issue I would say that the U.S. and other countries need to deal with North Korea the way that our mothers taught us to deal with that annoying kid at school. You can't let his ridiculous antics get under your skin. You can't do it because the actions are meant to be provacative, and reacting to them is exactly what he wants you to do. That being said, we can't simply ignore North Korea. We have to keep an eye on it and engage it in order to deescalate the tensions built up in that region, but we can't let them goad us into a needless fight.