Saturday, February 28, 2009

The Government's Motion to Dismiss the Al-Marri Case

The government filed its Motion to Dismiss the Al-Marri case yesterday. The 15 page argument asks the Supreme Court to dismiss the case on mootness grounds, or in the alternative to vacate the 4th Circuit judgment and remand it back to that court to dismiss. The argument is that the Al-Marri's indictment gives him the very relief he sought in his habeas petition, which was to either be charged with a crime and go to trial or to be released from custody.

The motion goes on to preempt any arguments that Al-Marri might make against dismissing for mootness. One exception to the mootness doctrine is voluntary cessation of the conduct complained of. If the party engaging in the challenged conduct voluntarily ceases the conduct to avoid litigation the mootness doctrine will not apply if it can be shown that the plaintiff will be subject to the challenged conduct in the future. The government argues that in this case there is no non-speculative reason to believe that the government will put Al-Marri back into military custody. Interestingly, the motion does admit that Al-Marri could be re-designated an "enemy combatant" in the future, but that such a re-designation would be under such different circumstances that it would be improper for the Court to consider a re-designation at this point.

The other exception to mootness argued against in this motion is that of the challenged action being likely to be repeated in the future, but yet evading review. If the aggrieved party can show that the challenged action is likely to be repeated in the future but that such action would be unlikely to be able to be litigated, and that the aggrieved party can reasonably suspect being subjected to the action again, mootness can be overcome. The government says that Al-Marri cannot meet either prong because repetition of the action is merely speculative at this point in time, and even if he were subjected to military detention again there is no reason to suspect that such action would not be able to be litigated.

Third, the government throws in a pretty standard argument that the Court should not decide a case on constitutional grounds when there is another way to decide the case. The government argues that deciding the case on the complex constitutional grounds raised is imprudent becaused the order to remove him from military custody gives him the relief he seeks.

Something that jumped out at me was the repreated use of the word "hypothetical." This language points back to the Padilla case where the Court chose not to hear the case because the chances of Padilla being returned to military custody were only "hypothetical", and therefore there was not enough to keep the controversy in that case alive. Since the Padilla case is so analogous to this one I think the government is drawing a clear line from that case to this one so as to make the Court's decision to moot the case an easy one.

I think this was the expected reaction from the government, but I still would have liked to see them let the Court decide it. Of course, the Court hasn't made its decision to moot the case yet, but they most likely will. They most likely would have done it even without this motion to dismiss, but I think that if the Obama administration was serious about determining the constitutionality of the actions complained of in Al-Marri then they would have wanted to see what the Court would say. Now we are still left with the same doubt we had before, and the government still has this tool at its disposal.

Friday, February 27, 2009

Al-Marri Indicted

Reuters is reporting that a federal grand jury has indicted Al-Marri. The charges in the indictment are conspiracy and material support for terrorism.

This indictment takes Al-Marri out of military detention and places him in the civilian justice system. The big question now is: What will become of the Supreme Court appeal? With the removal to the civilian system a strong argument can be made that his case is now moot. The Court could also decide not to hear the appeal using the "hypothetical" argument it used in the Padilla case when.

Another question this raises is: What are Obama's intentions in indicting Al-Marri? By indicting Al-Marri the new administration could be seeking to avoid a groundbreaking ruling by the Court that could limit the adminstration's power in the future. I hope this is not the case, but it could be. The other intention could be just to get Al-Marri's case moving and stop engaging in a constitutionally questionable activity. As I said before, Al-Marri's attorney is urging the Court to hear the case so that a similar situation will not happen in the future. I think that the DoJ should also come out and urge the Court to hear the case as well so as to give the impression that they want to settle the constitutional question that Al-Marri raises. This would avoid the administration looking like it was trying to save itself from losing a potential detention tool.

Thursday, February 26, 2009

Al-Marri Update

Reuters, The Washington Post, and SCOTUSblog are all reporting that the Department of Justice will file terrorism charges against Ali Saleh Kahlah Al-Marri. Al-Marri is the only "enemy combatant" being held in the United States. He is currently detained at a military facility in Charleston, South Carolina, and has been since 2003. His case is currently on appeal to the Supreme Court after the 4th Circuit found that President Bush did have the power to detain a U.S. citizen, apprehended in the U.S., as an "enemy combatant." If he is in fact charged with a crime and sent to a civilian jail, Al-Marri's sure path to the Supreme Court will be in serious jeopardy. This is because he will no longer be held in military custody as an "enemy combatant", which essentially moots the reasons he is appealing to the Supreme Court. Once he's charged by the DoJ he will be in the civilian justice system, and will obtain the same status as any other civilian prisoner along with all the rights that attach to that status.

The ACLU is representing Al-Marri and a press release from them today contains a quote from Al-Marri's lawyer that urges the Court to hear the case even if Al-Marri is transfered to the civilian system so that this situation cannot happen to anyone ever again.

This is a nice follow on to my earlier post because it shows the best way to deal with any dangerous detainees at Gitmo. If we are going to avoid the problem of not having any place to send the detainees upon the closing of Gitmo then we are going to have to prosecute them through the civilian justice system. It is going to be very hard to find countries that we can send detainees to either because they don't want them or because we know they will torture or kill them. To me civilian prosecution seems the most effective way to deal with the Gitmo detainees.

Letter Urging the Release of 20 Gitmo Detainees

While some may have thought that President Obama's order calling for the closing of the prison at Guantanamo Bay would begin to satiate opposition, the clamor and controversy around Gitmo continues to grow. Lawyers for some of the detainees sent a letter to President Obama today pleading with him to release their clients. One of the lawyers represents the 17 Uighurs held at Gitmo. These detainees have been in the prison for 7 years and have been granted their freedom by the federal courts. One of the other lawyers represents Lakhtar Boumediene (yes that Boumediene) and Saber Lahmar, and the other lawyer represents Mohammed el Gharani - all of whom have won their freedom in federal courts. The letter also claims that these detainees are still being subjected to harsh treatment at Gitmo.

Well, they've won their freedom in federal court what more could they ask for? While they've won their freedom they are still being held at Guantanamo. Gharani was cleared for release six weeks ago, Boumediene won his freedom in the landmark Supreme Court decision three months ago, and some of the Uighurs were cleared five years ago. The reason they are still being held there is that the U.S. cannot find anywhere to send them. Countries are refusing to take them, including the U.S., because they believe they are a security risk. This is understandable given the fact that the 17 Uighurs were definitely trained in an Al Qaeda facility. Recently the D.C. District court ordered that the Uighurs should be released into the U.S., but just last week the D.C. Circuit reversed that decision saying that they do not have a right to be released into the U.S. simply because they have a right to habeas corpus.

This is proof that unraveling Gitmo is going to be a monumentally difficult task. Simply closing down the facility is easy, but figuring out what to do with the prisoners there is something that we obviously still do not have a solution to. Some of the people held at Gitmo are known terrorists. Some of them we will be able to prosecute, but not all. If we can't prosecute them or hold them some other way then we will have to release them. However, we cannot release them to countries that we know will torture or kill them, and we cannot release them to countries that do not want to take them. That leaves us with the option of releasing them in the U.S. The public outcry that would follow that solution would be able to be measured on the Richter Scale so I don't think that will happen. Where does that leave us then? I fear that we are going to end up with a lot of former Gitmo detainees that we don't know what to do with and that in response we will devise some solution that is equally controversial to Gitmo. Maybe ship them to the military prison in Bagram. Of course, that would just leave us with a new Gitmo, and legal controversy already surrounds the Bagram facility. If you can't do any of the the above things then I can only speculate as to what the solution will be. I just hope that we can come up with some creative answers that do not involve even more suspicion of human rights violations.

Tuesday, February 24, 2009

DoD Report on Conditions at Gitmo

Yesterday, the Department of Defense released a report detailing an investigation into whether the conditions at Guantanamo Bay met Common Article 3 requirements pursuant to President Obama's January 22nd Executive Order. The report is 81 pages long so I will not detail it here. I will tell you that the report concludes that the conditions at Gitmo do meet the requirements of Common Article 3. It also makes some recommendations as to things that could be improved, although it is careful to point out that it is not necessary to implement these recommendations to meet Common Article 3 requirements. The report does a nice job of detailing the facilities and operations at Gitmo.

In a somewhat related story, the New York Times reported today that a French appellate court overturned the convictions of five former Gitmo inmates. The court overturned the original convictions because it said that French intelligence officials obtained evidence used at trial in violation of French law. Without this evidence the court said that the convictions could not be upheld. Among those who had their convictions overturned was Mourad Benchellali. Benchellali is from a family who has strong ties to terrorism. His father, mother, and two brothers have all been convicted of terrorist activity. The most disturbing part of the NY Times article is that it says that all the men admitted that they received training in Al Qaeda training camps in Afghanistan.

The French court decision is worrisome to me for two reasons. First, the timing of the decision is unfortunate given that it comes close on the heels of the release of the DoD report. The court decision is based on its finding that conditions and methods used at Gitmo fell below a standard that made evidence obtained there admissible in court. This basically says that the French court felt that Gitmo conditions did not meet international conventions (i.e. The Geneva Conventions). A distinction could be made that these detainees were held at Gitmo during the Bush administration so it has nothing to do with Obama, but any blow to Gitmo now does not look good. Second, and the NY Times article mentions this, it brings up concerns about what will happen to the current detainees once they are released. It's a sure bet that some of them will be released to foreign countries whose courts could find similarly to the French court. This would lead to the potential release of more terrorists, and could further damage the U.S.'s reputation.

Monday, February 23, 2009

First Gitmo Detainee Released Under Obama

Binyan Mohammed is the first detainee to be released from Gitmo since Obama took office. After release he was transferred to Britain. Mohammed claims that the U.S. tortured him while in custody and his detention conditions have created a strain in U.S.-British relations. You can check out the short SCOTUSblog entry and corresponding links here.

Executive Director of the Special Interagency Task Force Named

The special interagency task forced that is charged with figuring out what to do with the remaining detainees at Gitmo got an Executive Director. A February 20th Department of Justice announcement named Assistant Attorney General Matthew G. Olsen to the position. Olsen's job will be to gather and examine information about the detainees so that he can make recommendations to those in charge of the task force. This will be a monumental task given its complexity, and the fact that he has one year to do it. Options with what to do with a lot of the detainees could be tough to parse through, and Olsen may have to get creative in disposing of these cases. It will be interesting to see how the dispositions play out and the different methods used.

Sunday, February 22, 2009

The Detainee Treatment Act

Congress passed the Detainee Treatment Act ("DTA") act in 2006 because of concerns about the way detainees were being treated by U.S. military and other authorities. A January 23rd report by the Congressional Research Service detailed the DTA. I have summarized this report because I think this to be a very relevant national security law topic, and one that we should have at least a passing understanding of.

The report begins by outlining the three provisions applicable to interrogation of detainees:

1) Army Field Manual Standards- The DTA mandates that no person in the custody of the Department of Defense can be subject to interrogation that goes beyond the rules laid out in the Army Field Manual. This was meant to eliminate procedures that the DoD previously applied to detainees that it did not consider to be POWs, thus allowing it to use a wider (and consquently unacceptable) range of interrogations methods on these individuals. Lacking in this provision is its effect on non-DoD personnel. This provision does not apply Army Field Manual restrictions to personnel not working for DoD. Also notable is that it does not foreclose the ability of the DoD to amend the Field Manual.

2) Prohibition on Cruel, Inhumane, or Degrading Treatment or Punishment- This applies across the entire U.S. government, including non-DoD personnel. The "cruel, inhumane, or degrading" threshold is determined by the Fifth, Eighth, and Fourteenth Amendments to the Constitution and is applicable to anyone in U.S. custody "regardless of geographic location or nationality." The report points out that this threshold can be a moving target since it is dependent on judicial decisions and legal scholarship, however here are some acts that violate the threshold: 1) handcuffing to a hitching post for an extended period of time; 2) temperatures that do not reach the reasonable level of comfort; 3) interrogation for an unreasonable amount of time as determined by the circumstances.

Another interesting point the report makes is that the DTA does not explicitly prohibit the transferring of prisoners to other countries where these standards do not apply. This has been a tool the U.S. has used and Obama has given no order that explicitly bans this practice yet.

3) Protecting Personnel Engaged in Authorized Interrogations- This provision protects interrogators from criminal or civil liability arising out of an interrogation that might not meet standards as long as the interrogator had a good faith belief that what he was doing was authorized. The DTA says that advice of counsel is an important factor in determining this.

The next part of the report looks at the legal developments in the area of detention and interrogation that followed the passage of the DTA.

1) Updated Army Field Manual- The update assimilated the DTA's mandates and explicitly prohibited "cruel, inhuman, or degrading treatment." Specific acts prohibited were: 1) forcing detainee to be naked, perform sexual acts, or pose sexuall; 2) hoods over the head or duct tape over the eyes; 3) beatings, electrical shocks, burns, etc.; 4) waterboarding; 5) using dogs to intimidate; 6) inducing hypothermia or heat injury; 7) mock executions; 8) deprivation of food, water, or medical care. The report also mentions that the new Field Manual included 19 acceptable interrogation techniques.

2) Hamdan v. Rumsfeld- This case resulted in Common Article 3 of the Geneva Conventions of 1949 applying to those captured in the fight against Al-Qaeda. The report says that this resulted in criminal liability for U.S. personnel that violated any part of Common Article 3. The Military Commissions Act of 2006 ("MCA") sought to mitigate the effects of the Hamdan decision. First, it made only certain violations of Common Article 3 criminally punishable and retroactively implemented the DTA's defense provision for interrogators that may have committed violations between September 11, 2001 and December 30, 2005. The report points out that the MCA only criminalizes "grave breaches" of Common Article 3. Second, the MCA authorizes the President to pass Executive Orders enlarging the scope of non-violative conduct as long as the conduct is not considered a "grave breach."

3) Interrogation Techniques by Intelligence Agencies Authorized Under the Bush Administration/The Repeal of This Authorization by President Obama- Before the passage of the DTA, Bush's Department of Justice issued several, now infamous, classified opinions. These opinions authorized certain interrogations techniques that it said the DTA would not bar. There was congressional outcry, but the Bush administration claimed that the appropriate congressmen were aware of the DoJ opinions and approved of them. In 2007, President Bush used his previously mentioned enlarging power under the MCA to issue an Executive Order. This order outlined interrogations techniques applied to "Al Qaeda, the Taliban, and other associated organizations" and to those possessing information that could stop a terrorist attack on the U.S. and allied nations. The report points out that this order is interesting in the fact that it bars certain practices and does not approve of any; however, the report goes on to say that it is unclear from this order whether techniques such as waterboarding, hooding, sleep deprivation, or forced standing were barred. This suggests the Bush administration used this list of negatives as a way to distract people from interrogation practices that it wanted to allow.

As I've discussed before these DoJ opinions and the Bush's order were repealed by Obama when he took office and Obama's order now only authorizes interrogations techniques in line with what is in the Army Field Manual.

The final section of the report briefly outlines attermpts by Congress to pass legislation that would affect interrogation techniques. I will not outline them here, but you can check them out in the report. I would like to point out that the report suggests the possibility that Obama's presidential order regarding interrogation may take away Congress's motivation to pass legislation to further clarify the laws surrounding interrogation. I don't think this will be the case. Obama's order limits interrogation techniques to only those enumerated in the Army Field Manual, but that seems to be a very general solution to a complicated problem. I don't believe that the DTA, MCA, and the executive order come close to solving the problem of what methods the U.S. believes it can rightly use in attempting to gain intelligence or in attempting to stop an attack. I also believe a big question about the policy of sending prisoners to other countries goes unanswered. Will the Obama administration deal with this issue or will it see some usefulness in the policy and continue it? I believe that there are some techniques that are clearly too much such as those that involve mutilation or other serious physical harm. But I also believe that there may be some interrogation techniques that are currently banned that don't need to be. Again I think we still need to refine our approach to the new fight against terrorism.

Saturday, February 21, 2009

Maqaleh v. Gates

On February 20th the government filed a response to an earlier order by Judge Bates (D.C. District) in which Judge Bates invited the government to refine its position as to whether U.S. courts have the power to entertain habeas petitions from detainees held at Bagram Air Base in Afghanistan. The government's two sentence response retained the current position (originally articulated by the Bush administration) which is that U.S. courts don't have jurisdiction to hear habeas petitions from those held at Bagram. SCOTUSblog has a more detailed discussion here.

Why allow courts to hear habeas petitions from those held at Gitmo, but not Bagram? I think an important difference exists, and that is that Bagram is a base in a war zone. But don't the same concerns exist with detainees at Bagram and Gitmo? Both hold prisoners captured in the "War on Terror." An integral part of the Court's decision in Boumediene was that Gitmo is under de facto control by the United States. I would argue that Bagram is under as much control. It is a U.S. controlled military base in a country that is under U.S. military control. Even though there are fundamental similarities between Bagram and Gitmo, I do think the fact that Bagram is a war time base is an important distinction. It should be considered separately from Gitmo, but the reasons for allowing habeas review for Gitmo detainees exist with respect to Bagram detainees.

This doesn't necessarily mean that the new Obama administration is permanently adopting the Bush administration's stance on Bagram. I think the new administration is still trying to get its head around the detainee situation it inherited and is taking some time to carefully craft its policies. We may not see a voluntary change in the position as to detainees at Bagram, but I believe that it is too early to know what the new administration's policies will look like long term.

Wednesday, February 18, 2009

Blackwater Changes Its Name

Blackwater, the most notorious of the private security contractors (and that is saying something), is changing its name. The Washington Post confirmed this in a February 14th article. The new name of the company will be Xe (pronounced "zee"), and the move is meant to redefine how people think of Blackwater. Anne Tyrell is the company's spokeswoman (which has to be high up on the list of worst jobs in the world) and she said that Blackwater is not what it used to be and "can no longer accurately be described as Blackwater." Somewhat coincidentally, yesterday Judge Ricardo Urbina (D.C. District) ruled that the Department of Justice could proceed with its case against five former Blackwater contractors for manslaughter in a case stemming from the Nisoor Square incident in Baghdad in 2007. For those who don't remember, or haven't heard of, the Nisoor Square incident, it involved heavily armed Blackwater contractors opening fire unprovoked in a crowded square in downtown Baghdad, killing and wounding a number of innocent Iraqis. A sixth contractor charged in this incident plead guilty, and is now cooperating with federal prosecutors. This case represents the largest and most prominent use of a recently passed, and woefully underused, federal statute called the Military Extraterritorial Jurisdiction Act. The MEJA grants federal prosecutors here in America the power to try, in federal court, those who commit certain felonies while working in support of a Department of Defense mission overseas. It is the only statute proven to give the U.S. governement power to hold overseas contractors criminally liable, and despite numerous reports of contractor abuses overseas it has only been used about 12 times. I'll stop here because I'm digressing from the topic of this post.

The real question here is why is Blackwater changing its name? Given the terrible press that it has recently gotten the most logical answer is: to distance itself from its past mistakes. That makes sense to me; however, the word out of Blackwater the past few months has been that they are shifting their business model (away from private security) and basically getting out of the security contracting business. I think that may be facially true, but I think that now is an easy time for them to say they are getting out. In fact, what I think is happening is that they are stepping back for the time being and waiting for a better environment to get back in the private security business.

The reasons it is easy for them to step back now are easy to spot. First of all their lucrative State Department contract is not being renewed when it runs out in May. It's gotten roughly $1.3 billion worth of contracts from State since 2001 so it has a pretty nice cushion there. The reason this contract is being cancelled is because the Iraqi government is refusing to allow Blackwater to have a license to operate in the country. I'd say it's a good time to step back when your cash cow takes a hike. Secondly, it's easy for them to step back on attempting to acquire private security contracts because a new administration is in power. I think it is highly unlikely that the Obama administration would ever hire Blackwater, or Xe, or whatever you want to call it. Not only is there a stigma now attached to the company, but the founder of Blackwater, Erik Prince, was a huge republican supporter and it is no secret that Blackwater got most of its contracts through his position as a Republican insider.

Blackwater does legitimately have other facets to its business and has for quite some time. It has an aviation section, an intelligence section, and a huge training section (among a few others). I absolutely believe that they will focus on growing these parts of their business and using them as their money makers for the foreseeable future; however, I do not believe that they are getting out of the private security industry. Private security is where the money is and it is what Blackwater does best (they never lost a protectee during their operations in Iraq and Afghanistan). Erik Prince is a former Navy SEAL and a lot of Blackwater's employees are former SEALs and others from the special operations community. These guys are hard wired to want to operate in the field. They don't want to sit around and do intel or train people all the time.

Bottom line is that Blackwater is stepping back for the time being, but that doesn't mean they are going away forever. The question will be: What will happen when they step back on the private security scene? Will they have changed? Will it be a company that attempts to control and reign in its operators? I think not. I don't the problem resides with most of the people that work for Blackwater, I think it is a problem with the leadership. The leadership never showed any sign that it thought it was doing anything wrong or any sign that it would attempt to change its ways. Unless the leadership changes, when and if Blackwater comes back on the scene, I think it will be more of the same.

Tuesday, February 17, 2009

Homeland Security Reform

The NY Times reported today that new Secretary of Homeland Security, former Arizona governor Jane Napolitano, is reviewing major DHS programs to determine their status and effectiveness. Among those programs under review are cybersecurity, Canadian border security, and power plant/critical infrastructure security. Napolitano expressed frustration with the way the Bush administration ran its simulations, and called for a "streamlining" of DHS programs. In future exercises and initiatives, Napolitano wants to emphasize cooperation between federal and state officials in dealing with crises.

The newly created Department of Homeland Security has been one huge bureaucratic mess since its inception after 9/11. This shouldn't come as a shock when you consider that this unwieldly beast was formed through an amalgamation of 22 previously independent federal agencies. Glitches and missteps are always expected in a new venture, but the scope of the DHS venture was huge and a little over 7 years later it is still having major problems. The September/October 2008 edition of the National Security Law Report contained a debate about reforming DHS between Clark Kent Ervin of the Aspen Institute, and James Carafano of the Heritage Foundation. These two are ideologically opposed in a nominal sense given where they work, but both agree on a lot of important reform issues. I will talk about a few here, but if you want to read the whole report just click on the link above.

Money- These two sort of agree on the DHS money issue, but they also differ. They differ in that Ervin believes that a lot more money should be given to DHS while Carafano believes that the budget should stay about the same. They agree in respect to oversight of the money given to DHS. Both think that there needs to be more oversight on what DHS spends its budget on. There needs to be a thoughtful analysis of security priorities, and those priorities should get the money rather than pet projects.

Leadership- Both agreed at the time (the article came out before the election) on what the new leadership should look like. Carafano simply said that the leadership should excel at professional leadership, and be able to build a "world-class organization." Ervin agreed, but in a more specific way. Ervin said that the new secretary should come from a major terror target such as NYC or LA, or should be a high level military commander. He said that a deputy secretary should come from corporate America, ideally a COO of a Fortune 500 company.

I don't think Ervin or Carafano got what they were looking for. Secretary Napolitano is not from what Ervin seems to consider a major terror target. I also don't know if Carafano would consider her to have the ability to build a world-class organization. However, she is from a major border state which brings with it its own serious security issues, and she did run the state of Arizona so I think she is qualified on both fronts. Rand Beers is the acting deputy secretary and he is not the COO that Ervin was looking for. Beers is a career counterterrorism official having served on the National Security Council under Reagan, both Bushes, and Clinton. He's certainly got the counterterrorism experience, but I agree with Ervin here, it would have been a good move to bring some private sector efficiency into DHS in this position.

Congressional Oversight- I couldn't be in more agreement with these two on this issue. According to Ervin, 86 committees and subcommittees claim to have some authority over DHS. This is an unacceptable state of affairs. Ervin and Carafano agree that consolidating oversight is a must if DHS is going to improve.

I'm behind this 100%. Until I read this article, I didn't realize what a mess DHS oversight was. It's no wonder that it has been largely ineffective, and also no shock that it is not spending its money wisely. Consolidating oversight is vital and I believe it will go a long way to improving the department's performance. Carafano says that it should be consolidated under one committee in both House and Senate. That would be ideal, but I'm not sure consolidation on that scale will come very soon.

Restructuring- This is one of the areas where Ervin and Carafano differ markedly. Ervin believes that the agencies under the DHS umbrella need to be widdled down to those focusing solely on counterterrorism. He believes that disaster response should be taken out of the purview of DHS because it detracts from the counterterrorism mission, which he argues should be the only mission of the department. Carafano argues against this saying that restructuring is precisely what leads to DHS's ineffectiveness. He believes that there should be no talk of restructuring until after the first Quadrennial Security Review.

I agree with Carafano here. I think that messing with DHS's structure will only lead to confusion and could compromise effectiveness of the agencies left in the department and those taken out. The formation of DHS may have been hasty and poorly thought out at its inception, but it is what it is now and I believe that trying to work out the kinks would be better than making drastic changes to the structure.

I dedicate this post to my friend, and semi-respected Georgetown professor, Ned Moran (his blog can be found on my links list under "The Cuckoo's Egg") who begged me to enlighten him on some sort of national security issue today.

Monday, February 16, 2009

Effect of "War on Terror" on Civil Rights

An article in Reuter's today called attention to a concern that the "War on Terror" is eroding rights on a worldwide scale. If you've read the news in the past 5 years you've read about this ad nauseum, but it is something important to think about. This article seems to really focus attention on the U.S. as the central reason that these rights are degrading. It points to a report put together by the International Commission of Jurists saying that many countries are pointing to abuses by the U.S. to justify their own abuses. I think that the U.S. should be a symbol and an example of freedom, and I think that it has not been recently, but I don't think that a lot of these countries can fairly use our recent actions to justify abuses they have committed for years.

It's pretty well established at this point that the U.S. engaged in questionable practices in dealing with prisoners apprehended in the "War on Terror." I think it is necessary, now that we are a few years removed from the initial emotions driving the beginning of the fight against terrorism, to objectively assess what we need to do to fight terrorism and, at the same time, preserve civil and human rights. While it is necessary to preserve these rights, it may also be time for people to evaluate the new nature of the fight we are now in, and what it will take to protect people. I think it may be necessary for some rights to change a little bit in order to effectively fight terrorism. We are no longer fighting an enemy similar to forces that are traditionally fielded. Terrorists are acquiring technological abilities and operational capabilities that rival those of nation-states in the past. Technology has created the ability to make weapons of mass destruction (nuclear, chemical, and biological) small enough to be deployed by one person or a small group of people. Proliferation of weapons in general allows small groups of terrorists to pack a big punch if they decide to launch an attack. Terrorists are also gaining more and more ability in the computer field which could puts any number of vital resources at risk. Adding to these abilities are the small size of the groups that terrorists can operate effectively in. You can track movements of large military forces with satelites and other equipment, but terrorists operate in much smaller numbers, and, as I said above, these small groups are able to cause damage on a similar or greater scale than the traditional military unit.

Don't get me wrong. I'm not saying that people should be willing to abdicate all of their fundamental rights. I'm just saying that I think we are going to have to live with the fact that the nature of conflict is changing, and so too must the laws attaching to that conflict. I don't know what sorts of changes we will have to make, but I think we may have to be ready to accept certain intrusions that we don't recognize now.

Sunday, February 15, 2009

The D.C. District Grows Impatient on "Enemy Combatant" Definition

In an earlier post I talked about a government response to an order by Judge Bates of the D.C. District Court. The government response asked that it be allowed to proceed in the Gitmo habeas corpus cases without giving a definition of the term "enemy combatant." The government's position was that the hearings should proceed to the merits stage where the decision to hold each detainee would be made on a case-by-case basis. On February 11th Judge Bates issued an order in response to the government's request. Judge Bates, "reject[ed] [the government's] contention that a decision 'on the scope of the Government's detention authority' should be made in a 'case-by-case' manner, and only upon reaching the merits stage of these proceedings." Because there is a new administration, he was willing to give the government until March 23rd to come up with a definition. Judge Bates said he was unpersuaded by the government's argument because the definition of "enemy combatant" is vital to determining these cases and the definition should not be a "moving target."

D.C. District Court Judge Reggie B. Walton dealt the government a similar blow yesterday when he issued a similar order. Judge Walton's order was a sort of pre-emptive strike against the government making a request similar to the one it made to Judge Bates. The order laid out what the court wanted to talk about at an upcoming global status hearing on February 18th. The order cited Judge Bates's most recent order, and said that the government should "be prepared to recommend a format and schedule for resolving the issue of the appropriateness of the definition of the term 'enemy combatant'." Judge Walton said that he would allow the government a chance to argue its point on not setting a defintion, but it is fairly clear that he does not favor such a position and most likely won't allow the case to proceed without a definition. He expressed concern about how long the cases have been "lingering", and said that it is necessary to come up with a streamlined process to move the cases through the system efficiently and expeditiously.

These orders are not going to make it easy on the government. Both Bates and Walton see setting an "enemy combatant" definition as a way to move the habeas cases quickly because it might allow the court to avoid reaching the merits stage of some of the cases. Bates has made it clear that a defintion will be set one way or another, and Walton, while allowing the government a chance to argue its position on February 18th, seems set on following Bates on this issue. It looks like we could be seeing the Obama administration's definition of "enemy combatant" very soon.

National Security Court

I want to talk about what the future could like in terms of detaining suspected terrorists. The procedures currently in place are lacking in specificity and scope. The holding of suspected terrorists in Guantanamo Bay was a political/public relations nightmare for the Bush administration, and for good reason. Those held at Gitmo were held for long periods of time with almost no due process safeguards and seemingly no hope of ever receiving any. The Supreme Court's decision in Boumediene finally found that the Combatant Status Review Tribunals were procedurally lacking and granted detainees the right of habeas corpus review. President Obama's orders are bringing an end to Gitmo and trying to find another way to deal with those being held there. As stated in a previous post, those orders also established a special task force to determine alternative procedures to deal with those prisoners captured in this non-traditional "War on Terror." The big question now is: What kind of alternatives can we use to deal with these prisoners?

Harvard Law professor Jack Goldsmith has a working paper out now that outlines what he thinks a new National Security Court might look like. The call of the paper is that the U.S. needs a separate system that allows for long term, non-criminal detention of suspected terrorists. This is because the normal civilian justice system can apply too much of a burden to hold suspected terrorists which leads to terrorists being released where they are free to commit more terrorists acts. You might ask: Isn't that precisely what we have at Gitmo right now and precisely what we are trying to get rid of? The answer to that question is yes. Goldsmith argues that we need to get rid of the old system and replace it with a new system containing a national security court that provides oversight and adds concrete procedures.

Goldsmith argues that it wouldn't be hard to do this because the federal courts in D.C. are already a de facto national security court. The D.C. District court is responsible for coordinating the Gitmo cases and conducting habeas hearings, with appeals going to the D.C. Circuit and ultimately the Supreme Court. Goldsmith says that the next step necessary is for Congress to create legislation to craft a framework for a national security court. Currently the D.C. courts are making procedures up as they go along, but the argument is that the executive should create the rules and regulations that govern a court system and not the courts themselves.

Let me go through some of the specific procedures and rules Goldsmith thinks a national security court should operate under, and then give my opinion on some of them:

Both U.S. citizens and non-citizens should be subject to the power of this new court. This is for two reasons. First, it is necessary to subject both citizens and non-citizens to the new court because it will add legitimacy, and not make it seem like the U.S. is only trying to deprive non-citizens of procedural protections. Second, Al-Qaeda and other terrorist organizations are actively trying to recruit American citizens and it is important to be able to deal with all terrorists in the same way.

Definition of enemy-
This is a very familiar issue. How do you differentiate terrorists from other criminals in order to subject them to the specialized jurisdiction of a national security court? Goldsmith argues that those that "directly participate in armed conflict against the United States" is a good starting place for a definition of "enemy." He identifies two areas of contention in the "direct participation" approach. First, what is the scope of direct participation? It definitely includes those who attack the U.S. with guns and bombs, but what about those that provide assistance in the form of supply or financing. Are they directly participating in armed conflict? The second area of contention is how long should a civilian be considered to be in armed conflict?

I believe the answer to the second question is easy. I don't think there should be a time limit. There should be no statute of limitations for those that participate in or support terrorist acts. If a person directly participated in a terrorist act at any point they should be held accountable. The answer to the first question is a little more tricky. I think that people that supply and finance terrorist activities participate as directly in those activities as the ones who pull the triggers or flip the switches on detonators. Those acts can't happen without people giving terrorists the guns and the money. The trick with this will be where to draw the line. How much or how little connection to terrorist activity will be enough to subject someone to a national security court's jurisdiction? This question will probably have to be answered by legislation and judicial decision.

Evidentiary Issues- The first evidentiary rule Goldsmith promotes is that of allowing hearsay evidence. Second, he says advocates for the admissibility of information gathered in "illegal or morally problematic ways." Third, he says that allowing for ex parte admission of evidence is necessary, but the defendant''s counsel should be allowed to review the classified information. Finally, Goldsmith says that a Brady-esque burden should be on the government to provide exculpatory evidence to the defendant, and maybe even an "extra-Brady" burden of having to provide material information.

I think that Goldsmith is right on with three of the four here. I think that hearsay evidence should be admitted because of the evidentiary difficulty presented in many terrorism prosecutions, and that ex parte portions should be allowed, but the defendant's counsel should be allowed to participate and see confidential information. I also agree that the government should have to turn over exculpatory information, but I'm on the fence about forcing them to provide material information. I don't think I can get behind the admissibility of evidence obtained illegally or immorally. I'm assuming that illegally or immorally encompasses information obtained through torture and I'm not yet willing to say that I think evidence obtained through torture should be allowed in court.

Publicity- The procedures of the national security court should be public to the extent that they can be. Classified material should be kept from the public as usual, but aspects of the procedures that can be public should be.


Regularized Review- Non-criminal detention of terrorists should not be indefinite, but should be long enough to allow for sufficient investigation and protection of the public. Goldsmith proposes holding them for as long as six months at which point the detention should be reviewed by the court and either renewed or terminated. He believes that if the lawyers have to keep coming back to rejustify the detention that it will encourage them to either prosecute the prisoner or release him. Another component that could be added to this would be an increasing burden on the government to show the need for further detention. This could look like "preponderance of the evidence" on the first go round then to "clear and convincing evidence" then to "beyond a reasonable doubt."

I think this is a reasonable and procedurally sufficient process for non-criminal detention. If the government isn't going to prosecute the prisoner then it should have to justify his continued detention and that burden should get harder and harder. It's important to have such a process in place in order to avoid indefinite detentions.

Lawyers- Government prosecutors will come from the Department of Justice, and the defense attorneys will be government attorneys as well. He proposes a system where the prosecutors will rotate to the defense side and vice versa every few years, similar to military JAG programs. He mentions in passing the possibility of allowing private attorneys with security clearances to participate as well.

I'm not sure how comfortable I am with only allowing government lawyers to be defense attorneys. In a practical sense it may be the only way to do it because of the presence of classified information involved in such cases. Government defense attorneys would only need to be vetted once and given a clearance to view classified material. Allowing private lawyers could be a security nightmare in the clearance sense. Of course, government defense attorneys already exist at the state and federal level in the form of public defenders, but defendants also have a choice to find private counsel whereas with this system they may not have that option. Maybe a sort of provisional clearance could be granted to private defense attorneys; however, the burden of that kind of system could be very high. Regardless, I think that allowing private attorneys should be something that is considered in the debate.

National security court as a stand-alone institution- This would make the national security court similar to the Foreign Intelligence Surveillance Act courts meaning that they would be outside of the normal federal judicial court system. Goldsmith argues that there are 3 advantages to this: 1) judges could be drawn from federal courts around the country; 2) the court could more easily specialize; and 3) creating a stand-alone court minimizes the effect of "spillover" into the civilian justice system. Furthermore, the national security court should not be an extension of the FISA court system because that system proceeds more secretively and with much less transparency, which is something Goldsmith would like to avoid.

I agree with this completely especially because of the minimization of spillover into the civilian system. The national security court system will necesarily have to create special procedures and rules that should not be applied to the civilian system and isolating it as much as possible is a good idea.

I will end my summary and analysis here but check out the paper if you want to see Goldsmith's full argument. I've left out a few interesting sections.

If you are wondering, "Matt, how are you so well informed? Where do you get all of this fascinating information?" I can tell you it's not because I'm extremely well connected. I get most of this information from a national security mailing list administered by Wake Forest Professor Robert Chesney. It's a great source of information and you can check it out here.

Collateral Effects of Alternative Energy

Behind the economic crisis, one of the biggest concerns in the United States is energy. As environmental and foreign policy concerns over oil continue to increase we are turning our attention towards developing alternative sources of energy. This is certainly a noble goal for many reasons but, as with just about everything, there are potentially serious ancillary effects of a dramatic shift in energy policies.

A New York Times article today talked about a warning by the Saudi Oil Minister, Ali al-Naimi. Al-Naimi warned that a push for alternative energy that happens too quickly could affect the ability for oil producing countries to make long term plans in developing oil sources. He warned that uncertainty as to oil demands from Western countries that consume a lot of oil could affect future supply and leave an energy shortfall that alternative energy resources won't be able to make up. This would leave the world with not enough oil or alternative energy to meet its needs.
Essentially, al-Naimi wants a very slow development of alternative energies. Of course, major oil producers would like to see no development of alternative energy because a move toward alternatives would seriously affect the economies of those countries. This is clearly a self-serving, although completely understandable, desire by these countries, but what other kinds of affects could a move towards alternative energy have?

It's no secret that most oil producing countries are in the Middle East. It's also no secret that the Middle East is an area that breeds its fair share of terrorists. If alternative energy development leads to the degradation of Middle Eastern economies it could lead to a proliferation of terrorists. It's possible that if Middle Eastern economies and governments collapse then violent and religiously radical groups could step in to fill the vacuum. Also, the collapse of those economies due to the fact that Western countries ceased to by oil could create animosity amongst those living in the Middle East that the West abandoned them as soon as oil was no longer needed. This animosity could become a vital ingredient in creating more terrorists, thus increasing the risk of terrorist attacks.

DoJ's Response to Judge Bates

On January 22nd Judge Bates (D.C. District) issued two orders regarding detainee cases before him. The order in the Hamlily v. Obama case invited the federal government to make filings that would "refine" the definition of "enemy combatant." The order in the case of Maqalah v. Gates offers the government a similar opportunity. A key difference between Hamlily and Maqalah is that Maqalah involves detainees being held at Bagram Air Base in Afghanistan rather than at Gitmo.

Yesterday the Department of Justice filed a response to Judge Bates order in Hamlily. The government's response essentially asks Judge Bates not to rule generally on the President's detention power, in order to allow the newly formed interagency task force to complete its work. For now the government urges to allow for determination of detention authority on a case by case basis rather than making a ruling that would set a general framework for determination of the detention authority. This case by case determination will allow the government to achieve a "prudent and incremental approach" that it feels is the best way to resolve the detainee issue.

The government has thus far not responded to Judge Bates's order in Maqalah. This is probably because the issues in that case are complicated by the fact that the detainees are being held in Afghanistan rather than at Gitmo. The government still makes its case clear in Hamlily as to what its position will be in regards to all similar cases pending before federal courts.

Judge Bates's orders had a positive effect in the sense that it forced the government to solidify its position as to how it wants to proceed in resolving detainee issues. The government made it clear that it is not ready to make any sort of blanket determination as to its powers in detaining "enemy combatants." The new administration's stance on the issue will become more clear once the new task force has had an opportunity to complete its work, and as the government makes more filings in cases that come before federal courts. These orders by Judge Bates do raise the question of whether a federal judge will make a ruling applies to detainee cases in the "abstract" and "general" way that the government is seeking to avoid. Such a ruling could make resolving the detainee issue much more complicated.

For more on this check out SCOTUSBlog's post.

Presidential Orders

One of President Obama's first acts in office was to issue Executive Orders addressing some of the most pressing national security issues. Four of the orders dealt with: 1) The case of Ali Saleh Kahlah Al-Marri; 2) Interrogation; 3) Detention options available for detainees apprehended in the "War on Terror"; and 4) What to do with respect to Guantanamo Bay.

Al-Marri Order- Al-Marri was seized at his home in Peoria, Illinois in 2003 on suspicion that he was aiding al Qaeda. He has been held by the military in a military detention facility ever since. Al Marri challenged his detention in a military facility based on a finding that he was an "enemy combatant." A federal district court initially denied him relief, but a panel decision of the 4th Circuit reversed the district court's decision. Ultimately the 4th Circuit reheard the case en banc and, by a 5-4 decision, reversed the panel decision. The 4th Circuit's decision put the Al-Marri case squarely on a path to the Supreme Court.

On January 22nd a Presidential Order was issued that directed an "expeditious" review of Al-Marri's status as an enemy combatant. The review will look at the "factual and legal basis" for his detention, and suggest "alternative dispositions" for Al-Marri. This order pre-empts a review by the Supreme Court and paves the way for a non-judicial resolution to Al-Marri's situation.

Detainee Order- This order directs the issue of what to do with detainees who are apprehended "in connection with armed conflicts and counterterrorism operations" to a Special Task Force. The task force is comprised of the: Attorney General (Co-Chair), Secretary of Defense (Co-Chair), Secretary of State, Secretary of Homeland Security, Director of National Intelligence, Director of the Central Intelligence Agency, Chairman of the Joint Chiefs of Staff, others brought in by the Co-Chairs. The purpose of this task force is to determine options available to the federal government with respect to those apprehend in the "War on Terror."

Interrogation Order- This order revoked any existing orders that authorized interrogation techniques that are not consumate with the Geneva Conventions. The order directs the approval of interrogation techniques to a task force that is composed of the same parties named in the Detainee Order. The task force's mission is to reccomend acceptable methods of interrogation that will serve to protect national security. The task force is also supposed to evaluate the practice of transferring prisoners to countries that employ practices that are not in accord with the Geneva Conventions.

Guantanamo Bay Order- This order required the closure of the detention facility of Guantanamo Bay (Gitmo). It ordered the review of the factual and legal bases for continuing to hold the prisoners currently held at Gitmo. If the findings show that a prisoner is a national or foreign security threat then they will be held in some other fashion than that employed at Gitmo. It also orders the closure of the Gitmo facility no later than one year from the issuance of the order.

The Attorney General has the power to request any and all information regarding any prisoner currently held at Gitmo in order to determine the legitimacy of their continued detention. The viability of transfer or release will be determined as to each prisoner as well as the viability of prosecution of those detainees whose records would support such action. The order also calls for options as to how to deal with any detainee that cannot be released or prosecuted. It also calls for the analysis of security issues that may arise from transfer of some of the detainees to facilities within the United States.


This blog is dedicated to keeping up to date with changes in the legal aspects of terrorism and national security. Other topics pertaining to terrorism and national security will also be discussed, but I'll be focusing mostly on legal issues since I am a law student. The first few posts here will deal a lot with how the closing of Guantanamo Bay is going and what will ultimately happen to the prisoners there.