Wednesday, August 26, 2009

Kiyemba II Stay is Denied

A three judge panel of the D.C. Circuit Court decided not to grant Petitioners a stay in the Kiyemba II case. Again this appeal was seeking the stay of a D.C. Circuit mandate saying that the government did not have to give Petitioners advanced warning before they transferred them out of Guantanamo Bay. The appeal was denied today in a one page order with no explanation on the court's reasoning.

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

Al-Adahi Opinion is a Good Look at Gitmo Habeas Cases

An unclassified version of Judge Kessler's opinion in Al-Adahi was recently released. This opinion is a good comprehensive look at how the D.C. District is handling the Gitmo habeas cases. Here are a few important points:

  • 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

Least Surprising Story of the Year: Blackwater was Part of the CIA Assassination Program

The New York Times reported today that the CIA contracted with Blackwater to help out in the recently revealed, ultra-secret CIA terrorist assassination program. If you were to tell me that you were surprised to find this out then I would tell you that you've most likely lived under a rock for the past 5 years. If you'll recall, earlier this summer CIA Director Pannetta discovered that the CIA under President Bush created a secret program aimed a tracking and killing high profile terrorists. Pannetta revealed his discovery to Congress creating an immediate outcry about the CIA overstepping its authority.

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

Weak Government Response in Kiyemba II

As promised, the government filed its opposition to the Kiyemba II petitioners' request for a stay of the D.C. Circuit's mandate. SCOTUSblog actually reported on the brief about an hour after I posted my previous Kiyemba II post, but I couldn't turn around and write another post about it so soon after the first. SCOTUSblog is a machine, I am just one man. Cut me some slack. I think the government's response is lackluster at best and occassionally misleading at worst.

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

Dagger: Rick Perry is the Governor of a Major U.S. State

Governor Rick Perry of Texas exhibited extremely shrewd foreign policy analysis during his recent trip to Israel when he a) compared the problems on the Texas/Mexico border with those between Israel's border with Gaza; and b) stated that Israelis were ordained by God to possess Israel. It's difficult for me to express in words how I feel about these comments. Flabbergasted? Incensed? Bewildered? Nonplussed (look it up)? None of these words fully encompass the emotions stirred up by Rick's insightful and enlightening comments.

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.

Kiyemba Part Deux

Some may be thinking that Voodoo has given up on his blog and that I don't have the drive to carry on. A pox on your house if you are one of them. I've been running around all over the Mid-Atlantic/Southeast region of this country for the past three weeks trying to move, vacation, and chill out for awhile. But fear not for I am back and regular blogging should be resuming, and what better way to start it off than with a new Kiyemba post.

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

Reports From Inside the Blackwater Camp Just Get Better and Better

I just saw this article from The Nation that makes some very serious allegations about Blackwater (I refuse to call it Xe which is what they are going by now) and its founder Erik Prince. Two confidential sources inside Blackwater are telling federal authorities that Prince may be complicit in the murder of other federal informants who were passing information to authorities regarding an investigation that was looking at whether or not Blackwater was illegally smuggling weapons into Iraq.

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

Another Ineffective Option for Gitmo

The Obama administration has come up with a new idea for what to do with the detainees left at Gitmo. Well, it's not really a new idea because it is actually just another option that brings the detainees into the U.S. yet solves none of the real problems the detainee situation poses. The new plan would shut the prison at Guantanamo Bay down and bring the detainees to prisons here in the U.S. The prisons being considered in this case are a maximum security prison in Michigan that is scheduled to close down and the maximum security prison at Fort Leavenworth, Kansas.

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.