Contractors in Afghanistan and Thomson Correctional Facility

This is a quick rundown of two news stories that caught my eye:

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.

Sixth Amendment Decision in Ghailani

I've mentioned the case against Ahmed Ghailani before as it being a case in which we may get a good look at how the government will deal with high-profile terrorism cases - specifically the upcoming cases against Khalid Sheikh Mohammed and the other 9/11 terrorists. If you'll remember, Ghailani is charged with participation in the 1998 U.S. embassy bombings in Africa. He was captured by Pakistani authorities in 1994 and then held (and allegedly tortured) in a CIA black site prison before being transferred and held at Guantanamo Bay.

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.