Reuters reports that Switzerland is in the process of reaching a deal on relocating detainees released from Gitmo. Switzerland's Foreign Minister has been in talks with new Secretary of State Hillary Clinton, and it appears the two reached a tentative agreement on Switzerland accepting detainees. The deal seems to depends on the U.S. giving the Swiss information on the prisoners so that the Swiss can assess security concerns regarding each detainee. Its still not clear how many detainees they will take, but I'm sure it depends on how dangerous each one is.
I feel like we must be making some kind of deal with the Swiss government on this one and the most obvious deal would involve the U.S. laying off of Swiss banks a little bit on the search for terrorist funds. Swiss banks have been a focal point of the effort to disrupt terrorist financial networks, and if there is one thing the Swiss don't like it is people messing with their banking system. I've just got to think that we will need to make concessions to other countries to accept these potential terrorists, and this is the most obvious one I can think of when it comes to Switzerland.
I still have a concern about the U.S. being left with potentially dangerous terrorists that other countries won't accept, and that we can't prosecute for some reason. What will we do with them? If that ends up happening it will be interesting to see what kinds of solutions we come up with.
Saturday, March 7, 2009
Friday, March 6, 2009
SCOTUS Dismisses Al-Marri, Vacates Fourth Circuit Ruling
Reuters, the ACLU, and SCOTUSblog are all reporting that the Supreme Court has vacated the Fourth Circuit's ruling in Al-Marri, and remanded the case back to the circuit court to dismiss it as moot. This is the outcome that most expected. Some hoped, as did I, that the Supreme Court would move on with the case, but I think the mootness argument was too strong especially given the similarity between this case and Padilla. The ACLU, which was part of Al-Marri's team of legal counsel, says that this isn't the ideal outcome, but that vacating the Fourth Circuit ruling is an important victory. While I agree that vacating the previous ruling is important I don't think that the Supreme Court's dismissal is a huge blow to those wishing to strike down the power complained of in Al-Marri. The executive branch still has the power to hold prisoners like they held Al-Marri. Whether the Obama administration decides to exercise that power again remains to be seen, but remember that in their filings to the Supreme Court the explicitly mentioned the posibility of redesignating Al-Marri and sending him back to military detention. Statements like that show that they are not going to rule out using this power again.
D.C. Circuit Decision in Al Odah Case
SCOTUSblog reports that the D.C. Circuit has published its opinion in the case of Al Odah v. US. The decision is based on an interlocutory appeal made by the government to a district court order forcing the government to turn over unredacted classified information to attorneys representing detainees in habeas proceedings. The appeal has been on hold since 2005 while other cases, most notably Hamdan and Boumediene, were decided. The D.C. Circuit decided to move ahead with deciding this appeal once the D.C. District court started case management of all pending habeas cases. The D.C. Circuit's opinion vactes the district's earlier ruling, and remands it to the district court to make findings on materiality, as well as whether the government may be able to produce a sufficient alternative to review of classified information.
The decision says that a detainee's counsel is entitled to review all classified information that is helpful to his defense, and in the case of habeas proceedings all information that is necessary to facilitate a habeas review. Such information is what the court considers "material", and it is up to the court review the information in camera to determine whether classified information meets that standard. Here's a list of things the court found to be material:
This decision gives some more definition as to how review of all the pending habeas cases will go. Furthermore, I think it is a step in the direction of defining what kinds of procedures the U.S. will use in the future to handle national security cases.
The decision says that a detainee's counsel is entitled to review all classified information that is helpful to his defense, and in the case of habeas proceedings all information that is necessary to facilitate a habeas review. Such information is what the court considers "material", and it is up to the court review the information in camera to determine whether classified information meets that standard. Here's a list of things the court found to be material:
- Exculpatory evidence
- Inculpatory evidence relating to sources such as: source bias, coercion of the source, or inconsistent information from the source.
- Information containing names of witnesses that may have useful information.
This decision gives some more definition as to how review of all the pending habeas cases will go. Furthermore, I think it is a step in the direction of defining what kinds of procedures the U.S. will use in the future to handle national security cases.
Wednesday, March 4, 2009
Government's Reply Brief in A-Marri
SCOTUSblog is reporting that the government has filed a reply brief in response to the one filed by Al-Marri's attorneys yesterday. The government makes many of the same arguments it made in its original motion to dismiss, but I will go over a few points I found interesting in this reply brief.
The government argues that Al-Marri is asking for what is the equivalent of a declaratory judgment, which is not relief that he previously asked for. It also says that there is no precedent suggesting that a habeas case is not mooted when the custodial authority voluntarily lets the prisoner go.
The reply brief also argues that there are no legitimate grounds upon which to say that the government's release of Al-Marri is an attempt to avoid review of the detention policy by the Court. The government says that Al-Marri is being transferred to the civilian court system after much consideration by civilian authorities and after the correct civilian processes have been performed. It also cites authority saying that President Obama's actions are entitled to a "presumption of regularity." This presumption is backed up by the fact that Jose Padilla was released to civilian authorities under similar circumstances and has not been redesignated and transferred by to military detention.
Something else I thought was interesting, and inconsistent, was that at the end of the brief the government couched Al-Marri's brief as asking for an advisory opinion. If you'll remember, a couple paragraphs ago I said that the government said that Al-Marri's brief was essentially asking for a declaratory judgment. The inconsistency is that advisory opinions and declaratory judgments are two different things. The Supreme Court can issue declaratory judgments, but it cannot issue advisory opinions. I feel that the government generalizing Al-Marri's brief as two distinct and contradictory things is strange.
In conclusion I want to draw your attention to two elements of the reply brief. First, is the repeated use of the word "hypothetical" which I still believe is an attempt by the government to draw a clear line between this case and Padilla. Second, the government again mentions that redesignating Al-Marri is not out of the question, but should not be considered and exception to the mootness doctrine in this case because such redesignation would be under markedly different circumstances. Again the government is expressing its willingness to potentially use this power to hold prisoners under conditions similar to Al-Marri's. I think this language is a clear message from the administration that it is not ready to give up this detention power because if it was willing to it would make a clear statement saying so, or it would allow the Court to make a decision in this case.
The government argues that Al-Marri is asking for what is the equivalent of a declaratory judgment, which is not relief that he previously asked for. It also says that there is no precedent suggesting that a habeas case is not mooted when the custodial authority voluntarily lets the prisoner go.
The reply brief also argues that there are no legitimate grounds upon which to say that the government's release of Al-Marri is an attempt to avoid review of the detention policy by the Court. The government says that Al-Marri is being transferred to the civilian court system after much consideration by civilian authorities and after the correct civilian processes have been performed. It also cites authority saying that President Obama's actions are entitled to a "presumption of regularity." This presumption is backed up by the fact that Jose Padilla was released to civilian authorities under similar circumstances and has not been redesignated and transferred by to military detention.
Something else I thought was interesting, and inconsistent, was that at the end of the brief the government couched Al-Marri's brief as asking for an advisory opinion. If you'll remember, a couple paragraphs ago I said that the government said that Al-Marri's brief was essentially asking for a declaratory judgment. The inconsistency is that advisory opinions and declaratory judgments are two different things. The Supreme Court can issue declaratory judgments, but it cannot issue advisory opinions. I feel that the government generalizing Al-Marri's brief as two distinct and contradictory things is strange.
In conclusion I want to draw your attention to two elements of the reply brief. First, is the repeated use of the word "hypothetical" which I still believe is an attempt by the government to draw a clear line between this case and Padilla. Second, the government again mentions that redesignating Al-Marri is not out of the question, but should not be considered and exception to the mootness doctrine in this case because such redesignation would be under markedly different circumstances. Again the government is expressing its willingness to potentially use this power to hold prisoners under conditions similar to Al-Marri's. I think this language is a clear message from the administration that it is not ready to give up this detention power because if it was willing to it would make a clear statement saying so, or it would allow the Court to make a decision in this case.
ACLU Asks Court Not to Moot Al-Marri Case
Attorneys for Ali Saleh Kahlah Al-Marri filed a brief with the Supreme Court yesterday asking it to deny the government's motion to dismiss the case. Al-Marri's brief argues that the case is not moot, but asks that if the Court does decide it is moot it should vacate the 4th Circuit decision in the case.
The brief's main argument is that the case is not moot because the government has not made any clear assurances that it will not redesignate Al-Marri an "enemy combatant" in the future and return him to military custody. It argues that mootness does not exist when a defendant takes voluntary action to end the practice complained of, and it is not "absolutely clear" that the action will be repeated in the future. The brief points out that the government's own motion to dismiss says that it can contemplate future circumstances that would lead it to redesignate Al-Marri and return him to military custody. Al-Marri's attorneys argue that such an admission shows that it is not "absolutely clear" that the government will not engage in the controversial conduct in the future.
Another argument it makes is that prudence concerns require the Court to hear the case. It argues that the very idea of habeas corpus is called into question if the government can continue to avoid review of its policies by transferring these prisoners. I think the brief draws a nice distinction between this case and the Padilla case. If you'll remember, Padilla was an earlier case which the Court denied cert to based on mootness grounds. Al-Marri's attorneys argue that their case is different because the Court has already granted cert, and it is scheduled for argument in two months. It argues that a great deal of time has been spent on preparing this case for Supreme Court review, and a great deal of time has already been spent in the lower courts to get the case to this point, thus the Court should not get rid of the case so close to its conclusion.
In the alternative, the brief asks for relief in the form of vacating the 4th Circuit's judgment in the case. I think this is what the Court will end up doing in the case 1) because it needs to get rid of judicial precedent that upholds the constitutionally questionable practice; and 2) because both sides can agree that it would be an acceptable resolution (although it isn't the remedy either side prefers). I think that vacating the 4th Circuit judgment is a hollow victory for Al-Marri. On the plus side it would be nice not to have any judicial precedent that upholds the authority of the U.S. government to detain those legally in the U.S. in military custody. However, vacating the 4th Circuit decision in no way takes away the ability of the government to engage in this practice. The government already claims the power under the AUMF to be able to use military detention to detain those it suspects of terrorism even if those people are legally within the U.S. when they are captured. The only thing that can stop the government from exercising this power again is a Supreme Court decision.
I still think the government will win this argument. It seems to me that there are sufficient similarities between Al-Marri and Padilla to allow the Court to moot this case. I also think that because Al-Marri was the last detainee held under this authority that the Court will see no real urgency to make a decision. However, I believe that the Al-Marri case should be heard by the Court if at all possible because the constitutionality of the government's power in these instances needs to be assessed.
The brief's main argument is that the case is not moot because the government has not made any clear assurances that it will not redesignate Al-Marri an "enemy combatant" in the future and return him to military custody. It argues that mootness does not exist when a defendant takes voluntary action to end the practice complained of, and it is not "absolutely clear" that the action will be repeated in the future. The brief points out that the government's own motion to dismiss says that it can contemplate future circumstances that would lead it to redesignate Al-Marri and return him to military custody. Al-Marri's attorneys argue that such an admission shows that it is not "absolutely clear" that the government will not engage in the controversial conduct in the future.
Another argument it makes is that prudence concerns require the Court to hear the case. It argues that the very idea of habeas corpus is called into question if the government can continue to avoid review of its policies by transferring these prisoners. I think the brief draws a nice distinction between this case and the Padilla case. If you'll remember, Padilla was an earlier case which the Court denied cert to based on mootness grounds. Al-Marri's attorneys argue that their case is different because the Court has already granted cert, and it is scheduled for argument in two months. It argues that a great deal of time has been spent on preparing this case for Supreme Court review, and a great deal of time has already been spent in the lower courts to get the case to this point, thus the Court should not get rid of the case so close to its conclusion.
In the alternative, the brief asks for relief in the form of vacating the 4th Circuit's judgment in the case. I think this is what the Court will end up doing in the case 1) because it needs to get rid of judicial precedent that upholds the constitutionally questionable practice; and 2) because both sides can agree that it would be an acceptable resolution (although it isn't the remedy either side prefers). I think that vacating the 4th Circuit judgment is a hollow victory for Al-Marri. On the plus side it would be nice not to have any judicial precedent that upholds the authority of the U.S. government to detain those legally in the U.S. in military custody. However, vacating the 4th Circuit decision in no way takes away the ability of the government to engage in this practice. The government already claims the power under the AUMF to be able to use military detention to detain those it suspects of terrorism even if those people are legally within the U.S. when they are captured. The only thing that can stop the government from exercising this power again is a Supreme Court decision.
I still think the government will win this argument. It seems to me that there are sufficient similarities between Al-Marri and Padilla to allow the Court to moot this case. I also think that because Al-Marri was the last detainee held under this authority that the Court will see no real urgency to make a decision. However, I believe that the Al-Marri case should be heard by the Court if at all possible because the constitutionality of the government's power in these instances needs to be assessed.
Iran Wants to Try Israeli Officials
I'm not sure I can imagine a more hostile environment for an Israeli official than an Iranian court, but that is exactly where Iranian leaders want to bring some Israeli officials. Iran has requested help from Interpol to bring in 15 Israelis including: the Prime Minister, Defense Minister, Mossad Chief, Chief of the Israeli Defense Forces, and the Attorney General. Iran wants these officials brought in for war crimes it says were committed in Gaza. Since it is highly unlikely that Interpol will assist in this mission, Iran is also planning to try the officials in absentia.
I realize that such a trial will never happen short of Iran kidnapping those they want and dragging them into its court system, but just thinking about an Israeli being tried in an Iranian court is terrifying. I'm sure the word "trial" would be used very loosely to describe whatever process the court went through to convict the Israeli, and I'm sure that whatever punishment was meted out would be something that fell far short of the 8th Amendment.
Another interesting topic discussed in this article is the International Criminal Court considering its power to investigate Israeli actions in Gaza. Apparently the central issue is whether Palestine is a "state" recognized by the ICC, and the answer seems to be yes since Israel withdrew from Palestinian lands in 2005 and gave them sovereignty. However, no matter what the ICC decides on that issue, Israel is unlikely to subject any of its citizens to the ICC's jurisdiction.
I realize that such a trial will never happen short of Iran kidnapping those they want and dragging them into its court system, but just thinking about an Israeli being tried in an Iranian court is terrifying. I'm sure the word "trial" would be used very loosely to describe whatever process the court went through to convict the Israeli, and I'm sure that whatever punishment was meted out would be something that fell far short of the 8th Amendment.
Another interesting topic discussed in this article is the International Criminal Court considering its power to investigate Israeli actions in Gaza. Apparently the central issue is whether Palestine is a "state" recognized by the ICC, and the answer seems to be yes since Israel withdrew from Palestinian lands in 2005 and gave them sovereignty. However, no matter what the ICC decides on that issue, Israel is unlikely to subject any of its citizens to the ICC's jurisdiction.
Monday, March 2, 2009
Some Interesting Headlines
Blackwater- CNN is reporting that Blackwater's (now known as Xe) founder, Erik Prince, resigned from the company to "tak[e] on new challenges." Also, Gary Jackson the long time president of the company is also leaving. This move by Prince comes close on the heels of Blackwater losing its contract with the State Department in May. The CNN article says that that contract made up one third to one half of Blackwater's revenue. It also comes soon after five Blackwater employees plead not guilty to federal manslaughter charges stemming from the infamous Nisoor Square shooting in Baghdad. That case will be very interesting as it is the first high-profile case to be charged under the Military Extraterritorial Jurisdiction Act. I'll keep an eye on that one and report on it as things develop. In summary, Blackwater has had a rough go of it lately and I can't say I'm surprised at this announcement. It will be interesting to see what happens with Blackwater/Xe as it gains new leadership, and it will be equally as interesting to see where Prince heads after this.
Waterboarding- New Attorney General Eric Holder came out today and said that the Justice Department will not condone waterboarding as an interrogation technique. This comes as no surprise and is a little redundant given the fact that President Obama signed an order on January 22nd limiting interrogation techniques to those acceptable under the rules in the Army Field Manual (the Army Field Manual explicitly forbids waterboarding). While it may be redundant it is probably good to be redundant in this situation. Holder explicitly said that waterboarding is a form of torture, something that the Bush administration would never say. He also said that many interrogation techniques will receive review over the next few months, but that waterboarding would not because they would never consider using it. I like this move because it shows that the Obama administration is taking a hard line on the issue, and I think it is especially important now given the reports over the last week or two from former Gitmo detainees that said they were tortured.
Interrogation tapes- The government disclosed today that the CIA destroyed 92 tapes that documented interrogations conducted by the Agency. Some of the footage on the tapes showed prisoners being waterboarded. The disclosure was made in a letter from the U.S. Attorney's office to Judge Alvin Hellerstein (Southern District of New York) and said that the 92 tapes were destroyed, but that federal authorities planned to furnish as much material as possible that describes what was on the tapes. The letter was made in response to a motion by the ACLU to hold the CIA in contempt for destroying documentation of interrogation techniques. The contempt motion is in relation to two requests by the ACLU made under the Freedom of Information Act for records relating to interrogation techniques. The contempt motion asks that if the court finds the CIA in contempt then the court should order the CIA to make numerous written responses that will detail the interrogation techniques used in the videos, identify those in charge of destroying the videos, and various other forms of relief. ACLU attorneys say that the letter admitting the destruction of the videos is proof of contempt, and that the CIA should be ordered to do the things requested in the motion.
Waterboarding- New Attorney General Eric Holder came out today and said that the Justice Department will not condone waterboarding as an interrogation technique. This comes as no surprise and is a little redundant given the fact that President Obama signed an order on January 22nd limiting interrogation techniques to those acceptable under the rules in the Army Field Manual (the Army Field Manual explicitly forbids waterboarding). While it may be redundant it is probably good to be redundant in this situation. Holder explicitly said that waterboarding is a form of torture, something that the Bush administration would never say. He also said that many interrogation techniques will receive review over the next few months, but that waterboarding would not because they would never consider using it. I like this move because it shows that the Obama administration is taking a hard line on the issue, and I think it is especially important now given the reports over the last week or two from former Gitmo detainees that said they were tortured.
Interrogation tapes- The government disclosed today that the CIA destroyed 92 tapes that documented interrogations conducted by the Agency. Some of the footage on the tapes showed prisoners being waterboarded. The disclosure was made in a letter from the U.S. Attorney's office to Judge Alvin Hellerstein (Southern District of New York) and said that the 92 tapes were destroyed, but that federal authorities planned to furnish as much material as possible that describes what was on the tapes. The letter was made in response to a motion by the ACLU to hold the CIA in contempt for destroying documentation of interrogation techniques. The contempt motion is in relation to two requests by the ACLU made under the Freedom of Information Act for records relating to interrogation techniques. The contempt motion asks that if the court finds the CIA in contempt then the court should order the CIA to make numerous written responses that will detail the interrogation techniques used in the videos, identify those in charge of destroying the videos, and various other forms of relief. ACLU attorneys say that the letter admitting the destruction of the videos is proof of contempt, and that the CIA should be ordered to do the things requested in the motion.
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