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Orin, thanks. Your latest post helps me understand better why you think judges aren't well-suited to determining whether someone belongs somewhere like Gitmo. Unfortunately, now I disagree even more.
Your core argument seems to be that regular judges will be freaked out, scared off, or just generally flummoxed by the kind of evidence you think likely to be at issue in a Gitmo status decision, evidence you describe as "likely to be based on the impressions of agents about the reliability of third parties or fourth parties known years ago and not seen in ages, major parts of which will be classified." Let's take this in two steps. First, the "classified" part isn't obviously a problem for judges. Especially since 9/11 but well before that as well, judges have reviewed classified evidence regularly to determine whether it was properly classified and how (under the federal law passed in 1980 for just this purpose) it should be properly redacted or otherwise addressed for trial. Dealing with classified information can be tricky, but judges have nearly 30 years worth of experience doing just that.
As for the nature of the evidence itself, I don't know anyone—military or civilian—who knows exactly what to do with 6-year-old, four-witness-removed hearsay. (That's why the Army regulations in place in 2001, promulgated under those pesky Geneva Conventions, provided for administrative hearings that would be held on the battlefield as close to the actual events and witnesses as possible. Woulda coulda shoulda for Gitmo, I guess.) So I can see that given where we are now, there'll have to be some tough calls about whether and to what extent folks' recollections are to be credited. But the claim that deciding how to handle hearsay evidence of dubious reliability is unfamiliar to Article III judges? Guess we must have had different profs for criminal procedure.
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I'm glad Dahlia chose to open her "Breakfast Table" discussion with Walter Dellinger, Jack Goldsmith, and Cliff Sloan with a note about Boumediene—and Justice Antonin Scalia's absurd sky-is-falling dissent arguing that detainees will exit the habeas process to fight us again on the battlefield. Ever the public intellectual, Scalia took to the Charlie Rose show to offer this apocalyptic prediction:
Something like 30 of the people that the military have released from Guantanamo have returned to the battlefield and killed Americans and others. Do you expect that number to be reduced when judges are making the decision who know less than the military?" He reiterated that "the result of that answer is more people, more Americans will be killed. I think that's almost for sure.
Scalia's wrong, and his canards must be crushed.
First, it should be noted that Justice Scalia conflates and mischaracterizes the enemy in his dissent. In his third paragraph, he lumps together the actions of diametrically opposed terrorist groups, including the 1983 Hezbollah attack on a Marine barracks in Beirut and several al-Qaida attacks since then, to make a grand argument that "America is at war with radical Islamists."
In fact, different groups coming from very different traditions launched the attacks he lists in staccato fashion. It's wrong to list Hezbollah, a Shiite group supported by Iran, and al-Qaida, an extremist Sunni group aided over the course of its history by Pakistan and Saudi Arabia, in the same breath. We are not fighting a monolithic Islamist threat. Rather, we are engaged in a struggle against a very diverse constellation of groups. These groups' diversity creates tactical and strategic opportunities. (See, for e.g., the successful military diplomacy in Iraq which split Sunni moderates from Sunni extremists affiliated with al-Qaida in Iraq.) This may seem like a minor footnote to Justice Scalia. But it is a strategic error of grand proportions. And it's the same kind of strategic glaucoma the White House shows when it visualizes and describes America's global war on terrorism.
Second, there's the point about detainees returning to the battlefield. As I wrote for Slate in October 2004, this, too, is a myth that obscures the real problems at the heart of our Guantanamo regime. The 30 detainees Scalia refers to effectively bulls---ted their way out of Gitmo. The military bought their stories and released them. Scalia sets up a false dichotomy by saying that judges will be to blame for more cases like these 30, unless we keep the military in charge. But the military is responsible for releasing these 30!!! At least with habeas corpus proceedings, or something like them, we might get a better factual inquiry than the sham tribunals being run by the Pentagon at Gitmo today.
But what's most absurd is this: Justice Scalia totally ignores the way Gitmo itself (and the lack of meaningful legal process there) radicalizes the detainee population. The real problem is not that we are now giving some modicum of due process (how much remains to be seen) to detainees. Rather, the problem is that we've created an extra-legal detention and interrogation regime and that this regime's output is a person more radical and prone to violence against the United States than when he entered Gitmo. If anything, the habeas proceedings will mitigate this by providing one small measure of justice to the detainees at Gitmo.
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Yesterday, the Senate armed services committee released a 63-page set of documents that illuminates how the Pentagon developed, selected, and approved its list of coercive interrogation techniques for Guantanamo Bay.
As Joby Warrick reports in today's Post, the documents clarify the role that the CIA (and senior government officials such as DoD General Counsel William "Jim" Haynes) played. "If the detainee dies, you're doing it wrong," CIA lawyer Jonathan Friedman proclaimed in a working group meeting that led to the development of this DoD memo on approved interrogation techniques.
Even more significant, the documents show how the military's Joint Personnel Recovery Agency helped develop interrogation techniques, borrowing extensively from the military's Survival, Evasion, Resistance, and Escape courses. (Mark Benjamin provides a detailed timeline in Salon for precisely how this unfolded.) These techniques—which include water-boarding, confinement to small boxes, and stress positions, among others—were developed to mimic the interrogation practices of our worst enemies, such as the North Koreans and the North Vietnamese. It speaks volumes that they were adopted by the United States at Gitmo.
Several things struck me while reading the documents last night:
Tabs 2 and 3 confirm Jane Mayer's reporting on the use of SERE practices as an interrogation template—both at Guantanamo and elsewhere by the CIA. There wasn't a lot of hard evidence to support this narrative, though, and many chalked up the similarities between the Guantanamo and SERE techniques to coincidence or chance. For instance, in Philippe Sands' new book, retired JAG officer Diane Beaver and retired Maj. Gen. Michael Dunlavey recount a somewhat hazy process by which tactics made their way into memo form. Both hint that personnel from the CIA and other agencies were placed at Guantanamo to seed ideas. The memos released yesterday, however, indicate that there was a much more deliberate effort to share the SERE/JPRA community's tactics, techniques, and procedures (TTPs, in military parlance) with the interrogation community at Guantanamo. (Tab 16 shows this link, too.)
Tab 4 discusses the military's psychological assessment of personnel during SERE training. Taken by itself, this is a sign that the military cares about its personnel and wants to avoid "crushing the spirit of the students." But in the interrogation context, this memo reads uncomfortably like Mengele or Cold War-era research on torture.
In the October 2002 meeting described in Tab 7, FBI agents report talk of "wet towel" treatment during interrogations, despite the fact that water-boarding was explicitly not authorized by Haynes and Rumsfeld at that point. So, it appears that DoD personnel at Guantanamo took the initiative to use SERE techniques before they were approved by higher HQ. These meeting notes also confirm the presence and role of CIA personnel. And they strongly suggest that the Justice Department memoranda authored in Washington—but previously thought to have not reached Guantanamo—were probably shared with Guantanamo lawyers and intelligence personnel in some manner. This connects those memoranda with the one that then-Lt. Col. Beaver authored, which ultimately made its way to Rumsfeld's desk in December 2002.
Tab 19 further documents the relationship between SERE training and the interrogation practices at Guantanamo. But at some point, probably around the time of Abu Ghraib and the post-scandal investigations of all Defense Department detention and interrogation operations, there comes a break. Tab 24 contains a memo by the head of the Joint Personnel Recovery Agency that comes pretty darn close to refusing any future orders to participate in interrogations. The uniformed military seems to be trying to correct its course—insisting that SERE techniques could only be used for "defensive" use (i.e., training pilots, special forces, etc.), not for "offensive" use (interrogating enemy fighters).
But by that point, three years had passed, and it may have been too late to undo the damage wrought by the Pentagon's torture policies.
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Ben's very useful post throws the preventive-detention gauntlet right back at me—and that's fair enough. I'd suggested his approach conflates two separate problems: (1) getting the truck out of the detention ditch at Gitmo (its own unique mess), and (2) figuring out what kind of detention policy and laws the United States needs going forward to effectively address the terrorist threat (a threat I don't for a moment deny). Herewith, the first of two posts in response. This one proposes a getting-the-truck-out plan. The next will talk about trying to avoid the next mess.
I take our collective starting point at Gitmo to be a consensus that it's time to shut it down (given a host of ill effects I could detail, but I think we're all now onboard here). Best I can tell, at Gitmo today there are three broad categories of detainees whose situations needs resolution: folks who've done something wrong who should be tried; folks who the current administration has cleared for release but who have no place suitable to go (because, for example, they face torture in their home country or because their home country won't take them back); and folks who haven't demonstrably (or at all) done anything wrong but who we're understandably loathe to release because, for example, they've said, "I'm a member of al-Qaida and I can't wait to get back to the jihad."
For folks needing trial, I've recommended either courts martial or federal prosecution. The current military commissions are hopelessly (and rightly) tarnished as illegitimate, and any effort to revise or fix them will (a) take even more time (in no one's interest) and (b) not likely succeed in overcoming legitimacy problems. Will courts martial and/or federal prosecution face special challenges in these cases, like protecting classified information? No doubt, but for reasons I've alluded to in previous posts like this one or this one, I think these existing institutions far more accustomed, better suited, and demonstrably able to handle such questions. Might there be acquittals at such trials? Yes. Might KSM be acquitted? Ben, I'll up the ante and buy you a steak (or high-priced vegetarian) dinner of your choice if he is.
The folks who should be free but haven't yet been released (the Yemenis, the Uighurs, etc.) pose fundamentally a diplomatic problem. The existing law is clear on our obligation not to return them to places they're likely to be tortured. So we and our allies must find a suitable alternative home. I do not wish to undersell the difficulty and complexity here by calling it a "diplomatic" problem. I also would not wish to let the administration and its advocates believe that our treatment of our allies (and the rest of the world) in the past seven years has not made the resolution of this task substantially more difficult than it would/should have been. Because of the latter point, I think it is reasonable to expect we might see some diplomatic movement in any next administration—particularly a next administration that is visibly taking a series of real, unilateral steps to restore our credibility on matters of the rule of law, our interest in and respect for international partnerships, and our recognition that we can't combat terrorism without the help of our friends. Some of our allies have been talking a good human rights game; come January 2009, it'll be time for them to pony up. At least that's where I'd start. And while everyone's chatting it through (speaking of concrete, unilateral steps), I'd take these folks (and the folks I'm about to discuss) out of Gitmo and house them in a high-security military prison in the continental United States.
And what about the toughest group: those who have said they despise us but haven't yet demonstrably done anything about it (or anything that was prosecutable at the time they were captured)? Ben is right to note that classification of information—and, I would add, chronic unreliability of information from Gitmo that has been released—makes it impossible to identify from the outside how large a group this is. But let's assume it is not a null set. Here's why past acts matter. Had we given these folks Article 5 hearings in the first instance under the law of war, and kept them in Afghanistan (for those among this set who were captured thereabouts), I believe we could have lawfully continued to hold them in Afghanistan with modest periodic review until the conclusion of that conflict (which, contrary to part of the International Committee of the Red Cross' position, I believe can be understood to continue as a matter of U.S. and international law). I'm not crazy about how much leeway for lengthy detention the law of war provides here, but that's my reading of the law, at least with respect to those caught up in the armed conflict in/with Afghanistan.
But we didn't do that. And we've also now made Gitmo an international clearinghouse for (at least a handful of) folks we've picked up all over the world, like the Boumediene petitioners themselves, who are at best only arguably involved in an armed conflict within the meaning of international law and at best only arguably covered (sorry, Marty) by Congress' own AUMF. And most of all, we now have a ruling of the U.S. Supreme Court saying the Constitution entitles these people to petition for a writ of habeas corpus. Unless the next administration comes in and, upon actually reviewing the evidence, concludes some of these people should simply be released or (lawfully) transferred elsewhere for continued detention (and to me there is every incentive for a new administration to look at these cases closely and as publicly as possible), habeas must go forward. The government will put forward its best evidence. The detainees, represented by counsel, will put forward theirs. And the courts will decide in each case as a matter of substantive law (right, Ben?) whether their particular detention was authorized under U.S. and/or international law. The courts are best suited to this, in my view, because there was applicable law on the books at the time these men were detained, Congress has had two (unsuccessful) shots at constitutionally clarifying it, and the courts, in keeping with their constitutional charge, are accustomed to saying what the law is every day.
It seems as likely as not that many of those who care most deeply about human rights will be disappointed in the ultimate outcome of at least some of these cases. The AUMF as defined by extant international humanitarian and human rights laws, and as limited by constitutional due process, leaves room for a fair bit of detention (as even the ICRC understands). But I'd bet something even more than a steak dinner that if we do all this, we'll be (rightly) taking a lot less flack from the international community. We'll hang onto those who are really and truly dangerous (and might even have time to think about whether a little more investigation might help build a criminal case against them). And we'll have a clearer path to designing a vastly more sensible plan going forward.
So that's where I'm at today. But as ever, I'd be pleased to be learn more.
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First, thanks, Dawn, for those way too kind words about the detainees' panel at the ACS Convention. I personally thought the highlight was Alberto Mora's policy case about the huge counterterrorism security problems our recent approach to detention has created. His security-problem "anecdotes" were pretty devastating: Our allies refusing to engage in joint training with us in the Pacific for fear of getting stuck with U.S. detention practices, our allies letting detainees go rather than transferring them to U.S. custody for fear they'd be tortured, the officer in Iraq who told him his No. 1 and 2 concerns about troop safety in Iraq were Abu Ghraib and Guantanamo Bay. Hell of a list. Hope he writes a book.
Second, back to Boumediene, Dahlia correctly points out that Scalia has now written into Supreme Court jurisprudence the canards regularly trotted out about classified information leaked during terrorist trials that have compromised intelligence sources and methods. Relying on a minority report by Republican Sens. Kyl, Sessions, Graham, Cornyn, and Coburn and on a single Washington Post article, Scalia says: (1) in one terrorism prosecution in federal court, trial testimony revealed that the U.S. had been monitoring an al-Qaida satellite phone, leading bin Laden promptly to stop using it and cutting off that source of intelligence; and (2) the 1995 prosecution of Omar Abdel Rahman in federal court led to Osama bin Laden learning the names of the 200 unindicted co-conspirators in the case.
As Human Rights First exposes in its must-read report on the success of terrorism prosecutions in federal court, Claim 1 is demonstrably false, and Claim 2 is at best misleading. (1) The phone records at issue were not introduced into trial evidence until March 20, 2001, almost two and a half years after the satellite phone went dead (nor did defense counsel have access to the records until well after the phone was out of use). (2) Looks like the government didn't even try to keep the names of the unindicted co-conspirators classified. The prosecution certainly could have invoked CIPA or any of the other mechanisms that exist for the protecting classified information at trial. Evidently, they just didn't. As with all such discussions of how well-suited the federal courts are to prosecuting terrorism cases, important to note these are just anecdotes. Can't conclude much one way or another. But it would be nice if folks stopped citing these particular examples in arguments that the federal courts can't possibly deal with terrorism cases.
Which brings me to Ben, Marty, preventive detention, and Capitol Hill. I was heartened to hear Ben say yesterday and in "Convictions" that he thinks legislation this summer in the area would be a disaster - couldn't agree more. I was also somewhat heartened by what I could pick up of convention buzz on the subject, which amounted to this: everyone is afraid that someone will put forward legislation, but no one thinks it's a good idea, and no one thinks the administration has enough allies left on the Hill to do get anything done. My optimism there was tempered somewhat by this morning's NYT piece saying conservatives now see Boumediene as a rallying cry. So stay tuned.
In addition to Marty's fine points, I've got another beef with Ben, as we discussed yesterday. His well-intentioned proposal and others like it let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward—they let the proverbial hard case make bad law. There are two separate policy problems the next administration has to face: (1) How are we going to get the truck out of the ditch at Gitmo, and (2) what kind of detention power/policy should we pursue in the interest of counterterrorism. The policy options on (1) are limited by our own past bad acts—denying basic Geneva protections in the first instance, torturing some of the detainees, etc. The policy options on (2) are better and may actually just give us what we need under existing law. In all events, until we've got a sensible (or any) counterterrorism strategy (rather than letting our tactics lead us around by the nose, as Mora eloquently showed), we're in no position to go designing yet another new detention scheme.
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After Abu Ghraib, a whole bunch of fits and starts with military commissions, not to mention too loudly the disastrously wrong-headed, deadly, and costly occupation of Iraq, Boumediene will make perfect sense to most of the world that will be mercifully saved from reading the opinion.
The decision in Boumediene will no doubt be heralded as a victory for civil liberty and a further rejection of the foreign policy, including the conduct of the "war on terror," (if you believe there is such a war) of George W. Bush. The court, of course, did not repudiate either the president or his foreign policy in so many words, but that's what the opinion effectively does—that, and express the view that since we're not sure we're at war, holding people without formal charge or trial who may or may not be associated with the war we're not sure we're fighting for more than six years is not good.
Spurning the president's foreign policy is now commonplace. It is being done every day in offices, schools, and homes across the country; there's no reason the court can't get into the act, too. So, despite its soaring rhetoric that "security subsists in fidelity to freedom's first principles," the opinion might be summarized as: Our security was breached on 9/11; we are unsure of the scope of the continuing threat, but we're feeling safe now. Because that is the case, Guantanamo will be treated as functionally part of the United States, and alien detainees who are within it will be given access to the federal district courts by means of the writ of habeas corpus. It is just not proper to keep noncitizens in custody for six years with no regular, Article III judicial determination that we caught the real enemy.
Putting aside the disregard of precedent, the fact that the history of extending the writ beyond sovereign territory was at best a draw, and that once again the high court left it up to the district courts to figure out what now, it's a fine opinion. It is too facile to say the only losers are the detainees who have the writ but no real certainty that it means much of anything in particular. I bet more than a few petitions for release will be forthcoming with or without great specification of procedure. The chief justice's dissent admirably illustrates the empty suit character of the majority. I'm not prepared to join Justice Scalia's anticipation of military doom, though this much is true: The opinion disregards the wisdom of Justice Jackson, not in leaving an opinion lying around like a "loaded weapon" but by discharging and leaving a mess of anything that used to make sense in the jurisprudence of warfare and foreign affairs.
Next time, issue a press release. They are shorter and easier to read.
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In holding that the reach of the Constitution is to be measured functionally, not formally, a majority in
Boumediene resolves a question previously muddled by plurality opinions.
Whether U.S. agents must adhere to the U.S. Constitution when acting outside U.S. territory is a question various courts have answered in different ways. As I'd outlined
here when
Rasul was pending (Pages 295-99), a line of splintered decisions that I've called "maximalist" indicated that the Constitution always constrained agents abroad. A "minimalist" line indicated the opposite, and neither expressly overruled the other.
A close reader of Justice Anthony M. Kennedy's concurrence in one of the latter cases,
United States v. Verdugo-Urquidez (1990), might have expected that when give the chance, he would reconcile the two lines with a midway approach; that is, by taking the lead of Justice John Marshall Harlan in
Reid v. Covert (1956) (concurrence) and hold that whether the Constitution applied in a particular extraterritorial instance required careful reviews of all the circumstances.
And today, that is exactly what Kennedy did as he wrote for the court that "practical considerations" compelled extension of the constitutional privilege of habeas corpus to noncitizens detainees held at Guantanamo.
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This just in via SCOTUSblog—the Supreme Court decided today in a 5-4 opinion that detainees at Guantanamo Bay could bring petitions for habeas corpus in federal district court. As Jeff Toobin just said on CNN, this marks the third time (more if you count each individual opinion) that the Supreme Court has taken the Bush administration to the woodshed over its detention and interrogation regime. More analysis to follow ...
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In
seeking to defend the call for a novel means to prosecute persons suspected of terrorism, Ben deploys phrases like "viable trial regime" and "what we want as a society" and "another legitimate system." He contends that absent adoption of this new-fangled mechanism, "we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe." Packed in that single paragraph are myriad assumptions. But the notions that due-process-lite tribunals can be "legitimate," and that without them "we ... as a society" will have to resort to an "administrative detention apparatus," demand debate, not positing as base-line assumptions.
A final question:
If a new form of criminal trial and/or administrative detention are the only options, how have we, as a society whose Constitution is 228 years old, survived without them?
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Seeing my own words in print again, Ben, you're right, my question about criminal trials in federal courts came out a bit more gauntlet-y than I intended. Chalk it up to accumulated Guantanamo exhaustion. You've nonetheless given a good, thoughtful response, so let me offer a few quick reactions here (and figure we'll continue the discussion if not sooner at the American Constitution Society fiesta later this week).
On what existing options we have—your response seems to assume we've got federal courts or military commissions or nothing. That excludes the good old-fashioned court-martial, which I think many of us thought (at least I did and some JAGs I know) would have been just fine in cases where we needed to prosecute those picked up in Afghanistan or thereabouts. I'd still take the court-martial over the current military commissions any day: settled procedure (with room for discretion), trained participants, fair process, experienced in handling classified information, appeal to an established independent tribunal. You could perhaps still persuade me that despite all the water under the bridge, they might still work for a number of those we need to try at Guantanamo. You don't see the court-martial as an option at least for some?
On assessing how the federal courts have performed—you're quite right that simply saying they're better than the Guantanamo commissions is low praise, indeed. Too low, especially given the rather extraordinary degree of success prosecutors have had there. Instead, you say in response: It doesn't matter how well the courts have done in cases actually brought to trial, what really matters is how they would handle the whole universe of people we might ever want to detain—a universe you acknowledge is not well-defined but about which you are certain the federal courts aren't suited. Well, it would be great indeed if the administration would see fit to disclose a bit more about that whole universe of cases. In the meantime, it's hard to see how we can draw any conclusions about the federal courts' skills in that realm one way or another as long as, as you say, we don't actually have a handle on it.
More directly to your point, though, I do not argue that "the criminal law [is] the sole source of authority to detain people in the war on terrorism." Hard to know where to begin in citing my past comments on this, but you might take a look at a few of my briefs/writings here or here. The federal government has tons of detention authority beyond the (increasingly broad but still largely constitutional) criminal law—from immigration and civil commitment and material witness laws to, yes, battlefield detention under Congress' post-9/11 authorization for the use of force. Could be we disagree about the scope of the current "war," or the procedural limits the law of war imposes on executive power, but I'd be (and have been) the last to say the federal government shouldn't use its full range of lawful authority, all instruments of national power, etc., etc. in addressing the terrorist threat.
What I have suggested is that somewhere in all that existing detention power (all of which is currently supervised by existing judicial and administrative institutions), we might just already have what the detention universe demands. Now if I'm wrong about that, and the federal government needs more detention authority than it currently has, what we need isn't just (or particularly) a new court—we need a new statute authorizing the detention of some specific-enough-to-be-legal definition of others needing to be detained. But until the "new court" folks get down and dirty about who else, exactly, they want to detain, for how long, under what conditions, and why—then I can't figure how we know what kind of institution we need.
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I'd just finished reading the spate of e-mails and articles about last week's opening proceedings in the military commission trials of KSM, et al. down at Guantanamo when I came upon the link to Ben and Dahlia's discussion of the matter (among other things) over at Bloggingheads.tv. The contrast between what I'd been reading in the news and what I think I heard to be Ben's take on the commissions-vs.-criminal-trials issue was pretty striking.
Here's what I just read. Story No. 1 in (take your pick) Newsweek, Time, the NGO trial blogs noted the rather stunning decision by someone at DoD to let the five "high value" defendants accused of direct involvement in 9/11 hang out together in the same room before the commissions began. Commentary seems uniform in concluding that the effect of this chat was to convince some of the defendants who had been planning on participating in the trial to boycott. Writes Newsweek:
Maj. Jon Jackson flew repeatedly to Guantánamo Bay, Cuba, in the past month trying to build a rapport with his client. The veteran military lawyer had been assigned to represent Mustafa Ahmed Hawsawi, a 39-year-old Saudi who is one of five alleged co-conspirators in the attacks of September 11. Jackson says he thought he'd gained Hawsawi's trust during eight meetings-despite his Army uniform. ... But Hawsawi's demeanor changed when he sat in the same Gitmo courtroom with Khalid Sheikh Mohammed, the accused architect of 9/11. At their arraignment last week, Mohammed, sporting a bushy white and gray beard and a white tunic, held a menacing sway over the other four detainees, instructing and even reprimanding them. Hawsawi had indicated he was ready to accept Jackson as his lawyer-but backtracked when Mohammed taunted him: "What, are you in the American Army now?" Jackson says his client was visibly intimidated. "He was shaking," he tells Newsweek.
The ACLU's Hina Shamsi adds: "Every one of the highly-experienced military and civilian criminal defense counsel we talked to today (together, they have decades of experience) said that it was unprecedented for alleged co-conspirators to be permitted to mingle and talk in this fashion." I'd never found it hard to understand why.
Story No. 2 I actually haven't seen reported anywhere, but you can get the opinion here. Ever heard of Ahmed Omar Abu Ali? Surprisingly few have. He's an American citizen (valedictorian of his Virginia high school) who was arrested in Saudi Arabia and charged with various material support and conspiracy offense based on his involvement with al-Qaida. Despite allegations (that look pretty credible) he was tortured while in Saudi custody (he has argued with the knowledge of U.S. officials), the 4th Circuit just upheld his criminal conviction (in a panel decision that split 2-1 on some issues). Beginning a detailed, thoughtful 98-page opinion, the court writes:
Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it. The three of us unanimously express our conviction that this is so in this opinion, which we have jointly authored.
Hell of a case to go largely unremarked. It's not that I agree with every aspect of the panel's decision. But there's no one questioning the court's legitimacy. And Abu Ali—as has Zacarias Moussaoui—will now basically head unremarkably into an American prison for a lengthy term of years. Any court we pick—commissions, courts martial, federal courts, some new system—is going to have to grapple in prosecutions with tough questions of classified evidence, confrontation rights, and (because of this particular administration's own past bad acts) the treatment of the accused. I'd say there's no current institution that has the tools, experience, and legitimacy to do this balancing better than the federal criminal courts. Ben, do you disagree?
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Imagine if, during the O.J. Simpson murder trial, Judge Lance Ito ordered the district attorney's office to hand over DNA samples and logs of O.J.'s stay in county jail after his arrest. Then imagine that the prosecutors refused to do so. And that, instead of being fined for contempt of court (or thrown in jail themselves), these same prosecutors somehow got their boss to get Ito tossed off the bench. And then the D.A.'s office worked behind the scenes to replace Ito with a more, shall we say, compliant judge.
Wouldn't happen. Couldn't happen. Never in a million years. Not even in California.
Well, Cuba isn't California, and Guantanamo Bay is further still.
Continue Reading ...
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I had the pleasure of spending a few hours late last week at the tail end of what looked to have been a terrific seminar series on current challenges in the law of war. The lectures were aimed at an audience of mostly Capitol Hill staffers and delivered by experts brought in by the seminar hosts at the U.S. military's JAG school, UVA Law School, and the International Committee of the Red Cross. You can find the agenda here.
Among other rumors buzzing about was discussion about the odds Congress would come back and legislate in a hurry after the Supreme Court hands the administration an expected loss on the question of habeas corpus for Guantanamo Bay detainees some time before the current term ends in the next month or so. (Dahlia wrote last December about oral arguments in the relevant cases, Boumediene v. Bush and Al Odah v. United States here. I'm with most Supreme Court-watching pundits, including Dahlia, in suspecting the government is not going to win entirely in its argument that the detainees there are only entitled to what they get under the current review scheme.) The speculated administration thought: Force the Democrats into a politically disadvantageous vote right before the election and kick the Gitmo can into the next administration with a vengeance.
Among other legislative peanuts already rumored to be "in the hopper"—a new national security court scheme favored (although hardly agreed on in detail) by my friends Neal Katyal and Jack Goldsmith. Coming off the delightful past seven years of experimentation in our last "new court" enterprise down at Gitmo, Neal and Jack, I know, can appreciate my deep skepticism of the likely success of another such venture (even one more thoughtfully conceived).
So, before I go on at length about why I think a new court is the wrong way to go (and any proponents must read the new Human Rights First report about how terrorism cases have worked reasonably well in the good old-fashioned criminal courts), any of my fellow bloggers care to weigh in on the odds we'll see Congress back in the detention business before the summer is out?
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In case you missed what in most news cycles would've been headline news, Defense Secretary Gates told a subcommittee of the Senate appropriations committee yesterday that efforts to close Guantanamo were "at a standstill." CNN quotes Gates testifying: "The brutally frank answer is that we're stuck."
Why? Gates says there are about 70 detainees who the DoD has cleared for release, but their home countries won't take them back, or would take back but then release them (presumably against the DoD's wishes). Other detainees are "ineligible for prosecution" for reasons Gates didn't detail (I have a few guesses). And there's a core (of fewer than a hundred, sounds like) who "can't" be prosecuted but whom Gates sounds very certain are bad guys. He'd like to continue detaining these folks somewhere other than Gitmo, but apparently the Pentagon is having a hard time persuading a state to let them bring these guys into the continental United States.
Could be that the DoD would have more success placing the detainees it is ready to release with home country hosts if we hadn't spent so much time calling these guys the worst of the worst (or otherwise generally making it clear we didn't much care what other countries think). Could also be there'd be more prosecutions if there'd been less abuse. And could especially be that there are federal facilities inside the United States that are under federal control, usable as prisons even if the states would rather not have these guys in their back yards. But recognizing that things are now far worse than they needed to have been doesn't exactly tell us what should happen next. Given the past mistakes (to put it kindly), none of the solutions ahead is going to be ideal.
Gates has been widely credited with being the non-Rumsfeld, and seems genuine in his desire (public and private) to close Gitmo down. But given this bleak testimony, it's hard to imagine any of this getting fixed anytime before 2009.
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The Justice Department released its inspector general report (PDF) today clearing the FBI of most wrongdoing in connection with the coercive interrogations (read: torture) of prisoners at Guantanamo Bay, Cuba. For the most part, the report concludes that FBI agents did the right thing by objecting to the interrogation methods they saw that were abusive, and that FBI agents did not participate in these questioning sessions. However, the report faults senior leaders at the Justice Department and FBI for not giving clearer guidance to their agents in the field, allowing some special agents to be confused about "how to draw the line between behavior that was 'abusive' or merely harsh, such as the use of loud music and stripping."
According to the Post:
"The FBI could have provided clearer guidance earlier and pressed harder its concerns about detainee abuse by other agencies," Fine said. "But we believe the FBI should be credited for its conduct and professionalism in detainee interrogations in the military zones and in generally avoiding participation in detainee abuse."
Interrogation practices—including the use of dogs, sleep deprivation and simulated drowning or waterboarding—repeatedly created friction between FBI agents and military leaders. FBI Director Robert S. Mueller III has stressed that the bureau prefers to build rapport with detainees as the most effective way of eliciting accurate information from them.
In congressional testimony last month, Mueller hinted that the FBI's hands were tied in part by opinions from the Justice Department's Office of Legal Counsel, which approved several of the coercive interrogation strategies.
Seems to me like it would have been tough for the DoJ and FBI to issue better guidance while this guy was calling the shots. But that's just me.
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It's dangerous to try to draw parallels between procedures of the United States and any country, even those of our principal legal progenitor, England. This is surely the case with a civil-law country like France. The
problem is not that the French "don't even use a jury." In point of fact, France does use laypersons as co-fact-finders with professional judges in some felony prosecutions (as do other civil-law systems, as I write on p. 818 & n. 57
here). It's an odd complaint in any event, given that the discussion revolves around commissions that themselves will not use juries.
Perhaps more important is that what is considered a "trial" in civil-law jurisdictions is far different from the American understanding of the term (something the
New York Times reporter glossed over when she referred to a "six-day trial"). The "
procès," the French word closest to
trial, refers not only to the condensed public event that ends in conviction or acquittal but rather to the entire criminal proceeding against the defendant. In this case,
le procès lasted not for a few days in March but rather for many years: All residents of Paris' 19th arrondissement,
M. Benyettou and his six co-defendants were first arrested in 2005, and some have been detained since then. In the interim, their case no doubt worked its way through not-public proceedings before a
juge d'instruction, as is properly noted in this
post today. Only after these proceedings were completed would the public trial,
la procédure contradictoire, have taken place in robust form (see p. 838
here). Thus, even while applauding the use of the civilian system and the crafting of an evidentiary solution—aspects of the case that do deserve applause—we ought to be a bit chary of assuming that all that occurred procedurally during the long
procès deserves applause. Still more, our discussion so far seems to ignore a core problem with the French prosecution and, in my view, with many proposed Gitmo prosecutions: The substantive crime charged.
The concern remains that the material support offenses will be emulated widely and lay the foundation for a broad retreat from the traditional posture of the criminal law in this country that complicitous liability requires a mens rea of purpose, and that if a mental state of knowledge is deemed sufficient, at the very least the underlying conduct must be substantial in relation to the criminal goals of the primary parties.
The French version of this offense may be open to additional questions. Both versions deserve far greater examination than they receive when we focus, necessarily but perhaps too narrowly, on questions of procedure.