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Can the president indefinitely detain someone who has no connection to al-Qaida and who has not engaged in any belligerent acts against the United States?
Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush administration had not established a sufficient foundation for its indefinite military detention of Huzaifa Parhat, who has been imprisoned at Guantanamo for more than six years. Much of the evidence that the court considered is classified, and therefore the court decided that it would publicly release only a redacted version of its opinion. The court released that redacted version on Monday.
Even in its redacted form, this extraordinarily careful and detailed opinion, authored by Judge Garland and joined in full by both of his more conservative colleagues, offers a stark depiction of the most significant problems with the Bush administration's detention policy-namely, that the military has relied upon a breathtakingly broad standard of who can be detained, and then has made particular detention decisions based on very speculative and thin evidence, even under that broad standard. The detention policy in practice, in other words, has been much more indiscriminate than any authority Congress afforded the president in the conflict against al-Qaida.
Within a week after the attacks of Sept. 11, Congress authorized the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
The administration argues that this Authorization for Use of Military Force authorizes the indefinite detention of Parhat, and several similarly situated detainees, at Guantanamo.
Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that "planned, authorized, committed, or aided" those attacks. In particular, it is undisputed that he is not a member of al-Qaida or of the Taliban. Indeed, the Pentagon's Combatant Status Review Tribunal did not even find him to be "an individual who was part of or supporting Taliban or al Qaida forces." And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).
So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced weegur). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to "oppression and torture" by the Chinese Government, including "harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas." In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone-not the United States-as his enemy.
In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and 17 other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained imprisoned for more than six years.
In light of all this-and the utter lack of any connection between Parhat and any hostilities against the United States (let alone the 9/11 attacks)-what is the possible theory under which the Pentagon has purported to detain Parhat for the better half of a decade (with no end in sight)?
Find out at Balkinization.
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David, you're right: Kennedy's opinion in Boumediene calls Congress out. Hey, you want to suspend habeas, go ahead, but we're not going to let you back into it by mumbling about jurisdiction-stripping. Which makes it striking that in the opening of his dissent, Chief Justice Roberts attacks by asserting that "this decision is not really about the detainees at all, but about control of fedreal policy regarding enemy combatants." This is the classic accusation that the court is overstepping itself in a spat among the branches. And yet in his opinion, Kennedy keeps the court on a pretty narrow path, defining the right of habeas corpus (much weighty historical analysis on this front) and explaining why, because of its constitutional significance, Congress can't wish away habeas with a lot of indirection.
Roberts is right that the big question is what happens next. But what he calls "a set of shapeless procedures to be defined by federal courts at some future date" is the Supreme Court sending this case back to the lower courts to fill in the contours of exactly the sort of due process to which the detainees are entitled. That's standard operating procedure—if the majority had filled in all the blanks itself, wouldn't the dissenters have accused them of overreaching? And Kennedy offers pretty specific guidance. He wants a habeas or habeaslike process that has "the means to correct errors" in the initial procedure, in this case, the Combatant Status Review Tribunal. And he wants the detainees to be able to offer their own "relevant exculpatory evidence." The shortcoming of the CSRT is the "considerable risk of error in the tribunal's finding of fact," that's what habeas is designed to protect against, and since we're holding these detainees over the long haul (yes, six years already, as Deborah points out), they're entitled to that protection, too.
What about Marty's key question: Should Congress respond now to the court? I'm curious about others' reactions, especially Ben's, since this cuts close to his book. My own initial reaction is that the decision today is evidence that the courts are doing their best to sort through the incredibly difficult dilemma that the Guantanamo detentions pose. I know we've waited six years already, but I'm willing to wait more to see what they come up with. On the other hand, we're nowhere near the cliff's edge of deciding whether any of these guys should or could be released. And given how dicey that question is, legislative involvement would help the court a lot, politically speaking. That is, if we could ever trust Congress to get it right.
One more question: How does this decision play out in the presidential campaign? Does it give McCain fodder and make Obama defensive? Or can the Democrats figure out a way to harness it ito the deep misgivings about Guantanamo that by now are widely shared?
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Eric writes: "We are agreed, yes? That procedural protections in civilian courts are too high for war-on-terror prosecutions? ... If yes, then there is just an empirical question of whether we should demand that federal judges relax procedural protections in terrorism cases or use an alternative military-commissions system—a question that it is far too early to answer because there is so far very little evidence as to how this alternative system will perform."
The flurry of posts on the military commissions seems to me to obscure the elephant sitting in the middle of the room, namely, that the principal "relaxed procedural protection" at issue here—the one that has caused the administration to insist upon newfangled commissions rather than courts-martial all along—is that a great deal of the relevant evidence has been obtained unlawfully.
That is to say, as with most of the great debates in the "War on Terror," even when the particular dispute is nominally about the legality of military commissions . . . it's all about the torture.
Not only would much of the evidence in these cases be inadmissible because it's the fruit of coerced testimony, but the administration is hellbent on keeping secret what it has in fact done to the detainees in its control. In any legitimate proceeding—be it court-martial or civilian trial or military commission or even congressional investigation—that information would and should be disclosed. And in a court-martial or civilian trial, there's a good chance that would happen. (Wish I could say the same about congressional hearings.) But that's nonnegotiable for the Bush administration . . . and so, the endless debates about military commissions, which are designed largely to obscure the manner in which we obtained the relevant evidence.
The interesting question, then, is whether the McCain or Obama administration would be more willing in 2009 to make transparent what happened during these interrogations—after which perhaps we could figure out whether there is any tribunal in which fair trials could take place, without unreliable evidence gleaned from torture and cruel treatment. (That is to say: It's awfully difficult to conduct war-crimes trials when a good portion of the evidence was obtained by way of ... war crimes.)
(There's one other big issue, too—namely, that it is not at all clear that a great deal of the conduct alleged against some of the lower-level defendants, such as Hamdan and Khadr (e.g., driving bin Laden, delivering weapons to the front, tossing grenades at soldiers), actually violated any laws of war that were in place at the time of the conduct. But I don't see why those sorts of questions can't be resolved fairly, without regard to the nature of the tribunal.)
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Also, our point wasn’t to issue any sort of blanket indictment of military justice, or American justice, as a whole. To the contrary. Same government, yes, but very different rules—and in the traditional court systems, it’s the courts that make those rules, not the executive branch. Not so for the tribunals. That was one of the main bases in the first place for Salim Hamdan's suit challenging the commissions in. In the wake of the Supreme Court's decision in his favor, Congress got into the act, both verifying the Bush administration's call to establish the tribunals and demanding a higher standard of due process for them. We'll find out in June, presumably, how that sits with the justices.
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Eric, I think Joseph Heller would agree with the Catch-22 scenario you've described for the commissions at Guantanamo Bay. They truly are damned if they proceed and damned if they don't. Perhaps unintentionally, I think you've arrived at the right conclusion: The commissions are fundamentally and fatally flawed; the rule of law will prevail only if they are perpetually blocked. Specific evidence against defendants is irrelevant to the question of the tribunals' legitimacy, although I'd also argue that this evidence makes it all the more important that we find some way to try the men held at Gitmo.
Ironically, our French allies across the Atlantic might have found a way. A French court sentenced seven men to prison yesterday for aiding al-Qaida in Mesopotamia by funneling young Frenchmen to Iraq to wage war against U.S. and coalition forces there. French prosecutors brought this case in civilian court, using a combination of open and sealed (i.e., classified) evidence to prove the defendants' guilt in a six-day trial this past March. Now the defendants are headed for prison—and the French get to put points on the scoreboard in the fight against terrorism.
Maybe we can learn a thing or two from our colleagues in Paris?
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Well, Phil, after reading the Pentagon's press release on the decision to drop charges (for now) against al-Qahtani, I admit to being overcome by the more cynical angels of my nature. On the one hand, I can see a pretty sensible prosecutorial rationale for separating al-Qahtani from the five other "high value" detainees at Gitmo charged today with involvement in planning and executing the 9/11 attacks. As the Pentagon explained:
The Convening Authority has dismissed without prejudice the sworn charges against Mohamed al Kahtani. Because the charges were dismissed without prejudice, the government has the option of charging Kahtani separately, but he will not be tried with the other accused in this case.
Translation: Al-Qahtani had been part of the big 9/11 conspiracy case we were planning to try jointly. But because the evidence supporting al-Qahtani's prosecution is particularly dicey (given, as Phil notes, what we did to him in custody), we'd rather not jeopardize the prospect of a successful joint prosecution of the five with the particularly ugly facts surrounding al-Qahtani's treatment.
Fair enough, I suppose. We've had some of these accused 9/11 masterminds in custody for years now and have yet to bring a single one to justice, in part because of concerns the evidence is now too tainted by torture to be admissible in any court. A reasonable prosecutor who parachutes into this position could only try to do the best she can with the cards she's now been dealt. (I guess we'll have to see what's to be done about the fact that al-Qahtani's isn't the only case tainted by allegations of evidence gained under torture.)
But this story comes in the midst of what's already been a hell of a past few weeks of nearly soap-operatic news out of the commission trials at Gitmo—news that's included repeated allegations that the Pentagon has pressed for convictions in the interest of partisan political advantage, and the deeply embarrassing statements by the former commission chief prosecutor who resigned in protest and has spent the past several weeks touring the country explaining how the commissions cannot possibly produce fair trials.
For details on these and other allegations, you might take a look at the fascinating opinion released by the commission on Friday, in which sitting commission judge (Navy JAG Capt. Keith Allred) issued an order excluding Brig. Gen. Thomas Hartmann from further involvement in the commission trial of Salim Hamdan on the grounds that Hartmann was exerting undue command influence on the trials (on behalf of the prosecution). Hartmann has held the only-in-Gitmo title of legal adviser to the convening authority for the military commissions—a role that essentially calls on him to provide objective legal advice to the Pentagon office in charge of running the commission proceedings. Apparently, the "objective" advice has included pushing the (since resigned) chief prosecutor to use evidence the prosecutor thought was "tainted and unreliable, or perhaps obtained as a result of torture or coercion." Not that this concern is itself especially news. One can now read some of the e-mail exchanges from the young military prosecutors who resigned from the commission office back in 2004 after alleging, among other things, the disappearance of evidence documenting detainees' allegations of torture. But the court's decision hardly helps the commissions' already battered image.
And then there are the accounts from the recent trial proceedings themselves, in which, despite the countless reasons why this shouldn't be the case, some of the most eloquent statements in the courtroom have come from a detainee. (Attorneys with my former employer Human Rights First are again blogging from Gitmo during the trials, and their recent filings are well-worth a read.) I'll just end with this particular snippet from Mr. Hamdan. Hamdan, recall, won an extraordinary victory in 2006, when the Supreme Court held the initial commission process unlawful under U.S. and international law. For a time after that, Hamdan became (as quoted by his attorneys) a remarkable champion of the U.S. legal system. That view apparently has since changed.
If you ask me the color of this table, I will tell you it's white. You say, "it's black." I say, "no, it's white." You say, "no, it's black." I say fine, "it's black." You say no, it's white." This is the American government.
This process is serving no one's interests, most especially not those of the United States. Despite the best efforts of some of the many well-meaning military lawyers who've been at various stages associated with the commissions, I just don't see any way possible for this process at this point to be taken seriously. Have courts martial Have them in the continental United States. This just has to end.
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The Associated Press reports this morning that Pentagon officials have dropped military commissions charges (for now) against Mohammed al-Qahtani—better known as Detainee 063 after the Time cover story detailing his interrogation. Prosecutors alleged that al-Qahtani was the "20th hijacker," who narrowly missed participating in the 9/11 attacks after being detained at a Florida airport. However, the prosecution stalled because of government admissions that some evidence against al-Qahtani was gleaned through coercive interrogation (read: torture), like water-boarding, and that al-Qahtani himself was harshly treated (read: tortured) at Gitmo.
And so, yet again, the decision to "take the gloves off" in prisoner interrogations comes back to haunt us. The prosecution of al-Qahtani should have been an opportunity for the government to prove its case against this defendant and al-Qaida—and to confer some legitimacy on America's war on terrorism through the legal process. Instead, the military commissions remain mired in a morass of legal problems. And this particular prosecution may never go forward, beacuse it was tainted by torture.
Correction, May 14, 2008: This post originally contained a photo of a man identified as Mohammed al-Qahtani. However, the man pictured was not the Mohammed al-Qahtani discussed in the post/article. The photograph has been removed.
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A guest post from Jonathan Hafetz at the Brennan Center:
Even as criticism of Guantánamo mounts, Guantánamo’s underlying hypocrisy endures. That hypocrisy manifested itself again last week in a little-noticed decision by Washington, D.C. District Judge John D. Bates. The decision involves Abdul Hamid Abdul Salam al-Ghizzawi, a Libyan citizen transferred to the base in 2002 after, he alleges, Afghan warlords sold him for bounty. Like the hundreds of other Guantánamo detainees held as “enemy combatants,” al-Ghizzawi has never received a hearing on his habeas corpus application. In a recent filing, he complained that the government was refusing to provide him with adequate medical care and had denied him treatment for a severe liver condition that was jeopardizing his health.
Judge Bates denied relief, finding the treatment al-Ghizzawi had received was adequate. But his reasoning highlights the fundamental injustice at the heart of Guantánamo: Bates suggested that al-Ghizzawi’s claim should be analyzed under the same legal standard applied to convicted prisoners under the Eighth Amendment, which prohibits “cruel and unusual punishment.” That requires a prisoner to establish that government officials were “deliberately indifferent” to his “serious medical needs”—in other words, that the officials “knowingly and unreasonably disregarded an objectively intolerable risk of harm to the prisoner’s health or safety.” Negligence does not suffice. This heightened standard is justified because convicted prisoners are being punished for crimes and cannot expect the same level of care as those living in the world outside. But that justification falls apart at Guantánamo, where hundreds of detainees, like al-Ghizzawi, have been jailed for years without even being charged with any wrongdoing, let alone convicted of any offense.
Bates’ opinion ignores the underlying injustice that pervades al-Ghizzawi’s case and Guantánamo generally: The United States has imprisoned him for more than five years without charge or a fair hearing. Worse, after the Defense Department’s status review tribunal initially found al-Ghizzawi was not an “enemy combatant,” the Defense Department ordered a “do-over.” (Where, lo and behold, the tribunal found al-Ghizzawi an “enemy combatant.”) So, if, al-Ghizzawi is distrustful of Guantánamo’s medical staff, as Bates noted, he has good reason: He knows the status review tribunals are a sham and the results rigged.
Bates treated al-Ghizzawi like any other prisoner in any American jail who has been afforded his right to a trial under the U.S. Constitution. What Bates ignored, and what others too often forget, is that Guantánamo detainees have never had their day in court.
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Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice at NYU Law School. His thoughts on the torture memo and Guantanamo, below:
John Yoo’s recently released March 14, 2003, OLC memo is a tour de force of legal analysis gone bad. The memo has been rightly vilified here and elsewhere for making the president a king and for contributing to a torture culture in America. But even though Yoo’s memo has been repudiated, its discredited ideas live on in the detention system he helped create. Worse, Congress has now codified many of Yoo’s ideas through the Military Commissions Act of 2006.
The prisoners condemned to legal limbo as “enemy combatants” are the first casualties of Yoo’s War on Law. Hundreds of men (many completely innocent) have spent years imprisoned at Guantanamo without habeas corpus or due process because Yoo and others sought to create a prison beyond the law. Guantanamo, in turn, has given rise to a combined system of indefinite detention (through Combatant Status Review Tribunals) and trials by military commissions that depend upon evidence gained through the very coercive interrogation tactics that Yoo sought to legitimize. Indeed, Brig. Gen. Thomas W. Hartman, the commissions’ legal adviser, maintains that military judges can even rely on evidence gained by water-boarding, a torture technique sanctioned by Yoo’s earlier (and now repudiated) Aug. 1, 2002, legal opinion. In other words, no evidence is too tainted for the Guantanamo commissions to consider.
Meanwhile, my client Ali Saleh Kahlah Almarri, a legal resident alien, is approaching his fifth year in virtual isolation at a Navy brig near Charleston, S.C., based upon Yoo’s discredited assertion that the Bill of Rights does not apply to the president’s conduct of the “war on terror” inside the United States. Remarkably, the administration continues to defend the proposition that the president can seize terrorist suspects in the country and detain them indefinitely as “enemy combatants” even though its deliberate mooting of the Jose Padilla case in the Supreme Court shows it recognizes that proposition is legally bankrupt.
Criticisms of Yoo often overlook his unthinking conflation of terrorism with war. Yoo is right that a state of war gives the president broad powers, even if he is wrong that those powers are unlimited and beyond regulation by Congress. But Yoo never critically examines the legal consequences of extending his too-robust vision of the executive’s war powers to terrorism. It is this leap that makes many of Yoo’s bolder assertions so terrifying. For example, Yoo’s assertion that the Fourth Amendment has “no application to domestic military operations” uses the rhetorical trope of the “war on terror” to mask the creation of a police state that can seize, interrogate, and indefinitely detain individuals on mere suspicion. It effectively sanctions a permanent state of emergency in which executive say-so swallows the traditional protections of criminal law upon which the Constitution’s guarantees of individual liberty were founded.
Restoring justice in America requires more than exposing and repudiating John Yoo’s legal thinking. It requires restoring the system that Yoo’s discredited ideas have helped to undermine and destroy.
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One of the things I agree with Ben Wittes about is the need to get serious about how a next administration is going to fix various aspects of U.S. counterterrorism policy. That's why one of the things I liked most about Jack Goldsmith's column this week on the rule of law in the "war on terror" is that its "fixing it" premise accepts the reality that something is broken. On this, and several other points he makes, Jack and I certainly agree. In the spirit of productive dialogue, though, I focus here on a few of the areas on which we don't.
Let me start with two points in this post, and I'll turn to the biggie question of a national security court separately. First, I'm 100 percent in accord with Jack's finding that the administration has had a bad habit of over-classifying information, and it would help for the public to know more—about the nature of the threat and our own responses to it. But disclosure for the purpose of restoring government credibility (though we surely need that too) is rather the least of the reasons why over-classification needs a fix. As pressing is the purpose of avoiding another 9/11—in no small measure a result of the failure of the pathologically secret intelligence agencies to share information with the other state and federal agencies that might actually help catch the terrorists. And then there's that whole old-fashioned idea of open government in a democracy. Or something like that.
Anyway, given all that, I was then surprised to encounter what sounded strangely like a warning to the next administration—that after receiving a few harrowing threat briefings and absorbing the awesome personal responsibility of keeping Americans safe, the new commander in chief won't rush to eliminate the Bush program and that he or she will realize that any legal climb-down that is later perceived as even indirectly responsible for an attack would be a personal and political disaster.
Actual legal obstacles were not principally (or, as best I can tell, even modestly) what prevented the U.S. government from averting the attacks of 9/11. The notion that they were seems to me to have been a myth propagated in the wake of the attacks to avoid a more clear-eyed (and less favorable) assessment of the administration's less-than-stellar counterterrorism performance. Regardless, as authors, bloggers, and the like, we have some say in whether "any legal climb-down" (by which I take it he means any difference in approach) in detention or interrogation policies in the next administration is "perceived" as responsible for any next attack. I'd hate to think we're setting up the next perception spin even before any "climb down" or attack happens. That may well not be how Jack intended this passage. But that's how I read it.
A second issue. Jack wisely recognizes the importance of working with (rather than, say, antagonizing) international allies on whom we depend for success in our counterterrorism efforts. But I remain deeply skeptical of the utility of the recommendation he puts forward (one that has also come in recent months from current State Department Legal Adviser John Bellinger). Namely, that we work toward a new international legal framework for handling terrorist suspects. As best I can tell, the impetus for the "more international law" idea seems to come from two perceived needs: 1) Guantanamo is a catastrophic mess, it needs to be closed, and we need to do something with the prisoners that remain there, and 2) neither international nor domestic U.S. law allow us to preventively detain terrorist people who we think might someday pose a danger but as to whom we have no real evidence yet that could show they've done anything wrong.
On one, yes, of course Guantanamo is a mess—for a host of reasons. We didn't afford the detainees there even the most basic status hearing under the Geneva Conventions when we first picked them up (for no discernable reason) and still had some hope of figuring out whether we had evidence justifying their detention; we picked up a bunch of the wrong (i.e. innocent) people; we treated some of them so badly we may've compromised our ability to secure convictions of those who may actually have done bad things; and we've created the best recruiting tool al-Qaida ever could've imagined. One could go on. But why then wouldn't it be far better to try to "fix Guantanamo" by crafting a Gitmo-specific solution for these detainees—not by compromising the next 20-plus years of terrorism detention policy and practice as a result of trying to dig ourselves out of one of the worst security policy decisions of recent history? Put differently, I can't see why we should let the especially hard case make especially bad law. Whatever we do next about Gitmo—and it should involve closure, it should involve Congress, and it should involve some combination of trial, repatriation and release—I'd just as soon try not to take fixing it as our baseline for all detention measures going forward.
Now, what of preventive detention (either for those still in Gitmo or, more to the point, for anyone we might pick up tomorrow)? The view that the current web of domestic and international laws regarding detention (a key area of dispute) is insufficient for dealing with the detention needs of international counterterrorism is, to say the very least, contested. And for reasons I'll get to in a next post about a national security court, I think most arguments in favor of broader detention authority just don't hold water. In the meantime, I'd like to know whether Jack, John, et al. think even a next administration (with necessarily less international-law lethal baggage than this one) will be able to overcome hurdles of trying to negotiate a new framework here with an international community that has failed to reach consensus for decades even on the threshold question of what we mean by "terrorism." Perhaps more to the point, which do they think is more likely to come sooner—a new international legal framework or the next attack?
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After reading the March 2003 memo (NYT and WP), I feel like the youngest kid at Passover dinner, who by tradition asks the question "How is this night different from all other nights?" Except that in this case, I'm left with the question of "How is this torture memo different from all the others we've read so far?"
I agree with Marty that the answer has to do partly with the bureaucratic manner it which it was conceived, authored, published, and classified. It's highly unusual for such a broad statement of administration policy to be issued over the signature of a deputy assistant attorney general—and that such a low-ranking official would basically be speaking for the Justice Department and the White House on these issues through the interagency process to the Pentagon. So, this memo is different to the extent that it didn't come from Alberto Gonzales or Jay Bybee or someone else of significant rank.
It's also different because it appears to have been conceived entirely by the super-secret-squirrel (a military doctrinal term) working group of lawyers that included David Addington, John Yoo, and a handful of others. That cloistered environment facilitated much of the legal reasoning in the memo; it also ensured it would be highly classified and kept from public view for a long time.
But what about the legal reasoning? Is this really any different from other memos we've seen (and written about) so far? It's certainly longer. And as Orin points out, it alternates between solid and shaky analysis. But in general, I think Emily's right that this reflects the same broad, sweeping rhetoric we have seen before in other torture memoranda hatched in the White House, Justice Department, and Pentagon. What makes this memo significant, I think, is the way that Defense Department (and other government agency) personnel relied on this memo to create the detention and interrogation regime at Guantanamo, Abu Ghraib, and Bagram Air Base.
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Today's Washington Post reports that the Bush administration has decided to charge Ahmed Khalfan Ghailani with before a military commission at Guantanamo Bay for acts committed before Sept. 11 -- to wit, his alleged participation in the bombing of the U.S. Embassy in Tanzania. According to the Defense Department, Ghailani will be charged with conspiracy, murder, attacking civilians, destruction of property in violation of the Law of War, terrorism, and material support to terrorism, among other charges. The Post reports:
Ahmed Khalfan Ghailani, who was held in secret CIA custody for more than two years before arriving at Guantanamo Bay in late 2006, was accused of plotting and carrying out the embassy bombing as part of his work for al-Qaeda and Osama bin Laden. The attack, on Aug. 7, 1998, killed at least 11 people and injured nearly 100 more.
Ghailani was also accused of later going to al-Qaeda training camps in Afghanistan, working as a bodyguard for bin Laden and forging documents for other terrorist conspiracies. At one time, he was on the FBI's 25 Most Wanted list and had a $5 million bounty on his head. He was arrested in a raid on his home in Pakistan in July 2004.
Almost all of his alleged "war crimes" occurred before the Sept. 11 attacks, and most predated the nation's fight against terrorism. Four co-conspirators in the Tanzania bombing were convicted in U.S. federal courts. Ghailani, too, was indicted in the United States, but federal authorities have opted to try him before the commission, composed entirely of military officers.
I'll be very interested to see how the Bush administration's lawyers argue their way around the provision of Article I that reads "No Bill of Attainder or ex post facto Law shall be passed". Setting aside the myriad objections to the military commissions generally, and this case specifically, I think this is going to present a major hurdle for the government.
I'm also concerned about the deliberate decision to take this case away from federal prosecutors (who have already scored four convictions -- that's four more than Team Gitmo, in case you've lost count) in favor of the military tribunals at Guantanamo Bay. In my opinion, our default choice for the prosecution of suspected terrorists should be federal court. The Moussaoui prosecution was an anomaly; many, many terrorism prosecutions have gone forward through trial and convictions, including United States vs. Bin Laden (in absentia). The substantive and procedural due process granted by federal courts has strategic value -- it confers legitimacy on the outcome. That legitimacy matters for the struggle against terrorism, and I think it's crucial that evaluate our prosecutorial decisions with that strategic calculus in mind.
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[Benjamin Wittes] To the extent the eventual convictions of KSM et al rely on coerced testimony, even indirectly, I agree with you, Emily, that the Defense Department should not put them to death. The hard question is what to do if, notwithstanding their brutal treatment, the military commissions can deliver "clean" convictions that do not depend on coercion at all. There are several ways this could happen. The first is that the defendants-some of whom have evinced significant pride in their acts-do not contest the allegations against them, but actively take credit for them. This is what KSM did in his combatant status hearing and also what Richard Reid did in federal court and two other detainees tried to do in prior military commissions. It strikes me as a plausible, even likely, disposition for at least some of the 9/11 defendants.
The second possibility is that prosecutors may be able to convince a military commission-as civilian prosecutors convinced a judge and jury in Jose Padilla's case—that the evidence they are presenting is in no way tainted by the circumstances of the defendants' initial interrogation. So while I agree with you that this country shouldn't "be a place where people are sentenced to die based on a prosecution that is tainted by torture testimony," that doesn't seem to me to end the inquiry. These cases could raise a different question: whether the fact of having been tortured-or something close to it—renders one ineligible for the death penalty, no matter how culpable one is and no matter how well-scrubbed one's criminal trial might be. I hate the death penalty enough that I have trouble answering that question dispassionately, but I think my answer is that it probably doesn't—that is, if the conviction is truly unaided by the fruits of coercion, I would not fight execution based on the fact of the coercion having taken place (though I would, as described earlier, have grave anxieties about execution in these cases for other reasons).
That, of course, raises the question of whether the rules of the tribunals created by the MCA are strong enough to make sure that convictions are not tainted. The answer is, well, maybe. In theory, they could stand to admit a fair bit of coerced testimony if the presiding judge deems it probative and reliable given the totality of the circumstances. But that very standard also allows a lot of litigation over the reliability of a given piece of evidence and its probative value under the circumstances under which authorities got it. The result of that litigation could well be that the tainted stuff stays out. In other words, I can imagine unfair trials under the MCA or very fair trials under it. So all the rhetoric aside, I don't think we'll know until trials actually happen how fair or unfair the system really is.
The truth is that a lot of trial systems have rules that permit horrifying unfairness under the worst circumstances. A few years ago, I did a series of editorials for the Washington Post about procedural rules in Virginia criminal cases under which more than 10 percent of convicts used to lose their right to appeal because of lawyer errors in filing appellate documents. The process of restoring these defaulted appeals would generally cause the inmates to lose all ability to file habeas corpus actions. (The rules have since changed.) Nothing in the MCA is that indefensible, in my opinion—yet we don't generally talk about Virginia rules as so pervasively unfair as to render trials conducted in the state as per se illegitimate. We treat each case on its own merits. While I do suggest substantial changes to the MCA in my forthcoming book (about which I'm grateful for Emily's kind words), I'm inclined to view trials under it as warranting at least that level of confidence.
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Ben, you posed great questions the other day
about the 9/11 plotters, their culpability and appropriate punishment,
the due process that the military tribunals set up to try them could
deliver, and, especially, what "real due process" would look like for
them. For me the answers to the first two questions are tied up in each
other. Because of my doubts about the procedural protections to be
afforded KSM et al, in particular the influence of torture testimony
on their trials (whether or not it's directly admitted), I don't
think they should be executed, despite their culpability. I just don't
want this country to be a place where people are sentenced to die based
on a prosecution that is tainted by torture testimony.
There are a lot of hard questions that this sliver of certainty
doesn't address: What's supposed to happen to these detainees, then,
and your crucial question, what due process should they get?
I'm only beginning to stumble toward my own answers. I know you've
thought a lot more about this than I have, thanks to the
impressive-looking advance copy of your new book, Law and the Long War,
that is sitting on my desk. We probably come out in different places on
various points, but I'd love to hear your thoughts whenever you think
the time is right. (And everyone else's, too, of course.)
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Emily’s brief post raises several fascinating questions, which seem to me to warrant fleshing out. The key sentence is the following: “if the government executes these men [the 9/11 plotters] after the coercive interrogation (torture) some of them experienced and all the failings of the this-ride-only military tribunals set up to try them, the damage Guantanamo has done to the reputation of our justice system will be raised by a power of ten.” But that specter, she writes may concentrate the mind. So “maybe the threat of the death penalty is the best hope that they will get some semblance of real due process.”
So here are my questions—to Emily and to all:
1) Whatever people think of the death penalty, should the circumstances of these detainees’ interrogation ameliorate their sentences? I can see why we would want to suppress evidence obtained under duress. I’m not sure I see why being coercively interrogated—even tortured—lessens one's culpability for September 11, assuming that culpability can be proven without relying on evidence obtained improperly.
2) Are we really so confident that these tribunals are incapable of delivering a semblance of real due process? Are they really that different from other ad hoc tribunals countries have set up to deal with extraordinary international criminal trials? Nuremberg, after all, was a this-ride-only military tribunal and we think of it as a triumph of international justice. Do we really think fair trials are impossible under the Military Commissions Act and, if so, why?
3) What would “real due process” look like for these defendants at this time?
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Like Ben and Eric, I felt a certain appreciation for Mukasey's odd riff about how he "kind of hope[s]" the 9/11 plotters don't get the death penalty because they're like masochists who want it, which would make the US a sadist in doling it out. First of all, he's right. And also, if the government executes these men after the coercive interrogation (torture) some of them experienced and all the failings of the this-ride-only military tribunals set up to try them, the damage Guantanamo has done to the reputation of our justice system will be raised by a power of ten. I wonder, though, if in some upside-down way it's useful that the government is seeking the death penalty. Nothing concentrates the mind like a killing, including, perhaps, the minds of the military appointees and eventually (one hopes) Supreme Court justices who would have to allow these executions to take place. So maybe the threat of the death penalty is the best hope that they will get some semblance of real due process. Distressing as that is, it's better than the alternative.
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What do you all make of Attorney General Michael Mukasey’s reported comments in London last week that the 9/11 plotters the Pentagon will be trying at Guantanamo Bay should not be executed even if they’re convicted? These are the same terrorists who’ve been charged with capital crimes. Our friend Doug Berman is not amused. He finds Mukasey’s rhetoric particularly offensive in that the AG compared the terrorists to masochists and the American prosecutors to sadists.
“Because many of them want to be martyrs, and it's kind of like the conversation … between the sadist and the masochist. ... The masochist says hit me and the sadist says no, so I am kind of hoping they don't get it.”
I am hesitant to read too, too much into Mukasey’s comments as I suspect he was just trying to be clever and perhaps this is what passes for a charm offensive when Bush administration officials visit Europe these days. I know Doug disagrees with me. And it certainly is less than smart for the AG to undermine the capital prosecution at Gitmo in the eyes of the world. Thoughts?
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Despite the years that I've labored in the law of crime, today marks the first time I find myself on a "Convictions" list. Happily, I've assumed the label not in a court of law but in this court of public opinion just launched by Slate. The brains behind this new blog is that lawyer-journalist-veteran extraordinaire, Phillip Carter. My heartfelt thanks to Phil for this opportunity to join what promises to be a spirited online discussion on matters of law, criminal and otherwise.
A brief "Who am I?" to begin my end of this dialogue: Visiting professor of law at the University of California-Berkeley School of Law, on sabbatical from my steady gig as professor of law at the University of California-Davis School of Law (Martin Luther King Jr. Hall). Trained as a federal criminal defense lawyer, I specialize in the study of law's responses to globalization, paying particular attention to how national, regional, and international legal regimes interact as they endeavor to combat atrocity and cross-border crime. Subjects of my recent publications range from Guantánamo and Abu Ghraib to U.S. courts' consultation of extranational norms to the impartiality deficit in international criminal justice. These days I'm at work expanding an earlier biographical study of John Paul Stevens, the U.S. Supreme Court justice for whom I, along with "Convictions" colleague Deborah N. Pearlstein, had the privilege of clerking.
Along with two dozen other women who focus on international law, policy, and practice, I'm a proud member of the year-old IntLawGrrls blog, where I expect to cross-post many of my "Convictions" contributions.
Looking forward to e-talking.
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With many thanks to Phil Carter for putting together Slate's new contribution to the legal blogosphere, I guess I'll begin by taking Phil up on his offline suggestion, viz. you might want to begin by saying something about who you are and why you're here. Roger that, Phil.
So first, it must be said, I am a late-comer and relative neophyte to the blog genre. I've tried once or twice—OK twice—but only at others' instigation. There was this, at the invitation of Opinio Juris and in response to State Department legal adviser John Bellinger's blog on all matters international law, human rights, and counterterror. (You'll have to scroll down.) And earlier, there were these first entries from Guantanamo Bay in late August 2004 (again, scroll down) at the wise insistence of Human Rights First's then-communications director, Jill Savitt. To be fair, I didn't even really "write" much of this myself; the posts were phoned in to Jill late-night from the semiprivacy of my own room on the leeward (read mostly empty) side of the U.S. naval base there. It had taken us close to two years to convince DoD to let us send some human rights monitors down to Gitmo to watch the opening of military commission proceedings. We weren't sure at that point if they'd let us have e-mail access from the base (or if we wanted to take advantage of it if they did). So we did as good human rights researchers do and took our own satellite phones. If nothing else, we'd call in news of all motions filed when we stopped in for Egg McMuffins en route to the "courthouse." In any case, I'll ask to beg a month or two of indulgence as I get used to the blog-it-yourself idea here.
Point 2, then, must be some explanation of why I'd be blogging with John Bellinger and what I was doing eating Egg McMuffins at Gitmo in August 2004. (A further digression to say if you think those two items are at all of interest, you either don't spend enough time reading the rest of the news on Slate and/or will find my future posts of potential interest.) The immediate answer is that I spent from 2003-2006 (and a little of 2007) setting up and directing the Law and Security program at Human Rights First, a New York-based NGO formerly known as the Lawyers Committee for Human Rights that thought (and I believe still thinks) that parts of the United States' counterterrorism response to 9/11 were concerning enough to start a domestically focused program at an organization whose major work to date had been largely about protecting international refugees, figuring out how to do justice for the victims of crimes against humanity, and supporting human rights defenders interested in, say, finding disappeared relatives in places like, say, Guatemala. Mine was a wonderful and horrible job.
I didn't start out as a human rights lawyer. My first job after college was, of all things, writing letters, messages, and eventually speeches for then-President Clinton. No, I didn't work in the West Wing. But I did have a blue badge. No idea if that still means anything in the post-'90s White House. From there it was off to law school, which I loved, and soon thereafter to clerking for Justice John Paul Stevens, which I loved even more. And though I thought I wanted to go straight to academia to teach constitutional law, I also thought it might be wise to learn anything about how to practice law first. So to a few mostly happy years at a law firm that let me do a marvelous amount of pro bono work and even some interesting paid cases involving some actual constitutional law as well. And just as I was starting to think about when to take the academic plunge, 9/11 happened. And there followed, it seemed to me, some of the most important constitutional events I was likely to see in my lifetime. And so it was I came to meet Phil, one of the many and inspiring members of the military I came to know while in human rights practice. And so it is that several years later than I'd intended, I find myself tip-toeing back to academia, at the moment under the very generous auspices of the Law and Public Affairs program at the Woodrow Wilson School at Princeton University.
That's got to be plenty to start. Ah, but for one other feature of my bio that I should forewarn may draw my blog focus in the appropriate season (and on rare occasion) away from government power and individual rights and toward, my apologies, what legal matters may arise in a certain professional sport. The Indianapolis Colts and I moved to Indiana the same year. Unbeknownst to the team, we have been attached ever since.
Biases I hope fully revealed, I look forward to the blogging adventure.