Archive for
July, 2007

“Sex for the Motherland” and Assessing the Causes of Russian Foreign Policy

by Chris Borgen

The Specific Costs of Arbitrary Detention and Torture: A Response to Eugene Kontorovich

by Ariel Meyerstein

[Ariel Meyerstein received his J.D. from Boalt Hall (2006) and is currently a PhD candidate, Jurisprudence and Social Policy Program. His recent scholarship includes, “Between Law and Culture: Rwanda’s Gacaca and Postcolonial Legality,” 32 Law and Social Inquiry 467-508 (2007), “Transitional Justice and Post-Conflict Israel/Palestine: Assessing the Applicability of the Truth Commission Paradigm,” 38 Case Western Reserve Journal of International Law 281 (2007), “The Law (and Lawyers) as Enemy Combatant(s),” University of Florida Journal of Law and Public Policy (forthcoming).]

In this reply, I do not want to take on Kontorovich’s whole argument, but rather nit-pick on the factual foundations, since these largely set the stage for where sympathies align in the debate about Guantánamo and the “war on terrorism.”

I have spent the last few months in London at Reprieve, assisting in the representation of detainees. This has afforded me time to get a really clear view of this process, so I would like to shed some light on some factual inaccuracies related to (a) Kontorovich’s suggestion that the “initial round-up of combatants during the invasion of Afghanistan was not the blind and capricious sweep it is sometimes made out to be,” and about (b) the post-GTMO life choices of some of its former inmates, which Kontorovich also alluded to (“It turns out that he is one of many Gitmo alumni to resume their violent ways”). I take one detour along the way regarding diplomatic assurances, but it’s brief.

I want to emphasize that the parts below analyzing detainee figures are not my own analysis, but synthesize the excellent research of Joshua and Mark Denbeaux (a professor at Seton Hall), who have produced five excellent studies of the detainees. Journalist Andy Worthington also criticizes the West Point report that Konorovich cites, here.

Releasing Detainees to…Torture

First off, to bring some different context to this discussion, we should also keep in mind the very troubling developments relating to individuals released from Guantánamo not discussed by Kontorovich, namely those whom the United States is sending back to countries like Tunisia where they are thrown into detention and tortured despite “diplomatic assurances” to the contrary. This is what the military did to one of my clients, Mr. Abdullah bin Omar al Hajji, who was returned in the middle of the night, without warning to counsel, even though his lawyers (my colleagues) were actually at GTMO the day it happened. The military informed us only two days later, after the deed was irreversible. Among other things, Abdullah, a father of eight has been beaten and threatened that his wife and daughters will be raped, and that they will be arrested and brought to prison to watch him get tortured (For more, see recent news coverage; on the fate of others released under diplomatic assurances see a 2007 Human Rights Watch report, and this 2005 report on diplomatic assurances more generally).

As a side discussion that cannot be done justice to now, I would note that the whole issue of diplomatic assurances really deserves more scholarly attention. Other than as outlined in skeletal form by the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) with respect to deferrals (and terminations of such deferrals) of removal of aliens to countries where they might be tortured (see 8 C.F.R. §§ 1208.17(f) and 1208.18(c)), there are literally no procedures or statutory provisions governing how diplomatic assurances are to be handled. There are definitely no statutory procedures with respect to removals from Guantánamo, though some of the Guantánamo litigation (in particular, Khalifh v. Gates) has produced a sense of this in the form of a declaration from the Ambassador-at-Large for War Crimes Issues, Clint Williamson, who is chiefly responsible for obtaining the assurances.

Arguably, if an individual at GTMO is “cleared” for release/transfer, than they are no longer enemy combatants and were they to apply for asylum to the United States (as some of our clients have), they would be denied and found to be inadmissible aliens – what else would they be? The 3rd Circuit, relying upon St. Cyr has found that federal district courts retain jurisdiction over the Convention Against Torture claims of non-refoulement that FARRA creates causes of action for within habeas proceedings. See Ogbudimkpa v. Ashcroft, 342 F.3d 207, 217-220 (3d Cir. 2003) (noting that “because § 2242(d) of FARRA fails to state explicitly that a district court may not exercise jurisdiction over habeas corpus claims or mention 28 U.S.C. § 2241, the District Court retains that jurisdiction”).

A recent decision by a district court in New Jersey raised this very issue in the removal order context, questioning whether or not diplomatic assurances are compliant with the Convention Against Torture. See Khouzam v. Hogan, 2007 U.S. Dist. LEXIS 43570 (2007) (CV-07-0992).

IF (and that’s a BIG if), the Supreme Court finds the Military Commissions Act unconstitutional this fall, this should clear the way for some interesting habeas-based CAT claims to be made to prevent the transfer of certain individuals to places like Tunisia and Algeria (that is, if they haven’t all been transferred out before the SCOTUS has a chance to rule).

Back to the heart of the matter.

The True Scope of the “Sweep” and the Problems with the West Point Study

Kontorovich cites the West Point study, which concludes that 73% of detainees were a “demonstrated threat” to U.S. forces and no less than 95% were a “potential threat.” Kontorovich also cites Pentagon figures that at least 30 former Gitmo detainees have returned to fight Americans after deceiving U.S. interrogators and being released.

As the New York Times coverage notes, the West Point authors were tasked with coming up with a response to the Denbeaux studies, and not surprisingly, like many of the administration’s arguments, the desired policy outcome drove the fact-gathering(or production of ‘facts,’ as the case may be). As in other instances, what resulted was a full-blown propaganda:

Lt. Col. Joseph H. Felter, the director of the Combating Terrorism Center and a West Point faculty member, said the new report was an independent evaluation conducted without Pentagon supervision. Colonel Felter acknowledged, however, that military officials had indicated they wanted to contest the Seton Hall report. “They had been getting a lot of inquiries related to this previous study,” he said. “They had a lot of concerns with the conclusions, but they did not have another study.

The West Point Study of course totally ignores the whole point now at issue, namely, the significant issues the courts are dealing with regarding the adequacy of the Combatant Status Review Tribunals as a substitute for habeas corpus. I won’t get into that (but see the links to the Denbeaux studies above for more). I will only address the fact-gathering aspect of the CSRTs, which is what leads to the Denbeaux conclusions and the contorted-West Point version of it.

So Where Do the Numbers Come From, Anyway?

It might also be useful to review the way the “evidence” used in the CSRTs is produced according to the Detainee Treatment Act of 2005, which is where the raw data for both the Denbeaux and West Point studies originates:

Symposium Issue on National Security Law

by Kevin Jon Heller

The World’s 15 Greenest Cities

by Kevin Jon Heller

A Groundbreaking Holocaust Film?

by Kevin Jon Heller

The Good, the Bad and the UNgly

by Eugene Kontorovich

The Nazis are Gone. Jews Aren’t.

by Kevin Jon Heller

Legitimate Conquests?

by Eugene Kontorovich

Specific Costs and Diffuse Benefits

by Eugene Kontorovich

Realism About Torture

by Chris Borgen

Forgiving Amensty

by Eugene Kontorovich

“Fourth Generation Warfare” Resources and MountainRunner Reviews “No End in Sight”

by Chris Borgen

Opinio Juris Welcomes Professor Eugene Kontorovich

by Chris Borgen

False Transparency at the WTO

by Roger Alford

No End in Sight

by Chris Borgen

The Chiquita Mess Gets Messier Still

by Kevin Jon Heller

The Return of Secret Squirrel!

by Chris Borgen

Law Blog Happy Hour at LSA Berlin: Wednesday, July 25 at 9pm

by Peggy McGuinness

Should Our Children Learn Chinese?

by Roger Alford

Japan Officially Joins the ICC

by Kevin Jon Heller

Cambodian War Crimes Court Gets Going

by Duncan Hollis

The Future of Enhanced Interrogation Techniques and A Separation of Powers Question

by Duncan Hollis

When is a Bulgarian Not a Bulgarian?

by Duncan Hollis

A Few Thoughts on Super Friends, Elders, and St. Crispin’s Day

by Chris Borgen

What is Your Carbon Footprint?

by Roger Alford

On Winning, Losing, and Things Inbetween: A (Preliminary) Comparative Legal Analysis of Morse v. Frederick

by Ronald Krotoszynski

[Ronald Krotoszynski is Visiting John S. Stone Chair of Law, University of Alabama School of Law & Professor of Law, Washington and Lee University School of Law. His recent scholarship includes The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech (NYU Press 2006)]

In the United States, we have a decided tendency to prefer clear winners and losers–as opposed to vexatious ties. Yet, not all contests end with a clear winner or a clear loser. Some end in draws. And, in the law, some “draws” have quite significant implications that go well beyond the naked result. So it is with Morse.

The mass media generally reported Morse as a loss for advocates of student speech rights. The reality is a great deal more complicated. To be sure, Chief Justice Roberts wrote a majority opinion that found, on the facts presented, against the student (Joseph Frederick) and in favor of the high school principal (Deborah Morse). In order to reach this conclusion, Chief Justice Roberts first found that the speech at issue took place on school grounds, slip. op. at 5-6, and that the speech, a sign proclaiming “BONG HiTS 4 JESUS” could be reasonably understood to have “advocated the use of illegal drugs,” slip op. at 7. With the facts thusly stated, the “question thus becomes whether a principal may, consistent with the First Amendment, restrict school speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” Slip op. at 8. And, as the media reported, Chief Justice Roberts concluded that given the social problems associated with illegal use of illicit drugs, such as marijuana, by minors in the contemporary United States, a high school principal could censor speech that advocates the use of such substances at an official school event. Slip op. at 12-15.

Indeed, when so framed, the case is not particularly interesting. Chief Justice Roberts openly acknowledges that “[s]tripped of rhetorical flourishes, then, the debate between the dissent and this opinion is less about constitutional first principles than about whether Frederick’s banner constitutes promotion of illegal drug use.” Slip op. at 15. Would anyone seriously suggest that a student could unfurl a banner proclaiming “Just Do It!,” borrowing an old Nike advertising slogan as a double entendre, at a school-sponsored gymnasium rally for an official school sanctioned “abstinence until marriage” program? Thus, the key to Morse was in the two crucial baseline characterizations: 1) deciding that the banner, which was unfurled off campus property (across the street) but during regular school hours, constituted “school speech” as opposed to speech in a public forum, and 2) interpreting the speech to seriously advocate the use an illicit drug (marijuana). These were as much cultural as legal questions, and one might well predict that, in another culture, these questions could have different answers.

As a thought experiment, one of the permanent contributors asked me to consider whether Morse would likely have been decided in the same way in other nations sharing a strong commitment to protecting the freedom of speech. It’s an excellent question and one that merits serious consideration because it helps to demonstrate the importance of culture to law, even when two nations share a common legal (or constitutional) commitment.

For example, it seems highly likely that the case would come out much the same in Japan, notwithstanding the significant cultural differences that exist between the United States and Japan. That is not to say that culture is irrelevant. As a preliminary matter, the course of events giving rise to Morse would be very unlikely to arise in Japan at all because the social pressure against disrupting a major community event, bringing down embarrassment and shame for the entire community, would mean that no kid would even THINK about unfurling such a banner as the Olympic torch passed through town (perhaps prior to the Nagano Winter Olympics, rather than the Salt Lake City games). In all probability, the only way similar events would occur would be if the banner were part of some organized protest by a subgroup. Suppose that some farmers were displaced to build a new Olympic venue in Nagano—it is entirely possible that farmers from that community, as a group, would protest with a sign in public. But then you’ve changed the material facts! A second reality in Japan would be a lengthy delay between the discipline and the ability of the plaintiff to obtain a trial and intermediate appeal; Frederick would likely have finished college by the time the case reached the Supreme Court of Japan. But, leaving aside objections about the probability of similar behavior occurring or the timing of the decision, would the outcome look any different in Japan? Probably not, and here’s why.

The Litvinenko Extradition Spat: How Much Protection Does Citizenship Buy?

by Peter Spiro

More on Domestic Terror Courts

by Roger Alford

U.S. Resolve in WW II — and in Iraq

by Kevin Jon Heller

Russian Treaty Lawyers Work Lots of Overtime

by Duncan Hollis

UK: We’re Going to Lose Afghanistan

by Kevin Jon Heller

Debunking the Fear-Mongering on the Law of the Sea Treaty

by Chris Borgen

Blogs Get Results

by Roger Alford

Sulmasy on National Security Courts

by Chris Borgen

Dubai: Sporting Paradise — With a Price

by Kevin Jon Heller

Britain: Wigs Out

by Peggy McGuinness

Size Matters

by Roger Alford

Is America Ready for a Real Internationalist on the Supreme Court?

by Peter Spiro

UK: The Killer Badgers in Iraq Aren’t Ours

by Kevin Jon Heller

ECtHR Hears Important Torture Case

by Kevin Jon Heller

Goldsmith and Katyal Propose a “National Security Court”

by Roger Alford

Defending the American Way of Teaching International Law

by Peter Spiro

Balkinization’s Anti-Torture Memos

by Chris Borgen

Oceania’s Security: Posts on the “Arc of Instability” and the Rise of China

by Chris Borgen

Death Penalty for Non-Violent Crime

by Roger Alford

UN Global Compact Summit: Does/Should Anybody Care?

by Peter Spiro

Yellow Fever at the WTO

by Roger Alford

Alien Tort Trial Starts in Alabama

by Peggy McGuinness

What is an International Labor Violation?

by Roger Alford

International Issues and Domestic Criminal Defense: A Guide For Practitioners

by Peggy McGuinness

Any Opinio Juris Readers in Vienna?

by Kevin Jon Heller

Australia, Oil, and the Iraq War

by Kevin Jon Heller

Feux de Joie

by Roger Alford

DOJ Wants the Death Penalty in Prosecution of Soldier

by Kevin Jon Heller

Just When You Thought It Was Safe to Go Outside . . . Goldsmith and Rabkin on the Law of the Sea

by Peter Spiro

The Lobster and Caviar Summit

by Roger Alford

LRA Leader Was a Child Soldier Himself

by Kevin Jon Heller

Trespassing in Sweden

by Roger Alford