Author Archive for
Bobby Chesney

Closing Thoughts on the Road Ahead

by Bobby Chesney

I want to close by thanking Ben for writing this terrific book, and our hosts here at OJ for sponsoring this discussion.  Before sigining off, however, I want to offer a few predictions and related observations about the road ahead.

It appears quite possible that in the near future we will substantially reduce our reliance on military detention for terrorism suspects at least insofar as they are captured outside of Iraq and Afghanistan (I predict that no matter who wins the next election, we are not going to abandon or even substantially alter our detention practices in either of those theaters). 

Assuming that this change is not accompanied by adoption of a hybrid detention framework along the lines Ben has proposed, this will result in increased pressure on DOJ to identify grounds for prosecution (I predict that no matter who wins the next election, there will still be substantial interest in preventive incapacitation rather than just surveillance of terrorism suspects (though you should listen to this story by Ari Shapiro on NPR Morning Edition for the view that FBI may be leaning in the latter direction these days as it grows into its intelligence-gathering responsibilities)). 

We may then go a substantial period without any further attacks in the US.  In that case, I predict that we will see a growing trend of criticism attacking the substantive scope of federal criminal law relating to terrorism, particularly as it relates to conspiracy and material support prosecutions, and in general a greater backlash against the prevention-oriented framework of current counterterrorism law. 

Sooner or later, however, we will again suffer a strategically-significant terrorist attack in the US (or a series of smaller attacks, akin to the Beltway Sniper, that collectively have a strategic impact).  At that point, we will experience tremendous pressure either to revert to our post-9/11 practices or perhaps even undertake more draconian measures.  When that moment comes, I hope that we heed Steve’s warning not lose sight of our past problems and abuses.  If we can do that, though, I believe the result will be to draw us toward just the sort of proposals that Ben has set forth in Law and the Long War.  I am predicting, in short, that the conversation we’ve had this week will be relevant for a very long time to come.

War Zones, Substance, and Procedure in Terrorism Prosecutions

by Bobby Chesney

I’d like to explore a bit further the question of what stands in the way of reliance upon domestic criminal prosecution as the primary detention mechanism. First, however, I want to be clear that I do not think that we should entirely forgo military detention with respect to persons captured in connection with the two, relatively conventional armed conflicts currently underway in Afghanistan and Iraq, at least not when US forces are the ones involved in the capture.  I’m not sure if anyone involved in this week’s debate thinks otherwise–Ben, Deborah, and others have all referred to their being an appropriate place for the traditional approach to military detention, and I assume that this is what they have in mind.

That said, the question becomes whether to revert to a traditional prosecute-or-surveil approach or develop a hybrid framework, when dealing with persons captured outside the conventional combat setting (e.g., Boumediene and other GTMO detainees who were arrested in Bosnia).  It seems to be common ground that it is good policy, at least, to use the domestic criminal justice system if at all possible, and that the heart of the debate concerns whether there truly is, as Ben contends, a set of cases where that system won’t result in detention despite a manifest need to incapacitate a dangerous person.

That question has precipitated a recent outpouring of discussion regarding the substantive and procedural scope of the domestic prosecution system…

Judge Wilkinson and the Ambiguity of the “Conduct that . . . Aims to Harm” Criterion

by Bobby Chesney

Procedural safeguards and substantive detention criteria exist in a dynamic relationship. One can ramp up procedural safeguards, for example, but this may have little effect on the government’s capacity to detain if the substantive detention grounds are defined sufficiently broadly. And by the same token, an unduly strict definition of who may be detained will limit the utility of a detention system no matter how flexible its procedural features may be. Accordingly, I think that Marty is quite right when he argues here and here that this is a crucial issue.

In both posts, Marty draws attention to Judge Wilkinson’s opinion (concurring in part and dissenting in part) in al-Marri, which offers a set of detention criteria that “conform to the evolving principles of the law of war” and that “should avoid . . . constituitonal concerns” even as applied to “detention of an enemy combatant apprehended on American soil.” (slip op. at 175-76). Marty predicts that these criteria, or something like them, may become “the standard that courts will employ in the habeas cases and elsewhere.” What are these criteria?….

Complexity in the Afghan-Pakistan theater and the Role of the War Model in the War on Terrorism

by Bobby Chesney

We’ve not said as much as we might about the role of the “war” model in the war on terrorism.  And so, before we move on to more specific topics tomorrow, I’d like to share a few final thoughts inspired by an article by Bruce Hoffman and Seth Jones that appears in the most recent issue of the National Interest.

Discussion of the war in Afghanistan all too often assumes a relatively simplistic model in which the Afghan government, the U.S., and their allies are engaged in conflict with a single enemy force: the resurgent Taliban, with perhaps some degree of support from al Qaeda remnants in Pakistan.  Hoffman and Jones’ article–Cellphones in the Hindu Kush [subscriber access only, alas]–provides a useful corrective to that view, emphasizing the true complexity of the situation.  They report as follows…

Should Judges or Congress Elaborate the Procedural Details of Habeas Review?

by Bobby Chesney

I want to explore Ben’s point about the desirability of having Congress craft the remaining details of how habeas review will function (now that Boumediene requires such review) rather than having judges craft those rules in the first instance.

There are indeed a raft of difficult procedural questions to be resolved in connection with the habeas review required by Boumediene.  As I discuss here, the government and the detainees recently filed briefs addressing a preliminary set of five such issues, including discovery, hearsay, confrontation, burdens of proof, and triggers for evidentiary hearings.

Judicial resolution of such questions may well result in a reasonable and well-designed detention review framework.  Or it might not.  Experience with the resulting system will tell us for sure, but that brings us to a reason one might prefer to have the legislature craft these rules in the first instance, rather than judges: it may be that we will wish to revisit these issues in light of experience, and that will be far easier to do if they are statutory rather than the result of a judicial opinion that purports to derive them from the Due Process Clause or from the constitutionally-protected aspect of habeas itself–especially if the statutory approach includes a sunset that compels Congress to revisit the issue after a certain period…

The “War” Model, Iraq’s Role, and the Need for Strategic Focus

by Bobby Chesney

Thanks to Chris and his colleagues at OJ for giving me an opportunity to participate in this important discussion.

Today we’re focused on broad premises underlying the book, and in particular the utility of using the concept of war in connection with counterterrorism policy.  Peggy’s most recent post critiques the Bush Administration’s emphasis on the war model, concluding that “the framing of our current counterterrorism policy as a “war” — including the legal policies Ben effectively critiques in the book — has cost the U.S. more in terms of prestige, reputation, support from allies and cooperation from other foreign states than it has gained us.” Perhaps so, but I’d like to press on that claim a bit…

The State Secrets Privilege and the Deference Thesis

by Bobby Chesney

I appreciate Adrian’s thoughtful response to my post on military detention, and would now like to shift gears to a distinct topic of at least equal current significance: the state secrets privilege (“SSP”).

We could have a whole symposium on this issue alone, no doubt. In fact, we had one a few months ago over at my usual blogging abode, National Security Advisors; I strongly recommend that exchange for anyone who wants to get down into the details of the SSP debate. I do not propose to rehash the entirety of that debate here, though, but instead simply to flag this topic as one in which the deference thesis is currently in issue in live litigation; anyone who has listened to last week’s oral argument in Hepting v. AT&T Corp, before a Ninth Circuit panel, will appreciate that there continues to be great uncertainty even among judges with respect to (a) the doctrinal details through which the SSP is implemented and (b) the separation of powers principles that should give rise to those details (see in particular the exasperated exchange between Judge Pregerson and Dep. SG Garre with respect to the deference judges owe in this context).

According to the Supreme Court’s 1953 decision in Reynolds, the substantive test for application of the privilege is whether disclosure of the information in issue poses a “reasonable” risk of harm to national security. As a formal matter, the existence of such a risk must be expressly asserted by the head of the agency or department with responsibility for that information (the DNI, for example). At the same time, the majority in Reynolds expressly rejected the proposition that the mere assertion of the privilege by the executive should bind the court; whatever deference the executive official should receive, it ultimately is the responsibility of the court to decide whether the reasonable-risk predicate truly has been satisfied.

Assuming that description of the doctrinal status quo is correct, would the deference thesis require a shift in the doctrine such that the executive invocation of the privilege becomes dispositive? I’m not sure that this is so—perhaps the thesis would cash-out in this context precisely where the doctrine already is—but if it is, then it seems to me that this would not be desirable. On one hand, the existence of at least some prospect for judicial review has a salutary effect: the possibility that a judge might reject an assertion of the privilege serves an important role in disciplining executive officials in their invocation of it, counterbalancing any temptation there might be to invoke the privilege in entirely unwarranted circumstances (something that I think would be rare, but which I would not rule out). Against that benefit, there is a potential cost: a judge might improperly reject a valid invocation of the privilege (something that I think would be rare, but which I would not rule out).

Does one consideration outweigh the other? Before answering that question, I think it is important to recall the relatively-forgiving substantive standard to which the judge holds the executive official: demonstration of a reasonable risk to national security should disclosure occur. Because that threshold is quite low, it is relatively difficult for a judge to plausibly assert that the executive official has not satisfied it (indeed, this is the cause of considerable criticism of current SSP doctrine). As a consequence, the potential for unwarranted rejections of the privilege is constrained relative to what might occur under a tougher predicate requirement. I can’t quantify the resulting costs of permitting second-guessing by the judge, and therefore can’t entirely follow through on this cost-benefit analysis. Still, this constraint on the judicial error variable gives me some reason to believe that the benefits are indeed worthwhile.

(Knowing that many readers are extremely critical of the SSP, by the way, I feel obliged to add at this point that I do think that there is room for creative measures designed to alter the SSP status quo in limited ways. I’ve argued elsewhere that Congress should consider creating FISC-like fora for litigation of certain claims that otherwise would be dismissed under the SSP, and that there might even be ways to provide expert assistance to judges engaged in the process of considering whether the reasonable-risk standard has been met in a given case.)

That probably will be my final contribution to this terrific discussion. I’d like to thank Roger and the rest of the OJ crew for having me, the other participants and commentators for their thought-provoking observations, and Eric and Adrian for making such a significant contribution to the literature.

Detention Policy, the Executive Interest in Intelligence-Gathering, and the Calibration of Procedural Safeguards

by Bobby Chesney

I’d like to steer the discussion toward the question of military detention for a moment.

Military detention has been and continues to be the subject of extensive litigation, and it therefore presents a series of occasions implicating the deference thesis. Eric and Adrian discuss the matter from several angles, including one that strikes me as particularly important: procedural safeguards (i.e., the mix of rights, procedures, and rules governing the process of determining whether a particular individual satisfies the substantive criteria for military detention).

In any fact-finding system, the applicable procedural safeguards reflect (even if only implicitly) an underlying judgment regarding the appropriate rates of false positives and negatives to be tolerated by that system, as well as a judgment regarding the mix of safeguards likely to produce such rates (all of which, of course, is but another way of stating the tradeoff thesis). From the perspective of the deference thesis, the question that arises is whether courts (or Congress) should second-guess executive determinations of the calibration most appropriate for military detention in the current security environment. Eric and Adrian note that the Supreme Court did precisely that in Hamdi, and they criticize the court for doing so (pp. 256-57). Because the question of procedural safeguards continues to be a point of special significance and sharp dispute, it seems to me that their argument on this point deserves close consideration.

As an initial matter, Eric and Adrian make clear that they concur in the need for a cost-benefit analysis regarding procedural safeguards in this context. They would leave that determination in the hands of the executive, however, in the absence of an explanation as to why judges will conduct a more accurate analysis. “One needs a theory,” they point out, “to explain why the government will weigh the relevant factors with systematic bias, as opposed to random error . . . .” (p. 256).

Hamdi does not offer such a theory (at least not expressly), and this prompts Eric and Adrian to identify and then critique an account that might explain the court’s approach: “One such theory . . . is that the government will just want to detain in perpetuity or convict before a military commission everyone the president alleges is an enemy combatant, so the procedural cost-benefit analysis will be distorted.” (Id.). They describe this account as “mystifying,” however, explaining that “[t]here is no reason to think that the executive would benefit from an excessive detention or conviction rate, or that political constraints would permit the executive to implement such a preference in any event.” (Id.) (emphasis added). Later on the same page they explain that the government has a strong interest in accurately sorting “real enemy combatants from those who are swept up in the fighting by mistake,” and that this interest involves the desire to “incapacitate and deter terrorists and attackers . . . .” (Id.)

If it were the case that the executive interest in detention were limited to the incapacitation of detainees themselves and the deterrence of others, I would find this to be a fairly persuasive line of argument. But it seems to me that the executive interest in detention goes beyond incapacitation and deterrence, encompassing also the powerful interest in gathering intelligence about al Qaeda and the like. In light of that interest, there is at least some reason to believe that the range of persons whom the government would like to detain might exceed the range of persons properly subject to detention pursuant to the traditional armed conflict rule relating to internment for the duration of hostilities. Put another way, the government’s interest in gathering intelligence may lead it to wish to detain (and then interrogate) persons whose detentions might be difficult to justify under conventional understandings of the scope of internment power.

Let’s assume this is so. So what? We need two additional premises before we can adopt this as a viable theory for why the executive might indeed preference an excessive rate of false positives in the detention process.

First, we need to assume that the government will not or cannot invoke intelligence-gathering, standing alone, as a detention predicate. That seems a safe assumption, actually, in light of the express language in Hamdi foreclosing that option (noted by Eric and Adrian at p. 254).

Second, we need an account that explains why heightened toleration for false positives might facilitate the intelligence-gathering interest. Is there such an account? Possibly so. Much of the information that would be most helpful in unwinding al Qaeda and comparable terrorist networks lies in the hands of individuals who might not easily be described as actual members of such groups, let alone individuals who engaged directly in hostile acts. Financiers, document forgers, and other components of the logistical back office for terror networks serve a critical function, and may be positioned to provide tremendously useful information about other parts of the network. Some such individuals can of course be categorized as sufficiently associated with a hostile force so as to justify detention even on a relatively strict reading of traditional detention criteria. Others, however, present a more difficult case. The weaker the procedural safeguards involved in the process of determining detention eligibility, however, the easier it becomes to finesse such distinctions (and the more intel-rich detainees in theory might come into long-term custody).

Certainly this account provides an explanation for the importation of “material support” concepts from domestic criminal law into the military detention context. Whether it also provides a plausible account for questioning executive decisions relating to procedural safeguards is less certain, but worth considering.

Operationalizing the Deference Thesis: Boundary Uncertainty and Other Difficulties that May Arise

by Bobby Chesney

[Bobby Chesney is an Associate Professor at Wake Forest University School of Law, and the Chair of the AALS Section on National Security Law. He is the author of the forthcoming article Disaggregating Deference: The Judicial Power and Executive Branch Treaty Interpretations (Iowa Law Review 2007)]

As Adrian noted yesterday in his post “First-Order and Second-Order Judgments,” he and Eric state clearly in the book that “[t]he deference thesis does not hold that courts and legislators have no role at all.” The question thus is not whether the courts and Congress are to be disabled from checking the executive branch, but rather the extent to which their checking capacity will be limited. Significantly, Eric and Adrian concede that the extent to which deference should increase during emergencies “is always a hard question,” one that “depends on the scale and type of the emergency.” Having said that, however, they note that as a general proposition the pattern of past practice suggests “very great” levels of deference are given to the executive during emergencies, and they conclude that this pattern should be continued in the current climate of mass casualty terrorism threats.

I tend to agree with the comparative institutional-competence premises that undergird this theoretical framework, and accordingly I also agree that in many if not most security-related contexts a substantial degree of deference should indeed be afforded to executive branch judgments relating to security policy. But at the risk of jumping the gun on our subsequent discussions (I gather we are to focus on the theoretical framework for now, but will engage particular applications of the deference thesis soon enough), I want to articulate a trio of concerns that arise when one considers the practical operationalization of the substantial-deference precept.

My first concern has to do with boundaries. While some executive policies or actions relatively clearly fall within the category of security-related matters to which substantial deference would apply, the precise boundaries of that category are sufficiently uncertain to give me pause. Does the principle extend to some or all aspects of immigration policy, for example?

Perhaps the boundary concern can be set aside on the ground that, by definition, it fails to speak to core applications of the deference thesis. Even so, the very notion that there are distinctly marginal and core applications suggests that policies and actions to which the thesis might be applied vary by matters of degree in their relationship to security concerns. If that is correct, it seems to me that we should be wary of a one-size-fits-all approach to deference; the grounds for deferring may be stronger in some contexts than others, and as a result the degree of deference afforded arguably should be calibrated accordingly.

That brings me to my third concern, which has to do with the practical implementation of the deference concept (whether applied uniformly or on a sliding-scale). How precisely do we operationalize any commitment we might have to strong deference? Strong deference is not binding deference in this model, and thus it necessarily remains open for a judge to break with executive preferences in some particular cases. It is difficult, however, to put into words the triggering conditions under which it would be proper for a judge to do so. This does not mean that the strong-deference obligation has no bite, of course, but it does increase the probability that substantial deference will mean different things to different actors, or be implemented by them in different ways, even when confronted with comparable policies or actions. Indeed, something very much like that can be said with respect to the very muddled record associated with the implementation of the doctrine of judicial deference to executive branch treaty interpretations. I’ll try to say a bit more about this later in the week as we turn to the particular applications of the deference thesis that Eric and Adrian offer in the book itself.

My Final Post – Growing Tensions Between U.S. and Europe

by Bobby Chesney

Today is my last day as a guest-blogger here at Opinio Juris, and so I’d like to begin by thinking Peggy, Roger, Julian, and Chris for their hospitality. I must say that I have a new respect for the effort that they put forth in generating the wonderful product from which we all benefit on this blog. Let’s hope they keep at for a long time to come.

On to more interesting matters…this just isn’t a good week for the U.S. vis-a-vis cooperation with our European allies with respect to counterterrorism. Yesterday, an Italian judge determined that a former diplomat at the U.S. embassy in Rome who was, apparently, the CIA’s Chief-of-Station at the time, should not receive the benefit of diplomatic immunity with respect to the arrest warrant issued in connection with the extraordinary rendition/seizure of Egyptian cleric Osama Moustafa Nasr. Don’t hold your breath on any U.S. citizens being extradited in connection with this case, of course. Meanwhile, both the Council of Europe and some member states continue to move forward with investigations associated with claims that the CIA operates “black site” detention centers for high-level al Qaeda detainees in undisclosed European locations (or at least transships such detainees through European airports).

That’s all for now. It’s been a real pleasure!

Executive Treaty Interpretations

by Bobby Chesney

Federal courts routinely assert that they are bound to give deference to treaty interpretations adopted by the Executive branch. See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1992) (stating that the “meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight”). And, at least as an anecdotal matter, conventional wisdom holds that the executive viewpoint does prevail in most, if not quite all, instances. But is conventional wisdom accurate on this score? I’m inclined to agree that courts do tend to conform to the executive viewpoint, but it also seems likely that the nature of judicial deference to executive treaty interpretations might vary in different contexts.

Potentially relevant variables might include: the manner in which the Executive’s “view” is made known to the court (e.g., the view might be stated by the U.S. as a litigant in its own brief; it might be stated by the U.S. as amicus; it might be stated in diplomatic correspondence that is brought to the attention of the court by private litigants; or it might be implicit in U.S. practice which is then brought to the attention of the court by litigants); whether the Executive’s “view” was presented to the Senate during the process of obtaining its consent to the treaty (an issue that generated considerable debate during the 1980s in connection with the Reagan Administration’s proposed reinterpretation of the ABM Treaty); whether the current Executive view departs from a prior view; and, of course, the subject-matter in issue. The more one thinks about these and other potential distinctions, the more it seems that it would be a mistake to view judicial deference to executive treaty interpretations as a monolithic phenomenon.

Why do I mention all of this? Well, I’ve recently drafted an essay setting forth my initial thoughts on the topic, and am now in the process of collecting cases in connection with a quasi-empirical inquiry into the matter. I’d be quite grateful for any suggestions that readers may have as I go about refining the design of this project.

A close look at the Padilla indictment

by Bobby Chesney

Although it gets us a bit far afield from the focus of Opinio Juris, I’m going to follow Roger and Julian’s lead and blog briefly regarding the Padilla indictment. (Yes, I’m still here. Sorry to have been so quite the past two weeks, but I do plan to be more active in the days ahead!)

Many months ago, there was considerable speculation that the government would obtain a criminal indictment against Jose Padilla in the Southern District of Florida, where it was known that a grand jury was investigating a circle of alleged Islamist extremists said to have links to Padilla. This has now come to pass. A grand jury in Miami has issued an indictment against Jose Padilla (and four others), and the President has ordered the Secretary of Defense to transfer him to the custody of the Attorney General. (You can get to the indictment from Roger’s post).

This is actually a superseding indictment in the existing matter of United States v. Hassoun, et al., No. 04-600001-CR (Cooke) (S.D. Fla.). Indeed, I believe it is the 5th superseding indictment, although of course it is the first to add Padilla as a co-conspirator (an earlier iteration, with charges against Hassoun, Youssef, and Jayyousi, is described in a DOJ press release here. In any event, the current defendants are: Adham Amin Hassoun (in custody), Mohamed Hesham Youssef (currently in jail in Egypt), Kifah Wael Jayyousi (in custody), Kassem Daher (not sure if he is in custody here, in Canada (where he lives), or not at all), andJose Padilla (in custody, of course).

The indictment is a fascinating example of the way in which federal prosecutors make use of existing federal statutes to prosecute persons allegedly involved, to varying degrees, with Islamist extremism.

1. Section 956:

Conspiracy to commit violent acts outside the United StatesIn this instance, the indictment alleges the existence of a conspiracy – including but not limited to these defendants – the ultimate aim of which was to commit acts of violence in other countries. Based on that claim, the indictment charges a violation of 18 U.S.C. 956, which prohibits conspiracy to commit an act of violence outside the United States, so long as (i) the act would constitute the offense of murder, kidnapping or maiming if committed in the US and (ii) at least one act in furtherance of the conspiracy takes place in the U.S. What is very interesting here – although typical of how 956 has been charged since 9/11 – is that there is no attempt to allege with any particularity what the specific act of violence would be; the indictment instead merely describes at a general level the use of violence by the broader jihadist movement of which this conspiracy allegedly was a part. In this regard, it is worth noting that the indictment does not label the conspiracy as a component of al Qaeda or any other specific group. Instead, the indictment describes the conspiracy simply as part of the overall “radical Islamic fundamentalist movement . . . [based on] a radical Salafist ideology that encourage[s] and promote[s] ‘violent jihad'”. (Indictment at 1). Several organizations – including al Qaeda – are named as representative and constituent of that movement, but in the end there is no formal attempt to match the defendants to any one group (reflecting the widely-held view that the jihadist movement has network rather than formal group characteristics). Thus, the conspiracy is labeled the “North American Support Cell,” rather than, say the “al Qaeda Cell.”

2. Section 2339A:

Material Support (to an act, not a group)As also has happened in the past, the indictment pairs the 956 charge with a charge under 18 U.S.C. 2339A, the older of the two material support statutes. This is not the statute that prohibits the provision of support to designated foreign terrorist organizations; as noted above, the indictment avoids formal organizational labels, as it probably must. Instead, this is the version of the material support law that more closely resembles a traditional aiding-and-abetting statute; it forbids provision of suppport (for example, money) to anyone if done with knowledge the support will be used to further a violation of one of several listed statutes, including 956. In this case, the claim is that the cell conspired to (and did) provide money and other logistical assistance (fundraising, mainly) in connection with the 956 conspiracy described above.

3. The other charges:

The other charges all concern defendant Hassoun. He has been charged with unlawful possession of a firearm (18 USC 922); making false statements to federal agents (18 USC 1001); multiple counts of perjury arising out testimony before an immigration judge (18 USC 1621); and obstruction of those same proceedings (18 USC 1505).