The Times and others are reporting that current Acting Head of the Office of Legal Counsel (OLC) at the Department of Justice, David Barron, will be leaving his post this summer to head back to his professorship at Harvard Law School. (OLC rose to national prominence during the last administration as the home of John Yoo and colleagues, who crafted unsupported legal arguments to justify the use of torture against detainees.) Barron has been the de facto head of the office throughout the Obama Administration, his tenure a result of Congress’ failure to confirm the President’s nominee for permanent head, Dawn Johnsen. Barron’s announcement comes on the heels of rumors in recent weeks that Barron’s OLC colleague, Marty Lederman, had also been planning to depart OLC sometime in the coming year, to return to his post as professor at Georgetown Law School.

At one level, such departures should be no surprise, coming around (or at least near) the 2-years-in-service mark, a time when many political appointees find themselves up against academic leave deadlines, or are otherwise longing for a return to their pre-government families and lives. Fair enough. Nonetheless, the departure of either or both will be a real loss to the Administration. Barron and Lederman have been deeply engaged in the suite of detainee issues the Administration has been grappling with since transition. We can hope to welcome them back to the blogosphere one of these days. But their real-time efforts inside DOJ will undoubtedly be missed.

Cross-posted at Balkinization

Nothing like summertime to catch up on a little light reading I spent too little time with during the semester. So especially after being re-energized at this year’s American Constitution Society Convention (where I did a panel with Gene Fidell and others far more interesting than I on military commissions vs. federal courts, and got treated to a Cory Booker barn-burner of a “do something” speech), herewith my first catching-up blog.

If you read any new document this summer in the ongoing detention-interrogation-trial saga that is Guantanamo Bay, make it the (relatively) recently released final report of the Guantanamo Review Task Force. This was the inter-agency body established by Executive Order a few days after President Obama took office and charged with reviewing (which required first collecting) all of the government’s existing information about the then-current residents of Guantanamo Bay and making recommendations for their disposition. The report is available here and was the subject of a few articles (in the Times and Wash Post),though my sense is that it was largely overlooked when it was released. The report itself is a concise 32 pages, and contains (among other instructive passages), the most detailed official public description (beginning p. 22) I’ve seen explaining why the executive branch has determined that 48 detainees at Gitmo should still be detained but cannot be prosecuted in either an Article III or military commission court.

Before I get to the reasons why 48 detainees have been deemed unprosecutable-but-unreleaseable, I must start out by pausing on the number, which seems pretty striking in the eight years I’ve spent following U.S. counterterrorism detention operations post-9/11. Out of the 800-some originally shipped to Guantanamo, out of the tens of thousands detained by the United States since 2001(in operations from Afghanistan to Iraq and beyond), out of the millions of people on the planet who undoubtedly wish to do us harm – the whole debate, and the future of U.S. detention policy, has now evidently come to down to the apparent intractability of these 4 dozen cases.

Indeed, as the Task Force report indicates, the real fraction of the post-9/11 detainee population who might fit into the ‘intractable’ category if seized today is almost certainly smaller than that. For example, some of the final 48 aren’t prosecutable because the federal criminal material support law that existed in 2001, when these detainees were seized, did not extend to offenses committed outside the territory of the United States. That territorial gap has long since been filled by an amendment to the material support statute. So if the U.S. picked up one of those men today, prosecution would be an option. Others of the 48 (unclear from the report how many, but at least a handful) have been rendered ‘unprosecutable’ because of decisions the last administration made – which decisions cannot now be undone. Like what? Some of these men have been detained so long, the statute of limitations on the offense for which they might have been prosecuted has run. For some of them, the only/best evidence we have of any wrongdoing were statements gleaned from witnesses subject to torture or cruel treatment. And there are others (like a Taliban military commander) who – had we treated them in accordance with international law in the first place – it appears would have been far less controversially detainable by the U.S. and/or the Afghans under existing detention authorities (like the statutory Authorization for Use of Military Force (AUMF), the international laws of armed conflict, and/or specific U.S.-Afghan and/or UN authority).

For apparently a large subset of the 48, the United States simply made no attempt to collect (or save) any information about them at the time of their capture that might subsequently be used in a prosecution, for war crimes or otherwise. In some cases, such a decision might well make sense. A Taliban commander caught by U.S. forces in Afghanistan in 2002 was picked up in a classic international armed conflict, and, particularly had he been afforded the protections of the Geneva Conventions, could be lawfully detained for the duration of that conflict without need for trial. But it’s not at all clear that the set of men detained-without-effort-at-evidence-collection is the same as the set of men lawfully detainable under the international law of armed conflict. On the contrary, much in the detention practice of the last administration suggested that people were detained (in CIA facilities and elsewhere) without any concept of an end-game – whether the plan was to prosecute them for war crimes some day, or to detain them until the end of the Afghan conflict, or simply to detain them forever without much worrying about the law of why or how. In short, it seems likely that for some of these remaining 48, there was simply no plan at all. Presumably, for the wouldbe terrorist detainee we pick up tomorrow, we have a plan now.

In all events, if we subtract all of those but-for cases from the Gitmo 48, how many remain who would pose an intractable detention dilemma, seemingly fall into a gap in existing legal authority, if we picked them up today? A dozen? A handful? For the sake of this group, some still argue, we should pursue new statutory authorization for the (indefinite?) detention of (which?) terrorist suspects for the (indefinite?) future of the United States. When Holmes wrote that hard cases make bad law, he wasn’t kidding.

Ok, so what it is about these 48 men such that, as the report put it, “the totality of available information – including credible information that might not be admissible in a criminal prosecution – indicated that the detainee poses a high level of threat that cannot be mitigated sufficiently except through continued detention.” The report says these detainees “were characterized by one or more of the following factors…”: (1) “Significant organizational role within al-Qaida, the Taliban, or associated forces.” (2) “Advanced [jihadist] training or [combat] experience.” (3) “Expressed recidivist intent;” or, (4) “History of associations with extremist activity.”

While there remain questions about what it means “forces…associated” with the Taliban or al-Qaida, category (1) above seems to fall pretty squarely into the interpretation of the AUMF the Administration has now successfully advanced before the D.C. federal courts. It is at least in part consistent with the kind of detention contemplated by the international law of armed conflict. And beyond that – as the habeas cases are making clear – the legality of such detentions depends a lot on the particular facts of the case. Category (2), while also leaving some ambiguities, sounds a fair bit like conduct that is now – but was not necessarily in 2001 – covered by the federal criminal laws of the United States. Receiving military training from a terrorist organization is its own independent federal crime and/or is almost certainly prosecutable under the extraterritorial material support offense. Category (4) – “History of associations with extremist activity” – seems to me simply too vague to make heads or tails of. It is not – and the report does not suggest that it is – a legal category of some kind. But even as a descriptive tag, it seems to me broad enough to include almost anything. Or not. So for now I leave it to one side.

Which brings us to Category (3) – those with “[e]xpressed recidivist intent.” Assuming such men do not also fall into any of the other descriptive categories, I take it that such an individual is one for whom the circumstances of his seizure are either unknown or not plausibly in the context of armed conflict, for whom there is no available information as to his past activities, but who, at some point during the past 8 years of detention in/around Guantanamo Bay, has indicated that if released, he’d like to, for example, kill Americans. If I were President Obama, this is the guy whose case would keep me up nights. But here’s a question, and it is a genuine one: By what law may the United States detain someone who, without more (i.e. no evidence of Al Qaeda membership, of engagement in armed conflict, etc.), expresses an intention to do harm?

Cross-posted at Balkinization

I hate to interrupt the terrific insta-symposium on the Supreme Court’s decision in Samantar already underway at Opinio Juris, but I did want to note the much-anticipated release of Philip Alston’s report as UN Special Rapporteur on Extra-Judicial Killings. I take it the relevant press release and report will be available here. I’m just now paging through it, but for now, a few brief notes.

Broadly, while acknowledging the sometime-legality of targeted killing, the report cautions that “circumstances in which targeted killings are alleged to be legal” have become “excessively broad,” and mechanisms that might help ensure accountability for their legality – including any measure of transparency – are missing. From the press release:

“[T]here are indeed circumstances in which targeted killings may be legal. Targeted killings are permitted in armed conflict situations when used against combatants or fighters, or civilians who directly engage in combat-like activities,” Mr. Alston noted, “but they are increasingly being used far from any battle zone.” According to the UN Special Rapporteur, the United States, in particular, has put forward a novel theory that there is a ‘law of 9/11’ that enables it to legally use force in the territory of other States as part of its inherent right to self-defence on the basis that it is in an armed conflict with al-Qaeda, the Taliban and ‘associated forces’, although the latter group is fluid and undefined. “This expansive and open-ended interpretation of the right to self-defence goes a long way towards destroying the prohibition on the use of armed force contained in the UN Charter. If invoked by other States, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos,” he said. Mr. Alston emphasized that “I do not for a moment question the seriousness of the challenges posed by terrorism. I condemn wholeheartedly the actions of al-Qaeda and all other groups that kill innocent civilians, as well as any groups that increase the danger of attacks on civilians by hiding in their midst. These actions unequivocally violate international law. But the fact that such enemies do not play by the rules does not mean that a Government can cast those rules aside or unilaterally re-interpret them. The credibility of any Government’s claim that it is fighting to uphold the rule of law depends on its willingness to disclose how it interprets and applies the law – and the actions it takes when the law is broken.”

As for the accountability issue, again from the press release, Alston is quoted as saying:

“[I]t is an essential requirement of international law that States using targeted killings demonstrate that they are complying with the various rules governing their use in situations of armed conflict.” The clearest challenge to this principal today, according to the independent expert, comes from the program operated by the US Central Intelligence Agency in which targeted killings are carried out from unmanned aerial vehicles or drones. “It is clear that many hundreds of people have been killed, and that this number includes some innocent civilians. Because the program remains shrouded in official secrecy, the international community does not know when and where the CIA is authorized to kill, the criteria for individuals who may be killed, how it ensures killings are legal, and what follow-up there is when civilians are illegally killed.” The UN Special Rapporteur stressed that “in a situation in which there is no disclosure of who has been killed, for what reason, and whether innocent civilians have died, the legal principle of international accountability is, by definition, comprehensively violated.”

Importantly, Alston contrasts the CIA program in this regard with “the well-established practice of the US Department of Defense. While it is by no means perfect, the US military has a relatively public accountability process, as demonstrated earlier this week by its report on the incident in Uruzgan, Afghanistan, in which at least 23 civilians were killed based on erroneous intelligence from surveillance drone operators. Intelligence agencies, which by definition are determined to remain unaccountable except to their own paymasters, have no place in running programs that kill people in other countries.”

A final note for now. The report provides, among other things, the clearest, most concise (and usefully footnoted) summary of the complex and overlapping areas of law governing targeted killing I have yet seen – addressing law of war, self-defense, and international human rights law issues. I’ll be most interested to hear from Ken, among others, on what if anything the report gets wrong in this respect. On first glance, it looks awfully solid to me.

Cross-posted at Balkinization

Following my co-blogger Ken Anderson’s lead, I wanted to add a few additional notes on the D.C. Circuit’s holding today that a group of detainees held at the U.S. military base at Bagram, Afghanistan, do not have a constitutional right to seek a writ of habeas corpus in U.S. federal court. While acknowledging that at least two of the detainee-petitioners had been picked up far outside the Afghan borders (one, most notably, in Thailand) and only came to be in the Afghan theater because the U.S. government brought them there, the court concluded that the “practical obstacles inherent in resolving the prisoner’s entitlement to the writ” while petitioners were detained in an active theater of war weighed against recognizing an extraterritorial constitutional right to habeas.

Many things to say on the decision’s import and meaning, but here I’ll just start with two unrelated points. First, on the import. Whatever one thinks of the opinion on the merits, it may be easy to overstate its practical significance. The Obama Administration’s litigation strategy in all of its highest profile detention cases has been to moot key cases on their facts before they can be finally resolved by the Supreme Court. Such was the case with, for example, the weighty claim by a group of Gitmo detainees that winning their habeas cases entitled them to release in the United States. So too here, all indications are the Administration is scurrying not only to hand over its detention operations in Afghanistan to the Afghans generally (a move key human rights organizations endorse as a matter of international law), but also reportedly to transfer remaining non-Afghan detainees to their home countries for continued detention and/or trial. It’s possible the Administration may not succeed in its mooting strategy this time. But given the months they now have between petitions for rehearing en banc in the D.C. Circuit and (failing that) for cert sure to follow, I wouldn’t necessarily bet against them. If the U.S. cedes control of Bagram before the case reaches the Supreme Court, what will remain on the books is the ruling of an appeals court, in a decision, as Ken also seems to see it, highly and self-consciously limited to its particular facts.

Second, on the content. It seems fair to say the reasoning in the opinion was slight. And not just because out of the 26 pages of published writing, one doesn’t reach the meet of the analysis until the bottom of page 19 (after which follows about a page’s worth of block quotes, and another nearly full page of conclusion restating the decision in summary). What reasoning there is doesn’t especially engage the particular facts of the case. Consider, for example, how heavily today’s decision rested on the analysis in the Supreme Court’s 1950 decision in Johnson v. Eisentrager, in which the Court declined to allow U.S. military detainees held in Germany (following their war crimes convictions in China) to seek habeas in U.S. courts. In particular, the Maqaleh court quoted in block the following passage from Eisentrager in support of its conclusion that habeas for the 3 Bagram detainees here would be unwise to pursue:

“Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.”

To be clear, in suggesting that habeas for Bagram would “bring aid and comfort to the enemy” and “diminish the prestige of our commanders” in Afghanistan, the appeals court here did not expressly (or even impliedly) cite to some particular claim in the record before it. Neither was it discernably deferring to some perceived superiority of the Executive’s assessment of the strategic or practical import of allowing the Bagram detainees captured outside Afghanistan to seek a writ of habeas corpus. Rather, the D.C. Circuit seemed to be doing exactly what the Eisentrager Court did – asserting, based on the court’s own impression, that greater legal process would only hamper the strategic cause for which the United States is fighting in (on this occasion) Afghanistan.

Yet particularly in the counterinsurgency context in which the U.S. is now fighting, it seems an odd – and overstated – position for the court to take. Indeed, as the Commander of NATO forces in Afghanistan, U.S. General McChrystal, explained in his pivotal strategy report last year, “the Afghan people see U.S. detention operations as secretive and lacking in due process.” Because detention operations could thus become “a strategic liability,” the United States faces a “critical” need “to conduct all detention operations in this country in accordance with international and national law.” McChrystal went on to recommend the turnover of detention operations to the Afghans, once they developed the capacity to sustain such operations lawfully and effectively. There is nothing in his report that would support the conclusion the Maqaleh court reached about the impact of judicial review on “the enemy,” and much in it that might support the view that habeas in the limited context presented here – where detainees have been shipped from a country at peace with the United States into a country where the United States is at war – might be of some strategic benefit with “wavering neutrals” pending handover to the Afghan government.

I don’t mean to overstate the point. The government here, after all, opposed extending habeas to Bagram. Nonetheless, especially given the stakes, it seems insufficient for the court to rely centrally on an assertion that seems at least somewhat in tension with positions the government has itself elsewhere taken on this particular issue. In Hamdan, the government had argued that it was impracticable to pursue war crimes trials under existing court martial rules on the bare grounds that the demands of counterterrorism were great. Writing for a majority of the Supreme Court, Justice Stevens rejected this claim as, among other things, lacking basis in the record. Hard to demonstrate the D.C. Circuit crossed that threshhold here.

Still catching up on yesterday’s news that DOD released the much-anticipated 2010 edition of the Manual for Military Commissions (MMC). The Manual is here.

Among its many provisions of interest (I’m still skimming) are the rules set forth for prosecutions for the commission crime of material support for terrorism – a crime I and others have argued does not exist as a war crime under international law. (None of the major international criminal tribunals have included it as an offense, for example; neither is there any evidence of its existence as a criminal offense under customary international law.) Given this, the singular international law defense for the inclusion of the “material support” offense in the 2009 version of the Military Commissions Act I’ve been able to imagine is the possibility that it would be used as some version of the expansive theory of vicarious contemplated at some level by the ICTY. (In my final international law class of the year, for example, I happened to teach Furundzija – a 1998 ICTY case finding that a soldier could be prosecuted under a vicarious liability theory for giving “practical assistance, encouragement, or moral support that had a substantial effect” on the perpetration of a war crime committed, provided that the soldier had the requisite intent. It’s debatable what intent was in fact required in that case, but it was either knowledge that one’s actions would assist perpetrator OR intent to facilitate the crime – hardly a meaningless difference.) One might have argued that the MCA offense of “material support” could mitigate the international law problems if deployed, against odds, in this way.

The MCA itself defines the offense as either (1) providing “material support” (a term it defines) “knowing or intending” that it will be used “in preparation for, or in carrying out, an act of terrorism,” or (2) intentionally providing material support to an international terrorist organization engaged in hostilities against the United States if he knows that organization engages in terrorism. By its terms, one might imagine option (1) was crafted to cover the bases in Furundzija; indeed “material support” under the statute doesn’t include something as vague as the “moral support” Furundzija recognized (in a rape case), so perhaps in this respect an intent-based a prosecution could survive. Option (2), on the other hand, seems less likely to survive Furundzija’s more exacting intent requirement. It requires intent only as to the provision of money to the organization; it doesn’t require that the supporter intend that the organization use the support to facilitate or carry out terrorism (only that the supporter have knowledge that the organization has ever engaged in such activities).

So does the MMC provide clarification or cure? In a word – no. It clarifies at least that the charging conduct must take place “in the context of and … associated with hostilities.” This seems a sine qua non for a war crimes charge – it’s not a war crime if there’s not a war – that wasn’t entirely clear by the terms of the statute itself. On the other hand, the MMC preserves knowledge as a potential basis for prosecution for material support for an act of terrorism, and preserves knowledge as the singular basis for prosecution for support to a terrorist organization. In other words, material support could still just be a knowledge-based offense. If Furundzija is in fact the model, and if Furundzija’s more exacting “intent to facilitate” standard applies, then no knowledge-based prosecution could survive. Seems like yet another of many potential issues as these cases are brought and appealed. In the meantime, I hope those international criminal law experts out there will tell me what I’m getting wrong.

Cross-posted on Balkinization and Scotusblog

Since Justice Stevens announced his intention to retire, discussions about what his departure will mean for the Court have regularly noted his military service in World War II. The justice enlisted the day before the Japanese bombed Pearl Harbor (and has joked about how the enemy responded to the news immediately). There is little doubt that a Court without substantial military experience among its justices will be missing an important perspective on the unique role the U.S. military plays in American policy and society. Judges are ideally made wiser from their range of life experiences; a broader range of experience among the justices seems likely only to enhance the Court’s collective wisdom. In that respect alone, Justice Stevens’ absence from the Court will leave a gap.

But Justice Stevens’ national security jurisprudence reflects a very particular kind of wisdom, drawn not only from his military service, but from a lifetime of attention to the persuasiveness of executive reason. As illustrated in a series of thoughtful histories in recent years (see here, here or here), the young John Stevens was likewise informed by his service immediately after the war as a law clerk at the Court to Justice Wiley Rutledge, who himself had struggled with the questions of executive power, individual rights, and national security that the Court has faced repeatedly in the years since September 11. Over his relatively short tenure on the Court, Rutledge seemed quickly to regret his early deference to a powerful President Roosevelt during World War II. With the majority in Hirabayashi v. United States (upholding a military curfew on Japanese-Americans living in certain “military areas” in California) and Korematsu v. United States (upholding the exclusion of Japanese-Americans from designated zones), Rutledge had reluctantly accepted the military assertion of wartime necessity. But the positions Rutledge took in these cases did not sit easily. As Rutledge later wrote to a colleague, “I have had more anguish over [Hirabayashi] than any I have decided, save possibly one death case” that he had encountered in the court of appeals. Indeed, Rutledge had written separately in concurrence in Hirabayashi, to emphasize that the Court’s acceptance of the military’s necessity justification here did not mean that such reasoning would invariably succeed, or that all such reasoning was beyond the power of the courts to review.

By In re Yamashita (upholding the military commission trial of a Japanese general), issued the year before Justice Stevens took up work at the Court, Rutledge was writing in dissent, rejecting the Government’s position “that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military,” in favor of the view that the U.S. Constitution, statutes and treaties here – as elsewhere – apply. Exigencies could arise, Rutledge understood, but particularly where the Government response imposed a burden on individual rights, it was within the power of the courts to check the reasons for the response, in security matters as anywhere else. The capacity to evaluate reasons was not the Commander-in-Chief’s alone. Thus, when Justice Stevens took up the challenge to the legality of President Bush’s military commission system at Guantanamo Bay 60 years later in Hamdan v. Rumsfeld, it was not surprising that it was Rutledge’s dissent the justice invoked.

It is certainly possible writing from some remove to overstate the impact Rutledge’s evolving views in the 1940’s had on Justice Stevens’ thinking some 60 years later. Justice Stevens is, after all, also the author of Chevron v. Natural Resources Defense Council, the watershed administrative law decision typically understood to have cemented the importance of judicial deference to executive branch interpretations of statutory authority – a deference driven by the Court’s view of the Executive’s superior political accountability and expertise. Indeed, at first glance, it seems difficult to reconcile the Justice Stevens of Chevron – embracing judicial deference to the Executive – and the Justice Stevens of Hamdan – rejecting any notion of even modest deference to the Executive in interpreting the statutory Authorization for Use of Military Force and Uniform Code of Military Justice. One might argue the decisions are better read simply as a sign of the evolution of Justice Stevens’ own views during his long tenure on the bench.

This view seems to me to miss the value of what is in fact a rather consistent sensibility on the value of executive views. By the time Chevron came down, the Court had long recognized – as Justice Stevens reiterated in that decision – that executive views could help illuminate statutory meaning when the executive has special expertise in the face of a “regulatory scheme [that] is technical and complex,” when competing policy interests are at stake, and when it is clear the agency’s consideration of the matter had been “detailed and reasoned.” It was precisely the lack of such detail and reason in the President’s justification for pursuing military commissions at Guantanamo that troubled Justice Stevens in Hamdan. “Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case…. [T]he only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.” The Executive had presented no record or even detailed reason why it could not follow standard court martial procedures. Indeed, as briefing surrounding the case had made evident, the Executive had largely excluded from the design process those lawyers in the military who were actually expert in how one might conduct a military commission trial. Expertise and record evidence could be valuable indeed. Far less valuable was the mere assertion of Executive authority.

Justice Stevens’ familiarity with the military and the important demands of national security perhaps made it possible for him to see what many have not – that there is nothing so extraordinary about the field of foreign relations per se that absolves the Executive of all need to be put to particular reason and compelling proof. It seems unlikely that the justice who takes his place will have Justice Stevens’ breadth of life experience in this regard. We will be fortunate if he or she nonetheless shares his insight.

Given our past discussions about State Department Legal Adviser Harold Koh on this list, I thought I’d pass along word of an upcoming event some might find of interest. My colleagues at the American Bar Association’s Standing Committee on Law and National Security are hosting a breakfast discussion with Koh this coming Tuesday, March 16, from 8:00-9:00 a.m. The event is open to the public and will be held at the University Club, 1135 16th Street, N.W., Washington, D.C. Registration is required, as is payment: the cost is $25.00 per person. If readers in the D.C. area are interested in attending, contact committee staffer Matthew Owens, owensm@staff.abanet.org.

Cross-posted at Balkinization

This morning’s papers bring news from anonymous administration officials that “President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal.” See The Post’s story here.

While I always take such preview reports with a grain of salt (is it an official trial balloon, or an unofficial attempt to sway the debate the other way?), it’s hard to let this one go by. If the reports are true, the President is getting some unfortunate advice. And is at risk of losing the best chance of getting KSM’s case off the front pages before the 2012 elections.

The reasons why federal criminal prosecution is the right answer for KSM have been set forth well and in detail elsewhere, and I generally won’t recapitulate them here. The arguments seem already to have persuaded the President’s top “advisers”: the Attorney General, who had announced plans to try KSM in the criminal courts in New York, and the Vice President, who said just two weeks ago that “[w]e have no doubt the best, most effective legal way to get his guy behind bars for the longest time and get the most information with the most certainty is in an Article Three court.” The Secretary of Defense has likewise rejected the notion that the President should be precluded from pursuing civilian trials where appropriate. See this joint letter from Secretaries Holder and Gates, noting that “we ensure that all relevant factors are carefully considered when determining the appropriate forum in which to try a particular case.”

So what’s driving the shift? Most reports suggest that the Administration thinks if it capitulates on the KSM trial, Sen. Lindsey Graham will help the White House to win the funding and legal authority it now needs from Congress to close Guantanamo – a political motive in the strictest sense of the term. On that score, I guess count me skeptical that any Senator has the power to get a majority of members of both houses of Congress to vote in favor of allowing any Gitmo detainees to be brought to the United States for detention in an election year. But who knows?

The bigger looming danger is on the legal front. It’s easy to start with the historical odds that a post-9/11 trial before a military commission will founder. (The federal courts stunning track record of success in prosecuting terrorism cases of this kind only gets more impressive when one compares it to the record of even completed cases before the old military commissions). But maybe more important, if the Administration shifts gears now – worse, if the President overrides the very public recommendation of his Attorney General – it hands defense counsel a much stronger argument against the legitimacy of commission trials than they already had. Namely, the argument that the Executive’s choice between Article I commissions and Article III courts is constrained by no principle in law – no finding of a state of armed conflict, no international law-based set of charging offenses, no even military determination of necessity (given that Holder and Gates “carefully considered… all relevant factors” in making the KSM-civilian-trial decision the first time) – but is rather a pure question of expediency, a choice that can depend equally on whether the defendant committed a war crime as on whether the defendant’s Senator can deliver a vote on, say, health care. (That the putative vote in this case happens to be about detainee issues rather than any other voting issue of congressional concern doesn’t seem to me to make a difference in assessing the legality, or not, of the Administration’s basis for choosing a military trial over a civilian court.)

You might accept or not my argument that selection between forums on such a basis raises a constitutional question (see here or my Senate testimony here). But it would be a mistake to think the courts don’t care about atmospherics such as this. Indeed, I was this morning recalling the reaction by the Fourth Circuit Court of Appeals (in an opinion authored by conservative judge (and once thought Supreme Court contender) Michael Luttig) after the Bush Administration announced its intention to try Jose Padilla before federal criminal court after maintaining before – and successfully persuading – the Fourth Circuit that national security necessity required the President to have the power to hold Padilla as an “enemy combatant” in the “war on terror.” The issues were of course different there. The question involved detention power, not trial forum per se; and the Bush Administration was actively aiming to avoid renewed Supreme Court review of the Padilla case, a case it by then appeared likely to lose. But Judge Luttig’s apoplexy seems worth remembering as the Administration gears up for the mammoth litigation sure to follow an attempt to prosecute KSM before yet another set of military commissions:

“The government cannot be seen as conducting litigation with the enormous implications of this litigation — litigation imbued with significant public interest — in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound…. [A]s the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.”

Cross-posted at Balkinization

Earlier this term, the Supreme Court granted certiorari to decide the latest issue in the sad case of the Uighurs still held at Guantanamo Bay after having been cleared of “enemy combatant” status by both Bush and Obama Administrations. U.S. treaty obligations restricting the ‘refoulement’ of individuals to countries where they’re likely to face torture have effectively prevented the United States from sending the Uighurs , a persecuted Muslim minority in China, back to China. And while the Washington, D.C. federal district court ruled months ago that the Uighurs continued detention at Guantanamo was without legal authorization, the D.C. Circuit court rejected the notion that the remedy for unlawful detention at Guantanamo Bay was release into the United States. Under U.S. immigration law, the D.C. Circuit held, no court can compel the Executive to allow aliens entry into the United States. The Uighurs, languishing at the U.S. naval base in Guantanamo, Cuba, were thus without effective remedy under law. The Supreme Court granted cert to decide the question whether the federal courts were in fact without effective remedial power. With the case set for oral arguments later this month, the Court today ordered the D.C. Circuit decision vacated, and it remanded the case to the appeals court to determine whether additional proceedings were now “necessary and appropriate” in light of the Obama Administration’s recent success in finding foreign nations (Switzerland and Palau) to offer the Uighurs a place to live.

Under the circumstances, I tend to think the Court did the right thing. Despite the pending offers of resettlement, the Uighurs’ attorneys had pressed the Supreme Court to decide the case now. Among other things, the Uighurs offered resettlement in Palau – a country lacking a Muslim population to speak of – evidently view the island nation an unacceptable alternative to continued detention at Guantanamo Bay. And given a choice between Palau and, say, Florida, I might well favor Florida too. The problem is that the Uighurs had only a modest chance, at best, of securing resettlement in the United States even if the Court had kept the case. Indeed, given the uncertainty of the outcome before the Supreme Court, the possibility that the Court would keep the case – and decide it against the Uighurs who, after all, now have at least Palau – might have cemented a permanently bad outcome for the remaining Guantanamo detainees who have also been cleared for release but have yet to find a country offering resettlement. For now – particularly thanks to the Court’s decision to vacate the D.C. Circuit opinion below – the possibility remains even in the D.C. Circuit that the courts may not be without all effective remedial power in resolving (before a potentially different panel) the next case of a stateless Guantanamo detainee (which case is surely coming).

Finally, while the Uighurs’ case is perhaps the saddest of the many sad cases resulting from mistakes made at Guantanamo beginning in 2002, the Obama Administration deserves some credit for, so far, threading the needle to find the marginally more favorable of the few options remaining for resolving these cases. It is true that the options would not have been quite so narrow – now that Congress has prohibited the transfer of almost all Gitmo detainees to the United States – had the Administration been more politically astute at the outset in actively managing the closure of Guantanamo together with the members of Congress whose obstruction it needed to avoid. Nonetheless, recent diplomatic resettlement efforts have been markedly more successful than those pursued by the Bush Administration. And this Administration has managed, so far, to avoid both the conclusive cementing of rights-hostile judgments (like that of the D.C. Circuit in the Uighurs’ case), and the repeated rebukes the previous executive faced at the hands of the highly active Supreme Court.

Cross-posted at Balkinization

This is a post about politics, not law. How could it be otherwise in engaging the public debate these days over the chronic cluster of post-9/11 terrorist detention, interrogation and trial issues? Demagoguery by Mitch McConnell and his Republican cohort over the Administration’s exactly right and entirely unremarkable decision to bring criminal charges against would-be underwear bomber Umar Farouk Abdulmutallab is, as others have pointed out, well and fully divorced from the facts. (According to the Attorney General’s detailed statement, Abdulmutallab provided detailed and useful intelligence. He will now spend the rest of his life quietly in jail following a trial so fair that it will succeed in increasing the likelihood that our allies will cooperate with us in identifying the next Umar Farouk Abdulmutallab.) The position staked out by Lindsay Graham et al. favoring military commissions over federal criminal trials for the Gitmo detainees we plan to charge with wrongdoing as the “best way to render justice, win this war and protect our nation from a vicious enemy,” is not especially more coherent. Among other things, after 8 years, the commissions have convicted 3 defendants, 2 of whom are already back on the streets. In the same time, according to NYU, the criminal justice system has pursued 800 terrorism prosecutions with a conviction rate of 90%. The new and improved commission process is certain to generate just as much litigation as the last one – and commission defendants will enjoy a host of potentially powerful defenses to their prosecution they won’t have in criminal trials. And odds are not insubstantial that if we decide to “render justice” that way, we’ll still be rendering it another 3 years from now (the next time folks take a good look at the Commander in Chief).

On the other side, proponents of criminal trials have done a nice job of highlighting the many factual – and common sensical – deficiencies in the Republican case. See, e.g., here. They’re getting great at rapid response. But they’ve not mounted much (or any) of a sustained counteroffensive in the political messaging game. In part, one might argue, that’s not the job of advocacy organizations whose endlessly important missions are to promote human rights, protect the rule of law, and defend the persecuted. They serve a critical function, but resources are scarce, and countering fact-free politicking just doesn’t make the cut. (Although as they all know, it’s tough to gain any factual foothold with even the fact-interested members of Congress as long as the political winds are whipping around as fast as they are.) And then there’s the problem of appetite; hard for them to launch a campaign to defend any aspect of what the Administration is attempting to do (viz. some criminal trials) when there are so many things they think the Administration is otherwise doing wrong (viz. some continued detention). In any case, one could imagine the pro-law-enforcement case might be more effectively, more persuasively waged by, say, the enforcement community, the Law & Order folks who should (and it seems are) chomping at the bit to show America and the rest of the world how justice is done. But they have appropriate professional constraints of their own to worry about. Not to mention other jobs to do.

Which brings us to the Democratic administration in office – the group that holds the popular majority, both houses of Congress, the White House, and the dazzling messaging apparatus that goes with it. But it’s hard to have a coherent much less dominating message when talking out of all sides of the mouth. It is not news that the Obama Administration seems to have been struggling for some time with internal divisions on these issues. And to be fair, the number of internal constituencies the President has to deal with is daunting: The Pentagon (which has plenty of smart and rights-interested people in it, along with a deeply vested institutional interest in seeing the next round of military commissions they’ve worked on for 8 years go forward with more earned respect than the last round); the intelligence community (which faces an unimaginably difficult task, which is ever burdened with building a new (intel collection) car while they’re trying to drive it, and whose collective ego has been toughened by decades of being regularly beaten around the head); and the Justice Department/FBI (which undoubtedly has turf interests of its own, but is generally trying, best as I can tell, to prosecute terrorists and get them off the streets).

Then there’s the White House itself, which has seemed to resent having to deal with the current Bush-induced mess so much, they don’t want to talk about it until absolutely forced – forced by an uprising in Congress against bringing any Gitmo detainee to the United States ever, by an about-face by the New York City community it ostensibly consulted, by a sustained political assault by the other side far more coherent and unified than any vision the Administration has put forward. The resentment is both entirely appropriate, and completely beside the point. As it turns out, the I-don’t-want-to-talk-about-it approach has been effective only in ensuring that the Administration has been compelled to spend the year so far talking about it constantly. Trying to shunt these issues off to the side, or address them in a single speech, has not worked. And it won’t work going forward. These issues – terrorism, the threat of terrorism, domestic cases, foreign detentions, actual trials, etc. – are going to be in the news every day from now til the next election, and the opposition has every incentive to ensure that they stay there. An offensive strategy seems in order.

The Administration needs – has long needed – two things: (1) A settled policy on these issues, and (2) An affirmative, consistent, aggressive message on counterterrorism security that is understood and embraced by the whole Administration team (DOJ, DOD, CIA, WHO). On the first, and despite the unbelievable complexity of all this, the Administration has been lining up the decisions and knocking them down. I was very much in favor of the new Administration thinking things through carefully with the task force process, and I am far less critical than many about its plan to resolve Gitmo by some combination of trials, releases, and (in a small number of cases, we’re not yet able to evaluate which) continued detention. I haven’t, and I’m sure I won’t agree with every move, but criminal trials are obviously the right course whenever it’s possible. Have them in some distant hamlet in a different zip code if Manhattan has had enough, but as the President and Eric Holder have said all along, they’re the best bet whenever possible (as it surely is with KSM). Rethinking that now (as, it is reported, is the President, seemingly in response to the pure politics of Lindsay Graham) backtracks on progress made in the painstaking process of policy development.
It also only serves to underscore the Administration’s failure to move forward (or, it seems, in any direction) on the second item – an affirmative message on security, repeated and elaborated daily, geared toward the constituencies that need persuading to make the policy possible (say, the districts of members of the President’s own party), and deployed on a strategically useful playing field (as opposed to one mandated by, say, Dick Cheney’s appearance on TV).

Candidate Obama was characteristically eloquent on the topic of security. He was also relentless: “You don’t defeat — you don’t defeat a terrorist network that operates in 80 countries by occupying Iraq…. If John McCain wants to follow George Bush with more tough talk and bad strategy, that is his choice, but that is not the change that America needs. We are the party of Roosevelt. We are the party of Kennedy. So don’t tell me that Democrats won’t defend this country. Don’t tell me that Democrats won’t keep us safe. The Bush-McCain foreign policy has squandered the legacy that generations of Americans, Democrats and Republicans, have built, and we are here to restore that legacy.”

As messages on Gitmo go, that seems like a fine place to start.

Cross-posted at Balkinization

Ok, the headline is a bit misleading. It’s only two justices – Scalia and Thomas – who, in dissenting from a denial of certiorari by the Supreme Court this week, argued that the Court should settle once and for all whether detainees can invoke the Geneva Conventions in federal court. Lyle Denniston, as usual, reports the dissent-from-denial here, and he includes a link to Justice Thomas’ 15-page opinion, which is itself well worth a read. Heck of an opinion.

In essence, Justice Thomas (joined by Justice Scalia) argues that the Court should have granted review to an appeal by former Panamanian dictator Manuel Noriega, who claimed that Geneva barred the United States from extraditing him to France to face drug crime charges in that country. Noriega had completed his sentence following criminal conviction under U.S. law, and ordinarily extradition under such circumstances would not be barred. But recall that Noriega had originally been captured by U.S. military forces operating in Panama in 1988. Responding to claims Noriega raised early in his criminal sentence about what treatment he would face in U.S. prison, a district court judge had ruled that the hostilities in which Noriega was seized constituted an “armed conflict” within the meaning of the Third Geneva Convention, that Noriega was a member of the armed forces of a party to the conflict, and that he was therefore entitled to POW protections regarding conditions of confinement. For various reasons, that decision was never especially contested. Fast forward 20+ years. Noriega’s criminal sentence is now over, and he is arguing – in a collateral petition for habeas corpus – that Geneva gives him a right to repatriation to his home country now that the relevant armed conflict is over, and extradition to France would violate that right.

Having garnered only two (of the required four) votes to take the case, Justice Thomas lamented the Court’s decision to deny cert. The Court should’ve granted review to “provide much-needed guidance” on issues “with which the political branches and federal courts have struggled since we decided Boumediene [recognizing the constitutional right of Guantanamo detainees to seek writs of habeas corpus in federal court].” As Justice Thomas notes: “It is incumbent upon us to provide what guidance we can on these issues now. Whatever conclusion we reach, our opinion will help the political branches and the courts discharge their responsibilities over detainee cases, and will spare detainees and the Government years of unnecessary litigation.” Why would this case have any relevance for the Gitmo detainees, none of which to date has been designated a “prisoner of war”? Because, says Justice Thomas, one of the government’s arguments before the 11th Circuit below was that Noriega’s claim was barred by Section 5 of the Military Commissions Act of 2006 (a provision amending the habeas statute directly and therefore untouched by the new Military Commissions Act of 2009). Recall that Section 5 provided as follows: “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” Noriega had argued that Section 5 is, among other things, unconstitutional. But if the provision is constitutional, and if Noriega can no longer “invoke” Geneva on habeas, then his case (and, Justice Thomas appears to hope, those of many of the Gitmo detainees) would certainly be over.

I’ve written elsewhere about some of the many problems surrounding Section 5 (including its implications for the “judicial power”), so won’t much rehash them here. The dissent is remarkable for reasons well beyond its unsurprising attraction to Section 5. Probably most striking is that in its rush to urge the Court’s engagement in the case, the dissent opens by invoking Marbury v. Madison itself: “[I]n our tripartite system of government,” it is the duty of this Court to “say ‘what the law is.’” When was the last time the Court’s conservative wing seemed so keen to give guidance to the political branches on the matter of how to exercise its “war powers,” so to speak? Guess it’s all about the judicial power now.

Also impressive are the lengths to which the 15-page dissent-from-denial goes to establish that the Geneva Conventions in general are mentioned in any number of government decisions of late – so as to further demonstrate, I take it, that the political branches would benefit from the Court’s clarification here. After mentioning a handful of lower court decisions involving Gitmo detainees (while later, in a footnote, acknowledging that those cases don’t actually address the question of Section 5’s validity presented in this case), the opinion mentions the President’s Executive Order of last year mandating that Common Article 3 of the Conventions (prohibiting torture, cruel treatment and the like) provide the “minimum baseline” for the treatment of any detainee in U.S. custody. And the opinion notes that Congress is considering – but has not yet actually acted upon – other legislation that might also implicate the rights of detainees under the Geneva Conventions. I am not aware of any litigation “invoking” Geneva to challenge the President’s decision to recognize detainees’ entitlement to Common Article 3 protections. I am also not familiar with any Court decisions that aim preemptively to clarify an issue of law so that Congress might more easily legislate about it. (Examples to the contrary most welcome.) I do, however, recall someone’s old thought about how the Court wasn’t going to engage in the issuance of advisory opinions. Could be Justice Thomas thinks it’s time to revisit that question.

In more concrete terms, the dissenters see the value of taking the Noriega case now as centrally tied to the Court’s ability – through evaluating the validity of Section 5 – to shed light on “the contours of the substantive and procedural law of detention” affecting the Gitmo detainees that the Court left vague after Boumediene. True enough, Boumediene did not decide which if any of the Gitmo detainees could be lawfully held under the substantive law of armed conflict detention. Yet it is not at all clear that Section 5 has any bearing at all on the scope-of-detention cases now working their way through the courts below. As all of the lower courts to face the question have held, who the government may detain in the ongoing conflict turns on a reading of the statutory Authorization for the Use of Military Force passed in late 2001. It is true that the courts – and the Administration – have recognized that the Geneva regime, as well as other relevant international law, can properly inform the courts’ understanding of the meaning and scope of that statute. But this indirect reliance on the Geneva Conventions – as an aid to interpreting a federal statute – seems at least arguably different from the reliance Congress aimed to target in Section 5 – namely, detainees invoking Geneva as a “source of rights.”

In all events, the reasons that likely led the other 7 justices on the Court to decide against taking this case seem inescapably salient. Most important, deciding any number of weighty and complex Section 5 issues would make no difference in the outcome for Mr. Noriega. That is, even if Noriega is properly designated a POW and even if the treaty is enforceable in every respect in federal court, he’d still lose on the substance of his claim that he can’t be extradited post-conflict to face criminal trial. As the appeals court noted in rejecting Noriega’s Geneva claim, (and as the Obama Administration argued in asking the Court to deny cert), while Geneva Article 118 requires the prompt repatriation of POWs at the end of hostilities, Article 119 authorizes the detention of POWs against whom criminal proceedings are pending. Proceedings are effectively pending against Noriega in France. There’s just no winning claim here. Add to that the uniqueness of Noriega’s particular circumstance - his apparent status as sole U.S.-held detainee designated a POW; and the Solicitor General’s own, traditionally weighty, opposition to the Court’s taking the case – and one has a classic case for cert denial. I suspect it’s a good thing a majority of the Court agreed.

Cross-posted at Balkinization

The new year starts with no shortage of Gitmo-related matters to blog about, starting with today’s important decision from a panel of the D.C. Circuit Court of Appeals ruling (for the first time) on the merits of one of the few dozen decided Gitmo habeas petitions. The ruling, affirming the lower court’s decision to deny habeas to a Yemeni detainee, is here.

There a host of interesting holdings here – both on the question of who may be detained under the 2001 Authorization for the Use of Military Force (AUMF), and to what procedures they are entitled in determining their status. But the panel’s ruling on how to interpret the AUMF – namely, that the meaning of the AUMF is not constrained or apparently informed by the international law of war (IHL) – is one of the most troubling highlights.

Before embarking on its analysis of who may be detained under the AUMF, the panel majority writes: “The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.” While “the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks …, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”

Not entirely clear exactly what this means, but let’s start with what this says about the state of judicial deference to executive interpretations of international law. The Obama Administration, after all, had squarely taken the position in briefing the Gitmo cases that IHL directly informs the interpretation of the AUMF. (The Administration also just succeeded in persuading Congress to delete from the latest version of the Military Commissions Act language from the Act’s 2006 version that prohibited so much as the invocation of the Geneva Conventions as a source of law in any U.S. court.) Given how much time courts – especially the D.C. Circuit – have devoted historically to explaining how the President is entitled to deference by the courts on matters of foreign affairs and national security, curious at least that the Administration’s view of this particular question evidently merited no such attention.

Then there’s the matter of the accuracy of the panel’s sweeping – and gratuitous – statement that the international laws of war are not a source of authority for U.S. courts. Set aside the fact that the executive disagrees. And the fact that a majority of the Supreme Court justices in Hamdi also thought international law informed the AUMF’s interpretation. Even the Supreme Court’s recent Medellin decision – with its suspect and starkly limited understanding of the effect of treaties in federal court – seemed to understand that whether or not a treaty is “self-executing” or not (i.e. whether it is a source of authority in U.S. courts) depends not only on the particular treaty but also on the particular provision within the treaty. The D.C. Circuit panel doesn’t pretend to undertake any such analysis. Rather, it finds simply “no occasion… to quibble over the intricate application of vague treaty provisions and amorphous customary principles.” It may be true that IHL ultimately provides inconclusive guidance in settling the legality of detention in a particular case. But the panel here reached out far beyond that in waving aside the Geneva Conventions – and any other source of international law – in their entirety. Poorly done. And rich fodder for appeal.

Cross-posted at Balkinization

Nothing like Friday afternoon with the President overseas for a little news: The men accused of conspiring to commit the 9/11 attacks will be tried in federal court in New York City. Five other men, including a man accused of involvement in the USS Cole bombing in 2000, will face trial before new and improved (if not perfect) military commissions. White House Counsel Greg Craig resigns, over many, rightly disputed accusations that he should have resolved the 8-years-in-the-making Gitmo mess in his first 365 days.

In case those stories don’t give you enough to digest, you might have also done well to catch a series of administration officials (among others) talking about military commissions and the like on panels yesterday and today at the ABA’s Annual Review of the Field of National Security Law in Washington, D.C. (Full disclosure: I did a military commissions panel with Robin Jacobsohn, Deputy General Counsel at DOD; Col. Mary Perry, Director of the Operations and Int’l Law Division at the Air Force TJAG’s office; Scott Silliman of Duke and Jonathan Hafetz of the ACLU. ) You should also probably read yesterday’s white paper from the Center for American Progress think tank (CAP) in D.C. arguing, inter alia, that the remaining Gitmo detainees who may lawfully continue to be held under the AUMF and laws of war should be transferred for continued detention to Bagram Air Base in Afghanistan. And that if you want to know how the Afghans are doing in preparation for taking over detention and trial operations themselves one of these days, two new Human Rights First reports on U.S. detention operations in Afghanistan are certainly worth reading, available here and here. Hint: Not so well.

For the moment, I’ll stick with today’s blockbuster prosecutions announcement. The decision to pursue the highest profile prosecutions of the 9/11 co-conspirators like Khalid Sheik Mohammed in federal criminal court in New York is wise, welcome and long overdue. We have prosecuted the likes of KSM in federal court before, we can do it again. The decision to use military commissions – improved though they may be – is, as I’ve written here before, a greater gamble.

As the Supreme Court has consistently recognized, our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited. As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)? And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998. See, e.g., here (scroll down). Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.

There may be an available legal theory that explains the decision making here. But I didn’t quite get an answer to any of this from my thoughtful co-panelists from the Administration today. In all events, for these, among many other reasons, the Administration will have a long road ahead of it as it pursues commissions.

From our friends at George Washington Law School:

The George Washington University International Law Review is now accepting submissions of book reviews for publication in Volumes 41 and 42. Book reviews should be written on a recent or forthcoming book discussing a timely issue in international law. Word count should not exceed 9000 words. Submissions must be in Microsoft Word (.doc) format and include a copy of the book-review author’s curriculum vitae. Please send submissions and any inquiries to Dana Parsons at dparsons [at] law [dot] gwu [dot] edu.

Cross-posted at Balkinization

Here follows a revised version of the blog I posted earlier today. It turns out the final version of the legislation that passed the House was largely untouched after all.  The full text of the mammoth Defense Authorization Bill in which the military commissions legislation is included is available here; the military commissions provisions are found beginning at p. 979.   Serves me right for trusting any old email attachment headed “Military Commission Legislation as Passed.” My sincere apologies to readers.

The revised take is somewhat more favorable: Unlike Congress’ incoherent efforts to prohibit the transfer of Guantanamo detainees to the United States for trial (which for the moment appear to have failed), and Lindsay Graham’s (similarly incoherent and now unsuccessful) efforts to require that certain detainees be tried in military commissions even if they could be prosecuted in federal criminal court (the opposite of the way the Supreme Court has traditionally understood military courts of necessity to work), the new military commissions legislation remains a mixed bag. It has some good changes, some not so good, and some provisions whose impact will have to be determined in practice.

In something of a surprise move, the Supreme Court decided today to grant cert in Kiyemba v. Obama – an enormously important case about whether or not the federal courts have the power to order Guantanamo detainees (whose writs of habeas corpus have been granted) released into the United States. The NYTimes story is here. The Justice Department’s statement on the grant is here.

From The Times story:

The case concerns 17 men from the largely Muslim Uighur region of western China who continue to be held although the government has determined that they pose no threat to the United States.

Last October, a federal judge here ordered the men released. But a federal appeals court reversed that ruling in February, saying that judges do not have the power to override immigration laws and force the executive branch to release foreigners into the United States.

An appeal from the Uighurs has been pending in the Supreme Court since April, and it is not clear why the justices acted on it now. The Obama administration has sent some of the prisoners to Bermuda, and Palau has said it will accept most of the rest. But one prisoner apparently has nowhere to go.

The prisoners have said they fear they will be tortured or executed if they are returned to China, where they are viewed as terrorists.

The case presents the next logical legal question in the series of detainee cases to reach the court. Last year, in Boumediene v. Bush, the court ruled that federal judges have jurisdiction to hear habeas corpus claims from prisoners held at Guantánamo.

I feel as though I should start by apologizing from my mini-blogging hiatus. Nothing like prepping a new course to distract one from the trials of law outside the classroom.

Thanks to my Opinio Juris colleagues Julian Ku and Ken Anderson, as well as Ben Wittes, among others, there’s ample reason for re-engaging.  As Julian and Ken have noted with approval, Wittes wrote in the Post this week to attack the Obama Administration’s apparent decision not to seek new “preventive” detention legislation as it goes about the necessary business of closing Guantanamo. The essence of Wittes’ critique is the thesis he’s pursued in more than one book over the past few years: If we’re going to be in the business of counterterrorism detention (as surely we should be), far better to have the contours of those rules (who may be detained, and pursuant to what set of procedures) set forth in clear legislation, rather than settled piecemeal by the courts. Not to do so at this stage, according to Ben, amounts a presidential endorsement of the views of Dick Cheney.

Here’s why I continue to think that Ben is wrong, that the President is right, and that the actual Dick Cheney approach just suffered another blow.

Among many administration doings on the human rights front this week, the Senate this week voted to confirm Mike Posner as Assistant U.S. Secretary of State for Democracy, Human Rights and Labor. Mike had served as executive director at Human Rights First (formerly the Lawyers Committee for Human Rights) for decades since its founding, and is as steeped as anyone in the full breadth of current human rights challenges in the U.S. and abroad. (Full disclosure: he’s also my former boss.) For the record, here’s the email Human Rights First sent to its mailing list announcing the confirmation, from Elisa Massimino, the current executive director.

Well, it’s official. Last night the Senate voted to confirm Mike Posner as Assistant Secretary of State for Democracy, Human Rights, and Labor. Today, after 31 years at the helm of Human Rights First, Mike starts on a new journey, taking up the challenge that President Obama and Secretary Clinton have given him to guide U.S. human rights policy and restore U.S. leadership and commitment to the rule of law. I can’t think of anyone better suited to meet that challenge than Mike.

As Mike steps onto this broader stage, he knows we are right behind him—to encourage him, to support him, and to press the United States to live up to its ideals and commitments to respect human rights here at home and around the world. Someday, he may regret that he trained us all so well—but I have a feeling that will make him smile.

Last week, as the staff at Human Rights First toasted Mike in anticipation of his impending confirmation, Mike’s parting words underscored for all of us why he has been able to make such a difference in the world over so many years: “It’s about people.” That has made all the difference, both for those of us who have been privileged to work for him, and for the wider world. Mike never forgets why he is in this fight—to be a voice for the voiceless and to protect the vulnerable, whose lives are in the balance.

Mike takes that profound commitment, which has guided him throughout his career, into a new realm today. We are incredibly proud and excited for him as he takes up this new challenge. I hope you will join me in celebrating Mike’s accomplishments and wishing him the best for the challenges that lie ahead.

As usual, Laura Rozen (now at Politico) is on top of the latest international law news at Foggy Bottom. Columbia Law Professor Sarah Cleveland has been appointed Counselor on International Law in the office of State Department Legal Advisor Harold Koh. According to an email circulated by the school’s dean announcing the appointment, Cleveland will “help develop the State Department’s position in U.S. litigation involving international and foreign relations law issues, including human rights cases in U.S. courts,” and (critically) help State, DOJ, and the White House coordinate on these issues. Professor Cleveland’s 2006 piece in the Yale Journal of International Law, “Our International Constitution,” is still the most comprehensive work I’ve seen on how to think about the relevance of international and foreign law to U.S. constitutional analysis. As with Harold Koh, she is superbly well qualified to take on what remains an extremely full plate of issues. Great news all around.

I was all set to zone out this vacation when we happened to stroll passed an SUV featuring one bumper sticker (among others) announcing: “Waterboarding: Keep it safe, legal and rare.” Nothing like a little vacation motivation to make me peruse (at an admittedly slower pace) the wave of old OLC that came along with the 2004 CIA inspector general’s report and other CIA memos that documented in brutal detail exactly what we were doing to prisoners of that era.  While I haven’t come close to reading everything yet, I’d say the most remarkable memo I’ve encountered so far out of DOJ is one of far more recent vintage: a July 20, 2007 from then Principal Deputy Assistant Attorney General Steven Bradbury to John Rizzo, Acting CIA General Counsel.