A single, bad-weather week in January seems to bring more actual news than blog commentary about it. Among under-blogged tidbits this week:
• A federal court in Washington heard the first post-Boumediene case about whether constitutional rights extend to U.S. military-held detainees in Afghanistan;
• Senator Feinstein (no kidding) introduced a bill that would not only mandate the closure of Guantanamo, but also limit the use of certain interrogation techniques, prohibit interrogation by contractors, and require the International Committee of the Red Cross be notified of all detainees in U.S. custody (see S. 147, the Lawful Interrogation and Detention Act of 2009);
• House Judiciary Committee Chairman John Conyers proposed legislation to create a National Commission on Presidential War Powers and Civil Liberties, a blue-ribbon panel of outside experts to probe Bush administration practices of detainee treatment and warrantless wiretaps; and
• Published rumors emerge that Anne-Marie Slaughter (past president of the American Society of International Law and author of, among other works, A New World Order) may be tapped to head the State Department’s big-think Office of Policy Planning.

As it is still AALS season (and duly attuned to the time-consuming dangers of untenured blogging), I’ll just pick up on the Afghanistan case. You’ll recall that when the Supreme Court announced last summer that detainees held at Guantanamo Bay had a right to a habeas corpus review under the U.S. Constitution, giant-question-left-open #1 was whether that right extended to detainees held in what looked like more traditional circumstances of armed conflict. Did Boumediene mean for habeas to reach the 600-some detainees now held at Bagram Air Force Base in Afghanistan? Justice Kennedy’s ruling in Boumediene was nothing if not intensely functional in nature, so the parties’ briefs (and argument) devoted substantial time to discussing how the Kennedy criteria for determining when/whether the U.S. Constitution applies extraterritorially: (1) the citizenship and status of the detainees and the process for determining their status; (2) the nature of the sites of apprehension and detention; and (3) the practical obstacles to extraterritorial application of the constitutional right. As usual, the best account of the hearing can be found at Scotusblog.

Yesterday’s upshot:

U.S. District Judge John D. Bates strongly implied that he thought some individual cases could go forward without disrupting U.S. military operations at an airfield in Bagram, Afghanistan. He did so in the face of repeated arguments by a Justice Department lawyer that any access to the courts for even a single detainee at Bagram would necessarily extend to all detainees held by the U.S. anywhere around the globe. Deputy Assistant Attorney General John C. O’Quinn said that “if habeas applies to Bagram, it runs to the four corners of the world.”

For you law-of-armed-conflict fans, looks like Judge Bates was particularly interested in where the petitioners were initially captured; most claim they were no where near Afghanistan much less an Afghan battlefield when taken into custody. (Petitioner Redha al-Najar, for example, has witnesses who say he was in his home in Karachi, Pakistan when taken.) While the issue looks like it arose at the 3.5-hour hearing in discussions of Kennedy’s practical-obstacles test (it’s not like the military would have to pull witnesses off the battlefield to testify since these guys weren’t seized anywhere near a battlefield), it starts to sound an awful lot like Judge Bates (whether he knows it or not) is preemptively worrying about the merits of the core LOAC questions needing to be faced: Is there a non-international armed conflict between the United States and (say) Al Qaeda that, with adequate domestic authorization, would allow the U.S. to capture Pakistanis (or Americans for that matter) anywhere they might be found? How direct does participation in such a conflict really need to be to justify detention in such a setting (assuming the direct participation standard really matters to anything other than targeting)?

With it still unclear what position the new Obama Administration will take on such weighty matters (a question also on the judge’s mind), I wouldn’t look for that question to get settled on the merits in this forum anytime soon. In the meantime, though, we may learn a little more on the facts. After yesterday’s hearing, Judge Bates ordered the government to tell the court exactly how many detainees there are at Bagram, how many are Afghan citizens, and how many were captured elsewhere. Stay tuned.

At the risk of contributing further to Ken’s angst about the coming post-Guantanamo future, I thought OJ readers might be interested in this latest entry in the public what-to-do-next discussion. Fordham Law School’s Leitner Center for International Law and Justice has begun posting a series of white papers prepared by various groups of scholars with recommendations about international human rights issues under the new administration. Of particular interest might be the Scholars’ Statement of Principles for the New President on U.S. Detention Policy, which addresses Guantanamo (among other things). Prepared under the auspices of the progressive think tank Center for American Progress, the detention white paper is signed by, inter alia, Derek Jinks, Sarah Cleveland, Gene Fidell, and Brig. Gen. David R. Irvine, U.S. Army (Ret.) (Irvine is a former interrogation instructor at the Sixth U.S. Army Intelligence School). Full disclosure – I signed onto it, too. For what it’s worth, at least “some” in the scholars group acknowledged the possibility of ongoing detention – consistent with U.S. and international law – for some of those currently held at Gitmo.

Some of the undersigned note that the new Administration, in its own review, may identify exceptional cases in which a detainee has not demonstrably committed a crime (for example, because there is a lack of admissible evidence to try the detainee for a crime), but the government has evidence to support its conclusion that the detainee has engaged in belligerent acts or has directly participated in hostilities against the United States. Continued detention of such detainees must be in accordance with the principles and policy recommendations outlined in this Statement … [and applicable U.S. and international law].

UPDATE: Lest my nudge back to Ken risk distorting the overall gist of the document, I should hasten to clarify that the signatory scholars were united in opposing “any effort to extend the status quo by establishing either (1) a comprehensive system of long-term ‘preventive’ detention without trial for suspected terrorists, or (2) a specialized national security court to make ‘preventive’ detention determinations and ultimately to try terrorism suspects.”

Over the weekend, Stuart Taylor joined the cast of conservative legal commentators (see also Jack Goldsmith, Ben Wittes, Jack Goldsmith and Ben Wittes) offering advice to the incoming Obama Administration on how to right the legal ship of security and state. Taylor’s reasonable jumping-off point: the actual security threats against the United States…

No less an authoritative source than the Wall Street Journal reports that outgoing Homeland Security Secretary Michael Chertoff may be rethinking his views on what makes for effective counterterrorism strategy.

The Bush administration’s point man in protecting America against terrorism says U.S. investments in safety should not be restricted to airport screening machines or border fences. Michael Chertoff says the U.S. also should spend more on foreign-aid programs, scholarships for foreign students and other tools of so-called soft power. The idea isn’t new, but the messenger is. Mr. Chertoff, secretary of the Department of Homeland Security since February 2005, heads an agency known for its crackdowns on immigration and the ratcheting-up of passenger screening at airports. He spent the first three years of his tenure working to integrate the 22 agencies and roughly 200,000 employees that make up the department, which was formed after the Sept. 11, 2001, attacks. Mr. Chertoff said he came to his views over the past six months or so, when he finally had time to think about big-picture challenges. Now, he said, “a lasting victory in the safeguarding of the country” can be achieved only by marrying traditional security with winning “a contest of ideas, and a battle for the allegiance of men and women around the world.” …. “I don’t believe you can placate your way out of threat by terrorism,” Mr. Chertoff said. But at the same time, “if you can affect the recruiting and the sympathy and the pool of people in which terrorists recruit, from a long-term standpoint, that’s the effective strategy.”

Still seems like a long-shot for getting that life-tenure federal judgeship back.

Thanks Ken. Let me try to clarify again. On one level, you’re quite right: many human rights advocates believe a new system of administrative detention – beyond the criminal law and beyond the Geneva regime – is not a good idea as a matter of policy. (I hasten to add many who are not human rights advocates think a new administrative detention regime is a bad idea as well.) Objecting to such a new regime on policy grounds is, of course, different from asserting that it is categorically prohibited as a matter of international human rights law. Now I hardly wish to defend, explain or criticize Professor Scheinin’s particular remarks; among other things, I wasn’t at the 2007 discussion you mention and haven’t seen a transcript. The relevant paragraph of the report you reprint on this question is almost entirely limited to the Guantanamo detainees. And where it is not (as I read it, only in the last sentence of the second paragraph), it seems to be taking a position on the applicability of existing international humanitarian law (the law of armed conflict). On that question – whether there is an ongoing armed conflict in Afghanistan – I’ll have to respectfully disagree. I believe there is. As you point out, not even the ICRC is likely to dissent here. As for the no doubt considered views of our friends at HRW, HRF, ACLU, and beyond, we’ll have to trust them as always to speak for themselves.

With apologies for arriving late to the helpful Hakimi-Waxman-Anderson exchange, I thought it worth noting the apparent consensus on at least one position I, too, share: there is no categorical international law prohibition on “administrative” (or otherwise non-criminal) detention.  Indeed, I’m not sure I could name a human rights or humanitarian law scholar I know who thinks otherwise (though it’s entirely possible I just don’t get around enough).

At risk of distracting us too soon from the merits vel non of natural law, I wanted to take up another piece of Mary Ellen’s account – namely, her fairly positive outlook on the prospects of domestic court enforcement of international law.

Despite the subject matter’s placement in the very last chapter of the book, Mary Ellen I think rightly notes: “National courts are, in many respects, the most important institutions for enforcement of international law.” They are, she posits, the “most commonly used method of international law enforcement and in many respects the most attractive.” While national courts have imposed various discretionary or prudential obstacles to the successful enforcement of international law, Mary Ellen says, “these self-imposed limits have been diminishing in recent decades.”

I admit to stumbling a bit over the empirical claim…

Turns out rumors of a new Obama Administration-developed security court may have been greatly exaggerated – or at least premature. The blogosphere was briefly abuzz yesterday after an AP wire story in the morning reported that some of the Guantanamo detainees “might have to go before a new court designed especially to handle sensitive national security cases, according to [unnamed] advisers and Democrats involved” in talks with the Obama transition. In particular, “[a]ccording to three advisers participating in the process, Obama is expected to propose a new court system, appointing a committee to decide how such a court would operate.”

By last evening, CNN was quoting an actually named transition adviser who had a rather different take. According to senior adviser Denis McDonough, no decisions had been made about what to do with the remaining Guantanamo inmates when the base is closed, and moreover “there is no process in place to make that decision until [President-Elect Obama’s] national security and legal teams are assembled.”

McDonough’s position is not only obviously right, it’s far more likely true. The resolution of the cases remaining at Guantanamo is as fraught an endeavor as any, sensibly resolved only with the input of an interagency-type team including at a minimum the Departments of Defense and Justice, CIA and State. It also seems like the kind of judgment that one wouldn’t want to make without having actually reviewed the full factual record the government has assembled on the individuals who remain – a record that still has been only partly made public. It’d be one heck of a transition team that had managed to make time in the first week to review all 250+ cases from Gitmo on the (classified and unclassified) facts.

A whole lot of folks are understandably – and rightly – keen to see Gitmo resolved ASAP. But as someone (could be the president-elect) once said with respect to Iraq – we need to be as careful getting out as we were careless getting in. There are a few things, including a clear statement of purpose, that can happen right away. For the rest, we’ll have to wait at a minimum til after January 20.

If there’s one thing the new administration isn’t going to be lacking it is plans for how to correct the rule-of-law failures that have dogged U.S. counterterrorism policy in the post-9/11 world. As someone put it to me last week (hat tip to whomever it was!), you can’t swing a dead cat around Washington these days without running into a plan for how to close Gitmo.

While the Bush Administration may have reconciled itself to leaving office with the detention center at Guantanamo Bay still up and running, the U.S. federal courts continue pushing the detainees’ cases ahead toward resolution.  After briefing by the parties on their competing definitions of “enemy combatant,” U.S. District Judge Richard J. Leon yesterday announced a ruling…

Kristen’s last post concludes by opening the giant can of worms at the heart of international human rights law: “Farer’s analogy [between recent U.S. counterterrorism measures and Latin American practices in the 1980’s] shows weaknesses in the [human rights] compliance system generally…. [B]ecause it remains an issue of domestic competence as to whether human rights are enforced in the face of an emergency, international law must find incentives to effect compliance with human rights.”

The topic of incentives for states to comply with international law comes up regularly in conversations here at Princeton with my political science colleagues. In these conversations it seems easy to buy the argument for why, for example, international trade laws and institutions can have an effect on state behavior (to the extent they do). They’re structured around and depend on economic interests – incentives one can count on states to have and to act upon in one particularly reliable direction.

It is perhaps unfair to put Kristen and Tom on this spot on this rather enormous point, so of course all responses welcome. But if one excludes economic incentives from the box of tools one contemplates deploying in support of international human rights enforcement (and we can talk about whether or not this exclusion makes sense) – what incentives do you think would be plausibly effective? Or more to the point, what non-economic state interests do you propose to target in a way that makes international human rights enforcement regimes more effective than they currently are?

There’s so much domestic news these days it would’ve been easy to miss Eric Lichtblau’s story in yesterday’s New York Times about legislation introduced in Congress just before the August recess that would substantially define the scope of the United States’ war with Al Qaeda, et al. Indeed, it’s not clear why the Times itself finally just realized the significance of the bill – it was introduced back in July. Late though it may be, the Times was right to note the bill’s significance. Introduced by Senators Lieberman and Graham in the Senate (with a companion bill in the House), the bill is principally devoted to further tinkering with the review scheme for Guantanamo detainees, a response to the Supreme Court’s recognition of constitutional habeas rights for the detainees in last term’s Boumediene case.  Beyond that, though, it carries a major new authorization for executive detention – the grandest by far since the original authorization for the use of military force Congress passed in the weeks just after 9/11.  Here’s the key provision…

The sole virtue of being the last among bloggers to weigh in on yesterday’s Hamdan verdict is having a chance to read what everyone else is saying. The New York Times, the ACLU, Human Rights First and others are pretty scathing in their criticism: don’t be fooled by the patina of fairness evinced by the split verdict, this system is irretrievably broken.

The White House’s rhetoric was comparatively reserved, saying in a statement the Times quotes: “The military commission system is a fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States or our interests. We look forward to other cases moving forward to trial.”

The campaigns largely talked past each other on how trials for detainees like Hamdan should be handled. After proclaiming the verdict as evidence of the system’s success after Congress fixed it by passing the MCA in 2006, McCain’s statement says:

This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice. The fact that the jury did not find Hamdan guilty of all of the charges brought against him demonstrates that the jury weighed the evidence carefully. Unlike Senator Obama who voted against the MCA and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.

Of course, that’s not quite Obama’s position. That campaign issued this statement:

I commend the military officers who presided over this trial and served on the hearing panel under difficult and unprecedented circumstances. They and all our Armed Forces continue to serve this country with valor in the fight against terrorism. That the Hamdan trial - the first military commission trial with a guilty verdict since 9/11 - took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice. And while it is important to convict anyone who provides material support for terrorism, it is long past time to capture or kill Osama bin Laden and the terrorists who murdered nearly 3000 Americans.

And everyone recognizes there are appeals to come, as well there should be. But while there are obviously some important legal questions to be resolved here (on that I hope later better than never), I confess I’m not sanguine about the likelihood of Hamdan prevailing, as much for reasons of atmospherics as law. In many respects, this trial gave the impression of normalcy. The ‘judge’ evaluated a host of pretrial motions, ruling in Hamdan’s favor on some, in the government’s favor on others. The ‘jury’ deliberated at length and thoughtfully, acquitting Hamdan of the broadest (and least plausible) allegations that would have led him to taking direct blame for terrorist attacks of which he was (at most) distantly aware. There are enormous questions of the legitimacy of some of the factual evidence the commission considered, but at base, my understanding is that the central conduct for which he was convicted – driving Osama bin Laden – is not actually much (or at all) in dispute.

Will a federal court look past these facial features to probe the real legal questions here? Only a delinquent court would fail to do so. But judges are not immune to atmospherics like this. And many have a habit to decide only what needs to be decided in the individual case. It’s the perception challenge that will be among Hamdan’s greatest on appeal. I’d welcome being proven wrong.

Well, the Hamdan verdict is in: guilty on five counts of material support to a terrorist organization, but significantly for cases to come - not guilty on the far broader charge of conspiracy. The Times’ story is here. Sentencing to follow this afternoon.

This is hardly the end of the story. There will certainly be appeals. But it is no doubt a significant milestone: the first trial conviction of any of the detainees at Guantanamo Bay. I’ll be back later this afternoon with some more detailed thoughts.

UPDATE: The Hamdan charge sheet is available here. Hamdan was acquitted of both specifications of conspiracy, and on Specifications 1, 3, 4 of the material support charges.

A quick note on the two latest case examples on the table in our ongoing detention debate. First, Mr. Al-Marwallah’s case is a prime example of why we shouldn’t make broad new detention policy based on the problems of Gitmo alone. Mr. Al-Marwallah may not be prosecutable for taking terrorist training pre-2001 since the criminal material support statute in effect at that time may not (emphasize may) have had the requisite extraterritorial scope. Any such lacuna in the substantive scope of the criminal law has since been corrected. Mr. Al-Marwallah, were he arrested today and gave uncoerced statements about his receipt of terrorist training, would be precisely prosecutable under at least two federal criminal laws I can think of, with few problems beyond. I believe we can handle the Mr. Al-Marwallah’s of the world today. No further legislation necessary. (As for Mr. Al-Marwallah himself, I’ll leave to Marty to detail the theory under AUMF, etc. as to what should happen now.)…

There seems to be something like consensus among us that the toughest remaining unanswered question relates not so much to procedure, but to the substance of who may be detained. And we have two very instructive approaches to this question – either asking who may be detained under current law (below, Marty calls our attention to Judge Wilkinson’s take, Roger to the Israelis’, and Bobby to Gabor Rona’s), or who should we be able to be able to detain in the interest of effective counterterrorism (Ben offers a concrete suggestion in his last post, and I’ve written elsewhere on this as well).

There are a few areas in which (I think we may all agree) the current law of “who” seems to match up more or less with current needs. If someone’s actually committed or attempted to commit an act of terrorism that can be demonstrated in court, the criminal law gives us plenty of authority to hold this guy (and try him). Likewise, if someone shoots at American soldiers on behalf of a foreign state (and this action is part of a more general conflict between their soldiers and ours), the Geneva Convention regime fits him fairly well, and detention is understandably authorized either under an act of Congress (like the AUMF) and/or the President’s Article II powers as informed/limited by the international laws of war…

Ben’s responsive post last night on the kind of detention review he favors (other than habeas) sets up perfectly what I take it is to be our topic for the day: whether a new detention statute is needed to resolve the situation at Guantanamo Bay. And between prior posts, recent Attorney General speeches, and the reality more or less of the situation, I think it’s fair to say we’ve got two broad topics for such legislation on the table: (1) new procedural guidance, and (2) guidance on who may be detained. I’ll take up a response to Ben’s latest on the procedural point here and I hope come back to “who” in a later post.

Ben writes: “What procedural rights do detainees have? I would answer these questions differently than the CSRT-DTA system did, but right now, we have no answers to them at all.” I guess I just don’t see it that way. Let’s start with the basic habeas corpus statutes, 28 U.S.C. §§ 2243–2248. What happens after a petition is filed? Well, for example, the government has to file a return “certifying the true cause of the detention,” (§2243, ¶3); the petitioner then gets a chance to “deny any of the facts set forth in the return or allege any other material facts,” (§2243, ¶6); the court can allow either party to amend these pleadings if it wants, (§2243, ¶7); and then on to the taking of discovery if it makes any sense in the case (§2246). All this so that the court can “hear and determine the facts, and dispose of the matter as law and justice require,” (§2243, ¶8). Then there’s some useful case law on all of this. And the Supreme Court has already helpfully said (in Hamdi) that these rules are the place to go…

You write that you are “deeply disquieted by any substantial role for judges in the design of the systems in which they will play that key adjudicatory role.”  So judges deciding cases based on the review scheme set forth in the brand new DTA (and MCA) statute is good.  Judges deciding cases based on the review scheme set forth in the age-old habeas statute and as elaborated over centuries of common law practice is deeply disquieting? I think I need to understand in more detail here why you think there’s an important structural difference as between these options.

First, thanks to all for the great opening posts, and more broadly to Chris, Peggy, and the whole Opinio Juris crew for welcoming me into the fold. I’m delighted to join such a dynamic forum, and very much look forward to our exchanges ahead.

Ben suggests as a central topic to kick of this week’s discussion a broad structural question: “Does anyone think the optimal environment for executive prosecution of the war on terror (or whatever you want to call it) involves, for example, having no legislative guidance regarding whom to detain or under what rules?” Well, setting aside the whole “is it a ‘war’ on terror” question for a moment, no one I know thinks Congress has no role to play in U.S. counterterrorism law and policy. Or, with fewer negatives: Yes of course, Congress has an important role to play. I’d also wholeheartedly agree that Congress has acquitted itself rather poorly so far, remaining AWOL on critical questions of detention, interrogation, etc. long after it had become clear (for example) that this administration had some pretty radical views, both on the scope of its own power, and on what makes for effective national security policy. We’ll disagree, Ben, about what exactly Congress should do with its power, but if your book’s primary point is this structural one – no issues there. Indeed, I can’t think of anyone I’ve encountered (human rights advocate or no) who’d disagree. . .

Though the opinion in Munaf and Omar should give us all some pause, I’m still thinking that yesterday’s Boumediene opinion comes as close as I’ve seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security.

The majority opinion doesn’t just embrace a functional approach to resolving questions of the scope of the Constitution’s applicability abroad. (When constitutional lawyers talk about functional approaches, they generally mean something that takes into account the practical effects of a particular outcome in resolving questions of constitutional power). In announcing the practical considerations that matter, Justice Kennedy’s opinion gives executive claims of security necessity (that is, the executive’s view of what’s practical) at Guantanamo the back of his judicial hand.

What does matter in determining whether the Constitution (here, the Suspension Clause) constrains U.S. actions outside the territorial United States? Kennedy says three things: 1) citizenship and status of detainee; 2) the nature of the site of the detainee’s apprehension and detention; and (3) practical obstacles inherent in resolving entitlement to writ. What about the practical obstacle the administration’s been touting all along—that full habeas hearings with consideration of all evidence and so forth would compromise U.S. national security? According to Kennedy: “The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Ouch.

Marty’s right that the decision leaves open the critical next question of what about the habeas petitioners today held at the United States base in Bagram, Afghanistan. But that’s a pretty strong shot across the bow of the executive branch all the same.

[Cross-posted at Convictions]