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Deborah Pearlstein

CIA Comments on Zero Dark Thirty

by Deborah Pearlstein

This statement, coming from the Acting Director of the CIA, is perhaps even more remarkable than the Senators’. The press release is posted on the CIA website and is reprinted below.

Statement to Employees from Acting Director Michael Morell: “Zero Dark Thirty”
December 21, 2012
________________________________________
I would not normally comment on a Hollywood film, but I think it important to put Zero Dark Thirty, which deals with one of the most significant achievements in our history, into some context. The film, which premiered this week, addresses the successful hunt for Usama Bin Ladin that was the focus of incredibly dedicated men and women across our Agency, Intelligence Community, and military partners for many years. But in doing so, the film takes significant artistic license, while portraying itself as being historically accurate.

What I want you to know is that Zero Dark Thirty is a dramatization, not a realistic portrayal of the facts. CIA interacted with the filmmakers through our Office of Public Affairs but, as is true with any entertainment project with which we interact, we do not control the final product.

It would not be practical for me to walk through all the fiction in the film, but let me highlight a few aspects that particularly underscore the extent to which the film departs from reality.

First, the hunt for Usama Bin Ladin was a decade-long effort that depended on the selfless commitment of hundreds of officers. The filmmakers attributed the actions of our entire Agency—and the broader Intelligence Community—to just a few individuals. This may make for more compelling entertainment, but it does not reflect the facts. The success of the May 1st 2011 operation was a team effort—and a very large team at that.

Second, the film creates the strong impression that the enhanced interrogation techniques that were part of our former detention and interrogation program were the key to finding Bin Ladin. That impression is false. As we have said before, the truth is that multiple streams of intelligence led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad. Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.

Third, the film takes considerable liberties in its depiction of CIA personnel and their actions, including some who died while serving our country. We cannot allow a Hollywood film to cloud our memory of them.

Commentators will have much to say about this film in the weeks ahead. Through it all, I want you to remember that Zero Dark Thirty is not a documentary. What you should also remember is that the Bin Ladin operation was a landmark achievement by our country, by our military, by our Intelligence Community, and by our Agency.

Michael Morell

Zero Dark Thirty

by Deborah Pearlstein

Today marked the limited release in the United States of the already much heralded new film on the United States’ hunt for Osama bin Laden. I have not yet seen the film and won’t comment on it until I do. But I do want to at least pass along this remarkable open letter issued today by 1 Republican and 2 Democratic Senators regarding the film’s depiction of torture.

December 19, 2012

Mr. Michael Lynton
Chairman and CEO
Sony Pictures Entertainment
10202 W. Washington Blvd.
Culver City, CA 90232-3195

Dear Mr. Lynton:

We write to express our deep disappointment with the movie Zero Dark Thirty. We believe the film is grossly inaccurate and misleading in its suggestion that torture resulted in information that led to the location of Usama bin Laden.

We understand that the film is fiction, but it opens with the words “based on first-hand accounts of actual events” and there has been significant media coverage of the CIA’s cooperation with the screenwriters. As you know, the film graphically depicts CIA officers repeatedly torturing detainees and then credits these detainees with providing critical lead information on the courier that led to the Usama Bin Laden. Regardless of what message the filmmakers intended to convey, the movie clearly implies that the CIA’s coercive interrogation techniques were effective in eliciting important information related to a courier for Usama Bin Laden. We have reviewed CIA records and know that this is incorrect.

Zero Dark Thirty is factually inaccurate, and we believe that you have an obligation to state that the role of torture in the hunt for Usama Bin Laden is not based on the facts, but rather part of the film’s fictional narrative.

Pursuant to the Senate Intelligence Committee’s recently-adopted Study of the CIA’s Detention and Interrogation program, Committee staff reviewed more than 6 million pages of records from the Intelligence Community. Based on that review, Senators Feinstein and Levin released the following information on April 30, 2012, regarding the Usama Bin Laden operation:

• The CIA did not first learn about the existence of the Usama Bin Laden courier from CIA detainees subjected to coercive interrogation techniques. Nor did the CIA discover the courier’s identity from detainees subjected to coercive techniques. No detainee reported on the courier’s full name or specific whereabouts, and no detainee identified the compound in which Usama Bin Laden was hidden. Instead, the CIA learned of the existence of the courier, his true name and location through means unrelated to the CIA detention and interrogation program.

• Information to support this operation was obtained from a wide variety of intelligence sources and methods. CIA officers and their colleagues throughout the Intelligence Community sifted through massive amounts of information, identified possible leads, tracked them down, and made considered judgments based on all of the available intelligence.

• The CIA detainee who provided the most significant information about the courier provided the information prior to being subjected to coercive interrogation techniques.

In addition to the information above, former CIA Director Leon Panetta wrote Senator McCain in May 2011, stating:

“…no detainee in CIA custody revealed the facilitator/courier’s full true name or specific whereabouts. This information was discovered through other intelligence means.”
We are fans of many of your movies, and we understand the special role that movies play in our lives, but the fundamental problem is that people who see Zero Dark Thirty will believe that the events it portrays are facts. The film therefore has the potential to shape American public opinion in a disturbing and misleading manner. Recent public opinion polls suggest that a narrow majority of Americans believe that torture can be justified as an effective form of intelligence gathering. This is false. We know that cruel, inhuman, and degrading treatment of prisoners is an unreliable and highly ineffective means of gathering intelligence.

The use of torture should be banished from serious public discourse for these reasons alone, but more importantly, because it is a violation of the Geneva Conventions, because it is an affront to America’s national honor, and because it is wrong. The use of torture in the fight against terrorism did severe damage to America’s values and standing that cannot be justified or expunged. It remains a stain on our national conscience. We cannot afford to go back to these dark times, and with the release of Zero Dark Thirty, the filmmakers and your production studio are perpetuating the myth that torture is effective. You have a social and moral obligation to get the facts right.

Please consider correcting the impression that the CIA’s use of coercive interrogation techniques led to the operation against Usama Bin Laden. It did not.

Thank you for your assistance on this important matter.

Sincerely,

Dianne Feinstein
Chairman
Senate Select Committee on Intelligence

Carl Levin
Chairman
Senate Armed Services Committee
Ex-Officio Member of the Senate Select Committee on Intelligence

John McCain
Ranking Member
Senate Armed Services Committee
Ex-Officio Member of the Senate Select Committee on Intelligence

Al Qaeda in IKEA

by Deborah Pearlstein

As loathe as I am to call any attention to Eric Posner’s latest over on Slate, his piece engaging the Jeh Johnson speech (about the notion that the Al Qaeda that attacked us on 9/11 might someday be defeated) is such a blast from the past it’s hard to resist. Turns out the President has really been detaining everyone under his Article II power all along; that “ordinary law enforcement” is useless against terrorism (guess someone forgot to tell the FBI and its 300-some indictments related to jihadist terror or national security charges since 2001); and that one of two key world changes in recent years that has made terrorism so much more dangerous is terrorists’ ability to miniaturize weapons (but see footnote 50 here). Plus ca change.

For now, let’s focus on the key point of Johnson’s speech: the suggestion that the effective dismantlement of core Al Qaeda might someday mean the AUMF no longer authorizes the President to continue detaining people on the grounds that we are in a conflict with Al Qaeda. Eric begins explaining the debate as follows: “[As civil libertarians wearing ‘rose colored glasses’ would have it,] [t]he AUMF triggered the president’s commander-in-chief power, which enables him to detain enemy combatants indefinitely and kill them with drones and other weapons….”

As an initial matter, hard to figure out what Eric means, “the AUMF triggered” the President’s Commander-in-Chief power. The President is CINC in wartime and not, and whatever powers Article II of the Constitution provides him (more on which anon) I figure they’d exist whether Congress “triggers” them or not. More to the point, it would be a lot easier just to describe the Jeh Johnson argument – the position taken not only by Jeh, but by the President, the Congress, and the federal courts – as what it actually is, namely, that the AUMF is the source of authority for at least a substantial chunk of the detention and targeting we’ve been doing (and certainly for the detentions at Gitmo).

In any case, the AUMF is I guess mostly beside Eric’s point. As he continues: “[E]ven if al-Qaida and its affiliates are destroyed, it will make little difference for the president’s authority to use military force against future terrorist threats. The president will retain his authority under the Constitution, Article 2 of which has been interpreted to give the president the power to use military force against security threats even in the absence of congressional authorization.”

Well, it’s true no doubt the President has some constitutional powers of national self-defense; indeed, the UN Charter (among treaties the U.S. has ratified) has a few things to say about states’ inherent right to repel such threats, provided they are, among other things, imminent. But I’m not sure I’ve ever heard quite so sweeping a description of the President’s use-of-force Article II power before – a power that lets the President do whatever he wants “against security threats” writ large? There is no support in domestic law for the proposition that the President has the power to use force against anything he deems a “security threat” anytime without authorization, and negative support in international law for the proposition that such a use of force (without, for example, a requirement of imminence) is lawful. (Harder still to see how such a power to repel imminent threats could support a decade-long detention program, for example, without congressional authorization. Anyway, again, I kinda thought we’d settled that.)

But one could easily get distracted addressing all the sweeping assertions about legal doctrine and security reality and miss the broader point. Namely, Eric thinks the ever-changing problem of terrorism is here to stay. With this, I agree. Don’t think I know anyone who thinks otherwise. But most folks – the General Counsel for the Secretary of Defense, among others – also think that the President’s powers to address the threat do and should have limits (statutory and otherwise) as a matter of law. So the question I took Jeh to be asking is what happens when, as will someday be the case, the particular terrorist group that attacked us on September 11 – to which one of those authorizations is, by its terms, tied – is effectively no more? What security policy best serves our interests in minimizing the forever kind of threat then? Knowing that our laws and practices influence the behavior of allies and enemies around the world, what powers do we want the U.S. government to have long term?

Here, too, hard at first to tell whether Eric’s response is more about security policy or statutory interpretation. He writes: “[A]lthough Johnson notes that the ‘core’ of al-Qaida has suffered a significant lashing, its affiliates are alive and well, especially in the Middle East, where they appear to be flourishing. The AUMF identifies the affiliates of al-Qaida as the enemy, as well as al-Qaida itself. As long as those affiliates remain in existence, the United States will be at war with them. And because ‘al-Qaida’ has become a kind of brand that any group can lay claim to, al-Qaida affiliates will be around as long as radical Islam is.”

I tend to doubt Eric means this mostly as statutory interpretation, given his view that the AUMF doesn’t much matter for purposes of the President’s power anyway, and given that as a matter of interpretation, the courts have already held the AUMF authorization extends to “associated forces” (as informed by international law), not “affiliates,” whatever that means. There’s also the not insubstantial conceptual problem of fitting terrorist groups into the kind of unified hub and spoke-type organization the AUMF (and international law) would seem to contemplate where the hub no longer exists. (The white petals of a daisy fall to the ground in disarray if the flower loses its yellow core.) It is also facile (and as best I can tell sometimes wrong) to imagine that just because another group of radicals has claimed the franchise name “al Qaeda” they in fact have any association with the al Qaeda that attacked us on September 11. (Just because I set up a coffee stand and hang up a shingle saying “Starbucks” doesn’t mean I have any affiliation with Starbucks. Indeed, sometimes it’s quite the contrary.) None of this is for a moment to suggest that all danger disappears along with ‘core’ Al Qaeda. It is only to point out that it is difficult to understand an idea of “associated forces” if there is no longer an extant group they are associated with.

So let’s set the law aside for a moment and take Eric’s point for what I think he means it to be – one of security policy. A policy that says, in essence, whatever and wherever the “radical Islamist” threat du jour, the best (only?) way of dealing with them is to call them all al Qaeda and target and detain them henceforth and forever. This would certainly be one way to answer the policy question. But Eric’s essay offers scant support for concluding it’s the right one. Meantime, security policy experts like (Iraq counterinsurgency guru) David Kilcullen have argued forcefully that lumping together relatively disparate terrorist groups is exactly the opposite of what would be effective if one’s goal were to undermine local insurgents’ potentially more far-reaching goals.

What Jeh’s speech very usefully opened is the possibility that it is time to design a post-crisis, post-emergency, post-war counterterrorism strategy going forward. One that is smarter than the ad hoc response we cobbled together in a hurry a decade ago, that takes account of lessons learned, and that has built in at its core (to use a word) a commitment to operating within a system of law. That is, a policy that includes law and legal constraints at the outset, but doesn’t let legal wrangling obscure the need for starting with a strategic goal.

Jeh Johnson and Harold Koh to Step Down

by Deborah Pearlstein

In case you missed it, the past week saw the announcements that both Pentagon General Counsel Jeh Johnson and State Department Legal Adviser Harold Koh would be stepping down from the Obama Administration at the end of the year. Johnson reports he’ll be returning to the private sector; Koh will head back to his professorship at Yale Law School.

The departures of course create critical vacancies in two top administration legal posts, but I think not too much significance beyond that. Both Johnson and Koh served for essentially Obama’s entire first term – an admirably lengthy tenure given the enormous personal wear and tear that come with these kinds of jobs. That Johnson’s resignation announcement followed close on his important speech at Oxford contemplating limits on the duration of the U.S. conflict with Al Qaeda (much discussed at the time, e.g., here) is perhaps noteworthy. But far more likely than there being any causal relationship between one event and the other – Johnson’s speech inevitably went through ample interagency review before it was given – it seems best to understand the Oxford speech as Johnson’s valedictory address. A useful reminder that the AUMF (among other laws) has a shelf life his successor will sooner or later have to confront.

Still More End Game

by Deborah Pearlstein

Look much beyond the blogosphere and you’ll be hard pressed to find many headlines about Jeh Johnson’s important speech at Oxford last week.

But important it was. Here are three more of the reasons why I think so.

1. It is difficult to overstate the depth of the scholarly consensus that existed (before last week) around the view that when Congress authorized the use of armed force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided” the attacks of September 11, the “war” thus undertaken was one without identifiable end. That is, the view has been that not only would it be impossible in advance to identify when the use of armed force would cease – it has of course never been possible at war’s beginning to identify on which definite date war will end – but there would be no set of events, circumstances, or conditions that could be imagined, the occurrence of which might bring about a recognition of the political, or in any objective way factual, end of the war. (I’ll spare blog readers the lengthy set of string cites in support of this proposition I had occasion to assemble for a research paper over the summer, but the list easily included sources from the political left, right and center.) That consensus no longer exists. Both on panels at the ABA’s review of the field of national security law conference over the weekend and in reading some of the other blog entries since, it now seems clear that some combination of Jeh Johnson’s speech and an accumulating set of facts on the ground has made it possible to talk about an end of the war – and the consequences for detention, targeting, and much else, that flow from that eventuality.

2. As I’ve mentioned elsewhere, e.g. here, and beyond the critical policy implications attendant the end of war (like how to reintegrate the 2.5 million-some returning veterans who deployed in one operation or another in the past decade), the authorization for use of military force is far from the only statute that ceases to have effect (or the same kind of effect) when “hostilities” are over. Take private security contractors. Under the Federal Tort Claims Act, private security contractors implicated in misconduct in combatant activities are immune from tort suits for a wide swath of activities, only if those activities are performed “during time of war.” What fraction of the $100 billion security contractor industry is potentially touched by this? Could be worth a little of someone’s time to find out. Either way, there’s an important broader point here as well. How one determines when a conflict (hostilities, war – the words, and often the applicable legal standards, vary) is over depends enormously on in what legal context the question is asked.

3. Speaking of how one determines when conflict is at an end, there is also the question of who makes that determination. Over the past 200+ years, the Supreme Court has had to determine when hostilities were over for purposes of determining the applicability of federal statutes of limitations, criminal jurisdiction and sentencing, tort and fraud liability, authorizations for various government activities, and yes, even the applicability of what we now call the international law of armed conflict. Sometimes the Court has looked to particular statements or actions of the President or Congress. Sometimes it has made the determination essentially on its own (using, for example, standard tools of statutory interpretation). Never has it declined to interpret a statute with an end-of-war condition on the grounds that it presented a nonjusticiable political question.

More on the End Game

by Deborah Pearlstein

Thanks to Ken for posting the link to Jeh Johnson’s important speech below, and bravo to Jeh Johnson for saying it aloud. In addition to the central passage Ken highlights, I might add this from Johnson’s speech (to reiterate, Johnson is General Counsel to the U.S. Department of Defense).

“War” must be regarded as a finite, extraordinary and unnatural state of affairs. War permits one man – if he is a “privileged belligerent,” consistent with the laws of war — to kill another. War violates the natural order of things, in which children bury their parents; in war parents bury their children. In its 12th year, we must not accept the current conflict, and all that it entails, as the “new normal.” Peace must be regarded as the norm toward which the human race continually strives.

The habit of characterizing the United States’ conflict with Al Qaeda as a war without end – of detention within that war as indefinite, of the current pace of targeting operations as something the United States will, now having embarked upon it, never abandon – is something all sides of the legal debates have done, in and out of government. Johnson’s speech should, I think, lead us all to question the habit of accepting that assumption.

Searching for an End Game

by Deborah Pearlstein

If you haven’t already seen it, it’s worth taking a look at this morning’s editorial in the New York Times about the Administration’s targeted killing program. The editorial follows on a series of articles in recent weeks, including the Times’ own report that the Administration was in a scramble pre-election to codify (in some form) internal processes for deciding when to pursue a targeting operation. Sounds to me like they’ve been flies on the wall at the terrific ongoing annual review of the field conference organized by the ABA’s Standing Committee for National Security Law. (Kind of old home week for U.S. national security law practitioners and scholars.) I can’t count the number of hallway chats I’ve encountered on the topic.

The Times’ bottom line:

Mr. Obama has acknowledged the need for a “legal architecture” to be put in place “to make sure that not only am I reined in but any president’s reined in.” Yet his administration has resisted legal efforts by The Times and the American Civil Liberties Union to make public its secret legal opinions on these killings. Once the rules are completed, they should be shown to a world skeptical of countries that use deadly force without explanation.

I’d certainly agree about the importance of disclosure here, starting first and foremost with disclosure of the legal theory supporting the Administration’s use of armed force in this context. The necessity of this seems past question to me; it seems impossible to reconcile the idea of democracy with the idea of secret law. The administration’s speeches on the topic have been illuminating and commendable. But as I’ve noted before (e.g. here) some of them raise more concerns about the application of the law than they resolve.

What’s troubled me more about the recent reports – beyond the already troubling notion that it was not the program itself but the possibility that someone else might be (and someday certainly will) be pulling the trigger that drove recent formalization efforts – is the absence of any apparent strategic calculus underlying the tactical decisions about targets. What exactly is the end game here? Or even the goal? It seems evident already that the current targeting program aims not only at Al Qaeda, by which I mean the organization actually responsible for the attacks of September 11, but also at some much deeper set of loosely (how?) associated radicals drawn from the truly bottomless pool of men who wish to do the United States or our broadly defined interests harm. Is the plan simply to define what we think counts as the kind of threat of force requiring the exercise of self-defense (in the form, sometimes, of targeting)? Or is the plan to which future presidents are meant to feel bound one that includes among targets members of all of the militant groups who congeal in weak states – Yemen, Mali, Somalia, etc. etc. etc. – and adopt the franchise name “Al Qaeda”?

One can find any number of security scholars around the halls these days who insist “we can’t kill our way out of this.” With “Al Qaeda 1.0” seemingly down to its last members, it sure would be useful to know what we now think “this” is.

Journalists’ Guide to National Security Law

by Deborah Pearlstein

Just in time for the holidays, the American Bar Association and Northwestern’s Medill School of Journalism are releasing a volume of essays geared toward folks who work on or write about or teach national security and foreign policy, but need a primer on the relevant law. National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers aims for a just-the-facts account of where the law sits, and covers everything from the basics of U.S. separation of powers and international law in the courts to special issues in targeting, military commissions, cyber law, classification, piracy, etc. The table of contents, bipartisan list of authors, and ordering info are available here. I’ve got a chapter on international law in the U.S. courts, but OJ readers I suspect will recognize many of the authors from recent articles and past guest posts here.

“A Decade of War Is Ending”

by Deborah Pearlstein

Cross-posted at Balkinization

Of the many memorable lines in President Obama’s eloquent victory speech on Tuesday, the Chicago crowd reserved some of its greatest applause not for the line trumpeting the economy’s ongoing recovery, but for the news that “a decade of war” was coming to an end.

Tuesday’s speech was not the first time the President has made such a statement. But he has taken care to avoid saying which war, exactly, he meant was at an end. Certainly he includes the war in Iraq as among the endings. Likewise nearing an end from the President’s perspective is the war in Afghanistan, with U.S. troops set to leave by 2014. What about the worldwide “war” against Al Qaeda and associated forces? The war two Presidents, Congress and the courts have all now found in some sense to exist? While U.S. operations in, for example, Yemen, continue apace, and the brand name “Al Qaeda” remains in active use, public reporting suggests there is less and less left of a command structure behind the Al Qaeda organization actually responsible for attacking the United States in 2001. Whether that war counts among the endings the President had in mind is less clear.

We may all hope to learn more about what the President meant by war’s end in the coming weeks. But he was certainly right to raise the question of how the country moves “beyond this time of war.” As Administration officials have suggested in recent years, in, for example, contemplating Al Qaeda’s “strategic defeat,” it is possible to envision an ending of one kind or another to all of these conflicts. Now is the time to think carefully about the vast law and policy implications of what it will mean when the United States is no longer at war.

Take one small sliver of the subject: the myriad federal statutes authorizing the government to exercise certain powers only for so long as hostilities continue. The existence of war, variously defined, is the sine qua non condition for the lawful exercise of a wide range of statutory authorities that have supported the past decade of U.S. counterterrorism operations. Military commissions, for example, may substitute for civilian trials to prosecute only those acts “incident to the conduct of war,” for events occurring “within the period of the war.” Under another law, civilians may be subject to the U.S. military justice system if they are “serving with or accompanying an armed force in the field… [i]n time of declared war or a contingency operation.” Likewise, private security contractors implicated in misconduct are immune from tort suits for a wide swath of activities, only if performed “during time of war.”

Perhaps most famous among such authorities, the 2001 Authorization for Use of Military Force empowers the President to detain individuals “engaged in an armed conflict against the United States,” only, as the Supreme Court held, “for the duration of these hostilities.” The existence of this “armed conflict” is likewise one of the central legal justifications for ongoing targeted killing operations by the United States abroad.

Whatever the answers to the longstanding questions about the scope of these and other war-triggered authorities, about whether and for how long they should continue to exist, it should be possible to agree on at least one thing as the conversation at war’s end begins: it would be better to make decisions about which of these laws are needed after we have a developed a game plan for U.S. counterterrorism strategy for the long-term. A strategy not driven by the demands of crisis-driven fear, as it was in the months after September 11, or by ex-post mistake mitigation, the task that confronted the President in his first term, and in important ways burdens him still.

What we need to help guide these decisions is a strategy that sees the challenge of terrorism in all its enduring complexity. A strategy that flows from the vision we glimpsed in passing on Tuesday, that of “a country that moves with confidence beyond this time of war, to shape a peace that is built on the promise of freedom and dignity for every human being.” A strategy that begins with the understanding that the task is to develop rules that will be a part of our national life and character not for a limited or exceptional period of “war” time, but indefinitely. And that therefore recognizes that the questions before us are not about what we are willing and able to do right now as a nation, but about what kind of country and what kind of world we want ours to be.

The President is right. These particular wars will come to an end. The problem of terrorism never will.

What Congress Should Take From Hamdan

by Deborah Pearlstein

The D.C. Circuit’s decision overturning Salim Hamdan’s military commission conviction on the grounds that “material support for terrorism” is not a war crime under international law is significant in a host of ways. Steve Vladeck lists a few over at Lawfare. Beyond that, it strikes me that the decision offers a handful of indicators Congress might especially note. As it stands, Congress has prohibited bringing any of the Guantanamo detainees to the United States to face criminal trial before a regular Article III court. If I were joining Congress post-Hamdan, I might want to reconsider that restriction. The D.C. Circuit’s opinion – from a manifestly conservative panel of judges – is a shot across the bow of the military commissions in more ways than just the material support holding.

Here’s one example. In order to reach the question whether material support was a war crime at the time Salim Hamdan worked for Osama bin Laden pre-2001, the court first had to interpret the Military Commissions Act of 2006. This was the law Congress passed to authorize military commissions after the Supreme Court held them lacking such authorization in Hamdan’s first set of appeals. The MCA 2006 listed material support as one of the offenses triable by military commissions. So the D.C. Circuit had to ask: did Congress intend that law to apply retroactively to conduct that, like Hamdan’s, was undertaken before the MCA’s enactment? The court held that the MCA could not be read that way – because interpreting the statute that way would raise a serious constitutional question. It is (or should be) an uncontroversial application of the Ex Post Facto Clause of the U.S. Constitution that it prohibits prosecutions for actions that were not criminal at the time they were taken. The application of the Ex Post Facto Clause is especially noteworthy here because it had been something of a question whether the U.S. Constitution (other than the Suspension Clause the Supreme Court recognized guaranteed the Guantanamo Bay detainees a constitutional right to seek a writ of habeas corpus) applied to non-citizens held at Guantanamo Bay. While stopping short of answering the question of extraterritorial application directly, the D.C. Circuit’s opinion made clear that there are several ways the Constitution can constrain the operation of military commissions there. Even without recognizing that the detainees have any additional rights under the Constitution, courts can and likely will favor interpretations of the current MCA that comply with constitutional protections. Just as they would were the trials being held here in the United States.

It is too much to suggest that prosecution for some of these defendants would be completely without difficulty even in an Article III court applying regular criminal law. Did the ordinary federal statute making a domestic crime out of material support for terrorism have extraterritorial reach in 2001? Uncertain. But it is now apparent that civilian judicial review of military commissions will be at least as searching – and as attentive to constitutional concerns – as judicial review of ordinary criminal courts. Yet another way in which military commissions are neither superior to nor much different from good old fashioned Article III courts.

Into the Deference Weeds in Kiobel

by Deborah Pearlstein

Rather than dwelling further on any prediction of what kind of opinion the Court is likely to produce following oral arguments in Kiobel (FWIW, I thought arguments went better for plaintiffs than I’d anticipated), I wanted to highlight what I thought was a particularly interesting exchange on whether the State Department’s views on the ATS were entitled to some deference by the Court.

Background first. I’d read the U.S. Government’s latest brief as arguing for something like a case-by-case approach on the question of which extraterritorial ATS cases might be appropriate for federal adjudication. In the U.S. view, Filartiga (involving Paraguayan parties disputing the legality of conduct in Paraguay) presents a paradigmatic example of the kind of ATS suit that would be permissible, while Kiobel (involving non-U.S. multinational parties disputing the legality of conduct in Nigeria) presents a contrary example. The distinction between the cases, on this view, seems to turn on a combination of factors, including, but not limited to, the defendant’s presence in the United States (favoring jurisdiction in Filartiga), and the nature of the claim of aiding and abetting a foreign sovereign (disfavoring jurisdiction in Kiobel). But central to the justification for all such distinctions, according to the argument, is the interest of the U.S. government in avoiding conflicts in foreign relations, and the superiority of the executive over the courts in any given case in identifying what those foreign relations conflicts might be. (Again FWIW, I didn’t have the impression from yesterday’s arguments that any justice much liked this position.)

So here’s the exchange that struck me (between the U.S. Solicitor General and Justice Scalia). (more…)

Kiobel Watching

by Deborah Pearlstein

For those watching for signs of how oral arguments went in the U.S. Supreme Court in Kiobel this morning, early consensus seems to be that while a majority of the justices were plainly concerned by a reading of the universal jurisdiction statute that would give the courts the power to hear cases with no substantial connection to the United States, “a majority [also] did not seem inclined to narrow the Alien Tort Statute nearly into non-existence.” So writes the venerable Lyle Denniston over at Scotusblog. There may be quite a line-drawing exercise to come. More on the arguments here in a bit…