On January 22

On this day in ...

... 1946 (65 years ago today), President Harry S. Truman established the forerunner of today's CIA, or U.S. Central Intelligence Agency. Then called the Central Intelligence Group (image credit), it was established by means of a Presidential directive addressed to the Secretaries of State, of War, and of the Navy. It was situated within an agency then called the National Intelligence Authority. The group's purpose, in Truman's words, was that

Federal foreign intelligence activities be planned, developed and coordinated so as to assure the most effective accomplishment of the intelligence mission related to the national security.

(Prior January 22 posts are here, here, and here.)

An unfortunate detention incentive

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

In a surprising ruling with remarkably broad implications, the U.S. military has been told that it can seize suspected terrorists anywhere outside the United States, send them to the U.S.-run Bagram detention facility in Afghanistan, and thereby deprive them of the right to challenge their detention in a federal court.

Although the court didn’t address the issue, treating terrorism suspects this way is not supported by the laws of war as interpreted by the U.S. Supreme Court -- that Court has not authorized indefinite detention of individuals seized far from the battlefield.
The unanimous decision in Al Maqaleh v. Gates was issued last week by Judges David B. Sentelle, David S. Tatel, and Harry T. Edwards of the U.S. Court of Appeals for the District of Columbia Circuit. The case involves two Yemenis and a Tunisian, one of whom was arrested in Thailand and another in Pakistan, and all of whom were transported to Bagram by U.S. authorities and imprisoned there. Deemed “enemy combatants” when they were seized, they've been at Bagram, without charge or trial, for the past seven years. (Prior IntLawGrrls posts here and here.) (credit for U.S. Army photos made at BTIF, the Bagram Internment Theater Facility)
On its face, the situation of detainees brought to Bagram from outside of Afghanistan would seem to be similar to that of the detainees at Guantánamo Bay, who the Supreme Court in Boumediene v. Bush (2008) ruled do have the right to challenge their detention in a U.S. court.

► Both cases involve imprisoning foreign suspected militants captured abroad and brought to a U.S. military base for indefinite confinement. In Boumediene, the Supreme Court ruled that detainees do have habeas corpus rights because the U.S. has de facto sovereignty over its naval base in Cuba pursuant to a century-old lease. In Maqaleh, the appellate judges acknowledged that the United States appears to have similarly complete control over its Bagram facility in Afghanistan.
► As in Boumediene, the Court of Appeals also acknowledged in Maqaleh that the hearings the U.S. military was giving detainees at Bagram did not constitute due process; in fact, they were even worse than those provided at Guantánamo Bay. Although the hearings have improved over the past year under the Obama administration, the new Detainee Review Board system still doesn’t give Bagram prisoners the right to be represented by a lawyer or even to see the evidence against them. (Now detainees are appointed a “personal representative” who is not a lawyer, and may call witnesses who are “reasonably available” to testify. They still can’t see classified evidence, which may constitute the bulk of the government’s case against them.)
Still, although all this weighed in favor of the detainees’ demand for judicial review, the D.C. appeals court ultimately ruled last Friday that the “practical obstacles” of granting Bagram detainees habeas rights were just too great (p. 16), given that the prisoners are located in an active theater of war halfway across the world.
But should that determine whether the detainees are entitled to due process? Consider these responses:

► As American University Law Professor Steven Vladeck has pointed out, the only reason these detainees were in that theater of war is because the U.S. government had abducted them from other countries and sent them there. The ruling in Maqaleh thus creates a perverse incentive for the U.S. government to move every terror suspect seized anywhere outside the United States to a U.S.-run offshore detention facility, in order to imprison the suspect indefinitely and to evade judicial review.
► As Salon commentator Glenn Greenwald has put it, as a result of Maqaleh,

'the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged.'

If the detainees had been lucky enough to get sent to Gitmo, they might have had a federal court hearing by now.
Meanwhile, it’s not clear that the United States even has the legal authority to continue to detain anyone at Bagram.
The United States argues that its indefinite detention authority stems from the ongoing conflict in Afghanistan. But the war against the Taliban and al Qaeda is not an international armed conflict between nation-states. And there’s no legal authority for detention in a non-international armed conflict such as this one, where Afghanistan has its own domestic laws and criminal justice system. That may be why President Hamid Karzai during his most recent visit to the United States pressed President Obama to turn over the detention facilities to Afghan control as soon as possible.
The Obama administration says it eventually wants to do that.

But it says it doesn’t have enough confidence yet in the integrity and independence of the Afghan justice system to trust that the guilty will actually be imprisoned and the innocent will be allowed to go free. The United States has plans to train judges and lawyers at Bagram and to try to root corruption out of the justice system, at least in national security cases. But that effort has barely begun, and could take years to really have an impact. In the meantime, the U.S. is significantly expanding the prison facility.
Even if the Obama administration eventually does turn over Afghans arrested in Afghanistan to the local authorities, this question remains:

What to do with the rest of the prisoners – the ones who were the subject of the ruling in Maqaleh?

Some military officials want to keep the Bagram prison available for insurgents captured outside Afghan borders. U.S. military leaders in Afghanistan, meanwhile, fear that would inflame local tensions and make Bagram, like Gitmo, another recruiting tool for insurgents. Recent reports of prisoner abuse at Bagram only fuel that concern. But the prison expansion – which is reportedly adding three new detention housing units – suggest that plan has significant support.
International law is apparently not figuring much into these plans. If the laws of war had any say here, captured insurgents would be detained in the countries where they’ve been arrested or allegedly committed crimes. After all, the United States is not supposed to have detention facilities around the world – a point implicitly acknowledged when, upon taking office, President Obama publicly pledged to close most of them – from Guantánamo Bay to the CIA’s secret detention facilities around the world.
Bagram is the one prison he’s wavered on. Unfortunately, by its decision in Maqaleh the U.S. Court of Appeals in Washington has just handed Obama a big incentive to keep it open.

On April 6

On this day in ...
... 1906, Virginia Hall (right) was born in Baltimore, Maryland. After studying at Radcliffe and Barnard, she traveled through Europe, and in 1931 was hired as a clerk at the U.S. Embassy in Poland. A year later she accidentally shot herself while hunting, and the consequent amputation of her left leg ended her hopes of entering the Foreign Service. She joined the Allied effort as soon as World War II broke out in Europe, 1st as an ambulance aide and eventually as a coordinator of French Underground activities on behalf of Britain's Special Operations Executive. (photo credit) In 1944, as a member of the United States' Office of Strategic Services Special Operations Branch, she returned to occupied France, where her espionage aiding the French Resistance prompted occupying Nazis to distribute this warning on a flyer:

'The woman who limps is one of the most dangerous Allied agents in France. We must find and destroy her.'

After the war she married and worked for the Central Intelligence Agency, retiring in 1966. She died in 1982 at age 76. Hall, who'd received U.S. and British honors during her life, again was honored posthumously in 2006.

(Prior April 6 posts are here, here, and here)

Mixed week on renditions accountability

This week saw two contrasting results emerging from courts in the United States and Italy regarding extraordinary rendition:

► In the United States, the case of Maher Arar (right) was once more rejected by the US Court of Appeals for the Second Circuit. (prior IntLawGrrls posts here)

► In Italy, however, 23 CIA agents were convicted in absentia in relation to their involvement in the ‘snatching’ of Egyptian Osama Moustafa Hassan Nasr from the streets of Milan in 2003. (prior IntLawGrrls posts here and here)

The contrast in the courts’ approaches in these cases could hardly be more pronounced.
In Arar (opinion available here), the Court refused to allow Canadian national Maher Arar to sue the United States for sending him to Syria where he was tortured because Congress had never expressly authorised such suits. Arar therefore failed to create what is known as a Bivens action, i.e. an action for breach of constitutional rights, in relation to extraordinary rendition. This was because, the Court held, the creation of a Bivens action in this respect would have implications of foreign policy and security activity. Congress could, of course, create such an action by statute but the Court would not do so itself. There is little doubt that this will be appealed.
In Italy, in contrast, Judge Oscar Magi of the Fourth Chamber of the Court of Milan appeared to have little hesitation in convicting the 23 Americans for their involvement in rendition although there were a number of others who were not convicted as a result of diplomatic immunity and the withholding of evidence on national security grounds. This case is sure to be appealed, and no sentences are executed in Italy until all appeals are completed, but in any case the agents are not in custody. The US State Department expressed its disappointment at the verdict.
What is striking to me is the contrast in the approach of the courts in both of these cases. Although the Italian decision is available only in Italian and I am therefore relying on newspaper reports, it would appear that the judge was not swayed by arguments relating to the institutional appropriateness of judicial decision-making on matters of this nature. These kinds of arguments are often made in order to try to insulate so-called ‘security’ or ‘foreign affairs’ activity from judicial oversight and scrutiny, the claim being that deciding on such matters could have foreign affairs implications and is therefore inappropriate as foreign affairs are an executive function. Certainly these kinds of arguments seem to have formed part of the decision-making in the Second Circuit’s decision in Arar.
Where these kinds of arguments are acceded to there is the danger that executive action becomes absolutely unimpeachable through judicial means and maintenance and re-establishment of the rule of law is therefore reliant on parliamentary (or so-called ‘democratic’) accountability mechanisms which, as I argue here in contradistinction to my co-author Fergal Davis, I am simply not convinced can work.

As a fan of judicial muscularity in relation to security-motivated counter-terrorist action I would certainly favour the approach of the Italian court to that of the 2nd Circuit.

(Cross posted at Human Rights in Ireland)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Not only will some members of the intelligence community be subjected to costly financial and other burdens from what amounts to endless criminal investigations, but this approach will seriously damage the willingness of many other intelligence officers to take risks to protect the country. In our judgment such risk-taking is vital to success in the long and difficult fight against the terrorists who continue to threaten us.

-- Excerpt from Friday's letter from 7 former Directors of the Central Intelligence Agency to President Barack Obama. The 7 signatories were Michael Hayden (above, far right), Porter Goss (above, near right), George Tenet (above left, receiving Medal of Freedom from President George W. Bush in 2004), John Deutch, R. James Woolsey, William Webster, and James R. Schlesinger. Can't help but note that the 1st 3 would seem to have a very vested interest in the letter's subject matter: All 3 led the CIA during the post-9/11 period that is now the subject of the Justice Department's preliminary inquiry.

(hat tip for text to our Opinio Juris colleague Kenneth Anderson)

2¢ on interrogation review

See the last item at The New York Times' "Room for Debate" for my thoughts on the news that, as foreseen by IntLawGrrl Beth Van Schaack, Attorney General Eric H. Holder, Jr. (left) has instructed Assistant U.S. Attorney John Durham to conduct a "preliminary review" of post-9/11 interrogations by the CIA to see whether U.S. law was violated. Prompting the order was release of a 2004 CIA report.
International criminal law point of comparison:
The 1999 "internal analysis," by the Office of the Prosecution at the International Criminal Tribunal for the former Yugoslavia, into whether NATO's air strikes against Serbia violated laws of war.

Holder's Special Prosecutor

Several major news outlets reported this week that Attorney General Eric J. Holder, Jr. is considering appointing a special prosecutor to investigate the interrogation practices employed during the Bush Administration -- a move that would be contrary, perhaps, to President Barack Obama's entreaty to look forward, not backwards. (See especially the fascinating portrait of Holder's dilemma by Newsweek, the source of the Holder photo above right, as well as the Washington Post's coverage). It has been speculated that the move is at least partially motivated by the results of the CIA Inspector General report on torture that may or may not be released earlier than the promised August 31st. One name that has been floated for the position of Special Prosecutor is Assistant U.S. Attorney John Durham from Connecticut (short bio here), who, at the behest of former Attorney General Michael B. Mukasey, is already investigating the destruction of CIA tapes that depicted waterboarding and other interrogation tactics.

Holder's volte face, if he follows through on it, would do much to bring the United States back into compliance with the 1984 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which the U.S. joined in 1994. That treaty at Article 4(1) obliges state parties to penalize "all acts of torture":

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

In addition, pursuant to Article 5(1), each state party is to "take such measures as may be necessary to establish its jurisdiction" over such acts when committed

• in any territory under its jurisdiction (the territorial principle of jurisdiction); or
• when the alleged offender is a national (the nationality principle of jurisdiction).

Article 12 mandates that states make immediate inquiries into the facts where

there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 13 requires that victims have an opportunity to raise claims of torture to competent authorities:

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

The obligations apply equally to the prohibition against cruel, inhuman and degrading treatment of punishent, a prohibition that is also set forth within the Torture Convention.
The United States implemented the Torture Convention in two ways: first, by enacting a penal statute (18 U.S.C. §2340) and second, by enacting a civil statute (28 U.S.C. §1350 note, the Torture Victim Protection Act). In addition, acts of torture and other forms of cruel treatment may be prosecuted as war crimes under 18 U.S.C. §2441. In addition to these international crimes, the Special Prosecutor could also bring garden variety criminal charges (battery) or recommend courts martial for members of the armed forces and others subject to military jurisdiction.

In terms of the international law charges:
► First: 18 U.S.C. §2340A authorizes prosecutions against U.S. nationals, but only for torture committed "outside the United States." Certainly places like Camp Delta at Guantánamo Bay and Bagram Air Base in Afghanistan are outside the territorial United States. The U.S. Supreme Court has twice ruled, however, that the U.S. Naval Base at Guantánamo is essentially within U.S. jurisdiction. (The first ruling in Rasul v. Bush (2004), extended statutory habeas rights to Guantánamo detainees. Once Congress amended the habeas statute, the Court in Boumediene v. Bush (2008), extended constitutional habeas rights to the same detainees on the recognition that the U.S. exercises "plenary control" over the naval base, even though de jure sovereignty still vests in Cuba. See here for prior blog posts on these rulings.) The question of whether detainees at Bagram Air Base, which number over 600, have habeas rights is currently the subject of litigation in Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009). For a discussion, see Kal Raustiala's excellent ASIL Insight. Bagram Air Base, located in an active theatre of war, exists pursuant to a lease similar to that governing GTMO, and the Obama Administration has resisted extending the Boumediene ruling to Afghanistan. This is complicated by the fact that in 2001, the USA Patriot Act of 2001 expanded the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States to include the premises of United States military or other United States Government missions or entities in foreign States. So, bases outside the U.S. were no longer "outside the U.S." within the meaning of §2340. Detention centers not on bases might still have been. The expansion of the SMTJ had the unintended, it is claimed, effect of narrowing the reach of the §2340. This anomaly was corrected by the National Defense Authorization Act for Fiscal Year 2005 (NDAA05), which prospectively amended 18 U.S.C. §2340(3) to read as follows:

“‘United States’ means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.”

So when and where abuses took place will determine the applicability of §2340. Certain provisions of title 18 do apply to the SMTJ, such as assault (18 U.S.C. § 113), maiming (18 U.S.C. § 114), manslaughter (18 U.S.C. § 1112), and murder (18 U.S.C. § 1111).

► Second: As an alternative to the torture statute, war crimes charges could potentially be brought under 18 U.S.C. §2441, the War Crimes Act of 1996, which applies to war crimes committed by U.S. nationals "inside or outside the United States". That statute lists torture, cruel treatment, inhuman treatment, mutilation, maiming, serious bodily injury, rape, sexual assault, and sexual abuse as war crimes. As discussed here, however, Congress, with the Military Commissions Act of 2006, amended the War Crimes Act in subtle yet significant ways that made it more difficult to prosecute abusive practices that fall short of torture.

► Finally, although the Attorney General can frame the mandate of the Special Prosecutor as narrowly as he likes -- even restricting him/her to investigate certain departments, etc. -- the Special Prosecutor can follow any leads relevant to the original mandate. This could result in a more wide-ranging investigation, especially given expansive notions of complicity liability. As a result, the special prosecutor’s investigation could implicate the architects of the detainee policy, including the lawyers who gave advice to the Bush Administration. Actual prosecutions would test arguments made in governmental memos about which types of conduct and interrogation methods constitute unlawful torture and other forms of prohibited cruel treatment. This has the potential to bring U.S. law into line with established jurisprudence from the international war crimes tribunals and human rights institutions, which have determined that many acts perpetrated upon detainees at Guantanamo and elsewhere constitute torture.

Even apart from criminal prosecutions, a full-scale investigation could produce information that would achieve some of the aims of the truth commission concept floated earlier this year by some Democrats.

(IntLawGrrls' various posts on these issues of accountability may be found here, here, and here.)

It goes where it goes

It goes where it goes.
That's the phrase glimpsed in the tea leaves after Thursday's release of Office of Legal Counsel memoranda that professed to give legal justification for waterboarding and other coercive interrogation measures.
IntLawGrrl Naomi Norberg opined Sunday that President Barack Obama, by announcing that the United States would not prosecute CIA operatives who implemented policies the memos condoned, okayed prosecutions in countries outside the United States. Surely she wrote with tongue in cheek, given reports that Obama is "hoping that" the possibility that Spain might launch a criminal investigation of 6 Bush Administration lawyers "will go away." (Prior post.) (The decision now is in the court of Judge Baltasar Garzón.) Obama's emphasis from the outset -- with which this IntLawGrrl heartily agrees -- has been a forward look toward dismantling post-9/11 abuses.
At the same time, it must be noted that Obama has refrained from any public condemnation of proceedings in Spain, or elsewhere for that matter.
Also to be noted:
Obama gave a U.S. prosecutorial pass only to "those who carried out their duties relying in good faith upon legal advice from the Department of Justice," to "men and women of our intelligence community." Glaring is the omission of any reference to the lawyers who gave that advice. Presumably, they remain exposed. So too any official who acted in bad faith or without bothering to secure cover from what I have called (p. 2126) "legalist" -- as opposed to legal -- advice. Reinforcing that presumption is this snippet from Sunday's Face the Nation interview with Obama adviser David Axelrod:

Well, the president has said, if there were agents of the United States government acting on legal advice that what they were doing was legal and appropriate, that they should not be prosecuted.
If people acted outside the law, that's a different issue.

As to those people, it goes where it goes.
It might go to an investigatory body, and not one as far away as Spain:
► A Senate intelligence panel is continuing its examination of CIA's post-9/11 behavior, and its chair, Dianne Feinstein, doesn't want to rule out prosecutions before that study is completed, 6-8 months from now.
► The New York Times wants Congress to impeach Jay Bybee, the erstwhile OLC head who's now a judge on the U.S. Court of Appeals for the 9th Circuit.
► Some are working to establish a commission of inquiry along the lines of the 9/11 Commission.
► Others are calling for a special prosecutor.
Both of these 2 latter proposals make more sense now than they did before Obama's action on Thursday. Any investigator knows that the way to move toward the truth, the way to make a case against higher-ups, is to immunize lower-level hirelings.
In short, it seems we have not heard the last on calls for accountability. Not even within the United States.
Investigation, it goes where it goes.

'Nuff said

More recently, President Bush vetoed a law that would require the CIA and all the intelligence services to abide by the same rules on torture as contained in the U.S. Army Field Manual.
The president says the rules are too restrictive, implying that the use of some forms of torture just could help avoid another Sept. 11.
But all forms of torture have long been prohibited by American law and international treaties respected by Republican and Democratic presidents alike.
Our forefathers prohibited 'cruel and unusual punishment' because that was how tyrants and despots ruled in the 1700s. They wanted an America that was better than that. Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law.
The same rationale is used to justify eavesdropping on U.S. citizens without a warrant. The president has made clear that the failure of the Congress to pass this authority could jeopardize our security. Instead of trying to negotiate a compromise with Congress that would meet both our intelligence and privacy concerns, it is easier to threaten with fear.

-- Leon Panetta, whom President-Elect Barack Obama's just nominated to be the next Director of the Central Intelligence Agency. The passage is from Panetta's March 2008 op-ed in The Herald of Monterey County, California. The title of the op-ed? Americans reject fear tactics. Yet Panetta may have a rocky road to confirmation. The best way to characterized the view of some Senate Democrats, among them the new chair of the Select Committee on Intelligence, Panetta's fellow Californian Dianne Feinstein? Reportedly, not thrilled with the choice.

(credit for New York Observer photo) (hat tip to Jamil Dakwar)

Rendition on Trial

The trial of 26 Americans and several former top Italian intelligence officials for the 2003 extraordinary rendition (kidnapping and torture) of Muslim cleric Hassan Mustafa Osama Nasr (aka Abu Omar) has finally opened in Milan. As you may recall, in 2003, American intelligence officers grabbed Nasr off the street in Milan and rushed him off to Egypt where, as his wife testified on Wednesday, he was tortured in an attempt to gain information about his possible terrorist connections. The Bush administration has of course refused to extradite the Americans responsible for the rendition (25 CIA agents and 1 Air Force colonel), and the Italian government has done its share of stalling to avoid trial, claiming that prosecutors exercised too much zeal in intercepting the CIA agents' phone calls, for example. Why would they do so? After all, this particular rendition created fury among many in Italian law enforcement by snatching Nasr out from under surveillance that had them on the brink of obtaining much more valuable (and reliable) information about Muslim groups in Italy than Nasr's alleged torture in Egypt could provide. Politics as usual: Silvio Berlusconi (left) was Prime Minister when the rendition took place and his recent reelection means keeping a lid on any evidence of collusion with the Americans that might harm his new government. One of the Italian defendants, Nicolò Pollari (former director of the military intelligence agency) claims that both Berlusconi and former Prime Minister Romano Prodi have information that would prove he at the very least knew nothing of the kidnapping, and may have actually opposed it. Meanwhile, defense lawyers tried to challenge Nasr's wife's reliability as a witness, claiming that her veil indicates anti-American bias!

On investigation of post-9/11 waterboarding

With this guest post I'd like to weigh in with a few thoughts on "A Dissenting View on Prosecuting the Waterboarders." In that post over at the Balkinization blog, Georgetown's Marty Lederman wrote that although he was "horrified by what DOJ approved and what the CIA has done" – that is, the subjection of so-called high-value detainees to simulated suffocation in the course of interrogation – he does not "find it so surprising, or objectionable, that DOJ would not think of prosecuting the CIA operatives and contractors, even though" Marty's been a leading critic of "the DOJ legal advice underlying the CIA's interrogation practices."
I too have been a critic of that advice, for example, in the article available here and as a drafter and signatory to the Principles to Guide the Office of Legal Counsel endorsed in that article. As does Marty's, my criticism stems from my own experience as an attorney at the Office of Legal Counsel (OLC) of the Department of Justice (DOJ). From 1993-96 I served as a deputy there, and from 1997-98 I was OLC's Acting Assistant Attorney General, as Diane Marie Amann's described in her introductory post above.
Here's why I support Marty's position:
First, to be clear, of course current Attorney General Michael Mukasey – and more likely to the point, the next AG -- should investigate what happened. OLC misinterpreted the law in a way that led to torture. No question that demands investigation!
The question is how should that investigation be framed; and today, how should members of Congress and concerned observers describe the investigation they want Mukasey to undertake.
I believe that focusing on the criminal culpability of the career guy who engaged in waterboarding/torture in reliance on the horrific legal advice is the wrong way to go. It diverts attention from where culpability truly lies. Furthermore, at this point it seems very unlikely the facts could support such a prosecution, so it would be wrong for the AG to suggest otherwise. Again, though, there absolutely should be an investigation (so Mukasey is wrong to the extent he says no to that). It is conceivable that such an investigation would uncover facts that could support a prosecution, but that is not true of what we know today. If the investigation uncovers unexpected evidence that would support a prosecution, that of course should be pursued, but it seems irresponsibly premature at this point to say that is the point of the investigation.
For decades prior to this administration, OLC legal opinions were treated by the executive branch as authoritative unless overruled by the AG or the President. During the Clinton administration it's how we understood the office (and how we consistently described the status of our legal opinions). It is how the former heads and deputies from OLC – from the Carter, Reagan and first Bush administrations – and many others, from within and outside the Executive Branch, described the office to me when, as a member of the transition team, I interviewed them just prior to Bill Clinton's taking office.
Based on all reports I've seen, the current administration continued to assert that status for OLC opinions, specifically in the face of internal objections to OLC advice on interrogation (though we now can say that wasn't appropriate given the changed role/interpretive stance of the office). Far from overruling OLC's advice, those in the Bush White House endorsed OLC's legal conclusions. Thus it is very hard, I think, to say, given all of this, that early in the Bush administration, in the wake of 9/11, when the waterboarding actually occurred, that it was unreasonable for CIA career employees to rely on what OLC and the White House instructed that the law permitted. Again, it is conceivable an investigation might turn up unexpected facts that could support a prosecution. In addition, today, and in recent years, would be a very different question, given the subsequent legislation and also all the attention to the fact OLC has not been fulfilling its traditional role, at least with regard to counterrorism issues.
I don't agree with those who suggest that it's only for the jury, and not for the prosecutor, to decide whether the reliance by those careerists was reasonable. Surely the AG shouldn't proceed with a prosecution where OLC, with the support of the White House, directed a government employee to do something and the AG continues to believe that reliance was reasonable.
Going forward, we can and should think about whether the role of OLC should be different, given our experience with this administration destroying that office. In fact, not only is that inquiry possible, it is inevitable, because the role of OLC already has been transformed – so if we want to return to the traditional role, that will require change. The 10 "Principles to Guide OLC" was one attempt by some of us to address that question, in the wake of the disclosure in 2004 of the Torture Opinion. Admittedly we took a relatively conservative approach, no doubt in part because we all were OLC alums who believed things worked quite well when we were there.
The point now, of course, is to figure out whether we can make institutional changes to increase the likelihood things work properly under the worst of conditions (though sometimes you can't – or shouldn't – design institutions tailored to the most abusive of administrations; you may need to rely at least in part on other checks). We should consider a range of possibilities. But I would caution against assuming that a radical change in the traditional, pre-Bush role of OLC is what we need. Perhaps it is, but I'm not yet sure there is a better approach to providing the President with the best legal advice than working to institutionalize standards and processes that build on and strengthen the traditional model. I would love to hear reactions and alternative suggestions.

In Argentina, at least, justice

"Looks like justice has arrived in Argentina, at least."
This was my mother's response to articles yesterday, by the Associated Press and Página/12, reporting that an Argentine court had convicted 7 former military officers and one ex-police official of crimes against humanity for acts of kidnapping, torture, and disappearances committed during Argentina’s 1976-1983 military regime. The men were sentenced to 20-25 years in prison.
Not sure if she meant it that way, but I took the “at least” as a reference to my own quixotic quest for accountability in the United States of today. The comparison may seem severe to some – but probably not to many Latin Americans. Having been born under that dictatorship and raised hearing stories of torture, disappearances, habeas suspension, surveillance, secret trials of subversives, and (of course) amnesty laws, I have never found the association so far-fetched. (For a more developed comparison between 1970s Argentina and today’s US, see Charles H. Brower II, Nunca Más or Déjà Vu?, 47 Virginia Journal of International Law 525 (2007).)
So maybe this is a preview of the justice that we, too, might see 30 years from now – but only if we lay the groundwork now. As is always the case, we will have no transition because (haven’t you heard?) we are already a democracy. We will get no truth commission because those are reserved for the brown people south of the equator, not civilized societies like ours. Instead, we get Harry Reid and Nancy Pelosi, soon, maybe, Hillary Clinton – or, if we’re “really” lucky, Barack Obama. And life will go on as it used to in the Bill Clinton years, easy to ignore the torture neatly tucked away under the rug. Mainstream Democrats play nice and ignore the crimes they now reserve the power to commit, clumsily trying (and failing) to win political points by pursuing petty misdemeanors instead. (Proof of their pusillanimity's here, here, here, and here.)
As advocates, we fight the legal battles and sweat hard for the New York Times coverage. These are important, but not nearly enough. Without protest, without emotion, without people, we get nowhere. The Argentine courts did not wake up one day and realize that amnesty was unconstitutional. It took politics to change the courts, and it took people to change politics. In Argentina, a generation of angry youth took to the streets, organized communities, and raised a collective voice to shame the torturers when the law fell silent. Those youths played a small but tangible part to wake the country from its stupor.
To translate, roughly, Pascual Guerrieri, the words of one of the convicted officers:

' I reject the term repressor. We were soldiers paid by the people, those who stand behind me and around me. We went out there to restore order. We do not look like murderers. We look like soldiers who fulfilled their duty.'

I’m eerily reminded of John Kiriakou, the former CIA agent whom the Times described as a "43-year-old father of four," and of all those nice-looking torturing CIA agents and lawyers whose reputations and careers Professor Jack Goldsmith, in the same article, mourns in advance.

The choice is yours, mine, all of ours: Will we be agents of change? Or the ones whom the torturer thinks he serves?

(See below for details on today's guest blogger, Deborah Popowski.)

Transnational docket grows: Supreme Court to sort out contest over Marcos assets

Even as it heard argument in a 3d round of Guantánamo litigation -- litigation that took on new wrinkles (here and here) in light of revelations that the CIA destroyed videotapes of interrogations of certain high-value detainees, documents no doubt relevant in detainee cases -- twice last week the U.S. Supreme Court expanded the transnational character of its OT '07 docket.
The 1st of 2 transnational cases the Court's agreed to hear next spring is Philippines v. Pimentel, a dispute over the assets of the onetime dictator of the island state, Ferdinand E. Marcos, who died in 1989 in Hawaii, having fled his country in 1986. (Marcos is pictured above with his wife, Imelda.) At issue, according to SCOTUSblog: "about $35 million held in a Merrill Lynch account for a Panamanian corporation, Arelma S.A." In a 2006 panel decision written by Judge John T. Noonan, the U.S. Court of Appeals affirmed the trial court's award of funds to plaintiffs who'd won an Alien Tort Statute class action against the Marcos estate; in so doing, the courts turned back a bid by the Republic of the Philippines to be treated as a party to the litigation. Among the issues at play in the case, in which the United States has entered as amicus in support of the Philippines, is application of the Foreign Sovereign Immunities Act.
Details on the 2d just-granted case tomorrow.

Ghosts at Gitmo

Check out this Washington Post op-ed, "Going to See a Ghost." In it Gitanjali S. Gutierrez (right) commits to paper thoughts about her client, Majid Khan, just before her 1st visit with him at Guantánamo; thereafter, she explains, "military regulations will restrict my ability to speak publicly about the case."
A lawyer for the Guantánamo Global Justice Initiative of the Center for Constitutional Rights and the 1st habeas attorney to travel to the detention center in Cuba, Gutierrez writes that Khan lived in the United States as an asylee from age 16 until age 22, when he returned to his birthplace to marry. There, she continues, he "was kidnapped by Pakistani police, who turned him over to the CIA," in whose secret custody he was held for 3 years, as 1 of the several off-the-books captives who've come to be called "ghost detainees." Calling for fairness in Khan's case, Gutierrez concludes:

In literature, ghosts are symbols not only of mortality but also of accountability. ... For three years, Majid Khan was a ghost. Now he has reappeared. Let his terrifying experiences serve to remind us of the danger posed when power goes unchecked -- and of our duty not to be silent but to stand and fight for the fundamental rights that protect us all.

On September 11, ...

... 1857 (150 years ago today), more than 100 children, women, and men, emigrants in a wagon train headed from Arkansas to California, were killed when they made camp in Utah. As the Archeological Institute of America writes of this Mountain Meadows Massacre, "Who attacked the group is an ongoing debate, but historical accounts tell of a combined force of local Mormon militia and Paiute Indians. Executed in 1877, Mormon Bishop John D. Lee was the only person punished for the crime." The story is told as well at this LDS site, and is the subject of a just-released film, "September Dawn." The cairn above marks a mass grave.
... 1973, Chilean President Salvador Allende died in a coup d'état led by his military chief, Gen. Augusto Pinochet. Allende, as the BBC reported, was "the world's first democratically-elected Marxist head of state" -- a status that made him a target for the U.S. Central Intelligence Agency, said to have "backed" the military "uprising."
... 2001, hijackers used U.S. civilian airliners as tools of terrorism. The World Trade Center in New York and the Pentagon in Washington each were hit, killing thousands; a 3d jet crashed in a field in Pennsylvania. The September 11 attacks touched off a campaign that U.S. officials dubbed GWOT, the global war on terror. The attacks were attributed to the Al Qaeda network, whose leader, Osama bin Laden, remains at large to this day.

Siting "unspeakable" secrets

Kudos to Jane Mayer for her article "The Black Sites: A rare look inside the C.I.A.'s secret interrogation program," just posted at the New Yorker's website.
Mayer, author in 2005 of a definitive article on extraordinary rendition, "Outsourcing Torture," provides more detail in this article than a reader ought to have to stomach regarding the interrogation of so-called high-value detainees, post-September 11 captives believed to possess significant information about Al Qaeda and its activities. Last September President George W. Bush admitted that 14 of those detainees had been held at CIA secret sites, but that they'd just been transferred to Guantánamo, where they're believed to remain to this day. Mayer writes that after the transfer detainees were interviewed for the 1st time by the International Committee for the Red Cross; the resulting, confidential report is said to have "harshly criticized the C.I.A.’s practices," and to have asserted that some violated both U.S. law and the grave breaches proscription of the Geneva Conventions.
Mayer pays particular attention to Khalid Sheikh Mohammed, who the U.S. executive says has confessed to plotting the 9/11 attacks and to a laundry list of other terrorist acts. Her article underscores that any statements were the result of extremely harsh conditions of detention and interrogation. Mohammed reportedly was visited by a stream of female interrogators while he was locked in a cell without benefit of clothing. And he reportedly was subjected to simulated asphyxiation via drowning; that is, "waterboarded".
The waterboarding allegation's been heard before, so much that a reader may find herself becoming inured to, less shocked by, it. It's a concern voiced here and here with respect to repetition of images of torture. What once was "unspeakable" and "unthinkable" is, now, spoken of and thought about all the time. That sad fact brings to mind a quote that my colleague Jack Ayer of Underbelly blog found in Abba Eban's Autobiography. Eban's precise reference to "Jewish history" is altered here to emphasize the quote's applicability to all manner of violations of human dignity:

Many things in history are too terrible to be believed, but nothing in history is too terrible to have happened.

Give and take

An Executive Order released yesterday gave to post-9/11 detainees something for which they've been fighting: application of Common Article 3 of the 1949 Geneva Conventions to the "program of detention and interrogation operated by the Central Intelligence Agency" (§3(a)). In signing the order, however, President George W. Bush took something away from detainees, too; specifically, the respite from CIA detention-for-interrogation that's said to have been imposed in the wake of the U.S. Supreme Court's holding, a year ago in Hamdan v. Rumsfeld, that U.S. agents are bound to obey Common Article 3, which states:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

The order takes as well some of the force out of subsection 1, for it takes pains to define terms like "mutilation," "cruel" treatment, and "torture" within the confines of a U.S. War Crimes Act weakened post-Hamdan by amendments contained in the Military Commissions Act of 2006. (The order likewise affirms a 2005 congressional ban on "[c]ruel, inhuman, or degrading treatment or punishment," as those terms are defined under U.S. law, and not according to broader interpretations like those that the European Court of Human Rights has put forward in cases such as A v. United Kingdom.) The order may take from the article's final paragraph, too, for the Washington Post's Karen de Young reported:

A senior administration official said that the new rules do not require that the International Committee of the Red Cross have access to CIA prisoners. Many other nations interpret international treaties as requiring such access for all detainees everywhere.

Of further note are the qualifiers used in describing permissible conditions of confinement of persons whom the CIA detains for interrogation. Abuse is banned, but only if it is "willful and outrageous"; acts that denigrate religion, only if they are "intended" so to denigrate (§3(b)(i)(E), (F)). Consider too the order's assertion in §3(b)(iv) that the program will comply with Common Article 3 as long as detainees "receive ... necessary clothing" and "essential medical care." The use of those adjectives leaves open the inference that the CIA needn't provide clothing or medical care that is not "necessary" or "essential" but that would make a detainee feel comfortable; that is, feel human.

A final point: Make the contestable assumption that all captives are subject to detention, regardless of where they are seized, for the reason that "[t]he United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces" (§1(a)). Even so, as I've written, detention would be justified only for the purpose of securing a detainee's absence from the battlefield or presence at trial. Neither the law of armed conflict nor the law of criminal justice permits detention solely for interrogation; moreover, both establish legal boundaries within which a detainee is to be treated humanely even on refusal to answer questions unrelated to name, rank, serial number. The order rests, in short, on infirm legal foundation.

Globally Disappeared

Questions've been raised about the accuracy vel non of the term "Global War on Terror" almost since its inception. Is it correct, many ask, to label the campaign a "war"? Can one fight "terror"? Or ought the campaign target, rather, acts of terrorism? Though less has been said about the 1st word, 2 recent reports on persons who've been ghosted into secret detention counsel more consideration of the campaign's "global" nature.
Six NGOS -- Amnesty International, Cageprisoners, the Center for Constitutional Rights, the Center for Human Rights and Global Justice at New York University School of Law, Human Rights Watch, and Reprieve -- focus "Off the Record" on U.S. conduct. The report names more than 3 dozen persons -- including 1 woman and her 3 children, aged 6 months to 7 years -- whom they believe have been detained in secret. "'Enforced disappearances are illegal, regardless of who carries them out,'" said NYU's Meg Satterthwaite on release of the report, which points to violations of the International Covenant on Civil and Political Rights and of the Convention Against Torture, to which the United States is party, as well as the International Convention for the Protection of All Persons from Enforced Disappearance opened for signature in February.
As remarkable as the role of the United States in in this account is the involvement of intelligence agencies from other states. Nearly 2/3 of the seizures cited occurred in Pakistan, where the issue of disappearance has sparked unrest. Other countries of capture: Somalia, Afghanistan, United Arab Emirates, Iran, Sudan, and Georgia.
That last country, of course, is in Europe -- and a report to the Parliamentary Assembly of the Council of Europe indicates that Georgia was by no means the only European state involved in secret detention. Rapporteur Dick Marty named Poland and Romania as the location of CIA "black sites" for detainees believed to have high intelligence value. Neither country acted alone, in Marty's opinion; to the contrary, he concluded that they and other states aided the U.S. effort within the framework of a North Atlantic Treaty Organization "platform" agreement reached just weeks after the 9/11 attack (¶¶ 72-111). Marty attributed his ability to ferret out facts that states want to keep secret to the "dynamics of truth" -- often, a sense among Europeans that since President George W. Bush conceded the existence of the program he said he'd keep secret, they might as well tell the story, under promise of anonymity, from their perspective. He called for further inquiry, greater accountability, and a return to the rule of law:

We are fully aware of the seriousness of the terrorist threat and the danger it poses to our societies. ... The fight against terrorism must not serve as an excuse for systematic recourse to illegal acts, massive violation of fundamental human rights and contempt for the rule of law. ... [H]aving recourse to abuse and illegal acts actually amounts to a resounding failure of our system and plays right into the hands of the criminals who seek to destroy our societies through terror. ... [I]n the process, we give these criminals a degree of legitimacy -- that of fighting an unfair system .... (¶ 14)

(Next counterterrorism update: the status of accountability, at home and abroad.)