On February 5

On this day in ...

... 2003, then-Secretary of State Colin Powell urged the Security Council to authorize military intervention in Iraq. In a statement that would prove unsuccessful, Powell claimed that intervention was necessary because the country, then led by Saddam Hussein, possessed chemical (left) and other weapons of mass destruction. (image credit) It's a claim that later Powell admitted "misled.") Most intriguing: Though Powell's statement can be found at nongovernmental sites like CNN.com and YouTube, a Google search suggests that all official records have been removed from the web. See, e.g., here.

... 2008, is Día de la Constitución in Mexico (coat of arms at right). The national holiday commemorates the 1917 proclamation of the Mexican Constitution. According to this website, it's "considered by many to be one of the most radical and comprehensive constitutions in modern political history."

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes)

I'm also troubled, not by what Sen. McCain says, but by what members of the party say. And what is permitted to be said, such things as, 'Well, you know that Mr. Obama is a Muslim.'
Well, the correct answer is: 'He is not a Muslim, he's a Christian. He's always been a Christian.'
But the really right answer is: 'What if he is? Is there something wrong with being a Muslim in this country?'
The answer's, 'No. That's not America. Is there something wrong with some seven-year-old Muslim-American kid believing that he or she could be president?'
Yet, I have heard senior members of my own party drop the suggestion, 'He's a Muslim and he might be associated terrorists.' This is not the way we should be doing it in America.
I feel strongly about this particular point because of a picture I saw in a magazine. It was a photo essay about troops who were serving in Iraq and Afghanistan. And one picture, at the tail end of this photo essay, was of a mother in Arlington Cemetery, and she had her head on the headstone of her son's grave. And as the picture focused in, you could see the writing on the headstone. And it gave his awards. Purple Heart, Bronze Star. Showed that he died in Iraq, gave his date of birth, date of death. He was 20 years old. And then at the very top of the headstone, it didn't have a Christian cross. It didn't have a Star of David. It had a crescent and the star of the Islamic faith. And his name was Kareem Rashad Sultan Khan. And he was an American. He was born in New Jersey. He was 14 years old at the time of 9/11. And he waited until he could go serve his country and he gave his life.
Now, we have got to stop polarizing ourselves in this way.

-- my transcription of Colin Powell (above left) endorsing Barack Obama for President yesterday. Powell, a Republican and retired 4-star Army General, served as U.S. Secretary of State in the 1st term of President George W. Bush and was the 12th Chairman of the Joint Chiefs of Staff. Video of the full endorsement is here; full transcript here. (credit for photo of Army Cpl. Khan; credit for photo of Khan's headstone)

Curious about Munaf

There's something curious about the United States' position in Munaf v. Geren, on which the Supreme Court will hear oral argument Tuesday morning.
Petitioning for a writ of habeas are Mohammad Munaf (left) and Shawqi Ahmad Omar (below left), both U.S. citizens who also hold citizenship in a 2d country, and both of whom now are detained in Iraq. The U.S. brief filed in advance of oral argument cites as the "threshold jurisdictional question" in the case whether

United States courts lack jurisdiction to review the detention of individuals held broad pursuant to international authority, including individuals held by United States forces acting as part of a multinational force.

Interesting question, particularly given that the 1949 per curiam judgment in Hirota. There, as I discussed a while back, out of 9 Justices agreed denied habeas petitions challenging convictions issued by the International Military Tribunal for the Far East, the Tokyo-based counterpart to the Nuremberg trials. The Court in Hirota deemed the IMTFE a "military tribunal" established by U.S. General Douglas MacArthur "as the agent of the Allied Powers," so that "the courts of the United States have no power or authority to review, to affirm, set aside, or annul the judgments and sentences imposed." (p. 17)
But here's what curious: in Munaf the U.S. government contends that U.S. troops that're detaining petitioners do not hold them "'in custody under or by color of the authority of the United States,'" as subsection (c)(1) of the federal habeas statute requires, for the reason that those troops are detaining petitioners "pursuant to international authority"; that is, the coalition known as Multi-National Force (MNF). (pp. 17-18)
The claim suggests a break in the U.S. chain of command -- a cession of U.S. sovereignty -- that's at odds both with the staunchly sovereigntist stance of this administration and with extrajudicial statements that administration officials have made. To cite just 2 examples, on June 5, 2004, Colin Powell, then the United States' Secretary of State, wrote in a letter to Lauro L. Baja, Jr., then President of U.N. Security Council:

[T]he MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel .... The existing framework governing these matters is sufficient for these purposes.

Likewise, in a July 1, 2004, U.S. Department of Defense briefing, Brigadier General David Rodriguez, Deputy Director for Operations, J-3, Joint Staff, said with regard to the MNF:

But in every case, all our allies have a chain of command that goes up to their national leaders, just like we do.

Though the clash in claims may not estop the government as a matter of law, am curious to see, should it be noted in oral argument, whether the government reconciles the clash as a matter of persuasive advocacy.


(cross-posted at Slate' s brand-new Convictions blog, as explained below.)

GTMOre news

With so much happening, where to begin a counterterrorism update? Let's start with these 5 items relating to executive detention, then move in due course to Globally Disappeared and Accountability at Home and Abroad.

Item No. 1. Another call for Gitmo closure -- this time from Colin Powell (below), U.S. Secretary of State when the camp opened in 2002 -- came yesterday on "Meet the Press":

If it was up to me I'd close Guantánamo, not tomorrow, but this afternoon. I'd close it. And I would not let any of those people go. I would simply move them to the United States and put them and put them into our federal legal system. The concern was, 'Well, then they'll have access to lawyers. Then they'll have access to writs of habeas corpus.' So what? Let them. Isn't that what our system's all about? And by the way, America has, unfortunately, 2 million people in jail, all of whom had access to lawyers and access writs of habeas corpus. And so we can handle bad people in our system. And so I would get rid of Guantánamo and I'd get rid of the military commission system, and use established procedures in federal law or in the Manual for Courts-Martial. I would do that because I think it's a more equitable way to do it and it's more understandable in constitutional terms.
But I would also do it because every morning I pick up a paper, and some authoritarian figure, some person somewhere is using Guantánamo to hide their own misdeeds. And so essentially we have shaken the belief that the world had in America's justice system by keeping a place like Guantánamo open and creating things like the military commission. We don't need it, and it's causing us far more damage than any good we get for it.
But, remember when I started this discussion, saying, 'Don't let any of them go. Put them into a different system, a system that is experienced and knows how to handle people like this.'

Item No. 2. As posted, the commissions of which Powell spoke were halted after 2 military judges held themselves without jurisdiction to hear cases brought before them. The ruling's fueled challenges in the U.S. Court of Appeals for the District of Columbia Circuit. The 1st is on behalf of Salim Ahmed Hamdan, an en banc challenge to the commissions (N.B. Judge Allred's issued a revised order linking dismissal in Hamdan to Judge Robertson's reasoning at 344 F. Supp. 2d 152, 156 (D.D.C. 2004). The 2d is on behalf of other detainees, challenges to the Combatant Status Review Tribunals designed to precede any trial proceedings. And even before the military judges ruled, the Supreme Court had invited a U.S. response to petitions, in Boumediene and Al Odah, for rehearing of the Court's decision not to grant immediate review of detainee challenges to channeling of habeas review implemented as a result of the Military Commissions Act of 2007. (Go-to sites for news and documents on these developments: SCOTUSblog and National Institute of Military Justice.)

Item No. 3. This morning the 4th Circuit granted habeas to Ali Saleh Kahlah al-Marri, the only known "enemy combatant" designee held on U.S. soil. Rejecting the Bush Administration's invocation of the MCA's habeas strip, the majority opinion by Judge Diana Gribbon Motz (left) remanded the case to the trial court

with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release al-Marri from military custody within a reasonable period .... The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease.

Item No. 4. Habeas has been on Congress' agenda too: by an 11-8 vote late last week the Senate Judiciary Committee approved the Habeas Restoration Act (S. 185), which would undo the MCA's habeas strip. The bill is expected to reach the full Senate later in the month.

Item No. 5. Finally, Powell's catchall characterization of all detainees as "bad people" was off the mark. It's by no means an accurate label for all the 700 boys and men who've passed through Guantánamo (where, incidentally, a 4th suicide occurred 2 weeks ago almost without remark). A sad reminder of that fact is the fate of nearly 2 dozen Chinese nationals of Uighur ethnicity who, after years in executive detention, were found to pose no threat to the United States. But they couldn't be returned to China because of the possibility they would suffer harm there, and no country would grant them asylum save Albania, where life this last year has been "driving them to desperation." “Sometimes,'" 1 of them told the New York Times, "'we think it would be better to go die in our homeland than to stay here.'”