On August 8

On this day in ...
... 1942, the same day that The New York Times published a report that President Franklin D. Roosevelt "continued study" of death-penalty recommendations made by a special military commission he had convened, the United States executed 6 would-be saboteurs by electrocution at a jail in the District of Columbia. They were among 8 men who'd traveled by submarine from their native Germany and landed months earlier on the U.S. coast. During a recess in their July trial, defense attorneys had sought relief from the U.S. Supreme Court, which refused in Ex parte Quirin (1942). Among those executed was one Herbert Hans Haupt, whom the Court presumed held U.S. citizenship -- a presumption that would become significant in the post-9/11 judgment in Hamdi v. Rumsfeld (2004). The Times further reported on this day that Haupt's parents were not notified of their son's death -- for the reason that the parents and 4 other Chicagoans were in jail on suspicion of having helped their son. Also of note: the Library of Congress photo at right, of the "[k]ey figures in the trial of the eight saboteurs," includes at least 2 who'd go on to play key roles at the postwar trials of accused war criminals. They are: No. 2, Francis Biddle, then Attorney General of the United States and and later the American Judge on the International Military Tribunal at Nuremberg; and No. 1, Myron C. Cramer, then a Major General in the Army JAG Corps and assistant prosecutor in this trial, and later the American Judge on the International Military Tribunal for the Far East, which adjudicated the Tokyo Trial.

(Prior August 8 posts are here, here, and here.)

US ♥ international law

Well, sort of.
Consider this excerpt from the brief just filed by the United States in a Guantánamo detainee's habeas corpus case:

Petitioner cites the panel majority’s statement that the 'premise that the war powers granted by the [Authorization for Use of Military Force (2001)] and other statutes are limited by the international laws of war * * * is mistaken.' The Government agrees that this broad statement does not properly reflect the state of the law. The Government interprets the detention authority permitted under the AUMF, as informed by the laws of war. That interpretation is consistent with the Supreme Court’s decision in Hamdi v. Rumsfeld (2006), and with longstanding Supreme Court precedent that statutes should be construed as consistent with applicable international law.

Pp. 1-2 (citations switched to hyperlinks).
So said the United States' response to the petition for rehearing of the ruling of the U.S. Court of Appeals for the District of Columbia Circuit (courthouse above right) in Al Bihani v. Obama (2010). (Prior IntLawGrrls post) Indeed, in the body of its argument (pp. 6-9), the government repeated and expanded upon its nod to international law. In so doing, it cited case law familiar to those of us who labor in this field. For example:
► Murray v. Schooner Charming Betsy (1804), a precedent from the Court of Chief Justice John Marshall, was cited for the proposition that "an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains."
► United States v. Yunis (D.C. Cir. 1991), a judgment (by a panel included then-Judge Ruth Bader Ginsburg, along with then-Chief Judge/now IntLawGrrls guest/alumna Patricia M. Wald and the opinion's author, Abner Mikva) arising out of a 1985 cross-border, terrorism-linked hijacking. Yunis was cited for the proposition that "courts will not blind themselves to potential violations of international law where legislative intent is ambiguous."
Notably, the U.S. position in this brief stands at odds with that taken in the Military Commissions Act of 2006; in section 5(a), Congress forbade anyone to "invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action ... as a source of rights in any court of the United States or its States or territories."
At both junctures of its Al-Bihani brief, however, United States argued that international law offers no reason to grant the detainee's petition for rehearing. Here's page 2:

[N]one of this changes the outcome ... The panel majority specifically addressed and properly rejected petitioner’s argument under international law. That unanimous ruling is correct and does not warrant rehearing or rehearing en banc.

What the government giveth ....

SCOTUK

American lawyers are fond of calling the highest court in their land SCOTUS -- hence the name of the blog dedicated to covering the work of the Supreme Court of the United States.
Perhaps soon, then, we'll hear our colleagues across the pond utter the acronym SCOTUK.
That's the thought that jumped to mind while watching, on C-SPAN, last week's 1st-ever hearing of the Supreme Court of the United Kingdom.
The court replaces the old Law Lords with a new and independent judicial institution that sits in a new and television-friendly chamber. (Video here)
It's a 12-Justice court now staffed by 1 woman -- Lady Brenda Marjorie Hale (left), aka The Right Honorable the Baroness Hale of Richmond-- and 10 men. One seat is vacant.
These Justices will serve as the final domestic forum for litigants in England, Scotland, Wales, and Northern Ireland, hearing cases that may last for days, quite different from the 1-hour arguments typical in the United States.
In a twist, the lawyers wear robes, and wigs, but the Justices prefer plainclothes.
The court's 1st argument entailed a fascinating interplay of internal and international law.
Captioned Her Majesty's Treasury (Respondents) v A and others and another (FC) (Appellant), the case asks whether Britain's executive acted unlawfully when it froze appellants' assets pursuant to a 2006 executive order issued consequent to U.N. Security Council Resolution 1373 (Sept. 28, 2001), a post-9/11 measure entitled "Threats to international peace and security caused by terrorist acts" that imposed on U.N. member states duties intended to combat the financing of terrorism. No express authorization by Parliament preceded Britain's asset seizure. Therefore, the new high court must confront what counsel deemed an issue of 1st impression:
► Did Parliament give sufficient authorization when it enacted the rather brief United Nations Act 1946, which permits orders "necessary or expedient for enabling" Security Council "measures to be effectively applied," or, to the contrary, did the asset seizure overstep the executive's power under Britain's constitutional structure?
Just as the court's name bears echo with its U.S. counterpart, the issue recalls one recently before the latter court; that is, whether Congress' Authorization to Use Military Force justifies indefinite detention post-9/11. The similarity vel non of the answers remains to be seen.

'Nuff said

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

'I will continue to do what I can to help this individual maintain his sanity, but in my opinion we're working with borrowed time.'

-- "an unidentified Navy brig official," in a military communication just disclosed pursuant to Freedom of Information Act litigation. The quote appears in a 2002 military communication regarding Yaser Esam Hamdi (left), a U.S.-born man in his early 20s, who'd been captured in late 2001 during the counterassault in Afghanistan. Hamdi would remain in incommunicado "enemy combatant" detention for years more, until the Supreme Court's decision in Hamdi v. Rumsfeld (2004) set in motion events that led to his release and return to his home in Saudi Arabia.

World War II déjà vu, all over again

The 2d of the transnational cases the U.S. Supreme Court's just agreed to review promises a revisit, yet again, to World War II-era precedents.
Litigation post-9/11 has prompted the Court more than once to plumb those precedents in determining whether and to what extent the Constitution protects persons the United States detains in time of conflict. In the citizen-enemy-combatant case Hamdi (2004), for example, the plurality relied heavily on its interpretation of Quirin (1942); in contrast, 2 other Justices dwelt on statutory reform in light of Korematsu (1944). Noteworthy has been the reliance on cases in which Justice Wiley B. Rutledge, Jr., for whom Justice John Paul Stevens clerked in 1947-48, took part: Stevens' opinion for the Court in Rasul (2004) drew on Ahrens (1948); in Hamdan (2006), on Yamashita (1946). (See analyses here, here, and here, here.) The just-granted Munaf likewise portends a new look at Hirota (1948).
Mohammad Munaf (left) and Shawqi Ahmad Omar (below left), both U.S. citizens who also hold citizenship in a 2d country, are in U.S. custody in Iraq, where a multinational military force is in place. An Iraqi court convicted Munaf of involvement in a kidnapping and sentenced him to death; Omar has not been charged. Both petitioned U.S. courts for habeas relief. The U.S. Court of Appeals for the D.C. Circuit ruled against Munaf 2-1. Yet a couple months earlier, a somewhat different panel of the same circuit had ruled in favor of Omar. Last week the Supreme Court consolidated and agreed to hear both matters. The importance of the 1948 precedent is evident not only in the circuit's reasoning, but also in Munaf's petition for certiorari, which includes this Question Presented:

Does the decision of the Court of Appeals, holding that Hirota v. MacArthur deprives the federal courts of jurisdction under these circumstances, extend the 1948 per curiam opinion in Hirota into conflict with this Court's post-1948 jurisprudence culminating in Rasul v. Bush and Hamdi v. Rumsfeld, and should that conflict be resolved either by restricting Hirota to its proper sphere or by overruling it?

As detailed here by our colleague Steve Vladeck, Kōki Hirota (below right) was a civilian diplomat and erstwhile prime minister who never held military rank; however, most petitioners in Hirota were, like Yamashita, Japanese military officers. Whereas

Yamashita had been convicted by a U.S. military commission sitting in the Philippines, petitioners in Hirota challenged their convictions before the multinational International Military Tribunal for the Far East (IMTFE). The Supreme Court had devoted many pages to its refusal to rule in favor of Yamashita; in contrast, it disposed of Hirota in a 3-paragraph per curiam, the crux of which are these sentences:

We are satisfied that the tribunal sentencing these petitioners is not a tribunal of the United States. The United States and other allied countries conquered and now occupy and control Japan. General Douglas MacArthur has been selected and is acting as the Supreme Commander for the Allied Powers. The military tribunal sentencing these petitioners has been set up by General MacArthur as the agent of the Allied Powers.
Under the foregoing circumstances the courts of the United States have no power or authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.

The opinion was shorter either than Justice Robert H. Jackson's December 6, 1948, statement that his colleagues were divided 4-4 on whether "the Japanese convicted of war crimes should have some form of relief, at least tentative, from this Court," 335 U.S. 876, or than Justice William O. Douglas' detailed concurrence with the denial of relief that the Court issued 2 weeks later.

Perhaps of particular contemporary interest is the identity of the 2 Justices who did not go along with that ultimate disposition of Hirota: One was Frank Murphy, who served as Attorney General before President Franklin D. Roosevelt appointed him to the bench in 1940. Murphy's dissenting vote in Hirota followed prior dissents in Korematsu, Ahrens, and Yamashita. The other was Rutledge, who'd gone with the majority in Korematsu, but wrote dissents in Ahrens and Yamashita that post-9/11 precedents have cited with favor.

So what did Rutledge do in Hirota? Good question.

The decision itself states:

Mr. Justice RUTLEDGE reserves decision and the announcement of his vote until a later time.

According to his biographer, Rutledge had drafted a dissent before argument was set, in which he set forth reasons the IMTFE might not qualify as a "'validly constituted international'" tribunal, such that exercise of federal jurisdiction would be proper. After argument, though, Rutledge "'passed'" on voting, reportedly remarking to his colleagues in conference, "'This is an international tribunal but if I get over that hump I would act.'" (John M. Ferren, Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge 411-14 (2004)).

Rutledge never did come to rest in Hirota. He never wrote in the case -- never even cast his vote.

Check back in a few months for the role the circumstances of Hirota might play today: As with the other transnational case just granted, Munaf is due to be argued before the Court in spring 2008.

On November 13, ...

... 1950, the Government of Tibet complained to U.N. Secretary-General Trgve Lie that it was the victim of Chinese aggression. The complaint by Tibet (flag at left) stated that even as international troops resisted aggression in Korea, "[s]imilar happenings in remote Tibet are passing without notice."

... 2001, President George W. Bush issued a Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. Announcing a plan to detain captives in the "war on terror" that Bush'd declared in the wake of the terrorist attacks on September 11 of that year, the Order asserted the power "to ... detai[n], and, when tried, to ... tr[y] for violations of the laws of war and other applicable laws by military tribunals" any person whom "there is reason to believe":

(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more [such] individuals ....

Executive detention at home and abroad of persons who came to be called "enemy combatants" -- among them 2 U.S. citizens, José Padilla and Yaser Esam Hamdi, as well as many noncitizens -- soon followed. The Supreme Court invalidated aspects of that policy in its 2004 decisions in Rasul v. Bush and Hamdi v. Rumsfeld, and in its 2006 decision in Hamdan v. Rumsfeld. It is due again to consider detention, in Boumediene v. Bush, on December 5, 2007.

Padilla's Wormhole

After less than two days of deliberation, Padilla and his co-defendants were convicted on all counts by a unanimous jury today. They will face sentencing in December. This conviction represents the first time Padilla’s case has been evaluated on the merits in his five years of confinement, and it’s difficult to know how much this verdict was tainted by his prior “enemy combatant” designation. As I and numerous others--such as our own Grace O'Malley just yesterday and Juliet Stumpf in her interesting work on pseudo-citizenship--have argued, his case presents a frightening example of the basic disregard of civil rights that has occurred far too frequently in the post-9-11 era. Despite O’Connor’s opinion in Hamdi acknowledging due process protections for U.S. citizens designated as enemy combatants, Padilla managed to come before the U.S. Supreme Court multiple times with no evaluation of whether his designation as such was appropriate. Moreover, this type of erosion of process and basic rights has occurred repeatedly in the United States and elsewhere when people are labeled as “enemies” or “others.”
Whether or not Padilla deserves his conviction on the merits, his case should serve as a reminder of why we need to fight for minimum protections of civil liberties and basic consistency in governmental treatment of terrorism suspects. As Judge Luttig, who originally wrote an opinion sympathetic to the Bush Administration, said in response to Padilla’s sudden redesignation from enemy combatant to criminal defendant:

For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake—an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror—an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

Padilla case to the jury

Today a federal jury's expected to begin deliberating the fate of José Padilla, a Brooklyn-born, Chicago-raised American citizen. Padilla was arrested at O'Hare Airport in 2002 and detained in a South Carolina brig for years based on the U.S. executive's assertion that he was an "enemy combatant" bent on helping al Qaeda by exploding a radiological device -- known as a "dirty bomb" -- inside the United States. At the Supreme Court in 2004, along with Rasul v. Bush and Hamdi v. Rumsfeld, Padilla's case was sent back to the trial court on jurisdictional grounds. Only when a 2d round of Supreme Court litigation loomed did the executive transfer Padilla to the custody of the federal criminal court in Miami, where he and 2 others've been on trial on charges unrelated to any "dirty bomb" plot.

Reporters, commentators -- even, at times, the judge -- have called the prosecution case thin. And as long ago as oral argument in 2004, questions have been raised about the harsh conditions of detention and interrogation that Padilla endured. (The photo, from a government video, depicts Padilla, shackled, blindered, and deafened, on his way to the dentist.) Those conditions haven't been before the jury, though, and the brand of "terrorist" might be hard to shake even in a thin case. My views on the case've just been published in the conclusion to Punish or Surveil, my contribution to a national security symposium edition of Iowa's international law journal, Transnational Law & Contemporary Problems. A sample:

Even an acquittal would not, by that fact alone, mean failure. Built into the American system of criminal justice is a tolerance for acquittal. A “fundamental value determination of our society,” to repeat Justice John M. Harlan’s oft-repeated maxim, is “that it is far worse to convict an innocent man than to let a guilty man go free.” This is scarcely less the case when acquittal results because governmental misconduct has placed certain evidence outside the bounds of a properly constituted court. Judicial exclusion of such evidence -- indeed, a prosecutorial decision not even to adduce such evidence -- serves the liberty interests both of the defendant on trial and of the society at large.

For a full understanding of the case and its potential consequences, you can do no better than to read Warren Richey's 3-part series just concluded in the Christian Science Monitor. The article titles tell the story:

► "US terror interrogation went too far, experts say; Reports find that Jose Padilla's solitary confinement led to mental problems."

► "US Gov't broke Padilla through intense isolation, say experts; Despite warnings, officials used 43 months of severe isolation to force Jose Padilla to tell all he knew about Al Qaeda."

► "Beyond Padilla terror case, huge legal issues; His detention and interrogation in the US raises basic constitutional questions."

Today's Monitor editorial commenting on the series states:

[T]he US military used terror -- Padilla had little or no human contact for more than three years -- to fight terror. ...
The jury well may find Padilla guilty, but it may also see the injustice done in his case, and decide otherwise.
Victory in war is sometimes a victory simply for the rule of law.