Guest Blogger: Natalie Bridgeman Fields

It's IntLawGrrls' great pleasure to welcome Natalie Bridgeman Fields (right) as today's guest blogger.
Natalie's the Executive Director of San Francisco-based Accountability Counsel, a legal nonprofit that she founded in 2009. The organization represents environmental and human rights of communities around the world by creating, strengthening, and using accountability systems. Its particular focus is on nonjudicial grievance procedures related to international finance and development. In her guest post below, she discusses one such mechanism, the U.S. National Contact Point for OECD Guidelines on Multinational Enterprises.
Having been graduated from Cornell University in 1999, Natalie received her J.D. in 2002 from UCLA, where she was Editor-in-Chief of the Journal of International Law and Foreign Affairs. While a law student she interned at the Center for International Environmental Law, served as a consultant to a World Bank inspection panel, and was a law clerk to a North American Free Trade Agreement arbiter. Immediately after law school she was a litigation associate at Wilson Sonsini Goodrich & Rosati, working on commercial cases and on Cabello v. Fernández-Larios, a pro bono Alien Tort Statute case. Since starting her own law firm, she has helped to litigate another ATS case, as well as the post-9/11 lawsuit captioned José Padilla v. John Yoo (additional prior post), both pending before the U.S. Court of Appeals for the 9th Circuit.
Along with Professor David B. Hunter, Natalie also co-teaches a course on International Institutions and Environmental Protection during the Environmental Law Summer Session at American University Washington College of Law.
Heartfelt welcome!

'Nuff said

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

'Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.'

-- U.S. District Judge Jeffrey S. White (N.D. Cal.) (above right), explaining why he denied a motion to dismiss a challenge to Bush-era detention and interrogation techniques. (photo credit)

In the lawsuit captioned Padilla v. Yoo, Case No. 08-00035, on which IntLawGrrls posted when it was filed, onetime "enemy combatant" detainee José Padilla (bottom left) seeks damages against John Yoo (top left), former Bush Administration lawyer and current California-Berkeley law professor. White had taught civil trial advocacy at Berkeley Law, as an adjunct, for more than 20 years before assuming the federal bench on nomination of President George W. Bush.

Since the nation's founding, persons lawfully residing in this country have correctly understood that they can be imprisoned for suspected wrongdoing only if the government charges them with a crime and tries them before a jury.

So ends the IHT's report that the Supreme Court decided on Friday to hear the case of Ali al-Marri (at left, credit), the only person still held in military detention within the US. After the Court of Appeals for the 4th Circuit ruled in June 2007 that Al-Marri must be charged or released, the case was reheard en banc. In a decision split into 2 separate 5-4 majorities on 2 different issues, the court held that the president has the necessary authority to detain Al-Marri, but that Al-Marri has not had a sufficient opportunity to challenge his detention.
Al-Marri came to the United States to study computer science and was living with his family in Peoria, Illinois when he was arrested in December 2001 amidst the nationwide roundup of men of Middle Eastern origin that followed the September 11th terrorist attacks. Eventually charged with credit card fraud, Al-Marri was about to stand trial 18 months later when President Bush designated him an enemy combatant. Just like José Padilla, (right, credit) Al-Marri was transferred to the U.S. Navy Brig in Charleston, South Carolina. But unlike Padilla, who was eventually transferred back into the criminal justice system where he received a trial, Al-Marri has remained in isolation at the brig since mid-2002. By the time the Supreme Court rules on his case later this term, he will have been there for 7 years, and the question he will put before the court will have been waiting almost 8 years to have been answered:

Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize — and if so does the Constitution allow — the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?

Let's hope the Court tackles - and answers - this question head on.

Law & Padilla v. Yoo

In posting earlier this month on the lawsuit that onetime enemy combatant detainee José Padilla's brought against onetime government attorney John Yoo, I provided just the facts. For topnotch analysis of legal issues in the suit, check out this new post by our colleague David Luban.
Particularly notable: David's recap of U.S. prosecutions against German government lawyers "in the second round of Nuremberg trials."

Padilla v. Yoo

José Padilla wants John Yoo to have a day in court.
A civil lawsuit (available here) was filed yesterday by Padilla (right), the Brooklyn-born man detained for years as an "enemy combatant" before standing trial on terrorism charges in Miami. Also suing was Padilla's mother, Estela Lebron. Filing in the U.S. District Court for the Northern District of California, the region where Yoo (left) resides, the 2 sought to have Yoo held responsible for a host of violations of U.S. constitutional and statutory law (no international law is cited). Alleged:
► denial of access to counsel and to court
► unconstitutional conditions of confinement
► unconstitutional interrogation
► unconstitutional military detention
► denial of freedom of religion
► denial of rights to information and association
► denial of due process
Plaintiffs seek a declaratory judgment, nominal damages, and fees against Yoo, who, as an attorney in the Department of Justice's Office of Legal Counsel drafted legal memoranda (as I've discussed here) that outlined justifications for many aspects of the post-9/11 detention program to which Padilla was subjected.
Representing plaintiffs are Natalie L. Bridgeman (left), a 2002 UCLA law graduate who has a solo practice in San Francisco, and 2 attorneys from the Lowenstein International Human Rights Clinic at Yale, the law school from which Yoo was graduated in 1992.

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.

Welcome new IntLawGrrls Stephanie Farrior, Kelly Askin, and Jenny S. Martinez

Completing a new wave of arrivals to our blog, we're delighted to announce the arrival of 3 more IntLawGrrls: Stephanie Farrior (right), Kelly Askin (below left), and Jenny S. Martinez (below right).
Professor of Law and Director of the Center for Applied Human Rights Research at Pennsylvania State University's Dickinson College of Law in Carlisle, Pennsylvania, Stephanie's a leader in the field of international human rights law. She's the former Legal Director and General Counsel of the London-based NGO Amnesty International, a founding board member of the San Francisco-based NGO Center for Justice & Accountability, and a member of the Executive Council of the American Society of International Law. Her recent scholarship includes studies of the U.N. Commission on the Status of Women and of women refugees. Stephanie's chosen Goler Teal Butcher (1925-1993), onetime Howard University Law Professor, State Department official, and head of the U.S. Agency for International Development, as her IntLawGrrls transnational foremother.
Dr. Kelly Dawn Askin is the Senior Legal Officer, International Justice, with the Open Society Justice Initiative in New York. In addition to teaching and serving as a visiting scholar at Notre Dame, Washington College of Law, Harvard, and Yale, Kelly's served as Executive Director of the International Criminal Justice Institute and American University’s War Crimes Research Office, as a legal advisor to the judges of the International Criminal Tribunal for the former Yugoslavia and for Rwanda, and as an expert consultant, legal advisor, or international law trainer to prosecutors, judges, and registry at those tribunals and others in East Timor, Sierra Leone, and Cambodia, as well as at the International Criminal Court. She's published extensively on international criminal law, international humanitarian law, and gender justice, and serves on the board of several organizations, including the Executive Board of the American Branch of the International Law Association, the International Judicial Academy, and the International Journal of Criminal Law.
Jenny is an Associate Professor of Law and Justin M. Roach, Jr. Faculty Scholar at California's Stanford Law School. Jenny's scholarship examines ramifications of the recent prolifteration of international tribunals. In a 2004 oral argument before the U.S. Supreme Court, she represented José Padilla, the Brooklyn-born man who, as posted here, spent years in incommunicado military custody as an "enemy combatatant." She's worked as a consultant for the NGOS Human Rights First and the International Center for Transitional Justice.
Heartfelt welcome!

Take care not to court insecurity

"George Bush Goes for Consensus in Naming Michael Mukasey for Justice," reads the minutes-old headline at Le Monde. It spins with the Associate Press story that surmises, "Mukasey appears unlikely to face a bruising confirmation battle in the Democratic-controlled Senate."
No quibbling about the credentials of Mukasey (left), who presided over high-profile terrorism trials while a Chief Judge at the U.S. District Court in Manhattan, to serve as Attorney General of the United States. Still, there's good reason for Senators to take a hard look at the nomination.
Fresh in mind is the U.S. citizen whom the U.S. executive kept in "enemy combatant" detention for years before permitting him to stand trial in federal court in Miami. Prosecutors set out the case against José Padilla in an open and public proceeding, without resort to classified evidence -- and jurors promptly returned the verdict of guilty that likely will permit his incarceration for life. Putting to one side the difficulties presented to the defense by the taint of prior detention, many saw the result as proof positive that persons suspected of terrorist acts can and should be handled through the justice system in place before attacks on Washington and New York set the stage for efforts to establish a newfangled system. (See here, for example; I'd written as much here before the verdict.)
The administration's called this new mechanism "military commissions," though, as the Supreme Court recognized in Hamdan v. Rumsfeld, in many respects -- respects particularly menacing to the U.S. tradition of fundamental fairness in the substance and procedure of criminal law -- the system deviates from past commissions. Despite Congress' near-rubberstamp of the system in the post-Hamdan Military Commissions Act, the newfangled system continues to falter: the latest halt occurred because military judges concluded that the government was asking them to act illegally.
Against this backdrop, consider now the op-ed that Mukasey published in the Wall Street Journal a week after the close of the Padilla case. In stark contrast with many other commentators, Mukasey saw the result not as an affirmation of existing practice, but rather as evidence that "current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."
To solve the problem that he maintains is at hand, Mukasey commends his readers, and Congress, to give "careful scrutiny" to proposals for "a new adjudicatory framework" -- the so-called Homeland Security Court or, more often, National Security Court, idea that's been percolating in certain thinktanks for a year or more now. It remained out of the larger public discourse until a recent bipartisan publication in support.
Have yet to read anything in support that demonstrates genuine need for this legal contraption. Proponents tend to ignore statistical analyses -- like this chart in the ABA Journal -- indicating that the Justice Department's scarcely a failure in playing its part in the U.S. antiterrorism campaign. And just as the "new paradigm" proponents of a few years back (some of the same folks now calling for this "new court") acted as if history offered no cautionary lessons, proponents today do not mention difficulty and criticism (some from the pre-9/11 United States) visited upon other countries that've pursued this path. Think of the nonjury Diplock courts in Northern Ireland, or the special terrorism tribunals in places like Egypt, Turkey, and Peru. These examples show that such courts, though established in the name of enhancing security, not infrequently make guarantees of due process, public assumptions of the fairness and legitimacy of judicial decisions, and, in extreme cases, public safety, less secure.
With benefit of hindsight, Mukasey's August op-ed looks much like an audition for the position of next Attorney General. And with more than a year remaining for implementation, the Senate ought to use the confirmation hearings to test whether the nomination's intended to pave the way for a final Bush legacy: for the 1st time in the history of a centuries-old country that's faced many a threat to peace, even to its very existence, establishment of a permanent, due-process-lite National Security Court.

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.