Guantánamo 9 years on

Today, January 11, 2011, marks the ninth year of the existence of the detention center (left) at the U.S. Naval Base at Guantánamo Bay, Cuba.
Translate that to measure the effect on human beings. What this means is that scores of men have been detained by the United States for nine years now, in prison-like conditions, without trial.
Detention for nine years without trial.
If I appear impassioned, forgive me. But, yours truly has represented Guantánamo detainees for close to nine years—almost as long as the detention camp has been around. Over the years, I have:
► Played a direct role in the litigation journey that ended in the U.S. Supreme Court judgment in Boumediene v. Bush (2008) (prior posts).
► Seen several bills pass in attempt to restrict the rights of the detainees.
► Seen numerous military commissions start and stop. Child soldier Omar Khadr (right), whom I represented for a short time, has faced no fewer than three different military commissions, operating under different rules.
► Seen my clients on hunger strike. And I heard from my fellow habeas counsel the stories of attempted suicides, successful suicides and whispers of homicide. In total, six men have died in custody.
A lot has happened in these last nine years, though for the detainees there, frankly, too little has happened. In those circumstances nine years can seem like a lifetime. And for some of those men, detention at Guantánamo may be a lifetime.
This brings us to the current state of Guantánamo and the detainees.
Of the original 779 detainees, 599 have been released, but 173 men remain in the detention camp. Despite the executive order issued by President Obama in January 2009 that calls for the closure of the detention camp within a year, which I wrote about here, Guantánamo remains open. And as posted by IntLawGrrl Diane Marie Amann this weekend, the most recent piece of legislation signed into law just a few days ago—The National Defense Authorization Act for 2011—makes it clear that closing Guantánamo will be very difficult. This Act:
► Prohibits the use of funds authorized by the bill for the transfer or release to the United States (or any U.S territory or possession) of Guantánamo detainees, including 9/11 defendant Khalid Sheikh Mohammed, who is specifically named.
► Requires certification from a foreign country regarding the transfer of Guantánamo detainees to that foreign country. The country must certify, among other items, that it: is not a sponsor of terrorism; maintains control over the detention facility; has agreed to take steps to ensure the individual won’t take action to threaten the U.S.; and has agreed to share information with the U.S. regarding the individual.
► Prohibits the use of funds authorized by the bill to modify or construct facilities in the U.S. to house detainees from Guantánamo for detention or imprisonment in the custody of the Department of Defense.
On Friday, January 7, President Obama signed the bill into law but issued a signing statement that specifically address two of the provisions relating to Guantánamo: the restriction on transfer into the U.S. and the certification requirement from foreign countries. (photo credit) Some criticized it as weak. But as Diane's post observed, the signing statement includes a pretty clear denouncement of Congress’ attempt to intrude on executive prerogative. Obama wrote:

'Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.'

President Obama also stated that his administration would

'work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.'

The confrontation between the two branches is certainly interesting, and will require a watchful eye as to exactly how the administration will work with a new Congress that now has a Republican majority in the House.

A more interesting and disheartening development, I believe, are reports of a pending executive order on indefinite detention.

On Sunday, Laurie Blank contributed an IntLawGrrls guest post criticizing such an attempt to routinize indefinite detention. Also well worth reading is the extended article by Dafna Linzer (right), a ProPublica national security reporter, available here. (credit for photo by Lars Klove)

According to Linzer, the White House has been busy for over a year preparing an executive order that sets forth a system for indefinite detention. This system would enable detainees to challenge their detention on a regular basis by requiring a minimal review every six months and then a more lengthy annual review before a ‘parole-like’ board made up of officials from civilian and military agencies. Further, detainees would have access to an attorney to assist them in the process. This review would not replace the court habeas review required by Boumediene, but would supplement it. In essence, the executive review would weigh the necessity of the detention, rather than its lawfulness. The ‘parole board’ would have the authority to release the detainee if appropriate.

The National Defense law just enacted, however, with its severe restrictions on transfer to third countries, would fairly undermine this assertion of executive authority.
In the end:

There are still men at Guantánamo, who by either court order or executive determination (recall the Guantanamo Review Task Force Report that identified approximately 50 men who could neither be tried or released), will continue to be detained without trial either at Guantánamo or elsewhere.

It has already been nine years of detention for the men at Guantánamo, and recent events only confirm that indefinite detention may very well be a reality for some of these men. Equally disturbing, it may very well be a permanent part of our democratic society.

WILIG networks

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

The Women in International Law Interest Group (WILIG) of the American Society of International Law recently hosted its annual networking breakfast at Tillar House, ASIL's headquarters in Washington, D.C. The event drew over 60 attendees, comprising a diverse group of women students, practitioners and pioneers in the field of international law.
Laura Bocalandro, counsel at the Inter-American Development Bank (left), opened up the event. The panel was introduced by Marcia Wiss, partner at Hogan Lovells and adjunct professor at Georgetown Law (below right). Sarah A. Altschuller, senior practitioner in Foley Hoag’s corporate social responsibility group (below left), talked about the challenges facing attorneys in that practice area. Wendy Patten, Senior Policy Analyst at the Open Society Institute and former Advocacy Director at Human Rights Watch, noted that her past experiences as a litigator have continually helped her draft legislation and policy papers that examine and incorporate practical legal remedies for the public facing challenging situations. Carol Pier, Associate Deputy Undersecretary for International Affairs at the Department of Labor, talked about the importance of maintaining a healthy work-life balance. Martina Vandenberg, partner at Jenner & Block LLP, spoke about the various challenges in fighting sex trafficking for which she has been raising awareness for several years. Vandenberg’s advice to young women was to build an "investment fund" – one consisting of a wealth of resources and network – in the early stages of their careers. The "fund," she said, that can assist them during their professional life in later years.

During the Q&A session, topics that arose included:

► Work-life balance for women in law,
► Transitioning from nongovernmental and international organizations to law firms,

► The importance of choosing law firms with a dedicated focus to pro bono work, and

► Rewards of international exposure that continue to enrich an international law attorney’s career in the long run.

The panel unanimously agreed upon the importance of mentors for young women in law firms who can help budding attorneys get quality work in their professional lives. Moderator Wiss encouraged women to continue to raise awareness and advocate for the U.S. ratification of 1979 Convention on the Elimination of All Forms of Discrimination against Women by writing to their representatives in Congress. The panel also reminded women to maintain a healthy emotional life particularly when their work involves fighting against social issues that could have an adverse emotional impact on their personal lives.

At the end of the Q&A, the session broke to allow for networking. Several small crowds formed where women introduced themselves, discussed legal and policy issues in international law, and sought and offered advice. The 4 panelists were among the last few women to leave Tillar House, having answered almost every query by the crowd to the very end.

Note: IntLawGrrls Naomi Cahn (near left) and Kristine A. Huskey (far left) are co-chairs of this interest group. They encourage all who are not yet members to join WILIG!

Go On! Network with WILIG

(Go On! is an occasional item on symposia and other events of interest)

WILIG, the Women in International Law Interest Group of the American Society of Law, will hold a Networking Breakfast next Thursday morning, July 29, at Tillar House, ASIL's headquarters at 2223 Massachusetts Avenue, N.W., in Washington, D.C. Breakfast will be from 8-8:30 a.m. Then, till 10, WILIG (whose co-chairs this year are IntLawGrrls Naomi Cahn and Kristine A. Huskey) will sponsor a panel presentation by

accomplished professionals in law practice and academia who will discuss their career paths and offer professional advice and insights for women interested in pursuing careers in international law.

Small-group discussions networking opportunities to follow.

Free to ASIL members; small fee for others (become an ASIL member here). Registration and details here.

IntLawGrrl Receives Rasmussen Award

'Grrls. . . It is a great pleasure and honor to announce that our very own, Diane Marie Amann (right), founder of IntLawGrrls blog (which just celebrated its 3d birthday on March 3!), is being awarded the "Mayre Rasmussen Award for the Advancement of Women in International Law."
The award is presented by the American Bar Association Section of International Law to individuals who have achieved professional excellence in international law, encouraged women to engage in international law careers, enabled women lawyers to attain international law job positions from which they were excluded historically, or advanced opportunities for women in international law. Past recipients include Marsha Echols, Rona R. Mears, Dianna Kempe, Lucinda Low, and, posthumously, Mayre Rasmussen.
Rasmussen was a pioneer in the field of international business law. She was one of the first women to break into the international business law practice at a major international law firm, and was also one of the first women to achieve a major leadership position in the Section of International Law and Practice. She was a founder of the Women's Interest Network (WIN), the successful ABA International Law Section program that focuses on women in international law; she was also well-known for mentoring women.
Diane follows easily in those great footsteps.
You can read the details of Diane's extensive and impressive bio here. But, in a nutshell, Diane has more degrees than she knows what to do with, was a Supreme Court law clerk, has practiced law in both the private and public spheres, taught law all over the world, directed institutions, received numerous awards, and mentored students and colleagues. IntLawGrrl Beth Van Schaack sums it up:

Not only is Diane an intellectual powerhouse and inspired and inspiring teacher in the field of international law, she is also an incredibly generous mentor.

And, as you know, Diane is the also the founder of IntLawGrrls blog, which has had more than 3,000 posts since inception with almost 3 dozen permanent IntLawGrrl voices and more than 100 women who've joined the blog as guests. As another IntLawGrrl, Jaya Ramji-Nogales, eloquently describes it:

Through IntLawGrrls, Diane has created a vital and vibrant space for female academics to voice concerns specific to our experience and to express our opinions on the pressing issues of the day.

Indeed, it was the chorus of IntLawGrrls singing Diane's praises to the ABA that nominated her for the Rasmussen Award. A clear reminder that we must continue to actively support and promote one another.
CONGRATULATIONS Diane! You are a true inspiration to us all with your tireless efforts to advance women in international law.
Diane will receive the award at either the ABA International Section's Women's Interest Network (WIN) in April at the 2010 Section Spring Meeting in New York City, or in in August during the ABA Annual Meeting in San Francisco. We'll keep you posted!

News from Guantánamo

January is a significant month for Guantánamo observers: January 11th marked the eighth year of its existence and January 22d was the deadline for the prison’s closure, which President Obama had called for in an Executive Order just two days after taking office in January last year. (The Executive Order is described in an earlier post). In July 2009, I posted the announcement by the Administration that it would not meet the January 2010 deadline, issuing a preliminary report instead.

The January 22d deadline passed with very little said by the Administration; indeed, it failed to even set a new date for the closure of the detention center. Asked when the Executive Order would actually be accomplished, White House press secretary Robert Gibbs said, “I don't know when the process will be done. I know they've made great progress on…establishing, first and foremost, case files and recognitions of who indeed was still there and why….There's been progress on issues of sitting a new detention facility.” Speaking of a “new detention facility,” it’s becoming clear that closing Guantánamo really means importing ‘Guantánamo’ to a prison facility in Thompson, Illinois, which the Administration plans to retrofit into a supermax prison to hold ‘suspected terrorists.’

Though the Administration has not announced an official plan for what it will do with the men still at Guantánamo, anonymous government sources revealed recently that out of the 192 men, roughly 110 will be repatriated or resettled eventually, 35 will be tried in federal civilian court and military commissions, and 47 men will continue to be detained in preventive or prolonged detention without charge or trial because they are not ‘prosecutable’ but are too ‘dangerous to release.’ This begs for a detailed post exploring whether there is any legal basis in domestic and international law to support this option. (Check out a recent post by guest blogger, Laura M. Olson, where she explains the D.C. Circuit’s recent rejection of the premise that international humanitarian law constrains the government’s authority under the AUMF to detain, a position even the government has not taken).

In other brief GTMO news: (1) a panel of U.S. military judges heard the first direct appeals of detainees, Ali al-Bahlul and Salim Ahmed Hamdan, who were convicted in military commissions under the Military Commissions Act of 2006, and (2) four more detainees were sent to Europe--3 to Slovakia and 1 to Switzerland.

News from Guantánamo, more on detention

This has been a busy period for news related to Guantánamo and other detention sites.
► Yesterday Army Col. Stephen Henley, a military judge, granted a delay of the trial by military commission of 5 detainees charged in the terrorist attacks of September 11, 2001. His decision came after the passing on Thursday of the deadline of the second 120-day postponement of the military commissions, requested by the Obama administration in May of this year. The administration had made its first request for a 120-day delay in January (along with announcing the closure of Guantánamo, on which we posted here and here), when President Obama took office. Rather than resume operations in full, however, the administration announced this past Wednesday that it would request a third delay -- this time for 60 days -- in the 10 pending military commissions cases, which include the so-called "high-value" 9/11 detainees.
The administration continues to maintain the position that it will prosecute detainees for war crimes under the military commissions originally put in place by President George W. Bush and then passed by Congress in the Military Commissions Act of 2006. The Obama administration says, however, that it intends to revamp the commissions, a task for which it plans to enlist the help of Congress.
► In one of dozens of habeas cases before the D.C. district courts, Judge Colleen Kollar-Kotelly (left) recently ordered the release of Fouad al-Rabiah. This brought the tally in the habeas cases to 30 habeas petitions granted versus 7 petitions denied. Though the full opinion is sealed (the unclassified version to be released soon), this IntLawGrrl learned from an inside source that the government's case relied almost entirely on coerced confessions of al-Rabiah, which apparently drew ire from the judge: She questioned why the new administration was relying on statements obtained through torture and abuse.
Good question.
► In the habeas case involving Bagram detainees, Maqaleh v. Obama, the government filed its brief with the D.C. Circuit Court. Recall that on April 2, 2009, D.C. District Court Judge John D. Bates (right, a Bush nominee) ruled that the three individuals who had been "captured" outside of Afghanistan and brought to the U.S. detention center at Bagram were entitled to file habeas petitions based on the Supreme Court's guidelines in Boumediene v. Bush (2008) (prior posts).
The government appealed that ruling, raising the spectre of Johnson v. Eisentrager (1950) for the hundredth time since 2002, and arguing that there was already a military administrative-type process in place to review whether an individual should be detained. (The Department of Defense review process is in the addendum at the end of the brief). These procedures look a lot like the Combat Status Review Tribunals and the Administrative Review Boards used at Guantánamo, which the Boumediene court concluded were not an adequate substitute for habeas.
► Last but not least in detention-related news, the United States closed Camp Bucca, the largest U.S.-run detention center in Iraq, moving the detainees to other camps and back to the custody of Iraq, all in anticipation of its plan under the new U.S.-Iraq Agreement (prior post) to withdraw from Iraq.

Gitmo 'Grrls

(One in a series on Experts at Law)

As mentioned in our recent Read On! Review, a recurrent theme in IntLawGrrl Kristine A. Huskey's new book is, to quote her,

the fact that women are woefully scarce in national security law, my chosen field. I do not mean to convey that I am the only woman in this field, as there are many women writing, speaking about, and practicing nationalsecurity legal issues, specifically relating to Guantánamo ...

She continued:

[E]very one of these women will tell you that they, too, are often the only female speaker on these issues in a conference room or on a panel filled with men. The world can stand to have more women in fields that are traditionally filled by men.

(pp. iv-v) Kristine then proceeded "to name a few" of the Gitmo 'Grrls who jumped to mind. Her list is reproduced here, along with links to these women and some of their works:

► IntLawGrrl Beth Van Schaack, Santa Clara Law. Her IntLawGrrls posts are here; list of other publications is here.

► IntLawGrrl yours truly (thanks, Kristine!), University of California, Davis. My IntLawGrrls posts are here; list of other publications is here.

► Leila Nadya Sadat, Washington University. IntLawGrrls posts about her are here; publications list is here.

► Gitanjali S. Gutierrez, Center for Constitutional Rights, attorney for detainees. IntLawGrrls posts about her are here; her op-ed is here.

► Agnieszka M. Fryszman, partner at Cohen Milstein, attorney for detainees.

► Beth Gilson, attorney for detainees.

► H. Candace Gorman, attorney for detainees, whom the Chicago Tribune recently profiled. She runs 2 Gitmo blogs, here and here.

► Sylvia Royce, attorney for detainees.

► Sarah Havens, Allen & Avery, attorney for detainees.

► Becky Dick, attorney for detainees.

► Hina Shamsi, staff attorney at the National Security Project of the American Civil Liberties Union. Her ACLU blog posts are here.

► Maria LaHood, Center for Constitutional Rights.

► Opinio Juris' Deborah Pearlstein, Princeton University. IntLawGrrls posts about her are here; her OJ posts are here; her publications list is here.

► Karen J. Greenberg, New York University. IntLawGrrls posts about are her here; some publications are listed here; her newest Gitmo book is here.

► Suzanne Spaulding, Bingham Consulting Group and former Executive Director of the National Commission on Terrorism, among many other natsec posts. An op-ed by her is here.

► Kate Martin, Center for National Security Studies. Some of her publications are here.

► Sahar Aziz, formerly an associate at Cohen Milstein, now Senior Policy Advisor at Office for Civil Rights, U.S. Department of Homeland Security.

► Barbara Olshansky, attorney for detainees. Her books are here.

► Jennifer Daskal, formerly senior counterterrorism counsel at Human Rights Watch, now a Department of Justice attorney.

Recognition is due to many other women as well, of course. (Readers' nominations welcome!)

There are, for example, all the IntLawGrrls and guests/alumnae who have contributed posts in IntLawGrrls' "Guantánamo" series. In addition to Beth, Kristine, and I, they are Elena Baylis, Ursula Bentele, Fiona de Londras, Monica Hakimi, Lynne Henderson, Elizabeth L. Hillman, Dawn Johnsen, Michelle Leighton, Pamela Merchant, Naomi Norberg, Hari M. Osofsky, Jaya Ramji-Nogales, and Lucy Reed. Not to mention guests/alumnae Mary L. Dudziak, editor of this book, and Mary Ellen O'Connell, interviewed here, both with respect to post-9/11 issues. Or my University of California colleague Laurel E. Fletcher, co-author of this book, an empirical study of the fate of ex-detainees.

And there are also the women who shared a Quonset-like tent with Jen Daskal and me during the December '08 week that, as posted earlier, I spent observing Gitmo military commissions on behalf of the National Institute of Military Justice. (A fuller account of my visit begins at page 9 of this report, which also includes dispatches from Executive Director Michelle Lindo McCluer and other NIMJ'ers) These tentmates were: Jill Heine, Amnesty International; Stacy Sullivan, Human Rights Watch; and Devon Chaffee, Human Rights First. And don't get me started on the many women journalists I met at Gitmo, or on the women JAG lawyers whom I watched provide excellent representation of various detainees as detailed defense counsel.

Bottom line -- memo to media reps, conference organizers, anthology editors, etc.:

There are many, many women now working in the field of national security. We've given you the list; it's your job to get in touch. As we posted when a similar issue arose years ago, the key is not only having women "in" the supposedly nontraditional fields of law. It's also having them recognized as being there.

On liberty & security, at Gitmo & beyond

Two days after his inauguration, President Barack Obama issued four executive orders directly relating to Guantánamo, the individuals detained there, and the use of interrogation of individuals in the custody of U.S. officials. As I've posted, Obama’s orders:
► Promised to close Guantánamo within a year, signaling the end of an infamous prison that had become an international symbol for lawlessness and for which the Bush Administration had received much criticism; and
► Established a special interagency task force to "identify lawful options for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations."
The recommendations of the Task Force were due yesterday. But Obama officials announced that they would not meet the deadline and issued a preliminary report instead.
The preliminary report indicates that Obama may not be as inclined to reverse Bush’s "war on terror" policies as completely as he'd indicated during his campaign. The report calls military commissions an appropriate forum for trying some of the Guantánamo detainees -- as well as others who may at some future time be picked up “on the battlefield” on suspicion that they'd violated the laws of war. The report also indicates that the current commissions, established under the Military Commissions Act of 2006, would need some serious revamping, so that, for instance
► The use of statements obtained through torture, cruel, inhuman and degrading treatment would be prohibited;
► The use of hearsay would be subject to further regulation;
► The rules regarding the use of classified evidence would be changed to resemble federal law more closely; and
► All charges levied by the military commissions charges would be cognizable under the laws of war.
The preliminary report does indicate a preference for trying on federal criminal law charges, in federal criminal courts, "where feasible." But the continued use of military commissions, coupled with the possibility of preventive detention for some individuals, as set out in another one of Obama’s executive orders for the disposition of Guantánamo detainees, imply that the Obama Administration may have some difficulty establishing a national security policy that keeps intact cherished ideals of civil liberties and rights for all.

(photo above of Camp Justice, Guantánamo (c) 2008 Diane Marie Amann)

Read On! Justice at Guantánamo by IntLawGrrl Kristine A. Huskey

(Read On! ... occasional posts on writing we're reading) As mentioned in this teaser post last week, IntLawGrrls' own Kristine A. Huskey, aided by Aleigh Acerni, has just published one great book.
The hardcover spine names the book Justice at Guantánamo, and it's surely about that. But a fuller story's evident in the subhead found in the frontispiece, One Woman's Odyssey and Her Crusade for Human Rights.
Kristine does a super job of describing how she came to be among the 1st lawyers representing persons detained at Guantánamo. It started pretty much as a missing persons case: a group of Kuwaitis were worried sick about their sons, who’d disappeared after the onset of the U.S.-led counterassault in Afghanistan. Soon Kristine and her team, led by Shearman & Sterling partner Tom Wilner, find themselves ensnared in the tangle of national, international, habeas, and criminal law regimes relevant to post-9/11 detention. The team travels to Kuwait, to court, and, years later, to Guantánamo. Kristine’s opening description of her 1st sojourn there is masterful. Her closing questions about current policy likewise provoke much thought, coming as they do at the end of the very human story she tells.
And that is where the subtitle comes in.
Framing, indeed interweaving, this story of detainee representation is another – the story of how one woman has negotiated the challenges of life and career in our complex society. Kristine’s odyssey begins in bushplane Alaska, moves to a stint as an unwed teenaged hausfrau in wartorn Angola, to a New York City life of fin de siècle hedonism that would have done Jay McInerney proud. In Manhattan Kristine stumbles – the word is not an exaggeration – into undergraduate study at Columbia. That leads to law school at Texas and, eventually, to practice at Shearman.
It’s an improbable journey, and Kristine reveals its elements well. She is the child of a Caucasian bush pilot and a Filipina mother, a family not familiar with Ivy League colleges. She is a fashion model and an honors student, a bartender and a beauty pageant contestant.
She is a feminist too, and her candid telling of that story intrigues. Kristine is a woman and a ’Grrl. She grapples with how to be all that, and an attorney to boot. Her path to a most excellent career includes prickly personal relationships. Her late-in-the-day discovery of her heritage includes a quest to become a Filipina beauty queen – by reciting a Marge Piercy poem. As Kristine remarks (pp. 51-52),

I’m pretty sure I would have at least placed in the pageant if not for these few lines:
A strong woman is a woman in whose head
a voice is repeating, I told you so,
ugly, bad girl, bitch, nag, shrill, witch,
ballbuster, nobody will ever love you back,
why aren’t you feminine, ...

This is a book that everyone embarking on a legal career – not to mention everyone who ought to know more about America’s campaign against terrorism – would do well to read.
Go, ’Grrl!

Good question

There was a third option: In addition to the first two courses of action, we could detain people who had not actually committed any crime, but whom we thought might commit some terrorist act or harm the national security of America. These would be people we considered 'too dangerous' to release or even transfer to the custody of another country and who we could not charge and try in court due to lack of evidence or other related problems. ... This course of action -- preventive detention -- was, in fact, what we were doing under the Bush Administration! Would Obama continue such a policy, just more humanely and in accordance with domestic and international laws?

-- IntLawGrrl Kristine A. Huskey, on p. 275 of her superb new book, Justice at Guantánamo (2009), on which IntLawGrrl Naomi Cahn recently posted here, and about which I'll be posting a full Read On! review very soon.
Kristine's question was aimed at the Executive Order that President Barack Obama issued just days after his inauguration. Here at IntLawGrrls she'd posted about that order at the time. As yesterday's post by guest/alumna Monica Hakimi, and my own New York Times blog post this spring indicate, the question remains very much an open one half a year later.

Go On! WILIG Networking Breakfast

(Go On! is an occasional item on events of interest) We are delighted to announce that WILIG, the Women in Law Interest Group of the American Society of International Law, will sponsor a Women in International Law Networking Breakfast on Thursday, July 9, from 8:30-10 a.m. at ASIL's Tillar House headquarters, 2223 Massachusetts Avenue, N.W., Washington, D.C.

The program features accomplished professionals in law practice and academia, who will discuss their career paths and offer insights to women interested in pursuing careers in international law. The panel presentation will be followed by small-group discussions to foster networking opportunities. The panelists include our own IntLawGrrl Kristine A. Huskey, National Security Clinic, University of Texas School of Law, as well as: Laura Black, Office of the Assistant General Counsel for International Affairs at the Treasury Department; Andrea J. Menaker, White & Case; and Andrea J. Prasow, Office of the Chief Defense Counsel, Office of Military Commissions.

We hope to see many IntLawGrrls at this event! You can find more information about the program and registration here.

And heartfelt congratulations to Kristine and to IntLawGrrl Janie Chuang for organizing this wonderful event!

Guantánamo Update

On January 22, 2009 -- exactly 7 years and 11 days after the first detainee was brought to Guantánamo -- President Barack Obama signed an Executive Order which requires the closure of the Guantánamo Detention Center within one year. The Order also:
► Calls for the participation of the heads of several agencies to cooperate in reviewing every detainee's case on an individual basis to determine whether the detainee can be released, transferred, or prosecuted pursuant to an Article III court.
► Allows for the determination of an "other disposition"; that is:

With respect to any individuals currently detained at Guantánamo whose
disposition is not achieved [by release, transfer or prosecution], the Review shall select lawful means, consistent with the national security and foreign policy intersts of the United States and the interests of justice, for the disposition of such individuals.

► Specifically calls for "humane standards of confinement" under applicable law, including Common Article 3 of the Geneva Conventions, for the individuals detained at Guantánamo.
In anticipation of the Executive Order, on January 21, Judge Reggie B. Walton of the U.S. District Court for the District of Columbia stayed the habeas proceedings in the case of three Guantánamo detainees who are before him. Walton did so at the request of the Government, which had stated that it needed time to figure out how to proceed.
Other district court judges with detainee habeas proceedings, however, are moving forward.
On the same day the Executive Order was issued, Judge John D. Bates invited the new administration to revise the government's position regarding the appropriate defintion of "enemy combatant" to be used in the habeas proceedings and, in another case, ordered the government to state whether it had audio or video recordings, or transcripts of statements made by the detainee, or contemporaneous notes taken during interrogations. (At left, images from the interrogation of Omar Khadr.)
Similarly, Judge Gladys Kessler gave both petitioner and the government a January 29th deadline for their submissions on the definition of "enemy combatant." In another habeas case, Kessler ordered discovery to proceed with certain disclosures from the government due on February 6.

(More on effects of the President's order below.)

RTF?

Last week's Executive Order to close the Guantánamo detention camp by this time next year -- about which IntLawGrrl Kristine A. Huskey's posted above -- has touched off a flurry of debate in government and the media. Particularly noted is a resurgence of a phenomenon here labeled RTF, for "returned to the fight."

There've been occasional allegations over the years that a smattering of the 500 or so men freed from Guantánamo subsequently "returned to the fight." It was scarcely a surprise that such allegations intensified just as President Barack Obama made good on his campaign promise and set in motion closure of the camp.

Page 1 of Friday's New York Times thus told of an RTF-er now said to be an al Qaeda deputy in Yemen. The story appeared about a week after release of at of a pre-inauguration Pentagon report classifying fully 11% of all men and boys freed from GTMO as RTF.

But as CNN reported this weekend, "security experts" are "skeptical." (Video of a segment of the Rachel Maddow show, in which Seton Hall Law Professor Mark Denbeaux debunks the Pentagon's numbers, is here.) And though the head of the Pentagon -- Defense Secretary Robert Gates, the only holdover from the prior Cabinet -- did not dispute the numbers, CNN reported that he saw no cause for alarm:

'It's not as big a number if you're talking about 700 or a thousand or however many have been through Guantanamo.'

But these responses overlook a more fundamental problem at play in all RTF reports.

As my New York Times' Room for Debate blog post details, resort to the RTF catchphrase requires acceptance not only that a former detainee's now in the fight, but also that he was a fighter before his capture. All agree that was not the case with all GTMO detainees. (image credit)

Here's hoping that the new administration follows through on its commitment to undertaking a careful and concrete case-by-case analysis, rather than casting easy yet overbroad aspersions on a diverse detainee population.

(To GTMOre news, check out Karen J. Greenberg's Washington Post op-ed on how, in the early days of detention, Pentagon civilians thwarted uniformed military lawyers' efforts to operate within the bounds of legal due process.)

News from Guantánamo

IntLawGrrls have posted often on matters related to Guantánamo, but we've not checked in recently. So here's a roundup of what's been happening:

Detainees Arraigned in Military Commissions

On Thursday, June 5, Khalid Sheikh Mohammed and four other detainees were arraigned before the military commissions at the Guantánamo Detention Center for their alleged participation in the September 11, 2001, attacks on the United States. The prosecution seeks the death penalty on the charges, which include conspiracy, murder in violation of war, attacking civilians, and material support for terrorism. The five detainees were among twelve detainees who had been held in secret CIA "black sites" prior to their transfer to Guantánamo in September 2006. U.S. government officials have admitted to waterboarding Mohammed while in secret custody; the other four arraigned detainees were also subject to torture and coercive interrogation techniques, including sleep deprivation, stress positions and forced nudity. The arraignment marks the first public glimpse of the alleged "masterminds" of 9/11 and over fifty members of the domestic and international media were permitted to view the proceeding, which was characterized by long conversation between the five detainees, much to the concern of defense counsel who believe the judge let the conversation inhibit the voluntary choice of legal counsel. Army Major. Jon Jackson, who represents one of the detainees, testified that his client, Mustafa Ahmad al-Hawsawi, had clearly been "intimidated" and pressured by Mohammed to disavow his military attorney and to represent himself. Judge Ralph Kohlmann, who had previously denied all defense requests to delay the arraignment, postponed ruling on al-Hawsawi's and another detainee's requests to represent themselves, but ruled that the other three detainees had "knowingly and voluntarily" refused legal counsel. (credit for above photo of Gitmo courtroom)

Military Commissions Judge Steps Down

Military Judge Peter E. Brownback III, who has been presiding over the commission case of Omar Khadr (the young Canadian alleged to have killed an American soldier in Afghanistan; prior posts here), stepped down and will be replaced by Col. Patrick Parrish. The Pentagon has not explained the reason behind the move. Judge Brownback had threatened to halt proceedings if the prosecution failed to release Khadr's detention records. He also had resisted setting a trial date until the classified prison log, which allegedly demonstrates that Khadr was abused and coerced into making incriminating statements, is provided to the defense. Brownback's rulings have not always been in favor of Khadr, however; for example, he declined to apply child soldier status to Khadr. But defense counsel felt that Judge Brownback was fair and was making an effort to make the process fair despite the severe shortcomings of the commission system.

Canada's High Court Denounces Guantánamo Detentions

On a related topic, in a case originally brought by Omar Khadr in the Canadian court system, on May 23 the Supreme Court of Canada unanimously ruled that the detention and interrogation of Omar Khadr at Guantanamo violated U.S. domestic law and international human rights obligations to which Canada is a party, and thus required Canada to disclose to Khadr certain documents in its possession. Disagreeing with the Canadian government, the Court concluded that the Canadian Charter of Rights and Freedoms did apply at Guantanamo. The Canadian Court found that because the U.S. Supreme Court had already ruled in Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006) that the detentions violated U.S. domestic law and international law. Thus it wrote in paragraph 24 that the principles of comity, which would normally justify deference to foreign laws and might preclude application of the Charter, do not apply in the case:

'The violations of human rights identified by the United States Supreme Court are sufficient to permit us to conclude that the regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.'

Under section 7 of the Charter, which states that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," the Canadian government was required to disclose to Khadr's counsel records of interviews and information given to U.S. authorities by Canadian officials who interrogated Omar Khadr at Guantánamo. The Court based its decision on the principles articulated by the Stinchcombe case, which held that persons whose liberty is a risk as a result of being charged with a criminal offence are entitled to disclosure of the information in the hands of the Crown under section 7 of the Charter. The Court also held that its ruling did not necessarily mean that Khadr and his attorneys were entitled to unredacted copies of all documents. The trial judge presiding would review the materials and decide which documents fall within the scope of the disclosure obligation.

News from Guantánamo

A roundup of what's up with cases arising out of Gitmo:
Gates v Bismullah
In an attempt to limit the information it must provide the D.C. Circuit Court when the court reviews an enemy combatant determination of a Guantanamo detainee under The Detainee Treatment Act, the government filed a petition for certiorari with the U.S. Supreme Court appealing the Circuit Court’s decision to deny rehearing en banc of its initial decision that the court must review all of the evidence regarding a detainee’s enemy combatant status and not just the evidence presented to the Combatant Status Review Tribunal as proposed by the government. After the denial, the government requested a stay of the court’s decision and filed the cert. petition, requesting SCOTUS to either accept the case with expedited review or defer action until the Court ruled on the Al Odah/Boumediene case, which has been pending since the Court heard oral arguments on December 5, 2007.

The Military Commissions
In the case of USA v Omar Khadr, the defense recently had several pre-trial motions denied by military judge Peter Brownback. Most significant was a motion to dismiss the charges and specifications on the grounds that the Military Commissions Act of 2006 is a Bill of Attainder -- prohibited by Art. I, § 9(3) of the U.S. Constitution -- for the reason that the Act essentially legislates punishment without trial. Judge Brownback disagreed, notwithstanding the fact the military commissions trials have been called a sham, rigged and unjust by defense JAG attorneys, and more recently characterized as ‘politicized’ by former military commissions prosecutor Colonel Morris "Moe" Davis. Davis, who quit the prosecutor's post a few months ago, has just announced that he will testify on behalf of a Gitmo detainee. Explaining his departure, Colonel Davis stated, “I concluded that full, fair and open trials were not possible under the current system.” And as posted, the Colonel reminded a couple weeks ago that Brigadier General Thomas Hartmann, legal adviser for the military commissions, refuses to rule out using evidence obtained by waterboarding.
In light of these circumstances, even the most hardened tough-on-crime conservative should be concerned about the recent swearing of charges against the ‘high-value six’ detainees, which includes Khalid Sheik Mohammed and Mohamed al Kahtani. The six are being charged with numerous crimes the government alleges are war crimes based in part on conduct that occurred well before 9/11. The government seeks the death penalty. Apparently, the government has already forgotten the decision of the Supreme Court in Hamdan, which holds that a precondition for a military tribunal’s exercise of jurisdiction is that ‘it is limited to trying offenses committed within the convening commanders field of command, within the theater of war and that the offense charged must have been committed during, not before or after the war.’

Now, I have no sympathy for terrorists and I am not opposed to military tribunals when imbued with due process. But how can anything good come of trying an individual in a ‘politicized’ ‘sham trial,’ for faux war crimes, on the basis of evidence procured by torture, in front of a tribunal that is all but ordered to obtain convictions, and then executing him?

Oh, and did I mention that such trials would be a gross violation of international law?

(photo from Camp Delta, Guantánamo Bay, courtesy of Center for Constitutional Rights)

News From Guantánamo

This last week has seen two developments in Guantanamo litigation, both in the U.S. federal court and in the U.S. Military Commissions:
United States v. Jawad (Mil. Comm. Jan 31, 2008)
The Defense Department announced that charges were referred to a military commission in the case of Mohammed Jawad by the Convening Authority, Office of Military Commissions, Susan J. Crawford. Jawad was charged with attempted murder in violation of the law of war and intentionally causing serious bodily injury. It is alleged that he attempted to commit murder and cause serious bodily injury by throwing a hand grenade into the passenger compartment of a vehicle transporting two U.S. Army military personnel and their interpreter with the intent to kill them. In accordance with the Military Commissions Act of 2006 and the Manual for Military Commissions, Jawad will be brought before the military trial judge for arraignment within 30 days of the service of charges. Within 120 days of the referral, the military trial judge will assemble the military commission.
Brig. Gen. Thomas Hartmann, legal advisor to the convening authority, claimed that these war crime proceedings will continue to move forward in open trials and with more due process than any alleged war criminal has historically received. Many JAG defense lawyers assigned to represent Guantanamo detainees charged with war crimes and the international legal community contend that the military commissions procedures are inherently unfair and contrary to international law and military justice.
Of the 275 detainees at Guantanamo, approximately 80 are expected to face trial by military commission.
Bismullah v. Gates (D.C. Cir. Feb. 1, 2008)
The D.C. Circuit denied en banc review in Bismullah, the lead case with respect to D.C. Circuit review of the Combatant Status Review Tribunal determinations of enemy combatant status (the adequacy of which is a central issue before the Supreme Court in Boumediene). The Circuit split 5 to 5 on the question of whether to grant rehearing en banc, and thus denied the petition. Chief Judge Douglas Ginsburg issued an opinion, essentially restating the position, articulated in the panel opinion at issue, that a DTA (Detainee Treatment Act) revoew requires the Circuit to have access to all of the information in the government's possession relating to the detainee’s status as an enemy combatant, not just the information the Tribunal reviewed in finding the detainee to be an enemy combatant, in order to determine whether the CSRT Recorder discharged his duty to assemble such information. Judges Henderson and Randolph each wrote dissenting opinions, joined by Sentelle and Kavanaugh, arguing that the D.C. Circuit’s review of a CSRT determination should not require production of information that was not part of the record before the CSRT itself, or at least that this question should be decided by the full circuit.
For a more detailed explanation of how the Detainee Treatment Act and the Military Commissions Act affect the Combatant Status Review Tribunals and the Administrative Review Boards (two military procedures that the Guantanamo detainees have been provided during their detention), read "Standards and Procedures for Classifying 'Enemy Combatants': Congress, What Have You Done?" by yours truly, IntLawGrrl and Professor Kristine A. Huskey.