'Nuff said

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

Imagine the events that led to those and similarly-grounded judgments as they actually took place in real life. Picture the school where women were held with unrestrained soldiers, the prison camp guarded by drunken, ill-disciplined troops; the compound surrounded by Hutus, where terrified Tutsi women had sought refuge and protection. Place these situations in their very real context of ethnic cleansing and genocide and then ask yourselves if consent could have anything to do, or have any meaning at all, in such circumstances.

-- Navanethem Pillay (above right), U.N. High Commissioner for Human Rights, former Judge of the International Criminal Court, and former President of the International Criminal Tribunal for Rwanda (prior posts), in "Sexual Violence: Standing by the Victim." Her 2009 lecture appears in a 2010 edition of the Case Western Reserve Journal of International Law, which also includes papers (one by IntLawGrrls' guest/alumna Laura M. Olson) from an "After Guantánamo" symposium.

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.

Guest Blogger: Laura M. Olson

It's IntLawGrrls' great pleasure to welcome Laura M. Olson (left) as today's guest blogger.
Laura is Senior Counsel at The Constitution Project and President of Blackletter Consulting, LLC. From 1997-2008, she worked for the International Committee of the Red Cross. She held the position of Legal Advisor to the ICRC Regional Delegation in Washington, D.C., from 2005-2007. In that capacity, she was responsible for legal support to ICRC activities in the United States and Canada, including ICRC visits to the U.S. detention facility at Guantánamo Bay, Cuba. Before that, she'd held the positions of Legal Advisor at the ICRC headquarters in Geneva, Switzerland, as well as the Delegate responsible for the program to academic circles and universities at the ICRC Moscow Regional Delegation.
During the spring and summer semesters of 2008, Laura was a Visiting Scholar at Notre Dame Law School’s Center for Civil and Human Rights, as well as an American Society of International Law Fellow. She was Project Director for ASIL’s Task Force on U.S. Policy Toward the International Criminal Court from summer 2008 to spring 2009.
Laura holds an LL.M. from New York University School of Law and a J.D. and an M.A. in philosophy from the University of Iowa. Her writing covers matters of international humanitarian law, transitional justice, international criminal law, as well as the relationship between international humanitarian and human rights law during armed conflict.
In her guest post below, Laura discusses her own recent scholarship in the course of offering a critique of a new federal ruling on the habeas petition of a Guantánamo detainee.

Heartfelt welcome!

D.C. Circuit disappoints

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

After the Supreme Court ruled in 2008 in Boumediene v. Bush that the detainees at the Guantánamo Bay detention facility are entitled to habeas corpus to challenge the legality of their detention, the U.S. District Court for the District of Columbia started to take action on the hundreds of petitions filed. In these habeas proceedings, the court has faced the threshold legal question of the scope of the government’s authority to detain pursuant to the 2001 Authorization for Use of Military Force.
I thought it would be interesting to see how the D.C. District Court delimited the permissible bounds of the government’s detention authority, specifically focusing on whether the court’s decisions are consistent with the internment standards under the law of war, international humanitarian law. My conclusions were recently published as Guantánamo Habeas Review: Are the D.C. District Court’s Decisions Consistent with IHL Internment Standards?, 42 Case W. Res. J. Int’l L. 197 (2009).
When my article was submitted at the end of August 2009, the D.C. District Court had ruled on 35 petitions and granted 29, under both the Bush and Obama Administrations. The D.C. District Court has now ruled on 41 petitions, granting 32.
Significantly, on Tuesday, the U.S. Court of Appeals for the District of Columbia issued its first opinion, Al Bihani v. Obama, reviewing a habeas petition on the merits.
In affirming a decision below that had denied relief, the panel of the D.C. Circuit (courthouse above left), in an opinion written by Judge Janice Rogers Brown (right), embraced a detention authority more expansive not only than international humanitarian law permits but also than the D.C. District Court has generally asserted.
Both the Bush and Obama Administrations and the D.C. District Court have analogized to international humanitarian law of international armed conflicts in determining the internment standard to be applied to those detained in relation to what the Supreme Court in Hamdan v. Rumsfeld (2006), indicated to be a “conflict not of an international character” between the United States and al Qaeda in Afghanistan.
In their analogous application of international humanitarian law, both the Administrations and the court have analogized solely to the Third Geneva Convention, applicable to prisoners of war. No mention is made of the Fourth Geneva Convention, protecting civilians.
In my article, I discuss whether analogous application of international humanitarian law internment standards applicable to international armed conflict is appropriate in non-international armed conflict and, if so, in which form. I demonstrate that while it may be acceptable to apply the international humanitarian law standards of international armed conflict by analogy to non-international armed conflict, these standards do not and should not extend to any of those individuals at Guantánamo, who are interned in relation counter-terrorism operations not passing over the threshold into armed conflict.
My analysis indicates that the D.C. District Court’s application of the Bush Administration’s definition of “enemy combatant” and the refined standard provided by the Obama Administration are in some ways narrower and in other ways potentially broader than the international humanitarian law internment standards. Nevertheless, that court has done an admirable job in handling certain complicated and unsettled issues under international humanitarian law, such as the meaning of “direct participation in hostilities” and the analogous application of “combatancy” to non-international armed conflicts. While some of the factors that the judges of the D.C. District Court determined established “combatancy” raise concern of being beyond the scope of factors acceptable under international humanitarian law, the D.C. District Court appears to have thus far reined in the Administration’s standards in a manner more consistent with the definition of “combatant” as understood under international humanitarian law.
The recent D.C. Circuit’s decision, however, determined these international humanitarian law matters not to be of concern, as the court completely rejected the premise that international humanitarian law constrains the authority conveyed by the AUMF to detain. The court determined that international humanitarian law is “not a source of authority for U.S. courts.” The court did so despite the ruling of the Supreme Court in Hamdi v. Rumsfeld (2004) and despite the government view that international humanitarian law has a role in the interpretation of the AUMF’s grant of authority, as pointed out in Senior Judge Stephen F. Williams' concurrence.

The Circuit Court’s decision provides much for discussion.

Suffice it to say for the purpose of this posting that those who had hoped, either that the exclusion of international humanitarian law from the determination of the scope of detention authority or that D.C. Circuit’s clarification of the District Court’s differing interpretations of the internment standard would narrow the scope of government’s authority to detain, find themselves concerned and disappointed.