News flash: Ghailani gets life

A federal trial judge in New York just gave a former Guantánamo detainee the maximum sentence of life imprisonment following his November conviction for an offense related to the 1998 U.S. embassy bombings in Kenya and Tanzania. (photo credit) As this 'Grrl wrote last November respecting the conviction (here and here), this no-surprise sentence

confirmed the capacity of federal criminal courts to protect both individual rights and public safety.

Food for thought amid rumors that trials before GTMO military commissions soon may resume.

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.

Detention, trials & American values

(Delighted to welcome back alumna Laurie Blank, who contributes this guest post)

As Professor Amos Guiora and I argue in "Don’t Deny Detainees Their Day in Court," an op-ed published a few days ago in the Los Angeles Times, the idea that every person deserves his or her "day in court" is a fundamental principle in the United States and many countries worldwide. Yet more than nine years after 9/11, the United States remains paralyzed not just about how to give the thousands of detainees in U.S. custody around the world their day in court but about whether to give them that day in court.
Multiple judicial forums have been created to try nonstate actors who have perpetrated war crimes from Rwanda to Sierra Leone to Cambodia to the former Yugoslavia — to give them their day in court. That makes the failure to answer this question for post-9/11 detainees particularly perplexing and deeply troubling.
Two successive administrations have been incapable of answering what should be the most basic questions: if, how and where to try terrorists. In the meantime, post-9/11 detainees languish in indefinite detention. The result is a fundamental and overwhelming violation of the rights of individuals who are no more than suspects, in either past or (more problematic) future acts.
The Obama administration reportedly now intends to issue an executive order establishing indefinite detention without trial for detainees at Guantánamo Bay. Such a decision would formalize this violation of basic rights. Denying individual accountability would now be official U.S. policy and law.
The claim that granting prisoners the right to file petitions for habeas corpus and receive regular reviews is sufficient is disingenuous. At best, that only addresses detention status, without doubt an important question. But it does not facilitate the resolution of individual accountability, the principle that requires that an individual have the opportunity for adjudication of his or her guilt or innocence. It is wrong morally, not to mention legally.
The first step, therefore, is to determine that individuals detained post 9/11 deserve their day in court, just like domestic criminals and perpetrators of war crimes. The next step is to implement a mechanism that can do so fairly and effectively. Speedy resolution is, by now, wishful thinking at best.
Unfortunately, for the last nine years, the U.S. has skipped the first step, and has let narrow political considerations devoid of morality, legality and decency determine the nature of the second step. Decision-makers talk of constitutional law and a "beacon on the hill," but acting on that talk seems to present overwhelming challenges. Principles have been discarded in the name of expediency.
Just as crimes grant the state the power to punish, so the state owes the detainees a duty of resolution, a duty to give them their day in court and either prosecute or release, convict or acquit. In the absence of an effective framework to do so, the state is engaging in unconscionable behavior - with an immunity largely granted by Congress and courts alike. Supreme Court and congressional acquiescence in the face of executive power has historically ill-served the American people.
Those who argue that indefinite detention accords with the treatment of prisoners of war gloss over two key distinctions: POWs are held in protective custody and released at the end of hostilities, whereas post-9/11 detainees are held in de facto punitive detention and terrorism has no end to trigger release. Those who want to argue that we are at war with al-Qaeda and other terrorists fail to consider that the law of war and principles of morality in armed conflict do not countenance such an approach, where detainees face the prospect of generational, even lifetime, detention without charge or trial.
Under the law of war, detention is a fundamental aspect of the authority to wage war and has the critical purpose of removing enemy fighters from the battlefield.
Within this framework, POWs are held as a preventive measure – states cannot prosecute POWs for engaging in lawful belligerent acts, i.e., for simply being enemy soldiers fighting on the battlefield. Battlefield detention is lawful and appropriate within this framework and there is no obligation to prosecute or release in this paradigm. The similarity to the indefinite detention we talk about today for detainees at Guantanamo thus lies in the fact that POWs are held without charge and for an unknown (but, critically, not undefined) period of time.
It is the differences that are critical here, though. The differences stretch traditional law of war detention to the extreme and create the effect of forcing a square peg into a round hole. Geography, lawful belligerency, suspected criminality, time parameters – each of these creates another stretch, another tear in the fabric.
► First, battlefield detention is just that – detention of those picked up on the battlefield.
As I’ve noted in an earlier blog post, defining the battlefield in the current conflict against Al Qaeda and other terrorist groups is a critical task, albeit one not yet undertaken or accomplished. We therefore face a situation in which detainees may be held indefinitely under this new framework even if they were picked up either far from a battlefield or – perhaps – in an area where we are uncertain if it is the battlefield. If we cannot identify the battlefield, how can we identify battlefield detainees?
► Second, law of war detention is designed to hold enemy fighters until the “cessation of active hostilities.” In World War II, we held German soldiers for several years, until the end of the war. Several years – not a lifetime. The nature of terrorism and counterterrorism is that we are not going to defeat terrorism; rather, terrorism is something to be managed, minimized, defended against. Not only can we not envision an end to the hostilities, but more problematic, we have absolutely no way of identifying what that end might look like. Sure, we might defeat Al Qaeda in some meaningful way, ending their ability to launch any effective attacks against the U.S. or its allies, but some other terrorist group will take up, or have already taken up, the same fight and we will still be engaged in a conflict with terrorist groups. The consequence of this uncertainty and this very nature of terrorism is that indefinite detention effectively means generational, if not lifetime, detention. Such detention is on another scale entirely from law of war detention as we know it.
► Finally, belligerency and criminality also raise questions here. Law of war detention is primarily designed for lawful belligerents, prisoners of war. The U.S. has gone to great pains – and rightly so in most cases – to argue and demonstrate that the folks at Guantanamo are not lawful belligerents. Rather, they are persons not entitled to any form of privileged combatancy under traditional principles of international law. Still more, they are generally persons we suspect (or could likely prove depending on the evidence available) have committed violent crimes against Americans, American interests and our allies. Unlike law of war detention, therefore, where individuals held in protective custody are specifically not suspected of or charged with any crime, the detainees to be held in indefinite detention are effectively held in punitive custody, suspected of culpability in violent, criminal terrorist attacks but neither charged nor prosecuted.
Indefinite detention in these circumstances is a square peg in a round hole and completely undermines the basic notion of individual accountability, thus constituting a fundamental miscarriage of justice. The United States, uncertain whether the detainees are criminals or more akin to fighters in an armed conflict, must still grant them the basic right to a day in court. Without that, individual accountability is simply eliminated, effectively saying that the adjudication of individual liability is burdensome, perhaps even irrelevant.
This is not the American way; rather, it is a repudiation of American values. Whatever method of trial one prefers – civilian courts, national security courts, or military commissions, the time has come to decide and adjudicate.

Update: Khadr pleads guilty

Omar Khadr has pleaded guilty to 5 terrorism charges.
According to a report by the Washington Post's Peter Finn, the plea entered this morning by a military commissions judge at Guantánamo provides for an additional year of detention at that U.S. naval base, followed by 7 years more in prison in Canada, Khadr's birthplace.
Below are my thoughts posted in anticipation of this latest development in this case of a captured child soldier.

Khadr to settle?

Emanating from Guantánamo yesterday:
News stories reporting rumors that the military commissions case of United States of America v. Omar Ahmed Khadr is about to end with a plea bargain.
If not, trial is set to begin later this morning in a GTMO courtroom.
Confirming rumors reported by the Los Angeles Times' Carol J. Williams on Saturday, Reuters' Jane Sutton speculated on a reputed agreement by which Khadr, now 24 (above right), would serve "one more year at Guantanamo, followed by seven years in his native Canada." (image credit) Sutton added that Secretary of State Hillary Clinton had talked Sunday with her counterpart in Canada, which would have to approve any such deal.
Later on Sunday, Michelle Shepard of the Toronto Star, author of a book on the case, acknowledged such speculation, but stressed the statement by "Khadr’s Canadian lawyer Dennis Edney" that "there was no deal, 'as of this moment.'" Shepard thus continued with a preview of the trial, should it occur.
The Miami Herald's Carol Rosenberg, meanwhile, led with concern that any Khadr deal might remain secret (as has that of another detainee). Such secrecy would challenge "[t]he Obama administration's quest to show that military commissions can be as transparent and fair as other U.S. courts," Rosenberg reported.
(Indeed, as posted in the update above, this morning Khadr did plead. The agreement was not released, but is believed to provide for the sentence described in this post.)
As blogreaders well know from our prior posts, Khadr was 15 (above, middle) when seized by U.S. military personnel during a firefight in Afghanistan. He has spent 1/3 of his life in American custody. As detailed in his Department of Defense case file, Khadr now faces trial on charges of, inter alia, throwing a grenade that killed a member of the U.S. special forces during the firefight.
At the preliminary hearing that I attended in December 2008, defense lawyers indicated that proof of the charges at trial may prove difficult. From the beginning, however, proceedings have focused on 2 other aspects of the case:
► 1st, what Khadr suffered, including treatment as a "human mop."
► 2d, that if the acts alleged in fact occurred, Khadr was a child soldier. That fact alone ought to preclude prosecution and punishment, many have argued -- among them our colleague David M. Crane, former Chief Prosecutor for the Special Court for Sierra Leone.
The plea agreement bruited in yesterday's media would seem to take neither aspect into account.
Assuming speculation is correct, Khadr would not see release until after having served 16 years in custody -- a sentence scarcely seeming to incorporate much mitigation on account of detention conditions or any other reason.
The reputed deal departs markedly from international law with regard to child soldiers.
Consider the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. In Article 6(3) states parties agree to

take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

Article 7(1) continues in like vein:

States Parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto and in the rehabilitation and social reintegration of persons who are victims of acts contrary thereto, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with the States Parties concerned and the relevant international organizations.

The treaty's view that the children are "victims" and deserving of "rehabilitation and social reintegration," as well as "physical and psychological recovery," is obviously at odds with a prosecution and punishment strategy with regard to these same children.
It is at odds, then, with the reported disposition of Khadr.
Canada became a full state party to the protocol in July 2000; the United States, in December 2002. The countries' statements at ratification said nothing to undercut the force of the articles quoted -- which, as indicated in this report of the International Committee of the Red Cross, jibe with other treaties.
Wonder whether either state will address this discrepancy.

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.)

Which GTMO trial plan best serves U.S. legal tradition? U.S. legal tradition.

U.S. Senator Dianne Feinstein (D-Cal.) (right), Chairman of the Select Committee on Intelligence, has voiced her strong support for trying suspected terrorists in federal courts, before civilian judges sitting in courthouses located in the country's 50 states.
Feinstein's op-ed in yesterday's Los Angeles Times adopted an almost mocking tone, concluding its listing of "the flurry of guilty pleas this year by high-profile terror suspects," who "now face maximum terms of life in federal prison -- where there is no possibility of parole," with this:

So much for the claim that our federal courts aren't up to the job.

The op-ed went on to cite statistics demonstrating the efficiency of these courts, which have concluded cases involving more than 400 terrorism suspects in the last 8 years. That's quite in contrast with the military commissions at Guantánamo:

Since 9/11, only four Guantanamo detainees have been prosecuted in military commissions. Two of them received light sentences and are now free.

In the view of Feinstein, who 3 years ago advocated transferring all detainees stateside and trying them before "a regularly-constituted court," the "lopsided statistics" mean that, almost always, civilian federal courts are to be favored.
This new avowal of support for the decades-old American tradition with regard to terror cases is much needed.
Feinstein's op-ed alluded to an absence of current debate. Curious, given the publication of 2 Washington Post op-eds on the issue in the last 5 days. Both advocated positions to the right of Feinstein:
► On the same day Feinstein published in the Times, the man whom she helped to confirm as Attorney General in 2007, Michael B. Mukasey (left) (prior IntLawGrrls posts), came out hard against another proposal to try all GTMO suspects before Article III judges. (He himself once was a life-tenured judge in accordance with Article III of the U.S. Constitution, serving on the U.S. District Court for the Southern District of New York from 1987 to 2006). Mukasey contended that such trials would: not jibe with the constitutional requisite of a jury trial; violate "'the rule of law'" as codified in the Military Commissions Act of 2006; and impose on prosecutors undesirable evidentiary burdens.
Mukasey's op-ed seemed to accept that the GTMO commissions have had "mixed results," attributing this

to military courts' unfamiliarity with the conventions of conspiracy law, which appears to account, for example, for the finding that Osama bin Laden's driver was not substantially blameworthy even though he bore principal responsibility for bin Laden's physical safety and, like those who serve similiar functions for organized crime bosses, had to have been among his most trusted aides.

Not only does this assessment run counter to evidence at the GTMO trial of that driver, Salim Ahmed Hamdan, but it also fails to note that in view of 4 Justices of the U.S. Supreme Court in Hamdan v. Rumsfeld (2006), conspiracy is not a lawful charge. An equal number of Justices disagreed. Justice Anthony M. Kennedy reserved decision, leaving the question wide open as a matter of U.S. law (far less so as a matter of the international law of war, whose tradition does not recognize the charge).
Mukasey concluded by extolling military commissions proceedings at Guantánamo as "remote, secure, and humane," with security "unparalleled anywhere on the mainland," and an "elaborate press gallery." (My own December 2008 observations on same were rather different; see here and p. 9 here.)
► What provoked Mukasey's ire was not a call to close GTMO, but rather a bid to bestow on that Cuba-based naval base its own federal court.
The title of last Friday's Post op-ed said it all: Try Sept. 11 suspects in the U.S. District Court for Guantanamo. Each of its 2 authors is a former judge: Eugene R. Sullivan (near right), Chief Judge of the U.S. Court of Appeals for the Armed Forces, an Article I court (from 1990 to 1995), and Louis J. Freeh (far right), like Mukasey once an Article III judge in Manhattan and, more recently, Director of the Federal Bureau of Investigation (1993-2001).
The authors of this op-ed applauded the Obama Administration decision to seek a federal district court trial for Khalid Sheikh Mohammed and 4 other Guantánamo detainees charged in connection with the attacks of September 11, 2001. But they contended that holding the trials Stateside "is no longer an option for a host of political and practical reasons," adding that the GTMO commissions "are fatally flawed." Hence, their idea: cast a statutory net to include the base within a jurisdictional map of Manhattan, traditional home of S.D.N.Y., just as farflung sites like Wake Island are deemed part of the District of Hawaii. Or create a new D.GTMO. Sullivan and Freeh foresaw "immense benefit" from this hybrid.
The best choice?
None of the above.
► Mukasey simply seeks More Of The Same. More confusion about critical issues like availability vel non of the death penalty, still, as Attorney General Eric Holder recognized, a question mark in any military commission proceeding against KSM et al. More escalation in cost, more inconvenience to counsel, more keeping of the public from full access to the proceedings. More boycotts like that just announced by Omar Khadr. More litigation of every aspect of every proceeding.
Mukasey's mind-boggling idea for yet another newfangled court, "perhaps presided over by Article III judges but with juries drawn from the military," surely would set off even More.
► Sullivan and Freeh would supplant one practical/political challenge with another that has little to commend it.
Put to one side the oddity of Congress sending appeals from GTMO trials to the federal appellate court in New York even though appeals from GTMO habeas now go to its counterpart in Washington. Put aside too that D.GTMO would be no less costly nor inconvenient than the current system. (The authors envisioned "impaneling an anonymous jury in Manhattan and transporting the jurors to Guantanamo Bay for service.")
Consider only the import of such an innovation.
For the 1st time in U.S. history, an Article III court would have its permanent seat in an armed camp. Public oversight would be subject to Defense Department edict -- as, controversially, it is now. Not just jurors but all participants -- even judges -- would effectively be sequestered. The risk is evident that such circumstances would so tip the balance as to preclude fully fair trials. And given the ostensible justification -- stated fears of trying these particular defendants on American soil -- the changes would undermine the authority and legitimacy of all federal courts in the United States.
► Feinstein's op-ed demonstrated that those courts well deserve the authority and legitimacy they have earned over the course of 2 American centuries. Yet it also falls short, for it allows that some detainees yet might be tried before military commissions. Leaving the GTMO courtroom door even a bit ajar creates a foothold for proposals like those in the other op-eds.
Meanwhile, persons captured as many as 8 years ago remain in an offshore site of U.S. military power, uncharged and untried, the crimes attributed to them unresolved.
That result is not fair. Not fair to detainees, not fair to victims and their loved ones, not fair to the public at large.
The time is well passed to treat the terrorism suspects of today by the same processes that the likes of Ramzi Yousef, Omar Abdel Rahman, and Manuel Noriega have faced.
It is time to return without exception to American legal tradition.

'Nuff said

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

If the administration is hoping to showcase the strength of its military and the president's tough stance on terrorism, this probably wasn't the best way to do it.

-- Daphne Eviatar (below left), Senior Associate at the Law and Security Program of Human Rights First, concluding a commentary provoked by news that the military commission trial of Omar Khadr, alleged child soldier pictured above right at time of capture years ago, may begin -- "or not" -- this week at Guantánamo.

'Nuff said

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

Raised in small-town Oklahoma, I continue to live its values. I am fiercely patriotic, making national security of paramount importance to me. I served in the military for more than a decade, and my friends still deploy in harm’s way. I am also the mother of young children. What mother doesn’t want a safe world for her kids?
Perhaps because of my love of history, I have been more than a little surprised at the vociferous opposition of my fellow conservatives to treating these foreign terrorists as we have treated their counterparts for decades. No one suggested trying the Panamanian dictator Manuel Noriega, the Lockerbie conspirators or the original World Trade Center bombers in military tribunals. In fact, we usually clamor for other countries to extradite terror suspects to the United States for trial.

-- Our colleague Michelle McCluer (below left), Executive Director of the National Institute of Military Justice, in an op-ed entitled "Civilian court best spot for terror trials," published in The Oklahoman newspaper on Monday, the 15th anniversary of the bombing of the federal building in Oklahoma City. (credit for above-right photo of Daniel Patrick Moynihan U.S. Courthouse, Manhattan) Michelle, who's observed GTMO military commissions proceedings along with other NIMJ'ers (including IntLawGrrl Beth Hillman and yours truly), ended her excellent commentary on this succinct note:

Trying detainees in a system that has yielded proven results doesn’t show a lack of understanding of our national security interests; rather, it is a recognition that terrorists are not above the Constitution for which our military members fight. Conservative values demand that terrorists be tried in civilian court, saving taxpayer dollars and providing justice to the victims.

On February 23

On this day in ...
... 1946, General Tomoyuki Yamashita (right) was executed by hanging at Los Baños Prison Camp, 30 miles south of Manila in the Philippines. As posted, the previous December a U.S. military commission had applied a theory of command responsibility to convict Yamashita, the leader of Japanese troops that committed atrocities during an unsuccessful battle against the United States for control of the Philippines. Earlier in February 1946, the U.S. Supreme Court had denied the appeal lodged by Yamashita.

(Prior February 23 posts are here, here, and here)

Military Commissions Act of 2009: New AND Improved?

Congress passed several amendments to the Military Commissions Act last Thursday, as part of the National Defense Authorization Act for Fiscal Year 2010. President Barack Obama signed the legislation yesterday.

An earlier version of this post stated that "There is much of importance — some good, some less good — in this legislation." That post went on to focus on the war crimes provisions of the MCA in light of our prior posts on this topic (see, e.g., here and here) (Others have discussed some of the procedural aspects governing the use of coerced confessions and the applicability of Miranda warnings or the collateral review aspects). Unfortunately, the earlier post was based on a prior version of the legislation that did not ultimately get passed. As a result, there is less good in the new legislation as I detail below.

►First (good), the legislation comes closer to standard international humanitarian law lexicon in addressing itself to “alien unprivileged enemy belligerents” rather than “alien unlawful combatants.” Thus, the basic concept statutory provision has been changed from:

§ 948b. Military commissions generally

(a) Purpose. This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

to:

(a) Purpose. This chapter establishes procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission.

An “alien unprivileged enemy belligerent” is defined at Sec. 948a(7) as:

an individual (other than a privileged belligerent) who—
(A) has engaged in hostilities against the United States or its coalition partners;

(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or

(C) is a member of al Qaeda.

This definition adds to our genealogy of efforts to define who may be detained and prosecuted in the post-9/11 era.

►Second (good), Congress has deleted reference to the status of military commissions as “regularly constituted courts” affording the necessary “judicial guarantees” for the purpose of common Article 3. The original legislation — passed in the wake of Hamdan v. Rumsfeld (2006), which classified the armed conflict with Al Qaeda and the deposed Taliban as a Common-Article-3 non-international armed conflict, at a minimum — boldly asserted that the military commissions satisfied common Article 3, as if the courts would simply accept such a claim:

(f) Status of commissions under common Article 3. A military commission established under this chapter is a regularly constituted court, affording all the necessary "judicial guarantees which are recognized as indispensable by civilized peoples" for purposes of common Article 3 of the Geneva Conventions.

In deleting this language, Congress acknowledged that it is the courts that will decide whether such commissions meet U.S. constitutional and international law obligations and that simply saying something is so does not make it so.

► Third (bad), the legislation still asserts that it does not create any new crimes. The 2006 MCA stated that all of its enumerated crimes pre-existed its enactment and thus could be invoked in a criminal prosecution arising out of pre-2006 events, such as the attacks of 9/11 or even the U.S.S. Cole and Khobar Towers attacks. The original language stated:

§ 950p. Statement of substantive offenses

(a) PURPOSE.—The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.

(b) EFFECT.—Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter.

A draft version of the legislation that did not get passed had more appropriately hedged this a bit when it stated:

§ 950p. Definitions; construction of certain offenses; common circumstances

(d) Offenses Encompassed Under Law of War—To the extent that the provisions of this subchapter codify offenses that have traditionally been triable under the law of war or otherwise triable by military commission, this subchapter does not preclude trial for offenses that occurred before the date of the enactment of the National Defense Authorization Act for Fiscal Year 2010.

This language, which acknowledges that just because Congress says something was already penalized by the law of war does not make it so, unfortunately did not make it into the final legislation. New Section 950p(d) has the same effect as the language in the 2006 MCA.

► Fourth (good), the status of the Geneva Conventions as a source of law has been elevated considerably. Originally, the legislation purported to prevent the treaties' invocation in any setting and for any purpose. This language stated:

(g) Geneva Conventions not establishing source of rights. No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.

The 2009 legislation states at Sec. 948b:

(e) Geneva Conventions Not Establishing Private Right of Action—No alien unprivileged enemy belligerent subject to trial by military commission under this chapter may invoke the Geneva Conventions as a basis for a private right of action.

Thus, while the original provision purported to bar any invocation of the Geneva Conventions, the new language accepts that the Conventions may be applicable offensively in habeas proceedings or defensively in penal proceedings by providing only that they may not give rise to an independent cause of action.

►Fifth (bad), conspiracy (the charge of choice before military commissions) is still listed as a substantive crime. In the rejected draft version of the legislation, conspiracy appeared only as a form of responsibility applicable to all the enumerated offenses along with attempt, solicitation, superior responsibility, accessoryship, etc. This change was not adopted, and so the new MCA still allows for the prosecution of an inchoate crime of conspiracy, notwithstanding that a plurality of the Supreme Court in Hamdan determined that no such crime exists under the law of war. Had the draft language been adopted, conspiracies would have been prosecutable only as a form of responsibility when some substantive war crime that was the object of the conspiracy was committed.

► Sixth (good), the legislation includes at §950p(c) a more explicit war nexus, thus limiting the ability of the government to use military commissions to prosecute crimes that occurred prior to the initiation of an armed conflict involving the U.S. The starting date for any conflict involving the U.S. has never been definitively established, but any such armed conflict likely commenced on September 11th at the earliest and October 7, 2001 (when the U.S. invaded Afghanistan) at the latest. (Although Justice Thomas in Hamdan and others have argued that any armed conflict was initiated earlier, either when Al Qaida "declared war" on the U.S. (Justice Thomas's theory) or attacked our embassies in Kenya & Tanzania). The new war nexus states:

(c) Common Circumstances—An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with armed conflict.

Incidentally, the formulation of the war nexus is identical to that in the ICC's Elements of Crimes.

► Seventh (good, I guess), the crime of spying has been slightly redefined to more clearly reference the law of war (added text in bold):

Any person subject to this chapter who, in violation of the law of war and with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct.

There is much to digest in this massive piece of legislation. The amendments described above are welcome, albeit too modest. Congress would have done better to cut more deeply into the list of purported war crimes to cull out all the novel offenses, including

• inchoate conspiracy,
• material support for terrorism
• and murder of a privileged combatant

rather the leaving the task of determining their cognizability to the commissions (and the courts if they're allowed to get their hands on these cases). Had the crime of conspiracy actually been deleted as was obviously contemplated, many of the existing military commission cases would have had to be re-worked in light of the heavy reliance on that charge.

'Nuff said

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

Although this genre of military commissions may disappear, as such, a national debate looms within government and outside among the press and public: should al-Qaeda adherents and other terrorists accused of war crimes against the United States be tried in our regular civilian courts or military courts-martial or instead be relegated to military commissions or to special 'national security courts' which would operate under different rules as to openness, use of classified information, availability of privileges against self-incrimination and admissibility of evidence secured by coercive methods? Before giving serious consideration to the creation of a separate and less restrictive system of criminal justice for one group of defendants, we would do well to look at how this military commission experiment has played out so far and what if any lessons can be learned from its initial phase.

-- Patricia M. Wald (below left), in her Foreword to the Military Commission Reporter, available here and reprinted in the new edition of Green Bag 2d. Her essay introduces the newest publication service of the National Institute of Military Justice: the 500-plus-page Military Commission Reporter, volume 1 -- 1 M.C. -- a compendium of decisions of rulings issued between October 2006 and June 2009 by the Guantánamo commissions. (image credit) (The 1st issue of volume 2 is available online here.) Wald's foreword draws on her experience as the Judge on the International Criminal Tribunal for the former Yugoslavia and as Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit in evaluating the operations so far of the Guantánamo commissions. A sample nugget:

'... I was struck by the almost hopeless lopsidedness of the process.'

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.

Canada Supreme Court to hear Khadr

News flash: The Canada Supreme Court has just ordered arguments on whether the government must work to seek the release of Omar Khadr, a native citizen of Canada detained at Guantánamo.

The government's appeal of lower courts' orders to do just that will be heard on November 13, at the courthouse in Ottawa.

This will not be the Canada Supreme Court's 1st consideration of Khadr; it issued a ruling on an evidence-disclosure matter in 2008.

As we've posted, Khadr, now 22 years old, is alleged to have been fighting as a child soldier when he was seized in Afghanistan in 2002. He's spent a third of his life in U.S. antiterrorist detention. (My observations on Khadr's December hearing before a military commission at Guantánamo are at pages 9-13 of this report.)

The Toronto Star today wrote that the Conservative-led Canadian government

has long argued Khadr should face trial under the U.S. military justice system, which took custody of him immediately. Khadr was jailed first at Bagram military base and later in Guantanamo Bay, where he was subjected to a 'frequent flyer' program of sleep deprivation to prepare him for aggressive questioning.
That treatment was known to Canadian officials just prior to the third interview conducted by a Canadian foreign affairs official in March 2004.

"Torture Lite"

Much ink has been spilt attempting to identify the distinction between torture stricto sensu, which is punishable under 18 U.S.C. §2340, and other forms of cruel treatment, which may not generate the same opprobrium or have the same legal implications.

In passing the Military Commission Act in 2006, Congress amended a then-10-year-old statute, the War Crimes Act. Congress in effect shrank the spectrum of conduct punishable as a war crime, by defining torture and cruel treatment in terms of a high degree of severity and seriousness, and by limiting the ability to prosecute degrading or humiliating acts, as further discussed here. The infamous "torture memos" similarly focused on whether particular techniques -- such as sensory and sleep deprivations -- generated pain severe enough to constitute torture (the memos concluded that they did not).


Interrogation techniques such as sleep deprivation, stress positions (so-called “self-inflicted pain”), isolation and sensory deprivation, temperature and dietary manipulation, noise bombardment, psychological humiliations (forced nudity, disguised rape (e.g., body cavity searches), prevention of personal hygiene, forced grooming, denial of privacy, and infested surroundings), threats against self or family, witnessing or hearing the abuse of others, attacks on cultural values or religious beliefs, and mock executions, have been described as “torture lite,” because they do not at first consideration bear the hallmarks of brutality associated with ancient forms of torture or of today’s notorious authoritarian regimes. These forms of abuse—which are also called “clean torture”—do not physically mutilate or maim the victim’s body, leave permanent traces, require direct contact between the victim and the individual utilizing the particular technique, or cause pain immediately. And yet, are such techniques truly less severe than the rack and screw of yesteryear? Might the combined effects of such techniques be more disruptive and damaging than a short but brutal beating?

A 2007 study of victims of torture compared the long-term psychological effects of “torture lite” techniques and more physically violent torture. See "Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent?", published in 2007 in the Archives of General Pyschiatry. The authors -- Dr. Metin Başoğlu, Head of the Section of Trauma Studies at the Institute of Psychiatry (IOP), King’s College London, and Director of the Istanbul Centre for Behaviour Research and Therapy in Turkey; Dr. Maria Livanou, IOP Lecturer; and Dr. Cvetana Crnobarić, IOP Researcher and Head of the Department of Pyschiatry, Zvezdara Clinical Centre, University of Belgrade -- conclude:

Ill treatment during captivity, such as psychological manipulations, humiliating treatment, and forced stress positions, does not seem to be substantially different from physical torture in terms of the severity of mental suffering they cause, the underlying mechanism of traumatic stress, and their long-term psychological outcome. * * * These findings suggest that physical pain per se is not the most important determinant of traumatic stress in survivors of torture. * * * These findings [also] imply that various psychological manipulations, ill treatment, and torture during interrogation share the same psychological mechanism in exerting their traumatic impact. All three types of acts are geared toward creating anxiety or fear in the detainee while at the same time removing any form of control from the person to create a state of total helplessness.

(Indeed, declassified CIA-funded research from the 1950s and 1960s found that such techniques could be very effective at breaking prisoners. See Kubark Counterintelligence Interrogation (1963)). According to these researchers, what mattered most in terms of longterm effects were subjective factors, such as the victim’s level of distress, feelings of helplessness, and the perceived degree of uncontrollability of the situation. This hearkens back to the canonical eggshell skull rule of torts, whereby the tortfeasor is liable for all harm to the victim, even if the victim suffered unanticipated damage due to some idiosyncrasy like an eggshell skull.


These research findings are underscored by a letter, submitted to the U.S. Senate by the Center for Victims of Torture (CVT), the Bellevue/NYU Program for Survivors of Torture (PSOT), and Physicians for Human Rights (PHR), which presented findings that the uncertainty inherent to indefinite detention has acute mental health consequences, including severe depression, vegetative symptoms, anxiety, detachment, and incidents of suicidal thoughts -- even if the individual is not ill-treated while in captivity.


All this research suggests that the assessment of whether conduct is "severe" should turn not only on the degree of immediate suffering by victim, but also on whether the conduct may cause long-term physical or psychological effects in light of the victim’s personal circumstances, age and general state of physical and mental health, support network, length of detention, etc.
For a definitive study of the insidious impact of “torture lite” on the prohibition against torture — and the way in which the concept may alter how victims, perpetrators, policy-makers, and the general public interpret the legality, efficacy, and morality of particular interrogation techniques — see "The Myth of “Torture Lite," published this year at 23 Ethics and International Affairs 47-61. In this article the author, Dr. Jessica Wolfendale (below right) (photo credit), writes:

[T]the use of terms like "torture lite" and the nature of such techniques encourage a moral psychology in which the violence and cruelty of torture is denied, the victim's suffering is hidden, minimized and doubted, and the torturer's responsibility is diminished. As such, the use of torture lite techniques is likely to encourage the normalization of torture. * * * The distinction between the methods referred to as torture lite and so-called real torture serves a further aim: it is sometimes used to distinguish not only between types of torture methods but also between the moral character of torturers and their motivations. According to this view, torturers who use such methods as beatings and mutilations are clearly brutal and sadistic, whereas those who use torture lite techniques can be portrayed as professionals motivated by the need to gain intelligence essential for saving lives. * * * By creating a false distinction between torture (understood as violent, brutal, and physically mutilating) and torture lite (with its connotations of minimal harm, minimal force, and minimal violence), those who authorize the use of torture and those who carry it out are able to portray their actions (to themselves and to observers) as something other than real torture, with all the negative connotations of that word. * * * Terms such as "torture lite" and "enhanced interrogation" neutralize the violence of these techniques and downplay the suffering they cause. Such euphemisms can also have a strong impact on how those using these terms (interrogators, public officials, and the general public) perceive the morality of the techniques thus described.

'Nuff said.