Guantánamo and Beyond: A Blog on Executive Detention, National Security and Due Process

by Stephen C. Lessard, Esq.

The Obama administration is considering the release of five Taliban prisoners detained at Guantánamo Bay to improve peace talks with the Afghan insurgency. The Obama Administration has suggested that the transfer could provide a "confidence-building" measure toward peace talks with Taliban leaders as it brings the U.S.-led war in Afghanistan to a close. It has been reported that several Taliban negotiators have begun meeting with U.S. officials in Qatar to discuss preliminary trust-building measures, including a possible prisoner transfer. The Afghan Taliban has confirmed that such pre-peace talk confidence building measures are in the process of being developed and implementation of such measures could facilitate an understanding between the United States and the Taliban. U.S. officials would not deny that meetings had taken place, and the discussions seemed to have at least the tacit approval of Pakistan, which has thwarted previous efforts by the Taliban to engage in talks.

Former Taliban officials have described fairly advanced discussions in Qatar about the transfer of prisoners. One former official said that five Taliban prisoners were to be transferred in two phases, two or three in one group and then the remainder. Last week, James Clapper, Director of National Intelligence, and Matthew Olsen, Director of the National Counterterrorism Center, told the Senate Intelligence Committee that the five being considered for release were among those assessed in 2009 to be too dangerous to release and too difficult to be tried. It would be the first time detainees from the "too dangerous to transfer" list have been relocated outside of U.S. control. But Clapper said that assessment, recently revised, was based on returning them to Afghanistan.

The five Guantánamo detainees are believed to be Khair Ulla Said Wali Khairkhwa, former Afghan Minister of Interior; Mullah Mohammad Fazl, former Taliban Deputy Minister of Defense; Mullah Norullah Nori, a former senior Taliban commander; Abdul Haq Wasiq, former Deputy Director of Taliban intelligence; and Mohammad Nabi Omari, former Taliban chief of communications. Although Administration officials say none of those being considered for release has been involved in killing Americans, human rights organizations have called for Fazl and Nori to be prosecuted for war crimes for presiding over the mass killing of Shiite Muslims in Afghanistan in 2000 and 2001 as the Taliban sought to consolidate its control over the country.

Marc Grossman, the Obama administration's special representative for Afghanistan and Pakistan, played down talk of detainee releases, noting that the United States had not yet made any decision on the issue. He said the Obama administration would meet the requirements of U.S. law and also consult with Congress. Under the law, the defense secretary must certify to Congress that the transfer of any Guantánamo prisoner to a foreign country would meet certain requirements, including that the country maintains control over its prisons and will not allow a transferred detainee to become a future threat to the United States. If any detainees were released, they would likely be transferred to Qatar and held there.

Republican and Democratic lawmakers have voiced serious concerns over the possible move, which would reflect a significant strategy shift in the U.S. war in Afghanistan. Republican lawmakers are particularly voicing growing alarm over a possible deal with the Taliban. The chairman of the House Intelligence Committee, Mike Rogers, said Thursday that the United States was "crossing a dangerous line" by discussing the possibility of releasing the prisoners.

In a letter to President Obama, Rep. Duncan Hunter, R-California, warned that the release would "send the wrong message to the Taliban," writing that "Releasing prisoners strictly for the purpose of accelerating negotiations undermines the U.S. mission in Afghanistan and deliberately ignores the threat of a Taliban resurgence." Sen. John McCain, R-Arizona, called the potential release "really, really bizarre" and a "very, very bad idea." McCain also expressed doubt as to whether Qatar would ensure that the Taliban detainees were secured.

Administration officials maintain that such transfers, though controversial, are not new when trying to end combat. Clapper told the Senate Intelligence Committee that in almost every case where the United States has been involved in hostilities, at some point in time, there were similar negotiations. He also noted that part of such a decision would be the actual determination of where the detainees might go and the conditions in which they would be controlled or placed under surveillance.

For additional information, see:

South Asian News Agency - Obama administration considers release of five Taliban leaders (Feb. 4, 2012)

The New York Times - Mark Landler, Obama Got Message Supporting Talks With Taliban, but Not From Its Leader (Feb. 3, 2012)

CNN - Adam Levine & Tim Lister, The Taliban who may leave Gitmo (Feb. 3, 2012)

The New York Times - Alissa J. Rubin, Former Taliban Officials Say U.S. Talks Started (Jan. 28, 2012)

International News Network - CBMs between Taliban-US in developing process: Taliban

by Hanna F. Madbak, Esq.

Ten years have passed since 9/11 and the opening of Guantánamo, but the effects on our legal system have not faded. Weighed by the trauma from that attack and continuously nudged by political winds and perceived international threats, our society has been more than ever challenged to find a morally defensible balance between liberty and security. Both the Executive and Legislative branches of our government appear to be following a trend favoring the latter over the former.

While President Obama made a campaign promise to close Guantánamo within one year of becoming president, that deadline is more than two years old and 171 prisoners remain detained in Guantánamo, including 89 detainees that have already been cleared for release (and an untold amount remain detained in similar prisons under U.S. custody throughout the world, including at Bagram Air Base in Afghanistan). Recently, the United Nations criticized the White House for failing to close Guantánamo, with human rights chief Navi Pillay voicing deep disappointment that the detention center remains open, and calling for the government to present any credible evidence it has against the detainees and charge them. The failure to close Guantánamo, however, is not exclusively attributable to the President. Both Republicans and Democrats in Congress fiercely opposed and refused to fund the President's plan to close Guantánamo and relocate the detainees to high-security prisons on American Soil.

The President and Congress have had many disagreements over various budgetary issues over the last few years. But they found common ground in passing and signing into law the National Defense Authorization Act (NDAA), giving the Executive branch unprecedented powers to indefinitely detain suspected terrorists, including those that are American citizens. In the NDAA's signing statement, President Obama made yet another promise, that his "Administration will not authorize the indefinite military detention without trial of American citizens." This promise, even if upheld by this and future presidents, does not change the fact that the Executive branch now has the unprecedented authority to void the writ of habeas corpus and deny Americans accused of being al-Qaida "affiliates" their Fifth and Sixth Amendment rights to due process and a speedy and fair trial. "It is a sad moment when a president who has prided himself on his knowledge of and belief in constitutional principles succumbs to the politics of the moment to sign a bill that poses so great a threat to basic constitutional rights," said Kenneth Roth, executive director of Human Rights Watch.

Opinions are divided on how to be secure in a world that is increasingly perceived as unsecure. On one hand, John Yoo, the controversial architect of some of the Bush-era policies after 9/11, claims that the policy of "coercive interrogation" (a.k.a. torture) produced intelligence that led to the capture of Osama Bin Laden. On the other hand, the ACLU's executive director, Anthony Romero, and senior counsel of the bipartisan Constitution Project, Sharon Bradford Franklin, voice concerns about the erosion of checks and balances in our system, and an increasing assertion of executive power without oversight. Speaking at a September 1, 2011 American Constitution Society conference, Gregory Nojeim, senior counsel at the Center for Democracy & Technology, highlighted the increased use of "national security letters" by law enforcement to obtain third-party records concerning individuals without warrants.

This week, thousands of protesters marched on Capitol Hill in Washington D.C. and throughout the country wearing orange prison jumpsuits and black hoods protesting against indefinite detention and torture. But public opinion does not appear to be sufficient to readjust the balance between liberty and security chosen by the Executive and Legislative branches of our government. It remains to be seen whether the Supreme Court will intervene. But it is undeniable that the authority granted to the President through the NDAA directly contradicts the principles upheld by the Supreme Court in Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2648 (2004): "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens . . . It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

by John P. Devaney, Esq.

Those following the Guantánamo Bay detainee cases who think the Supreme Court should again weigh in on Guantánamo habeas jurisprudence may soon get what they want. To date, of the six cases in which habeas relief has been granted by the D.C. District Court, none have been affirmed by the D.C. Circuit Court; all decisions have been either vacated or reversed. Some legal scholars have theorized that the D.C. Circuit Court, loathe to bear the burden of releasing a potential terrorist, has gone beyond the authority granted to it by the Supreme Court by either raising the legal burdens on a Guantánamo Bay habeas seeker to an impossible level or by simply substituting its own judgment for that of the District Court. Whether or not this is true is difficult to determine, as the Supreme Court has continually declined to grant cert in any case on this issue, most notably denying cert in the cases of Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1001 (2011), and Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011). However, some scholars believe this may change with the most recent decision of the D.C Circuit reversing a habeas grant of the D.C. District Court: Latif v. Obama, No. 10-5319 (D.C. Cir. Oct. 14, 2011). For the reasons discussed below, they may just be right.

The legality involving detention authority at Guantánamo Bay has a complex history. While the D.C. District Court in Al-Bihani sought to read the detention authority granted to the government by the September 18, 2001 Authorization for Use of Military Force (AUMF) in context with the laws of war, the D.C. Circuit chose instead to read it in context with the Military Commissions Act of 2006 (MCA), which unsurprisingly significantly reduced the chances that a detainee would prevail in a habeas petition. This decision is somewhat puzzling given that Congress explicitly rejected this interpretation in its Conference Report accompanying the 2009 MCA, stating that the act "is not intended to address the scope of the authority of the United States to detain individuals in accordance with the laws of war or for any other purpose."

Despite this early setback in the area of the scope of detention authority, subsequent early decisions on the issues of burdens of proof, admissibility, and standard of review appeared fairly uncontested by litigants on both sides. Specifically, it was affirmed that, among other things 1) preponderance is the governing standard of proof; 2) hearsay is admissible; and 3) the standard of review for the D.C. Circuit Court was clear error.

However, it soon became clear that the D.C. Circuit was happy with few or none of these principles, particularly the preponderance standard. First, in Al-Adahi, the D.C. Circuit identified other contexts where detention is based on proof less than preponderance, lamenting that the government had maintained that preponderance was the "appropriate" standard leaving the court with "no adversary presentation on an important question affecting many pending cases in this court and in the district court." Later, in far more troubling language, in Esmail v. Obama, 639 F.3d 1075 (D.C. Cir. 2011) (per curiam), Judge Silberman goes so far as to suggest that the court does not honor the preponderance standard, opining: "I doubt any of my colleagues will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or an active supporter." He goes on to challenge the Supreme Court to take ownership of the preponderance standard, and have the consequences be on their heads: "Unless, of course, the Supreme Court were to adopt the preponderance of the evidence standard (which it is unlikely to do--taking a case might obligate it to assume direct responsibility for the consequences of Boumediene v. Bush)."

Although facially honoring the preponderance standard in their decisions, some have posited that the D.C. Circuit has gotten around it and created the results it desires by manipulating the sufficiency of the evidence analysis. In Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010), Judge Tatel seems to strike a blow on the issue of sufficiency of the evidence by creating what has become known as the mosaic theory, explaining that "merely because a particular piece of evidence is insufficient, standing alone, to prove a particular point does not mean that the evidence 'may be tossed aside and the next [piece of evidence] may be evaluated as if the first did not exist.' The evidence must be considered in its entirety in determining whether the government has satisfied its burden of proof." While on its face a perfectly rationale proposition, its application has been more suspect; used on subsequent cases to reverse habeas grants.

On its surface, Latif continues this troubling pattern, becoming the sixth case in a line of cases where the D.C. Circuit has refused to affirm a single D.C. District Court holding that granted habeas relief on the merits. However, it gives some hope that the gauntlet that Judge Silberman threw down in Esmail may be picked up by the Supreme Court. Unlike its predecessors, Latif contains a blistering 45 page dissent, interestingly, written by Judge Tatel (of the mosaic theory). The major subject of Judge Tatel's dissent was the ruling of the majority that government documents now enjoy a presumption of regularity grounded in "defer[ence] to Executive branch expertise." Judge Tatel immediately attacks this newest adjustment to sufficiency of the evidence (perhaps believing that his mosaic theory represented the absolute maximum tolerance for the burden to be shouldered by the detainee). He contrasts the typical situations where government documents are afforded the presumption of regularity, primarily "actions taken or documents produced within a process that is generally reliable because it is, for example, transparent, accessible, and often familiar," with the reports at issue in Guantánamo Bay cases, which are created in the "fog of war by a clandestine method that we know almost nothing about," and that even the majority has acknowledged are "prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors and heavily redacted for national security purposes." For these reasons he concludes that, given the deference already shown to government, "this court's departure from our practice [is] deeply misguided," comes "perilously close to suggesting that whatever the government says must be treated as true," and almost certainly deprives the detainee of the "meaningful opportunity" for review that a habeas petition is supposed to guarantee.

Judge Tatel even goes on to criticize the majority for ignoring the "clear error" standard of review and taking up factual analysis of the case on their own (ostensibly to deny the District Court the opportunity to rule for the detainee on remand). He makes the obvious point that the judges of the District Court are fact finders who are "seasoned observ[ers]" in the area of "reliability" in Guantánamo Bay hearsay evidence cases. Further, since the only contested issue in the case is the reliability of the reports, Judge Tatel finds it puzzling and legally unjustified that the case not be remanded, and that "[i]nstead of remanding to give Latif an opportunity to rebut the presumption of regularity, this appellate court engages in an essentially de novo review of the factual record, providing it's own interpretations, its own narratives, even its own arguments." The only question that remains is whether the majority's thin justification based on the "unusual posture" of the case (read terrorism) will finally result in the Supreme Court stepping in. Given that President Obama has stopped sending detainees to Guantánamo, it may be their last chance.

For this blog's sources and more information, see:

The D.C. Circuit after Boumediene, Stephen I. Vladeck, Seton Hall Law Review, Vol. 42, 2011

Continue reading "Will the Gauntlet Thrown Down by the D.C. Circuit in Esmail be Picked up by the Supreme Court in Wake of the Latif Dissent?" »

by Patrick T. Campbell, Esq.

Navy rear Admiral David Woods, Guantánamo Bay's new commander, has proposed new rules that might infringe on Guantánamo detainees' right to confidential communications with their defense counsel.

Woods, in a 27-page draft order, is proposing that a team of Department of Defense and law enforcement officials, the "privilege team," be allowed to conduct a security review of all communications between the five inmates accused of organizing the 9/11 attacks and their lawyers. The order, not yet publicly available, sets guidelines for when members of the "privilege team" can disclose information from legal mail to other government officials, such as when they encounter what they suspect to be "unauthorized information."

The proposed new rules have sparked a backlash from the Pentagon-appointed counsel representing the five prisoners charged in the 9/11 attacks, who say the proposed security review is unnecessary because defense counsel all have security clearances and know not to release classified information. Defense counsel claim that the new rules violate the attorney-client privilege and legal ethics, and impinge on the detainees' constitutional right to counsel. They also argue that it would be impossible for Woods to ensure information from these letters is not shared with the prosecution, because the "privilege team" is not under his command. Defense counsel received the draft order from Woods on December 22, 2011, and was given 48 hours to sign an agreement to abide by the rules. Instead, defense counsel submitted a written response stating that requiring them to abide by the rules in order to see their detainee clients is illegal.

Marine Corps. Colonel Jeffrey Colwell, chief defense counsel of the military tribunals, said he shares in defense counsel concerns, and also objects to a provision of the new rules which would limit correspondence to detainees to letters from their lawyers, and bar any supporting documents like legal motions and articles.

According to Navy Commander Tamsen Reese, a detention center spokeswoman, in issuing the order, Woods was trying to strike a balance between security concerns and proper procedures for legal meetings between detainees and their counsel. Reese further stated that, despite defense counsel's criticism, the draft order does not impede defense counsel from personally visiting or communicating with their detainee clients.

Detainee lawyers have previously raised concerns about practices at Guantánamo infringing on the attorney-client privilege in a letter directed to the Deputy Secretary of Defense for Detainee Affairs, alleging that those working with the Joint Task Force Guantanamo seize, open, read, and interpret attorney-client privileged communications, which the lawyers claim is unlawful. In a letter to Leon Panetta, U.S. Secretary of Defense, the American Bar Association urged the reversal of what appears to be a new Guantánamo policy that has resulted in attorney-client communications being intercepted, reviewed by the government, and in some cases shared with the prosecution team. According to ABA President Wm. T. (Bill) Robinson III: "The American justice system depends on the essential role of lawyers in counseling their clients. This includes providing zealous and effective counsel, even to those accused of heinous crimes against this nation and its people."

The five 9/11 prisoners, including Khalid Sheikh Mohammed, the self-proclaimed mastermind of the attacks, are expected to be arraigned at Guantánamo in 2012. They face charges that include murder and could be sentenced to death if convicted. The trial has been delayed for years by legal challenges and a dispute between members of Congress and the White House over whether the trial should be held in civilian court on mainland U.S., or by military commission at Guantánamo. This issue concerning the confidentiality of communications between defense counsel and detainees could cause further delay.

Finally, it is an open question as to whether the new rules would also apply to the rest of the 171 prisoners still detained at Guantánamo, including the 30-60 detainees the government has stated might be tried before military tribunal. However, presiding Judge Pohl in the military commission of Abd al-Rahim al Nashiri, alleged mastermind of the USS Cole bombing, concluded that the government screening procedures employed during baseline review in that proceeding infringed on the attorney-client privilege. As no military judge has yet to be assigned to the trial of the 9/11 detainees, these new rules cannot yet be similarly challenged.

For this blog's sources and more information, see:

The New American - Joe Wolverton, II, New Gitmo Rule May Violate 6th Amendment and Atty.-Client Privilege (Dec, 31, 2011)

Jurist - Jamie Davis, Guantánamo rule change to require review of attorney letters in 9/11 case (Dec. 28, 2011)

Huffington Post - Ben Fox and Adam Goldman, Guantánamo Bay Prison: Proposed Rule Change About Attorney-Client Privilege Sparks Backlash (Dec. 27, 2011)

Associated Press - Ben Fox, Guantánamo Leader Signs Order Opposed by Lawyers

by Benjamin Leftin, Esq.

Although opinions may reasonably differ as to what legal procedures should be in place to adjudicate the alleged offenses of "enemy combatants," recent statements by retired colonel Morris Davis - the United States' chief prosecutor at Guantánamo Bay from September 2005 through October 2007 - highlight the importance of having at least some form of accountability outside of the executive branch with regard to the treatment of prisoners at the military base.

According to Colonel Davis, Guantánamo Bay is a "law-free zone": "No court has jurisdiction over Guantánamo. We have turned our backs on the law and created what we believed was a place outside the law's reach." Colonel Davis' main concern, of course, is the use of torture. Without a system of checks and balances and judicial review there is no way to ensure that individuals in our custody will not be abused.

Specialist Brandon Neely, who spent six months at Guantánamo Bay in 2002 as a military police officer, corroborated Colonel Davis' concerns. Specialist Neely reports that during his six months at Guantánamo Bay, he witnessed multiple instances of verbal, psychological and physical abuse carried out by every member of the military, even including physical abuse by medical personnel. "They had decided from the start that it was different from an enemy prison of war camp . . . We were told in the first couple of minutes at Gitmo that this was a detention facility and the Geneva Conventions would not be in effect . . . There was no army manual on this, no standard operation procedure."

According to Specialist Neely, much of the abuse occurred because he and his fellow soldiers were informed - wrongly - that those detained at Guantánamo Bay were "the worst of the worst" and that "they were all guilty." Specialist Neely learned, however, that this was far from true, and even befriended two detainees who were later released from custody and sued the United States; suits that were ultimately dismissed because the alleged abuses occurred before the U.S. Supreme Court ruled that the Constitution applies to Guantánamo.

"[T]here is a better way" to prosecute enemy combatants and protect the country says Specialist Neely, who was honorably discharged after five years of service. "[Y]ou can't just throw the principles and the values of the country and the law of the land out the window because it benefits you." Colonel Davis would agree: "There is a point when enough is enough, and you have to look at yourself in the mirror. Torture has no place in American courts."

For this blog's sources and more information, see:

Mail Online - Meghan Keneally, Guantánamo is a "law-free zone" claims former chief prosecutor at camp in extraordinary attack (Oct. 30, 2011)

CNN.com - Jenifer Fenton, Ex- Guantánamo guard tells of violence against detainees (Oct. 28, 2011)

by Stephen C. Lessard, Esq.

On October 3, Senate Majority Leader Harry Reid (D-NV) vowed to block a vote on this year's National Defense Authorization Act (the "NDAA") because of provisions in the bill that the Obama administration says will tie its hands when dealing with terrorism suspects. Senator Reid explained his move on the Senate floor, noting that the authorization bill contains provisions relating to the detention of terrorism suspects that in the words of National Security Adviser John Brennan would be "disastrous" and would "tie the hands of our counterterrorism professionals by eliminating tools and authorities that have been absolutely essential to their success." The next day, Senator Reid sent a letter to the Armed Services Chairman Carl Levin (D-MI) and Ranking Member John McCain (R-AZ) informing them that he didn't intend to bring the NDAA to the floor until it was stripped of the detention provisions. Reid specifically objected to the authorization of indefinite detention, the requirement for mandatory military custody of terrorism suspects, and the stringent restrictions on transfer of detainees.

Support for Senator Reid's position has been voiced by military and legislative sources. On October 7, a nonpartisan group of 23 retired generals and admirals sent a letter to Senator Reid warning that the defense bill would "authorize the indefinite detention without trial of terrorism suspects, including American citizens captured on U.S. soil--a policy that is contrary to the very American values needed to win this fight." Pentagon General Counsel Jeh Johnson made statements on October 18 in opposition to troubling provisions in the NDAA and urged Senator Reid to stand firm in refusing to bring the bill to the floor unless the controversial measures are removed.

In a letter sent to Senator Reid on October 21, several Democratic members of the Judiciary Committee and the Select Committee on Intelligence asked Senator Reid to work toward ensuring that the annual defense authorization bill does not contain provisions that would outlaw trials for terrorist suspects in federal courts, and make permanent strict requirements for transferring prisoners out of Guantánamo Bay. In addition to arguing that the provisions could interfere with counterterrorist operations by federal law enforcement officials, the senators also claimed that the provisions could allow for the indefinite detention of American citizens without charge or trial.

Human Rights Watch, along with the American Civil Liberties Union and Human Rights First, recently urged Congress to reject the provisions in the defense spending bill that would permit long-term indefinite detention without trial of terrorism suspects. The groups released a video on October 24 showing that such legislation would repeat broadly recognized mistakes of the past, making reference to the detention of American citizens with Japanese heritage during World War II and the Emergency Detention Act passed in 1950, during the rise of McCarthyism, authorizing detention of people who had not actually committed any act but who would "probably" engage in "acts of espionage or of sabotage."

Brigadier General David R. Irvine, who taught prisoner of war interrogation and military law at the Sixth U.S. Army Intelligence School, views the proposed legislation as the militarization of the U.S. justice system. He believes the push to militarize the judicial system may spring from "a distrust of presumably squishy judges or an assumption that the nation must wage a military war on terror." He also fears that passage of such legislation will "bolster the claims of tyrants that their tools--military tribunals and imprisonment without criminal charges--are, indeed, a society's only sure protection."

However, New Hampshire Republican freshman Senator Kelly Ayotte was not deterred by Senator Reid's action blocking her amendment to the NDAA that would have barred the government from spending money to try enemy combatants. She is now pursuing an amendment to the bill that would make federal trials more difficult by creating a presumption that the military, not civilian authorities, should hold suspected al Qaeda members. Senator Ayotte said the measure would help move the administration away from civilian trials and allow more suspects to be tried in front of military commissions. Senator Ayotte believes the Obama administration has mistakenly "tried to criminalize the war," and that "[t]he priority has to be in these types of cases gathering intelligence" and civilian courts are not "set up for intelligence collection."

The issue has also exposed divisions within the Democratic Party. The Senate Armed Services Committee approved the defense bill in June and the panel, led by Democratic Senator Carl Levin, approved the provision on military custody on a 25-1 vote. Levin has argued that the provision included a national security waiver that the administration could exercise to bypass the requirement.

For this blog's sources and more information, see:

Roll Call - David R. Irvine, Reid Must Block Militarization of Justice System (Oct. 27, 2011)

The Washington Post - Top Dems oppose policy on detaining terror suspects in defense bill, exposes Senate divisions (Oct. 24, 2011)

Main Justice - Samuel Knight, Dems Concerned About Defense Authorization Terrorism Provisions (Oct. 24, 2011)

Trust.org - US: Rights Groups Urge Rejection of Indefinite Detention Legislation (Oct. 24, 2011)

The Wall Street Journal - Julian E. Barnes, Sen. Ayotte Keeps Fighting for Military Trials for Terror Suspects (Oct. 21, 2011)

FtLeavenworthLamp.com - Donna Miles, General counsel calls for flexibility in detainee cases (Oct. 20, 2011)

Human Rights First - Johnson Remarks on Defense Spending Bill Praised, Reid Urged to Stand Firm on Bill (Oct. 18, 2011)

Human Rights First - 23 Retired Military Leaders Praise Reid Leadership on Defense Bill (Oct. 11, 2011)

Think Progress -- Ali Gharib, Reid Blocks Defense Authorization: Terror Provisions Like Indefinite Detention 'Are Just Wrong' (Oct. 5, 2011)

The New York Lawyer Chapter of the American Constitution Society and the NYC Bar Association, Federal Legislation Committee are sponsoring the panel Second Annual Supreme Court Wrap-Up, at the NYC Bar Association on June 28, 2011 at 6:30pm. The panel, which includes New York's leading Supreme Court experts, will discuss this Term's biggest cases, the impact of Justice Kagan's arrival on the Court, and the major issues facing the Court next Term.

To register for the panel, which is free, you can visit http://www.acslaw.org/events/2011-06-28/second-annual-supreme-court-wrap-up.

by Stephen C. Lessard, Esq.

Two remaining Guantánamo Bay detainee cases provide an opportunity for the Supreme Court to review the way lower courts have implemented its constitutional declarations in its 2008 decision, Boumediene v. Bush, on the legal rights of detainees at Guantánamo and the role of the judiciary as a check on Executive power. One of those cases, Al-Bihani v. Obama, was filed May 16, 2011 and seeks to test the scope of the Executive's detention power. Specifically, Al-Bihani argues that the international laws of armed conflict apply to determine the scope of who may be detained under the 2001 Authorization for Use of Military Force ("AUMF") enacted by Congress.

Both President George W. Bush and President Barack Obama have claimed authority under the AUMF to indefinitely detain persons illegally carrying out attacks on the United States and that such persons are not protected as prisoners of war under the Geneva Conventions. The AUMF provides that the President is authorized to use all necessary and appropriate force against those persons or organizations he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such persons or organizations.

Al-Bihani's petition asks the Supreme Court to reverse the D.C. Circuit Court of Appeals and rule that the President's detention power applies only to individuals who actually engaged in armed action against the United States and not to an individual simply because he had some ties to a terrorist organization. The D.C. Circuit, in ruling that simply being a part of a terrorist network is enough to justify detention, stated that relying on the international laws of war to determine the scope of the President's detention power is "inapposite and inadvisable." That ruling is from a case involving al-Bihani's brother, who was part of a fighting force and carried a weapon.

Al-Bihani claims he was a civilian who was not part of a hostile fighting force; he was merely a cook for the Taliban who never carried a weapon and was captured in Iran. Al-Bihani argues that under the international laws of armed conflict, he is a civilian because he has not given up the protections of that status by direct and active participation in hostilities. Al-Bihani cites to the 1949 Second Additional Protocol to the Geneva Conventions, which provides that civilians shall not be the object of attack unless and for such time as they take a direct part in hostilities. Al-Bihani acknowledges that senior terrorist leaders, by virtue of their leadership positions, should always be considered to be taking a direct part in hostilities or the planning of combat operations and, therefore, are always combatants.

Al-Bihani's petition argues that the D.C. Circuit's standard allows for the indefinite detention of an individual based solely on his being part of' a terrorist group, without regard to whether the individual in question ever personally engaged in hostilities against the United States. Al-Bihani contends that the AUMF does not support the presidential claim of authority for indefinite detention but, rather, the President can only legitimately justify detention by reference to the international laws of armed conflict.

However, Al-Bihani makes no mention of U.S. law that makes it a crime merely to act in support of terrorist organizations. He also fails to distinguish the traditional notion of an international armed conflict (hostilities between two or more countries) and what has come to be viewed by some commentators as a non-international armed conflict (hostilities between a country and a non-country). In the case of a non-international armed conflict, some argue that the international laws of armed conflict are not applicable.

Al-Bihani probably will not be ready until the Supreme Court's next term. The U.S. Justice Department has been asked to respond to the petition by June 10.

For this blog's sources and more information, see:

UPI.com - Michael Kirkland, I'm Not a Terrorist; I'm Just the Piano Player (May 29, 2011)

SCOTUSblog - Lyle Denniston, Down to the Last Detainees (May 23, 2011)

SCOTUSblog - Lyle Denniston, New Try on Guantánamo Detention (May 18, 2011)

Lawfare - Larkin Reynolds, Cert. Petition Filed in Toffiq Al Bihani (May 16, 2011)

Lawfare - Robert Chesney, Do the Laws of War Speak Clearly Enough on "Continuous Combat Function" to Justify a Narrow Reading of the AUMF? (May 16, 2011)

by Patrick T. Campbell, Esq.

On Monday, May 23, 2011, the Supreme Court put to rest any chance the Court would hear a Guantánamo detainee related case this Term when it denied certiorari in Khadr v. Obama (Docket No. 10-751). Khadr fell two votes shy of the requisite number for the Supreme Court to grant certiorari. Justices Breyer and Sotomayor dissented, but did not issue separate opinions. Justice Elena Kagan recused herself because she had worked on the case in her previous post as U.S. Solicitor General. Surprisingly, Ruth Bader Ginsburg, who has seemed skeptical about a key facet of lower court review, did not note a dissent of the certiorari denial.

The issues the Supreme Court declined to review in Khadr were whether (1) the Supreme Court's decision in Munaf v. Geren requires, and Boumediene v. Bush permits, denial of a detainee's chance to challenge the Government's claim that he will not be tortured if sent to a specific country over his objection, and a chance to seek a court order against that transfer, and (2) a federal law that limits court review of claims under an international treaty against torture apply only in deportation proceedings and not to Guantánamo habeas cases and, if it does, whether it violates the Constitution's Equal Protection and Suspension Clauses. Khadr also sought reversal of the D.C. Circuit's Order vacating a 30-day, pre-transfer notice requirement that Judge Hogan of the D.C. District Court imposed on the Government in 2008.

The Supreme Court has not decided any cases related to Guantánamo detainees since its June 2008 decision in Boumediene, and has now rejected review in eight cases this Term alone. Critics maintain that the D.C. Circuit's rulings have continued to severely limit the holding in Boumediene, that the Constitution guarantees Guantánamo detainees the right to a "meaningful opportunity" to challenge their indefinite detention. In connection with the D.C. Circuit's rulings in favor of the Government, the D.C. Circuit, without any substantive Supreme Court decision since Boumediene, is developing burdens of proof and procedural and remedial rules applicable to detainee habeas petitions that frustrate and narrow the fundamental Constitutional rights Boumediene afforded detainees. Khadr is just one example; for others, see our prior blog authored by Hanna F. Madbak, U.S. Supreme Court Denies Guantánamo Detainee Cert. Petitions Concerning Habeas Review (May 7, 2011).

The Guantánamo bar must now turn their attention to the next two certiorari petitions to make their way to the Supreme Court. On May 11, 2011, a petition for a writ of certiorari was filed in Al-Bihani v. Obama (Docket No. 10-1383). The question before the Court in Al-Bihani is whether the President's detention power applies only to individuals who actually engaged in hostilities against the U.S., and thus does not apply to individuals who just had some ties to an organization, some members of which did engage in terrorism. The D.C. Circuit previously ruled that simply being part of a terrorist organization is enough to justify detention. The Court will likely not decide this certiorari petition until next Term.

Another case, Abdah v. Obama (D.C. Circuit Docket No. 05-5224), is nearing completion in the lower courts and will likely be the next case, after Al-Bihani, to end up before the Supreme Court on certiorari review. Abdah raises the same question the Supreme Court just declined to review in Khadr, that is, whether a detainee can challenge his transfer to a third country for fear of being tortured in such third country.

For this blog's sources and more information, see:

SCOTUSblog - Lyle Denniston, Down to the Last on Detainees (May 23, 2011)

SCOTUSblog - Lyle Denniston, New Try on Guantánamo Detention (May 18, 2011)

by Hanna F. Madbak, Esq.

Despite the several Guantánamo detainee petitions for certiorari before the U.S. Supreme Court this term, four of which seeking important guidance on detainee habeas review, the Supreme Court has not agreed to hear any cases.

In 2008, the Supreme Court held in the landmark case Boumediene v. Bush that the Constitution guarantees Guantánamo detainees the right to a "meaningful opportunity" to challenge their indefinite detention. Since that time, the Court has not elaborated on this general guidance, leaving the lower courts with much discretion on the ruling's application. It is not surprising that since Boumediene many detainee cases have petitioned for writs of certiorari, asking the Supreme Court to clarify what it means for a detainee to have a "meaningful opportunity" to challenge his indefinite detention. What is surprising and concerning, however, is that the Supreme Court has not granted certiorari in any of these detainee cases, even though they appear to raise legitimate procedural issues that directly interfere with the Supreme Court's ruling in Boumediene. This term, the Supreme Court has rejected four petitions for certiorari where the Court could have provided important and much needed guidance for the lower courts' proper implementation of Boumediene
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These cases include Ameziane v. Obama (10-447), a case that proceeded entirely with sealed documents, where the issue was what information may be withheld from detainees in habeas cases, and Al-Adahi v. Obama (10-487), a case that sought to challenge a D.C. Circuit ruling that ordered judges to use a mathematical probability theory that detainees argue gives heavier weight to the government's evidence in support of detention. In these cases, the questions that the Supreme Court has refused to answer is whether a detainee truly has a "meaningful opportunity" to challenge his detention if he cannot unseal any of the evidence against him, or if a mathematical evaluation of the evidence allegedly lowers the government's burden of proof even below the low preponderance of the evidence standard.

In Al-Adahi, the D.C. District Court concluded that the government had failed to prove by a preponderance of evidence its factual allegation that Al-Adahi was a member of al-Qaeda. The D.C. Circuit reversed and instructed the trial court to deny Al-Adahi's habeas petition. The Circuit Court reasoned that the District Court's error stemmed from its "failure to appreciate conditional probability analysis." The D.C. Circuit supported its holding with a single 1993 precedent relating to probable cause determination (United States v. Prandy-Binett, 5 F.3d 558 (D.C. Cir. 1993)), and a popular paperback book from 1988, Innumeracy: Mathematical Illiteracy and its Consequences, by J. A. Paulos, a Professor of Mathematics. It should be noted that the dissenting judge in Prandy-Binett, Edwards, J., described "Conditional Probability" as "nothing more than gobbledy-gook."

While the D.C. Circuit justified its ruling on conditional probability, it failed to mathematically define it or explain how it reached its conclusion using the statistical principles behind a conditional probability analysis (click here for a mathematical definition of conditional probability). Instead, the D.C. Circuit merely explained that "some events are independent (coin flips, for example), and other events are dependent: 'the occurrence of one of them makes the occurrence of the other more or less likely .... '" In effect, the D.C. Circuit compounded the effect of multiple facts to reach its conclusion that Al-Adahi took orders from al-Qaeda.

In granting Al-Adahi's habeas petition, the District Court considered the totality of the evidence presented (including a live video testimony of Al-Adahi) and concluded that the government's "mosaic theory is only as persuasive as the tiles which compose it and the glue which binds them together." The District Court added that "existing evidence must be weighed and evaluated as to its strength, its reliability, and the degree to which it is corroborated."

The D.C. Circuit is entitled to review the facts de novo and reach its own conclusion (even if it did not benefit from the vantage point of the lower court). While the D.C. Circuit's conclusion may have been justified based on the preponderance of the evidence standard, its mentioning of conditional probability gives the erroneous impression that its holding was supported by science, but in fact it was not.

The Supreme Court also refused to hear Al Odah v. Obama (No. 10-439) and Awad v. Obama (No. 10-736). Both Al Odah and Awad asked the Supreme Court to decide whether it is constitutionally permissible for habeas courts to permit hearsay evidence and employ a preponderance of the evidence standard of proof.

Detainees have not fared well at the Supreme Court this term on other issues either. The Supreme Court refused to hear Al Bihani v. Obama (No. 10-7814), which asked the Court to decide whether the courts below correctly rejected petitioner's argument that he must be released from military custody because the conflict in Afghanistan during which he was captured had ended and whether the AUMF permits military detention of an individual who served in a combat unit that fought alongside the Taliban while it was harboring al-Qaida and fighting against the U.S. The Supreme Court also denied certiorari in Kiyemba v. Obama (No. 10-775), where the issue was whether the District Court upon granting a detainee's habeas petition also had the judicial power to direct the detainee's release into the U.S. Kiyemba concerned the five Uighur detainees held at Guantánamo who had their habeas petitions granted by the D.C. District Court. The Supreme Court denied certiorari because it found the government exhibited a continued commitment to petitioners' appropriate resettlement.

The only undecided Guantánamo detainee petition for certiorari before the Supreme Court this term is Khadr v. Obama (No. 10-751). Khadr asked the Supreme Court to rule that a detainee is entitled to judicial review if he contests an imminent transfer from Guantánamo, and also seeks reversal of the D.C. Circuit's order vacating a 30-day, pre-transfer notice requirement that Judge Hogan imposed on the government in 2008.

For this blog's sources and more information, see:

Lawfare - Larkin Reynolds, Supreme Court Denies Cert. in Kiyemba (Apr. 18, 2011)

Lawfare - Larkin Reynolds, Supreme Court Denies Cert. in Three More GTMO Cases (Apr. 4, 2011)