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

by Monica Ahmad, Esq.

On August 12, 2010, Omar Khadr, who was first captured in Afghanistan at the age of fifteen and was the youngest detainee at Guantánamo Bay, attended the first day of the military commission that will determine whether he is guilty of war crimes. Military prosecutors argue, among other things, that Mr. Khadr threw a grenade that killed U.S. Special Forces medic Christopher Speer in Afghanistan in 2002. Human rights groups and Mr. Khadr’s attorneys insisted that he be rehabilitated as a child solider and repatriated to Canada, his country of citizenship, rather than being prosecuted. Mr. Khadr's military commission has been postponed for at least a month as Mr. Khadr’s military lawyer, Army Lieutenant Colonel Jon Jackson, recovers from his unexpected collapse at the tribunal while he was conducting a cross examination.

Days before the start of Mr. Khadr’s military commission, on August 9, U.S. Military Judge Patrick Parrish issued a decision holding that self-incriminating statements made by Mr. Khadr during interrogations when he was a teenager are admissible at the military commission. Prosecutors had argued that during the interrogations Mr. Khadr voluntarily admitted to throwing the grenade that killed Mr. Speer. The defense argued that the statements should have been excluded because Mr. Khadr had uttered them involuntarily and under conditions of torture. The defense added that Mr. Khadr was first interrogated by U.S. officials when he was a fifteen-year-old child in Afghanistan lying sedated on a stretcher recovering from severe injuries sustained in a gunfight. Since then, the defense contended, Mr. Khadr was interrogated over one hundred times while being held in U.S. custody. The defense argued that during these interrogations, U.S. officials threatened Mr. Khadr with rape, beat him, subjected him to sleep deprivation, and denied him necessary medical treatment when he was injured.

In addition to challenging the admissibility of Mr. Khadr’s statements before interrogators, on August 2, Mr. Khadr’s defense team attacked the validity of the military commission more broadly when Colonel Jackson submitted a motion to the U.S. Supreme Court requesting a halt to the proceedings pending a decision by the Supreme Court on the constitutionality of the military commission. Colonel Jackson argued that use of the military commission would be unconstitutional because it is a system that applies only to non-U.S. citizens. Mr. Jackson wrote, “From the outset, the law of war has applied to Americans and aliens alike, because its rationale has been that reciprocity with regard to the enemy is the best and only legal guarantee that war will not descend to barbarism on either side.” The U.S. Supreme Court denied Mr. Khadr’s motion.

The days leading up to the start of the military commission also saw the resurgence of a debate on the role, if any, that Mr. Khadr’s country of citizenship Canada should play. The debate grew out of a January 29, 2010 decision by the Canadian Supreme Court, which held that Canadian security and police officials—by subjecting Mr. Khadr to sleep deprivation and questioning him without the presence of his legal counsel—had violated his civil rights while interrogating him at Guantánamo Bay in 2003 and 2004. The Court did not provide specific remedies for the harm Mr. Khadr had suffered, but the Canadian government asked the U.S. government to refrain from using information that Canadian interrogators had elicited from Mr. Khadr. The U.S. government, however, has proceeded to rely on this information in Mr. Khadr's prosecution. On July 5, 2010, Mr. Khadr and his attorneys prevailed before the Canadian Federal Court, which ordered that the Canadian government prepare, within one week of the decision, a list of “all untried remedies” that could “potentially cure or ameliorate the breach of Khadr’s rights.” In addition, the Federal Court ordered the Canadian government to maintain efforts to help Mr. Khadr until the court was satisfied that the government had remedied the violations of Mr. Khadr’s rights under Canadian law. On July 22, however, the Canadian Federal Court of Appeal overruled the decision, holding that the lower court had attempted an unlawful judicial supervision of the executive branch. The appellate court decision is itself under appeal, but Mr. Khadr’s attorneys voiced a grim expectation that the appeal would not be heard until after the end of Mr. Khadr’s military commission.

In the meantime, Mr. Khadr’s attorneys expect that the Canadian government will continue to refuse to help Mr. Khadr. One of his lawyers, Nathan Whitling, commenting on the military commission, stated, “It’s going to be an unfair trial. It’s going to be based in large part on statements derived from coercion and torture. It’s a system that would clearly be illegal if Omar happened to be a U.S. citizen.”

Wayne Marston, a member of Canada’s New Democratic Party and a human rights commentator, argues that Mr. Khadr’s age is the main factor that should have led Canada to act on his behalf. “It really comes down to that one point: he was a child combatant. . . . Omar Khadr should have been brought back to Canada at the first opportunity. The government of Canada has a responsibility to its citizens to ensure their rights.” Mr. Whitling acknowledged the possibility that the Canadian government could agree to bring Mr. Khadr back to Canada after his military commission concludes, though noted that the conservative government in power has recently refused to repatriate prisoners who are considered dangerous.

Another member of Mr. Khadr’s legal team, Dennis Edney, released a letter from Mr. Khadr containing his reflections on the military commission. In the letter, Mr. Khadr states “Dennis you always say that I have an obligation to show the world what is going on down here and it seems that we've done every thing but the world doesn't get it, so it might work if the world sees the US sentencing a child to life in prison.” A press release accompanying the letter stated "Omar's supporters would also like to announce their intent to embark on a renewed campaign of appeals to Canadian Prime Minister Stephen Harper and U.S. President Barack Obama to re-establish the once solid international reputation of their countries as just enforcers of the rule of law." The press release continues, "To do so, we hold that they must take immediate action to insure that Mr. Khadr receive a fair trial, either in an American federal court or in a Canadian court which recognizes his rights under the Canadian Charter of Rights and Freedoms."

This blog reported on Mr. Khadr on May 8, 2010 and May 18, 2010, in relation to Mr. Khadr’s status as the first Guantánamo detainee to be tried by military commission under the 2010 Manual for Military Commissions. For more information, see:

The Montreal Gazette—Court Ruling Clears Way for Khadr’s Guantánamo Trial

Canadian Civil Liberties Association—Federal Court Orders Canada Remedy Breach of Omar Khadr’s Charter Rights

The University of Calgary Faculty Law, Blog on Developments in Alberta Law—A Stay in the Khadr Litigation

Financial Post—Khadr Lawyer Asks U.S. Supreme Court to Halt Trial

The Washington Post—Lawyer’s Illness Delays War Crimes Trial of Guantánamo Bay Detainee Omar Khadr

The Globe and Mail—Khadr’s Confession Admissible, Military Judge Rules

by Stephen C. Lessard, Esq.

In June 2010, Human Rights First, a non-profit, nonpartisan international human rights organization, and The Constitution Project, a non-profit, nonpartisan think tank, released a report endorsed by sixteen former federal judges that concluded Congress does not need to pass new legislation to guide federal courts in their review of Guantánamo detainee habeas petitions. The report, “Habeas Works: Federal Courts’ Proven Capacity to Handle Guantánamo Cases,” marks the second anniversary of the U.S. Supreme Court ruling in Boumediene v. Bush, which held that Guantánamo detainees have the constitutional right to challenge the lawfulness of their detention on habeas review. Although the Supreme Court unequivocally ruled that Guantánamo detainees were due their day in court, the Court did not spell out what process they were due when they got there. Instead, the Court charged federal district court judges with developing the procedural framework for reviewing Guantánamo detainee habeas petitions.

Some commentators have suggested that the courts are struggling to take on an essentially legislative project, and are in desperate need of further instruction from Congress. For example, the Habeas Works report cites to the concurrence of D.C. Circuit Court Judge Janice Rogers Brown in Al Bihani v. Bush, who complained about “the unprecedented task of developing rules to review the propriety of military actions during a time of war, relying on common law tools.” Similarly, the authors of the paper “The Emerging Law of Detention: The Guantánamo Cases as Lawmaking” characterized the courts as fundamentally disagreeing on the substantive and procedural standards for habeas cases brought by Guantánamo detainees and stated that “[l]egislative guidance remains the most appropriate means of giving shape to a detention system that will otherwise continue to develop spasmodically, unpredictably, and very likely in undesirable directions.”

However, the Habeas Works report concludes that attacks on the judiciary’s ability to review habeas cases and calls for Congressional intervention are unfounded. The report examines how the courts have moved deliberately and thoughtfully in developing an effective jurisprudence in habeas cases that addresses the Government’s interest in national security, while protecting the right of Guantánamo detainees to challenge their detention. The former judges recognize that Congress has the power to draft a detailed code that would set a new detention standard for the courts to apply and procedural rules to govern the Guantánamo habeas litigations. The former judges believe, however, that such a course of action is both unwise and unnecessary: “unwise because it would bring us back to square one just when the courts are finally beginning to resolve these cases; and unnecessary because the federal bench, as it has done for centuries, is steadily developing a coherent and rational jurisprudence.”

The NYSBA Committee on Civil Rights authored a report in July 2008 titled “Supplemental Report on Boumediene v. Bush and the Procedural Framework for Guantánamo Detainee Habeas Petitions” that reached a similar conclusion as the Habeas Works report regarding the procedures due to Guantánamo detainees on habeas review. While recommending several bright line rules in the context of burdens of proof, discovery, and the admissibility of and access to evidence consistent with established U.S. laws and jurisprudence, the Committee concluded that the federal district courts should establish the procedural framework for Guantánamo detainee habeas petitions balancing the petitioners’ substantial liberty interests against the Government’s legitimate national security concerns.

As of July 27, 2010, the D.C. District Court has decided 53 Guantánamo habeas petitions, granting relief for 38 detainees. Twenty-six of these detainees have been released. These decisions have largely remained undisturbed, as only two decisions (one granting habeas relief, and one denying) have been reversed on appeal. As the former judges conclude: “Habeas is working.”

For more information, see:

Andy Worthington—Guantánamo Habeas Results: The Definitive List

by Hanna F. Madbak, Esq.

July 7, 2010 marked the fourth conviction before a military commission—the first under the Obama Administration—since 9/11. Ibrahim Ahmed Mahmoud al-Qosi, a 50-year-old Sudanese Guantánamo Bay detainee, pled guilty to charges of engaging in hostilities against the United States in violation of the laws of war. After 9/11, during the war in Afghanistan, al-Qosi was captured by Pakistani forces in the Tora Bora mountains. He was transferred to Guantánamo in December 2001. At his hearing on July 7, al-Qosi confessed to following Osama bin Laden from Sudan to Afghanistan in 1996 and serving as a quartermaster, cook, bodyguard and driver at various al-Qaeda compounds. Al-Qosi also pled guilty to serving on a defensive mortar crew prior to 9/11. His sentence will be constrained by the terms of his sealed plea agreement, and will be determined next month by a jury of military officers.

While this conviction was described by Navy Capt. David Iglesias, a prosecutor and spokesman for the commissions, as “progress in our country’s ongoing struggle against terrorism,” it has rekindled the debate on the necessity, legality and adequacy of military commissions.

In 2006, President Bush signed the Military Commission Act of 2006 (the “2006 MCA”) into law, providing the procedural and legal framework for trials by military commission of unlawful enemy combatants alleged to have engaged in or supported hostilities against the U.S. The Bush Administration touted the 2006 MCA as “one of the most vital tools in our war against the terrorists.” As a presidential candidate, President Obama criticized the military commission system. As president, he worked with Congress to overhaul the rules in an attempt to make them more fair, resulting in the Military Commissions Act of 2009 and subsequent Manual for Military Commissions. For more information on the current military commissions system and its procedures, click here and see the April 2, 2010 blog titled Pentagon Resumes Military Commission Hearings and the May 18, 2010 blog titled 2010 Manual for Military Commissions an Improvement, But Still Raises Questions.

Critics have nevertheless continued to oppose military commissions because of the trade-off between the compromises of individual rights inherent to military commissions and the efficient prosecution of alleged terrorists, especially when the military commissions have not proven to be very efficient or effective. These critics maintain that Article III Courts, with their time tested robust due process protections, are a better route for prosecuting these alleged criminals. Much misinformation and false assumptions have been disseminated about the adequacy of the criminal system to punish and deter terrorism. Proponents of the military commissions (such as the ranking Republican on the House Intelligence Committee, Pete Hoekstra (R-MI), and member of the Senate Intelligence Committee, Kit Bond (R-MO)) defend their position by claiming that the criminal system is inadequate to handle terrorism cases, and that military commissions are best suited to send a clear signal to the American people that the United States is at war with Al Qaeda. But supporters of Article III Courts rely on the following suggesting otherwise:

• U.S. district courts appear to be faster and more efficient: Since 9/11, the military commissions system convicted only four terrorists (at a cost of hundreds of millions of dollars), while the criminal system convicted over 400.

• Federal Courts are equipped to adequately handle classified information with national security implications: The Classified Information Procedures Act has been effectively used by Article III judges to balance the defendant’s right to a fair trial with the need to protect sensitive evidence.

• Federal Courts’ sentencing is fair and appropriate: Two of the four detainees convicted under military tribunals, the so-called “worst of the worst,” are already free men, having completed their sentences—Salim Hamdan, Osama bin Laden's personal driver, served the remaining five months of his five-and-a-half years sentence in Yemen, and David Hicks, the first detainee to be convicted under the military commissions system, was returned to Australia to serve the remaining nine months of a suspended seven-year sentence. Compare the sentencing of Hamdan and Hicks to that of John Walker Lindh (the so-called American Taliban), who was indicted by a federal grand jury on similar charges, but was sentenced to 20 years.

Misinformation and fear often shift a society’s value system. Through the military commissions acts, our elected representatives in Congress granted very broad powers to the Executive, upsetting the delicate balance between the branches of the Government and preventing the Judicial branch from applying our laws. Although it is continuously evolving and not perfect, the U.S. criminal justice system is one of the most sophisticated and developed legal systems in the world, always aiming to strike the right balance between applying the rule of law and preserving civil liberties. The ability of our criminal justice system to prosecute alleged terrorists should inform when and whether military commissions are appropriate.

For more information, see:

The Washington Post— Guantánamo Detainee Ibrahim Ahmed al Qosi Pleads Guilty

The New York Times—Nigerian Indicted in Terrorist Plot

Human Rights First—Fact Sheet: Prosecuting Terrorism in Federal Courts

Human Rights First—In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts (2009 Update and Recent Developments)

Edward Babayan, Legislative Watch, 14 NO. 1 HUM. RTS. BRIEF 48, 48 (2006)

The White House—President Bush Signs Military Commissions Act of 2006

by Jocelyn Rettic, Esq.

On June 21, 2010, the Supreme Court rendered its decision in the companion cases Holder v. Humanitarian Law Project, et al. (08-1498) and Humanitarian Law Project, et al. v. Holder (09-89)—a remarkable ruling in several respects. From a historical standpoint, this decision marks the first time the Supreme Court has reviewed a provision of the 2001 USA Patriot Act for constitutionality, and the Government's first decisive Supreme Court victory in the nine-year "war on terrorism". On the substance, the Court found 6-3 that content-based, criminally sanctioned restrictions on political speech survived heightened scrutiny (citing the Court’s decision in Texas v. Johnson in applying a “more demanding standard” than the intermediate scrutiny required for the regulation of non-expressive conduct under United States v. O'Brien—though the majority stopped short of calling the standard strict scrutiny). In an unusual move, Justice Stephen Breyer underscored the force of his dissent by reading it aloud from the bench.

The case involved various U.S. individuals and human rights groups who sought to assist two organizations designated by the State Department as foreign terrorist organizations (“FTOs”) in achieving peaceful goals, notably through teaching and advocacy. Federal law criminalizes the provision of "material support," defined by the Patriot Act to include "expert advice or assistance," to groups on the State Department's list. While completely independent speech in support of such groups cannot be curtailed under the First Amendment, the Government argued, and a majority of the Supreme Court agreed, that any peaceful activity directed by or coordinated with a designated terrorist group should be sanctioned because it could lend legitimacy to the group, which in turn would further its terrorist activities. Chief Justice Roberts' opinion noted that the conclusions of Congress and the Executive in this regard were entitled to deference, given their particular competence in matters of national security and foreign policy.

While there is a certain logic to this point of view, and the Government unquestionably has an interest in preventing the glorification of terrorists, the ruling has troubling implications for the freedoms of speech and association—particularly with regard to professionals such as lawyers and journalists. In response to the Court’s questions (click here for the oral argument transcript), Solicitor General Elena Kagan (now nominated to replace retiring Justice John Paul Stevens) stated that an attorney would not be providing illegal support by representing a group charged with a crime before U.S. courts, because the group would have a constitutional right to defend itself. Kagan also suggested that the statute would not apply to lawyers representing petitioners in habeas corpus proceedings or civil defendants where Sixth Amendment due process issues were at stake. The international defense bar, however, may now have to navigate a potential minefield, because the law could reach their services rendered on behalf of accused terrorists before foreign or international tribunals, where the due process provisions of the U.S. Constitution may not apply to protect the attorney from prosecution under the Patriot Act. It is also unclear whether the provision of legal services in anticipation of criminal charges being filed would run afoul of the act. Kagan did state, however, in response to repeated questioning by Justices Kennedy, Sotomayor, and Breyer, that filing an amicus brief on behalf of a designated FTO—or even instructing its members on how to do so—“would be a service” or provide “an extremely valuable skill”, exposing an attorney to criminal sanctions under the statute.

The ruling also seems to eviscerate even the limited provisions for challenging the Government's designation of an FTO. According to the State Department website, "By law an organization designated as an FTO may seek judicial review of the designation in the United States Court of Appeals for the District of Columbia Circuit not later than 30 days after the designation is published in the Federal Register." However, since the designation takes effect upon publication, anyone who assists the organization in seeking such review may be subject to prosecution.

The implications of this case for journalists and academics are equally problematic. Aside from the obvious scenario of publishing an op-ed piece by the leader of a listed group, a reporter might risk prosecution in using any sources associated with such a group to challenge the Government's version of events. Indeed, according to a recent New York Times editorial, the FBI has already questioned some of their suspected sources for a piece on terrorism and threatened to arrest them for providing material support to terrorists. More broadly, the law could be applied to any U.S. person who attempts to integrate a listed group or its members into any legitimate political or social action, as the Petitioners were trying to do in the instant case. According to David D. Cole, a lawyer for the plaintiffs with the Center for Constitutional Rights, “This decision basically says the First Amendment allows making peacemaking and human rights advocacy a crime.”

The Court declined to limit the scope of the law by requiring knowledge or intent that speech or services would further a group's terrorist activities. It is also unclear whether the majority's reasoning will eventually be extended to situations involving domestic terror groups or other threats. Justice Breyer noted his concern in this regard, however, calling it “a rule of law that, contrary to the Constitution’s text and First Amendment precedent, would automatically forbid the teaching of any subject in a case where national security interests conflict with the First Amendment.”

For more information, see:

The New York Times, Room for Debate Blog—What Counts as Abetting Terrorists?

NPR—Does The Patriot Act Violate Free Speech?

The New York Times—A Bruise on the First Amendment

The New York Times—Court Affirms Ban on Aiding Groups Tied to Terror

by Elise S. Feldman, Esq.

The judicial and executive branches of Government faced off once again in the recent decision by United States District Judge Henry H. Kennedy, Jr. of the District Court for the District of Columbia in Abdah v. Obama, No. 04 Civ. 1254 (HHK) (D.D.C. Jun. 10, 2010). This decision concerned the continued detention at Guantánamo Bay of Mohamed Hassan Odaini, a Yemeni citizen and former religious student at Salafia University who was seized by Pakistani authorities at the age of 17 and imprisoned at Guantánamo for the past eight years. The Government—essentially relying on Odaini’s presence at a guest house in Pakistan where some al Qaeda fighters may have stayed, the fact that he had a medical visa rather than a student visa, and some statements he made were inconsistent—argued that Odaini was lawfully detained pursuant to the Government’s authority to detain individuals suspected of having ties with al Qaeda, the Taliban, or groups associated with one of those organizations under the Authorization For Use of Military Force, passed by Congress over a decade ago.

The Court discussed that various military or Government officials, in 2002, 2004, 2007 and 2009, conceded that there was no information to confirm that Odaini had Taliban or al Qaeda ties and recommended or approved his release. In June 2009, the Government informed Odaini’s counsel that the Guantánamo Review Task Force approved him for transfer from Guantánamo, and that the Government was taking appropriate diplomatic steps, consistent with the national security and foreign policy interests of the U.S., to facilitate Odaini’s transfer from Guantánamo to a third country. Odaini’s habeas petition was then stayed. In November 2009, Yemen’s Ambassador to the U.S. signed a declaration indicating that Yemen would accept Odaini, as well as other Yemenis detained at Guantánamo, for repatriation. However, the stay on Odaini’s habeas petition was lifted after President Obama in January 2010 decided that no Guantánamo detainees approved for transfer would be sent to Yemen. The Court then reached the merits of Odaini’s habeas petition under the rubric that the Government could continue detaining Odaini only if it proved, by a preponderance of the evidence, that Odaini had some sort of structured role in the hierarchy of the Taliban or al Qaeda.

The Court determined that the Government did not even come close to meeting its burden. Odaini’s presence, without more, at the guest house, his first and only visit, did not support his continued detention. Further, nothing about Odaini’s visa connected him in any way to al Qaeda. Finally, any inconsistencies in Odaini’s statements were minor and insignificant and did not give rise to the inference that Odaini was lying to hide that he was fighting for al Qaeda. Judge Kennedy faulted the Administration for failing to see “what is, to any reasonable reader, an obvious point . . . [that Odaini] was, as he asserts, a student.” The Court concluded “respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to Al Qaeda. Consequently, his detention is not authorized by the AUMF. The Court therefore emphatically concludes that Odaini’s motion must be granted.”

This decision and the circumstances surrounding it highlight the issues involved with the Government’s continued detention of those accused of terrorism. The obvious question, that is, what now happens to Odaini after a federal district judge ordered his release on habeas review, at least has been answered: the Obama Administration decided to repatriate Odaini to Yemen. Broader questions, though, still remain. What becomes of other prisoners of Yemeni descent whose status as al Qaeda or Taliban associates is as questioned as Odaini’s? One Administration official estimated that as many as 20 more Yemenis could be ordered released by the district court for lack of evidence to justify their continued detention.

Perhaps the most significant question of all is what, if any, changes will be made to the Government’s policy on continued detention (see June 25, 2010 post titled Guantánamo Report Recommending Continued Detention Released and May 2, 2010 post titled Possible New Indefinite Detention Rules) in light of Judge Kennedy’s assertion that the Government simply “refus[ed] to deviate from a predetermined conclusion” regarding Odaini’s status? How will Judge Kennedy’s criticism be used, if at all, in other cases against other defendants whom the Administration has also come to a “predetermined conclusion”? Odaini’s case is a clear example of the serious constitutional and human rights issues raised by the Administration’s current continued detention policy. Will the Government use the disposition of these habeas petitions as lessons and perhaps develop criteria better suited to decrease the likelihood of suspects like Odaini being detained for eight or more years?

For more information, see:

The Huffington Post—Court Order Highlights U.S. Legal
Distortions

The Washington Post—U.S. to Repatriate Guantánamo Detainee to Yemen After Judge Orders Him to be Released

The Washington Post—Continued Injustice at Guantánamo Bay, Cuba

Salon.com—The Obama Administration and its Pundit-Defenders

ACLU Blog of Rights—Where’s That Change We Can Believe In?

by Monica Ahmad, Esq.

On June 14, 2010, Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York issued a memorandum opinion in United States v. Ghailani, upholding the use of “body cavity searches” on a former Guantánamo detainee who was transferred to the Metropolitan Correctional Center in Manhattan. The defendant, Ahmed Khalfan Ghailani, submitted a motion on April 2, 2010 claiming to suffer from post-traumatic stress disorder as a result of the searches. He requested that the court invalidate a U.S. Bureau of Prisons' policy requiring inmates to undress and reveal their rectal area for inspection as a prerequisite to attendance at appearances in court.

Mr. Ghailani is a Tanzanian man facing hundreds of charges related to bombings at U.S. embassies in Tanzania and Kenya that killed 224 people, including 12 Americans, in 1998. Prosecutors alleged that Mr. Ghailani later trained with Al Qaeda and was a bodyguard for Osama bin Laden. He was first indicted in 1998 in the Southern District for the charged crimes, but was captured in 2004 by a foreign state (Judge Kaplan’s decision does not specify which state). After his capture, Mr. Ghailani was turned over to the U.S. Central Intelligence Agency, which detained and interrogated him outside the United States for about two years. U.S. authorities then transferred him to Guantánamo Bay. In June 2009, Mr. Ghailani was relocated to New York, becoming the first Guantánamo Bay detainee brought to a U.S. civilian court for trial. He has since been at the Metropolitan Correctional Center awaiting trial.

In 1997, the U.S. Bureau of Prisons adopted a policy requiring that all inmates entering or leaving the Metropolitan Correctional Center submit to a “visual inspection of all body surfaces and body cavities.” The policy details that each inmate must undress and bend over or squat briefly in order to display their rectum to the officer conducting the search. Prosecutors argued that the rule is necessary to protect inmates, prison and courtroom personnel, and the general public from the possibility that an inmate is storing weapons or other illegal items in body cavities. According to Mr. Ghailani, however, the searches were a violation of his Sixth Amendment right to participate in his own defense: he refrained from attending court proceedings in order to avoid the traumatizing searches, and the resulting stress disorder rendered him incapable of assisting his attorneys in his defense.

In his opinion, Judge Kaplan invoked the 1990 Supreme Court decision in Washington v. Harper, which held “the proper standard for determining the validity of a prison regulation claimed to infringe on an inmate’s constitutional rights is to ask whether the regulation is ‘reasonably related to legitimate penological interests.’” The rule applies even if the inmate’s asserted right is fundamental. Judge Kaplan wrote that whether a regulation is reasonable depends on the four factors elaborated in the 2006 Supreme Court decision in Beard v. Banks: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it;” (2) whether there are “alternative means of exercising the right that remain open to prison inmates;” (3) how accommodating the asserted constitutional right would impact guards, other inmates, and the allocation of prison resources generally; and (4) whether there are ready alternatives for furthering the governmental interest.

Judge Kaplan decided that the first and third factors favor the Government rather than the defendant because “common sense” and the prior experiences of prison guards has shown that there is a substantial danger of inmates concealing of weapons or other contraband in body cavities. Accommodation of Mr. Ghailani’s request, Judge Kaplan reasoned, would create opportunities for such concealment and would therefore risk the safety of guards, other inmates, and court personnel. With regard to the second factor, Judge Kaplan found that Mr. Ghailani did indeed have alternative means of exercising his Sixth Amendment rights. Judge Kaplan reasoned that if a defendant is not able to participate in his defense, he is incompetent to stand trial, which means that the defendant, by statute, will not be tried until able to assist in his defense. If the defendant remains able to participate in his defense despite the continuation of searches, then his Sixth Amendment rights are not violated. In both scenarios, Judge Kaplan concluded, a defendant’s Sixth Amendment rights are protected. Finally, analysis of the fourth factor proceeded through a comparison of the currently used searches to the possible alternative of body-scan machines. Judge Kaplan concluded that body-scan machines are not a ready alternative for the current search form because they have not been approved by the Bureau of Prisons for use in the Metropolitan Correctional Center, and there are no current plans to acquire such machines.

For more information, see:

The New York Times—Federal Judge Rejects Terrorism Suspect’s Plea to Halt His Strip-Searches

The Associated Press—Judge: Guantánamo Detainee Will Be Strip Searched

Reuters—U.S. May Strip-Search Guantánamo Suspect: Judge

by Patrick T. Campbell, Esq.

In one of his first acts as President in January 22, 2009, President Obama signed three executive orders concerning Guantánamo Bay. One of these orders, Executive Order 13492, required the closure of Guantánamo within a year and the creation of the Guantánamo Review Task Force (the “Task Force”), which was charged with the review of the status of the then-remaining 240 Guantánamo detainees, with repatriation or transfer to third countries for detainees that are found to be eligible for release. The Task Force conducted its review and issued a Report on January 22, 2010 (just recently made public) that made the following recommendations pertaining to the 240 remaining Guantánamo detainees: (1) 126 detainees were approved for transfer subject to appropriate security measures; (2) 36 detainees were referred for prosecution in federal court or military commission; (3) 30 detainees from Yemen were designated for conditional release based on the current security environment in that country; and (4) 48 detainees were approved for continued detention under the Authorization for Use of Military Force (the “AUMF”)—passed by Congress in response to September 11—based on a finding that they pose a national security threat that could not be presently sufficiently mitigated if they were to be transferred from U. S. custody.

The Task Force followed detainee review guidelines developed specifically for President Obama’s Executive Order in conducting its reviews. The guidelines provided for continued detention under the AUMF if “(1) the detainee poses a national security threat that cannot be sufficiently mitigated through feasible and appropriate security measures; (2) prosecution of the detainee by the federal government is not feasible in any forum; and (3) continued detention without criminal charges is lawful.” According to the Report, the detainees designated for continued detention were characterized by one or more of the following facts: (1) significant organizational role within al-Qaida, the Taliban or associated forces; (2) advanced training or experience; (3) expressed recidivist intent; and (4) history of associations with extremist activity.

The Report concluded that the 48 detainees recommended for continued detention could not be safely transferred to a third country. The Report also concluded that these detainees could not currently be prosecuted because “either there is presently insufficient admissible evidence to establish the detainee’s guilt beyond a reasonable doubt in either a federal court or military commission, or the detainee’s conduct does not constitute a chargeable offense in either a federal court or military commission.” For one, these detainees were captured in active combat zones in Afghanistan or the Pakistani border regions. The focus at the time of their capture was the gathering of intelligence and removal from the fight; while the intelligence gathered regarding these detainees is credible, evidence was neither garnered nor preserved with an eye towards prosecuting them. Also, for many of the detainees, there are no witnesses available to testify against them.

The Report continued that jurisdictional limitations may also prohibit the prosecution of these detainees. For example, the Task Force found no evidence that some detainees, while lawfully detainable as members of al-Qaida, “participated in a specific terrorist plot,” or that they had acted in support of al-Qaeda after October 2001, when laws criminalizing the general provision of material support to a terrorist group were extended to foreigners oversees. Further, the statute of limitations for providing material support to terrorists is eight years.

The Report further concluded that continued detention was legal under Section 2(a) of the AUMF, which authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future attacks of international terrorism against the United States by such nations, organizations or persons.”

Finally, the Report stated that the 48 detainees recommended for continued detention will be subject to further reviews. First, under Boumediene v. Bush, these detainees have the right to seek judicial review of their detention by filing a petition for a writ of habeas corpus in federal court. Second, each detainee approved for continued detention will be subject to periodic Executive review.

The Report’s continued detention recommendations have spurred criticism from the civil rights bar. Critics say that while the detainees have the right to challenge their detention in federal court, judges lack guidance about whether and on what grounds they should order a detainee released. Critics also say that the grounds stated by the Report for continued detention, without further explanation, depart from the traditionally accepted practice of holding an enemy combatant until the end of hostilities, and revert to imprisonment without trial for criminal punishment or political expediency.

Critics also point out that, because these detainees could theoretically be detained for life under the Task Force’s recommendations, there should be independent oversight of the Executive’s periodic review of such detention. Further, the Government should bear the high burden to demonstrate that there is a high risk of imminent harm to Americans if a detainee is released.

Furthermore, while the Report relies on the Supreme Court decision in Hamdi v. Rumsfeld in interpreting the AUMF to authorize continued detention, it is questionable whether that decision supports the continued detention of these detainees. The Hamdi court held that the U.S. may detain (1) individuals determined to be Taliban combatants (2) who engaged in armed conflict against the U.S. (3) for the duration of the war in Afghanistan. However, whereas the Hamdi court highlighted these three factors to justify continued detention, the Report justifies continued detention on one or more of four factors, only one of which—significant organizational role within al-Qaeda, the Taliban or associated forces—is even partly included in the Hamdi test. The Report relies on three factors—advanced training or experience, expressed recidivist intent or history of associations with extremist activity—that are not referenced in Hamdi at all. Hamdi’s holding is strict, as it found “indefinite detention for the purpose of interrogation is not authorized.”

It is also unclear how this Report’s recommendations interact with the Administration’s contemplated guidelines on whether newly-captured terrorism suspects will be prosecuted or held continuously without trial (see May 2, 2010 post titled Possible New Indefinite Detention Rules). The Report’s recommendations may also further impede the closure of Guantánamo, as while continued detention in any case raises serious constitutional concerns, the most serious concerns are raised when such detention—whether of a U.S. citizen or not—continues on U.S. soil.

In conclusion, it should be noted that the Report’s recommendations are just that, recommendations. The Administration has not yet adopted any formal continued detention policy related to Guantánamo detainees or newly-captured terrorism suspects. The Administration should, however, bear in mind that continued detention without trial implicates the most fundamental principles of American due process. If the Administration does deem that continued detention of some terrorism suspects is the only way to truly keep America safe, the detainees must at least be afforded those hallmarks of due process as described in Hamdi—notice of the factual basis for detention, a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker, and access to legal counsel during the proceedings.

For more information, see:

The Los Angeles Times—Preventive Detention, with Caveats

The New York Times—No Terror Evidence Against Some Detainees

by Hanna F. Madbak, Esq.

In June 2008, the Supreme Court held in Boumediene v. Bush that those designated as “enemy combatants” and detained at Guantánamo were constitutionally entitled to the writ of habeas corpus to challenge in a U.S. federal court the legality of their detention (click here for more information on Boumediene). At that time, presidential candidate Barack Obama, who was running his election campaign on a platform of hope and change, hailed the Boumediene decision as "a rejection of the Bush Administration's attempt to create a legal black hole at Guantánamo," and praised the Supreme Court for "rejecting a false choice between fighting terrorism and respecting habeas corpus." However, the Obama Administration recently shocked both its supporters and critics when it endorsed an argument made by the Bush Administration that the Boumediene decision should be limited to Guantánamo and should be inapplicable to prisons in Bagram, Afghanistan.

Last April, D.C. District Court Judge John D. Bates—a George W. Bush appointee—held, in Al Maqaleh v. Gates, that four detainees who were captured outside Afghanistan (in Thailand and the United Arab Emirates) and transferred to Bagram, could not be detained indefinitely by the Executive. Judge Bates found that the issues in this case “closely parallel those in Boumediene, in large part because the detainees themselves as well as the rationale for detention are essentially the same.” The Obama Administration appealed.

On May 21, 2010, a three-judge panel of the D.C. Circuit Court of Appeals reversed Judge Bates’ decision (click here for the decision), holding that detainees apprehended outside of Afghanistan and then transferred to Bagram have no right to challenge the legality of their detention on federal habeas review, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).

Critics maintain that the Court of Appeals’ decision is troubling because it creates a distinction without a difference in fact between a detainee captured outside a war zone and transferred to Guantánamo versus being transferred to Bagram. In the former case, the detainee can challenge his detention by filing a habeas petition in federal court. But in the latter, that detainee can be detained indefinitely without any legal recourse.

Critics also question the Court’s focus on the geographical location of the place of detention. Chief Circuit Judge David B. Sentelle wrote that Guantánamo and Bagram should be treated differently because, unlike Bagram, the United States’ presence and control of Guantánamo is permanent; and unlike Guantánamo, Bagram is an active “theater of war.” However, the opinion does not explain why these differences are applicable to detainees captured thousands of miles from the “theater of war.” By focusing on the location of their detention, the Court missed an opportunity to analyze the case based on the circumstances surrounding the capture of the detainees.

This case will most likely get to the Supreme Court as it upsets the balance between the Executive and Judicial branches of the Government by allowing the Executive to detain indefinitely anyone it transfers to Bagram regardless of the circumstances surrounding his capture and the reasons for his detention. For more information, see:

The Washington Post—The New Gitmo?

The Huffington Post—Federal Appeals Court Bars Bagram Detainees from Civilian Trials

Jurist—DC Circuit Dismisses Bagram Detainee Habeas Petitions

The New York Times—Obama Upholds Detainee Policy in Afghanistan

The New York Times—Obama to Appeal Detainee Ruling

Organizing for America—Obama Statement on Today’s Supreme Court Decision

by Stephen C. Lessard, Esq.

On May 28, 2010, the U.S. House of Representatives passed the National Defense Authorization Act for Fiscal Year 2011 (H.R. 5136). Section 1037 of the bill directs the Department of Defense (the “DOD") Inspector General to investigate lawyers representing Guantánamo detainees for whom there is a reasonable suspicion that such lawyers have (1) engaged in any conduct or practice that interferes with the operations at Guantánamo, (2) violated any applicable DOD policy, (3) violated any law within the Inspector General’s exclusive jurisdiction, or (4) generated any “material risk to a member of the U.S. Armed Forces.” The provision applies to either military or civilian lawyers and calls for the Inspector General to initiate the investigations within 30 days of enactment. The Inspector General is required to report the results of an investigation to the House and Senate Armed Services Committees within 90 days after its completion, including the identification of any actions the DOD has taken to address the conduct or practice engaged in by the lawyers.

The legislation is the latest attack on lawyers representing detainees. In February 2010, the Department of Justice (the “DOJ”), responding to a demand from Senator Charles Grassley (R-IA), identified nine DOJ attorneys who either represented Guantánamo detainees or worked for groups who advocated for them. Since then, these DOJ lawyers have been attacked through various media campaigns questioning their loyalties, patriotism, and ethics (see March 18, 2010 post titled Guantánamo Lawyers Under Attack). However, some lawmakers and Administration officials believe that a closer examination of the work of defense lawyers at Guantánamo Bay is necessary. An ongoing DOJ investigation, for example, is looking into allegations that military lawyers representing Guantánamo detainees may have given their clients pictures of Central Intelligence Agency (the “CIA”) interrogators. The lawyers have defended their actions, contending that the detainees were illegally tortured in the custody of the CIA, and they want to raise that issue at trial. To do so, they need to identify potential witnesses to the interrogation sessions.

Representative Jeff Miller (R-FL) inserted the proposed language into the bill last week because he was outraged by the allegations behind the DOJ investigation. Representative Miller believes it is important to subject Guantánamo detainee defense lawyers to greater scrutiny in order to “identify any policy violations” that could compromise national security and to hold the attorneys accountable. Representative Miller’s spokesperson said the provision is “focused on investigating attorneys who may have outed covert operatives in the field. The key is ‘may have.’” According to Representative Miller, “if they were not [involved], the attorney[s] should not have anything to be concerned about.”

Democrats on the House Committee on Armed Services agreed to Representative Miller’s proposal after several modifications. One change added the requirement of “reasonable suspicion” of wrongdoing before a lawyer could be investigated by the Inspector General. Another modification enables the Attorney General and Secretary of Defense to halt such an inquiry if it would interfere with a related criminal investigation. Even with these changes, however, legal commentators are, rightfully so, alarmed by the provision.

Legal groups, including the New York State Bar Association (the “NYSBA”), oppose the legislation and have warned that the provision will have a “chilling effect” on the ability of lawyers to provide zealous advocacy and effective assistance of counsel to their Guantánamo clients. Stephen P. Younger, President of the NYSBA, submitted letters to Senators Kirsten E. Gillibrand (D-NY) and Charles E. Schumer (D-NY) advising them that “any such provision would reflect an unfortunate hostility to the fundamental legal principle of right to counsel. . . . To investigate those who fulfilled the constitutional imperative of protecting due process and the rule of law is to threaten the independence of the Bar and, at the same time, attempt to deprive defendants in future cases of the right to counsel.” In a letter to Senate Armed Services Committee Chairman Carl Levin (D-MI) and Minority Chairman John McCain (R-AZ), American Bar Association President Carolyn Lamm wrote “it will compromise the professional independence of counsel and divert already starved defense resources from defending clients to defending the conduct, practices, actions and strategies of their lawyers.” According to Stephen Vladeck, an American University law professor who also defended a Guantánamo detainee, “the ‘reasonable suspicion’ standard could itself force counsel to think twice before challenging extant DoD policies governing their interactions with their clients, thereby interfering with counsel’s ability zealously to represent their clients. The mere threat of investigation could easily force compliance with troubling policies limiting lawyer-client interaction that counsel might otherwise seek to challenge.”

Many defense lawyers are also concerned that the measure is too broad and risks infringing on constitutional freedoms. Professor Vladeck believes the proposal to investigate any lawyer who “interferes” with detainee operations could ensnare “virtually every lawyer that has represented a detainee” because “from the government’s perspective, the representation itself has caused substantial interference, since lawyers have, among other things, informed detainees of their rights; petitioned the federal courts for the detainees release; obstructed the government’s ability to interrogate the detainees and so on.” David Remes, who represents several detainees, worries that no lawyer could possibly predict what conduct might fall within the law, making it impossible for Guantánamo lawyers to represent their clients effectively and zealously.

Opponents of the provision further argue that the DOJ, not the DOD, is the appropriate agency to investigate any legal wrongdoing by Guantánamo lawyers. The DOJ investigation discussed above is cited as an example of the willingness of the DOJ to conduct the type of investigations being called for in the proposed legislation.

The bill now heads to the Senate Armed Services Committee where the debate is expected to continue. For more information, see:

ABC News—"Intimidation" Factor? Congress Seeks Greater Scrutiny of Guantánamo Detainee Lawyers

The National Law Journal—Legal Groups Line Up Against Proposal to Investigate Gitmo Lawyers

The New York Times—Bill Puts Scrutiny on Detainees' Lawyers

Balkinization—The War on Lawyers, Continued...

by Hanna F. Madbak, Esq.

Attorney General Eric Holder recently stated that the Administration is open to modifying a criminal suspect’s rights under Miranda v. Arizona to deal with international terrorism. In his testimony to the House Judiciary Committee, Mr. Holder stated that the "public safety exception" to the Miranda rule should be "modernized" and "clarified," but failed to explain how and why.

Anyone reading this blog has heard in a television program or a motion picture Miranda rights recited as: “you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney...” The genesis of this now embedded law enforcement protocol is the 1966 Supreme Court decision in Miranda v. Arizona, which held that under the Fifth and Sixth Amendments of our Constitution criminal suspects in police custody must be informed of their right to decline to make self-incriminatory statements and their right to legal counsel. An elicited incriminating statement that is obtained prior to such “Mirandizing” is not admissible in court. For nearly 44 years, the American populace has accepted this balance between civil liberties and the need for security in our society.

Lesser known in popular culture is the 1984 Supreme Court decision in New York v. Quarles, which carved an exception to this rule in situations where there is an imminent threat to public safety. The “public safety exception” allows, in situations which pose an imminent threat to public safety, a suspect’s answers to be admissible into evidence even when he was not given prior Miranda warnings. Such pre-Miranda questions must seek to elicit information necessary to neutralize the imminent threat to public safety and Miranda warnings must be issued once such information has been obtained. The “public safety exception” has been applied by lower federal courts and state courts in situations including finding the location of a discarded gun that could threaten the public safety and assessing the location and needs of an unconscious or reportedly missing victim.

This “public safety exception” has already been used successfully in the two most recent attempted terrorist attacks in the U.S. Faisal Shahzad, the suspect in the recent attempted Times Square Bombing, was questioned for three to four hours before being read Miranda warnings. Shahzad continued to talk after his Miranda rights were read, and provided useful information both before and after the warnings were issued. Investigators questioned Umar Farouk Abdulmutallab in the attempted airliner bombing last Christmas for 50 minutes before his Miranda rights were read and, at the urging of his relatives, Abdulmutallab also continued talking and providing evidence.

Furthermore, in a letter sent to President Obama, three prominent former FBI interrogators urged the Administration not to change the existing Miranda rules. Former FBI agents Jack Cloonan, Joe Navarro and Jim Clement argued that in the decades of working in law enforcement, including the years following 9/11, Miranda rights never interfered with their ability to obtain useful information or make prosecutable cases.

It is currently unclear what changes the Administration plans to ask Congress to make to existing Miranda jurisprudence. There may not be a need to make any alterations, however, as an unexploded bomb or terrorist conspiracy would probably fit under the existing “public safety exception.” If Attorney General Holder simply asks Congress to codify the existing “public safety exception” to provide better guidance to law enforcement, then such legislation may not be all that controversial. It is clear, though, that any proposed rule to broaden the existing “public safety exception” or carve out a new exception to Miranda will face serious constitutional challenges. For example, in 2000, the Supreme Court in Dickerson v. United States struck down a statute that allowed prosecutors to use statements defendants made voluntarily before being read their Miranda rights.

Moreover, if protecting the public safety is really the goal, there may not be a need to debate disturbing Miranda jurisprudence at all. As Supreme Court Justice Thurgood Marshall in his dissenting opinion in Quarles stated: “[i]f a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial.”

For more information, see:

The American Prospect—Holder: Miranda Exception Used Extensively

The New York Times—Holder Backs a Miranda Limit for Terror Suspects

The Huffington Post—Eric Holder: Miranda Rights Should be Modified for Terrorism Suspects

Associated Press—Holder: Miranda May Need Changes for Terrorists

The Washington Post—Obama Administration Looks into Modifying Miranda Law in the Age of Terrorism

The Huffington Post—Holder Reiterates Support for Miranda Rule—But Still Wants to Change It

The Washington Post—Give Law Enforcement More Flexibility in Questioning Terrorism Suspects

The Post and Courier—Timely Terror Intelligence