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On Determining Whether Artillery Fire Was Directed at Civilians Purposefully: Criticism of the ICTY’s Gotovina Decision

Friday, January 27, 2012
by Robert Chesney

[This is the first of two posts concerning the ICTY's Gotovina decision (the ICTY summary of which appears here, and two volumes of trial documents are available here]

Professor Laurie Blank, Director of the International Humanitarian Law Clinic at Emory Law, writes in with the following guest post.  Everyone interested in IHL issues (particularly the methodology by which a court might infer the intentional targeting of civilians) will want to take a look at this:

On November 4, 2011, the International Humanitarian Law Clinic at Emory Law School convened a group of military operational law experts with extraordinary breadth and depth of experience in applying and enforcing IHL.  The meeting was convened to analyze the broader legal issues in and implications of the recent judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Prosecutor v. Gotovina, which focused on Operation Storm, the Croatian operation to re-take the Kraijina region in the summer of 1995.

The meeting grew out of extensive conversations with a range of US and foreign military operational law experts about the application of IHL in the Gotovina judgment.  These issues are at the heart of an amicus brief that has been submitted to the Appeals Chamber at the ICTY [Ed.--a subsequent post will cover that brief]. Beyond the amicus brief, however, we felt it was essential to explore in greater depth a broader range of legal, institutional and policy concerns – in particular, the consequences of the judgment’s approach on future military operations, military planning and the implementation of IHL.

The experts gathered represented a remarkable compilation of military legal and operational experience with regard not only to the implementation of IHL during the conduct of operations, but also to the broader institutional considerations of training, planning and doctrine that contribute significantly to the development and maintenance of disciplined and moral fighting force.  This operational experience and knowledge brings the concepts at the heart of IHL – and the issues at the heart of the discussion over the Gotovina judgment – into sharp relief.

The Emory IHL Clinic has now issued a report from the experts’ meeting: “Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law.”  The report sets forth the experts’ consensus views and concerns regarding the application of the law in the judgment, highlighting four key areas: the imposition of what amounts to a strict liability standard imposed on commanders who attack lawful military objectives in populated areas; the flawed application of the principle of proportionality; the failure to consider or apply Article 58(b) of Additional Protocol I and its obligations for defending parties to take precautions; and the failure to properly recognize and rest the legal analysis on the operational complexity inherent in the targeting process.  With an eye to the long-term consequences of the judgment, the report also emphasizes a range of institutional concerns and second order effects resulting from the judgment: the effect on future military operations; the consequences for the respect for and development of international law; and specific overarching concerns regarding the role of the commander and the role of legal advisers during military operations.

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Today’s Headlines and Commentary

Friday, January 27, 2012
by Ritika Singh

The Blog of Legal Times tells us that the Department of Justice has ”filed court papers Wednesday in a public records suit in Washington asking U.S. District Judge James Boasberg to keep the photos [showing Osama bin Laden's dead body] out of the public domain” for fear that they could “incite violence against the United States.” Judicial Watch, a government watchdog nonprofit, sued in May 2011 to have the photos released.

Speaking of Osama bin Laden, the New York Times reports that rockets were fired on the Pakistani military acedemy near bin Laden’s ex-hideout in Abbottabad. The BBC also has the story.

The DoD budget blueprint that aims to “cut half a trillion dollars from its spending over the next five years” is getting a lot of press attention. You can get your fill, for starters, with this Times article, this article from Wired magazine’s Danger Room, this Washington Post op-ed by Frederick W. Kagan on the mistakes of Obama’s military strategy, and this Los Angeles Times piece. But if you want more, you’re going to have to find it yourself.

In terrorism trials news, a Maryland man by the name of Antonio Martinez (who described himself on Facebook as “just a yung brotha from the wrong side of the tracks who embraced Islam”) has pled guilty to plotting to blow up a military recruiting station. He faces 25 years in prison, according to the Baltimore Sun. Twenty-five years seems to be the “in” sentence for people who plead out after trying to take out military facilities but who fail to hurt anyone. Yonathan Melaku, the shooter who targeted the Pentagon and other military sites, also pled and faces 25 years in prison, says the San Francisco Chronicle.

The Associated Press reports that the legal fallout from the horrific Haditha killings isn’t over, after all: Iraq is threatening to “take legal action to ensure justice for the families of 24 unarmed Iraqi civilians killed in a U.S. raid in Haditha.” The Boston Globe has more.

France has agreed to support U.S. efforts in Afghanistan for two more decades despite the deaths of four French soldiers last week, says the Post.

David Rhode, a journalist who was kidnapped by the Afghan Taliban and held in Waziristan, has this piece for Reuters about drones.

And no vegetarian who is concerned about biosecurity should miss today’s Moment of Zen:

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Fordham Law’s Center on National Security’s Morning Brief, and Fordham Law’s new Cyber Brief. Email us noteworthy articles we may have missed at wakeman.lawfare@gmail.com and singh.lawfare@gmail.com.

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District Court Judgment Affirmed in Suleiman Appeal

Friday, January 27, 2012
by Raffaela Wakeman

No big surprise here: The D.C. Circuit has affirmed the judgment of the District Court in upholding the detention of Guantanamo detainee Abdul-Rahman Abdo Abulghaith Suleiman’s appeal. The opinion has not been released yet, but the order is available here.

When the redacted opinion, filed by Judge Thomas Griffith, is made available, we will post it.

Read Wells’s oral argument preview and recap for this case, the briefs for which are available here and here.

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Al Madhwani Cert Opposition Filed

Friday, January 27, 2012
by Benjamin Wittes

The government has filed its opposition to cert in the case of Al Madhwani v. Obama–a Guantanamo habeas case. Al Madhwani’s cert petition seeks review of this DC Circuit opinion affirming his detention. That opinion, in turn, affirmed District Judge Thomas Hogan’s earlier opinion. The government’s argument is interesting because it explicitly invokes the new language in the NDAA:

In response to the attacks of September 11, 2001, Congress enacted 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.” AUMF § 2(a), 115 Stat. 224. The President has ordered the Armed Forces to subdue both the al-Qaida terrorist network and the Taliban regime that harbored it in Afghanistan. Armed conflict with al-Qaida and the Taliban remains ongoing, and in connection with that conflict, some persons captured by the United States and its coalition partners have been detained at Guantanamo Bay. In Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), Pub. L. No. 112-81, 125 Stat. 1561 (2011), Congress “affirm[ed]” that the authority granted by the AUMF includes the authority to detain, “under the law of war,” any “person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”

. . .

As relevant here, the court of appeals has repeatedly held that an individual may be detained under the AUMF if he was part of al-Qaida at the time of his capture. See, e.g., Al-Adahi v. Obama, 613 F.3d 1102, 1103 (D.C. Cir. 2010) (“The government may * * * hold at Guantanamo and elsewhere those individuals who are ‘part of’ al-Qaida, the Taliban, or associated forces.”), cert. denied, 131 S. Ct. 1001 (2011); accord Al Odah v. United States, 611 F.3d 8, 10 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1812 (2011); Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011); Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011); accord NDAA § 1021, 125 Stat. 1561 (“affirm[ing] the authority of the President to * * * detain” any “person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners”).

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Minneci v. Pollard and Contractor Liability

Thursday, January 26, 2012
by Steve Vladeck

Tomorrow morning, the en banc Fourth Circuit will hear oral argument in the two Abu Ghraib/contractor preemption cases about which we’ve blogged previously. Although there’s a serious question as to the Court of Appeals’ jurisdiction, the heart of the issue on the merits is whether victims of torture at Abu Ghraib can attempt to use state-law tort suits as the basis for recovering from federal contractors. The contractors’ central argument is that, under the Supreme Court’s Boyle decision, federal common law preempts state-law claims against contractors in situations in which the same claim (1) could not be brought against a federal officer for the same conduct thanks to exceptions to the FTCA; and (2) would interfere with unique federal interests if allowed to go forward (here, foreign affairs/national security). There are reasons to question whether this is a fair reading of Boyle (Judge Garland in his Saleh dissent offered persuasive arguments to the contrary), but that’s for another time. In this post, I want to ask a different question, which is whether the Supreme Court itself has now put a thumb on the scale in favor of state-law remedies…

(Continued)

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Cully Stimson Responds…

Thursday, January 26, 2012
by Steve Vladeck

My earlier post prompted the following reply from Cully Stimson, whom I thank for sending such a thoughtful response, and which I think it only fair to post in its entirety:

My friend Steve Vladeck takes me to task for what he believes is my point in my Heritage post.  He writes, “Stimson believes that only individuals who should be allowed to participate in said debate are those with the relevant real-world experience—and relevance means military service, litigating criminal cases or at least attending courts-martial, and nothing else.”

That is not what I believe at all.

But experience matters.  To be sure, there are people without relevant experience who become experts in various disciplines, including the law.  Steve is certainly an expert in a variety of areas of national security law, and so is Ben Wittes—whom he mentions in his post.

My point was not to suggest that, absent those specific experiences, one could not be an expert in military commissions.  I was simply attempting to point out that had Laura Pitter had any of those relevant experiences, she would have known instinctively about the differences and similarities about the two systems.

Steve rightly takes me to task for using the term “eager young know-nothings,” a phrase I should not have used.  And he rightly points out that there was no discussion about the Fifth or Sixth Amendment or Congress’s constitutional authority to subject “at least some of the offenses defined [by] the MCA to trial by military commission.”  He’s right, but that is because Pitter’s original post did not address those topics head on, and my post was a rebuttal to hers.

Finally, Steve whacks me for criticizing “those with other views.”  Again, I don’t take issue with “those with other views,” as I said in my post, but I do think that the public debate must be based on facts—-whether gained through relevant experience or otherwise.

Below the fold, I offer a few thoughts in reply…

(Continued)

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“Eager Young Know-Nothings”: A Response to Cully Stimson

Thursday, January 26, 2012
by Steve Vladeck

Further to the ongoing exchange (begun on Salon and continued on this blog here and here) between Laura Pitter from Human Rights Watch and Ben on the fairness vel non of the al-Nashiri military commission proceedings, Cully Stimson has weighed in over at “The Foundry” (the Heritage Foundation’s blog) with his own critique of Laura’s account. Separate from the substance of their disagreements over the procedural rules (which I won’t address because I wasn’t there and haven’t watched the video), Stimson closes with the following remarks:

Not one of the seven representatives [from "liberal" NGOs] had ever served in the military, served as a federal, state or local prosecutor, served as a judge, or even as a federal public defender.  Worse still, none had ever attended a regular court-martial. . . . These observers had no relevant real-world experience, and thus no frame of reference whatsoever upon which to gauge the fairness of the proceedings.

If we’re going to have an informed public debate on trial by military commission, organizations that are seeking to reform the process will at least have to send knowledgeable staff to take in the proceedings.  Today, with one side of the debate represented by eager young know-nothings, intelligent discussion is drowned out by misconceptions and mistakes.  Doing anything more than issuing corrections seems almost pointless.

In other words, notwithstanding his call for “a healthy, substantive and informed public debate about the use of military commissions,” Stimson believes that the only individuals who should be allowed to participate in said debate are those with the relevant real-world experience–and relevance here means military service, litigating criminal cases or at least attending courts-martial, and nothing else. Only then, presumably, would we be able to evaluate the fairness and lawfulness of the military commission proceedings.

(Continued)

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Mark Denbeaux on Latif

Thursday, January 26, 2012
by Benjamin Wittes

I don’t normally agree on detention policy matters with Seton Hall’s Mark Denbeaux–and there’s certainly some rhetoric in this piece in Jurist that I would never use and conclusiosn I do not reach. That said, I recommend it to those interested in why Latif is a big deal, a point I have made more than once myself.

Denbeaux’s article hinges on a factual predicate I cannot at this stage endorse–not because I think it wrong, but because I do know it to be correct: that the key intelligence report on which the entire decision depends “is a report from an interrogation of Latif that contains opponent-party admissions.” It is certainly true that in many cases, reports of prior detainee admissions are key evidence, and I have no reason to doubt that this may be the case here too. That said, it strikes me as more of a hypothesis at this stage than known reality. Over at the Empty Wheel blog, Marcy Wheeler offered these speculations about what the document may be:

I think the document in question is a report with the serial number TD-314/00684-02 that I take to be the CIA’s report of Pakistani claims about a significant number of detainees they turned over to the US in December 2001–basically the intake report for a chunk of detainees, possibly (given the time and place) turned over for bounty.

So let’s just say that I am agnostic about whether Denbeaux’s assumption is correct.

That said, I think his argument is interesting in any case and would certainly correctly describe other cases that would have to be decided under Latif even if it does not describe Latif itself. Here’s the nub of his argument:

Applying the presumption of accuracy, Latif is faced with a Catch-22. If the report is presumed accurate, then his only option is to attack the reliability of the non-government source, himself. Under the presumption of accuracy, Latif must show by at least by a preponderance of the evidence, that the interrogator did not accurately record or collect the information in the interrogation report. In order to do so, his attorneys would need to present evidence that, for practical purposes, is unavailable to them because there is little likelihood that the government will allow the attorneys to interview the interrogator and translator, and the existence (or continued existence) of a tape of the interrogation is highly doubtful. Instead, the sole evidence presented will be the detainee’s own testimony that he did not say what is in the report, and in doing so he puts his own credibility on the line. Unable to rebut the presumption, Latif will need to argue that the underlying truth of the report is in question. However, the underlying truth goes to Latif’s own admissions and statements. In order to attack his admission, Latif must argue either that he himself was not credible at the time (thus undermining his current credibility) or that other circumstances, such as torture or coercion, led to his admission (which the federal courts have been loath to acknowledge or consider in habeas proceedings).

If a document is presumed to be accurately recorded, all statements within the document are presumed to have been said. Assuming Latif cannot rebut the accuracy, the only argument he has is to say that what he is reported to have said is false in substance. He can no longer argue that he did not say those words; instead he must prove the words he said were lies. The presumption requires that Latif call himself a liar for saying something he did not say, because he cannot adjudicate the fact that he never uttered the words. And this conundrum does not just apply to Latif; all detainees have interrogation reports, and many detainees will face this problem. The majority glosses over the issue by discussing “non-government sources” rather than the reality that detainees, in order to prove their testimony is credible enough to rebut the presumption, must prove they were incredible in the first instance.

 

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Today’s Headlines and Commentary

Thursday, January 26, 2012
by Raffaela Wakeman

Let’s start with the Aghanistan news. There has been another suicide bombing in Helmand province, signifying the Taliban’s continued unwillingness to negotiate with the United States and causing three death and at least 30 injuries. Sayed Salahuddin writes from Kabul for the Washington Post. The AP tells us that Jack Idema–who was convicted of running a private jail in Afghanistan where he tortured terrorist suspects but was pardoned by Afghan President Hamid Karzai–has died of AIDs in Mexico.

On the heels of her husband’s being charged with leaking classified intelligence to the press, Heather Kiriakou has resigned from the CIA. Greg Miller at the Post has the story. Meanwhile, Josh Gerstein notes the New York Times‘s assertion that it did not provide information to the DOJ regarding the investigation into Kiriakou’s alleged extracurricular activities.

Slight confusion on the drone front as a consequence of defense budget cuts: the Wall Street Journal’s trio Adam Entous, Julian Barn and Siobhan Gorman (caution: paywall) report that the DOD is going to increase its drone inventory by 30% over the coming years; by contrast,  CNN Pentagon Producer Larry Shaughnessy reports that 30 Global Hawk drones would be grounded and replaced by U2′s.

Look Ma, no hands! Or human pilots, for that matter. Over at the LA Times, W.J. Hennigan covers testing of the X-47B, the Navy’s new drone, which will be flown autonomously by onboard computers.

Yuck! Kashmir Hill writes at Forbes about the recent discovery by a drone and its amateur pilot of sketchy (and frankly, gross) practices  of a meat-packing plant in the Lone Star State.

Papua New Guinea soldiers raided the country’s military headquarters today, placing the head of the military under house arrest and seating a new commander in his place. Matt Siegel reports on the bloodless mutiny at the New York Times.

Charles Hoskinson of the Politico writes about recent debates over arming medevacs, spurred by the severely delayed rescue of a wounded soldier as a consequence of a lack of an armed escort for the medevac helicopter.

In what appears to be a continuation of the U.S. strategy of strengthing its Pacific presence, Philippine officials are working to negotiate an expansion of U.S. presence in the country. Floyd Whaley covers the negotiations in Washington for the Times.

Mike Allen at the Politico says that  President Obama learned of the Navy SEALs’ successful rescue of pirate hostages and unmatched heroics about two hours before his SOTU address.

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Fordham Law’s Center on National Security’s Morning Brief, and Fordham Law’s new Cyber Brief. Email us noteworthy articles we may have missed at wakeman.lawfare@gmail.com and singh.lawfare@gmail.com.

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Book Event: “The Law of Counterterrorism” at Georgetown

Thursday, January 26, 2012
by Raffaela Wakeman

For all D.C. readers, this upcoming event at Georgetown University Law Center may be of interest.

The Georgetown Center on
National Security and the Law

Cordially invites you to a critical discussion of a newly-published book
by the ABA Section of Administrative Law and Regulatory Practice: “The Law of Counterterrorism”

Authors
John Altenburg, Jr.
former Fellow, International Assessment and Security Center
Author of “Military Commissions”

Jeffrey Breinholt
National Security Division, Department of Justice
Author of “The Revolution of Substantive Criminal Counterterrorism Law: “Material Support” and
its Philosophical Underpinnings”

 W. George Jameson
former Director, Office of Policy & Coordination, CIA
Author of “Intelligence and the Law: Introduction to the Legal and Policy Framework
Governing Intelligence Community Counterterrorism Efforts”

Commentators
Jennifer Daskal
Fellow, Georgetown Center on National Security and the Law

Stephen Vladeck
Professor, American University Washington College of Law

Moderated by
Marty Lederman
Associate Professor, Georgetown University Law Center  

3:15 pm Thursday, February 2, 2012
Hart Auditorium
Georgetown University Law Center
600 New Jersey Avenue
Washington, DC 20002 
Reception to Follow

RSVP to rsvp2@law.georgetown.edu.Please contact nationalsecurity@law.georgetown.edu with questions.

Hope to see Lawfare readers there.

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Today’s Headlines and Commentary

Wednesday, January 25, 2012
by Ritika Singh

The New York Times reports on NYPD police commissoner Raymond Kelly’s decision to personally cooperate with the prooducers of “The Third Jihad,” an anti-Muslim film that drew ”angry condemnation from Muslim and civil rights groups.”

The Associated Press informs us that Marine Staff Sgt. Frank Wuterich, “convicted of a single count of negligent dereliction of duty” for his part in the raid conducted by his squad in 2005 “that left 24 unarmed civilians dead” in Haditha, Iraq, has agreed to a plea deal. This AP article lists the charges that were filed against all the Marines involved.

In other Afghanistan news, Reuters says that U.S. and Afghan officials have “shown flexibility” in peace talks with Hizb-i-Islami, one of the country’s “most notorious” insurgent groups.

The Seattle Times reports that the UK trial of nine men “accused of plotting attacks on the U.S. Embassy and the London Stock Exchange” in December 2010 has begun.

The Times has the latest on the story on John Kiriakou, a CIA agent “accused of giving classified information to the news media.” The Post has more.

In Iran news, the Miami Herald states that the US and Europe have imposed new sanctions on the country–but “reiterated their readiness to resume talks with Tehran.” The Council on Foreign Relations has this piece by the Times’ Bill Keller, outlining “why a hawkish position concerning Iran is the most abused foreign policy issue in this presidential campaign year, and why a military option may be the best way to guarantee exactly what we are trying to prevent.”

The AP reports that Hysen Sherifi, a North Carolinian recently sentenced to prison for homegrown terrorism, plotted to behead the witnesses who testified against him from his jail cell.

And if you’ve always wanted to understand defense procurement, Time magazine’s Battleland blog has this Moment of Zen from a GAO report that will answer your all your questions.

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Fordham Law’s Center on National Security’s Morning Brief, and Fordham Law’s new Cyber Brief. Email us noteworthy articles we may have missed at wakeman.lawfare@gmail.com and singh.lawfare@gmail.com.

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A Closer Look at Lebron v. Rumsfeld (Padilla’s Bivens Suit)

Wednesday, January 25, 2012
by Larkin Reynolds

As Jack and Steve have both noted, yesterday the Fourth Circuit issued its opinion in Lebron v. Rumsfeld, the appeal seeking reversal of a district court’s decision denying Jose Padilla declaratory and equitable relief against several current and former U.S. officials.  While Steve has also posted some initial thoughts on the opinion here (and more is sure to come from others interested in this case), what follows is a claim-by-claim summary of the Fourth Circuit’s fairly lengthy panel opinion.

Alan recapped the briefs as well as the oral argument in the case a few months back.  Because these posts gave a pretty comprehensive snapshot of the procedural history, claims, and arguments, I’ll assume some reader familiarity with this case.  If you are very familiar with the background, skip the next three paragraphs.

Padilla’s experience in the U.S. federal court system began with the habeas petition he filed in the Southern District of New York following his May 2002 arrest at O’Hare International Airport in Chicago.  Those habeas claims, which challenged the legality of Padilla’s military detention at the Naval Consolidated Brig in South Carolina were, however, eventually made moot (after being re-filed in the District of South Carolina) when authorities transferred Padilla to civilian custody while he stood trial on criminal charges.  The trial resulted in his conviction on several terrorism-related charges.  Last November, the Eleventh Circuit partially affirmed the trial court’s decision; it upheld the conviction but reversed the lower court on the issue of sentencing (finding the trial court’s sentence of 208 months to be too short) and remanded it for rehearing on that issue.  (Bobby has a post about this decision here.)

(Continued)

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Parwan and Al Maqaleh

Wednesday, January 25, 2012
by Larkin Reynolds

As Ben pointed out yesterday, the Washington Post report about the possibility that non-Afghan detainees held at Parwan will be repatriated to their home countries is significant news. Apart from its import for U.S. detention policy generally, the development, if true, may have bearing on the factual underpinnings in Al Maqaleh v. Gates, the case examining whether the Suspension Clause extends to non-Afghan detainees held in the U.S.-run detention facilities in Afghanistan. I’ve discussed this case in a few prior posts.

The Post reports:

administration is considering the repatriation of most, if not all, of the non-Afghan detainees held at the main American-run prison in Afghanistan, an effort to oversee their transfer before U.S. officials relinquish control of the facility, according to administration officials.

The foreign prisoners, who number close to 50, were in some cases picked up on the battlefield in Afghanistan and in others detained in third countries and taken to the prison by the CIA, according to U.S. and foreign officials.

The 50 prisoners discussed in the article undoubtedly include the three petitioners whose habeas petitions are currently pending before Judge Bates—Fadi Al Maqaleh, Amin Al-Bakri, and Redha Al-Najar.  If the United States moves the non-Afghan detainees from Parwan, as the article suggests it might, the Government could file a supplemental motion to dismiss the detainees’ petitions on the theory that the district court would then lack a justiciable case or controversy under Article III.  (Continued)

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Laura Pitter Responds

Wednesday, January 25, 2012
by Benjamin Wittes

Laura Pitter of Human Rights Watch responds to my criticisms of her coverage of the Al Nashiri motions hearing:

Benjamin Wittes is correct in concluding that I (and Human Rights Watch) share his desire to see fair trials for Guantanamo detainees. My criticisms, however, were not directed at the conduct of the military judge or at the attorneys who participated in the Nashiri military commission proceedings. Rather, my aim was to point out that, contrary to many public pronouncements made about the military commissions, they do not provide the same procedural protections to defendants as do federal court trials. Those differences were on display at Guantanamo last week.

1) My concern with the differences in physical layout and access to the courthouse is that these limit public scrutiny of the proceedings. Access to military commissions via Closed Circuit TV (CCTV) is a red herring. Those watching via CCTV do not experience the trial the way they would if they walked into federal court to observe it (as many members of the public did for the Ghailani trial in New York). Trial participants–judge, jury, attorneys and defendant–should have exposure to the public as a constant reminder that what they do is part of the broader US legal process. Furthermore, those watching remotely do not have the same access to individuals involved in the proceedings as do those present at Guantanamo. The press, viewing by CCTV for example, cannot ask questions of attorneys at press conferences after each day’s events where a summary and commentary on what occurred are provided. They may submit questions well in advance of the conference but not afterwards. And while CCTV is an improvement in transparency, it is also important to note that the trials of the last three detainees prosecuted by the Obama administration in Guantanamo were not broadcast over CCTV to the press or public (nor were those under the Bush administration).

2) There are no real speedy trial rights for detainees held at Guantanamo. Citation to the Ghailani case proves this point. Ghailani spent four years in CIA custody before being transferred to Guantanamo in 2006 and then to federal court in 2009. The judge in his case ruled that the time Ghailani spent in CIA custody and at Guantanamo did not count for speedy trial purposes unlike in normal federal court proceedings where time spent in government custody would count. Human Rights Watch does not “urge[] more trials in federal court featuring such delays.” If other detainees are transferred from Guantanamo to federal court, they may regrettably face a situation similar to Ghailani’s, whose pretrial time in US custody was not considered a violation of speedy trial rights by the district judge. The fact that the federal court system bent to accommodate the government’s previous illegal conduct, however, does not suggest that the remedy is trials that are even less fair in a military commission system. The point is that civilian law enforcement, including civilian pre-trial detention and trials in federal court, protects the rights of defendants (those guilty and innocent) in a way that military detention and trial by military commission does not. (Continued)

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Today’s Headlines and Commentary

Tuesday, January 24, 2012
by Raffaela Wakeman

As Bobby and Steve have already discussed, John Kiriakou, the author of “The Reluctant Spy: My Secret Life in the CIA’s War on Terror” has been indicted for allegedly leaking classified information to the media. Read Charlie Savage’s New York Times piece here, Warren Richey at the Christian Science Monitor covers the news here, and Josh Gerstein notes that Rep. Pete King has requested that the DOJ name the journalists with whom Kiriakou might have shared classified information.

Steve has already commented upon the fact that Jose Padilla has lost his 4th Circuit appeal. Here are reports from the ABA Journal, from the AP, and analysis by Lyle Denniston over at SCOTUS Blog.

Last week, we mentioned that the UK had requested interviews of former IRA members from Boston College. On Friday, Judge William Young ordered BC to turn over the transcripts to U.S. prosecutors, who will in turn give them to investigators.

Spencer Ackerman at Wired’s Danger Room blog writes that the DHS is soliciting industry feedback on a “Wide Area Surveillance System,” which could collect video of almost 4 square miles of American soil at once.

Ben posted earlier about the fact that the U.S. is considering repatriating non-Afghan detainees being held in Bagram before the facility is officially transferred to Afghan oversight. Read Peter Finn and Julie Tate’s Washington Post story.

Wired UK covers the collaborative effort between France, Sweden, Italy, Spain, Greece and Switzerland that culminated in a European-made UAV, which, after it is tested, won’t go into combat or be produced. According to the company’s website, it ‘represents a triple “first” for the aerospace industries of European countries: first stealth combat aircraft, first UCAV developed in co-operation and first combat aircraft entirely designed and developed on a virtual plateau.’ In case you’ve been missing all the coverage on drones, this video over at Gizmodo will give you the 4-1-1.

Pakistan’s military released a report placing all of the blame on NATO for the November attack that killed 24 Pakistani soldiers. This contradicts the results of a U.S. investigation finding that the U.S. and Pakistani officials share blame. Charles Hoskinson at the Politico writes, as does Karin Brulliard at the Post, and Declan Walsh at the Times.

Read Today’s LWOT here. For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Fordham Law’s Center on National Security’s Morning Brief, and Fordham Law’s new Cyber Brief. Email us noteworthy articles we may have missed at wakeman.lawfare@gmail.com and singh.lawfare@gmail.com.

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Non-Afghans at Parwan to be Repatriated

Tuesday, January 24, 2012
by Benjamin Wittes

This story in today’s Washington Post won’t get the attention it would garner if it dealt with Guantanamo, but put it in the category of Very Important if True. According to Post reporters Peter Finn and Julie Tate,

The Obama administration is considering the repatriation of most, if not all, of the non-Afghan detainees held at the main American-run prison in Afghanistan, an effort to oversee their transfer before U.S. officials relinquish control of the facility, according to administration officials.

The foreign prisoners, who number close to 50, were in some cases picked up on the battlefield in Afghanistan and in others detained in third countries and taken to the prison by the CIA, according to U.S. and foreign officials.

. . .

In early January, Afghan President Hamid Karzai called on the United States to turn Parwan over to his government. U.S. officials had said two years ago that they expected the prison would be turned over in early 2012.

While Karzai apparently regarded that as a hard deadline, U.S. officials said it was always contingent on Afghanistan’s “demonstrated capacity” to manage the facility.

The prison now holds approximately 2,600 prisoners, up from the 600 held in 2009.

The reason it is important is that if one really wants the United States out of the detention business one ignores Parwan at considerable peril. While people make a fetish of Guantanamo, the Parwan population is–as this story reflects–much larger, and the problems associated with at least some of its population are quite intractable too. Yet here we see a two-pronged strategy for dealing with it: turning over the facility itself to the Afghans and repatriating most or all of the non-Afghan detainees. Both prongs of this strategy are going to be difficult to accomplish, and I am far from convinced that either can be navigated successfully. That said, the strategy itself is interesting.

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Drone Strikes and U.S. Citizens: The White House Opts for the Half-Monty Over the Full-Harold

Monday, January 23, 2012
by Robert Chesney

Daniel Klaidman at Newsweek, whose forthcoming book on the Obama Administration’s counterterrorism policies promises to be must-read material, reports that the decision has been made to go public with some form of defense of the legality of the al-Awlaki strike.  It seems Attorney General Holder will be tasked with giving the speech that will do so, something on the model of Harold Koh’s ASIL speech a while back. (Daniel reports that the venue for the AG’s speech has not yet been selected; we recommend a guest-post here at Lawfare, FWIW).  Speaking of Harold, you may be wondering what I meant in the post title about the “Full-Harold.”  Suffice to say that Daniel’s report depicts a spirited internal debate about how specific to be in referencing al-Awlaki as such.  Here’s a taste, but be sure to click-through to read the whole thing:

It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as “the full Harold.”

Note that the article suggests that one factor counseling hesitation was concern over what a more robust and public defense would do in terms of exposing the government to greater disclosure obligations under FOIA (and, presumably, in terms of weakening the grounds for asserting the state secrets privilege in the face of civil litigation).  Nice illustration of the tension between proactive disclosures and preserving litigation positions.  Note: a correspondent points out that DOJ has a FOIA deadline coming up (Feb. 1) in relation to all of this, which may be related. 

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Today’s Headlines and Commentary

Monday, January 23, 2012
by Ritika Singh

The Islamic militant group Boko Haram has claimed responsibility for a string of terrorist attacks that killed more than 150 people in Nigeria. The New York Times, CNN, and BBC have the story.

Daniel Klaidman at Newsweek reports that the Obama administration is “planning to reveal publicly the legal reasoning behind its decision to kill the American-born leader of al Qaeda in the Arabian Peninsula, Anwar al-Awlaki.” John C. Dehn, Assistant Professor in the Department of Law at the United States Military Academy at West Point comments on this development at Opinio Juris.

Warning to would-be assassins: If you’re thinking of taking out President Obama, you probably don’t want to write a newspaper column about it. CNN informs us that “Andrew Adler, owner and publisher of the Atlanta Jewish Times, wrote a January 13 column about the threat of Iran to Israel.” Apparently one of his solutions to counter the Iranian regime is “a hit on a president in order to preserve Israel’s existence.” Now the Secret Service is “looking into” the matter.

Voice of America reports that the U.S special envoy for Afghanistan and Pakistan, Marc Grossman, “has urged Taliban insurgents to denounce ties to international terrorists and support Afghan peace initiatives” during “two days of extensive talks with Afghan leaders in Kabul.” According to the Lebanese Daily Star, President Karzai met with Afghan insurgents over the weekend in an attempt to assert his authority over the peace talks.

Dan Morse at the Washington Post describes the dismal state of affairs in Iraq, as detailed in Human Rights Watch’s recently-released World Report 2012. Sarah Leah Whitson, Middle East director at Human Rights Watch has the following money quote:

Iraq is quickly slipping back into authoritarianism as its security forces abuse protesters, harass journalists and torture detainees. . . . Despite U.S. government assurances that it helped create a stable democracy, the reality is that it left behind a budding police state.

CBS News tells us that Navi Pillay, the UN High Commissioner for Human Rights, says that President Obama’s failure to close Guantanmo Bay is a “clear breach of international law.”

As Bobby reported here, the FBI arrested an Uzbek by the name of Jamshid Muhtorov at Chiacago’s O’Hare International Airport. Muhtorov was planning to go overseas to fight for the Islamic Jihad Union, says the Chicago Tribune.

From the Department of Drones: The Times reports that a drone strike has killed a senior Al Shabab commander in Somalia. And another drone stike has killed at least five suspected militants, says the BBC. And Peter W. Singer of Brookings argues in this op-ed in the New York Times that drones are “transforming the way our democracy deliberates and engages in what we used to think of as war. ”

National Public Radio has this story on the CIA’s Open Source Center, whose role is to analyze the massive volume of information on social networking sites in order to predict big world events.

Fareed Zakaria interviewed President Obama on Iran, Iraq, Afghanistan, China and a host of other foreign policy issues for Time magazine. Read the complete transcript here.

Hat tip to a Lawfare reader: If you’ve been wondering what the source of all the “mysterious explosions” at Iranian nuclear facilities have been, today’s Moment of Zen has the answer (click “CC” for subtitles if your Hebrew is subpar).

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Fordham Law’s Center on National Security’s Morning Brief, and Fordham Law’s new Cyber Brief. Email us noteworthy articles we may have missed at wakeman.lawfare@gmail.com and singh.lawfare@gmail.com.

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Supreme Court Holds that Installing GPS Tracker on Vehicle Is a Search

Monday, January 23, 2012
by Robert Chesney

[Update: I've revised the text here to show that the Court did not actaully say a warrant is always required in such cases] What a day.  Now we have a Supreme Court decision (United States v. Jones) holding that when the government installs a GPS tracker on a car, it is a search within the meaning of the Constitution (on the theory that the Fourth Amendment requires a warrant not only in scenarios involving a reasonable expectation of privacy, but also where a search involves a “trespass upon the areas (‘persons, houses, papers, and effects’)” that the Fourth Amendment enumerates–and that this was in substance a search of an effect).  That ended the matter in this instance, since the government had waived the argument that in this context the search was a reasonable one even absent a warrant.

Note that the case involved a criminal narcotics investigation.

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Readings: Ashley Deeks on the “Unable or Unwilling” Test

Monday, January 23, 2012
by Kenneth Anderson

Ashley Deeks (formerly senior State Department lawyer and currently a fellow at Columbia Law School) has posted to SSRN a new piece appearing in Virginia Journal of International Law, ‘Unwilling or Unable’: Toward an Normative Framework for Extra-Territorial Self-Defense.  This article is of very considerable importance for  those seeking to advance a view of self-defense that is broadly within the traditional US framework.  Deeks’ methodological approach in the article, while asserting her own views, reflects  a methodology that is at once informed by formal law and pragmatic concerns of states, one traditionally associated with the State Department and its jurisprudence.  Within that methodological tradition, she writes as an independent scholar to offer, as the Abstract says, the “first sustained descriptive and normative analysis” of the “unwilling or unable” test of when it is lawful to attack non-state actors, including terrorist groups, in the territory of some other state.

Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to respond with force to those attacks, it must decide whether to use force on the territory of another state with which it may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is “unwilling or unable” to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test’s lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when trans-national armed violence is pervasive.

This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the “unwilling or unable” test arises in international law as part of a state’s inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test’s deep roots in neutrality law, while simultaneously illustrating the lack of guidance about what inquiries a victim state must undertake when assessing whether another state is “unwilling or unable” to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and procedural factors that should inform the “unwilling or unable” inquiry. It then applies those factors to a real-world example – Colombia’s use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia – to explore how the use of these factors would affect the involved states’ decision-making and the evaluation by other states of the action’s legality. The Article argues that the use of these factors would improve the quality of state decision-making surrounding the use of force in important substantive and procedural ways.

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An Exculpatory Footnote to the Kiriakou Indictment

Monday, January 23, 2012
by Steve Vladeck

I just wanted to add one point to Bobby’s thorough post on the Kiriakou indictment from earlier today. As Bobby quoted from the DOJ press release:

According to the complaint affidavit, the investigation determined that no laws were broken by the defense team as no law prohibited defense counsel from filing a classified document under seal outlining for a court classified information they had learned during the course of their investigation. Regarding the 32 pages of photographs that were taken or obtained by the defense team and provided to the detainees, the investigation found no evidence the defense attorneys transmitting the photographs were aware of, much less disclosed, the identities of the persons depicted in particular photographs and no evidence that the defense team disclosed other classified matters associated with certain of those individuals to the detainees. The defense team did not take photographs of persons known or believed to be current covert officers. Rather, defense counsel, using a technique known as a double-blind photo lineup, provided photograph spreads of unidentified individuals to their clients to determine whether they recognized anyone who may have participated in questioning them. No law or military commission order expressly prohibited defense counsel from providing their clients with these photo spreads.

A lot more will surely be said about this case going forward. But given the very public brouhaha when the story initially broke (and demands for immediate investigation re: whether defense lawyers at Guantánamo Bay compromised the identities of covert CIA officers), it seems equally important to recognize, as the DOJ did today, that the detainee lawyers had nothing at all to do with the disclosures…

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Fourth Circuit Throws Out Jose Padilla’s Bivens Suit

Monday, January 23, 2012
by Steve Vladeck

Jack just flagged the Fourth Circuit’s unanimous 39-page opinion throwing out Lebron v. Rumsfeld–one of the two pending Bivens suits brought by Jose Padilla arising out of his detention (and alleged abuse) as an “enemy combatant.” Although Padilla’s allegations (if true) would have stated serious violations of his constitutional rights arising out of his long-term incommunicado detention as an “enemy combatant” (and his alleged abuse while in custody), the panel (Wilkinson, Motz, Duncan) declined to recognize a Bivens remedy.  There’s a lot to say about Judge Wilkinson’s disturbing opinion for the court–and I’ll try to explain why it’s disturbing below the fold.

(Continued)

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Fourth Circuit Affirms Dismissal in Rumsfeld v. Padilla

Monday, January 23, 2012
by Jack Goldsmith

Opinion here.  Commentary later, hopefully.

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Email Surveillance Leads to Material Support Arrest in Chicago

Monday, January 23, 2012
by Robert Chesney

Jamshid Muhtorov is under arrest, facing material support charges predicated on the claim that he swore allegiance to an Uzbekistan group known as the Islamic Jihad Union, and that he attempted to travel abroad to join them.  The complaint and supporting affidavit are here.  From the DOJ press release: (Continued)

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CIA Officer Prosecuted for Leaking Classified Info to Journalist in Connection with GTMO Interrogations

Monday, January 23, 2012
by Robert Chesney

Oh boy.  Former CIA officer John Kiriakou has been arrested and charged with leaking classified to a journalist concerning interrogation at GTMO, including the identity of persons involved in interrogation sessions (information which was given to the defense team, allegedly, and may have resulted in surveillance photographs being taken, photos that in turn may have ended up in the possession of high-value detainees at GTMO).  Kiriakou already was relatively famous based on an ABC news interview in which he gave details about the waterboarding of Abu Zubaydah, and has since been something of a public figure in commentary on interrogation practices.

The criminal complaint against him is here, along with the underlying affidavit.  From the DOJ press release:

(Continued)

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