Latest in Terrorism Trials: Legislative Development
Buried at the end of the Consolidated Appropriations Act signed by President Obama on December 18 is a long and complex provision that creates a new “United States Victims of State Sponsors of Terrorism Fund.” According to articles in the New York Times and
James Connell III, lawyer for 9/11 accused Ammar al-Baluchi, had this to say today:
"The CIA and its defenders are using Mr. al Baluchi as a scapegoat for its illegal and reprehensible use of torture," said James Connell, civilian attorney for Mr. al Baluchi. "The United States spent incredible amounts of money, energy, and American credibility, and now the CIA is pointing at Mr.
My very first Lawfare post, back in December 2011, focused on the messy constitutional question raised by United States v. Ali—a case then pending before the Court of Appeals for the Armed Forces that raised the constitutionality of subjecting civilian military contractors to military, rather than civilian, trials.
The morning’s second session picks up where the first left off: with Bin Attash attorney Cheryl Bormann, with her witness, Air Force Col. Karen Mayberry, the Chief Defense Counsel, and with a discussion on the deteriorating information technology and defense confidentiality situations, in late spring of 2012.
President Obama made two important announcements about aspects of Guantanamo and its detainees in his speech today. These are worth flagging before I pivot and harp on the big problem with the President's comments about the base and those held there.
The first important announcement came in this paragraph:
Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO. . .
Hmmmm.
From Harold Koh's speech to the Oxford Union: Congressional transfer restrictions with respect to Guantanamo detainees "must be construed in light of the President’s authority as commander-in chief to regulate the movement of law-of-war detainees, as diplomat-in-chief to arrange diplomatic transfers, and as prosecutor-in-chief to determine who should be prosecuted and where."
Wells is exactly right--and Senators Levin and Graham are exactly wrong--about the implications of last night's Senate vote approving Senator Feinstein's amendment to the FY2013 National Defense Authorization Act.
Today, the U.S. Court of Appeals for the District of Columbia Circuit filed a per curiam order in the case of Bahlul v. United States, ordering the parties to file briefs addressing the implications of the court's decision in Hamdan II. The three-judge panel in Bahlul is composed of Judges Karen LeCraft Henderson, Judith Rogers, and David Tatel. Here's the text of the order:
[UPDATE: A reader points out that when discussing this subject back in 2011, the question had arisen as to whether this was indeed the best reading of 2339B(d) for the 1996-2004 period. I had responded that the issue was indeed more complex than I had at first suggested, for the following reason: The actus reus clause of the statute (2339B(a)) was jurisdictionally limited as I suggested, yet there was a separate clause that rather incongruously referred nonetheless to extraterritorial jurisdiction
I'm happy to report that I've recently completed drafting an article that has been much on my mind for the past few years. Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism (Michigan Law Review, forthcoming 2013) is now posted to SSRN. In it, I argue that (i) there is a widespread perception that the legal framework for detention and targeting has reached a point of relative stability thanks to a remarkable wave of interbranch and inter-party consensus since 2008; (ii) this facade depends almost en