Georgetown Security Law Commentary

Guantanamo tribunal may resume

09/29/11: The LA Times reports that the Guantanamo Bay war crimes tribunal may stir back to life next month after the Pentagon filed capital charges Wednesday against a Saudi prisoner in the 2000 attack on the U.S. destroyer Cole in a Yemeni port.

Scholarship: “The Central Intelligence Agency's 'Family Jewels': Legal Then? Legal Now?”

“The Central Intelligence Agency's 'Family Jewels': Legal Then? Legal Now?” Indiana Law Journal, Vol. 84, p. 637, 2009 Daniel L. Pines.

Scholarship: “Our Nation Unhinged: The Human Consequences of the War on Terror”

“Our Nation Unhinged: The Human Consequences of the War on Terror” (University of California Press, May 2009) by Peter Jan Honigsberg (University of San Francisco School of Law.

Scholarship: "Europe, Guantanamo and the 'War on Terror': An Exchange"

In Survival (subscription), Sibylle Scheipers discusses the role of US President Barack Obama's moves to reform the detention system as a step towards renewing close transatlantic ties and facilitating transatlantic cooperation. But she also argues that it poses a difficult challenge to Europeans. Nigel Inkster, Robert Whalley, and Matthew Waxman comment, and Scheipers responds.

Scholarship: "Boumediene's Quiet Theory: Access to Courts and the Separation of Powers"

"Boumediene's Quiet Theory: Access to Courts and the Separation of Powers" (Notre Dame Law Review, Vol. 84, 2009) by Stephen I. Vladeck (American University Washington College of Law). At the core of Justice Kennedy's majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers. At least where habeas corpus is concerned, it seems clear from Boumediene that the purpose of judicial review appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants. This article takes on this "quiet theory" behind Kennedy's opinion and asks whether it might have applications beyond the unique context of habeas corpus, especially with regard to the more general constitutional right of access to the courts. Access to courts is as much about protecting the courts as it is about vindicating the individual rights of litigants. Thus, going forward, Boumediene might do more than just answer the circumstance-specific question about habeas corpus rights for non-citizens detained as "enemy combatants"; it might provide the starting point for a new theory of access to the federal courts in particular that could allow us to rethink a number of tenets of federal courts doctrine.

Scholarship: Recent articles on torture

"Torture, Truth Serum, and Ticking Bombs: Toward a Pragmatic Perspective on Coercive Interrogation" (Loyola University Chicago Law Journal, 2008) Kenneth Lasson (University of Baltimore School of Law) The 'War on Terror' has prompted a great deal of discussion about the use of torture as a means of extracting information from those suspected of having perpetrated past acts of violence or planning future ones. It seems increasingly difficult to adhere to international norms governing a nation's moral and legal obligations to protect its citizens from grave danger while continuing to support individual freedoms. Among the more difficult questions to emerge from those that were far-fetched (if not unthinkable) just a few decades ago is how to handle the so-called ticking-bomb scenario. As terror organizations grow in size and complexity, uncovering terrorist plans by interrogating a group member has become critical, and the need to gather intelligence in order to save lives increasingly urgent.

"Do Norms Reduce Torture?" (Journal of Legal Studies, Vol. 38) by Michael J. Gilligan (New York University, Department of Politics) and Nathaniel H. Nesbitt. This article tests the proposition that norms alter state behavior with respect to the expanding international norm against torture from 1985 through 2003. It finds no evidence that the spreading of the international norm against torture, measured by the percentage of countries in the world that have acceded to the UN Convention Against Torture, has lead to any reduction in torture according to a variety of measures. HT to National Security Advisors.

"The Jaundiced Eye of the Beholder: The Case for an Objective Definition of Torture" (Journal of Transnational Law and Contemporary Problems, Forthcoming) by Michael W. Lewis (Ohio Northern University - Pettit College of Law). After discussing current misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, this article describes the reality of intelligence collection. It then reviews the wide range of competing definitions of torture; those provided by international courts, those proposed by commentators and those implemented by governments around the world. Some proposed definitions are so broad that practically any form of interrogation would be illegal, others so narrow as to allow for a wide variety of shockingly brutal techniques.  People or governments under pressure from terrorist attacks view the definition of "severe pain and suffering" differently from those outside such a cauldron. The excesses that follow terrorism have generally later been regretted, but such regrets do little to comfort the victims of these excesses. This article proposes a solution. To prevent the definition of "severe pain and suffering" from changing between September 10 and September 12, it recommends tying the definition to pre-existing standards that are difficult to manipulate and internally self-policing.  HT to National Security Advisors.

Why the Obama administration is right not to argue Al-Marri in the Supreme Court

Today, the Obama administration unsealed the criminal indictment of Ali Al-Marri, the only man being held in indefinite military detention as an enemy combatant on US soil.  Until yesterday, the case was scheduled to be argued before the Supreme Court, and would have likely answered one of the biggest remaining questions in the War on Terror cases: who exactly is an enemy combatant.  

The administration has requested that the Supreme Court dismiss the pending case, and when the case is dismissed, Al-Marri will be transferred from military detention to the custody of the DOJ, where he will be prosecuted using American standards of justice.  Attorney General Eric Holder said today, "In this administration, we will hold accountable anyone who attempts to do harm to Americans, and we will do so in a manner consistent with our values."  The change from indefinite military detention to criminal prosecution is applauded by many, including Al-Marri’s at the ACLU, but interestingly, the ACLU opposes the administration’s motion to dismiss the pending Supreme Court case.

There are three potential reasons the Obama administration wisely chose not to argue Al-Marri in the Supreme Court.  First, a government win in this historic case would create the wrong legacy for the Obama administration, and losing it wouldn’t be much better. Second, Obama has smartly elected to argue this issue on a record of his own making, not that of the Bush administration.  Third, not arguing the case sends the right message to the world: the Obama administration adheres to the rule of law.

How important is this case? On the surface, it is only about one person – Al-Marri – who is the only person declared an enemy combatant and held in indefinite military detention on US soil.  But the legal issue at stake, who precisely is an enemy combatant, is the lynchpin of not only Al-Marri’s case, but all the War on Terror detention cases, including detainees at Guantanamo.  Moreover, it affects every American citizen, as the law that applies to Al-Marri will apply to us too: if the Supreme Court holds that Al-Marri can be declared an enemy combatant and held indefinitely with minimal due process, here in America, the same will be true for all Americans.

The first reason Obama may have chosen not to argue Al-Marri, is that a Supreme Court opinion in the case, no matter what the outcome is, would be a historic opinion and an early harbinger of Obama’s legacy in this very difficult and contentious intersection of law, war, detention, and civil liberties. Predicting the Supreme Court’s outcome is tricky at best, but if the administration prevailed and the Supreme Court affirmed Al-Marri’s military detention, the victory would have been won by re-arguing the Bush administration’s positions – the very positions against which Obama campaigned. That simply cannot be the legacy he wishes to leave, and arguing this case leaves no other option.  If the government were to lose, well, he will have pursued Bush’s positions, and lost.  Perhaps better for his legacy in the long run, but hardly a desirable outcome.

Second, letting go of this case would permits Obama to take the issue up in the Supreme Court on a record of his own making.  The record in Al-Marri may not have been looked kindly upon by the Justices, who have become understandably skeptical of the Bush administration’s legal positions. The critical issue in the case, the definition of enemy combatant, is pending in many District Court habeas cases, where they will be fully litigated. If it happens that the District Court cases are appealed up to the Supreme Court, then Obama can argue the case on a record he made himself; his administration need not be put in the undesirable position of defending Bush administration policies in the highest court of the land.

Third, and most importantly, not arguing Al-Marri sends the right signal to the world: Obama has broken from the Bush administration, and shown that the new DOJ doesn’t play duck and run in criminal prosecutions, as the Bush administration did in Al-Marri. Putting Al-Marri in a criminal trial demonstrates Obama’s fidelity to the rule of law and the American justice system that he has said he will use for terrorism prosecutions, even if later chooses to hold some other terrorist suspects in military detention

Despite how welcome the Supreme Court’s guidance would be on the definition of enemy combatant to those who follow and litigate the issue, the Obama administration has made the right move. Whether it is because of the legacy arguing this historic case would create, the fact that he will litigate this issue and can argue it in the Supreme Court on merits of his own making, or because he wanted to demonstrate to the world that his administration adheres to the rule of law, today Obama has taken an important step towards a corrected litigation strategy in the War on Terror cases. Change has come to the War on Terror.

Scholarship: "National Security Courts: Star Chamber or Specialized Justice?"

"National Security Courts: Star Chamber or Specialized Justice?" Mark R. Shulman, Pace University School of Law. ILSA Journal of International and Comparative Law, Vol. 15, No. 2, Spring 2009. In October 2008, the author moderated a panel discussion addressing the utility of establishing a new national security court system for administering the detention and trial of terrorist suspects. The discussion featured comments by  Richard Zabel, co-author of In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts; Glenn L. Sulmasy, author of the forthcoming book, The National Security Court System: A Natural Evolution of Justice in an Age of Terror; Hina Shamsi, author of various works on torture and extraordinary rendition; Gabor Rona, who has written extensively on the application of international human rights and humanitarian law to terrorism; and Matthew C. Waxman, author of "Detention As Targeting: Standards of Certainty and Detention of Suspected Terrorists."

Scholarship: "Viewing Hamdan Through a Military Lens"

"Viewing Hamdan Through a Military Lens" by Geoffrey S. Corn South Texas College of Law Oklahoma City University Law Review.  The Supreme Court's decision in Hamdan v. Rumsfeld provided an important reaffirmation of something military operational lawyers had always known: treating captured enemies humanely is an essential component of preserving the demarcation line between disciplined military operations and battlefield anarchy. In rejecting the selective invocation of the laws of war, the Supreme Court seemed to understand and confirm that this area of law reflects a delicate balance between authority and obligation, a principle reflected in longstanding Department of Defense policies. This brief essay will address this aspect of the opinion, and how the Court's impetus for cooperative military policy ultimately strengthened the head of the government.

Scholarship: "Closing the Guantanamo detention center: Legal issues"

"Closing the Guantanamo Detention Center: Legal Issues" by CRS legislative attorneys Michael John Garcia, Elizabeth B. Bazan, R. Chuck Mason, Edward C. Liu, and Anna C. Henning summarizes the legal issues that would arise in the event of executive or legislative action to close Guantanamo Bay detention camp.