Georgetown Security Law Commentary

Why Pakistan supports the Haqqani network: Fear for its own security

09/29/11: The Miami Herald reports that while, to American officials, the Haqqani network is a criminal syndicate with al-Qaida and Taliban ties that is frequently responsible for deadly attacks on US troops in Afghanistan.  To Pakistan, the picture is much more complex. Pakistani support for the Haqqanis is tied to Islamabad's fears for its own future security, and Pakistan is unlikely to surrender that support no matter how much pressure the US applies.

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: “International Criminal Trials for the Guantanamo ‘Hard Cases’”

“International Criminal Trials for the Guantanamo ‘Hard Cases’” (Harvard International Review) by Maj. Shane Reeves (The Judge Advocate General’s Legal Center and School, Int’l & Operational Law Dep’t)

Scholarship: "Institutional Legitimacy and Counterterrorism Trials"

"Institutional Legitimacy and Counterterrorism Trials” by Gregory S. McNeal (Pennsylvania State University - Dickinson School of Law)

Scholarship: "Closure, Caution and the Question of Chilling: How Have Australian Counter-Terrorism Laws Affected the Media?"

"Closure, Caution and the Question of Chilling: How Have Australian Counter-Terrorism Laws Affected the Media?" (Media & Arts Law Review, 2009) by Lawrence McNamara (University of Reading - School of Law). This article considers the proposition that Australia's counter-terrorism laws restrict the ability of the media to report on matters related to terrorism and security. It begins by examining the potential effects of these laws on the media's ability to access and publish information about terrorism offences. It then presents the findings of a project that explores the actual effects of the laws. It argues that counter-terrorism laws have had substantial direct effects on court reporting and, while it cannot yet be said that there is a chilling effect, a very worrying range of issues remains and the laws have indirect effects on the media which are detrimental and complex.

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.

Scholarship: "Combatants and the Combat Zone", “The Detention of Civilians in Armed Conflict”

"Combatants and the Combat Zone"  (University of Richmond Law Review, forthcoming) by Mary Ellen O'Connell (Notre Dame Law School).  This article discusses President George W. Bush's claim of wartime privileges to kill without warning and detain without trial those suspected of association with terrorist organizations. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender. 

"The Detention of Civilians in Armed Conflict" (American Journal of International Law, forthcoming) by Ryan Goodman (Harvard Law; NYU Law). In the armed conflict between the United States and Al Qaeda, the legality of the government’s detention scheme has been mired in confusion. The lack of clarity is especially acute with respect to the substantive criteria for defining who may be detained. A crucial determinant of the lawfulness of the scheme is whether international humanitarian law (IHL) permits the preventive detention of civilians, or particular groups of civilians. Part I maps the contemporary IHL regime, discussing features that pertain to detention of particular individuals in armed conflict. Part II analyzes conceptual errors involving U.S. detention law and practice. And, part III examines the humanitarian and security implications of the types of errors made by proponents and opponents of U.S. detention policy.  HT to National Security Advisors.

Scholarship: "Counterinsurgency, the War on Terror, and the Laws of War"

"Counterinsurgency, the War on Terror, and the Laws of War" (Virginia Law Review, Forthcoming) by Ganesh Sitaraman (Harvard Law School).  This article evaluates the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected from military realities in multiple areas - from the use of non-lethal weapons to occupation law. The shift from a kill-capture to win-the-population strategy not only expands the set of topics legal scholars interested in contemporary conflict must address but also requires incorporating the strategic foundations of counterinsurgency when considering familiar topics in the war on terror legal debates.

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."