Emerging Issues in International Humanitarian Law: Santa Clara Law

On Friday February 3 and Saturday February 4th the Santa Clara Law school will host a symposium on International Humanitarian Law.  I will be serving as a moderator for Panel 3.  The full schedule appears below, and more information about the symposium can be found here.

The 2012 Santa Clara Journal of International Law Symposium- Emerging Issues in International Humanitarian Law

Friday, February 3 and Saturday, February 4, 2012

HOSTED BY:
Santa Clara University School of Law
Santa Clara Journal of International Law
Center for Global Law & Policy

Symposium Schedule

(more…)

Bush v. Obama on Counterterrorism Policy

On Tuesday, October 4th I will be part of a panel at Mercer University School of Law.  The panel discussion will explore the differences between President Obama and President Bush’s national security policies, specifically as they relate to counterterrorism.  Some issues we will explore are:

  1. Commentary on how successful the current program has been in achieving its objectives
  2. Changes that might need to be implemented to make the terror policy more effective and/or efficient
  3. Specific weaknesses that make the program less effective than it might otherwise be
  4. The continued viability, legality, and future of holding terror suspects at Guantanamo Bay and even other “black sites” in some European nations
  5. How do we balance the needs to secure ourselves with the freedoms we enjoy as citizens.

The Washington Post’s Jihadist Op-Ed Contributor

The great Tom Joscelyn, writing at The Weekly Standard has posted The Washington Post’s Jihadist Op-Ed Contributor.

He provides 5 reasons why the Post should have thought twice before giving Moazzam Begg space to comment.  With all deference to Tom, I’m thinking they thought twice but just didn’t care, mostly because what he has to say fits with their narrative.  Check out Tom’s full post, below are his five reasons (I cribbed out Tom’s full explanations and evidence so that you check out his full story at TWS):

Reason #1: Moazzam Begg and his organization, Cageprisoners, have proselytized on behalf of al Qaeda cleric Anwar al Awlaki and spread jihadist propaganda.

Reason #2: Moazzam Begg’s own book confirms he is a jihadist.

Reason #3: The Department of Justice’s investigation failed to substantiate Begg’s claims of torture, and found that his damning confession at Gitmo was voluntarily given.

Reason #4: A recently leaked assessment of Begg prepared at Gitmo shows that military authorities recommended he remain in American custody.

Reason #5: Amnesty International, which has partnered with Begg to demonize Guantanamo, endured a crisis when one of its top officials objected to the relationship.

The full post is here: Weekly Standard Blog.

Trying Khalid Sheikh Mohammed in Guantanamo: What To Do About Seemingly Coerced Statements?

In light of the news (embedded above) that KSM and other 9/11 plotters will be tried in a military commission in Guantanamo, I thought it was appropriate to post to SSRN a symposium article entitled A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements.  The article focuses on the impact that abusive and coercive interrogation techniques will have on the admissibility of later statements derived from non-abusive, non-coercive interviews.

Were subsequent, legal, and humane interviews of KSM, indelibly impacted by the “taint of torture” regardless of how they were conducted? Accordingly, are statements made in those subsequent non-coercive settings inadmissible on voluntariness grounds?

This article first details the coercive interrogation techniques authorized against suspected terrorists detained in Guantanamo Bay Cuba. Next, the article details the changing circumstances of detainee custody and treatment to set the stage for a discussion of whether earlier abuses, if corroborated, will invalidate subsequent statements made by the victims of that abuse.

I explain how the U.S. government, recognizing that its earlier interrogation tactics may have jeopardized its legal case against the detainees implemented “clean teams.” Building off of these factual premises, I next synthesize the tests a judge will need to apply in order to determine the admissibility of seemingly voluntary post-abuse statements. In this synthesis I highlight how factors such as the time between statements, change in location, change in identity of interrogators, nature of the previous unlawful interrogation methods, and use of illegally procured statements as leverage in obtaining new statements each impact the admissibility analysis.

Statement of the Attorney General: Obama’s Decision to Now Prosecute 9/11 Conspirators by Military Commission in Guantanamo

In November 2009, I announced that Khalid Sheikh Mohammed and four other individuals would stand trial in federal court for their roles in the terrorist attacks on our country on September 11, 2001.

As I said then, the decision between federal courts and military commissions was not an easy one to make.  I began my review of this case with an open mind and with just one goal:  to look at the facts, look at the law, and choose the venue where we could achieve swift and sure justice most effectively for the victims of those horrendous attacks and their family members.  After consulting with prosecutors from both the Department of Justice and Department of Defense and after thoroughly studying the case, it became clear to me that the best venue for prosecution was in federal court.  I stand by that decision today.

As the indictment unsealed today reveals, we were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators – one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor.  We had carefully evaluated the evidence and concluded that we could prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws.  We had consulted extensively with the intelligence community and developed detailed plans for handling classified evidence.  Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years.

Unfortunately, since I made that decision, Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue.  As the President has said, those unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security.  Decisions about who, where and how to prosecute have always been – and must remain – the responsibility of the executive branch.  Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments.  Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.  We will continue to seek to repeal those restrictions.

But we must face a simple truth:  those restrictions are unlikely to be repealed in the immediate future.  And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice.  I have talked to these family members on many occasions over the last two years.  Like many Americans, they differ on where the 9/11 conspirators should be prosecuted, but there is one thing on which they all agree:  We must bring the conspirators to justice.

So today I am referring the cases of Khalid Sheikh Mohammed, Walid Muhammad Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi to the Department of Defense to proceed in military commissions.  Furthermore, I have directed prosecutors to move to dismiss the indictment that was handed down under seal in the Southern District of New York in December, 2009, and a judge has granted that motion.

Prosecutors from both the Departments of Defense and Justice have been working together since the beginning of this matter, and I have full faith and confidence in the military commission system to appropriately handle this case as it proceeds.  The Department of Justice will continue to offer all the support necessary as this critically important matter moves forward.  The administration worked with Congress to substantially reform military commissions in 2009, and I believe they can deliver fair trials and just verdicts.  For the victims of these heinous attacks and their families, that justice is long overdue, and it must not be delayed any longer.

Since I made the decision to prosecute the alleged 9/11 conspirators, the effectiveness of our federal courts and the thousands of prosecutors, judges, law enforcement officers, and defense attorneys who work in them have been subjected to a number of unfair, and often unfounded, criticisms.  Too many people – many of whom certainly know better – have expressed doubts about our time-honored and time-tested system of justice.  That’s not only misguided, it’s wrong.  The fact is, federal courts have proven to be an unparalleled instrument for bringing terrorists to justice.  Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences.  There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system.  Our national security demands that we continue to prosecute terrorists in federal court, and we will do so.  Our heritage, our values, and our legacy to future generations also demand that we have full faith and confidence in a court system that has distinguished this nation throughout its history.

Finally, I want to thank the prosecutors from the Southern District of New York and the Eastern District of Virginia who have spent countless hours working to bring this case to trial.  They are some of the most dedicated and patriotic Americans I have ever encountered, and our nation is safer because of the work they do every day.  They have honored their country through their efforts on this case, and I thank them for it.  I am proud of each and every one of them.

Sadly, this case has been marked by needless controversy since the beginning.  But despite all the argument and debate it has engendered, the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points.  At the end of our indictment appear the names of 2,976 people who were killed in the attacks on that deadly September day nearly ten years ago.  Innocent Americans and citizens of foreign countries alike who were murdered by ruthless terrorists intent on crippling our nation and attacking the values that we hold dear.  This case has always been about delivering justice for those victims, and for their surviving loved ones.  Nothing else.  It is my sincere hope that, through the actions we take today, we will finally be able to deliver the justice they have so long deserved.

A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements

I’ve posted the abstract to a recent symposium article A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements” to SSRN, but unfortunately I don’t have a .PDF of the final page proofs to post yet.  Here is the abstract of the article which appears in Volume 59 of the DePaul Law Review (official citation 59 DePaul Law Review 943 (2010):

This symposium article focuses on the impact that abusive and coercive interrogation techniques will have on the admissibility of statements derived from non-abusive, non-coercive interviews. Were subsequent, legal, and humane interviews indelibly impacted by the “taint of torture” regardless of how they were conducted? Accordingly, are statements made in those subsequent non-coercive settings inadmissible on voluntariness grounds? This article first details the coercive interrogation techniques authorized against suspected terrorists detained in Guantanamo Bay Cuba. Next, the article details the changing circumstances of detainee custody and treatment to set the stage for a discussion of whether earlier abuses, if corroborated, will invalidate subsequent statements made by the victims of that abuse. I explain how the U.S. government, recognizing that its earlier interrogation tactics may have jeopardized its legal case against the detainees implemented “clean teams.” Building off of these factual premises, I next synthesize the tests a judge will need to apply in order to determine the admissibility of seemingly voluntary post-abuse statements. In this synthesis I highlight how factors such as the time between statements, change in location, change in identity of interrogators, nature of the previous unlawful interrogation methods, and use of illegally procured statements as leverage in obtaining new statements each impact the admissibility analysis.

In the Mailbag- Detention and Denial: The Case for Candor After Guantanamo

I just received my eagerly anticipated copy of Detention and Denial: The Case for Candor After Guantanamo by Benjamin Wittes.  Ben discusses the book in greater detail over at Lawfare, with a nice excerpt located here.

Detention and Denial: The Case For Candor After Guantanamo

Here is the official description from the book jacket:

Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices, and greater citizen awareness of the same. In Detention and Denial, he illustrates how U.S. detention policy is a tangle of obfuscation rather than a serious set of moral and legal decisions. Far from sharpening focus and defining clear parameters for action, it sends mixed signals, muddies the legal and military waters, and produces perverse incentives. Its random operation makes a mockery of the human rights concerns that prompted the limited amount of legal scrutiny that detention has received to date. The government may actually be painting itself into a corner, leaving itself unable to explain or justify actions it may need to take in the future. The situation is unsustainable and must be addressed.

Preventive detention is a touchy subject, an easy target for eager-to-please candidates and indignant media, so public officials remain largely mum on the issue. Many Americans would be surprised to learn that no broad principle in American jurisprudence actually prohibits preventive detention; rather, the law “eschews it except when legislatures and courts deem it necessary to prevent grave public harm.” But the habeas corpus legal cases that have come out of the Guantánamo Bay detention facility—which remains open, despite popular expectations to the contrary—have addressed only a small slice of the overall issue and have not—and will not—produce a coherent body of policy.

U.S. government and security forces need clear and consistent application of their detention policies, and Americans must be better informed about them. To that end, Wittes critiques America s current muddled detention policies and sets forth a detention policy based on candor. It would set clear rules and distinguish several types of detention, based on characteristics of the detainees themselves rather than where they were captured. Congress would follow steps to “devise a coherent policy to regulate the U.S. system of detention, a system that the country cannot avoid developing.”

 

Chesney on The NY Times Editorial Page and Its Potentially Misleading Account of the Detention Status Quo

Over at Lawfare, Bobby Chesney writes:

In an editorial that ran on Monday, the Times took up the laudable task of defending the administration’s plans to substantially enhance the procedural safeguards associated with the annual review board process for GTMO detainees.  All to the good if you ask me.  Inexplicably, however, the editorial seeks to bolster the case for the proposed changes by giving an utterly misleading impression of the legal status quo at GTMO.  It’s really quite bizarre, though not unprecedented.

The problem is that the editorial seems at pains to depict GTMO and detention policy as things stood circa spring 2004 or earlier.  The detainees are in a ‘legal limbo,’ the editors claim, giving the uninformed reader little reason to suspect the following:

– that detainees have had the right to seek habeas relief in federal court since 2008 (though as I note below the editors do offer an obscure reference in that direction late in the editorial)

– that many detainees have actually prevailed in the habeas process

– that from 2005 to 2008, detainees had a right to judicial review in the D.C. Circuit Court of Appeals (though the process was much less robust than habeas has turned out to be, and though only the Uighurs ever got anywhere under that system as other detainees concentrated on pursuing the right to file habeas petitions)

– and, last but not least, that an annual ‘administrative review board’ system for reconsideration of the need for continued detention already has been operating since 2005, and thus that the issue at hand is whether to substantially enhance the procedures associated with that review rather than invent the idea of annual re-screening from scratch (in fairness, the editors do offer an indirect reference to the existing system mid-way through the editorial).

Judge for yourself by reading the whole thing, and asking what an uninformed reader might assume about the status quo…

(Read the full post at Lawfare.)