New Address

For some reason feed from this address isn't working so I've moved the blog to http://mcdahl2.blogspot.com/. All the posts from this site are now on the new site and the new site works with Google Reader and other feed applications.

Thanks!

- Matt

The D.C. District Grows Impatient on "Enemy Combatant" Definition

In an earlier post I talked about a government response to an order by Judge Bates of the D.C. District Court. The government response asked that it be allowed to proceed in the Gitmo habeas corpus cases without giving a definition of the term "enemy combatant." The government's position was that the hearings should proceed to the merits stage where the decision to hold each detainee would be made on a case-by-case basis. On February 11th Judge Bates issued an order in response to the government's request. Judge Bates, "reject[ed] [the government's] contention that a decision 'on the scope of the Government's detention authority' should be made in a 'case-by-case' manner, and only upon reaching the merits stage of these proceedings." Because there is a new administration, he was willing to give the government until March 23rd to come up with a definition. Judge Bates said he was unpersuaded by the government's argument because the definition of "enemy combatant" is vital to determining these cases and the definition should not be a "moving target."

D.C. District Court Judge Reggie B. Walton dealt the government a similar blow yesterday when he issued a similar order. Judge Walton's order was a sort of pre-emptive strike against the government making a request similar to the one it made to Judge Bates. The order laid out what the court wanted to talk about at an upcoming global status hearing on February 18th. The order cited Judge Bates's most recent order, and said that the government should "be prepared to recommend a format and schedule for resolving the issue of the appropriateness of the definition of the term 'enemy combatant'." Judge Walton said that he would allow the government a chance to argue its point on not setting a defintion, but it is fairly clear that he does not favor such a position and most likely won't allow the case to proceed without a definition. He expressed concern about how long the cases have been "lingering", and said that it is necessary to come up with a streamlined process to move the cases through the system efficiently and expeditiously.

These orders are not going to make it easy on the government. Both Bates and Walton see setting an "enemy combatant" definition as a way to move the habeas cases quickly because it might allow the court to avoid reaching the merits stage of some of the cases. Bates has made it clear that a defintion will be set one way or another, and Walton, while allowing the government a chance to argue its position on February 18th, seems set on following Bates on this issue. It looks like we could be seeing the Obama administration's definition of "enemy combatant" very soon.

National Security Court

I want to talk about what the future could like in terms of detaining suspected terrorists. The procedures currently in place are lacking in specificity and scope. The holding of suspected terrorists in Guantanamo Bay was a political/public relations nightmare for the Bush administration, and for good reason. Those held at Gitmo were held for long periods of time with almost no due process safeguards and seemingly no hope of ever receiving any. The Supreme Court's decision in Boumediene finally found that the Combatant Status Review Tribunals were procedurally lacking and granted detainees the right of habeas corpus review. President Obama's orders are bringing an end to Gitmo and trying to find another way to deal with those being held there. As stated in a previous post, those orders also established a special task force to determine alternative procedures to deal with those prisoners captured in this non-traditional "War on Terror." The big question now is: What kind of alternatives can we use to deal with these prisoners?

Harvard Law professor Jack Goldsmith has a working paper out now that outlines what he thinks a new National Security Court might look like. The call of the paper is that the U.S. needs a separate system that allows for long term, non-criminal detention of suspected terrorists. This is because the normal civilian justice system can apply too much of a burden to hold suspected terrorists which leads to terrorists being released where they are free to commit more terrorists acts. You might ask: Isn't that precisely what we have at Gitmo right now and precisely what we are trying to get rid of? The answer to that question is yes. Goldsmith argues that we need to get rid of the old system and replace it with a new system containing a national security court that provides oversight and adds concrete procedures.

Goldsmith argues that it wouldn't be hard to do this because the federal courts in D.C. are already a de facto national security court. The D.C. District court is responsible for coordinating the Gitmo cases and conducting habeas hearings, with appeals going to the D.C. Circuit and ultimately the Supreme Court. Goldsmith says that the next step necessary is for Congress to create legislation to craft a framework for a national security court. Currently the D.C. courts are making procedures up as they go along, but the argument is that the executive should create the rules and regulations that govern a court system and not the courts themselves.

Let me go through some of the specific procedures and rules Goldsmith thinks a national security court should operate under, and then give my opinion on some of them:

Citizenship- Both U.S. citizens and non-citizens should be subject to the power of this new court. This is for two reasons. First, it is necessary to subject both citizens and non-citizens to the new court because it will add legitimacy, and not make it seem like the U.S. is only trying to deprive non-citizens of procedural protections. Second, Al-Qaeda and other terrorist organizations are actively trying to recruit American citizens and it is important to be able to deal with all terrorists in the same way.

Definition of enemy- This is a very familiar issue. How do you differentiate terrorists from other criminals in order to subject them to the specialized jurisdiction of a national security court? Goldsmith argues that those that "directly participate in armed conflict against the United States" is a good starting place for a definition of "enemy." He identifies two areas of contention in the "direct participation" approach. First, what is the scope of direct participation? It definitely includes those who attack the U.S. with guns and bombs, but what about those that provide assistance in the form of supply or financing. Are they directly participating in armed conflict? The second area of contention is how long should a civilian be considered to be in armed conflict?

I believe the answer to the second question is easy. I don't think there should be a time limit. There should be no statute of limitations for those that participate in or support terrorist acts. If a person directly participated in a terrorist act at any point they should be held accountable. The answer to the first question is a little more tricky. I think that people that supply and finance terrorist activities participate as directly in those activities as the ones who pull the triggers or flip the switches on detonators. Those acts can't happen without people giving terrorists the guns and the money. The trick with this will be where to draw the line. How much or how little connection to terrorist activity will be enough to subject someone to a national security court's jurisdiction? This question will probably have to be answered by legislation and judicial decision.

Evidentiary Issues- The first evidentiary rule Goldsmith promotes is that of allowing hearsay evidence. Second, he says advocates for the admissibility of information gathered in "illegal or morally problematic ways." Third, he says that allowing for ex parte admission of evidence is necessary, but the defendant''s counsel should be allowed to review the classified information. Finally, Goldsmith says that a Brady-esque burden should be on the government to provide exculpatory evidence to the defendant, and maybe even an "extra-Brady" burden of having to provide material information.

I think that Goldsmith is right on with three of the four here. I think that hearsay evidence should be admitted because of the evidentiary difficulty presented in many terrorism prosecutions, and that ex parte portions should be allowed, but the defendant's counsel should be allowed to participate and see confidential information. I also agree that the government should have to turn over exculpatory information, but I'm on the fence about forcing them to provide material information. I don't think I can get behind the admissibility of evidence obtained illegally or immorally. I'm assuming that illegally or immorally encompasses information obtained through torture and I'm not yet willing to say that I think evidence obtained through torture should be allowed in court.

Publicity- The procedures of the national security court should be public to the extent that they can be. Classified material should be kept from the public as usual, but aspects of the procedures that can be public should be.

Agree.

Regularized Review- Non-criminal detention of terrorists should not be indefinite, but should be long enough to allow for sufficient investigation and protection of the public. Goldsmith proposes holding them for as long as six months at which point the detention should be reviewed by the court and either renewed or terminated. He believes that if the lawyers have to keep coming back to rejustify the detention that it will encourage them to either prosecute the prisoner or release him. Another component that could be added to this would be an increasing burden on the government to show the need for further detention. This could look like "preponderance of the evidence" on the first go round then to "clear and convincing evidence" then to "beyond a reasonable doubt."

I think this is a reasonable and procedurally sufficient process for non-criminal detention. If the government isn't going to prosecute the prisoner then it should have to justify his continued detention and that burden should get harder and harder. It's important to have such a process in place in order to avoid indefinite detentions.

Lawyers- Government prosecutors will come from the Department of Justice, and the defense attorneys will be government attorneys as well. He proposes a system where the prosecutors will rotate to the defense side and vice versa every few years, similar to military JAG programs. He mentions in passing the possibility of allowing private attorneys with security clearances to participate as well.

I'm not sure how comfortable I am with only allowing government lawyers to be defense attorneys. In a practical sense it may be the only way to do it because of the presence of classified information involved in such cases. Government defense attorneys would only need to be vetted once and given a clearance to view classified material. Allowing private lawyers could be a security nightmare in the clearance sense. Of course, government defense attorneys already exist at the state and federal level in the form of public defenders, but defendants also have a choice to find private counsel whereas with this system they may not have that option. Maybe a sort of provisional clearance could be granted to private defense attorneys; however, the burden of that kind of system could be very high. Regardless, I think that allowing private attorneys should be something that is considered in the debate.

National security court as a stand-alone institution- This would make the national security court similar to the Foreign Intelligence Surveillance Act courts meaning that they would be outside of the normal federal judicial court system. Goldsmith argues that there are 3 advantages to this: 1) judges could be drawn from federal courts around the country; 2) the court could more easily specialize; and 3) creating a stand-alone court minimizes the effect of "spillover" into the civilian justice system. Furthermore, the national security court should not be an extension of the FISA court system because that system proceeds more secretively and with much less transparency, which is something Goldsmith would like to avoid.

I agree with this completely especially because of the minimization of spillover into the civilian system. The national security court system will necesarily have to create special procedures and rules that should not be applied to the civilian system and isolating it as much as possible is a good idea.

I will end my summary and analysis here but check out the paper if you want to see Goldsmith's full argument. I've left out a few interesting sections.

If you are wondering, "Matt, how are you so well informed? Where do you get all of this fascinating information?" I can tell you it's not because I'm extremely well connected. I get most of this information from a national security mailing list administered by Wake Forest Professor Robert Chesney. It's a great source of information and you can check it out here.

Collateral Effects of Alternative Energy

Behind the economic crisis, one of the biggest concerns in the United States is energy. As environmental and foreign policy concerns over oil continue to increase we are turning our attention towards developing alternative sources of energy. This is certainly a noble goal for many reasons but, as with just about everything, there are potentially serious ancillary effects of a dramatic shift in energy policies.

A New York Times article today talked about a warning by the Saudi Oil Minister, Ali al-Naimi. Al-Naimi warned that a push for alternative energy that happens too quickly could affect the ability for oil producing countries to make long term plans in developing oil sources. He warned that uncertainty as to oil demands from Western countries that consume a lot of oil could affect future supply and leave an energy shortfall that alternative energy resources won't be able to make up. This would leave the world with not enough oil or alternative energy to meet its needs.
Essentially, al-Naimi wants a very slow development of alternative energies. Of course, major oil producers would like to see no development of alternative energy because a move toward alternatives would seriously affect the economies of those countries. This is clearly a self-serving, although completely understandable, desire by these countries, but what other kinds of affects could a move towards alternative energy have?

It's no secret that most oil producing countries are in the Middle East. It's also no secret that the Middle East is an area that breeds its fair share of terrorists. If alternative energy development leads to the degradation of Middle Eastern economies it could lead to a proliferation of terrorists. It's possible that if Middle Eastern economies and governments collapse then violent and religiously radical groups could step in to fill the vacuum. Also, the collapse of those economies due to the fact that Western countries ceased to by oil could create animosity amongst those living in the Middle East that the West abandoned them as soon as oil was no longer needed. This animosity could become a vital ingredient in creating more terrorists, thus increasing the risk of terrorist attacks.

DoJ's Response to Judge Bates

On January 22nd Judge Bates (D.C. District) issued two orders regarding detainee cases before him. The order in the Hamlily v. Obama case invited the federal government to make filings that would "refine" the definition of "enemy combatant." The order in the case of Maqalah v. Gates offers the government a similar opportunity. A key difference between Hamlily and Maqalah is that Maqalah involves detainees being held at Bagram Air Base in Afghanistan rather than at Gitmo.

Yesterday the Department of Justice filed a response to Judge Bates order in Hamlily. The government's response essentially asks Judge Bates not to rule generally on the President's detention power, in order to allow the newly formed interagency task force to complete its work. For now the government urges to allow for determination of detention authority on a case by case basis rather than making a ruling that would set a general framework for determination of the detention authority. This case by case determination will allow the government to achieve a "prudent and incremental approach" that it feels is the best way to resolve the detainee issue.

The government has thus far not responded to Judge Bates's order in Maqalah. This is probably because the issues in that case are complicated by the fact that the detainees are being held in Afghanistan rather than at Gitmo. The government still makes its case clear in Hamlily as to what its position will be in regards to all similar cases pending before federal courts.

Judge Bates's orders had a positive effect in the sense that it forced the government to solidify its position as to how it wants to proceed in resolving detainee issues. The government made it clear that it is not ready to make any sort of blanket determination as to its powers in detaining "enemy combatants." The new administration's stance on the issue will become more clear once the new task force has had an opportunity to complete its work, and as the government makes more filings in cases that come before federal courts. These orders by Judge Bates do raise the question of whether a federal judge will make a ruling applies to detainee cases in the "abstract" and "general" way that the government is seeking to avoid. Such a ruling could make resolving the detainee issue much more complicated.

For more on this check out SCOTUSBlog's post.

Presidential Orders

One of President Obama's first acts in office was to issue Executive Orders addressing some of the most pressing national security issues. Four of the orders dealt with: 1) The case of Ali Saleh Kahlah Al-Marri; 2) Interrogation; 3) Detention options available for detainees apprehended in the "War on Terror"; and 4) What to do with respect to Guantanamo Bay.

Al-Marri Order- Al-Marri was seized at his home in Peoria, Illinois in 2003 on suspicion that he was aiding al Qaeda. He has been held by the military in a military detention facility ever since. Al Marri challenged his detention in a military facility based on a finding that he was an "enemy combatant." A federal district court initially denied him relief, but a panel decision of the 4th Circuit reversed the district court's decision. Ultimately the 4th Circuit reheard the case en banc and, by a 5-4 decision, reversed the panel decision. The 4th Circuit's decision put the Al-Marri case squarely on a path to the Supreme Court.

On January 22nd a Presidential Order was issued that directed an "expeditious" review of Al-Marri's status as an enemy combatant. The review will look at the "factual and legal basis" for his detention, and suggest "alternative dispositions" for Al-Marri. This order pre-empts a review by the Supreme Court and paves the way for a non-judicial resolution to Al-Marri's situation.

Detainee Order- This order directs the issue of what to do with detainees who are apprehended "in connection with armed conflicts and counterterrorism operations" to a Special Task Force. The task force is comprised of the: Attorney General (Co-Chair), Secretary of Defense (Co-Chair), Secretary of State, Secretary of Homeland Security, Director of National Intelligence, Director of the Central Intelligence Agency, Chairman of the Joint Chiefs of Staff, others brought in by the Co-Chairs. The purpose of this task force is to determine options available to the federal government with respect to those apprehend in the "War on Terror."

Interrogation Order- This order revoked any existing orders that authorized interrogation techniques that are not consumate with the Geneva Conventions. The order directs the approval of interrogation techniques to a task force that is composed of the same parties named in the Detainee Order. The task force's mission is to reccomend acceptable methods of interrogation that will serve to protect national security. The task force is also supposed to evaluate the practice of transferring prisoners to countries that employ practices that are not in accord with the Geneva Conventions.

Guantanamo Bay Order- This order required the closure of the detention facility of Guantanamo Bay (Gitmo). It ordered the review of the factual and legal bases for continuing to hold the prisoners currently held at Gitmo. If the findings show that a prisoner is a national or foreign security threat then they will be held in some other fashion than that employed at Gitmo. It also orders the closure of the Gitmo facility no later than one year from the issuance of the order.

The Attorney General has the power to request any and all information regarding any prisoner currently held at Gitmo in order to determine the legitimacy of their continued detention. The viability of transfer or release will be determined as to each prisoner as well as the viability of prosecution of those detainees whose records would support such action. The order also calls for options as to how to deal with any detainee that cannot be released or prosecuted. It also calls for the analysis of security issues that may arise from transfer of some of the detainees to facilities within the United States.

This blog is dedicated to keeping up to date with changes in the legal aspects of terrorism and national security. Other topics pertaining to terrorism and national security will also be discussed, but I'll be focusing mostly on legal issues since I am a law student. The first few posts here will deal a lot with how the closing of Guantanamo Bay is going and what will ultimately happen to the prisoners there.