AIDP Blog

While Jack Goldsmith, Neal Katyal, Harvey Rishikof, and even Amos (see posting below) should be credited for thinking outside the box on what to do with terrorists, creating a special national security court within the U.S. court system is a bad idea. Granted, the military commissions operating outside Geneva protections down in Guantanamo Bay are no better. But the idea of allowing convictions based on classified evidence that defendants cannot see still smacks of separate justice, not equal justice. Prof. Rishikof’s 2004 NYT op-ed, which predates the one by Goldsmith and Katyal, argues:

Prosecuting terrorism is compromising our traditional court structures. The courts that are currently trying to handle such cases are clearly inappropriate. What we need is a specialized, secure and protected federal court dedicated to matters involving domestic and international security…. A national security court, with its trials as open as possible, would give our allies needed reassurance, though the court would need to forgo the death penalty in order to ensure our allies would extradite terrorists. Having a specialized court would also make it possible for us to designate and fortify an existing federal courthouse to hold terrorism trials, which would improve security for all participants. A specialized judicial bench could also travel to locations like Camp X-Ray to conduct hearings.

This really does raise the specter of closed justice - judges hiding behind fortified bunkers and all. The image is really one of the Soviet variety. As we have seen with the rampant abuse of the closed FISA court system by the executive branch, this is not the way. John Walker Lindh was tried and convicted in an Article III federal court. Zacharias Moussoui was tried and convicted. The shenanigans that went on in that case were due to the ineptitude of the DOJ attorneys prosecuting the case; not the federal judge. Our court system can handle the stresses of national security cases. Federal judges have spent decades developing theories of deference to the executive in matters that deserve that deference. Let’s trust the judges we’ve appointed to the bench to do their jobs.

A new report issued by the Combating Terrorism Center at West Point finds that 73% of GITMO detainees are a “demonstrated threat.“  Report webpage here

What does demonstrated threat mean?  It means that they have satisfied any of the following criteria:

• explicitly and without qualification supported or waged hostile activities against the U.S. or coalition partners
• fought for al Qaeda or the Taliban or associated forces
• received training in an al Qaeda or Taliban training camp
• received training in the use of combat weapons beyond small arms (grenades, rpg’s, ied’s, sniper rifles, etc.)

In fact a further 95% were found to constitute a “potential threat.”

Bill Glaberson of the N.Y. Times, whom I have spoken with from time to time on Guantanamo issues and who consistently offers balanced and well researched coverage has this to say:

The report, by a terrorism study center at West Point, is essentially a rebuttal by the military of growing assertions by advocates for detainees that the naval station at Guantánamo Bay, Cuba, is filled with hapless innocents and low-level cooks and other support personnel who pose no real threat.

It paints a chilling portrait of the Guantánamo detainees. Publicly available information, the report says, indicates that 73 percent of them were a “demonstrated threat” to American or coalition forces. It says that 95 percent were at the least a “potential threat,” including detainees who had played a supporting role in terrorist groups or had expressed a commitment to pursuing jihadist violence.

The Wall Street Journal editors also reference the report in their support for Guantanamo, stating :

The real goal of Guantanamo’s critics is to have these killers treated like common criminals in American courts. That would make it impossible to deny them the full array of U.S. legal protections. In many cases, prosecutors would lack enough evidence to convict them under normal trial rules, especially if much of the evidence were classified. Soldiers don’t build a criminal case like “C.S.I.” sleuths when they’re snagging an enemy on the battlefield while also trying to avoid getting killed.

The result of bringing Gitmo detainees into U.S. criminal courts would inevitably be their widespread release—which means leaving them free to kill Americans again. The Combating Terrorism Center at West Point recently examined the non-classified evidence about Gitmo detainees, and in a new report concludes that 73% were a “demonstrated threat” to U.S. forces. No less than 95% were a “potential threat.” According to the Pentagon, at least 30 former Gitmo detainees have returned to fight Americans after deceiving U.S. interrogators and being released.

The next Supreme Court term will offer interesting developments for the future of Guantanamo.  National Security Law nerds (like me) can’t wait to see what happens.

My proposal for the establishment of a domestic terror court, Where are Terrorists to be Tried - A Comparative Analysis of Rights Granted to Suspected Terrorists, is premised on the need to find a “middle ground” that protects the rights of the defendant while enabling the state to proceed with prosecutions while protecting the source if the case against the defendant is intelligence material based. In essence, I am advocating a re-articulation of the FISA Court so that it would become a terror trial court. My proposal addresses questions regarding interrogation, remand, trial and appeal. The proposal is relevant to what the Israel Supreme Court has called “armed conflict short of war.” In order to preserve the rights of the individual, my proposal emphasizes the absolute requirement for independent judicial review throughout the interrogation and judicial process.The detained individual is neither a POW nor a criminal as traditionally understood; therefore, the appropriate paradigm is what I refer to as a hybrid paradigm, Quirin to Hamdan: Creating a Hybrid Paradigm for the Detention of Terrorists. The proposal seeks to protect the constitutional rights and privileges of the individual, regardless whether he or she is an American citizen. My proposed Court would hear cases of American and non-American citizens, provided they are suspected of committing crimes of terrorism.

The detained individual would be granted Miranda rights at the beginning of the interrogation regardless of where the individual was detained. Should he choose to exercise that right, the interrogation cannot continue, regardless of the suspected offense. In addition, the detained individual would be regularly brought before a judge for purposes of remand. Indefinite detention is an absolute violation of the individual’s rights. The state would need to file a charge sheet against the detainee within the prescribed period of time for criminal suspects.

With respect to the interrogation process, I have argued elsewhere that torture is illegal, immoral, and does not lead to actionable intelligence, The Unholy Trinity: Intelligence, Interrogation and Torture. My proposal does allow the use of coercive interrogation techniques (hood over head, loud and cacophonous music, stress position, sleep deprivation, room modulation temperature) provided that the approval to use these measures is given in writing by the head of the national security service and that there is a physician on site who is not part of the “chain of command.” Interrogation of Detainees: Extending a Hand or a Boot?

With respect to the trial, the defendant would be granted the right to confront his accuser. Unlike traditional Article III courts, if there is a need to introduce classified information (human or signal intelligence based) it would available neither to the defendant nor his counsel. The Court could review the intelligence information and question the source. In addition, the information can assist the Court in determining the defendant’s guilt or innocence. However, a conviction cannot be based solely on this information and the Court must state that its decision to convict was primarily (more than 50%) predicated on evidence openly submitted to court, thereby preserving the defendant’s right to confront his accuser.

According to my proposal, if convicted, the defendant could appeal to the United States Supreme Court regarding both conviction and/or the severity of punishment.

Cross posted from the National Security Advisors Blog.

Fresh off the presses International Criminal Law and Its Enforcement, Cases and Materials.

Beth Van Schaack and Ron Slye provide this description of their new book:

This casebook draws from the jurisprudence of the various international and hybrid criminal tribunals (in The Hague, Tanzania, Sierra Leone, East Timor, Bosnia-Herzegovina, Baghdad, and Cambodia), United Nations bodies (such as the Human Rights Committee), regional human rights institutions, formal domestic courts, alternative or traditional courts (such as the gacaca proceedings in Rwanda), and transitional justice institutions (such as truth commissions). It also draws upon domestic and international jurisprudence involving civil, as opposed to criminal, liability to the extent that such cases are predicated upon tort analogs of international crimes and forms of responsibility such as complicity and command responsibility.

An exciting new entrant to the ever growing field of international criminal law!

(Hat Tip to IntlLawGrrls)

Over at the Southern District of Florida blog (Hat tip to OK at VC ) David Markus details some interesting wardrobe choices in the Padilla trial.

Apparently on July 3rd all of the jurors showed up dressed in patriotic colors. “Row one in red. Row two in white. And row three in blue.” The jury has dressed up before— having all dressed in black (except one juror) and also having shown up with all the men dressed in blue and all the women dressed in pink.

You’ll recall that in the Grisham book/movie Runaway Jury the jurors did all kinds of crazy things from standing up in unison and reciting the pledge of allegiance to coordinating on clothing and items carried into the court room. The point of course was that the main character, Nick Easter, wanted to prove that he could control the jury.

As many readers know, jury antics are not just the stuff of movies. In the famous case Tanner v. United States the Supreme Court dealt with a jury that, according to two jurors “was on one big party.” Seven jurors drank alcohol during the noon recess, one juror sold another juror 1/4 pound of marijuna, the foreperson boozed it up three times during the trial, one juror ingested cocaine five times, another juror ingested cocaine two or three times, and three jurors smoked marijuana regularly during the trial.

Tanner claimed that he was deprived of his right to a trial by a competent jury, but his motion for a new trial was denied. His problem— the only evidence he had that there was substance abuse by jurors was the testimony of the jurors. Evidence which, according to the Court in a five-to-four vote, jurors were incompetent to give testimony about under FRE 606(b) which states:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occuring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudical information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

So turning back to the Padilla case. Lets say, for the sake of argument that a juror, or a few jurors are influencing the group and convincing them to behave in a certain way. Perhaps suggesting that as a jury they need to present a unified front, maybe even suggesting that it is their obligation to stand united in a “war against terror.” We can even infer from the black outfit day, that there may have been one juror who was a hold-out, unwilling to go along with the group. It appears that juror has since changed his mind, because as of July 3rd this jury—at least publicly is presenting a unified front.

In my little hypothetical here, if Padilla were convicted and a juror later came forward and said he and other jurors were pressured into voting a certain way by other overly aggressive jurors — lest they be deemed unpatriotic or sympathizing with terrorists. Could a court hear that evidence? It seems pretty clear under Tanner and 606(b) a court could not hear such allegations. A point which the commentary to the rule bears out: “The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invtie tampering and harassment.” Citing Grenz v. Werre, 129 N.W. 2d 681 (N.D. 1964). The Court in Tanner states “…full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of scrutiny of juror conduct…” Importantly though, that would not preclude the court though, from hearing non-juror evidence of misconduct, but if a juror was the only person who knew what was happening 606(b) precludes the court from hearing about it by preventing the juror from testifying.

However, the situation is quite different if jurors were to come forward now, or if the court were to investigate misconduct before a verdict is rendered. There are definitely some strategic considerations for Defense counsel here, a point one commenter made in the comments at the SDF Blog:

Counsel are in a very hard spot here. The prosecution has no recourse if the jury acquits inappropriately; but jeapordy has attached, so mistrials are permitted only in isolated circumstances. The defense has to weight whether to make an objection to preserve an appellate issue, knowing that a potentially favorable jury might be thrown out if the judge agrees, forcing a mistrial and new trial, or whether to ride this out.

So, could the judge declare a mistrial in Padilla? What standard would he follow? I was reminded of a piece in Slate on this topic, dating back to the Tyco trial, some excerpts:

One of the earliest articulations of the standard comes from an opinion written by the 19^th-century Supreme Court Justice Joseph Story, who wrote that judges should declare a mistrial whenever “there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”

The “manifest necessity” standard has proven amorphous. There is a plethora of circumstances that could warrant a mistrial, including procedural error; misconduct; the illness or injury of a lawyer, judge, or juror that prevents him or her from continuing; or an unexpected event, such as an outburst in the courtroom, that might unfairly influence the jury.

I don’t think we’re at the mistrial point yet, the juror conduct seems harmless but as some have commented, it could suggest that the jury is coming to conclusions and discussing the case and a judge may find that conduct to be harmful.

It will be interesting to see how this develops, feel free to continue the discussion in the comments.

The arrest by the British authorities of physicians suspected of involvement in last week’s attempted attacks in London and Glasgow brings back to memory the following incident::

When I was a Judge in the Gaza Strip Military Court (1992-1994) the Israel Defense Forces’s request to remand Dr. Rantisi—the then number two of Hamas—was brought before me.

After I signed the remand order (based on classified intelligence information), Dr. Rantisi and I had a long conversation (in English) about how a pediatrician (which he was) could give orders to kill innocent civilians, including Jewish and Arab children alike. Dr. RantIsi told me I have to see two Rantisi’s–one the MD and the other the political leader (he refused to call himself a terrorist)

I responded by telling him that from my perspective there is but one Rantisi—the individual who happens to be a physician and orders the killing of children. I asked him about the Hippocratic Oath; he responded that he respected every word of the oath when he was acting as a physician but that I need to understand there are two separate and distinct sides to him.

The attempt to distinguish, or separate, between the physician and terrorist must be—I suggest— unequivocally rejected. More than that, I would argue that a physician dedicated to killing innocent men, women and children is a particularly heinous terrorist and no spin—no matter how agile– can justify his or her motives.

In the past few months our terrorist enemies have demonstrated that they lack key training and make mistakes.  However, we should not make the mistake of believing they are anything less than a deadly threat.  No matter how comical or inept they may seem– they are committed to a murderous ideology and the threat they pose is no laughing matter.

Unfortunately minimizing the threat is becoming a common and dangerous refrain.  After each thwarted or failed terrorist attack commentators remark about how inept, stupid or comical our murderous enemy is.  Consider Time’s lede in their coverage of the recent attempts in Britain: “Individually the attacks looked inept, almost comically so, the incompetent work of slapstick terrorists.”  The Guardian’s coverage echoed the theme “The attack was seemingly inept but it wreaked huge disruption for weekend travelers.”    

We’ve seen similar comments after almost every previously thwarted attack.  From late night television skits depicting the shoe bomber Richard Reid, to the idiotic comments of Wonkette following the Fort Dix terror arrests (comments which I took issue with here in The Tank.)  After the JFK arrests Bruce Schneier of Wired wrote “If these are the terrorists we’re fighting, we’ve got a pretty incompetent enemy.”

What is behind all of this minimizing?  The inept terrorist motif relates to a larger problem- as government officials continue to successfully disrupt plots and prevent attacks a growing number of people become complacent and buy into the argument that the terrorist threat has been overstated.  For example, John Mueller a political science professor at Ohio State wrote an article in Foreign Affairs last October stating “almost no terrorists exist in the United States…A fully credible explanation for the fact that the United States has suffered no terrorist attacks since 9/11 is that the threat posed by homegrown or imported terrorists — like that presented by Japanese Americans during World War II or by American Communists after it — has been massively exaggerated.”  His book, Overblown further details how the threat has been inflated to produce widespread and unjustified anxiety.  

And he is not alone, how about the BBC special The Power of Nightmares detailing how al Qaeda is all just some made up neoconservative folklore aimed at creating an emergency so George Bush and his ilk can seize greater power— Seriously.  Washington Post columnist William Arkin disagreed with the premise of the series, but still conceded that he thinks “the threat of al Qaeda is a myth.”  Following the JFK arrests, Ariana Huffington dedicated an entire post to telling us why all the terrorists picked up in thwarted terror attempts really are just boobs and low-level criminals exploited by fear-mongering presidential candidates.     

Oh those goofy terrorists are everywhere.  I mean a guy in Britain driving a fuel and explosives laden vehicle into an airport terminal, how silly can you get— that is until you consider the estimated damage that the similarly armed vehicle in Haymarket would have caused.  According to explosives experts it would have been a fireball the size of a house, with a 400 yard diameter shockwave filled with car parts, nails, and shrapnel.  Or how about those moronic Ft. Dix plotters, armed with automatic weapons and RPG’s trying to “take over a military base.”  Well, they likely would have been able to pull off mass murder on a scale which rivaled the Virginia Tech shooting.  And of course that comical Richard Reid, trying to light his shoe on fire, what could that have possibly done?  Well, according to this video it could have done quite a bit. 

Somehow those inept terrorists don’t seem so comical anymore. 

No doubt, the recent failed and thwarted attacks demonstrate to us that our enemies are not highly trained, however that does not mean they are not dangerous.  The bomb-maker who accidentally kills himself on his first crack at making IED’s seems pretty inept, but when it happens after he has created hundreds of bombs he may still be inept but he certainly was pretty dangerous.  Remember Mohamed Salemeh?  In 1993, he rented a Ryder truck and had his co-conspirators fill it with explosives.  They parked it under the World Trade Center and detonated it.  Salemeh then called the truck rental company to let them know he was coming to recover his $400 deposit—he was swiftly arrested.  That may seem comically inept at first, but I bet the families of the six people killed and the 1,042 people injured weren’t laughing. 

Sometimes even the inept terrorists are successful, and we should never forget that. 

Overshadowed by the recent attempted terrorist attacks in London and Glasgow–on July 28th the Scottish Criminal Cases Review Commission released an 800-page report, examining whether the Lockerbie trial constituted a miscarriage of justice. See:
http://news.bbc.co.uk/2/hi/uk_news/scotland/south_of_scotland/6242828.st
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Although I have written that the Lockerbie trial was a diplomatic success story, bringing an end to the 30-year low intensity conflict between Libya and the United States, I have been very critical of the court’s judgment and have been one of the experts calling for a review of the case. For my latest article on the issue, see:
http://ssrn.com/abstract=970350 .

Last week, from Utrecht University (just 5 miles from the venue where the Lockerbie trial took place in 2000), I was interviewed by the BBC for a story that has been broadcast worldwide several times in the past twelve hours. For the segment, see: www.bbc.co.uk/scotlandnews

During my interview, I told the BBC that in hindsight, my colleagues and I at the State Department in 1991 were made to play the role that Colin Powel played on the eve of the 2003 invasion of Iraq. The Department of Justice had assured us that there was an air-tight case against the two Libyans, based on indisputable forensic evidence, a confidential informant whose credibility was without question and an eye witness who could prove the two Libyans had planted the bomb. Based on these representations, we were able to obtain Security Council
approval for comprehensive economic sanctions against Libya. After attending the trial at Camp Zeist in 2000, however, I saw firsthand that the case was not a very strong one; the insider witness (Abdul Majid Giaka) was (in the words of the court) “prone to fabrication and could not be accepted as a credible and reliable witness”, and the crucial eye witness (Tony Gauci) did not provide an unequivocal identification.

I also told the BBC that perhaps I should have seen this coming when the US and UK governments made the decision not to seal the indictments against the two Libyans. If it had really been our intention to bring the case to trial, the indictments would have been kept secret so that there would be a greater chance of apprehending the accused the next time they left Libyan territory. The decision to publicly identify the two accused Libyans suggested that a decision had been made to use the case solely as a diplomatic tool to obtain economic sanctions against Libya.

Finally, I told the BBC that the trial seemed designed to achieve a diplomatic solution rather than the truth about who was really behind the Pan Am 103 bombing. The judgment did not indicate how high up the Libyan government chain of command the responsibility extended, nor did it rule out the possibility that Iran and Syria had also been involved in the bombing plot, as many experts still believe. As Professor Cherif Bassiouni has stated, “the Lockerbie trial was designed to make sure that history would not be recorded because the political interests of certain states were at stake.”

The Lockerbie judgment may not be the “Dred Scott” of Scottish jurisprudence, but I do think there there were enough problems with the judgment to warrant a decision by the Scottish Criminal Cases Review Commission to order the Case to be reopened.