AIDP Blog

Jose Padilla’s conviction for conspiracy to commit terrorist acts and provide material support to terrorists is the end of a long troubling journey in the post 9/11 criminal justice system as conceived by this Department of Justice. Upon Padilla’s arrest in 2002 at O’Hare Airport, he was held indefinitely by DOJ as a material witness and sent from the 7th Circuit to the 2nd Circuit. When a federal judge told Attorney General Ashcroft that he had misused the material witness statute and could no longer hold him, the decision was appealed. But before the appellate court could confirm that, Ashcroft relabeled Padilla an enemy combatant and he was handed from DOJ to DOD and taken down to the 4th Circuit, where successive federal courts found him properly detained. When his case was remanded by the Supreme Court for improper procedure in 2004, Padilla remained in a military brig as his case worked its way back up to the Supreme Court. However, before his case was heard by an uncertain array of justices, DOD gave Padilla back to DOJ and relabeled him a criminal. Padilla was taken down to the 11th Circuit and tried in federal court on conspiracy charges under a statute that defines conspiracy so broadly that sending someone a video on the life of Martin Luther King, Jr. can be considered providing material support to terrorists. That a U.S. citizen, no matter how bad they are, can be jerked from Illinois to New York to South Carolina to Florida before multiple courts on multiple charges, remain in solitary detention by the military for 3 1/2 years and spend part of that time without access to counsel, is mind-boggling. Are we re-writing the rules on due process? It sure would be nice to know.

The Yale Law Journal’s Pocket Part today published an essay by Colonel Morris Davis, the Chief Prosecutor in Guantanamo.

Col. Davis offers a perspective not often read in law journals and the media, and one which I believe is meritworthy.  Some of his points:

1) The detention facility has been inaccurately portrayed by critics.

2) Arguments about “indefinite trial without detention” are misplaced in a wartime context.

3) Military commissions have been historically used and are consistent with the Geneva Conventions.

4) Military commissions as constituted provide full and fair trial rights.

5) Military commissions will not exclude defendants from their trial.

6) Military commissions exclude evidence if it is derived by torture.

7) Military commissions allow the use of hearsay, but so do the ICC, the ICTY, ICTR, SCSL, Cambodia tribunal, etc.

This is just a brief summary, the article is worth checking out.

Ali Hassan al-Majid, better known in the West as “Chemical Ali”, was charged on August 8, 2007, along with fourteen others, for the massacre of Iraq’s Shi’ites in the aftermath of the 1991 Gulf War. Tens of thousands were killed in the uprising which the U.S. urged but failed to support. Iraqi High Tribunal Prosecutor Jaafar al-Moussawi announced that the trial would begin on August 21. Formal charges range from crimes against humanity to genocide. Al-Majid, Saddam Hussein’s cousin and frequent military commander of choice, was instrumental in brutally repressing post-Gulf War uprisings. There is just one snag in this process. Al-Majid may be dead within weeks of entering his plea in this trial.

On June 24, 2007, al-Majid was convicted on charges of genocide, war crimes and crimes against humanity as a key ringleader in the military reprisals known as the “Anfal Campaigns” that claimed the lives of up to 180,000 Iraqi Kurds during the waning years of the Iran-Iraq War. Al-Majid often supplemented his attacks against civilian targets and villages with chemical weapons - hence the sobriquet “Chemical Ali.” He drew the death sentence in that trial and, per Iraqi law, his case was immediately forwarded to an appellate chamber for automatic review. If confirmed by the appellate court, also per Iraqi law, his execution must be carried out within 30 days.

This same procedure played out in December, 2006, when Saddam’s death sentence in the Dujail trial for the massacre of 182 Shi’a was hurriedly and amateurishly carried out after confirmation by the appellate court. At the time of his execution, Saddam was half-way through the Anfal trial. Many observers, including myslef, argued strenouosly for Saddam’s execution to be postponed until all seven trials could be completed, or at least the Anfal trial itself; or, in the alternative, have the trial continue posthumously against him so that the record of his involvement and guilt could be established. Instead, not only was Saddam executed, but the Iraqi High Tribunal declined to continue the trial posthumously against him. Moreover, all charges against Saddam in the Anfal genocide were dropped.

Thus, Saddam got away with murder. His role in the Anfal Campaigns was not officially established through a court process, flawed as that process it. The storytelling function of a criminal trial is vitally important for the victims involved. In the case of Saddam’s legally required but premature execution, Iraq’s Kurds were denied that function. And although the Shi’a of Dujail got their day in court against Saddam, the Kurds did not. Similarly, the Shi’a of southern Iraq will not get their day in court against al-Majid in the 1991 Shi’ite Uprising trial that the Kurds got in the Anfal trial.

The best institutions learn from their mistakes. The IHT and the Iraqi government should learn from the mishandling of the Saddam proceedings. My advice to the Iraqi government and the IHT on the matter of al-Majid remains the same as it was with Saddam. Postpone al-Majid’s execution so that his role in the suppression of the Shi’ites can be fully explored with his active defense. Do not rescind it, or commute it, just postpone it. Failing that, at least let the trial against him continue posthumously. And at the very least avoid dropping the charges against him. To drop the charges is not only an insult to the survivors, but to the memory of the victims as well.

The great thing about working at a major research university like Penn State is the fantastic support services they provide. Just today our Faculty Multimedia Services folks took my C-SPAN Book TV appearance regarding my book (Saddam On Trial: Understanding and Debating the Iraqi High Tribunal with Michael Scharf) and uploaded it to a streaming server.

Below are links to the video clip excerpts:

McNeal C-SPAN Book TV (Trial Issues)

McNeal C-SPAN Book TV (Debaathification)

McNeal C-SPAN Book TV (Executing Saddam)

McNeal C-SPAN Book TV(Promulgation of IHT Statute)

McNeal C-SPAN Book TV (Lessons Learned)

McNeal C-SPAN Book TV (Training and Capacity)

McNeal C-SPAN Book TV (Transitional Justice)

McNeal C-SPAN Book TV (Impact of Trials)

McNeal C-SPAN Book TV (Politically Timed Verdict?)

McNeal C-SPAN Book TV (Why Start With Dujail)

McNeal C-SPAN Book TV (Saddam Book Overview)

In today’s New York Times General Wesley Clark and law professor Kal Raustiala offer their perspective on the war on terrorism (see here). They argue that the current administration’s policies have blurred the line between soldier and civilian. They then argue:

Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers….The second major problem with the approach of the Bush administration is that it endangers our political traditions and our commitment to liberty, and further damages America’s legitimacy in the eyes of others…A great danger in treating operatives for Al Qaeda as combatants is precisely that its members are not easily distinguished from the population at large.

Professor Bobby Chesney of Wake Forest responds:

It seems to me that this particular argument is missing a critical point: attacks on military objectives are indeed permitted, but only when carried out by someone with the combatant’s privilege. Insofar as al Qaeda members lack that privilege, their conduct in bombing the USS Cole remains an illegal act of mass murder rather than a lawful act of war regardless of whether the perpetrators are deemed to be subject to military detention in connection with armed conflict.

As does Professor Kenneth Anderson of American University here:

Well. Kal Raustiala is one of the brightest international law scholars around, and I have enomous respect for him, but this piece does not move me. It sets up a false dichotomy between ‘criminals’ and ‘combatants’, and then argues that the Bush administration has treated terrorists as combatants whereas it should treat them as criminals. This is an argument that has been going on since approximately September 12, 2001 - it is more than a bit of a dinosaur, I would have thought - and it surprises me that anyone would still be wanting to have it in these terms. More to the point - you can argue for pretty much all of the reforms of the system that the op-ed calls for (important ones of which I in fact support) without having to go back and make claims about the fundamental wrongness of the administration’s legal judgments about the applicability of the laws of war.

Professor Anderson then goes on in his typically thorough style to deconstruct all of their arguments, which I won’t attempt to reconstruct here.

However, I will post a few of my favorite “zingers” fired off by Professor Anderson:

To be perfectly blunt, at every meeting I have attended since 2001 - perhaps half a dozen - in which Clark spoke about terrorism, he made his centerpiece this point that terrorists are not soldiers and we shouldn’t treat them that way; he does not appear to have thought about it any further than that since then.

The op-ed suggests - in my view a straw man argument - that because the administration characterized Al Qaeda members as combatants, and had the attackers limited themselves to the USS Cole attack, solely on a military target, and skipped - well, what? 9/11, the African embassy bombings, the 1993 WTC attack, and a long list more - then they would had to have been treated as legal combatants rather than criminals. The fundamental premise of this argument is from an alternative universe, and a distant one at that. Why on earth are we discussing this?

Professor Chesney and Professor Anderson seem to have the better of the argument, and both posts are worth checking out!

Most of us blogging here love International Law— and with that oftentimes comes a love of internatioanl cuisine. In the spirit of that I’ve decided to post a quick video about how to make a mouthwatering dish, courtesy of my good friend Dave Caputo (who I’m hoping becomes a Food Network star someday).

From his description:

Regional/Seasonal cooking, Harvest Sausage and Grapes is the recipe demonstrated in this video. If you are looking for an easy dish that is sure to impress at a wine tasting…this is the perfect dish. We all know that people eat with their eyes first, and this dish is as beautiful on the plate as it tastes. Sweet and Savory is the perfect way to describe this delicious dish! I know that I have what it takes to be the Next Food Network Star…if you agree, let me know!

WATCH the short video HERE