AIDP Blog

This is a link to an op-ed published in the Salt Lake Tribune, June 21, 2008  and to be published in the East Valley Tribune, June 22, 2008 that I have co-authored with Dan Barr of Perkins Coie Brown and Bain proposing the establishment of a US domestic terror court. The proposal, based on my testimony earlier this month before the Senate Judiciary Committee, is written in light of the Supreme Court’s decision in Boumediene.

Cross-posted on National Security Advisors.

Learn more about my casebook, Global Perspectives on Counterterrorism here

I regret that my post is delayed somewhat by travel. I am at present writing from Venice, en route to which I had occasion to do more thinking about the implications of Boumediene than I did for detailed dissection of its precise phraseology. The fortuity of my presence overseas allows me to report the prevailing media spin that Boumediene represents a reestablishment of American law and a repudiation of the U.S. military acting as “jailor, judge, and jury.”

Franklin D. Roosevelt captured the essence of the moral struggle to preserve the American way of life in World War II by telling the nation that “the mighty action we are fighting for cannot be based on a disregard of all things worth fighting for.” The struggle to refine the optimal balance between the president’s duty to “preserve, protect, and defend” the constitution and the executive obligation to protect American lives and property may very well be the most enduring question of our time. At its heart, Boumediene rests on the straightforward legal determination by the Court that the Suspension Clause applies to the detainees in U.S. custody at Guantanamo Bay, followed by the rather predictable conclusion that the circumstances motivating the Congressional deprivation of habeas rights to the detainees did not rise to those specified in the constitution itself. Viewed in the stark terms portrayed in the media, the case can be seen as a validation of essential conditions of human liberty against the exercise of raw governmental power. Given that a president who disagrees with the court’s conclusions has publicly stated that he will nevertheless comply with its opinion, Boumediene does represent all that is best about an America dedicated to law and the preservation of life and liberty.

At the same time, there is a vaguely disquieting dimension to the Boumediene decision. The heart of the majority analysis relies on the assumption that the present system of Combatant Status Review Tribunals combined with the oversight and remedial powers of the D.C. Circuit Court of Appeals is inadequate to protect the essential human liberty of the detainees. The factual record indicates otherwise given that far more detainees have been released from Guantanamo than are currently in custody, and the current procedures provide both for periodic individualized reviews as well as a new CSRT when evidence surfaces that could result in a reversal of a previously determined status. By sheer coincidence, the Secretary of Defense recently ordered a new CSRT for Haji Bismullah on the basis of new evidence that could lead to his release. Because the Secretary’s request rendered the prior CSRT a non-final decision, the Solicitor General subsequently requested that the Court remand Bismullah’s case from its pending decision in Gates v. Bismullah. http://www.scotusblog.com/wp/wp-content/uploads/2008/05/sg-letter-re-bismullah-5-8-08.pdf

Although Justice Souter postulates the necessity for the majority opinion on the truism that “some of these petitioners have spent six years behind bars,” the evidence is that the system is indeed working to release those who do not pose a continuing threat to American interests and citizens. Furthermore, the majority establishes constitutional habeas rights, even as it acknowledges that an Article III process will not foreclose further confinement for future petitioners on the sole basis of a hostile status.

I do not believe that the Court intended its Boumediene reasoning to be read as automatically requiring release of any of the present detainees who do represent a continuing threat to the American constitutional order. The decision nevertheless contains the seeds for profoundly troubling extrapolations. For example, if the requirement for a “competent tribunal” found in Article 5 of the Third Geneva Convention is distorted in the future to mean an established Article III court, then the hands of the military would be bound with devastatingly deleterious effects on military operations overseas. The negotiating record for the Geneva Conventions and the official Commentary are both clear that the phrase “competent tribunal” was specifically negotiated to be much more operationally flexible than the preexisting domestic court systems. Boumediene cannot be properly read as applying in the context of an international armed conflict wherein the clear mandates of the Geneva Conventions have been applied.

Finally, while Boumediene is portrayed as somewhat inspiring and idealistic, there is a troubling disconnect in its pragmatic implications. In practical terms the majority candidly admits that its decision “does not address the content of the law that governs petitioners’ detention.” I am struck by the immense disconnect between the moral certainty with which the court creates a substantive right that can be gleaned neither from the law of armed conflict nor from any clear precedent, but at the same time creates such enormous uncertainty and moral confusion. There are more than a few federal judges who are today beginning to ponder some of the following important questions as cases begin to be filed: What are the standards of review? Does the voice of military expertise get ANY deference? Are the previous findings of CSRT panels to be completely discounted as if they were mere martinets in the hands of an overweening chief executive? Can any evidence that would be inadmissible hearsay if a specific petitioner were charged criminally provide the basis for continuing detention? What are the limits of the right to petition the court for witnesses on the petitioners’ behalf? Do the normal CIPA provisions apply [which are quite similar to those used in the military commission proceedings] or will a future Court hold that Boumediene requires some more expansive access for detainees to personally assess and rebut extremely sensitive classified information?

In the end, after the inevitable delays caused by debate, deliberation, and development, I am hopeful that the imprimatur of Article III authority actually provides minimal substantive difference. In that event, federal habeas review will have served to validate the professionalism and patriotism of those who have sacrificed the past six years to protect America while respecting legal norms. Boumediene represents a striking reinforcement of our constitutional separation of powers; I pray that the quest to balance civil liberties does not in the end deprive our citizens of their lives or liberties.

Cross Posted at Opinio Juris

The BBC “The World” (radio broadcast) has reported that ICC Chief Prosecutor Luis Moreno-Ocampo will begin filing indictments against several top Sudanese Government officials next month, accusing the entire government of playing a role in crimes against civilians in Darfur.

To date the highest level official to be indicted is Ahmed Muhammed Haroon, former Interior Minister.  Rather than surrender Haroon, the Sudanese regime promoted him to Minister for Humanitarian Affairs, where he was placed in charge of the very refugees that he and his troops had assaulted and terrorized.

To listen to the broadcast, which includes an interview with this commentator (Scharf), click http://www.theworld.org/?q=node/18568

The BBC “The World” (radio broadcast) has reported that ICC Chief Prosecutor Luis Moreno-Ocampo will begin filing indictments against several top Sudanese Government officials next month, accusing the entire government of playing a role in crimes against civilians in Darfur.

To date the highest level official to be indicted is Ahmed Muhammed Haroon, former Interior Minister.  Rather than surrender Haroon, the Sudanese regime promoted him to Minister for Humanitarian Affairs, where he was placed in charge of the very refugees that he and his troops had assaulted and terrorized.

To listen to the broadcast, which includes an interview with this commentator (Scharf), click http://www.theworld.org/?q=node/18568

The Appeals Chamber of the Special Court for Sierra Leone recently ruled that forced marriage is a new category of crime against humanity, reversing the Trial Chamber’s determination that forced marriage was not distinct from the previously recognized crimes against humanity of rape, forced prostitution, and sexual slavery.

“What had occurred here with forced marriage was something very serious and very specific, and wasn’t fully recognized,” Stephen Rapp, the chief prosecutor at the Special Court for Sierra Leone, told the Christian Science Monitor last week. “It was part of a widespread attack against civilians. Women were being taken as wives without consent, either consent by them … or by family members.”  See http://www.csmonitor.com/2008/0610/p06s01-woaf.html

The court’s first rulings on the charges, brought against three members of the notorious Revolutionary United Front, are expected in July.  The decision paves the way for similar charges in northern Uganda and the Democratic Republic of Congo, where rights groups have documented the use of bush wives in ongoing conflicts.

In arguing the case for recognizing forced marriage as a new category of crime against humanity, the Prosecutor of the Special Court for Sierra Leone utilized a memorandum prepared by the Case Western Reserve University School of Law War Crimes Research Office, which I direct.  The memo was subsequently published as Michael P. Scharf and Suzanne Matler, Forced Marriage: Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity, Volume 3 of the Africa Legal Aid Special Book Series: “African Perspectives on International Criminal Justice” (2005), the text of which is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=824291 .

I have been invited to testify before the Senate Judiciary Committee in a hearing on June 4, 2008, entitled “Improving Detainee Policy:  Handling Terrorism Detainees within the American Justice System.”  I will testify regarding my proposal advocating the establishment of a domestic terror court in the US.

To watch the Senate Judiciary Committee hearings on Wednesday, June 4, open wwww.CapitolHearings.org
Click on Room number Dirksen 226 from  the scrolling list to the right of the screen to begin streaming audio.

The executive summary of my testimony appears below. Click here to read the full text of the prepared testimony.

Improving Detainee Policy:  Handling Terrorism Detainees within the American Justice System

(Executive Summary)

Considering how to handle terror detainees within the American justice system, there are three forum options: (1) treaty-based international terror courts, (2) traditional Article III courts, and (3) a hybrid option which I call “domestic terror courts.” This testimony discusses the feasibility of each forum and recommends domestic terror courts as the practical solution to detainee policy, as a legal regime for the trials of those detained post-9/11.

In response to the Supreme Court decision, Hamdan v Rumsfeld, 126 S.Ct. 2749 (2006), I have developed a model that enables the trying of terrorists while meeting judicial scrutiny by drawing on certain elements of the criminal law process. Incorporating elements of the American criminal law and criminal procedure paradigm, and drawing on the Israeli two-tiered system for the trying of terrorists, this testimony offers the forum of the domestic terror courts as a concrete recommendation for how to handle detainees post-Hamdan.

Furthermore, the testimony addresses the limits of the applicability of the criminal law process, particularly with respect to the right of detainees to confront their accusers. Detainee trials are largely based on intelligence sources whose identity cannot be disclosed. The lack of disclosure prevents full implementation of the Sixth Amendment confrontation clause.

Ultimately, my model balances the defendant’s basic rights with equally legitimate national security considerations. Therefore, the domestic terror court option is the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.

Cross-posted on National Security Advisors Blog.

Learn more information about my casebook Global Perspectives on Counterterrorism here.

On May 15, I will speak before the U.S. House Committee on Homeland Security’s Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment.

The hearing is titled “The Resilient Homeland: How DHS Intelligence Should Empower America to Prepare for, Prevent, and Withstand Terrorist Attacks.”

The hearing will convene at 10:00 a.m. EST in 311 Cannon House Office Building.

Click here to view a live webcast of the hearing.

The executive summary of my testimony appears below. Click here to read the full text of the prepared testimony.

The Resilient Homeland: How DHS Intelligence Should Empower America to Prepare for, Prevent, and Withstand Terrorist Attacks (Executive Summary)

To ensure a resilient homeland in a post-9/11 society, the United States must have a homeland security strategy that (1) understands the threat, (2) effectively counters the threat while preserving American values, (3) establishes a system of accountability, and (4) creates public-private and federal-state partnerships facilitating intelligence sharing and the continuity of society in the aftermath of an attack.

It is necessary to work with clear definitions of the terms and concepts that frame this strategy for resiliency. As I have previously articulated, “one of the greatest hindrances to a cogent discussion of terrorism and counterterrorism has been that the terms lack clear, universal definitions.” For this reason, I provide clear, concrete definitions of terrorism, counterterrorism, homeland security, effectiveness, accountability, and resiliency—the key terms in articulating the strategy for a resilient homeland. In addition to these definitions, I include two critical matrices for: Determining Effectiveness and Implementing Accountability.

The central focus of this testimony examines the dire consequences of the break-down in communications following both 9/11 and Hurricane Katrina, which suggests that in order to realize resiliency in the future, it is paramount that there is clear cooperation and coordination between the public sector and the private sector. Effective resiliency will ultimately be tied to establishing public-private partnerships.

In establishing these partnerships, they must be based upon three critical components: (1) clearly defined roles and responsibilities; (2) articulating a coordinated prevention-response plan; and (3) repeated training and/or simulation exercises using the prevention-response plan against realistic disaster/terror scenarios. By strategically strengthening security, sharing intelligence, and creating plans for post-attack procedures (such as evacuation plans, transportation plans, establishing places of refuge, and having basic supplies available to aid first-responders) private partners become the key to a secure and resilient homeland.

The importance of information before, during and after a disaster or attack is vital to resilience. Information sharing is, perhaps, the single most important aspect of successful resilience. Information sharing requires government agencies (federal, state and local) to share information both amongst themselves and with the private sector. Furthermore, it requires that the private sector—subject to existing legal and constitutional limits—share information with the public sector. Successful information sharing requires cooperation and coordination both internally (within sectors) and cross sectors (between public-private entities).

The lessons of 9/11 and Katrina speak for themselves. Resilience in the aftermath of either disaster or attack requires federal, state and local government agencies to understand that information sharing is vital to the nation’s homeland security. That information sharing process must include the private sector. Otherwise, the mistakes of yesterday will inevitably re-occur.

Cross-posted on National Security Advisors Blog.

Learn more information about my casebook Global Perspectives on Counterterrorism here.

On June 24, 2007, the Iraqi High Tribunal handed down its decision in the Anfal Campaign trial, convicting “Chemical Ali” (Ali Hassan al-Majid) and five other high ranking military leaders of the former Iraqi Regime of international crimes related to their roles in a 1980s crackdown against northern Iraqi Kurds (English version of Judgment available at http://law.case.edu/grotian-moment-blog/anfal/opinion.asp . On Tuesday, January 29, 2008, Case Western Reserve University School of Law hosted a two-hour live presentation by the President/Chief Appeals Judge of the Iraqi High Tribunal, the five judges who presided over the Anfal Campaign trial, and the Prosecutor who tried the case.  This trip to the United States marked their first public appearance outside of Iraq. Through a translator, the Judges and Prosecutor discussed the challenges that they faced, the precedent that their historic judgment sets, and the question of whether the proceedings were fair.  They also discussed the controversy surrounding the pending execution of “Chemical Ali” — an issue that has been front page news this week.  To view the transcript of this extraordinary session (including Q&A) on the Grotian Moment Blog, click on:  http://law.case.edu/grotian-moment-blog/content.asp?t=1&id=141

In response to President Bush’s decision to veto legislation outlawing waterboarding, Daniel C. Barr (Perkins Coie Brown & Bain) and I wrote this op-ed, Veto of Bill Banning Torture Places Interrogators in a Bind, published in today’s Salt Lake Tribune.

Cross-posted on National Security Advisors Blog.

Learn more information about my casebook Global Perspectives on Counterterrorism here.

View my debate with John T. Parry, Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists

Abstract:
Despite the fact that six years have passed since 9/11, the Pentagon’s recent decision to try six Guantanamo detainees for capital crimes such as terrorism and support of terrorism made national headlines. William Glaberson, U.S. Charges 6 With Key Roles in 9/11 Attacks, N.Y. Times, Feb. 11, 2008, at A1. In this Debate, Professors Amos N. Guiora, of the University of Utah, and John T. Parry, of Lewis & Clark Law School, attempt to settle the question of what sort of forum is most appropriate to try the thousands of individuals in U.S. custody who are suspected of terrorism.

Professor Guiora considers three forum options: treaty-based international terror courts, traditional Article III courts, and a hybrid option he calls domestic terror courts. Ultimately, Professor Guiora argues in favor of domestic terror courts, which he describes as being able to balance the legitimate rights of the individual with the equally legitimate national security rights of the state. He considers this option to be the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and an awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.

Professor Parry agrees that current U.S. policy toward detainees has been misguided, but does not believe that innovations of the sort proposed by Professor Guiora are necessary. Rather, he suggests that policymakers should choose Article III courts rather than hybrid courts for trials of suspected terrorists, with military courts as a fallback option. Professor Parry points to research that shows that the federal government is often able to prosecute suspected terrorists in federal court, and therefore considers alternative proposals to Article III courts to be solution[s] in search of a problem. Professor Parry realizes that trial in federal court will not be possible for every suspected terrorist, and concludes that, [f]or people who pose a risk but whose conduct may not violate federal criminal law, prolonged preventive detention is the best choice.

Cross-posted on National Security Advisors Blog.

Learn more information about my casebook Global Perspectives on Counterterrorism here.