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.
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.
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.
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 CrimeAgainst 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 .
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
DoD has announced today that charges have been sworn against six detainees alleged to have been involved in the September 11th attacks.
Swearing of Charges- The cases have been sworn as capital cases and have been sworn collectively (e.g. all six will be on trial at once as co-conspirators). The new courtroom which is complete and will be operational in March has six defense tables and three prosecution tables, so the facilities can accomodate this number of defendants and counsel. Also, the new courtrooms have a glass wall which will allow the court to mute any discussion of classified information, but observers will still be able to observe what the parties are doing. This is similar to the international tribunals in the Hague with the exception that those international tribunals feature a steel wall which is lowered during the discussion of classified information, preventing observers from even seeing the parties.
The fact that these cases have been sworn as capital does not mean that the convening authority will refer them as capital, the convening authority has the discretion to bump charges down (e.g. from capital to non-capital, but cannot bump them up). In my opinion it is probably a better idea to let KSM et.al. languish in the general population of a prison, rather than execute them so their faces can appear in martyrdom videos and Al Qaeda propaganda.
After swearing, the convening authority reviews the charges for legal sufficiency and determines whether there is reasonable belief/probable cause that the evidence the government has put forth will support the charges alleged. There is no time limit for this review. Once the convening authority concludes that there is reasonable belief the evidence supports the charges, she refers it to trial.
Referral and Trial- Once referred the detainees must be arrainged within 30 days. The trial clock also begins at referral requiring that the accused be brought to trial within 120 days from referral. The trial clock stops for delays such as motions by the defense. For example, the Khadr case was referred in early May 2007, he was arrainged on November 8, 2007, however only 28 days of the 120 day clock have been used as a result of delay requests and appeals by the defense.
CIA Interrogation Evidence- Perhaps most importantly, a senior DoD official confirmed today that NO CIA interrogation evidence will be used in these trials. Much has been made lately of the waterboarding of three detainees, not using evidence derived from these interrogations may avoid some defense challenges. Also, it is important to note that information derived from torture cannot legally be used in the proceedings given the MCA’s explicit ban on such evidence. (Not everyone agrees the MCA’s ban is explicit).
Clearly, some of the six detainees could be tried on publicly available information. For example, KSM admitted responsibility for the September 11th attacks in his CSRT. Stating “I was responsible for the 9/11 operation, from A to Z,”.
Appeals- If convicted all of these detainees will enjoy an automatic appeal to the Court of Military Commission Review. They also will have optional appeals to the D.C. Circuit Court of Appeal and the U.S. Supreme Court.
The accused are:
1. Khalid Sheikh Mohammed- “the mastermind of the Sept. 11 attacks by proposing the operational concept to Usama bin Laden as early as 1996, obtaining approval and funding from Usama bin Laden for the attacks, overseeing the entire operation, and training the hijackers in all aspects of the operation in Afghanistan and Pakistan.”
2. Walid Bin ‘Attash- “is alleged to have administered an al Qaeda training camp in Logar, Afghanistan where two of the 19 Sept. 11 hijackers were trained. He is also alleged to have traveled to Malaysia in 1999 to observe airport security by U. S. air carriers to assist in formulating the hijacking plan.”
3. Ramzi Binalshibh- “alleged to have lived with the Hamburg, Germany, al Qaeda cell where three of the Sept. 11 hijackers resided. It is alleged that Binalshibh was originally selected by Usama bin Laden to be one of the Sept. 11 hijackers and that he made a “martyr video” in preparation for the operation. He was unable to obtain a US visa and, therefore, could not enter the United States as the other hijackers did. In light of this, it is alleged that Binalshibh assisted in finding flight schools for the hijackers in the United States, and continued to assist the conspiracy by engaging in numerous financial transactions in support of the Sept. 11 operation.”
4. Ali Abdul Aziz Ali- “alleged to have included sending approximately $120,000 to the hijackers for their expenses and flight training, and facilitating travel to the United States for nine of the hijackers.”
5. Mustafa Ahmed Adam al Hawsawi- “alleged to have assisted and prepared the hijackers with money, western clothing, traveler’s checks and credit cards. He is also alleged to have facilitated the transfer of thousands of dollars between the accounts of alleged Sept. 11 hijackers and himself on Sept. 11, 2001.”
6. Mohamed al Kahtani- “alleged to have attempted to enter the United States on August 4, 2001, through Orlando International Airport where he was denied entry. It is also alleged that al Kahtani carried $2,800 in cash and had an itinerary listing a phone number associated with Hawsawi.”
Murder, attempted murder, material support, conspiracy and spying are the charges against Omar Khadr who recently faced a military commission which heard challenges to its jurisdiction. I’ve previously blogged in detail about those charges here. As I’ve previously noted, Khadr comes from a dedicated al Qaeda family, with a family tradition of terrorism. Abdurahman Khadr, Omar’s brother boldly stated “I admit it that we are an al-Qaeda family. We had connections to al-Qaeda.” and later revealed that he had been “raised to become a suicide bomber.”
Khadr’s father Ahmad was killed in a targeted missile strike(others say in a shootout) in Pakistan. Prior to his death, Ahmad Khadr was a long time member of al Qaeda and rose to the highest levels of the al Qaeda terrorist network, commanding a region of Logar per the direct orders of Osama Bin Laden. Ahmad Khadr contributed to al Qaeda in the form of financial support and personnel assistance to further the organization’s international terrorism objectives. In particular, he encouraged his sons to join al Qaed and to carry out its work. The recently released “Book of 120 Martyrs” an al Qaeda recruiting tool states that Khadr married a Palestinian who “shared with him his march to jihad, and Allah granted them several sons who shared this long, tiresome march with him.” Omar Khadr heeded his father’s call.
Omar Khadr and his family made yearly trips to the bin Laden compound in Jalalabad Afghanistan, meeting with bin Laden, Al-Zawahiri, and other senior leaders. Khadr, not only met with senior leadership, he also attended various training camps learning the tradecraft of an international terrorist. He was trained to use rocket propelled grenades, rifles, pistols, hand grenades and explosives. He is alleged to have put his skills to use converting land mines to IED’s, planting IED’s along U.S. military routes of travel, and conducting surveillance against U.S. forces in preparation for future attacks.
In fact recently released footage shows Khadr making and emplacing an IED.
Also, footage from Iraq, gives us an idea of the other type of al Qaeda training which Khadr was likely to have gone through (Hat tip to BlackFive). That training shows children learning kidnapping and assasination, the type of conduct for which we wouldn’t hesitate to try a minor as an adult for in a domestic court.
Of course as readers know, Khadr concluded his al Qaeda tour of duty in a firefight on July 27, 2002, where he threw a grenade killing Sergeant First Class Christopher Speer of the 3rd Special Forces Group and partially blinding Sergeant First Class Layne Morris. In the firefight Khadr was shot four times by U.S. forces who then stepped over the bodies of their comrades to save his life. He was detained, provided medical treatment and sent to Guantanamo.
Khadr’s attorney’s make the argument that he was entitled to kill Sergeant Speer because Speer was a lawful target, and Khadr’s actions were not a war crime at the time he commited them. Furthemore, Defense lawyers and a UN representative have argued that if the U.S. tries Khadr, it will be a violation of the Optional Protocol to the UN Convention on the Rights of the Child, points which Colonel Davis, the former Chief Prosecutor took issue with in the comments here. Davis states:
1) The issue the protocol and lists of countries stating opposition to the recruitment of child soldiers does not speak to their conduct, it speaks to bans on recruitment.
2) Article 37(a) of the Convention on the Rights of the Child places limits on punishment, not prosecution.
3) The U.N. sanctioned Special Court for Sierra Leone’s Statue in Article 7 allowed for jurisdiction over persons 15 years of age.
After the conclusion of the Saddam Hussein trial, which was perhaps the messiest trial in legal history, I was invited by Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, to make a presentation to his staff about the best ways an international criminal court can maintain control of a war crimes trial in the face of a defendant or defense counsel who seeks to disrupt the proceedings. I subsequently was invited to speak about this important issue to the judges and prosecutors of the Rwanda Tribunal and Cambodia Tribunal. The text of my presentation is available on the ICC’s website: http://www.icc-cpi.int/otp/otp_guest_lectures.html and has subsequently been published as: Michael P. Scharf, Chaos in the Courtroom: Controlling Disruptive Defendants and Contumacious Counsel in War Crimes Trials, 39 Case Western Reserve Journal of International Law 155-170 (2007).
Because of the political context and widespread publicity, former leaders on trial such as Charles Taylor, Saddam Hussein, Slobodan Milosevic, and Vojislav Seselj, are more likely than ordinary defendants to perceive that they do not stand a chance of obtaining an acquittal by playing by the rules. Instead, such individuals will often attempt to derail the proceedings, hoping for a negotiated solution such as a pardon or amnesty. They may try to hijack the trial, hoping to transform themselves through their political diatribes into heroic martyrs in the eyes of their followers. And at the same time, they may seek to discredit the tribunal, hoping to provoke the judges into inappropriately harsh responses which will make the process appear patently unfair. For this reason, major war crimes trials are often perceived as extremely messy or worse, completely out of control. When the Charles Taylor trial began last summer, there were indications that it would follow that pattern, as Taylor made inflammatory speeches, fired his lawyer, and sought to represent himself at the trial’s first session.
As Robert Jackson, the Chief Prosecutor at the Nuremberg trial, observed sixty years ago, war crimes trials, whether before international tribunals or domestic courts, seek to establish a credible historic record of abuses and elevate the rule of law over the force of might, thereby facilitating the restoration of peace and the transition to democracy. While tolerating dissent is a healthy manifestation of a democratic government, a courtroom is not an arena in which dissension, particularly of a disruptive nature, may supplant, or even take precedence over, the task of administering justice. Unlike other forms of acceptable political expression, a disruptive defendant or defense lawyer who interferes with the “grandeur of court procedure” (as Hannah Arendt once described the judicial process) threatens the proper administration of criminal justice in several fundamental ways. First, disruptive conduct renders it more difficult for the defendant and any co-defendants to obtain a fair trial. Second, it hampers the court’s ability to facilitate the testimony of victims and other witnesses. And third, it undermines the public’s confidence in and respect for the legal process.
With this in mind, the Special Court for Sierra Leone wisely held in Prosecutor v. Norman (2005) that the defendant’s right to employ disruptive tactics which seek to discredit the judicial process must give way to the tribunal’s obligation to protect “the integrity of the proceedings” and “to ensure that the administration of justice is not brought into disrepute.” Following the recipe outlined in my presentation/article, the Special Court for Sierra Leone has taken appropriate actions to make sure that the Charles Taylor trial avoids the missteps of the messy war crimes trials of the past. For example, the Tribunal has required that Taylor be represented by counsel, rather than allow him to use self-representation to turn the trial into a circus. And it has provided Taylor and his counsel detailed warnings of the incremental and calibrated Judicial responses they can expect to encounter if they engage in disruptive conduct.
Based on my impressions from watching the live feed of the Taylor trial at http://www.sc-sl.org/ it appears that the Tribunal has succeeded. Defendant Charles Taylor is behaving himself quite admirably in the courtroom, and at the same time is taking a constructive part in his own defense. He is seen constantly writing and often passing sticky notes to his lawyer, Courtenay Griffiths, who uses them during cross-examination. Taylor stands respectfully when the judges enter the courtroom, and has done nothing remotely disruptive - though his very presence is of course intimidating to witnesses who fear for their lives and are under the heaviest security imaginable. The press made a big deal that Taylor blew a kiss to his daughter sitting in the public gallery viewing to the trial on the first day, and he occasionally stares people down in the public gallery, but for the most part he seems to be quietly paying attention to what’s going on in the court.
Taylor’s new legal team has been doing an impressive job. British Barrister Courtenay Griffiths is quite tough on the witness, he grandstands from time to time, he tries to induce the witnesses into making exculpatory statements about his client, and he does his best to generate inconsistencies in their stories — basically he’s doing exactly what an outstanding defense attorney should be doing, which in turn bumps up the credibility of the entire process. The Taylor trial is animated - but within the ground rules of the court. This is a far cry from the Milosevic, Seselj and Saddam Trials, where the defendants and their counsel regularly disparaged the judges, interrupted witness testimony with outbursts, turned cross-examination into political diatribes, and staged frequent walk-outs, hunger strikes, and boycotts. It remains to be seen whether things will continue to go so well, but for now it does appear that the SCSL has learned from the lessons of the past and is setting a good precedent for the future.
Anfal Judges to Speak at Case Western on January 29, 2008
On June 24, 2007, the Iraqi High Tribunal convicted “Chemical Ali” (Ali Hassan al-Majid) and five other military leaders of Saddam Hussein’s regime of international crimes related to their roles in a three-year crackdown of northern Iraqi Kurds known as the Anfal campaign. The Tribunal’s judgment marks one of the only times in history individuals have been convicted of genocide - the worst crime known to humankind.
The Iraqi High Tribunal and the US Regime Crimes Liaison Office (RCLO) have provided Case Western Reserve University the just-completed English translation of the Anfal Trial Judgment for us to post on our award-winning Grotian Moment Website: <http://law.case.edu/grotian-moment-blog/ . This is the only place in the world where researchers can read the English translation of the historic opinion, whose 900 pages detail the legal and factual conclusions of the Tribunal. Note, at the request of RCLO all witness/victim/family names have been redacted for their safety.
The judges who presided over the Anfal trial will be making a live presentation at Case Western Reserve University School of Law at 4:00 pm on January 29, 2008. Through translators, the judges and other officers of the Iraqi High Tribunal will discuss the challenges faced, the precedent that their historic judgment set and the question of fairness in the proceedings.
This trip, which also includes stops at American University and Vanderbilt, will mark the judges’ first public appearance outside of Iraq. A transcript of the January 29 session will be posted on the “Grotian Moment” website after the event.
This program is part of the law school’s year-long series to commemorate the 60th anniversary of the Genocide Convention, which has included a day-long symposium on September 28 that featured Robert Petit, Chief Prosecutor of the Cambodian Genocide Tribunal; the October 16 Cox Center Humanitarian Award Lecture by Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, and the January 15 Klatsky Human Rights Lecture by Yale Law Professor W. Michael Reisman. The webcasts of those events are available for viewing on demand at: http://law.case.edu/lectures.
The law school provides research assistance to five war crimes tribunals, including the Iraqi High Tribunal, and has a special program in which students spend a semester interning at the international tribunals. Currently, third-year law student Brianne Draffin (Editor in Chief of War Crimes Prosecution Watch) is serving as a judicial clerk/intern to the judges of the Sierra Leone Tribunal who are presiding over the trial of former Liberian President Charles Taylor.
Amos and I previously blogged about the debate between Col. Davis, the former Chief Prosecutor for the Office of Military Commissions and BG Hartmann the legal advisor to the Office of Military Commissions. To access those posts click here and scroll down.
Col. Davis has now responded to BG Hartmann, here. Funny quote from Col. Davis: “In a figurative sense, I suppose I’m not the first person associated with Guantanamo to be bound and gagged before having cold water poured on him, although in my case it is intended to induce me not to talk.”
It’s interesting to see this public debate unfold, although I would have preferred to see it in the form of Congressional testimony.
The AIDP is the oldest association of criminal law specialists in the world and one of the oldest scientific associations. This blog serves as a discussion site for all things law, with a focus upon criminal law, comparative criminal justice, international criminal law, international humanitarian law, war crimes, international criminal tribunals, human rights and counterterrorism law & policy.
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