Judge Orders DOJ to Identify Any NSA Connection in Terrorism Case:
The Associated Press reports:
  In a ruling made public on Tuesday, a federal judge said the government must disclose whether it used any information from the domestic eavesdropping program in its case against a man convicted of joining Al Qaeda and plotting to assassinate the president.
  The judge, Gerald Bruce Lee, postponed the sentencing of the man, Ahmed Omar Abu Ali, at the request of defense lawyers who said they suspected that he was illegally singled out by the eavesdropping program.
  In the ruling, Judge Lee gave prosecutors until March 9 to submit a sworn declaration from a government official to say whether any information from the eavesdropping was used in Mr. Abu Ali's case.
  An interesting development. For background on the arguments, see this story from February 11th and this story from last week.
Noah Klein (mail):
Prof. Kerr,

If the judge is provided with evidence that the NSA program was used to convict Abu Ali, does that mean that the judge can rule for a mistrial and require a new trial for Abu Ali? Furthermore, would the judge's ruling be appealable? If so, we might just have a case that is justiciable.

2.22.2006 3:37am
KMAJ (mail):
Another Clinton appointed judge, why is this not a surprise he sides with a terrorist. The man was captured in Saudi Arabia. That's two Clinton appointees siding with terrorists so far. The left still wants to treat terrorism as a law enforcement problem.

I recommend, never thought I would utter these words, Prof. Alan Dershowitz's new book, ""Preemption, A Knife That Cuts Both Ways". Tony Blankley reviews it All Praise Prof. Alan Dershowitz

Dershowitz makes an argument I have been making all along, 9/11 and the War on Terror have created a different legal construct:

"The shift from responding to past events to preventing future harms is part of one of the most significant but unnoticed trends in the world today. It challenges our traditional reliance on a model of human behavior that presupposes a rational person capable of being deterred by the threat of punishment. The classic theory of deterrence postulates a calculating evildoer who can evaluate the cost-benefits of proposed actions and will act -- and forbear from acting -- on the basis of these calculations. It also presupposes society's ability (and willingness) to withstand the blows we seek to deter and to use the visible punishment of those blows as threats capable of deterring future harms. These assumptions are now being widely questioned as the threat of weapons of mass destruction in the hands of suicide terrorists becomes more realistic and as our ability to deter such harms by classic rational cost-benefit threats and promises becomes less realistic."

Dershowitz argues that the concept of 'it is better to have 19 guilty men go free than one innocent man go to jail' is no longer applicable, instead he asks the question:

"Is it better for ten possibly preventable terrorist attacks to occur than for one possibly innocent suspect to be preventively detained?"

It seems that the left answers in the affirmative, the pre-9/11 mindset in action, and exercised by the judge in the above case. For the left, it is all about getting Bush in court, even if they have to help and use terrorists to do it. It's pretty sad when someone's first reaction is not about a terrorist trying to use a technicality, due to an illegal leak of classified information (which they are also not concerned about), but about whether this terrorist gives them a justiceable case to go after Bush.
2.22.2006 5:24am
Bruce Hayden (mail) (www):
I am of a couple minds here, so, I would probably allow the request. After all, if it turns out that the NSA program was used, they still have to face the suppression motions, and then the DoJ can make any arguments it wants to about exigent circumstances and the like.

I would be more on the govt. side if this were obviously terrorism, esp. if it involved illegal aliens. But we have had assassination attempts against the president for centuries here, and rarely are they directly tied to terrorism.
2.22.2006 6:31am
go vols (mail):

You might be correct--perhaps the risks created by the freedom of information and groups of ill will necessitate a change in the fundmentals of how we approach innocence and criminal law. Reading about the reaction of our society to both the anarchists and the Communists, one gets the sense that every generation believes they live in a "special" time, more dangerous than all those ages that came before it. And, yet, the nation manages to survive without such fundamental change.

For this liberal (not really a member of the "Left"), it is trying to the take long view on the relationship between civil liberties and government action. Islamic terrorism will not always be a threat to us, but we will always have a government, If you embrace preemption in this context, will you be able to prevent its spread to criminal law as a whole? Economic policy? (look at how the "precautionary principle" works at the EU) Do you really want to let this genie out of the bottle?
2.22.2006 7:43am

I assume your comments also apply to the Department of Justice and President Bush, since he is ultimately responsible for the decision to prosecute Abu Ali for a crime.

Incidentally, I agree with the general idea that we need a new legal framework to deal with preventing terrorist acts, and I think Congress has been shamefully avoiding the problem. And one of the many reasons I agree with that idea is that it is practically inevitable that people will see any application by a court of traditional criminal procedures to terrorism prosecutions as "siding with the terrorists".

And despite how obviously wrong such a statement would actually be, I am afraid it will be sufficiently "truthy" for certain people.
2.22.2006 8:14am
Smithy (mail) (www):
KMAJ is right. These Clinton era people still have a pre-911 mindset. We now know that oceans cannot protect us. We cannot let the terrorists know who we are fighting them. The liberals just don't get that. And they wonder why they lose elections.
2.22.2006 8:29am
boonelsj (mail):
I think Bruce makes a key point about suppression hearings. This isn't a ruling that any evidence obtained via the NSA program is suppressable, only that you have to tell the defendant once they've been charged so that they have an opportunity to argue it should be suppressed.
2.22.2006 8:30am
boonelsj (mail):
As a liberal who clearly doesn't get it, could someone please explain to me what the post-9/11 mindset is? Preferably without accusatory hyperbole.
2.22.2006 8:34am

Apparently the post-9/11 mindset would be that while the government is entitled to bring criminal prosecutions of suspected terrorists, judges are no longer entitled to rule against the government in any way in such criminal cases, because otherwise they would be siding with the terrorists.
2.22.2006 8:42am
Defending the Indefensible:
Medis, are you now in favor of some kind of star chamber proceeding?
2.22.2006 9:01am
nk (mail) (www):
From the previous stories our host linked, it looks like a Brady v. Maryland/pre-trial discovery issue and not so much a Fourth Amendment/Katz/FISA issue. If the prosecution withheld requested discovery it could be reversible error even if there was no illegality in the investigation itself.
2.22.2006 9:03am
Pretty amazing that a judge is "siding with the terrorists" if he requires the government to disclose where it got its evidence. Smithy is obviously a spoof, but I don't think KMAJ is.

This is most likely just a fishing expedition by the defendant, but it may get interesting because the government has a good chance of standing on principle. Even if there was no evidence obtained through the illegal spying program, the government will be disinclined to simply say so because they don't want to set a precedent for future prosecutions. The defendant may very well be banking on the government digging in its heels and refusing to say anything on national security grounds.
2.22.2006 9:04am
Defending the Indefensible:

Smithy and KMAJ are both trolls. KMAJ is at least an interesting one, however. He uses biting irony quite as well as anyone I've ever seen. Basically he adopts the position of advocating unfettered dictatorship without ever explicitly admitting it.
2.22.2006 9:11am
I don't know if you mean a troll in the sense of a spoofer, or in the sense of someone who honestly holds those beliefs but is simply trying to pick a fight, but I stand corrected.
2.22.2006 9:27am
Smithy, KMAJ,

Do you have a legal argument for why Judge Lee's ruling is incorrect? Or is your view that he is automatically incorrect because he made a ruling against the government? I look forward to your response.
2.22.2006 9:52am
Defending the Indefensible:

KMAJ is at least civil, but by your terminology he's a spoofer. Smithy just throws red meat around.
2.22.2006 9:55am

I'm not sure what you mean by a "star chamber proceeding," but I do think there is a problem with using the traditional criminal law for the purpose of preventively detaining agents of terrorist organizations.

Generally, I think something based more on a civil commitment model may be a better idea. However, that model would still require hearings in Article III courts where possible (and in Article I territorial or military courts only in limited circumstances), evidentiary rules, a burden of proof for the government, habeas corpus review, and so on. I also think it would require periodic review of prior detention decisions.
2.22.2006 9:56am
margate (mail):
nk said:
From the previous stories our host linked, it looks like a Brady v. Maryland/pre-trial discovery issue and not so much a Fourth Amendment/Katz/FISA issue. If the prosecution withheld requested discovery it could be reversible error even if there was no illegality in the investigation itself.

Respectfully, nk, I disagree. I think it is very much a 4th Amendment issue, as I explain below, because neither Rule 16(a) -- the criminal discovery rule -- nor Brady cover evidence of an illegal search.

Look at what the AUSA said in his brief (quoted in one of the story's Orin linked):
"The prosecution team in this case is unaware of any discoverable information that has not been disclosed to the defendant," prosecutor David Laufman wrote. "Nor is the prosecution team aware of any evidence admitted at trial that was illegally obtained or derived from evidence that was illegally obtained."

Parse what he's saying carefully [in a pre-9/11 way].

First, the AUSA is saying, in his view, nothing covered by Rule 16(a) has not been disclosed to the defense. Rule 16(a) does not cover information that may provide grounds for a suppression motion (e.g., evidence of an illegal warrantless search) because such information is not, in the federal courts' view, material to the defense on the question of guilt or innocence.

That same rationale applies to Brady -- "exculpatory" evidence as to guilt/innocense does not include proof of an illegal search.

So there is no Rule 16(a) discovery issue or Brady issue.

Second, the AUSA says he's not aware of any illegally-obtained evidence admitted at trial or any trial evidence derived from illegally-obtained evidence. The AUSA here is focused directly on the 4th Amendment.

This statement is wide enough to drive a space shuttle through, however, for several reasons.

Foremost, Al Gonzales says the NSA domestic spying operation is LEGAL. Hence, every DOJ line-attorney would seem to be obliged to say, "there's no illegal evidence here." Really, the AUSA is assuming away the issue with his statement. [Of course, as we don't have his brief, he may have said "there was no NSA spying" or something like that. We just don't know. But I'll assume he didn't say that.]

Next, he focuses his argument very narrowly on what was admitted into evidence. Even without seeing the trial transcript, it seems obvious that no secretly-recorded conversations or e-mails were admitted which came from NSA spying.

Two problems here.

The first is what exactly does the AUSA mean by the word "derived"? Is he using that term -- a term of art -- in the Kastigar/North/Poindexter sense, which offers a very generous standard by which a defendant can trace fruit-of-the-poisonous tree evidence? Or does he mean derived in a more narrow, direct sense?

The second problem is the AUSA is not saying, "we didn't use illegally obtained evidence from the NSA to prepare our trial strategy, our tactics, our witnesses, or to direct our investigation."

The AUSA's statements, in my view, were targeted quite clearly to avoid Rule 16(a) and dispute any 4th Amendment challenge by focusing narrowly on what was introduced at trial.

But in the end, this is a 4th Amendment issue (or FISA). Not a discovery problem under Rule 16(a).
2.22.2006 10:18am
volokh watcher (mail):
Isn't anyone just the slightest bit curious why the three Ohio guys recently arrested on terror-related charges are not being sent forthwith to GitMo as "enemy combatants"?

Isn't the very notion of arresting, instead of detaining for the duration, proof that a PRE-9/11 mindset has infected the administration?

Where's KMAJ on this?

Why isn't he trashing Bush for not treating these terrorists as enemy combatants by the stroke of a pen?

Padilla, an American, was arrested on American soil and detained for 3 years.

What's changed?

KMAJ, what's the story?

[As an aside, unlike his take on Scooter Libby, Bill O'Reilly has decided these three defendants are already guilty. Apparently, they wouldn't have been indicted if they weren't guilty. Libby, for some reason, gets the benefit of the doubt. I don't get that. As Ed Meese once famously said to USN&WR while Attorney General: "they wouldn't be suspects if they weren't guilty."]
2.22.2006 10:25am
volokh watcher (mail):

I know my last post -- about the 3 Ohio defendants -- is not directly within the scope of your original post. But I think my comments may "derive" from KMAJ and Medis's posts concerning "pre-9/11" thinking and Dershowitz's new book, respectively.

The 3 Ohioans' arrest does raise the question, perhaps for another post, of why the administration is treating these three alleged wannabe-terrorists as "mere criminals."
2.22.2006 10:32am
Houston Lawyer:
It's not clear upon what evidence this guy was convicted. Was it based solely upon his confession to the Saudis? If the NSA wiretaps are illegal and we gave information to the Saudis that prompted them to arrest him, is his confession then inadmissable? I assume that if the Saudis arrested and interrogated him using methods that are prohibited in this country that we could still use the fruit of those methods to prosecute him here. After all, the Saudis cannot violate his US constitutional rights, only we can do that.
2.22.2006 10:37am
Just an Observer:
volokh watcher,

It is interesting that except for Padilla, AFAIK all terrorism suspects captured in the United States have been charged within the criminal-justice system rather than held as "enemy combatants."

And in the Padilla case, the government maneuevered so creatively in an attempt to avoid Supreme Court review that it drew a rebuke from Judge Michael Luttig. (No doubt KMAJ will dismiss the judge as a leftist.) Perhaps the highest court will yet decide the merits of that case.

Altogether, the government's actions in these cases do not support the legalistic metaphor that the U.S. homeland is a theater of war where civilian courts have no role.
2.22.2006 10:38am
volokh watcher (mail):

Agreed. And you crystalized the point perfectly: Bush's claim -- like many posters on VC -- that the US is a battlefield is belied by his treatment of alleged terrorists.

America as battlefield is just another misleading tale from the administration, it seems. Red meat for the water-carriers. And more ammo for the fear-mongerers. Nothing more.
2.22.2006 10:51am
volokh watcher (mail):
Houston Lawyer:

Your scenario may implicate the discredited "silver platter" doctrine. Before the SCt held that the 4th Amendment applied to the states, it was not uncommon for evidence illegally seized by state officials to be delivered to federal agents to be used against the defendant.

But the SCt has since rejected that idea, as well as the use of evidence that private or state actors assisting the federal government illegally obtained.

This principle ties into extraordinary rendition. While it may be okay in the UAE, for example, to pull someone's fingernails off to get a confession. That confession -- if the UAE was assisting the feds -- cannot be used in a US court.

That's why I suspect those subjected to rendition will never be seen on these shores again.
2.22.2006 11:03am
That's an excellent analysis, margate. I agree that the question of whether the information should have been turned over is coextensive with the question of whether the search was illegal.

We're all talking about theoretical issues here as it seems extremely unlikely that the evidence against this defendant, who was under investigation prior to 9/11, had anything to do with the illegal spying program.

I assume that if the Saudis arrested and interrogated him using methods that are prohibited in this country that we could still use the fruit of those methods to prosecute him here.

I think this depends on whether the methods at issue render the evidence too suspect to admit. Obviously we don't care if the Saudis read him his Miranda rights. But if the Saudis had tortured him, I don't suppose the confession would be admissible, not so much because his constitutional rights were violated but because evidence obtained through coercion is inherently suspect.
2.22.2006 11:10am
Some Guy (mail):
Heh. You don't even have to look to know who Gerald Bruce Lee was appointed by. (FYI, it was in 1998). Republican prosecutors put Al Qaeda terrorists in jail, and political Democrat judges let them out.

No wonder no one takes you folks seriously.
2.22.2006 11:21am
Tom Holsinger (mail):

Excellent analysis.

volokh watcher,

Gitmo is for non-citizen enemy combatants captured abroad.

I personally agree that non-citizen enemy combatants captured anywhere should not be prosecuted under the criminal justice system. The Bush administration is IMO not brave enough to do this, but more importantly, I don't think the idea has even occurred to them.

It may be error to assume that the Bush administration has a clue. Brownian motion has its attractions as an alternative means of explaining its behavior in many areas.
2.22.2006 11:24am
Defending the Indefensible:
Generally, I think something based more on a civil commitment model may be a better idea. However, that model would still require hearings in Article III courts where possible (and in Article I territorial or military courts only in limited circumstances), evidentiary rules, a burden of proof for the government, habeas corpus review, and so on. I also think it would require periodic review of prior detention decisions.
I'm uncomfortable with this proposal for several reasons. How does this not evolve into indefinite detention for "pre-crime." Couldn't existing crimes be recharacterized as intent to participate or sponsor terrorism -- possession of narcotics with intent to distribute, or even extending further, intent to acquire narcotics?

It seems like a very slippery slope.
2.22.2006 11:35am
Defending the Indefensible:

I second Steve and Tom. Excellent analysis.
2.22.2006 11:36am
The Drill SGT (mail):
I think the judge is entitled to ask the question. I'm not certain that I want the answer to be presented in open court however. The gathering of signals intell is a closely guarded "sources and methods". The holy grail, so to speak. Though the judge or some judge somewhere should be briefed and rule, I don't want every terrorist suspect to be able to use this as a defense or to gather counter-intelligence on our capabilities.

As I understand the facts in this case:

1. The defendant was a US Citizen, born in Houston.
2. Admits to being a member of Al Qaeda and to at least the intent of running a terrorist cell in the US and to planning felonies here.
3. Arrested in Saudi Arabia.

It's quite likely that the intercepts if they occurred, were done on a US citizen, who was an enemy combatant, and who was operating at the time of the intercept, outside the US.

Sounds like what the AUMF was clearly meant to cover. Do the FEDs need a warrant to conduct a normal wiretap in a foreign country? I think not.
2.22.2006 11:49am
volokh watcher (mail):
Tom Holsinger:

I'm sure you're right about GitMo being limited to non-citizens. I mentioned GitMo really only as shorthand for "not in a federal criminal-justice detention facility." I should have been clear.

Interestingly, the AP reports that one of the defendants, Wassim I. Mazloum, is a merely a legal permanent resident -- not a citizen. So he should be GitMo eligible. And his two co-defendants should be eligible for the brig where Padillo was held.

Anyway, designating GitMo as a place for non-citizen enemy combatants seems purely arbitrary.

What legal principle stops the administration -- under Bush's C-in-C theory -- from detaining US Citizens indefinitely at GitMo, or on the US homeland, based on a written finding signed by Bush that the citizen is really an Enemy Combatant?

Then, under the Graham Amendment (being litigated now before SCOTUS in Hamdan), the citizen/combantant would have no right to habeas relief. Instead, the citizen/combatant (only if at GitMo?) would have to wait for a trial before a military commission before going exclusively to the DC Circuit for limited appellate review.

Why won't this tough-on-terror administration do that?

It's not only logical under the DOJ White Paper on domestic spying. It's compelled.

And doing so would protect America from a break-out by these very dangerous defendants (a la the Yemen breakout of the USS Cole bombing-mastermind from a couple of weeks ago).

I wouldn't expect Democrats to raise this argument. Though if they want to sound tough, why not? What's the downside of out Bushing Bush on this issue. Particularly with Dershowitz providing legal cover.

But where's Sean Hannity . . . and Rush . . . and Hugh Hewitt . . . and Mr. Powerline?

If a Democrat were president, you'd hear a uniform buzzing from Fox et al. about how the "Democrat president" (never "Democratic") is weak on terror and has a pre-9/11 mindset.
2.22.2006 11:54am
margate (mail):
The Drill SGT said:

I think the judge is entitled to ask the question. I'm not certain that I want the answer to be presented in open court however.

Your concerns are legitimate, but the Sixth Amendment guarantee of a public trial in every criminal case may require an open hearing.

The SCt included suppression hearings within the Sixth Amendment in Waller v. Georgia, 467 U.S. 39 (1984).

In Waller, the SCt said that not only does the First Amendment right of access in most instances attach to suppression hearings, but that "the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." Id. at 46.

So when the defendant objects to the closure of a suppression hearing, the hearing must be open -- unless the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced. Id. at 47.

What Waller suggests, then, is that if the government seeks to close a suppression hearing raising an NSA-spying issue, it's likely that spying did occur.

I'll assume for the sake of discussion that even the mere mention of NSA spying in federal court is a source/method issue.

But I'm not sure that would actually be the case. In fact, I suspect a vigilant judge could -- in deference to the Sixth Amendment -- close only that part of such a hearing that involves proprietary info.

With the president having declassified the program's existence, I'm not even sure a closed hearing would be necessary if the government admitted non-FISA NSA spying occurred. That fact is really all that matters.

On the other hand, I see the government's argument that admitting to NSA spying as to a particular individual would reveal methodology -- ie, maybe tip-off co-conspirators.
2.22.2006 12:10pm
Justin (mail):
volokh watcher,

If he was being tortured, then the statement is not willful and not against the defendant's self interest - losing the indicia of reliability which governs the hearsay exception. As such, it is far from clear whether 801(d)(2) would apply. Cf. United States v. Frederick, 586 F.2d 470, 481 (5th Cir. 1978).

He also may have Barry rights, see United States v. McLernon, 746 F.2d 1098 (6th Cir 1984).
2.22.2006 12:15pm
volokh watcher (mail):

So I'm clear, are you that regardless of whether the foreign state is assisting, confession-by-torture is not admissible under FRE 801(d)(2)(A)?

If so I agree. If not, I'm sorry but I'm not sure I understand where you're going.

My point was that, torture aside, the feds use of other people to secure admissions implicates all constitutional protections. I should have been more clear about that, but I wasn't.
2.22.2006 12:29pm

In general, yes, it probably is a very slippery slope. But I'm not sure there are better alternatives.

Anyway, more specifically: I think the key would be to have a rigorous definition of the necessary status--which would be something like "agent of a hostile and imminently dangerous foreign power". So, the idea would not be that any intention to commit a crime, or even an act of "terrorism", could trigger preventive detention. Similarly, not every association with a terrorist group would constitute actually being an agent of that group. And not every group hostile in some way to the United States could be considered to present a sufficiently imminent threat. Rather, the idea would be that only if a person had committed to following the orders of a hostile foreign power, and only if that hostile foreign power currently presented an imminent threat to the United States, could that person be subject to this preventive detention.

And I do think that is the basic problem--what laws should apply to such agents? I think Dershowitz and others are right that the traditional criminal model is designed to deal mostly with people contemplating crimes for their own benefit (or at least for their own emotional reasons), and thus who can be deterred as such. But agents of foreign enemies of the United States aren't going to fit that model, and aren't going to be subject to the same sort of deterrence.

So, in some sense this proposal also reflects a "prisoner of war" model, where the basic idea is also preventive detention. But the problem with applying the traditional version of the POW model to the "global war on terror" is the lack of well-defined conditions for this "war" and well-defined parties to this "war".

And in that sense I actually think this proposed approach represents an improvement on the traditional POW model. As I suggested, it should require periodic review of the detained person's status, rather than simply waiting for the declared end to a "war" that is unlikely to ever have a declared end. So, once the group in question was no longer an imminent threat, or if the person in question was no longer an agent of the group, they could be released (although perhaps also deported).

Again, though, I don't mean to suggest that this line of reasoning is not also subject to a slippery slope problem. But I think the problem of defining the necessary status for such detentions could and should be addressed through the democratic and judicial process--and maybe by juries as well. All of which would be, in my mind, far better than the completely haphazard approach the Administration is currently taking to this problem.
2.22.2006 12:30pm
Just an Observer:

It seems that the definition you propose for preventive detention is not very different from the definitions of "agent of a foreign power" under FISA [50 USC 1801(b)(2)] -- all of which require that the person is "knowingly" engaged. You do add the condition that the foreign power is an imminent threat. (Why not make it contingent on a congressional declaration of war or other authorization for military force?)

Am I misreading your idea? It would seem that if an Al Qaeda agent, a citizen, were eligible for wiretapping today, he generally would also be eligible for preventive detention under your suggestion.
2.22.2006 12:51pm
Just an Observer:

A followup: Perhaps you mean that while the definition of such agents is similar, the standard of proof would be higher -- beyond reasonable doubt rather than probable cause, for example?

Again, perhaps I misunderstand where your suggestion would lead.
2.22.2006 12:55pm
Defending the Indefensible:

So, in some sense this proposal also reflects a "prisoner of war" model, where the basic idea is also preventive detention. But the problem with applying the traditional version of the POW model to the "global war on terror" is the lack of well-defined conditions for this "war" and well-defined parties to this "war".

But that really is a fundamental problem you identify, the lack of well-defined conditions and parties means that anyone could be swept into this net.

I want to return to the narcotics angle because I think it is probably the easiest to translate into these terms, the government has declared a "war on drugs" after all. An "agent of a hostile and imminently dangerous foreign power" without a precise definition of what a foreign power is could be a member of a Mexican drug gang, right? It's not that Mexico itself is hostile, but the gang is technically stateless (but foreign).

Since you already acknowledge this is probably a slippery slope, I think maybe you might reconsider whether your proposal is really necessary or appropriate. Does terrorism really pose an existential threat to our system of government? Are our courts really incapable of dealing with people engaged in criminal conspiracies? Everything you say about "agents of foreign enemies of the United States" could apply just as relevantly to organized crime. And we've had our homegrown terrorists too, like Timothy McVeigh.
2.22.2006 1:08pm
Justin (mail):
Yes, volokh watcher.

I accidentally addressed my post to you instead of Houston Lawyer. I apologize.
2.22.2006 1:16pm

Yes, the same basic idea is also in FISA, minus the imminence notion. As an aside, something like a congressional declaration of war would certainly be relevant to a determination of imminence, although I am not sure such a declaration should be treated as necessary or sufficient.

Anyway, yes, in my view the burden of proof for all the elements should indeed be higher--probably BRD for any long term detention, although maybe "clear and convincing" for an initial and temporary period. And obviously the procedures could (and, in my view, should) be more extensive, perhaps up to and including a right to a jury trial.


I actually don't think the same reasoning applies to drug gangs, or any other traditional criminal conspiracies. Again, at root the basic motivation of such criminal conspiracies is self-interest: they are breaking our laws (drug laws, gambling laws, prostitution laws, fraud laws, antitrust laws, securities laws, and so on), because they see doing so as an easy way to make a lot of money. Accordingly, they are responsive to the sorts of incentives that the traditional criminal enforcement system is designed to provide.

So conceptually at least, I don't think that is a hard line to draw. But I agree the key would be to work out a far more precise set of rules for classifying someone as an enemy agent, rather than as an ordinary criminal. Nonetheless, I think the legislative and judicial process, perhaps as subject to jury review, is potentially up to that task.
2.22.2006 1:29pm
volokh watcher (mail):
Thank you, Justin.
2.22.2006 1:29pm
Defending the Indefensible:

Please address the domestic terrorism angle.
2.22.2006 1:33pm

I think it depends on the nature of the "domestic terrorism" in question. For example, in a genuine case of armed rebellion, with some group declaring the illegitimacy of the United States government and actively seeking its overthrow through force, perhaps the same basic scheme could apply to agents of such a group.

But I do think the "foreign" versus "domestic" distinction is useful. My background assumption is that a foreign group is more likely to satisfy all of these requirements because the members of such a group are less likely to have shared interests with the citizens and lawful residents of the United States, and more likely to have adverse interests. Conversely, the members of a "domestic" group are more likely to have such shared interests, and less likely to have adverse interests, precisely because I take "domestic" to mean that the members of the group are predominantly citizens or lawful residents of the United States themselves.

As noted, however, I don't rule out the possibility that a domestic group could become so alienated from the bulk of the United States that it became just like a hostile foreign group. But I do think that the relevant determinations about the nature of the group could and should require more evidence if the group in question is "domestic".
2.22.2006 1:56pm

Historically, such statements do not appear to stand for much.

The "State Secrets" doctrine rests on Reynolds v United States. 345 U.S. 1 (1953). Reynolds set the '...precedent that gives the executive branch the power to withhold information from the judiciary based on submission of a declaration by the Executive branch that national security could be compromised by release of the information sought..'
The government's case was premised on declarations submitted to the court from then Secretary of the Air Force and the head of Air Force JAG. Cold War DoD documents declassified in last few years indicate the declarations were at best intentionally negligent, if not fraudulent.

The firm that pursued the matter in the ealy 1950's recently brought the matter to the Supreme Court, asking the Court to vacate its 1953 decision and "...decide the case anew with the facts contained in the declassified documents." Supremes declined to hear the case.
[See University of Minnesota at, among others. ]

In light of the Executive branch proclivity to sumbit less than forthright declarations to the judiciary as in Reynolds, the diffuse nature of digital surveillance, and the control of all information about the actual scope and nature of surveillance activity by the Executive branch, reliance by the judiciary in the recent NSA case on the proposed executive branch declarations, without at least the possibility of independent review, is no review at all of the Executive branch by a co-equal branch.

This is further support for proposition that Congress must assert its Artilce I, sect 8 oversight capacity of national defense through creation in General Accounting Office of capacity to conduct ongoing digital audits of Executive branch digital surveillance activities, and report findings to Congress.
Deterrent Effect:
As you all know, all digital activity leaves a digital fingerprint. Knowing the Executive branch programs were digitally audited by Legislative branch would impose on officers of the Executive branch submitting declarations to the judiciary or to Congress, a substantially higher "cause for care" to submit accurate declarations.
2.22.2006 2:11pm
Just an Observer:
I would just like to observe that Medis -- like some others here who have been critical of Bush on issues such as detainee abuse/torture and illegal NSA surveillance -- is honestly striving to augment lawful means for combatting terrorism.

A distinguishing factor in Medis' suggestion above, like several proposals in Congress today for authorizing domestic surveillance -- is that it embodies action by Congress and the judiciary.

Bush, by contrast, seems more interested in aggrandizing executive power than fighting the war on terror. That is evident in his decision to avoid both judicial review of the NSA surveillance and prior congressional authorization, a decision that seems actually to have impeded the investigation and prosecution of suspected terrorists.

That is really a pre-9/11 view of the world, rooted in Cheney's late-1970s view that White House power needed restoration to Nixon-era levels.
2.22.2006 2:13pm
Defending the Indefensible:

Al Qaeda, to the best of my knowledge, is not a group actively seeking the overthrow of the United States government. Rather, they are seeking the withdrawal of US forces from "Arab and Muslim lands." A stronger case exists that Timothy McVeigh in fact advocated a revolution toppling the government. I'm not justifying either, I'm simply trying to see how members of domestic groups like the Militia of Montana or some of the Christian Identity groups in Idaho should be distinguished from alleged affiliates of stateless foreign organizations as far as due process requirements for imprisonment vs. indefinite detention.
2.22.2006 2:14pm
Defending the Indefensible:

I'd also point out that if you are going to base part of your consideration on Dershowitz reasoning, he also justifies torture in some cases. Do you concur?
2.22.2006 2:21pm
Tom Holsinger (mail):
volokh watcher,

I repeat, Gitmo is for non-citizen enemy combatants captured and held abroad, i.e., not ones who were arrested in the U.S. Furthermore Gitmo is only for those foreigners whose own goverments don't want 'em back.


Detention is not the same as trial. Confederate prisoners of war were held for the duration of hostilities during the Civil War, and then released. It made no difference for their detention that they were American citizens - they were combatants and detention kept them from taking up arms against us.

Detention is appropriate and lawful for all enemy combatants, lawful or unlawful. Lawful ones are prisoners of war and entitled to the protection of the Geneva Conventions. Captured unlawful combatants have minimal GC protection (they can be shot out of hand at the captor's discretion but not tortured, deliberately starved, etc.) but much broader protection under American law.

American law has always, AFAIK, required at least a quick &dirty military trial for captured unlawful combatants before they can be "punished" in any way. Nazi commandoes of the "Skorzeny brigade" captured in American uniforms during the World War Two Battle of the Bulge were all given such trials before execution.

AFAIK, the only time enemy combatants of any kind may be lawfully executed with no trial are when those are done as reprisals for enemy murders of American soldiers - Union generals did this to Confederate POW's after Confederate General Nathan Bedford Forrest's troops murdered captured black soliders (United States Colored Troops) at Fort Pillow. Such reprisals quickly convinced the Confederates to cease murdering captured Union black soldiers.
2.22.2006 2:58pm
volokh watcher (mail):
Tom Holsinger said:

I repeat, Gitmo is for non-citizen enemy combatants captured and held abroad, i.e., not ones who were arrested in the U.S. Furthermore Gitmo is only for those foreigners whose own goverments don't want 'em back.

TH -- I understand. I know. I hear you.

My point about GitMo being "reserved" for only these categories of people is arbitrary, as far as I know.

Is there a law in the US Code that limits GitMo to the categories you list?

If not, then I submit the administration -- and the TV/radio warriors on the right -- are hypocrites. The 3 Ohioans should have been sent to GitMo for a military trial.
2.22.2006 3:13pm

And I believe that the Administration ended up shooting themselves in the foot by taking this "we can do it ourselves" approach on the preventive detention issue. If they had been working with Congress and the courts all along, I think they would already have an alternative system in place. But instead, they burned all their good will fighting any sort of interference, and now have very limited options.


You say: "Al Qaeda, to the best of my knowledge, is not a group actively seeking the overthrow of the United States government."

First, I was just articulating an example of when the same basic scheme might apply to domestic groups, not suggesting a necessary condition. More broadly, I wasn't saying that the exact same standards should apply to foreign and domestic groups. Indeed, I was trying to suggest that different standards should apply because of different assumptions about the likely interests of the members of such groups.

You also say: "I'm simply trying to see how members of domestic groups like the Militia of Montana or some of the Christian Identity groups in Idaho should be distinguished from alleged affiliates of stateless foreign organizations as far as due process requirements for imprisonment vs. indefinite detention."

First, as an aside, I don't think it is quite right to say I am talking about "indefinite detention". As noted above, I think there should be periodic review. This review could even be de novo, although that might be unnecessary. But in any case, detention given this framework would not be authorized for an indefinite time.

But anyway, again, my basic question would be whether members of those groups had become so alienated from the bulk of the United States that they were no longer distinct from foreign groups with respect to our assumptions about the shared interests of U.S. citizens and lawful residents. A fair answer to that question might be that we would never relax our assumptions to that degree, in which case we might never treat foreign and domestic groups alike. Personally, I can imagine situations in which we might treat them as alike, but I'm honestly not sure how often, if ever, any domestic groups would fit what I am imagining.

In any case, I'm not sure why this is such an important question for you. If we ended up concluding that we should maintain a hard line between foreign and domestic groups, then we could do that. Alternatively, if we ended up concluding that some domestic groups could be reliably placed in the same category as foreign groups, we could do that instead. I have no firm feelings on which approach we should take.

Finally, I'm not endorsing Dershowitz's view on this particular issue on the basis of his personal authority, so I don't feel beholden to answer for everything else he might argue. But for what it is worth, I think he, like many people, has been captured by the unrealistic assumptions built into the so-called "ticking time bomb" scenario. Accordingly, I don't think he has motivated his view that we need a codified exception for such a scenario, and I think the harms of codifying such an exception would dramatically outweigh any likely benefits.

That said, I can't rule out the possibility that in some ill-defined scenario, torture would be morally and prudentially justifiable. But again, in my view that mere hypothetical possibility does not warrant a specific codified exception, and the harms of attempting to speculatively codify such an exception outweigh any possible benefits.
2.22.2006 3:14pm
Just an Observer:
Just following up these ideas about detention of Al Qaeda agents, and the relation to the NSA surveillance controversy:

The Washington Post has reported, consistent with prior reporting in the New York Times, that some 5,000 persons have been surveilled in the United States under the controversial NSA program. We are assured by our national leaders that all such surveillance is related to Al Qaeda agents communicating.

This leads to common-sense questions about why we have 5,000 known Al Qaeda agents at large within our borders.

Despite AG Gonzales' tap-dancing testimony that the standard being applied internally is much like probable cause, it probably is more loose than what FISA requires. ( Reportedly, that was the reaction of FISA judges to Gonzales' testimony.)

One metric from the Post reporting was that in about 10 cases per year -- less than 1 percent -- the government established independent probable cause, untainted by the facially illegal NSA surveillance, for subsequent FISA warrants of "agents of foreign powers." (It is possible that more warrants could have been obtained if the judge's requirement for independent evidence were not applied, or if DOJ had vindicated the putative legality of warrantless surveillance in a test case.)

So by those measures, and the handful of criminal prosecutions of terror suspects we have witnessed, it does not seem that there are many candidates for detention. Of course, it also seems that a large number of persons, presumptively innocent of connection to Al Qaeda, have been surveilled without even notice after the fact.
2.22.2006 3:23pm
Tom Holsinger (mail):
volokh watcher,

I don't think "hypocrite" means what you think it means.
2.22.2006 3:27pm
Defending the Indefensible:
That said, I can't rule out the possibility that in some ill-defined scenario, torture would be morally and prudentially justifiable. But again, in my view that mere hypothetical possibility does not warrant a specific codified exception, and the harms of attempting to speculatively codify such an exception outweigh any possible benefits.
It seems our perspectives are diverging. I do positively rule out torture as morally unjustifiable, and there are some other lines I could probably draw as well. The bottom line for me is that preservation of my safety must never be at the expense of my humanity.
2.22.2006 3:33pm
Perhaps in light of JaO's comments, I should note that I wouldn't propose that the detention regime I have been sketching should be limited to U.S. persons. I'd apply it to every person in the long term control of the United States.
2.22.2006 3:35pm

I respect your absolutist point of view--what I might also call a deontological, or perhaps Kantian, view--on torture. But while I think we end up in the same place on the legal question, I do have some different reasons and I'm not quite willing to accept the absolutist view (which, by the way, is not meant pejoratively--as they say, there is nothing wrong with being absolutist about justice and morality).
2.22.2006 3:50pm
Just an Observer:
I also note that Sen. Graham, a strong proponent of codified rules for detainee treatment and court-supervised domestic surveillance, nevertheless says he believes such laws are consistent with an "inherent" authority for the President to act against "Fifth column" movements in time of war.

Once again, the distinguishing feature is a robust role for Congress and the courts, which the incumbent President eschews to the detriment of the fight against terrorism.
2.22.2006 3:50pm
Noah Klein (mail):

"I wouldn't propose that the detention regime I have been sketching should be limited to U.S. persons. I'd apply it to every person in the long term control of the United States."

But you do want to employ the formula you laid out early against U.S. person (citizens and permanent residents) who are agents of a foreign power?

I can get on board with the idea of a POW-like detention for foreign nationals or illegal immigrants (remember many of the 9/11 hijackers had overstayed visas and other such crimes). Yet I don't see how that same system can be used against U.S. citizens or permanent residents without undermining the structure of our society. Could you explain that to me?

I agree with your goal. We need to do everything we can to ensure that our society does not suffer another 9/11. If this means making a new bargain with other countries or with our own citizens, then we have to make it. Yet, while your plan allows for due process and further participation by other branches, its application to U.S. persons still strikes me as counter to the idea of individual liberty, which our society was founded on. I always thought that ensuring that U.S. persons would be afforded the rights of the constitution and natural law until proven guilty. To change this basic formula makes it more difficult to protect these liberties for all Americans, doesn't it?

2.22.2006 3:56pm
KMAJ (mail):
Prof. Kerr,

While I claim no legal expertise, I base my premise on the on the grounds that the law does not operate in a vacuum and the Constitution is not intended to be a suicide pact. Some made the valid point that Bush should have prosecuted in a military tribunal, I think his unwillingness to do so is more a result of an adversarial media and the politics that become involved.

My problems with this case is the defendant's attorney is on a fishing expedition, he makes no allegation of fact, one he would not have engaged in had the leak not occurred, and using this technicality, he is hoping for a loophole to overturn a verdict where the evidence supported the guilty verdict. This is clearly manipulation of our legal system. One poster made the relevant observation that the attorney has the right to ask the question, but due to the classified nature of the information, the legitimacy of the getting the information is dubious, at best. That is a dangerous precedent to set if all one has to do to get classified information released is claiming to think there might be something relevant contained therein.

I noted some cited Reynolds, a 1950s case, it does not directly address the changed circumstances, technological advances in communications and weaponry, risk assessment and threat matrix. Where law enforcement plays a role in prevention, a role it is not well-suited to play because of its reactionary versus pro-active nature, the law must adapt so that the very laws that protect our freedom are not used as weapons to undermine it. This judge, in my opinion, is doing just that.

What are the remedies necessary ? I think Dershowitz has a reasonable and plausible approach, possibly the law needs to create a new classification for terrorism and terrorists that is very narrowly tailored. No doubt, any such classification would have to be addressed in a very delicate and deliberative manner and would have to be structured to have rigorous oversight provisions. While terrorism, itself is not new, the level of threat and damage that can be caused is. Sadly, our legal system, as it now exists, is easily used against us. One should take the time to read The Al Qaeda Manual, if one does not think they are well aware of how to use our legal system and the media to their benefit, then you are ceding them a tactical advantage, a very dangerous one.

That is why I have asserted from the beginning that 9/11 and the War on Terror requires that the construct of our legal system needs to adapt, otherwise it does become a suicide pact. I think it is safe to say the Founding Fathers/Framers never envisioned this type of threat or weapons of mass destruction in their Constitutional debates, it would be irresponsible for us not to carefully consider and act upon this this change in the dynamic. It is encumbent on a judge to consider these ramifications, instead of ruling from the vacuum concept of the law. Demanding classified information be revealed is the height of irresponsibiltiy, and while grounded in a monolithic view of the law, it reveals a detachment from the real world and ignores the ramifications such a judicial demand creates.

It is a strawman by one particular poster who continually claims my position supports dictatorship, my view is very narrowly tailored towards terrorism and terrosists and calls for strict oversight by the legislative branch. I blame both parties for creating this polarization that has festered into an atmosphere of distrust and is proving to be very detrimental to protecting this country, its citizens and its Constitution. If there is one area where both parties should set aside politics, it is in combatting terrorism.
2.22.2006 4:13pm
Defending the Indefensible:

I don't consider myself a Kantian absolutist at all. Lines are a tricky business, because they don't actually exist in any physical sense. You can basically do anything you want to do consistent with the laws of physics. As I see it, we are all absolutely free, there is no actual government, no manmade laws, nothing to bind us whatsoever, unless we believe in them and obey them. The world is anarchy, order and disorder are illusions, we choose, and in choosing, we create the conditions that we would have. It is all the more important that we choose carefully.

When a line is drawn, it can be respected or it can be crossed. If it is respected, then the line holds. If it is crossed, then the line vanishes. If we will cross a line once, it is all the easier to cross it a second time. Sometimes we draw new lines where old ones either did not exist before, or where they have been ignored and vanished.

This metaphysical discursion is relevant to the NSA surveillance issue, because what the Bush administration has done is ignore a line. They crossed it. If we don't take notice of this, the line has not only vanished, it has been forgotten, it cannot be redrawn, it is gone forever or until some future generation draws a new line and tries again.

This is also why I rule out torture. That line, too, has been crossed, while we're pretending otherwise. I am hard pressed to find a line which holds, except for deference to the Supreme Court. It's a weak reed on which to rest, but there is nothing else now holding us back from Holocaust.

I've been accused (mainly by KMAJ) of overstatement, but this is not overstatement. It is that serious.
2.22.2006 4:15pm
Just an Observer:
I note that KMAJ was asked, "Do you have a legal argument for why Judge Lee's ruling is incorrect?"

He responded with an extralegal cloud of smoke.

Once again, KMAJ would rather talk about anything but the rule of law.
2.22.2006 4:33pm

I'd start by noting a few things. First, I am indeed trying to bring this proposed scheme in line with the Fifth Amendment's guarantee of Due Process. As JaO notes, I am also articulating a role for all three branches of government as laid out by the original Constitution. I am further willing to entertain incorporating something like the Sixth Amendment's right to a jury trial, and perhaps other aspects of the Sixth Amendment (such as the Confrontation Clause), Fourth Amendment (to the extent that it gave rise to the exclusionary rule), and so on.

So, I am open to incorporating essentially all the rights guaranteed by the Constitution with respect to criminal cases. What I am proposing, however, is applying these rights in a non-criminal context. And that is not quite unprecedented--even holding aside prior "enemy combatant" cases, we have allowed civil commitments for the mentally ill on fairly similar rationales (where necessary to prevent the mentally ill from harming themselves or others).

I understand, of course, DtI's reservations--if this was a general preventive detention scheme, where the alleged future harm could be any harm prohibited by law, it would in fact fundamentally change the nature of how our society deals with harmful behavior. However, again in the civil commitment context, we have already carved out one limited preventitive scheme along these lines. And again, the rationale for doing so is very similar (that the mentally ill are not subject to the model upon which the criminal law is based).

Civil commitments, of course, are controversial in part for this very reason. Nonetheless, it seems to me that they have not led--at least not yet--all the way down the "slippery slope." And I might suggest that the number of U.S. persons potentially subject to civil commitments is far, far higher than the likely numbers U.S. persons potentially subject to my proposed scheme (at least if the definitions are appropriately narrow).

Finally, I might note some of the problems with the alternatives. Most notably, I am deeply worried about what will happen to the traditional criminal system if we settle on dealing with terrorism through the criminal system, and then another 9/11, or series of smaller but deadly attacks in the U.S., occurs. The effect in such a case might be that the rules of the traditional criminal system would be changed to accomodate preventive concerns about terrorism. And yet I think then it really would be quite difficult to limit those rule changes to terrorism cases only.

So, in that sense I see this as something of a "containment" issue. Many of the rules in our criminal system are subject to modification by legislation, and even the ones which have been "constitutionalized" could be reconsidered by the courts. To protect those rules from a general weakening in light of terrorism concerns, I think it makes sense to carve out a separate--and hopefully well-defined and sharply-limited--area of the law in which these issues can be worked out.

Conversely, as I discussed above, I think treating this as a traditional POW issue is actually going to be worse for civil liberties in the long run. Again, to me that suggests the need for an alternative, one purpose-built to deal with this situation.

So, in my view this is likely going to be the best way to actually preserve civil liberties in light of our legitimate interest in self-protection. I realize that there are some risks in doing anything this "innovative" (although not completely unprecedented), but I see even greater risks in trying to deal with this issue in the more traditional ways.
2.22.2006 4:35pm
KMAJ (mail):

Your line analogy is apropo, but you make the mistaken premise that when a line is crossed, it disappears. In fact, lines are crossed every day as society evolves and attitudes change, so more noticeable than others, those lines do not disappear, but move or are redrawn. Those lines are not some sacrosanct inflexible escarpment that are never meant to change. Your precept flies in the face of the truism, 'change is inevitable.' One may not always like the change, but change is going to occur.

While we definitely disagree on many points, I still respect your right to hold those views. I am sure you fervently believe in your 'Holocaust' analogy, but others can just as fervently see things differently and legitimately feel your presentation is an overstatemnt. In fact, it is an emotional argument to invoke the 'Holocaust'. Do you see gas chambers being built ? People shepherded on trains to concentration camps by the thousands ? Medical experiments being exercised on prisoners ? Do you see mass graves being dug for piles of dead emaciated bodies ?

That is why I make the claim of 'overstatement'. I see terrorism as serious and that we are ponderously making changes necessary to protect our society.
2.22.2006 4:36pm
Tom Holsinger (mail):
Medis, JAO &Indefensible,

Detaining the adherents of foreign enemies, even when those are American citizens, is normal and customary in war. Only extreme libertarians and anti-Americans of various kinds oppose it. When there is no doubt about the combatant status of the detainees, i.e., when they are "captured in arms" (Hamdi was), IMO the judicial system has no jurisdiction of any sort concerning their detention. This would apply whether the enemy combatants were captured in or out of U.S. territory., and regardless of their status as U.S. citizens or lack of it.

When they are captured in the U.S., but not "in arms" (i.e., Padilla) such that there is an arguable question as to their being an adherent of a foreign enemy, IMO they have limited habeus corpus rights such that they must be afforded counsel and access to the judicial system. Upon their filing of a habeus writ, the govt. must establish a "colorable claim" that they are an enemy "adherent" whose freedom from custody would post a "colorable claim" of threat to American security.

Again, this goes only to detention. I feel this is the law now, has been for several hundred years, and that any contrary decisons of the U.S. courts are in error. Aspects of my opinion here appear in some recent cases on the subject.

Punishment for status as an unlawful combatant, or for offenses against the laws of the U.S., the laws of war and the "laws of nations", is quite a different matter. I'll put up a different post on that subject later.
2.22.2006 4:45pm

Just an aside, but I originally thought you might be taking a Kantian line on the torture issue because of this statement: "The bottom line for me is that preservation of my safety must never be at the expense of my humanity."

Anyway, I agree with most of what you have written about the important of respecting what you are calling lines, but don't you think that sometimes erasing old lines and drawing new ones could be justified? I might note that a lot of lines have been redrawn in our nation's history, and I suspect that we could agree that some of those lines were rightly redrawn.

Again, I don't mean to claim that I have some particular and realistic scenario in mind for when it would be a good idea to redraw the torture line. Moreover, such a situation may never arise. But it is hard for me to rule out the theoretical possibility of some scenario justifying the redrawing of any particular line, including this one.

So, maybe you could explain when, if ever, redrawing lines is justified, and why that could not even theoretically happen to this particular line.
2.22.2006 4:47pm
Defending the Indefensible:

Some lines are rightly crossed, and some are not. My point is that when we cross the line and draw a new one in a different place, the old line really is gone. This should never be done lightly, and when constitutionally secured limitations are exceeded, we should remember that these were hard won at great cost to many generations. Put this aside, and Magna Carta, and the entire edifice of common law may fall.

You propose new lines, but you have not drawn them yourself. Instead you make vague gestures about approximately what they might look like. With all due respect, I have no confidence in this.
2.22.2006 4:58pm
Just an Observer:
Tom Holsinger: Detaining the adherents of foreign enemies, even when those are American citizens, is normal and customary in war. Only extreme libertarians and anti-Americans of various kinds oppose it. When there is no doubt about the combatant status of the detainees, i.e., when they are "captured in arms" (Hamdi was), IMO the judicial system has no jurisdiction of any sort concerning their detention.

You are, of course, welcome to that opinion. It was rejected by the court in Hamdi v Rumsfeld, 8-1.

I guess the eight justices must be "extreme libertarians and anti-Americans."
2.22.2006 5:00pm
Tom H.,

Why do you claim there was "no doubt" about the circumstances of Hamdi's capture? That was precisely the issue in that case: the District Court was not satisfied by the government's offer of proof--the Mobbs Declaration--and wanted to review the primary materials upon which the Mobbs Declaration was purportedly based. The government argued that the District Court had to accept the Mobbs Declaration as adequate evidence of their allegations, and that is one of the issues that the Supreme Court decided on appeal. Specifically, the plurality held, "Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short."

So, are you saying that as long as the government asserts there is "no doubt", there should be no doubt?
2.22.2006 5:01pm

As an aside, I am having trouble keeping track of which issue--torture or detention--you are talking about at any given time.

Anyway, I agree that I have not given any reason to believethat the torture line should be redrawn, nor have I tried to. I've just suggested that in theory such a situation could arise.

In contrast, I do think some line-redrawing should occur with respect to detaining enemy agents, and have suggested why I think that is warranted. But I agree that one would have to much more precisely draw the new lines than I have attempted to do so.

If that failure on my part to articulate precise new lines means you have no confidence in my personal ability to draw those new lines, I don't mind--in fact, I agree. As I have noted, I would leave that task to the legislative and judicial process, and maybe juries as well. I certainly don't think I am capable of doing all that by myself.

So, I'm not sure where we really disagree. But I think it is probably with respect to whether we should even be starting this process in motion. I think the case for doing so already exists, and indeed I think we would be better off now if it had been going on for quite some time. In contrast, I think you believe that there isn't enough reason yet to even risk starting the process. And while I understand your concerns, as noted above, I think the risks of doing nothing are even greater.
2.22.2006 5:12pm
Noah Klein (mail):

Thank you for answering so fully. I am more comfortable with your procedure since you said that some of the provisions of the bill of rights (jury trial and so on) might be adopted. I am still somewhat wary of its application to U.S. citizens. While I disagree with Tom often, he makes important point about the distinction between those captured out of the country and those captured inside. Only applying the most minimal humane and international standards to foreign terrorists is fine by me. Yet when the issue is a U.S. person captured in the U.S., I think there should be different standards.

I'm glad that you did lay out some and I understand fully your "containment" theory and thus the reasons you laid out this program. I would point out that some countries that have suffered from many awful terrorists events, such as Britain, France and Israel, yet nothing like 9/11 have gone over the deep end when they first attempted to defeat the practitioners of this technique. Yet it did not work and thus they adopted other methods. Those methods are not ones I would choose, but they are definitely better than their first attempts. So thank you for giving me something to mull over.

2.22.2006 5:15pm
KMAJ (mail):

Maybe I should emulate Justice Douglas and cite emanations and penumbras, ala Griswold, from the executive's constitutional oath ? It is the only oath of office in the separation of powers articles of the three branches. Or possibly invoke 'my gut', as Powell did in Roe v. Wade because he could not find constitutional justification. One need not always cite legal precedence to make ones case, sometimes logic and common sense can prevail, unless one resides in that rigid monolith that conceptualizes to the vacuum theory of law.
2.22.2006 5:17pm
Tom Holsinger (mail):

The Supreme Court's ruling in Rasul said only that the detainees were entitled to statutory habeas hearings - it did not say anything about the propriety of the detentions- that was for the district courts on remand. IMO the Court erred in claiming any jurisdiction at all, and Congress rescinded that part of the habeas statute.

Your reasoning on this point is exactly analogous to a contention that reversal of a criminal conviction on procedural grounds, with an order for retrial, is a finding of factual innocence and an order for release. You can do better than that.


Hamdi was captured "in arms" by one of our Afghan militia allies when the Afghan Taliban unit he was part of surrendered to them. He was a Saudi volunteer fighting for a faction in Afghanistan - the Taliban -which was allied with Al Qaeda. He was turned over to American forces when he mentioned to his Afghan captors that his father had told him he was born in America. The U.S. investigated and found that he had in fact been born here.

My recollection of the Supreme Court ruling on Hamdi (correct me if I'm wrong) is that it did not say that he was allowed to introduce contrary evidence, but that he must be allowed to challenge the sufficiency of the government's evidence against him, i.e., whether it meets a "colorable claim" test.

There is an enormous difference between a full-bore adversarial evidentiary hearing and one in which solely the moving documents are considered - the civil law equivalent is that between a hearing on a preliminary injunction and one on a temporary restraining order.
2.22.2006 5:25pm

I should note that I certainly think it is reasonable to believe that nothing should change when it comes to U.S. citizens inside the United States. But to make my "containment" point a little sharper, this is a bit of a framing problem: the American people generally stand up for the rights of U.S. citizens, but not so much for the rights of terrorists. And so when a U.S. citizen is accused of being a terrorist, whether or not the American people will stand up for the rights of that person may depend on which framing of the issue they are willing to accept.

And this has long been a problem in the criminal law as it stands--people like rights for citizens, not so much for criminals. But at least it is a little easier for people to imagine themselves being falsely accused of criminal behavior. I think people find it harder to imagine themselves being falsely accused of being an enemy agent.

So, if U.S. citizens who are accused of being terrorists are dealt with through the criminal system, I do worry about what general reductions in their rights the people would support in the name of not "siding with terrorists". Still, I admit I may be overestimating this risk, and underestimating the risks others are articulating. But as a final note, I would point out that the anti-terrorism rules adopted after 9/11--and the first WTC bombing and Oklahoma City--have not remained limited to terrorism cases.
2.22.2006 5:28pm
Noah Klein (mail):

First, I dispute your description of the decisions above.

Second, don't you and other conservatives decry those opinions because they "[invoked their] gut" or used penumbras? This does not seem a very solid defense for the legal justifications for something.

Finally, you have consistently come onto this blog and said well I can't point out where my interpretation comes from exactly, but one can't say I'm wrong because otherwise "one resides in that rigid monolith that conceptualizes to the vacuum of theory of law." This, I think, mistates the purpose of the law. The law is meant to be rigid. It's not flexible or meant to be. It can be ambigous and thus interpretation is required to understand it better, but it can't be flexible. A law that says you cannot fish here does not mean you cannot fish here today, but tommorrow you can. It's rigid. It means you can't fish here. A law says you can't torture is once again rigid. You can dispute what is and what is not torture, but someone's non-judicial interpretation is not law. A court's interpretation is law.

2.22.2006 5:29pm
Noah Klein (mail):

Thank you once again. Many solid points there. The last about laws concerning terrorism applying to other crimes really made sense. You haven't gotten me to buy into your program yet, but if you keep working me for an hour you might just get me. I think I made my concerns clear and so I leave it at that.

2.22.2006 5:33pm
Tom Holsinger (mail):
Oh, and Medis, I think the Supremes erred on Hamdi to the extent that they did not accept the Mobbs declaration. Hamdi was captured "in arms" on a foreign battlefield by a foreign allied force, not by American forces. It is plain not practical to require non-hearsay evidence under those circumstances.

This plurality ruling, as I understand it, was most definitely a judicial infringement of Presidential war powers and so a flat-out violation of separation of powers meriting impeachment of the Supreme Court Justices involved.

Padilla was not captured in arms, and was apprehended in the U.S., so IMO the government's evidence for his detention merits a higher degree of judicial scrutiny, though not that of a normal criminal habeas hearing.
2.22.2006 5:36pm
Just an Observer:
Tom Holsinger: The Supreme Court's ruling in Rasul said only that the detainees were entitled to statutory habeas hearings - it did not say anything about the propriety of the detentions- that was for the district courts on remand. IMO the Court erred in claiming any jurisdiction at all, and Congress rescinded that part of the habeas statute.

We weren't talking about Rasul. We were talking about Hamdi.

In that case, the governments contention echoed yours above: ".. The judicial system has no jurisdiction of any sort concerning their detention.." That was a separation-of-powers issue, not a civil-liberties or due-process issue.

Only Thomas agreed with the government on that question.
2.22.2006 5:41pm
Tom H.,

You originally said: "When there is no doubt about the combatant status of the detainees, i.e., when they are 'captured in arms' (Hamdi was), IMO the judicial system has no jurisdiction of any sort concerning their detention."

You are now talking about what sort of adversarial proceedings might have gone on in the District Court after the Court remanded in Hamdi--although that issue was mooted when the government released Hamdi. But I just wanted to note that Hamdi was in fact a case where the factual allegations of the goverment were called into question, and the Court did hold that in such a case the District Court could hold some sort of hearing at which the detainee could seek to demonstrate otherwise.

More broadly, I'm still confused about your proposed "no doubt = no jurisdiction" rule. Who gets to decide if there is "no doubt" about the facts of the case? If the District Court does not have to take the government at its word, and the detainee has some right to demonstrate otherwise, doesn't that mean the District Court must have jurisdiction at least for the purposes of a limited hearing? Are you saying that once the District Court determines that there is no doubt about the facts, then there is no jurisdiction? That would actually be setting a pretty high standard for the government.

But like I said, I don't really understand your rule.
2.22.2006 5:44pm
KMAJ (mail):

You make my point twice, first, I assume you agree with Griswold, yet you seek to turn that into a negative when similar principles are invoked elsewhere. That is akin to wanting to have your cake and eat it too. Secondly, where the law is ambiguous, common sense and or logic play a role. You may disagree with someone's logic, just as you may disagree with someone's definition or interpretation of a term. Clearly, one can validly claim that terrorism is not specifically delineated in the context of the threat it now poses with advanced technology. Hence the legitimacy of Dershowitz's reframing of the legal maxim 'Is it better that 10 guilty go free than one innocent be convicted unjustly' to 'Is it better that 10 terrorist acts possibly not be prevented than one innocent be unjustly detained?' That is the very change in the legal construct I have argued. It appears from your argumentation, your answer to Dershowitz's question is in the affirmative. You would prefer not to try to prevent those attacks to prevent one innocent detention. This judge's ruling plays right into that paradox. The defendant was found guilty based on the evidence, when a terrorist is tried and found guilty, letting them get off on a technicality is absurd. This is not a shoplifter we are talking about here.
2.22.2006 5:46pm
RE: Prof Kerrs original blog:

In the ruling, Judge Lee gave prosecutors until March 9 to submit a sworn declaration from a government official to say whether any information from the eavesdropping was used in Mr. Abu Ali's case.

Bloggers: Before you posit anything else, it seems to me Prof. Kerr's post requires an affirmative or negative answer and discussion of the question implied in the orginal post:

Should the Co-Equal Judicial (and Legislative) branch rely on unverifiable affidavits from the Executive branch describing the nature and scope of surveillance programs? Why or why not?
2.22.2006 5:52pm
Tom H.,

You clarified before I posted that last. But I still don't understand: the District Court didn't want to bring witnesses from the Afghanistan, but it did want to review the documentary evidence the Mobbs Declaration purportedly relied on (including records of statements by the Northern Alliance forces, notes of interviews with Hamdi, and so on).

I don't see why asking for that documentary evidence that is impractical. I also don't understand your rule yet--again, are you saying that if someone in the government declares there is no doubt that the government's allegations are true, then the District Court must accept those allegations as free from doubt and decline jurisdiction?
2.22.2006 5:53pm
Noah Klein (mail):

I did not make your points for you in my last post. What I showed was the hypocrisy of your position to say well look how bad Griswold and Roe was decided and then try to use the things you derided as justification for something you support.

I do agree Griswold and Roe. I agree as I think everyone should that the constitution is ambigious and is subject to interpretation. I further agree with Griswold that the 4th, 5th and the 9th amendments implicitly indicate a right to privacy. Yesterday, I was watching C-Span when someone illustrated this point more clearly than I've heard it before. The gentleman whose name I can't remember was talking about Scalia and his belief in the separation of powers and whether that can square with a textualist interpretation of the constitution. He said the textualist believes that the constitution does not imply anything beyond clearly written, yet Scalia believed in the separation of powers doctrine, which was not clearly written (there are no words that say separation of powers or checks and balances). Thus I would say this same principle can apply to Griswold and other decisions. This does not mean that the document is flexible though. This principle does not indicate that it should be read one way at one time and another at another time. It says that the document implies a right to privacy, since it says in the 9th amendment that there other rights retained by the people that are not mentioned in the bill of rights and other rights mentioned in the constitution relates to privacy. This is a very different principle than the one that you have argued. Can you see the differences?

2.22.2006 6:07pm
Tom Holsinger (mail):
Point of information concerning military trials of unlawful combatants:

My late uncle Virgil was a First Army MP captain during the Battle of the Bulge, and told me the procedure he was ordered to follow in the event his unit captured any Germans in American uniforms. That had happened a fair amount as a German commando unit - Skorzeny's brigade, had infiltrated some of those into American rear areas. They were all deemed to be unlawful combatants under the Articles of War applicable at that time.

Note that this American military law had existed since the Revolutionary War. The Geneva Conventions created around 1900 offered less protection for unlawful combatants than the American Articles of War as those then existed, and as they existed during World War Two.

The Articles of War have since been superceded by the Uniform Code of Military Justice, and I believe the UCMJ gives unlawful combatants even greater procedural due process than the Articles of War. But here is what the latter allowed in December 1944:

The first priority was limiting the damage by the German commandoes (finding some means others are likely around), and the second was to obtain any useful intelligence (i.e., limited torture of newly captured commandoes was tactitly allowed or even encouraged). And higher headquarters had to be immediately notified of the capture(s). Sometimes orders would come down to transfer the prisoner to some other location/group. Usually the captors hung onto them.

Only when those missions were performed was terminal action to be taken with captured commandoes, and then higher HQ had to approve convening of a tribunal of available officers. Everyone knew the tribunals would have one outcome.

There was no formal court, i.e., no one from JAG would participate unless one happened to be available by happenstance, there was no formal prosecutor and certainly no defense advocate. The commanding officer of the group holding the prisoner(s) would designate certain officers (at least three and generally no more than six) who weren't percipient witnesses to sit on the tribunal and often chair it himself (his choice). The only requirements for the tribunal were that it had to have a presiding officer, the members had to be officers who weren't witnesses, and they had to keep a written record of the proceedings.

The tribunal's ranking officer was supposed to question the witnesses, and the other members of the tribunal could too but didn't have to. The nominal purpose of the questioning was to establish that the accused was not a member of the American forces and was in violation of the rules of war, notably by being an enemy combatant wearing an American uniform. The accused had an opportunity to speak for himself on the charges.

Conviction was a certainty as otherwise the tribunal would not be formed at all. Then the accused would be shot by firing squad.

This sketchy military "trial" was entirely proper under the Articles of War. The Geneva Conventions as they existed then permitted captors of unlawful combatants to shoot them on sight. Later protocols changed this, but the U.S. has refused to sign those. We can still execute captured unlawful combatants without trial under those GC protocols applicable to us.

The UCMJ, however, requires that they be given some sort of trial. I'm not familiar with the latter, but a friend who was a field grade reserve MP (and later chairman of the Marin County, California, chapter of the ACLU) tells me that it provides greater due process for unlawful combatants than the old Articles of War.
2.22.2006 6:14pm
Noah Klein (mail):

No, the judicial branch should not. It should require that the government verify their affidavit. I think you pointed out well with the Reynolds case the reason why.

2.22.2006 6:22pm
Just an Observer:
Tom Holsinger: This plurality ruling [in Hamdi], as I understand it, was most definitely a judicial infringement of Presidential war powers and so a flat-out violation of separation of powers meriting impeachment of the Supreme Court Justices involved.

Again, the ruling on the separation-of-powers question was 8-1. The controlling opinion was the centrist plurality, but only Thomas voted with the government on that question. At the opposite end of the range, for example, Scalia's dissent (joined by Stevens) argued that Hamdi should not even be retained in military custody, but turned over to the civilian criminal-justice system.

And, as I said in the first place, you are entitled to cling to your personal opinion. Throwing in the "impeachment" line does not make it less a personal opinion. (I cling to the opinion that Roe v Wade was wrongly decided. But it remains the law.)

Good luck on getting those eight justices impeached. Meanwhile, the rest of the us will follow the Supreme Court's holding on what the law is.
2.22.2006 6:22pm
KMAJ (mail):

I do not disagree with Griswold, though I found the emanations and penumbras disconcerting. Using your textualist argument, doesn't the Constitution directly proclaim a right to life ? Are you saying that using such standards are only good if you support the outcome ?

You seek to categorize me as a textualist, I would self-describe myself as a contextualist. If the context is not specifically addressed, one must look to the arguments behind the text and correlating circumstances. When it comes to terrorism and the War on Terror, there is no specific equivalence, with the same risk assessment and threat matrix, to relate to, hence it is a new area of law. You can cite similarities here and there, but when you combine different cases to create a whole, you are dealing with a totally different context and trying to assimilate. Similarly, where is your justification for Roe ? Most scholars admit it is bad law, yet you defend it.

Also, in Griswold and Roe, you were dealing solely with social issues (civil liberties), in this case we are dealing with security versus civil liberties, and seeking to find the correct delicate balance. You see no balance, your position seems to be civil liberties trump all, no matter what the cost in life or to the country. As I said, you want to have your cake and eat it too.
2.22.2006 6:33pm
Defending the Indefensible:
As an aside, I am having trouble keeping track of which issue--torture or detention--you are talking about at any given time.
I think what I was saying is relatively applicable to both.
Anyway, I agree that I have not given any reason to believe that the torture line should be redrawn, nor have I tried to. I've just suggested that in theory such a situation could arise.
I understand that you don't like to say never, and I agree that many things are possible which I would never imagine so. Yet, I can fairly state that there is no circumstance that I can reasonably imagine which would ever justify torture.
In contrast, I do think some line-redrawing should occur with respect to detaining enemy agents, and have suggested why I think that is warranted. But I agree that one would have to much more precisely draw the new lines than I have attempted to do so.
I do not agree that this is warranted, because I do not believe that the current circumstances pose an existential threat to the country. When KMAJ and such like are wont to say that the Constitution is not a suicide pact, it is necessary first to establish that indeed the nation will die unless some provision be set aside. If this is not so, and it is not, then circumstances cannot justify disregarding its protections.
2.22.2006 7:00pm
I'll just note again in passing the small irony that KMAJ's "contextualist" defenses of President Bush are unlike to succeed in the courts in part because of the ongoing effort to pack the judiciary with "strict constructionists".
2.22.2006 7:03pm
Noah Klein (mail):

Terrorism is a new phenomenon for America. And you may be right that the law of the past does not meet the situation at hand. But that does not mean that the law changes or shifts to apply to this situation. The law can be changed to apply to a new situation, but it doesn't change on its own. You advocate for the law changing on its own. You have said many times well that's the way the law was back then, but this is new situation entirely. This is not the way the law works.

I didn't bring up Roe and Griswold, you did. I responded that the way you are reading Roe and Griswold, as proving the law is flexible, is not the correct way to read the opinions. I don't believe civil liberties always trumps national security, but I want a balance. I may be inclined to support the president's program, if I had the opportunity to see it debated in Congressor if I knew Congress had done so, but the president decided to change the law on his own. This is separation of powers issue, not a civil liberties trumping national security issue. The fact is I don't trust any branch of government to do anything on their own. They always must be subject to review and a check by another branch.

MMM... that's good cake.

2.22.2006 7:15pm
Tom Holsinger (mail):

You are correct. I goofed, and apologize. Preview is my friend, preview is my friend ... I have enough trouble distinguishing between Hamdi and Padilla.

IMO the Supreme Court's majority's claim to jurisdiction in Hamdi was error. IMO its claim to jurisdiction in Rasul was not merely error, but impeachable as an overt violation of separation of powers in war. Hamdi was a citizen brought to the U.S. by the govt.'s voluntary actio, while the appellants in Rasul were all held overseas after being captured overseas. The Constitution, and the judicial branch's jurisdiction, do not apply overseas.

I admit that the chances of impeachment here are nil. IMO President Bush should have outright defied the Supreme Court over Rasul, and told Congress to "impeach them or impeach me". Neither would have happened, with the result that Bush would have won his point, and shattered the Supreme Court's excessive claims to power. IMO that would be a very good thing.

We've had a discussion elsewhere about the essentially political nature of separation of powers disputes. Some hold that the Supreme Court can never violate separation of powers because it is the sole arbiter of the Constitution and its own power vs. a vs. the other branches. Some who hold this are called Mr. or Ms. Justice ...

As it is we shall see if Chief Justice Roberts can save the Court from its hubris.


Absolutely yes as to Hamdi given his particular fact situation. A District Court must consider only the govt.'s declarations on "colorable claim" when the capture in arms takes place overseas and the captors are allied forces, as American courts have no jurisdiction over the foreign forces. Consider, though, that my qualification as to Padilla shows my opinion as to the required evidence creating a "colorable claim" is situation specific.

Had Hamdi been captured by American forces, the district court would have had at least a claim to jurisdiction, and then the outcome should depend on the degree of burden on the govt., and the Executive's needs for speed and secrecy in war, i.e., then it would be a judicial deference question. During mass hostilities, such as in the Civil War, individual fact determinations would be impossibly burdensome.

But this Court is not showing deference - it is aggressively infringing on the President's core powers. That merits a strong response. Were I President, I'd tell the Court to stiff it, invite a contempt citation and take it to Congress and the People.

The answer to your question overall, then, is "Yes - when the govt.'s affidavits say a citizen was 'taken in arms', the District Court must accept that conclusion in any challenge to detention for the duration of hostilities."

My opinion would be different if the judicial branch had not established its contempt for separation of powers in this conflict. It is now a political struggle and the Executive should not give this lawless Supreme Court an inch. I repeat, the Rasul decision is where they clearly violated separation of powers.
2.22.2006 7:24pm
Just an Observer:
Tom Holsinger,

Thanks for clarifying your position.

I continue to think it is quite preposterous to think Bush would have "defied the court" over Rasul or any other matter in this constellation of war-powers questions.

Bush lives in utter fear of the courts, precisely because his general claims of executive power have fared poorly in cases such a Rasul and Hamdi. Now his lawyers' central strategy -- in Padilla and in the NSA controversy -- has been to try to stay out of court at all costs.
2.22.2006 7:36pm
Defending the Indefensible:
Tom Holsinger:
This plurality ruling, as I understand it, was most definitely a judicial infringement of Presidential war powers and so a flat-out violation of separation of powers meriting impeachment of the Supreme Court Justices involved.
Impeach Justices of the Supreme Court for opinions you don't like?

2.22.2006 7:36pm
Tom Holsinger (mail):
"Bush lives in utter fear of the courts ..."

Consider dropping your qualification, as in, "Bush lives in utter fear." Period. He's not comfortable in his own skin. He is nowhere near as insecure as Richard Nixon, but he is clearly the most insecure President since Nixon, and that includes Carter.

IMO this is due to Bush's lack of belief in, let alone a relationship with, the American people as an entity. Most Presidents draw strength from the American people, in varying degrees. Weak ones don't at all. Bush doesn't at all, but lacks most (or at least many) of the other common defining characteristics of weak Presidents - he is an odd mix of weak and average features as far as Presidents go.

Bush is a classic "big goverment/big business" Republican, and not a conservative at all - his being a "born again Christian" is a religious spectrum identifier, not a political one.


Not the Supreme Court's "rulings" - the justices' lack of respect for the Constitution and precedent as shown by their rulings (Judge Posner is scathing about their disregard for their own precedents - they don't even try to distinguish those much of the time). The Supreme Court became a threat to the nation when they started infringing on the President's war powers during a war in which we were attacked at home.

Voters elect Presidents, Senators and Congressmen based on their known records, their associations and their campaigns. They can be trusted to make decisions involving life and death for millions of Americans, and the voters can remove them from office for their mistakes.

Supreme Court justices aren't elected, and they can't be removed from office by the voters when their mistakes kill millions of us in war. So this bunch needs to go.

I repeat, the Supreme Court's lack of respect for their own precedents, and failure to recognize any other limit on their power, makes them a threat to the nation.

I want biannual retention elections for the Supreme Court because those that their errors will kill should be able to remove them from office.
2.22.2006 8:42pm
I don't understand why we even have a Supreme Court, particularly given that they have the blood of millions on their hands. Can't we just decide cases by popular vote?
2.22.2006 9:26pm
Defending the Indefensible:

We could make every case a live call-in show hosted by Nancy Grace. What do you think?
2.22.2006 9:40pm
Good idea, Steve. I see a time when we can dispose of these important issues via Web poll.

Much cheaper than the expensive and undemocratic trappings of "judicial review."
2.22.2006 10:04pm

I forget -- are you a lawyer?
2.22.2006 10:23pm
Just an Observer:
Steve: Can't we just decide cases by popular vote?

No doubt you think you are kidding. In fact, that is how
KMAJ proposed settling the issue of Bush's constitutional claim to exclusive executive power.

He would do anything to rationalize the President's position as a fugitive from judicial review. The adminstration really has no better rationalization to offer.
2.22.2006 10:28pm
Grand CRU (mail):
I do not think that this new phenomenon of citing people's past arguments on different threads is fair. On blogs, sometimes people just want to vent, or to air a view that they momentarily hold. Often times, people argue a position simply to advance debate, or provide a multiplicity of perspectives, or to see if they can convicingly argue from the other side, or whether they can synthesis two competing sides. Other times, posters exaggerate because they have not given their posts a second thought, or for jocundity. But to impeach posters with prior consistent or inconsistent statements would hold everyone to the standard of being utterly rigid and purely rational, which would chill the collegiality of the debate in here, or coerce them into losing credibility simply for presenting a novel argument. It is true that KMAJ could use alternate blog-names for alternate perspectives with minimal physical effort, but there are spectators who pay attention to his arguments either because they agree, disagree, or hope to do battle with him. I certainly like to see him clash swords with Medis and Noah. But I wouldn't characterize him as "rationalizing" the President's position. He has just as much purchase on logic and good argument as anyone here, even if he isn't always right.
2.23.2006 12:04am
KMAJ (mail):
Prof. Kerr,

No, I am not a lawyer, just an interested layman with a journalism degree. I find the law interesting and see there are many shared traits between the professions. A lawyer making a case and a journalist writing a story have a tendency to believe in their objectiveness, but when arguing a case or writing a story to make a point, both professions choose what or how to present the case or story. In the law, you accentuate certain cases that support your argument while trying to minimize those that don't, the object is to win your case for your client. A journalist, in feature stories, will choose the facts that support his theme or point, and minimize information or facts that don't, to draw viewers to the desired conclusion. Both are engaging in using the truth, but the version is manipulated in presentation in a way to best support them. Both professions, in general, do seem to have elevated opinions of themselves in comparison to the average person on the street. Where the legal profession has it better than journalism, is it offers the opportunity of face to face debate, journalism does not, except during elections. But that is not really debates over journalism. You can have competing articles, but they are not really addressing each other. Granted, not all legal debates are won by the side with the strongest legal support, sometimes the lawyer who is better at his presentation and argumentation will win.

I know I irritate some in here, but I do respect their opinions. I try to bring a layman's perception to the argument, I challenge their legal thoughts with public perceptions, because I would never endeavor to seek to out argue on the legal front. Just like journalism, the legal profession sometimes forgets who they are really supposed to represent, the people, not decide what they think is best for them. The Constitution is not that complex of a document, politics and the legal profession have made it more complex than it was meant to be.
2.23.2006 12:20am
Just an Observer:
Grand CRU,

Obviously I disagree. We have enough license in the blogosphere without completely abandoning intellectual accountability. Even anonymous personas such as you, KMAJ and myself should have to own our own words.

This medium lends itself particularly well to abuse not only by trolls, but also by provocateurs, shills and professionally directed agents. The least we can do is hold the personas responsible for consistency. It is also interesting to track the way the positions of certain personas here mirror changes in the White House talking points and polemic web sites over time.

Remember the New Yorker cartoon of about 10 years ago: A dog, sitting at a computer, says, "On the Internet, no one knows you're a dog."

For all I know, KMAJ is the creation of a couple of White House interns. And for all you know (to borrow a line from Ambrose Bierce) instead of the lofty purpose which seems to me to be occupying my powers, I may at this moment be sitting behind the bars of some asylum and declaring myself Noah Webster, to the innocent delight of many thoughtless spectators.

But what we write speaks for itself. Words matter, and ideas have consequences.
2.23.2006 1:04am
Grand CRU (mail):
Great speech, Jao.

Just one problem with your formulation -- "The least we can do is hold the personas responsible for consistency." One has to choose consistency or coherence, and one cannot have both, as time marches on and facts change. By insisting that everyone must be infinitely consistent, you are insisting that no one may change their mind upon reflection or alter their position upon obtaining new facts; not only is that position anti-scientific and anti-knowledge, it would totally defeat the point of having comment threads, as no one could be persuaded if everyone always maintained the same set of beliefs at the end of a debate that they maintained at the beginning. So I would agree with yoru formulation, on the condition that you changed it to: "The worst we can do is hold the personas responsible for consistency [from one comment thread, even one years ago, to another comment thread, even one years later]." I suppose you believe that we should never let criminals out of jail at any point in time, because any criminal will always have committed a crime in the past.
2.23.2006 2:34am

Thank you for the clarification. I had been thrown off by your "no doubt" language, but I now understand that you mean that the government's allegations must be assumed to be true, regardless of whether there is doubt about those allegations.
2.23.2006 8:21am
By the way, I think Rasul is a great example of how the government has shot itself in the foot over the detainee issue. If they had just given the Gitmo detainees status hearings--even before military tribunals--as the Brits have been doing with their detainees, then Rasul would have been much closer to Eisentrager on the facts, and the government may well have won on the habeas issue. And even if not, if Congress had authorized that scheme of status hearings and detentions, then habeas review would be very limited and the government would likely have won anyway.
2.23.2006 8:36am
Defending the Indefensible:

It appears that Grand CRU is now trolling you.

"A foolish consistency is the hobgoblin of little minds." Johnson, S. [emph. added].
2.23.2006 8:45am
Just an Observer:

Not to worry. Here in the Court of Public Opinion, as far as I am concerned, Grand CRU's objection has been overruled. I feel free to cite links to others' prior postings, and not only to demonstrate inconsistency.

My only second thoughts are due to regret that I misremembered the Ambrose Bierce passage.
2.23.2006 9:42am
On the consistency issue:

Obviously we should not insist on consistency if someone wants to explain how further reflection or new facts have changed their views. Of course, if it appears that such changes in some particular person's views have tracked neatly with changes in the Administration's talking points over time, we have every right to suspect that is not a coincidental pattern.
2.23.2006 9:51am
Just an Observer:
If I might return, however obliquely, to the general subject of the thread:

Can someone explain the government's rationale for claiming the "enemy combatant" status in Padilla's original case, but treating every other case of alleged terrorism in the United States as a criminal-justice matter?

Is there some overarching legal theory that distinguishes them? Or is it purely tactical?

This is not meant as a purely rhetorical question, although it is rich in such potential. I honestly don't know what DOJ has said about the matter.
2.23.2006 10:14am

I don't know what the DOJ has said on this subject either, but as I recall, the President's order to Rumsfeld in Padilla's case stated something to the effect that it was in the interests of the United States for the DOD to detain Padilla as an enemy combatant. I also recall that in moving to transfer Padilla to civilian custody, the government stated that it was no longer necessary to hold Padilla militarily in the interest of national security.

So, if the government did not want to make any legal concessions on this issue, I suppose they could just say that the President has not made a similar determination (that holding the accused in military custody was in the interests of the United States) in any of these subsequent cases.
2.23.2006 10:29am
Tom Holsinger (mail):

IMO the govt.'s various positions concerning Padilla are due to a variety of factors (provided in no particular order):

1) Disagreements within the Bush administration, exacerbated by lack of direction or interest by President Bush. I wouldn't be surprised if calls here are made based on who talked to him last.

2) Tactical legal considerations, particularly concerning assessments of how the judges and justices might rule, exacerbated again by lack of direction or control.

3) A desire to protect foreign intelligence sources and/or electronic intelligence sources, exacberated by disputes within the Bush administration on such issues.

President Bush is clearly not a strong President, and much inconsistency here could be explained by this.

I personally would try all non-citizen adherents of foreign enemies before military tribunals. Citizens I have no opinion on. The German saboteur case from World War Two (I don't recall the name) provides precedent here - one of the defendants was an American citizen. The Supreme Court specifically held in that case that it was proper to try a citizen adherent of the enemy before a military tribunal.

I have qualms about that - I'd like at least some Constitutional due process as to whether a citizen has forfeited Constitutional protection. Detention for the duration of hostilities is one thing, but trial and punishment are quite another. It might be that the citizen in the German saboteur case was given that, but I'm still nervous.

I draw a bright line between citizens and non-citizens in these matters.


I believe the British have military tribunals consider whether individuals held as unlawful combatants really are unlawful because the British govt. has signed a Geneva Convention protocol requiring such hearings. The U.S. govt. hasn't signed that protocol. I could be wrong here, but that is my recollection.
2.23.2006 2:22pm

My recollection is that it is actually a difference of interpretation of the same provisions. As I recall, there are two uncontroversial propositions:

(1) That under the Geneva Conventions, a person being held as a POW is entitled to a status hearing on whether they should in fact be detained at all;

(2) That under the Geneva Conventions, if a person being held as a POW is tried and convicted of having been an unlawful combatant, they lose their POW status and can be held as a war criminal (although other international agreements, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, would still apply to convicted war criminals).

My recollection is that the Brits, like almost every other signatory to the Geneva Conventions, has interpreted these provisions to mean that before you can hold a person as an unlawful combatant, you have to follow both of these steps. Apparently, we also adopted the same interpretation from Vietnam through the first Gulf War and on through the late '90s.

The Bush Administration, however, has adopted a more "creative" interpretation. On their view, the President can simply designate a detainee as an unlawful combatant. Once the President has done so, the detainee immediately loses any claim to POW status. Accordingly, on their view such a detainee has no right to a trial on the issue of whether they were in fact an unlawful combatant, because only POWs have a right to such a trial. Similarly, the detainee has no right to a status hearing on whether they can be detained at all (eg, even if a detainee claims to not be a combatant of any sort, they still get no hearing), because given the Bush Administration's creative interpretation, only POWs have a right to a status hearing.

As the Brits and others have pointed out, the Bush position on the Geneva Conventions is absurd--if the Geneva Conventions provide status hearings for people seeking to get out of even POW status, a relatively protected class, why wouldn't they provide status hearings for people seeking to get out of unlawful combatant/war criminal status, a much less protected class? And generally, the Geneva Conventions are designed to set "POW" as the default status for military detainees, with various procedures for moving detainees out of that default status in various directions (eg, toward either civilian status or to criminal status).

But as I understand it, because the Geneva Conventions don't explicitly state that all people being held as "combatants" (as opposed to as "prisoners of war") are entitled to status hearings, the Bush Administration has claimed there is a textual loophole for unlawful combatants. The fact that this interpretation is absurd, and the fact that none of our allies, and indeed no other American administration, has proposed such an interpretation, does not appear to faze them.
2.23.2006 4:46pm
Tom Holsinger (mail):

Part 5 of the Geneva Convention on POW's states (my emphasis:
"Article 5

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

That is why I used the phrase, "When there is no doubt about the combatant status of the detainees ..." in reference to combatant status (not lawful or unlawful) - I was borrowing a standard legal term ("doubt") from the GC on the related but different issue of "combatant" status at all.

When a prisoner is "taken in arms", there is no doubt about their combatant status. Hamdi was "taken in arms" and there was no doubt about his combatant status. Padilla wasn't taken in arms so, IMO, the govt. clearly had a duty to prove his adherence to the enemy against a habeas challenge.

Whether Hamdi was a "lawful" combatant is a different matter and here the GC is clearly applicable. He was a foreign adherent of the Taliban - an Afghan faction purporting to be its government - who was a citizen of Saudi Arabia for all purposes save birth, which since it was in America made him an American citizen under our law.

The Taliban was not known for its adherence to international law in any way shape or form, including those defining characteristics of lawful combatants under the August 12, 1949, Geneva Convention relative to the Treatment of Prisoners of War, but my recollection is that the U.S. govt. did give captured Taliban fighters the status of POW's anyway, though not its Al Qaeda allies.

Our allied Afghan militias had different opinions. To the extent they made any attempt to apply the GC at all, they refused to give lawful combatant status to any non-Afghan, aka foreign-born, citizens of the Taliban save for Pakistani Pushtun tribesmen. I.e., Hamdi as a Saudi was not for them a "lawful combatant". But he was for us, and our Afghan allies gave Hamdi to us as he claimed to be an American citizen.

This distinction is why John Walker Lindh got the relatively favorable treatment he did - he was asked whether he wanted to fight for Al Qaeda or the Taliban, and chose the Taliban.

The distinction you make about tribunals applies only when there is Article 5 doubt about whether a given combatant prisoner's status falls into the categories defined in Article 4.

Just looking at the plain text of the GC here, I do not at all see how the Bush administration's interpretation is arguably error.

But I do have a vague recollection that there is a later adopted related protocol which says what you contend, and that the British signed it but we didn't. I admit I'm hazy here. But parts 4 and 5 of the August 12, 1949, Geneva Convention relative to the Treatment of Prisoners of War are pretty clear that a tribunal is required to assess the lawful/unlawful status of combatants only when there is "doubt" about such status.
2.23.2006 5:25pm

I thought you had dropped the "doubt" line. Instead, I thought you had settled on the proposition that a District Court has to assume that all of the government's claims are true, regardless of whether the District Court doubted them (a proposition that was basically rejected 8-1 in Hamdi, of course).

Anyway, obviously if the power holding the prisoner gets to simply say for itself whether or not there is a doubt about the prisoner's status, then the very idea of providing for tribunal hearings under the Conventions is pointless--they will never happen because holding powers will always just say that there is no doubt they are right about the prisoner's status, and therefore there is no need for a hearing. So, that provision only makes sense if you drop your "there is no doubt if the government says there is no doubt" proposition. Instead, the Conventions makes sense only if "doubt" arises when the prisoner disputes his or her status.

Frankly, I wonder if you really take that proposition seriously, even in Hamdi. I suspect instead that there is no doubt in your mind that the government's allegations about Hamdi were true, and you just don't like the fact that not everyone agreed with you and the government.

But surely you can't really expect anyone to buy into this idea that the government gets to say for itself whether or not its claims can be doubted. In fact, that is so obviously absurd that it sounds like a cheap takeoff on 1984.
2.23.2006 6:30pm
Tom Holsinger (mail):

The GC depend on self-enforcement, which makes your argument circular.
2.23.2006 6:42pm
Tom Holsinger (mail):

You've lost when your argument relies upon denial of use of words in their ordinary and common sense. This has happened before. You try so hard to reach a pre-conceived conclusion that you lose perspective. Common sense ceases to have meaning for you (pun intended).
2.23.2006 6:56pm

First, that is not quite true, because violating the Geneva Conventions can have adverse consequences on the world stage--for example, in the loss of support from allies.

Second, the Conventions also depend on there being meaningful rules to actually enforce. Your proposed reading of Article 5 makes it meaningless.
2.23.2006 6:57pm

We cross-posted--but seriously, you think "common sense" is on your side? You think it is common sense to say that we know that there is no doubt that the government is telling us the truth because the government has told us that there is no doubt that it is telling us the truth?

I don't think that is anyone's idea of common sense.

Anyway, though, I sense we have reached an unproductive point, which is usually the case when people start citing "common sense". So, I leave you with this little play in one act, which practically wrote itself:

Generic Foreign Bad Guy: Let the torture of the American woman begin!

American Woman: Torture!?!? But I am just a civilian aid-worker!

Bad Guy: Nonsense! You are an American pig-spy.

American Woman: No, seriously, I can prove it ...

Bad Guy: Silence, pig-spy! Now where is that bucket of water?

American Woman: Aren't I entitled to some sort of hearing?

Bad Guy: Only if there is a doubt. And I have no doubts. Ah, there is my bucket.

American Woman: No, but seriously, if you just give me a chance I can prove ...

Bad Guy: I said silence! Now take off your clothes, pig-spy. And somebody get me a dog.

2.23.2006 7:07pm
Just an Observer:
Not to butt in on the Geneva Convention issue, on which I really have no prior expertise, but having just reread Hamdi, I think the court clearly recognized a place for some proceeding to determine the threshold question of status. In this particular case involving a citizen, the court held, that role would be fulfilled by civilian courts:

There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190—8, §1—6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.
2.23.2006 7:42pm

That regulation is very interesting--I gather it was what people have been talking about when they have claimed the standard international interpretation of the Geneva Conventions applied in the US through the late '90s. The first section states:

"1–6. Tribunals

a. In accordance with Article 5, GPW, if any doubt arises as to whether a person, having committed a belligerent act and been taken into custody by the US Armed Forces, belongs to any of the categories enumerated in Article 4, GPW, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

b. A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatment as a prisoner of war, or concerning whom any doubt of a like nature exists."

In general, I wonder what happened to 1-6(b). I also note the phrase "who asserts that he or she is entitled to treatment as a prisoner of war, or concerning whom ANY DOUBT OF A LIKE NATURE exists."

So, as of 1997 at least, the US Armed Forces, like me and most of the world, thought that doubts arise as soon as a prisoner asserts a status claim, not just if the government itself agrees with the prisoner that there is a doubt about the prisoner's status.
2.23.2006 8:07pm
Tom Holsinger (mail):

I agree with Medis that your Army regulations citation is interesting. If the government was not following its own regulations then a heightened degree of judicial scrutiny might be appropriate.

OTOH, we are involved in an information war too, and that includes false claims by the enemy - we've captured their instruction manuals directing captured personnel to do this.

Bear in mind that lawful combatants must identify their organization. This is difficult for terrorists. See Article 17. Note that it is American policy to give foreign governments the "right of first refusal" concerning custody of captured terrorists purporting to be of their nationality. Mostly they don't want 'em back. And the captured terrorists rarely want to be handed over to their home countries' secret police and torture chambers - they much prefer American custody.


Could you provide a link to your quotation?
2.23.2006 8:44pm

The link I used is:

BTW, I agree that detainees who challenge their status might be lying. That is why putting their claims before a "competent tribunal" with reasonable procedures makes sense. Along those lines, here are a few more details.

1-6(c) defines the makeup of the tribunals:

"c. A competent tribunal shall be composed of three commissioned officers, one of whom must be of a field grade. The senior officer shall serve as President of the Tribunal. Another non-voting officer, preferably an officer in the Judge Advocate General Corps, shall serve as the recorder."

1-6(e) defines the tribunal procedures. One notable highlight is that 1-6(e)(9) defines the standard of proof as the "preponderance of the evidence". Another is 1-6(e)(10), which states:

"(10) A written report of the tribunal decision is completed in each case. Possible board determinations are:
(a) EPW.
(b) Recommended RP, entitled to EPW protections, who should be considered for certification as a medical, religious, or volunteer aid society RP.
(c) Innocent civilian who should be immediately returned to his home or released.
(d) Civilian Internee who for reasons of operational security, or probable cause incident to criminal investigation, should be detained."

The glossary explains that "EPW" is "enemy prisoner of war" and RP is "retained person". Those are both terms of art under the Geneva Conventions (Convention III for EPWs and Convention I for RPs). It doesn't appear that there is a category for what the Bush Administration has been calling unlawful enemy combatants, unless it is (d).

And finally, on that subject, I think 1-6(g) codifies what I described as the second step above (that if you are holding someone who is accused of being an unlawful combatant, they can lose their POW status and can be held as a war criminal instead, but only after a trial):

"g. Persons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed."

Anyway, as I understand it, this is indeed a codification of the standard interpretation of the Geneva Conventions. And I very much wonder what happened to this regulation--I'd guess it was withdrawn in early 2002 after Rumsfeld and the President determined that the Geneva Conventions did not apply to the Taliban, Al Qaeda, et al, but I don't really know.
2.24.2006 6:07am
And to answer my own question in part:

First, Justice Souter discussed 190-8 and its codification of the Geneva Conventions in Hamdi. He wrote (with most citations omitted):

"The Government answers that the President’s determination that Taliban detainees do not qualify as prisoners of war is conclusive as to Hamdi’s status and removes any doubt that would trigger application of the Convention’s tribunal requirement. But reliance on this categorical pronouncement to settle doubt is apparently at odds with the military regulation, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Reg. 190—8, §§1—5, 1—6 (1997), adopted to implement the Geneva Convention, and setting out a detailed procedure for a military tribunal to determine an individual’s status. . . . One of the types of doubt these tribunals are meant to settle is whether a given individual may be, as Hamdi says he is, an '[i]nnocent civilian who should be immediately returned to his home or released.' The regulation, jointly promulgated by the Headquarters of the Departments of the Army, Navy, Air Force, and Marine Corps, provides that '[p]ersons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed.' The regulation also incorporates the Geneva Convention’s presumption that in cases of doubt, 'persons shall enjoy the protection of the . . . Convention until such time as their status has been determined by a competent tribunal.' Thus, there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority."

Of course, this last issue wasn't actually reached in Hamdi, because the Court was just deciding the habeas issue.

In contrast, it does looks like this exact issue (the continued applicability of 190-8) was raised in Hamdan. The District Court found that 190-8 granted Hamdan a right to a status hearing by a competent tribunal. Incidentally, on our "doubt" side issue, here is a bit of the District Court's opinion:

"Hamdan has asserted his entitlement to POW status, and the Army’s regulations provide that whenever a detainee makes such a claim his status is 'in doubt.'"

Anyway, the District Court also held that the President's blanket determinations did not satisfy the "competent tribunal" requirement in 190-8, and that the "Combatant Status Review Tribunals" had not been empowered to make such status determinations as provided in 190-8.

The DC Circuit also discussed this exact issue in Section VII of their opinion in Hamdan. Here is there very interesting discussion:

"Hamdan claims that AR 190-8 entitles him to have a
'competent tribunal' determine his status. But we believe the military commission is such a tribunal. The regulations specify that such a 'competent tribunal' shall be composed of three commissioned officers, one of whom must be field-grade. A field-grade officer is an officer above the rank of captain and below the rank of brigadier general -- a major, a lieutenant colonel, or a colonel. The President’s order requires military commissions to be composed of between three and seven commissioned officers. The commission before which Hamdan is to be tried consists of three colonels. We therefore see no reason
why Hamdan could not assert his claim to prisoner of war status
before the military commission at the time of his trial and
thereby receive the judgment of a “competent tribunal” within
the meaning of Army Regulation 190-8.
2.24.2006 6:41am
Sorry ... I accidentally hit "post comment" before I was done formatting, composing, and editing that last post.

So, to finish my thought:

It appears to me that the DC Circuit did not disagree with the District Court that 190-8 created a right to a status hearing. They did, of course, disagree with the District Court about whether the CSRTs are empowered to make such determinations. Nonetheless, insofar as they held that Hamdan could assert his status claim before his CSRT, they seemed to be holding that Hamdan does in fact have such a right.

So, it seems like the courts have all been agreeing on the continued applicability of 190-8. Which is very interesting.
2.24.2006 6:46am
Tom Holsinger (mail):

Thank you for the link. The document is 86 pages long so I'll have to study it later.

The reason the Army Regulations here are so important is that those might provide a grounds for judicial action independent of the Geneva Conventions. I repeat that American law provides greater protection for all prisoners of any sort than the Geneva Conventions.

One of the reasons is that the Geneva Conventions, like any treaty, are not binding on the Executive branch, who may ignore them at its discretion. There are many cases on this point, though none involving the GC. American law, however, may not be ignored by the GC, so if the Army Regulations here have the force of law (statute), the Judicial branch has every right to enforce them against the Executive.

OTOH, if these Army Regulations do not have the force of law, they are not binding on the Executive and can at best be used as persuasive authority. If these Regulations may be amended at the Executive branch's discretion, they are not statutory and are not binding on the Executive.

Also keep in mind that the GC does require, and we seem to be complying on this point, that the governments of the nations whose persons we hold captive must be notified that we are holding one of their citizens.

This is pertinent to Article 5 of the GC on prisoners of war requiring that a "competent tribunal" determine the lawful/unlawful status of a combatant when their status is questionable. The "competent tribunal" need not be the captor's tribunal - it can be a tribunal of the captive's own government.

So when a captive claims lawful combatant status and his own government says he ain't, Article 5 is satisfied.

You and JAO also ignore a captive's duties under Article V to truthfully identify himself when he claims lawful combatant status. A prisoner's refusal to identify himself, or his being found to have intentionally lied about his identity, eliminates all doubt right there about his lawful combatant status - he's unlawful.

The error you and JAO make here, and many others make, is an assumption that the only actor under Article V is the captor - i.e., the U.S. government. That is just not true. Captives are actors - they have their own Article V duties, and the governments of their own nations are also actors.
2.24.2006 2:35pm
Tom Holsinger (mail):
oops, change "Article 5" in the last two paragraphs of my immediately previous post to "Article 17".
2.24.2006 4:33pm
Just an Observer:
Tom Holsinger,

Just for the record, while I am interested in following this particular branch of the discussion about foreign nationals detained by the government -- and did intrude to point out the language from Hamdi referencing the Army regulations -- I don't recall taking any substantive position beyond that so far. So your assertions that I "ignore" some things and made some "error" are misplaced.

I freely admit that the international-law aspects of detention issues are new ground for me. Heretofore my closest association with the Geneva Convention was watching Bridge on the River Kwai 1,001 times.
2.24.2006 4:55pm
Tom Holsinger (mail):
Okay, JAO, I apologize. BTW, what was the rank and name of the Japanese commandant, and which actor played him?
2.24.2006 6:32pm
Just an Observer:
Col. Saito. Sessue Hayakawa.

(I did know the answer, but had to look up the spelling).
2.24.2006 7:27pm
Tom Holsinger (mail):
You're a fan, alright.
2.24.2006 8:15pm

I'm not sure why you think the Executive branch can ignore treaties at its discretion. Treaties, of course, are the supreme law of the land under the Constitution. And the courts have held that insofar as a treaty provision is "self-executing" and provides a right to a private party, such a party can rely on that right as if the treaty were a law passed by Congress.

Of course, most treaty provisions are considered executory, not self-executing (and there is often language to that effect in our reservations when signing treaties). With executory provisions, Congress would have to enable the relevant treaty provisions through further legislation before they became judicially enforceable.

So, perhaps you are thinking of the fact that the DC Circuit held in Hamdan that the Geneva Conventions were executory, not self-executing, and thus that Hamdan could not assert a claim under the Conventions without further execution by law. But that principle—that executory treaties are not judicially enforceable until enabled by legislation—is not a special privilege of the Executive branch. Rather, it is a general proposition about executory treaties.

Alternatively, you may be thinking of the fact that some Presidents have asserted a unilateral right to withdraw the United States from treaties. Of course, that is not the same thing as a President ignoring treaty provisions piecemeal at his discretion. As an aside, it would be a very big deal if the President actually withdrew the United States from the Geneva Conventions, and of course he has not done so.

Anyway, the unilteral withdrawal notion is not a settled issue. If you are thinking of Goldwater v. Carter, that case was dismissed by the Supreme Court on jurisdictional grounds, not on the merits. And there was not even a majority vote on the appropriate jurisidictional grounds (Justice Rehnquist wrote a plurality opinion for four Justices including himself; Justice Jackson concurred but disagreed with Rehnquist's reasoning; Justice Marshall simply concurred in the result; Justices Blackmun and White thought the case required oral argument and that Rehnquist's determination was premature; and Justice Brennan disagreed with Rehnquist and thought that the case should be decided on the merits). So, all that is really clear from Goldwater is that individual members of Congress do not have standing to challenge the President's withdrawal of the United States from a treaty. Whether, say, a private plaintiff with standing under a self-executing treaty provision could challenge the President's unilateral withdrawal from the treaty is an unanswered question as far as I know.

But perhaps you have something else in mind. If so, I'd be interested to see a citation or reference.
2.24.2006 11:33pm

Oh, and on your Article 17 argument--I agree that a prisoner's refusal to identify himself is something that could be raised in a status hearing. But I don't see why that is relevant to whether he is entitled to a status hearing.

On your "captive's own government" argument--I honestly have no idea what you have in mind. Are you talking about the prisoner actually going before a tribunal constituted of his fellow nationals? Or are you just talking about the prisoner's government issuing some statement? Because if you have the latter scenario in mind, I don't see any "tribunal" being involved, competent or otherwise.
2.24.2006 11:48pm
Tom Holsinger (mail):

There are more than a few federal rulings that the Executive may ignore treaties at its discretion. And it is not a question of formal withdrawal. The Executive can simply choose to ignore a treaty, or portions of it, at its sole discretion, while enforcing those same provisions against state and local governments over their objections.

You might not like that, but it is true. I suggest you do some research before going too far out on a limb here, as I will happily saw it off and then gloat loudly.

So please do make a fuss here. I'll enjoy every minute of it. You can't say you weren't warned.

Foreign tribunal example. Terrorist suspect says his name is Ochbahr Oryli and claims to be a citizen of Egypt. He gives a birth date, a birth place and names his parents. We ask the Egyptian govt. if this is true and if they want him back. They reply that their records show no such person exists and they don't want him. We ask an Egyptian secret police guy assigned to liason at Gitmo to talk to the guy. The Egyptian flatfoot says the guy's accent is not Egyptian, and that he is almost certainly a Syrian. (note - there are many dialects of Arabic, and those are all quite regional AFAIK).

Then the dude asks for a lawful combatant hearing, and still claims he is Ochbahr Oryli of Egypt. At this point there is no doubt he is lying about his identity. He has an Article 17 duty to truthfully identify himself when claiming lawful combatant status.

He doesn't even get to the hearing stage. He's an unlawful combatant.

But suppose we do, for purposes of argument, accept his contention that he is a lawful combatant. He even identifies the combatant organization he claims to be a member of:

the Remember Hama - Kill Hafez Assad and All His Descendents And Eat Their Livers battalion of the Muslim Brotherhood.

We notify the Syrian govt. of this and ask them to form an "appropriate tribunal" to hear this guy's claim to be a lawful combatant. They immediately reply that they know this guy, that they found him to be an unlawful combatant years ago, and that they want him real bad so they can execute the sentence they imposed on him years ago.

Tell me how the latter does not satisfy Article 5.
2.25.2006 3:30am

You say: "There are more than a few federal rulings that the Executive may ignore treaties at its discretion. And it is not a question of formal withdrawal. The Executive can simply choose to ignore a treaty, or portions of it, at its sole discretion, while enforcing those same provisions against state and local governments over their objections."

Great, please give me the citations for those cases. I'll look forward to reading them.

On your hypo:

You say: "At this point there is no doubt he is lying about his identity. He has an Article 17 duty to truthfully identify himself when claiming lawful combatant status. He doesn't even get to the hearing stage. He's an unlawful combatant."

Of course he still gets a status hearing. He is just very likely to lose at that hearing, given the evidence you cite.

I don't see why this a hard concept: under the Army Regulations, and the standard interpretation of the Geneva Conventions, doubt arises when the prisoner makes a contrary status claim. That issue must then be resolved by a competent tribunal using a preponderance of the evidence standard. You came up with a case in which the evidence against the prisoner's claims is very strong, so there shouldn't be a problem with a competent tribunal reaching the right result.

You then say: "But suppose we do, for purposes of argument, accept his contention that he is a lawful combatant."

No, that is NOT what I am arguing. We don't accept his contention. Rather, we put that contention to the test before a competent tribunal. Assuming your description of the evidence is correct and complete, we would expect the tribunal to reject his claim.

Finally, you say: "We notify the Syrian govt. of this and ask them to form an 'appropriate tribunal' to hear this guy's claim to be a lawful combatant. They immediately reply that they know this guy, that they found him to be an unlawful combatant years ago, and that they want him real bad so they can execute the sentence they imposed on him years ago. Tell me how the latter does not satisfy Article 5."

As an aside, there are other provisions of the Conventions dealing with transfers of prisoners to other jurisdictions. But as for Article 5, it doesn't satisfy that Article because the prisoner has not gotten a hearing before a competent tribunal. Once again, you seem to be assuming that a hearing before a competent tribunal can be replaced by the Syrian government making a determination and telling us about it. That is not what Article 5 provides, although of course the Syrian government might provide evidence that could be used in the status hearing.

Frankly, I really don't get your entire take on this issue. It is pretty straightforward in both the Conventions and the Army Regs: the way to resolve a dispute between the holding power and the prisoner over the prisoner's status is through a hearing before a competent tribunal. And when you come up with hypothetical cases in which the evidence against the prisoner's claim is very strong, that just means the prisoner is likely to lose at his hearing, not that he doesn't get a hearing at all.
2.25.2006 8:43am