Author: John Ip


Book Review: Denbeaux & Hafetz, The Guantánamo Lawyers

The Guantánamo Lawyers by Mark P. Denbeaux & Jonathan Hafetz (eds), New York: NYU Press, 2009.

The Guantánamo Lawyers is a collection of stories from more than one hundred lawyers who have been involved in some way in representing the detainees held by the United States at Guantánamo Bay Naval base and elsewhere since the terrorist attacks of September 11, 2001.

The lawyers’ accounts are arranged to form an approximate chronological narrative of the Guantánamo litigation, although the chronology is interrupted to a degree in some of the chapters that deal with matters such as torture, rendition, and the cases of detainees held outside Guantánamo. Short introductory explanations by the editors appear throughout, and provide some context and continuity to the lawyers’ stories.

The book begins with the establishment of Guantánamo as a detention facility after 9/11, and the decision of certain lawyers to get involved from an early stage in arguing for the habeas corpus rights of Guantánamo detainees, then termed “the worst of the worst”. In 2002, lawyers willing to represent terrorist suspects were few and far between. Among the initial few were Thomas Wilner of Shearman & Sterling and Michael Ratner of the Center for Constitutional rights; Joe Margulies, Clive Stafford Smith and Eric Freedman, all lawyers with expertise in death penalty litigation, also joined the cause from the outset.

These pioneers were later joined by many others, particularly after the Supreme Court’s 2004 decisions concerning the war on terrorism. The general picture that emerges about the motivations of the lawyers is that they did it out of a strong belief in the rule of law and due process, as well as a desire to restore the United States’ adherence to its own ideals. Many of the stories emphasize that the decision to act for the detainees was a form of patriotism as well — a salient point in light of the recent (and widely discredited) attack on the integrity of current Department of Justice lawyers who had previously worked on Guantánamo litigation.

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Signing off

The semester has just concluded at my institution. The end of classes is always a bit of a relief, although it also means that grading is just around the corner. So, alas, it’s time to swap blogging for grading papers and exams. I’ve enjoyed my guest stint, and I’d like to thank everyone here at Concurring Opinions, and particularly Dan Solove for inviting me.


Things not to post on Facebook: Part 34,683

Okay, so I just picked that number out of the sky.

Five high school students (from my old high school) have caused a minor scandal after they were found to have posed with the swastika and other various Nazi regalia during a school trip to the Auckland War Memorial Museum. According to media reports, this included ‘kissing a swastika, making a Nazi salute and kneeling in homage before a flag.’ (This news comes a month after it was reported that first year university students decided that to have an Oktoberfest party with some students dressed as Nazis and others as concentration camp prisoners.) The boys involved in the current incident have now been back to the Museum and apologised in person to staff and war veterans.

The incident actually occurred earlier in the year, but came to the attention of the school recently after the pictures were posted and seen by a former student on Facebook (not me in case you are wondering – I am useless on Facebook). Whereas in the past one might have called up one’s mates and told them about pictures of such tasteless and offensive acts, the age of digital cameras, wifi and social networking means that the pictures themselves can be there for the world to see.

Now, the New Zealand Herald wonders breathlessly, ‘What history should schools be teaching our students?’ (I like history, so super-deluxe with extra cheese.) But seriously, I hope this is just a case of historical ignorance about World War II, Nazis and the Holocaust. In any case, I imagine the five boys concerned will have learnt about, if nothing else, the perils of Facebook.


The UK Supreme Court: a coda

Two further matters regarding the UK Supreme Court. The first concerns the vacancy for the 12th spot on the Supreme Court. According to the Ministry of Justice, vacancies are filled by a selection commission, comprising of  ‘the President and Deputy President of the Supreme Court . . .  and members of the appointment bodies for England, Wales, Scotland and Northern Ireland.’

One of the apparent favourites to fill the recently advertised vacancy is Jonathan Sumption, QC. (Aside: wouldn’t it be neat to write your own Supreme Court vacancy? “Wanted: Supreme Court Justice. Must be steeped in legal learning, have gravitas, and be able to get along with others steeped in legal learning and possessing gravitas. Serious brainpower desirable; advocacy experience a must, judicial experience preferred.”) It is Jonathan Sumption QC’s judicial (in)experience that is causing controversy. There is no doubt he is a top advocate, and he apparently doubles as a medieval historian. Intellectual chops is not the issue. But he has never served as a judge, and his potential elevation to the Supreme Court would have him leapfrog judges of the Court of Appeal (and for that matter, the judges below that court as well). Some Court of Appeal judges have reportedly expressed some displeasure at this.

There seem to be two different arguments here. The first is that one should in a sense pay one’s dues out of respect for those more senior. That doesn’t strike me as a particularly good argument, and I don’t imagine readers enculturated in the US system of judicial appointments would feel differently. The second claim, that it would be useful for even the most gifted legal mind to gain some judicial experience before heading to the Supreme Court, strikes me as the better argument.

And now for the second item concerning the UK Supreme Court: The UKSC Blog has an interesting item on the size and composition of the Court. It appears that the Court may sit in various odd numbered configurations. This seems a little odd to me, although there is certainly historical precedent for this with the House of Lords. I think there is a lot of sense in having the same set of judges on a top court. This avoids questions about A-teams and B-teams, and whether one would have won the case if Justice X had been sitting in place of Justice Y.


An ode to The Wire

I miss this show. At the same time, I understand why David Simon et al drew the line at five seasons. It’s hard to maintain such a high standard over a prolonged period of time  – indeed I thought season 5 was probably the weakest season. That said, it was in my view no worse than the fifth best season of a television series ever shown. It’s hard for me to take other police shows seriously now.

One of the things that I do now is to spread the word about the masterpiece that is The Wire. I was first given season 1 on DVD in 2005, and was pretty much instantly hooked. (In its infinite wisdom, Television New Zealand has screened the show, usually around midnight. In any case, having commercial breaks in between would no doubt have driven me batty.) During the halycon days of seasons 3 and 4, a couple of North American colleagues and I would sometimes avidly discuss the show at our daily Faculty morning teas, leaving some of our other colleagues wondering why we were discussing West Baltimore versus East Baltimore, and just who Lester Freamon, Bunk, McNulty, Stringer Bell and Omar Little were. (Incidentally, I am often similarly lost at morning tea when the topic of conversation wanders into such private law gems as waiver of tort and principles of agency.)

Since then, several more of my colleagues have been persuaded to start watching (thank me later, HBO). My advice is usually to put the subtitles on – the New Zealand vernacular and accent have little in common with that of Baltimore.

Also, having met various academic colleagues at conferences and other events overseas, I am surprised how often The Wire arises in conversation. What accounts for this apparent popularity amongst the legal academy? Perhaps part of it can be put down to some of the classic depictions of law through the five seasons. The examples that come to mind are Omar’s courtroom confrontation with Maurice Levy, Kima and co satisfying the legal requirements for obtaining a wiretap, and the various depictions of police interrogation (the xerox-machine-as-polygraph incident, presumably a recreation of an incident David Simon described in Homicide, is a personal favourite). Quite apart from this, some of the themes – most obviously the futility of the war on drugs – have obvious connections to the law.

Actually, it seems to me that The Wire would be ripe for some law and literature-style scholarship. Is anyone aware of any?


The new UK Supreme Court

On 1 October 2009, the Supreme Court of the UK opened for the first time. Located in Parliament Square, the new court replaces the (Appellate Committee of the) House of Lords,400px-UK_Supreme_Court_badge which had previously functioned as the highest court in the UK.

The Court consists of twelve Justices (although one is yet to be appointed), and is headed by the first President of The Supreme Court, Lord Phillips of Worth Matravers. (Aside: I have always been a little hazy as to why certain Law Lords get the cool place-name-appendage and others don’t. Apparently, as now UK Supreme Court Justice, Baroness Hale of Richmond, explains (around the 15 minute mark), it is tied to the need for every member of the House of Lords to have a unique name.)

The appellate role of the House of Lords had evolved over hundreds of years;  full-time professional judges had operated within it for more than 130 years. The replacement of the Appellate Committee of the House of Lords with the Supreme Court was announced in 2003, and this change was implemented by the Constitutional Reform Act 2005.

The opening of the new Supreme Court represents more than just a change in name and premises: it is a significant constitutional milestone. According to Lord Phillips of Worth Matravers, it is about giving ‘formal effect to an important constitutional principle — the separation of powers’. Indeed it is possible (as suggested here), that the new UK Supreme Court may view its institutional position in a somewhat different light, and may be more willing to flex its judicial muscle against the government. Interesting times await.

Image: wikimedia commons, Martin23230, Creative Commons Attribution ShareAlike 3.0 License


UK’s control order regime in jeopardy?

A Times report from earlier this month states that ‘Britain’s most dangerous terrorist suspects are likely to be released from detention to avoid the disclosure of secret intelligence evidence’. Relatedly, the BBC reports that the Home Secretary, Alan Johnson, has requested that the government’s independent reviewer of terrorism legislation, Lord Carlile, review the regime of detention –  control orders under the Prevention of Terrorism Act 2005 (PTA) – and consider whether it remains viable.

The issue the UK has faced  in recent years is what to do with terrorist suspects who cannot be deported (because of the Chahal decision of the European Court of Human Rights), and who the government is unwilling to try in ordinary court for reasons such as sufficiency of evidence and ensuring the secrecy of intelligence gathering. One approach was to create a scheme of non-criminal detention for terrorist suspects. Part IV of the Anti-terrorism Crime and Security Act 2001 permitted the Home Secretary to certain certain non-citizens to be suspected international terrorists and to detain them indefinitely. In December of 2004, the House of Lords declared this to be incompatible with the European Convention on Human Rights (ECHR) in the much-lauded Belmarsh case.

This decision led the government to repeal Part IV of the 2001 Act, and enact in its place the PTA. The PTA permits the Home Secretary to impose control orders upon terrorist suspects – citizen and non-citizen alike. Control orders are similar to a set of strict bail conditions, and typically impose restrictions on individuals such as curfew, electronic tagging, and restrictions on communication and association. (For a much fuller look the control order regime, see this article by Clive Walker).

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It’s not gang insignia; it’s school pride


Having watched most of the University of Georgia’s victory over Arkansas over the weekend by a videogame-like score of 52-41, I coincidentally spotted a story entitled ‘Uni logo beats gang patch ban‘ in The New Zealand Herald. The story begins as follows:

A charge brought under Wanganui’s gang patch ban bylaw has been dropped after the man argued the bulldog on his beanie was a Georgia University logo and not a Mongrel Mob insignia.

In order to explain this rather odd state of affairs, some background is necessary. The New Zealand town of Wanganui has, depending on whom you ask, a gang problem of some level of severity. In 2007, 67% of locals voted in a referendum in favour of banning the display of gang insignia. Led by the crusading mayor of the town, Michael Laws, the Wanganui District Council eventually obtained the legal authority to do just this in the form of the Wanganui District Council (Prohibition of Gang Insignia) Act 2009.

Under this Act, the Council is given the power to make bylaws that identify certain persons or groups as a gang for the purposes of the Act, and designate any public place to be specified place for the purposes of the Act. A provision in the Act itself states that ‘No person may display gang insignia at any time in a specified place in the district.’ Anyone who violates this prohibition without reasonable excuse commits an offence and may be fined up to $2000. Police officers are given the power to arrest violators without warrant and to seize the offending item; the insignia (and any clothing it is attached to) is forfeited upon conviction or guilty plea.

The Wanganui District Council passed the Wanganui District Council (Prohibition of Gang Insignia) Bylaw 2009 on 31 August 2009 in a self-described ‘triumph for decency and democracy.’ The bylaw, which came into force on 1 September 2009, identifies three groups as gangs (in addition to the seven already specified in the Act), and identifies a series of ‘specified places’ where the display of gang insignia is prohibited by the Act.

Which brings me back to the University of Georgia Bulldogs. It turns out that the team mascot and team colours (red and black), are similar to those of the Mongrel Mob, one of the specified gangs under the Act. According to a local paper, the man in question, who is a member of the gang mentioned above, says that the beanie was a gift from his niece. Meanwhile, a police central district commander Superintendent expressed his disappointment that the Wanganui police had decided to withdraw the charge.

Anyone around Wanganui not wishing to be mistaken for a gang member violating the prohibition on display of gang insignia would presumably do well to keep their Georgia gear out of sight. I suppose the same advice might also apply for the Georgetown Hoyas, Washington’s Harry the Husky, and any other canine-related logos.

Image: wikimedia commons; by johntrainor; Creative Commons Attribution 2.0 License.


Filling in the details of the trail of torture memos

With two major sets of documents related to torture having been disclosed in 2009 (see here and here), I thought it would be useful to try and bring together how some of the more recently disclosed memos fit into the story of the CIA’s Program for detaining and interrogating high value detainees. In doing so, I am of course building on the work of others. (See for example, this New York Times story from May,  Foreign Policy’s Torture Timeline, which has a broader scope than what I intend to post about, and Harold Bruff’s very interesting Bad Advice, which I recently finished reading. See also this New York Review of Books article by David Cole, which appeared while I was writing this post.)

According to the CIA Inspector General’s report (discussed in a previous post), a key event was the March 2002 capture of Abu Zubaydah, regarded as a senior al Qaeda operative. The CIA developed a set of coercive interrogation techniques (EITs – or enhanced interrogation techniques), and used them on Zubaydah with the knowledge and at least implicit permission of President Bush’s top advisors. This occurred prior to a formal opinion as to legality from the Department of Justice – in the interim, oral guidance was relied on. The CIA at one point reportedly suspended the use of the coercive interogation techniques pending formal authorization.

In August 2002, the Office of Legal Counsel issued formal legal guidance in the form of the August 2002 memoranda concerning the interpretation and application of the Federal Torture Statute (18 USC 2340 & 2340A). The original Bybee/Yoo memo, which became public in 2004, set out the notoriously narrow definition of torture, and has been extensively commented on elsewhere. A recently disclosed companion memo entitled ‘Interrogation of al Qaeda Operative‘, dated the same day, concludes that the  interrogation techniques the CIA proposed to use on Zubaydah would not violate the Torture Statute. Indeed, but for the chilling subject matter, it is a prosaic manifestation of law school-style legal method: interpret the law, apply to the facts.

Soon after its public disclosure, the original August 2002 memo on the Torture Statute was withdrawn by Jack Goldsmith. As Goldsmith himself recounts in The Terror Presidency, his action undermined the assurances the CIA had been given that their interrogation practices did not violate the Torture Statute. The memo was not replaced until a 30 December 2004 memo by Daniel Levin was issued. The Levin memo was more circumspect, and backed off some of the more extravagant claims its predecessor had made. It reportedly necessitated operational changes.

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The state of criminal justice discourse in New Zealand

Popular punitiveness is by now a well-documented phenomenon in many countries. New Zealand is no exception. The following statement from Judith Collins, the current Police and Corrections Minister, sums up the state of the play:

‘I believe the pendulum of justice has swung too far in favour of criminals … This Government is focusing on putting the victim in the centre of judicial proceedings. I have zero tolerance towards pandering to criminals.’

There’s a gem in each soundbite-cum-sentence. If we already know that certain people are guilty criminals, then surely the criminal trial process is an expensive and unnecessary luxury. But perhaps we should keep it so we can ‘[put] the victim at the centre of judicial proceedings’, whatever that might mean. As for the new tough-on-pandering-to-criminals approach, the criminal pandering lobby has yet to comment.