Author: Jonathan Hafetz


The Pentagon Likens Native Americans to al Qaeda: More than Just an Incredibly Offensive Analogy

Somehow, Defense Department lawyers thought they could strengthen their defense of military commissions by comparing the Seminole Indians of Spanish Florida to al Qaeda. (Hat tip to the indispensable Carol Rosenberg of the Miami Herald for picking this up).

In a recent brief to the Court of Military Commissions Review (CMCR), the Pentagon cited an 1818 military commission convened by General Andrew Jackson to execute two British men, Robert Ambrister and Alexander George Arbuthnot, for assisting the Seminole Indians after U.S. forces had invaded then-Spanish Florida to prevent black slaves from escaping.  The prosecution’s brief elaborated: “Not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violate the customs and usages of war. Because Ambrister and Arbuthnot aided the Seminoles both to carry on an unlawful belligerency and to violate the laws of war, their conduct was wrongful and punishable.” (emphasis added).

Bad lawyering? Very. Offensive? Deeply. Revealing? Highly.

The filing set off a storm of protest, prompting the National Congress of American Indians (NCIA), the nation’s oldest and largest association of tribal governments, to file a letter brief with the CMCR correcting the record. As the NCIA put it:

“This is an astonishing statement of revisionist history. General Jackson was ordered by President Monroe to lead a campaign against Seminole and Creek Indians in Georgia. The politically ambitious Jackson used these orders as an excuse to invade Spanish-held Florida and begin an illegal war, burning entire Indian villages in a campaign of extermination. The Seminole efforts to defend themselves from an invading genocidal army could be termed an “unlawful belligerency” only by the most jingoistic military historian. General Jackson narrowly escaped censure in the U.S. Congress, was condemned in the international community, and his historical reputation was stained with dishonor.”

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No Exemption from Judicial Review for National Security Surveillance

The Second Circuit last week rejected the Obama administration’s request to dismiss the suit challenging the 2008 FISA Amendments Act (FAA).  Although the appeals court’s opinion in Amnesty v. Clapper addresses only standing, it is an important decision insofar as it rejects the administration’s effort to render national security surveillance non-justiciable and paves the way for merits review of the FAA’s constitutionality.

The plaintiffs in Clapper are attorneys, journalists, and labor, legal, media, and human rights organizations who brought suit to challenge the FAA’s new procedures for authorizing government electronic surveillance targeting non-U.S. persons outside the U.S. for purpose of collecting foreign intelligence. Plaintiffs argue that the procedures violate the Constitution, including the Fourth and First Amendments.

In particular, plaintiffs note that the FAA grants the government broad authority to conduct surveillance of U.S. citizens without making an individualized application to the Foreign Intelligence Surveillance Court identifying the particular targets or facilities to be monitored. Thus, plaintiffs argue, the FAA could authorize the surveillance of all “telephone and email communications to and from countries of foreign policy interest,” such as Russia, Egypt, or Israel, thereby sweeping in countless private conversations of American citizens. By contrast, prior to the FAA, surveillance orders could only authorize the government to monitor specific individuals or facilities, and such orders could issue only on a showing of probable cause. In addition, plaintiffs contend, the FAA lacks adequate safeguards to prevent the dissemination of information obtained through electronic surveillance.

Although the plaintiffs cannot prove that they have been the subject to electronic surveillance under the FAA, they described the professional and economic harms they have suffered. Those harms include ceasing to engage in certain conversations by phone or email to protect the confidentiality of sensitive and privileged communications (thereby compromising their ability to locate witnesses, cultivate sources, etc.), and having to bear the additional costs of traveling overseas to meet with clients, witnesses, and others. The district judge found these harms insufficient to confer standing. The appeals court disagreed.

Much of the court’s discussion turns on whether the plaintiffs had shown more than a mere “subjective chill” from the existence of FAA-based surveillance, which would be insufficient under Laird v. Tatum (the Supreme Court’s 1972 decision denying standing to challenge a U.S. Army surveillance program aimed at public activities that had the potential to create civil disorder). The plaintiffs in Clapper argued they had, explaining that their reasonable fear of government surveillance has forced them to take costly (and reasonable) measures to address the risk of surveillance.  Without rehashing the court’s careful parsing of Article III standing doctrine, here are some broader lessons.

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The Administration Pushes Back on Guantanamo–Sort of.

President Obama’s counter-terrorism adviser John O. Brennan has delivered the most forceful defense in recent memory of the Obama administration’s national security policies. Brennan spoke last Friday at a symposium in New York sponsored by NYU’s Brennan Center for Justice and The Atlantic Philanthropies (Disclosure: I was formerly a litigation director at the Brennan Center). The text of Brennan’s remarks is available here, Dafna Linzer’s coverage of the event for Pro Publica here, and Ben Smith’s coverage for Politico here).

It was encouraging to see someone from the administration debunk–forcefully and publicly–legislative efforts to prevent the president from using Article III courts to prosecute suspected terrorists. Congress has already blocked the Obama administration from using Defense Department funds to transfer Guantanamo detainees to the U.S., even for criminal prosecution. Newly proposed legislation goes further.  House and Senate bills would each require the president to detain suspected terrorists in military custody, absent a waiver from the Secretary of Defense.  Such a radical and unprecedented militarization of counter-terrorism policy has provoked opposition even from supporters of preventive detention like Ben Wittes (see Wittes here on the Senate bill and here on the House bill).

It also was encouraging to see Brennan make clear that the U.S. government’s policy is to prosecute terrorist suspects arrested in the United States exclusively through the federal criminal justice system–an executive policy determination that would be undermined by current ill-advised legislative proposals. Brennan all but acknowledged that the prior military detention of individuals arrested in the United States– Jose Padilla and Ali al-Marri (I represented the latter)–were illegal. Either way, Brennan recognized, those detentions proved costly and were a mistake not to be repeated. Congress should recognize this too, rather than trying to block Article III prosecutions.

Brennan did not suggest any deviation from some troubling aspects of administration’s current policy, including the use of military commissions to prosecute individuals arrested outside the United States (and far from any battlefield) and the indefinite detention of terrorism suspects. (Query what Brennan meant in stating that the commissions “were not limited to Guantanamo”–and, in particular, whether he merely meant to assert the right to use commissions for Guantanamo detainees if they are brought to the United States, or using them elsewhere, such as Bagram). In light of Obama’s prior statements, as well as his recent executive order, I don’t expect any change in these broader policies in the foreseeable future.

An important question looming on the horizon is how the administration will respond to new legislative proposals that target habeas corpus.

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More on the Obama Executive Order: AP I, Hamdan, and the Scope of the Armed Conflict

One lesser-noticed issue raised by the new Guantanamo executive order (see my earlier post here) concerns this statement in the accompanying Fact Sheet: “The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.” The statement refers to Article 75 of Additional Protocol I to the Geneva Conventions, which provides basic protections to individuals detained in an international armed conflict (i.e., a conflict between nation states).

Lawfare has an interesting discussion of what the administration may—or may not—have meant—and whether it intended to apply Article 75 to the armed conflict with al-Qaeda, the Taliban, and associated forces (a/k/a the “war on terror”). As the various posts explain (see, e.g., John Bellinger here and Jack Goldsmith here), the confusion arises because, under the Supreme Court’s decision in Hamdan v. Rumsfeld, the conflict with al Qaeda et al. is a non-international armed conflict.

The posts persuasively argue why the administration probably did not intend to apply Article 75 to the armed conflict against al Qaeda and thus, not to detainees held at Guantanamo (or Bagram for that matter). Several, however, assume that in Hamdan the Court ruled that the conflict with al Qaeda is a non-international armed conflict.  Not quite.

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Obama’s New Guantanamo Executive Order: A Glass Half-Empty or Half-Full?

The Obama administration today unveiled its executive order providing additional, periodic executive-branch review of its continued detention of prisoners at Guantanamo. (The administration also released a fact-sheet placing the order in a broader context that includes its resumption of military commission prosecutions). How one views the executive order may depend on how one feels about the current state of affairs at Guantanamo and the system of indefinite detention that has come to define it.

The order sets up a new administrative procedure—the Periodic Review Board (PRB)—to review cases of individuals whom the administration’s task force previously selected for continued detention or criminal prosecution. The order disavows any claim of new detention authority. Rather, it provides an alternative avenue of release for detainees who, in the administration’s view, may be lawfully held under the 2001 Authorization for Use of Military Force (AUMF), as informed by the law of war.

The PRB is the latest installment in the alphabet soup of Guantanamo review schemes. On paper at least, it’s a significant improvement over the Combatant Status Review Tribunal (CSRT), created by the Bush administration in 2004 to rubber-stamp its determination that the detainees were “enemy combatants” and avoid the habeas corpus review the Supreme Court had just mandated in Rasul v. Bush. This time, detainees are assigned personal representatives who, well, actually represent them. (Under the CSRT, the detainees’ personal representatives could—and sometimes did—advocate against them).

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Accountability for Torture: The Quest Continues

South Carolina district judge Richard Gergel’s recent dismissal of Jose Padilla’s civil suit is the latest—and arguably most egregious—ruling denying a remedy to victims of human rights abuses in the “war on terror.”

Padilla, of course, is the U.S. citizen who was arrested in Chicago in May 2002 and declared an “enemy combatant.” Padilla would spend three-and-one-half-years imprisoned at the navy brig near Charleston, South Carolina, where he alleges he was subjected to prolonged isolation, sleep and sensory deprivation, and other mistreatment.

The Supreme Court never addressed the merits of Padilla’s military detention. In 2004, it dismissed Padilla’s first habeas case on technical grounds, requiring that it be re-filed in South Carolina where Padilla was then confined (the case had originally been filed in New York). In 2005, the government mooted Padilla’s second habeas challenge by criminally charging Padilla when the Supreme Court was on the verge of deciding whether to hear it. This left a damages suit as the only vehicle for the courts to address Padilla’s mistreatment.

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A Tale of Two Writs

Yesterday’s New York Times editorial, “A Right without a Remedy,” finally shines a spotlight on what anyone familiar with the Guantanamo detainee habeas corpus litigation already knows: the steady erosion of the Supreme Court’s 2008 decision in Boumediene v. Bush, and the open disdain for that decision exhibited by several D.C. Circuit judges, most notably A. Raymond Randolph.

The upshot is that we now have two very different conceptions of habeas corpus at Guantanamo: one as a meaningful judicial check on executive power; the other as a legal proceeding in which the judiciary remains powerless to remedy unlawful executive action.

In Boumediene, the Supreme Court held that Congress’s effort to strip Guantanamo detainees of the right to habeas corpus violated the Constitution’s Suspension Clause and ordered the district courts to conduct prompt hearings into whether the petitioners were being lawfully held. Since then, district courts in Washington, D.C., have issued merits decisions in 59 habeas cases, finding no legal basis for the detention in 38 of them.

The D.C. Circuit, however, has taken increasingly narrow view of district court’s power to inquire into the government’s evidence, reversing or vacating and remanding habeas grants in three cases and affirming habeas denials in four of six cases (the other two denials were vacated and remanded). To date, the Circuit has not affirmed a district court grant of habeas nor outright reversed a district court denial.  Along the way, Randolph, along with Circuit Judge Janice Rogers Brown, have suggested that the government might satisfy its burden merely under a “some evidence” standard, as opposed to the higher, preponderance of the evidence standard the Department of Justice is advocating.

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