Articles

The Escalating Ties Between Middle Eastern Terrorist Groups and Criminal Activity Remarks by David T. Johnson, Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, at the Washington Institute for Near East Policy.

Domestic Terror: the Worry about Homegrown Plots,” Newsweek, November 20, 2009.

Peter Fromuth has posted an ASIL Insight on The European Court of Justice Kadi Decision and the Future of UN Counterterrorism Sanctions.

Dawinder S. Sidhu (Center for Justice, Law & Society) has posted Judicial Review as Soft Power: How the Courts Can Help Us Win the Post-9/11 Conflict (American University – National Security Law Brief) on SSRN. Here is the abstract:

    The American military efforts in Afghanistan and Iraq are not yielding desired results and, even assuming they were, such military success would not be sufficient to prevail in the war against transnational terrorism. The United States must engage in the battle of hearts and minds in order to achieve meaningful safety and a lasting respite from the specter of terrorist activity. To participate in this more intangible, intellectual battle, the United States will need to utilize its “soft power,” or its ability to draw nations or peoples towards its policy preferences through attraction, as distinct from “hard power,” in which foreign conduct is shaped by military or economic coercion. The question becomes what soft power resources are available to — and may be credibly invoked by — the United States?

    This Article argues that the American constitutional design, particularly its commitment to the rule of law, is an aspect of soft power that, if communicated externally, will attract moderate Muslims and others to American interests and help quell the reach and appeal of terrorists bent on destroying the United States. Such “legal soft power” will resonate with the international audience only if we adhere to fundamental American principles in actuality — they must be more than mere platitudes. Accordingly, I suggest that the Supreme Court’s robust evaluation of individual rights claims in the post-9/11 context demonstrates that the judiciary has been faithful to the rule of law even in times of national crisis and stress. It is not the outcomes that necessarily shows this, but the genuine process within which federal actions may be challenged.

    If it is the case that the rule of law may be an element of soft power conceptually and that the judicial decisionmaking has honored it in practice, then it would benefit American national security interests if others in the world were made aware of the American constitutional scheme, one of separation of powers and judicial review, and the Supreme Court’s fidelity to the Constitution in times of war. Such information may make it more likely that other nations and peoples will be attracted to American interests. In an odd sense, the judicial branch may be a positive instrument of foreign policy and a beneficial tool in America’s current war — even if it strikes down executive or legislative actions in the government’s prosecution of the war itself.

Markus D. Dubber (University of Toronto – Faculty of Law) has posted The War on Terror and U.S. Criminal Law on SSRN. Here is the abstract:

    This paper addresses the question of what impact the so-called “new security agenda against terrorism” has had on substantive criminal law in the United States. This question has a simple answer: None.

    There is nothing new about the so-called War on Terror, except for a redesignation of its object, from Crime to Terror. The mode of governance, its essence as a “security agenda,” remains unchanged. The War on Terror is another, contemporary, manifestation of a mode of penal governance that regards itself as emanating from the sovereign’s power to police, understood here in the traditional sense of the power to maintain the peace, or, in Blackstone’s phrase, the sovereign’s power as “pater-familias of the nation” to see after “the public police and oeconomy,” i.e., “the due regulation and domestic order of the kingdom.” The security agenda against terrorism, in this sense, is neither “new,” nor can it have an “impact” on American criminal law, simply because it is American criminal law, and always has been.

CRS – Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress

Somalia and the Pirates – David Anderson, Rob de Wijk, Steven Haines, Jonathon Stevenson

The North African Franchise: AQIM’s Threat to U.S. Security – CPT Russell J. Isaacs. Strategic Insights

Bilateral Cooperation and Bounded Sovereignty in Counter-Terrorism Efforts – Bidisha Biswas. Border Policy Research Institute, Western Washington University

Combating International Terrorism: Turkey’s Added Value – James Ker-Lindsay and Alastair Cameron, eds. Royal United Services Institute

United Nations Security Council Resolution 1540 at the Crossroads: The Challenges of Implementation – Michael Ryan Kraig. Stanley Foundation

Michael Kent Curtis (Wake Forest University – School of Law) has posted The Klan, the Congress, and the Court: Congressional Enforcement of the Fourteenth And Fifteenth Amendments & the State Action Syllogism, A Brief Historical Overview (University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 1398, 2009) on SSRN. Here is the abstract:

    A Court committed to protecting constitutional rights and protecting citizens against political terrorism could reasonably have upheld congressional power to reach private acts of terror designed to deter or punish the exercise of constitutional rights. It could have done so while also protecting the values of federalism. While the Justices at the time reached a restrictive result, the Congress, that included a number of framers of the Fourteenth Amendment, did not. Recent Court decisions have chosen the decision of the Justices who considered constitutionality of the response to political terror over the decision of most of the framers of the Amendment.

Peyton Cooke (Univ. of Alabama – Law) has posted Bringing the Spies in from the Cold: Legal Cosmopolitanism and Intelligence under the Laws of War (Univ. of San Francisco Law Review, forthcoming). Here’s the abstract:

Recently, as never before, intelligence operations have come under international humanitarian law. The Supreme Court has handed down the Hamdan and Boumediene decisions; President Obama has required the CIA and other interrogators to abide by Geneva Conventions Common Article 3 standards for all interrogations; district courts have declared stringent law of war criteria for overseas detentions; the Executive has applied the laws of war to terrorist targeting; and the private groups which have initiated this litigation, and pressed for these changes, continue to
work for even more reform. This paper addresses the roots and effects of such changes. It begins by defining its key term – legal cosmopolitanism – with reference to a wide variety of legal materials, from Eric Posner, the European Court of Human Rights, and others. The paper attempts to illuminate that term’s core parts: a belief in an expanded United States demos, and preference for judicial over political power. The paper then continues with a survey of intelligence law. It illuminates the assumptions of a limited demos and unfettered executive that have until recently underlay intelligence law domestically, and goes on to establish that, in the long history of intelligence, no international law standard has heretofore been successfully applied to these operations. Thus legal cosmopolitanism and intelligence seem opposed, one attempting to expand the demos, with the other depending to some extent on limiting the demos.

Nevertheless, recent executive and judicial actions affecting intelligence law have displayed strong and recognizable cosmopolitan underpinnings. The aforementioned executive orders, district court decisions, and policy positions reinforce this point, as a thorough survey of them reveals. Moreover, the history of similar legal initiatives in the uniformed military and elsewhere indicates that United States intelligence agencies will likely instantiate changes beyond even what the executive and courts require. Finally, the paper will conclude by suggesting that we view these changes – and the legal revolution they promise – skeptically. Intelligence has always operated apart from the law. If we bring intelligence operations within the law, they may no longer be able to protect us from what lurks without.

Beth A. Simmons (Harvard Univ. – Government) has posted Civil Rights in International Law: Compliance with Aspects of the ‘International Bill of Rights’ (Indiana Journal of Global Legal Studies, Vol. 16, no. 2, pp. 437-481, July 2009). Here’s the abstract:

International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-a-vis their own governments. This paper discusses the development of aspects of international law relating to civil rights, and argues that if this body of law is meaningful we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because not generally in the interest of potential “enforcers”), I argue that international civil rights treaties will have their greatest effect where stakeholders – local citizens – have the motive and the means to demand treaty compliance. This is most likely to be the case not in stable autocracies, where such demands are likely to be crushed, nor in stable democracies, where the motive to mobilize is attenuated due to rights saturation, but in transitional countries where the expected value of mobilization is maximized.

Thus, I test the hypothesis that the International Covenant on Civil and Political Rights is likely to have its greatest positive effects in transitional countries – those that have had some fleeting experience with democratic governance. This proposition is tested quantitatively with indicators for freedom of religious practice and fair trials. The proposition is weakly supported by extremely stringent statistical models that control for the endogeneity of the treaty commitments, country and year fixed effects, and other obvious influences on civil rights practices. I conclude that the International Bill of Rights has the power to influence the direction of rights practices in fluid political situations, but cannot magically transform autocracies into liberal guarantors of civil liberties. Still, these effects are important, and the most we can expect from scraps of paper which the international community has been reluctant to enforce.

Ralph Wilde (University College London – Faculty of Laws) has posted Complementing Occupation Law? Selective Judicial Treatment of the Suitability of Human Rights Norms (Israel Law Review, Vol. 42(1), pp. 80-100, 2009) on SSRN. Here is the abstract:

    This Article offers a critical evaluation of the treatment of the suitability of applying human rights law to occupation situations offered by the English House of Lords in the Al-Skeini judgment of 2007. Al-Skeini concerned the application of the European Convention on Human Rights (ECHR) to the United Kingdom in Iraq. In the decision, the majority asserted that the application of human rights law would amount to a form of “imperialism” in requiring an occupying State to impose culturally inappropriate norms in occupied territory. They also found that its application would undermine the status quo norm contained in
    occupation law, by obliging an occupying State to transform the legal system in occupied territory in order to bring it in line with the human rights standards in play. This Article argues that these two assertions are based on a mistaken understanding of the substantive meaning of human rights obligations in occupation situations, and the effect on this meaning of the interface with other areas of international law. It is suggested that the fear of “human rights imperialism” is, as articulated here, misconceived; that applying human rights law to occupation situations may not actually involve breaching the law of occupation; and that in any case a more sophisticated approach to the question of clashes in normative regimes needs to be adopted.

Geoffrey S. Corn (South Texas College of Law) has posted Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict (Journal of International Humanitarian Legal Studies, forthcoming). Here’s the abstract:

One of the most complex contemporary debates related to the regulation of armed conflict is the relationship between international humanitarian law (or the law of armed conflict) and international human rights law. Since human rights experts first began advocating for the complimentary application of these two bodies of law, there has been a steady march of human rights application into an area formerly subject to the exclusive law of armed conflict regulation. While the legal aspects of this debate are both complex and fascinating, like all areas of conflict regulation the outcome must ultimately produce guidelines that can be translated into an effective operational framework for war-fighters. In an era of an already complex and often confused battle space, there can be little tolerance for adding complexity and confusion to the rules that war-fighters must apply in the execution of their missions. Instead, clarity is essential to aid them in navigating this complexity.

This article will explore this debate from a military operational perspective. It asserts the invalidity of extreme views in this complementarity debate, and that the inevitable invocation of human rights obligations in the context of armed conflict necessitates a careful assessment of where symmetry between these two sources of law is operationally logical and where that logic dissipates. While acknowledging a legitimate role for human rights norms in relation to the treatment of noncombatants and subdued opposition personnel, I argue that these norms cannot be permitted to influence the legal framework that regulates the application of combat power against operational opponents. Preventing this intrusion is essential to balance the interest of protecting human rights with the fundamental purpose of armed hostilities – securing the prompt and efficient submission of an opponent. Perhaps the most critical premise of this article is that failing to recognize the existence of this boundary will produce a distortion of this historic authority/restraint balance at the core of the law of armed conflict – a distortion that will inevitably be perceived as operationally illogical by armed forces thereby risking the credibility of both bodies of law.

Matthew C. Waxman (Columbia Law School) has posted The Use of Force Against States that ‘Might’ Have Weapons of Mass Destruction (Michigan Journal of International Law, Vol. 31, No. 1, 2009) on SSRN. Here is the abstract:

    The Iraq war rekindled debate – a debate now further inflamed in discussions of Iran and North Korea – about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Collidingwith this debate is the stark fact that intelligence about hostile states’ WMD capabilities is and will remain limited and uncertain. This Article examines the following question: How should international legal rules on the use of force handle this intelligence gap? In answering that question, this Article advances two arguments. First, it argues that amid such intelligence uncertainty, a “reasonable necessity” approach to international self-defense doctrine, based on objective standards, is superior to the two main competing schools of thought: the “traditional view,” which holds strictly that only the U.N. Security Council may authorize legal force against WMD proliferates absent an imminent and specific threat of attack, and the “unilateralist” school, which holds that states retain a broader right of preemptive self-defense. Second, it argues that a reasonable necessity approach – and its reliance on objective standards – helps focus analysis on key evidentiary issues that have so far eluded serious study in scholarship on the legal use of force and that are relevant to ongoing debates about alleged WMD proliferation by Iran, North Korea and other states.

Curtis A. Bradley and Jack Landman Goldsmith III (Duke University – School of Law and Harvard University – Harvard Law School) have posted Foreign Sovereign Immunity and Domestic Officer Suits on SSRN. Here is the abstract:

    Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the
    federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials.

Matthew C. Waxman (Columbia Law School) has posted Guantánamo, Habeas Corpus, and Standards of Proof: Viewing the Law Through Multiple Lenses (Case Western Reserve Journal of International Law, Forthcoming) on SSRN. Here is the abstract:

    The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: Through that of a courtroom
    concerned with evidence or through that of a battlefield clouded by imperfect intelligence. All three branches of government should play significant roles in answering these questions, which are critical to
    establishing sound detention policy.

Yuval Shany (Hebrew University of Jerusalem – Faculty of Law and Institute of Criminology) has posted Human Rights and Humanitarian Law As Competing Legal Paradigms for Fighting Terror (COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW, HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW, VOL. XIX/1, Orna Ben Naftali, ed., Forthcoming) on SSRN. Here is the abstract:

    In a recent article on the interplay between international law and politics, Marti Koskenniemi wrote that “much about the search for political direction today takes the form of jurisdictional conflict, struggle between competing expert vocabularies, each equipped with a specific bias” and that “[p]olitical intervention is today often a politics of re-definition, that is to say, the strategic definition of a situation or a problem by reference to a technical idiom so as to open the door for applying the expertise related to that idiom, together with the attendant structural bias.” The “war on terror” in the first decade of the Twenty First Century exemplifies such political struggles over the governing legal paradigm. Not only is the meaning of the term “terrorist” itself controversial; the legal framework governing the fight against terrorism is also highly contested, and features an intense struggle between a human rights centered “law enforcement” paradigm and a more aggressive humanitarian law based “armed conflict” paradigm. Describing the paradigm struggle in Koskenniemic terms not only reveals, once again, the potential for the strategic use of the law; it also exposes the meta-differences between human rights law and humanitarian law. The considerable political capital and legal efforts invested in jockeying between the two competing paradigms casts doubt on the increasingly common narrative of the growing merger between human rights law and humanitarian law and the irrelevance of distinguishing between the two. Moreover, it is now clearer than before that the ideological tensions between the two camps supporting the competing paradigms cannot be avoided even if a mixed paradigm were to be developed to govern the fight against terror (as is increasingly alleged). Such a development may simply lead to the channeling of the same ideological struggles that had been held over the choice of paradigm to disagreement on the contents and direction of the new mixed paradigm.

    In Part One of this Chapter, I describe the jurisdictional struggle between the two principal legal paradigms that purport to regulate the international fight against terror: The law enforcement and the armed conflict paradigms. Arguably, many disagreements concerning the lawfulness of specific counter-terrorism, such as targeted killings or detention without trial, are actually disagreements on the applicable legal framework and the stories on the nature of the threat of terrorism that is being offered.

    In Part Two, I consider the emergence of a mixed paradigm which borrows contents from both human rights law and humanitarian law. I argue that such normative cross-over illustrates the difficulty of maintaining rigid paradigmatic distinctions in light of the complexities of the fight against terror; but also that some key differences in emphasis between the two paradigms nonetheless remain. Most significantly, I argue that the development of a new mixed paradigm merely re-contextualizes preexisting jurisdictional struggles over the proper legal framework to govern the fight against terror. Part Three concludes.

Craig Forcese, “Canada’s National Security “Complex”: Assessing the Secrecy Rule,” (2009) 15(5) IRPP Choices 1.

The ABA Standing Committee on Law and National Security has released a special double issue of the ABA National Security Law Report, which includes articles on the Detention Policy Task Force’s Preliminary Report and the NDAA Amendments to the Military Commissions Act and covert action, along with book reviews and remarks from Jeh Johnson, General Counsel for the Department of Defense.

John T. Parry (Lewis & Clark Law School) has posted International Extradition, the Rule of Non-Inquiry, and the Problem of Sovereignty. Here’s the abstract:

The law of international extradition in the United States rests on a series of myths that have hardened into doctrine. Perhaps the most significant is the frequent claim that by its nature, extradition is “an executive function, rather than a judicial one.” This claim, in turn, supports additional rules, such as the “rule of non-inquiry,” under which courts hearing extradition cases may not inquire into the procedures or treatment, including possible physical abuse, that await the extraditee in the requesting state. In its 2008 decision in Munaf v. Geren, for example, the Supreme Court applied this rule to the transfer of two U.S. citizens from U.S. military custody to Iraqi custody for trial in Iraqi courts. In response to their claim that they were likely to be tortured in Iraqi custody, the Court stated that “it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.”

This article uses the rule of non-inquiry to assess the current state of extradition law and the theories that support it. I focus first on the doctrinal status of the rule, with the goal of demonstrating that it is more flexible than courts often purport to believe and that a more explicitly functional approach would better serve the issues that the non-inquiry doctrine encompasses and implicates. Throughout my doctrinal discussion, I also consider the proper scope of habeas corpusreview of extradition decisions.

This article also has broader ambitions. First, my discussion of non-inquiry and the scope of habeas review seeks to historicize these doctrines. Second, I argue for unfreezing extradition law and putting it back into the overall structure of federal law and the current of legal change. Third, my suggestions for the rule of non-inquiry also work within and seek to incorporate some of the many changes in international law that have taken place since the rule was first announced. Fourth, I contest the notion that foreign affairs concerns require courts to refuse to inquire into constitutional or human rights claims.

Finally, I explore the rule of non-inquiry’s reliance on a traditional notion of national, territorial sovereignty. Some writers have pointed to the Supreme Court’s decision in Boumediene v. Bush as an example of changing conceptions of sovereignty. By contrast, the Munaf majority repeatedly stressed and relied upon Iraq’s “sovereign right” or “prerogative” to punish offenses “committed on its soil.” Thus, on the same day in June 2008, the Supreme Court declared both that sovereignty has changed, and that it remains the same. This article asks whether Munaf’s conception of sovereignty was already outdated or whether it gives the lie to claims that sovereignty has eroded. I also consider a third option, that both conceptions can exist and be consistent with each other in U.S. law, and the article ends by exploring what that coexistence might mean.

Judges restore paragraph on MI5 to the Binyam Mohamed ruling

On 10 February, the judges of the Court of Appeal have authorized the publication of a short summary, prepared by two High Court judges, explaining how US agents had subjected the British resident Binyam Mohamed to what was described as “at the very least cruel, inhuman and degrading treatment,” and had provided this information to their British counterparts.

However, a a paragraph in the ruling, written by Lord Neuberger, the Master of the Rolls, had been removed at Sumption QC’s request, acting for the government. The paragraph in question was severely critical of the trustworthiness of the Security Services, and Sumption was concerned that it was “likely to receive more public attention than any other parts of the judgments.”

In a ruling of 26 February, the judges restored the paragraph, although specifying that the government was perfectly entitled to ask for changes to be made to what was, at the time, a draft judgment.

Full text of the amended ruling can be found here.

No new privacy measures in the Patriot Act extension

The US House of Representatives on Thursday 25 February approved a measure to extend expiring provisions of the USA Patriot Act with no new privacy measures to prevent abuse.

The vote came just one day after the Senate approved the extension, despite the fact that both the House and Senate Judiciary Committees had extensively debated and passed bills last year that would have made significant changes to these provisions.

Representatives voted 315-97 in favor of the measure, which would allow federal authorities to conduct “roving” wiretaps (Section 206), to compel the production of business, medical, and library records (Section 215), and to track so-called “lone wolf” suspects who are not affiliated with an organization or country, so long as they are not US citizens (Section 207).

On Saturday 27 February, US President Barack Obama signed a one-year extension of the three expiring sections of the USA PATRIOT Act.

Congress’s decision to extend these provisions without change has angered many civil liberties advocates.

“Congress refuses to make reforming the Patriot Act a priority and continues to punt this crucial issue down the road,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office. “Once again, we have missed an opportunity to put the proper civil liberties and privacy protections into this bill. Congress should respect the rule of law and should have taken this opportunity to better protect the privacy and freedom of innocent Americans. We shouldn’t have to live under these unconstitutional provisions for another year.”

In addition, civil liberties advocates claim that the National Security Letter (NSL) Statute, which was broadened with passage of the original Patriot Act, must be narrowed. NSLs allow the FBI to secretly demand personal records about innocent customers from Internet Service Providers (ISPs), communications service providers, financial institutions and credit reporting agencies without suspicion or prior judicial approval. The statute also allows the FBI to bar NSL recipients from disclosing anything about the record demand. Several Patriot Act reauthorization bills introduced last year addressed the need for NSL reform but none of those proposals were acted upon.

Congressional choice to turn away from their bills is probably well explained by the statement made by Republican Senator Jeff Sessions, applauding the choice to extend the sections without change:

Recent terror attacks, such as those at Fort Hood and on Christmas Day, demonstrate just how severe of a threat we are facing.  This extension keeps Patriot’s security measures in place and demonstrates that there is a growing recognition that these crucial provisions must be preserved.

EU adopts internal security strategy

The 27 EU countries formally adopted their internal security strategy for the EU on 26 February. The new document provides a conceptual counterpart to the EU’s 2003 external security strategy. The two strategies will be increasingly integrated regarding doctrine and the development of capabilities.

Rights groups confirm CIA extraordinary rendition planes landed in Poland

[JURIST] Two human rights groups released documents  confirming that planes associated with the US Central Intelligence Agency (CIA) extraordinary rendition program landed in Poland on six occasions in 2003. The Open Society Justice Initiative and the Helsinki Foundation for Human Rights  released flight records obtained through a freedom of information act request to the Polish Air Navigation Services Agency (PANSA) .

Those records confirm at least six plane landings linked to the CIA at the Szczytno-Szymany airport in northern Poland between February and September 2003. The flights’ origins included Kabul, Afghanistan, and Morocco. The official records confirm for the first time Poland’s association with the CIA’s secret detainee program:

There are new and important details contained in the [documents], which provide – at the very least – confirmation of findings made in the June 2007 report of Council of Europe. These details are especially significant because they emanate from a Polish state authority and represent the first time that any agency of the Polish Government has provided public confirmation on the official record that aircraft associated with the CIA landed, repeatedly, at Szymany Airport.

On March 25, 2003, the Gulfstream, coming from Kabul, Afghanistan, landed with a crew of four and six passengers. It took off after 23 minutes for Prague.

On June 27, it landed with a crew of four and four passengers. The request included one for an “English speaking customs escort” before it was to take off for Kabul.

Other destinations include Rabat, Morocco, and Constanta, Romania.

Grzegorz Hlebowicz, a spokesman for the air navigation agency, had no comment on the report and said the agency was formed in 2007, long after the flights took place.

Government spokesman Pawel Gras told the Associated Press that it was awaiting the results of a prosecutors’ investigation ordered in 2008. The findings remain classified.

Prosecutor Robert Majewski, who is in charge of the investigation, said Monday he was not familiar with the flight logs.

Mr. Bodnar said the report also showed signs of cover-up of the true nature of the flights by listing Warsaw as the destination in Poland and giving false names of the captains. He said the report was made available to his group in September but was being released now because it took time for the Open Society Justice Initiative in the U.S. to have it analyzed.

Airport officials and border guards at the Szczytno-Szymany airport previously have confirmed that a Boeing passenger jet with U.S. citizens aboard landed there Sept. 22, 2003 — the date Human Rights Watch said a Boeing 737 that was part of the prisoner transfer plan was at the airport. That flight also is listed in the logs released Monday.

Guantanamo update

Four Guantanamo detainees transferred to Albania and Spain

The US Department of Justice (DOJ) announced on Wednesday 24 February that four Guantanamo Bay detainees have been transferred to Albania and Spain. Three detainees, Tunisia native Aleh Bin Hadi Asasi, Egypt native Sharif Fati Ali al Mishad, and Libya native Abdul Rauf Omar Mohammad Abu al Qusin, were transferred to Albania and the fourth, an unidentified detainee from the Palestinian territories, was transferred to Spain.

All four had been cleared by military review boards at Guantánamo under the Bush administration, and had then been cleared by President Obama’s interagency Task Force, but, like dozens of prisoners in Guantánamo, they could not be repatriated because of fears that they would be tortured if returned to their home countries or subjected to other ill-treatment, or because they were effectively stateless.

(Click here for more background information on the four detainees).

The transfers, approved with unanimous consent by the Guantanamo Bay Task Force, add to the more than 580 Guantanamo detainees transferred to other nations since 2002. There are still 188 remaining at the Guantanamo facility in Cuba.

Federal judge upholds continued detention of 2 Yemeni Guantanamo detainees

(Jurist) A judge for the US District Court for the District of Columbia ruled  on Wednesday 24 February that the government can continue to hold indefinitely two Yemeni Guantanamo Bay detainees, even though the men had been cleared for release by the Bush administration two years ago.

Judge Gladys Kessler denied the petitions for habeas corpus filed by Fahmi Salem Al-Assani and Suleiman Awadh Bin Agil Al-Nahdi. The men had been notified of their release in 2008, but the decision was suspended when President Barack Obama took office.

Algeria Court acquits former Guantanamo detainee

(Jurist) An Algerian criminal court on Sunday 21 February acquitted former Guantanamo Bay detainee Mustafa Hemlili of charges of counterfeiting and affiliation to a militant group that is active abroad. Hemlili was released from Guantanamo, along with fellow inmate Hederbash Sufian, after a six-year detention period.

The court separated the trials of the two defendants, stating that the only link between them was the date of their release. Sufian’s trial was postponed due to poor health after his lawyers presented evidence showing that he suffers from mental trauma as a result of his treatment at the US naval facility.

Hemlili had traveled with family members to Mali, Saudi Arabia, and Pakistan without a passport before going to the Afghanistan-Pakistan border region to work with an international relief agency assisting Afghan refugees. After the 9/11 attacks, Hemlili was captured in Peshawar, Pakistan, with a forged Iraqi passport.

France high court remands terrorism case against former Guantanamo detainees

(Jurist) The French Court of Cassation on Wednesday 17 February reversed an appellate court decision to overturn the convictions of five former Guantanamo Bay detainees, remanding the case to the lower court. A court spokesperson said the case will be heard by a specially created panel of the Paris appeals court. Regardless of the outcome, it is unlikely the men will serve any additional time in prison.

A lawyer for two of the defendants expressed disappointment in the court’s decision, saying it amounted to a “sinister page in the history of the judicial system” and “a great cruelty on a human level.”

The Paris appeals court overturned the convictions last February, finding that counter-terrorism agents from the French national security service DST could not gather intelligence and conduct a criminal investigation at the same time. The five were originally convicted in 2007 for criminal association with a terrorist organization, sentenced to time already served in Guantanamo, and released.

The men were arrested in Afghanistan in 2001 and charged with attending an al Qaeda training camp. They were later detained at Guantanamo Bay and questioned by French counter-terrorism officials who failed to disclose [JURIST report] the meetings, before being repatriated.

Kiyemba update

(Scotus) On March 23rd, the Supreme Court is scheduled to hear arguments concerning the power of a federal judge to compel the Executive to admit detainees into the United States.  But a two sentence order issued by the Court signaled that new developments may result in the Court never reaching the merits.

The case, Kiyemba v. Obama, involves a group of Uighurs, Chinese Muslims who were captured by bounty hunters in the early days of the Afghanistan war.  The Bush administration declared the group enemy combatants and they were sent to Guantanamo.

Eventually, the administration determined they were harmless, but ran into problems trying to release them.  President Bush did not want to let them into the United States, nor did he want to send them to China, where they had legitimate fears of torture.  Other countries did not want to accept the Uighurs out of fears of angering the Chinese. Thus, they were kept in a legal limbo: found to be harmless but remaining detained.

The Uighurs filed writs of habeas corpus to which the Bush administration, after decisions in other cases, eventually dropped its opposition.  The question became the remedy.  Traditionally, the remedy for habeas corpus is release from confinement.  But release to where?  A D.C. Circuit District Court judge ruled that the Executive must release the Uighurs into the United States.  The administration appealed and won in the Court of Appeals for the D.C. Circuit.  That court held that the decision over whom to admit into this country is exclusively one for the political branches; the courts have no say in the matter.  The Supreme Court accepted to hear the case in October.

Earlier this month, the Obama administration got a break: Switzerland agreed to accept the last two Uighurs.  The Solicitor General wrote to the Court claiming that these developments “eliminate the factual premise” of the case, namely that “the prisoners have no possibility of leaving Guantanamo Bay except by release into the United States,” and therefore the case should be dismissed.

In a brief order, without noted dissent, the Court said the D.C. Circuit Court was to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of…new developments.”  The case is Kiyemba, et al., v. Obama, et al. (08-1234).  The “new developments” are offers to resettle the seven Chinese Muslim Uighurs remaining at Guantanamo.

The Court has ordered supplemental briefing on what effect these developments have.  If the Court determines that it cannot hear the case, there are two routes it could take.  First, it could decide to dismiss the case as improvidently granted (“DIG” in court parlance).  This would leave the Court of Appeals decision intact, thus giving the Executive a powerful piece of precedent to use in future disputes.  However, there is another avenue.  The Court may reach the merits and decide that the case has become moot, which would have the effect of vacating all lower court decisions.  Any future president wishing to argue for judicial deference on the issue of detainee release would have to start again from a blank slate.

Federal judge dismisses Guantanamo detainee wrongful death suit

(Jurist) A judge for the US District Court for the District of Columbia ruled Tuesday 16 February that claims of unlawful treatment and wrongful death brought on behalf of two former Guantanamo Bay  detainees are barred by the Military Commissions Act of 2006 (MCA).

The two men, Yasser Al-Zahrani and Salah Ali Abdullah Ahmed Al-Salami, were among three detainees who allegedly hanged themselves in their cells in July 2006. The claim was brought against former US defense secretary Donald Rumsfeld and more than 100 military officers and personnel under the Alien Tort Claims Act, which provides that district courts have original jurisdiction to hear claims for torts “committed in violation of the law of nations or a treaty of the United States.”

The defendants moved to dismiss the suit based on section 7 of the MCA, which removes the ability of federal courts to hear challenges to the treatment of aliens who have been “properly detained” as enemy combatants. In the ruling, US District Judge Ellen Huvelle found that since the two men had been properly detained, the court lacked jurisdiction to hear the case.

BBC interviews the Head of Obama’s Guantanamo Task Force

The BBC’s Jon Manel interviewed to Matthew G. Olsen, the Task Force’s Executive Director.

Here some of the main issues discussed by Olsen:

“We have a meeting every Wednesday. We review the cases of the detainees at Guantanamo and try to reach decisions about the appropriate disposition of each detainee.”

“We look at everything that we’re able to obtain that is in the government’s possession. And I should say that one of our initial challenges was collecting all that information.”

We look at the questions of transfer and we look at the questions involving the possible prosecution of detainees.”

Manel then asks if it is a case of determining their guilt or innocence.

“It is more nuanced than that. What we are looking at is ‘can this person be safely transferred out of the United States?’

“‘Can they be transferred to a country that will be able to implement adequate mitigation measures to address any threat the detainee may pose?’ It’s a judgement on risk”.

Publications

“Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court”

“Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba: Non-Governmental Perspective,” House Armed Services Committee, July 30, 2008 (published January 2010).

Guatemala: ICRC calls for creation of a national search committee, urges gvt to accept ‘absence through disappearance as legal concept’

The vice-president of the ICRC, Ms Christine Beerli, has submitted a report to the vice-president of Guatemala, Mr Rafael Espada, and the president of the country’s Congress, Mr Roberto Alejos, highlighting the needs of the families of the missing. As part of her official visit to Guatemala, Ms Beerli will also meet with civil-society organizations.

“The relatives of those who went missing during the armed conflict are still in great distress; the story is not over yet,” declared Ms Beerli as she submitted the report. “The Guatemalan government has a responsibility towards these thousands of families still hoping to clarify the fate of their missing loved ones and awaiting full compensation through the national reparations programme.”

The report, which discusses the benefits and limitations of this programme, puts particular emphasis on the plight of the relatives of the missing and the anguish they have suffered for over three decades. It urges the government to establish “absence through disappearance” as a legal concept, to introduce tracing mechanisms and to speed up exhumations.

In her discussions with the Guatemalan authorities, Ms Beerli pushed for the creation of a national search committee, as outlined in bill 3590, which has been pending approval in Congress since 2007. This committee would be responsible for coordinating the government’s response to the issue – in cooperation with family associations and other civil-society organizations – as well as for implementing a policy based on international standards to tend fully to the needs of affected families.

In Guatemala, the ICRC supports civil-society organizations in their efforts to trace those who disappeared during the armed conflict and offers legal advice to the government. In 2009, the ICRC succeeded in reuniting separated relatives in 37 cases, facilitated over 150 exhumations and burials, and helped procure 570 legal documents – mainly birth and death certificates.