The Yin Blog

US to prosecute KSM in federal court

Not all Guantanamo detainees are going to face trial in an Article III (federal) court, but September 11 mastermind Khalid Sheikh Mohammed and his key associate Ramzi Binalshibh will.  President Obama's statement was:

“I’m absolutely convinced that Khalid Shaikh Mohammed will be subject to the most exacting demands of justice,” Mr. Obama said. “The American people insist on it, and my administration insists on it.”

I have to admit, I'm not altogether certain what it means that KSM "will be subject to the most exacting demands of justice."  Does that mean that he will get the highest level of due process rights?  That would seem to be the sentiment behind trying him in a civilian court, as opposed to a military commission.  Yet, if that's the intent, "subject" is a strange way of putting it.  Subjecting someone to something connotes a negative, not a positive; otherwise, you'd say that the person was entitled to whatever it is.  Plus, is it fair to say that the American people want the highest level of due process for KSM?  I'm sure some do, but I'd be surprised if it's a majority, or even close to a majority.

So, if subjecting him to the most exacting demands of justice is meant to convey that, if guilty, he'll be treated harshly enough by the civilian criminal justice system, does it follow that this is "better" (more efficient, etc.) than a military commission?  I have a hard time seeing that the punishment will be more severe here.  KSM could get the death penalty in either forum.

The only thing that jumps out is that, because of the greater procedural protections and greater openness about Article III court trials, a conviction and death sentence in federal court will carry more legitimacy than the same verdict and sentence in a military court, notwithstanding President Obama's efforts to increase the procedural protections in the latter.

This suggests in turn that the Obama Justice Department believes that it can convict KSM and others despite the fact that KSM's initial confession was obtained through seriously coercive interrogation (i.e., 180+ instances of waterboarding) -- a fact that defense counsel will no doubt highlight.  It seems like the Obama lawyers may believe that KSM's subsequent re-confession, obtained at Guantanamo by new government lawyers without any coercion, is valid because he could have, but did not repudiate his prior confession.  We shall see.

Waterboarding, foreigners, and Americans abroad

The other morning, I was listening to a discussion on "On Point" on NPR about the release of the formerly classified torture memos, and one of the program guests -- I think it was George Washington law prof Jonathan Turley -- asserted that if another country had treated Americans the way we treated Khalid Sheikh Mohammed and Abu Zubaydah (i.e., allegedly waterboarding them a combined 200+ times), we would be outraged.

I'm not so sure.

Just to be clear, I'm not intending in this blog post to defend how we treated those two al Qaeda members, nor am I intending to argue that waterboarding is not torture.  I'm simply exploring the counterfactual offered above.

Suppose that a foreign country captured two American citizens that it claimed had planned and executed a terrorist attack that killed more than 3000 persons.  And then for interrogation or retributive purposes, that country had subjected the two Americans to 200 instances of waterboarding.  Would we jump so fast to defend our fellow citizens?

Maybe.  But the closest analogy I can think of is the 1994 caning punishment inflicted on American teenager Michael Fay in Singapore.  Fay had been charged with vandalizing a number of vehicles, and after pleading guilty, he was sentenced to six caning strokes across the butt.  President Clinton asked Singapore officials for clemency of some sort, but all the Singapore government would do was reduce it to four caning strokes.  Although President Clinton decried the punishment as extreme, a significant percentage of Americans, as AsiaWeek reported at the time:

But according to a string of polls, Fay's caning sentence struck a chord in the U.S. Many Americans fed up with rising crime in their cities actually supported the tough punishment. Singapore's embassy in Washington said that the mail it had received was overwhelmingly approving of the tough sentence. And a radio call-in survey in Fay's hometown of Dayton, Ohio, was strongly pro-caning.

Of coure, caning is not the same as waterboarding, and Fay did receive due process in the sense of a judicial proceeding, so the two situations aren't exactly alike.  However, my point is that many Americans appeared to see Fay as getting what he deserved according to the laws of the country in which he was then residing.  In the same way, I'm not sure that all Americans would protest if another country were to punish Americans for pretty heinous acts in ways that would offend our laws and constitution.

Jack Bauer and me

My colleagues have been teasing me about being "famous," because the local newspaper (Iowa City Press-Citizen) ran a front-page (below the fold) story in which I was interviewed about the Fox TV show "24" and national security; the subject was based on my contribution to the AALS Law and Humanities Section symposium.  Sadly, the online link doesn't include the photo of Jack Bauer that ran in the hardcopy of the paper.  Go read it, because you're not going to get a new episode of "24" until early next year.

The occasionally unhinged Keith Olbermann (incorrectly) on Khadr

One of the cable news/talk shows that I enjoy watching is "Countdown with Keith Olbermann," partly because I remember back when he was a sports reporter on the local L.A. news -- yes, even before his ESPN days.  "Countdown" is snarky, quirky, and utterly devoid of any pretense of objectivity.  Plus, Olbermann has a hilarious obsession with mocking Bill O'Reilly (whom he refers to as "Bill Orally").  Who doesn't find humor in the segment on "Today's worst person in the world"?

But at times, Olbermann's anti-Bush tirades get so unhinged that I actually cringe -- and almost feel bad for Bush.

Last night, in remarking on the military judge's ruling in the Khadr case -- in which a military judge dismissed charges against a Guantanamo detainee -- Olbermann exclaimed that the ruling called into question the basis for detaining Khadr and Hamdan and others during the past several years.

Except . . . the judge's ruling was a statutory one, based on the fact that the Military Commissions Act gave jurisdiction to the military tribunals over trials of "unlawful enemy combatants."  The Combatant Status Review Hearings convened beginning in 2004 made no findings of unlawfulness, only that the detainees were or were not "enemy combatants."  Thus, there was no basis for concluding that Khadr was an unlawful enemy combatant, and as such, the military judge concluded that he had no jurisdiction to hear the case.

Apart possibly from the one issue identified by Bobby Chesney, this ruling seems eminently sensible and correct.  But notice what the judge's ruling does not cover: it says absolutely nothing about whether Khadr is appropriated detained as an enemy combatant.  All it says is that Khadr can't be tried under the current statutory scheme until he's been properly classified as an unlawful enemy combatant.

So why does Olbermann think that the ruling calls into question the detention of Khadr, Hamdan, and others?  I have no idea.

My take on Hamdan

I've got a new article up on SSRN, titled "Tom and Jerry (and Spike): A Metaphor for Hamdan v. Rumsfeld, the President, the Court, and Congress in the War on Terrorism."  Yes, I do start with a brief discussion of the old "Tom and Jerry" cartoons, which I use as a metaphor for the three branches of government.

The full abstract is:

This article is part of a symposium, guest edited by Mark Tushnet, reviewing key decisions from the Supreme Court's October 2005 term. The landmark decision in Hamdan v. Rumsfeld has been emphasized as one of statutory interpretation, leaving it up to the President to seek from Congress the authority he deems necessary to fight the global war on terrorism. Yet, Hamdan is not merely a decision of statutory interpretation. It furthers a trend begun in the 2004 trio of terrorism cases: Rasul v. Bush, Rumsfeld v. Padilla, and Hamdi v. Rumsfeld. Those cases were also (primarily) statutory interpretation cases, but with a subtle distinction: the two cases brought by citizens resulted in interpretations of statutes favorable to the government; the one case brought by aliens, like Hamdan, resulted in interpretations of statutes favorable to the individuals. In other words, these cases cannot be explained as instances where the Court has consistently construed ambiguous statutes against the Executive Branch. In this article, I consider why the Court has opted to favor aliens but not citizens. A tempting explanation is that the Court is acting in a "representation-reinforcing role," ensuring that politically powerless aliens detained outside the country are not oppressed by the political branches. However, under that analysis, the Court would be expected to make decisions of constitutional law, not statutory interpretation. Instead, I conclude that the Court's decisions can be understood as taking advantage of congressional inertia. Congress remains free to undo the Supreme Court's statutory interpretations, but it must overcome that inertia to act. In effect, this is a "clear statement of intent to discriminate against aliens" requirement.

The FISC and the NSA wiretapping

The big news is that Attorney General Alberto Gonzalez announced yesterday that the Foreign Intelligence Surveillance Court (FISC) had agreed to issue FISA warrants for the electronic surveillance program that the National Security Agency had been conducting since 2002.  A transcript of a DOJ briefing is here. The government will be operating under the FISA regime, rather than relying on the Authorization for Use of Military Force and inherent Article II power arguments from before.

With regard to ACLU v. NSA, the district court decision striking down the program as unconstitutional, I'd guess that this development almost certainly means that the Sixth Circuit will reverse the district court on the merits.  The fact that the surveillance will take place pursuant to FISA doesn't obviate the district judge's reasoning, since a statute cannot authorize unconstitutional conduct.  However, the reasoning of the opinion was widely panned (including by me), and now that the program will be conducted under a statutory framework established by Congress, my guess is that the Sixth Circuit will feel even less reason to uphold very shaky reasoning.  Most likely, it will reverse and remand with directions to dismiss the case on some sort of ripeness-type ground, concluding that it's better to wait to see how the program functions under the supervision of the FISC before determining its lawfulness.  (Thanks to my colleague Randy Bezanson for helping my thoughts on the last point.)

Denbeaux report on the CSRTs

Here's an interesting media account of a forthcoming paper by Seton Hall lawprof Mark Denbeaux (and his son Joshua) about the actual content of the Combatant Status Review Tribunals that were convened after the Supreme Court's decision in Rasul v. Bush (2004):

Among their findings:

• The government did not produce any witnesses in any hearing.

• The military denied all detainee requests to inspect the classified evidence against them.

• The military refused all requests for defense witnesses who were not detained at Guantanamo.

• In 74 percent of the cases, the government denied requests to call witnesses who were detained at the prison.

• In 91 percent of the hearings, the detainees did not present any evidence.

• In three cases, the panel found that the detainee was "no longer an enemy combatant," but the military convened new tribunals that later found them to be enemy combatants.

"No American would ever consider this to be hearing," Denbeaux said. "This is a show trial."

It will be interesting to read the report when it's available.  The Denbeauxes have posted other reports based on DOD/Guantanamo data at SSRN, so presumably this one will be too.

Meanwhile, if correct, the Denbeauxes' findings only highlight the significance of the lurking issue that the Court has ducked to this point, namely whether the detainees have any cognizable constitutional rights.  That issue is before the D.C. Circuit in the consolidated Boumediene/Al Odah cases, so we may be getting some semi-definitive resolution in the near future.

CLE program on national security law

For those in or near the eastern Iowa area, the Iowa law school is sponsoring a CLE event this Saturday (just prior to the Iowa-Northern Illinois football game) titled "Hamdan v. Rumsfeld: The War on Terror and the Rule of Law."

The first speaker will be Joseph McMillan, one of the civilian attorneys who represented Hamdan in the Supreme Court.  He will be followed by Ass't U.S. Attorney Patrick Reinert, who is also a military judge.  I'll be the third speaker.  The entire program is worth 2 1/4 hours of CLE credit.

Lynne Stewart sentenced

I'd forgotten that criminal defense attorney Lynne Stewart had not been sentenced until today.  The district judge sentenced her to 28 months in prison, which was a lot less than the 20 years the government has asked for, but not zero time either.  (In case you are wondering, the district judge was a Clinton appointee.)  The judge's remarks are interesting because they strike me as pretty balanced:

[I]n his remarks, the judge demonstrated that he did not believe Ms. Stewart represented the threat the government described.

There was “no evidence that any victim was in fact harmed” by her actions, the judge said. He also cited her long career as a “lawyer to the poor and the unpopular.”

“It is no exaggeration to say that Ms. Stewart performed a public service not only to the court but to the nation,” he said, adding that she did not chose her cases to become wealthy.

* * *

The judge noted that as a result of her conviction 20 months ago, Ms. Stewart lost her license to practice law and that she is banned from having any contact with her former client.

“The occasion for the crimes to be repeated will be nil,” he said.

But in turning down her request for no prison time at all, the judge indicated that she was not without culpability in this case, pointing to what he called “an irreducible core of very severe criminal conduct.”

The reaction to the Stewart prosecution has long puzzled me.  I understand the concern that the prosecution might abuse its power to indict criminal defense attorneys in an effort to chill the zealousness of their representation, and certainly Stewart's aggressive defense practices would make her an ideal target for such retaliation.  On the other hand, the allegations in the indictment -- that Stewart conspired with her translator to let Rahman pass messages to his terrorist group, with Stewart all the while pretending to be engaging in the conversation; falsely agreeing to the terms of the Special Administrative Measures when she had no intention of doing so -- are quite specific, and in this instance, proven beyond a reasonable doubt to a jury.

It seems to me that criminal defense lawyers should want to hold Stewart at least partly responsible for abusing her role as one of them, regardless of whether that conduct harmed anyone.  It wasn't in the line of practicing law anymore, and it does hurt other criminal defense attorneys who must now be even more careful.

National Security Law blog

If you haven't already noticed, I've co-founded a new blog, National Security Advisors, with my fellow national security law scholars Bobby Chesney and Steve Vladeck.  I'll continue to blog here, mostly general law, law teaching, and pop culture matters, though I may cross-post some con law/national security law posts here as well as there.

Do check out the new blog if you haven't yet!