ACSBlog: The Blog of the American Constitution Society

This morning the Supreme Court will hear argument in Medellin v. Texas.

Neal Katyal, a professor of law at Georgetown University Law Center, examined Medellin v. Texas at ACS' Supreme Court Preview.

Katyal discusses Medellin in this video excerpt.

by Martin Flaherty, Co-Director of the Crowley Program in International Human Rights at Fordham Law School and Leitner Family Professor of Law.

Editor's note: the Supreme Court will hear argument in Medillin v. Texas this morning.

Though known primarily to specialists, Medellin v. Texas may be one of the most important cases that the Supreme Court will consider this Term. Making its second visit to the Court, this complex action in some way touches upon most of the cutting-edge issues in foreign relations law. As such, Medellin should have much to say about the future relationship between the United States on one hand and international law and institutions on the other, in an age characterized by globalization and responses to terrorism. As if this were not enough, Medellin also will go a long way toward determining the fate of 51 Mexican nationals on death row in several U.S. states.

The case centers on the rights of one of this group of Mexicans, Jose Ernesto Medellin, granted under the Vienna Convention on Consular Relations, a treaty that the U.S. signed and ratified in 1962. Article 36 of the Convention provides that “if [a foreign national] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.” It continues that the authorities of the host country shall inform the person of “his rights” “without delay.”

Thirty years later, Medellin was arrested by local police in Texas for the brutal murder of two teenage girls. The authorities read him his Miranda rights. But as with most foreign nationals placed under arrest in the U.S., Medellin was not informed of the apparently similar right to consult with consular officials from the nation of which he was a citizen. Medellin was then tried, convicted, and sentenced to death; he exhausted his appeals. Only after this point did Medellin learn of a possible treaty claim, whereupon he brought state and federal habeas actions seeking a retrial based on Texas’ violation of the Vienna Convention. His petitions at both levels were denied.

AP reports:

Jose Padilla was convicted of federal terrorism support charges Thursday after being held for 3 1/2 years as an enemy combatant in a case that came to symbolize the Bush administration's zeal to stop homegrown terror.

The New York Times adds:

Padilla and co-defendants Adham Amin Hassoun and Kifah Wael Jayyousi were convicted of conspiracy to murder, kidnap and maim people overseas, which carries a penalty of life in prison. All three were also convicted of two terrorism material support counts, which carry potential 15-year sentences each," reported the .

U.S. District Judge Marcia Cooke set a Dec. 5 sentencing date for all three defendants.

Background from an AP Story:

Colonel Morris Davis, chief prosecutor for the military commissions, writes about Guantanamo Bay in the online companion to Yale Law Journal:

What I see is a clean, modern facility that employs humane detention practices to prevent enemy combatants from causing harm in the future and that utilizes fair trial procedures that exceed standards accepted in comparable international tribunals to adjudicate the guilt or innocence of enemy combatants alleged to have committed punishable offenses in the past. If truth be told, and often it is not, there is no compelling reason to cut and run from the detention facility or the military commissions. . . .

Any notion that detainees are held in facilities that even remotely resemble Camp X-Ray or are subjected to abusive treatment is absolutely wrong. . . .

I have visited a number of military and civilian confinement facilities in the United States during the course of my career, and I believe many of our own incarcerated citizens would be envious of the treatment afforded to the detainees at Guantanamo Bay. . . . I honestly believe the standards at Guantanamo Bay rival any at similar facilities I have seen in the United States.

Attorney Thomas Sullivan wrote earlier about his experiences representing prisoners at Guantanamo Bay.

Those who are inclined to belittle the protestations of do-good lawyers who represent the prisoners would do well to visit the prison and see first hand the conditions in which these men are held. Most of them are kept in 24/7 isolation, without proper medical attention, or decent food, or diversions such as radio, television, books, newspapers, magazines, or reading material other than the Koran.

By design, most have no contact with fellow prisoners, and only limited opportunities for exercise.

They are housed in rectangular cubicles, actually small cages measuring from 6x8 to 7x10, with a raised concrete slab and mattress for a bed, a toilet and wash basin. The walls are made of fine wire mesh which impairs distance vision if looked through for extended periods.

In most of the camps, physical contact among prisoners is prohibited, and oral communication is restricted to shouting to those celled next to or across from the prisoner.

In Camp Six the walls are not porous, resulting in total isolation. All movements of prisoners require two armed guards, with the prisoners chained hand and food. . . .

The ways we are treating these men, and the conditions in which they are confined, are demeaning and cruel, not to mention totally unnecessary. Their "housing" resembles the cellblocks reserved for the most unruly prisoners in state and federal prisons, and their isolation is patterned on how we isolate those on death row.

               The Courts

Judges live in fear after making controversial decisions, reports Law.com.

Greer, who said he's on the federal bench, was one of four current or former judges who appeared in a 90-minute seminar in San Francisco's Moscone Center West to describe how their lives were affected by their rulings in high-profile cases involving hot-button issues. . . .

Many judges believe the current presidential administration has exacerbated the problem by blaming unpopular rulings on "activist judges."

At the annual ABA convention, Justice Breyer says the last term was "a difficult one," reports the AP.

Jamin Rashkin at Slate examines how, in his opinion,  lower courts are protecting constitutional rights as the Supreme Court strips them away.

But even as the Supreme Court conducts broad U-turns on fundamental questions like free speech and racial equality in public schools, many lower courts—including some dominated by Republican appointees—have been acting with vigor to protect the rights of the people.

Findlaw's Michael Dorf argues "the Supreme Court wreaks havoc in the Lower Federal Courts -- Again." He argues a Court decision, Twombly, concerning "the standard to be used by federal district judges in deciding whether to dismiss a lawsuit before allowing the plaintiff to conduct civil discovery . . . has perplexed the hundreds of federal judges who have already had to confront dismissal motions citing Twombly."

Louis Fisher and David Gray Adler discuss whether "we can still count on the Court to protect the rights of citizens." They argue "such trust in the powers of one branch is and has always been misguided."

               The War on Terrorism

"Federal appeals court will hear arguments next Wednesday on whether to stop a class-action privacy suit based on allegations that the government and AT&T Inc. have been working together in an illegal wiretapping program," reports the Washington Post.  The Center for Constitutional Rights "argues that the new legislation violates the First Amendment and the Fourth Amendment," says SCOTUSblog.

The First Amendment claim is based on CCR's belief that its attorneys have been overheard by illegal wiretaps during private telephone calls or e-mails to clients or witnesses and perhaps other attorneys outside the U.S., intruding on attorney-client confidentiality. The Fourth Amendment claim is based on the argument that this overhearing was done without a warrant and with no suspicion of any criminal activity.

The Washington Post examines "How the Fight for Vast New Spying Powers Was Won."

"Mugabe cites U.S. program to justify wiretapping law," says Think Progress.

The Christian Science Monitor has a lengthy report on whether Jose Padilla -- an American citizen held for three years and seven months at the U.S/ Naval Consolidated Brig in Charleston, S.C on terrorism charges --  was tortured.

Padilla's mental health itself is a form of evidence, mental-health experts say, and it strongly suggests that – at least in Padilla's case – the government's harsh interrogation and confinement tactics went too far. . . . "

Padilla's treatment in the brig raises another issue, [legal] scholars say: whether the Constitution ever permits the government to force a man to confess to involvement in terrorist plots and, in doing so, risk destruction of a portion of his mind. . . .

"He is not the same man who was taken into custody in 2002," says Angela Hegarty, a forensic psychiatrist in New York who spent 22 hours examining Padilla. "Whatever happened to him in there has radically changed him. . . ."

Jose Padilla had no history of mental illness when President Bush ordered him detained in 2002 as a suspected Al Qaeda operative. But he does now.

TalkLeft reports on a Newsweek article on whether Guantanamo Bay detainees may be force-fed.

               Law and Politics

No executive appointments during August break, RollCall reports.

Karl Rove has resigned effective the end of August, reports the New York Times. Firedoglake speculates as to why.

 Attorney General Alberto Gonzales admits "top aids got political briefings," reports the Washington Post.

Justice Department officials attended at least a dozen political briefings at the White House since 2001, including some meetings led by Karl Rove, President Bush's chief political adviser, and others that were focused on election trends prior to the 2006 midterm contest, according to documents released yesterday.

               Other News

Malfunctioning voting machines at the GOP Iowa Straw Poll forces a manual recount, according to Daily Kos.

A hearing on predatory lending and sub-prime loans has caught Melissa Ryan's attention.

Attorney Thomas P. Sullivan writes about his experiences representing prisoners held at Guantanamo Bay.  Some excerpts:

Your client awaits, one leg shackled to the floor, seated behind a table. He is bearded, swarthy, and normally doesn't speak or understand more than a few words of English. If you haven't met before -- and often even if you have -- he suspects that you and your interpreter are secret agents for the government come to pry information from him. After traditional amenities, and repeated assurances that you are there to help him, you discuss the state of the legal and political efforts underway to have him and the other prisoners returned home. There is a problem here: there is no real news to report, at least no good news about having him repatriated. The conversation consists chiefly of you trying, usually without discernible success, to explain why no progress has been made to get a hearing before a tribunal that will require the government to explain why he has been held in jail for five years. . . .

To summarize: In these [Combatant Status Review Tribunal (CSRT)] proceedings, the unrepresented prisoners have the burden of refuting unsupported, hearsay allegations from undisclosed sources, which the tribunal presumes are true. The CSRT and the [Administrative Review Board hearings] replicate the deservedly discredited Star Chamber, through which King Charles I of England retaliated against the Puritans during the 1600s. I can assure the readers they were a total sham. . . .

My impression of the prisoners I've met, shared by the other fine lawyers for prisoners with whom we've spoken, is that most of these men are not terrorists, should not have been imprisoned in the first place, and if sent home would resume peaceful, productive lives, albeit damaged by the inhumane experiences they have endured during the past half decade. But good or evil, these men are entitled to have their captor -- the United States government -- establish before a fair tribunal a valid reason for their imprisonment. They have not received that kind of hearing, and it appears they will not in the foreseeable future.

Thomas P. Sullivan is a partner in the Chicago law firm of Jenner & Block and the former United States Attorney for the Southern District of Illinois. This article was first printed in the May 2007 issue of The Circuit Rider, a publication of the Seventh Circuit Bar Association.

Video of Yale Law School Dean Harold Hongju Koh's featured address at the Fifth Annual ACS National Convention is now available here.

Senator Dick Durbin (D-IL), a member of the Senate Judiciary Committee, sent a letter yesterday to Judge Brett Kavanaugh of the D.C. Circuit which accuses the recently confirmed appeals judge of misleading the Senate on his involvement in crafting Bush Administration detainee policy while he was a White House lawyer:

Dear Judge Kavanaugh:

Yesterday the Washington Post published a lengthy article about Vice President Cheney's role in the policymaking process of the Bush Administration. In this article, you are reported to have participated in a "heated" White House meeting in 2002 about whether U.S. citizens who had been declared enemy combatants should be given access to lawyers. The information in this article was confirmed today by a report on National Public Radio.

These reports appear to contradict sworn testimony you gave to the Senate Judiciary Committee on May 9, 2006 at your nomination hearing. At that hearing, I asked you about the role you played, as one of the President's top White House lawyers, in the selection of William Haynes, a controversial nominee to the U.S. Court of Appeals for the Fourth Circuit and proponent of permissive policies with regard to torture.

I asked: "What did you know about Mr. Haynes's role in crafting the Adminstration's detention and interrogation policies?"

You testified: "Senator, I did not – I was not involved and am not involved in the questions about the rules governing detention of combatants – and so I do not have the involvement with that."

In light of the Washington Post and National Public Radio reports, your sworn testimony appears inaccurate and misleading. You participated in a critical meeting in which the Administration made a decision on whether to extend access to counsel to detainees, an issue that is clearly a "rule governing detention of combatants." By testifying under oath that you were not involved in this issue, it appears that you misled me, the Senate Judiciary Committee, and the nation.

Therefore, I request that you provide the Senate Judiciary Committee with an explanation for this apparent contradiction.

In addition, I request that you disqualify yourself in all pending and subsequent cases involving detainees and enemy combatants. Your lack of candor at your nomination hearing suggests you cannot approach these cases with impartiality and an open mind.

Durbin added that he feels "perilously close to being lied to" in Judge Kavanaugh's testimony.  Judge Kavanaugh's first case as a member of the D.C. Circuit was a case involving Guantanamo detainees.

From today's Post:

In a radio interview last fall, Cheney said, "We don't torture." What he did not acknowledge, according to Alberto J. Mora, who served then as the Bush-appointed Navy general counsel, was that the new legal framework was designed specifically to leave room for cruelty. In international law, Mora said, cruelty is defined as "the imposition of severe physical or mental pain or suffering." He added: "Torture is an extreme version of cruelty."

How extreme? Yoo was summoned again to the White House in the early spring of 2002. This time the question was urgent. The CIA had captured Abu Zubaida, then believed to be a top al-Qaeda operative, on March 28, 2002. Case officers wanted to know "what the legal limits of interrogation are," Yoo said.

This previously unreported meeting sheds light on the origins of one of the Bush administration's most controversial claims. The Justice Department delivered a classified opinion on Aug. 1, 2002, stating that the U.S. law against torture "prohibits only the worst forms of cruel, inhuman or degrading treatment" and therefore permits many others. [Read the opinion] Distributed under the signature of Assistant Attorney General Jay S. Bybee, the opinion also narrowed the definition of "torture" to mean only suffering "equivalent in intensity" to the pain of "organ failure ..... or even death."

When news accounts unearthed that opinion nearly two years later, the White House repudiated its contents. Some officials described it as hypothetical, without disclosing that the opinion was written in response to specific questions from the CIA. Administration officials attributed authorship to Yoo, a Berkeley law professor who had come to serve in the Office of Legal Counsel.

But the "torture memo," as it became widely known, was not Yoo's work alone. In an interview, Yoo said that Addington, as well as Gonzales and deputy White House counsel Timothy E. Flanigan, contributed to the analysis.

The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line of torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

That same day, Aug. 1, 2002, Yoo signed off on a second secret opinion, the contents of which have never been made public. According to a source with direct knowledge, that opinion approved as lawful a long list of specific interrogation techniques proposed by the CIA -- including waterboarding, a form of near-drowning that the U.S. government classified as a war crime in 1947. The opinion drew the line against one request: threatening to bury a prisoner alive.

Yoo said for the first time in an interview that he verbally warned lawyers for the president, Cheney and Defense Secretary Donald H. Rumsfeld that it would be dangerous as a matter of policy to permit military interrogators to use the harshest techniques, because the armed services, vastly larger than the CIA, could overuse the tools or exceed the limits. "I always thought that only the CIA should do this, but people at the White House and at DOD felt differently," Yoo said. The migration of those techniques from the CIA to the military, and from Guantanamo Bay to Abu Ghraib, aroused worldwide condemnation when abuse by U.S. troops was exposed.

by Priti Patel.
Priti Patel is an attorney at Human Rights First focusing on U.S. detention practices and the impact of these practices on human rights and civil liberties. This is the second in a series of posts from the military tribunals at Guantanamo Bay, Cuba

Today, two military judges hammered a couple of more nails into the coffin of the military commissions when they dismissed the cases of Omar Khadr and Salim Ahmed Hamdan.  Army Col. Peter Brownback III and Navy Cpt. Keith Allred both held that the prosecution had failed to show that Omar Khadr and Salim Ahmed Hamdan were unlawful enemy combatants and thus the military commissions did not have jurisdiction to try them.   

The primary grounds for the dismissal were the same in both cases.  Basically, the Military Commissions Act of 2006 (MCA) provides the military commissions with jurisdiction over: (1) individuals who meet the MCA’s definition of unlawful enemy combatant (which HRF has criticized for being overbroad and vague) or; (2) over individuals who have been found to be unlawful enemy combatants by a Combatant Status Review Tribunal (CSRT) or by another competent tribunal.  The MCA specifies that military commissions do not have jurisdiction over so-called “lawful enemy combatants.”  And herein lies the problem.  The CSRTs established by the Bush Administration beginning in 2004 only determined whether a person was an enemy combatant, using a different definition than the MCA’s, for the purpose of detention.  The CSRT did not determine if a person was an unlawful enemy combatant – as defined in the MCA – for the purpose of trial by a military commission.    

In both the Hamdan and the Khadr cases, the prosecution attempted to argue (among other things) that this distinction didn’t matter.  According to the prosecution, based on President Bush’s February 7, 2002 memorandum (in which the President found that Taliban and al-Qaeda detainees did not qualify as prisoners of war under the Geneva Conventions), all al-Qaeda and Taliban detainees were unlawful combatants.   In addition, the CSRT proceedings found each of Khadr and Hamdan to be enemy combatants.  Merging these two determinations, the prosecution argued, Khadr and Hamdan were unlawful enemy combatants for the purposes of the MCA.    Both Col. Brownback and Cpt. Allred disagreed.

by Priti Patel.
Priti Patel is an attorney at Human Rights First focusing on U.S. detention practices and the impact of these practices on human rights and civil liberties. This is the first in a series of posts from the military tribunals at Guantanamo Bay, Cuba

So much has happened since my last trip to Guantanamo Bay over a year ago to monitor the previous incarnation of the military commissions.  Last Wednesday night, we heard the sad news that another Guantanamo detainee, Abdul Rahman Maadha al-Amry, apparently committed suicide.  Al-Amry was a national of Saudi Arabia.  As my colleague Hina Shamsi, who monitored the last military commission proceedings in March, said, "This latest death was a preventable tragedy.  The administration has had every indication over more than five years that the prolonged and arbitrary detention of prisoners is a moral, diplomatic, legal and policy failure.”

As I head back to Guantanamo to observe the arraignments of Omar Khadr and Salim Ahmed Hamdan before the newly constructed military commissions, I am struck by the depressing reality that life for the detainees remains unchanged since my previous trip.  Detainees (through their lawyers) are still struggling for independent judicial review of the legal and factual basis of their detention.  Harsh detention conditions at Guantanamo continue.  Most detainees are left with little hope that they will ever be released or charged and prosecuted.

by Martin Magnusson, Editor-at-Large

Wang Xiaoning is a Chinese political activist who has advocated democratic reform in his homeland. Because of China's repressive political regime, activists such as Mr. Wang frequently communicate through anonymous means, most often the internet. Despite the Chinese government's vigorous efforts to control online communications, the internet remains a powerful, if constrained, force for free political discourse in China.

Mr. Wang, for instance, edited two pro-democracy journals and distributed them through Yahoo groups. His articles called for peaceful democratic reform and a nonviolent end to China's single-party system. Mr. Wang's language might seem tame by American standards: 

·       “Without a multi-party system, free elections and separation of powers, any political reform is fraudulent.”

·       “Look at China today – workers and peasants have been suppressed into the lowest level of society. Tens of millions of workers are unemployed and many workers are cruelly exploited and oppressed; they have no right to strike or establish labor unions, and no protection for their most basic rights.”

The Chinese government, though, was very concerned by these statements. Silencing Mr. Wang's criticism proved remarkably easy; Yahoo had already agreed to enforce Chinese speech regulations by way of its signing the “Public Pledge on Self-Discipline for the China Internet Industry.” When they noticed the political slant of his speech, administrators simply blocked Mr. Wang from posting to Yahoo groups.

When he was no longer able to post his journals to Yahoo groups, Mr. Wang began emailing them to individual recipients. The Chinese government then approached Yahoo and asked it for identifying information about the sender. Yahoo complied with this request. 

Shortly thereafter, Mr. Wang was arrested and detained. His property was seized. He was sent to a forced labor camp and eventually convicted of “incitement to subvert state power.” He was sentenced to ten years of imprisonment. Mr. Wang is currently serving his sentence at Beijing Municipal No. 2 Prison, which has been characterized as “a secretive, highsecurity forced labor prison where serious and 'special control' prisoners are held, particularly political prisoners.”

Senators Dick Durbin (D-IL) and Sam Brownback (R-KS) introduced last week the Child Soldiers Prevention Act of 2007, a bill to prohibit the United States from providing financial support to nations in which children fight as soldiers.  According to Senator Durbin, this bill addresses a widespread problem in many nations currently enjoying U.S. military aid.  "Hundreds of thousands children around the world today are used as child soldiers,” said Durbin.  “These boys and girls wield automatic weapons on the front lines of combat, serve as human mine detectors, participate in suicide missions, carry supplies, and act as spies, messengers or lookouts and sex slaves - endangering their health and lives and sacrificing their childhoods."  Under the Durbin/Brownback bill, a child soldier is defined as any person under the age of 18 who takes part in hostilities or is conscripted into an armed force, or any person under the age of 16 who is recruited into a nation’s military.

Human Rights Watch has more on this issue at this link.

by Jimmy R. Howell, Associate, Thompson Hine LLP

Last Friday, the United States sentenced its first enemy combatant in the special military tribunal at Guantanamo Bay.  That enemy combatant, David Hicks, is an Australian who was apprehended in Afghanistan, accused of being an Al Qaeda trainee, and charged with conspiracy, attempted murder, and aiding the enemy.

For these charges, he faced a potential life sentence.  As a detainee who was to be tried first among the nearly 400 people imprisoned at Guantanamo Bay, he represented the worst of the worst.  Yet, under a plea agreement between Hicks and the United States, Hicks will only serve 9 months in prison.  In light of the severity of the charges against him and the crimes to which he confessed, such a sentence seems nothing other than diminutive.

This begs the question, if the government had a case against Hicks for the factual basis underlying Hicks' designation as an "enemy combatant," why did the United States choose not take its case to the military jury?  And, why did the Government's plea deal offer only 9 months?  There are many potential answers, but there is a persistent and disturbing possibility that can't be shaken.  That is this: What if Hicks is innocent?

by Hina Shamsi, Deputy Director & Senior Counsel, Law & Security Program, Human Rights First

Editor’s Note: Guest Blogger Hina Shamsi is at Guantanamo Bay blogging on the hearing of Australian detainee David Hicks

There was a stifled gasp in the courtroom on Friday when the military commission judge announced that David Hicks would spend nine months in prison.  Only minutes before, the jury of 8 military men had sentenced Hicks to seven years.  The difference reflected a plea agreement that had been in the works before the first hearing in the Australian detainee’s case this past Monday.  David Hicks gets to go home in the next two months – and speculation is that it will be soon – to serve his time.  He finally gets certainty after five years of arbitrary detention and so do we:  the military commission system that lead to his conviction is not full, fair, or transparent.  

It was a surreal day and I’m still trying to sort through all that happened.  Here’s the original version of the plea agreement (I don’t yet have a copy of the final) and here’s the stipulation of facts agreed to as part of the plea deal. 

The Plea Agreement and Sentencing 

We now know from the post-sentencing press conference that the military commissions convening authority directly negotiated the plea with Hicks’s military defense counsel.  The original agreement, which contained most of the main terms of the final, was signed on Monday, before the first hearing in the case.  After that, we had to wait for the jury of military officers to arrive on the island on Friday morning for sentencing.

by Hina Shamsi, Deputy Director & Senior Counsel, Law & Security Program, Human Rights First

Editor’s Note: Guest Blogger Hina Shamsi is at Guantanamo Bay blogging on the hearing of Australian detainee David Hicks

There’s many a t-shirt here at Guantanamo with the famous slogan, “Freedom Is Not Free.”  Its most haunting use, as an inscription on the Korean War Veterans Memorial, is a reminder that so many of the privileges we take for granted come at a cost.  It’s a bit jarring, though, to see the t-shirt at a time when rumors are circulating about plea negotiations that may eventually lead to David Hicks’ freedom.  At what cost will Hicks leave this place and what are the costs for the United States? 

The Australian government, in Canberra, has leaked details that both the defense and prosecution teams here are not allowed to discuss.  According to the Sydney Morning Herald, Hicks will return to Australia and serve about a year, and the Australian Attorney General has said that his government would not reduce the term to which Hicks will be sentenced.  But nothing formal will be announced until Friday, when the commission resumes at 8 a.m.  We expect a long day; the indications are that all participants in the process want it concluded by the weekend.

Mr. Hicks’ decision to accept a plea on these or similar terms is entirely understandable, but the process it took to arrive at this point is an indictment of the fairness of the military commissions system, and the hurdles remain dauntingly high for the other 385 men still detained here.  The key factors that went into securing a plea deal for Hicks include:

• He’s a citizen of one of the United States’ staunchest allies;
• There’s mounting political pressure on the Australian government, which is facing an election this year, to bring Hicks home;
• Members of the Australian government heavily lobbied the Bush administration.  There are reports that Australian Prime Minister John Howard spoke personally to Vice President Dick Cheney about the case.  (I have a delicious time imagining that Mr. Cheney acknowledged, as he has said in the past, “It is easy to take liberty for granted, when you have never had it taken from you” in response to Mr. Howard.); and
• A high-powered team of lawyers who have advocated for Hicks on three continents (apart from the U.S. and Australian legal teams, Hicks is represented by attorneys in the U.K. in a proceeding that raises the issue of his torture and abuse in Afghanistan and Guantanamo).

by Hina Shamsi, Deputy Director & Senior Counsel, Law & Security Program, Human Rights First

Editor’s Note: Guest Blogger Hina Shamsi is at Guantanamo Bay blogging on the hearing of Australian detainee David Hicks

Speculation has been swirling this weekend, here at Guantanamo, about two developments that could make today’s hearing in the case of detainee David Hicks case anything but mundane. 

First, there’s talk of a possible deal in which Hicks would plead guilty to the charge against him and serve any additional jail time in his native Australia.  Second, mutual accusations of unethical behavior by military lawyers on the prosecution and the defense team have been ratcheted up: the defense has filed a motion accusing the chief prosecutor, Colonel Morris Davis, of professional misconduct and asking that he be removed from the case. 

The dynamics behind plea discussions (what we know of them, at least) are not surprising if you’ve been following the Australian media’s detailed coverage of the Hicks case over the last year, but they do illustrate the still quixotic nature of the new military commissions system and raise questions about its fairness.  Would the Hicks case be proceeding first if this were not an election year in Australia?  Are the charges against him a result of pressure from one of the United States’ most staunch allies? 

Over the last week, a mobilization among lawyers in Pakistan has appeared at the vanguard of an emerging movement for democracy, in the wake of a crisis that erupted on March 9 when President Parvez Musharraf suspended Chief Justice Iftikhar Chaudhry of the Supreme Court, citing unspecified charges of "misconduct and misuse of authority."  While the Chief Justice was described by human rights lawyer Asma Jilani Jahangir as “no role model for the bar…his act of defiance in refusing to resign in the face of executive oppression has made him an instant hero.”

In the months before his suspension, Chaudhry – who has been criticized for allegedly using his position to help his son get a government job – had raised concerns about so-called “missing persons” characterized by some as victims of government abduction.  Reuters also notes that "The move to sack Chaudhry led to suspicion Musharraf feared the independent-minded judge would block any attempt by the president to keep the post of army chief, which he is due to give up this year. Chaudhry might also have been called to rule on the timing of the next presidential election."  Hamid Mir, Editor-in-Chief of a television station raided by police forces earlier this month, suggested that "Musharraf would like to be re-elected, but justice Choudhary would not have allowed him to be re-elected from the same parliament."

This Tuesday, one of the country's three attorneys-general resigned, claiming that "in the current judicial crisis, it was very difficult for me to perform my duties."  In the days that followed, hundreds of lawyers took to the streets of Islamabad and Lahore in outrage, with one opposition leader declaring that "Our struggle will continue until the dictatorship ends.” On Saturday, over 40 law offices were raided and "ransacked," according to The Washington Post, which also reported that 100 lawyers were injured by weapons including "iron-tipped batons" when a demonstration was pre-emptively "assaulted" by police that included "tear gas, rocks and baton charges."  Nursing injuries caused by baton strikes, 39 year-old Counselor Khurram Latif Khosa said, "We were not armed. Our weapons were words -- that's all."  His father, who was also a lawyer participating in the demonstrations, suffered a gash on his forehead requiring six stitches.

On Friday, President Parvez Musharraf argued that the crisis "should not be made a law and order or political issue," and that instead "will be resolved only though legal and constitutional means." Musharrah included a particular "appeal to all lawyers that they should let this constitutional and legal process be completed."

Essentially under house arrest since March 9, Chief Justice Chaudhry publicly responded to the crisis for the first time today, claiming in the newspaper DAWN that he was innocent of all charges and arguing that the hearing on the accusations against him should be open, rather than closed, to the public. He said, "I want the public to know of the charges as well as of my defence."

Photo credit: K.m. Chaudary -- Associated Press

by Hina Shamsi, Deputy Director & Senior Counsel, Law & Security Program, Human Rights First

Editor’s Note: Guest Blogger Hina Shamsi is at Guantanamo Bay blogging on the hearing of Australian detainee David Hicks

This isn’t a test – don’t think too hard – just note what pops into your head.   

I did this exercise myself in the last couple of days, once the U.S military confirmed that I could go to the U.S. naval base in Guantanamo to observe a hearing in the case of Australian detainee David Hicks.  The hearing is this Monday, March 26.  My organization, Human Rights First, has sent an observer to Guantanamo to report on every hearing since they began in 2004, but this will be my first trip.  I work on related issues daily, but it’s been a while since I thought about what it evokes personally. 

Not unexpectedly, my responses were pretty lawyerly – at the core of each was the concept of Guantanamo as a law-free zone – and I got to wondering what the place evokes for people who don’t work on human rights and civil liberties issues.  So, in a completely random survey that doesn’t aspire even to a pretense of science or impartiality, I got responses to my question from ten friends whose only basis for inclusion is that they called me back within a 24-hour period.  Oh, I tried for geographical diversity (hello Montana, California and Illinois!) and also included an old buddy from North Carolina who identifies himself as a conservative thinker.  I’ll get to the responses, but first, a note about the significance of the Hicks hearing.

Monday’s Significance

David Hicks has been charged with material support for terrorism.  (My post for this blog on Monday will be about the specifics of Mr. Hicks’ case and the parallel proceedings his lawyers in Australia and the U.K. are pursuing.)  It’s likely that the Monday hearing will be pretty mundane:  it is the arraignment at which the charges against Mr. Hicks will be read.  Mr. Hicks will then be asked to make a plea.  The judge may set a schedule for legal motions by both sides and, unless any issues are raised by the prosecution or the defense, that’s likely to be it.  

Still, Monday will be significant for Mr. Hicks’ father, who will see his son for the first time in three years.  The father is already apprehensive and anticipating the emotional toll and stress.  I can’t begin to imagine what a parent in that situation feels like.  But Mr. Hicks at least has seen his son.  The families of most of the approximately 385 detainees still at Guantanamo have not, for more than five years.

The other significance of Monday is that it’s the first military commission hearing to take place since the old system established under an order by President Bush was struck down by the Supreme Court in June 2006 in Hamdan v. Rumsfeld.  Hamdan, of course, is one of the most important Supreme Court decisions on the limits of Presidential power, and the Court made clear that the executive branch must comply with U.S. laws and treaties on fair trials and humane treatment.   Congress then responded with the Military Commissions Act of 2006 (MCA), which the President signed into law in October last year, and which establishes a military trial system that is deeply flawed, but not as much as the old system.  If you want to travel down memory lane to recall just how bad the old system was, here’s HRF’s analysis of it. 

The new military commission system’s proponents say it’s possible to have a fair trial under the MCA–and theoretically, that’s possible, but only if the trial is presided over by heroically ethical judges who don’t do what the law tells them they can.  For example, the law says judges can:

• allow evidence obtained through coercion;
• order that evidence showing the defendant’s innocence or otherwise favorable to his defense be provided only in summary or redacted form, if the government claims it’s classified; and
• try people (including civilians captured far from any battlefield and who may not have committed any terrorist act) for acts that weren’t war crimes when they were committed.

That’s just a start; you can read about some of the other flaws here [LINK http://www.humanrightsfirst.info/pdf/07125-usls-hrf-rcm-analysis.pdf.]  (And I don’t have the space here to write about the most distressing aspect of the MCA, its stripping from the Guantanamo detainees the right to challenge the basis for their detention, through habeas corpus, which the Supreme Court recognized in 2004, in Rasul v. Bush.  The habeas-stripping provision is being challenged in cases now heading to the Supreme Court.)   Justice Robert Jackson famously said in his opening statement to the International Military Tribunal at Nuremberg, “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.”  We would do well to remember his admonition.

Back to “Guantanamo” 

We know that the administration established the prison there on the theory that it was not U.S. territory and detainees would not be protected by U.S. or international laws requiring due process and humane treatment.  In essence, no law, no protections.  That theory was soundly rejected by the Supreme Court in Rasul, of course, and again in Hamdan.  Also, in large part as a result of the efforts of dedicated lawyers, military and civilian, and also because of legislative measures like the McCain Amendment, improvements have been made (but more on Monday about continuing concerns on detainee treatment).   Still, the administration may have got what it wanted, but not in the way that it wanted it. The reality is that Guantanamo is no longer completely lawless, but that may not matter for perception. 

Based only on my (non)survey:

• Every single person referred to torture or abuse as the first or second thing that came to mind about Guantanamo.  Some (most) specifically said “Torture.”  A couple of people reeled off specific techniques, including, to my surprise (a lesson learned about friendship and preconceptions), the metals trader from Delaware who recited: “waterboarding, deprivation, not allowed Korans, forced renditions, forced confession.”
• The next highest category (five people) responded with what I think of as “emotional words”:  “Wrong”, “Abhorrent”, “Horror”, “Frustration” [later explained as frustration with the U.S., that this was happening], “Shaming of America.”
• For about half the people, Guantanamo evoked “military”.  One expanded:  “There’s a social contract between people and the military.  They protect us, in a manner that protects our ideals.  We’re supposed to support them and protect them, not ask them to do things that are immoral or against what this country stands for.”
• The impact on the U.S. and its reputation was another common theme, with four people expressing variations (e.g. “Un-American,” “violation of every principle this country is built on”, “Pariah, I mean the U.S.’s behavior that’s led to international opprobrium, we’re outside the community of nations”).  It was the main response of my conservative friend:  “We stand for the universal rights of man, the idea of the city on a hill. . .[This is] not something Reagan would have approved of.  Not what Americans do.”
• And then there were the responses I think of as specific to the person: “Control” (the psychologist), “No value” (the investment banker), and “black” (the lawyer who, asked to explain, said “legal black hole”). 

You probably didn’t need my little exercise to tell you what you already know:  Guantanamo is a symbol of unfairness, of cruelty and it’s badly hurt the United States’ human rights reputation around the world.  But, on the eve of trials starting again, it might be interesting to think (and ask around) this weekend what “Guantanamo” evokes for you and your friends.

My responses?  Torture.  Indefinite and arbitrary detention.  Hamdan.  The detainees.  Gitmo-ize.

The Department of Homeland Security has abandoned a plan to embed arrival and departure forms carried by foreign nationals with a radio frequency identification (RFID) chip that would allow the forms to be automatically scanned at the border.  The proposed plan to implant the chip in such forms was intended to speed up processing of foreign nationals at the border, while also "ensuring that visitors who enter the country are the same ones who leave."  It was abandoned after a recent GAO report found that the chips often did not function properly, and that there was no way to ensure that the person carrying the chip at entry was the same person who carried it at departure.

The now-rejected plan to embed tracking chips in immigration forms was widely criticized by privacy groups, who warned that "[t]he slight timesaving benefits of RFID-enabled I-94 forms are heavily outweighed by the significant privacy and security risks."  RFID chips may be read by any person with a properly configured scanner, so privacy groups feared that private individuals would be able to identify foreign nationals on the street simply by scanning them for a chip.  Moreover, such a scan would reveal a unique ID number, which could allow someone with access to a government database to discover the "name, date of birth, gender, country of citizenship, passport number and country of issuance, complete U.S. destination address, arrival and departure information, a digital photograph, and digital fingerscans" of the person scanned.

In a unanimous decision, the Supreme Court of Canada struck down a law which permitted that country to detain terror suspects indefinitely without trial.  Under the Canadian Immigration and Refugee Protection Act, a non-citizen could be detained upon the request of two high-ranking Canadian ministers.  While this request was subject to review, that review could be conducted ex parte, and the suspect had no right to see the evidence against them.

In an opinion by Chief Justice Beverley McLachlin, the Court held that this law violates the Canadian Charter of Rights and Freedoms.  In so holding, the Court expressed concerns that reduced process for terrorism suspects could lead to "removal from Canada, to a place where his or her life or freedom would be threatened."  The Court cited one recent case where exactly this happened:

The potential consequences of deportation combined with allegations of terrorism have been under a harsh spotlight due to the recent report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Mr. Arar, a Canadian citizen born in Syria, was detained by American officials and deported to Syria. The report concludes that it is “very likely that, in making the decisions to detain and remove Mr. Arar to Syria, the U.S. authorities relied on information about Mr. Arar provided by the RCMP”, including unfounded suspicions linking Mr. Arar to terrorist groups: Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006) (“Arar Inquiry”), p. 30. In Syria, Mr. Arar was tortured and detained under inhumane conditions for over 11 months. In his report, Commissioner O’Connor recommends enhanced review and accountability mechanisms for agencies dealing with national security, including not only the Royal Canadian Mounted Police, but also Citizenship and Immigration Canada and the Canadian Border Services Agency. He notes that these immigration-related institutions can have an important impact on individual rights but that there is a lack of transparency surrounding their activities because their activities often involve sensitive national security information that cannot be disclosed to the public: A New Review Mechanism for the RCMP’s National Security Activities (2006), at pp. 562-65. Moreover, the sensitive nature of security information means that investigations lead to fewer prosecutions. This, in turn, restricts the ability of courts to guarantee individual rights: “Unless charges are laid, ... the choice of investigative targets, methods of information collection and exchange, and means of investigation generally will not be subject to judicial scrutiny, media coverage or public debate”

The Court added that national security concerns cannot allow fundamental freedoms to be stripped, even from non-citizens:

The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of s. 7. The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of s. 7 of the Charter. The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy s. 7, meaningful and substantial protection there must be.

Commenting on this decision, Canadian Minister of Public Safety Stockwell Day said "it is our intention to follow the Supreme Court ruling.”

by Ashley Ludwig, Editor-at-Large

In the wake of the terrorist attacks of September 11, 2001, there has been a heightened interest within the United States regarding the protection of ports and maritime security.  Much of the concern has centered on cargo container ships because of the ability to transport weapons of mass destruction into the United States, yet only a small fraction of the millions of containers entering the country each year are inspected.  Approximately 11 million oceangoing cargo containers arrive annually at seaports in the United States making it impossible to physically inspect each container without hampering the flow of commerce.  Therefore, Inspectors at overseas Container Security Initiative Ports (CSI) and at U.S. seaports, both use the Automated Targeting System (ATS) to access the risk associated with each container and to assist in determining which containers will undergo inspection.

This week, the United States signed a Declaration of Principles with the government of Panama to help prevent smuggling of nuclear and other radioactive material.  The Department of Energy’s National Nuclear Security Administration (NNSA) and the Department of Homeland Security’s (DHS) Customs and Border Protection (CBP) cosigned the declaration. The document covers implementation of NNSA’s Megaports Initiative and CBP’s Container Security Initiative, as both programs continue working together to stop nuclear material from being smuggled to U.S. ports.  Under the Container Security Initiative, officers from homeland security are stationed at key seaports abroad "to work with host governments to identify high-risk shipments bound for the United States and to examine these shipments prior to loading," the NNSA said. The initiative operates at 50 ports in North America, Europe, Asia, the Middle East, and North, South and Central America. About 83 percent of all cargo containers destined for U.S. shores originate in or are transshipped through such ports, according to officials.

by Daniel Kotler, Editor at Large

On January 31, 2007, a court in Munich, Germany issued warrants for the arrest of 13 CIA agents accused of kidnapping Khaled el-Masri, a German citizen, and bringing him to Afghanistan to be tortured as part of the United States's extraordinary rendition program. The United States has refused to cooperate with these warrants, and German prosecutor acknowledges that in practice it will be difficult to arrest the CIA agents, whose true identities are probably not known. El-Masri has also brought civil suit in the U.S. against several CIA employees; the case is currently at the US appellate court.

Germany is not the only country whose prosecutors have sought to bring the CIA to justice for alleged crimes against its citizens. Italian prosecutors have also sought indictments against CIA agents, though unlike Germany, Italian law permits trials in abstentia. Interestingly, Germany and Italy, like the U.S., have both refused to sign the recent UN treaty which would ban extraordinary rendition.

A Canadian citizen who was allegedly a victim of extraordinary rendition--and whose plight and innocence of terrorism connections were affirmed by a Canadian investigation--has also brought suit in the U.S. against the U.S. government.

The Nation of Canada has formally apologized to Maher Arar, a Canadian citizen who was deported to Syria by U.S. offiicials and tortured.  Canada also agreed to pay Arar a $10 million settlement to compensate him for his experience, lost work, and the future costs of post-traumatic stress syndrome.  Giuliano Zaccardelli, a former Canadian police commissioner, had previously resigned for giving misleading information to U.S. official which may have contributed to their decision to render Arar to Syria.

Conservative Prime Minister Stephen Harper's decision to issue the apology may widen the rift between the U.S. and Canada over Arar.  While Canada cleared Arar of any allegations of terrorist activity, U.S. officials continue to list him on a terrorist watch list over Canadian objections.

Recently, ACSBlog highlighted the case of Rahmani v. U.S., in which the Ninth Circuit held that a person charged with material support of a terrorist organization may not challenge the State Department's designation of the organization as terrorist. An amicus brief, filed by Congressmen Bob Filner (D-CA) and Tom Tancredo (R-CO) argues that, by designating the Mujahedin-e Khalq (MEK) as terrorists, the designation which is at issue in this case, the State Department exceeded its power under federal law.

According to the brief, Congress feared that, in enacting the law which allows the government to designate terrorist organizations and prosecute those who support them, it would abridge First Amendment rights by allowing the State Department to designate groups for purely political reasons. Such political opponents of the State Department would then be unable to raise funds from donors unwilling to risk a criminal conviction. Accordingly, the statute permits the government to only designate organizations who engage in certain violent practices, such as highjacking, assassination or use of a weapon of mass destruction. The brief argues that MEK engages in none of the practices permitting terrorist designation under the statute. Instead, its designation as a terrorist organization was part of a strategy to advance foreign policy goals:

In May 1997, Iran elected Mohammad Khatami, a reform-minded political moderate, as President. The U.S. regarded the change in leadership as an opportunity to reopen dialogue with Iran. As the group that the Iranian regime viewed as its most serious internal threat, Robert Collier, Exonerated in Terror Case, 4 Brothers Still Locked Up, S.F. CHRON., Jan. 25, 2005, at A1, the MEK was a natural pawn, and Iran reportedly demanded the designation as a prerequisite for engaging in diplomatic talks with the U.S., see James Morrison, Embassy Row: Backing Resistance, WASH. TIMES, July 27, 2006, at A14. In October 1997, the State Department complied with Iran’s demand and included the MEK on a list of designated FTOs. Shortly thereafter, a senior Clinton administration official indicated that the designation was intended as a “goodwill gesture” to Khatami and the Iranian regime.

This "politically motivated" designation, according to the brief, is not permitted under federal law. The brief concludes that MEK is a "legitimate political resistance," similar to the "Northern Alliance in Taliban-controlled Afghanistan, the African National Congress in apartheid-era South Africa, and Jewish armed resistance gruops in Nazi-controlled Europe."

by Geoffrey R. Stone, University of Chicago & William P. Marshall, University of North Carolina

The next time our government insists it needs to keep things secret from us, we should remember where we are today. From the day it took office, the Bush administration has wrapped itself in unprecedented secrecy.  It intentionally hid critical information about its deliberations and decisions from Congress, the courts, the press, and the American people. Those who attempted to investigate or disclose what the administration kept secret were attacked and discredited.
 

For a time, this strategy worked. Protected by a shroud of secrecy, the administration appeared competent and all-knowing. Armed with a monopoly on information, it countered criticism as “ill-informed.” And so, we went to war.
 

By almost all accounts, the war in Iraq has proved to be a disaster.  The sad truth is that if the American people had known what the members of the administration knew when they knew it, many frightful errors might well have been avoided. That is why we have the First Amendment.
 

As we learn more each week about the wrong turns, mistakes, and misjudgments that led us to our current dilemma, we should reflect on the role of openness in a democratic society. We must learn the lessons of this experience.

by Jonathan Ware, Editor at Large

During the 1991 Persian Gulf War the United States engaged 550,000 troops to liberateand secure Kuwait. Twelve years later, a force one-fourth that size was sent to liberate and secure Iraq, a country twenty-five times as large. Private military contractors (PMCs) are in part filling the void. PMCs, however, may exist in a regulation vacuum, capable of committing grave offenses without a clear means of holding them accountable. In light of this murky status, on November 3, 2006 the UN General Assembly called on the International Law Commission to consider the legal consequences of such groups.

Peter Singer, of the Brookings Institute, called the current situation with Iraq and PMCs, "Outsourcing the War," or, "more a 'coalition of the billing' than of the 'willing.'" For example, he points out that the ratio of PMCs to U.S. military personnel is now roughly 1:10, versus 1:100 in the 1991 war. Indeed, PMCs are second only to the U.S. military in terms of raw numbers of foreign personnel in Iraq and the ratio may now be as low as 1 to 3: in June 2006, the U.S. GAO reported an estimate that around 181 PMCs were employing 48,000 private security personnel in Iraq.

By Ashley Ludwig, Editor-at-Large

In a country where a sodomy conviction carries a penalty of life imprisonment, a Ugandan tabloid's decision to publish the names of alleged gays and lesbians is a chilling development that could be an indication of a government crackdown. On August 8, the tabloid paper belonging to a government minister, The Red Pepper published a list of first names, workplaces and other identifying information of 45 alleged gay men. The paper claimed it was publishing the list "to show the nation ... how fast the terrible vice known as sodomy is eating up our society." The paper at that time stated it planned to follow-up with a similar list of thirteen women they claimed were lesbians. On Sept 8, the paper fulfilled its promise. In at least three cases, Amnesty International received reports that people named by The Red Pepper subsequently suffered harassment from and were ostracized by colleagues and families.

Homophobic allegations in newspapers have previously led to police action in Uganda. In 2002, the Red Pepper ran banner headlines and photographs about an alleged wedding between two women. Kampala police promptly arrested the women in question. Although they were freed when an attorney intervened, they were jailed again and held for several days, allegedly for their own safety, after a mob threatened them. In addition, a Ugandan pastor who had counseled them was later forced to leave the country.

by Judge Richard Posner, United States Court of Appeals for the Seventh Circuit

I am sympathetic to Geof's proposal (though it doesn't go as far as I would like), but before discussing it let me register disagreement with three points, closely related to each other, that he makes:

1. I don't think the surrender of privacy to companies is based on ignorance. After all, Geof and I are among the surrenderers, and I daresay most members of the ACLU are as well. I think it's based, first, on the fact that Americans don't actually value privacy as much as the ACLU thinks, and, second and more interesting, that they don't worry a great deal about companies' invading their privacy because they realize that the purpose of the invasion is benign: it is to be able to sell consumers more products better matched to consumer preference. They do not have the same trust in the benignness of government surveillance. Nor should they, because consumer sovereignty does not describe the relation between government and the people. It is naïve to think that American-style democracy securely aligns popular preferences with the incentives of government officials and employees, whether in national security or any other domain of governmental activity. That is why I would couple extensive electronic surveillance with the two protective measures that I mentioned in my first post-forbidding use of intercepted communications for any purpose other than national security (and thus limiting, as Orin Kerr has proposed, the "plain view" doctrine of search and seizure law), and requiring that the details of each interception (who, why, what, and with what consequences) be reported periodically to watchdog committees in Congress, to the GAO, and to departmental inspectors general.

Professor Marty Lederman has harsh words for the new detainee treatment bill:

it only takes 30 seconds or so to see that the Senators have capitualted entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States," except that the bill itself would define certain "grave breaches" of Common Article 3 to be war crimes. Some Senators apparently are taking comfort in the fact that the Administration's interpretation would have to be made, and defended, publicly. That's a small consolation, I suppose; but I'm confident the creative folks in my former shop at OLC -- you know, those who concluded that waterboarding is not torture -- will come up with something. After all, the Administration is already on record as saying that the CIA "program" can continue under this bill, so the die apparently is cast. And the courts would be precluded from reviewing it.

Lederman concludes that "the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the 'no person may invoke Geneva' provision, are unconstitutional."

The following is a response by Professor Stone to Judge Posner's post, which is available here

Professor Stone:

I don't agree that the public "has already surrendered much of its communicative privacy by its profligate use" of modern means of technology that "create essentially indelible records" of our communications, purchases, etc. Certainly, it's true that most people have embraced cells phones, email, and the internet without paying much, if any, attention to the extraordinary invasions of privacy they make possible. But this will change once people come to understand how vulnerable they are. It's a bit like electronic bugging and wiretapping in the first half of the twentieth century. It took fifty years for courts and legislatures to begin regulating such conduct, but once people realized the danger, government electronic surveillance was declared unconstitutional and private electronic surveillance was declared unlawful. The same will happen with respect to the modern means of communication. Once people recognize the danger, they will insist on regulation. So, I wouldn't leap to the conclusion that the public has "surrendered" its privacy. We are merely in transition.

Judge Posner suggests that "the essential protection against governmental abuse" must lie in rules that (a) forbid use of the information "other than for national security purposes" and (b) require oversight by congressional committees and neutral agencies. Recent experience teaches that such safeguards are porous, at best. It is useful to recall that one of the bete noirs of the Bush administration was the so-called "wall" created by the Department of Justice to prevent information obtained in lawful foreign intelligence surveillance authorized by the FISA court from being used for anything other than national security purposes. The purpose of the "wall" was to allow the government special flexibility in foreign intelligence investigations without creating an incentive for the government to "cheat" by using FISA warrants for ordinary criminal investigations. The "wall" was one of the first safeguards abolished after 9/11 because it was attacked as perverse. Of course, it wasn't perverse at all. To the contrary, it served exactly the function that Judge Posner now urges. But the "wall" crumbled as soon as pressure was placed on the system. And oversight is hardly a panacea. Congressional oversight since 9/11 has turned out to be meaningless, at least at a time when the executive and legislative branches are in the same partisan hands.

Nonetheless, there is a compelling need for some form of surveillance that is broader than what would be permissible under a strict probable cause regime. In Not a Suicide Pact, Judge Posner offers an interesting suggestion: "Suppose that the National Security Agency's listening devices gathered the entire world's electronic communications traffic, digitized it, and stored it in databases, where it was machine-searched for clues to terrorist activity, but the search programs were designed to hide from intelligence officers all data that contained no clues to terrorist plans or activity."

The following is a response by Judge Richard Posner to Professor Stone's post, which is available here

Judge Posner:

There are broad areas of agreement between my good friend Geoffrey Stone and myself, but I will skip those and focus on our remaining areas of disagreement, following the order of his discussion.

With respect, I do not think that "restrictions of liberties should be a last resort." I prefer to see all proposed counterterrorist measures arrayed, and compared one with the other without a thumb on the scale. For example, if it were proposed to increase the number of FBI special agents tenfold and order them to follow on foot but at a discreet distance every Muslim in the United States suspected of terrorist sympathies, there would be no restriction of civil liberties, because there is no constitutional or statutory or common law right to be free from that mode of surveillance, whereas there are legal limitations on electronic surveillance. It would be odd to argue that the foot surveillance enjoyed a lexical priority to electronic surveillance in considering which proposed counterterrorist measures to adopt.

Civil liberties are valuable, but their values should be assessed in a practical, hard-headed way, rather than treated with quasi-religious veneration. Maybe David Hume went too far (though I don't think so) when he said that "The safety of the people is the supreme law. All other particular laws are subordinate to it, and dependent on it." But I am not prepared to die at the hands of terrorists in order to defend the Miranda rule, or Brady, or Burton, or Mapp, or Doyle, or the other arabesques that the Supreme Court in the Earl Warren era inscribed on the helpless text of the Constitution.

By Ashley Ludwig, Editor-at-Large

In the few short years since 9/11, The United States government has created an 'invisible' network of overseas prisons and detention centers into which thousands of suspects have disappeared without trace since the 'war on terror' began. US President Bush recently acknowledged the existence of secret CIA prisons and stated 14 top terrorist suspects have now been sent to Guantanamo Bay. Although President Bush only recently admitted the existence of secret prisons, there is evidence that the U.S. has been keeping thousands of detainees beyond the reach of established law for over five years.

This covert prison system at various times is thought to have included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents. Furthermore, there are numerous accounts of many of these detainees being subjected to torture and other mistreatment. For example, detainees in Kabul at various times between 2002 and 2004, called the facility the "dark prison" or "prison of darkness." Detainees reported they were chained to walls, deprived of food and drinking water, and kept in total darkness with loud rap, heavy metal music, or other sounds blared for weeks at a time.

by Geoffrey R. Stone, Harry Kalven, Jr. Distinguished Service Professor of Law, University of Chicago

A good deal has been made in recent days of the objections raised by Senators Lindsey Graham, John McCain, Olympia Snowe, and John Warner to President Bush's proposed legislation authorizing the use of military tribunals to try enemy combatants. I applaud the actions of Graham, McCain, Snowe, and Warner. What I find astonishing -- and deeply distressing -- is that other Senate Republicans have not rallied to their support.

Senators Graham, McCain, Snowe, and Warner have objected to several provisions of the Bush proposal, including those expressly authorizing the prosecution to use hearsay evidence, secret evidence, and evidence obtained by coercion involving degrading and inhuman treatment. Each of these proposals represents a profound and radical departure from the fundamental standards of fairness and decency that have long governed both criminal courts and military tribunals throughout the history of the United States. Each of them is legally, constitutionally, and morally unwarranted.

I will focus on what to most people probably seems the least shocking and most technical of these provisions -- the one governing the use of hearsay evidence. The logic of the objections to the provisions authorizing the use of secret evidence and evidence obtained by coercion involving degrading and inhuman treatment is self-evident and hardly requires explanation. What does require explanation is how the leaders of the executive branch -- and especially lawyers in the executive branch, could possibly believe them to be lawful. At least the hearsay provision arguably involves some measure of subtlety.

Senator Lindsay Graham (R-SC), a former JAG attorney, is alleging that the White House called several active duty JAG attorneys into a meeting and held them for five hours in an attempt to "force" them into signing a prepared statement supporting the White House's proposed detainee treatment bill. As ACSBlog reported earlier, the White House bill contains controversial provisions which would would strip courts of jurisdiction to hear Guantanamo detainee cases, limit process in military tribunals, prohibit detainees from asserting "any claims under the Geneva Conventions, or under international law," and which would amend the War Crimes Act to permit certain forms of torture. Senator Graham is co-sponsoring an alternative bill which excludes some of these controversial provisions.