1. Two more GTMO transfers
Press release: United States Transfers Two Guantanamo Bay Detainees to Kuwait and Belgium
Excerpt (note that the al Mutairi transfer follows an earlier ruling in his favor in a habeas proceeding): The Department of Justice today announced that two detainees have been transferred from the detention facility at Guantanamo Bay to the control of the governments of Kuwait and Belgium.
As directed by the President’s Jan. 22, 2009 Executive Order, the interagency Guantanamo Review Task Force conducted a comprehensive review of each of these cases. As a result of that review, these detainees were approved for transfer from Guantanamo Bay. In accordance with Congressionally-mandated reporting requirements, the Administration informed Congress of its intent to transfer each of these detainees at least 15 days in advance.
Khalid Abdullah Mishal al Mutairi, a native of Kuwait, was transferred to the Government of Kuwait. On July 29, 2009, a federal court ruled that al Mutairi may no longer be detained under the Authorization for the Use of Military Force (AUMF) and ordered the government to release him from detention at Guantanamo Bay.
Another detainee was transferred from Guantanamo Bay to the Government of Belgium. Pursuant to a request from the Government of Belgium, the identity of this individual is being withheld for privacy reasons.
2. House passes Conference Report on Defense Authorization Act, including the Military Commissions Act of 2009 (and a range of other interesting provisions)
As you may recall, the Senate version of the Defense Authorization Act contained military commission revision provisions, whereas the House version did not. The issue has been in conference for quite a while, but it’s now moving forward. The Conference Report (H. Rept. 111-288) contains a revised version of the legislation updating the Military Commissions Act of 2006, under the heading of, well, the Military Commissions Act of 2009 (henceforth we’ll have to speak of the MCA 06 and the MCA 09). The House passed the package yesterday by a vote of 281 to 146. It is full of interesting provisions, key ones listed below. I’m attaching the corresponding text of these sections in a Word document attached to this message, weighting in at about 39 pages thanks to the MCA 09. If anyone has or plans to generate a document that pithily identifies how MCA 09 differs from MCA 06 (or from the original Senate bill, for that matter), I’ll be happy to pass that on to the list (with or without attribution as you prefer); I’m sure many list members would very much appreciate it. Also, if you want to draw attention to something else in the bill not mentioned here, feel free to contact me with suggestions for a follow-up post.
Here are the items that I include in the attached document:
Sec. 1031. Prohibition relating to propaganda.
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Sec. 1038. Prohibition on interrogation of detainees by contractor personnel.
Sec. 1039. Notification and access of International Committee of the Red Cross with respect to detainees at Theater Internment Facility at Bagram Air Base, Afghanistan.
Sec. 1040. No Miranda Warnings for Al Qaeda Terrorists.
Sec. 1041. Limitation on use of funds for the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba.
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Sec. 1080. Requirement for videotaping or otherwise electronically recording strategic intelligence interrogations of persons in the custody of or under the effective control of the Department of Defense.
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Sec. 1221. Limitation on availability of funds for certain purposes relating to Iraq.
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Sec. 1234. Authority to transfer defense articles and provide defense services to the military and security forces of Iraq and Afghanistan.
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Sec. 1237. No permanent military bases in Afghanistan.
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TITLE XVIII-MILITARY COMMISSIONS
Sec. 1801. Short title.
Sec. 1802. Military commissions.
Sec. 1803. Conforming amendments.
Sec. 1804. Proceedings under prior statute.
Sec. 1805. Submittal to Congress of revised rules for military commissions.
Sec. 1806. Annual reports to Congress on trials by military commission.
Sec. 1807. Sense of Congress on military commission system.
3. Forthcoming Scholarship
“An Insurrection Act for the 21st Century”
THADDEUS HOFFMEISTER, University of Dayton School of Law
Email: hoffmeister9@hotmail.com
Throughout America’s history there has been a fundamental disagreement over how best to deal with large scale civil disorder within the United States. Whether brought about because of natural disaster, riot, rebellion, public health emergency or terrorism, Americans have disagreed on who should manage the civil unrest associated with a domestic emergency. More specifically, they differ, especially when military intervention is required, over whether the state or federal government should take the lead in responding to these crises.
Lately, it appears that the pendulum has swung in favor of increased federal government involvement, especially with respect to providing a larger role for the Active Duty military. This paradigm shift, one that is unlikely to reverse itself in the near future, is due to a variety of modern day factors: 9/11; increased foreign deployments of the National Guard; Hurricane Katrina; and the amplified threat of a future large scale terrorist attack either in the U.S. or abroad. One consequence of this shift in policy is a renewed interest in the Insurrection Act, which is the focus of this Article. As some are aware, the Insurrection Act is the principal authority relied upon by the President to deploy Active Duty troops domestically to respond to civil disorder. The Insurrection Act is an exception to the Posse Comitatus Act which has historically restricted the use of the Active Duty military within the United States.
This Article provides a broad overview of the Insurrection Act to include examining the most recent effort to modify the statute, the Enforcement of the Laws to Restore Public Order Act (“Enforcement Act”), which was repealed in 2008. This Article suggests that the Enforcement Act, passed in response to the government’s shortcomings during Hurricane Katrina, was not in the strictest sense a power grab by the Executive Branch. Rather, the Enforcement Act provided, in many instances, much needed clarity to the Insurrection Act and offered benefits to both states and the President.
In addition, this Article asserts that the Enforcement Act if in effect in 2005 would not have necessarily improved the government’s response to Hurricane Katrina. This is because the Enforcement Act, like the Insurrection Act, failed to address one of the major practical problems associated with the domestic deployment of the military, public opinion. This concern over how the public views the domestic use of Active Duty troops was a driving force in why the Insurrection Act was never invoked during Hurricane Katrina.
The Article concludes by offering possible solutions to minimize the negative impact of public opinion. In addition, the Article examines other possible improvements to the Insurrection Act not previously addressed by the Enforcement Act. The goal of this Article is to further the debate and come up with an improved, updated Insurrection Act that addresses both current and future challenges that are sure to arise as this country grows increasingly reliant on the Active Duty military for homeland security.