1. In re: Petitioners Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantanamo Bay (D.D.C. Oct. 9, 2009)
I had not been following this until now, but there is an effort underway to preserve habeas jurisdiction with respect to a large number of GTMO detainees who already have been transferred/released. I believe some of the district judges have dismissed the petition in this circumstance, but in any event there is a large cluster of such petitions pending before Judge Hogan. The issues were briefed to him back in February, but in this short order he notes that a lot has happened since then and directs further briefing on the question of how the arguments might change if the petitioners’ habeas rights are understood to be statutory in nature. It will be interesting to see what happens down the road with this one.
2. Link for Conference Report on the Defense Authorization Act
Further to last week’s post on the Defense Authorization Act, the full report (600+ pages) is here.
3. Forthcoming Scholarship
“The Dispensable Lives of Soldiers”
GABRIELLA BLUM, Harvard Law School
Email: gblum@law.harvard.edu
The laws of war, under their current interpretation, divide up populations into two classes – that of civilians and that of combatants – and accord each its own set of privileges and obligations. Taken together, the legal principles of military necessity and distinction strike up a bargain by which combatants are to be sacrificed for the protection of civilians. Under this bargain, all soldiers are fair game, regardless of their role, function, or the degree of threat they pose at any particular moment. Consequently, the killing of retreating soldiers in Iraq, military the attack on officials meeting in Korea or shooting soldiers playing soccer in Bosnia – are all legitimate military operations.
This paper challenges the status-based distinction of the laws of war, which has so far been widely accepted by international law scholars, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. My argument stems from a recognition of the value of all human life, including that of enemy soldiers. I argue that the changing nature of wars – the decline in the importance of any generic ‘combatant,’ the growing civilianization of the armed forces, and the advance in technology – casts doubts on the necessity of killing all enemy soldiers indiscriminately.
I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible.
I discuss the practical and normative implications of adopting these amendments, suggesting some possible legal strategies of bringing them about.
“Suspicionless Searches and the Prevention of Terrorism”
JOHN IP, University of Auckland – Faculty of Law
Email: j.ip@auckland.ac.nz
This paper considers the stopping and searching of people on a suspicionless basis for the purpose of interdicting terrorist activity. Such stops and searches are an example of “all risks” policing, which focuses on threats and vulnerabilities: everyone is considered a potential risk. All risks policing is a reaction to a situation where traditional markers such as nationality and citizenship are no longer reliable indicators of potential threat, as the involvement of citizens and long-term residents in recent terrorist attacks and plots in the United States and United Kingdom would demonstrate.
The discussion is based around two cases. The first, MacWade v Kelly, concerned a challenge to suspicionless searches of subway passengers under the New York City Police Department’s Container Inspection Program. The second, R(Gillan) v Commissioner of Police for the Metropolis, concerned a challenge to an exceptional suspicionless search power under British counterterrorism legislation.
The paper first outlines these two cases and their respective legal context. It then discusses several issues that arise out of the two cases. The first is how people are selected for the extra scrutiny. The second is the tendency for concerns about the risk of terrorism and the need to prevent terrorist acts to overwhelm any countervailing concerns. The third is the problem of normalization.
“The Constitutional Limits to Security at UN and EU Level”
Constitutional Limits to Security: Proceedings of the 4th Vienna Workshop on International Constitutional Law, pp. 21-42, 2009
KIRSTEN SCHMALENBACH, University of Graz – Faculty of Law
Email: kirsten.schmalenbach@uni-graz.at
Targeted or “smart” sanctions directed against named individuals – such as those established by Security Council Resolution 1267 (1999) in the fight against al-Qaeda – have evolved into a mainstay of the United Nations’ (UN) collective security system, particularly in the fight against terrorism. With the Kadi appeal judgment, the European Court of Justice (ECJ), overruling the Kadi and Yusuf/Al Barakaat case-law of the European Court of First Instance (CFI), has defined the relation between EU and UN law in a classic dualistic way which is usually charactistic of nation-states. The Court also sent a message to the UN, proposing a secure transfer of information as a solution for the lack of effective human rights in the UN sanctions regime. However, it is questionable whether this could sufficiently replace an independent review system at the UN level.
“The Dark Side of the Band of Brothers: Explaining Variance in War Crimes”
APSA 2009 Toronto Meeting Paper
CHRISTI L. SIVER, University of Washington
Email: chsiver@u.washington.edu
On July 25, 1950, an American infantry unit killed a large number of refugees near the South Korean village of No Gun Ri. On December 12, 1948, a British patrol killed twenty-five civilians near the Malayan village of Batang Kali. On March 16, 1993, members of the Canadian Airborne Regiment beat a Somali teenager to death. While each event is horrific, they also represent only one side of the story; many units in these conflicts, facing similar threats, did not kill civilians. This variation raises a critical question: why do some units participate in war crimes while other do not?
To answer this question, I tested three explanations: socialization in the laws of war, civilian influence, and unit subcultures. First, I examined the military’s training and enforcement of the laws of war to test whether socialization could explain this variation. Second, I analyzed the influence of civilian leaders. If they exaggerate the importance of a conflict or dehumanize the enemy, units may be more likely to participate in war crimes. Third, I examined the role of unit subcultures. Units may develop beliefs that challenge organizational norms and encourage participation in war crimes. I tested these arguments in case studies of the Korean War, the Malayan Emergency, and the Canadian peacekeeping mission in Somalia. Each conflict provides variation in outcomes: some military units complied with the laws of war and others did not.
Based on extensive archival research, I reached three conclusions. First, while the American, British and Canadian militaries as institutions inadequately trained soldiers in the laws of war, junior leaders could compensate and insure compliance with international law. Second, I found that civilian signaling had little effect: soldiers did not trust the statements of civilian leaders. Third, my research revealed that countercultural subcultures may increase the likelihood that units participate in war crimes. These countercultural beliefs have the greatest effect when junior leaders also support them or when junior leaders cannot control the unit. In these circumstances, junior leaders over reliance on punishment fuels the in-group-out-group dynamic that strengthens the subculture.
Hastings Law Journal, Forthcoming
BRIAN GALLINI, University of Arkansas Law School
Email: bgallini@uark.edu
Nearly all confessions obtained by interrogators nationwide are inadmissible, but nonetheless admitted. In the process, police arrest the wrong suspect and allow the guilty to go free. An unshakeable addiction to pseudo-scientific interrogation methods – initially created in the 1940s -is to blame. The so-called ‘Reid technique’ of interrogation was initially a welcome and revolutionary change from the violent ‘third degree’ method it replaced. But, we no longer live in the 1940s and, not surprisingly, we no longer drive 1940s automobiles, practice early twentieth century medicine, or dial rotary phones. Why, then, are police still using 1940s methods of interrogation?
Moreover, the outdated Reid technique was premised on the very same principles that underlie the lie detector. At the time of its creation, then, the Reid technique was crafted from a ‘science’ already discredited by nearly every court in the nation. From a policy standpoint, continued reliance on the Reid technique does a disservice to our justice system and unnecessarily risks obtaining inherently unreliable confessions. From an evidentiary standpoint, the methodology underlying the Reid technique fails every aspect of the Supreme Court’s standards governing the admission of expert evidence. This Article therefore contends that all confessions obtained pursuant to the Reid method are – and were – absolutely inadmissible.
“Rights, Remedies, & Habeas Corpus – The Uighurs, Legally Free But Actually Imprisoned”
CAPRICE L. ROBERTS, Catholic University of America Columbus School of Law, West Virginia University College of Law
Email: robertsc@cua.edu
For more than seven years, the Uighurs – Turkic Muslims who fled persecution in China only to be sold by Pakistani officials to the U.S. military for a bounty – have languished in the detainment facility in Guantánamo Bay, Cuba. Early on, the U.S. government admitted that the Uighurs are not enemy combatants. This summer, four Uighurs finally received extrajudicial relief and now reside in Bermuda; five secured release to Albania in 2006. Thirteen Uighurs remain confined at Guantánamo with their legal issues unresolved.
Boumediene v. Bush extends the privilege of habeas corpus to detainees held in the U.S. Navy facility at Guantánamo. The Supreme Court did not articulate a clear remedy for detainees who have established a habeas violation. Any precedential value of Boumediene has been hollow for the Uighurs. The federal judiciary, in Kiyemba v. Obama, abdicated its power and denied the release remedy to the Uighurs despite their proven habeas violation. The court applied a harsh body of immigration cases, which do not fit the Uighurs‘ factual posture, to bar the federal judiciary from remedying the wrong.
This article offers a theory of federal court jurisdictional and remedial power that properly balances the competing interests of Congress, the Executive, and detainees. In times marked by asymmetric lines of conflict, the federal judiciary must be watchful of political branch power grabs and should lean in favor of exercising jurisdiction and tailoring an appropriate remedy. Only then will the rule of law and appropriate checks and balances be restored for the American government and justice ensured for groups like the Uighurs.