Archive for May, 2010

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GTMO Detainee Review Complete; Political Fight Looms

Friday, May 28th, 2010

No time now for any analysis, but the Washington Post has a good piece on it.  Among other key excerpts:

About 10 percent of the 240 detainees held at Guantanamo Bay, Cuba, when President Obama took office were “leaders, operatives and facilitators involved in plots against the United States,” but the majority were low-level fighters, according to a previously undisclosed government report. About 5 percent of the detainees could not be categorized at all.

The final report by the Guantanamo Review Task Force recommends that 126 of the detainees be either transferred home or to a third country; that 36 be prosecuted in either federal court or a military commission; and that 48 be held indefinitely under the laws of war. A group of 30 Yemenis was also approved for release if security conditions in their home country improved.

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It remains unclear if the administration can now gain enough support on Capitol Hill to move forward with its plans to buy a state prison in Illinois to replace Guantanamo, where 181 detainees remain. Key committees in both the House and Senate this month introduced language into defense bills that would bar funding for any such facility in the United States.

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The report said those recommended for indefinite detention had significant roles in al-Qaeda or the Taliban and advanced training or expertise. It also noted that “some detainees designated for detention have, while at Guantanamo, expressly stated or otherwise exhibited an intent to reengage in extremist activity upon release.”

Enjoy your weekends!

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UN To Apply Pressure to Stop Drone Killings

Friday, May 28th, 2010

The N.Y. Times reports, in an interesting article, that the United Nations is going to call on the United States to stop using unmanned aerial vehicles (UAVs) against suspected members of al Qaeda.  Such pressure would not be legally binding, and is probably unlikely to put a stop to the military tactic.  However, it could certainly deal a blow to President Obama’s national security strategy, which relies heavily on efforts to adhere to international norms.

Harold Koh, the Legal Adviser to the State Department and the former Dean of Yale Law School, gave a great speech at ASIL’s annual meeting; during that speech, he laid out the foundation for a legal argument concerning the legality of UAV strikes both within and external to active combat zones.   Such strikes are almost certainly legal if the targets are in fact engaged in an armed conflict against the U.S.  As Koh noted, “a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”

Some potentially serious problems with the UAV program are discussed in greater detail, after the jump.

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House Votes To Repeal Don’t Ask Don’t Tell

Thursday, May 27th, 2010

CNN reports that Representative Murphy (D-PA) pushed for a vote on the revised language, and it passed the House tonight, 234-194.

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Don’t Ask Don’t Tell On Verge Of (Sort Of) Repeal

Thursday, May 27th, 2010

This post is a submission from John Power Hely VI, a recent graduate of Columbia Law School and a former United States Marine.

The New York Times reports that “The Senate Armed Services Committee on Thursday voted to let the Defense Department repeal the ban on gay and bisexual people from serving openly in the military.”

Servicemembers United, the Servicemembers Legal Defense Network, Rep. Murphy (D-PA), Sen. Lieberman (D-CT), and others met at the White House early this week to discuss the fact that repeal seemed to be going forward despite Secretary Gates’ desire to wait until the Pentagon Working Group report issues in December.  In order to secure passage through the Committee, the drafters crafted “compromise language,” which some applaud but others believe renders the bill toothless.

The compromise language repeals Don’t Ask Don’t Tell (10 U.S.C. 654) itself, but without drafting any nondiscrimination language to replace it.  This returns absolute authority to the Pentagon, essentially winding back the clock to 1992. The compromise language requires that the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff all confirm that any repeal plan would not adversely affect military readiness prior to enacting such a plan.  In order to get the vote of Sen. Byrd (D-WV), a possible blocking vote on the Senate Armed Services Committee, an amendment to the compromise language was created, giving Congress 60 days to review the repeal plan before it went into effect.

Find out what the compromise does NOT do, after the jump…

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The New National Security Strategy

Thursday, May 27th, 2010

Over at The Atlantic, Marc Ambinder has his take on Obama’s new National Security Strategy. Worth reading.

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Maqaleh Analysis – No Habeas at Bagram

Tuesday, May 25th, 2010

The Obama administration won an important victory on Friday when a 3-judge D.C. Circuit panel unanimously held that habeas rights would not be extended to enemy combatants held at the Bagram detention facility in Afghanistan.  The ruling overturned a district court’s decision finding that Boumediene’s holding allowing habeas challenges by prisoners at Guantanamo Bay extended to Bagram.  The decision is likely to be appealed to the Supreme Court but it is very possible that it will not be reviewed.

The Circuit distinguished the hypothetical extension of habeas rights to Bagram facility, which unlike Guantanamo Bay, is located in a theater of war.  The detainees bringing the case were two Yemenis (Fadi Al-Maqaleh and Amim Al-Bakri) and one Tunisian (Redha Al-Najar); each of them alleged that they were captured outside Afghanistan’s borders.  The case posed the important questions of how far the constitutional right to challenge executive detention extends beyond U.S. shores in light of the Boumediene and Eisentrager Supreme Court decisions, and how such an extension would affect military operations and U.S. bases around the world.

The Circuit Court’s analysis looked closely at the nature of the Bagram facility. Bagram Airfield Military Base is the largest military facility in Afghanistan that is occupied by U.S. and coalition forces.  U.S. presence at Bagram is made possible by a leasehold between the U.S. and the Afghan government.  Other nations in the coalition have compounds at the base but the U.S. provides overall security. The Circuit Court rejected the extreme positions of both the government and the detainees’ lawyers to adopt a kind of middle ground position regarding the interpretation of Boumediene in the context of Bagram.  The panel rejected arguments by the Government that the lack of total sovereignty at Bagram defeated the extension of habeas in and of itself, but also rejected the detainees’ argument that de facto control over the base ensured habeas protection.

More detailed analysis of the Maqaleh decision, after the jump.

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Al Maqaleh Decision

Friday, May 21st, 2010

A decision has been reached in the Al Maqaleh case.  Al Maqaleh had been trying to extend habeas rights to Bagram.  Judge Bates of the District of D.C. had granted his petition, but was just reversed by the D.C. Circuit.

The full opinion is available here.

We should be able to post some analysis soon, but wanted to get this up ASAP.

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D.N.I. Blair To Resign

Thursday, May 20th, 2010

The Office of the Director of National Intelligence, Admiral Dennis Blair, posted a brief statement on its website:

STATEMENT FROM DIRECTOR DENNIS C. BLAIR TO THE ODNI AND INTELLIGENCE COMMUNITY WORKFORCE


It is with deep regret that I informed the President today that I will step down as Director of National Intelligence effective Friday, May 28th.

I have had no greater honor or pleasure than to lead the remarkably talented and patriotic men and women of the Intelligence Community.

Every day, you have worked tirelessly to provide intelligence support for two wars and to prevent an attack on our homeland.

You are true heroes, just like the members of the Armed Forces, firefighters, and police whose job it is to keep our nation safe.

Your work over the past 16 months has made the Intelligence Community more integrated, agile, and representative of American values.  Keep it up – I will be cheering for you.

Dennis C. Blair

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Mexican President Calls for Assault Weapon Ban

Thursday, May 20th, 2010

The N.Y. Times reports that Mexican President Felipe Calderón, in addressing Congress, issued an impassioned plea for the United States to renew its ban on assault weapons.  Calderón reportedly decried the new Arizona immigration law as well.

Although Calderón’s struggles containing the horrific drug war in Mexico have been relatively well-publicized, the problem is largely considered to be a Mexican problem  with only spillover effects on the United States.  However, Calderón correctly notes that most of the weapons captured from Mexican cartel soldiers have been produced in and smuggled from the United States.

On the gun question, Mr. Calderón said: “We have seized 75,000 guns and assault weapons in Mexico in the past three years, and more than 80 percent of those we have been able to trace came from the United States.”

He said it did not seem coincidental that violence in Mexico had begun to grow in 2006, not long after the weapons ban expired in the United States. Drug-related killings are estimated to have approached 23,000 since Mr. Calderón began a war on trafficking that year.

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Comstock Case Augments Federal Detention Authority

Wednesday, May 19th, 2010

This article comes from a recent Harvard Law School grad who has asked to remain anonymous.

In a move with potential national security implications, the Supreme Court in Comstock has given its constitutional blessing to the federal government’s attempt to do what the state governments have been doing since Kansas v. Hendricks – civilly commit sex offenders after their terms of imprisonment when a court finds that they are sexually dangerous. A ruling primarily concerned with questions of federalism, Comstock’s interpretation of the powers afforded Congress under the Necessary and Proper Clause places it alongside Gonzales v. Raich as the nail in the coffin to Rehnquist’s federalism revolution (see Volokh Conspiracy, A Few Thoughts on the Comstock Case).

Over at Slate, Dahlia Lithwick worries that a likely consequence of this view of federal power is acceptance of the positions of the Bush and Obama administrations on the indefinite preventative detention of terrorism suspects.  According to Lithwick, “the Supreme Court has just handed Congress broad authority to detain people merely because they show signs of future dangerousness.”

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