Obama Advisors Craft Plan for Gitmo Detainees

The Associated Press is reporting that the Obama administration plans to close the Guantanamo Bay detention center and bring suspected terrorists to the U.S. for trial.

Under the plan being crafted inside Obama's camp, some detainees would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials. But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases. Many of the about 250 Guantanamo detainees are cleared for release, but the Bush administration has not able been to find a country willing to take them.

Not all Democrats are on board with creating a new legal system for the detainees. And Republicans such as Senate Judiciary Committee member John Cornyn of Texas believe that treating terrorism as a mere crime would be a "colossal mistake."

According to the senator, "It would be a stunning disappointment if the one of the new administration's first priorities is to give foreign terror suspects captured on the battlefield the same legal rights and protections as American citizens accused of crimes." Sen. Cornyn added that the Senate overwhelmingly passed a nonbinding resolution last year opposing bringing detainees here. Obama failed to vote on the resolution, however.

Leaving aside the politics, campaign promises, and the symbolism, as a practical matter is it really a good idea from a security standpoint to bring these detainees to the U.S. mainland? Given the existing security problems within America's overcrowded jails, do we want these individuals mixing with the general prison population? Would those terror suspects found not guilty then be released into the local community? It's all well and good to advocate "change," but protecting the American people must remain the highest priority.

The procedures for conducting the trials themselves raises a host of practical problems, as the AP article indicates: "Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses, meaning undercover CIA officers or terrorist turncoats might have to take the stand, jeopardizing their cover and revealing classified intelligence tactics."

According to an July 2007 account in the Australian press, at least at least 30 former Guantanamo Bay detainees have been killed or recaptured after apparently resuming their terrorist activities following their release.

Court Blocks Release of 17 Detainees

On October 7, U.S. District Court Judge Ricardo M. Urbina, relying on the Supreme Court's Boumediene decision, ordered the release of 17 ethnic Chinese Muslims, known as Uighurs, from their Guantanamo Bay incarceration. The judge's order required the government to set the detainees free on U.S. soil. In fact, the judge ordered the men brought to his D.C. chambers so he could essentially release them personally. Some of the men received weapons training at Afghan camps affiliated with al Qaeda or the Taliban and were captured near Tora Bora in 2001 or 2002. While they are apparently no longer considered enemy combatants, their legal status remains in limbo. According to the Wall Street Journal...

They exist in a legal netherworld, however, because no one will accept custody. The U.S. will not repatriate the Uighurs to China, where they are considered separatists and are likely to be imprisoned, or worse. Five were released to Albania in 2006, but the State Department has not been able to persuade other countries, which fear reprisals from Beijing, to take in the rest. While their situation is unfortunate, the choice is between continuing to hold them at Gitmo in special housing or releasing them here.

The judge's order was short lived. Following an emergency appeal by the Justice Department, the U.S. Court of Appeals for the District of Columbia Circuit temporarily reversed ("stayed" in legal terms) Judge Urbina's order the next day. On October 20, a three-judge panel on the court ruled in a 2-1 decision that the men would continue to be held in custody in Gitmo pending oral arguments before all 12 D.C. Circuit judges on November 24. This is called an "en banc" hearing. The text of the opinion is not yet available online.

In legal papers, lawyers for the detainees said that no harm will come to the public and certainly no irreparable harm to the government should the prisoners be set free. ("Irreparable harm" is the legal measuring stick used to determine the appropriateness of an court-ordered injunction or restraining order.)

The Journal article opines that given the approximately 270 remaining Gitmo detainees who are or will be challenging their detention in federal court, "in some ways this case is unique, though that does not make Judge Urbina's decision--and the precedent it sets--any less dangerous...the practical question is: What happens to such terrorists if they're cleared for release by the likes of Judge Urbina? If no country will accept them, the real possibility exists that they will be released domestically. Judge Urbina's decision certainly makes that more probably, even if it is disguised in the exceptional, hard-luck case of the Uighurs."

Judge Urbina is a Clinton appointee. As the choice of a new President looms, it's worth keeping in mind that when it comes to the nomination and confirmation of federal judges in particular, elections have consequences.

Court Upholds Alien Monitoring Program

In a decision released today, a federal appeals court said that the post-911 "Special Call-In Registration Program" for non-immigrant aliens was lawful. The now-suspended program (see DHS fact sheet) required males over age 16 from 24 majority Muslim countries, plus North Korea, who had not qualified for permanent residence, to appear before immigration authorities for registration, fingerprinting, and to submit documents to prove they were here legally. Four individuals who Immigration Judges and the Bureau of Immigration Appeals had deemed deportable (i.e., they were determined to be illegal aliens) challenged the program on constitutional, statutory, and procedural grounds. In a 44-page decision in Rajah et al. v. Mukasey, the Manhattan-based U.S. Court of Appeals for the Second Circuit rejected their claims. "The September 11 attacks were facilitated by violations of immigration laws by aliens from predominantly Muslim nations. The Program was clearly tailored to those facts," the court wrote. One of the men will get a new hearing on his deportation order, however.

Will Hamdan Be Cut Loose?

Salim Hamdan, otherwise known as Guantanamo Bay detainee #149, became the first war-crimes defendant tried by the a U.S. military commission since World War II. About a month ago, the military tribunal convicted him of providing material support to terrorism, but acquitted him on more serious charges of conspiracy to commit terrorism. His sentence was 5-1/2 years in prison (prosecutors sought 30 years to life), and with time served, he will become eligible for release in early January 2009.

The six-member military jury found the evidence did not support prosecution claims that Hamdan, who was Osama bin Laden's driver, was a hard-core terrorist rather than a low-level functionary in al Qaeda's motor pool. Hamdan was also the plaintiff in the 2006 Hamdan v. Rumsfeld case in which the Supreme Court declared that the president's military tribunal's were unlawful in that they violated the Uniform Code of Military Justice and the Geneva Convention. In the fall of 2006, Congress passed the Military Commissions Act which crafted new rules for such tribunals. There has been no shortage of legal wrangling over the treatment and status of enemy combatants, most recently in the form of the Boumediene v. Bush case, decided June 12, 2008, where the Supreme Court ruled in a 5-4 decision that constitutionally guaranteed right of habeas corpus review applies to persons held in Guantanamo and to persons designated as enemy combatants on that territory. In other words, Gitmo detainees can file habeaus corpus petitions in civilian court to challenge their detention.

Jonathan Mahler, author of a book about the Hamdan case, writes that "It remains unclear whether he was a dedicated lieutenant of bin Laden's-'a body man for bin Laden,' as one of the government lawyers once described him to me--or, as his defense lawyers claim, little more than a lowly foot soldier."

But numerous news outlets have reported that Hamdan, a Yemini national, won't be going home anytime soon. According to the Wall Street Journal ...

The Bush administration maintains it can hold prisoners classified as unlawful enemy combatants, such as Mr. Hamdan, indefinitely. Under this policy, Mr. Hamdan won't necessarily be released when his sentence ends. Rather, the government may decide to continue imprisoning him on grounds that he remains a threat.

Court Rejects 9/11 Lawsuit against Saudis

A federal court has dismissed a lawsuit by the powerhouse Philadelphia Cozen O'Connor law firm that sought money damages from Saudi Arabia's government and several senior Saudi officials for their alleged involvement in 9/11. Brought primarily on behalf of insurers who have paid out billions in ground zero claims, the lawsuit alleged that the Saudi government and the named officials provided financial and logistical support to Al Qaeda in the run-up to the attacks.

The Manhattan-based U.S. Court of Appeals for the Second Circuit ruled that the defendants were "immune" from the lawsuit under the Foreign Sovereign Immunities Act, which generally prevents foreign governments and their officials from being sued in U.S. courts. The FSIA law provides an exception from the immunity provisions for state-sponsored terrorist acts, however. Despite the belief among many intelligence observers that the Saudis are heavily involved in terrorism funding, the U.S. State Department (for geopolitical or other reasons) has never designated Saudi Arabia as a state-sponsor of international terrorism. As a result, the court ruled that it lacked "subject matter jurisdiction" over the case.

According to the court, "Although the FSIA did open an an avenue of redress for certain individual victims of state-sponsored terrorism, it did not delegate to the victims, their counsel and the courts the responsibility of the executive branch to make America's foreign policy response to acts of terrorism committed by a foreign state, including whether federal courts may entertain a victim's claim for damages." The case is In Re Terrorist Attacks on September 11, 2001, Docket No. 06-0319-cv(L), 8/14/08.

The three-judge panel made no factual findings per se in the case; its opinion was based merely on what amounts to a "mechanical" application of a federal statute. Although the mainstream media often fails to explain this to the public, courts often duck or postpone the big issues presented by a case by ruling on more narrow, procedural grounds.

For now, the defendants are off the hook. But the plaintiffs are considering appeal to the U.S. Supreme Court, or perhaps a request for a rehearing in front of the full Second Circuit bench. In the meantime, claims against other defendants, such as the Saudi-owned National Commercial Bank, are apparently still active; shortly after the appeals court ruling, Cozen O'Connor filed for additional "discovery" (i.e., requests for documents and other information) from the bank.

A summary of the lawsuit's extensive procedural history can be found here.

New FBI Investigation Guidelines

The New York Times is reporting that the U.S. Justice Department has a tentative plan to allow FBI agents "to open a national security or criminal investigation against someone without any clear basis for suspicion."

The plan has not yet been made public, but Congress received a private briefing about it in July. In a August 20 letter to Attorney General Michael Mukasey, four Senate Democrats claim that the plan "might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on First Amendment activities."

However, Attorney General Mukasey gave a speech last week in which he indicated that the FBI would still need a valid purpose to investigate and that the proposal "clarifies the rules by which the FBI conducts its intelligence mission."

The AG is scheduled to respond to lawmakers' questions about the plan at a September 17 Congressional hearing. The guidelines are on hold until then.

Separately, President Bush has issued a very detailed Executive Order (as a revision to an earlier White House pronouncement) clarifying and perhaps expanding the cooperative roles and obligations of the various intelligence agencies in counter-terrorism activities. Among other things, it gives (or reaffirms) the Director of National Intelligence overall responsibility for ensuring a network of relationships, guidelines, procedures so that U.S. intelligence activities overseas and at home (including at the state and local levels) get coordinated, de-conflicted, and integrated. The order specifically states that "The United States Government has a solemn obligation, and shall continue in the conduct of intelligence activities under this order, to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law."

Sen. McCain on Privacy vs. Security

During last night's presidential forum at Saddleback church (which was televised by CNN), Rick Warren asked Senator McCain what takes precedence when the right to privacy and the right to national security collide. The Senator responded as follows:

It does collide and there are always competing priorities. We must preserve the privacy of all of our citizens as much possible because that's one of the fundamental and basic rights we have...but the point is we have now had technological advances over the last 20 or 30 years in communications that are remarkable. It's a remarkable ability that our enemies have to communicate so we have to keep up with that capability. I mean, there is too many ways and -- through cyberspace and through other ways -- that people are able to communicate with one another. So we are going to have to step up our capabilities to monitor those. Sometimes there are calls from outside the United States, inside the United States, there is all kinds of communications of every different kind. So you need congress to work together you need a judiciary that will review these laws that we pass and at the same time, it's just an example of our failure to sit down, Republican and Democrat, and work these things together for the good of the nation's security. Instead of this constant fighting which, according to our director of national intelligence, until we finally reached an agreement not long ago was compromising our ability to keep America from attack. And so there is a constant tension. It is changing with changes in technology and we have to stay up with it.

Time constraints prevented Warren from posing the same question to Senator Obama. The CNN website has the full video of the forum.