Friday, January 15, 2010

Detainee Rights Deluge

It's been a busy new year for lawyers and judges defending or tolerating terrorism. First, the good news: in Al-Bihani v. Obama, Docket 09-5051 (D.C. Cir. Jan. 5, 2010), Judge Janice Rogers Brown's opinion for the D.C. Circuit "embraced a fairly expansive assertion of the federal government’s detention authority." In particular, the majority (at 18) confirmed:
Unlike either Hamdi or Al-Marri, Al-Bihani is a non-citizen who was seized in a foreign country. Requiring highly protective procedures at the tail end of the detention process for detainees like Al-Bihani would have systemic effects on the military’s entire approach to war. From the moment a shot is fired, to battlefield capture, up to a detainee’s day in court, military operations would be compromised as the government strove to satisfy evidentiary standards in anticipation of habeas litigation.
Judge Brown also wrote a concurring opinion (at 1):
[I]t is important to ask whether a court-driven process is best suited to protecting both the rights of petitioners and the safety of our nation. The common law process depends on incrementalism and eventual correction, and it is most effective where there are a significant number of cases brought before a large set of courts, which in turn enjoy the luxury of time to work the doctrine supple. None of those factors exist in the Guantanamo context. The number of Guantanamo detainees is limited and the circumstances of their confinement are unique. The petitions they file, as the Boumediene Court counseled, are funneled through one federal district court and one appellate court. See Boumediene, 128 S. Ct. at 2276. And, in the midst of an ongoing war, time to entertain a process of literal trial and error is not a luxury we have.
I believe I called that one right.

The mixed news came in the next day's ruling by D.C. Federal District Judge Thomas Hogan in Suhail Abdu Anam v. Obama, Civ. Act. No. 04-1194 (D.D.C. Jan 6, 2010). There, Judge Hogan decided to exclude more than two dozen confessions from the upcoming terrorism trial of Musa'ab Omar Al Madhwani. Some statements were made to interrogators in Afghanistan where he captured; others at Guantanamo Bay, where Al Madhwani was "was suspended in his cell by his left hand and that guards blasted his cell with music 24 hours a day." Hogan did ok use of three detainee admissions, finding insufficient evidence of coercion.

The D.C. Federal District Court is subordinate to the D.C. Circuit Court of Appeals, but it's not clear how the recent decisions will be effected. One good sign is that District Judge Kessler has called for additional briefing on how Judge Brown's Al-Bihani opinion affects Judge Hogan's Suhail Abdu Anam ruling.

Some things remain clear:
  • KSM's trial in NY Federal criminal court will be a zoo. Defendents' lawyers will employ full Bill-of-Rights protections to put the government on trial.

  • It's been widely reported that the underwear bomber "was singing like a canary"--until, treated like an ordinary criminal, he was "Mirandaized" and went silent. So much for advance warning of future terrorist attacks.

  • Obama's confirmation of his decision to close the Git'mo terrorist detention facility makes no sense. Git'mo is a humane facility, preferable -- say the inmates -- to a general prison. And it's hardly a Jahadi rallying point, as Charles Krauthammer wrote in Friday's Washington Post:
    Imagine that Guantanamo were to disappear tomorrow, swallowed in a giant tsunami. Do you think there'd be any less recruiting for al-Qaeda in Yemen, Saudi Arabia, Pakistan, London?

    Jihadism's list of grievances against the West is not only self-replenishing but endlessly creative. Osama bin Laden's 1998 fatwa commanding universal jihad against America cited as its two top grievances our stationing of troops in Saudi Arabia and Iraqi suffering under anti-Saddam sanctions.

    Today, there are virtually no U.S. troops in Saudi Arabia. And the sanctions regime against Iraq was abolished years ago [some minor exceptions]. Has al-Qaeda stopped recruiting? Ayman al-Zawahiri, al-Qaeda's No. 2, often invokes Andalusia in his speeches. For those not steeped in the multivolume lexicon of Islamist grievances, Andalusia refers to Iberia, lost by Islam to Christendom -- in 1492.

    This is a fanatical religious sect dedicated to establishing the most oppressive medieval theocracy and therefore committed to unending war with America not just because it is infidel but because it represents modernity with its individual liberty, social equality (especially for women) and profound tolerance (religious, sexual, philosophical). You going to change that by evacuating Guantanamo?
  • The media and Obama Administration reject both Git'mo and military tribunals because Bush favored them. But pique is a poor way to decide policy. Git'mo is lawful and worked; released detainees have a 20 percent recidivism rate.
Conclusion: Keep the terrorists in, or send them to, Guantanamo. Because the Bill of Rights does not apply to non-citizen belligerents captured abroad.

(via SCOTUSBlog, Volokh Conspiracy, Ace of Spades, reader Marc)

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