Wednesday, October 22, 2008

Circuit Court of Appeals Precludes Uighurs' Release into U.S.

On October 20, 2008, the Court of Appeals for the District of Columbia Circuit issued an order granting the government’s request for a stay in Kiyemba v. Bush. The stay applies to the district court’s order directing appellees release into the United States. (See “Unchartered Territory”: A Remedy of Release into the U.S. for GITMO Detainees). The order calls for an expedited appeal schedule, and the Court of Appeals will hear oral argument on November 24, 2008, at 9:30 a.m.

The panel is composed of Judges Karen LeCraft Henderson (appointed by George H.W. Bush), A. Raymond Randolph (appointed by George W. Bush), and Judith W. Rogers (appointed by Bill Clinton). Judge Randolph wrote the Court of Appeal’s decisions in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene v. Bush. In these decisions, the Court of Appeals denied the habeas rights of GITMO detainees and upheld the validity of military commissions to try GITMO detainees. Judge Rogers dissented in the Court of Appeal’s decision in Boumediene.  The Supreme Court has disagreed with each of these decisions.

Judge Rogers filed a dissent from the order granting the government’s stay in Kiyemba, emphasizing that the government cannot continue to detain appellees and that their release poses no threat. She noted that the Court of Appeals had held that the government failed to present evidence supporting that one of the appellees was an “enemy combatant,” and the government then advised the district court that the 16 other Uighur detainees were not “enemy combatants.” She also noted that “[t]he [district] court’s release order was based on findings that are either uncontested by the government or clearly supported by the record.” In addition, the government presented no evidence that appellees pose a threat to the national security of the United States or the safety of any individual.

She then addressed the four factors considered in deciding whether to grant a stay: (1) the likelihood that the government will succeed on the merits, (2) the potential for irreparable harm to the government posed by the Uighurs release, (3) the Uighurs substantial interest in release, and (4) the public interest. With regard to the government’s likelihood of success on the merits, Judge Rogers concluded that the government’s argument that the political branches have “plenary powers over immigration” is “both inadequate and untrue.” The government has attempted to extend a unitary executive theory to the sphere of immigration and is attempting to use immigration statutes to bar release of GITMO detainees. In addition, Judge Rogers rejected the government’s argument that the Uighurs have no constitutional rights because they are outside the territory of the United States. This argument is disingenuous because the Uighurs were forcibly captured and taken to Guantánamo, where they were held for seven years, despite the government’s failure to ever show that they are “enemy combatants.”

Judge Rogers then balanced the potential harm to the government and the Uighurs. She stated that the harm of unlawful imprisonment faced by the Uighurs outweighs the potential “cloud over their status” the government would face if it did not maintain exclusive authority over admission of aliens and the winding up of detention policies at GITMO. With little discussion, Judge Rogers noted that the Uighurs have a substantial interest in release and emphasized the public's interest in maintenance of the writ of habeas corpus as “an indispensable mechanism for monitoring the separation of powers.”

This order provides a glimpse of how the Court of Appeals judges are likely to analyze the case on appeal. Because one of the factors considered in determining whether to grant a stay is likelihood of success on the merits, we know (at least pre filing of the parties’ briefs) how each judge feels about the merits of the case. Judge Rogers’ dissent notes the many inconsistencies in the government’s argument. The government cannot invoke immigration laws to preclude entry for individuals who were forcibly detained without any showing that they are “enemy combatants” and claim that they pose a national security and safety threat.

Monday, October 20, 2008

Status of Forces: Liability in Iraq

A Status of Forces Agreement (SFA) between the U.S. and Iraqi governments has received recent attention in the press. The agreement specifically details liability for crimes committed by private military companies and U.S. military personnel in Iraq. Unfortunately, the text of the agreement is unavailable, and online sources provide few details about provisions of the agreement. White House Press Secretary Dana Perino stated in a press briefing on October 17, 2008, that she could not provide details on the jurisdictional issue, i.e., whether Iraqi courts will be able to try U.S. military personnel for abuses committed in Iraq.

A New York Times article notes that “the agreement would make private American security companies and other contractors subject to Iraqi justice in criminal cases.” This drastically alters Coalition Provisional Authority (CPA) Order 17, which provided immunity to foreign contractors from prosecution under Iraqi law. Despite calls to respect Iraqi law, CPA Order 17 concluded that “[c]ontractors [should] be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto.”

Unlike private military companies, U.S. military personnel retain immunity from Iraqi law unless thy engage in “serious or premeditated felonies . . . outside of their official duties.” A CNN article further notes that these individuals retain immunity as long as their actions occur inside U.S. facilities. Another provision in the SFA would establish a committee to review suspected crimes of U.S. military personnel and grant that committee the discretion to refer these matters to Iraqi courts, according to a New York Times article.

The SFA does not appear to address civil liability for private military companies. Private military companies are business entities, and business entities are often the most vulnerable to monetary sanctions in civil suits. The enforcement of criminal liability – and not civil liability – might result in criminal convictions of individual contractors, while private military companies face no sanction. With regard to U.S. military personnel, a number of questions arise. First, who will fall within the classification of “U.S. military personnel”? Second, what conduct will constitute “serious or premeditated felonies”? Third, what conduct will be considered on-duty or off-duty conduct? Fourth, who will compose the committee charged with referring matters to the Iraqi courts and what level of discretion will this committee have? This provision could quickly lose any force depending on how these terms are defined.

Historically, the U.S. government has prevented the Iraqi justice system from ensuring accountability and failed to prosecute wrongdoers within the United States. The U.S. government has taken advantage of the military services provided by private military companies. These companies act at the behest of the U.S. government, yet they are not affiliated with the government and are often composed of individuals who are not U.S. citizens. The U.S. government is thereby able to contract away liability for military action in Iraq. Although the SFA presents the opportunity for accountability, the terms of the agreement could result in more of the same.

Thursday, October 16, 2008

“Unchartered Territory”: A Remedy of Release into the U.S. for GITMO Detainees

On October 7, 2008, District Judge Ricardo M. Urbina issued an oral ruling calling for the release of 17 Guantánamo Bay detainees. The 17 men are Uighurs (Turkic Muslims) who said that at the time of their capture they were in Afghanistan seeking refuge from oppression in China. Although a Combatant Status Review Tribunal had ruled that the men were “enemy combatants”, the D.C. Circuit concluded that the government’s information that formed the basis for its conclusion was unreliable. The government admits that these individuals are “no longer enemy combatants” – implying that they were “enemy combatants” at some time – and urges the court to grant the Executive broad leeway in detaining these individuals indefinitely.

The Supreme Court recently held in Boumediene v. Bush that Guantánamo Bay detainees have habeas corpus rights, but left unclear what remedies are available to these detainees. The difficulties of the Uighurs case stem from the government’s inability to release the 17 individuals outside of the United States. As the government’s attorney stated, “there is no willing country and their own home country is one that U.S. policy prevents us from returning them to . . . forcibly because of humanitarian concerns.” The government presented the familiar argument that although the detainees have habeas corpus rights, there is no remedy for a violation of these rights. (The Bush administration raised this argument when it concluded that even if the Geneva Conventions applied to “enemy combatants” in the “war on terror,” the federal courts could not enforce the Conventions or provide a remedy.)

The government continues to argue its right to detain individuals based on their presumed guilt: “For the Court now to say that such individuals, individuals who have received paramilitary training on AK-47, Kalashnikov assault rifles, to be released into the United States because their original basis for detention is one the Government is no longer contesting would fundamentally alter and frankly chill the effective waging of war by the Executive.” This disingenuous argument ignores that the D.C. Circuit ruled that the government lacked sufficient evidence to conclude that these individuals were “enemy combatants.” In addition, the government relies heavily on principles akin to the political question doctrine, arguing that foreign policy issues are committed to the Executive branch and that the government must speak with one voice.

Although recognizing that “[n]ormally . . . the Court would have no reason to insinuate itself into a field normally dominated by the political branches,” Judge Urbina recognized that “[t]his is a problem that the Government’s making.” For almost seven years these individuals have been held in detention, and the government has not shown that they are “enemy combatants.” Judge Urbina applied a new test for determining the constitutionality of continued detention and concluded that (1) the Uighurs detention was effectively indefinite, (2) it is reasonably certain that the Uighurs will not return to the battlefield to fight against the United States, and (3) the government has not provided an alternative legal justification for their continued detention. Judge Urbina ordered the Uighurs immediate release into the United States.

The government unsuccessfully sought a stay in the District Court pending appeal of the court’s ruling. The government threatened that without a stay the Department of Homeland Security could detain the Uighurs upon their entry into the United States. Judge Urbina responded harshly that a threat “that [the Uighurs] may be descended upon by I.C.E. officials, arrested and taken into custody, that’s not how the three branches of government work together. That is not how things work.” In a one-page order, the D.C. Circuit granted the government's request for a stay on October 8th and set a deadline of October 16th for additional filings.  It is uncertain when the D.C. Circuit will decide the issue.

Judge Urbina's ruling is not without problems.  It potentially pits the Judiciary against the Executive generally and the Department of Homeland Security specifically.  In addition, the supervision and management of the conditioned release of 17 individuals may present difficulties that the court is ill-equipped to handle.  And although the D.C. Circuit has said that the government cannot support its contention that these men are "enemy combatants," they may nonetheless present security concerns.  Is it fair and desirable to allow individuals into the country that we would not otherwise if it were not for the government-created situation at Guantánamo?

Thursday, October 9, 2008

Obsession: the West's War Against Islam


My sister sent me a link to a blog post with a first-hand account of an incident at a mosque in Dayton, Ohio. The first-hand account differs drastically in tone and content from an article in the Dayton Daily News covering the same incident. Although police concluded that there was no evidence of a “biased crime,” individuals within the mosque noted that the recent release of a DVD, Obsession: Radical Islam’s War Against the West, may have provoked the incident.

The Clarion Fund, a “non-profit, non-partisan” organization whose primary focus is “the most urgent threat of radical Islam,” engaged in a mass mailing of the DVD beginning on September 14, 2008. The group’s web page for the DVD touts that 28 million copies of the DVD have been distributed. The web site contains little information regarding the content of the DVD, but the imagery is strong. Emblazoned across the top of the screen is the DVD’s logo: the “O” of “Obsession” is the star and crescent symbol commonly associated with Islam, and the “n” is formed in part by a gun.

The DVD is viewable on YouTube. The DVD appears in ten six-minute video clips that must be watched individually. Although the DVD begins with a statement that not all Muslims are terrorists, it proceeds in broad generalizations to link Islam to terrorism and to compare Islam to Nazi Germany. One commentator goes so far as to note that the “war on terror” is “history repeating itself,” i.e., a failure to act tough in the war on terror will result tragedies akin to the Holocaust. The DVD includes a barrage of images of large groups of Muslims worshiping, calls by individual Muslims to attack the United States, and pictures of Arab children with guns. The images are terrorizing; they invoke panic and mistrust, and play on our fear of future attacks against the United States.

The most striking aspect of the DVD is its lack of specification; the DVD conflates terrorist groups and acts, and associates these groups and acts with one religion. At the beginning of the DVD, images of terrorist attacks abound. A map is filled with red dots demarcating the locations of terrorist attacks throughout the world. The red dots expand, seeping outward like blood. Nonetheless, there is no explanation of the groups who perpetrated these acts or the ideologies underlying their attacks. In fact, there is little by way of factual development throughout the DVD. Each attack is attributed to Islam without distinction.

Linking a religion to terrorism is dangerous and invites hate crimes, such as the incident at the mosque in Dayton. Making the war on terror synonymous with a “war against Islam” continues down a road that has threatened the rule of law in the United States. The war on terror is not a war in the traditional sense: there is no defined enemy, time limit, or rules that apply. Guantánamo is an example of the ways in which this limitless war has affected individuals from countries all over the world, some of whom have only the most attenuated ties to any wrongdoing. It is grievous error to engage in broadscale attacks that are not based on specified wrongdoing. In this manner “Obsession” and the Clarion Fund’s attacks against Islam commit the same mistakes of the Bush Administration and its war on terror. As a result, many innocent individuals are caught up in campaigns playing on racist and nationalist fear of "the other."