Pushback continues over conservatives' attacks on Department of Justice attorneys who represented military detainees accused of terrorism before entering government service. The New York Times "Room for Debate Blog" includes comment from across the political spectrum supportive and critical of the attacks. In a post dubbed "Aiding the Enemy," National Review Legal Affairs Editor Andrew C. McCarthy took aim at lawyers who represented detainees accused of terrorism, writing, "Members of any other profession or institution would be indicted for coming to the enemy's aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans."

McCarthy's post triggered a sharp rebuke from George Washington University law school professor Orin Kerr, a former recipient of a prestigious Federalist Society award. On the conservative legal theory blog, The Volokh Conspiracy, Kerr blasted McCarthy's arguments as "ridiculous."

Taking on McCarthy's "basic argument that lawyers who represented detainees ‘aided the enemy in wartime,' and should normally be guilty of treason," Kerr wrote:

If that's true, isn't the federal judiciary, and aren't the Justices of the Supreme Court, also guilty of treason? In fact, aren't the judges the kingpins of this treasonous plot to "hurt the war effort"? After all, lawyers only make arguments to judges. It doesn't actually help detainees to make argument courts reject. It's up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they're only minor players: It's the judges, and especially the Justices, who are the real guilty parties, as they're the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be "indicted for coming to the enemy's aid during wartime"?

As noted by The New York Times, the controversy, which has been fueled by Sen. Charles Grassley's demands that Attorney General Eric Holder (above, left) release names and information of DOJ attorneys who have represented detained terrorism suspects, and Liz Cheney's group Keep American Safe, which produced an inflammatory YouTube video referring to the DOJ attorneys as the "Al Qaeda Seven," has revealed a split among conservatives. 

Richard A. Epstein, a University of Chicago law school professor and as The Times described him, "a revered figure among many members" of the Federalist Society, told the newspaper, "There's something truly bizarre about this. Liz Cheney is a former student of mine - I don't know what moves her on this thing."

Epstein and Kerr aren't the only conservatives questioning the tactics. As noted earlier this week, another prominent conservative, former Independent Counsel Kenneth Starr signed a letter calling the attacks on the DOJ attorneys "shameful." The Times also reported that Peter Keisler, former Acting Attorney General during the George W. Bush administration, also signed that letter. And as reported by Main Justice, Holder's predecessor, former Attorney General Michael Mukasey, in an op-ed for The Wall Street Journal slammed the attacks on the DOJ attorneys as "shoddy and dangerous."

See previous posts on the matter here and here. 

In an indictment recently unsealed, Justice Department officials accused Colleen R. LaRose of using the Internet to link up with overseas militants and plotting to commit murder. The case of LaRose, a resident of suburban Philadelphia, presents what The Christian Science Monitor reports as, "a rare example of a white American woman becoming involved in global jihad over the Internet."

The New York Times reports: 

Ms. LaRose, 46, was arrested in Philadelphia in October, but her case was kept under seal. Although the indictment does not identify the target, a law enforcement official said her case was linked to the arrests Tuesday of seven Muslims in Ireland in connection with a scheme to kill the cartoonist, Lars Vilks. A group linked to Al Qaeda had put a $100,000 bounty on his head for the cartoon, which the group perceived as an insult to Islam.

LaRose, who also went by the aliases "Fatima La Rose" and "Jihad Jane," had prior run-ins with the law in Texas, where she lived before moving to Pennsylvania in 2004. LaRose's prior arrests, both of which took place in 1997 according to CNN, seemingly bore no relation to any terrorist activity.

Neighbors thought LaRose peculiar, but are reacting with surprise to her alleged involvement in a terrorist assasination plot. LaRose "was mostly notorious for getting drunk and getting into fights," according to a neighbor, Eric Newell.

[Image via Wikimedia Commons.]

Most of the opposition to U.S. detention policy since 9/11 has focused on the detention camp at Guantánamo Bay. But for nearly as long, the United States has been operating a prison in Afghanistan that has been, in many ways, Guantánamo's uglier twin. Stories of abuse and mistreatment at the Bagram facility have been all too common. At least two detainees were killed by guards at Bagram, the consequence of repeated beatings and shackling in stress positions.

Unlike prisoners at Guantánamo, however, whose habeas rights were restored by the Supreme Court in 2008, Bagram prisoners have never had a meaningful and adequate process to challenge their detention. Yet many Bagram prisoners have been held for years, without charge, without access to courts, without access to lawyers, and without even being told why they are being held. And according to official government investigations, reports by nongovernmental organizations, and interviews with former Bagram detainees and their families, many of the detainees at Bagram have never engaged in or been a part of groups engaged in hostilities against the United States. Many were instead originally picked up in the course of night raids, neighborhood sweeps, and cordon-and-search operations. Others were picked up by military forces acting on the basis of flimsy intelligence like anonymous tips from local rivals or business competitors. The risk that people at Bagram are erroneously detained is very high. It is therefore crucial that the people detained there have prompt access to a court or, at the very least, a fair, independent and impartial tribunal that can order their release. Just as with people held at Guantánamo, those imprisoned at Bagram must not be falsely imprisoned for years without charge.

Last week the ACLU filed habeas petitions on behalf of four people detained at Bagram. One petition is on behalf of two brothers: a 24-year-old Afghan who, until his capture by U.S. forces nearly 20 months ago, served as a translator for the U.S. military for four years, and a 25-year-old customer service representative for an Afghan Internet service provider, who has been imprisoned for nearly two years. The second petition is on behalf of a 61-year-old Afghan government employee, and his 27-year-old nephew, who have been imprisoned at Bagram for more than one year after U.S. forces seized them from their homes. Even though they have already been locked up at Bagram for well over a year (and for some, almost two), the government has never informed our clients of the reasons why they are being detained. Neither do our clients' families have any idea why their relatives are in prison. In fact, it was months after our clients' arrest before their families learned what had become of them.

The ACLU joins other dedicated lawyers, coordinated by the International Justice Network, who have also filed habeas petitions on behalf of other Bagram detainees. Last year, the D.C. District Court confirmed that at least some Bagram detainees have the right to petition for habeas corpus. That decision is currently on appeal to the U.S. Court of Appeals for the D.C. Circuit.

The ACLU has filed this habeas petition because it believes that the government must release our clients -- and others like them -- or else prove why they can be held in military detention. If the government does not have the authority to detain them militarily, they must be released or charged criminally under Afghan or U.S. law. Because the military's internal process for reviewing the detention of people held at Bagram is inadequate under both the Constitution and applicable international law, we are asking a court to vindicate our clients' habeas corpus rights by stepping in to review their detention.

Up until recently, the review process at Bagram was little more than a rubber stamp: detainees were not told why they were held, let alone given an opportunity to challenge their detention. The current Detainee Review Board ("DRB") policy, instituted by the Obama administration toward the end of last year, is an improvement over the prior process that existed at Bagram, but remains inadequate and unlawful. Among other defects, the DRBs are not independent or impartial -- they are composed of military officers who are not insulated in any way from the command hierarchy or other improper influences. Instead of looking only at the evidence, they are liable to be looking over their shoulders, worried that ordering the release of detainees will land them in hot water with their superiors or hinder their career progress. The DRBs also fail to afford the detainee the right to access counsel. There is therefore nobody who can stand between the detainee and the military, in order to ensure that they are treated fairly. The "personal representatives" that are assigned to detainees under the DRB process are nonlawyer military personnel responsible to the chain of command. In fact, personal representatives are appointed and removed by the same person who chooses the members of the DRB panel itself. Unlike lawyers, the "personal representatives" owe no duty of confidentiality to their "clients," and are not bound to advocate zealously on their behalf. To make matters worse, detainees are not given access to all of the evidence against them and the DRBs are not obligated to provide the detainee with evidence in the government's possession that tends to show the detainee's innocence. Furthermore, nothing in the DRB policy prevents the military from relying on testimony procured using torture or other cruel, inhumane, and degrading forms of coercion.

This isn't good enough. The current system of detention at Bagram is contrary to the Constitution and international law, and offends bedrock American principles of freedom and due process. The Obama administration should do the right thing not only at Guantánamo -- which should long since have been a distant memory -- but also at Bagram, where the indefinite detention of people without habeas rights or charge offends American values and undermines the United States' moral standing in Afghanistan and beyond.

[Image via takomabibelot.]

A backlash continues to build over attacks launched by Sen. Grassley and a conservative organization on Department of Justice attorneys who represented Guantanamo Bay detainees. Politico, Slate and The Blog of Legal Times all have stories on the dust-up over the YouTube video produced by a group affiliated with Liz Cheney (pictured) and Bill Kristol, Keep America Safe, which questions the loyalty of the DOJ attorneys, dubbing them "The Al Qaeda Seven." As noted last week on ACSblog, a growing chorus of conservatives is questioning the organization's tactics. Now "leading conservative lawyers and policy experts, [and] former Independent Counsel Kenneth Starr," have issued a statement blasting the attacks on the DOJ lawyers as "shameful." Politico has the entire statement here. (Also signing the letter was Charles "Cully" Stimson, a senior Pentagon official who resigned his post in 2007 after he sharply criticized U.S. law firms that had represented military detainees.)

In an article for Slate, Dahlia Lithwick says the methods used by Cheney and Kristol are beyond being over-the-top. Their attacks, especially Liz Cheney's, are part of the "ever-expanding war on the Bill of Rights." Lithwick maintains that the DOJ attorneys who represented the Guantanamo Bay detainees were doing so on justified grounds.

She writes:

They were defending the U.S. Constitution - the great whomping chunks of the Bill of Rights that Cheney and her friends are so eager to write out of existence. They did it because - as Spencer Ackerman points out - the Military Commissions Act of 2006 expressly provided that detainees get defense lawyers. And they did it, as Jay Bookman notes, for the same reason John Adams agreed to represent British soldiers charged with killing civilians during the Boston Massacre in 1770. Because long before Liz Cheney was born and long after she's gone, the Bill of Rights requires serious people to take it seriously.

Attorneys at leading national law firms are also joining the fray, as the Legal Times blog reports. Brian Brooks, managing partner of O'Melveny & Myers' Washington Office tells the Legal Times, "From the perspective of our firm, providing representation for unpopular causes is a long and noble tradition in the law, and that kind of criticism is not going to affect our firm's commitment to that cause. If the private bar doesn't step up and show that kind of courage, then I think our whole system of justice is in question." 

[image via swamppolitics.com]

The Washington Post today reported: "Obama advisers are set to recommend military tribunals for alleged 9/11 plotters." The report indicates that the Obama administration now leans towards trying self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed (KSM) and his co-conspirators in military tribunals. Reactions were swift and are offered below without comment.

"Obama said that the choice between our security and our ideals is a false choice. He was right," writes Adam Serwer at The American Prospect. "The real choice was always between our ideals and our politics, and if the above story is true, then Obama will have made the obvious, if profoundly disappointing, choice."

At Harper's, Scott Horton introduced "Barack Obama's new attorney general: Rahm Emanuel," apparently blaming Emanuel for the administration's shift in policy. Marcy Wheeler seemed to agree.

"Three is the number of people who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today," the ACLU offerred at their blog. "Compare that to the more than 300 who have been convicted on terrorism-related charges in our federal criminal courts and are incarcerated in federal prisons."

Sen. Russ Feingold notes this track record of military commissions and warns that "[t]he best way to bring these terrorists to justice swiftly is through our civilian courts."

Spencer Ackerman is tracking commentary from former military officers opposing military tribunals for KSM.

Steve Benen wonders if fault for any potential policy shift ultimately lies with Congress, who "spent the last year cowering whenever national security came up, and threatening to side with Republicans on cutting off funding for trials and Gitmo closure."

Folks at The Atlantic's politics blog conjectured that the Post's "story is merely a test balloon."

Less charitable commentary was provided by Jeralyn Merritt at TalkLeft and Glenn Greenwald at Salon, who both voiced grave disappointment with the admistration's reported shift in position.

A final notable quote is from Attorney General Eric Holder, a former ACS board member, in an exchange with a reporter from The New Yorker earlier this year. In an extensive report on his decision to try KSM in an Article III Court, Holder eagerly defended what was then the administration's position:

"I don't apologize for what I've done," [Holder told The New Yorker]. "History will show that the decisions we've made are the right ones." Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as "the defining event of my time as Attorney General." But, he added, "between now and then I suspect we're in for some interesting times."

If the commentary above is any indication, interesting times may well be upon us.

[Image via The White House.]

The Supreme Court's recent per curiam decision vacating the D.C. Circuit's opinion in Kiyemba v. Obama, concerning the scope of a federal court's habeas authority to order the release of Guantanamo prisoners, comes as no surprise. Once the Supreme Court granted review - which was something of a surprise - it was clear that the Obama administration would make every effort to moot the case before a decision on the merits. Although those efforts were largely successful, the result is good news, at least in the short term, for Guantanamo prisoners who win their habeas cases.

Kiyemba involves the Chinese Uighur prisoners at Guantanamo. After the Supreme Court's June 2008 decision in Boumediene v. Bush confirmed that the writ of habeas corpus extended to Guantanamo, the government conceded what had long been known: the Uighurs were not "enemy combatants" and had not supported the Taliban or Al Qaeda in fighting against the United States in Afghanistan. Judge Ricardo Urbina of the U.S. District Court for the District of Columbia granted their habeas petition. But they could not be released to China, where they would suffer government persecution or worse. Nor would any other country accept them because of Chinese threats of reprisal. Accordingly, Judge Urbina ordered them released into the United States. The government appealed, and a panel of the D.C. Circuit reversed, holding that the federal courts have no authority to order the Executive Branch to admit an alien into the country.

Although the factual issues in Kiyemba were unique, the breadth of the D.C. Circuit's reasoning significantly weakened the habeas remedy for all Guantanamo detainees. judges of the district court read Kiyemba as precluding them from granting the normal habeas remedy of immediate release for prisoners whose petitions had been granted; rather, the court in such cases ordered the government to take "all necessary and appropriate diplomatic steps to facilitate" release. These "pretty please" orders gave the government substantial wiggle room, and it took full advantage. Even in cases in which successful petitioners wanted to return to their home countries, and their home countries wanted them back, the government demanded that the home countries impose restrictions (such as withholding passports) as a condition of the prisoners' release.

Thus, when the Supreme Court granted certiorari in Kiyemba, it appeared that at least some of the justices were concerned that the D.C. Circuit's decision had emasculated Boumediene. The government immediately stepped up its efforts to resettle the Uighurs elsewhere in order to avoid a potential reversal. By early this year, all but five Uighurs had been resettled (or had agreed to be resettled) in other countries, and the remaining five had been offered resettlement. In these circumstances, the Supreme Court logically remanded the case so that the lower courts could determine the legal impact, if any, of the new facts.

By vacating the D.C. Circuit's decision, the Supreme Court has for the time being lifted the perceived constraints on release orders for Guantanamo prisoners who win their habeas cases (as have 32 of 40 to date). Whether any of the district court judges will now issue direct release orders remains to be seen. It also is unclear what will happen on remand. The appellate panel could promptly reinstate its decision, finding that the changed facts do not affect its prior ruling. This seems unlikely, given that the appellate court is no more institutionally qualified to consider new facts than is the Supreme Court. More likely, the case will be remanded to Judge Urbina, who will hear evidence on the current status of the remaining Uighurs, then decide whether a new release order is needed, and, if so, what the order should be, or whether the case is moot. How that will play out is anybody's guess.

One thing is certain, however: Guantanamo, and the legal and political controversies it has spawned, will be with us for a long time to come.

The Supreme Court today ordered a lower federal court to reexamine a case involving group of Chinese Muslim detainees, Uighurs, at Guantanamo Bay. In Kiyemba v. Obama, the high court was asked whether a federal court can release Guantanamo Bay detainees into the United States. But in Kiyemba, the high court noted that "each of the detainees at issue in this case has received at least one offer of resettlement in another country." The Supreme Court remanded the case to the U.S. Court of Appeals for the District of Columbia to "determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments." In analysis for SCOTUSblog, Lyle Denniston says the high court's "action has two immediate effects: first, it wipes out the Circuit Court's earlier ruling that federal judges have no power to order release into the U.S., even temporarily, because that is an immigration matter exclusively for the President and Congress, and second, it means that the Justices will not have any final ruling this Term on detainee matters, putting the Court on the sidelines while the two other branches of government work out where to go next on policy involving capture and detention of individuals during the government's ‘war on terror.'"

The high court also granted certiorari in one case, Michigan v. Bryant, involving a Michigan Supreme Court decision on how statements a victim made to police can be used at trial. 

The Supreme Court heard argument earlier this week in Humanitarian Law Project v. Holder, an extremely important First Amendment case involving the criminal prohibition on so-called "material support" to designated terrorist organizations. Although plaintiffs' attorney Professor David Cole did a superb job of focusing the Court's attention on how the law prohibits pure political speech, lurking not far in the background was the law's effect on humanitarian assistance. Justice Anthony Kennedy, who is often a key swing vote on the Roberts Court, devoted his first question to that issue, asking whether the government could "forbid any person from giving tsunami aid to one of these organizations."

This was not an abstract hypothetical; I spent several weeks in my ancestral home of Sri Lanka doing relief work in the immediate aftermath of the tsunami. While there I saw first-hand how humanitarian organizations could not help many of the victims because they lived in territory controlled by the Liberation Tigers of Tamil Eelam, or LTTE, one of the State Department's designated terrorist organizations. (I wrote about my experience in an ACS Issue Brief, "A Hungry Child Know No Politics:" A Proposal for Reform of the Laws Governing Humanitarian Relief and "Material Support" of Terrorism.)

As the questioning returned to that issue several times, at least some of the justices seemed open to Solicitor General Elena Kagan's argument that Congress could ban such humanitarian aid consistent with the First Amendment. As Justice Kennedy put it, "if you get tsunami money that frees up your other assets for terrorist money." Professor Cole countered by focusing on some of the obvious weaknesses in the argument: if Congress can ban any support that is "fungible" with money that a designated group might otherwise spend, then what about legal support? The answer, said Kagan, was "yes . . . to the extent that a lawyer drafts a brief for the PKK or the LTTE . . . that would be prohibited."

That response did not go over well. Justice Kennedy asked if Kagan would "stick" to that view, and when she did, Justice John Paul Stevens said that meant Professor Cole's activity in this very case must be unlawful. After Justice Sonia Sotomayor expressed yet more skepticism, Justice Stephen Breyer said what others were clearly thinking: "I'm more worried about the lawyer." The specter of punishing people who form so intricate a part of the Court's daily activities obviously troubled several of the justices.

As an attorney who represents people charged with terrorism offenses on a regular basis, I too am worried about us lawyers, and was glad to see that I'm not alone. Yet the Court's sympathy for that particular class of victims struck me as rather odd. I could not help but wonder if the justices, and Kagan for that matter, would have been so sanguine about allowing the government to ban pure humanitarian assistance if they had been as close to relief workers as they were to lawyers. Would they have accepted a proscription on vital assistance to tsunami victims if they had seen the devastation I saw the day after that giant tidal wave killed 30,000 Sri Lankans in a matter of minutes? Surely if they had looked into the eyes of the children who had lost their parents in the blink of an eye, or seen the desperation on the faces of refugees who needed drinking water at the camps I visited, they would not have allowed Congress to prohibit relief groups from giving aid to the people who could most efficiently deliver it to the victims, even if they happened to be humanitarian workers who were members of the LTTE.

While the LTTE no longer controls territory in Sri Lanka, the material support laws at issue in Humanitarian Law Project continue to vex humanitarian groups around the world. The American Civil Liberties Union (for whom I work as an attorney) filed an amicus brief on behalf of nine humanitarian organizations, including the Carter Center, the Christian Peacemakers, and Human Rights Watch. The groups teach conflict resolution, provide humanitarian aid, and engage in various other activities that require them to work with designated terrorist organizations. These groups told the Court that they may be forced to severely curtail many of their activities because of the material support laws, and asked the Court to recognize that the First Amendment protects their right to provide humanitarian assistance that is intended to promote non-violent, humanitarian purposes, even if it also constitutes "material support" to the designated terrorist groups under the broad language of the Patriot Act.

As I remembered the people I had seen suffer in Sri Lanka, it filled me with great sadness to watch President Barack Obama's hand-picked representative to the Supreme Court defend a position so blind to the needs of innocent civilians. Twenty years ago, President Reagan famously authorized food aid to the Communist dictatorship in Ethiopia at the height of the Cold War, proclaiming that "a hungry child knows no politics." He could just as easily have been referring to the children of Pakistan, Colombia, Iraq, or any number of other countries today, where humanitarian groups have sought to ameliorate the misery suffered by civilian victims of war and natural disaster. The Red Cross has enshrined that same principle in its own Code of Conduct, which states that "the humanitarian imperative comes first. The right to receive humanitarian assistance, and to offer it, is a fundamental humanitarian principle which should be enjoyed by all citizens of all countries." We can only hope that Justice Kennedy and his colleagues will remember those widely-revered words, and those of the president who appointed him, as they consider how to resolve this important case.

The survivors of two Guantanamo detainees who died in U.S. military custody had their hopes of assigning civil liability dashed yesterday. The families of Yasser Al-Zahrani and Salah Ali Abdullah Ahmed Al-Salami saw their suit dismissed by a district court judge who relied on the Military Commissions Act of 2006 in her order.

The deaths, which were deemed "suicides" by the military, drew closer scrutiny after a Seton Hall study was released suggesting several reasons for suspicion. After attorney and ACS participant Scott Horton discussed the deaths on MSNBC, four soldiers who had been stationed at Guantanamo came forward and shed further light on what happened that night.

According to the Associated Press, the families of the deceased sought damages "under the Alien Tort Claims Act, alleging arbitrary detention, torture, cruel and inhuman treatment, violations of the Geneva Conventions, and cruel and unusual punishment." The judge dismissed these claims, deferring to the military's position that the detainees were enemy combatants rather than prisoners of war.

This determination "runs contrary to the evidence," Horton wrote today. 

Both men were turned over to U.S. forces for bounty payments, and a thorough investigation of their cases by American military intelligence concluded that there was no meaningful evidence to link either man to either Al Qaeda or the Taliban. Al-Zahrani had been placed on a list to be released back to Saudi Arabia, immediately behind Mani Al-Utaybi, who also died under still unexplained circumstances on June 9, 2006, at approximately the same time as Al-Zahrani and Al-Salami, according to pathologists. 

[Image via smit5334.]

Spain Accepts Five Detainees: Spain announces the largest commitment among European countries.

Intelligence, Judiciary Committee Chairs Endorse Federal Trials: Senators Feinstein and Leahy pen a letter defending domestic terror trials.

Another Senator Supports Closing Gauntanamo with Caveats: Senator Graham demands military tribunals and indefinite detention.

International Law Expert Assesses Politics: Professor Deborah Pearlstein parses the political considerations seemingly driving Guantanamo decisions.

D.C. Circuit Hears Argument Against Releasing Detainee: The Justice Department appealed the district court's order to release Mohammed al-Adahi.

SCOTUS Considers Dismissing Kiyemba: With countries willing to accept all seven Uighurs at Guantanamo, the Supreme Court ordered briefing on whether to dismiss their case.

[Image via christophe dune.]