A federal appeals court has declined to reconsider its earlier decision limiting the ability of detainees at Guantanamo Bay to lodge legal challenges to their confinement.

In analysis for SCOTUSblog, Lyle Denniston writes that the Jan. 5 decision by a panel of the U.S. Court of Appeals for the District of Columbia "upheld a wide-ranging view of the government's authority to detain non-citizens suspected of terrorism, ruling that the power is not limited in any way by international law - a view that even the Obama Administration indicated it did not share."

Denniston, however, notes that the federal appeals court's action today in Al Bihani v. Obama produced lengthy statements by several of the circuit's judges "to narrow the scope of" the initial panel decision, which upheld the imprisonment of Al Bihani, a former cook for the Taliban who maintains that he never engaged in combat against U.S. forces. The federal appeals court denial of rehearing and the judge's statements are available here (pdf).

The rising rhetoric and increasing rallies aimed at disparaging Islam represent "a new threat to the religious freedom of Muslims in America," writes the First Amendment Center's Charles C. Haynes.

Haynes, the director of the Newseum's Religious Freedom Education Project, notes that "anti-Muslim rhetoric has taken an ominous turn in recent months as a growing number of political and community leaders - some with tea-party affiliations - have begun warning of a ‘Muslim takeover' of America."

Haynes cites numerous anti-Muslim rallies from Tennessee to California, including the loud opposition to the construction of an Islamic center in New York City.

Haynes writes:

In recent months, tea-party groups in New York have also helped organize opposition to mosques in Manhattan (the controversial plan to build an Islamic center two blocks from ground zero), Brooklyn and Staten Island. Tea-party meetings in Tennessee, Texas and California feature speakers warning of the ‘Islamization of America.'

In an ironic twist reminiscent of the anti-Catholic rallies of the 19th century (warning against ‘Romanism' seeking ‘despotic control' of America), anti-mosque protests in Murfreesboro, Temecula and elsewhere feature groups of citizens invoking their First Amendment rights to freedom of speech and assembly to call for denying another group of citizens First Amendment protection.

...

If the anti-mosque protests are any indication, Islamophobia - the fear and loathing of Islam as a ‘violent political ideology' - is a growing threat to religious freedom in the United States. And in many communities, some tea-party activists are actively encouraging and supporting this dangerous trend.

[image via commons.wikimedia.org]

In a just-released ACS Issue Brief, Professor Stephen I. Vladeck (pictured right) looks to one high-profile terrorism case as an "an unvarnished example" of how the federal court system can adeptly handle trying terrorism suspects, providing new evidence in the ongoing debate on whether terrorism cases should be tried by civilian courts or military tribunals.

The case of Ahmed Omar Abu Ali, a U.S. citizen convicted of conspiring with al Qaeda to kill President George W. Bush, raised new and hard questions, Vladeck writes in "Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali," but they were questions the civilian criminal justice system is well-equipped to answer.

"[W]here unique national security concerns are implicated, Abu Ali suggests that courts will attempt to reach accommodations that take into account both the government's interest and the fundamental protections to which defendants are entitled, keeping in mind Justice Frankfurter's age-old admonition that ‘the safeguards of liberty have frequently been forced in controversies involving not very nice people,' " writes Vladeck (pictured right), a law professor at American University Washington College of Law.

Abu Ali's case presented the novel question of whether a defendant's Miranda rights were triggered where U.S. officials submitted questions to foreign officers for their use during interrogation. This question, Vladick points out, is not one that applies only in terrorism cases and the court's conclusion that the United States and Saudi Arabia were not engaged in a "joint venture" is applicable to other criminal procedure fact patterns.

Abu Ali also presented the new challenge of incorporating foreign depositions in a U.S. court proceeding. Judge Gerald Bruce Lee used "creativity and flexibility" to craft a method for performing a live, two-way video deposition that transmitted the proceedings to the Alexandria courtroom, during which defense lawyers were present in both Saudi Arabia and Alexandria, Vladeck writes. Lee's innovation showed how technology can help cabin proposed changes to current procedural rules, by adapting within the present framework, Vladeck adds.

Lastly, Abu Ali presented the controversial question of whether the court erred when it allowed the jury access to classified information, while the defendant had access only to a redacted version. The U.S. Court of Appeals for the Fourth Circuit agreed that this "silent witness" procedure was a violation of Abu Ali's right to confront witnesses against him, but it also concluded that the decision was harmless error.

"[T]he real lesson from this aspect of the Abu Ali litigation may just be that mistakes will be made, but the Supreme Court's increasing embrace of harmless error principles heavily mitigates the consequences of those mistakes," Vladeck writes.

Regardless of whether it was misapplied, the harmless error doctrine, like other aspects of the case, "does not turn on the centrality of terrorism and national security concerns in the litigation," he adds.

"Abu Ali reminds us," Vladeck concludes, "that sometimes, the law is set up properly to resolve the tension between the government's interests and the defendant's rights, even if reasonable minds could argue (in this area of law, as in any other) that judges sometimes get it wrong."

Vladeck's Issue Brief is available here.

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By Barry Eisler, an award-winning author of bestselling thrillers. Eisler spent three years in a covert position with the CIA's Directorate of Operations and has worked as a technology lawyer. Eisler also blogs on torture, civil liberties and the rule of law.

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As a thriller writer, blogger, and former CIA officer who continues to adhere to his oath to protect and defend the Constitution, I've never been so satisfied with one of my novels as I am with Inside Out.

I'm a big believer in the power of fiction to promote ideology, and in fact addressed this subject recently in an essay for NPR on George Orwell's Nineteen-Eighty-Four. I'm appalled at how effectively the right has been using fiction to promote torture, and conceived of Inside Out in part as a way to fire back: a means of depicting not a cartoon fantasy, but rather the true causes and consequences of torture, consequences that include worsening erosion of our values, increased damage to national security, and the continued degradation of the Constitution itself.

Of course, Inside Out is filled with great characters, edge-of-your-seat action, and steamy sex - it's a thriller, after all. But what sets it apart from most works of the genre is the timeliness and relevance of the story. The ninety-two interrogation videos the CIA confessed last year to destroying, and which form the foundation for the book's plot, are back in the news now, as independent prosecutor John Durham concludes his two-year obstruction of justice investigation. And the other subjects at the heart of Inside Out - torture, ghost detainees, renditions, the real nature of America's Establishment - continue to be the most profound and controversial political issues of the day.

Various interviewers have asked me, "Do you really believe in the ‘oligarchy' you write about?" It's a strange question, suggesting as it does that the oligarchy is in the same category as, say, the Loch Ness Monster or UFOs. In fact, as one of the characters in the book explains, "The oligarchy is right out in the open. It's just a collection of people in business, politics, the military, and the media who recognize their interests are better served by cooperation than they would be by competition." MIT professor and former IMF Chief Economist Simon Johnson has written about the oligarchy in the Atlantic; Matt Taibbi has written about it in Rolling Stone. After Enron, the subprime meltdown and bailout, the lax oversight of BP that led to the Gulf oil spill-to name just a few-you'd have to be in fairly significant denial not to notice the oligarchy's insidious presence, if only by its disastrous effects.

I've never written a book that so perfectly synthesizes my interests as a thriller writer and my concerns as a political blogger, or one that draws so heavily not just on my obsession with current events but on my background as a CIA intelligence officer. More than anything else, Inside Out is a reality-based thriller - as demonstrated by the list of sources and the bibliography I include at the end. Its emotional impact doesn't derive from Jack Bauer fantasies, but rather from real people caught up in the real political machinations of the day. For me, the most gripping thrillers are always the ones that hew most closely to reality, the ones that leave you feeling, Good God, this could really be happening! That's the kind of book I set out to write with Inside Out, and the kind of experience I think it delivers. I hope you'll enjoy it, and that it'll open a few eyes to just how much we stand to lose if we continue to abuse the Constitution.

 

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David Mortlock is the author of a recent article on this topic in the Harvard Law & Policy Review.

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The United States has yet to settle on a definition of enemy combatant. The Supreme Court spent the past decade determining whether and how detainees could challenge their detention but explicitly avoided the question of whether they could be detained in the first place. The debate has divided not only political rivals, but also, as the New York Times recently detailed, seniors official in the current Administration.

A handful of district and circuit courts have begun to examine the scope of the President's authority to subject enemy combatants to military detention without charges, a jury trial, or any of the other trappings of criminal detention. Some parties have taken the position that the President lacks detention authority in the fight against a terrorist group, while others argue that the President may detain even unwitting supporters of al Qaeda. The courts have reached a number of different conclusions.

In my article, Definite Detention: The Scope of the President's Authority to Detain Enemy Combatants, I suggest that Congress has authorized the President to subject members of al Qaeda and the Taliban to military detention, whether or not they engage in combat. However, the President may not use military detention for mere supporters or sympathizers of those groups. This membership model could also be used to determine the appropriate time for release. Namely, detainees could be freed when they sever their membership in al Qaeda or the Taliban.

Nonetheless, the debate is far from over. While a number of district courts have adopted this membership model, the D.C. Circuit recently suggested in dicta that an individual could be subjected to military detention merely for supporting the Taliban. The decision indicates that this debate could continue for many years.

Following a recent ACS event examining the state of the Miranda rule in the context of discussion within the administration of broadening an exception to when the rights are read to terrorism suspects, Michael German, public counsel for the American Civil Liberties Union (ACLU), talked with ACSblog about the importance of the Miranda rule. German, a former FBI special agent, said the Miranda rule, which was fashioned by the Supreme Court to protect an individual's Fifth Amendment right against self-incrimination, has served police practice well. German said Miranda protections should continue to be used, not watered down. His entire interview is below or it can be downloaded as a podcast here. Video of the entire event, "Miranda's Future," is available here.

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Susan Herman, president of the American Civil Liberties Union, is the author of a recent article in the online edition of the Harvard Law & Policy Review.

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When Liz Cheney released an ad charging that attorneys who had defended terrorism suspects were not fit to work in the Department of Justice, individual lawyers and the organized bar reacted with across-the-board outrage. Some, like former Attorney General Michael Mukasey, took the occasion to argue that the same protection and understanding is due the government lawyers who wrote the memos condoning torture by American agents, because the attacks on the lawyers are "all of a piece."

In my essay, The Limits of Advocacy: Lawyers for Terrorists/Lawyers for Torturers, I discuss why the role of the defense attorney and the multi-faceted role of the government lawyer are not equivalent. I also discuss the reasons why we have developed clarity about the role of defense attorneys since the dark days following 9/11: the military lawyers who led the way, the organized bar gradually stepping up to the task of defending the Guantánamo detainees, and the Supreme Court deciding a series of cases making a strong statement about the essentiality of the rule of law and lawyers, even at Guantánamo.

By way of contrast, we have little clarity about our shameful brush with torture - partly because the courts have found a dazzling array of procedural excuses for refusing to hear cases about torture and extraordinary rendition, depriving the victims of their day in court. There is a great deal we do not know about what happened and who was responsible, but there are now few voices calling for accountability. President Obama urges us to just turn the page. I argue that it is a mistake to go forward without first looking back, suggesting that the model of a truth commission might be useful to us.

Dawn Johnsen, President Obama's initial nominee to head the Office of Legal Counsel (OLC) provided a ringing call for young lawyers and other advocates of progressive values to stay to true to their principles and not fear speaking out on behalf of them for fear of losing potential political rewards.

Johnsen, an Indiana University law school professor and former OLC lawyer in the Clinton administration, was nominated more than a year ago to lead the OLC, which provides legal analysis on potential actions by the executive branch. Johnsen's nomination was defeated by a sustained threat of a Republican filibuster, partly because of her criticisms of the OLC's work during the Bush administration. The Johnsen nomination was also undermined by conservatives' obsession with her work to protect reproductive rights Specifically, Johnsen tagged the OLC's advice on torture of military detainees as legally reckless. Her nomination was also underminded by conservatives' obsession about her work to advance the protection of reproductive rights. She withdrew her nomination earlier this year.

But to those attorneys "who might to look at my experience and nonetheless still wonder if they are making a mistake by taking strong public stands on upholding our Constitution, I say this: In the current climate, even if you attempt a crass political calculus about how to live your life, you may as well say what you think, because they can always find a footnote to twist and distort in a 20-year-old brief."

"In my case it was footnote 23 in the 1989 Webster case -- and I have to say, whatever you think about the footnote, it was a damn good brief. Just three years out of law school, I had the privilege to write it with civil rights greats Judy Lichtman and Marcia Greenberger, and eight others, on behalf of 77 organizations committed to upholding Roe v. Wade, when the Court seemed poised to overrule Roe ...."

Johnsen continued, "Do you think for one moment I wish I had sat that fight out due to caution and calculation? Not a chance. Never for a moment. Not on your life."

"Of course the real point," Johnsen said, "is one should not live one's life -- deciding whether or how to write such briefs -- based on crass political judgments about possible future payoffs. You should stand on principle and speak out because, that is simply the right thing to do. It is the deep and best tradition of lawyers and others fighting for the rule of law and the rights of those without political power. It is the foundations of ACS. And it is also the patriotic thing to do -- the way for our great nation to achieve its potential." 

Tonight at the start of the 2010 ACS National Convention, Johnsen announced she was rejoining the ACS Board of Directors and that she had no regrets, whatsoever, about her outspoken criticism of the Bush administration OLC's office and its disastrous advice on the treatment of military detainees.

Stay true to your principles and do not be cowed into silence by political ambitions, she urged the packed Grand Ballroom of the Renaissance Mayflower Hotel in Washington, D.C.

Watch video of Johnsen's speech below:

The Office of Legal Counsel (OLC), which is charged with providing the administration legal analysis on potential executive branch actions and policies has gone too long without a leader, writes Dawn Johnsen, an Indiana University law school professor, whose nomination to head the OLC was defeated by Republican opposition, in an op-ed for The Washington Post.

Johnsen maintains that her criticism of the OLC's legal analysis regarding torture during the Bush years played a part in her nomination's demise. But, she writes, that it "is long past time to halt the damage caused by the ‘torture memo' by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding."

Johnsen, acting assistant attorney general in the OLC during the Clinton administration, and a former ACS Board member, continues:

After the torture memo came to light, I led 19 former OLC lawyers in developing 10 "Principles to Guide the Office of Legal Counsel." We called for a return to long-standing, nonpartisan practice. The results were not flashy proposals for change but the carefully considered consensus of experience. The first principle, from which the others follow: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."

Put plainly, the OLC must be willing to say no to the president under any circumstances. The office does the president no favors by allowing its legal analysis to be twisted by policy or partisan preferences, even in the midst of crisis, as the months after Sept. 11 undoubtedly were.

Her entire op-ed is available here.

Johnsen will provide remarks on the first day, June 17, of the 2010 ACS National Convention, "The Constitution, Congress, and the Courts," before a Gala Dinner at which Senator Al Franken will be the featured speaker. Today is the last day for early registration for the Convention. Click here to register and obtain a full schedule.

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By Peter Margulies, Professor of Law, Roger Williams School of Law.

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As the Obama administration faces national security, economic, and environmental challenges, it has learned anew that the excesses of the Bush administration are hard to escape.

Law's Detour: Justice Displaced in the Bush Administration argues that the signature strategy of the Bush administration was the construction of detours around legislation, legal principles, and historical practice. When legal impediments to the detention, interrogation, and surveillance of suspected terrorists threatened to change the administration's plans, Vice President Cheney and his counsel, David Addington, simply procured legal opinions that interpreted away those hindrances. When federal prosecutors refused to target the administration's political foes, top officials at the Justice Department and the White House fired the prosecutors. When the financial markets showed clear signs of overheating before the subprime mortgage meltdown, senior administration officials tried to gut existing regulation.

The flawed detours pursued by the Bush administration had ideological roots in the imperial presidency, the unitary executive, and laissez-faire economics. Cheney and Addington believed that the president should exercise unilateral authority, unconstrained by Congress or the courts. This perspective produced the warrantless wiretaps of the Terrorist Surveillance Program (TSP), which undermined the Foreign Intelligence Surveillance Act's comprehensive scheme. Bush officials also championed the unitary executive theory, which empowered the president to remove any executive branch employee. Administration officials such as Monica Goodling, a recent graduate of Pat Robertson's law school, erased the line between political appointments and merit-based civil service hiring in the Justice Department. At the Securities and Exchange Commission, an anti-regulatory agenda loosened constraints on investment banks and helped pave the way for the credit collapse of 2008.

Shedding this legacy will not be easy. The Obama administration has learned that Guantanamo is like Humpty Dumpty in reverse -- hastily and heedlessly put together, and extraordinarily difficult to dismantle. In the domestic realm, the Minerals Management Service (MMS) of the Interior Department presided over an ethics-free zone in which sharing drugs and sex with representatives of regulated industries was rampant. The MMS' asleep-at-the-switch approach to regulation helped pave the way for the Gulf oil leak disaster that is now threatening long-term damage to America's coastline.

The Bush administration's reliance on legal detours teaches some crucial lessons about process and the rule of law. While great presidents like Lincoln and both Roosevelts found occasional detours expedient, they sought approval from stakeholders and the public. A track record of transparency and dialog builds credibility, which the Bush administration lost after its tardy response to the tragedy of Hurricane Katrina. In contrast, efforts to monopolize power are often myopic, leading to popular disillusionment, judicial skepticism, and the whistleblowing that disclosed the TSP and coercive interrogation. Moreover, excesses in national security often spill over into other domains: The threat of terrorism was a convenient rationale for hiring "loyal Bushies" and firing those not deemed to be "real Americans."

Some in the Bush administration understood these lessons. In President Bush's second term, for example, State Department officials like John Bellinger, Philip Zelikow, and Matthew Waxman and legislators like Senator Lindsey Graham of South Carolina fought to uphold the principles of the Geneva Convention. They and others, including military personnel worried about the safety of America's own uniformed forces, noted that coercive interrogation usually yields information that a subject believes the interrogator wishes to hear. However, power players like Vice President Cheney and David Addington never abandoned the argument that detours were an emblem of virtue, and consultation a badge of weakness. Understanding the Bush administration's detours can help us see the warning signs in the future, and strive to stay on the right track.