A War Like No Other

by Fiss, Owen

  14. Military Commissions Act of 2006, Pub. L. No. 109-366, § 7, 120 Stat. 2600.

  15. The courts have since rejected the military commissions’ jurisdiction over material support for terrorism as an international law crime. Hamdan v. United States (Hamdan II), 696 F.3d 1238, 1250 (D.C. Cir. 2012). June 14, 2014 en banc decision.

  16. See Alberto Gonzales, “Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States,” February 6, 2006, www.justice.gov/archive/ag/speeches/2006/ag_speech_060206.html.

  17. Letter from Alberto Gonzales, Attorney General, to Senators Patrick Leahy and Arlen Specter, Chairmen of the Committee on the Judiciary, January 17, 2007, available at graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf.

  18. Protect America Act of 2007, Pub. L. No. 110-55. 121 Stat. 552.

  19. FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.

  20. Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004).

  21. Ibid., 324–39.

  22. Rumsfeld v. Padilla, 542 U.S. 426 (2004).

  23. Padilla v. Hanft, 389 F. Supp. 2d 678, 692 (D.S.C. 2005).

  24. Padilla v. Hanft, 423 F.3d 386, 389 (4th Cir. 2005).

  25. Padilla v. Hanft, 547 U.S. 1062 (2006).

  26. Rasul v. Bush, 542 U.S. 466, 483–85 (2004).

  27. Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005, 119 Stat. 2680, 2740–44 (codified at 42 U.S.C. § 2000dd [2006]).

  28. Hamdan v. Rumsfeld, 548 U.S. 557, 572–84 (2006).

  29. Military Commissions Act of 2006, Pub. L. No. 109-366, § 7(b), 120 Stat. 2600, 2636.

  30. Rasul v. Myers, 512 F.3d 644, 665 (D.C. Cir. 2008).

  31. 553 U.S. 723 (2008).

  32. Ibid., 764–66.

  33. Ibid., 796–98.

  34. Ibid., 753–71.

  35. Ibid., 766.

  36. 424 U.S. 319 (1976).

  37. Exec. Order No. 13,491, 74 Fed. Reg. 4,893 (January 22, 2009).

  38. Exec. Order No. 13,492, 74 Fed. Reg. 4,897 (January 22, 2009).

  39. Exec. Order No. 13,491, 74 Fed. Reg. at 4,894.

  40. Carrie Johnson, “Prosecutor to Probe CIA Interrogations,” Washington Post, August 25, 2009, www.washingtonpost.com/wp-dyn/content/article/2009/08/24/AR2009082401743.html.

  41. Mark Mazzetti, “Obama Releases Interrogation Memos, Says C.I.A. Operatives Won’t Be Prosecuted,” New York Times, April 16, 2009, thecaucus.blogs.nytimes.com/2009/04/16/secret-interrogation-memos-to-be-released/?ref=politics. See also chapter 7, “Torture and Extraordinary Rendition.”

  42. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc).

  43. Arar v. Ashcroft, 585 F.3d 559, 574–78 (2nd Cir. 2009) (en banc).

  44. Benjamin Weiser and Colin Moynihan, “Guilty Plea in Times Square Bomb Plot,” New York Times, June 25, 2010, www.nytimes.com/2010/06/22/nyregion/22terror.html.

  45. Charlie Savage, “Nigerian Indicted in Terrorist Plot,” New York Times, January 7, 2010, A14; U.S. Department of Justice, “Umar Farouk Abdulmutallab Indicted for Attempted Bombing of Flight 253 on Christmas Day,” news release, January 6, 2010, www.justice.gov/opa/pr/2010/January/10-nsd-004.html.

  46. See, e.g., Oversight of the Department of Justice: Hearing Before the S. Comm. on the Judiciary, 111th Cong. (2009) (statement of Attorney General Eric Holder); see also Charlie Savage, “Holder Defends Decision to Use U.S. Court for 9/11 Trial,” New York Times, November 19, 2009, A18.

  47. Military Commissions Act of 2006, Pub. L. No. 109-366, § 3(a)(1), 120 Stat. 2600.

  48. National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 1802, 123 Stat. 2190, 2574 (2009).

  49. See notes 18 and 19, above.

  50. Johan Steyn, “Guantánamo Bay: The Legal Black Hole,” International and Comparative Law Quarterly 53, no. 1 (2004): 1–15.

  51. Al Maqaleh v. Gates, 604 F. Supp. 2d 205, 231–32 (D.D.C. 2009).

  52. Al Maqaleh v. Gates, 605 F.3d 84, 99 (D.C. Cir. 2010).

  53. Al Maqaleh v. Hagel, 738 F. 3d 312 (D.C. Cir. 2013).

  54. Clapper v. Amnesty Int’l U.S.A., 133 S. Ct. 1138 (2013). See generally chapter 9.

  Chapter 5: Law Is Everywhere

  This chapter is based on “Law Is Everywhere,” Yale Law Journal 117 (2007): 256–78.

  1. Aharon Barak, “Constitutional Law Without a Constitution: The Role of the Judiciary,” in The Role of Courts in Society, ed. Shimon Shetreet (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1988): 448–67.

  2. CA 6821/93, 1908/94, 3363/94 United Mizrachi Bank v. Migdal Coop. Vffl. 49(4) 221 [1995] (Isr.), translated in Israeli Law Review 31 (1997): 777–94.

  3. See Yuval Yoaz, “Friedmann Seeks New Version of Intifada Law, Bypassing Court,” Haaretz, June 5, 2007, www.haaretz.com/hasen/spages/867274.html.

  4. HCJ 5100/94 Pub. Comm. against Torture in Isr. v. State of Israel [September 6, 1999](Isr.) slip op., available at elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.pdf.

  5. HCJ 769/02 Pub. Comm. against Torture in Isr. v. Gov’t of Israel [December 11, 2006] (Isr.) slip op. para. 22 (quoting HCJ 7957/04 Mara’abe v. Prime Minister [2005] para. 29), available at elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf.

  6. HCJ 2056/04 Beit Sourik VOL Council v. Gov’t of Israel [June 30, 2004] (Isr.) slip op., available at elyon1.court.gov.il/files_eng/04/560/020/a28/04020560.a28.pdf.

  7. HCJ 769/02 Pub. Comm. against Torture in Isr. v. Gov’t of Israel [December 11,2006] (Isr.) slip op., available at elyon1.court.gov.il/Files_ENG/02/690/007/A34/02007690.A34.pdf.

  8. See Aharon Barak, The Judge in a Democracy (Princeton, NJ: Princeton University Press, 2006), 256–57.

  9. HCJ 769/02 Pub. Comm. against Torture in Isr. v. Gov’t of Isr. [December 11, 2006] (Isr.) slip op. para. 40, available at elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf.

  10. Korematsu v. United States, 323 U.S. 214 (1944).

  11. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,551 U.S. 701 835 (2007) (Breyer, J., dissenting); Nixon v. Shrink Mo. Gov’t PAC, 528 US. 377, 401–2 (2000) (Breyer, J., concurring); Dist. of Colum. v. Heller, 554 U.S. 570 (2008) (Breyer, J., dissenting).

  12. See, e.g., Barak, Judge in a Democracy, 309.

  Chapter 6: Imprisonment Without Trial

  This chapter is based on “Imprisonment Without Trial,” Tulsa Law Review 47 (2011): 347–62.

  1. U.S. Constitution, art. 1, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).

  2. Geneva Convention Relative to the Treatment of Prisoners of War art. 118, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

  3. See ibid., art. 87 (“Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.”).

  4. Military Order of Nov. 13, 2001, 66 Fed. Reg. 57833 (November 16, 2001); see also Memorandum from President George W. Bush to Vice President Richard B. Cheney et al., “Humane Treatment of al-Qaeda and Taliban Detainees,” February 7, 2002, reprinted in The Torture Papers: The Road to Abu Ghraib, ed. Karen J. Greenberg and Joshua L. Dratel (New York: Cambridge University Press, 2005), 134.

  5. United States v. Lindh, 212 F. Supp. 2d 541, 552-58 (E.D. Va. 2002).

  6. Geneva Convention Relative to the Treatment of Prisoners of War art. 3.

  7. President Barack Obama, “Remarks by the President on National Security,” May 21, 2009, www.whitehouse.gov/the-press-office/remarks-president-national-security-5-21-09.

  8. Ibid.

  9. Harold Hongju Koh, Legal Advisor, U.S. Department of State, “The Obama Administration and International Law,” March 25, 2010, at III.B.1.b, www.state.gov/s/l/releases/remarks/139119.htm. See also Alissa J. Rubin, “U.S. Backs Tri
al for Four Detainees in Afghanistan,” New York Times, July 18, 2010, A6 (describing the process of transferring responsibility for prisoners held in Afghanistan) (“One potential problem that has yet to be confronted is that an Afghan court could acquit a detainee whom the American review board deems a continuing threat. Then whose law will prevail? ‘Anybody not found guilty can be released, but we have an intense interest in not releasing people that pose a risk to the people of Afghanistan and to us,’ said Capt. Gregory Belanger, director of legal operations for Task Force 435.”).

  10. Geneva Convention Relative to the Treatment of Prisoners of War, art. 2 (“Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”).

  11. See, e.g., Obama, “Remarks by the President on National Security” (“Now let me be clear: We are indeed at war with al-Qaeda and its affiliates. We do need to update our institutions to deal with this threat.”); President Barack Obama, “Remarks by the President on Strengthening Intelligence and Aviation Security,” January 7, 2010, www.whitehouse.gov/the-press-office/remarks-president-strengthening-intelligence-and-aviation-security (“We are at war. We are at war against al-Qaeda, a far-reaching network of violence and hatred that attacked us on 9/11, that killed nearly 3,000 innocent people, and that is plotting to strike us again.”).

  12. Guantanamo Review Task Force, Final Report (January 22, 2010), 23, www.justice.gov/ag/guantanamo-review-final-report.pdf.

  13. Obama, “Remarks by the President on National Security.”

  14. Ibid.

  15. Exec. Order No. 13,491, 74 Fed. Reg. 4893 (January 22, 2009).

  16. See, e.g., United States v. Moussaoui, 365 F.3d 292 (2004) (balancing national security interests against constitutional rights in the production of evidence).

  17. See, e.g., U.S. Department of Justice, “Statement of Attorney General John Ashcroft Regarding the Padilla Case,” news release, February 20, 2004. See also Letter from Paul Wolfowitz, Deputy Secretary of Defense, to James Comey, Deputy Attorney General, May 28, 2004.

  18. U.S. Deparment of Justice, “Jose Padilla Charged with Conspiracy to Murder Individuals, Providing Material Support to Terrorists,” news release, November 22, 2005, www.justice.gov/archive/opa/pr/2005/November/05_crm_624.html.

  19. Oversight of the Department of Justice: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 1 (2009) (statement of Attorney General Eric Holder) (“And one of the things that this Administration has consistently said—in fact, Congress has passed legislation that would not allow for the release into this country of anybody who was deemed dangerous. And so that if—if there were the possibility that a trial was not successful, that would not mean that that person would be released into our country. That would—that is not a possibility. But again, I want to emphasize that I am confident that we will be successful in the trial of these matters.”).

  20. Obama, “Remarks by the President on National Security.”

  21. Ibid.

  22. Peter Baker, “Obama Says Current Law Will Support Detentions,” New York Times, September 24, 2009, A23.

  23. Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

  24. Harold Hongju Koh, “The Obama Administration and International Law,” March 25, 2010, www.state.gov/s/l/releases/remarks/139119.htm.

  25. Exec. Order No. 13,567, 76 Fed. Reg. 13277 (March 7, 2011), www.fas.org/irp/offdocs/eo/eo-13567.htm.

  26. David Cole, “Out of the Shadows: Preventive Detention, Suspected Terrorists, and War,” California Law Review 97 (2009): 693–750.

  27. Charlie Savage, “Embracing Bush Argument, Obama Upholds a Policy on Detainees in Afghanistan,” New York Times, February 22, 2009, A6. See also chapter 4, “Aberrations No More.”

  28. U.S. Department of Justice, “Umar Farouk Abdulmutallab Indicted for Attempted Bombing of Flight 253 on Christmas Day,” news release, January 6, 2010, www.justice.gov/opa/pr/2010/January/10-nsd-004.html; Charlie Savage, “Nigerian Indicted in Terrorist Plot,” New York Times, January 7, 2010, A14.

  29. U.S. Attorney, Southern District of New York, “Accused Al Shabaab Leader Charged with Providing Material Support to al Shabaab and al-Qaeda in the Arabian Peninsula,” news release, July 5, 2011, www.justice.gov/usao/nys/pressreleases/July11/warsameindictmentpr.pdf; Charlie Savage and Eric Schmitt, “U.S. to Prosecute a Somali Suspect in Civilian Court,” New York Times, July 6, 2011, A1.

  30. Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay at 1, In re Guantanamo Bay Detainee Litigation, No. 08-442 (D.D.C. March 13, 2009).

  31. See Andy Newman and Colin Moynihan, “Faisal Shahzad Arraigned on Terror Charges,” New York Times, May 18, 2010, cityroom.blogs.nytimes.com/2010/05/18/faisal-shahzad-to-be-arraigned.

  32. “Presidential Statement on Signing the National Defense Authorization Act for Fiscal Year 2012, 2011,” Daily Compilation of Presidential Documents, December 31, 2011, 1, 2. The National Defense Authorization Act for Fiscal Year 2012 codified and affirmed the policy of imprisonment without trial, but in doing so, it declared that the act was not applicable to American citizens or lawful resident aliens of the United States. See the National Defense Authorization Act for Fiscal Year 2012, Pub. Law. No. 112-81, § 1021(e), 125 Stat. 1298, 1562 (2011) (“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”).

  33. See U.S. Department of Justice, “Al-Marri Indicted for Proving Material Support to al-Qaeda,” news release, February 27, 2009, www.justice.gov/opa/pr/2009/February/09-ag-177.html; John Schwartz, “Admitted al-Qaeda Agent Receives Prison Sentence,” New York Times, October 30, 2009, A22.

  34. Non-Detention Act, Pub. L. No. 92-128, 85 Stat. 347 (1971) (current version codified at 18 U.S.C. § 4001(a)) (“No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”).

  35. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

  36. Boumediene v. Bush, 553 U.S. 723, 766 (2008).

  37. Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010). Al Maqaleh v. Hagel, 738 F. 3d 312 (D.C. Cir. 2013).

  Chapter 7: Torture and Extraordinary Rendition

  This chapter is based on “The Example of America” (2009), Faculty Scholarship Series, Paper 1308, available at digitalcommons.law.yale.edu/fss_papers/1308.

  1. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85.

  2. The principal implementing statute is the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-822 (codified at 8 U.S.C. § 1231 [2012]). Other implementing statutes consist of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. 103-236, 108 Stat. 382 (codified at 18 U.S.C. §§ 2340, 2340A [2012]); and the Torture Victims Relief Act of 1998, Pub. L. 105-320, 112 Stat. 3017 (codified at 22 U.S.C. 2152 [2012]).

  3. For a general overview of the Constitution’s prohibitions against torture, see Seth F. Kreimer, “Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror,” University of Pennsylvania Journal of Constitutional Law 6 (2003): 278–325.

  4. Rochin v. California, 342 U.S. 165, 172 (1952).

  5. Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

  6. Lawrence v. Texas, 539 U.S. 558 (2003).

  7. See President George W. Bush, “Statement on United Nations International Day in Support of Victims of Torture,” Public Papers of the President, June 26, 2004, 1141.

  8. For an overview of the or
igins of this phrase, see Mark Danner, “US Torture: Voices from the Black Sites,” New York Review of Books, April 9, 2009. Danner cites the widespread use of this language and specifically quotes Cofer Black, former head of the CIA’s Counterterrorism Center. See Joint Investigation into September 11th: Hearing Before the J.H.S. Intelligence Comm., 109th Cong. (2002) (statement of Cofer Black, former director, CIA Counterterrorism Center).

  9. Memorandum from Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, to Alberto Gonzales, Counsel to the President, Executive Office of the President, August 1, 2002, available at www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf.

  10. Ibid., 1.

  11. 18 U.S.C. § 2340.

  12. Memorandum from William Haynes, Gen. Counsel, U.S. Department of Defense, to Donald Rumsfeld, Secretary of Defense, November 27, 2002, available at dspace.wrlc.org/doc/bitstream/2041/70971/00512_021127_001display.pdf.

  13. Ibid.

  14. Ibid.

  15. Memorandum from Donald Rumsfeld, Secretary of Defense, to Gen. James T. Hill, Commander, U.S.S. Command, April 16, 2003, available at dspace.wrlc.org/doc/bitstream/2041/71014/00721display.pdf (noting in Tab A that techniques “A-Q,” authorized in the memo, are authorized by the Army Field Manual 34-52, but that “[f]urther implementation guidance with respect to techniques R-X will need to be developed by the appropriate authority”).

  16. According to a letter sent to a federal judge by an Acting U.S. Attorney, the CIA destroyed ninety-two interrogation tapes. See Letter from Lev L. Dassin, Acting U.S. Attorney, S.D.N.Y., to Alvin K. Hellerstein, Judge, S.D.N.Y., March 2, 2009, available at www.aclu.org/pdfs/safefree/lettertohellerstein_ciainterrogationtapes.pdf.

  17. See Danner, “US Torture,” chap. 7, n8.

  18. “Nightline: Inside the CIA; Inside the Secret Prisons,” ABC television broadcast, December 10, 2007.

  19. Confirmation Hearing of Michael Mukasey Before the S. Comm. on the Judiciary, 110th Cong. (2007).

  20. Memorandum from Daniel Levin, Acting Assistant Attorney General, to James B. Comey, Deputy Attorney General, December 30, 2004, available at www.aclu.org/files/torturefoia/released/082409/olcremand/2004olc96.pdf.