WASHINGTON — A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts. The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight.

The detainees, two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base.

But a three-judge panel of the United States Court of Appeals for the District of Columbia ruled unanimously that the three had no right to habeas corpus hearings, in which judges would review evidence against them and could order their release. The court reasoned that Bagram was on the sovereign territory of another government and emphasized the “pragmatic obstacles” of giving hearings to detainees “in an active theater of war.”

The ruling dealt a severe blow to wider efforts by lawyers to extend a landmark 2008 Supreme Court ruling granting habeas corpus rights to prisoners at Guantánamo Bay, Cuba. A lower court judge had previously ruled that the three Bagram detainees were entitled to the same rights, although he had found that others captured in Afghanistan and held there were not.

A lawyer for the detainees, Tina Foster, said that if the precedent stood, Mr. Obama and future presidents would have a free hand to “kidnap people from other parts of the world and lock them away for the rest of their lives” without having to prove in court that their suspicions about such prisoners were accurate.

“The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.”

Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker in the long-running debate over detentions, called the ruling a “big win” and praised the administration for appealing the lower court’s ruling.

“Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,” he said. “It also would have dealt a severe blow to our war effort.

“There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.”

It was not entirely clear how the ruling might affect detention policies for terrorism suspects caught outside Afghanistan or Iraq. While the Obama administration has stepped up the use of Predator drone strikes to kill terrorism suspects and has relied on other countries, like Pakistan, to hold and interrogate suspects who are captured alive, it is not known whether the United States has directly captured anyone outside Afghanistan or Iraq recently — and, if so, where it has taken them.

A Justice Department spokesman, Dean Boyd, would not comment on the decision.

David Rivkin, who filed a friend-of-the-court brief on behalf of the Special Forces Association urging the court to side with the government, said the ruling would have broad significance by removing doubts over whether the United States could capture and interrogate terrorism suspects without worrying about having to collect, in dangerous situations, evidence that would later stand up in court.

“This is an excellent decision,” said Mr. Rivkin, who was a White House lawyer in the administration of the first President Bush. “It has restored a considerable degree of sanity to what threatened to be a crazy legal regime that would have deprived the United States, for the first time in history, of the opportunity to capture and detain — outside of the United States, in theaters of war — high-value combatants. That has been solved, and it will apply to many other situations in the future.”

The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed. (The government has disputed the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates of the Federal District Court, an appointee of former President George W. Bush. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantánamo, arguing that courts should not interfere with military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the three men who had filed suit and Guantánamo prisoners. His decision was limited to non-Afghans captured outside Afghanistan — a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said.

In urging the appeals court to let Judge Bates’s decision stand, lawyers for the detainees argued that reversing it would mean that the government would be able “to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

But in the appeal panel’s decision reversing Judge Bates, Chief Judge David B. Sentelle said there had been no such gamesmanship in the decision to bring the three detainees to Bagram because it happened years before the Supreme Court’s Guantánamo rulings.

Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantánamo in the future, writing, “We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than speculation.”

Ms. Foster vowed to keep fighting. But Mr. Rivkin said that the detainees’ chances for overturning the decision were dim because the three appeals judges spanned the ideological spectrum: Chief Judge Sentelle, appointed by President Ronald Reagan; Judge Harry T. Edwards, appointed by President Jimmy Carter; and Judge David S. Tatel, appointed by President Bill Clinton.

It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantánamo case. Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.

The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.

Published in the LATimes: May 10, 2010 By: David B. Rivkin Jr. and Vincent J. Vitkowsky

In a recent hearing before the Senate Judiciary Committee, Atty. Gen. Eric H. Holder Jr. said that a civilian trial in New York City for Khalid Shaikh Mohammed and four other accused 9/11 plotters was still “not off the table.” This is unfortunate, and not only because such a trial would inevitably compromise classified information, impose massive security and logistical costs on New York, and provide the defendants with a superb propaganda platform. Another major problem with a civilian trial has been largely overlooked: the impact on the 12 private citizens unlucky enough to be chosen as jurors.

The trial of Mohammed would be a long and dangerous ordeal for jurors. They would be forced to surrender years of their lives. They would have to be entrusted with classified information of value to Al Qaeda. Their identities almost certainly would become public knowledge, and they could easily be subjected to intimidation. Consider Osama bin Laden’s threat on March 25 to execute all captured Americans if the defendants or any other Al Qaeda operatives in U.S. custody are executed. Wouldn’t jurors who vote to convict or impose the death penalty have reason to fear that they themselves could become targets for revenge attacks? Meanwhile, a juror who, however improbably, voted to acquit a defendant thought to be responsible for an attack that killed thousands of Americans is likely to be ostracized by many of his fellow countrymen. Either scenario would wreak havoc with civilian jurors’ lives.

The problems posed by holding highly publicized terrorists trials, involving defendants who belong to a functioning paramilitary organization, are well illustrated by the British experience in Northern Ireland, where the British government was forced to create specialized terrorism courts, in part because of the inability to obtain convictions from thoroughly intimidated jurors. Under constant threat from the IRA and other factions, most prospective jurors in Northern Ireland either showed a propensity to acquit or were afraid to serve.

Closer to home and more recently, the experience from the civilian trial of Zacarias Moussaoui, the so-called 20th hijacker, also demonstrated the formidable potential for verbal intimidation, propaganda and grandstanding, with significant deleterious impact on the jury. Even though Moussaoui pleaded guilty, a jury had to be empanelled because the government sought the death penalty. The sentencing phase alone took a full year. The prosecution reviewed the horrors of 9/11, and the defense put the government on trial by arguing that the U.S. did little to prevent the attacks.

Moussaoui had to be ejected from the courtroom several times. As the prosecution described 9/11, he pumped his fists and shouted, “God curse America!” He called the collapse of the twin towers “gorgeous,” and predicted that “3,000 miscreants” will burn in “hellfire.” He testified that the 9/11 survivors and family members were “pathetic” and “disgusting.” Most of the jury favored death, but there was a lone holdout, so the jury delivered a sentence of life imprisonment. Upon hearing it, Moussaoui declared, “America, you lost! I won.” It was difficult not to conclude that, given Moussaoui’s involvement in the worst terrorist attack on American soil, the failure to secure the death penalty was both a setback for the prosecution and a source of grief for many of the victim’s’ families.

To be sure, similar concerns about intimidation can arise when private citizens serve as jurors in some criminal trials. Organized crime’s presence in the U.S. is of much longer standing than Al Qaeda’s, and jurors have often faced threats of retribution. That is one reason criminal trials do not always succeed. Witness, for example, the government’s capitulation earlier this year in deciding not to proceed against John Gotti Jr. in New York after four mistrials in over five years. Yet, while Gotti is a U.S. citizen, entitled to be tried in a civilian court, Mohammed is not.

All of the jury intimidation problems are resolved entirely by trying Mohammed and the other accused 9/11 plotters before a military commission. The jury in this setting would consist of 12 officers who have voluntarily accepted the risks of their profession, including the prospects of facing death on or off the battlefield. Given the choice between trying the accused mastermind of the 9/11 attacks before a vulnerable jury in civilian court or before a military commission in a secure location such as Guantanamo Bay, we should choose wisely.

David B. Rivkin Jr., an attorney in Washington, served in the Department of Justice in the administrations of Presidents Ronald Reagan and George H.W. Bush. Vitkowsky is an attorney in New York City. Both are affiliated with the Center for Law and Counterterrorism.

Thursday, February 4, 2010

defenddemocracy.com
Escape from Guantanamo Bay

LEE A. CASEY & DAVID B. RIVKIN JR.

In truth, it will be far more difficult for the president to accept that his decision to close Guantanamo was wrong than it will be for him to explain a reversal of the policy. Here, the spin is easy - it has the unusual virtue of being true.

Obama has consistently maintained that he would not endanger American security in implementing his policies vis-à-vis al-Qaeda and its allies - he could hardly have done otherwise. That being the case, he need only acknowledge that one of the fundamental aspects of his Guantanamo closure policy - the ability to transfer most of the detainees either to their own countries or to third countries for "rehabilitation" - has not worked out as he had hoped and expected. The only way of closing Guantanamo and ensuring U.S. security interests would be to bring the entire detainee population into the United States, which he never planned to do. Therefore, Guantanamo will have to remain open pending further review of detainee repatriation opportunities and policies.

The problem, of course, is that Mr. Obama's base spent nearly eight years claiming that Guantanamo was inherently evil and that it was a stain on the nation's reputation attributable to George W. Bush's insatiable desire to concentrate power in his own hands regardless of individual rights.

The Bush policy was, of course, neither evil nor unlawful, and any "stain" has always been more imaginary than real. But too many of Bush's critics came to believe their own propaganda, and changing these beliefs will be hard. Nevertheless, the presidency is a hard job - so Mr. Obama had best get to it.

From Thoughtbasket.com:
The Christmas Bomber and Miranda
February 4, 2010 · 1 Comment

Bad timing for David Rivkin, who used Tuesday’s Wall Street Journal for one of his monthly attacks on some Obama policy. This time it was about the Christmas Day bomber, with Rivkin saying that not immediately sending the bomber into military detention was “an intelligence failure of massive proportions.” Too bad that the very next day, today, the exact same newspaper reported that the Christmas bomber is again talking to the FBI, providing “valuable intelligence.” This also damages the arguments of this guy and this woman. Look, there are valid reasons to say that terrorists should be viewed as wartime combatants rather than criminals. But claiming that we won’t get good information from terrorists held in the civilian legal system is clearly not a valid reason. And there is at least one good reason not to throw them in military brigs: it creates an appearance of the US being at war with Islam, which appearance seems to generate more terrorists. Finally, I would like to note, again, that George W. Bush also tried terrorists in civilian courts. For Republicans to now claim that this approach is terribly weak is to be hypocrites of the worst sort. Which is, I supposed, to be expected from politicians.
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