This is my last post for 2009 I thought I would write about Afghanistan but on second thought I will, no doubt, be doing that quite a lot during 2010. Thanks to the Obama Administration’s surge strategy Afghanistan will, from a blogging viewpoint, be the gift that keeps on giving.

So, as we contemplate whether 2010 will be better or worse let’s take a moment to consider 2009. In the spirit of Dave Barry’s classic annual year in review column let’s acknowledge, albeit with some poetic license commentary by moi, a few of the significant events that made, however briefly, the headlines.

Although it started on Dec. 28 2008 the month of January saw massive Israeli air strikes and a ground force invasion of the Gaza Strip. Heavy fighting took place in Gaza City between the Israeli forces and Hamas. At least 1300 Palestinians were killed. On Jan. 17 Israeli Prime Minister Ehud Olmert announced a unilateral ceasefire in the Gaza Strip, declaring that Israel has achieved the goals it set when launching the military operation. On Jan. 21 Israel completes its troop withdrawal from the Gaza Strip.

Also that month President Barack Obama signed executive orders closing the US detention camp at Guantánamo Bay, Cuba, within a year; closing the CIA’s secret prisons; requiring a review of military trials for terror suspects; and requiring all interrogations to follow the non-coercive methods specified in the Army Field Manual.

Of course, nobody knew back then that the camp would end up in Illinois. One can only hope that the inmates are not too acclimated to the Caribbean climate to adjust to a midwest winter.

On Jan 27 Hama declared that it previously was just kidding and broke the ceasefire by attacking an Israeli frontier patrol. Israel immediately responded that it lacks a sense of humor and renewed its air strikes on the Gaza Strip border with Egypt.

On Feb. 3 Iran launched its first domestically built satellite into orbit. Iran stated that the satellite is meant for research and telecommunications purposes, but Western states express concern that the technology could be used in the development of ballistic missiles. The U.S. intelligence community, estimating that Iran will show the same swift progress with its missiles that it did with its nuclear program, predicted the next flight will be in 2040.

On Feb. 6, renewing their classic rivalry, a British and a French nuclear submarine collided in the middle of the Atlantic Ocean. Political leaders from both countries sighed in relief that it was merely submarines and not their respective football fans that collided. (more…)

A five year old boy killed by a shot of acid to the heart. Bodies dissolving in vats of chemicals. Plastic bags containing severed heads dumped in shopping centers. These are brief glimpses into the brutality of Mexico’s savage drug war, which has killed over 13,000 people since Mexico’s President Calderon deployed the army to curtail cartel activity in 2006. While grisly headlines churned out by the American media ensure that the chaos in Mexico is well known in the US, the long-term ramifications of that chaos have not yet been fully considered. Nor, it seems, have they been a priority in DC since the signing of the Merida initiative. But even though the maelstrom in Mexico has been overshadowed by national nail-biting over Afghanistan and Iran, it carries a heavy impact for the security of many Americans. The Obama administration, busy as it may be, cannot afford to continue ignoring the situation south of the border. Instead, Obama must be proactive, addressing the situation now before it worsens and the US finds itself with security threats on its border, not half a world away in Afghanistan.

Mexican drug violence is increasingly spilling over into the US. Already, the Department of Justice has designated Mexican drug cartels as the biggest organized crime threat in the US.  In the past few years there has been a substantial increase in the number of cartel-related crimes in the US, with cartel activity in forty-eight states. In 2006, the Justice department estimated that 100 cities in the U.S. were affected by cartel activity. By 2009, that number had risen to 230. Accompanying these rising numbers are rising crime statistics. In Phoenix, for example, the police department has recorded 700 home invasions in the past two years, all of them linked to drug and human smuggling. Between 2004 and 2007, a Mexican drug trafficking ring tortured and killed nine men in San Diego, dissolving two of their bodies in acid. And in Alabama in 2008, police stumbled upon the corpses of five men who had their throats slit for not paying their debt to a drug-trafficking ring.

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For those who love America, one simple thing is supposed to mark the political culture of this country as fundamentally fair and just: the role the law plays in providing protection and redress against the excesses, incompetence, and cruelty of government itself. We believe, deeply and instinctively, that government is sometimes so corrupt and ineffective that mechanisms are necessary to ensure that government officials are accountable for their actions. And, in order to ensure that accountability is real and not just symbolic, we have erected a network of laws to protect the citizenry from its powerful servants in Washington.

Take the Torture Victims Protection Act (“TVPA”), for instance. The TVPA was enacted by Congress to provide ordinary people with the right to sue government officials who commit or authorize others to commit torture where those officials have acted “under the color of” foreign law in doing so. Under the TVPA, an official acts “under the color of” foreign law by undertaking acts under the actual or apparent authority of that foreign nation’s legal system. What does that mean exactly? Well, according to the Supreme Court in Brentwood Academy (531 U.S. 288 (2001)), in the context of civil rights suits it is the court’s responsibility to determine, by taking all the relevant facts into account without using “rigid criteria,” whether an official’s conduct was made possible or facilitated by a foreign legal regime. An U.S. official need not have legal authority or hold office of any kind in a foreign legal system; all that is required is that the U.S. official’s actions or commands are carried out or enabled by a foreign legal regime.

The TVPA provides civil damages for those who can meet this flexible legal standard, and while it would be better if people were never tortured in the first place, the damages available under this law in theory ensure that torture does not go unpunished. (more…)

President Obama is in something of a pickle. Federal courts have ordered that 21 photos of American soldiers abusing prisoners in Iraq and Afghanistan must be released to the public. The Obama Administration has asked the Supreme Court to step in to prevent the release of these photos, but Congress has an even surer way of keeping them away from the public’s scornful gaze. Congress is considering a new law that would give the Secretary of Defense the sole and exclusive right to determine whether these photographs will ever be released to the American people. And it gets worse: Mr. Obama supports this insane and unconstitutional measure.

Let’s address, with measured haste, the obvious: Obama has taken a hypocritical position on the release of these photographs. He campaigned under the much lauded and little understood banner of “change,” a vague yet noble set of aspirations that is clearly at odds with the stance he has taken on releasing these records of human abuse. “But has our President changed his mind for a good reason?,” you earnestly ask. Well, Obama has apparently accepted the Pentagon’s view that releasing these photos would put American troops in unnecessary danger and serve as an effective recruiting tool for Muslim extremists.

So there it is, the Obama Administration’s view in a nutshell: We can’t talk have a long, hard look at these photos because that would mean “unnecessary danger” for our beloved troops. (more…)

The Society for Professional Journalists has for quite some time wanted Congress to pass a law that would give reporters a right to keep their sources confidential.  Such a law, commonly referred to as a “shield” law, has obvious advantages from the perspective of the dedicated professionals that collect and disseminate news for the rest of us.

The current shield law making the rounds in Congress is called the Free Flow of Information Act (FFIA).  According to FFIA advocates, the bill is essential because it will enable journalists to collect information of essential importance to the public without laboring under the fear that they will one day have to disclose their sources.  The thought is simple and appealing:  When journalists are able to protect the confidentiality of their sources, the public benefits from the increased access to accurate information that journalists would otherwise be unable to obtain.  In this way, shield laws like FFIA are consistent with the free-speech values that undergird our Constitution.

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Take a moment, dear friends, to consider Judge Milan Smith’s sentiments about the practice of detaining Americans as “material witnesses” to terrorist activities without formally charging them with a crime:

“We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Those words were taken from in al-Kidd v. Ashcroft, a decision by a Ninth Circuit panel holding that John Ashcroft may be sued for his participation in detaining suspected terrorists or terrorist affiliates under the federal material witness statute. In particular, the court held that:

1. (absolute immunity) Ashcroft is not entitled to absolute immunity from suit as representative of the United States government because in allegedly detaining al-Kidd, Ashcroft was engaging in investigative conduct, not purely “prosecutorial” conduct of the type for which officials receive absolute immunity from third-party liability.

2. (rights violations) Ashcroft may be sued for allegedly violating al-Kidd’s Fourth Amendment rights against unlawful detention and statutory rights afforded al-Kidd under the federal material witness statute because it is possible that Ashcroft did play a critical role in al-Kidd’s detention.

However, Ashcroft cannot be sued on the theory that he played a role in determining the allegedly harsh conditions of al-Kidd’s confinement under the high-bar for such allegations set out in the Supreme Court’s Iqbal decision (which I have criticized at some length here).

3. (qualified immunity) Even though Ashcroft is entitled to qualified immunity as a representative to the United States government, al-Kidd may bring an action against him because at the time Ashcroft allegedly decided to use the material witness statute to detain al-Kidd, it was legally certain that doing so would be unlawful. (more…)

Some time ago I wrote a story about Javaid Iqbal, a cable installer the U.S. government allegedly tortured in detention center in Brooklyn. My argument was simple: Mr. Iqbal should be able to present, in court, his case that John Ashcroft and Robert Mueller played key roles in the decision making processes that led to the violation of his constitutional rights. At that point, it looked very much like Mr. Iqbal would be denied his day in court. My fear was that the Supreme Court would throw out his case because Mr. Iqbal would be unable to submit before his case got under way substantial evidence that Ashcroft and Mueller called the shots from on high, ultimately causing the torture he endured.

Unfortunately, I was right. Not only was Mr. Iqbal denied his right to press his claims against the U.S. government and key government officials, the Supreme Court endorsed a problematic approach to evaluating federal lawsuits. The Court rehearsed the old saw, from a case called Twombly, that a case should be dismissed unless the plaintiff’s complaint includes allegations with “factual content” that allows the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” So far, so good. But then the Court did something truly irritating: it viewed Iqbal’s claims with extreme suspicion, concluding that because the September 11th attacks were perpetrated by Arab Muslims, Iqbal’s claim that his constitutional rights had been violated based on discriminatory factors was not articulated with sufficient specificity.

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It is easy to forget that the war on terror poses a direct challenge to the very ideals that animate and enliven our democracy. America is predicated on the idea that fairness and justice should reach the farthest bounds of the republic, providing identical protections to the good and wicked alike. This, of course, requires extreme caution when depriving the liberty of even those criminals that are clearly guilty of the most heinous crimes.

Many thoughtful, intelligent people believe that this premise, this central ideal of American democracy, seems to make little sense when applied to suspected terrorists. After all, the foes we face are un-uniformed and do not announce themselves to us. They attack our economic, political and social infrastructure with frightening skill and ingenuity. Al Qaeda, in particular, has proven itself to be an adversary never to be underestimated, a foe that successfully attacked the world’s preeminent military power with very modest resources. Since we are facing such a vicious, lawless opponent, can it really be rational to extend the same protection to (suspected) terrorists that we would to ordinary criminals?

Jose Padilla believes that the answer is yes. Mr. Padilla has filed a lawsuit contending that John Yoo, co-author of the torture memos, abused his charge as a government lawyer by helping to create policies that encouraged harsh interrogation tactics and torture. The idea here is simple: Yoo should be held liable for the foreseeable results of the interrogation policies for which he provided legal justifications. This sort of theory has a long and storied pedigree, making its initial appearance in a case called Bivens, where the Supreme Court granted damages to an individual citizen who had his constitutional rights violated by federal agents acting on behalf of the U.S. government.
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This month, President Obama announced that his administration would be retaining and reforming, rather than abolishing altogether, the heavily criticized military commissions implemented by the Bush administration. His reforms outline a number of changes to the commissions’ procedural rules, primarily designed to afford greater protection to detainees and to thereby “restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law.” Needless to say, Obama’s decision to maintain the military commissions has bitterly disappointed human rights and civil liberties advocates, who had hoped that his promise to close Guantanamo Bay would also signal the end of the politically and legally controversial commissions. In criticizing the Obama’s decision, such advocates have raised two key questions about the retention of the military commissions. First, will the proposed changes in fact restore the legitimacy of the commissions, or do they not go far enough? Second, is the underlying raison d’être of the tribunals—the idea that the detainees in question are too dangerous to release, but too difficult to prosecute in the federal courts—still valid?
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Earlier this month, the Department of Justice (DOJ) announced the release of four Office of Legal Counsel (OLC) opinions, detailing the legal justifications for the Bush administration’s use of torture between 2002 and 2005.  Although the DOJ was careful to emphasise that the OLC torture memos (as they are now widely known) “no longer represent the views of the Office of Legal Counsel”, the release of the memos was accompanied by one enormous caveat: the DOJ would under no circumstances prosecute any intelligence official who acted reasonably and relied in good faith on the memos.

The question then arises: if we can’t go after the CIA, can we go after the legal advisers who crafted the memos in the first place?  Precedents certainly exist for the prosecution of lawyers who negligently or purposefully authorise serious violations of international law.  As Kevin Jon Heller points out, these include the successful prosecution of the Nazi government’s key legal advisers, for failing to alert the government to the illegality of forced deportations of Jewish people to concentration camps during the Second World War.  (If Nazi Germany seems inappropriate as a point of reference, just keep in mind that the issue is not whether the U.S. Government in the wake of September 11th is to be viewed as morally equivalent of the Nazi regime.  Of course it isn’t.  The issue is whether legal advisers can be prosecuted for knowingly and deliberately violating international law.)  And there is certainty no lack of public sentiment baying for the blood of the relevant Bush-era lawyers, including Steven Bradbury, Jay Bybee and John Yoo.  Indeed, both Bybee and Yoo (along with David Addington and others) are currently the subject of a criminal prosecution in Spain for authorizing torture and other war crimes carried out at Guantanamo Bay.

Assuming that we can prosecute the lawyers, the question remains whether, as a matter of policy, we should.  There are, of course, convincing moral arguments in favour of punishing those who came up with the shifty legal apparatus and euphemisms that allowed such “interrogation techniques” to be seen as permissible.  However, our main concern here is whether prosecuting the OLC would serve a meaningful regulatory purpose, even where convictions are unlikely.

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