ASAP AMERICAN LEGAL HISTORY

American Legal History II Civil Liberties in Wartime - The Global War on Terror

What is the role of law in society? How does law impact society? How does context impact law?

"Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be

violated."

Do the ends justify the means?

What is the balance between liberty and security?

What should be the status of civil liberties in wartime?

Do we claim that new wars are without precedent to justify new limitations upon

the freedoms guaranteed by the First Amendment?

What is at stake in the balance between national security and civil liberties?

Tonight’s Timeframe . . . Civil War & Reconstruction → 1860 - 1877

Gilded Age → 1870s - 1900

Progressive Era → 1890s - 1920

American Imperialism → 1880s - 1914

World War I → 1914 - 1918

The Roaring Twenties → 1920 - 1929

Great Depression & New Deal → 1929 - 1941

World War II → 1941 - 1945

Post-War Boom → 1946 - 1959

Cold War → 1945 - 1991

Civil Rights Movement → 1954 - 1968

New Frontier & Great Society → 1960 - 1968

Vietnam War - 1954 - 1975

Era of Social Change - 1960 - 1980

End of the Century → 1980 - 2000

New Millenium → 2001 -

How is the Global War on Terror similar to, or different from, wars previously

discussed in class?

How and why are these distinctions important to the state of civil liberties?

9/11/2001 ● NYC, PA, DC ● Al Qaeda ● 2977 Victims ● Attack by nation

vs. attack by network

● Attacks created a state of armed conflict

● Motive → Fatwa ● President Bush:

Speech to Joint Session of Congress 9/20/01

● Righteous Indignation

Global War on Terror - Scope of the Conflict

● NATO - Article 5 ● Identifying, locating, and neutralizing

terrorists → Global Manhunt ● Bush Doctrine → “With us or with the

terrorists;” preventive action. ● Afghanistan, Taliban, and Al Qaeda ● 10/7/2001 → War in Afghanistan begins

→ Operation Enduring Freedom ● Coordinated effort of military and

intelligence agencies: ○ NSA, CIA, FBI, Department of

Defense, Department of Justice

Justifying Government Action ● Article II War Powers - Does the President have unlimited power to protect

the nation in wartime? ● Foreign Intelligence Surveillance Act (1978)

○ Amendments - 2006 & 2007 ● TWO Declarations of National Emergencies (2001) ● Authorization of the Use of Military Force (2001) ● “Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”

Act (2001) ● Military Commission Order #1 (2002) ● Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in

the War Against Terrorism (2001) ● Detainee Treatment Act (2005) ● Military Commissions Act (2006)

Were American actions in the Global War on Terror inherently virtuous?

If so, do international laws and agreements unreasonably restrain

American action?

Justifying Government Action - AUMF ● That the President is authorized to use all necessary and appropriate force

against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

● Congressional authorization for the Global War on Terror

Response to 9/11 - PATRIOT Act

● Expands authority to track and intercept communications ● Treasury → Money laundering ● New crimes (“Mass transit”), penalties, and procedures for foreign

and domestic terrorists ● Borders and suspected terrorists ● Facilitate cooperation between law enforcement and intelligence

agencies ● Expanded “material support” definition.

“We also have to work sort of the dark side, if you will. We're going to spend time in the shadows in the intelligence world.

A lot of what needs to be done here will have to be done quietly, without any discussions, using sources and methods

that are available to our intelligence agencies if we're going to be successful. That's the world these folks operate in.

And so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective.”

Vice President Dick Cheney on “Meet the Press” - 9/16/01

Response to 9/11 - Military Action ● Ultimatum → Afghanistan ● Defeat the Taliban ● Dismantle terror networks ● Gather and act on

intelligence ● “Snatch and Grab” Missions

→ Night Raids

Legal Questions - Enemy Combatants?

● Article II War Powers & AUMF Authority ● “Material support for terrorism . . .” ● What was the government’s interest in enemy combatant status after

9/11? ● If not enemy combatants . . . then what? And what is the legal status

of these individuals? ● How do we arrive at an enemy combatant designation? ● How does an enemy combatant designation of an American citizen

change their legal status? ● What is the difference between the seizure of enemy combatants

abroad versus the seizure of American citizens taken abroad?

Response to 9/11 - Detention

● Guantanamo Bay - Cuba ○ Naval Base ○ Complicated sovereignty ○ Access to American Constitution or justice system?

Legal Questions - Indefinite Detention?

● PATRIOT Act and immigrant detention ● 5th Amendment - Due Process? ● Habeas Corpus? ● Citizen vs. Non-Citizen? ● Where initially detained? Where held? ● Does indefinite detention make America safer? ● Is it worth compromising American law in the interest of safety and

security? ● Can citizens seized and detained in the United States be held

indefinitely as enemy combatants or terrorist suspects without being tried for any crime?

Response to 9/11 - Rendition

● Rendition → Extradition ● Abduction an extrajudicial transfer → Circumvention ● At least 3000 CIA Abductions between 2002 & 2005 ● Black Sites:

○ 119 Known cases ○ 26 Mistaken identity ○ 39 EIT; 3 waterboarded ○ 7 produced no intelligence ○ Program disbanded between 2006 & 2009.

● Prison Ships ● “Torture by Proxy”

Response to 9/11 - Detention

Response to 9/11 - Black Sites

Legal Questions - Extraordinary Rendition?

● Does the unprecedented state of America following 9/11 and the need to quickly find and dismantle the Al Qaeda network (and preempt further attacks) justify extraordinary rendition?

● Do the prospective benefits of ER outweigh the costs? ○ What are the costs to America of extraordinary rendition?

Rights/Agreements/Treaties in Question

● 5th Amendment & 14th Amendment - Due Process ● Habeas Corpus ● Geneva Conventions (Combatants & Civilians; Independent court to

decide on combatant status) ● United Nations Convention against Torture:

○ For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions

● International Covenant on Civil and Political Rights ● Torture Victim Protection Act

Arar v. Ashcroft (2008)

● Arar → Canadian citizen ● Arrested at JFK; watchlist (2002) ● Deported/Rendered(?) to Syria and tortured ● Suspected Al Qaeda ● Cleared by Syrians and Canadians (upon return) ● Sued Ashcroft (Attorney General) and other American officials ● U.S. Government:

○ Denied rendition ○ “State secrets” Privilege

● Arar: ○ Violated 5th Amendment

● Court of Appeals Dismissal

Controversial American Actions

Response to 9/11 - Enhanced Interrogation Techniques

● Waterboarding ● The Box ● Sleep Deprivation ● Painful Stress Positions ● Humiliation ● Bush Justice Department Justifications → Torture Memos ● Senate Report opposed EIT (2012)

Legal Questions - Enhanced Interrogation Techniques?

● Are the methods in violation of international agreements or accepted forms of interrogation?

● Are EIT effective? Did EIT make America safer? ● How might EIT and the subsequent fallout complicate future

prosecutions?

Recap

● Unprecedented, catastrophic attack on American soil ● Immediate, energetic executive action ● Expansive international military/intelligence coordination ● Extensive, global detention program ● Use of indefinite detention ● Use of enhanced interrogation techniques ● Congressional deference . . . collaboration

Habeas Corpus Suspension Clause

Article One, Section 9, clause 2, which demands that "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."

Legal Questions - Habeas Corpus

● Do Habeas protections apply to citizens designated enemy combatants? (Hamdi, Padilla)

● Do Habeas protections apply to non-citizens? Held at a site outside of America? (Boumediene)

● Do Habeas protections apply to non-citizens held by the United States in foreign territory over which the United States does not hold the same authority that it does over Guantanamo Bay?

Rumsfeld v. Padilla (2004)

● Jose Padilla → US Citizen ● Radicalized → Travels to Pakistan/Afghanistan - 2001 ● Arrested plotting dirty bomb attack - 2002 ● Designated enemy combatant - military confinement

○ Quirin ○ AUMF

● Habeas petition; Supreme Court dismissal; SC Federal Prosecution ● Convicted - Conspiracy to murder and fund terrorism

Hamdi v. Rumsfeld (2004) ● Yaser Hamdi - American Citizen ● Seized in Afghanistan ● Accused member of Taliban ● Declared “enemy combatant and held in Guantanamo ● Transferred to VA Military Prison ● Hamdi’s Father:

○ Habeas Petition; 5th Amendment rights violated ● Government:

○ Wartime; Executive Branch can restrict “enemy combatants” access to courts ● Questions(s):

○ Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States?

○ Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?

How can we reconcile and align Milligin, Quirin, and Hamdi?

Timeline: 2001 → Military Executive Order 2002 → Military Commission Order #1 2002-2003 - Washington Post → Abu Ghraib 2004 → Post, WSJ, NY Times → Administration’s internal defense of interrogation methods 2004 → Rasul, Padilla, Hamdi 2004 → Combatant Status Review Tribunals 2005 → Washington Post → Global detention program/Extraordinary Rendition 2005 → Detainee Treatment Act 2006 → Hamdan 2006 → Military Commissions Act 2008 → Boumediene v. Bush

Hamdan v. Rumsfeld (2006) ● Hamdan → Yemeni bodyguard and chauffeur for Bin Laden ● Captured → U.S. Forces → Guantanamo ● Conspiracy to commit terrorism:

○ Military Commission → Military Commission Order No. 1 ● Defense:

○ Habeas Petition → Was Hamdan a prisoner of war? ○ Challenged legitimacy of military commission.

● Question(s): ○ Can the Geneva conventions be enforced in federal court? ○ Was the military commission authorized by Congress or the President?

● 5 - 4 Decision: ○ Yes and No

El Masri v. Tenet (2007)

● German & Lebanese citizen ● Abducted Macedonian Police and turned over to CIA in 2003 ● Rendered to CIA Black Site in Afghanistan → Salt Pit ● Tortured for four months ● Returned to Albania by the CIA ● 2006 ACLU Lawsuit → Dismissed ● “State Secrets Privilege” ● Mistaken Identity?

○ Khalid al-Masri

Response to 9/11 - Military Commissions

● Administration’s Rationale: ○ Fear delays and release on legal technicalities. ○ Lower evidentiary requirements ○ Expedite process ○ 11/13 Order → Not subject to judicial review.

● Relationship to international law: ○ State actor or not? ○ Only state actors can commit war crimes. ○ International law cannot be changed unilaterally ○ Applying laws of war to terrorists groups legitimizes them ○ Bush admin disallowed POW entitlements under Geneva. ○ Attempts to change international law → Ex Post Facto?

Legal Questions - Military Commissions?

● Did the 9/11 attacks constitute war crimes? If there was no war prior to the attacks, can they be considered a violation of the law of war?

● Can and should American citizens be tried by a military commission during wartime?

● Do military commissions apply ONLY to state actors or do they also apply to members of independent terrorist organizations?

● Compare and contrast the context of Ex Parte Quirin and the use of military commissions after the 9/11 attacks.

● The rule of law in wartime “(Is) military commissions. It’s not to wrap our enemies in the Bill of Rights.”

Rasul v. Bush (2004)

● “Tipton Three” → British citizens ● Detained in Afghanistan (Enemy Combatants) → Turned over to U.S.

Military → Transferred to Guantanamo ● Charity work → Taliban training camp. ● Physical and religious abuse claims while detained. ● Habeas Corpus petition. ● Released March 2004 ● Oral Arguments April 2004 ● Major Question:

○ Do United States courts have jurisdiction to consider legal appeals filed on behalf of foreign citizens held by the United States military in Guantanamo Bay Naval Base, Cuba?

● 6 - 3 Decision

Boumediene v. Bush (2008) ● Lakhdar Boumediene → Bosnian citizen → “Algerian Six” ● Group of humanitarian aid workers ● Suspected calls to Afghanistan and Pakistan after 9/11 ● Arrested by Bosnian police; Bosnian Supreme Court orders release (2002) ● U.S. Soldiers detain them upon release → Guantanamo ● Hunger Strike → Force feeding ● Habeas Corpus Petition (2004) ● Military Commissions Act → Strip Habeas from enemy combatants. ● Habeas Corpus suspension clause:

○ “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.”

● Circuit Court → MCA intended to overrule Hamdan

Boumediene v. Bush (2008) → Major Questions

● Should the Military Commissions Act of 2006 be interpreted to strip federal courts of

jurisdiction over habeas petitions filed by foreign citizens detained at the U.S. Naval

Base at Guantanamo Bay, Cuba?

● If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of

the Constitution?

● Are the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment

right not to be deprived of liberty without due process of law and of the Geneva

Conventions?

● Can the detainees challenge the adequacy of judicial review provisions of the MCA

before they have sought to invoke that review?

● 5 - 4 Decision

Boumediene v. Bush (2008) → Implications

● Habeas Corpus is important both as an individual right and for separation of powers.

● Habeas Corpus protects PERSONS detained by the United States

● Federal Courts have jurisdiction to review Habeas Petitions

● Habeas Corpus abroad?

Did the following pass Constitutional muster?

Denying detainees habeas corpus to suspected terrorists

Blanket designation of detainees as enemy combatants

Use of military tribunals to try detainees designated as enemy combatants

To what degree was George W. Bush and his administration successful in bringing about a reconstruction of

executive power in order to carry out the Global War on Terror?

The rule of law, security, safety, self- respect, international reputation . . .

Targeted Killing

Why Targeted Killing?

● Changing Global War on Terror → The Obama Presidency ● Indefinite detention? ● Coercive Interrogation? ● Guantanamo Bay? ● Forever War? Boots on the Ground? ● What can make a forever war popular? Palatable? ● Minimize risk ● Surgical strikes, reducing collateral damage → Morally preferable

○ Collaboration with on-the-ground intelligence. ● Disrupt, Degrade, Deter

Opposition to Targeted Killing

● United Nations ● Allies ● NGOs (ICRC, ACLU, etc.) ● Number of civilian casualties?

○ Dozens or hundreds? ○ Identification

● What is the role of law in the use of highly discrete weaponry that has an almost unlimited reach?

● Geography of War → When drone strikes are used do the laws of war naturally extend?

Legality of Drone Strikes

● AUMF → Will it always be applicable? ● Valid and ongoing non-international armed conflict (NIAC) between the United

States, the Taliban, Al Qaeda, and associate forces, which consequently permits the USG to engage in at-will targeting of enemy belligerents.

● American self-defense. ● Enacted by Congress? Supported by US legal code? Regulated by any

federal agency? Judicial review? ● Secret, Executive Branch Law

Justifying Drone Strikes

● Prompted by international concern, investigative journalism (FOIA Pressure), and the killing of Anwar al-Awlaki (2010)

● OLC Memo (2010) → Released 2014 ○ Lethal Operations against al-Awlaki would pass federal and Constitutional considerations. ○ “Lawful conduct of war” ○ Is the target a “continued and imminent threat?” ○ Principle of Distinction ○ The burden of the 5th Amendment → Deprived of life, liberty, or property . . .

■ Weigh private interest that will be affected by government action against government’s asserted interest and whether the government would be burdened by providing greater process.

● Obama Administration Drone “Playbook” (2013) → Released 2016

Does the strike meet the following basic principles of the law of war?

● Necessity ● Proportionality ● Distinction ● Humanity

In what ways and to what extent has the Global War on Terror complicated our

understanding of civil liberties in wartime?