Discourse.net

Council of Europe Sips at the Censorship Kool-Aid

Milton Mueller — a reliable source — writes, Council of Europe Works to Criminalize Political Expression:

The Council of Europe is pushing to extend the Cybercrime Convention to impose criminal sanctions on what it considers to be unacceptable forms of political or religious expression. The Cybercrime Convention was originally negotiated to respond to transnational problems such as theft of data, breaking into computers, computer-based financial fraud and the like. But now the Council is engaged in bulk unsolicited emails to promote the idea that web site content that is insulting or xenophobic is a cybercrime of the same order.

The bulk emails were sent to promote an April 1st meeting in Strasbourg, where the Council will promote its “Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.” Note the less than honest language: what the Council is targeting are not harmful “acts” of racism or xeonophobia, but the distribution of “written material, ideas or theories” which “insult publicly, through a computer system, (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics.”

There’s lots more.

The COE has autonomous ideas, and this might be one of them, but it is also a place that the USA uses as a policy laundry. The way it works is that when our government wants something they can’t get from Congress, they go to the COE (or WIPO, or whatever), get it adopted in Europe, then go to Congress and say we our allies want us to conform to their standard….

A Whale of a Quote

Roger Alford shares with us his list of the “Quotable Quotes from the Fordham Law Review Symposium on International Law and The Constitution: Terms of Engagement.”

There are several good ones, but this one from Yale Law Dean Harold Koh stands out:

I recently was talking with a Senator who said to me, “Professor, we didn’t ask the terrorists to sign the Geneva Conventions. How can you expect us to abide by commitments that they don’t adhere to?” To which I replied, “Yes, and we didn’t ask the whales to sign the Whaling Convention either. We sign these treaties to protect us from ourselves, not from them.”

Is the Palestinian Authority Sovereign Enough for Immunity?

Interesting post at Opinio Juris asking Does the Palestinian Authority Enjoy Sovereign Immunity? which points to Biton v. Palestinian Interim Self-Government Authority where the District Court had to address that very issue.

At what point is a governing authority of a territory sufficiently recognized as a state for it to enjoy immunity? If the Palestinian Authority is not a state why not? And if it is not a state what is it? The more comical (but nonetheless interesting) variation to this question is if the Palestinian Authority is not a state, is it an instrumentality of the state of Israel?

I’m not sure I’d say “comical” was the exact word, but these are interesting questions.

The court, incidentally, said the answer to the question, at this moment anyway, is “no sovereign immunity.” Which means in some cases the PA can be sued in US courts….

Our Fallen State

U.S. Declines to Join Accord on Secret Detentions:

Representatives from 57 countries on Tuesday signed a long-negotiated treaty prohibiting governments from holding people in secret detention. The United States declined to endorse the document, saying its text did not meet U.S. expectations.

…

State Department spokesman Sean McCormack declined to comment, except to say that the United States helped draft the treaty but that the final wording “did not meet our expectations.”

The Associated Press reported that McCormack declined to comment on whether the U.S. stance was influenced by the Bush administration’s policy of sending terrorism suspects to CIA-run prisons overseas, which President Bush acknowledged in September.

…

The convention defines forced disappearance as the arrest, detention or kidnapping of a person by state agents or affiliates and subsequent denials about the detention or location of the individual.

OLC Head Blogs at 'Opinio Juris'

Kevin Jon Heller writes,

John Bellinger, the head of the Office of the Legal Adviser at the State Department, will be guest-blogging at Opinio Juris the week of January 15th (Monday to Friday). To the best of our knowledge, this will be the first time that anyone at the State Department -- particularly someone in such a critical position -- will have blogged in their official capacity.

Should be interesting! The OJ crowd have also invited some academic guests to participate in the conversation.

'Country' For Sale

Via Slashdot, comes the news that data (and maybe tax) haven Sealand is for sale. The 'nation' has had some problems recently.

Sealand claims to be a country based on its fixation to the continental shelf in what were then but are not now international waters. Although this claim is not recognized by anyone that matters, the claim is somewhat less ludicrous than that of any other man-made micro-nation, e.g. that of the Dominion of Melchizedek.

Geneva Conventions Now Universal

via Opinio Juris:

This is a landmark month in the history of international law: with the accession of the Republic of Montenegro on August 2, the 1949 Geneva Conventions have become the first international treaty in modern history to achieve universal acceptance.

The irony, of course, is that the US has re-interpreted the Geneva Conventions, especially the reach of Common Article 3, in a way that makes our copy of the convention different (and much less meaningful) than the rest of the world's....

More on the ASIL Resolution

Roger Alford has a well-written and informative post describing the process by which the plenary of the American Society of International Law (ASIL) adopted the resolution I blogged about yesterday.

Prof. Alford disapproves, and he gives his reason,

My own view, which clearly is a minority one today but appears to be the traditional view if one looks at the historical sweep, is that the ASIL should avoid passing these resolutions. Such resolutions, while perhaps uncontroversial in content, are nonetheless controversial in their choice of forum and timing.

In this case, the clear implication of the resolution is that these norms are being ignored or violated by the United States. The drafting history of the resolution undeniably underscores this fact. It is in this sense a political resolution directed at the United States, admonishing it for its misconduct. It appears to be the first resolution in the Society's history that relates to broad issues of international compliance with the laws of war and humanitarian law. In the past 100 years, a century in which "mankind experienced some of the most destructive wars of all times," States have transgressed these international obligations on innumerable occasions. And yet the Society only now sees fit to pass such a resolution. One can only help but ask, "Why now?"

It seems to me that the multitude of replies to this question begin with "Do you read the newspapers?" and "If not now, when?"

If the US makes detention without trial or POW statuts official policy and torture its de facto national policy, something which has not frequently been the case in the past 100 years, then maybe that's an occcasion for the American Society of anything to speak up. Especially if it's something to do with law.

"People Should Obey the Law" is Political. Discuss.

Exactly which of the following statements from yesterday's proposed resolution of the American Society of International Law (ASIL) is political?

1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum)
2. Conduct of armed conflict and occupation is governed by the Geneva [Conventions] of August 12, 1949 and other international law (jus in bello)
3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts or their subordinates.
7. All states should maintain security and liberty is a manner consistent with their international law obligations.

(Leave aside the possibly Freudian slip by the scribe, who wrote "Contentions" for "Conventions" in paragraph two.)

This is actually pretty tame stuff. Statements 1-6 are pretty standard boilerplate recitations of well-known principles of international law. (For example, I think you would be hard-put to find a teacher of international law in any civilized country who would give a student credit for writing the opposite on a final exam.) Number seven just says that countries should follow the law.

So what is "political"? And if this is "political," what's non-political? Cowed silence in the face of barbarity?

Red Cross Ends Decade-Long Injustice

Thanks to Opinio Juris for providing a pointer to a new International Committee of the Red Cross statement. It announces the adoption of a Third Optional Protocol making a "Red Crystal" a symbol on par with the long-standing "Red Cross" and "Red Crescent". In so doing it finally -- after decades -- makes it possible for an Israeli relief organizaiton to join.

About time.

UM Arbitration Event Tuesday Evening

I'm going to this one.

The Office of International and Foreign Graduate Programs and Shutts & Bowen, LLP present

Dr. Robert Briner, Chairman of the International Court of Arbitration International Chamber of Commerce, Paris, France

&

Loraine Brennan, Esq., Director, Arbitration and ADR, North America International Court of Arbitration, New York, New York

"Current Trends In International Arbitration"

Tuesday, November 8, 2005

8:00 p.m. – Reception, Alma Jennings Foundation Student Lounge

8:30 p.m. – Lecture, Room F109

Dr. Briner is Chairman of the International Court of Arbitration at the International Chamber of Commerce in Paris and a partner in the law firm Lenz & Staehelin in Geneva. Born in Switzerland, he received his Doctor of Law from the University of Zurich prior to being admitted to the bars of Zurich, Geneva, and Fribourg and becoming a fellow of the Chartered Institute of Arbitrators in London. Mr. Briner is also Chairman of Panel E4 of Commissioners of the United Nations Compensation Commission and a member of the Claims Resolution Tribunal for Dormant Accounts in Switzerland. He is the author of numerous publications on arbitration, including the International Handbook on Commercial Arbitration. In addition to English, he is fluent in German and French.

As Director of Arbitration and ADR, North America, ICC International Court of Arbitration, Lorraine M. Brennan serves as the American advisor to the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris, France. Ms. Brennan advises North American attorneys and companies on all phases of ICC arbitration, including negotiation of arbitration clauses, requests for arbitration, procedural issues, and enforcement of arbitration awards. Prior to assuming this position, Ms. Brennan served as the Director of Arbitration and Intellectual Property and Legal Counsel at the USCIB, the U.S. affiliate of the ICC. In her role as Director of Intellectual Property, she assisted in formulating and implementing U.S. policy with respect to intellectual property issues and advised U.S. companies on the latest developments in the intellectual property rights field. She is an adjunct Professor of Law at Cornell Law School in Ithaca, New York, teaching international business transactions, and an adjunct Professor of Law at Georgetown University Law Centre, teaching international business transactions and dispute resolution.

UK presidency of the EU Logo, Modified

The UK Presidency of the EU had a snappy internet logo with flying birds that they were proud of. Someone has improved it:

(Thanks to Joaquín Roy, Jean Monnet Professor & Director, European Union Center at UM)

Even Our Allies Are Going to Hate Us

Spotted via Jurist

An Italian official speaking anonymously said Friday that a judge in Milan has ordered the arrest of 13 CIA agents for their alleged role in aiding the deportation of an imam to Egypt [Washington Post report]. Italian newspapers claim the Milan seizure and deportation of an Egyptian known as Abu Omar in 2003 was part of the CIA’s “extraordinary rendition” program to move terror suspects to a third country without court approval. The reports claim six other agents are under investigation for the deportation of Omar, believed to have fought alongside jihadists in Afghanistan and Bosnia before being taken to a joint US-Italian military base for interrogation. The US Embassy in Rome [official website] would not comment on the report. AP has more.

Suppose a space alien or demon got elected President and decided to try to ruin the country. Short of starting a nuclear exchange (but see Korea, Pakistan, and weapon sales from former USSR), how substantially would this hypothetical being’s conduct differ from the current administration’s policy of polarizing the people, torturing captives, claiming the right to detain US citizens indefinitely in solitary confinement without trial our counsel, huge trade deficits, bankrupting the public fisc, starting a war based on lies, undermining health, safety and environmental rules, and taxing the poor in order to give tax breaks to the hyper-rich? Discuss.

OK, never mind, here’s a simpler problem: Can anyone name three important things this administration has done right? I suppose many might say the initial decision to invade Afghanistan — although the ultimate execution of the mission was so botched that I’d say that doesn’t really count.

Homeland security? Arguably a good idea in principle. So far, mostly money down a rat hole with random assaults on civil liberties.

Seriously: what are this administration’s successes? And don’t say “no more 9/11’s”: I think the administration deserves about the same credit for that as they deserve for failing to prevent the original attack — lots or little, take your pick.

If you are radically anti-abortion, you can fairly count the judicial appointments policy. I wouldn’t, but in some eyes I think that fairly counts as one “success.” Anything else?

Blair Publishes Legal Advice On Legality of Iraq Invasion

UK Prime Minister Tony Blair, whose re-election campaign has been dogged by charges that he joined the invasion of Iraq in the face of advice by his Attorney General that the invasion would be illegal, has published the final draft of the legal advice sent to his office.

I’ve only had time to read this very quickly, but here are my preliminary thoughts. I invite corrections and amplifications.

To the extent that Blair may have claimed in the past that the advice told him the invasion was legal, the document reveals a somewhat more equivocal endorsement, more of the form of “maybe” or “good arguable case, might not ultimately convince a tribunal.’ But the memo clearly doesn’t forbid it.

In domestic UK terms, this may still be damaging, since Blair didn’t disclose the existence of the doubts to Parliament, and thus can be accused of lack of candor. In US terms, the memo is pretty middle of the road, and won’t make partisans on either side terribly happy.

Pentagon Issues Broad Definition of 'Enemy Combatant'

The Pentagon has released a document called Joint Doctrine for Detainee Operations. There’s a lot there and I haven’t digested it all. Three things jump out at me.

First, this document has been in the works for a year. What were they doing before then? What took so long once they started?

Second, as more fully described below, the document sets out a new and very broad definition of who is an “enemy combatant” — the class of persons the Administration claims are outside the protection of the Geneva Convention system, being neither soldier nor civilian (a better reading of the GC system, I’d argue, is that everyone is one or the other). According to the new definition, anyone who is a “affiliated” (what’s that mean?) with a group listed under Executive Order 13224 [i.e. in theory any group identified by Presidential order!] is a potential enemy combatant. That sweeps very broadly indeed.

Third, the document is redolent with exhortations that everyone is to be treated humanely, even Enemy Combatants. And it sets out detailed rules as to how captured persons are to be processed, questioned, etc. In that, it’s something of a critique of practices to date. And maybe a welcome sign of belated reform.

Here’s the section that defines an Enemy Combatant:

c. Additional Classification. In reference to the Global War on Terror there is an additional classification of detainees who, through their own conduct, are not entitled to the privileges and protection of the Geneva Conventions. These personnel, when detained, are classified as enemy combatants.

(1) Enemy Combatant (EC). Although they do not fall under the provisions of the Geneva Convention, they are still entitled to be treated humanely, subject to military necessity, consistent with the principles of GC, and without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria, and afforded adequate food, drinking water, shelter, clothing, and medical treatment; allowed the free exercise of religion consistent with the requirements of such detention. There is a comprehensive list of terrorists and terrorist groups identified under Executive Order 13224, located at http://www.treas.gov/ofac/. Anyone detained that is affiliated with these organizations will be classified as EC. Furthermore, there are individuals that may not be affiliated with the listed organizations that may be classified as an EC. On these specific individuals, guidance should be obtained from higher headquarters. As defined by the Deputy Secretary of Defense, an EC is defined as:

“Any person that US or allied forces could properly detain under the laws and customs of war. For purposes of the war on terror an enemy combatant includes, but is not necessarily limited to, a member or agent of Al Qaeda, Taliban, or another international terrorist organization against which United States is engaged in an armed conflict. This may include those individuals or entities designated in accordance with references E or G, as identified in applicable Executive Orders approved by the Secretary of Defense.”

Deputy Secretary of Defense global screening criteria, Feb 20, 2004

Reference E – Comprehensive List of Terrorists and Terrorist Groups Identified Under Executive Order 13224 (updates at http://www.treas.gov/ofac)

Reference G Patterns of Global Terrorism. Department of State, 2002 (updates at http://www.state.gov/s/ct/rls/pgtrpt/).

(2) Enemy combatants may be identified into the following sub-categories: (a) Low Level Enemy Combatant (LLEC). Detainees who are not a threat beyond the immediate battlefield or that do not have high operational or strategic intelligence or law enforcement value that requires the specialized type of exploitation capability available at a Joint Interrogation and Debriefing Center.

(b) High Value Detainee (HVD). A detainee who possesses extensive and/or high level information of value to operational commanders, strategic intelligence or law enforcement agencies and organizations.

(c) Criminal Detainee. A person detained because he is reasonably suspected of having committed a crime against local nationals or their property or a crime not against US or coalition forces. Excludes crimes against humanity or atrocities. (Note: this sub-category may also be applied to CIs).

(d) High Value Criminal (HVC). A detainee who meets the criteria of a HVD and is reasonably suspected of having committed crimes against humanity or committed atrocities, a breach of humanitarian law that is an inhumane act committed against any person.

(e) Security Detainee. A civilian interned during a conflict or occupation for his or her own protection.

It’s important to understand that categories (a)-(e) are just subdivisions of the first section, not additions to it. Even so, this definition of “enemy combatant” is both the clearest and the broadest I have yet encountered.

Why the US Needs to Join the International Criminal Court

I used to think that the US should not join the International Criminal Court because it too greatly intruded on our sovereignty. I am more and more convinced that I had it backwards: we need to join the ICC to save ourselves from ourselves.

The heart of the ICC scheme is a complementarity of jurisdiction: the ICC has jurisdiction only over very serious crimes against humanity such as genocide or war crimes. And even then, only if the crime happened in a signatory state or was committed by a national of a signatory state.

And even then the ICC only has the power to act only if the state with jurisdiction over the alleged criminal is unwilling or unable to genuinely prosecute him.

Which brings me to why the ICC is looking better all the time:

Pentagon Will Not Try 17 G.I.’s Implicated in Prisoners’ Deaths: Despite recommendations by Army investigators, commanders have decided not to prosecute 17 American soldiers implicated in the deaths of three prisoners in Iraq and Afghanistan in 2003 and 2004, according to a new accounting released Friday by the Army.

Investigators had recommended that all 17 soldiers be charged in the cases, according to the accounting by the Army Criminal Investigation Command. The charges included murder, conspiracy and negligent homicide. While none of the 17 will face any prosecution, one received a letter of reprimand and another was discharged after the investigations.

This comes on the heels of a bizarre defense offered to Congress by Vice Adm. Albert T. Church III for his report on why no higher-ups are responsible for anything bad:

When pressed to explain why he did not hold anyone accountable for failing to establish clear interrogation procedures in Iraq and Afghanistan, Admiral Church told reporters, “I don’t know who you would have assigned responsibility necessarily to do that.”

When our government admits we have killed 27 POWs (something we used to take rather seriously when it was US POWs in the hands of the Vietnamese and the Viet Cong), tortured who knows how many, and then our government says no one is to be held accountable — that’s when the case for joining the ICC, as a last-gasp line of defense of our decency — seems at its strongest.

The Politics of the Withdrawal from the Optional Protocol to the Consular Convention

Yesterday I blogged the legal issues relating to the US’s decision to withdraw from the Consular Convention. Today I want to explore the politics of it. And they’re somewhat strange.

I don’t of course know what the administration is thinking, and my ability to build a working mental model of the political and legal thinking of the crazed royalists in and around the White House is, I trust, somewhat limited. Nevertheless, from my perch very far outside the Beltway it seems much more likely than not that this move is primarily driven by the Medellin case and the more general problem that foreign states are bringing and winning cases in the ICJ charging failure to inform foreign nationals of their rights under the Consular Convention. These losses, most recently a very quick decision on provisional remedies, interfere with some of our states’ desires to execute foreigners convicted of serious crimes, just as those states execute our own citizens.

The US’s decision to withdraw from the mandatory jurisdiction of the ICJ over violations of the consular convention is a poke in the eye to the ICJ. It adds its mite to the US’s increasing isolation among the civilized and cooperative nations of the world. It – quite intentionally – sets back the cause of the rule of law in the international system. These other effects were probably features, not bugs, in the eyes of the Administration. But they were, I suspect, fundamentally mere side-effects, bonuses..and it is the very casualness with which the administration tolerates such side effects which will magnify the damage they cause.

It’s not hard to understand how this administration might think it scores points with the base – or even the masses – by acting in away that it can describe as both pro-death penalty and anti-world government. But in fact the act of withdrawal from the Optional Protocol (presuming it is even valid) is formally neither. The ICJ, unlike the WTO or the ICC, is about as far from world government as you can get. And were the administration committed to the rule of law domestically, the removal of the ICJ’s ability to beat us over the head with words is also of almost no significance. Because our law instructs our courts (and other government officials) to beat themselves over the head when needed.

Article VI of the U.S. Constitution states that “all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land.” International customary law is also part of federal law: as the Supreme Court reminded us over 100 years ago, in the Paquete Habana case, “International law is part of our law.” And, under the Supremacy Clause of the Constitution, it follows that if the nation is bound to follow international law, that obligation must somehow be communicated to and adhered to by the states. The precise means by which that happens in the absence of legislation may be uncertain; the role of the President and of the federal courts in making that stick may be controversial; but it is clear that the obligation exists in some form. Taking away the compulsory jurisdiction of the ICJ that arises from the Optional Protocol of the Consular Convention will not change that formal obligation, nor so long as the US remains a party to the Consular Convention will our legal obligations under it be diminished in any way.

The decision to walk away from the Optional Protocol is thus revealed as being only one of three things: (1) It could be an act of simple petulance; (2) It could be a studied move of retaliation against the ICJ for other decisions in other areas, a retaliatory act whose subtlety would seem to exceed the capacity of the people who wish to make paleoconservative John Bolton our ambassador to the UN; or (3) most likely, it is an invitation to the states to take it easy on compliance with our legal obligations under the Consular Conventions, obligations which endure past our withdrawal from the Optional Protocol.

That third option is of course another poke in the eye, a destructive thrust aimed not at international system, but at the domestic commitment to the rule of law. That it emanates from people who do not, in their hearts, speech and writings really consider international law to be law in any binding way, and who see the basic sinews of international legality – the Geneva Conventions, for example – as at most annoyances, only makes it worse. And it further calls into question their belief in domestic law.

US Announces Withdrawal From Consular Convention

I am told that the following letter to the UN Secretary-General dated March 7, 2005 has been signed by the Secretary of State and is to be announced in the UN Journal later this week.

Dear Mr. Secretary-General:

I have the honor on behalf of the Government of the United States of America to refer to the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, done at Vienna April 24, 1963.

This letter constitutes notification by the United States of America that it hereby withdraws from the aforesaid Protocol. As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol.

Sincerely,

Condoleezza Rice

This raises a couple of interesting legal questions – and a huge political question or two. Today I’ll do the legal questions. Tomorrow - unless other blogs beat me to it - I’ll tackle the political issues.

Legal Questions

• Can the US withdraw from the Optional Protocol when that document is silent as to the possibility of withdrawal?
• If so, when is the withdrawal effective?

Political Questions

• What does this mean for the ICJ?
• What does this mean for the US?
• Why now?

For now, just a hint about the politics: Recently the US has lost three death-penalty-related cases before the International Court of Justice (ICJ)concerning failure to ensure that foreign citizens arrested here have a prompt opportunity to seek assistance from their consulate. The Supreme Court is about to hear arguments in the Medellin case about a US state’s duty to comply with an ICJ decision. The manouvering in advance of that case has been nothing short of amazing; excellent coverage of the issues can be found at the SCOTUS Blog.

The US’s decision to withdraw now is thus on the one hand a blow against the very idea of international law with binding effect, an attempt to take some issues off the table before oral argument, and a crude attempt to let states go on violating our international obligations. But on to the technical legal stuff…

Background: Vienna Convention on Consular Relations of 24 April 1963 [hereinafter “Consular Convention”] governs the operation of consular missions and is itself a cognate treaty to the Vienna Convention on Diplomatic Relations of 1961.

The Optional Protocol to the Consular Convention is a short companion document to the Consular Convention; states which adopt the Optional Protocol accept the compulsory jurisdiction of the International Court of Justice. (I’ve quoted the full text of the Optional Protocol at the end of this document.)

Can the US withdraw from the Optional Protocol when that document is silent as to the possibility of withdrawal? If so, when is the withdrawal effective?

The US letter seems to say that the US considers its withdrawal to have immediate effect:

This letter constitutes notification by the United States of America that it hereby withdraws from the aforesaid Protocol. As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol.

I think this pretty clearly reads as an assertion of an immediate withdrawal, effective upon notice.

It’s not at all clear to me that this instant withdrawal can be effective.

International law as to treaty withdrawal is a blend of customary law and the Vienna Convention on the Law of Treaties. The US is not a party to the Vienna Convention on the Law of Treaties, but accepts most of it as being declaratory of customary law. (So far as I am aware, the US has not claimed that the convention differs from the customary rule as regards treaty termination, but I’ll return to that below.)

The Vienna Convention on the Law of Treaties has several potentially relevant articles in Section 3, which relates to the “Termination and Suspension of the Operation of Treaties”:

Article 54
Termination of or withdrawal from a treaty under its provisions or by consent of the parties

The termination of a treaty or the withdrawal of a party may take place:

(a) in conformity with the provisions of the treaty; or

(b) at any time by consent of all the parties after consultation with the other contracting States.

This doesn’t apply: neither the Optional Protocol, nor the Consular Convention itself speak about withdrawal. So that takes us to Article 56:

Article 56
Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.

2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.

I am not familiar with the travaux préparatoire for the Consular Convention, much less the Optional Protocol, but I’d be very surprised to learn the parties discussed withdrawal. It’s also very hard to argue seriously that the Consular Convention itself implies a right of withdrawal to something almost as fundamental as the Vienna Convention on Diplomatic Relations. The argument regarding the Optional Protocol is a little more complicated. The Protocol doesn’t say that withdrawal is impossible, and I’d think it could be argued that, given it’s a separate and optional agreement, a right of withdrawal could be – if you look real hard – implied.

If the US has a right of withdrawal under the Vienna Convention on the Law of Treaties, then under Article 56 the US has to give twelve months’ notice.

Now things get a bit more complicated. The US is not a signatory to the Vienna Convention on the Law of Treaties. The US generally takes the view that the Convention is declaratory as to customary law - by which the US remains bound - but that view doesn’t apply to every word of every clause. And the twelve-month rule is one which may be more specific than the less-specific rules of reasonableness one generally finds in customary law. Even so, however, I don’t see how the US’s withdrawal can be effective immediately. [I do not know, however, whether there is any relevant state practice regarding the Consular Convention that might argue for any fixed amount of time – if there is, then that likely would control.]

Ironically, were another state to attempt to invoke the compulsory jurisdiction of the ICJ under the Optional Protocol against the US during the next twelve months, the body that would have to decide when (if ever) the US withdrawal became valid is … the ICJ itself.

---

OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON CONSULAR RELATIONS CONCERNING THE COMPULSORY SETTLEMENT OF DISPUTES. DONE AT VIENNA, ON 24 APRIL 1963

The States Parties to the present Protocol and to the Vienna Convention on Consular Relations, hereinafter referred to as “the Convention”, adopted by the United Nations Conference held at Vienna from 4 March to 22 April 1963,

Expressing their wish to resort in all matters concerning them in respect of any dispute arising out of the interpretation or application of the Convention to the compulsory jurisdiction of the International Court of Justice, unless some other form of settlement has been agreed upon by the parties within a reasonable period,
Have agreed as follows:

Article I
Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.

Article II
The parties may agree, within a period of two months after one party has notified its opinion to the other that a dispute exists, to resort not to the International Court of Justice but to an arbitral tribunal. After the expiry of the said period, either party may bring the dispute before the Court by an application.

Article III
1. Within the same period of two months, the parties may agree to adopt a conciliation procedure before resorting to the International Court of Justice.
2. The conciliation commission shall make its recommendations within five months after its appointment. If its recommendations are not accepted by the parties to the dispute within two months after they have been delivered, either party may bring the dispute before the Court by an application.

Article IV
States Parties to the Convention, to the Optional Protocol concerning Acquisition of Nationality, and to the present Protocol may at any time declare that they will extend the provisions of the present Protocol to disputes arising out of the interpretation or application of the Optional Protocol concerning Acquisition of Nationality. Such declarations shall be notified to the Secretary-General of the United Nations.

Article V
The present Protocol shall be open for signature by all States which may become Parties to the Convention as follows: until 31 October 1963 at the Federal Ministry for Foreign Affairs of the Republic of Austria and, subsequently, until 31 March 1964, at the United Nations Headquarters in New York.

Article VI
The present Protocol is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article VII
The present Protocol shall remain open for accession by all States which may become Parties to the Convention. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article VIII
1. The present Protocol shall enter into force on the same day as the Convention or on the thirtieth day following the date of deposit of the second instrument of ratification or accession to the Protocol with the Secretary-General of the United Nations, whichever date is the later.
2. For each State ratifying or acceding to the present Protocol after its entry into force in accordance with paragraph 1 of this Article, the Protocol shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.

Article IX
The Secretary-General of the United Nations shall inform all States which may become Parties to the Convention:
(a) of signatures to the present Protocol and of the deposit of instruments of ratification or accession, in accordance with Articles V, VI and VII; (b) of declarations made in accordance with Article IV of the present Protocol; © of the date on which the present Protocol will enter into force, in accordance with Article VIII.

Article X
The original of the present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States referred to in Article V.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorised thereto by their respective Governments, have signed the present Protocol.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred and sixty-three.

WTO Says US Prohibition of Online Gambling Violates GATS

JURIST reports

The WTO sided with the island nation of Antigua and Barbuda, ruling that US legislation that criminalizes online gambling is in violation of global trade law. In a 287-page report released Wednesday, the WTO concluded that the US inconsistently applied gaming law so as to prejudice foreign countries, in violation of the General Agreement on Trade in Services (GATS).

I guess I have to read it now. And GATS.

Another Bush Triumph for the Rule of Law

Great news from Human Rights Watch! Your constitutional republic at work spreading the Rule of Law around the world!

U.S.: Detained al-Qaeda Suspects ‘Disappeared’ (Human Rights Watch, 12-10-2004): At least 11 al-Qaeda suspects have “disappeared” in U.S. custody, Human Rights Watch said in a report released today. U.S. officials are holding the detainees in undisclosed locations, where some have reportedly been tortured.

The 46-page report, “The United States’ ‘Disappeared’: The CIA’s Long-Term ‘Ghost Detainees,’” describes how the Central Intelligence Agency is holding al-Qaeda suspects in “secret locations,” reportedly outside the United States, with no notification to their families, no access to the International Committee of the Red Cross or oversight of any sort of their treatment, and in some cases, no acknowledgement that they are even being held.  

“‘Disappearances’ were a trademark abuse of Latin American military dictatorships in their ‘dirty war’ on alleged subversion,” said Reed Brody, special counsel with Human Rights Watch. “Now they have become a United States tactic in its conflict with al-Qaeda.”  

Oh goodie, the US joins the proud company of the USSR and fascist latin dictatorships. We are so proud.

The Man Who Would Own Eros

I will never forget my college political philosophy professor mocking John Locke’s attempt to ground the foundations of property on the admixture of labor or property to unclaimed resources by asking whether, were he to legitimately acquire a can of tomato paste and pour it into the ocean, he could therefore claim the ocean as his own.

Think that’s silly? How about Gregory Nemitz of Carson City, Nevada, who claims to own Eros, and wants NASA to pay him $20 for “parking and storage fees” now that it has landed the NEAR Shoemaker spacecraft on “his” asteroid. Basically, the basis of Nemitz’s claim to ownership of Eros is, well, that he claims to own it, and that he’s expending resources to pursue the claim, so it must be his. Oh yes, and that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of 1967, which precludes private ownership of celestial bodies, sounds in the Communist Manifesto, so it must be illegal.

This would be funny if the guy were not (it seems) funded by the sale of beef jerky (I am not making this up, see the bottom of his web site), and appealing (pro se) the loss of his district court case up to the 9th Circuit. Where I confidently predict he will lose again.

(The words “sui juris” on his brief are by the way a giveaway that the appellant is in the grip of a legal cult, akin to the common law court cultists, or the people who think that writing “Without Prejudice UCC 1-207” will somehow have a magic effect on their debts, or who think that they can avoid paying taxes by eschewing Social Security numbers and claiming to be just a state citizen not a citizen of the US.)

Red Cross Wants Information on Missing Detainees

I’ve been going on and on about whether the US is holding people in secret interrogation camps abroad. Now AP reports that the Red Cross Fears U.S. Is Hiding Detainees and has been expressing this concern to the US for some time without getting a satisfactory reply:

But Notari told The Associated Press that some suspects reported as arrested by the FBI on its Web site, or identified in media reports, are unaccounted for.

“Some of these people who have been reported to be arrested never showed up in any of the places of detention run by the U.S. where we visit,” Notari said.

She said she had read media reports that some people are being held at Diego Garcia, a British-held island in the Indian Ocean used as a strategic military base by the United States, but the ICRC has not been notified of any prisoners there.

“We just simply have absolutely no confirmation of this in any formal way,” she said.

The U.S. government has not officially responded to a Red Cross demand for notification of all detainees, including those held in undisclosed locations, she said.

That request was made by ICRC President Jakob Kellenberger in January during a visit to Washington that featured meetings with Secretary of State Colin Powell, Deputy Defense Secretary Paul Wolfowitz and National Security Adviser Condoleezza Rice.

“So far we haven’t had a satisfactory reply,” Notari said.

This is a serious issue.

Today's Trifecta--What Does it All Mean? (Pt. II: Guantanamo)

“What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And the answer to that question is “affirmative.”

So Guantanamo is not like the Antarctic, a place with no law (cf. Smith v. US). I strongly think this is the right result, but I’m not entirely happy with how the majority got there.

I would have relied on the treaty, the US’s perpetual control over the territory, and the ousting of any relevant foreign power other than the mythical quality called “sovereignty” which the Cuban government retains—little more than a first right of reversion if the US leaves. The Court mentions this, but an awfully big chunk of its decision relies on domestic habeas jurisdiction, predicated on the district court’s assertion of power over the detainees’ custodian, the Secretary of Defense. (The dissent has a field day with this duality.)

To get to where it wants to go, the majority plays a little fast and loose with precedent, arguing the leading case of Eisentrager was overruled in 1973, a dubious claim. I won’t go into the details—inside baseball for lawyers—except to say that I think Justice Kennedy’s concurrence is much more elegant, and avoids the troubles pointed out by the dissent. Kennedy’s view would not reform the law as much, but it would do what needed doing. Kennedy would grasp the bull of the leading precedent, Eisentrager by the horns, and limit it much more closely to its facts than the government wanted:

The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. The opinion of the Court well explains the history of its possession by the United States. In a formal sense, the United States leases the Bay; the 1903 lease agreement states that Cuba retains “ultimate sovereignty” over it. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418. At the same time, this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the “implied protection” of the United States to it. Eisentrager, supra, at 777–778.

The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify “a limited opening of our courts” to show that they were “of friendly personal disposition” and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations.

Justice Scalia responds to these arguments in footnote four of his dissent but I do not find this part of his argument very persuasive:

JUSTICE KENNEDY recognizes that Eisentrager controls, ante, at 1 (opinion concurring in judgment), but misconstrues that opinion. He thinks it makes jurisdiction under the habeas statute turn on the circumstances of the detainees’ confinement—including, apparently, the availability of legal proceedings and the length of detention, see ante, at 3–4. The Eisentrager Court mentioned those circumstances, however, only in the course of its constitutional analysis, and not in its application of the statute. It is quite impossible to read §2241 as conditioning its geographic scope upon them. Among the consequences of making jurisdiction turn upon circumstances of confinement are (1) that courts would always have authority to inquire into circumstances of confinement, and (2) that the Executive would be unable to know with certainty that any given prisoner-of-war camp is immune from writs of habeas corpus. And among the questions this approach raises: When does definite detention become indefinite? How much process will suffice to stave off jurisdiction? If there is a terrorist attack at Guantanamo Bay, will the area suddenly fall outside the habeas statute because it is no longer “far removed from any hostilities,” ante, at 3? JUSTICE KENNEDY’s approach provides enticing law-school-exam imponderables in an area where certainty is called for.

Scalia claims Kennedy mis-reads Eisentrager, confusing the constitutional and statutory parts of the case. I don’t think that’s right—the existence of the constitutional right implies that the statues must be read in conformity with it if possible, for reasons Scalia explains earlier in his own opinion. While the parade of horribles Scalia presents do indeed deserve a home on an exam, the advanced course would ask students to discuss the way in which a purportedly formalist judge uses pragmatic arguments when it suits him…and whether the distinction really means that much any more in this age of judicial opportunism.

The dissent (Scalia, with Rehnquist and Thomas) has two points: First, Eisentrager (as they read it) controls, and that’s just fine, so there’s no hearing despite the many differences noted by Kennedy. Second, if Congress wants to change this, it could. That’s actually an under-appreciated truth: this whole litigation would have been unnecessary if Congress had the guts to legislate decency. But then, this whole series of cases would have been unnecessary if Congress had had the guts not to vote Bush the authority to start a war whenever he liked.

Scalia also kindly gives us the short version of what this case stands for:

Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the over-sight of the federal courts even though it has never before been thought to be within their jurisdiction—and thus making it a foolish place to have housed alien wartime detainees.

One odd part of the debate between the two sides has to do with what if anything we learn from pre-revolutionary English practice. The majority notes that prerogative writs, such as habeas corpus, ran to the “excluded jurisdictions”—even where ordinary statutes did not. The dissent replies that those precedents shouldn’t apply to foreign territory, but it goes off the rails when it says, “All of the dominions in the cases the Court cites—and all of the territories Blackstone lists as dominions, see 1 Blackstone *93–*106—are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on. It is an enormous extension of the term to apply it to installations merely leased for a particular use from another nation that still retains ultimate sovereignty.”

Personally, I cannot see how given the realities of the situation this is anything but at most a minute extension. And to see even the minute part you have to think that “sovereignty” empty of content still matters, a theory only a formalist could love.

Although neither side mentions this, I think that to the extent that the dissent might be correct in saying that the older (or even newer, as in early or mid-20th century) English cases suggest in dicta or otherwise that once “abroad” habeas might be available to citizens but might not be available to detained indigenes, I think the majority was on firm ground in ignoring that aspect of those cases. It is indisputable that the older cases were driven by deep racist assumptions about local peoples that permeated both the British colonial and the British domestic judiciary. This country is right to take the spirit of those decisions and lose the dross.

The dissent gets another thing right, more of less, noting the peculiarity of a ruling that,

confers upon wartime prisoners greater habeas rights than domestic detainees. The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla, ante, whereas under today’s strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts. The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish—and, as a result, to forum shop.

That is an odd result. But it is less odd and disturbing than one that left detainees no recourse in our courts even if they were being tortured. Not that torture could ever happen, of course.

Guantanamo is NOT a Lawless Place

The main opinion is by Stevens. The whole LONG thing is here (.pdf). I’m reproducing the syllabus in the jump.

RASUL ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMIBA CIRCUIT
No. 03–334. Argued April 20, 2004—Decided June 28, 2004*
Pursuant to Congress’ joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Af-ghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba’s ultimate sovereignty, but giving this country complete juris-diction and control for so long as it does not abandon the leased ar-eas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals. The District Court construed the suits as habeas petitions and dismissed them for want of jurisdiction, holding that, under Johnson v. Eisentrager, 339 U. S. 763, aliens detained outside United States sovereign territory may not invoke habeas relief. The Court of Appeals affirmed.
Held: United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. Pp. 4–17.
(a) The District Court has jurisdiction to hear petitioners’ habeas challenges under 28 U. S. C. §2241, which authorizes district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held “in custody in violation of the … laws … of the United States,” §§2241(a), ©(3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.” Pp. 4–16.
(1) The Court rejects respondents’ primary submission that these cases are controlled by Eisentrager’s holding that a District Court lacked authority to grant habeas relief to German citizens captured by U. S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incar-cerated in occupied Germany. Reversing a Court of Appeals judg-ment finding jurisdiction, the Eisentrager Court found six critical facts: The German prisoners were (a) enemy aliens who (b) had never been or resided in the United States, © were captured outside U. S. territory and there held in military custody, (d) were there tried and convicted by the military (e) for offenses committed there, and (f) were imprisoned there at all times. 339 U. S., at 777. Petitioners here differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tri-bunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Eisentrager Court also made clear that all six of the noted criti-cal facts were relevant only to the question of the prisoners’ constitu-tional entitlement to habeas review. Ibid. The Court’s only state-ment on their statutory entitlement was a passing reference to its absence. Id., at 768. This cursory treatment is explained by the Court’s then-recent decision in Ahrens v. Clark, 335 U. S. 188, in which it held that the District Court for the District of Columbia lacked juris-diction to entertain the habeas claims of aliens detained at Ellis Island because the habeas statute’s phrase “within their respective jurisdic-tions” required the petitioners’ presence within the court’s territorial ju-risdiction, id., at 192. However, the Court later held, in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 494–495, that such presence is not “an invariable prerequisite” to the exercise of §2241 jurisdiction because habeas acts upon the person holding the pris-oner, not the prisoner himself, so that the court acts “within [its] spective jurisdiction” if the custodian can be reached by service of process. Because Braden overruled the statutory predicate to Eisen-trager’s holding, Eisentrager does not preclude the exercise of §2241 jurisdiction over petitioners’ claims. Pp. 6–11.
(2) Also rejected is respondents’ contention that §2241 is limited by the principle that legislation is presumed not to have extraterrito-rial application unless Congress clearly manifests such an intent, EEOC v. Arabian American Oil Co., 499 U. S. 244, 248. That presump-tion has no application to the operation of the habeas statute with re-spect to persons detained within “the [United States’] territorial juris-diction.” Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285. By the express terms of its agreements with Cuba, the United States exercises com-plete jurisdiction and control over the Guantanamo Base, and may con-tinue to do so permanently if it chooses. Respondents concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Considering that §2241 draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the statute’s geographi-cal coverage to vary depending on the detainee’s citizenship. Aliens held at the base, like American citizens, are entitled to invoke the fed-eral courts’ §2241 authority. Pp. 12–15.
(3) Petitioners contend that they are being held in federal cus-tody in violation of United States laws, and the District Court’s juris-diction over petitioners’ custodians is unquestioned, cf. Braden, 410 U. S., at 495. Section 2241 requires nothing more and therefore con-fers jurisdiction on the District Court. Pp. 15–16.
(b) The District Court also has jurisdiction to hear the Al Odah pe-titioners’ complaint invoking 28 U. S. C. §1331, the federal question statute, and §1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager, held that the District Court correctly dismissed these claims for want of jurisdiction because the petitioners lacked the privilege of litigation in U. S. courts. Nothing in Eisentrager or any other of the Court’s cases categorically excludes aliens de-tained in military custody outside the United States from that privi-lege. United States courts have traditionally been open to nonresi-dent aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 578. And indeed, §1350 explicitly confers the privilege of suing for an ac-tionable “tort … committed in violation of the law of nations or a treaty of the United States” on aliens alone. The fact that petitioners are being held in military custody is immaterial. Pp. 16–17.
(c ) Whether and what further proceedings may become necessary after respondents respond to the merits of petitioners’ claims are not here addressed. P. 17.
321 F. 3d 1134, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined.

Bush Ordered "Humane" Treatment in Feb. 2002. Then What?

This evening the White House released the text of an order signed by President Bush on Feb. 7, 2002, regarding the treatment of al-Qaida and Taliban detainees.

This Bush order applies to the Afghanistan Taliban, and to alleged al-Qaida members in Iraq and worldwide; it says they don’t have rights, but doesn’t say that they should be tortured; rather it says they should be treated “humanely” and that they should be given Geneva-like privileges when not too inconvenient to do so.

The order accepts the Royalist theory of Presidential power, but says it declines to apply it: “I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.”

al-Qaida and Taliban fighters are claimed to all be outside the Geneva 3 framework (POWs) regardless of citizenship or circumstances. [And presumably it’s possible to tell who is al-Qaida and who isn’t just by looking at them?]

al-Qaida members are claimed be outside Geneva 4 (protection of civilians) regardless of citizenship beause they are “armed combatants” (even when not carrying weapons?).

The key command: “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

On its own, this reads as an instruction to be humane at all times, and to follow Geneva when not too inconvenient. Whether this complies with international law or not, it does not read as a license to torture, which is presumably why the White House is releasing it. Note, however, that this order would, for example, be a license to create “ghost” detainees from among the Taliban and al-Qaida (but not other Iraqis).

Note also what’s not there. For example, nothing in this memo seems directed to the CIA, just to the military. I wonder if there’s a separate order for the CIA with more … flexibility?

It’s also important to keep the confusing timeline straight. The OLC torture memo was delivered in August 2002, i.e. several months after this order. Thus, it is clear that this command, in Feb. 2002, to be “humane” was not the last word on the subject in the minds of all policy makers, including the President’s closest advisors such as his Legal Counsel. And we know that the Walker Group was still chewing on the torture question in March 2003, although we don’t know what if anything came of it.

In short, we don’t know if this memo was ever countermanded, or amended, whether it applied to the CIA, or indeed what if anything ultimately resulted from subsequent advice to Bush that he could allow great physical pain to be applied during questioning of detainees. We do know, however, that as early as February 2002, in this memo, Bush had signed on to the dangerous theory of nearly unlimited Presidential power that informed the torture memos. We also know that in those months after this memo issued, many people around Bush were recommending, or prepared to recommend, that inhumane conduct was legal and justified.

UPDATE: The New York Times reports

White House counsel, Alberto R. Gonzales, told reporters on Tuesday that Mr. Bush never considered more aggressive options set out by administration lawyers, including those in an August 2002 Justice Department memo that appeared to offer a permissive definition of torture.

Full text of the Feb. 7, 2002 Bush order below.

1. Our recent extensive discussions regarding the status of al-Qaida and Taliban detainees confirm that the application of Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, (Geneva) to the conflict with al-Qaida and the Taliban involves complex legal questions. By its terms, Geneva applies to conflicts involving “High Contracting Parties,” which can only be states. Moreover, it assumes the existence of “regular” armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our nation recognizes that this new paradigm — ushered in not by us, but by terrorists — requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.

2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:

a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.

b. I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise the authority in this or future conflicts.

c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to “armed conflict not of an international character.”

d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.

3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

4. The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.

5. I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.

PS. It’s just a minor point, but AFAIK the text of this memo was released after the evening news, and late for tomorrow’s papers. Was this an attempt to lessen coverage? Or maybe an attempt to get the papers to rely on whatever spin points were being leaked this afternoon?

Update: Judging from the stories in tomorrow’s newspapers, it made their deadlines!

Please, No US Gulag

Back in May we learned of allegations of excessive violence in a CIA-run secret prison and about the CIA’s successful move to exempt itself from any restraints on questioning methods that might apply to the armed forces. (Then we learned about the various Torture Memos, which cast doubt on whether those restraints existed….)

Just yesterday we learned about one, then another, Rumsfeld-approved ‘ghost’ detainee, unpersons, hidden from the Red Cross, in violation of the 4th Geneva Convention. Oh, wait, it’s today now, make that 13 ghost detainees.

It remains unclear how many of CIA prisons exist, how many prisoners they hold or have held, what the casualty rate is, and whether it’s a one-way trip or if people are ever released from them. Until now I had not seen an attempt to list the military prisons either.

Thanks to a report released yesterday, we now have a start on some numbers.

In Ending Secret Detention (.pdf), Human Rights First (formerly the Lawyers’ Committee for Human Rights), compile a list of the US world-wide prison empire, a list dominated by military-run camps in Iraq and Afghanistan.

Consider it a first approximation. It’s still a long list:

AFGHANISTAN

Disclosed

• Collection Center at the U.S. Air Force Base in Bagram.
• Detention facility in Kandahar (an "intermediate" site, where detainees await transport to Bagram).
• Approximately 20 "outlying transient sites" (used to hold detainees until they may be evacuated either to Kandahar or Bagram).

Suspected

Detention facilities in:

• Asadabad*
• Kabul*
• Jalalabad*
• Gardez*
• Khost*
• CIA interrogation facility at Bagram
• CIA interrogation facility in Kabul (known as "the Pit")

*These sites may be part of the approximately 20 "outlying transient sites."

GUANTANAMO BAY, CUBA

Disclosed

• U.S. Naval Base at Guantanamo Bay

IRAQ

Disclosed

• Abu Ghraib (near Baghdad)
• Camp Cropper (near the Baghdad Airport)
• Camp Bucca (near Basra)
• Nine facilities under division or brigade command

Facilities run by military divisions:
• 1st Infantry Division DIF (Tikrit)
• 1st Marine Expeditionary Force DIF (Al Fallujah)
• 1st Cavalry Division DIF (Baghdad)
• 1st Armored Division DIF (Baghdad)
• Multi-National Division-South East (Az Zubayr)


Facilities run by military brigades:
• Dayyarah West (Multi-National Brigade - North)
• Tal Afar (Multi-National Brigade - North)
• Al Hillah (Multi-National Division - Center South)
• Wasit (Multi-National Division - Center South)

In addition, there are a number of "brigade holding areas in division sectors" where detainees may be held up to 72 hours before transfer to Division facilities.

Ashraf Camp. Ashraf Camp is a detention facility for Mujahideen-E-Khalq (MEK), an Iraqi based organization seeking to overthrow the government in Iran. Ashraf Camp was disclosed as a detention site for MEK detainees in February 2004, but as of June 11, 2004, the Coalition Press Information Center (CPIC) refused to discuss the status or location of the MEK detainees.

PAKISTAN

Suspected

• Kohat (near the border of Afghanistan) Alizai

DIEGO GARCIA

Suspected

• United States and United Kingdom officials deny repeated news reports indicating that at least some individuals are being detained on the British possession of Diego Garcia, including, at one time, the leader of the Jemaah Islamiyah, Hambali (Riduan Isamuddin).

JORDAN

Suspected

• Al Jafr Prison (CIA interrogation facility)

UNITED STATES

Disclosed

• Naval Consolidated Brig (Charleston, South Carolina). This facility is where the U.S. Government is detaining at least three individuals as "enemy combatants": two U.S. citizens, Jose Padilla and Yaser Hamdi, as well as a Qatari national residing in the United States, Ali Saleh Kahlah al-Marri.

Suspected

• U.S. Naval Ships: USS Bataan and USS Peleliu.

The Report — which is really excellent by the way — also takes a stab at estimating how many people are being detained in these camps. Big numbers in Iraq, Guantanamo, and several hundreds here and there as well.

The Report concludes with some sensible recommendations to the Administration, although there’s not a bat’s chance in hell it will adopt them:

Human Rights First … calls on the Bush Administration to take the following critical steps:

1. Disclose to Congress and the ICRC the location of all U.S.-controlled detention facilities worldwide, and provide a regular accounting of: the number of detainees, their, nationality, and the legal basis on which they are being held.

2. Order a thorough, comprehensive, and independent investigation of all U.S.- controlled detention facilities, and submit the findings of the investigation to Congress.

3. Take all necessary steps to inform the immediate families of those detained of their loved ones’ capture, location, legal status, and condition of health.

4. Immediately grant the ICRC unrestricted access to all detainees being held by the United States in the course of the global “war on terrorism.”

5. Publicly reject assertions by administration lawyers that domestic and international prohibitions on torture and cruelty do not apply to the President in the exercise of his commander-in-chief authority.

6. Investigate and prosecute all those who carried out acts of torture and other cruel, inhuman or degrading treatment in violation of U.S. and international law, as well as those officials who ordered, approved or tolerated these acts.

7. Publicly disclose the status of all pending investigations into allegations of mistreatment of detainees and detainee deaths in custody.

(News account of the report spotted via the Yin blog.)

Cecil Turner Has A Point

In a comment to my earlier item, The Disappeared, Cecil Turner asks why I called the ‘ghost’ detainee in question a ‘confirmed POW’. And, re-reading the article I have to say that he’s basically right. The New York Times didn’t tell us much about the conditions under which the unnamed prisoner was captured, or what his citizenship was, so it seems I jumped to conclusions. And, in fact, I just found this recent Reuters article, Rumsfeld Acknowledges Hiding Iraqi Prisoner which says the detainee is an Iraqi civilian, not a POW.

That doesn’t change the bottom line as much as you might think, however. As a civilian internee, he has rights too, under the Fourth Geneva convention, which also don’t appear to have been observed. The best case for the US might be Art. 5 of 4th Geneva:

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with security of State or Occupying Power as case may be.

While this might justify stopping letters home, it doesn’t justify hiding the detainee’s existence from the Red Cross, or failing to give him an ID number, or deporting him (cf. 4th Geneva, Art. 76: “Art. 76. Protected persons accused of offences shall be detained in the occupied country.”). Also, it would be surprising to hear the US argue that the security situation in Iraq, which we’re usually told is so greatly improved, remains so bad as that the security situation would be undermined by letting the Red Cross visit him. Art. 143 says, “Such visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure. Their duration and frequency shall not be restricted.” — have things been that bad all along?.

Of course, for its purposes the administration may have put him into the black hole category of “unlawful combatant,” but I personally do not accept that this category can be used to remove nationals of Geneva Convention signatory states from the reach of those very encompassing agreements on the unilateral say-so of an administration official. I also remain very highly dubious that this can be done even after a military hearing; in any event in this case there appears to have been no such hearing, not to mention none of the follow-on hearings that might be required if the detainee is classed as civilian being held in special circumstances out of extreme military necessity.

I simply do not accept the assertion that membership, much less suspected or reputed membership, in an international criminal organization like al Qaeda, negates a detainees citizenship and its privileges. And if you think about it, that’s not a precedent we’d like to set for our enemies to use against us.

[Several other commentators have asked why in my original post I called this a ‘technical’ war crime. That’s not a term of art; I just meant by that to suggest that although I believe this conduct is seriously wrong, and violates the US’s international obligations, and might in theory be classed as a war crime, it doesn’t seem to me personally be as evil as, say, raping and killing and frankly it’s hard to imagine that it would form the centerpiece of any very hypothetical international prosecution if the subject emerges unhurt. In the highly unlikely event that any of the US’s conduct towards its prisoners ever were to come before an international body — a procedure limited for the gravest and most serious offenses — it will be because of a substantial pattern of serious violence, injuries, or deaths, not just what is reported so far in the case of this particular ‘ghost detainee’.]

The Disappeared

Today’s bombshell is in the New York Times, Prison Abuse: Rumsfeld Issued an Order to Hide Detainee in Iraq.

Let’s count the shockers (we can still be shocked, can’t we?) and estimate the fallout.

Shockers:

1. Rumsfeld (at the CIA’s request—we’ll get to that), ordered what seems at least a technical war crime: putting a confirmed POW in solitary and hiding him from the Red Cross. [Update (6/17): Oops. Not a confirmed POW, a civilian detainee — see Cecil Turner Has A Point.]

2. It’s not a unique case; there is/was a class of “ghost detainees”—disappeared people. This from a country that (with some justice) tied itself up in knots over the fate of its own POWs and MIAs in Vietnam.

3. In addition to being immoral (we knew that), our leaders are not just partially (we knew that) but totally incompetent: having put this guy on ice because he was too important to expose to the Red Cross and so desperately needed to be softened up, the system forgot all about him:

Seven months later, however, the detainee - a reputed senior officer of Ansar al-Islam, a group the United States has linked to Al Qaeda and blames for some attacks in Iraq - is still languishing at the prison but has only been questioned once while in detention, in what government officials acknowledged was an extraordinary lapse.

“Once he was placed in military custody, people lost track of him,” a senior intelligence official conceded Wednesday night. “The normal review processes that would keep track of him didn’t.”

The detainee was described by the official as someone “who was actively planning operations specifically targeting U.S. forces and interests both inside and outside of Iraq.”

But once he was placed into custody at Camp Cropper, where about 100 detainees deemed to have the highest intelligence value are held, he received only one cursory arrival interrogation from military officers and was never again questioned by any other military or intelligence officers, according to Pentagon and intelligence officials.

Things we know already, and that this incident reminds us:

4. Abu Ghraib may be the tip of an iceberg. There are a lot of other military prisons to worry about both in and out of Iraq. One is Camp Cropper, at or near the Baghdad Airport.

5. Even worse is a network of secret CIA prisons in various undisclosed locations, run by people who take the view that none of the rules apply to them. We have no idea how many of these prisons exist, how many prisoners they hold or have held, what the casualty rate is, and whether it’s a one-way trip or if people are ever released from them.

Fallout

I. You would think that Rumsfeld would have to resign unless somehow they can make Tenet the fall guy for this. But I am dubious. Yes, this is much more direct and personal authorization — a real smoking gun — than what has come out so far in the torture cases, although there’s serious circumstantial evidence accumulating there too. On the other hand, while putting ‘ghost’ detainees in secret solitary is illegal, and technically a war crime, the effect on the detainees not nearly as horrible as what seems to have happened at Abu Ghraib.

II. People like me, who have been highly dubious about the US acceding to the jurisdiction of the International Criminal Court due to the real and troubling encroachment on our traditional conception of national sovereignty are really going to have to think long and hard about changing sides on this one, or at least accepting jurisdiction with regards to some of our treaty obligations. The last few months argue strongly that the US cannot always be relied on to observe its international law obligations as much as I would have thought and hoped.

III. At some point some of this stuff has to stick to Rumsfeld’s boss. Are we there yet?

OLC's Aug. 1, 2002 Torture Memo ("the Bybee Memo")

The Washington Post has placed online the full text of an August 1, 2002 memo from the Justice Department’s Office of Legal Counsel (OLC) to White House Legal Counsel Alberto R. Gonzales.

A few words of context before substance. The OLC is sometimes called “the Attorney General’s Lawyer”. It’s an elite bureau in the Justice Dept. staffed by very very intelligent and highly credentialed people. Its primary function is to give opinions on matters of constitutionality regarding interdepartmental and inter-branch relations, and to opine on the constitutionality of pending legislation. By all accounts working at OLC is one of the most interesting jobs in government if you are interested in constitutional law or the working of government.

In August 2002, the head of the OLC was Jay Bybee, now a sitting judge on the 9th Circuit. His signature appears on page 46 of this memo.

White House Counsel Alberto Gonzales, who requested this memo, is not the head of the OLC. The White House Counsel is part of the Office of the President, and the Counsel is the President’s staff lawyer, just as the Attorney General is the President’s institutional lawyer; neither of these people however is the President’s personal lawyer.

OK. On to the substance.

The memo is about what limits on the use of force (“standards of permissible conduct”) for interrogations conducted “abroad” are found in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ( Torture Convention) “as implemented” by 18 USC §§ 2340-2340A (the Torture statute).

The memo concludes that the restrictions are very limited — that only acts inflicting and “specifically intended to inflict severe pain or suffering”, whether mental or physical, are prohibited. Allowed are severe mental pain not intended to have lasting effects (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46). Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose), the memo moves on to “examine defenses” that could be asserted to “negate any claims that certain interrogation methods violate the statute.”

• This is not a draft, but it’s not an action document either. It’s legal advice to the Counselor for the President. The action document was Gonzales’s memo to Bush.

• This OLC document is a legalistic, logic-chopping brief for the torturer. Its entire thrust is justifying maximal pain.

• Nowhere do the authors say “but this would be wrong”.

• Lots of the (lousy) criminal law legal reasoning in this memo is picked up in the Draft Walker Working Group memo

• This memo also has a full dose of the royalist vision of the Presidency that informs the Draft Walker memo. In the views of the author(s), there’s basically nothing Congress can do to constrain the President’s exercise of the war power. The Geneva Conventions are, by inevitable implications, not binding on the President, nor is any other international agreement if it impedes the war effort. I’m sure our allies will be just thrilled to hear that. And, although the memo nowhere treats this issue, presumably, also, the same applies in reverse, and our adversaries should feel unconstrained by any treaties against poison gas, torture, land mines, or anything else? Or is ignoring treaties a unique prerogative of the USA?

Synopsis and commentary:

Pages 2-13 are the same sort of unconvincing criminal law analysis that others have critiqued in the Walker Working Group memo

Admitting that the Torture Statute is designed to implement the Torture Convention, and that therefore the interpretation of the treaty should inform one’s interpretation of the statute, page 14 of the Bybee memo starts in on the Torture Convention. It finds in the Convention a distinction between the worst acts of torture and lesser acts of “cruel, inhuman or degrading treatment or punishment”. (P. 15) That’s fair enough.

Then things get weird. When the Senate ratified the Torture Convention in 1994 it stated “[t]hat the United States considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” 136 Cong. Rec. 17491 (Oct. 27, 1990).

It’s obvious (I hope) that the various horrors the memo would allow, such as hurting prisoners a great deal (but not quite to the point of ‘torture’), drugging them, scaring them, and so on, indeed very many things we would call “cruel, inhuman or degrading” would be the sort of thing that we would domestically prohibit as “cruel and unusual” punishment. But if that’s right, then the memo is deeply, horribly, wrong.

So, here’s how they try to reason out of that hole: It’s not the Senate’s view that really counts. No, it’s the King’s President’s view of the treaty’s meaning that has the “greatest weight” (p. 16). To get to this conclusion they cite a bunch of court decisions that say the executive’s view is entitled to “great weight” (which it is)…but the difference between “great” and “greatest” is, well, pretty great.

Having decided that it’s the executive branch’s views that matter, the memo then parses the Reagan administration’s submissions to the Senate relating to the proposed ratification of the the Convention. One problem with relying on what the Reagan administration said is that the Senate didn’t ratify the Convention until the first Bush administration. Arguably it did so in reliance on the Bush administration’s submissions which, as the memo delicately puts it used “less vigorous rhetoric” (p. 18). In fact, the Bush administration used language much like that in the Torture Statute; but the memo chooses to rely on the Reagan language instead (p. 19) to find that only the most extreme conduct would be prohibited.

As for what the Senate may have said in the ratification debates, the memo’s attitude is — Who Cares? “[A]part from statements by Executive Branch officials, the rest of a ratification debate is of little weight in interpreting a treaty”. For a statement of the contrary, and widely accepted, view that requires a court to consider legislative sources, see Restatement (3rd) of the Foreign Relations Law of the United States § 325 comment 5.

Despite the increasingly heard right-wing complaint that the Supreme Court should not rely on the decisions of foreign courts, the Memo then turns to what other nations have said constitutes torture. The most important case on which the Memo relies is “Ireland v. United Kingdom”:, a 1978 decision of the European Court of Human Rights which held that “interrogation in depth” involving “five techniques” was not “torture” but merely “inhuman and degrading treatment”. The five techniques were:

a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

e) deprivation of food and drink.. subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

If one believed that US law banned only “torture” and not mere “inhumane and degrading treatment” then I think the Memo would be right to rely on this precedent. The key issue is whether that initial distinction is right.

(The memo also noted, at pp. 30-31, the Israeli Supreme Court’s decision in “Public Committee Against Torture in Israel v. Israel”:, 38 LL.M. 1471 (1999), which discussed even more aggressive measures and found them to be “inhuman and degrading”. The Bybee Memo argues somewhat unpersuasively that this means the Court did not believe them to be torture, a reading it buttressed by noting that Court accepted there might be a necessity defense in some cases. I’m no expert here, but I’m dubious: the Israeli Supreme Court was ruling in a charged and political case, and was very mindful of the potential effect on international public opinion. It had every incentive to avoid the word ‘torture’; as for the necessity defense, the Israeli rule, like the US rule, contemplates permitting some things under domestic law that violate international law. “Necessity” in Israel is seen as touching national survival.)

Page 31 returns us to Wonderland. Here the memo reverses field and says, basically, if we were wrong about any of this stuff and the statute did ban an interrogation technique then the statute would be unconstitutional as an impermissible encroachment on the President’s Commander-in-Chief power to wage a military campaign, especially in circumstances “unprecedented in recent American history”. (Note the qualifier: it is NOT the first time we’ve had an attack on our shores or even on core government institutions. After all, the British burned the White House in 1814.) The next couple pages recite what a great threat Al Qaeda is, and the great national effort to fight it, concluding that “the capture and interrogation of such individuals is clearly imperative to our national security and defense” as they could tell us information that would prevent future attacks.

[In what now must seem highly ironic this section of the memo concludes by citing Padilla’s arrest as an example of the valuable intelligen