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Checks & Balances

American Justice on the Line

By Jonathan Hafetz – 12/19/06

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism

Who Watches the Home Front?

By Aziz Huq – 11/14/06

*Cross-posted from The Huffington Post

Oversight is the rallying cry of the new Democrat Class of '06. But there's a danger that the policy area most obviously in need of real accountability - our domestic national security agenda - will get short shrift in the rush to address the Iraq debacle.

Legislators moved quickly on Iraq. Legislation to revive the Special Inspector General for Iraq Reconstruction has already been flagged for the lame-duck Congress. Inquiry into the myriad iniquities that make out America's Iraq policy is a no-brainer for the new Congress. And Rumsfeld's "resignation" is a sure sign that the Administration is battoning down the hatches in preparation for some heavy weather.

While Iraq is of unquestionable importance, there's also a pressing need for oversight on domestic security issues: How are our intelligence agencies and military behaving closer to home? So far, too little attention has been paid to this question.

For at least the past three years, the American public has been hearing stories of torture, the "extraordinary rendition" of suspects to torture, disappearance, detention, and warrantless surveillance. But to date, Congress has conducted no substantial inquiry into the full facts around any of these policy areas. In consequence, the executive branch has been able to control the narrative.

For example, with respect to torture, a plethora of internal executive branch investigations have produced fragmentary, and likely misleading, reports on the connection between political appointees in Washington, who developed legal justifications for torture, and interrogators out in the field, who put those justifications into practice. There is a need for sustained oversight that goes beyond the current quagmire in Iraq. We need to know not only how we have gone wrong - and violated core individual rights - of innocent men and women over the past five years, but also how we can avoid those same mistakes in the future.

This oversight is especially important because the policies at issue - torture, "extraordinary rendition," wiretapping - were fashioned without congressional input or oversight: So they will likely continue unabated, with the attendant harms this causes, until Congress steps in.

At a minimum, we need serious and substantial inquiries soon into the following topics:

• The activities of all military intelligence gathering agencies in the United States. It's not just the NSA we need to worry about. Several months ago, Walter Pincus of the Washington Post wrote a series of superlative articles about a military agency called CIFA, or the "Counter-Intelligence Field Activities." This agency had been collecting reams of data on civilians in the United States, including anti-war protesters. There has never been a full accounting of CIFA's role or responsibilities - let alone the kind of synoptic overview of what military intelligence is doing in the United States, which the American public are long overdue.
• The actual interrogation policies of the CIA, and any military intelligence agencies that are engaged in detention and interrogation policies. Startling, the White House continues to resist disclosure of even the most generic documents on this matter, documents whose disclosure poses no risk of compromising national security. For example, there is an August 2002 Justice Department memo, a sibling to the infamous "torture memo" of the Office of Legal Counsel, which analysis a series of specific interrogation tactics (Waterboarding? Cold cell? "long time standing"? Is this where the Vice President gets his impression that waterboarding is just dandy--and legal?). Did the Justice Department find these tactics all legal? Ethical? Did it even ask the ethical question? We don't know until we see the memo and see how it was operationalized.
• Our relations with foreign intelligence agencies: The Who's, the What's, and the How's. It is by now clear that the United States maintains standing relationships with the world's most brutal and anti-democratic intelligence agencies, including Syria's, Egypt's, and Jordan's. There has been virtually no disclosure - and scant public debate - about what we are doing supporting the least democratic elements in countries we are supposed to be supporting democracy in.

These are the tips of the proverbial iceberg. Finding out how deep the iceberg runs is the task of oversight. It's about time we started getting some answers.

Aziz Huq: "Who Watches the Home Front?" (pdf) 

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism

Junking Checks and Balances?

By Aziz Huq – 09/28/06

*Cross-posted from The Huffington Post

"Checks and balances" has a nice ring. But it's a currency that doesn't go a long way in Washington today.

The Military Commissions Act of 2006, of MCA, passed by the House and Senate and likely to be signed by the President tomorrow is a wholesale assault on the idea of a limited government under law. It will be taken by the Bush Administration as a blank check to torture, to detain indefinitely without just cause, and to trample the values that win America respect in the world. From tomorrow, counter-terrorism is the "land of do as you please" for the President and the wise men of the Defense Department--those savants who brought you Iraq, the gift that keeps on giving (at least if you're a jihadist).

The MCA comprehensively assaults two ideas: The idea of checking executive power by laws. And the idea of a separate branch of government ensuring those limits are respected. These are the basic tools of accountability. The MCA frontally attacks both of these--although only time will tell whether it succeeds.

How does the Military Commissions Act assail checks and balances? Consider the key issues of detention and torture.

The MCA says nothing explicit about the detention power. Indeed, I would argue that nothing in the legislation ought to be read to imply a detention power. Of course, that's not what David Addington and his colleague Alberto Gonzales will tell us. Rather, they will contend--publicly or not, it's hard to predict--that the MCA allows the executive branch power to detain literally anyone it wants provided it complies with a token gesture at procedure.

Here's how the Addington play for detention power will work. The opening definition of the Act describes elaborately what an "unlawful enemy combatant" is. Why? The term is a neologism. The laws of war do not use or define this term. Indeed, it is a mutation of a phrase used in a subordinate clause of a 1942 Supreme Court opinion. Nothing else in the Act directly turns on this definition--although only an "alien unlawful enemy combatant" can be subject to trial by military commission. So why bother with the elaborate definition? And why extend the definition to U.S. citizens as well as non-citizens?

Back in 2004, the Supreme Court, in the now well-known Hamdi v. Rumsfeld decision, stated that an "enemy combatant" captured in hostilities could be held for the duration of those hostilities. The Court made very clear it was talking about only the limited context of the ground war in Afghanistan, not some amorphous and unending "war on terror." But Addington et al. will, however, take Hamdi's sanction of detention--and extend it far, far beyond Hamdi. It will be a detention power that applies anywhere and anytime.

There are two ways in which you--citizen or non-citizen, resident of Topeka or Timbuktu--can become an "unlawful enemy combatant."

The first way is if you engage "in hostilities" or "purposefully and materially support" hostilities. This sounds reasonable enough until you realize that no-one has the slightest clue what it means to "purposefully and materially support" hostilities. Do you need to intend to aid the hostilities? Or is it enough to intend to give the support? Would purposely giving to a charity that then gave money to Hamas count, even if you knew nothing about the Hamas? What about writing an editorial that gave "aid and comfort" to the enemy--say, by criticizing the Administration's Iraq policy?

The second way is--if it's even possible--more dangerous: You are designated an enemy combatant by a Combatant Status Review Tribunal--the Potemkin proceedings jerry-rigged at Guantánamo--or you are designated by "another competent tribunal" created by the Defense Secretary.

It's the latter that catches in the throat, because the MCA does not define what Rumsfeld's "competent tribunal" must look like. Rummy himself with the always-fair-and-impartial Addington? Five Syrian torturers (like the ones to whom the U.S. sent the hapless Canadian Maher Arar)? A bunch of guys who flip coins for your liberty? Sure, why not? The MCA doesn't stop the executive from using any of these, provided Rumsfeld gave them power and hence made them "competent."

At least for non-citizens, moreover, that would be that: For the first time in U.S. history, an Act of Congress singles out a group of persons--non-citizens--and deprives them of any right to challenge their detention wherever they are picked up. No non-citizen would, the MCA seems to say, be able to challenge this detention. And while citizens are certainly entitled to a hearing, the Government will fight tooth and nail to make sure this hearing doesn't allow any effective inquiry into the facts on which a detention is based. So no judicial review--and no accountability.

The same dynamic is at play in the anti-torture rules. The MCA alters a criminal statute called the War Crimes Act, which imposed criminal sanctions for certain violations of the laws of war.

Until recently, the United States could proudly point to a long history of supporting a universal ban on torture, and to a strong record in ensuring that those who in fact tortured did not escape accountability. No longer. Now a gamut of horrendous kinds of treatment will be non-criminal--and, the Bush Administration will argue, within the discretion of the President.

Start with the substantive anti-torture rules themselves (which cover both torture and the lesser "cruel and inhuman" treatment). The MCA contains an incredibly complex and convoluted set of definitions. Despite all the cant about clarity, the rules no longer in plain English--as they were in Common Article 3 of the Geneva Conventions --and they are so full of holes they might have been tortured themselves.

Here are three examples of the duplicitous ambiguity of the MCA when it comes to torture and abuse.

First, "cruel and inhuman" treatment is defined as acts that cause "severe or serious" pain. We know "severe" is worse than "serious" because "severe" is used to define torture (yes, we'll get there in a moment). But then "serious pain" is defined as "bodily injury" that causes "extreme physical pain." So "serious" pain is only "extreme" pain? Isn't extreme worse than serious? It would seem so--but the MCA is deliberately confusing and circular.

And why the reference to bodily injury? Does that mean that hypothermia and long-time standing and those other wretched "enhanced" techniques more fitting for Stalin's gulags than American facilities are not criminal? Well, yes, I reckon it does.

Second, in another convoluted section, "serious mental pain" is defined in terms of "non-transitory" harms. Thus, if a CIA agent threatens to kill a detainee, or to rape his spouse and his children--all long-recognized as forms of torture--that's not torture; it's not even the lesser "cruel and inhuman" treatment.

Finally, the torture statute itself. Almost unnoticed, the Bush Administration has gutted the no-torture rule. It has added the requirement that a person "specifically" intend to cause the pain that amounts to torture. This technical change--foreshadowed in the August 2002 OLC memo--has tremendous implications. It means that any government agent who says his goal was to get information, and not to cause pain, hasn't tortured no matter how bad the things he does. If the person water-boards or knee-caps a person, or buries them alive, if it's to get information--well, that's just dandy.

Once again, it's not just the substantive rules that have been assailed: It's also the mechanisms to ensure the rules are followed. Under the MCA, there is no accountability for torture. The MCA cuts off courts' power to hear claims of torture by aliens held as "unlawful enemy combatants." And it vests the President with power to interpret the relevant laws of war. So if he says that "cold cell" and sexual abuse are not "cruel and inhumane," that's the end of the matter.

There are two reasons for hope. First, any reading of the Act that reaches an untrammeled detention power may be unconstitutional. The Supreme Court in the 2004 case of Rasul v. Bush--in what one day will be called "famous footnote 15"--strongly hinted that even non-citizens captured overseas have Due Process rights. Combined with another clause of the Constitution called the Suspension Clause, this means the unchecked detention power and the jurisdiction-strip are likely unconstitutional.

Second, even if the War Crimes Act has been amended, the Due Process Clause also ought still to protect detainees held overseas: Torture is un-American. It's also unconstitutional--and that doesn't change depending on where it's done. Moreover, the law of war, embodied in the Geneva Conventions, is clear: There is no "specific intent" requirement for torture. Countries--whether it's the United States or North Korea--cannot unilaterally define down the rules against torture.

"Unchecked and unbalanced" government--I argue at length in a forthcoming book--is antithetical to American government. The MCA is also anathema to our best traditions. We must hope it is our traditions that win, and not the selfish partisan posturing that animated this week's votes.

 Aziz Huq: "Junking Checks and Balances?" (pdf)

Tags: Justice, Liberty & National Security, Checks & Balances

The Runaway Executive: Trying to Escape Accountability Yet Again

By Jonathan Hafetz – 05/09/06

The Bush administration's blatant disregard for the legal process has become so routine that almost nothing it does is surprising at this point. Its most recent machination is to try to circumvent judicial review in the case of two Uighurs, an ethnic group from western China, detained without charge at Guantanamo. The men had been imprisoned for more than four years even though the government concedes they are "non-enemy combatants," or, in other words, innocent.

The case, Qassim v. Bush, was scheduled for oral argument in the U.S. Court of Appeals for the District of Columbia Circuit on Monday morning, May 8. However, late the previous Friday afternoon the government moved to dismiss the case as moot, asserting that the two detainees in Qassim, along with three other Uighurs, had been transferred to Albania for resettlement as refugees. The government claimed its extensive efforts to find a safe home for the Uighurs, who could not be returned to China for fear of torture, had finally "come to fruition."

It is difficult to believe the timing of the release was coincidental. It is far more likely that the government transferred the Uighurs to avoid an adverse ruling and to insulate its conduct from judicial scrutiny. A loss in Qassim would invalidate a key aspect of the government's detention regime at Guantanamo and reinforce the vitality of habeas corpus, which guarantees both the right to test the lawfulness of a prisoner's detention and an effective remedy where that detention is illegal. Further, the government feared that the court might order the Uighur's release in the United States where they could seek asylum, which, as Georgetown law professor David Luban observes, is the least we owe them after four-plus years' wrongful imprisonment at Guantanamo.

If the government succeeds in mooting the Qassim case, the district's court decision grudgingly upholding the Uighurs' continued detention would stand, and the administration would remain free to indefinitely detain the next group of non-enemy combatants. (There at least four more still in legal limbo). In short, the system of detention-without-remedy at Guant√°namo would remain intact.

Such last-minute ploys have become the modus operandi of an Executive branch bent on avoiding accountability for its detention and interrogation policy. In Hamdi v. Rumsfeld, for example, the Supreme Court rejected the government's contention that it could detain the petitioner, Yasser Hamdi, without due process, and ordered that he be given a fair hearing. Then, when confronted with its hearsay allegations being tested in federal court, the government agreed to release Hamdi even though it had previously said he was a dangerous terrorist whose detention was crucial to national security.

More recently, the government ducked Supreme Court review in the case of Jose Padilla, an American citizen imprisoned by the military for three-and-a-half years without charge. Just before its brief opposing Padilla's petition for certiorari was due, the government announced it had criminally charged Padilla and sought his transfer to civilian custody. Even though the Court ultimately declined to review the legality of Padilla's military detention, three Justices warned the government against any future manipulation of the legal process.

The Executive's attempt to avert a ruling in Qassim is thus part of an all-too-familiar pattern of circumventing the checks and balances at the heart of the Constitution. Sure, Congress still has the power to pass laws, but the President consistently says those laws do not bind him. As Charlie Savage of The Boston Globe recently reported, President Bush has issued signing statements claiming the authority to disobey more than 750 statutes since he took office, far more than any predecessor. When taken to court over its failure to follow the law, the administration simply moots the case to prevent the Judiciary from invalidating its action. This way, the President remains accountable to no one but himself.

The D.C. Circuit has granted a continuance of the oral argument in Qassim to give the Uighurs' counsel an opportunity to investigate the circumstances surrounding their clients' last-minute transfer to Albania. But even if the Uighurs' release in Albania is unconditional and consistent with U.S. obligations under international law (including the Convention Against Torture), there are good reasons to avoid dismissing the case on mootness grounds. Clearly, this is a situation capable of repetition, yet evading review. The government can continue to detain other concededly innocent detainees, forcing them to conduct protracted litigation before shipping them off to another country at the eleventh hour to avert a court order halting the illegal practice. If that is how the government is permitted to operate, the bedrock democratic principles of accountability and the rule of law will be empty slogans.

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus

The Runaway Executive: Trying to Escape Accountability Yet Again

By Jonathan Hafetz – 05/09/06

Cross posted from the American Constitution Society

The Bush administration's blatant disregard for the legal process has become so routine that almost nothing it does is surprising at this point. Its most recent machination is to try to circumvent judicial review in the case of two Uighurs, an ethnic group from western China, detained without charge at Guantanamo. The men had been imprisoned for more than four years even though the government concedes they are "non-enemy combatants," or, in other words, innocent.

The case, Qassim v. Bush, was scheduled for oral argument in the U.S. Court of Appeals for the District of Columbia Circuit on Monday morning, May 8. However, late the previous Friday afternoon the government moved to dismiss the case as moot, asserting that the two detainees in Qassim, along with three other Uighurs, had been transferred to Albania for resettlement as refugees. The government claimed its extensive efforts to find a safe home for the Uighurs, who could not be returned to China for fear of torture, had finally "come to fruition."

It is difficult to believe the timing of the release was coincidental. It is far more likely that the government transferred the Uighurs to avoid an adverse ruling and to insulate its conduct from judicial scrutiny. A loss in Qassim would invalidate a key aspect of the government's detention regime at Guantanamo and reinforce the vitality of habeas corpus, which guarantees both the right to test the lawfulness of a prisoner's detention and an effective remedy where that detention is illegal. Further, the government feared that the court might order the Uighur's release in the United States where they could seek asylum, which, as Georgetown law professor David Luban observes, is the least we owe them after four-plus years' wrongful imprisonment at Guantanamo.

If the government succeeds in mooting the Qassim case, the district's court decision grudgingly upholding the Uighurs' continued detention would stand, and the administration would remain free to indefinitely detain the next group of non-enemy combatants. (There at least four more still in legal limbo). In short, the system of detention-without-remedy at Guantanamo would remain intact.

Such last-minute ploys have become the modus operandi of an Executive branch bent on avoiding accountability for its detention and interrogation policy. In Hamdi v. Rumsfeld, for example, the Supreme Court rejected the government's contention that it could detain the petitioner, Yasser Hamdi, without due process, and ordered that he be given a fair hearing. Then, when confronted with its hearsay allegations being tested in federal court, the government agreed to release Hamdi even though it had previously said he was a dangerous terrorist whose detention was crucial to national security.

More recently, the government ducked Supreme Court review in the case of Jose Padilla, an American citizen imprisoned by the military for three-and-a-half years without charge. Just before its brief opposing Padilla's petition for certiorari was due, the government announced it had criminally charged Padilla and sought his transfer to civilian custody. Even though the Court ultimately declined to review the legality of Padilla's military detention, three Justices warned the government against any future manipulation of the legal process.

The Executive's attempt to avert a ruling in Qassim is thus part of an all-too-familiar pattern of circumventing the checks and balances at the heart of the Constitution. Sure, Congress still has the power to pass laws, but the President consistently says those laws do not bind him. As Charlie Savage of The Boston Globe recently reported, President Bush has issued signing statements claiming the authority to disobey more than 750 statutes since he took office, far more than any predecessor. When taken to court over its failure to follow the law, the administration simply moots the case to prevent the Judiciary from invalidating its action. This way, the President remains accountable to no one but himself.

The D.C. Circuit has granted a continuance of the oral argument in Qassim to give the Uighurs' counsel an opportunity to investigate the circumstances surrounding their clients' last-minute transfer to Albania. But even if the Uighurs' release in Albania is unconditional and consistent with U.S. obligations under international law (including the Convention Against Torture), there are good reasons to avoid dismissing the case on mootness grounds. Clearly, this is a situation capable of repetition, yet evading review. The government can continue to detain other concededly innocent detainees, forcing them to conduct protracted litigation before shipping them off to another country at the eleventh hour to avert a court order halting the illegal practice. If that is how the government is permitted to operate, the bedrock democratic principles of accountability and the rule of law will be empty slogans.

Jonathan Hafetz: "The Runaway Executive: Trying to Escape Accountability Once Again" (PDF) 

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus