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Guantanamo Litigation Update Bobby Chesney Professor, Wake Forest University School of Law Visiting Professor, Universi

From the 9/18/01 Authorization for Use of Military Force:

Samuel
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Guantanamo Litigation Update Bobby Chesney Professor, Wake Forest University School of Law Visiting Professor, Universi

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    1. Guantanamo Litigation Update Bobby Chesney Professor, Wake Forest University School of Law Visiting Professor, University of Texas School of Law

    2. From the 9/18/01 Authorization for Use of Military Force: “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

    3. From the 9/18/01 Authorization for Use of Military Force: “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

    4. From the 9/18/01 Authorization for Use of Military Force: “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

    5. From the 9/18/01 Authorization for Use of Military Force: “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

    15. The first wave of GTMO litigation: * Did federal courts have jurisdiction (under the habeas corpus statute) with respect to noncitizens held by the military at Guantanamo?

    16. The first wave of GTMO litigation: * Did federal courts have jurisdiction (under the habeas corpus statute) with respect to noncitizens held by the military at Guantanamo? Yes, according to the Supreme Court in Rasul v. Bush (2004).

    24. The Detainee Treatment Act of 2005 (DTA)

    25. The Detainee Treatment Act of 2005 (DTA) eliminated habeas jurisdiction

    26. The Detainee Treatment Act of 2005 (DTA) eliminated habeas jurisdiction but at the same time, it also created a substitute form of jurisdiction exclusively for the D.C. Circuit Court of Appeals:

    27. The Detainee Treatment Act of 2005 (DTA) eliminated habeas jurisdiction but at the same time, it also created a substitute form of jurisdiction exclusively for the D.C. Circuit Court of Appeals: That Court was authorized to review CSRT rulings to determine:

    28. The Detainee Treatment Act of 2005 (DTA) eliminated habeas jurisdiction but at the same time, it also created a substitute form of jurisdiction exclusively for the D.C. Circuit Court of Appeals: That Court was authorized to review CSRT rulings to determine: - if the process violated the “Constitution or laws of the United States”

    29. The Detainee Treatment Act of 2005 (DTA) eliminated habeas jurisdiction but at the same time, it also created a substitute form of jurisdiction exclusively for the D.C. Circuit Court of Appeals: That Court was authorized to review CSRT rulings to determine: - if the process violated the “Constitution or laws of the United States” - if the process in a particular case actually complied with CSRT standards (including a “preponderance of the evidence” standard)

    30. The Detainee Treatment Act of 2005 (DTA) The SCT in Hamdan (2006) held that the DTA’s jurisdictional provisions did not apply to pending habeas petitions.

    31. The Detainee Treatment Act of 2005 (DTA) The SCT in Hamdan (2006) held that the DTA’s jurisdictional provisions did not apply to pending habeas petitions. Congress responded with the Military Commissions Act of 2006 (MCA)

    32. The Detainee Treatment Act of 2005 (DTA) The SCT in Hamdan (2006) held that the DTA’s jurisdictional provisions did not apply to pending habeas petitions. Congress responded with the Military Commissions Act of 2006 (MCA) - among many other things, the MCA restated the DTA’s jurisdictional rules in an attempt to make them applicable to pending cases

    33. Denial of cert in Boumediene

    34. Oops….cert granted after all!

    35. Boumediene v. Bush (2008)

    36. May noncitizens located at GTMO invoke the Suspension Clause in the first place?

    37. May noncitizens located at GTMO invoke the Suspension Clause in the first place? Government: No – only citizens or persons within formal US sovereign territory are protected.

    38. May noncitizens located at GTMO invoke the Suspension Clause in the first place? Government: No – only citizens or persons within formal US sovereign territory are protected. Detainees: Yes – anyone in territory subject to de facto US control is protected.

    39. May noncitizens located at GTMO invoke the Suspension Clause in the first place? Government: No – only citizens or persons within formal US sovereign territory are protected. Detainees: Yes – anyone in territory subject to de facto US control is protected. Majority: The Insular Cases indicate that noncitizens held in locations under US administration should receive fundamental constitutional rights insofar as it is practical to apply those rights in that location.

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    48. The Detainee Treatment Act of 2005 (DTA) The SCT in Hamdan (2006) held that the DTA’s jurisdictional provisions did not apply to pending habeas petitions. Congress responded with the Military Commissions Act of 2006 (MCA) - among many other things, the MCA restated the DTA’s jurisdictional rules in an attempt to make them applicable to pending cases

    49. The next question in Boumediene: Is MCA/DTA review of CSRT determinations, carried out by the DC Circuit, an “adequate substitute” for habeas?

    50. The next question in Boumediene: Is MCA/DTA review of CSRT determinations, carried out by the DC Circuit, an “adequate substitute” for habeas? No, because …

    51. The next question in Boumediene: Is MCA/DTA review of CSRT determinations, carried out by the DC Circuit, an “adequate substitute” for habeas? No, because that review does not include “authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.”

    52. A “major victory for civil liberties,” a rejection of “imperial overreaching”

    53. A “major victory for civil liberties,” a rejection of “imperial overreaching”

    54. Parhat v. Gates (D.C. Cir. June 20, 2008)

    55. Parhat v. Gates (D.C. Cir. June 20, 2008)

    56. The next set of issues to be resolved include:

    57. The next set of issues to be resolved include: Discovery rights

    58. The next set of issues to be resolved include: Discovery rights Admissibility of hearsay

    59. The next set of issues to be resolved include: Discovery rights Admissibility of hearsay Compulsory process for witnesses

    60. The next set of issues to be resolved include: Discovery rights Admissibility of hearsay Compulsory process for witnesses Burden of proof

    62. Does the AUMF on its face apply to these detainees?

    63. Does the AUMF on its face apply to these detainees? Do the laws of war, which inform the AUMF, permit detention of these detainees?

    64. Does the AUMF on its face apply to these detainees? Do the laws of war, which inform the AUMF, permit detention of these detainees? - Are they “combatants”?

    65. Does the AUMF on its face apply to these detainees? Do the laws of war, which inform the AUMF, permit detention of these detainees? - Are they “combatants”? - If civilians, is “direct participation” the test?

    66. Does the AUMF on its face apply to these detainees? Do the laws of war, which inform the AUMF, permit detention of these detainees? - Are they “combatants”? - If civilians, is “direct participation” the test? - What counts as “direct participation”?

    67. Direct Participation according to Boumediene’s brief: “immediate and actual action on the battlefield likely to cause harm to the enemy because there is a direct causal relationship between the activity engaged in and the harm done to the enemy”

    68. Direct Participation according to Boumediene’s brief: “immediate and actual action on the battlefield likely to cause harm to the enemy because there is a direct causal relationship between the activity engaged in and the harm done to the enemy” “a civilian who repeatedly directs or otherwise takes part in hostilities may be considered to be continuously ‘participating’” and therefore a legitimate target of force (and hence detention, on this view)

    69. Direct Participation according to Boumediene’s brief: - covers UBL and other leadership

    70. Direct Participation according to Boumediene’s brief: - covers UBL and other leadership - “conceivably” would cover “others who have submitted themselves to the direction and control of an organization like al Qaeda”

    71. Direct Participation according to Boumediene’s brief: - covers UBL and other leadership - “conceivably” would cover “others who have submitted themselves to the direction and control of an organization like al Qaeda” - that leaves out persons who may be ideologically-aligned to al Qaeda but who are not actually subject to its control

    72. Direct Participation according to Boumediene’s brief:

    73. Direct Participation according to Boumediene’s brief:

    74. Direct Participation according to Boumediene’s brief:

    77. Al-Marri v. Berman (4th Cir.) (en banc)

    78. Al-Marri v. Berman (4th Cir.) (en banc) “The members of [al Qaeda] . . . are not appreciably different from the soldiers in Quirin, who infiltrated our borders to commit acts of sabotage . . . . When they enter this country ‘with hostile purpose,’ they are enemy belligerents subject to detention.” (Traxler, J., concurring) (slip op. at 75)

    79. Al-Marri v. Berman (4th Cir.) (en banc) “[T]he following three criteria must be met [to justify military detention]: the person must

    80. Al-Marri v. Berman (4th Cir.) (en banc) “[T]he following three criteria must be met [to justify military detention]: the person must (1) be a member of

    81. Al-Marri v. Berman (4th Cir.) (en banc) “[T]he following three criteria must be met [to justify military detention]: the person must (1) be a member of (2) an organization or nation against whom Congress has declared war or authorized the use of military force, and

    82. Al-Marri v. Berman (4th Cir.) (en banc) “[T]he following three criteria must be met [to justify military detention]: the person must (1) be a member of (2) an organization or nation against whom Congress has declared war or authorized the use of military force, and (3) knowingly plans or engages in conduct that harms or attempts to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization.” (Wilkinson, J., concurring) (slip op. at 179)

    83. Professor Bobby Chesney Wake Forest University School of Law Visiting Professor, University of Texas School of Law robert.chesney@wfu.edu

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