Cardozo Law School – Speech Notes – PDF

2002 Cardozo Law School Speech Notes

Pleased to be here -thank Richard for inviting me-know him longer-college-visited me–Cleveland -quintessential New Yorker-out riding in country-looks at some farm fields and “what’s that plant?” I turned to him and said-that is a cornfield. Proud of holocaust-builds on work–atca

Am glad to share panel will all, part Art-ACLU, my office and a few other organizations have led the legal fight against some of the worst measures coming out of the current administration-particularly those aimed at non-citizens-

Suits to get the names of detainees; to open immigration hearings and a few days ago

filed a class action damage suit against the AG and others with regard to those detentions.

Today I want to talk a bit about the cases and issues raised by the suits CCR and others have brought challenging the Guantanamo detentions.

[Been 3-coalition case-what happened; our habeas; OAS case]

My and CCR’s involvement began with our reaction to the President’s military order of November 13th. Like many lawyers and others we were quite incredulous, thought the military tribunals as outlined were a grave threat to fair trials, raised constitutional issues and would not serve the US well if we wanted the verdicts to have credibility, particularly in the Muslim world. Restricted to non-citizens. Glad to see the over­ Some resilience on our democracy-clear overreaching

Supporters argued strenuously that the tribunals were needed for reasons of security; getting a jury to serve and the need to classified information. While I thought these were of some concern, I felt they could be overcome as they had in previous trials. I think some of the supporters left out on a limb when the administration decided to the try the so-called 20th hijacker, Moussaoui, in a federal district court-somehow the concerns that I mentioned were no longer impediments.

Another reason put forward for the tribunals was the importance of not being restrained by the rules of evidence-hearsay and even coerced evidence could be admitted as long as it was probative. I will never forget one professor who supported the tribunals saying

how important it was to permit hearsay; otherwise the testimony of a witness detailing the alleged conversation that Bin Laden had with his mother a few days prior to 9/ 11 saying that big one was coming would not be admitted. This so-called phone call as has now

been widely acknowledged, even by US officials, never occurred. But it reminded me of the dangers, particularly in this climate, of eliminating some of our time honored rules.

The other danger of course of doing away with evidentiary rules is that the tribunal rules would as I read them permit coerced evidence or evidence learned by torture.

Many of the problems of the tribunals are still with us even after the new regulations. Art will address or has addressed some of these. I want to make just make a few points.

  1. Assuming there is any legality to military tribunals, their jurisdiction appears limited to violations of the laws of war by enemy belligerents. Teaching of Ex Parte Qurin.
  2. Order tries to go beyond that and says violations of the laws of war and other applicable laws. Other applicable laws can’t be tired. Today-a new one­ membership-furthering the aims-question and to further illegal

here are 3 categories of persons subject to the order: international terrorists; members of al qaeda and those who harbor either group. I fail to understand how an international terrorist not backed by a state or who is not a state actor can commit a violation of the laws of war -other than in a civil war situation governed by common article 3 of GC. Or how he is an enemy belligerent.

A similar argument can be made-non state actors, of course, regarding al qaeda­ but that would depend on facts concerning relationship to the Taliban

This argument is strengthened by the fact that the US has statutes criminalizing international terrorism-18 USC 2231 et seq-a strong indicator congress expected that offense to be tried in domestic courts-(look up statutes)

So what US has created is a situation where an international terrorist who is US citizen tried in federal courts; non-citizens, even if not committed a war crime, in front of tribunals.

  1. The order is not limited to those involved with or supporting the attacks on 11; it includes anyone who commits or plans an act of international terrorism­ apart from the problem of non-state actors I just mentioned, to the extent it moves beyond Sept 11, it goes beyond the Sept use of force resolution which despite its breath, is limited to those in some way involved with Sept 11
  2. I have questions, and they need further research as to whether, military tribunals are legal under international law even for enemy belligerents accused of war Recall that the last ones employed by the US were during and

immediately after WWII. This was prior to the 4 Geneva Conventions, Protocol I as well as the International Covenant on Civil and Political Rights and other human rights declarations and treaties. Most of these instruments whether applicable in times of war or peace require trials by regularly constituted courts­ – I question whether military tribunals are such courts.

Indefinite Detention- moves us toward Guantanamo

An aspect of the military order of Nov 13 that was little noticed at the time was its detention provisions. The order is titled “detention, treatment and trial of certain non-citizens in the war against terrorism” The order allows the indefinite detention of any non-citizen whom the president has reason to believe fits within the three categories I mentioned earlier: international terrorist; al qeada member, or a person who harbors those two.

Section 2(b): Sec of Defense shall ensure individuals subject to the order are detained, and “if the individual is to be tried” that such individual be tried by a military tribunal. I repeat -if the individual is to be tried” So we have a situation where the president designates non-citizens as fitting one of the categories, sec of defense detains, can do so outside the US, where court review may be unavailable , and the person never need to tried. Remarkable to me. No legal process, whatsoever.

Rumsfeld has said may detain people indefinitely; has even gone so far as to say may do so if tried and acquitted by the tribunals

In addition, a provision prohibiting any review in US court, foreign court or international court. Same lang. of Roosevelt order-govt argued suspended the writ in Quirin-held not to do so. But question whether makes any diff. as govt argues US courts no habeas jurisdiction in Guantanamo -so no way to test detentions under this order.

Even the Patriot Act which allows indefinite detention for those the AG can’t deport and certifies as terrorists are reviewed in a court every six months; and must be finding a threat to national security or safety of the community

Can individuals be indefinitely detained-a possible exception left open by Zadvydas­ under what circumstances and what kind of process is required. These detention provisions seem to raise serious due process problems to me.

Certainly serious questions under international law as well; cil and treaty law prohibiting arbitrary detention-without process, without probable cause, without review by a court


All of this leads us to Guantanamo. What is authority? Initially thought the order.

  1. First issue is why Guantanamo: Putting aside the obvious security, accessibility to the US for military and officials, and that it is a US military base, a main reason is the US position that no court in the US has jurisdiction over its actions on the In other words, no detained person can test the reasons for this detention and even if can no due process rights.
  2. US will of course rely on Johnson v. Eisentrager to say no Habeas jurisdiction: non-resident enemy aliens tried for violations of the laws of war in a. military tribunal in China with permission of the
  3. came up for habeas-after conviction and key elements found against petitioners-war crime and alien enemies
    1. court actually did the review of whether war crimes and alien enemies and proper cour
  4. We would argue qurin and yamashita: did review of claims of enemy aliens– and GITMO is subject to habeas jurisd: lease: complete jurisdiction and control of US; in fact “exclusive” although ultimate sov. is in Cuba-akin to canal zone-got limited fundamental const rights-
  5. ATCA claim
  6. As to due process-which could make a diff as to whether habeas lies:

US argued in the Haitian Refugee case no due process on GITMO-in the 2nd circuit. Ct. asked Ken Starr-” Do you mean to say you can do anything you want to the refugees? Torture them, throw them into the sea and we could do nothing? He said that is right; No court, but US would look to international law. That court did give us a PI and held serious question as to due process rights. .

Subsequent ruling in 11th cir. Haitian and Cuban refugees-diff conclusion. No due process rights

So will be an interesting fight. Recent ally of sorts Judge Posner gave a speech at NYU saying it was absurd to believe that US could evade court review by simply moving people to Guantanamo.

  1. As you all know a second major issue concerns the legal status of those on Don’t know many facts: taliban, al qaeda and some others.

US position is none are POWs-and did so without and individual determinations as to anyone.

One reason for this refusal may be Article 102 of GC3 which says that POWs must be tried by the same courts and procedures as the US’s own soldiers-that would mean no military commissions-but courts martial or federal courts.

POW status does not mean prisoners cannot be charged with war crimes or questioned

ICRC, some European countries and others have said US cannot make this determination in a wholesale fashion-that combatants must be treated as POWs and if there is any doubt as to that status, they must be considered POWs until a competent tribunal decides otherwise. US not done so and seems to be a serious breach of the convention.

However, even assuming a number of the GITMO detainees would not be determined to be prisoners of war-the conventions would still cover those picked up in Afghanistan.

They would drop out of GC3 and be considered protected by GC4–there is no gap­ although US would seem to argue there is-eg with regard to Al Qaeda

However, even if there are those at GITMO not protected by humanitarian law-then human rights law applies-the point is that some body of law applies and some process is due.

This was the ruling we won from the OAS Inter-American Human Rights Commission-

Said legal not a political decision; and GITMO status should not be subject to unfettered discretion of US officials:

requested the US take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal-

US did not comply and claims no authority

I personally think the US is acting outside the law both with regard to the tribunals and the detainees at GITMO. Tribunals went too far too fast; pulling back-moussaoui, new regs and now trying to figure out a new charge; on GITMO initially no GC; now GC but still out of compliance

Don’t think ness to fight terror; can fight it within the law and not outside.