Trying enemy combatants in civilian courts

George Washington Law Review

Volumn 75, Issue 5-6, 2007, Pages 1421-1442

  German, Michael ^a,b  

^a American Civil Liberties Union   (United States)

^b NATIONAL DEFENSE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 36049050943     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (97)

1. The Honorable Gerald E. Rosen, Remarks at The George Washington University Law Review Symposium: Trying Enemy Combatants in Civilian Courts (Oct. 19, 2006).
2. Classified Information Procedures Act, 18 U.S.C. app. 3 §§1-16 (2000).
3. See John D. Cline & K.C Maxwell, Criminal Prosecutions and Classified Information, L.A. LAW., Sept. 2006, at 35.
4. See id. at 36.
5. Rosen, supra note 1.
6. Douglas Letter, Remarks at The George Washington Law Review Symposium: Trying Enemy Combatants in Civilian Courts (Oct. 19, 2006);
7. Mary Jo White, Remarks at The George Washington Law Review Symposium: Trying Enemy Combatants in Civilian Courts (Oct. 19, 2006).
8. Letter, supra note 6.
9. Jerry Markon, Moussaoui Pleads Guilty in Terror Plot, WASH. POST, Apr. 23, 2005, at Al.
10. White, supra note 6.
11. See R. Carter Pittman, The Colonial and Constitutional History of the Privilege Against Self-incrimination in America, 21 VA. L. REV. 763, 789 (1935).
12. Quinn v. United States, 349 U.S. 155, 161-62 (1955).
13. Crawford v. Washington, 541 U.S. 36 (2004).
14. Id. at 61.
15. James Madison argued in support of his motion to amend the Constitution to include the Bill of Rights: I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this Constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this Constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. 1 ANNALS OF CONG. 449 (Joseph Gales & William Seaton eds., 1789).
16. See Boyd v. United States, 116 U.S. 616, 624-27, 630 (1886).
17. A detailed discussion of terrorist strategy based on an analysis of the many manuals and manifestos published by terrorist groups of varying ideologies appears in my book. MICHAEL GERMAN, THINKING LIKE A TERRORIST (2007).
18. Rosen, supra note 1.
19. Interview by Tayseer Alouni, Al-Jazeera television correspondent, with Osama bin Laden (CNN trans.) (Oct. 2001), available at http://archives.cnn.com/2002/WORLD/asiapcf/south/02/05/binladen.transcript/ index.html.
20. Id.
21. See OFFICE OF THE ATT'Y GEN., THE ATTORNEY GENERAL'S GUIDELINES ON GENERAL CRIMES, RACKETEERING ENTERPRISE AND DOMESTIC SECURITY/TERRORISM INVESTIGATIONS, available at http://www.usdoj.gov/ag/readingroom/generalcrimea.htm.
22. Exec. Order No. 12,958 § 1.4(a), 60 Fed. Reg. 19,825, 19,827 (Apr. 17, 1995) (ordering that only the President, those designated by the President, and those delegated under the President's authority may originally classify information).
23. Under Section 4 of the Classified Information Procedures Act the court may authorize the government to delete certain classified information from documents and substitute a summary of that information or stipulate to the facts that classified information would tend to prove. Classified Information Procedures Act §4, 18 U.S.C. app. 3 § 4 (2000).
24. See Exec. Order No. 12,958 § 3.1(b), 60 Fed. Reg. 19,825, 19,831 (Apr. 17, 1995) ("[T]he need to protect [classified] information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to national security that might reasonably be expected from disclosure.").
25. See United States v. Collins, 720 F.2d 1195, 1198 n.2 (11th Cir. 1983) (noting that "[i]t is an Executive function to classify information, not a judicial one").
26. Nathan A. Sales, Secrecy and National-Security Investigations, 58 ALA. L. REV. 811 (2007).
27. Id. at 817.
28. For an analysis of the Bay of Pigs Operation, see generally 3 JACK PFEIFFER, BAY OF PIGS OPERATION, available at http://www14.homepage.villanova.edu/ david.barrett/bop.html. And for an analysis of the faulty intelligence regarding Iraq's weapons of mass destruction capabilities, see generally COMM'N ON THE INTELLIGENCE CAPABILITIES OF THE U.S. REGARDING WEAPONS OF MASS DESTRUCTION, REPORT TO THE PRESIDENT OF THE UNITED STATES (2005), available at http://www.wmd.gov/report/wmd_report.pdf. The COINTELPRO program and the 9/11 terrorist attacks are discussed in some detail later in this Article. See infra Part I.B.
29. DEP'T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION'S USE OF NATIONAL SECURITY LETTERS, xxviii-xli (2007), available at http://www.usdoj.gov/ oig/special/s0703b/final.pdf.
30. Sales, supra note 25, at 821-22.
31. See id. at 823.
32. See NAT'L COMM'N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION OF TERRORIST ATTACKS UPON THE UNITED STATES 423 (W.W. Norton & Co. 2004).
33. See id. at 266-76.
34. See id. at 78-80.
35. Id.
36. Id.
37. Id.
38. Omnibus Crime Control and Safe Streets Act of 1968. Pub. L. No. 90-351, tit. III, §§ 801-804, 82 Stat. 211 (codified as amended at 18 U.S.C. §§2510-2522 (2000))(Wiretapping and Electronic Surveillance).
39. See, e.g., 18 U.S.C. § 2517 (2000); FED. R. CRIM. P. 6(e)(3)(A). Section 2517 provides: (1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
40. Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties. Rule 6(e)(3) provides: (A) Disclosure of a grand-jury matter-other than the grand jury's deliberations or any grand juror's vote-may be made to: (i) an attorney for the government for use in performing that attorney's duty; (ii) any government personnel-including those of a state or state subdivision, Indian tribe, or foreign government-that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law; . . . .
41. Id.
42. See Rovario v. United States, 353 U.S. 53. 60 (1957) ("Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.").
43. See CHARLES DOYLE. CONG. RESEARCH SERV., NATIONAL SECURITY LETTERS IN FOREIGN INTELLIGENCE INVESTIGATIONS: A GLIMPSE OF THE LEGAL BACKGROUND AND RECENT AMENDMENTS (2006), available at http://www.fas.org/sgp/crs/ intel/RS22406.pdf.
44. See Foreign Intelligence Surveillance Act of 1978 §§ 104-105, Pub. L. No. 95-511. 92 Stat. 1783, 1788-93 (codified as amended at 50 U.S.C. § 1822 (2000)).
45. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801-1872 (2000)).
46. See SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, SUPPLEMENTARY DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS, S. REP. NO. 94-755, at 3 (1976).
47. Id.
48. Id. at 11.
49. See id. at 22, 27.
50. See OFFICE OF THE ATT'Y GEN., THE ATTORNEY GENERAL'S GUIDELINES ON GENERAL CRIMES, RACKETEERING ENTERPRISE AND DOMESTIC SECURITY/TERRORISM INVESTIGATIONS, available at http://www.usdoj.gov/ag/readingroom/generalcrimea.htm ("A domestic security/terrorism investigation may be initiated when the facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States." (emphasis added)).
51. NAT'L COMM'N ON TERRORIST ATTACKS UPON THE U.S., supra note 31, at 74-80.
52. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 15, 2005, at Al.
53. See L. Britt Snider, Unlucky SHAMROCK: Recollections from the Church Committee's Investigation of NSA, CENTRAL INTELLIGENCE AGENCY STUDIES IN INTELLIGENCE (Winter 1999-2000), available at https://www.cia.gov/library/center-for-the-study-of- intelligence/kent-csi/docs/v43i3a04p.htm.
54. See S. REP. NO. 94-1035, at 9-10 (1976).
55. See Hearing Before the H. Permanent Select Comm. on Intelligence, 106th Cong. 1 (2000) (statement of Lt. Gen. Michael V. Hayden, USAF, Director, Nat'l Sec. Agency);
56. NAT'L SEC. AGENCY, LEGAL STANDARDS FOR THE INTELLIGENCE COMMUNITY IN CONDUCTING ELECTRONIC SURVEILLANCE (2000), available at http://www.fas.org/irp/nsa/standards.html.
57. See Eric Lichtblau, Man Is Charged with Smuggling Explosives into U.S., L.A. TIMES. Dec. 18, 1999, at A1.
58. H. PERMANENT SELECT COMM. ON INTELLIGENCE & S. SELECT COMM. ON INTELLIGENCE, JOINT INQUIRY INTO INTELLIGENCE COMMUNITY ACTIVITIES BEFORE AND AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, H.R. REP. NO. 107-792, S. REP. NO. 107-351, at xi-xv (2002);
59. NAT'L COMM'N ON TERRORIST ATTACKS UPON THE U.S., supra note 31, at 266-77.
60. H. PERMANENT SELECT COMM. ON INTELLIGENCE & S. SELECT COMM. ON INTELLIGENCE. JOINT INOUIRY INTO I NTELLIGENCE COMMUNITY ACTIVITIES BEFORE AND AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, H.R. REP. NO. 107-792, S. REP. NO. 107-351, at xi (2002).
61. Raymond Bonner & Jane Perlez, Bali Bombings Kill at Least 25 in Tourist Spots, N.Y. TIMES, Oct. 2. 2005. at Al.
62. Elaine Sciolino, 10 Bombs Shatter Trains in Madrid, Killing 192, N.Y. TIMES, Mar. 12, 2005, at Al.
63. Britain Defiant as Bombers Kill 52 in Attack on the Heart of London, TIMES (London), July 8, 2005, at 2.
64. Hassan M. Fattah & Michael Slackman, 3 Hotels Bombed in Jordan; At Least 57 Die, N.Y. TIMES, Nov. 10, 2005, at Al.
65. THE NAT'L SEC. ARCHIVE, DUBIOUS SECRETS: NATIONAL SECURITY ARCHIVE ELECTRONIC BRIEFING BOOK NO. 90 (Jeffrey Richelson, William Burr & Thomas Blanton eds., 2003), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB90/index. htm.
66. Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing: Hearing Before the Subcomm. on Nat'l Sec., Emerging Threats, and Int'l Relations of the H. Comm. on Gov't Reform, 108th Cong. 2 (2004) (statement of Rep. Christopher Shays, Chairman, Subcomm. on Nat'l Sec., Emerging Threats, and Int'l Relations of the H. Comm. on Gov't Reform).
67. See Emerging Threats: Overclassification and Pseudo-Classification: Hearing Before the Subcomm. on Nat'l Sec., Emerging Threats, and Int'l Relations of the H. Comm. on Gov't Reform, 109th Cong. 2 (2005) (statement of Thomas S. Blanton, National Security Archive, The George Washington University);
68. INFO. SEC. OVERSIGHT OFFICE, 2005 REPORT TO THE PRESIDENT 13 (2006), available at http://www.archives.gov/isoo/reports/2005-annual-report.pdf.
69. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT ACT"), Pub. L. No. 107-56, 115 Stat. 272 (codified in scattered sections of U.S.C).
70. Statement of the Staff of the Nat'l Comm'n on Terrorist Attacks Upon the U.S., Reforming Law Enforcement, Counterterrorism, and Intelligence Collection in the United States, Staff Statement No. 12, at 9 (2004), available at http://www.9-11commission.gov/staff_statements/staff_statement_l 2.pdf.
71. Id.
72. Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing: Hearing Before the Subcomm. on Nat'l Sec., Emerging Threats, and Int'l Relations of the H. Comm. on Gov't Reform, 108th Cong. 5 (2004) (statement of Rep. Christopher Shays, Chairman, Subcomm. of Nat'l Sec., Emerging Threats, and Int'l Relations of the H. Comm. on Gov't Reform).
73. See Central Intelligence Agency v. Sims, 471 U.S. 159, 167 (1985).
74. See Syracuse University Transactional Records Access Clearinghouse (TRAC) FBI Report, http://trac.syr.edu/tracfbi/newfindings/current (last visited June 3, 2007) (reporting that federal terrorism prosecutions, after an increase in 2002, have dropped to below 2001 levels, and that "when it comes to the FBI and international terrorism matters, the percent of those the prosecutors turned down in the last few years has been generally increasing and reached a peak of 87% in FY 2006").
75. DEP'T OF JUSTICE, FACT SHEET: SHIFTING FROM PROSECUTION TO PREVENTION. REDESIGNING THE JUSTICE DEPARTMENT TO PREVENT FUTURE ACTS OF TERRORISM (May 29, 2002), a vailable at http://www.fas.org/irp/news/2002/05/fbireorganizationfactsheet.pdf.
76. MIRIAM-WEBSTER'S DICTIONARY OF LAW 171-72 (1996).
77. Dana Priest, Retired Official Defends the CIA 's Performance, WASH. POST, Nov. 5, 2004, at A23.
78. Id.
79. Rosen, supra note 1.
80. Michael Scheuer, Remarks at The George Washington Law Review Symposium: Enemy Combatants Under the Radar: Ghost Detainees, Proxy Detention, and Extraordinary Rendition (Oct. 19, 2006).
81. Gregory T. Nojeim & Timothy H. Edgar, ACLU Statement for the Record at a Hearing Before the Senate Judiciary Committee on "The 9/11 Commission and Recommendations for the Future of Federal Law Enforcement and Border Security" (Aug. 19, 2004), http://www. aclu.org/natsec/emergpowers/ 144961eg20040819.html.
82. United States v. U.S. Dist. Court, 407 U.S. 297, 313-14 (1971).
83. Elise Labott, U.S. Raises Figures for 2003 Terrorist Attacks, CNN.COM, June 22, 2004, http://www.cnn.com/2004/ALLPOLITICS/06/22/ powell.terror.
84. Tom Reagan, Global Terror Attacks Tripled in 2004, CHRISTIAN SCI. MONITOR, Apr. 28. 2005, http://www.csmonitor.com/2005/0428/dailyUpdate.html.
85. Karen DeYoung, Terrorist Attacks Rose Sharply in 2005, State Dept. Says, WASH. POST, Apr. 29, 2006, at A1.
86. Current and Projected National Security Threats to the United States: Hearing Before the S. Select Comm. on Intelligence, 109th Cong. 9 (2005).
87. Id. at 47.
88. Press Release, Nat'l Intelligence Estimate, Declassified Key Judgments of the National Intelligence Estimate Trends in Global Terrorism: Implications for the United States (Apr. 2006), available at http://www.dni.gov/ press_releases/Declassified_NIE_Key_Judgments.pdf.
89. Such cases include Sami Omar Al-Hussayen, an Idaho student accused of providing material support for terrorism, see Associated Press, No Conviction for Student in Terror Case, N.Y. TIMES, June 11, 2004, at A16; Muhammad Salah and Abdelhaleem Ashqar, see Matt O'Connor. Acquittal Just Latest Setback in Courts, CHI. TRIB., Feb. 2, 2007, at C14; and Ahmed Hannan and Farouk Ali-Haimoud, who were acquitted in a trial that led to the convictions of two other individuals, Karim Koubriti and Abdel-Ilah Elmaroudi, whose convictions were later vacated,
90. see David Shepardson, One-Time Terror Suspect Gets Apology from Judge, DETROIT NEWS, Mar. 23, 2005, at IA.
91. News Release, Dep't of Def., Office of the Assistant Sec'y of Def. (Pub. Affairs), Detainee Transfer Announced (Apr. 26, 2007), available at http://www.defenselink.mil/releases/release.aspx?releaseid=10788.
92. See generally Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (holding that a detainee seeking to challenge his classification as an enemy combatant is entitled to a hearing before a neutral decisionmaker over government arguments that such process is unnecessary).
93. Id. at 510.
94. See id. at 540 (Souter, J., dissenting).
95. See Press Release, Dep't of Justice, Statement of Mark Corallo, Director of Public Affairs, Regarding Yaser Hamdi (Sept. 22, 2004), http://www.usdoj.gov/ opa/pr/2004/September/04_ opa_640.htm.
96. Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), available at http://www.yale. edu/lawweb/avalon/presiden/inaug/jefinaul.htm.
97. Id.