Chesney on The NY Times Editorial Page and Its Potentially Misleading Account of the Detention Status Quo

Over at Lawfare, Bobby Chesney writes:

In an editorial that ran on Monday, the Times took up the laudable task of defending the administration’s plans to substantially enhance the procedural safeguards associated with the annual review board process for GTMO detainees.  All to the good if you ask me.  Inexplicably, however, the editorial seeks to bolster the case for the proposed changes by giving an utterly misleading impression of the legal status quo at GTMO.  It’s really quite bizarre, though not unprecedented.

The problem is that the editorial seems at pains to depict GTMO and detention policy as things stood circa spring 2004 or earlier.  The detainees are in a ‘legal limbo,’ the editors claim, giving the uninformed reader little reason to suspect the following:

– that detainees have had the right to seek habeas relief in federal court since 2008 (though as I note below the editors do offer an obscure reference in that direction late in the editorial)

– that many detainees have actually prevailed in the habeas process

– that from 2005 to 2008, detainees had a right to judicial review in the D.C. Circuit Court of Appeals (though the process was much less robust than habeas has turned out to be, and though only the Uighurs ever got anywhere under that system as other detainees concentrated on pursuing the right to file habeas petitions)

– and, last but not least, that an annual ‘administrative review board’ system for reconsideration of the need for continued detention already has been operating since 2005, and thus that the issue at hand is whether to substantially enhance the procedures associated with that review rather than invent the idea of annual re-screening from scratch (in fairness, the editors do offer an indirect reference to the existing system mid-way through the editorial).

Judge for yourself by reading the whole thing, and asking what an uninformed reader might assume about the status quo…

(Read the full post at Lawfare.)

Another Delay in the Trial for Alleged USS Cole Killers

Tom Joscelyn notes that the Obama administration has delayed the trial by military commission of Abd al Rahim al Nashiri, the mastermind of the USS Cole attack, according to the


Washington Post. The Defense Department denies this, saying in a statement that prosecutors ‘are actively investigating the case against Mr. al-Nashiri and are developing charges against him.’

Tom finds it hard to believe that it’s taking this long to put together a 10 year old case, and I agree that something seems fishy.  In fact, as Tom highlights “the Post talked to some ‘military officials’ who ‘said a team of prosecutors in the Nashiri case has been ready [to] go to trial for some time.’”

So what is holding this up, politics of course.  From the Post:  “‘Its politics at this point,’ said one military official who spoke on the condition of anonymity to discuss policy. He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantanamo Bay.”

It’s not like there isn’t sufficient public evidence to proceed against Nashiri, consider the admissions he made during his CSRT (as Tom summarizes):

Tribunal Member: How many times did you meet Osama bin Laden and did you take money from him every time?

Nashiri: Many times. I dont remember what year I met Osama bin Laden. What year, I dont remember. I dont remember what year. Maybe 96 or 95. And during that time whenever [I] went to Afghanistan I just stop by and visited him. And if I needed money I would just ask him and he would give money to me.

Tribunal Member: What was the money used for? And, how much did you take?

Nashiri: Personal expenses. Many times I would tell, give me three of four thousand dollars and he would give them to me. And I use them as personal expenses. When [sic] went to have a project in Yemen, I took money from him several times. I don’t know the total amount of money. Maybe ten thousand. After that five thousand. And the second project after that. After the Cole incident ended[,] I wanted to have a fishing project in Pakistan and a wooden ship in Dubai. I also ask Usama bin Laden to support me.So the bottom line is that I took money from Usama bin Laden for a fishing project. I was under the impression that the project was mine. And it was a fishing project. I didn’t care about Usama bin Laden. If the project succeeded, I would have paid the money back to Usama bin Laden. That’s it. I understood it as being a loan. But when he told me that we could use this for bombing something…

”Nashiri goes on to say that he pulled out of the deal with bin Laden when the terror master started talking about using Nashiri’s fishing boat for, you know, terrorism – just as al Qaeda did in the attack on the USS Cole.  Nashiri conceded that he knew the Cole plotters (“…I got to know the people who were involved in the explosion”), but claimed that they were part of his fishing enterprise (“We were also, we were planning to be involved in a fishing project”). Nashiri also conceded that he used money from Osama bin Laden to purchase explosives, but said the explosives were going to be used to dig wells…”

Read Tom’s full post here.

Harold Koh Speech on Predator Drones and The Obama Administration and International Law

Annual Meeting of the American Society of International Law

Washington, DC
March 25, 2010

Thank you, Dean Areen, for that very generous introduction, and very special thanks to my good friends President Lucy Reed and Executive Director Betsy Andersen for the extraordinary work you do with the American Society of International Law. It has been such a great joy in my new position to be able to collaborate with the Society on so many issues.It is such a pleasure to be back here at the ASIL. I am embarrassed to confess that I have been a member of ASIL for more than 30 years, since my first year of law school, and coming to the annual meeting has always been a highlight of my year. As a young lawyer just out of law school I would come to the American Society meeting and stand in the hotel lobby gaping at all the famous international lawyers walking by: for international lawyers, that is as close as we get to watching the Hollywood stars stroll the red carpet at the Oscars! And last year at this time, when this meeting was held, I was still in the middle of my confirmation process. So under the arcane rules of that process, I was allowed to come here to be seen, but not heard. So it is a pleasure finally to be able to address all of you and to give you my perspective on the Obama Administration’s approach to international law.

Let me start by bringing you special greetings from someone you already know.

As you saw, my client, Secretary Clinton very much wanted to be here in person, but as you see in the headlines, this week she has been called away to Mexico, to meeting visiting Pakistani dignitaries, to testify on Capitol Hill, and many other duties. As you can tell, she is very proud of the strong historical relationship between the American Society and the State Department, and she is determined to keep it strong. As the Secretary mentioned, I and another long time member of the Society, your former President Anne Marie Slaughter of the Policy Planning Staff join her every morning at her 8:45 am senior staff meeting, so the spirit of the American Society is very much in the room (and the smell of the Society as well, as I am usually there at that hour clutching my ASIL coffee mug!)

Since this is my first chance to address you as Legal Adviser, I thought I would speak to three issues. First, the nature of my job as Legal Adviser. Second, to discuss the strategic vision of international law that we in the Obama Administration are attempting to implement. Third and finally, to discuss particular issues that we have grappled with in our first year in a number of high-profile areas: the International Criminal Court, the Human Rights Council, and what I call The Law of 9/11: detentions, use of force, and prosecutions.

I. The Role of the Legal Adviser

First, my job. I have now been the Legal Adviser of the State Department for about nine months. This is a position I first heard of about 40 years ago, and it has struck me throughout my career as the most fascinating legal job in the U.S. Government. Now that I’ve actually been in the job for awhile, I have become even more convinced that that is true, for four reasons.