A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements

I’ve posted the abstract to a recent symposium article A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements” to SSRN, but unfortunately I don’t have a .PDF of the final page proofs to post yet.  Here is the abstract of the article which appears in Volume 59 of the DePaul Law Review (official citation 59 DePaul Law Review 943 (2010):

This symposium article focuses on the impact that abusive and coercive interrogation techniques will have on the admissibility of statements derived from non-abusive, non-coercive interviews. Were subsequent, legal, and humane interviews indelibly impacted by the “taint of torture” regardless of how they were conducted? Accordingly, are statements made in those subsequent non-coercive settings inadmissible on voluntariness grounds? This article first details the coercive interrogation techniques authorized against suspected terrorists detained in Guantanamo Bay Cuba. Next, the article details the changing circumstances of detainee custody and treatment to set the stage for a discussion of whether earlier abuses, if corroborated, will invalidate subsequent statements made by the victims of that abuse. I explain how the U.S. government, recognizing that its earlier interrogation tactics may have jeopardized its legal case against the detainees implemented “clean teams.” Building off of these factual premises, I next synthesize the tests a judge will need to apply in order to determine the admissibility of seemingly voluntary post-abuse statements. In this synthesis I highlight how factors such as the time between statements, change in location, change in identity of interrogators, nature of the previous unlawful interrogation methods, and use of illegally procured statements as leverage in obtaining new statements each impact the admissibility analysis.

What to do about Guantanamo

On February 22, at Noon I will be giving a speech at Temple University.  The topic of the speech is “What to do about Guantanamo?”  My remarks will focus on the challenges associated with closing the detention facility, and the broader challenges of detaining and trying suspected terrorists.

The War on Terror: Where Are We Now? Where Do We Go from Here?

Tomorrow there will be a fantastic event sponsored by three of my favorite organizations on a topic of great interest to me: 

The Federalist Society’s International Law and National Security Law Practice Group, The Foundation for the Defense of Democracies, and The National Review Institute are sponsoring an event entitled: The War on Terror: Where Are We Now? Where Do We Go from Here?” 

The organizers have put together a balanced and brilliant panel, something which is always the case with Federalist Society events, making this a must attend for those who want to hear reasoned debate from both sides of the arguments over counterterrorism. 

The panelists include:

  • Mr. Steven A. Engel, Partner, Dechert LLP
  • The Hon. Neal K. Katyal, Principal Deputy Solicitor General, U.S. Department of Justice
  • Mr. David B. Rivkin, Jr., Partner, Baker & Hostetler LLP and Co-Chairman, Center for Law and Counterterrorism
  • Prof. Stephen I. Vladeck, American University Washington College of Law
  • Prof. Neomi Rao, George Mason University School of Law, Moderator

Here is a more detailed description of the event:


Justice task force recommends about 50 Guantanamo detainees be held indefinitely

Exactly one year has passed since President Obama declared he would close Guantanamo.

And today, The Washington Post reports that his Department of Justice Task Force will recommend “that nearly 50 of the 196 detainees at the U.S. military prison at Guantanamo Bay, Cuba, should be held indefinitely without trial under the laws of war.”  How long will we have to wait before human rights groups begin to call President Obama a war criminal?  How long until those who called for President Bush’s indictment by an international tribunal make the same call? 

Don’t hold your breath.  Back in 2005 Amnesty International called Guantanamo “the Gulag of our times”  equating the Bush administration to war criminals.  Now, their tune has moderated –of course in their eyes it is still bad that Guantanamo remains open– but they’ve toned down their Gulag language and now we hear “people around the world who care about human rights and the rule of law will be extremely disheartened” by President Obama’s failure to close Guantanamo.  Disheartened is probably an improvement from the dyspepsia which gripped most of these people during the Bush administration. 

Not to be outdone in moderation, Anthony Romero of the ACLU blandly stated (more…)

“After Guantanamo: The Way Forward” Four Roundtables on Reconciling National Security and the Rule of Law

On Friday September 11, 2009 The Frederick K. Cox International Law Center at Case Western Reserve University School of Law will host Four Roundtables Reconciling National Security and the Rule of Law. 

I’m presenting on the first panel with Larry May (Vanderbilt), Keith Petty (U.S. Army), Mike Newton (Vanderbilt), Morris Davis (USAF Ret.).  The panel will be moderated by Bob Strassfeld (Case Western).  Our topic is “A Retrospective on the Military Commissions.” 

The event will be Webcast live from this link

Here is the rest of the agenda:

8:00-8:30 AM: Registration and Coffee – Ground floor Rotunda

8:30 AM: Introduction – Professor Michael P. Scharf, director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law

8:45-9:30 AM: Opening Lecture – General John D. Altenburg, Jr., Of Counsel, Greenberg Traurig; former Convening Authority, Military Commissions

9:30-9:45 AM: Break

Discussing GITMO on WITF Radio (Call in show)

guantánamo bay, brooklynUPDATE:  The radio show is now available for download.  Click here to listen or download. 

Tomorrow morning from 9am-10am (Thursday July 23, 2009) I will appear for an hour on “Smart Talk” WITF-89.5FM and 93.3FM.  The topic is Guantanamo, the detainee task force, and President Obama’s approach to counterterrorism. 

Leonard Rubenstein of the US Institute of Peace will also appear on the show.  Leonard is the former director of Physicisans for Human Rights, and an expert on health and human rights during conflicts.  I’m looking forward to engaging in a dialogue with him and with callers (it’s a call in show). 

For those of you outside the Harrisburg PA listening area you can listen live here.  The call in number is 1-800-729-7532.

Creative Commons License photo credit: chris.szabla

Counterterrorism Under President Obama

I was recently interviewed by Patty Satalia, a journalist with WPSU a PBS and NPR affiliate.  The interview was approximately one hour long (divided into segments) and questions ran the gamut from a discussion of the challenges the President will face in closing Guantanamo, to lessons from the CIA memos.  We also discussed similarities and differences between President Bush and President Obama, the role of the courts and Congress in these debates, and other related topics. 

The interview is available for viewing at http://conversations.psu.edu.  Readers who want to offer feedback can also comment on the “discussion board” immediately below the videos.  I look forward to hearing your comments. 


Institutional Legitimacy and Counterterrorism Trials

I’ve posted a draft version of my article Institutional Legitimacy and Counterterrorism Trials to SSRN and SelectedWorks.  The article is forthcoming in the Richmond Law Review and addresses the relationship between conformity and legitimacy in the institutional design process.  I specifically address how legitimacy is an important factor for counterterrorism trials, the military commissions and national security courts.  The article is aimed at national security law scholars and institutional design theorists.  Here is the abstract:

Much of the current debate in national security law scholarship focuses on institutional design issues related to the balancing of values such as legitimacy, effectiveness, fairness and efficiency.  A part of that debate centers around the legitimacy of tribunals established to try alleged terrorists. Critics of those tribunals assert they are an illegitimate form of justice and require reform or replacement by a new national security court. These scholars are principally engaged in a debate over institutional design. This article seeks to contribute to that debate, and also to the larger institutional design literature by providing a theoretical framework for understanding and evaluating legitimacy considerations in the institutional design process. While adding legitimacy as an analytical component may further complicate an already complex legal and policy debate, I contend (more…)