Tuesday, April 20, 2010

Keitner on Immunity of Foreign Officials

Chimene Keitner has posted an article to SSRN taking issue with the views of Professors Jack Goldsmith and Curt Bradley on whether and when current and former officials of foreign nations should have immunity in U.S. courts. Here's the abstract:

The Schooner Exchange teaches that “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Applying the Foreign Sovereign Immunities Act to grant immunity in U.S. courts to current and former foreign officials for any non-commercial conduct undertaken with the actual or apparent authority of a foreign state would dramatically undercut this basic feature of U.S. sovereignty. Arguments based on logic, policy, and international law do not compel such an extreme result.

Here's the link: http://ssrn.com/abstract=1593189

Friday, April 9, 2010

Beth Hillman's Journal From Gitmo -- Installment Six

Time and counsel

The one issue that was addressed, if not quite resolved, this week was a motion by the defense to retain an Army officer as Noor’s counsel. After Captain Modzelewski (the presiding judge) reviewed the posture of the case, she requested Noor’s consent to consider the defense motion to retain counsel. He agreed, and she proceeded to recount the relevant facts. Army Major Amy Fitzgibbons was detailed to represent Noor more than two years ago, during a period in which she was mobilized from the Army reserve. When Major Fitzgibbons’ mobilization ended and she returned to the civilian work force, she transitioned into the pool of civilian counsel qualified to represent detainees. She filed notice to the commission that she intended to continue, with Noor’s consent, as his counsel. Now, however, she represented him as civilian, not military, counsel.

You might ask at this point: what’s the difference? Answer: Their clothes. Functionally, they’re identical. Military and civilian defense counsel have the same access to both evidence and clients, perform the same duties, have the same ethical responsibilities related to representation.

Back to our story: Several months after transitioning to the civilian defense pool, about thirty months into her continuous representation of Noor, Ms. Fitzgibbons accepted voluntary mobilization orders that sent her back into the Army, this time assigned not to represent detainees but to do capital defense work for the Army’s Trial Defense Service. The problem that led to this motion grew out of a conflict between the interests of the Trial Defense Service, for whom Major Fitzgibbons began working last month, and the interests of Noor and the military commissions, both of whom hoped she would continue to work for them. Major Fitzgibbons did not intend to resign from representation of Noor when she was mobilized this year; she wanted to continue as his attorney and likely felt an ethical responsibility to do so. But, quite understandably, her Army superiors were not entirely comfortable with loaning their new asset to the work of the military commissions, a sort of (endless?) labor that could drain the resources of even the most energetic of judge advocates.

As for Noor? According to Howard Cabot--Noor’s civilian defense counsel, a partner at Perkins Coie, and the attorney who argued this motion before the commission—Major Fitzgibbons had established an attorney-client relationship with Noor that the detainee did not want to sever and that the commission was bound to preserve. Cabot stressed the importance of continuity of counsel, cited to court-martial precedent (there is no commission precedent, alas …) in support of his position, and asked the commission to “do what’s right” to ensure Fitzgibbons was retained as Noor’s counsel.

The prosecutors' halting response to Cabot’s impassioned argument reflected their awkward position. Navy Lieutenant Commander Arthur Gaston argued that the Office of Military Commissions had no authority to order another branch of the Army – the Trial Defense Service – to release an officer for voluntary duty. The judge interrupted to point out that Chief Deputy Defense Counsel Michael Berrigan’s recently filed affidavit listed numerous instances in which Army commands had in fact consented to their judge advocates continuing to represent detainees despite being transferred out of the Office of Military Commissions. The prosecution responded by pointing out that Major Fitzgibbons took her new position with full knowledge of the potential conflict. Lieutenant Commander Gaston conceded that Noor and Fitzgibbons had an attorney-client relationship that warranted respect, but suggested that the commission could do little to preserve it, given the circumstances.

After defense counsel spoke briefly in rebuttal, the judge recessed the commission for thirty minutes and then returned with a decision. In an opinion read from the bench, she found that voluntary mobilization does not sever an attorney-client relationship and that Major Fitzgibbons accepted mobilization orders aware of her responsibility. Captain Modzelewski, however, cautioned that she could not order Fitzgibbons be detailed to the case, since she had no authority over the Trial Defense Service. She did, however, strongly recommend that Fitzgibbons’ request to continue as Noor’s counsel be accommodated by her new command. The judge closed by pointing out that even if the Trial Defense Service refused to release Fitzgibbons, she was still Noor’s attorney, implying that Fitzgibbons might have to resign from her current post if her superiors did not acquiesce.

In some ways, this hearing was an exercise in abstraction. Noor apparently wanted Fitzgibbons to continue as his attorney, the prosecution had no objection, Fitzgibbons herself wanted to continue, the judge concurred with the need for continuous representation. There was no disagreement among the parties involved in the commission. There was also no implication that Noor had suffered harm as a result of this dispute; he was well-represented at this hearing, and would continue to be in future proceedings by Mr. Cabot and Navy Lieutenant Commander Katharine Doxakis, who was the other defense counsel present at the hearing. Left unexamined were the concrete obstacles that have made representing detainees so challenging for even the most dedicated defense counsel. Could Noor in fact develop a meaningful, effective attorney-client relationship with his GITMO lawyers, given the conditions of his detention and the context of his culture, his language, his past?

Note: I wrote earlier that the defense team in this week’s hearing was two lawyers short, not just one. Noor’s team was missing not only Major Fitzgibbons, but also a Marine Corps captain who’s apparently on deployment at the moment. The issue of retaining Amy Fitzgibbons as Noor’s counsel reveals the blurriness of lines that separate civilian from military counsel and the turmoil created by the extremely long time horizons of the commissions. It also reflects the bureaucratic challenges of creating a new military-legal organization out of a Department of Defense that was not structured to support indefinite detention, permanent overseas prisons – or criminal prosecutions that last a decade.


There’s a beautiful sunset, horizontal stripes of dark and light orange, yellow, and light blue, outside the windows on the left side of the Florida Coastal Airlines plane I’m on. We’re headed north toward Fort Lauderdale and we’ll land in a few minutes. I’m looking forward to getting off the airplane and deciding which direction to walk without having someone following me, without having to bring the other NGO observers (as decent and engaging as they were!) with me to make a phone call or have breakfast. My head is spinning with awe and despair at the effort that so many people are pouring into a system of justice so contrived and so costly. I’m on my way home with a bag full of stuffed iguanas and key chains (“It don’t GITMO better than this”) for my kids. I was only there for 30 hours, but that was more than enough.

Thursday, April 8, 2010

Levine on Declaratory Relief After MedImmune

David Levine (with Charles Belle) has published an article called "Declaratory Relief After MedImmune," 14 Lewis & Clark L. Rev. 491 (2010). Here is the abstract:

In MedImmune, Inc. v. Genentech, Inc., the Supreme Court of the United States rejected the Federal Circuit’s “reasonable apprehension of imminent suit” test for determining the existence of a justiciable controversy in actions for declaratory relief involving alleged or potential patent infringement. The Supreme Court substituted the totality-of circumstances test, which has long been used trans-substantively inactions for declaratory relief. Justice Clarence Thomas, the lone dissenter,contended that the majority’s holding would allow parties to seek improper advisory opinions. This Article evaluates MedImmune’s impact on declaratory judgment actions in patent litigation and considers whether Justice Thomas’s prediction was accurate. To do so, this Article compares how the Federal Circuit and other federal courts addressed justiciability in patent cases in the three years before and after the Supreme Court announced its MedImmune decision in January 2007. The Article also examines how lower courts have (and have not)utilized their discretion to decline to hear actions for declaratory relief inpatent litigation. In sum, MedImmune appears to have had the results desired by the Court majority: (1) Parties can more easily demonstrate the existence of a controversy in order to question arguably coercive measures by patentees in court; and (2) The lower courts have adhered to a reasonable notion of when a sufficiently concrete controversy exists, even though they have not utilized the discretion to decline actions for declaratory relief as often as they might. Justice Thomas’s concern that MedImmune would unleash a torrent of hypothetical actions in and out of the realm of patent litigation does not appear to be coming to fruition.

Here's the link: http://www.lclark.edu/law/law_reviews/lewis_and_clark_law_review/current_issues.php

Beth Hillman's Journal From Gitmo -- Installment Five

At the threshold: Jurisdiction

Perhaps the most critical legal issue in Noor’s prosecution is the one that will probably be argued at the next preliminary hearing in August. It involves an Article 5 hearing, where a conclusive determination will be made regarding Noor’s vulnerability to trial by military commission. This determination goes to the very core of the commission’s legitimacy; it involves whether or not Noor can be properly tried. It also implicates many of the facts that will be presented at trial to determine his guilt or innocence. Article 5 hearings take their name from the Geneva Conventions provision that requires a “competent tribunal” to determine whether a captured belligerent is an illegal combatant and can therefore be denied procedural protections that would otherwise be available. If Noor, who is accused of being a weapons instructor and deputy commander of a terrorist training camp in Afghanistan, does not belong in the category of “unlawful belligerent,” he might still be found guilty of committing crimes of war. But he will fall outside the jurisdiction of the military commission, a commission responsible for detaining him for many years already.

Beth Hillman's Journal From Gitmo -- Installment Four

Taking a mulligan?

The explanatory sheet provided to reporters suggested that four issues would be discussed in the Noor hearings this week. The military judge, however, heard argument on only one issue during yesterday’s two-hour hearing. The rest, which involve Noor’s status under Article 5 of the Geneva Conventions and discovery motions (to compel the government to disclose and account for evidence under its control), were deferred until a later date. That later date will likely be August 9, the next time that the commission expects to be on the record in Noor. That’s four months away, a significant delay in a case already much delayed. Previously, Noor’s case languished along with those of other detainees, who waited while prosecutors struggled to navigate the logistics and politics of trying detainees. The commissions have been slowed by their checkered legal history as well, their procedures rejected and rewritten by Supreme Court decisions and congressional reform.

The delays in Noor reveal another troubling aspect of the commissions: the number of former insiders who labored within the commissions before quitting in protest. In October 2008, charges against Noor were dropped (only to be reinstated a few months later) after a military prosecutor resigned, citing grave doubts about the fairness of the proceedings. Army Lieutenant Colonel Darrel J. Vandeveld went on to become a vocal and convincing critic, explaining that the handling of classified evidence, the rules of admissibility (which permit some hearsay and evidence obtained through coercion), and the obstacles faced by defense counsel made the commissions impossible to reform. He now favors, along with many other expert commentators, that suspected terrorists be tried in federal courts.

The current delay seems due to the slog through classified documents that Noor’s case requires. Although the military commission was last on the record four and a half months ago in the Noor case, the judge conducted six meetings with opposing counsel during that time in an effort to create and apply procedures to the review of classified documents. The 2009 Military Commission Act adopted the same rules for handling classified material that are used in federal court (codified in the Classified Information Procedures Act, or CIPA). Yet there is still no procedural manual to implement the new MCA, so the judge in Noor must impose procedures to conform with the new legislation while a handbook based on a superseded law continues to govern commission procedure. In press conferences, defense counsel have repeatedly lamented the government’s failure to release an updated manual. No doubt prosecutors would lodge the same complaint (not to mention many others!) were they not operating under gag orders that restrict their ability to speak publicly.

The frightening impact of these collective delays on the mental health of detainees-- and on U.S. standards of military justice--has been much documented. Noor has been held for eight years without a trial; he was held for five years before he was even informed of the charges against him. Yesterday the judge said that she expected his trial would not commence before February 2011, when he will reach almost nine years in pre-trial detention. That sort of treatment sets a very low bar for any standard of due process. Less noticed is the profound impact of seemingly endless delays on the servicemembers and civilians who represent the detainees and the people who make GITMO’s Camp Justice run. For them, the uneven pace of the commissions is a source of great frustration. Because of the potential for intervention by federal courts, the White House, or Congress, the people assigned to make the commissions run have been asked to make impossible choices. Shall they press ahead – as they are right now in Noor —with inadequate official guidance, aware that further delay is unconscionable from a due process standpoint but knowing that changes in regulations might create issues for appeal --and force them to re-do work that they are striving mightily to accomplish right now?

Beth Hillman's Journal From Gitmo -- Installment Three

Lawyer Island

There are a lot of lawyers at Camp Justice. Two were NGO observers with whom I shared a tent, both human rights advocates and both terrific lawyers. Andrea Prasow, now senior counsel in Human Rights Watch's Terrorism and Counterterrorism Program, proved an essential guide to all things GITMO. Andrea was assistant counsel in Hamdan, the only contested military commission to date, which brought her to the island for many weeks while she was a defense attorney with the Office of Military Commissions. [The other lawyer pictured is Daphne Eviatar, senior associate for Human Rights First. --Ed.] But most of the attorneys present were directly involved in the cases now underway. They were defense counsel and prosecutors in the Noor and other detainee cases, on base to review classified documents, some of which can only be viewed in SCIFs (sensitive compartmented information facilities, deemed secure enough for not just secret, but really really secret documents) during the discovery process or meet with clients. In Courtroom 2 during the Noor hearing, there were four prosecutors and two defense counsel (the defense team was two attorneys short; more on that later).

The remoteness of the prison at GITMO makes the process of trying detainees at military commission very pricey. Lawyers, judges, court reporters, interpreters, journalists, and observers must travel to the base, either by military airlift or commercial flights, both of which are limited. They must be processed through layer upon layer of security, must endure the delays that are inevitable with such intense screening, must cease most of their other work (since cell phones don't work and internet access is spotty) during their time on base. Hearings can be held in Washington, D.C., or via conference call in some instances, but anything requiring the presence of the accused involves a journey to the island for a large party of military and civilian personnel drawn from distant homes and workplaces.

The base facilities are makeshift, austere but comfortable (so long as you don't think about the banana rats when the tent flaps in the night). Visual reminders of the grim need for security, however, are everywhere: barriers, barbed wire, guard towers, bright lights, threatening signs. The tent city in which we were housed consisted of rows of half-barrel wood-and-tarp structures with beds and furniture. In ours, three sets of two beds were separated with plywood dividing walls, and electric outlets galore made it easy to plug in computers (through which we would connect to the internet, at least some of the time) and cell phones (which were useful as alarm clocks, if not communications devices). With a massive compressor outside and big, flexible plastic ducts with round holes cut in them for circulation, the tent roared with air conditioning. Light came from bare light bulbs above each bed. We were grateful for a refrigerator and coffee maker (and a/c, however loud) as well as the gracious military personnel who managed the Camp Justice facilities.

More Scenes From Gitmo

(Top) Andrea Prasow, Human Rights Watch, and Daphne Eviatar, HRF; (Second from top) tent city; (Third) Press conference after the hearing; (Fourth) Ferry going from windward to leeward side; (Bottom) Army officer introducing press conference

Wednesday, April 7, 2010

Beth Hillman's Journal From Gitmo -- Installment Two

Courtroom 2

This morning's hearing in the case of Noor Uthman Mohammed was scheduled to start at 9:00 a.m. We headed over just after 8, accompanied by our ever-present escort. NGO observers' access to GITMO is restricted; our handlers were required to be with us at all times. Our escorts were courtly and respectful, but their presence was a not-so-subtle reminder of the grim reality of being on a naval base carved out of Cuba that's also the site of a prison complex housing suspected terrorists. A sense of wariness pervades the base, notwithstanding the warm breezes and friendly smiles of so many military personnel stationed there.

We arrived early and waited (which proved to be standard operating procedure for virtually everything we did) for the hearing to begin. To get into the courtroom, we ducked under a locked gate (it was purposefully locked; it was climb over or else go under) and walked inside a secure perimeter. Then we were checked by two fully armed guards (guns, vests, helmets) and walked over to another set of guards inside another secured area. They logged our names onto a register. A third set of monitors checked our badges as we walked into the courtroom building and then directed us to our assigned seats in the gallery. We were told to hide our badges so that our names couldn't be seen (by Noor, presumably, the only detainee who appeared in the courtroom). Most military personnel also pulled their Velcro-ed uniform nametags off or placed black tape over sewn-on names. Once in our seats, we waited, unsure of what time it was because we weren't permitted to bring any cell phones, laptops, or other electronics into the gallery.

Courtroom 2, the shiny new courtroom apparently constructed -- at an estimated cost of $12 million -- to try the 9/11 defendants, boasts a soundproof gallery separated from the action by a glass wall. As we waited I watched people move about the courtroom and glanced up at the video monitors to track the action, trying to gauge how long the transmission delay was between what I could see directly and what appeared on the screens. The video and audio feed is delayed to give an official in the courtroom a chance to block any classified information that might be inadvertently disclosed. The delay has been advertised as 20 seconds; I thought it was much longer than that, perhaps a minute or so.

The delay, a much vaunted security feature of this state-of-the-art courtroom, adds to the other-worldliness that already suffuses Camp Justice. I was chatting with reporters and other spectators, perusing the briefing information provided to journalists (but not to NGO observers), when I was surprised to look up and see that Noor (of whom there seem to be no unclassified photos) had entered the courtroom. He was dressed in white and accompanied by a phalanx of six men in the digitized desert camouflage that's ubiquitous at GITMO (except for the sailors wearing digitized blue). Then the judge entered and everyone in the courtroom stood -- but those of us in the gallery hesitated, since we couldn't hear anything yet. Were we supposed to stand when we saw the judge or when we heard her announced?

At the end of the hearing, the delayed audio feed cut out just before the judge made her final comments. When she left, we had no idea what was happening. We waited, began to discuss the hearing among ourselves and wonder whether we should leave. After about fifteen minutes, one of the uniformed spectators who had walked outside and returned said the court was in a 30-minute recess. We asked, how do you know? He smiled and mimicked drawing on a cigarette. Someone had told him what was going on when he went outside for a smoke. Information can be elusive when you're a civilian on a secure military base.

During a press conference after the hearing, both Noor's civilian and military defense counsel commented on the unusual feel of the courtroom. The room is large, with acoustics that swallow the voices of advocates. Attorneys inside can sense the presence of a relatively full gallery, and can see the people behind the glass, but feel watched instead of joined by the spectators. As for Noor, we caught only a glimpse of his face, and no sound of his voice. He wore a headset for the translation feed, and the defense interpreter at his table spoke for him when the judge requested his approval to consider the motion before the court at the start of the proceeding. Noor appeared composed and attentive from our limited vantage point.

A Scene From Gitmo

Welcome to Gitmo!

Beth Hillman's Journal From Gitmo -- Installment One

[Professor Elizabeth Hillman is one of the nation's foremost experts on military law and military justice. She flew into Guantanamo Bay yesterday as an observer for the National Institute of Military Justice and will be blogging whenever she gets a chance. -- Ed.]

Day One

Yesterday was Day One at Guantanamo Bay for me -- but more like Day 2,900 for Noor Uthman Mohammed, who has been held here for nearly eight years. He's one of about 183 prisoners remaining of the 779 detainees at the military prison at Guantanamo Bay. Noor (his preferred name), a citizen of Sudan captured in Pakistan in March 2002, has been charged with providing material support to international terrorist organizations for his role in training camps run by al Qaeda and others. This week, the United States held hearings related to his prosecution before a military commission.

I'm here as a non-governmental organization (NGO) observer for the National Institute of Military Justice, a non-profit committed to advancing the fair administration of military justice and fostering improved public understanding of the military justice system. NIMJ has been sending observers to the Guantanamo hearings since October 2008, hoping to provide a unique window on the new military commissions, a substrate of American military justice in the post-9/11 world.

Early yesterday morning, I joined dozens of others-- defense counsel, prosecutors, paralegals, commission staff, journalists (French and Brazilian as well as American), and NGO observers from Human Rights Watch and Human Rights First--in the passenger terminal at Andrews Air Force Base, Maryland. After a few hours of waiting, we boarded a Delta airbus 319 for the three-and-a-half hour flight. I could see the mountains of the main island, open water, and buildings on the far side of the bay when banked sharply to avoid Cuban airspace and landed on a U.S. airstrip. After a ferry to the side of the bay, our Marine Corps escort -- a charming, can-do lieutanant--helped get me and the other NGO observers settled into a tent in Camp Justice.

It's hard to describe how GITMO feels upon first glance. The color of the ocean, the beauty of the bay and the dramatic clouds above it, the mountains of Cuba visible over the horizon were in such contrast to the sense of foreboding evoked by the starkness of the concrete-and-concertina-wire style of the buildings, the intensity of the security measures. And, of course, the knowledge that a notorious prison complex was just past the beach where the road that I ran along this morning stopped. I felt a sense of dread as we sat in a truck with our escort and watched the plane we'd come in on fly away.

In my next post, I’ll write about the hearing this morning and Noor, the detainee whose fate rests with a military commission. But yesterday, I was struck by the juxtaposition of a post-modern naval base on such an undeveloped island, a contrast evident at virtually every turn. To wit: Yesterday we went to Taco Bell for lunch and found a restaurant that looked exactly as it would in the states --the same items on the menu, the same font on its signs, the same uniform on its employees. But it didn’t have any tacos, the rueful cashier explained. They were out of taco shells, and taco sauce, and a few other things. Even lunch at GITMO is not quite what it seems.