Boumediene Three Days Out

Slate's blog on legal issues.
June 14 2008 3:25 PM

Boumediene Three Days Out

First, thanks, Dawn , for those way too kind words about the detainees' panel at the ACS Convention . I personally thought the highlight was Alberto Mora's policy case about the huge counterterrorism security problems our recent approach to detention has created. His security-problem "anecdotes" were pretty devastating: Our allies refusing to engage in joint training with us in the Pacific for fear of getting stuck with U.S. detention practices, our allies letting detainees go rather than transferring them to U.S. custody for fear they'd be tortured, the officer in Iraq who told him his No. 1 and 2 concerns about troop safety in Iraq were Abu Ghraib and Guantanamo Bay. Hell of a list. Hope he writes a book.

Second, back to Boumediene , Dahlia correctly points out that Scalia has now written into Supreme Court jurisprudence the canards regularly trotted out about classified information leaked during terrorist trials that have compromised intelligence sources and methods. Relying on a minority report by Republican Sens. Kyl, Sessions, Graham, Cornyn, and Coburn and on a single Washington Post article, Scalia says: (1) in one terrorism prosecution in federal court, trial testimony revealed that the U.S. had been monitoring an al-Qaida satellite phone, leading bin Laden promptly to stop using it and cutting off that source of intelligence; and (2) the 1995 prosecution of Omar Abdel Rahman in federal court led to Osama bin Laden learning the names of the 200 unindicted co-conspirators in the case.

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As Human Rights First exposes in its must-read report on the success of terrorism prosecutions in federal court, Claim 1 is demonstrably false, and Claim 2 is at best misleading. (1) The phone records at issue were not introduced into trial evidence until March 20, 2001, almost two and a half years after the satellite phone went dead (nor did defense counsel have access to the records until well after the phone was out of use). (2) Looks like the government didn't even try to keep the names of the unindicted co-conspirators classified. The prosecution certainly could have invoked CIPA or any of the other mechanisms that exist for the protecting classified information at trial. Evidently, they just didn't. As with all such discussions of how well-suited the federal courts are to prosecuting terrorism cases, important to note these are just anecdotes. Can't conclude much one way or another. But it would be nice if folks stopped citing these particular examples in arguments that the federal courts can't possibly deal with terrorism cases.

Which brings me to Ben , Marty , preventive detention, and Capitol Hill. I was heartened to hear Ben say yesterday and in "Convictions" that he thinks legislation this summer in the area would be a disaster - couldn't agree more. I was also somewhat heartened by what I could pick up of convention buzz on the subject, which amounted to this: everyone is afraid that someone will put forward legislation, but no one thinks it's a good idea, and no one thinks the administration has enough allies left on the Hill to do get anything done. My optimism there was tempered somewhat by this morning's NYT piece saying conservatives now see Boumediene as a rallying cry. So stay tuned.

In addition to Marty's fine points, I've got another beef with Ben, as we discussed yesterday. His well-intentioned proposal and others like it let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward they let the proverbial hard case make bad law. There are two separate policy problems the next administration has to face: (1) How are we going to get the truck out of the ditch at Gitmo, and (2) what kind of detention power/policy should we pursue in the interest of counterterrorism. The policy options on (1) are limited by our own past bad acts denying basic Geneva protections in the first instance, torturing some of the detainees, etc. The policy options on (2) are better and may actually just give us what we need under existing law. In all events, until we've got a sensible (or any) counterterrorism strategy (rather than letting our tactics lead us around by the nose, as Mora eloquently showed), we're in no position to go designing yet another new detention scheme.

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