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Thursday, May 24, 2012

The Case for Iraq

Colin Powell has just published a new memoir.  There’s a lot of new information in here, but of particular interest is that Powell sheds new light on the lead-up to the invasion of Iraq.

Powell’s presentation to the United Nations has remained a sore spot for many years.  Powell made the case to the entire world that Saddam Hussein had weapons of mass destruction, and that attacking Hussein was necessary to resolve that threat.  The presentation included visual aids, satellite photos and diagrams of purported weapons manufacturing sites.

The only problem is that much of it turned out to be false.  After the invasion, U.S. and coalition forces were unable to find evidence of WMD in Iraq.  They could not find any because there weren’t any.

Now comes word from Powell that the infamous speech wasn’t even drafted by the NSC with direct assistance from the intelligence agencies.  Rather, the speech was first drafted by Scooter Libby, Dick Cheney’s chief of staff.  The alleged rationale for this unconventional choice was that Cheney convinced Bush that the speech should be written as a legal brief, making the “case” for the necessity of an American-led invasion, and Scooter Libby was a lawyer.  

Powell's concern in retrospect is that the claims in the speech did not come directly from the intelligence agencies.  That being said, I have an additional reaction related to the legal advice.  Even if the speech was meant to present a legal "case," the State Department has lawyers too, the last time I checked, and in fact they are quite accomplished.  To have a State Department presentation to the UN drafted by anyone other than the Legal Adviser to the Secretary of State (a post currently occupied by Harold Koh in the Obama administration), strikes me as ill advised.

Although Libby was indeed a lawyer, having graduated from Columbia Law School, I was not aware that Libby had special training in international law and jus ad bellum issues, though I could be wrong.  In fact, his positions in Cheney’s office, including chief of staff, weren’t even formally attorney positions.

Incidentally, Libby is no longer an attorney, as far as I know.  His license to practice law was suspended and he was eventually disbarred in DC after his federal conviction for perjury and obstruction of justice in the wake of the unauthorized disclosure of Valerie Plame’s covert status at the CIA.  President Bush commuted Libby’s prison sentence but left his felony convictions intact.

Sunday, May 20, 2012

Torture and Secrecy

I’ve been thinking a lot about secrecy lately, in part because Penn Law just hosted a fabulous conference this weekend on Secrecy and the Rule of Law.  One of the biggest problems the government is facing is the issue of who gets to make classification decisions, how they are made, and whether these decisions are impartial and equitable.

Two recent secrecy decisions prompt this concern – both dealing with Bush-era use of torture or enhance interrogation techniques during the conflict with al-Qaeda. 

Former CIA official Jose Rodriguez just published a strongly worded memoir that argues, without much qualification, that the torture of al-Qaeda suspects was necessary to protect the nation.  More specifically, Rodriguez discusses the torture of specific suspects and concludes that the killing of bin Laden, and other recent counter-terrorism successes, would not have occurred but for the torture of these suspects during the Bush Administration.  It is unclear how Rodriguez has the information to make this judgment with confidence, since his security clearance was presumably revoked after he left the CIA and he therefore has no direct access to the underlying information that led to – or did not lead to – the finding of Bin Laden, which happened after Rodriguez left the CIA.  In other words, how does he know?

At the same time, the detainees on trial before the 9/11 military commission operate under a strict rule of secrecy regarding torture, since their torture falls under the rubric of “intelligence methods and practices” that must remain secret.  So far so good.  But the manner in which this rule is being applied is incredibly strict, insofar as it extends to the detainees’ own recollection of the treatment that they were subject to during their custodial interrogations.  In other words, if the detainee speaks to his lawyer about how he was tortured, and the lawyer takes notes, those notes are then classified secret, because they relate to the government’s methods and practices.  The fact that it was the detainee himself who generated the document doesn’t matter.

The government’s argument, so far as I can tell, is that the relevant issue is whether the document is within the government’s custody or control, not who generated the document.  Since the detainee is in custody, these notes, even if they simply represent the detainee’s personal recollections, are within the custody or control of the government.  And they contain classified information about interrogation methods.  So they must remain secret and cannot be disclosed to the outside world, even if the detainees themselves may wish to publicly speak about the abusive treatment they were subjected to by government agents.

I am not questioning the propriety of this argument, though plenty of others have on First Amendment grounds (doesn’t everyone have the fundamental right to speak to the world about how the government is treating them?).  Rather, my point is far more narrow.  Are government officials making these classification decisions in a consistent and coherent manner?  Something seems amiss when the detainees can’t speak about the torture but former CIA officials can.  Now, I’m not claiming here that the result is unfair.  Rather, I’m simply claiming that these results strike me as inconsistent and incoherent, and ought to give us pause that the overall process of secrecy classifications is consistently administered.  Some critics might claim that the inconsistency generates unfairness, but even if you don’t care about fairness on behalf of the detainees, one ought to be worried here that the inconsistency is symptomatic of the system’s ineffectiveness – and that ought to worry everyone.

Thursday, May 17, 2012

Mladic and Getting Discovery Right

The Mladic trial at the ICTY has gotten off to a rocky start.  The judges today indefinitely suspended the proceedings while they consider the prosecution’s failure to meet its disclosure obligations to the defense.

The trial had just begun this week.

Mladic’s attorneys have asked for a six-month delay while they now review the evidence that should have been disclosed earlier.  At this point it is impossible to tell if the court will grant this request or will impose a shorter delay.  Either way, it’s a frustrating beginning for the final chapter of the ICTY’s trial program.

Apparently, the prosecution believed that it had disclosed over 12,000 pieces of evidence that, it turns out, it had not released to the defense.  That's a pretty big mistake.

Note to clients: make sure you handle your discovery obligations properly and don’t skimp on the legal fees.  As an American law school professor, I realize that many of my graduating law school students will start their careers at international law firms where they will work on large document review projects required by the extensive discovery system that we have in common law litigation.  Although it has a reputation for being grunt work, it’s actually a very complicated endeavor, that has to be handled professionally, and often raises complex legal issues that need to be addressed on a daily basis by fast-thinking attorneys.  And it also raises complex technical (e.g. computer) issues that, if not understood, can lead to precisely the type of errors that have derailed the Mladic trial. 

Of course, there are now specifically designed software programs to help manage the discovery process, such as Concordance, though they do not eliminate the need for sophisticated and intelligent attorneys to manage them.   In fact, I would hazard a guess that they do the reverse: they increase the need for smart and well-trained attorneys.  As the information age has radically transformed the scope and nature of the discovery process, with a much larger universe of documents to work with, properly trained attorneys are now more essential than ever.  And this is equally true in international criminal law, given the vast scope of modern atrocity trials such as Mladic, where the number of victims numbers in the thousands and the number of relevant documents reaches the hundreds of thousands.

Tuesday, May 8, 2012

America's Soul

Gregory Wallance has just published a fascinating – and contrarian – new book.  Titled America’s Soul in the Balance: The Holocaust, FDR’s State Department, and the Moral Disgrace of an American Aristocracy, the book shines an uncomfortable spotlight on a rather unsavory moment in American history during World War II.  Lawyers for the U.S. State Department became aware of the Nazi’s growing extermination of Jews, and rather than actively publicizing this fact, actually conspired to cover it up.  At around the same time, the State Department blocked the rescue of 70,000 Romanian Jews on a death march in the Ukraine.

Wallance’s book paints a devastating portrait of the State Department at this crucial moment in time.  In so doing, it adds much to the historical record regarding U.S. governmental conduct during the time period.  In particular, it avoids the quick and facile reduction of a state’s government into a single agent with a unified approach to a complex situation.  Instead, it provides a micro-analysis of how different departments -- and different lawyers all presumably serving the same organizational client -- were responding to the increasingly disturbing reports of Nazi atrocities. 

The book includes some measure of redemption, at least for the U.S. government and for the practice of law.  While the State Department was busy burying news of the growing Nazi extermination program, four Treasury Department attorneys were discovering the State Department cover-up and started working to expose the truth.  Wallance’s book provides an in-depth examination of why some departments – and individuals – reacted so differently when confronted with the same information.

Wallance’s previous books include Papa’s Game and Two Men Before the Storm.  A former federal prosecutor who served on the ABSCAM trial team, Wallance is currently a partner at Kaye Scholer LLP.

Monday, May 7, 2012

Circus, Zoo, or Kangaroo Court?

Saturday's arraignment of the 9/11 defendants before a Military Commission at Gitmo has everyone asking wondering whether the marathon arraignment was a foreshadowing of things to come.  The arraignment proceedings took 12 hours to complete.  That’s right.  Not 12 minutes.  A full 12 hours.
There were numerous reasons for the length.  One defendant, Walid bin Attash, had to be wheeled into the proceedings restrained in a wheelchair, presumably because he refused to attend voluntarily.  Another defendant refused to waive reading of the charges, requiring the entire indictment to be read verbatim in court.  What is the reason for not waiving the reading of the charges?  It’s not as if the defense counsel had never read the document before and micro-analyzed each line of it.  It’s a delay tactic, pure and simple, designed to turn the proceedings into a farce, and blame the result on the commission itself and its designers.

The proceedings were interrupted several times when defendants engaged in spontaneous prayer sessions, even though designated prayer times had been scheduled as a religious accommodation.  One defense counsel requested that female prosecutors be instructed to dress more modestly so as not to offend the religious sensitivities of the defendants.

Through it all, the chief judge, Pohl, was extremely tolerant of the delays and bent over backwards to accommodate the defendants.  In a regular federal court, judges would normally not tolerate such disruptions, and would either remove a recalcitrant defendant or hold him in contempt.   Why the accommodations?

The military commissions are suffering a crisis of legitimacy. Removing the defendants, or proceeding in absentia, would only promote the perception, based in part on the anemic commission procedures that were in effect during the Bush Administration, that the current commissions are unfair and violate basic principles of criminal procedure and due process.  Consequently, Judge Pohl appears hell bent on giving the defendants as much leeway as possible so as to maintain (or create) a perception of fairness.

Unfortunately, there’s some risk of backfire here.  If the courtroom atmosphere comes off as a farce, the world may only perceive the chaos and not bother to appropriately attribute the blame to the defendants.  Observers will simply see a zoo and assume that Pohl is presiding over a kangaroo court – an unfair judicial proceeding. 

Ironically, Pohl may come to realize that greater control over the proceedings is necessary to maintain the solemnity of the process – a perception that will enhance the legitimacy of the commissions, even if it involves reining in the defendants and imposing restrictions on their conduct.

Wednesday, May 2, 2012

John Brennan finalizes the Obama Doctrine on TKs

On Monday, John Brennan gave the clearest and most detailed exegesis of the Obama Administration’s doctrine of targeted killings.  Brennan addressed the legal and ethical justifications for drone strikes, as well as their efficacy.  Although the speech in many ways built on previous speeches delivered by Harold Koh (State), Eric Holder (Justice), Jeh Johnson (Defense), and Stephen Preston (CIA), I noticed some changes in emphasis that are worth exploring.

As a first point, Brennan made a point of explaining what the IHL requirement of “military necessity” means – in particular “the requirement that the target have definite military value.”  It seems to me that this classical definition of military necessity is often overlooked by international lawyers.  The confusion stems from the fact that the concept of necessity exists in almost every legal regime, but it operates differently in each context.  Necessity in criminal law means something different than necessity in the Law of Armed Conflict.  In the former, it means something like “no other alternative” or “least restrictive means,” but in the latter it means that there is a military rationale (i.e. an expected military advantage to be gained) for the attack.  That technical meaning for military necessity goes back at least as far as Francis Lieber.

Second, Brennan said that the US was aware of the fact that its legal arguments in this context would establish precedents – presumably under customary law – and that the US was cognizant of the fact that our adversaries would then be following these rules in their deployment of drones against us.  This showed some sensitivity to what Jeremy Waldron, in the recent TK volume published by OUP, has called a “neutral principle.”

Third, Brennan’s general discussion of capture (if feasible) was couched as a policy preference, not an obligation under international law.  He was clear that there is no obligation under international law to attempt capture first (a bit of a contentious point with some human rights lawyers).  I think there was some confusion on this point after Holder’s speech at Northwestern, where Holder discussed the duty to capture.  If I understood Brennan correctly, the duty to capture (if feasible) only applies to citizens, like Anwar al-Awlaki, though he neither identified the source of this requirement nor did he explicitly state that the duty to capture applies as a Constitutional matter to citizens.  But presumably it is a constitutional norm stemming from Tennessee v. Garner and its progeny.  And presumably the requirement only applies outside of a traditional hot battlefield.  For my part, I wish he had been more explicit on these points.

As a final point, Brennan’s account of what constitutes a significant threat, and implicitly whether it is an imminent threat or not, was more convincing than what Holder said.  Brennan distinguished between hypothetical threats and actual threats – and excluded situations including “the mere possibility that a member of al-Qa’ida might try to attack us at some point in the future.”  To my ear, that sounds narrower and more convincing than Holder’s account, which emphasized (and maybe even over-emphasized) the use of force in its preemptive and preventive forms, both of which are controversial under international law.

Tuesday, May 1, 2012

The Taylor Takeaway: Differentiation

The Special Court for Sierra Leone found former Liberian President Charles Taylor guilty last week, and his sentencing is scheduled for May 30th.  Commentators have rightly noted that the verdict is a historic -- though perhaps not the first -- case of international criminal responsibility for a head of state.

My takeaway from the verdict is slightly different than what I have been reading in the blogs and the newspapers.  For me, the Charles Taylor guilty verdict is a major victory for differentiation, or the idea that international tribunals need to distinguish levels of participation, and hence levels of culpability, by criminal defendants.  (Readers might be interested in my exchange with James Stewart on differentiation, available here and here).

The Special Court went out of its way to find that there was insufficient evidence of Taylor’s participation in a Joint Criminal Enterprise.  It also ruled that there was insufficient evidence of command responsibility.  In both cases, what was at issue was Taylor’s relationship to the military forces in Sierra Leone that carried out the atrocities that are within the Court’s jurisdiction.

Consequently, the court convicted Taylor as an accomplice to these crimes, and explicitly declined to hold him responsible as a principal perpetrator.  For me, that’s the real takeaway here: the court’s unwillingness to apply a mode of liability that would have yielded a conviction as a principal.  Indeed, one of the rationales for JCE and command responsibility is that both are tailor-made to establish individual criminal liability for those at the top of the political or organizational hierarchy.  The fact that the court used a more common criminal law category – aiding and abetting – indicates that the court wanted to find Taylor guilty but also differentiate him from other perpetrators of these atrocities who bore more direct responsibility.

Along the same lines, it is also interesting to me that Charles Taylor was not convicted as an indirect co-perpetrator of the crimes.  If this case had been tried at the ICC, he would have almost certainly been prosecuted under this mode of liability.  Indirect co-perpetration provides criminal liability for individuals who cooperate with other individuals who indirectly perpetrate the crime through a hierarchical organization.  That almost perfectly describes Taylor’s situation: he was vertically and horizontally removed from the atrocities committed in Sierra Leone.

Of course, the Taylor case wasn’t framed in terms of indirect co-perpetration (though that didn’t stop the ICTY from convicting Tadic with JCE, a doctrine that was not briefed by the parties in the case).  But the point remains: the Taylor verdict stands as a historic example of a court saying that a head of state was guilty of international crimes, though his culpability ought to be differentiated – rather than conflated – with more culpable parties.  A subtle and nuanced result.