A War Like No Other (41 page)

20
. Obama, “Remarks by the President on National Security.”

21
. Ibid.

22
. Peter Baker, “Obama Says Current Law Will Support Detentions,”
New York Times,
September 24, 2009, A23.

23
. Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

24
. Harold Hongju Koh, “The Obama Administration and International Law,” March 25, 2010,
www.state.gov/s/l/releases/remarks/139119.htm
.

25
. Exec. Order No. 13,567, 76 Fed. Reg. 13277 (March 7, 2011),
www.fas.org/irp/offdocs/eo/eo-13567.htm
.

26
. David Cole, “Out of the Shadows: Preventive Detention, Suspected Terrorists, and War,”
California Law Review
97 (2009): 693–750.

27
. Charlie Savage, “Embracing Bush Argument, Obama Upholds a Policy on Detainees in Afghanistan,”
New York Times,
February 22, 2009, A6. See also chapter 4, “Aberrations No More.”

28
. U.S. Department of Justice, “Umar Farouk Abdulmutallab Indicted for Attempted Bombing of Flight 253 on Christmas Day,” news release, January 6, 2010,
www.justice.gov/opa/pr/2010/January/10-nsd-004.html
; Charlie Savage, “Nigerian Indicted in Terrorist Plot,”
New York Times,
January 7, 2010, A14.

29
. U.S. Attorney, Southern District of New York, “Accused Al Shabaab Leader Charged with Providing Material Support to al Shabaab and al-Qaeda in the Arabian Peninsula,” news release, July 5, 2011,
www.justice.gov/usao/nys/pressreleases/July11/warsameindictmentpr.pdf
; Charlie Savage and Eric Schmitt, “U.S. to Prosecute a Somali Suspect in Civilian Court,”
New York Times,
July 6, 2011, A1.

30
. Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay at 1,
In re
Guantanamo Bay Detainee Litigation, No. 08-442 (D.D.C. March 13, 2009).

31
. See Andy Newman and Colin Moynihan, “Faisal Shahzad Arraigned on Terror Charges,”
New York Times,
May 18, 2010,
cityroom.blogs.nytimes.com/2010/05/18/faisal-shahzad-to-be-arraigned
.

32
. “Presidential Statement on Signing the National Defense Authorization Act for
Fiscal Year 2012, 2011,”
Daily Compilation of Presidential Documents,
December 31, 2011, 1, 2. The National Defense Authorization Act for Fiscal Year 2012 codified and affirmed the policy of imprisonment without trial, but in doing so, it declared that the act was not applicable to American citizens or lawful resident aliens of the United States. See the National Defense Authorization Act for Fiscal Year 2012, Pub. Law. No. 112-81, § 1021(e), 125 Stat. 1298, 1562 (2011) (“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”).

33
. See U.S. Department of Justice, “Al-Marri Indicted for Proving Material Support to al-Qaeda,” news release, February 27, 2009,
www.justice.gov/opa/pr/2009/February/09-ag-177.html
; John Schwartz, “Admitted al-Qaeda Agent Receives Prison Sentence,”
New York Times,
October 30, 2009, A22.

34
. Non-Detention Act, Pub. L. No. 92-128, 85 Stat. 347 (1971) (current version codified at 18 U.S.C. § 4001(a)) (“No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”).

35
. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

36
. Boumediene v. Bush, 553 U.S. 723, 766 (2008).

37
. Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010). Al Maqaleh v. Hagel, 738 F. 3d 312 (D.C. Cir. 2013).

Chapter 7: Torture and Extraordinary Rendition

This chapter is based on “The Example of America” (2009),
Faculty Scholarship Series,
Paper 1308, available at digitalcommons.law.yale.edu/fss_papers/1308.

1
. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85.

2
. The principal implementing statute is the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-822 (codified at 8 U.S.C. § 1231 [2012]). Other implementing statutes consist of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. 103-236, 108 Stat. 382 (codified at 18 U.S.C. §§ 2340, 2340A [2012]); and the Torture Victims Relief Act of 1998, Pub. L. 105-320, 112 Stat. 3017 (codified at 22 U.S.C. 2152 [2012]).

3
. For a general overview of the Constitution’s prohibitions against torture, see Seth F. Kreimer, “Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror,”
University of Pennsylvania Journal of Constitutional Law
6 (2003): 278–325.

4
. Rochin v. California, 342 U.S. 165, 172 (1952).

5
. Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

6
. Lawrence v. Texas, 539 U.S. 558 (2003).

7
. See President George W. Bush, “Statement on United Nations International Day in Support of Victims of Torture,”
Public Papers of the President,
June 26, 2004, 1141.

8
. For an overview of the origins of this phrase, see Mark Danner, “US Torture: Voices from the Black Sites,”
New York Review of Books,
April 9, 2009. Danner cites the widespread use of this language and specifically quotes Cofer Black, former head of the CIA’s Counterterrorism Center. See
Joint Investigation into September 11th: Hearing Before the J.H.S. Intelligence Comm.,
109th Cong. (2002) (statement of Cofer Black, former director, CIA Counterterrorism Center).

9
. Memorandum from Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, to Alberto Gonzales, Counsel to the President, Executive Office of the President, August 1, 2002, available at
www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf
.

10
. Ibid., 1.

11
. 18 U.S.C. § 2340.

12
. Memorandum from William Haynes, Gen. Counsel, U.S. Department of Defense, to Donald Rumsfeld, Secretary of Defense, November 27, 2002, available at
dspace.wrlc.org/doc/bitstream/2041/70971/00512_021127_001display.pdf
.

13
. Ibid.

14
. Ibid.

15
. Memorandum from Donald Rumsfeld, Secretary of Defense, to Gen. James T. Hill, Commander, U.S.S. Command, April 16, 2003, available at
dspace.wrlc.org/doc/bitstream/2041/71014/00721display.pdf
(noting in Tab A that techniques “A-Q,” authorized in the memo, are authorized by the Army Field Manual 34-52, but that “[f]urther implementation guidance with respect to techniques R-X will need to be developed by the appropriate authority”).

16
. According to a letter sent to a federal judge by an Acting U.S. Attorney, the CIA destroyed ninety-two interrogation tapes. See Letter from Lev L. Dassin, Acting U.S. Attorney, S.D.N.Y., to Alvin K. Hellerstein, Judge, S.D.N.Y., March 2, 2009, available at
www.aclu.org/pdfs/safefree/lettertohellerstein_ciainterrogationtapes.pdf
.

17
. See Danner, “US Torture,” chap. 7, n8.

18
. “Nightline: Inside the CIA; Inside the Secret Prisons,” ABC television broadcast, December 10, 2007.

19
.
Confirmation Hearing of Michael Mukasey Before the S. Comm. on the Judiciary,
110th Cong. (2007).

20
. Memorandum from Daniel Levin, Acting Assistant Attorney General, to James B. Comey, Deputy Attorney General, December 30, 2004, available at
www.aclu.org/files/torturefoia/released/082409/olcremand/2004olc96.pdf
.

21
. Detainee Treatment Act of 2005, Pub. L. No. 109-148 (2005).

22
. President George W. Bush, “President’s Statement on Signing of H.R. 2863,” December 30, 2005, available at
www.presidency.ucsb.edu/ws/index.php?pid=65259
.

23
. Jane Mayer,
The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals
(New York: Doubleday, 2008); see also Parliamentary Assembly of the Council of Europe, Alleged Secret Detentions and Unlawful Interstate Transfers of Detainees Involving Council of Europe Member States, Res. No. 1507 (2006) (estimating that “hundreds of persons” had been “entrapped” in a U.S. system of secret detentions and extraordinary rendition).

24
. Mayer,
Dark Side,
121.

25
. Farmer v. Brennan, 511 U.S. 825, 833 (1994).

26
. Arar v. Ashcroft, 585 F.3d 559 (2d. Cir. 2009).

27
. 18 U.S.C. § 2340A.

28
. Boumediene v. Bush, 553 U.S. 723 (2008).

29
. Dorr v. United States, 195 U.S. 138 (1904);
accord
Balzac v. Porto Rico, 258 U.S. 298 (1922).

30
.
Dorr,
195 U.S. at 149.

31
. Ibid., 148.

32
. Declaratory Judgment Act, 28 U.S.C. §2201 (2006).

33
. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

34
. Fed R. Civ. P. 54(c) (stating that every judgment “should grant the relief to which each party is entitled”).

35
. United States v. Reynolds, 345 U.S. 1 (1953).

36
. See El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007).

37
. 479 F.3d at 305.

38
. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010).

39
. Ibid., 1083. In 2012, the European Court of Human Rights ruled in favor of the victim of a rendition to torture who was the plaintiff in the case dismissed by the Fourth Circuit decision discussed in the text at footnotes 36 and 37. El-Masri v. The Former Yugoslav Republic of Macedonia, App No. 39639/09, Eur. Ct. H.R. ¶45 (2012). This decision not only reflects the independence of the European Court, but even more significantly for our purposes it indicates that El-Masri did not need the information possessed by the U.S. government to prevail.

40
. See Aharon Barak,
The Judge in a Democracy
(Princeton, NJ: Princeton University Press, 2006), 246–47.

41
. See Exec. Order No. 13,491, 74 Fed. Reg. 16 (January 27, 2009); Exec. Order No. 13,492, 74 Fed. Reg. 16 (January 27, 2009); Exec. Order No. 13,493, 74 Fed. Reg. 16 (January 27, 2009).

42
. President Barack Obama, “Press Conference at the White House,” February 9, 2009, available at
www.nytimes.com/2009/02/09/us/politics/09text-obama.html
.

43
. President Barack Obama, “Address to Joint Session of Congress,” February 24, 2009,
www.whitehouse.gov/the_press_office/remarks-of-president-barack-obama-address-to-joint-session-of-congress
.

44
.
Confirmation Hearing of Eric Holder, S. Comm. on the Judiciary,
111th Cong.
2009 (including the statements of Eric Holder and several members of the Senate declaring that waterboarding and other “shameful” techniques are torture).

45
. “Panetta: No ‘Extraordinary Rendition,’” CBS News, February 5, 2009,
www.cbsnews.com/news/panetta-no-extraordinary-rendition/
.

46
. See John Schwartz, “Obama Backs Off a Reversal on State Secrets,”
New York Times,
February 9, 2009, A12.

47
. Obama, “Press Conference at the White House.”

48
. “Panetta, ‘No Extraordinary Rendition.’”

49
. See
Nunca Más: The Report of the Argentine National Commission on the Disappeared,
ed. Ernesto Sabato with an introduction by Ronald Dworkin (New York: Farrar, Straus and Giroux, 1986).

Chapter 8: Criminalizing Political Advocacy

This chapter is based on the Arlin M. and Neysa Adams Lecture in Constitutional Law at Temple University Beasley School of Law, which was delivered on March 1, 2011. It was later published as “The World We Live In,”
Temple Law Review
83, no. 2 (2011): 295–308.

1
. For these developments, see chapter 9, “Warrantless Wiretapping.”

2
. 561 U.S. 1 (2010).

3
. See generally Owen Fiss, “Aberrations No More,”
Utah Law Review
4 (2011): 1085–99.

4
. 18 U.S.C. §§ 2339A, 2339B (2006). The lineage of these statutes is outlined in
Humanitarian Law Project,
561 U.S. at 7 (2010).

5
. 8 U.S.C. § 1189 (2006).

6
. 18 U.S.C. § 2339B(a)(1).

7
. Ibid., § 2339A(b)(1).

8
.
Humanitarian Law Project,
561 U.S. at 23–24 (2010).

9
. See, e.g., Jon Lee Anderson, “Death of the Tiger,”
New Yorker,
January 17, 2011, 41.

10
.
Humanitarian Law Project,
561 U.S. at 16–18.