Robert Chesney’s research while affiliated with The University of Texas at Tyler and other places

Computer Network Operations (“CNOs”) famously give rise to a number of international law complications, and scholars have duly taken note. But CNOs also raise important questions under the heading of U.S. domestic law, particularly when the government does not intend for its sponsoring role to be apparent or acknowledged. This brief essay, which builds on my prior work exploring the convergence of military and intelligence activities, introduces readers to four of the most important domestic law questions raised by CNOs. First, must Congress be notified of a given CNO, and if so, which committee should receive that notice? Second, must the CNO in question be authorized by the President himself, or can authority be moved down the chain to other officials — or perhaps even automated? Third, what is the affirmative source of domestic law authority for the executive branch to conduct various types of CNO? Fourth, and finally, does categorizing a CNO as covert action subject to Title 50 carry with it a green light (from a domestic law perspective) to violate international law?

One of the most striking features of the post-9/11 era has been the convergence of military and intelligence operations. Nothing illustrates the trend better than the CIA‟s emergence as a veritable combatant command in the conflict with al Qaeda, though it manifests as well through the expansion of clandestine special forces activities, joint CIA-special forces operations, and cyber activities that defy conventional categorization. All of which obviously is important from a policy perspective. Less obviously, it also has significant legal implications.I do not refer to questions such as who lawfully may be targeted or what computer network operations amount to “armed attack,” though those are of course important matters. Rather, I am concerned here with America‟s domestic legal architecture for military and intelligence operations. That architecture is a half-baked affair consisting of a somewhat haphazard blend of decision-making rules, congressional notification requirements, and standing authorizations and constraints relevant to particular agencies. Convergence has a disruptive impact on key elements in that framework, especially those that rely on categorical distinctions that convergence confounds (like the notion of crisp delineations among collection, covert action, and military activity).My first aim in this article is to map that impact as thoroughly as can be done through the public record, drawing attention to and disaggregating issues that have bedeviled government lawyers behind closed doors for some time. My second aim is normative, as I suggest a modest set of changes to the existing legal framework meant to improve democratic accountability and compliance with the rule of law in such operations, while preserving the benefits convergence generates.

In January 2010, the Governance Studies department at Brookings released a paper entitled “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking.” (http://ssrn.com/abstract=1540601) In that paper, two of the present authors sought to describe the enormous diversity of opinion among the lower court judges to whom the inactivity of the Supreme Court, Congress, and the executive branch had effectively delegated the task of writing the law of detention. In the year that has followed, a great deal has changed. A number of appellate decisions have given the lower court considerable guidance on questions that were seriously contested when we published the original paper. Some of the parameters of the law of detention that were altogether unsettled then have come into sharper focus as a result. And lower court judges have, to some degree, fallen into line. On other issues, by contrast, the law remains more or less as it was then, uncertain and subject to greatly divergent approaches by district judges with profoundly differing instincts. While in some areas, in other words, the judges have developed relatively clear rules, in others they continue to disagree. And, as then, the D.C. Circuit may not prove to be the final word. Its decisions may be merely interim steps on the way to Supreme Court consideration – meaning that the entire law of detention as it stands now could prove to be a kind of draft, a draft whose parameters remain sharply disputed and that might be torn up at any time.The original paper is, in many respects, thus an out-of-date account of this draft – no longer an accurate guide to what is contested and what is at least tentatively resolved. Rather than simply produce a new edition of the paper, one that would just as quickly become obsolete, we decided to adapt it into a more dynamic document – one that we can update in real time as the law of detention emerges further and to which we can add additional sections covering issues we ignored the first time around.The sections of this report are adapted from those of the original paper, on which they significantly expand, and we expect to add additional sections as the case law develops. In some areas, the development has been, and will continue to be, relatively rapid. In other areas, things change slowly. The goal is to provide, at all times, a reasonably up-to-date account of how the law of detention is changing and where it is heading on each of the bewildering array of questions on which individual judges and combinations of appellate judges are picking and choosing among the possible directions of the law.This report proceeds in several parts. In the first section, we briefly describe the legal background that gave rise to these habeas corpus cases: the Supreme Court’s decisions recognizing federal-court jurisdiction over Guantánamo and addressing to a limited extent the contours of a legal process for detainees adequate to satisfy constitutional concerns. We highlight in particular the extent to which the court left the key questions open, a move that in the absence of further congressional action effectively delegated the writing of the rules to the judiciary. In the sections that follow, we examine the law as it is developing with respect to several of the most important questions concerning the governance of non-criminal, law-of-war-based detentions. In particular, we look at the judges’ approaches to the following questions:• the burden of proof;• the substantive scope of the government’s detention power;• the question of whether a detainee’s relationship with an enemy organization, once established, is permanent or whether it can be vitiated by time or events;• whether the government is entitled to presumptions in favor of either the accuracy or authenticity of its evidence;• the use of hearsay evidence;• the use of evidence alleged to result from coercion; and• the government’s use of a “mosaic theory” of evidentiary interpretation.We may add more sections in the coming months and will endeavor to keep the existing sections current as new cases develop.

Anwar al-Awlaki is a dual Yemeni-American citizen who has emerged in recent years as a leading English-language proponent of violent jihad, including explicit calls for the indiscriminate murder of Americans. According to the US government, moreover, he also has taken on an operational leadership role with the organization al Qaeda in the Arabian Peninsula (AQAP), recruiting and directing individuals to participate in specific acts of violence. © 2010, T.M.C. Asser Instituut and the Authors. All rights reserved.

We lack consensus regarding who lawfully may be held in military custody in the contexts that matter most to U.S. national security today - i.e., counter-terrorism and counterinsurgency. More to the point, federal judges lack consensus on this question. They have grappled with it periodically since 2002, and for the past three years have dealt with it continually in connection with the flood of habeas corpus litigation arising out of Guantanamo in the aftermath of the Supreme Court's 2008 decision in Boumediene v. Bush. Unfortunately, the resulting detention jurisprudence is shot through with disagreement on points large and small, leaving the precise boundaries of the government's detention authority unclear. Part I opens with an abstract typology of criteria and constraints that might be used to define a detention standard at the individual level. Part II then provides further context with a thumbnail sketch of two overarching disagreements that greatly complicate the detention debate: we do not agree as to which bodies of law govern this question, nor do we agree as to what each particular body of law actually has to say, if anything, regarding individualized detention criteria even if that body is applicable. Part III follows with a survey of about two dozen habeas decisions between 2002 and 2010 in which courts grapple with the individualized-scope issue, using the typology from Part I as a device to facilitate comparison of the decisions. With respect to affirmative predicates for detention, the survey concludes that something close to consensus has emerged regarding the use of group membership as a sufficient condition for detention, but that there may yet be considerable disagreement as to what counts as membership in this context. The survey also notes that the jury remains out with respect to whether non-member support for certain groups may also function as a sufficient condition for detention. With respect to variables that can function as constraints on detention authority, the survey shows that the courts have developed consensus against employing certain constraints (such as forbidding the use of detention as to citizens, or in circumstances where the government might have a criminal prosecution alternative). On the other hand, the question of geographic constraints on the scope of detention authority remains unsettled. Part IV considers the ramifications of this descriptive account. I open by arguing that the lingering uncertainty matters a great deal both in terms of the remaining Guantanamo cases and in terms of other military activities that take place in the shadow of the habeas caselaw. I then consider the arguments for and against legislation to reduce the uncertainty, finding that the case for legislation is difficult but ultimately persuasive in the abstract (note that this paper is not a pitch for adopting some particular legislative proposal). Finally, I explain that the detention litigation illustrates three larger phenomena: (i) the dynamic relationship between law and strategic context; (ii) the increasing significance of domestic courts for purposes of developing international humanitarian law, and (iii) the increasing extent to which domestic law challenges both international humanitarian law and international human rights law for primacy when it comes to the legal regulation of national security-related activities.

The post-9/11 debate regarding the law and policy of military detention is shot through with flawed assumptions. It tends to assume, for example, that if the factual and legal predicates for using military detention without criminal charge can be established in the first instance, then for good or ill that model can be sustained over the long term. It tends to assume that evidence-gathering and other activities associated with criminal prosecution are alien to military training, doctrine, practice and culture. It tends to assume a sharp and exhaustive categorical distinction between the realm of criminal law enforcement and the realm of military detention without criminal charge. At the highest level of generality, it presupposes that the legal framework applicable to detention is relatively static, that it is not responsive to changing strategic circumstances. And not coincidentally it does all of this through the lens of Guantanamo, focusing relentlessly on the peculiar circumstances of slightly less than 800 individuals who have been detained there over time. No one doubts that detention at Guantanamo matters, or that it gives rise to complex questions of law and policy. But some perspective is in order. The U.S. military has been deployed to Iraq for more than seven years, and during that time has held more than 100,000 individuals in custody without criminal charge - more than 100 times the scale of detention at Guantanamo. And once we look beyond Guantanamo to account for that neglected (yet far more representative and extensive) experience, the weaknesses of the aforementioned assumptions become clear: - The Inevitable Loss of Overseas Detention Facilities: Changing strategic and diplomatic circumstances ensure that the United States eventually must shut down detention facilities it operates in connection with overseas deployments. This is happening now in Iraq, and will happen soon in Afghanistan (and thus Afghanistan is no long-term solution to the Guantanamo dilemma). - Military Adaptation to the Prosecution-Support Function: Compelled by strategic necessity, the U.S. military has quietly adapted its procedures at the point of capture and organizational structures in the field in order to maximize the prospects for host-nation prosecutions - all contrary to conventional wisdom about the incompatibility of such efforts with the military’s mission. - The Viability of the Security Internment Model: Whereas the Guantanamo debate typically oscillates between the criminal prosecution and combatant detention models, the vast majority of detentions in Iraq have rested on a distinct, ad hoc security internment regime modeled on (though not directly justified by) the Fourth Geneva Convention. - Procedural Evolution and the Convergence Thesis: In keeping with the predictions of the convergence thesis, the weak procedural safeguards associated with security internment eventually gave way in Iraq to more robust protections, and much the same is now occurring in Afghanistan. The convergence thesis also warns, however, that the opposite can be expected to happen in the criminal justice system as it comes to shoulder more of the load in terms of national security. - The Dynamic Relationship Between Law and Strategic Context: The American experience in Iraq lends support to the argument, associated with Philip Bobbitt, that law and strategic context exist in dynamic relationship. The point is not that states may disregard law in pursuit of security (indeed, this thesis holds that support for the rule of law is central to security). The point is that the law relating to detention is not static, but instead will tend to adapt over time to the strategic context. These claims rest in significant part on a large body of after-action reports written by Judge Advocates upon their return from deployment in Iraq over the past seven years, supplemented by interviews with non-lawyer service members who experienced our shifting detention policies in Iraq from the perspective of captures in the field.

President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba — combined with Congress’s lack of interest in the task — means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist suspects. Our purpose in this report is to describe in detail and analyze the courts’ work to date — and thus map the contours of the nascent law of military detention that is emerging from it. We pay particular attention to the courts’ decisions relating to: the substantive grounds for detention (including whether a once-adequate relationship with enemy forces may be vitiated); the nature and allocation of the burden of proof (including whether the burden actually varies over time); government requests for presumptions that its evidence is authentic and accurate; the admissibility and weight of hearsay evidence; the extent to which interrogation statements may be admitted or given weight in the face of torture, coercion, or involuntariness arguments; and the relevance of the “mosaic” theory. We find a considerable amount of disagreement among the judges regarding most of these matters — enough to suggest that in at least some instances the merits might well have been resolved differently had the detainee’s case been heard by a different judge. The appellate process may eventually impose greater uniformity. In the meantime, the lack of clarity regarding such important matters as the scope of the government’s detention power and the circumstances in which an interrogation statement can be used to justify a detention presents problems from the perspectives of both the detainees and the government. Neither can be sure of the rules of the road in the ongoing litigation, and the prospect that allocation of a case to a particular judge may prove dispositive on the merits can cut in either direction. Because it remains unclear how far the courts’ jurisdiction extends, moreover, nobody knows at this stage precisely how many cases these rules will ultimately govern and where else in the world they will have a direct impact. More fundamentally, because the courts in these cases are defining not merely the rules for habeas review but also the substantive law of detention itself, they have implications far beyond the litigation context. The rules the judges craft could have profound implications for decisions in the field concerning whether to initially detain, or even target, a given person, whether to maintain a detention after an initial screening, whether to employ certain lawful but coercive interrogation methods, and so forth.

U.S. District Court for the District of Columbia: Boumediene V. Bush - Volume 48 Issue 1 - Robert M. Chesney

In the aftermath of the 2008 election, change is in the air with respect to counterterrorism law and policy. The Obama administration almost certainly will terminate the military commission system, and it likely will take steps at least to reduce reliance on the underlying practice of long-term military detention. Against this backdrop, the debate regarding how best to reform detention policy has sharpened. Some contend that federal criminal prosecution should supply whatever long-term detention capacity may be required, while others contend that it would be better to design a detention system (such as a national security court) specifically tailored to the problem of terrorism prevention. I do not propose to resolve this debate here. Rather, my aim in this symposium article (also to appear as a chapter in a forthcoming collected volume published by Brookings) is to enrich the debate with a candid and precise assessment of the capacities and limitations of the federal criminal justice system as it relates to terrorism, with a particular focus on the prevention scenario. Part I examines a variety of charges available to prosecutors in that scenario. I conclude that these charges are far more prevention-oriented than critics often admit, though I also note a handful of limitations on their scope. Most significantly, perhaps, I draw attention to limits on the extraterritorial scope of the two material support laws as they stood prior to amendment in 2001 and 2004, respectively. That caveat aside, the scope of the charges available to prosecutors today compares well to the grounds for detention in the military detention system, and very favorably to the charges available in the military commissions system. Part II surveys several of the procedural and evidentiary considerations that critics have cited as grounds to doubt the ability of the criminal justice system to provide an adequate capacity to incapacitate suspected terrorists. By and large, my analysis concurs with the much-cited white paper that Richard Zabel and James Benjamin recently produced for Human Rights First, which is to say that I agree with them that many of the leading concerns in this area are overstated. I differ from them to some extent, however, insofar as I emphasize three sets of procedural safeguards that do tend to limit the reach of the criminal justice system in comparison to existing or proposed alternatives. Each is a familiar and much-lauded component of the fairness that characterizes our criminal justice system, and none should be set aside lightly. Specifically, I refer to (i) mandatory disclosure concepts (e.g., Brady and Giglio); (ii) Confrontation Clause (and hearsay) concerns (a topic which subtly imports the troubled question of interrogation methods); and (iii) the burden of proof itself. These are the features that do the most work in accounting for the difference in reach among the criminal justice system and its competitors, and I suggest that they should be the focus of the debate going forward. Because no one seriously doubts that criminal prosecution will continue to be an important tool of counter-terrorism policy going forward - whatever becomes of military detention and proposals for alternative detention systems - I conclude in Part III with a discussion of modest steps Congress might take to optimize the criminal justice system for the task of prevention-oriented prosecution.