The Volokh Conspiracy

The ACLU-- Al Qaeda's outside counsel.

Keep up the good work exposing people to this, they deserve to know EXACTLY what the ACLU and its supporters are up to.

The ACLU— Al Qaeda's outside counsel.

This guy was innocent. The CIA decided in this way.

(Incredible.)

You have to understand, anyone who dares to defend those brown people against the awesome might of the wonderful US government is an America-hating peacenik and Al Qaeda supporter.

Heh. I'm glad you folks are proud to stand up publicly for the enemy's rights. Someone has to stop that mean old bully George Bush from hurting the poor dears.

Not that anyone's questioning your patriotism! It's actually breathtakingly patriotic to wage a legal campaign on behalf of enemy combatants during a time of war...

I'm guessing Some Guy is satire (and if not, he should be).

Anyway, anyone care to comment on the possible immunity issues? With the OLC memo(s) do the job?

Nope, not satire. But you guys are doing a darn good job satirizing yourselves. You cite reports from the Guardian and the Washington Post as indisputable proof that the U.S. government is engaged in a widespread pattern of detaining innocent people for absolutely no reason, then start calling for blood from the people who have committed their lives to making sure Muslim fascists don't blow you to bits on the Metro?

Well, here's a little tidbit for thought. You folks are why people hate lawyers.

Our profession has become captured by the most virulent, anti-American leftists in the country, we are willing to lend our wealth and talents to abhorrent causes like securing the release of the enemy in a time of war, our leading academics care only about the rights of those who want to murder our loved ones who are overseas right now, and yet, you never fail to take a condescending, aloof attitude towards those who would question just whose side you're really on.

Guess what, ignore this friendly heads-up and poo-poo the idea that your fellow Americans see you as traitors. They're still going to think it.

One thing that I don't understand and have not been taught in 5 semesters of law school is how foreigners get standing to sue in our courts. I see from the pleadings that there is an Alien Tort Statute, but they also say the case is being brought under the 5th amendment.

I've seen this in other instances, too, and hope someone can answer the following question for me:

Under what authority can non-citizens claim the protections of the U.S. Constitution?

Is it by treaty, statute, judicial fiat, custom???

Thanks,
JRL

Isn't this guy going to have a serious sovereign immunity problem, at least as far as any non-constitutional claim is concerned?

JRL,

Well. I'd start with the observation that the 5th Amendment simply refers to "persons", not citizens.

From the BBC account:

"Mr Masri is now seeking damages of at least $75,000 (£43,000) and an apology."

$75,000 seems a bit low, if his allegations are true. I know I'd be looking for quite a bit more (and a good ghost writer, agent, publicist, screenwriter.) Five months of wrongful detention ought to get me that North Woods cabin I've always wanted, one way or another.

Someguy

Our profession has become captured by the most virulent, anti-American leftists in the country, we are willing to lend our wealth and talents to abhorrent causes like securing the release of the enemy in a time of war, our leading academics care only about the rights of those who want to murder our loved ones who are overseas right now, and yet, you never fail to take a condescending, aloof attitude towards those who would question just whose side you're really on.

If you believe the "leftists" are trying to defend the enemy and that academics care only about letting murders go; I have 2 questions: Are we at war? How can the United States, in fighting the evil done by the Taliban employ the same tactics used by them?

It seems to me, as I've posted at length in another thread that in this "war" against terror we must follow every law possible and grant all rights entitled, otherwise we are no better than those we are fighting. Second, last I checked you are innocent until proven guilty; I assume part of your comment goes towards the Saddam trial with former AG Clark acting as counsel. Though we all "know" Saddam is guilty, if they want to pass the tribunal off as a "fair trial," then they must give it the character of a fair trial; this, I'm sorry includes counsel.

$75,000 seems a bit low, if his allegations are true.

$75K is the jurisdictional limit in diversity cases, and they are pleading the diversity statute as part of their jurisdictional basis. I see that 28 USC 1331 does indeed apply to foreigners suing citizens. So that's it I guess, though it would seem their causes of action are federal questions.

Yes. Please censor everyone who says something that displeases Anderson. Delete their statements and ban them permanently. That will show everyone how right he is.

The system worked. They determined the guy was innocent and released him. Just what they're supposed to do.

So what ever happened to the "publication of sailing times of troopships in time of war" exception to the First.

When are they going to lock up the New York Times, ABC, and Newsweek employees who published this stuff?

I know we don't have an Official Secrets Act but maybe the Espionage Act...

Since I don't advocate the existence of nation states, I don't have a dog in this race but it stikes me that everyone who complained about Valarie Plame's outing could hardly complain if the Feds decided to lock up a few more reporters. They'd get some books out of it in any case.

So the facts being plead are that someone snatched this guy and he ended up in US custody for five months during which time he was poorly treated. Once we realized we had the wrong guy, we let him go after some delay. If his allegations are true, he has good reason to be cheesed off. I would even support paying him some substantial settlement for his trouble. However, I am not upset that the CIA is grabbing and interrogating suspected terrorists. I always thought that that was their job.

So please, also avoid rants, invective, and substantial and repeated exaggeration. Sticking with substance will make the comments more helpful to other readers, and more pleasant.

Nothing about "disagreeing with Anderson," though I am still negotiating for effectively similar language.

"I am not upset that the CIA is grabbing and interrogating suspected terrorists."

Sure, but some of us prefer saving the full Afganistan treatment for those suspected for good reasons, not because some CIA officer has a hunch. This case showed abysmal judgment from the CIA (source):

Khaled Masri came to the attention of Macedonian authorities on New Year's Eve 2003. Masri, an unemployed father of five living in Ulm, Germany, said he had gone by bus to Macedonia to blow off steam after a spat with his wife. He was taken off a bus at the Tabanovce border crossing by police because his name was similar to that of an associate of a 9/11 hijacker. The police drove him to Skopje, the capital, and put him in a motel room with darkened windows, he said in a recent telephone interview from Germany.

The police treated Masri firmly but cordially, asking about his passport, which they insisted was forged, about al Qaeda and about his hometown mosque, he said. When he pressed them to let him go, they displayed their pistols.

Unbeknown to Masri, the Macedonians had contacted the CIA station in Skopje. The station chief was on holiday. But the deputy chief, a junior officer, was excited about the catch and about being able to contribute to the counterterrorism fight, current and former intelligence officials familiar with the case said.

"The Skopje station really wanted a scalp because everyone wanted a part of the game," a CIA officer said. Because the European Division chief at headquarters was also on vacation, the deputy dealt directly with the CTC and the head of its al Qaeda unit.

In the first weeks of 2004, an argument arose over whether the CIA should take Masri from local authorities and remove him from the country for interrogation, a classic rendition operation.

The director of the al Qaeda unit supported that approach. She insisted he was probably a terrorist, and should be imprisoned and interrogated immediately.

Others were doubtful. They wanted to wait to see whether the passport was proved fraudulent. Beyond that, there was no evidence Masri was not who he claimed to be -- a German citizen of Arab descent traveling after a disagreement with his wife.

The unit's director won the argument. She ordered Masri captured and flown to a CIA prison in Afghanistan.

According to the article, his passport checked out in March (meaning he wasn't the terrorist who the CIA thought he was), but he wasn't released until late May 2004.

JRL,

Well, the 5th is, of course, an amendment, so it is not necessarily subject to the original preamble.

But for fun, suppose we took the preamble as guidance. The full preamble is:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

You note that we are "securing the blessings of liberty" to ourselves. Similarly, we are only insuring "domestic" tranquility. Interestingly, however, "establishing justice" is not so qualified. So, the preamble is consistent with the view that the Constitution is designed to establish the "justice" of our government's actions with respect to all people, not just with respect to citizens.

To anyone who's upset about this court case, I'd observe that our system is a system of checks and balances. The court system is one of the big checks. This suit is entirely appropriate. Even if you think it is outrageous that any attorney would ever represent a terrorist, surley you can have no problem with an attorney representing someone who is entirely innocent.

As for the sovereign immunity issue, it's outside my area but a couple of thoughts. (In the interest of full disclosure, I haven't read the entire complaint yet.) I think the sovereign immunity issue is going to be quite complex.

First, I don't think the alien tort act claim is meant to stick against the USG. I think it's meant to stick against the individual defendants who can only claim qualified immunity. Second, the Fifth ammendment claim is basically a Bivens claim and, if it sticks, there's be a waiver so I don't believe the USG would be able to claim sovereign immunity on a U.S. Constitutional claim brought in a US court.

If the USG were smart at all, they'd apologize and pay the guy off. Everybody knows the USG screwed up and having a big legal battle about whether the USG should be required to make good the damage it has done is amazingly bad PR -- whatever happened to the "personal responsibility" thing we used to hear so much about?

It's really stupid to assert even a legally meritorious position when it's political suicide.

Sorry for the delay, here's the cite for contractor sovereign immunity: it's Boyle v. United Technologies Corp., 487 U.S. 500, and the doctrine Scalia invented there is called the "military contractor defense." I wish I were joking.

Sorry for the delay, here's the cite for contractor sovereign immunity: it's Boyle v. United Technologies Corp., 487 U.S. 500, and the doctrine Scalia invented there is called the "military contractor defense." I wish I were joking.

Well, if it's as Marc J. described it, it's only about products liability. I doubt if the same reasoning that justified immunity in that case would apply to intentional torts (such as battery, false imprisonment, and intentional infliction of emotional harm).

As for the sovereign immunity issue, it's outside my area but a couple of thoughts. (In the interest of full disclosure, I haven't read the entire complaint yet.) I think the sovereign immunity issue is going to be quite complex.

I just finished reading the complaint, and it looks like the plaintiff is asserting a pretty standard Bivens claim. He isn't suing the government. He's suing individuals (and corporations). Interestingly, there's no claim for injunctive relief, which means that all relief would be specific to his individual case.

Oh, yeah, and it looks like he's not asserting such traditional torts as I listed above (battery, false imprisonment, intentional infliction of emotional harm), but more modern "human rights" torts: denial of due process; prolonged arbitrary detention; and torture and other cruel, inhuman or degrading treatment. But still, they are intentional torts, and contractors' immunity from products liability shouldn't apply here.

If currently anyone of Middle Eastern descent can be termed a possible terrorist, enemy combatant or other named term and the denied basically all rights without any evidence or any protections of rights that strecth back to the Mangna Carta... what will stop our great and paternal government from protecting us from other threatening classes...Let's see the Branch Davidians were Christians weren't they so I guess anyone who attends any church not on an approved list can be scoopped up. Oh yes the Oklahoma bombing involved someone who used to be in the military... so lets lock up any ex-military types... and of course anyone from Michigan could be the "Michigan Milita... so we can lock up all the laid off GM workers so they don't cause trouble.

This is not a case about what to do with terrorists. It is about the rights citizens have against government ignoring the procedures that enforce those rights. If the executive does not to justify its holding of a person to an independent body... we are not free.

every leftist wants a 'fair' trial for these guys. In my view such opinions are cases of invincible ignorance: these people are not criminals and not lawful combatants, so they are not entitled to a criminal trial.

Pierre, thanks for so brilliantly making the "leftist's" point. You're quite correct. In this case, the plaintiff was neither a criminal nor an unlawful combatant: He was, to use a technical legal term, "entirely innocent of anything whatsoever."

That's why we can't have assistant CIA station chiefs making decisions about locking people up and torturing them. Their vested interests in covering their butts disqualifys them.

Not everybody some bureaucrat at Langley suspects might be a terrorist actually is a terrorist. That's why you need some neutral fact-finder to make these ultimate determinations. It's a bedrock principle of criminal law that mere charges aren't evidence and that prosecutors make mistakes. Why would you assume that some CIA technician sitting in an office somewhere reviewing various bits of evidence provided by random sources and sifted out of a foreign language is more infallible than a criminal prosecutor?

Yes, they did eventually let this guy go, which is a good thing since they had no reason to hold him in the first place. If they're going to hold people like this, at the very least, they have a duty to make a very quick determination as to whether they've got the right guy or not. There's no excuse to take six months. There's no excuse to take six days. Obviously, the CIA's attitude was, "We've got this guy in custody already. What's the hurry?"

The U.S. may have to stretch some laws to fight terrorism. But that's an entirely different proposition than saying that the U.S. isn't bound by any laws at all when fighting terrorism. When the U.S. makes a mistake, it needs to step up and admit it -- and take steps to ensure it doesn't happen again.

In general:

If you were a CIA operative, and you received a notice about a terrorist who is a) Arab; b) Muslim; c) lives in Germany; d) named 'al Masri' and then a person matching all of these descriptions is deivered to you by the Macedonian police, what would you do? Call the ABA? Look for a JAG at a nearby US military installation for advice?

The fact that Masri was innocent does not imply anything about the general procedure of rendition. It is a non-sequiter to assert that 'if they did it to Masri, they can do it to anyone.'

You're all thinking like lawyers, where the goal is to enunciate a general rule and have it apply universally.

It is precisely this doctrine that I am criticizing, because the President's war powers are inherently prudential and based on his authority as CINC, not as an executor of the laws (there is a tension between those two constitutional powers).

These powers are not illegal, they are extra-legal, and are a remnant of the pre-modern or Machiavellian political sphere where personal and legal authority were not distinguished.

The fact that this sphere is miniscule for American citizens in general and especially in peacetime doesn't mean it does not exist (think 'prosecutorial discretion' also, where the 'equal' and 'universal' enforcement of laws is bent to political and practical realities). And to cite Hamilton (who promoted energy in the executive above all else) as a counterpoint strikes me as historically il-founded.

The limits to what the government can do to persons it considers unlawful combatants in time of war are largely political, not legal. Padilla's detention by the military is another case in point: I don't recall thousands being so detained (least of all some of the President's political opponents). When that happens, I'll start worrying.

I also note that the 'brave' defenders of our liberty in the judiciary basically waited until they felt safe from terrorist attack and the public mood had calmed before they started injecting themselves more forcefully into the process.

The Bush admin has actually behaved quite moderately. After all, who would have shed tears if Lindh, Padilla and Hamdi had actually been put before a military tribunal soon after capture, convicted, and then shot? The fact that Masri was returned at all (and in relatively undamaged condition) is quite striking given historical precedents.


Per Son:

No:

a) the JAG corps has a vested interest in seeking employment at left-leaning law firms after their (usually brief) military employment is over. They don't want to be too closely associated with the Chimpy McBushHitler regime;

b) the have drunk deeply from the waters of due process, which means the have a tendency to judge everything in terms of our current SCOTUS supplied judicial casuistry.

"These powers are not illegal, they are extra-legal" - PierreM

Bawahahahahaa

"After all, who would have shed tears if Lindh, Padilla and Hamdi had actually been put before a military tribunal soon after capture, convicted, and then shot?"

Of course, if they had actually been given a fair trial by a military court, they may not have been convicted and sentenced to death. Indeed, given what I know of the facts of all of those cases, that is the likely result.