Yesterday, Jonathan Hafetz, the American Civil Liberties Union lawyer who represented Al-Marri in his challenge to military detention, told The New York Times that the sentence by a federal judge was “a powerful reminder that America’s civilian courts can deliver justice even in the most challenging circumstances.” But David Rivkin, a former Reagan-era Justice Department official and strong supporter of military commissions to try suspected terrorists had a different take. Criminal courts are “ill-suited” to terror cases because the sentences are “a crap-shoot,” he said, adding that military commissions “arrive at a better judgment, being comprised of warriors, as to what level of danger the person poses.”

Al-Marri, a legal U.S. resident living in Peoria, Ill., before his arrest in late 2001, spent almost six years in a U.S. Navy brig in South Carolina without charge, mostly in isolation. Shortly before his case questioning the legality of his indefinite detention on U.S. soil was set to reach the Supreme Court,  the Obama administration transferred him to civilian custody, incarcerated him in a federal prison and prepared for his trial in federal court. But prosecutors agreed to accept a plea bargain, in which Al-Marri admitted that he’d been ordered by al-Qaeda official Khalid Shaikh Mohammed to move to the United States from his native Qatar and await instructions. Al-Marri moved his wife and five children to Peoria and he enrolled at Bradley University, where he had studied earlier. He admitted in his plea that he “researched online information related to various cyanide compounds” and communicated with other al-Qaeda operatives.

When al-Marri was arrested in December 2001 on charges of financial fraud, he hadn’t carried out any terrorist acts. But 18 months after his arrest, the government dropped the criminal charges and named al-Marri an “enemy combatant,” which in the Bush administration’s view, gave the government the right to hold him indefinitely in military custody. He remained at the Navy big, without charge or trial, until February.

Whether it’s legal for the United States to imprison indefinitely a lawful U.S. resident in a military prison on U.S. soil remains an open question, largely because the Obama administration did not give the Supreme Court an opportunity to rule on it. That may have been a strategic move designed to leave open the possibility of using that power again, particularly since President Obama promised to close the Guantanamo Bay prison by January 2010, but hasn’t yet decided what to do with many of the detainees imprisoned there.

For Al-Marri, however, it means he will now serve another eight years in prison. (He faced up to 15 years, but the judge agreed to consider the time he’d already served.) Al-Marri yesterday tearfully apologized for helping al-Qaeda and said he no longer wants to harm the American people.

Notwithstanding Rivkin’s criticism of the federal court’s sentence, it’s worth noting that in the two contested cases where terror suspects were sentenced by military commissions for similarly assisting al-Qaeda, both received lighter sentences. Salim Hamdan, for example, Osama bin Laden’s driver, was sentenced by a military jury of “warriors” to just five and a half years in prison, and given credit for time served. He’s already back home in Yemen. In the other case, Australian David Hicks pleaded guilty to providing material support for terrorism and was sentenced to only nine months in prison. A former kangaroo-skinner, Hicks is now home.

President Barack Obama (WDCpix)

In signing the Defense Authorization Act, which, among other things, amends the laws governing military commissions, President Obama confirmed Wednesday that he plans to keep the controversial military commissions alive. The effect is to deny at least some suspected terrorists — now called “unprivileged enemy belligerents” — the right to a trial in a civilian federal court. And though Obama has promised to use the commissions sparingly, the new law sets up a parallel justice system that could outlive the Obama administration and leave an indelible stamp on its legacy.

Image by: Matt Mahurin

Even those who fiercely oppose trying suspected terrorists in military commissions acknowledge that the months of wrangling over the legislation in Congress led to significant improvements over the Bush-era military commissions approved in the Military Commissions Act of 2006. Still, there are many lingering concerns. The new commissions allow the admission of coerced evidence in certain narrow circumstances. They allow the government to try children as war criminals. And, the new law would allow trials by military commission for offenses that are not traditionally considered war crimes. Those provisions leave even the new-and-improved military commissions vulnerable to constitutional challenge, and their verdicts open to reversal on appeal. And that could undermine the entire purpose of creating military commissions, which is ordinarily to provide swift justice when ordinary courts are not available.

Many legal experts and human rights advocates say the improvements over the 2006 Military Commissions Act are significant.

Under the amendments, an “unprivileged enemy belligerent” — what the Bush administration used to call an “enemy combatant” — is entitled to competent, experienced defense counsel, particularly if the suspect might face the death penalty. The previous commissions did not provide for defense lawyers with significant experience handling capital cases.

The new commissions also require that most statements of the accused must have been “voluntary” to be admitted at trial. That’s in addition to the requirement that the statements were not solicited by torture, or by cruel, inhuman or degrading treatment, as defined by the Detainee Treatment Act. Of course, the Detainee Treatment Act was interpreted by the Bush administration’s lawyer very liberally, so even extreme sleep and food deprivation, stress positions, threatening dogs and confinement with an insect in a small box was deemed lawful under that standard. But adding that the statement must also be “voluntary” — a change pressed by the Obama administration at several Congressional hearings — raises the bar significantly higher.

On the other hand, there is an exception. Statements are admissible even if not “voluntary” if “the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence.”  It remains to be seen how narrowly a judge will construe that.

The admission of hearsay evidence has been narrowed as well. The new law requires whoever introduces the evidence to give the other side enough advance warning to see the evidence and prepare a response, and the judge, in weighing the evidence, must “take into account all of the circumstances surrounding the taking of the statement, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne…” Then, in addition, the judge has to find that the statement is relevant and probative of a fact of the case, that it’s impractical to get direct testimony from the witness, and that “the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.” That essentially mirrors the hearsay exception for evidence provided in a civilian federal court.

As for the admission of classified evidence, the military commission has to follow the same procedures a civilian federal court would to determine how and if the evidence can be used, and to what extent and in what form the accused and his lawyer are entitled to see it.

But if the procedural safeguards are so similar to those in federal court, then why have the military commissions at all? The question is even more important because Congress, in passing this law, defined the court’s jurisdiction to include crimes that are not traditionally war crimes, such as conspiracy, and suspects who are not traditionally considered war criminals, such as those who provide “material support” for terrorism. Even Assistant Attorney General David Kris, testifying before Congress, testified that it’s not clear that those crimes — which are commonly charged against terror suspects in civilian federal courts — can constitutionally be brought before a military commission. Justice Stevens, in the case of Hamdan v. Rumsfeld, in an opinion joined by three other justices, specifically notes that “conspiracy” has not traditionally been considered a war crime. (The court did not ultimately rule on that basis, so it’s not clear how a majority would rule on it now.) Therefore, defense lawyers could argue that for Congress to make it a war crime after the suspect’s crime was committed would be an unconstitutional “ex post facto” law, says Shayana Kadidal, senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights.

For the administration to bring a terrorism case before a military commission and be sure to avoid this issue, then, it would have to avoid charging conspiracy and substantial support for terrorism. Those charges are made in almost all terrorism cases.

Which raises the question, why bring cases in military commissions at all?

Justice John Paul Stevens in Hamdan argued that the purpose of military commissions is “military necessity.” Yet in this situation, as many legal experts have pointed out, it’s not at all clear that these commissions are necessary.

As the ACLU’s Jameel Jaffer said in a statement released yesterday after the President signed the new law: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”

Many other lawyers and advocates agree. A study conducted by former prosecutors for Human Rights First, for example, found that civilian federal courts had successfully prosecuted more than 214 terrorism cases since September 11, 2001. Prosecutors won 195 convictions, and successfully handled the challenges of unavailable witnesses, classified evidence, undercover informants and other complexities that arise in terrorism cases, the report found. By contrast, the military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases. In only one of those did the defendant even put on a defense. In that case, Salim Hamdan, Osama bin Laden’s driver, was sentenced to only five and a half years in prison, with credit for the more than five years he’d already served. He was released to his home country of Yemen in January.

Part of the reason the military commissions have been so ineffective is because they were vulnerable to constitutional challenge. But legal experts say that even the new commissions would be vulnerable. As ACLU attorney Chris Anders put it, “they’ve narrowed the gap, but they still fall far short of the due process guarantees in Article III courts, which will still make them vulnerable to reversals.”

“This is a brand-new system, for the third time,” said Kadidal, referring to the two earlier incarnations of the military commissions during the Bush administration. The first commission system was invalidated by the U.S. Supreme Court, and the second was suspended by the Obama administration.

“This lesser degree of process is not justice,” said Virginia Sloan, president of the bipartisan Constitution Project, in a statement released yesterday. “Furthermore, these modest improvements cannot save the irretrievably tainted military commissions.”

The Obama administration surely knows that these cases are vulnerable to challenge, particularly since Congress included provisions in them that Justice Department lawyers admitted were legally questionable. And it’s not clear that it wants to bring important cases in the military commissions, and risk having convictions of major terrorists reversed on appeal.

What’s more, there’s no “sunset provision” in the legislation, so the military commissions can exist indefinitely. That’s also contrary to what the administration itself asked for. David Kris, testifying before the Senate Armed Services Committee, noted that traditionally, “military commissions have been associated with a particular conflict of relatively short duration.” Buy contrast, the current conflict “could continue for a much longer time.”

The result is that the military commissions could outlast the Obama presidency, raising another potentially sticky point that the Obama administration might prefer to avoid. “By not having a sunset provision,” said Kadidal, “this system will be a permanent part of President Obama’s legacy.”

Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the pressure grows on the Obama administration to close the prison camp at Guantanamo Bay by January, so too does the risk that some of the Guantanamo detainees cleared for release could be returned to countries where they’ll face persecution or torture, say human rights experts. The men remaining at Guantanamo mostly come from countries that are notorious for torturing prisoners. And the Obama administration has not ruled out returning the men to those places, even though, labeled “enemy combatants” by the Bush administration, they could face retaliation back home.

Meanwhile, it remains unclear whether the courts can step in and stop the administration from returning prisoners to countries known to torture. In April, the D.C. Circuit Court of Appeals ruled that the federal courts have no authority to interfere with where the administration wants to send a Guantanamo detainee. The lawyers on that case, Kiyemba v. Obama, plan to appeal to the Supreme Court this month, but in the meantime, men from Algeria, Tunisia, Libya and other countries notorious for abusing prisoners could be returned to those countries over their objections. Their lawyers are now scrambling to try to stop that.

Illustration by: Matt Mahurin

On Tuesday, the Supreme Court deferred its decision in a related case on whether to review a ruling that judges have no authority to order Guantanamo detainees released into the United States. The court’s punt came in the case of 13 Uighurs, the Chinese Muslim prisoners who have been cleared for release by the U.S. government but cannot return to China for fear of persecution there. But while the Uighurs in that case have been denied the right to be released into the United States, in a way, they’re lucky; the Obama administration has said it will not return them to China.

To be sure, the administration has also promised not to send any detainees to countries where they’re likely to be tortured. But it has also said that in some situations it will accept “diplomatic assurances” from those countries that it will treat the returning detainees humanely. These are, essentially, promises from a torturing country that it won’t torture a particular individual being sent there. But how reliable are those “assurances” really?

Human rights advocates say they’re not at all.

“The record on diplomatic assurances is extremely poor,” said Joanne Mariner, Director of the Terrorism and Counterterrorism program at Human Rights Watch. “It’s rare we see the text of the assurances, so it’s not clear what they consist of, and whether there’s a post-return monitoring mechanism. But there are some very well known cases in which people were sent to Egypt and Syria with diplomatic assurances, and then were tortured.”

Judy Rabinovitz, Deputy Director of the ACLU’s Immigrants’ Rights Project, agrees. “We think there are real problems inherently with the reliability of such assurances and the ability to monitor them,” she said. After all, she noted, most of these countries have signed the United Nations Convention Against Torture, but they’re still torturing prisoners. “When you have a country that’s notorious for torturing, how can diplomatic assurances be reliable? They know they’re not supposed to torture. They’ve signed a treaty. How is an assurance worth more than a treaty?”

One of the most infamous recent cases of torture following assurances from a foreign government involved the Canadian citizen Maher Arar, arrested at JFK airport and sent to Syria for interrogation, supposedly with diplomatic assurances that he’d be treated humanely. Arar says he was brutally tortured there. Human Rights watch has released several reports on the increasing reliance of the United States and other countries on such “diplomatic assurances,” and documented that in many cases, they have not worked. What’s more, it’s often impossible to know whether an individual returned has been tortured, since the country that returns the prisoner has no credible way of determining how he was treated, and both countries have an incentive to say the detainee was treated humanely.

Technically, the United States is bound by the Convention Against Torture and the International Covenant on Civil and Political Rights not to send people to countries where they face a real risk of torture. (The Bush administration argued those laws did not apply to prisoners held abroad.) But as Mariner explained, that often leads those countries to rely on “diplomatic assurances” to say the risk has been diminished. That’s exactly what the Bush administration said it did when it sent terror suspects for questioning under its “extraordinary rendition” program, and many of those suspects claim they were subsequently tortured.

The choice, says Mariner, is either to trust the discretion of the executive branch, or to have some sort of system for deciding the legitimacy of the prisoner’s fears. The D.C. Circuit ruling eliminated the possibility of the federal courts playing that role. That ruling took effect in early September, clearing the way for the U.S. government to begin to return Guantanamo detainees to countries known to torture prisoners.

The administration announced earlier this week that it has cleared 75 Guantanamo detainees for release. The list includes nine prisoners from Tunisia, seven from Algeria, four from Syria, three from Libya, three from Saudi Arabia, two each from Uzbekistan, Egypt, the West Bank and Kuwait, and one each from Azerbaijan and Tajikistan. None of these countries has a strong human rights record.

About 30 of the prisoners cleared for release fear return to their home countries, said Mariner.

Ahmed Belbacha is one such prisoner at risk. He fled his home country of Algeria in 1999 during a civil war between government forces and a militant Islamic group. A former soldier in the Algerian army, he was at risk from both sides. He sought asylum in the UK, where he worked cleaning rooms in a hotel. In 2001, however, while traveling in Pakistan where he was offered free Islamic education, he was captured by the Pakistani Army and turned over to the U.S. military shortly after the U.S. invasion of Afghanistan. The U.S. military deemed Belbacha an “enemy combatant” because he had attended prayer services led by a fundamentalist sheik, travelled on a fake French passport and received small arms training in Afghanistan. Belbacha was sent to the prison at Guantanamo Bay in 2002. But in 2007, the Bush administration decided that he did not pose a threat and cleared him for release. But by this time, Belbacha was afraid to go home; he fears retaliation and torture from both the Algerian government and radical Islamists.

In 2007, Belbacha’s lawyers told the court that they’d learned that the U.S. government planned to return their client to Algeria, and filed an emergency motion asking the court to prevent his transfer. The court ruled it did not have the power to do that, and Belbacha appealed. The court of appeals held off deciding the case though, while waiting for the Supreme Court to rule on whether detainees have the right to challenge their detention in federal courts. (It ruled they did last year in Boumediene v. Bush.) In the meantime, the court temporarily enjoined the U.S. government from sending Belbacha to Algeria.

Then, in April, the D.C. Circuit ruled in Kiyemba v. Obama that the courts have no authority over where the government sends the men. Now, Belbacha is worried again, and his lawyers are scrambling to keep the court from issuing an order that will allow the government to transfer Belbacha to Algeria. His lawyers say he’s now even more likely to be tortured by the Algerian government if he returns there because his struggle to avoid transfer there has drawn international attention and support from human rights groups. As his lawyers put in their brief to the court: “He believes that his strenuous and widely-publicized efforts to avoid transfer to Algeria place him in the government’s crosshairs.”

Belbacha’s lawyers have filed a motion with the court asking that his case be “held in abeyance” until the lawyers handling the Kiyemba case have an opportunity to file a petition to the Supreme Court, and then until the Supreme Court decides whether to hear the case. Holding the case off would leave in effect a June 2008 district court order prohibiting the government from transferring him to Algeria.

The Department of Justice, meanwhile, is vigorously fighting to lift that order, arguing that the D.C. Circuit has already decided that the courts don’t have authority to prevent a detainee’s transfer, and that the government has promised not transfer any detainee to a country where “he is more likely than not to be tortured.”

That’s not sufficient assurance for Belbacha and his lawyers, however. “The U.S. has not assured Belbacha that he won’t be sent back,” said David Remes, Executive Director of Appeal for Justice and a lawyer for Belbacha. As the law stands now, there is no court or independent arbiter to whom Belbacha can appeal.

Human rights advocates say that Algeria’s abusive treatment of two other prisoners recently returned there by the UK raises serious concerns. According to Human Rights Watch, the men were reportedly threatened and beaten in custody. Statements coerced from them were used against them at trial, and both were sentenced to several years’ imprisonment.

Lawyers for Guantanamo detainees from Libya and Tajikistan who similarly fear persecution if returned home have also asked federal judges to at least temporarily prevent their clients’ transfer until the Supreme Court can consider whether courts have any authority over the administration’s decisions about where to send them.

The Obama administration, in another context, has similarly indicated that it is willing to send people to countries known to torture. In making recommendations on the transfer of terror suspects to other countries for interrogation – commonly known as renditions – an Obama administration task force recommended that renditions be permitted to countries known to practice torture, so long as the administration obtains assurances that the suspect will be treated humanely. Although the Obama administration has promised to monitor and enforce those assurances, Human Rights Watch has found that “monitoring is no panacea” because the prisoners cannot be guaranteed confidentiality. Their reports of abuse to foreign monitors would be easily traceable to them, placing them at serious risk of retaliation.

That’s because the current administration announced earlier this week that it will continue the rendition program, albeit under the authority of a broader inter-agency team. But the administration has not ruled out sending terror suspects to countries that are known to torture them in custody.

A Justice Department release on Monday clarified that the U.S. government will obtain “assurances from foreign countries” that they’ll treat the prisoners humanely, and will “insist on a monitoring mechanism” to check up on the prisoner every once in a while, although it may provide some “advance notice to the detaining government.”

Whether or not that “trust me” approach is really worth trusting, given the similar assurances provided by the Bush administration, it does suggest that the Obama team may not welcome an Inter-American Commission inquiry into rendition.

Although the original El-Masri court case that Spencer referred to was brought against the Bush administration, more recent attempts to sue the government on behalf of innocent victims of extraordinary rendition have been similarly rebuffed by the Obama Justice Department, and on the same “state secrets” grounds.

As a result, not one victim of the Bush administration’s rendition program has had his day in court.

El-Masri, a German citizen, was kidnapped in 2003 in Macedonia and flown by U.S. agents to a CIA-run “black site” in Afghanistan. There, he claims he was beaten, drugged, blindfolded, confined in a tiny dirty cell, and prevented from communicating with anyone in the outside world, including his own family or the German government. About four months later, after apparently concluding that they had captured the wrong person, the CIA flew him to Albania and left him on a hillside in the dead of night. El-Masri has never been charged with a crime.

Update:  According to Steven Watt, El-Masri’s lawyer, the Obama administration probably couldn’t make the “state secrets” claim in the Inter-American Commission, which does “not recognize blanket prohibition on accessing courts to assert fundamental rights.”  However, ” Obama can try to argue that the state secrets privilege was legitimately raised before domestic courts and El Masri thus wasn’t denied access to a remedy (one of El Masri’s claims before the IACHR) but in our view, based on our assessment of international law, Obama wouldn’t prevail.”

He adds: “there is no equivalent of the state secrets privilege recognized under international human rights law to bar a human rights victim accessing an international tribunal such as the Commission. ”

As I note in my story, Gude and Kate Martin, Director of the Center for National Security Studies, have both written in support of the president’s right to detain combatants under the laws of war. But that support raises two key questions: who is a combatant and what is a war?

Congress, in passing the Authorization for the Use of Military Force (AUMF) in 2001, allowed the president to wage war “against those responsible for the recent attacks launched against the United States” — namely, al-Qaeda and the Taliban, when they ran Afghanistan. But since no one walks around wearing al-Qaeda or Taliban uniforms, who’s actually a member and therefore detainable remains a major point of contention.

Similarly, the laws of war allow for the detention of a combatant captured on the battlefield until the conflict is over. But whether the battlefield is the specific zone where U.S. forces are stationed in Afghanistan or Iraq, or an area as broad as anywhere in the world that terrorists who hate the United States may be found, is hotly debated. Many of the lawyers I cite in my piece today, such as Martin, Gude and the eleven lawyers who signed the letter to President Obama imploring him not to authorize some new form of preventive detention, argue for the geographically more limited definition of detention.

As Gude wrote in The Guardian: “During this ongoing military conflict, the US clearly possess the authority to detain enemy fighters captured on the battlefield or fleeing from it.”

And as the military and defense lawyers write in their letter to Obama, the laws of war “do not authorize the detention of people for terrorist activities far from the battlefield, which are not acts of war but criminal acts.”

The Bush administration interpreted the laws of war far more expansively than that, however, seizing and detaining for years suspected terrorist sympathizers as far away as Thailand, Bosnia and Illinois. Few, if any, civil libertarians would approve of such an expansive reading of the president’s wartime detention authority.

Yet those who advocate new detention legislation, such as Benjamin Wittes at Brookings, think that distinction makes little sense. And that’s why they want an entirely new system that is not constrained by the laws of war.

Because in Wittes’s view, the laws of war allow you to detain, say, a not-very-important Taliban foot soldier, but not a leading al-Qaeda agent who’s found in Pakistan, far from the zone of conflict.

“Say you raid a safe-house in Pakistan,” he said yesterday. “You capture Abu Zubaydah. There are 10 people there with him, but nowhere near the battlefield. But they’re close enough to a very senior al-Qaeda member, and involved with building live bombs.” The government ought to be able to detain them all, says Wittes, yet the laws of war don’t necessarily allow that.

“My basic point is that the laws of war unambiguously detain a group of people who are frankly not the real problem in the counter-terrorism arena. And they give you only very ambiguous detention authority with respect to people who are the molten core of the problem … so why not have a detention authority that is designed for the group of people you actually want to detain?”

That question is sure to spark more controversy in the months to come.

Jose Padilla is escorted into a Florida courtroom in 2007 (Photo: Florida Southern District Court)

Since U.S. District Judge Jeffrey White ruled late Friday in San Francisco that former “enemy combatant” Jose Padilla can proceed with his lawsuit against “torture memo” author John Yoo, the decision has been interpreted by many in the media as a broad vindication of detainees’ rights to sue former Bush administration officials.

In fact, the ruling’s implications are narrower than that, and could also be appealed. But, still, the opinion has heartened some civil rights lawyers because it rejects many of the claims made by former Bush officials that they’re not liable for their actions formulating policy in the “war on terror.” That could persuade judges hearing other claims against former officials as well. The ruling also allows the civil case to move forward against John Yoo, and could in the process reveal significant new information not only about Yoo, but about his interaction with the White House, and exactly how he reached the legal conclusions that he did. That information could, in turn, be used against him in future criminal or congressional proceedings.

Illustration by: Matt Mahurin

But Padilla’s situation was highly unusual, which is one reason the decision’s implications are limited. A U.S. citizen arrested in Chicago in 2002, he was declared an enemy combatant by President George W. Bush and held in a U.S. military prison in South Carolina without charge for the next three and a half years. He claims that while there, he was subjected to a range of harsh and arguably illegal interrogation techniques, such as sleep deprivation, exposure to extreme hot and cold temperatures, threats to torture and to kill him, stress positions, and more. (Padilla was eventually transferred to civilian custody and tried in federal court on criminal conspiracy charges and sentenced to 17 years in prison.) Represented by private lawyers working with a Yale Law School clinic, Padilla and his mother are now suing Yoo, among others, for orchestrating the policies that led to his treatment by U.S. officials. (Padilla has a similar case pending in South Carolina against former Attorney General John Ashcroft and former Defense Secretary Donald Rumsfeld.)

Unlike Padilla, most of the hundreds of other detainees deemed “enemy combatants” by the Bush administration were foreign nationals captured abroad and imprisoned at Guantanamo Bay, which at least technically is not U.S. soil. Judge White acknowledges that those detainees will have a harder time suing government officials. In his opinion, he cites the U.S. Circuit Court of Appeals for Washington, D.C.’s ruling in In re Iraq and Afghanistan Detainees Litigation (pdf), where the court held that “foreign citizens detained abroad” could not sue “for deprivation of their constitutional rights.” A judge-created remedy, the court reasoned, “would invite enemies to use our own federal courts to obstruct the Armed Forces’ ability to act decisively and without hesitation in defense of our liberty and national interests” and would risk “aiding our enemies” by giving them a means of learning information about U.S. military affairs.

That’s not relevant to Padilla, who was a Brooklyn-born U.S. citizen detained in South Carolina.

Still, several points Judge White made in the decision do bear on other cases, and although not binding on other courts, could be persuasive. Most importantly, Judge White rejected Yoo’s claim that he is entitled to immunity from lawsuits because the right of an “enemy combatant” not to be tortured and abused by U.S. authorities was not clear at the time. Former Bush administration officials have repeatedly made similar claims in other cases, often with success.

“The Court finds that the complaint alleges conduct that would be unconstitutional if directed at any detainee, and therefore finds that the rights allegedly violated were clearly established at the time of the alleged conduct,” wrote Judge White.

“My own feeling is that the qualified immunity section of his opinion could be read broadly,” said Jonathan Freiman, a lawyer representing Padilla in the case, who was pleased with Friday’s decision.

Ruthann Robson, a constitutional law professor at the City University of New York and contributor to Constitutional Law Prof Blog, agreed that “getting past the qualified immunity argument was a big hurdle for the plaintiff.”

Yoo also claimed that he can’t be sued because the connection between his writing legal memos that justified brutal interrogation tactics and any actual tactics used on Padilla is too tenuous. Judge White rejected that argument as well. “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct,” wrote Judge White, who was appointed to the court by President George W. Bush. That mistreatment would follow from an authoritative legal memo advising the executive branch that those specific acts of abuse were lawful is not a stretch, he found, which could bode well for other plaintiffs. The legal complaint also specifically charges that Yoo helped develop the government’s policy in the “war on terror”, and specifically recommended that the government designate Jose Padilla as an “enemy combatant.” Judge White wrote that if that turns out to be true (the facts alleged are assumed true at this stage of the case), then Yoo could be legally liable for Padilla’s treatment.

Interestingly, one important factor that the court found weighed in favor of Padilla’s right to sue is that the United States had not afforded him an alternative remedy for the abuse he claims he suffered. Habeas corpus proceedings in federal court, for example, were not sufficient because they don’t provide a remedy against the individual federal officials who developed the challenged policies. The fact that the U.S. government has not developed an alternative means of compensating people who were tortured, mistreated or wrongly deemed “enemy combatants” also weighed in Padilla’s favor.

Interestingly, the fact that the U.S. government has no current plans to prosecute anyone for developing and carrying out illegal policies under the previous administration also helped Padilla. The court quoted news reports such as one in The New York Times saying that “President Obama has shown little interest in prosecuting officials of the previous administration, and it is not clear whether there will be a government sponsored investigation of Bush administration policies.”

“This ruling gives hope that the courts will not shy away from accountability for those who designed and implemented the last administration’s torture policy,” said Freiman, Padilla’s lawyer.

Indeed, the part of the opinion that seemed to most hearten constitutional lawyers was the court’s refusal to allow Yoo to shield the writing of his memos from judicial review.

The court noted what it called “the irony” of Yoo’s position, that “Yoo drafted legal cover to shield review of the conduct of federal officials” and now argues to the court “that the very drafting itself should be shielded from judicial review.”

As Warren describes it, Judge White’s ruling means that legal memos like Yoo’s “should not be a defense for people who are implicated in torture and abuse that they should have known was wrong.”

That could have implications for some of the cases that have been brought against Yoo in Europe, said Warren. A case is pending against Yoo in Spain, and CCR has filed a case in Germany under the theory of “universal jurisdiction” for human rights abuses. The judge is saying that “the mere writing of these memos can’t shield the writer,” said Warren.

John Yoo, for his part, has consistently maintained that the San Francisco lawsuit is an abuse of the civil justice system. As he wrote last year about the case in The Wall Street Journal: “The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box.”

The Associated Press reports that “two U.S. officials, who spoke on condition of anonymity, said the U.S. was prepared to give Palau up to $200 million in development, budget support and other assistance in return for accepting the Uighurs and as part of a mutual defense and cooperation treaty that is due to be renegotiated this year.”

In an interview with the BBC World Service this morning, Palau President Johnson Toribiong insisted that the only money he’d discussed with the U.S. government was “small support money” to aid in the Uighurs’ resettlement.

For a tiny island of less than 30,000 inhabitants, $200 million would surely be some helpful support. But Toribiong said that was not the motivation: “It’s an act of support for the United States in a request to release these people,” he told the BBC.

In a statement, Toribiong said his tiny country is “honoured and proud” to resettle the detainees, who have been found not to be “enemy combatants.”

Daniel Fried, the State Department’s Guantanamo troubleshooter, worked out a deal with Palau earlier today, according to The New York Times, to take an unspecified but substantial number of the 17 Uighurs at Guantanamo Bay, making other a-la-carte resettlement efforts easier:

One administration official said that if Palau agreed to take “a large chunk” of the 17, it would be easier to find homes for the rest, either in Australia, Germany or the United States. Australia and Germany already have Uighur populations, making those countries obvious candidates.

Australia recently agreed to review a request to accept some Uighurs, after twice rejecting from the United States. Germany has been reluctant to accept any detainees unless the United States takes some, too.

So there’s a silver lining for the demagogues: maybe one Uighur whom the Bush administration didn’t consider an enemy combatant will end up in Virginia. Keep some cash on hand for a quick ad buy.

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Meet Your New Neighbor, Khalid Sheikh Mohammad?

There’s actually nothing in the 15-page paper suggesting that Khalid Sheikh Mohammad could be released into American society. There is, however, an exposition of the problem of the 17 Uighur detainees who were cleared of enemy combatant status by the Bush administration, and who could be resettled in Virginia. So, by the transitive property: KSM could be walking out to pick up his morning paper while you’re mowing your lawn.

That’s been left to the federal district courts hearing the habeas corpus cases of Guantanamo detainees’ to decide, and yesterday, Judge John Bates, a Bush appointee on the federal court in Washington, D.C., significantly narrowed the definition of who can legitimately be deemed a combatant (pdf). He did not, however, reject the government’s claim that under the laws of war, it can hold enemy fighters indefinitely — much to the dismay of some of the detainees’ defense lawyers.

The Obama administration had claimed “the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001″; “persons who harbored those responsible for those attacks; “and “persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”

Bates, while accepting the still-controversial view that the laws of war allow the president to detain al-Qaeda or Taliban fighters indefinitely, refused to extend that to those who “support” those groups, saying “the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of “support” as a valid ground for detention.”

However, citing Congress’s declaration in the Authorization for the Use of Military Force (AUMF) against organizations that the president determines attacked the United States on September 11, 2001 and analogizing from the laws of war, Bates concluded that the government can detain members of al-Qaeda and the Taliban, and members of “associated forces” or “co-belligerents.”

But how do you prove who was a “member” of al-Qaeda or the Taliban? Members of terrorist organizations don’t wear uniforms or carry cards declaring their membership. And that’s, of course, what the government and defense lawyers will be fighting out over the coming months.

Already, in several cases — such as in the Alla Ali Bin Ali Ahmed case that I wrote about here — judges have determined that the government did not have enough evidence to support its “membership” claim. Staying in a guest house frequented by al-Qaeda members, for example, was not enough to prove membership. And tending to al-Qaeda members as a doctor or cleric, Bates pointed out in his opinion yesterday, would not alone be enough.

Defense lawyers representing Gitmo detainees say that in many of their cases, that’s exactly the sort of flimsy evidence the government is claiming justifies the detainees’ indefinite detention until the end of the “war on terror.” Bates yesterday brought those detainees a step closer to their eventual release.