I’ve been reporting on the Opinio Juris Insta-Symposium (OPJIS) on the Boumediene Case in dribs and drabs as I stumble through the wealth of offerings from various contributors. My cherry-picking certainly doesn’t do justice to the whole of it, and I’m not certain I’ll have the time to review the proceedings in toto for CTLab. Suffice it that anyone looking for first-round responses on the case from the law-bloggigentsia should go to it and start digging in. Meanwhile, I cite the bits that catch my eye, the parts that I can relate back to my own research on sanctuary concepts and practices.

Much of the discussion at OPJIS turned on issues of territoriality and territorial jurisdiction of the U.S. Constitution. OPJIS convener Roger Alford introduced the issue in his post, "The Territorial Reach of the Constitution". Citing earlier spatial models of Constitutional jurisdiction – "universalism, membership, territorial, and a balancing approach of global due process" being the major ones – he asks:

So where does Boumediene fall among those models? It is difficult to say, because in some respects the question is limited by the Court’s determination that Guantanamo Bay effectively is within the territory of the United States. But there definitely is some language in the opinion that seems to suggest a much broader approach than simple territoriality.

More:

My first blush reading of the [Boumediene] case is that the Court is adopting a rule that the Constitution applies abroad provided the United States exercises de facto sovereignty. I’m not sure if that is closer to a territorial model, the balancing global due process model, or something in between. At a minimum it appears that the Court is rejecting the broad universalist and the narrow membership models.

Peter Spiro, in his entry "What Difference Does Citizenship Make? Even Less, After Boumediene," noting Alford’s emphasis on "territory in marking the boundaries of citizenship," suggests "The other key element in constitutional cartography has been citizenship status, at least since Reid v. Covert. When it comes to enjoying the protection of the Constitution abroad, as a general matter citizens get it, noncitizens don’t."

Alford elaborates. "I want to return to the issue of the Court’s discussion of de facto sovereignty," he writes in a later post, "which has the potential to be one of the most important holdings of Boumediene. The reason it is so important is that the Court’s articulation of de facto sovereignty has the potential to be the new test for the application of constitutional guarantees to noncitizens abroad. This has ramifications far beyond the narrow issue of habeas corpus."

My ignorance of legal scholarship notwithstanding, Alford presents what I think is an intriguing typology:

The territorial model. First, de facto sovereignty could mean something quite narrow. The narrowest reading of de facto sovereignty would emphasize that Guantanamo is almost unique in that it effectively falls within the territory of the United States but for the fact that Cuba retains ultimate de jure sovereignty. Under this definition, Guantanamo Bay would constitute a data set of one.

The occupation zone model. A second definition would focus on all territories that the United States physically occupies and controls. This would encompass a much broader category of territory, including the American zone in Germany after the Second World War and arguably all of Iraq during the period when Iraq was governed by the Coalition Provisional Authority. It also would apply to the Green Zone today.

The military base model. A third definition would focus on the individual facilities that we occupy and control subject to lease agreements with other nations. Under this definition the Constitution would extend to any alien physically located in any United States military base anywhere in the world. It also would extend to aliens held in any United States prison, barracks, or detention facility anywhere in the world that is within the practical control of the United States.

The effective control model. A fourth definition is even broader and would emphasize effective control of a detention facility. The Court emphasized that “Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” So the Constitution would apply if the United States exercised effective control over a detention facility even though the detainees are held by coalition forces or military personnel from other nations pursuant to an agreement with the United States.

The physical custody model. A fifth possible definition of de facto sovereignty would emphasize physical custody over the person rather than the territory. This definition would essentially define de facto sovereignty as equivalent to control over the individual’s physical movement. If a person has been arrested and his movement is forcibly circumscribed by United States authorities, then the United States is exercising control over that person and the Constitution applies to their conduct.

The exercise of power model. The broadest possible definition of de facto sovereignty is that the Constitution applies to noncitizens abroad any time the United States exercises authority over those individuals. This definition parallels Justice Brennan’s dissent in Verdugo-Urquidez: If the Constitution authorizes our Government to enforce our laws abroad, then when the Government agents exercise this authority, the Constitution travels with them. Under this definition, the Constitution is an unavoidable correlative of the Government’s power to enforce the law.

This parsing of legal and material space usefully expands on problems that many have addressed over the last seven or so odd years: the limits of sovereign entitlements and protections, the partisan portrayal of certain legal exemptions as legal "black holes", and the like. Bill Banks addressed some of these in "Legal Sanctuaries and Predator Strikes in the War on Terror", his contribution to Denial of Sanctuary: Understanding Terrorist Safe Havens (yes, shameless plug).

Where I think this relates well is to corollary efforts to typologize problems of refuge – everything from the Westphalian model of failed and rogue states (with all the shades of dysfunction and nefarious intent in between), to the guerrilla warfare model of territorially contiguous rear bases and its expeditionary variants in the long war. Chimene Keitner, in a follow up OPJIS post ("Function Over Form"), notes "In the end, this is a case about borders: the borders of habeas jurisdiction, and the border between law and politics. The first has been clarified somewhat, but both remain contested." Indeed. But this is a good start.

The smash book of the season… reviews and commentary on Benjamin Wittes’ new book Law and the Long War: The Future of Justice in the Age of Terror (Penguin Press, 2008) have been popping up all over. This one from Bobby Chesney, via National Security Law List-Serve.

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* Ben Wittes, Law and the Long War: The Future of Justice in the Age of Terror

Ben Wittes’ forthcoming book is a must-read, particularly in light of Boumediene. The book addresses a wide range of post-9/11 legal issues relating to the problem of terrorism, including detention, interrogation, and surveillance. If you’ve followed Ben’s blogging on Slate’s Convictions, you know that his views neither support current policies nor the views of the administration’s more ardent critics. In any event, I strongly recommend the book.

Curtis A. Bradley, the Richard and Marcy Horvitz Professor of Law and Professor of Public Policy Studies at Duke University, offers this in the July/Aug 2008 issue of Foreign Affairs:

In an important new book, Law and the Long War, Benjamin Wittes, a fellow and the research director in public law at the Brookings Institution, critiques what he calls the “legal architecture” of the war on terror. He finds fault with many players: with the Bush administration, for its “consistent — sometimes mindless” fixation on executive power and its repeated unwillingness to seek support from Congress; with Congress, for not asserting itself; with the administration’s critics, for attempting to deny the White House the flexibility it legitimately needs to fight the war on terror; and with the Supreme Court, for using ongoing legal disputes “to carve itself a seat at the table in foreign and military policy matters over which it has [had], for good reasons, a historically limited role.” Wittes’ purpose, he explains, is to “shake somewhat the certainty” of both the executive-power enthusiasts and the administration’s critics alike. He also seeks to move the debate beyond formal arguments about what is and what is not allowed under existing law toward consideration of a new legal regime that would provide the government with needed flexibility while protecting individual liberties.

I’d rather not start posting reviews of reviews, but this one mentions “a missed metaphor”, suggesting what I think is if not an entirely novel view of things, at least crystalizes some of the thinking on the various discursive critiques of “wars on terror” (although the suggestion is from Wittes, not his reviewer):

Critics of the Bush administration have argued from the start of the war on terror that it is a war only in a metaphorical sense, much like the “war on drugs” or the “war on poverty.” This charge is unfair, and Wittes rightly disputes it. Al Qaeda is not a mere criminal organization; it is a military organization with the express purpose of fighting the United States. Even before the attacks of September 11, 2001, the United States was using military force against al Qaeda: in 1998, for example, President Bill Clinton ordered cruise-missile strikes after the U.S. embassies in Kenya and Tanzania were bombed. A week after 9/11, Congress gave the president broad authorization to use military force, implicitly targeting both the Taliban and al Qaeda. Within a month, the United States was engaged in a major and widely supported military campaign against both organizations in Afghanistan. The war metaphor for the battle against Islamist terrorism developed then, Wittes notes, because “in the short term, no remotely viable alternative to it existed.”

But, as Wittes also explains, the war model is an imperfect fit for terrorism. In a traditional conflict, enemy troops typically wear uniforms and are affiliated with a state, which can compel them to fight. Thus, in such cases, it is both relatively easy to identify combatants and reasonable to treat them as dangerous. In addition, if they are captured, their home state can bring their detention to an end — for example, by surrendering or entering into an armistice agreement.

It is much more difficult, however, to identify members of the enemy forces in the conflict with al Qaeda. The organization’s chain of command is often unclear, and many individuals involved with the group neither wear uniforms nor are citizens of a state officially at war with the United States. This increases the likelihood that harmless civilians will be incorrectly identified as enemies — a problem that has only been heightened in recent years as al Qaeda has morphed into a confederation of loosely associated groups. Formal membership in al Qaeda is also an inadequate proxy for dangerousness. The members of such a decentralized organization are likely to commit to it and to the hostilities it wages in varying degrees. Moreover, terrorist suspects are likely to be detained longer than traditional combatants, and perhaps significantly so, since they have no state to represent them and help bring the conflict to an end.

Ironically, as Wittes notes, although the war model was helpful to the executive branch early on, it may have unduly constrained the White House as the war on terror progressed. The template forced the executive branch to justify its policies by reference to “enemy combatants,” “war crimes,” and “the theater of war” — categories that do not readily apply to a global struggle against a nonstate terrorist organization or advance the full range of goals that the executive branch wished to pursue. For example, a war model envisions that hostilities will eventually end, at which time enemy prisoners will be released, but in the conflict with al Qaeda, there may be a need to detain particularly dangerous operatives indefinitely. Meanwhile, as Wittes observes, “the farther into the conflict America waded and the less military the day-to-day operation of the conflict came to appear, the harder it became to sustain public support for [the administration’s] activities.”

Chris Borgen notes both reviewer and subject at Opinio Juris, writing “I am sure that this is an essay–and a book–that will interest many Opinio Juris readers. So check out the essay (if not the book) and start thinking-up some comments as Ben Wittes and others will be joining us next month for an Opinio Juris symposium on his book.” Given the coalescence of thought and expertise at Opinio Juris for the Boumediene Insta-Symposium, that’ll be one to watch out for.

I’ll just add, as a non-lawyer: I’ve been pouring over the voluminous legal scholarship that’s been generated one refereed article at a time since 2001, on problems of refuge, concealment warfare, distinction, embeddedness, extraterritoriality, etc. I’ve also been involved as a non-legal advisor to the New Battlefields, Old Laws project, and seen how difficult these issues are for some of the most qualified legal brains on the planet. So it’s with some relief that I look forward to reading a single text that deals with all these myriad issues comprehensively.

Bryan Finoki, on Baghdad’s Subtopic Rotor Space: in A Perpetual Motion War on Terror, he’s written a wonderful piece at Subtopia describing the silhouette of a Blackhawk’s rotors cast down upon Tahriat Square in Baghdad. The image, as Bryan notes, is unremarkable; its implications, on the other hand, are something else altogether, especially given his recent coverage of Blackwater operations within the US. Flavor:

Not knowing anything about this square or the neighborhoods that spoke off around it, it looks like any other shot of a routine aerial patrol cruising over the mean streets of Baghdad ‘round the clock for insurgent movements and suspicious activity. This spot, for all I know, could be anywhere in the city and a notorious mainspring for violence; or, it could be one of the most peaceful places on the planet, who knows?

And:

I guess what I see is not only a circular park but a representation of Iraq’s capital city laid out in its entirety in the form of some sort of urban timepiece; the way the paths cross and pass through and the trees line the periphery at even intervals spaced apart, it’s as if Baghdad has been reorganized into a kind of contemporary shadow clock haunted by the specter of foreign invasion and neverending conflict.

More:

Certainly, I’m reading way too much mumbo jumbo into this, but, there is the war machine lodged in the cradle of civilization; its precision blades rotating and sweeping violently across the face of modern Baghdad like Leviathan clockhands that have seized control of history and time itself. Somehow superior to the sun’s own momentum this shadow of war remains fixed at the center of Baghdad’s image and place in time right now. The Blackhawk’s crusading swords dissect the airspace of Iraq’s temporal sovereignty delivering a chronographic-like stoppage of time across the city as the Gods of War have seen fit to hack the moment – and as if the entire metropolis were completely calibrated to the time/space dials of U.S. occupation.

But, alas, the distant subtopic is universally dystopic:

Look at the photo once more though and you may find it’s not even Baghdad at all. Listen carefully. Overhead the Blackhawks are circling. Nearly everywhere now from San Diego to Afghanistan the skies are filled with these propellers and others just like them synchronizing the invisible gear trains of conflict across every time zone. They are the symbolic clockworks of a wartime economy, and this image to me just seems like a giant time stamp for it all.

The reference to clockwork is an interesting turn of phrase. In a forthcoming book on The Scientific Way of Warfare, Birkbeck College Lecturer Antoine Bousquet explores how technology and scientific metaphor has shaped military thinking over the last 200 years, and how that relates to the emergence of non-linearity in contemporary conflict.  Clocks and clockwork are the original metaphor governing earlier battlefields of modernity, a retrograde artifact in today’s cybernetic and chaoplexic battlespace. But I digress: there’s more to Bryan’s piece. Go read it.

This from Bobby Chesney, through his invaluable National Security Law List-Serve.

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* United States v. Amawi (N.D. Ohio June 13, 2007)

Jury convictions in a significant Ohio terrorism prosecution under § 956(a) last Friday. Not sure why this one didn’t make more headlines. From the press release:

A federal jury in the Northern District of Ohio has convicted three Ohio residents, Mohammad Zaki Amawi, 28, Marwan Othman El-Hindi, 45, and Wassim I. Mazloum, 27, of conspiring to commit terrorist acts against Americans overseas, including U.S. military personnel in Iraq, and other terrorism-related violations.

…

In February 2007, Amawi, El-Hindi, and Mazloum were charged in a superseding indictment with conspiring to kill or maim persons outside the United States, including U.S. military personnel serving in Iraq, and conspiring to provide material support to terrorists. Amawi and El-Hindi were also charged individually with distributing information regarding the manufacture or use of explosives, including suicide bomb vests and Improvised Explosive Devices (IEDs). Three additional counts in the superseding indictment were severed before trial and were not considered by this jury.

Today, the jury convicted the defendants on all counts. Amawi, a citizen of Jordan and the United States, and El Hindi, a naturalized U.S. citizen born in Jordan, were each convicted of one count of conspiring to kill or maim persons outside the United States, one count of conspiring to provide material support to terrorists, and two counts of distributing information on explosives. Mazloum, a U.S. legal permanent resident from Lebanon, was convicted of one count of conspiring to kill or maim persons outside the United States and one count of conspiring to provide material support to terrorists.

At trial, the government proved that all three defendants engaged in a conspiracy, beginning sometime prior to June 2004, to kill or maim persons outside the United States, including U.S. armed forces personnel in Iraq. As part of the conspiracy, the defendants conducted firearms training and accessed and copied instructions in the construction and use of explosives – including IEDs and suicide bomb vests. In addition, the defendants conspired to recruit others to participate in jihad training; researched and solicited funding sources for such training; and proposed sites for training in firearms, explosives and hand-to-hand combat to prospective recruits.

The government also proved that all defendants conspired to provide material support and resources, including personnel, money, explosives and laptop computers, to terrorists, including a co-conspirator in the Middle East, who had requested such materials for use against U.S. and coalition forces in Iraq. For example, among other activities, Amawi communicated with a contact in the Middle East on chemical explosives and traveled to Jordan in August 2005 with laptop computers intended for delivery for mujahideen “brothers” whom he learned were preparing to cross into Iraq.

The government also proved that Amawi knowingly distributed to others a guide describing the step-by-step process for manufacturing chemical explosive compounds, as well as a video entitled, “Martyrdom Operation Vest Preparation,” which described the step-by-step construction and use of a suicide bomb vest. Amawi distributed these materials with the intent that they be used for training others to commit a crime of violence, including the killing of U.S. nationals overseas.

The government further proved that El-Hindi knowingly distributed a slide show demonstrating the preparation and use of IEDs against apparent U.S. military vehicles and personnel, as well as the video entitled “Martyrdom Operation Vest Preparation.” El-Hindi distributed these materials with the intent that they be used for training others to commit a crime of violence, including the killing of U.S. nationals overseas.

…

“This case demonstrates the stark reality of home grown terrorism. If a plot like this can be developed in Toledo, OH, it can happen anywhere. With radical extremists in our midst, the FBI works day and night with our law enforcement and intelligence partners to pursue suspected terrorists and their supporters,” said C. Frank Figliuzzi, Special Agent in Charge, Cleveland Division, FBI.

The maximum statutory penalties for the offenses on which the defendants were convicted include: life imprisonment for conspiracy to kill or maim persons outside the United States; 20 years imprisonment for distributing information regarding explosives (each count); and 15 years imprisonment for conspiracy to provide material support to terrorists.

Marc Lynch at Abu Ardvaark points out the current issue of Perspectives on Politics (the POP in question), which features a roundtable discussion of the not-so-new-anymore U.S. Army/Marine Corps Counterinsurgency Field Manual 3-24, or COIN FM. The Review Symposium, entitled "The New U.S. Army/Marine Corps Counterinsurgency Field Manual as Political Science and Political Praxis",  features comments from Jeffrey C. Isaac, Stephen Biddle, Stathis N. Kalyvas, Wendy Brown, and Douglas A. Ollivant. Must go read.