06 August 2009
Paul Mundt is a long-time friend from my Special Forces days. Paul emailed today regarding some disturbing developments on the home front. He emailed the following to the Special Forces Association. The reader should find it self-explanatory. I've known Paul for a long time. Considering the source, my instinct is that this topic is introduced with great merit.
The following email was written by Paul Mundt and transmitted to the Special Forces Association:
Thank you in advance, Paul
Reasons to have a representative sample of former special forces personnel participate as friends of the court in the United States Court of Appeals’ review of Judge Bates’ April 2, 2009 decision in the Maqaleh case
In 2008, the Supreme Court decided the Boumediene case, which ruled that Guantanamo Bay detainees are entitled to review by United States district courts of the government’s decision to detain them as enemy combatants. In justifying this decision, which overturns longstanding Supreme Court precedent and hundreds of years of prior practice, the Court’s majority relied on a multi-factor test, one of the factors being the extent of the "practical difficulties," caused by making habeas review available to captured enemy combatants.
In April of this year, Judge Bates (a federal district court judge in DC), applying Boumediene's framework, extended the habeas process beyond Guantanamo Bay, and to several Bagram-based detainees who were originally captured outside Afghanistan. Judge Bates also considered, but at least for now, rejected the option of extending habeas to all Bagram-based detainees, including those captured in Afghanistan, stating that to do so would be viewed as an affront to the Karzai government and harmful to U.S./Afghan relations. While the media praised Judge Bates’ “moderation”, the Maqaleh decision, in addition to being legally flawed, has negative implications for the U.S. ability to conduct successful combat operations in Afghanistan and elsewhere.
What Needs To Be Done Going Forward
The Maqaleh case could have been argued much more effectively by the Department of Justice (“DOJ”). Although DOJ made legally correct arguments, the government’s lawyers neglected to emphasize the disastrous policy consequences of the ruling sought by the detainees and also failed to win in the court of public opinion. As courts take an increasing role in micromanaging military operations, these considerations have only become more important.
When it came to "practical difficulties" prompted by the extension of habeas to even a subset of Bagram-held detainees, all the DOJ told Judge Bates was that conducting habeas hearings in a war zone would be burdensome to the government. This is true, but not enough. The Court of Appeals needs to understand that extending habeas to people captured through special forces operations (which is the most likely scenario for captures outside of Afghanistan) will cause severe "practical difficulties." The teams/personnel effecting these captures would have to collect forensic and other evidence sufficient to enable DOJ to prevail in the habeas process, often under fire. All things being equal, complying with these requirements would cause special forces personnel to spend more time in the target area and complicate operational planning, increasing the prospects of additional casualties and even mission failures.
Another consequence of the Maqaleh case will be a reduction in the tempo and effectiveness of special forces operations in the Afghan theater. In this regard, we understand that FBI agents are now being tasked to join special force teams when they go out on missions, both to help in evidence-gathering and to read Miranda warnings to captured enemy combatants. We also understand that steps have been taken to ensure that no enemy combatants captured outside of Afghanistan are brought into Afghanistan. These steps are being taken even while the government is appealing Judge Bates’ decision. This underscores just how much a decision by a single district court judge may impair military operations.
While challenging Judge Bates’ ruling, the Obama Administration is unwilling to raise the difficulties of having to treat special forces operations like police raids. For ideological reasons, it can never admit that applying the habeas framework to any aspect of wartime operations is other than a cost-free exercise. Hence, this point needs to be raised by “friends of the court” or amici.
Although we have written numerous amici briefs in post-September 11th national security cases, these have typically been on behalf of law professors, law practitioners and former government policy officials. In this case, however, the most compelling – and therefore the most difficult to ignore – amici would be former special forces personnel. The goal to explain to the United States Court of Appeals for the D.C. Circuit (which is reviewing Judge Bates’ decision) and, ultimately, to the Supreme Court, that additional American combat casualties and reduced effectiveness of special forces operations will result unless Judge Bates’ mistaken Maqaleh decision is reversed. While we cannot guarantee success at either the D.C. Circuit level (a lot depends on which judges are assigned the case) or at the Supreme Court level, we believe that a strong amicus brief would be taken very seriously by the Court.
Process and Timeline
Our amicus brief must be filed by September 7. The government’s brief is due on August 31; since we are supporting the government’s position that Judge Bates’ decision should be overturned, we have to file within 7 days of the government’s filing. We will draft the brief – it will be short and focused on the practical consequences of the Maqaleh decision – and circulate it to all participating amici for their review. The front part of the brief will have to include “amici qualifications”. This is a section that serves to tell the court who the amici are.
We would like to include as much detail as possible. Length of service, rank attained, medals/awards, participation in combat operations and so forth are among the information we would like to list for each amici. We would certainly not include any sensitive operational details or any past mission-specific descriptions. Indeed, to make sure that everybody is comfortable, we would ask each amicus to present us with the first draft of the language describing his qualifications.