Counterterrorism and Federal Laws

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Citizen Convicted in Iraq and held by MNF-I

By filing a petition for a Writ of Habeas Corpus in U.S. federal court, the detainee is challenging the government's right to detain her, forcing the government to produce her and produce the reasons she is being detained. The issues for the petitioner under the Military Commissions Act of 2006 might be whether her detention violates the U.S. Constitution or an outright challenge to the conviction. The issues for the government will include whether the court has jurisdiction to decide the habeas corpus petition because this citizen was convicted in a foreign country by one of the foreign country's courts and whether a U.S. court has the right to review the foreign court's decision. Since the crime is simple kidnapping, national safety/security is not an issue. The U.S. Constitution protects the right of habeas corpus except when public safety requires its suspension because of rebellion or invasion.

The court should rule against the petitioner and deny the writ of habeas corpus. The case of Munaf v. Geren (No. 06-1666, 482 F. 3d 582; No. 07-394, 479 F. 3d 1, vacated and remanded) is a case very much like this case. An American citizen voluntarily traveling in a foreign country was convicted of crimes in that country's courts and according to that country's laws. He was held by the Multi-National Force Iraq ("MNF-I") and his sister filed a petition for a writ of Habeas Corpus. The court said the petitioner doesn't simply want to be released, which is what habeas corpus does. What the petitioner wants is a court order shielding him from the Iraqi government, which is making petitioner answer for crimes committed in Iraq. Quoting Neely v. Henkel (180 U.S. 109, 123 (1901), the Munaf court said, "When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people."

2. Girl Detained by Executive Order

Executive Order 13567 of March 7, 2011 determines "Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force." The issues are: whether she is designated for continued law of war detention; or whether she was referred for prosecution, unless there are already charges or a conviction against her; and whether the executive branch may, in its discretion, use detention authority in her case.

The detainee can be held because the government believes she has important information to avoid a major catastrophic attack and therefore detaining her will protect against a significant threat to the security of the United States. The detainee can be held under Executive Order 13567 of March 7, 2011, which determines "Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force" and detention in other geographic areas.

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She can be held for a period of up to 1 year before a review; then the Periodic Review Board has 30 days after their final decision about her continued detention to give her a written decision; then her continued detention will be subject to a file review every 6 months in the years between full reviews. The U.S. Attorney General and U.S. Secretary of Defense would decide the process guidelines for the review. The Periodic Review Board would ultimately hear her case and conduct the initial review.

The girl's defense is that her continued detention is not warranted under Section 2 of Executive Order 13567 because her continued detention is not necessary to protect against a significant threat to the security of the United States. For example, if she can convince the Periodic Review Board that she does not have important information to avoid a major catastrophic attack and that she really is being held only because of her head scarf, which is not a significant threat to the security of the United States, she could be set free.

3. Doe's Challenge to Surveillance Based on Fourth Amendment Grounds

I would analyze this case carefully because there are a lot of complex facts. I would reread the Fourth Amendment protections against illegal search and seizures and the case law explaining it, especially after 9/11. I would diagram Doe's case for every instance when the government searched and seized Doe's "person, houses, papers, and effects" and draw a diagram to chart the factors that would make one type of seized evidence admissible and another type of seized evidence inadmissible. I would read the case law in Chapter 6 detailing when surveillance is or is not a violation of the Fourth Amendment, particularly the Patriot Act Amendments of the Foreign Intelligence Surveillance Act. I would also explore other Constitutional rights about criminal prosecutions, Entrapment by authorities trying to trick Doe, the 5th Amendment's right against self-incrimination when reviewing Doe's statements to anybody. I would also look at the Sixth Amendment's right to a lawyer because Doe says he was denied access to one, and Miranda warnings should be reviewed because I don't see that he got the warnings. Also, I would analyze his claim about confessing under torture according to 18 U.S.C. 2340(1) because that would affect the voluntariness and admissibility of his confession at trial.

4. Different Standard of Probable Cause for National Security Investigations

In U.S. v. Keith, 407 U.S. 297 (1972) the Supreme Court unanimously decided that the government needs a warrant before electronic surveillance for "domestic security." Justice Powell said there might be different standards when the investigation involves national security, instead. I would argue that this is not a matter of national security. Doe was a computer geek trying to impress a girl and had no intention of controlling planes or blowing up anything. Then he was entrapped by a real terrorist who.....

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