Human rights' new DOJ home

Posted: 31 Mar 2010 03:16 AM PDT

Brand-new in D.C.:
The Human Rights and Special Prosecutions Section, established within the U.S. Department of Justice yesterday.
HRSP, as it's to be known, is intended to combat human rights violations and to endeavor to bring war criminals to account. Its approval by Congress last week culminated plans 1st announced by U.S. Assistant Attorney General Lanny A. Breuer during testimony last October 6 before the Senate Judiciary Subcommittee on Human Rights and the Law.
This new section within the Criminal Division was formed through the merger of 2 existing DOJ units:
1st, the Domestic Security Section, which since 2002 has concentrated on international human rights violations, offenses brought under the under the Military Extraterritorial Jurisdiction Act and related statutes, and and complex immigration and border crimes. The section worked alongside federal prosecutors in the Southern District of Florida in a case about which we've posted: the 1st-ever conviction, secured in 2008 against Boston-born Chuckie Taylor (below) (image credit), son of Liberia's ex-President, under the United States' extraterritorial torture statute.
2d, the Office of Special Investigations, formed in 1979 to investigate and prosecute Nazi-era crimes. In 2004 OSI's mandate was expanded to citizenship revocation proceedings against perpetrators of genocide, official torture, and extrajudicial killing in other contexts. Among its notable cases is that of Ukraine-born John Demjanjuk (bottom) (photo credit), now on trial in Munich after having been stripped of U.S. citizenship and sent to Germany.
Leading HRSP is Teresa L. McHenry. Most recently chief of the Domestic Security Section, McHenry, also has served as head of DOJ's Alien Smuggling Task Force, as a trial attorney in the Organized Crime and Racketeering Section, as an Assistant U.S. Attorney in the District of Columbia, and as a prosecutor at the International Criminal Tribunal for the former Yugoslavia.
Meanwhile, Eli M. Rosenbaum becomes the Director of Human Rights Enforcement Strategy and Policy. Since 1995, he's led the Office of Special Investigations; before that, he was a corporate litigation associate with Simpson Thacher in Manhattan and general counsel of the World Jewish Congress.
Looking forward to good works from this new section.

Immunity for the UN Regarding Srebrenica

Posted: 30 Mar 2010 02:58 AM PDT

by Kevin Jon Heller

AP reports that a Dutch court of appeals has affirmed a lower court ruling that held the UN could not be sued for its failure to protect Bosnian civilians in Srebrenica:

Appeals judges have ruled that relatives of victims of Europe’s worst massacre since World War II cannot sue the United Nations for compensation in a Dutch court.

Lawyers for the family members have vowed to take the case to the Dutch Supreme Court and the European Court of Justice if necessary.

Tuesday’s ruling says that the U.N. has immunity from prosecution enshrined in international conventions that established the world body.

The appeals decision upholds a 2008 ruling by the Hague District Court.

Some 8,000 Muslim men were murdered in July 1995 by Serb forces who overran the Srebrenica enclave in Bosnia despite the presence of Dutch U.N. peacekeepers.

A group called the Mothers of Srebrenica wants to sue the U.N. and the Netherlands.

The UN’s actions in Srebrenica were shameful, but this decision makes sense. Forcing the UN to pay damages for failed peacekeeping missions, now matter how egregious its errors, will only encourage the UN to allocate its resources elsewhere. And flawed peacekeeping is better than no peacekeeping at all.

Obama to Open Offshore Areas to Oil Drilling for First Time

March 30, 2010, NYtimes

By JOHN M. BRODER

WASHINGTON — The Obama administration is proposing to open vast expanses of water along the Atlantic coastline, the eastern Gulf of Mexico and the north coast of Alaska to oil and natural gas drilling, much of it for the first time, officials said Tuesday.

The proposal — a compromise that will please oil companies and domestic drilling advocates but anger some residents of affected states and many environmental organizations — would end a longstanding moratorium on oil exploration along the East Coast from the northern tip of Delaware to the central coast of Florida, covering 167 million acres of ocean.

Under the plan, the coastline from New Jersey northward would remain closed to all oil and gas activity. So would the Pacific Coast, from Mexico to the Canadian border.

The environmentally sensitive Bristol Bay in southwestern Alaska would be protected and no drilling would be allowed under the plan, officials said. But large tracts in the Chukchi Sea and Beaufort Sea in the Arctic Ocean north of Alaska — nearly 130 million acres — would be eligible for exploration and drilling after extensive studies.

The proposal is to be announced by President Obama and Interior Secretary Ken Salazar at Andrews Air Force Base in Maryland on Wednesday, but administration officials agreed to preview the details on the condition that they not be identified.

The proposal is intended to (1) reduce dependence on oil imports, (2) generate revenue from the sale of offshore leases and (3) help win political support for comprehensive energy and climate legislation.

But while Mr. Obama has staked out middle ground on other environmental matters — supporting nuclear power, for example — the sheer breadth of the offshore drilling decision will take some of his supporters aback. And it is no sure thing that it will win support for a climate bill from undecided senators close to the oil industry, like Lisa Murkowski, Republican of Alaska, or Mary L. Landrieu, Democrat of Louisiana.

The Senate is expected to take up a climate bill in the next few weeks — the last chance to enact such legislation before midterm election concerns take over. Mr. Obama and his allies in the Senate have already made significant concessions on coal and nuclear power to try to win votes from Republicans and moderate Democrats. The new plan now grants one of the biggest items on the oil industry’s wish list — access to vast areas of the Outer Continental Shelf for drilling.

But even as Mr. Obama curries favors with pro-drilling interests, he risks a backlash from some coastal governors, senators and environmental advocates, who say that the relatively small amounts of oil to be gained in the offshore areas are not worth the environmental risks.

The Obama administration’s plan adopts some drilling proposals floated by President George W. Bush near the end of his tenure, including opening much of the Atlantic and Arctic Coasts. Those proposals were challenged in court on environmental grounds and set aside by President Obama shortly after he took office.

Unlike the Bush plan, however, Mr. Obama’s proposal would put Bristol Bay, home to major Alaskan commercial fisheries and populations of endangered whales, off limits to oil rigs.

Actual drilling in much of the newly opened areas, if it takes place, would not begin for years.

Mr. Obama said several times during his presidential campaign that he supported expanded offshore drilling. He noted in his State of the Union address in January that weaning the country from imported oil would require “tough decisions about opening new offshore areas for oil and gas development.”

Perhaps in anticipation of controversy, the new policy has been closely held within the administration. White House and Interior Department officials began briefing members of Congress and local officials in affected states late Tuesday.

It is not known how much potential fuel lies in the areas opened to exploration, although according to Interior Department estimates there could be as much as a three-year supply of recoverable oil and more than two years’ worth of natural gas, at current rates of consumption. But those estimates are based on seismic data that is, in some cases, more than 30 years old.

The first lease sale off the coast of Virginia could occur as early as next year in a triangular tract 50 miles off the coast that had already been approved for development but was held up by a court challenge and additional Interior Department review, officials said.

But as a result of the Obama decision, the Interior Department will spend several years conducting geologic and environmental studies along the rest of the southern and central Atlantic Seaboard. If a tract is deemed suitable for development, it is listed for sale in a competitive bidding system. The next lease sales — if any are authorized by the Interior Department — would not be held before 2012.

The eastern Gulf of Mexico tract that would be offered for lease is adjacent to an area that already contains thousands of wells and hundreds of drilling platforms. The eastern Gulf area is believed to contain as much as 3.5 billion barrels of oil and 17 trillion cubic feet of gas, the richest single tract that would be open to drilling under the Obama plan.

Drilling there has been strongly opposed by officials from both political parties in Alabama and Florida who fear damage to coastlines, fisheries, popular beaches and wildlife. Interior Department officials said no wells would be allowed within 125 miles of the Florida and Alabama coasts, making them invisible from shore.

The Interior Department and the Pentagon are discussing possible restrictions on oil and gas operations in some areas off Virginia and Florida, home to some of the nation’s biggest Navy and Air Force facilities. States are also likely to claim rights to the revenues from oil and gas deposits within 3 to 12 miles of shore and to some portion of lease proceeds, officials said.

Mr. Salazar developed the offshore drilling plan after conducting four public meetings over the past year in Alaska, California, Louisiana and New Jersey. The Interior Department received more than 500,000 public comments on the issue.

Mr. Salazar has said that he hoped to rebalance the nation’s oil and gas policy to find a middle ground between the “drill here drill now” advocacy of many oil industry advocates and the preservationist impulse to block oil exploration beneath virtually all public lands and waters.

He has called the offshore drilling plan a new chapter in the nation’s search for a comprehensive energy policy that can open new areas to oil and gas development “in the right way and in the right places,” according to an aide.

In many of the newly opened areas, drilling would begin only after the completion of geologic studies, environmental impact statements, court challenges and public lease sales. Much of the oil and gas may not be recoverable at current prices and may be prohibitively expensive even if oil prices spike as they did in the summer of 2008.

At the Wednesday event, Mr. Obama is also expected to announce two other initiatives to reduce oil imports, an agreement between the Pentagon and the Agriculture Department (1) to use more biofuels in military vehicles and (2) the purchase of thousands of hybrid vehicles for the federal motor pool.

ICC ... investigation on crimes against humanity ... the situation in Kenya

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http://www.icc-cpi.int/NR/exeres/D81AA5AF-CD76-4B3C-A4FC-AA7819569B44.ht
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Press Release: 31.03.2010

ICC judges grant the Prosecutor’s request to launch an investigation on crimes against humanity with regard to the situation in Kenya

ICC-CPI-20100331-PR512

Situation: Kenya

On 31 March 2010, Pre-Trial Chamber II, by majority, granted the Prosecutor’s request to commence an investigation on crimes against humanity allegedly committed in the Republic of Kenya.

In the decision, the majority finds that upon examination of the available information, bearing in mind the nature of the proceedings under article 15 of the Statute, the low threshold applicable at this stage, as well as the object and purpose of this decision, the information available provides a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory. The majority moreover found that all criteria for the exercise of the Court’s jurisdiction were satisfied, to the standard of proof applicable at this stage.

The majority therefore granted the Prosecutor’s request, and allowed him to commence an investigation covering alleged crimes against humanity committed during the events that took place between 1 June 2005 (i.e., the date of the Statute’s entry into force for the Republic of Kenya) and 26 November 2009 (i.e., the date of the filing of the Prosecutor’s Request).

In his dissenting opinion, Judge Hans-Peter Kaul held that the crimes committed in the Republic of Kenya do not qualify as crimes against humanity under the jurisdictional ambit of the Statute. In particular, Judge Kaul disagreed with the majority on the requirements of a “State or organizational policy” as set out in Article 7(2)(a) of the Statute. Given the fact that the fundamental rationale of crimes against humanity as codified in Article 7 of the Statute was to protect the international community against the extremely grave threat emanating from such policies, Judge Kaul concluded that it had to be adopted either by a State or at the policy-making level of a State-like organization. Upon analysis of the supporting material, Judge Kaul concluded that there was no reasonable basis to believe that the crimes committed on the territory of the Republic of Kenya in relation to the post-election violence of 2007-2008 were committed in an attack against a civilian population pursuant to or in furtherance of a policy stemming from a State or an organization. Hence, Judge Hans-Peter Kaul felt unable to authorize the commencement of an investigation in the Republic of Kenya.

Background information

The Republic of Kenya ratified the Rome Statute on 15 March, 2005 becoming a State Party on 1st June 2005. According to the Rome Statute, the Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party.

On 6 November 2009, the Presidency of the International Criminal Court (ICC) issued a decision assigning the situation in the Republic of Kenya to Pre-Trial Chamber II composed of Judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser. If the Prosecutor intends to commence an investigation proprio motu in the Kenyan situation, he must first obtain authorisation from this Chamber. That is what the Prosecutor sought for on 26 November 2009 filing his request together with 39 appended annexes in approximately 1,500 pages.

Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya

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Breaking News: The ICC Approves Kenya Investigation

Posted: 31 Mar 2010 09:52 AM PDT

Pre-Trial Chamber II of the ICC has authorized the first investigation by the Prosecution proprio motu (on his own motion) into the post-election violence of 2007-2008 in Kenya portrayed in this video. The decision, made pursuant to article 15(4) of the Rome Statute, responds to the Prosecutor’s "Request for Authorisation of an Investigation Pursuant to Article 15" submitted on November 26, 2009.

Followers of the Court do not need to be reminded that Article 15 was one of the most controversial provisions of the ICC, with some states fearing that the Prosecutor would abuse his proprio motu powers by initiating politically motivated or frivolous investigations. To respond to these concerns, the drafters of the ICC Statute added a procedural hurdle relevant to Article 15 investigations only—the Prosecutor must with supporting material and victims’ representations convince a Pre-Trial Chamber that there is “a reasonable basis to proceed” at a very early stage in the investigation. This is the lowest evidentiary standard provided for in the Statute given the preliminary nature of the proceedings. Para. 27. In exercising this supervisory function, the PTC concluded that it should also consider the admissibility of the case as set forth in Article 53(1)(b) of the Statute.

With respect to the first requirement—that there is a reasonable justification for a belief that a crime falling within the subject matter, temporal, personal, and territorial jurisdiction of the Court has been or is being committed—the PTC found that there was a reasonable basis to believe that crimes against humanity were committed in Kenya. Most interesting in this regard is the PTC’s discussion of the requirement that the attack against a civilian population be pursuant to a State or organizational policy. The PTC noted that the attacks in questions tended to be ethnically-based and politically-motivated. Many attacks were between the key political parties in Kenya, such as the Orange Democratic Movement (which supported Raila Odinga in the 2007 presidential elections) and the Party of National Unity (which supported Mwai Kibaki), or were initiated by the police (left). The PTC noted that while some of the post-election violence was spontaneous or opportunistic,


a number of the attacks were planned, directed or organized by various groups including local leaders, businessmen and politicians associated with the two leading political parties, as well as by members of the police force. Para. 117.
The PTC determined that the crimes against humanity in question constituted murder, rape and other sexual violence, deportation or forcible transfer of the population, and other inhumane acts. In particular, the PTC noted that
  • At least 1,000 people were killed, over 3,000 injured, 900 raped, and 350,000 displaced between December and February 2007-8. Paras. 131, 190.

  • The Nairobi Women’s Hospital alone treated 443 survivors of sexual and gender-based violence during the relevant period.

  • Many of these cases involved gang rapes and aggravated brutality and were conducted in front of members of the victim’s family. Para. 154.

  • Inhumane acts included traumatic circumcisions and genital amputations, amputations, and other non-lethal injuries. Paras. 167-171.

With respect to the second requirement—Articles 17/18 admissibility, which invokes both complementarity and gravity—the PTC concluded that it would focus on potential cases that could be brought against potential defendants implicated in particular crimes within the Court’s jurisdiction and whether the relevant state is conducting national proceedings in relation to those crimes. Paras. 51-52. In finding the situation to be admissible, the PTC considered the following:

The PTC further attempted to pin down the concept of gravity by noting that

it is not the number of victims that matter but rather the existence of some aggravating or qualitative factors attached to the commission of crimes … [such as]
  • the scale of the alleged crimes (including assessment of geographical and temporal intensity);

  • the nature of the unlawful behaviour or of the crimes allegedly committed;

  • the employed means for the execution of the crimes (i.e., the manner of their commission); and

  • the impact of the crimes and the harm caused to victims and their families.

Throughout this assessment, the PTC cited from the representations of the victims to gauge the gravity of the crimes alleged. Para. 196. The PTC noted the particular brutality of many of the attacks alleged. Paras. 193, 199. In addition, many rape victims contracted HIV and were abandoned by their families and many people lost their homes and possessions. Para. 195. The PTC concluded that the crimes alleged satisfy the elements of scale and noted with approval that the Prosecutor intended to focus on those in high-ranking positions who planned, incited, financed, or otherwise contributed to the organization of violence.

Although the Prosecutor’s request had focused on the immediate post-election period, the decision authorized him to investigate events since June 1, 2005 to the extent they relate to the crimes against humanity committed. Para. 205.

Judge Hans-Peter Kaul (Germany, at right)) dissented from the authorization to commence an investigation on the ground that the acts alleged did not constitute crimes against humanity in that they were not committed as part of an “attack against any civilian population” “pursuant to or in furtherance of a State or organizational policy to commit such attack.” Para. 4. He emphasized that in his estimation the ICC is not the right forum to investigate the crimes alleged and expressed concern that the majority opinion blurred the demarcation line between domestic crimes, prosecutable in domestic courts, and international crimes, of concern to the entire international community. Paras. 6, 9. Broadening the Court’s jurisdiction in this regard infringes upon state sovereignty, will generate perceptions of arbitrariness when the Court does not tackle all such situations, and risks turning the Court into

a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility. Para. 10.

This ruling comes on the heels of the resignation of Betty Murungi (right) from her position as Co-Chair of the Truth Justice & Reconciliation Commission (she did not relinquish her spot on the Commission), about which we’veblogged before. Murungi’s protest comes after she and our friend and colleague Ron Slye (the only non-African on the Commission) publicly asked the Chair of the Commission, Bethuel Kiplagat (also right), to step down from the Commission, because he has been named as a potential witness to the murder of former Foreign Affairs Minister Robert Ouko during the Moi regime and because certain questionable property transactions involving him fall within the Commission’s mandate. The ICC did not mention the current stalemate with the TJRC as a ground for its admissibility ruling, but the unwillingness of Kiplagat to step aside so that the Commission can continue its work is consistent with the impression that there are elements within Kenya who would rather see impunity than accountability.



U.N. Rejects Export Ban on Atlantic Bluefin Tuna

March 18, 2010

Delegates at a United Nations conference on endangered species in Doha, Qatar, soundly defeated American-supported proposals on Thursday to ban international trade inbluefin tuna and to protect polar bears.

Atlantic and Mediterranean stocks of bluefin, a fish prized especially by Japanese sushi lovers for its fatty belly flesh, have been severely depleted by years of heavy commercial fishing, while polar bears are considered threatened by hunting and the loss of sea ice because of global warming. The United States tried unsuccessfully to persuade delegates to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or Cites, to provide strong international protection for the two species.

“It wasn’t a very good day for conservation,” said Juan Carlos Vásquez, a spokesman for the United Nations organization. “It shows the governments are not ready to adopt trade bans as a way to protect species.”

Delegates voted down the proposal to protect bluefin by 68 to 20, with 30 abstentions. The polar bear measure failed by 62 to 48, with 11 abstentions.

The rejection of the bluefin proposal was a clear victory for the Japanese government, which had vowed to go all out to stop the measure or else exempt itself from complying with it. Japan, which consumes nearly 80 percent of the bluefin catch, argued that the International Commission for the Conservation of Atlantic Tunas, or Iccat, should be responsible for regulating the fishery, not the United Nations. European Union nations, whose fleets are most responsible for the overfishing of bluefin, abstained from voting in the second round after their own watered-down proposal was rejected.

American officials expressed disappointment in the vote, but said they would keep trying in various international forums to protect the tuna and the bears.

“The bluefin tuna is an iconic fish species,” said Tom Strickland, assistant secretary of the interior for fish and wildlife and parks. “The science is compelling, the statistics are dramatic. That species is in spectacular decline.”

He said that the United States had recently declared the polar bear population to be threatened by loss of its sea ice habitat to melting. The Interior Department, he said, had designated 200,000 acres of Arctic ice as critical habitat in need of protection.

“We believe the bear is under great pressure,” he said from Washington. “It should not be traded internationally.”

Canada, Greenland and several indigenous communities, which led the effort to defeat the proposal to protect the polar bear, contended that the bear population was healthy and that it could sustain limited hunting and trade in pelts and body parts.

While there is near-universal agreement that the bluefin stocks are in danger, Japan’s argument resonated with other fishing nations, which were uneasy about what would have been the first intrusion of the endangered species convention into a major commercial fishery.

But Iccat’s own record on managing the fish is widely seen as unsuccessful: the bluefin population has declined by roughly 80 percent since 1970. And while the organization, which has no effective enforcement mechanism, can set quotas, it has set the catch above the level that its own scientists say is safe to ensure the health of the species.

A senior Japanese official said that his country shared the international concern about bluefin stocks, but that the Atlantic fisheries agency was the proper body to regulate its trade, not the United Nations convention.

Masanori Miyahara, chief counselor of the Fisheries Agency of Japan, said after the vote that Japan would now be under pressure to abide by Iccat’s new, lower quotas for bluefin harvesting, according to The Associated Press. Iccat moved in November to reduce the bluefin quota to 13,500 tons from 22,000 tons for this year, and said that if stocks were not rebuilt by 2022 it would consider closing some areas.

“I feel more responsibility to work for the recovery of the species,” Mr. Miyahara said, The A.P. reported. “So it’s kind of a heavy decision for Japan, too.”

Thursday’s vote was the second time Japan had defeated a proposal to protect bluefin. A similar proposal by Sweden failed at the 1992 Cites meeting in Kyoto, Japan.

Mr. Vásquez said it was technically possible for member nations to revisit the votes before the conference ended next Thursday, but that there was little likelihood that either measure would be resurrected.

Attention at the Doha conference will now turn to proposals to protect sharks and elephants.

The United States, the Micronesian state of Palau and the European Union are among nations proposing that several species of sharks be listed under Appendix 2 of the convention, which would require that governments monitor trade in the species but would not entail an outright ban. But with Japan leading the opposition to any United Nations involvement in the regulation of marine species, and China, the largest consumer of shark fins, strongly opposed, the prospects of a deal appear remote.

The elephant talks will center on a proposal by Tanzania and Zambia to resume trade in elephant ivory, but Kenya and some other African nations argue that trade will bring only more poaching.

David Jolly reported from Paris, and John M. Broder from Washington.


Obama Team Split on Tactics Against Terror

New York Times (NY) March 29, 2010 Obama Team Split on Tactics Against Terror
CHARLIE SAVAGE

WASHINGTON -- Senior lawyers in the Obama administration are deeply divided over some of the counterterrorism powers they inherited from former President George W. Bush, according to interviews and a review of legal briefs.

The rift has been most pronounced between top lawyers in the State Department and the Pentagon, though it has also involved conflicts among career Justice Department lawyers and political appointees throughout the national security agencies.

The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.

''Beyond the technical legal issues, this debate is about the fundamental question of whom we are at war with,'' said Noah Feldman, a Harvard law professor who specializes in war-power issues. ''The two problems most plaguing Obama in the war on terrorism are trials for terrorists and taking the fight beyond Afghanistan to places like Pakistan and Yemen. This issue of whom we are at war with defines both of them.''

In the years after the 9/11 attacks, Mr. Bush claimed virtually unlimited power as commander in chief to detain those he deemed a threat -- a view so boundless that his Justice Department once told a court that it was within the president's lawful discretion to imprison as an enemy combatant even a ''little old lady in Switzerland'' who had unwittingly donated to Al Qaeda.

But President Obama and his team, which criticized such claims as an overreach, have sought to demonstrate that the executive branch can wage war while also respecting limits imposed on presidential power by what they see as the rule of law.

In March 2009, the Obama legal team adopted a new position about who was detainable in the war on terrorism -- one that showed greater deference to the international laws of war, including the Geneva Conventions, than Mr. Bush had. But what has not been known is that while the administration has stuck to that broad principle, it has been arguing over how to apply the body of law, which was developed for conventional armies, to a war against a terrorist organization.

An examination of that conflict offers rich insight into how the team of former law professors and campaign lawyers, nearly all veterans of the Clinton administration, is shaping important policies under Mr. Obama.

In February 2009, just weeks after the inauguration, John D. Bates, a federal judge overseeing several cases involving detainees in Guantanamo Bay, Cuba, asked a provocative question: Did the new administration want to modify Mr. Bush's position that the president could wield sweeping powers to imprison people without trial as wartime detainees?

Career Justice Department lawyers handling Guantanamo lawsuits feared that rolling back the Bush position might make it harder to win. And the new acting head of the department's Office of Legal Counsel -- David Barron, a Harvard law professor and co-author of a lengthy law review critique of Bush administration claims that the commander in chief can override statutes -- worried that Judge Bates had given them too little time to devise the answer.

But the White House counsel, Greg Craig, a campaign adviser to Mr. Obama who had been a foreign policy official in the Clinton administration, saw this as an important opportunity to demonstrate a break with Mr. Bush. And at a White House meeting, Mr. Obama weighed in, declaring that he did not want to invoke unrestrained commander-in-chief powers in detention matters.

With the president's directions in hand, Mr. Obama's Justice Department came back on March 13, 2009, with a more modest position than Mr. Bush had advanced. It told Judge Bates that the president could detain without trial only people who were part of Al Qaeda or its affiliates, or their ''substantial'' supporters. The department rooted that power in the authorization granted by Congress to use military force against the perpetrators of the Sept. 11 attacks. And it acknowledged that the scope and limits of that power were defined by the laws of war, as translated to a conflict against terrorists.

But behind closed doors, the debate flared again that summer, when the Obama administration confronted the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia -- far from the active combat zone -- and was being held without trial by the United States at Guantanamo. Mr. Bensayah was accused of facilitating the travel of people who wanted to go to Afghanistan to join Al Qaeda. A judge found that such ''direct support'' was enough to hold him as a wartime prisoner, and the Justice Department asked an appeals court to uphold that ruling.

The arguments over the case forced onto the table discussion of lingering discontent at the State Department over one aspect of the Obama position on detention. There was broad agreement that the law of armed conflict allowed the United States to detain as wartime prisoners anyone who was actually a part of Al Qaeda, as well as nonmembers who took positions alongside the enemy force and helped it. But some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters.

That view was amplified after Harold Koh, a former human-rights official and Yale Law School dean who had been a leading critic of the Bush administration's detainee policies, became the State Department's top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States' position in the Bensayah case.

Mr. Koh found himself in immediate conflict with the Pentagon's top lawyer, Jeh C. Johnson, a former Air Force general counsel and trial lawyer who had been an adviser to Mr. Obama during the presidential campaign. Mr. Johnson produced his own secret memorandum arguing for a more flexible interpretation of who could be detained under the laws of war -- now or in the future.

In September 2009, national-security officials from across the government packed into the Office of Legal Counsel's conference room on the fifth floor of the Justice Department, lining the walls, to watch Mr. Koh and Mr. Johnson debate around a long table. It was up to Mr. Barron, who sat at the head of the table, to decide who was right.

But he did not. Instead, days later, he circulated a preliminary draft memorandum stating that while the Office of Legal Counsel had found no precedents justifying the detention of mere supporters of Al Qaeda who were picked up far away from enemy forces, it was not prepared to state any definitive conclusion.

So with no consensus, the legal team decided on a tactical approach. For as long as possible they would try to avoid that hard question. They changed the subject by instead asking courts to agree that people like Mr. Bensayah, looked at from another angle, had performed functions that made them effectively part of the terrorist organization -- and so were clearly detainable.

The appeals court has not yet ruled on Mr. Bensayah's case. But the hours and effort that high-level officials expended on wrestling over adjustments to the reasoning in his case -- only to reach the same outcome, that he was detainable without trial -- dovetailed with a pattern identified by critics as varied as civil libertarians and former Bush lawyers.

''I think the change in tone has been important and has helped internationally,'' said John B. Bellinger III, a top Bush era National Security Council and State Department lawyer. ''But the change in law has been largely cosmetic. And of course there has been no change in outcome.''

But at a recent American Bar Association (ASIL) event, Mr. Koh argued that the administration's changes -- including requiring strict adherence to anti-torture rules and ensuring that all detainees are being held pursuant to recognizable legal authorities -- have been meaningful. The United States, he said, can now defend its national-security policies as fully compliant with domestic and international law under ''common and universal standards, not double standards.''

''We are not saying that we don't have to fight battles,'' he said. ''We're just saying that we should fight those battles within the framework of law.''

Last week, in another speech, Mr. Koh also for the first time outlined portions of the administration's legal rationale for targeted killings using drone strikes, which some scholars have criticized. His remarks, however, focused on issues like whether it was lawful to single out specific enemy figures for killing -- not defining the limits of who may be deemed an enemy.

But Mr. Feldman, the Harvard professor, said the detention debate also had ''serious consequences'' for the targeted killings policy because, ''If we're at war with you, then we can detain you -- but we can also try to kill you.''

That said, he cautioned, additional factors complicate the analysis of selecting lawful targets. Among them, it is not clear whether Mr. Obama is more willing in classified settings to assert that, as commander in chief, he can use drone strikes to defend the country against perceived threats that cannot be linked to the Congressionally authorized war against Al Qaeda.

And even in detention matters, Bush-era theories have remained attractive to some. This January, two appeals court judges appointed by Mr. Bush -- Janice Rogers Brown and Brett M. Kavanaugh, both of whom had been singled out by Democrats after their nominations as too ideological -- reopened the debate by unexpectedly declaring, in another Guantanamo case, that the laws of armed conflict did not limit the president's war powers.

In the Justice Department, career litigators who defend against Guantanamo lawsuits wanted to embrace that reasoning, arguing it would help them win. Judges have sided with detainees seeking release in some 34 of 46 cases to date -- though the decisions largely turned on skepticism about specific evidence, not the general legal theory about who was detainable.

But political appointees -- including Mr. Barron, Mr. Koh and even Mr. Johnson -- criticized the reasoning of the appeals court ruling as vulnerable to reversal and argued that the administration should not abandon its respect for the laws of war.

In classified briefs filed in several detainee cases this month, officials said, the Justice Department adopted an ambivalent stance. It cited the ruling as a precedent while also reasserting its own contradictory argument that the laws of war matter. The debate would go on.

''We'll see how the cases develop,'' Attorney General Eric H. Holder Jr. said in an interview in February, in the midst of that latest round. But, he added, ''I don't think we are going to deviate from our argument.''

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The Obama Administration’s Overblown Internal Debate Over War on Terrorism Policy

by Julian Ku

Fascinating inside baseball piece on the Obama Administration’s internal debate over war on terrorism policy. It features a struggle between the State Department (Harold Koh) and the Defense Department (Jeh Johnson) with the OLC (David Barron) playing referee.

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I actually think the article overstates the differences somewhat. All the key players agree there is a war against Al Qaeda and that there is a power to detain and try Al Qaeda folks. The only question dividing them seems to be how to define a member of Al Qaeda, or supporter of Al Qaeda. Admittedly, this is a difficult question but it doesn’t seem to be a deep philosophical divide.

Families seek answers after sinking of South Korean warship

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