International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2011 Issue

Significant Judicial Developments

Obama Administration International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World (May 2011)

Click here for document (approximately 25 pages); click here for Insight (approximately 6 pages)

The Obama Administration has released the International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World. President Obama stated that this "is the first time that our Nation has laid out an approach that unifies our engagement with international partners on the full range of cyber issues."

Professor David Fidler recently wrote an ASIL Insight discussing the significance of the document and its broader international implications. He also noted several potential problems regarding the document. According to Professor Fidler, "[d]espite acknowledging the importance of existing international legal rules, the International Strategy never mentions two basic principles affected by its content--respect for sovereignty and non-intervention in the domestic affairs of other states."

DOD Announces Charges Sworn Against Five Detainees Allegedly Responsible for 9/11 Attacks (May 31, 2011)

Click here for press release (approximately 1 page)

The U.S. Department of Defense ("DOD") has announced that the office of military commissions has sworn charges against five Guantanamo Bay detainees, namely Khalid Sheikh Mohammed, Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi. The five are charged with planning and executing the 9/11 attacks in New York, Washington, DC, and Pennsylvania that killed almost 3,000 people.

According to a DOD press release, pursuant to the Military Commissions Act of 2009, "the sworn charges will be forwarded to the Convening Authority, Bruce MacDonald. The convening authority will make an independent determination as to whether to refer some, all, or none of the charges for trial by military commission."

U.S. State Department Legal Adviser Herold Koh on the Lawfulness of the U.S. Operation Against Osama bin Laden (May 19, 2011) 

Click here for statement (approximately 2 pages)

U.S. State Department Legal Adviser Herold Koh has issued a statement on the lawfulness of the U.S. operation against Osama bin Laden. In a blog post on Opinio Juris, Koh argues that bin Laden's "unquestioned leadership position within al Qaeda and his clear continuing operational role" led to the conclusion that "he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda." Koh added that "bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force." Koh also quoted a recent speech at the 105th ASIL Annual Meeting where he stressed the Administration's reliance on and application of international legal standards in armed conflict.

Attorney General of Canada on Behalf of the United States of America v. Khadr (May 6, 2011)

Click here for decision (approximately 25 pages)

The Court of Appeal for Ontario has rejected an appeal by the Attorney General of Canada acting on behalf of the United States and dealing with the extradition of Abdullah Khadr to the United States to face criminal charges. A lower court judge, who reviewed the extradition request, ordered a stay of the proceedings because "to permit the proceedings to continue in the face of the requesting state's misconduct would constitute an abuse of the judicial process." The judge expressed shock at what Khadr had allegedly experienced at the hands of the Pakistani government, which acted with the implied knowledge of U.S. officials: "the sum of the human rights violations suffered by Khadr is both shocking and unjustifiable." 

Abdullah Khadr, a Canadian citizen and the brother of Omar Khadr, the youngest detainee currently held at Guantanamo Bay, was apprehended in Pakistan when the U.S. government paid the Pakistani government half a million dollars to abduct him. He was held in a secret prison and allegedly tortured. During his detention, he was never charged and was not given the right to contact Canadian officials. Eventually, Canada repatriated Khadr. The United States then decided to file criminal charges against Khadr in Boston and sought his extradition.

The Superior Court judge reviewed the evidence presented as part of the extradition request and decided that the misconduct on the part of the United States was sufficiently shocking and unjustifiable that Khadr's extradition to the United States would amount to "abuse of the judicial process." The Attorney General of Canada appealed this ruling, claiming, inter alia, that the judge had no jurisdiction to grant the stay.

The Court of Appeal dismissed the appeal, concluding that the Attorney General could not "appeal against the extradition judge's findings that the human rights violations were shocking and unjustifiable." Furthermore, "[b]ecause of the requesting state's misconduct, proceeding with the extradition committal hearing threatened the court's integrity. Responding to that threat was a judicial matter to be dealt with by the extradition judge, not an executive decision reserved to the Minister."

U.S. Department of State 2010 Country Reports on Human Rights Practices

Click here for report (approximately 7000 pages)

On April 8, 2011, the U.S. State Department published the 2010 Country Reports on Human Rights Practices. The 2010 report, which marks the 35th year that the U.S. State Department has published the annual report on the human rights situation around the world, provides an overview of the human rights conditions in 194 countries and is meant to “raise awareness” and “identify trends.”

According to the Department of State press release, the report was initially a “response to a Congressional mandate to report on the human rights situation in those countries that were receiving U.S. assistance in the mid 1970s,” but “has blossomed into a detailed analysis of human rights conditions in all countries that are members of the United Nations.”

Each country report is comprehensive, comprising information from numerous sources, including domestic and international human rights organizations, governments, multilateral organizations, and members of civil society. According to Assistant Secretary for Democracy, Human Rights, and Labor Michael Posner and Secretary of State Hillary Clinton, three trends have been identified in this year’s report: continued repression on civil society and NGO activists; new attacks on internet users; and increased attacks on members of religious, ethnic, and other minorities. 

Of further note, the U.S. State Department has also launched a new website,, which will provide reports, statements, and current updates on human rights situations around the world.  According to the State Department, this website will “make it easier for citizens, scholars, NGOs, and international organizations to find the information they need to hold governments accountable.”

FG Hemisphere Associates, LLC v. Democratic Republic of Congo (Mar. 15, 2011)

Click here for decision (approximately 12 pages)

In FG Hemisphere Associates, LLC v. Democratic Republic of Congo, the U.S. Court of Appeals for the District of Columbia Circuit has ruled that the Foreign Sovereign Immunities Act (“FSIA”) does not abrogate the court’s inherent power to impose contempt sanctions on a foreign sovereign.

FG Hemisphere’s predecessor-in-interest commenced suit against the Democratic Republic of Congo (“DRC”) seeking to confirm an arbitration award under the FSIA. When the DRC failed to appear before the court, a default judgment was entered in FG’s favor. The DRC then began to participate in the litigation but failed to respond to court-ordered discovery regarding the location of its assets. The district court found DRC in civil contempt for failing to respond for two years to the court’s discovery order. The DRC, supported by the United States as amicus, moved to vacate the contempt order, arguing that the FSIA does not authorize contempt sanctions against foreign sovereigns.

The Court of Appeals concluded that “there is not a smidgen of indication in the text of the FSIA that Congress intended to limit a federal court’s inherent contempt power. Nor is there any legislative history supporting such claim.”

U.S. Attorney General – Authority to Use Military Force in Libya (Apr. 1, 2011)

Click here for document (approximately 13 pages)

The U.S. Attorney General has issued a memorandum summarizing the advice provided to President Obama concerning his authority to order the use force in Libya. In sum, the memorandum concludes that the President possessed constitutional authority to direct the use of U.S. military in Libya for two reasons: first, important U.S. interests are at stake; and, second, the military operations are not “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific” authorization by Congress under the Declaration of War Clause of the U.S. Constitution.

On March 19, 2011, the United States, supported by its coalition partners, commenced airstrikes against Libyan targets. The situation in Libya had been deteriorating since February 2011, and the international community strongly condemned the apparent disregard for human life demonstrated by the Libyan regime and its leader, Qadhafi. Major international bodies issued recommendations and resolutions demanding that the attacks on civilians be stopped.

On March 17, 2011, UN Security Council passed Resolution 1973 imposing a no-fly zone over Libya and authorizing the use of military force to protect civilians. When the Libyan government refused to comply with Resolution 1973, the United States, supported by its coalition partners, launched airstrikes.

Soon after the airstrikes commenced, several NGOs (see, e.g., ACLU), academics, and legislators expressed their misgivings about President Obama’s unilateral decision to launch a military operation in Libya. The rise of questions and doubts about the use of military force prompted the White House to issue the memorandum explaining its position with respect to the President’s powers.

The memorandum first provides background information about the situation in Libya and the President’s response to a changing environment in the region. It also enumerates several instances in which the President addressed Congress and the public regarding his administration’s stance toward Libya. Most importantly, the memorandum emphasizes the apparent international consensus that some type of action was necessary (see, e.g., Arab League Recommendation and UN Security Council Resolution 1973).

The second part of the memorandum focuses on historical precedents where prior U.S. presidents, on their own initiative, have ordered military operations: “bombing in Libya (1986), an intervention in Panama (1989), troop deployments to Somalia (1992), Bosnia (1995), and Haiti (twice, 1994 and 2004), air patrols and airstrikes in Bosnia (1993-1995), and a bombing campaign in Yugoslavia (1999).”

The final part of the memorandum discusses whether President Obama’s decision to use military force fits the past practice of the White House. In other words, the determination whether the use of force was constitutional hinges, according to the memorandum, on whether U.S. interests needed to be protected and whether the operation was limited in risk and time. The memorandum concludes that both of the factors were present in President Obama’s decision to launch airstrikes in Libya.

Statement of the Attorney General on the Prosecution of the 9/11 Conspirators (Apr. 4, 2011)

Click here for statement (approximately 1 page)

U.S. Attorney General Eric Holder has stated that he will refer the case of Khalid Sheikh Mohammed, Walid Muhammad Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi to the Department of Defense to proceed in military commissions. He emphasized that “the best venue for prosecution [i]s in federal court.” However, because Congress recently “block[ed] the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue,” this was not a viable option, at least for now. Holder disapproved of the Congress-imposed restriction: “Too many people–many of whom certainly know better–have expressed doubts about our time-honored and time-tested system of justice.  That’s not only misguided, it’s wrong.”

Military Detainee Procedures Improvement Bill of 2011 (Mar. 10, 2011)

Click here for document (approximately 26 pages); click here for press release (approximately 1 page)

On March 10, 2011, U.S. Senators John McCain, Lindsay Graham, Joseph Lieberman, Saxby Chambliss, Kelly Ayotte, and Scott Brown introduced for Senate consideration the Military Detainee Procedures Improvement Bill of 2011 ("Bill").  The Bill would serve to "improve procedures for the detention and review of status of detainees of the United States in connection with the continuing armed conflict with al Qaeda, the Taliban, and affiliated groups."

If enacted, the Bill would reaffirm the Authorization for Use of Military Force, which authorizes the President to use "all necessary and appropriate force" against those who have taken part in the September 11, 2001 attacks.  The Bill would also require military custody for members of al Qaeda, the Taliban, and affiliated groups pending either: long-term detention without trial until the end of hostilities; trial; transfer for trial elsewhere; or transfer to the custody of the person's country of origin or other foreign country or entity.  Finally, the Bill would set forth permanent restrictions regarding the transfer of Guantánamo detainees and provide uniform procedures for detention review and status determination of detainees.

According to Senator McCain, the Guantánamo detainee policy has been a "vexing issue for almost 10 years." Senator McCain declared that this legislation would improve the current detention system for suspected terrorists "by enacting these policies and procedures firmly into law." Senator Lieberman asserted that the Bill would confirm the President's authority to detain both present and future detainees and would "require steps to prevent any detainees who are cleared for release from returning to the battlefield."  He added that "[t]his legislation will also make sure that we treat detainees in a manner that is consistent with the Geneva Conventions and will provide maximum protection to the American people and the American military."

Agreement Between the United States of America and the European Community on Cooperation in the Regulation of Civil Aviation Safety (Mar. 1, 2011)

Click here for agreement (approximately 122 pages)

According to an EU press release, the European Union and the United States have concluded an agreement on cooperation in the regulation of civil aviation safety. The agreement will enter into force on May 1, 2011.

The parties, in an effort to improve their long-standing cooperation in civil aviation and harmonize the existent regulatory mechanisms, have agreed to continue the development of a comprehensive system of regulatory cooperation and to improve continuous communication on safety and environment. The agreement establishes a Bilateral Oversight Board, which will serve as the supervisory body and ensure that the agreement is properly implemented.

Lebron et al. v. Rumsfeld et al. (Feb. 17, 2011)

Click here for document (approximately 32 pages)

The U.S. District Court for the District of South Carolina has dismissed all claims by Jose Padilla against several current and former government officials stemming from his capture, interrogation, and subsequent classification as enemy combatant. Padilla, a U.S. citizen currently serving a prison sentence on various federal charges in connection with his support of Al Qaeda, sued numerous government officials, including former Secretary of Defense Donald Rumsfeld, alleging that his detention as an enemy combatant and the treatment experienced during his detention violated his federal statutory and constitutional rights. The government defendants claimed, inter alia, that there exists no private right of action against them and that they are entitled to qualified immunity.

Padilla was arrested in 2002 at O’Hare International Airport and held thereafter for several years without access to counsel. His case then traveled through the various federal courts, including the U.S. Supreme Court. He was eventually sentenced to seventeen years and four months imprisonment, a sentence he is currently appealing. Padilla is claiming that his detention and designation as an enemy combatant violated his rights to counsel, access to the courts, freedom of religion, freedom of association, due process, and his right against cruel and unusual punishment.

The district court first recognized that Congress “never created a private right of action against federal officials based upon a deprivation of constitutional rights;” however, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the U.S. Supreme Court ruled that a private civil cause of action for money damages was implied in the U.S. Constitution. This ruling was later broadened to include civil claims against other federal agencies. Padilla claimed that Bivens and its progeny encompass his claims against the government officials for the alleged treatment he suffered at their hands.

The district court disagreed, ruling that subsequent jurisprudence by numerous federal circuits and the U.S. Supreme Court clearly demonstrated that Bivens is to be construed narrowly, thus excluding Padilla’s claims.

The district court then went on to discuss the qualified immunity defense espoused by the government officials, concluding that all defendants were protected by the immunity because at the time the challenged governmental actions occurred, there were no “clearly established statutory or constitutional rights which a reasonable person would have known.”

Ike Skelton National Defense Authorization Act for Fiscal Year 2011

Click here for document (approximately 383 pages); click here for President Obama’s statement (approximately 1 page)
U.S. President Obama signed the Ike Skelton National Defense Authorization Act, a law authorizing funding for military activities in the United States and abroad for 2011.

Notably, President Obama also issued a statement objecting to specific provisions within the Act, in particular Sections 1032 and 1033. These sections prohibit the use of the allocated funds to transfer or release current Guantanamo detainees into the United States or into the custody or effective control of foreign countries, unless specific conditions are met. 

According to President Obama, Section 1032 “represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees.” Moreover, “[t]he prosecution of terrorists in Federal court is a powerful tool . . . to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation’s counterterrorism efforts and has the potential to harm our national security.”

He concluded that the reason why he signed the bill into law is to ensure that necessary funds were authorized for 2011 military activities. He also vowed that his administration will “seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”

ACLU v. U.S. Dep’t of Def. (Jan. 18, 2011)

Click here for document (approximately 23 pages)

The U.S. Court of Appeals for the District of Columbia has upheld a lower court ruling in favor of the U.S. government regarding the release of documents related to fourteen “high value” detainees held at the U.S. Naval Base in Guantanamo Bay. The request for the release of the documents was filed by the American Civil Liberties Union (ACLU) under the Freedom of Information Act (FOIA).

The U.S. government had released redacted versions of the documents requested by the ACLU; however, information regarding the capture, detention, and interrogation of the detainees was not released. The government defended its actions on the basis that the information in question was properly withheld under FOIA exemptions, which allow the withholding of government information related to “intelligence sources and methods.” The district court granted the government’s motion for summary judgment, finding the government in compliance with FOIA. The ACLU appealed.

During the appeal, President Obama issued three Executive Orders on detention and interrogation and declassified and released four Department of Justice memoranda on the legality of enhanced interrogation techniques. In addition, information regarding treatment of “high value” detainees was leaked, and a CIA report on the CIA’s interrogation techniques was released. These changes prompted the Court of Appeals to remand the case back to district court to “provide the CIA with the opportunity to ‘reprocess’ the requested documents.” The result was the release of a complete combatant status review tribunal transcript and revision of redactions of five other transcripts. The government again filed a motion for summary judgment, which the district court granted, and again, the ACLU appealed. 

In a detailed discussion of FOIA and the relevant exemptions, the Court of Appeals rejected all of the ACLU’s claims, including that the information requested has already been declassified and is publically available; that the interrogation techniques and confinement methods were “prohibited” by the President; that the government could not classify information “derived from the detainee’s personal observations and experiences;” and that the release would not endanger national security.


International Law and the Future of Cyberspace: The Obama Administration’s International Strategy for Cyberspace
By David P. Fidler
June 6, 2011

International Law and Foreign Laws in the U.S. State Legislatures
By Aaron Fellmeth
May 26, 2011

Pakistan's Sovereignty and the Killing of Osama Bin Laden 
By Ashley S. Deeks
May 5, 2011


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© 2011 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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