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Harvard University's A joint project of Harvard University’s John F. Kennedy School of Government and Harvard Law School Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism Philip B. Heymann, Harvard Law School Juliette N. Kayyem, Kennedy School of Government Sponsored by The National Memorial Institute for the Prevention of Terrorism (MIPT) The Belfer Center for Science and International Affairs at Harvard’s John F. Kennedy School of Government administered the Long-Term Legal Strategy Project from April 2003 - November 2004. The Belfer Center provides leadership in advancing policy-relevant knowledge about the most important challenges of international security and other critical issues where science, technology, environmental policy, and international affairs intersect. To learn more about the Belfer Center, visit www.bcsia.ksg.harvard.edu. Long-Term Legal Strategy Project Attn: Meredith Tunney John F. Kennedy School of Government 79 JFK Street Cambridge, MA 02138 (617) 495-5275 www.ksg.harvard.edu/bcsia/longtermlegalstrategy www.mipt.org/Long-Term-Legal-Strategy.asp Harvard University’s Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism Board of Advisors All members of the Board of Advisors agreed with the necessity to evaluate the legal terrain governing the “war on terrorism.” This final Report is presented as a distillation of views and opinions based on a series of closed-door meetings of the Board. The advisors have from time to time been offered the opportunity to express views or make suggestions relating to the matters included in this Report, but have been under no obligation to do so, and the contents of the Report do not represent the specific beliefs of any given member of the Board. The authors of the Long-Term Legal Strategy Report, Philip Heymann and Juliette Kayyem, are responsible for the final analysis herein. Directors Philip B. Heymann, James Barr Ames Professor of Law at the Harvard Law School; former Deputy U.S. Attorney General; former Associate Prosecutor and Consultant to the Wartergate Special Force. Juliette N. Kayyem, Acting Executive Director for Research and Adjunct Lecturer at the Belfer Center for Science and International Affairs at Harvard University’s Kennedy School of Government; former Member the National Commission on Terrorism; former Legal Adviser to the Attorney General. Advisors Joseph R. (Bob) Barnes, Senior Policy Advisor (Department of Defense), The Nature Conservancy; Brigadier General, U.S. Army (retired). Bob Barr, 21st Century Liberties Chair for Freedom and Privacy, American Conservative Union. Rand Beers, Former Special Assistant to the President and Senior Director for Combating Terrorism; National Security/Homeland Security Issue Coordinator for John Kerry’s Presidential campaign. Michael Chertoff, Circuit Judge, United States Court of Appeals for the Third Circuit; former Assistant Attorney General for the Criminal Division at the U.S Department of Justice (2001- 2003). Vicki Divoll, Former General Counsel (2001-2003) to the Senate Select Committee on Intelligence; former Assistant General Counsel to the Central Intelligence Agency (CIA). Paul Evans, Director, Police Standards Unit, London; former Police Commissioner, Boston Police Department. Neil Gallagher, Homeland Security Executive, Bank of America; former Assistant Director of the Federal Bureau of Investigation’s (FBI) National Security Division. Mary Graham, Co-Director, Transparency Policy Project, Harvard University’s Kennedy School of Government; Visiting Fellow, Brookings Institution. Donald R. Hamilton, Coalition Provisional Authority, Baghdad, Iraq and Deputy Director, National Memorial Institute for the Prevention of Terrorism (MIPT), Oklahoma City, Oklahoma. Eleanor Hill, Partner, King & Spalding, LLP; former Staff Director, House and Senate Intelligence Committees’ Joint Inquiry regarding the Terrorist Attacks of September 11, 2001. Lance Liebman, Director, American Law Institute; William S. Beinecke Professor of Law at Columbia Law School; Director, Parker School of Foreign and Comparative Law. John MacGaffin, Former Member, Senior Intelligence Service and former Associate Deputy Director for Operations for the Central Intelligence Agency (CIA); former Senior Advisor to the Director and Deputy Director for the Federal Bureau for Investigation (FBI). Robert McNamara, Jr., Former General Counsel to the Central Intelligence Agency (CIA) and former Chief Enforcement Attorney for the U.S. Treasury Department. Oliver "Buck" Revell, Founder and President Revell Group International, Inc.; former Special Agent and former Senior Executive to the Federal Bureau of Investigation (FBI). Suzanne Spaulding, Chair of the American Bar Association's Standing Committee on Law and National Security; former Democratic Staff Director for the Permanent Select Committee on Intelligence in the U.S. House of Representatives. Michael Traynor, Lawyer practicing in San Francisco, California. Michael Vatis, Independent Consultant on Security and Intelligence issues and an Attorney; former Official for the Departments of Defense and Justice and the FBI. Participants from the United Kingdom Experts from the United Kingdom served as observers to the proceedings. Chris Albiston, Consultant to the Director General of the Estonian Police Service in Tallinn; former head of the Police Service of Northern Ireland’s (PSNI) Crime Department; former United Nations Police Commissioner in Kososvo. Lord Alex Carlile of Berriew Q.C., Independent Reviewer of Terrorism Legislation, appointed by the UK Home Secretary to report to him and to Parliament; Head of Chambers (Chairman) at 9-12 Bell Yard, London WC2. David Feldman, Rouse Ball Professor of English Law at the University of Cambridge and Fellow of Downing College, Cambridge; Judge of the Court, Constitutional Court of Bosnia and Herzegovina; former Legal Adviser to the Joint Committee on Human Rights, Houses of Parliament. Sir Ronnie Flanagan, HM Inspector of Constabulary. Tom Parker, Fellow at Brown University; former Special Adviser on Transitional Justice to the Coalition Provisional Authority (CPA) in Baghdad, Iraq and former Head of the CPA’s Crimes against Humanity Investigation Unit. Peter Smith Q.C., Deputy Judge, High Court, Northern Ireland; Judge of the Court of Appeals of Jersey and Guernsey. Harvard University’s Long-Term Legal Strategy Project is supported under Award MIPT- 2003D-C-002 from the National Memorial Institute for the Prevention of Terrorism (MIPT) and the Office for Domestic Preparedness, U.S. Department of Homeland Security. Points of view in this document are those of the author(s) and do not necessarily represent the official position of the U.S. Department of Homeland Security or MIPT. ACKNOWLEDGEMENTS The authors are indebted to a number of individuals who provided insight and talent to this effort. We want to first thank our task force members as well as our advisors from the United Kingdom who, over the course of several meetings in Cambridge and in Oklahoma City, were exceptionally forthright, honest and productive. They have reviewed drafts and offered insights. Their collective talent and experience has rarely been replicated. We also want to pay tribute to our National Memorial Institute for the Prevention of Terrorism (MIPT) partners. General Dennis J. Reimer always was an important contributor to this effort; James "Chip" O. Ellis III provided the necessary carrots and sticks and was a pleasure to work with; and, simply put, we are proud of Donald R. Hamilton's service to our country, but also grateful that he is home safely. Susan Lynch was served as our willing and able editor. Sady Cohen and Ben Lambert were instrumental law school partners. John Neffinger and Sharon Wilke helped tremendously in the final stages of this Report and its release. Tom Parker reminded us why we like the British so much. And Tom Lue, a "mere" Harvard law student, provided invaluable advice throughout. We are particularly indebted to him. Throughout we sought the advice of outside counsel -- both inside and outside government. Thank you. But, this all would not have been possible without Meredith Tunney who took this project on, gave it life, got everyone in the same room at the same time, edited and copied, and performed as a remarkable administrator of this Project. She was a patient and understanding partner in this effort. We thank her tremendously. Table of Contents ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Executive Summary…………………………………………………………………...1 Introduction…………………………………………………………………………..11 Recommendations I. Coercive Interrogations……………………………………………………….23 II. Detentions……………………………………………………………………..33 III. Military Commissions………………………………………………………...51 IV. Targeted Killing………………………………………………………………59 V. Communications of U.S. Persons or Others within the United States Intercepted During the Targeting of Foreign Persons Abroad………………..71 VI. Information Collection………………………………………………………..79 VII. Identification of Individuals and Collection of Information for Federal Files…………………………………………………………………………...91 VIII. Surveillance of Religious and Political Meetings…………………………….99 IX. Distinctions Based on Group Membership………………………………….109 X. Oversight of Extraordinary Measures……………………………………….119 Appendix A: Counterterrorism Policies in the United
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