Hello. As part of an ongoing series designed to provoke a conversation regarding the laws which should govern our intelligence services, I provide the following factual and legal hypothetical for your review.
As part of this hypothetical, I ask that you assume that you are a law clerk to a sitting federal judge who has been asked to preside over one of several different actions related to the hypothetical given below. The judge will follow your lead and will likely decide the way that you decide the case. Your job is to come up with a coherent reason for why the case should be decided one way or another.
No part of this exercise is simple. Lawyers will recognize this as much like a law school examination. I am a lawyer, and I cannot escape my training.
The hypothetical after the jump.
Emsal Hussein was an engineer working for the Pakistani government on a sensitive intelligence matters. He was, in fact, working on the weapons systems for nuclear warheads. His particular expertise was not on the atomic side, but rather, on timing the conventional explosives to trigger the atomic chain reaction. He worked (with others in his laboratory) to make Pakistan's nuclear arsenal more reliable and, ultimately, more deadly.
Emsal Hussein was also a homosexual, living in a country which strongly represses homosexuality. He struggled with his homosexuality for years, trying to sublimate his desires into his work. As a scientist working on his country's atomic weapons program, he knew he was constantly under surveillance, and therefore, he limited his homosexual encounters to discreet pick ups when he, as a tourist, travelled to Bahrain for a vacation. He travels there once every year, usually in the winter.
Unfortunately for Emsal, his encounter three years ago was recorded by someone working for Iranian intelligence, who passed the information up the chain to his superiors. Having learned that Emsal Hussein was a homosexual, the Iranian intelligence service took steps to place an agent in Emsal's apartment building. This agent -- who goes by the name Wahid Hasan -- has over the course of the last two years struck up a relationship with Emsal, seduced him, and now is manipulating Emsal. Wahid has obtained blackmail photographs of Emsal, but he so far has not needed to use these photographs to get what he wants.
Wahid convinced Emsal to obtain detailed plans for the triggering mechanism on its nuclear warhead and to sell these plans to "men Wahid knows" in order to obtain enough cash that Wahid and Emsal will be able to "run away together" and live as lovers in Bahrain.
The United States government learned of all this information because of an agent it has in the Iranian intelligence services. The agent is a low-level employee (a secretary) who has managed to obtain access to internal communications. The United States thus knew about the Iranian intelligence operation and knew that Emsal had the information wanted by the Iranians.
Wahlid comnvinced Emsal to meet with Iranian agents (Emsal did not know they were Iranian agents, but he knew Wahlid had suggested that they meet "with men from another country" who "would pay for what Emsal knew.") The price for the plans was to be $100,000 US, delivered in a briefcase. The meeting was to take place near the White Mosque in Islamabad, in room 420 of a small, well-run hotel with eight floors. Emsal is supposed to go to the meeting alone, get the money, and then meet Wahlid (who will be waiting outside in a car). They will drive to the airport and immediately fly from the country (or so Emsal has been led to believe).
Three agents of the United States CIA -- Ambrose Atlas, Betsy Biscomb, and Clark Courant ("A", "B" and "C") were dispatched by the U.S. government to disrupt this meeting. Their orders were (1) to prevent the transfer of the plans to Iran, (2) to obtain the plans themselves, if possible, (3) to determine what other information the Iranians had obtained from Emsal, and (4) at all costs, to prevent the Iranians from thinking that they had a leak in their intelligence network.
A, B, and C go to Islamabad. They intercept the Iranian agents (who were staying at the hotel on another floor prior to the meeting) and attempt to disable them. One of the Iranian agents is knocked out and captured without difficulty; the second agent, however, almost escapes, and would have, except that B stabs the agent, wounding him grievously. The agent surrenders, but due to his injuries he begins moaning quietly. Both Iranian agents are, for the moment, tied up and left in their room.
Agents A & C impersonate the Iranian agents and go to the meeting, taking the $100,000 worth of money the Iranian agents have brought to "show" Emsal, if necessary. Unfortunately, when they arrive, there has been an unexpected change of plans. Emsal has brought Wahlid to the meeting, because Emsal is afraid of handling the meeting alone. Wahlid looks up, realizes that the imposters are not Iranian agents, and tries to escape the hotel. Agent A and Agent C grab Wahlid try to silence him; when Wahlid starts to scream, Agent A crushes Wahlid's windpipe, and then, when he is unconscious, Agent A breaks his neck.
The terrified Emsal tries to flee, but agent C draws a gun and puts it to Emsal's head. At gunpoint, he is led back to the other room, where Agent B. and the Iranian agents now hide. The wounded Iranian has died from the wounds, despite Agent B's best efforts to save him. Confronted with an operation that has now gone wildly awry, Agents A, B and C decide to kill the remaining Iranian. They then shoot both bodies and close range with small-caliber weapons, making it look as if the Iranian agents were executed.
They then bring the corpse of Wahlid back to their hotel room, wait until nightfall, and then bring the corpse of Wahlid and the sill-alive Emsal to a van waiting downstairs. They drive off, dump Wahlid's body in a garbage dump where it will not be found, and then take Emsal overland to a rendezvous point at the shore.
The effect of the team's actions seems to have worked. The Iranians believe that Wahlid and Emsal have double-crossed them and took the money and ran. The Pakistanis are still investigating the disappearance of Emsal -- but their investigation has turned up the photographs taken by Wahlid, and, as a result, they think Emsal has run away with Wahlid.
Emsal is currently in Diego Garcia, at a military prison, where he is being debriefed. Other then his capture and the normal effects of incarcertation, he is not being tortured or "aggresively interrogated." He is beginning to provide useful intelligence on the Pakistani nuclear program.
Congress has appointed a special prosecutor to investigate alleged abuses by the CIA. The prosecutor has decided, as a test case, to bring criminal charges against A, B and C in a closed court and under seal, alleging that A, B, and C committed murder of three foreign nationals (Wahlid and the two Iranian agents) The special prosecutor has also filed a habeas corpus motion with the United States government, demanding the release of Emsal Hasan.
The Inspector General of the CIA opposes the special prosecution on the murder charge and the kidnapping charge.
(1) Is the killing of the Iranian intelligence agents and/or Wahlid prosecutable in the United States courts? Why or why not?
(2) Does the habeas corpus petition carry weight in the United States courts? Why or why not?
(3) Does Emsal have the right to be free of indefinite detention? If so, how long can he be held?
I'm not going to post much. I'll let y'all do the talkiing -- if any. To the extent possible, please provide some legal citation or argument if possible. I'm not looking for a "moral" analysis, but rather, a legal argument.